The Project Gutenberg EBook of Commentaries on the Laws of England, by
William Blackstone
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Title: Commentaries on the Laws of England
Book the First
Author: William Blackstone
Release Date: December 30, 2009 [EBook #30802]
Language: English
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[Transcriber's Note: Sir William Blackstone's _Commentaries on the
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COMMENTARIES
ON THE
LAWS
OF
ENGLAND.
BOOK THE FIRST.
BY
WILLIAM BLACKSTONE, ESQ.
VINERIAN PROFESSOR OF LAW,
AND
SOLICITOR GENERAL TO HER MAJESTY.
OXFORD,
PRINTED AT THE CLARENDON PRESS.
M. DCC. LXV.
TO
THE QUEEN'S MOST EXCELLENT MAJESTY,
THE FOLLOWING VIEW
OF THE LAWS AND CONSTITUTION
OF ENGLAND,
THE IMPROVEMENT AND PROTECTION OF WHICH
HAVE DISTINGUISHED THE REIGN
OF HER MAJESTY'S ROYAL CONSORT,
IS,
WITH ALL GRATITUDE AND HUMILITY,
MOST RESPECTFULLY INSCRIBED
BY HER DUTIFUL
AND MOST OBEDIENT
SERVANT,
WILLIAM BLACKSTONE.
PREFACE.
_THE following sheets contain the substance of a course of lectures on
the laws of England, which were read by the author in the university
of OXFORD. His original plan took it's rise in the year 1753: and,
notwithstanding the novelty of such an attempt in this age and
country, and the prejudices usually conceived against any innovations
in the established mode of education, he had the satisfaction to find
(and he acknowleges it with a mixture of pride and gratitude) that his
endeavours were encouraged and patronized by those, both in the
university and out of it, whose good opinion and esteem he was
principally desirous to obtain._
_THE death of Mr VINER in 1756, and his ample benefaction to the
university for promoting the study of the law, produced about two
years afterwards a regular and public establishment of what the author
had privately undertaken. The knowlege of our laws and constitution
was adopted as a liberal science by general academical authority;
competent endowments were decreed for the support of a lecturer, and
the perpetual encouragement of students; and the compiler of the
ensuing commentaries had the honour to be elected the first Vinerian
professor._
_IN this situation he was led, both by duty and inclination, to
investigate the elements of the law, and the grounds of our civil
polity, with greater assiduity and attention than many have thought it
necessary to do. And yet all, who of late years have attended the
public administration of justice, must be sensible that a masterly
acquaintance with the general spirit of laws and the principles of
universal jurisprudence, combined with an accurate knowlege of our own
municipal constitutions, their original, reason, and history, hath
given a beauty and energy to many modern judicial decisions, with
which our ancestors were wholly unacquainted. If, in the pursuit of
these inquiries, the author hath been able to rectify any errors which
either himself or others may have heretofore imbibed, his pains will
be sufficiently answered: and, if in some points he is still mistaken,
the candid and judicious reader will make due allowances for the
difficulties of a search so new, so extensive, and so laborious._
_THE labour indeed of these researches, and of a regular attention to
his duty, for a series of so many years, he hath found inconsistent
with his health, as well as his other avocations: and hath therefore
desired the university's permission to retire from his office, after
the conclusion of the annual course in which he is at present engaged.
But the hints, which he had collected for the use of his pupils,
having been thought by some of his more experienced friends not wholly
unworthy of the public eye, it is therefore with the less reluctance
that he now commits them to the press: though probably the little
degree of reputation, which their author may have acquired by the
candor of an audience (a test widely different from that of a
deliberate perusal) would have been better consulted by a total
suppression of his lectures;----had that been a matter intirely within
his power._
_FOR the truth is, that the present publication is as much the effect
of necessity, as it is of choice. The notes which were taken by his
hearers, have by some of them (too partial in his favour) been thought
worth revising and transcribing; and these transcripts have been
frequently lent to others. Hence copies have been multiplied, in their
nature imperfect, if not erroneous; some of which have fallen into
mercenary hands, and become the object of clandestine sale. Having
therefore so much reason to apprehend a surreptitious impression, he
chose rather to submit his own errors to the world, than to seem
answerable for those of other men. And, with this apology, he commits
himself to the indulgence of the public._
ERRATA.
_Page 138, line 15_: _for_ no _read_ an
_Page 147, (notes) col. 2._ _after_ 1 Sid. 1. _add_ See Stat. 13 Car.
II. c. 7.
_Page 224, line 14_: _after_ sit _add_ at
_Page 376, line 6_: _for_ predial _read_ rectorial
CONTENTS.
INTRODUCTION.
SECT. I.
_On the_ STUDY _of the_ LAW. Page 3.
SECT. II.
_Of the_ NATURE _of_ LAWS _in general_. 38.
SECT. III.
_Of the_ LAWS _of_ ENGLAND. 63.
SECT. IV.
_Of the_ COUNTRIES _subject to the_ LAWS _of_ ENGLAND. 93.
BOOK I.
_Of the_ RIGHTS _of_ PERSONS.
CHAP. I.
_Of the absolute_ RIGHTS _of_ INDIVIDUALS. 117.
CHAP. II.
_Of the_ PARLIAMENT. 142.
CHAP. III.
_Of the_ KING, _and his_ TITLE. 183.
CHAP. IV.
_Of the_ KING'S _royal_ FAMILY. 212.
CHAP. V.
_Of the_ COUNCILS _belonging to the_ KING. 220.
CHAP. VI.
_Of the_ KING'S DUTIES. 226.
CHAP. VII.
_Of the_ KING'S PREROGATIVE. 230.
CHAP. VIII.
_Of the_ KING'S REVENUE. 271.
CHAP. IX.
_Of subordinate_ MAGISTRATES. 327.
CHAP. X.
_Of the_ PEOPLE, _whether_ ALIENS, DENIZENS, _or_ NATIVES. 354.
CHAP. XI.
_Of the_ CLERGY. 364.
CHAP. XII.
_Of the_ CIVIL STATE. 384.
CHAP. XIII.
_Of the_ MILITARY _and_ MARITIME STATES. 395.
CHAP. XIV.
_Of_ MASTER _and_ SERVANT. 410.
CHAP. XV.
_Of_ HUSBAND _and_ WIFE. 421.
CHAP. XVI.
_Of_ PARENT _and_ CHILD. 434.
CHAP. XVII.
_Of_ GUARDIAN _and_ WARD. 448.
CHAP. XVIII.
_Of_ CORPORATIONS. 455.
COMMENTARIES
ON THE
LAWS OF ENGLAND.
INTRODUCTION.
SECTION THE FIRST.
ON THE STUDY OF THE LAW.[A]
[Footnote A: Read in Oxford at the opening of the Vinerian lectures;
25 Oct. 1758.]
MR VICE-CHANCELLOR, AND GENTLEMEN OF THE UNIVERSITY,
THE general expectation of so numerous and respectable an audience,
the novelty, and (I may add) the importance of the duty required from
this chair, must unavoidably be productive of great diffidence and
apprehensions in him who has the honour to be placed in it. He must be
sensible how much will depend upon his conduct in the infancy of a
study, which is now first adopted by public academical authority;
which has generally been reputed (however unjustly) of a dry and
unfruitful nature; and of which the theoretical, elementary parts have
hitherto received a very moderate share of cultivation. He cannot but
reflect that, if either his plan of instruction be crude and
injudicious, or the execution of it lame and superficial, it will cast
a damp upon the farther progress of this most useful and most rational
branch of learning; and may defeat for a time the public-spirited
design of our wise and munificent benefactor. And this he must more
especially dread, when he feels by experience how unequal his
abilities are (unassisted by preceding examples) to complete, in the
manner he could wish, so extensive and arduous a task; since he freely
confesses, that his former more private attempts have fallen very
short of his own ideas of perfection. And yet the candour he has
already experienced, and this last transcendent mark of regard, his
present nomination by the free and unanimous suffrage of a great and
learned university, (an honour to be ever remembered with the deepest
and most affectionate gratitude) these testimonies of your public
judgment must entirely supersede his own, and forbid him to believe
himself totally insufficient for the labour at least of this
employment. One thing he will venture to hope for, and it certainly
shall be his constant aim, by diligence and attention to atone for his
other defects; esteeming, that the best return, which he can possibly
make for your favourable opinion of his capacity, will be his
unwearied endeavours in some little degree to deserve it.
THE science thus committed to his charge, to be cultivated,
methodized, and explained in a course of academical lectures, is that
of the laws and constitution of our own country: a species of
knowlege, in which the gentlemen of England have been more remarkably
deficient than those of all Europe besides. In most of the nations on
the continent, where the civil or imperial law under different
modifications is closely interwoven with the municipal laws of the
land, no gentleman, or at least no scholar, thinks his education is
completed, till he has attended a course or two of lectures, both upon
the institutes of Justinian and the local constitutions of his native
soil, under the very eminent professors that abound in their several
universities. And in the northern parts of our own island, where also
the municipal laws are frequently connected with the civil, it is
difficult to meet with a person of liberal education, who is destitute
of a competent knowlege in that science, which is to be the guardian
of his natural rights and the rule of his civil conduct.
NOR have the imperial laws been totally neglected even in the English
nation. A general acquaintance with their decisions has ever been
deservedly considered as no small accomplishment of a gentleman; and a
fashion has prevailed, especially of late, to transport the growing
hopes of this island to foreign universities, in Switzerland, Germany,
and Holland; which, though infinitely inferior to our own in every
other consideration, have been looked upon as better nurseries of the
civil, or (which is nearly the same) of their own municipal law. In
the mean time it has been the peculiar lot of our admirable system of
laws, to be neglected, and even unknown, by all but one practical
profession; though built upon the soundest foundations, and approved
by the experience of ages.
FAR be it from me to derogate from the study of the civil law,
considered (apart from any binding authority) as a collection of
written reason. No man is more thoroughly persuaded of the general
excellence of it's rules, and the usual equity of it's decisions; nor
is better convinced of it's use as well as ornament to the scholar,
the divine, the statesman, and even the common lawyer. But we must not
carry our veneration so far as to sacrifice our Alfred and Edward to
the manes of Theodosius and Justinian: we must not prefer the edict of
the praetor, or the rescript of the Roman emperor, to our own
immemorial customs, or the sanctions of an English parliament; unless
we can also prefer the despotic monarchy of Rome and Byzantium, for
whose meridians the former were calculated, to the free constitution
of Britain, which the latter are adapted to perpetuate.
WITHOUT detracting therefore from the real merit which abounds in the
imperial law, I hope I may have leave to assert, that if an Englishman
must be ignorant of either the one or the other, he had better be a
stranger to the Roman than the English institutions. For I think it an
undeniable position, that a competent knowlege of the laws of that
society, in which we live, is the proper accomplishment of every
gentleman and scholar; an highly useful, I had almost said essential,
part of liberal and polite education. And in this I am warranted by
the example of antient Rome; where, as Cicero informs us[a], the very
boys were obliged to learn the twelve tables by heart, as a _carmen
necessarium_ or indispensable lesson, to imprint on their tender minds
an early knowlege of the laws and constitutions of their country.
[Footnote a: _De Legg._ 2. 23.]
BUT as the long and universal neglect of this study, with us in
England, seems in some degree to call in question the truth of this
evident position, it shall therefore be the business of this
introductory discourse, in the first place to demonstrate the utility
of some general acquaintance with the municipal law of the land, by
pointing out its particular uses in all considerable situations of
life. Some conjectures will then be offered with regard to the causes
of neglecting this useful study: to which will be subjoined a few
reflexions on the peculiar propriety of reviving it in our own
universities.
AND, first, to demonstrate the utility of some acquaintance with the
laws of the land, let us only reflect a moment on the singular frame
and polity of that land, which is governed by this system of laws. A
land, perhaps the only one in the universe, in which political or
civil liberty is the very end and scope of the constitution[b]. This
liberty, rightly understood, consists in the power of doing whatever
the laws permit[c]; which is only to be effected by a general
conformity of all orders and degrees to those equitable rules of
action, by which the meanest individual is protected from the insults
and oppression of the greatest. As therefore every subject is
interested in the preservation of the laws, it is incumbent upon every
man to be acquainted with those at least, with which he is immediately
concerned; lest he incur the censure, as well as inconvenience, of
living in society without knowing the obligations which it lays him
under. And thus much may suffice for persons of inferior condition,
who have neither time nor capacity to enlarge their views beyond that
contracted sphere in which they are appointed to move. But those, on
whom nature and fortune have bestowed more abilities and greater
leisure, cannot be so easily excused. These advantages are given them,
not for the benefit of themselves only, but also of the public: and
yet they cannot, in any scene of life, discharge properly their duty
either to the public or themselves, without some degree of knowlege in
the laws. To evince this the more clearly, it may not be amiss to
descend to a few particulars.
[Footnote b: Montesq. _Esp. L._ _l._ 11. _c._ 5.]
[Footnote c: _Facultas ejus, quod cuique facere libet, nisi quid vi,
aut jure prohibetur._ _Inst._ 1. 3. 1.]
LET us therefore begin with our gentlemen of independent estates and
fortune, the most useful as well as considerable body of men in the
nation; whom even to suppose ignorant in this branch of learning is
treated by Mr Locke[d] as a strange absurdity. It is their landed
property, with it's long and voluminous train of descents and
conveyances, settlements, entails, and incumbrances, that forms the
most intricate and most extensive object of legal knowlege. The
thorough comprehension of these, in all their minute distinctions, is
perhaps too laborious a task for any but a lawyer by profession: yet
still the understanding of a few leading principles, relating to
estates and conveyancing, may form some check and guard upon a
gentleman's inferior agents, and preserve him at least from very gross
and notorious imposition.
[Footnote d: Education. §. 187.]
AGAIN, the policy of all laws has made some forms necessary in the
wording of last wills and testaments, and more with regard to their
attestation. An ignorance in these must always be of dangerous
consequence, to such as by choice or necessity compile their own
testaments without any technical assistance. Those who have attended
the courts of justice are the best witnesses of the confusion and
distresses that are hereby occasioned in families; and of the
difficulties that arise in discerning the true meaning of the
testator, or sometimes in discovering any meaning at all: so that in
the end his estate may often be vested quite contrary to these his
enigmatical intentions, because perhaps he has omitted one or two
formal words, which are necessary to ascertain the sense with
indisputable legal precision, or has executed his will in the presence
of fewer witnesses than the law requires.
BUT to proceed from private concerns to those of a more public
consideration. All gentlemen of fortune are, in consequence of their
property, liable to be called upon to establish the rights, to
estimate the injuries, to weigh the accusations, and sometimes to
dispose of the lives of their fellow-subjects, by serving upon juries.
In this situation they are frequently to decide, and that upon their
oaths, questions of nice importance, in the solution of which some
legal skill is requisite; especially where the law and the fact, as it
often happens, are intimately blended together. And the general
incapacity, even of our best juries, to do this with any tolerable
propriety has greatly debased their authority; and has unavoidably
thrown more power into the hands of the judges, to direct, control,
and even reverse their verdicts, than perhaps the constitution
intended.
BUT it is not as a juror only that the English gentleman is called
upon to determine questions of right, and distribute justice to his
fellow-subjects: it is principally with this order of men that the
commission of the peace is filled. And here a very ample field is
opened for a gentleman to exert his talents, by maintaining good order
in his neighbourhood; by punishing the dissolute and idle; by
protecting the peaceable and industrious; and, above all, by healing
petty differences and preventing vexatious prosecutions. But, in order
to attain these desirable ends, it is necessary that the magistrate
should understand his business; and have not only the will, but the
power also, (under which must be included the knowlege) of
administring legal and effectual justice. Else, when he has mistaken
his authority, through passion, through ignorance, or absurdity, he
will be the object of contempt from his inferiors, and of censure
from those to whom he is accountable for his conduct.
YET farther; most gentlemen of considerable property, at some period
or other in their lives, are ambitious of representing their country
in parliament: and those, who are ambitious of receiving so high a
trust, would also do well to remember it's nature and importance. They
are not thus honourably distinguished from the rest of their
fellow-subjects, merely that they may privilege their persons, their
estates, or their domestics; that they may list under party banners;
may grant or with-hold supplies; may vote with or vote against a
popular or unpopular administration; but upon considerations far more
interesting and important. They are the guardians of the English
constitution; the makers, repealers, and interpreters of the English
laws; delegated to watch, to check, and to avert every dangerous
innovation, to propose, to adopt, and to cherish any solid and
well-weighed improvement; bound by every tie of nature, of honour, and
of religion, to transmit that constitution and those laws to their
posterity, amended if possible, at least without any derogation. And
how unbecoming must it appear in a member of the legislature to vote
for a new law, who is utterly ignorant of the old! what kind of
interpretation can he be enabled to give, who is a stranger to the
text upon which he comments!
INDEED it is really amazing, that there should be no other state of
life, no other occupation, art, or science, in which some method of
instruction is not looked upon as requisite, except only the science
of legislation, the noblest and most difficult of any. Apprenticeships
are held necessary to almost every art, commercial or mechanical: a
long course of reading and study must form the divine, the physician,
and the practical professor of the laws: but every man of superior
fortune thinks himself _born_ a legislator. Yet Tully was of a
different opinion: "It is necessary, says he[e], for a senator to be
thoroughly acquainted with the constitution; and this, he declares, is
a knowlege of the most extensive nature; a matter of science, of
diligence, of reflexion; without which no senator can possibly be fit
for his office."
[Footnote e: _De Legg._ 3. 18. _Est senatori necessarium nosse
rempublicam; idque late patet:--genus hoc omne scientiae, diligentiae,
memoriae est; sine quo paratus esse senator nullo pacto potest._]
THE mischiefs that have arisen to the public from inconsiderate
alterations in our laws, are too obvious to be called in question; and
how far they have been owing to the defective education of our
senators, is a point well worthy the public attention. The common law
of England has fared like other venerable edifices of antiquity, which
rash and unexperienced workmen have ventured to new-dress and refine,
with all the rage of modern improvement. Hence frequently it's
symmetry has been destroyed, it's proportions distorted, and it's
majestic simplicity exchanged for specious embellishments and
fantastic novelties. For, to say the truth, almost all the perplexed
questions, almost all the niceties, intricacies, and delays (which
have sometimes disgraced the English, as well as other, courts of
justice) owe their original not to the common law itself, but to
innovations that have been made in it by acts of parliament;
"overladen (as sir Edward Coke expresses it[f]) with provisoes and
additions, and many times on a sudden penned or corrected by men of
none or very little judgment in law." This great and well-experienced
judge declares, that in all his time he never knew two questions made
upon rights merely depending upon the common law; and warmly laments
the confusion introduced by ill-judging and unlearned legislators.
"But if, he subjoins, acts of parliament were after the old fashion
penned, by such only as perfectly knew what the common law was before
the making of any act of parliament concerning that matter, as also
how far forth former statutes had provided remedy for former
mischiefs, and defects discovered by experience; then should very few
questions in law arise, and the learned should not so often and so
much perplex their heads to make atonement and peace, by construction
of law, between insensible and disagreeing words, sentences, and
provisoes, as they now do." And if this inconvenience was so heavily
felt in the reign of queen Elizabeth, you may judge how the evil is
increased in later times, when the statute book is swelled to ten
times a larger bulk; unless it should be found, that the penners of
our modern statutes have proportionably better informed themselves in
the knowlege of the common law.
[Footnote f: 2 Rep. Pref.]
WHAT is said of our gentlemen in general, and the propriety of their
application to the study of the laws of their country, will hold
equally strong or still stronger with regard to the nobility of this
realm, except only in the article of serving upon juries. But, instead
of this, they have several peculiar provinces of far greater
consequence and concern; being not only by birth hereditary
counsellors of the crown, and judges upon their honour of the lives of
their brother-peers, but also arbiters of the property of all their
fellow-subjects, and that in the last resort. In this their judicial
capacity they are bound to decide the nicest and most critical points
of the law; to examine and correct such errors as have escaped the
most experienced sages of the profession, the lord keeper and the
judges of the courts at Westminster. Their sentence is final,
decisive, irrevocable: no appeal, no correction, not even a review can
be had: and to their determination, whatever it be, the inferior
courts of justice must conform; otherwise the rule of property would
no longer be uniform and steady.
SHOULD a judge in the most subordinate jurisdiction be deficient in
the knowlege of the law, it would reflect infinite contempt upon
himself and disgrace upon those who employ him. And yet the
consequence of his ignorance is comparatively very trifling and small:
his judgment may be examined, and his errors rectified, by other
courts. But how much more serious and affecting is the case of a
superior judge, if without any skill in the laws he will boldly
venture to decide a question, upon which the welfare and subsistence
of whole families may depend! where the chance of his judging right,
or wrong, is barely equal; and where, if he chances to judge wrong, he
does an injury of the most alarming nature, an injury without
possibility of redress!
YET, vast as this trust is, it can no where be so properly reposed as
in the noble hands where our excellent constitution has placed it: and
therefore placed it, because, from the independence of their fortune
and the dignity of their station, they are presumed to employ that
leisure which is the consequence of both, in attaining a more
extensive knowlege of the laws than persons of inferior rank: and
because the founders of our polity relied upon that delicacy of
sentiment, so peculiar to noble birth; which, as on the one hand it
will prevent either interest or affection from interfering in
questions of right, so on the other it will bind a peer in honour, an
obligation which the law esteems equal to another's oath, to be master
of those points upon which it is his birthright to decide.
THE Roman pandects will furnish us with a piece of history not
unapplicable to our present purpose. Servius Sulpicius, a gentleman of
the patrician order, and a celebrated orator, had occasion to take the
opinion of Quintus Mutius Scaevola, the oracle of the Roman law; but
for want of some knowlege in that science, could not so much as
understand even the technical terms, which his friend was obliged to
make use of. Upon which Mutius Scaevola could not forbear to upbraid
him with this memorable reproof[g], "that it was a shame for a
patrician, a nobleman, and an orator of causes, to be ignorant of that
law in which he was so peculiarly concerned." This reproach made so
deep an impression on Sulpicius, that he immediately applied himself
to the study of the law; wherein he arrived to that proficiency, that
he left behind him about a hundred and fourscore volumes of his own
compiling upon the subject; and became, in the opinion of Cicero[h], a
much more complete lawyer than even Mutius Scaevola himself.
[Footnote g: _Ff._ 1. 2. 2. §. 43. _Turpe esse patricio, & nobili, &
causas oranti, jus in quo versaretur ignorare._]
[Footnote h: _Brut._ 41.]
I WOULD not be thought to recommend to our English nobility and gentry
to become as great lawyers as Sulpicius; though he, together with this
character, sustained likewise that of an excellent orator, a firm
patriot, and a wise indefatigable senator; but the inference which
arises from the story is this, that ignorance of the laws of the land
hath ever been esteemed dishonourable, in those who are entrusted by
their country to maintain, to administer, and to amend them.
BUT surely there is little occasion to enforce this argument any
farther to persons of rank and distinction, if we of this place may be
allowed to form a general judgment from those who are under our
inspection: happy, that while we lay down the rule, we can also
produce the example. You will therefore permit your professor to
indulge both a public and private satisfaction, by bearing this open
testimony; that in the infancy of these studies among us, they were
favoured with the most diligent attendance, and pursued with the most
unwearied application, by those of the noblest birth and most ample
patrimony: some of whom are still the ornaments of this seat of
learning; and others at a greater distance continue doing honour to
it's institutions, by comparing our polity and laws with those of
other kingdoms abroad, or exerting their senatorial abilities in the
councils of the nation at home.
NOR will some degree of legal knowlege be found in the least
superfluous to persons of inferior rank; especially those of the
learned professions. The clergy in particular, besides the common
obligations they are under in proportion to their rank and fortune,
have also abundant reason, considered merely as clergymen, to be
acquainted with many branches of the law, which are almost peculiar
and appropriated to themselves alone. Such are the laws relating to
advowsons, institutions, and inductions; to simony, and simoniacal
contracts; to uniformity, residence, and pluralities; to tithes and
other ecclesiastical dues; to marriages (more especially of late) and
to a variety of other subjects, which are consigned to the care of
their order by the provisions of particular statutes. To understand
these aright, to discern what is warranted or enjoined, and what is
forbidden by law, demands a sort of legal apprehension; which is no
otherwise to be acquired than by use and a familiar acquaintance with
legal writers.
FOR the gentlemen of the faculty of physic, I must frankly own that I
see no special reason, why they in particular should apply themselves
to the study of the law; unless in common with other gentlemen, and to
complete the character of general and extensive knowlege; a character
which their profession, beyond others, has remarkably deserved. They
will give me leave however to suggest, and that not ludicrously, that
it might frequently be of use to families upon sudden emergencies, if
the physician were acquainted with the doctrine of last wills and
testaments, at least so far as relates to the formal part of their
execution.
BUT those gentlemen who intend to profess the civil and ecclesiastical
laws in the spiritual and maritime courts of this kingdom, are of all
men (next to common lawyers) the most indispensably obliged to apply
themselves seriously to the study of our municipal laws. For the civil
and canon laws, considered with respect to any intrinsic obligation,
have no force or authority in this kingdom; they are no more binding
in England than our laws are binding at Rome. But as far as these
foreign laws, on account of some peculiar propriety, have in some
particular cases, and in some particular courts, been introduced and
allowed by our laws, so far they oblige, and no farther; their
authority being wholly founded upon that permission and adoption. In
which we are not singular in our notions; for even in Holland, where
the imperial law is much cultivated and it's decisions pretty
generally followed, we are informed by Van Leeuwen[i], that, "it
receives it's force from custom and the consent of the people, either
tacitly or expressly given: for otherwise, he adds, we should no more
be bound by this law, than by that of the Almains, the Franks, the
Saxons, the Goths, the Vandals, and other of the antient nations."
Wherefore, in all points in which the different systems depart from
each other, the law of the land takes place of the law of Rome,
whether antient or modern, imperial or pontificial. And in those of
our English courts wherein a reception has been allowed to the civil
and canon laws, if either they exceed the bounds of that reception, by
extending themselves to other matters, than are permitted to them; or
if such courts proceed according to the decisions of those laws, in
cases wherein it is controlled by the law of the land, the common law
in either instance both may, and frequently does, prohibit and annul
their proceedings[k]: and it will not be a sufficient excuse for them
to tell the king's courts at Westminster, that their practice is
warranted by the laws of Justinian or Gregory, or is conformable to
the decrees of the Rota or imperial chamber. For which reason it
becomes highly necessary for every civilian and canonist that would
act with safety as a judge, or with prudence and reputation as an
advocate, to know in what cases and how far the English laws have
given sanction to the Roman; in what points the latter are rejected;
and where they are both so intermixed and blended together, as to form
certain supplemental parts of the common law of England, distinguished
by the titles of the king's maritime, the king's military, and the
king's ecclesiastical law. The propriety of which enquiry the
university of Oxford has for more than a century so thoroughly seen,
that in her statutes[l] she appoints, that one of the three questions
to be annually discussed at the act by the jurist-inceptors shall
relate to the common law; subjoining this reason, "_quia juris civilis
studiosos decet haud imperitos esse juris municipalis, & differentias
exteri patriique juris notas habere_." And the statutes[m] of the
university of Cambridge speak expressly to the same effect.
[Footnote i: _Dedicatio corporis juris civilis._ _Edit._ 1663.]
[Footnote k: Hale. Hist. C.L. c. 2. Selden _in Fletam_. 5 Rep.
Caudrey's Case. 2 Inst. 599.]
[Footnote l: _Tit. VII. Sect._ 2. §. 2.]
[Footnote m: _Doctor legum mox a doctoratu dabit operam legibus
Angliae, ut non sit imperitus earum legum quas habet sua patria, et
differentias exteri patriique juris noscat._ _Stat._ Eliz. _R._ _c._
14. Cowel. _Institut. in proëmio._]
FROM the general use and necessity of some acquaintance with the
common law, the inference were extremely easy, with regard to the
propriety of the present institution, in a place to which gentlemen of
all ranks and degrees resort, as the fountain of all useful knowlege.
But how it has come to pass that a design of this sort has never
before taken place in the university, and the reason why the study of
our laws has in general fallen into disuse, I shall previously proceed
to enquire.
SIR John Fortescue, in his panegyric on the laws of England, (which
was written in the reign of Henry the sixth) puts[n] a very obvious
question in the mouth of the young prince, whom he is exhorting to
apply himself to that branch of learning; "why the laws of England,
being so good, so fruitful, and so commodious, are not taught in the
universities, as the civil and canon laws are?" In answer to which he
gives[o] what seems, with due deference be it spoken, a very jejune
and unsatisfactory reason; being in short, that "as the proceedings at
common law were in his time carried on in three different tongues, the
English, the Latin, and the French, that science must be necessarily
taught in those three several languages; but that in the universities
all sciences were taught in the Latin tongue only; and therefore he
concludes, that they could not be conveniently taught or studied in
our universities." But without attempting to examine seriously the
validity of this reason, (the very shadow of which by the wisdom of
your late constitutions is entirely taken away) we perhaps may find
out a better, or at least a more plausible account, why the study of
the municipal laws has been banished from these seats of science, than
what the learned chancellor thought it prudent to give to his royal
pupil.
[Footnote n: _c._ 47.]
[Footnote o: _c._ 48.]
THAT antient collection of unwritten maxims and customs, which is
called the common law, however compounded or from whatever fountains
derived, had subsisted immemorially in this kingdom; and, though
somewhat altered and impaired by the violence of the times, had in
great measure weathered the rude shock of the Norman conquest. This
had endeared it to the people in general, as well because it's
decisions were universally known, as because it was found to be
excellently adapted to the genius of the English nation. In the
knowlege of this law consisted great part of the learning of those
dark ages; it was then taught, says Mr Selden[p], in the monasteries,
_in the universities_, and in the families of the principal nobility.
The clergy in particular, as they then engrossed almost every other
branch of learning, so (like their predecessors the British druids[q])
they were peculiarly remarkable for their proficiency in the study of
the law. _Nullus clericus nisi causidicus_, is the character given of
them soon after the conquest by William of Malmsbury[r]. The judges
therefore were usually created out of the sacred order[s], as was
likewise the case among the Normans[t]; and all the inferior offices
were supplied by the lower clergy, which has occasioned their
successors to be denominated _clerks_ to this day.
[Footnote p: _in Fletam._ 7. 7.]
[Footnote q: Caesar _de bello Gal._ 6. 12.]
[Footnote r: _de gest. reg._ _l._ 4.]
[Footnote s: Dugdale _Orig. jurid._ _c._ 8.]
[Footnote t: _Les juges sont sages personnes & autentiques,--sicome
les archevesques, evesques, les chanoines les eglises cathedraulx, &
les autres personnes qui ont dignitez in saincte eglise; les abbez,
les prieurs conventaulx, & les gouverneurs des eglises, &c._ _Grand
Coustumier_, _ch._ 9.]
BUT the common law of England, being not committed to writing, but
only handed down by tradition, use, and experience, was not so
heartily relished by the foreign clergy; who came over hither in
shoals during the reign of the conqueror and his two sons, and were
utter strangers to our constitution as well as our language. And an
accident, which soon after happened, had nearly completed it's ruin. A
copy of Justinian's pandects, being newly[u] discovered at Amalfi,
soon brought the civil law into vogue all over the west of Europe,
where before it was quite laid aside[w] and in a manner forgotten;
though some traces of it's authority remained in Italy[x] and the
eastern provinces of the empire[y]. This now became in a particular
manner the favourite of the popish clergy, who borrowed the method and
many of the maxims of their canon law from this original. The study of
it was introduced into several universities abroad, particularly that
of Bologna; where exercises were performed, lectures read, and degrees
conferred in this faculty, as in other branches of science: and many
nations on the continent, just then beginning to recover from the
convulsions consequent upon the overthrow of the Roman empire, and
settling by degrees into peaceable forms of government, adopted the
civil law, (being the best written system then extant) as the basis of
their several constitutions; blending and interweaving it among their
own feodal customs, in some places with a more extensive, in others a
more confined authority[z].
[Footnote u: _circ. A.D._ 1130.]
[Footnote w: _LL. Wisigoth._ 2. 1. 9.]
[Footnote x: _Capitular. Hludov. Pii._ 4. 102.]
[Footnote y: Selden _in Fletam._ 5. 5.]
[Footnote z: Domat's treatise of laws. c. 13. §. 9. _Epistol.
Innocent. IV. in M. Paris. ad A.D._ 1254.]
NOR was it long before the prevailing mode of the times reached
England. For Theobald, a Norman abbot, being elected to the see of
Canterbury[a], and extremely addicted to this new study, brought over
with him in his retinue many learned proficients therein; and among
the rest Roger sirnamed Vacarius, whom he placed in the university of
Oxford[b], to teach it to the people of this country. But it did not
meet with the same easy reception in England, where a mild and
rational system of laws had been long established, as it did upon the
continent; and, though the monkish clergy (devoted to the will of a
foreign primate) received it with eagerness and zeal, yet the laity
who were more interested to preserve the old constitution, and had
already severely felt the effect of many Norman innovations, continued
wedded to the use of the common law. King Stephen immediately
published a proclamation[c], forbidding the study of the laws, then
newly imported from Italy; which was treated by the monks[d] as a
piece of impiety, and, though it might prevent the introduction of the
civil law process into our courts of justice, yet did not hinder the
clergy from reading and teaching it in their own schools and
monasteries.
[Footnote a: _A.D._ 1138.]
[Footnote b: Gervas. Dorobern. _Act. Pontif. Cantuar. col._ 1665.]
[Footnote c: Rog. Bacon. _citat. per_ Selden. _in Fletam._ 7. 6. _in
Fortesc._ _c._ 33. & 8 Rep. Pref.]
[Footnote d: Joan. Sarisburiens. _Polycrat._ 8. 22.]
FROM this time the nation seems to have been divided into two parties;
the bishops and clergy, many of them foreigners, who applied
themselves wholly to the study of the civil and canon laws, which now
came to be inseparably interwoven with each other; and the nobility
and laity, who adhered with equal pertinacity to the old common law;
both of them reciprocally jealous of what they were unacquainted with,
and neither of them perhaps allowing the opposite system that real
merit which is abundantly to be found in each. This appears on the one
hand from the spleen with which the monastic writers[e] speak of our
municipal laws upon all occasions; and, on the other, from the firm
temper which the nobility shewed at the famous parliament of Merton;
when the prelates endeavoured to procure an act, to declare all
bastards legitimate in case the parents intermarried at any time
afterwards; alleging this only reason, because holy church (that is,
the canon law) declared such children legitimate: but "all the earls
and barons (says the parliament roll[f]) with one voice answered, that
they would not change the laws of England, which had hitherto been
used and approved." And we find the same jealousy prevailing above a
century afterwards[g], when the nobility declared with a kind of
prophetic spirit, "that the realm of England hath never been unto this
hour, neither by the consent of our lord the king and the lords of
parliament shall it ever be, ruled or governed by the civil law[h]."
And of this temper between the clergy and laity many more instances
might be given.
[Footnote e: _Idem, ibid._ 5. 16. Polydor. Vergil. _Hist._ _l._ 9.]
[Footnote f: _Stat. Merton._ 20 _Hen. III._ _c._ 9. _Et omnes comites
& barones una voce responderunt, quod nolunt leges Angliae mutare,
quae hucusque usitatae sunt & approbatae._]
[Footnote g: 11 Ric. II.]
[Footnote h: Selden. _Jan. Anglor._ _l._ 2. §. 43. _in Fortesc._ _c._
33.]
WHILE things were in this situation, the clergy, finding it impossible
to root out the municipal law, began to withdraw themselves by degrees
from the temporal courts; and to that end, very early in the reign of
king Henry the third, episcopal constitutions were published[i],
forbidding all ecclesiastics to appear as advocates _in foro
saeculari_; nor did they long continue to act as judges there, nor
caring to take the oath of office which was then found necessary to be
administred, that they should in all things determine according to the
law and custom of this realm[k]; though they still kept possession of
the high office of chancellor, an office then of little juridical
power; and afterwards, as it's business increased by degrees, they
modelled the process of the court at their own discretion.
[Footnote i: Spelman. _Concil. A.D._ 1217. Wilkins, _vol._ 1. _p._
574, 599.]
[Footnote k: Selden. _in Fletam._ 9. 3.]
BUT wherever they retired, and wherever their authority extended, they
carried with them the same zeal to introduce the rules of the civil,
in exclusion of the municipal law. This appears in a particular manner
from the spiritual courts of all denominations, from the chancellor's
courts in both our universities, and from the high court of chancery
before-mentioned; in all of which the proceedings are to this day in a
course much conformed to the civil law: for which no tolerable reason
can be assigned, unless that these courts were all under the immediate
direction of the popish ecclesiastics, among whom it was a point of
religion to exclude the municipal law; pope Innocent the fourth
having[l] forbidden the very reading of it by the clergy, because it's
decisions were not founded on the imperial constitutions, but merely
on the customs of the laity. And if it be considered, that our
universities began about that period to receive their present form of
scholastic discipline; that they were then, and continued to be till
the time of the reformation, entirely under the influence of the
popish clergy; (sir John Mason the first protestant, being also the
first lay, chancellor of Oxford) this will lead us to perceive the
reason, why the study of the Roman laws was in those days of
bigotry[m] pursued with such alacrity in these seats of learning; and
why the common law was entirely despised, and esteemed little better
than heretical.
[Footnote l: M. Paris _ad A.D._ 1254.]
[Footnote m: There cannot be a stronger instance of the absurd and
superstitious veneration that was paid to these laws, than that the
most learned writers of the times thought they could not form a
perfect character, even of the blessed virgin, without making her a
civilian and a canonist. Which Albertus Magnus, the renowned dominican
doctor of the thirteenth century, thus proves in his _Summa de
laudibus christiferae virginis (divinum magis quam humanum opus)_
_qu._ 23. §. 5. "_Item quod jura civilia, & leges, & decreta scivit in
summo, probatur hoc modo: sapientia advocati manifestatur in tribus;
unum, quod obtineat omnia contra judicem justum & sapientem; secundo,
quod contra adversarium astutum & sagacem; tertio, quod in causa
desperata: sed beatissima virgo, contra judicem sapientissimum,
Dominum; contra adversarium callidissimum, dyabolum; in causa nostra
desperata; sententiam optatam obtinuit._" To which an eminent
franciscan, two centuries afterwards, Bernardinus de Busti (_Mariale_,
_part._ 4. _serm._ 9.) very gravely subjoins this note. "_Nec videtur
incongruum mulieres habere peritiam juris. Legitur enim de uxore
Joannis Andreae glossatoris, quod tantam peritiam in utroque jure
habuit, ut publice in scholis legere ausa sit._"]
AND, since the reformation, many causes have conspired to prevent it's
becoming a part of academical education. As, first, long usage and
established custom; which, as in every thing else, so especially in
the forms of scholastic exercise, have justly great weight and
authority. Secondly, the real intrinsic merit of the civil law,
considered upon the footing of reason and not of obligation, which was
well known to the instructors of our youth; and their total ignorance
of the merit of the common law, though it's equal at least, and
perhaps an improvement on the other. But the principal reason of all,
that has hindered the introduction of this branch of learning, is,
that the study of the common law, being banished from hence in the
times of popery, has fallen into a quite different chanel, and has
hitherto been wholly cultivated in another place. But as this long
usage and established custom, of ignorance in the laws of the land,
begin now to be thought unreasonable; and as by this means the merit
of those laws will probably be more generally known; we may hope that
the method of studying them will soon revert to it's antient course,
and the foundations at least of that science will be laid in the two
universities; without being exclusively confined to the chanel which
it fell into at the times I have been just describing.
FOR, being then entirely abandoned by the clergy, a few stragglers
excepted, the study and practice of it devolved of course into the
hands of laymen; who entertained upon their parts a most hearty
aversion to the civil law[n], and made no scruple to profess their
contempt, nay even their ignorance[o] of it, in the most public
manner. But still, as the ballance of learning was greatly on the side
of the clergy, and as the common law was no longer _taught_, as
formerly, in any part of the kingdom, it must have been subjected to
many inconveniences, and perhaps would have been gradually lost and
overrun by the civil, (a suspicion well justified from the frequent
transcripts of Justinian to be met with in Bracton and Fleta) had it
not been for a peculiar incident, which happened at a very critical
time, and contributed greatly to it's support.
[Footnote n: Fortesc. _de laud. LL._ _c._ 25.]
[Footnote o: This remarkably appeared in the case of the abbot of
Torun, _M._ 22 _E._ 3. 24. who had caused a certain prior to be
summoned to answer at Avignon for erecting an oratory _contra
inhibitionem novi operis_; by which words Mr Selden, (_in Flet._ 8.
5.) very justly understands to be meant the title _de novi operis
nuntiatione_ both in the civil and canon laws, (_Ff._ 39. 1. _C._ 8.
11. and _Decretal._ not _Extrav._ 5. 32.) whereby the erection of any
new buildings in prejudice of more antient ones was prohibited. But
Skipwith the king's serjeant, and afterwards chief baron of the
exchequer, declares them to be flat nonsense; "_in ceux parolx_,
contra inhibitionem novi operis, _ny ad pas entendment_:" and justice
Schardelow mends the matter but little by informing him, that they
signify a restitution _in their law_; for which reason he very sagely
resolves to pay no sort of regard to them. "_Ceo n'est que un
restitution en lour ley, pur que a ceo n'avomus regard, &c._"]
THE incident I mean was the fixing the court of common pleas, the
grand tribunal for disputes of property, to be held in one certain
spot; that the seat of ordinary justice might be permanent and
notorious to all the nation. Formerly that, in conjunction with all
the other superior courts, was held before the king's capital
justiciary of England, in the _aula regis_, or such of his palaces
wherein his royal person resided; and removed with his houshold from
one end of the kingdom to the other. This was found to occasion great
inconvenience to the suitors; to remedy which it was made an article
of the great charter of liberties, both that of king John and king
Henry the third[p], that "common pleas should no longer follow the
king's court, but be held in some certain place:" in consequence of
which they have ever since been held (a few necessary removals in
times of the plague excepted) in the palace of Westminster only. This
brought together the professors of the municipal law, who before were
dispersed about the kingdom, and formed them into an aggregate body;
whereby a society was established of persons, who (as Spelman[q]
observes) addicting themselves wholly to the study of the laws of the
land, and no longer considering it as a mere subordinate science for
the amusement of leisure hours, soon raised those laws to that pitch
of perfection, which they suddenly attained under the auspices of our
English Justinian, king Edward the first.
[Footnote p: _c._ 11.]
[Footnote q: _Glossar._ 334.]
IN consequence of this lucky assemblage, they naturally fell into a
kind of collegiate order, and, being excluded from Oxford and
Cambridge, found it necessary to establish a new university of their
own. This they did by purchasing at various times certain houses (now
called the inns of court and of chancery) between the city of
Westminster, the place of holding the king's courts, and the city of
London; for advantage of ready access to the one, and plenty of
provisions in the other[r]. Here exercises were performed, lectures
read, and degrees were at length conferred in the common law, as at
other universities in the canon and civil. The degrees were those of
barristers (first stiled apprentices[s] from _apprendre_, to learn)
who answered to our bachelors; as the state and degree of a
serjeant[t], _servientis ad legem_, did to that of doctor.
[Footnote r: Fortesc. _c._ 48.]
[Footnote s: Apprentices or Barristers seem to have been first
appointed by an ordinance of king Edward the first in parliament, in
the 20th year of his reign. (Spelm. _Gloss._ 37. Dugdale. _Orig.
jurid._ 55.)]
[Footnote t: The first mention I have met with in our lawbooks of
serjeants or countors, is in the statute of Westm. 1. 3 Edw. I. c. 29.
and in Horn's Mirror, _c._ 1. §. 10. _c._ 2. §. 5. _c._ 3. §. 1. in
the same reign. But M. Paris in his life of John II, abbot of St.
Alban's, which he wrote in 1255, 39 Hen. III. speaks of advocates at
the common law, or countors (_quos banci narratores vulgariter
appellamus_) as of an order of men well known. And we have an example
of the antiquity of the coif in the same author's history of England,
_A.D._ 1259. in the case of one William de Bussy; who, being called to
account for his great knavery and malpractices, claimed the benefit of
his orders or clergy, which till then remained an entire secret; and
to that end _voluit ligamenta coifae suae solvere, ut palam monstraret
se tonsuram habere clericalem; sed non est permissus.----Satelles vero
eum arripiens, non per coifae ligamina sed per guttur eum
apprehendens, traxit ad carcerem_. And hence sir H. Spelman
conjectures, (_Glossar._ 335.) that coifs were introduced to hide the
tonsure of such renegade clerks, as were still tempted to remain in
the secular courts in the quality of advocates or judges,
notwithstanding their prohibition by canon.]
THE crown seems to have soon taken under it's protection this infant
seminary of common law; and, the more effectually to foster and
cherish it, king Henry the third in the nineteenth year of his reign
issued out an order directed to the mayor and sheriffs of London,
commanding that no regent of any law schools _within_ that city should
for the future teach law therein[u]. The word, law, or _leges_, being
a general term, may create some doubt at this distance of time whether
the teaching of the civil law, or the common, or both, is hereby
restrained. But in either case it tends to the same end. If the civil
law only is prohibited, (which is Mr Selden's[w] opinion) it is then a
retaliation upon the clergy, who had excluded the common law from
_their_ seats of learning. If the municipal law be also included in
the restriction, (as sir Edward Coke[x] understands it, and which the
words seem to import) then the intention is evidently this; by
preventing private teachers within the walls of the city, to collect
all the common lawyers into the one public university, which was newly
instituted in the suburbs.
[Footnote u: _Ne aliquis scholas regens de legibus in eadem civitate
de caetero ibidem leges doceat._]
[Footnote w: _in Flet._ 8. 2.]
[Footnote x: 2 Inst. proëm.]
IN this juridical university (for such it is insisted to have been by
Fortescue[y] and sir Edward Coke[z]) there are two sorts of collegiate
houses; one called inns of chancery, in which the younger students of
the law were usually placed, "learning and studying, says
Fortescue[a], the originals and as it were the elements of the law;
who, profiting therein, as they grow to ripeness so are they admitted
into the greater inns of the same study, called the inns of court."
And in these inns of both kinds, he goes on to tell us, the knights
and barons, with other grandees and noblemen of the realm, did use to
place their children, though they did not desire to have them
thoroughly learned in the law, or to get their living by it's
practice: and that in his time there were about two thousand students
at these several inns, all of whom he informs us were _filii
nobilium_, or gentlemen born.
[Footnote y: _c._ 49.]
[Footnote z: 3 Rep. pref.]
[Footnote a: _ibid._]
HENCE it is evident, that (though under the influence of the monks our
universities neglected this study, yet) in the time of Henry the sixth
it was thought highly necessary and was the universal practice, for
the young nobility and gentry to be instructed in the originals and
elements of the laws. But by degres [Transcriber's Note: degrees] this
custom has fallen into disuse; so that in the reign of queen Elizabeth
sir Edward Coke[b] does not reckon above a thousand students, and the
number at present is very considerably less. Which seems principally
owing to these reasons: first, because the inns of chancery being now
almost totally filled by the inferior branch of the profession, they
are neither commodious nor proper for the resort of gentlemen of any
rank or figure; so that there are now very rarely any young students
entered at the inns of chancery: secondly, because in the inns of
court all sorts of regimen and academical superintendance, either with
regard to morals or studies, are found impracticable and therefore
entirely neglected: lastly, because persons of birth and fortune,
after having finished their usual courses at the universities, have
seldom leisure or resolution sufficient to enter upon a new scheme of
study at a new place of instruction. Wherefore few gentlemen now
resort to the inns of court, but such for whom the knowlege of
practice is absolutely necessary; such, I mean, as are intended for
the profession: the rest of our gentry, (not to say our nobility also)
having usually retired to their estates, or visited foreign kingdoms,
or entered upon public life, without any instruction in the laws of
the land; and indeed with hardly any opportunity of gaining
instruction, unless it can be afforded them in these seats of
learning.
[Footnote b: _ibid._]
AND that these are the proper places, for affording assistances of
this kind to gentlemen of all stations and degrees, cannot (I think)
with any colour of reason be denied. For not one of the objections,
which are made to the inns of court and chancery, and which I have
just enumerated, will hold with regard to the universities. Gentlemen
may here associate with gentlemen of their own rank and degree. Nor
are their conduct and studies left entirely to their own discretion;
but regulated by a discipline so wise and exact, yet so liberal, so
sensible and manly, that their conformity to it's rules (which does at
present so much honour to our youth) is not more the effect of
constraint, than of their own inclinations and choice. Neither need
they apprehend too long an avocation hereby from their private
concerns and amusements, or (what is a more noble object) the service
of their friends and their country. This study will go hand in hand
with their other pursuits: it will obstruct none of them; it will
ornament and assist them all.
BUT if, upon the whole, there are any still wedded to monastic
prejudice, that can entertain a doubt how far this study is properly
and regularly _academical_, such persons I am afraid either have not
considered the constitution and design of an university, or else think
very meanly of it. It must be a deplorable narrowness of mind, that
would confine these seats of instruction to the limited views of one
or two learned professions. To the praise of this age be it spoken, a
more open and generous way of thinking begins now universally to
prevail. The attainment of liberal and genteel accomplishments, though
not of the intellectual sort, has been thought by our wisest and most
affectionate patrons[c], and very lately by the whole university[d],
no small improvement of our antient plan of education; and therefore I
may safely affirm that nothing (how _unusual_ soever) is, under due
regulations, improper to be _taught_ in this place, which is proper
for a gentleman to _learn_. But that a science, which distinguishes
the criterions of right and wrong; which teaches to establish the one,
and prevent, punish, or redress the other; which employs in it's
theory the noblest faculties of the soul, and exerts in it's practice
the cardinal virtues of the heart; a science, which is universal in
it's use and extent, accommodated to each individual, yet
comprehending the whole community; that a science like this should
have ever been deemed unnecessary to be studied in an university, is
matter of astonishment and concern. Surely, if it were not before an
object of academical knowlege, it was high time to make it one; and to
those who can doubt the propriety of it's reception among us (if any
such there be) we may return an answer in their own way; that ethics
are confessedly a branch of academical learning, and Aristotle
_himself has said_, speaking of the laws of his own country, that
jurisprudence or the knowlege of those laws is the principal and
most[e] perfect branch of ethics.
[Footnote c: Lord chancellor Clarendon, in his dialogue of education,
among his tracts, p. 325. appears to have been very solicitous, that
it might be made "a part of the ornament of our learned academies to
teach the qualities of riding, dancing, and fencing, at those hours
when more serious exercises should be intermitted."]
[Footnote d: By accepting in full convocation the remainder of lord
Clarendon's history from his noble descendants, on condition to apply
the profits arising from it's publication to the establishment of a
_manage_ in the university.]
[Footnote e: [Greek: Teleia malista aretê, hoti tês teleias aretês
chrêsis esti.] _Ethic. ad Nicomach._ _l._ 5. _c._ 3.]
FROM a thorough conviction of this truth, our munificent benefactor Mr
VINER, having employed above half a century in amassing materials for
new modelling and rendering more commodious the rude study of the laws
of the land, consigned both the plan and execution of these his
public-spirited designs to the wisdom of his parent university.
Resolving to dedicate his learned labours "to the benefit of posterity
and the perpetual service of his country[f]," he was sensible he could
not perform his resolutions in a better and more effectual manner,
than by extending to the youth of this place those assistances, of
which he so well remembered and so heartily regretted the want. And
the sense, which the university has entertained of this ample and most
useful benefaction, must appear beyond a doubt from their gratitude in
receiving it with all possible marks of esteem[g]; from their alacrity
and unexampled dispatch in carrying it into execution[h]; and, above
all, from the laws and constitutions by which they have effectually
guarded it from the neglect and abuse to which such institutions are
liable[i]. We have seen an universal emulation, who best should
understand, or most faithfully pursue, the designs of our generous
patron: and with pleasure we recollect, that those who are most
distinguished by their quality, their fortune, their station, their
learning, or their experience, have appeared the most zealous to
promote the success of Mr Viner's establishment.
[Footnote f: See the preface to the eighteenth volume of his
abridgment.]
[Footnote g: Mr Viner is enrolled among the public benefactors of the
university by decree of convocation.]
[Footnote h: Mr Viner died June 5, 1756. His effects were collected
and settled, near a volume of his work printed, almost the whole
disposed of, and the accounts made up, in a year and a half from his
decease, by the very diligent and worthy administrators with the will
annexed, (Dr West and Dr Good of Magdalene, Dr Whalley of Oriel, Mr
Buckler of All Souls, and Mr Betts of University college) to whom that
care was consigned by the university. Another half year was employed
in considering and settling a plan of the proposed institution, and in
framing the statutes thereupon, which were finally confirmed by
convocation on the 3d of July, 1758. The professor was elected on
the 20th of October following, and two scholars on the succeeding
day. And, lastly, it was agreed at the annual audit in 1761, to
establish a fellowship; and a fellow was accordingly elected in
January following.--The residue of this fund, arising from the sale of
Mr Viner's abridgment, will probably be sufficient hereafter to found
another fellowship and scholarship, or three more scholarships, as
shall be thought most expedient.]
[Footnote i: The statutes are in substance as follows:
1. THAT the accounts of this benefaction be separately kept, and
annually audited by the delegates of accounts and professor, and
afterwards reported to convocation.
2. THAT a professorship of the laws of England be established, with a
salary of two hundred pounds _per annum_; the professor to be elected
by convocation, and to be at the time of his election at least a
master of arts or bachelor of civil law in the university of Oxford,
of ten years standing from his matriculation; and also a barrister at
law of four years standing at the bar.
3. THAT such professor (by himself, or by deputy to be previously
approved by convocation) do read one solemn public lecture on the laws
of England, and in the English language, in every academical term, at
certain stated times previous to the commencement of the common law
term; or forfeit twenty pounds for every omission to Mr Viner's
general fund: and also (by himself, or by deputy to be approved, if
occasional, by the vice-chancellor and proctors; or, if permanent,
both the cause and the deputy to be annually approved by convocation)
do yearly read one complete course of lectures on the laws of England,
and in the English language, consisting of sixty lectures at the
least, to be read during the university term time, with such proper
intervals that not more than four lectures may fall within any single
week: that the professor do give a month's notice of the time when the
course is to begin, and do read _gratis_ to the scholars of Mr Viner's
foundation; but may demand of other auditors such gratuity as shall be
settled from time to time by decree of convocation: and that, for
every of the said sixty lectures omitted, the professor, on complaint
made to the vice-chancellor within the year, do forfeit forty
shillings to Mr Viner's general fund; the proof of having performed
his duty to lie upon the said professor.
4. THAT every professor do continue in his office during life, unless
in case of such misbehaviour as shall amount to bannition by the
university statutes; or unless he deserts the profession of the law by
betaking himself to another profession; or unless, after one
admonition by the vice-chancellor and proctors for notorious neglect,
he is guilty of another flagrant omission: in any of which cases he be
deprived by the vice-chancellor, with consent of the house of
convocation.
5. THAT such a number of fellowships with a stipend of fifty pounds
_per annum_, and scholarships with a stipend of thirty pounds be
established, as the convocation shall from time to time ordain,
according to the state of Mr Viner's revenues.
6. THAT every fellow be elected by convocation, and at the time of
election be unmarried, and at least a master of arts or bachelor of
civil law, and a member of some college or hall in the university of
Oxford; the scholars of this foundation or such as have been scholars
(if qualified and approved of by convocation) to have the preference:
that, if not a barrister when chosen, he be called to the bar within
one year after his election; but do reside in the university two
months in every year, or in case of non-residence do forfeit the
stipend of that year to Mr Viner's general fund.
7. THAT every scholar be elected by convocation, and at the time of
election be unmarried, and a member of some college or hall in the
university of Oxford, who shall have been matriculated twenty four
calendar months at the least: that he do take the degree of bachelor
of civil law with all convenient speed; (either proceeding in arts or
otherwise) and previous to his taking the same, between the second and
eighth year from his matriculation, be bound to attend two courses of
the professor's lectures, to be certified under the professor's hand;
and within one year after taking the same be called to the bar: that
he do annually reside six months till he is of four years standing,
and four months from that time till he is master of arts or bachelor
of civil law; after which he be bound to reside two months in every
year; or, in case of non-residence, do forfeit the stipend of that
year to Mr Viner's general fund.
8. THAT the scholarships do become void in case of non-attendance on
the professor, or not taking the degree of bachelor of civil law,
being duly admonished so to do by the vice-chancellor and proctors:
and that both fellowships and scholarships do expire at the end of ten
years after each respective election; and become void in case of gross
misbehaviour, non-residence for two years together, marriage, not
being called to the bar within the time before limited, (being duly
admonished so to be by the vice-chancellor and proctors) or deserting
the profession of the law by following any other profession: and that
in any of these cases the vice-chancellor, with consent of
convocation, do declare the place actually void.
9. THAT in case of any vacancy of the professorship, fellowships, or
scholarships, the profits of the current year be ratably divided
between the predecessor or his representatives, and the successor; and
that a new election be had within one month afterwards, unless by that
means the time of election shall fall within any vacation, in which
case it be deferred to the first week in the next full term. And that
before any convocation shall be held for such election, or for any
other matter relating to Mr Viner's benefaction, ten days public
notice be given to each college and hall of the convocation, and the
cause of convoking it.]
THE advantages that might result to the science of the law itself,
when a little more attended to in these seats of knowlege, perhaps
would be very considerable. The leisure and abilities of the learned
in these retirements might either suggest expedients, or execute those
dictated by wiser heads[k], for improving it's method, retrenching
it's superfluities, and reconciling the little contrarieties, which
the practice of many centuries will necessarily create in any human
system: a task, which those who are deeply employed in business, and
the more active scenes of the profession, can hardly condescend to
engage in. And as to the interest, or (which is the same) the
reputation of the universities themselves, I may venture to pronounce,
that if ever this study should arrive to any tolerable perfection
either here or at Cambridge, the nobility and gentry of this kingdom
would not shorten their residence upon this account, nor perhaps
entertain a worse opinion of the benefits of academical education.
Neither should it be considered as a matter of light importance, that
while we thus extend the _pomoeria_ of university learning, and adopt
a new tribe of citizens within these philosophical walls, we interest
a very numerous and very powerful profession in the preservation of
our rights and revenues.
[Footnote k: See lord Bacon's proposals and offer of a digest.]
FOR I think it is past dispute that those gentlemen, who resort to the
inns of court with a view to pursue the profession, will find it
expedient (whenever it is practicable) to lay the previous foundations
of this, as well as every other science, in one of our learned
universities. We may appeal to the experience of every sensible
lawyer, whether any thing can be more hazardous or discouraging than
the usual entrance on the study of the law. A raw and unexperienced
youth, in the most dangerous season of life, is transpanted
[Transcriber's Note: transplanted] on a sudden into the midst of
allurements to pleasure, without any restraint or check but what his
own prudence can suggest; with no public direction in what course to
pursue his enquiries; no private assistance to remove the distresses
and difficulties, which will always embarass a beginner. In this
situation he is expected to sequester himself from the world, and by a
tedious lonely process to extract the theory of law from a mass of
undigested learning; or else by an assiduous attendance on the courts
to pick up theory and practice together, sufficient to qualify him for
the ordinary run of business. How little therefore is it to be
wondered at, that we hear of so frequent miscarriages; that so many
gentlemen of bright imaginations grow weary of so unpromising a
search[l], and addict themselves wholly to amusements, or other less
innocent pursuits; and that so many persons of moderate capacity
confuse themselves at first setting out, and continue ever dark and
puzzled during the remainder of their lives!
[Footnote l: Sir Henry Spelman, in the preface to his glossary, gives
us a very lively picture of his own distress upon this occasion.
"_Emisit me mater Londinum, juris nostri capessendi gratia; cujus cum
vestibulum salutassem, reperissemque linguam peregrinam, dialectum
barbaram, methodum inconcinnam, molem non ingentem solum sed perpetuis
humeris sustinendam, excidit mihi (fateor) animus, &c._"]
THE evident want of some assistance in the rudiments of legal
knowlege, has given birth to a practice, which, if ever it had grown
to be general, must have proved of extremely pernicious consequence:
I mean the custom, by some so very warmly recommended, to drop all
liberal education, as of no use to lawyers; and to place them, in it's
stead, as [Transcriber's Note: at] the desk of some skilful attorney;
in order to initiate them early in all the depths of practice, and
render them more dextrous in the mechanical part of business. A few
instances of particular persons, (men of excellent learning, and
unblemished integrity) who, in spight of this method of education,
have shone in the foremost ranks of the bar, have afforded some kind
of sanction to this illiberal path to the profession, and biassed many
parents, of shortsighted judgment, in it's favour: not considering,
that there are some geniuses, formed to overcome all disadvantages,
and that from such particular instances no general rules can be
formed; nor observing, that those very persons have frequently
recommended by the most forcible of all examples, the disposal of
their own offspring, a very different foundation of legal studies, a
regular academical education. Perhaps too, in return, I could now
direct their eyes to our principal seats of justice, and suggest a few
hints, in favour of university learning[m]:--but in these all who hear
me, I know, have already prevented me.
[Footnote m: The four highest offices in the law were at that time
filled by gentlemen, two of whom had been fellows of All Souls
college; another, student of Christ-Church; and the fourth a fellow of
Trinity college, Cambridge.]
MAKING therefore due allowance for one or two shining exceptions,
experience may teach us to foretell that a lawyer thus educated to the
bar, in subservience to attorneys and solicitors[n], will find he has
begun at the wrong end. If practice be the whole he is taught,
practice must also be the whole he will ever know: if he be
uninstructed in the elements and first principles upon which the rule
of practice is founded, the least variation from established
precedents will totally distract and bewilder him: _ita lex scripta
est_[o] is the utmost his knowlege will arrive at; he must never
aspire to form, and seldom expect to comprehend, any arguments drawn
_a priori_, from the spirit of the laws and the natural foundations of
justice.
[Footnote n: See Kennet's life of Somner. p. 67.]
[Footnote o: _Ff._ 40. 9. 12.]
NOR is this all; for (as few persons of birth, or fortune, or even of
scholastic education, will submit to the drudgery of servitude and the
manual labour of copying the trash of an office) should this
infatuation prevail to any considerable degree, we must rarely expect
to see a gentleman of distinction or learning at the bar. And what the
consequence may be, to have the interpretation and enforcement of the
laws (which include the entire disposal of our properties, liberties,
and lives) fall wholly into the hands of obscure or illiterate men, is
matter of very public concern.
THE inconveniences here pointed out can never be effectually
prevented, but by making academical education a previous step to the
profession of the common law, and at the same time making the
rudiments of the law a part of academical education. For sciences are
of a sociable disposition, and flourish best in the neighbourhood of
each other: nor is there any branch of learning, but may be helped and
improved by assistances drawn from other arts. If therefore the
student in our laws hath formed both his sentiments and style, by
perusal and imitation of the purest classical writers, among whom the
historians and orators will best deserve his regard; if he can reason
with precision, and separate argument from fallacy, by the clear
simple rules of pure unsophisticated logic; if he can fix his
attention, and steadily pursue truth through any the most intricate
deduction, by the use of mathematical demonstrations; if he has
enlarged his conceptions of nature and art, by a view of the several
branches of genuine, experimental, philosophy; if he has impressed on
his mind the sound maxims of the law of nature, the best and most
authentic foundation of human laws; if, lastly, he has contemplated
those maxims reduced to a practical system in the laws of imperial
Rome; if he has done this or any part of it, (though all may be easily
done under as able instructors as ever graced any seats of learning) a
student thus qualified may enter upon the study of the law with
incredible advantage and reputation. And if, at the conclusion, or
during the acquisition of these accomplishments, he will afford
himself here a year or two's farther leisure, to lay the foundation of
his future labours in a solid scientifical method, without thirsting
too early to attend that practice which it is impossible he should
rightly comprehend, he will afterwards proceed with the greatest ease,
and will unfold the most intricate points with an intuitive rapidity
and clearness.
I SHALL not insist upon such motives as might be drawn from principles
of oeconomy, and are applicable to particulars only: I reason upon
more general topics. And therefore to the qualities of the head, which
I have just enumerated, I cannot but add those of the heart;
affectionate loyalty to the king, a zeal for liberty and the
constitution, a sense of real honour, and well grounded principles of
religion; as necessary to form a truly valuable English lawyer, a
Hyde, a Hale, or a Talbot. And, whatever the ignorance of some, or
unkindness of others, may have heretofore untruly suggested,
experience will warrant us to affirm, that these endowments of loyalty
and public spirit, of honour and religion, are no where to be found in
more high perfection than in the two universities of this kingdom.
BEFORE I conclude, it may perhaps be expected, that I lay before you a
short and general account of the method I propose to follow, in
endeavouring to execute the trust you have been pleased to repose in
my hands. And in these solemn lectures, which are ordained to be read
at the entrance of every term, (more perhaps to do public honour to
this laudable institution, than for the private instruction of
individuals[p]) I presume it will best answer the intent of our
benefactor and the expectation of this learned body, if I attempt to
illustrate at times such detached titles of the law, as are the most
easy to be understood, and most capable of historical or critical
ornament. But in reading the complete course, which is annually
consigned to my care, a more regular method will be necessary; and,
till a better is proposed, I shall take the liberty to follow the
same that I have already submitted to the public[q]. To fill up and
finish that outline with propriety and correctness, and to render the
whole intelligible to the uninformed minds of beginners, (whom we are
too apt to suppose acquainted with terms and ideas, which they never
had opportunity to learn) this must be my ardent endeavour, though by
no means my promise to accomplish. You will permit me however very
briefly to describe, rather what I conceive an academical expounder of
the laws should do, than what I have ever known to be done.
[Footnote p: See Lowth's _Oratio Crewiana_, p. 365.]
[Footnote q: The Analysis of the laws of England, first published,
_A.D._ 1756, and exhibiting the order and principal divisions of the
ensuing COMMENTARIES; which were originally submitted to the
university in a private course of lectures, _A.D._ 1753.]
HE should consider his course as a general map of the law, marking out
the shape of the country, it's connexions and boundaries, it's greater
divisions and principal cities: it is not his business to describe
minutely the subordinate limits, or to fix the longitude and latitude
of every inconsiderable hamlet. His attention should be engaged, like
that of the readers in Fortescue's inns of chancery, "in tracing out
the originals and as it were the elements of the law." For if, as
Justinian[r] has observed, the tender understanding of the student be
loaded at the first with a multitude and variety of matter, it will
either occasion him to desert his studies, or will carry him heavily
through them, with much labour, delay, and despondence. These
originals should be traced to their fountains, as well as our distance
will permit; to the customs of the Britons and Germans, as recorded by
Caesar and Tacitus; to the codes of the northern nations on the
continent, and more especially to those of our own Saxon princes; to
the rules of the Roman law, either left here in the days of Papinian,
or imported by Vacarius and his followers; but, above all, to that
inexhaustible reservoir of legal antiquities and learning, the feodal
law, or, as Spelman[s] has entitled it, the law of nations in our
western orb. These primary rules and fundamental principles should be
weighed and compared with the precepts of the law of nature, and the
practice of other countries; should be explained by reasons,
illustrated by examples, and confirmed by undoubted authorities; their
history should be deduced, their changes and revolutions observed, and
it should be shewn how far they are connected with, or have at any
time been affected by, the civil transactions of the kingdom.
[Footnote r: _Incipientibus nobis exponere jura populi Romani, ita
videntur tradi posse commodissime, si primo levi ac simplici via
singula tradantur: Alioqui, si statim ab initio rudem adhuc & infirmum
animum studiosi multitudine ac varietate rerum oneravimus, duorum
alterum, aut desertorem studiorum efficiemus, aut cum magno labore,
saepe etiam cum diffidentia (quae plerumque juvenes avertit) serius ad
id perducemus, ad quod leviore via ductus, sine magno labore & sine
ulla diffidentia maturius perduci potuisset._ _Inst._ 1. 1. 2.]
[Footnote s: Of Parliaments. 57.]
A PLAN of this nature, if executed with care and ability, cannot fail
of administring a most useful and rational entertainment to students
of all ranks and professions; and yet it must be confessed that the
study of the laws is not merely a matter of amusement: for as a very
judicious writer[t] has observed upon a similar occasion, the learner
"will be considerably disappointed if he looks for entertainment
without the expence of attention." An attention, however, not greater
than is usually bestowed in mastering the rudiments of other sciences,
or sometimes in pursuing a favorite recreation or exercise. And this
attention is not equally necessary to be exerted by every student upon
every occasion. Some branches of the law, as the formal process of
civil suits, and the subtile distinctions incident to landed property,
which are the most difficult to be thoroughly understood, are the
least worth the pains of understanding, except to such gentlemen as
intend to pursue the profession. To others I may venture to apply,
with a slight alteration, the words of sir John Fortescue[u], when
first his royal pupil determines to engage in this study. "It will not
be necessary for a gentleman, as such, to examine with a close
application the critical niceties of the law. It will fully be
sufficient, and he may well enough be denominated a lawyer, if under
the instruction of a master he traces up the principles and grounds of
the law, even to their original elements. Therefore in a very short
period, and with very little labour, he may be sufficiently informed
in the laws of his country, if he will but apply his mind in good
earnest to receive and apprehend them. For, though such knowlege as is
necessary for a judge is hardly to be acquired by the lucubrations of
twenty years, yet with a genius of tolerable perspicacity, that
knowlege which is fit for a person of birth or condition may be
learned in a single year, without neglecting his other improvements."
[Footnote t: Dr Taylor's preface to Elem. of civil law.]
[Footnote u: _Tibi, princeps, necesse non erit mysteria legis Angliae
longo disciplinatu rimare. Sufficiet tibi,--_et fatis _denominari
legista mereberis, si legum principia & causas, usque ad elementa,
discipuli more indagaveris.--Quare tu, princeps serenissime, parvo
tempore, parva industria, sufficienter eris in legibus regni Angliae
eruditus, dummodo ad ejus apprehensionem tu conferas animum
tuum.--Nosco namque ingenii tui perspicacitatem, quo audacter
pronuntio quod in legibus illis (licet earum peritia, qualis judicibus
necessaria est, vix viginti annorum lucubrationibus acquiratur) tu
doctrinam principi congruam in anno uno sufficienter nancisceris; nec
interim militarem disciplinam, ad quam tam ardenter anhelas, negliges;
sed ea, recreationis loco, etiam anno illo tu ad libitum perfrueris._
_c._ 8.]
TO the few therefore (the very few, I am persuaded,) that entertain
such unworthy notions of an university, as to suppose it intended for
mere dissipation of thought; to such as mean only to while away the
aukward interval from childhood to twenty one, between the restraints
of the school and the licentiousness of politer life, in a calm middle
state of mental and of moral inactivity; to these Mr Viner gives no
invitation to an entertainment which they never can relish. But to the
long and illustrious train of noble and ingenuous youth, who are not
more distinguished among us by their birth and possessions, than by
the regularity of their conduct and their thirst after useful
knowlege, to these our benefactor has consecrated the fruits of a long
and laborious life, worn out in the duties of his calling; and will
joyfully reflect (if such reflexions can be now the employment of his
thoughts) that he could not more effectually have benefited posterity,
or contributed to the service of the public, than by founding an
institution which may instruct the rising generation in the wisdom of
our civil polity, and inform them with a desire to be still better
acquainted with the laws and constitution of their country.
SECTION THE SECOND.
OF THE NATURE OF LAWS IN GENERAL.
LAW, in it's most general and comprehensive sense, signifies a rule of
action; and is applied indiscriminately to all kinds of action,
whether animate, or inanimate, rational or irrational. Thus we say,
the laws of motion, of gravitation, of optics, or mechanics, as well
as the laws of nature and of nations. And it is that rule of action,
which is prescribed by some superior, and which the inferior is bound
to obey.
THUS when the supreme being formed the universe, and created matter
out of nothing, he impressed certain principles upon that matter, from
which it can never depart, and without which it would cease to be.
When he put that matter into motion, he established certain laws of
motion, to which all moveable bodies must conform. And, to descend
from the greatest operations to the smallest, when a workman forms a
clock, or other piece of mechanism, he establishes at his own pleasure
certain arbitrary laws for it's direction; as that the hand shall
describe a given space in a given time; to which law as long as the
work conforms, so long it continues in perfection, and answers the end
of it's formation.
IF we farther advance, from mere inactive matter to vegetable and
animal life, we shall find them still governed by laws; more numerous
indeed, but equally fixed and invariable. The whole progres of plants,
from the seed to the root, and from thence to the seed again;--the
method of animal nutrition, digestion, secretion, and all other
branches of vital oeconomy;--are not left to chance, or the will of
the creature itself, but are performed in a wondrous involuntary
manner, and guided by unerring rules laid down by the great creator.
THIS then is the general signification of law, a rule of action
dictated by some superior being; and in those creatures that have
neither the power to think, nor to will, such laws must be invariably
obeyed, so long as the creature itself subsists, for it's existence
depends on that obedience. But laws, in their more confined sense, and
in which it is our present business to consider them, denote the
rules, not of action in general, but of _human_ action or conduct:
that is, the precepts by which man, the noblest of all sublunary
beings, a creature endowed with both reason and freewill, is commanded
to make use of those faculties in the general regulation of his
behaviour.
MAN, considered as a creature, must necessarily be subject to the laws
of his creator, for he is entirely a dependent being. A being,
independent of any other, has no rule to pursue, but such as he
prescribes to himself; but a state of dependance will inevitably
oblige the inferior to take the will of him, on whom he depends, as
the rule of his conduct: not indeed in every particular, but in all
those points wherein his dependance consists. This principle therefore
has more or less extent and effect, in proportion as the superiority
of the one and the dependance of the other is greater or less,
absolute or limited. And consequently as man depends absolutely upon
his maker for every thing, it is necessary that he should in all
points conform to his maker's will.
THIS will of his maker is called the law of nature. For as God, when
he created matter, and endued it with a principle of mobility,
established certain rules for the perpetual direction of that motion;
so, when he created man, and endued him with freewill to conduct
himself in all parts of life, he laid down certain immutable laws of
human nature, whereby that freewill is in some degree regulated and
restrained, and gave him also the faculty of reason to discover the
purport of those laws.
CONSIDERING the creator only as a being of infinite _power_, he was
able unquestionably to have prescribed whatever laws he pleased to his
creature, man, however unjust or severe. But as he is also a being of
infinite _wisdom_, he has laid down only such laws as were founded in
those relations of justice, that existed in the nature of things
antecedent to any positive precept. These are the eternal, immutable
laws of good and evil, to which the creator himself in all his
dispensations conforms; and which he has enabled human reason to
discover, so far as they are necessary for the conduct of human
actions. Such among others are these principles: that we should live
honestly, should hurt nobody, and should render to every one it's due;
to which three general precepts Justinian[a] has reduced the whole
doctrine of law.
[Footnote a: _Juris praecepta sunt haec, honeste vivere, alterum non
laedere, suum cuique tribuere._ _Inst._ 1. 1. 3.]
BUT if the discovery of these first principles of the law of nature
depended only upon the due exertion of right reason, and could not
otherwise be attained than by a chain of metaphysical disquisitions,
mankind would have wanted some inducement to have quickened their
inquiries, and the greater part of the world would have rested content
in mental indolence, and ignorance it's inseparable companion. As
therefore the creator is a being, not only of infinite _power_, and
_wisdom_, but also of infinite _goodness_, he has been pleased so to
contrive the constitution and frame of humanity, that we should want
no other prompter to enquire after and pursue the rule of right, but
only our own self-love, that universal principle of action. For he has
so intimately connected, so inseparably interwoven the laws of eternal
justice with the happiness of each individual, that the latter cannot
be attained but by observing the former; and, if the former be
punctually obeyed, it cannot but induce the latter. In consequence of
which mutual connection of justice and human felicity, he has not
perplexed the law of nature with a multitude of abstracted rules and
precepts, referring merely to the fitness or unfitness of things, as
some have vainly surmised; but has graciously reduced the rule of
obedience to this one paternal precept, "that man should pursue his
own happiness." This is the foundation of what we call ethics, or
natural law. For the several articles into which it is branched in our
systems, amount to no more than demonstrating, that this or that
action tends to man's real happiness, and therefore very justly
concluding that the performance of it is a part of the law of nature;
or, on the other hand, that this or that action is destructive of
man's real happiness, and therefore that the law of nature forbids it.
THIS law of nature, being co-eval with mankind and dictated by God
himself, is of course superior in obligation to any other. It is
binding over all the globe, in all countries, and at all times: no
human laws are of any validity, if contrary to this; and such of them
as are valid derive all their force, and all their authority,
mediately or immediately, from this original.
BUT in order to apply this to the particular exigencies of each
individual, it is still necessary to have recourse to reason; whose
office it is to discover, as was before observed, what the law of
nature directs in every circumstance of life; by considering, what
method will tend the most effectually to our own substantial
happiness. And if our reason were always, as in our first ancestor
before his transgression, clear and perfect, unruffled by passions,
unclouded by prejudice, unimpaired by disease or intemperance, the
task would be pleasant and easy; we should need no other guide but
this. But every man now finds the contrary in his own experience; that
his reason is corrupt, and his understanding full of ignorance and
error.
THIS has given manifold occasion for the benign interposition of
divine providence; which, in companion to the frailty, the
imperfection, and the blindness of human reason, hath been pleased,
at sundry times and in divers manners, to discover and enforce it's
laws by an immediate and direct revelation. The doctrines thus
delivered we call the revealed or divine law, and they are to be found
only in the holy scriptures. These precepts, when revealed, are found
upon comparison to be really a part of the original law of nature, as
they tend in all their consequences to man's felicity. But we are not
from thence to conclude that the knowlege of these truths was
attainable by reason, in it's present corrupted state; since we find
that, until they were revealed, they were hid from the wisdom of ages.
As then the moral precepts of this law are indeed of the same original
with those of the law of nature, so their intrinsic obligation is of
equal strength and perpetuity. Yet undoubtedly the revealed law is
(humanly speaking) of infinitely more authority than what we generally
call the natural law. Because one is the law of nature, expressly
declared so to be by God himself; the other is only what, by the
assistance of human reason, we imagine to be that law. If we could be
as certain of the latter as we are of the former, both would have an
equal authority; but, till then, they can never be put in any
competition together.
UPON these two foundations, the law of nature and the law of
revelation, depend all human laws; that is to say, no human laws
should be suffered to contradict these. There is, it is true, a great
number of indifferent points, in which both the divine law and the
natural leave a man at his own liberty; but which are found necessary
for the benefit of society to be restrained within certain limits. And
herein it is that human laws have their greatest force and efficacy;
for, with regard to such points as are not indifferent, human laws are
only declaratory of, and act in subordination to, the former. To
instance in the case of murder: this is expressly forbidden by the
divine, and demonstrably by the natural law; and from these
prohibitions arises the true unlawfulness of this crime. Those human
laws, that annex a punishment to it, do not at all increase it's moral
guilt, or superadd any fresh obligation _in foro conscientiae_ to
abstain from it's perpetration. Nay, if any human law should allow or
injoin us to commit it, we are bound to transgress that human law, or
else we must offend both the natural and the divine. But with regard
to matters that are in themselves indifferent, and are not commanded
or forbidden by those superior laws; such, for instance, as exporting
of wool into foreign countries; here the inferior legislature has
scope and opportunity to interpose, and to make that action unlawful
which before was not so.
IF man were to live in a state of nature, unconnected with other
individuals, there would be no occasion for any other laws, than the
law of nature, and the law of God. Neither could any other law
possibly exist; for a law always supposes some superior who is to make
it; and in a state of nature we are all equal, without any other
superior but him who is the author of our being. But man was formed
for society; and, as is demonstrated by the writers on this
subject[b], is neither capable of living alone, nor indeed has the
courage to do it. However, as it is impossible for the whole race of
mankind to be united in one great society, they must necessarily
divide into many; and form separate states, commonwealths, and
nations; entirely independent of each other, and yet liable to a
mutual intercourse. Hence arises a third kind of law to regulate this
mutual intercourse, called "the law of nations;" which, as none of
these states will acknowlege a superiority in the other, cannot be
dictated by either; but depends entirely upon the rules of natural
law, or upon mutual compacts, treaties, leagues, and agreements
between these several communities: in the construction also of which
compacts we have no other rule to resort to, but the law of nature;
being the only one to which both communities are equally subject: and
therefore the civil law[c] very justly observes, that _quod naturalis
ratio inter omnes homines constituit, vocatur jus gentium_.
[Footnote b: Puffendorf, _l._ 7. _c._ 1. compared with Barbeyrac's
commentary.]
[Footnote c: _Ff._ 1. 1. 9.]
THUS much I thought it necessary to premise concerning the law of
nature, the revealed law, and the law of nations, before I proceeded
to treat more fully of the principal subject of this section,
municipal or civil law; that is, the rule by which particular
districts, communities, or nations are governed; being thus defined by
Justinian[d], "_jus civile est quod quisque sibi populus constituit_."
I call it _municipal_ law, in compliance with common speech; for, tho'
strictly that expression denotes the particular customs of one single
_municipium_ or free town, yet it may with sufficient propriety be
applied to any one state or nation, which is governed by the same laws
and customs.
[Footnote d: _Inst._ 1. 2. 1.]
MUNICIPAL law, thus understood, is properly defined to be "a rule of
civil conduct prescribed by the supreme power in a state, commanding
what is right and prohibiting what is wrong." Let us endeavour to
explain it's several properties, as they arise out of this definition.
AND, first, it is a _rule_; not a transient sudden order from a
superior to or concerning a particular person; but something
permanent, uniform, and universal. Therefore a particular act of the
legislature to confiscate the goods of Titius, or to attaint him of
high treason, does not enter into the idea of a municipal law: for the
operation of this act is spent upon Titius only, and has no relation
to the community in general; it is rather a sentence than a law. But
an act to declare that the crime of which Titius is accused shall be
deemed high treason; this has permanency, uniformity, and
universality, and therefore is properly a _rule_. It is also called a
_rule_, to distinguish it from _advice_ or _counsel_, which we are at
liberty to follow or not, as we see proper; and to judge upon the
reasonableness or unreasonableness of the thing advised. Whereas our
obedience to the _law_ depends not upon _our approbation_, but upon
the _maker's will_. Counsel is only matter of persuasion, law is
matter of injunction; counsel acts only upon the willing, law upon the
unwilling also.
IT is also called a _rule_, to distinguish it from a _compact_ or
_agreement_; for a compact is a promise proceeding _from_ us, law is a
command directed _to_ us. The language of a compact is, "I will, or
will not, do this;" that of a law is, "thou shalt, or shalt not, do
it." It is true there is an obligation which a compact carries with
it, equal in point of conscience to that of a law; but then the
original of the obligation is different. In compacts, we ourselves
determine and promise what shall be done, before we are obliged to do
it; in laws, we are obliged to act, without ourselves determining or
promising any thing at all. Upon these accounts law is defined to be
"_a rule_."
MUNICIPAL law is also "a rule _of civil conduct_." This distinguishes
municipal law from the natural, or revealed; the former of which is
the rule of _moral_ conduct, and the latter not only the rule of moral
conduct, but also the rule of faith. These regard man as a creature,
and point out his duty to God, to himself, and to his neighbour,
considered in the light of an individual. But municipal or civil law
regards him also as a citizen, and bound to other duties towards his
neighbour, than those of mere nature and religion: duties, which he
has engaged in by enjoying the benefits of the common union; and which
amount to no more, than that he do contribute, on his part, to the
subsistence and peace of the society.
IT is likewise "a rule _prescribed_." Because a bare resolution,
confined in the breast of the legislator, without manifesting itself
by some external sign, can never be properly a law. It is requisite
that this resolution be notified to the people who are to obey it. But
the manner in which this notification is to be made, is matter of very
great indifference. It may be notified by universal tradition and long
practice, which supposes a previous publication, and is the case of
the common law of England. It may be notified, _viva voce_, by
officers appointed for that purpose, as is done with regard to
proclamations, and such acts of parliament as are appointed to be
publicly read in churches and other assemblies. It may lastly be
notified by writing, printing, or the like; which is the general
course taken with all our acts of parliament. Yet, whatever way is
made use of, it is incumbent on the promulgators to do it in the most
public and perspicuous manner; not like Caligula, who (according to
Dio Cassius) wrote his laws in a very small character, and hung them
up upon high pillars, the more effectually to ensnare the people.
There is still a more unreasonable method than this, which is called
making of laws _ex post facto_; when _after_ an action is committed,
the legislator then for the first time declares it to have been a
crime, and inflicts a punishment upon the person who has committed it;
here it is impossible that the party could foresee that an action,
innocent when it was done, should be afterwards converted to guilt by
a subsequent law; he had therefore no cause to abstain from it; and
all punishment for not abstaining must of consequence be cruel and
unjust[e]. All laws should be therefore made to commence _in futuro_,
and be notified before their commencement; which is implied in the
term "_prescribed_." But when this rule is in the usual manner
notified, or prescribed, it is then the subject's business to be
thoroughly acquainted therewith; for if ignorance, of what he _might_
know, were admitted as a legitimate excuse, the laws would be of no
effect, but might always be eluded with impunity.
[Footnote e: Such laws among the Romans were denominated _privilegia_,
or private laws, of which Cicero _de leg._ 3. 19. and in his oration
_pro domo_, 17. thus speaks; "_Vetant leges sacratae, vetant duodecim
tabulae, leges privatis hominibus irrogari; id enim est privilegium.
Nemo unquam tulit, nihil est crudelius, nihil perniciosius, nihil quod
minus haec civitas ferre possit_."]
BUT farther: municipal law is "a rule of civil conduct prescribed _by
the supreme power in a state_." For legislature, as was before
observed, is the greatest act of superiority that can be exercised by
one being over another. Wherefore it is requisite to the very essence
of a law, that it be made by the supreme power. Sovereignty and
legislature are indeed convertible terms; one cannot subsist without
the other.
THIS will naturally lead us into a short enquiry concerning the nature
of society and civil government; and the natural, inherent right that
belongs to the sovereignty of a state, wherever that sovereignty be
lodged, of making and enforcing laws.
THE only true and natural foundations of society are the wants and the
fears of individuals. Not that we can believe, with some theoretical
writers, that there ever was a time when there was no such thing as
society; and that, from the impulse of reason, and through a sense of
their wants and weaknesses, individuals met together in a large plain,
entered into an original contract, and chose the tallest man present
to be their governor. This notion, of an actually existing unconnected
state of nature, is too wild to be seriously admitted; and besides it
is plainly contradictory to the revealed accounts of the primitive
origin of mankind, and their preservation two thousand years
afterwards; both which were effected by the means of single families.
These formed the first society, among themselves; which every day
extended it's limits, and when it grew too large to subsist with
convenience in that pastoral state, wherein the patriarchs appear to
have lived, it necessarily subdivided itself by various migrations
into more. Afterwards, as agriculture increased, which employs and can
maintain a much greater number of hands, migrations became less
frequent; and various tribes, which had formerly separated, re-united
again; sometimes by compulsion and conquest, sometimes by accident,
and sometimes perhaps by compact. But though society had not it's
formal beginning from any convention of individuals, actuated by their
wants and their fears; yet it is the _sense_ of their weakness and
imperfection that _keeps_ mankind together; that demonstrates the
necessity of this union; and that therefore is the solid and natural
foundation, as well as the cement, of society. And this is what we
mean by the original contract of society; which, though perhaps in no
instance it has ever been formally expressed at the first institution
of a state, yet in nature and reason must always be understood and
implied, in the very act of associating together: namely, that the
whole should protect all it's parts, and that every part should pay
obedience to the will of the whole; or, in other words, that the
community should guard the rights of each individual member, and that
(in return for this protection) each individual should submit to the
laws of the community; without which submission of all it was
impossible that protection could be certainly extended to any.
FOR when society is once formed, government results of course, as
necessary to preserve and to keep that society in order. Unless some
superior were constituted, whose commands and decisions all the
members are bound to obey, they would still remain as in a state of
nature, without any judge upon earth to define their several rights,
and redress their several wrongs. But, as all the members of society
are naturally equal, it may be asked, in whose hands are the reins of
government to be entrusted? To this the general answer is easy; but
the application of it to particular cases has occasioned one half of
those mischiefs which are apt to proceed from misguided political
zeal. In general, all mankind will agree that government should be
reposed in such persons, in whom those qualities are most likely to be
found, the perfection of which are among the attributes of him who is
emphatically stiled the supreme being; the three grand requisites, I
mean, of wisdom, of goodness, and of power: wisdom, to discern the
real interest of the community; goodness, to endeavour always to
pursue that real interest; and strength, or power, to carry this
knowlege and intention into action. These are the natural foundations
of sovereignty, and these are the requisites that ought to be found in
every well constituted frame of government.
HOW the several forms of government we now see in the world at first
actually began, is matter of great uncertainty, and has occasioned
infinite disputes. It is not my business or intention to enter into
any of them. However they began, or by what right soever they
subsist, there is and must be in all of them a supreme, irresistible,
absolute, uncontrolled authority, in which the _jura summi imperii_,
or the rights of sovereignty, reside. And this authority is placed in
those hands, wherein (according to the opinion of the founders of such
respective states, either expressly given, or collected from their
tacit approbation) the qualities requisite for supremacy, wisdom,
goodness, and power, are the most likely to be found.
THE political writers of antiquity will not allow more than three
regular forms of government; the first, when the sovereign power is
lodged in an aggregate assembly consisting of all the members of a
community, which is called a democracy; the second, when it is lodged
in a council, composed of select members, and then it is stiled an
aristocracy; the last, when it is entrusted in the hands of a single
person, and then it takes the name of a monarchy. All other species of
government, they say, are either corruptions of, or reducible to,
these three.
BY the sovereign power, as was before observed, is meant the making of
laws; for wherever that power resides, all others must conform to, and
be directed by it, whatever appearance the outward form and
administration of the government may put on. For it is at any time in
the option of the legislature to alter that form and administration by
a new edict or rule, and to put the execution of the laws into
whatever hands it pleases: and all the other powers of the state must
obey the legislative power in the execution of their several
functions, or else the constitution is at an end.
IN a democracy, where the right of making laws resides in the people
at large, public virtue, or goodness of intention, is more likely to
be found, than either of the other qualities of government. Popular
assemblies are frequently foolish in their contrivance, and weak in
their execution; but generally mean to do the thing that is right and
just, and have always a degree of patriotism or public spirit. In
aristocracies there is more wisdom to be found, than in the other
frames of government; being composed, or intended to be composed, of
the most experienced citizens; but there is less honesty than in a
republic, and less strength than in a monarchy. A monarchy is indeed
the most powerful of any, all the sinews of government being knit
together, and united in the hand of the prince; but then there is
imminent danger of his employing that strength to improvident or
oppressive purposes.
THUS these three species of government have, all of them, their
several perfections and imperfections. Democracies are usually the
best calculated to direct the end of a law; aristocracies to invent
the means by which that end shall be obtained; and monarchies to carry
those means into execution. And the antients, as was observed, had in
general no idea of any other permanent form of government but these
three; for though Cicero[f] declares himself of opinion, "_esse optime
constitutam rempublicam, quae ex tribus generibus illis, regali,
optimo, et populari, sit modice confusa_;" yet Tacitus treats this
notion of a mixed government, formed out of them all, and partaking of
the advantages of each, as a visionary whim; and one that, if
effected, could never be lasting or secure[g].
[Footnote f: In his fragments _de rep._ _l._ 2.]
[Footnote g: "_Cunctas nationes et urbes populus, aut primores, aut
singuli regunt: delecta ex his, et constituta reipublicae forma
laudari facilius quam evenire, vel, si evenit, haud diuturna esse
potest._" _Ann._ _l._ 4.]
BUT happily for us of this island, the British constitution has long
remained, and I trust will long continue, a standing exception to the
truth of this observation. For, as with us the executive power of the
laws is lodged in a single person, they have all the advantages of
strength and dispatch, that are to be found in the most absolute
monarchy; and, as the legislature of the kingdom is entrusted to three
distinct powers, entirely independent of each other; first, the king;
secondly, the lords spiritual and temporal, which is an aristocratical
assembly of persons selected for their piety, their birth, their
wisdom, their valour, or their property; and, thirdly, the house of
commons, freely chosen by the people from among themselves, which
makes it a kind of democracy; as this aggregate body, actuated by
different springs, and attentive to different interests, composes the
British parliament, and has the supreme disposal of every thing; there
can no inconvenience be attempted by either of the three branches, but
will be withstood by one of the other two; each branch being armed
with a negative power, sufficient to repel any innovation which it
shall think inexpedient or dangerous.
HERE then is lodged the sovereignty of the British constitution; and
lodged as beneficially as is possible for society. For in no other
shape could we be so certain of finding the three great qualities of
government so well and so happily united. If the supreme power were
lodged in any one of the three branches separately, we must be exposed
to the inconveniences of either absolute monarchy, aristocracy, or
democracy; and so want two of the three principal ingredients of good
polity, either virtue, wisdom, or power. If it were lodged in any two
of the branches; for instance, in the king and house of lords, our
laws might be providently made, and well executed, but they might not
always have the good of the people in view: if lodged in the king and
commons, we should want that circumspection and mediatory caution,
which the wisdom of the peers is to afford: if the supreme rights of
legislature were lodged in the two houses only, and the king had no
negative upon their proceedings, they might be tempted to encroach
upon the royal prerogative, or perhaps to abolish the kingly office,
and thereby weaken (if not totally destroy) the strength of the
executive power. But the constitutional government of this island is
so admirably tempered and compounded, that nothing can endanger or
hurt it, but destroying the equilibrium of power between one branch of
the legislature and the rest. For if ever it should happen that the
independence of any one of the three should be lost, or that it should
become subservient to the views of either of the other two, there
would soon be an end of our constitution. The legislature would be
changed from that, which was originally set up by the general consent
and fundamental act of the society; and such a change, however
effected, is according to Mr Locke[h] (who perhaps carries his theory
too far) at once an entire dissolution of the bands of government; and
the people would be reduced to a state of anarchy, with liberty to
constitute to themselves a new legislative power.
[Footnote h: On government, part 2. §. 212.]
HAVING thus cursorily considered the three usual species of
government, and our own singular constitution, selected and compounded
from them all, I proceed to observe, that, as the power of making laws
constitutes the supreme authority, so wherever the supreme authority
in any state resides, it is the right of that authority to make laws;
that is, in the words of our definition, _to prescribe the rule of
civil action_. And this may be discovered from the very end and
institution of civil states. For a state is a collective body,
composed of a multitude of individuals, united for their safety and
convenience, and intending to act together as one man. If it therefore
is to act as one man, it ought to act by one uniform will. But,
inasmuch as political communities are made up of many natural persons,
each of whom has his particular will and inclination, these several
wills cannot by any _natural_ union be joined together, or tempered
and disposed into a lasting harmony, so as to constitute and produce
that one uniform will of the whole. It can therefore be no otherwise
produced than by a _political_ union; by the consent of all persons to
submit their own private wills to the will of one man, or of one or
more assemblies of men, to whom the supreme authority is entrusted:
and this will of that one man, or assemblage of men, is in different
states, according to their different constitutions, understood to be
_law_.
THUS far as to the _right_ of the supreme power to make laws; but
farther, it is it's _duty_ likewise. For since the respective members
are bound to conform themselves to the will of the state, it is
expedient that they receive directions from the state declaratory of
that it's will. But since it is impossible, in so great a multitude,
to give injunctions to every particular man, relative to each
particular action, therefore the state establishes general rules, for
the perpetual information and direction of all persons in all points,
whether of positive or negative duty. And this, in order that every
man may know what to look upon as his own, what as another's; what
absolute and what relative duties are required at his hands; what is
to be esteemed honest, dishonest, or indifferent; what degree every
man retains of his natural liberty; what he has given up as the price
of the benefits of society; and after what manner each person is to
moderate the use and exercise of those rights which the state assigns
him, in order to promote and secure the public tranquillity.
FROM what has been advanced, the truth of the former branch of our
definition, is (I trust) sufficiently evident; that "_municipal law is
a rule of civil conduct prescribed by the supreme power in a state_."
I proceed now to the latter branch of it; that it is a rule so
prescribed, "_commanding what is right, and prohibiting what is
wrong_."
NOW in order to do this completely, it is first of all necessary that
the boundaries of right and wrong be established and ascertained by
law. And when this is once done, it will follow of course that it is
likewise the business of the law, considered as a rule of civil
conduct, to enforce these rights and to restrain or redress these
wrongs. It remains therefore only to consider in what manner the law
is said to ascertain the boundaries of right and wrong; and the
methods which it takes to command the one and prohibit the other.
FOR this purpose every law may be said to consist of several parts:
one, _declaratory_; whereby the rights to be observed, and the wrongs
to be eschewed, are clearly defined and laid down: another,
_directory_, whereby the subject is instructed and enjoined to observe
those rights, and to abstain from the commission of those wrongs: a
third, _remedial_; whereby a method is pointed out to recover a man's
private rights, or redress his private wrongs: to which may be added a
fourth, usually termed the _sanction_, or _vindicatory_ branch of the
law; whereby it is signified what evil or penalty shall be incurred by
such as commit any public wrongs, and transgress or neglect their
duty.
WITH regard to the first of these, the _declaratory_ part of the
municipal law, this depends not so much upon the law of revelation or
of nature, as upon the wisdom and will of the legislator. This
doctrine, which before was slightly touched, deserves a more
particular explication. Those rights then which God and nature have
established, and are therefore called natural rights, such as are life
and liberty, need not the aid of human laws to be more effectually
invested in every man than they are; neither do they receive any
additional strength when declared by the municipal laws to be
inviolable. On the contrary, no human legislature has power to abridge
or destroy them, unless the owner shall himself commit some act that
amounts to a forfeiture. Neither do divine or natural _duties_ (such
as, for instance, the worship of God, the maintenance of children, and
the like) receive any stronger sanction from being also declared to be
duties by the law of the land. The case is the same as to crimes and
misdemesnors, that are forbidden by the superior laws, and therefore
stiled _mala in se_, such as murder, theft, and perjury; which
contract no additional turpitude from being declared unlawful by the
inferior legislature. For that legislature in all these cases acts
only, as was before observed, in subordination to the great lawgiver,
transcribing and publishing his precepts. So that, upon the whole, the
declaratory part of the municipal law has no force or operation at
all, with regard to actions that are naturally and intrinsically right
or wrong.
BUT with regard to things in themselves indifferent, the case is
entirely altered. These become either right or wrong, just or unjust,
duties or misdemesnors, according as the municipal legislator sees
proper, for promoting the welfare of the society, and more effectually
carrying on the purposes of civil life. Thus our own common law has
declared, that the goods of the wife do instantly upon marriage become
the property and right of the husband; and our statute law has
declared all monopolies a public offence: yet that right, and this
offence, have no foundation in nature; but are merely created by the
law, for the purposes of civil society. And sometimes, where the thing
itself has it's rise from the law of nature, the particular
circumstances and mode of doing it become right or wrong, as the laws
of the land shall direct. Thus, for instance, in civil duties;
obedience to superiors is the doctrine of revealed as well as natural
religion: but who those superiors shall be, and in what circumstances,
or to what degrees they shall be obeyed, is the province of human laws
to determine. And so, as to injuries or crimes, it must be left to our
own legislature to decide, in what cases the seising another's cattle
shall amount to the crime of robbery; and where it shall be a
justifiable action, as when a landlord takes them by way of distress
for rent.
THUS much for the _declaratory_ part of the municipal law: and the
_directory_ stands much upon the same footing; for this virtually
includes the former, the declaration being usually collected from the
direction. The law that says, "thou shalt not steal," implies a
declaration that stealing is a crime. And we have seen that, in things
naturally indifferent, the very essence of right and wrong depends
upon the direction of the laws to do or to omit it.
THE _remedial_ part of a law is so necessary a consequence of the
former two, that laws must be very vague and imperfect without it. For
in vain would rights be declared, in vain directed to be observed, if
there were no method of recovering and asserting those rights, when
wrongfully withheld or invaded. This is what we mean properly, when we
speak of the protection of the law. When, for instance, the
_declaratory_ part of the law has said "that the field or inheritance,
which belonged to Titius's father, is vested by his death in Titius;"
and the _directory_ part has "forbidden any one to enter on another's
property without the leave of the owner;" if Gaius after this will
presume to take possession of the land, the _remedial_ part of the law
will then interpose it's office; will make Gaius restore the
possession to Titius, and also pay him damages for the invasion.
WITH regard to the _sanction_ of laws, or the evil that may attend the
breach of public duties; it is observed, that human legislators have
for the most part chosen to make the sanction of their laws rather
_vindicatory_ than _remuneratory_, or to consist rather in
punishments, than in actual particular rewards. Because, in the first
place, the quiet enjoyment and protection of all our civil rights and
liberties, which are the sure and general consequence of obedience to
the municipal law, are in themselves the best and most valuable of all
rewards. Because also, were the exercise of every virtue to be
enforced by the proposal of particular rewards, it were impossible for
any state to furnish stock enough for so profuse a bounty. And
farther, because the dread of evil is a much more forcible principle
of human actions than the prospect of good[i]. For which reasons,
though a prudent bestowing of rewards is sometimes of exquisite use,
yet we find that those civil laws, which enforce and enjoin our duty,
do seldom, if ever, propose any privilege or gift to such as obey the
law; but do constantly come armed with a penalty denounced against
transgressors, either expressly defining the nature and quantity of
the punishment, or else leaving it to the discretion of the judges,
and those who are entrusted with the care of putting the laws in
execution.
[Footnote i: Locke, Hum. Und. b. 2. c. 21.]
OF all the parts of a law the most effectual is the _vindicatory_. For
it is but lost labour to say, "do this, or avoid that," unless we also
declare, "this shall be the consequence of your noncompliance." We
must therefore observe, that the main strength and force of a law
consists in the penalty annexed to it. Herein is to be found the
principal obligation of human laws.
LEGISLATORS and their laws are said to _compel_ and _oblige_; not that
by any natural violence they so constrain a man, as to render it
impossible for him to act otherwise than as they direct, which is the
strict sense of obligation: but because, by declaring and exhibiting a
penalty against offenders, they bring it to pass that no man can
easily choose to transgress the law; since, by reason of the impending
correction, compliance is in a high degree preferable to disobedience.
And, even where rewards are proposed as well as punishments
threatened, the obligation of the law seems chiefly to consist in the
penalty: for rewards, in their nature, can only _persuade_ and
_allure_; nothing is _compulsory_ but punishment.
IT is held, it is true, and very justly, by the principal of our
ethical writers, that human laws are binding upon mens consciences.
But if that were the only, or most forcible obligation, the good only
would regard the laws, and the bad would set them at defiance. And,
true as this principle is, it must still be understood with some
restriction. It holds, I apprehend, as to _rights_; and that, when the
law has determined the field to belong to Titius, it is matter of
conscience no longer to withhold or to invade it. So also in regard to
_natural duties_, and such offences as are _mala in se_: here we are
bound in conscience, because we are bound by superior laws, before
those human laws were in being, to perform the one and abstain from
the other. But in relation to those laws which enjoin only _positive
duties_, and forbid only such things as are not _mala in se_ but _mala
prohibita_ merely, annexing a penalty to noncompliance, here I
apprehend conscience is no farther concerned, than by directing a
submission to the penalty, in case of our breach of those laws: for
otherwise the multitude of penal laws in a state would not only be
looked upon as an impolitic, but would also be a very wicked thing; if
every such law were a snare for the conscience of the subject. But in
these cases the alternative is offered to every man; "either abstain
from this, or submit to such a penalty;" and his conscience will be
clear, whichever side of the alternative he thinks proper to embrace.
Thus, by the statutes for preserving the game, a penalty is denounced
against every unqualified person that kills a hare. Now this
prohibitory law does not make the transgression a moral offence: the
only obligation in conscience is to submit to the penalty if levied.
I HAVE now gone through the definition laid down of a municipal law;
and have shewn that it is "a rule--of civil conduct--prescribed--by
the supreme power in a state--commanding what is right, and
prohibiting what is wrong:" in the explication of which I have
endeavoured to interweave a few useful principles, concerning the
nature of civil government, and the obligation of human laws. Before I
conclude this section, it may not be amiss to add a few observations
concerning the _interpretation_ of laws.
WHEN any doubt arose upon the construction of the Roman laws, the
usage was to state the case to the emperor in writing, and take his
opinion upon it. This was certainly a bad method of interpretation. To
interrogate the legislature to decide particular disputes, is not only
endless, but affords great room for partiality and oppression. The
answers of the emperor were called his rescripts, and these had in
succeeding cases the force of perpetual laws; though they ought to be
carefully distinguished, by every rational civilian, from those
general constitutions, which had only the nature of things for their
guide. The emperor Macrinus, as his historian Capitolinus informs us,
had once resolved to abolish these rescripts, and retain only the
general edicts; he could not bear that the hasty and crude answers of
such princes as Commodus and Caracalla should be reverenced as laws.
But Justinian thought otherwise[k], and he has preserved them all. In
like manner the canon laws, or decretal epistles of the popes, are all
of them rescripts in the strictest sense. Contrary to all true forms
of reasoning, they argue from particulars to generals.
[Footnote k: _Inst._ 1. 2. 6.]
THE fairest and most rational method to interpret the will of the
legislator, is by exploring his intentions at the time when the law
was made, by _signs_ the most natural and probable. And these signs
are either the words, the context, the subject matter, the effects and
consequence, or the spirit and reason of the law. Let us take a short
view of them all.
1. WORDS are generally to be understood in their usual and most known
signification; not so much regarding the propriety of grammar, as
their general and popular use. Thus the law mentioned by
Puffendorf[l], which forbad a layman to _lay hands_ on a priest, was
adjudged to extend to him, who had hurt a priest with a weapon. Again;
terms of art, or technical terms, must be taken according to the
acceptation of the learned in each art, trade, and science. So in the
act of settlement, where the crown of England is limited "to the
princess Sophia, and the heirs of her body, being protestants," it
becomes necessary to call in the assistance of lawyers, to ascertain
the precise idea of the words "_heirs of her body_;" which in a legal
sense comprize only certain of her lineal descendants. Lastly, where
words are clearly _repugnant_ in two laws, the later law takes place
of the elder: _leges posteriores priores contrarias abrogant_ is a
maxim of universal law, as well as of our own constitutions. And
accordingly it was laid down by a law of the twelve tables at Rome,
_quod populus postremum jussit, id jus ratum esto_.
[Footnote l: L. of N. and N. 5. 12. 3.]
2. IF words happen to be still dubious, we may establish their meaning
from the context; with which it may be of singular use to compare a
word, or a sentence, whenever they are ambiguous, equivocal, or
intricate. Thus the proeme, or preamble, is often called in to help
the construction of an act of parliament. Of the same nature and use
is the comparison of a law with other laws, that are made by the same
legislator, that have some affinity with the subject, or that
expressly relate to the same point. Thus, when the law of England
declares murder to be felony without benefit of clergy, we must resort
to the same law of England to learn what the benefit of clergy is:
and, when the common law censures simoniacal contracts, it affords
great light to the subject to consider what the canon law has adjudged
to be simony.
3. AS to the subject matter, words are always to be understood as
having a regard thereto; for that is always supposed to be in the eye
of the legislator, and all his expressions directed to that end. Thus,
when a law of our Edward III. forbids all ecclesiastical persons to
purchase _provisions_ at Rome, it might seem to prohibit the buying of
grain and other victual; but when we consider that the statute was
made to repress the usurpations of the papal see, and that the
nominations to vacant benefices by the pope were called _provisions_,
we shall see that the restraint is intended to be laid upon such
provisions only.
4. AS to the effects and consequence, the rule is, where words bear
either none, or a very absurd signification, if literally understood,
we must a little deviate from the received sense of them. Therefore
the Bolognian law, mentioned by Puffendorf[m], which enacted "that
whoever drew blood in the streets should be punished with the utmost
severity," was held after long debate not to extend to the surgeon,
who opened the vein of a person that fell down in the street with a
fit.
[Footnote m: _l._ 5. _c._ 12. §. 8.]
5. BUT, lastly, the most universal and effectual way of discovering
the true meaning of a law, when the words are dubious, is by
considering the reason and spirit of it; or the cause which moved the
legislator to enact it. For when this reason ceases, the law itself
ought likewise to cease with it. An instance of this is given in a
case put by Cicero, or whoever was the author of the rhetorical
treatise inscribed to Herennius[n]. There was a law, that those who in
a storm forsook the ship should forfeit all property therein; and the
ship and lading should belong entirely to those who staid in it. In a
dangerous tempest all the mariners forsook the ship, except only one
sick passenger, who by reason of his disease was unable to get out and
escape. By chance the ship came safe to port. The sick man kept
possession and claimed the benefit of the law. Now here all the
learned agree, that the sick man is not within the reason of the law;
for the reason of making it was, to give encouragement to such as
should venture their lives to save the vessel: but this is a merit,
which he could never pretend to, who neither staid in the ship upon
that account, nor contributed any thing to it's preservation.
[Footnote n: _l._ 1. _c._ 11.]
FROM this method of interpreting laws, by the reason of them, arises
what we call _equity_; which is thus defined by Grotius[o], "the
correction of that, wherein the law (by reason of its universality) is
deficient." For since in laws all cases cannot be foreseen or
expressed, it is necessary, that when the general decrees of the law
come to be applied to particular cases, there should be somewhere a
power vested of excepting those circumstances, which (had they been
foreseen) the legislator himself would have excepted. And these are
the cases, which, as Grotius expresses it, "_lex non exacte definit,
sed arbitrio boni viri permittit_."
[Footnote o: _de aequitate._]
EQUITY thus depending, essentially, upon the particular circumstances
of each individual case, there can be no established rules and fixed
precepts of equity laid down, without destroying it's very essence,
and reducing it to a positive law. And, on the other hand, the liberty
of considering all cases in an equitable light must not be indulged
too far, lest thereby we destroy all law, and leave the decision of
every question entirely in the breast of the judge. And law, without
equity, tho' hard and disagreeable, is much more desirable for the
public good, than equity without law; which would make every judge a
legislator, and introduce most infinite confusion; as there would then
be almost as many different rules of action laid down in our courts,
as there are differences of capacity and sentiment in the human mind.
SECTION THE THIRD.
OF THE LAWS OF ENGLAND.
THE municipal law of England, or the rule of civil conduct prescribed
to the inhabitants of this kingdom, may with sufficient propriety be
divided into two kinds; the _lex non scripta_, the unwritten, or
common law; and the _lex scripta_, the written, or statute law.
THE _lex non scripta_, or unwritten law, includes not only _general
customs_, or the common law properly so called; but also the
_particular customs_ of certain parts of the kingdom; and likewise
those _particular laws_, that are by custom observed only in certain
courts and jurisdictions.
WHEN I call these parts of our law _leges non scriptae_, I would not
be understood as if all those laws were at present merely _oral_, or
communicated from the former ages to the present solely by word of
mouth. It is true indeed that, in the profound ignorance of letters
which formerly overspread the whole western world, all laws were
intirely traditional, for this plain reason, that the nations among
which they prevailed had but little idea of writing. Thus the British
as well as the Gallic druids committed all their laws as well as
learning to memory[a]; and it is said of the primitive Saxons here, as
well as their brethren on the continent, that _leges sola memoria et
usu retinebant_[b]. But with us at present the monuments and evidences
of our legal customs are contained in the records of the several
courts of justice, in books of reports and judicial decisions, and in
the treatises of learned sages of the profession, preserved and handed
down to us from the times of highest antiquity. However I therefore
stile these parts of our law _leges non scriptae_, because their
original institution and authority are not set down in writing, as
acts of parliament are, but they receive their binding power, and the
force of laws, by long and immemorial usage, and by their universal
reception throughout the kingdom. In like manner as Aulus Gellius
defines the _jus non scriptum_ to be that, which is "_tacito et
illiterato hominum consensu et moribus expressum_."
[Footnote a: _Caes. de b. G._ _lib._ 6. _c._ 13.]
[Footnote b: Spelm. Gl. 362.]
OUR antient lawyers, and particularly Fortescue[c], insist with
abundance of warmth, that these customs are as old as the primitive
Britons, and continued down, through the several mutations of
government and inhabitants, to the present time, unchanged and
unadulterated. This may be the case as to some; but in general, as Mr
Selden in his notes observes, this assertion must be understood with
many grains of allowance; and ought only to signify, as the truth
seems to be, that there never was any formal exchange of one system of
laws for another: though doubtless by the intermixture of adventitious
nations, the Romans, the Picts, the Saxons, the Danes, and the
Normans, they must have insensibly introduced and incorporated many of
their own customs with those that were before established: thereby in
all probability improving the texture and wisdom of the whole, by the
accumulated wisdom of divers particular countries. Our laws, saith
lord Bacon[d], are mixed as our language: and as our language is so
much the richer, the laws are the more complete.
[Footnote c: _c._ 17.]
[Footnote d: See his proposals for a digest.]
AND indeed our antiquarians and first historians do all positively
assure us, that our body of laws is of this compounded nature. For
they tell us, that in the time of Alfred the local customs of the
several provinces of the kingdom were grown so various, that he found
it expedient to compile his _dome-book_ or _liber judicialis_, for the
general use of the whole kingdom. This book is said to have been
extant so late as the reign of king Edward the fourth, but is now
unfortunately lost. It contained, we may probably suppose, the
principal maxims of the common law, the penalties for misdemesnors,
and the forms of judicial proceedings. Thus much may at least be
collected from that injunction to observe it, which we find in the
laws of king Edward the elder, the son of Alfred[e]. "_Omnibus qui
reipublicae praesunt, etiam atque etiam mando, ut omnibus aequos se
praebeant judices, perinde ac in judiciali libro_ (_Saxonice_,
[Anglo-Saxon: dom-bec]) _scriptum habetur; nec quicquam formident quin
jus commune_ (_Saxonice_, [Anglo-Saxon: folcrihte]) _audacter
libereque dicant._"
[Footnote e: _c._ 1.]
BUT the irruption and establishment of the Danes in England which
followed soon after, introduced new customs and caused this code of
Alfred in many provinces to fall into disuse; or at least to be mixed
and debased with other laws of a coarser alloy. So that about the
beginning of the eleventh century there were three principal systems
of laws prevailing in different districts. 1. The _Mercen-Lage_, or
Mercian laws, which were observed in many of the midland counties, and
those bordering on the principality of Wales; the retreat of the
antient Britons; and therefore very probably intermixed with the
British or Druidical customs. 2. The _West-Saxon-Lage_, or laws of the
west Saxons, which obtained in the counties to the south and west of
the island, from Kent to Devonshire. These were probably much the same
with the laws of Alfred abovementioned, being the municipal law of the
far most considerable part of his dominions, and particularly
including Berkshire, the seat of his peculiar residence. 3. The
_Dane-Lage_, or Danish law, the very name of which speaks it's
original and composition. This was principally maintained in the rest
of the midland counties, and also on the eastern coast, the seat of
that piratical people. As for the very northern provinces, they were
at that time under a distinct government[f].
[Footnote f: Hal. Hist. 55.]
OUT of these three laws, Roger Hoveden[g] and Ranulphus Cestrensis[h]
inform us, king Edward the confessor extracted one uniform law or
digest of laws, to be observed throughout the whole kingdom; though
Hoveden and the author of an old manuscript chronicle[i] assure us
likewise, that this work was projected and begun by his grandfather
king Edgar. And indeed a general digest of the same nature has been
constantly found expedient, and therefore put in practice by other
great nations, formed from an assemblage of little provinces, governed
by peculiar customs. As in Portugal, under king Edward, about the
beginning of the fifteenth century[k]. In Spain under Alonzo X, who
about the year 1250 executed the plan of his father St. Ferdinand, and
collected all the provincial customs into one uniform law, in the
celebrated code entitled _las partidas_[l]. And in Sweden about the
same aera, a universal body of common law was compiled out of the
particular customs established by the laghman of every province, and
intitled the _land's lagh_, being analogous to the _common law_ of
England[m].
[Footnote g: _in Hen. II._]
[Footnote h: _in Edw. Confessor._]
[Footnote i: _in Seld. ad Eadmer._ 6.]
[Footnote k: Mod. Un. Hist. xxii. 135.]
[Footnote l: Ibid. xx. 211.]
[Footnote m: Ibid. xxxiii. 21, 58.]
BOTH these undertakings, of king Edgar and Edward the confessor, seem
to have been no more than a new edition, or fresh promulgation, of
Alfred's code or dome-book, with such additions and improvements as
the experience of a century and an half had suggested. For Alfred is
generally stiled by the same historians the _legum Anglicanarum
conditor_, as Edward the confessor is the _restitutor_. These however
are the laws which our histories so often mention under the name of
the laws of Edward the confessor; which our ancestors struggled so
hardly to maintain, under the first princes of the Norman line; and
which subsequent princes so frequently promised to keep and to
restore, as the most popular act they could do, when pressed by
foreign emergencies or domestic discontents. These are the laws, that
so vigorously withstood the repeated attacks of the civil law; which
established in the twelfth century a new Roman empire over most of the
states on the continent: states that have lost, and perhaps upon that
account, their political liberties; while the free constitution of
England, perhaps upon the same account, has been rather improved than
debased. These, in short, are the laws which gave rise and original to
that collection of maxims and customs, which is now known by the name
of the common law. A name either given to it, in contradistinction to
other laws, as the statute law, the civil law, the law merchant, and
the like; or, more probably, as a law _common_ to all the realm, the
_jus commune_ or _folcright_ mentioned by king Edward the elder, after
the abolition of the several provincial customs and particular laws
beforementioned.
BUT though this is the most likely foundation of this collection of
maxims and customs, yet the maxims and customs, so collected, are of
higher antiquity than memory or history can reach: nothing being more
difficult than to ascertain the precise beginning and first spring of
an antient and long established custom. Whence it is that in our law
the goodness of a custom depends upon it's having been used time out
of mind; or, in the solemnity of our legal phrase, time whereof the
memory of man runneth not to the contrary. This it is that gives it
it's weight and authority; and of this nature are the maxims and
customs which compose the common law, or _lex non scripta_, of this
kingdom.
THIS unwritten, or common, law is properly distinguishable into three
kinds: 1. General customs; which are the universal rule of the whole
kingdom, and form the common law, in it's stricter and more usual
signification. 2. Particular customs; which for the most part affect
only the inhabitants of particular districts. 3. Certain particular
laws; which by custom are adopted and used by some particular courts,
of pretty general and extensive jurisdiction.
I. AS to general customs, or the common law, properly so called; this
is that law, by which proceedings and determinations in the king's
ordinary courts of justice are guided and directed. This, for the most
part, settles the course in which lands descend by inheritance; the
manner and form of acquiring and transferring property; the
solemnities and obligation of contracts; the rules of expounding
wills, deeds, and acts of parliament; the respective remedies of civil
injuries; the several species of temporal offences, with the manner
and degree of punishment; and an infinite number of minuter
particulars, which diffuse themselves as extensively as the ordinary
distribution of common justice requires. Thus, for example, that there
shall be four superior courts of record, the chancery, the king's
bench, the common pleas, and the exchequer;--that the eldest son alone
is heir to his ancestor;--that property may be acquired and
transferred by writing;--that a deed is of no validity unless
sealed;--that wills shall be construed more favorably, and deeds more
strictly;--that money lent upon bond is recoverable by action of
debt;--that breaking the public peace is an offence, and punishable by
fine and imprisonment;--all these are doctrines that are not set down
in any written statute or ordinance, but depend merely upon immemorial
usage, that is, upon common law, for their support.
SOME have divided the common law into two principal grounds or
foundations: 1. established customs; such as that where there are
three brothers, the eldest brother shall be heir to the second, in
exclusion of the youngest: and 2. established rules and maxims; as,
"that the king can do no wrong, that no man shall be bound to accuse
himself," and the like. But I take these to be one and the same thing.
For the authority of these maxims rests entirely upon general
reception and usage; and the only method of proving, that this or that
maxim is a rule of the common law, is by shewing that it hath been
always the custom to observe it.
BUT here a very natural, and very material, question arises: how are
these customs or maxims to be known, and by whom is their validity to
be determined? The answer is, by the judges in the several courts of
justice. They are the depositary of the laws; the living oracles, who
must decide in all cases of doubt, and who are bound by an oath to
decide according to the law of the land. Their knowlege of that law is
derived from experience and study; from the "_viginti annorum
lucubrationes_," which Fortescue[n] mentions; and from being long
personally accustomed to the judicial decisions of their predecessors.
And indeed these judicial decisions are the principal and most
authoritative evidence, that can be given, of the existence of such a
custom as shall form a part of the common law. The judgment itself,
and all the proceedings previous thereto, are carefully registered and
preserved, under the name of _records_, in publick repositories set
apart for that particular purpose; and to them frequent recourse is
had, when any critical question arises, in the determination of which
former precedents may give light or assistance. And therefore, even so
early as the conquest, we find the "_praeteritorum memoria eventorum_"
reckoned up as one of the chief qualifications of those who were held
to be "_legibus patriae optime instituti_[o]." For it is an
established rule to abide by former precedents, where the same points
come again in litigation; as well to keep the scale of justice even
and steady, and not liable to waver with every new judge's opinion; as
also because the law in that case being solemnly declared and
determined, what before was uncertain, and perhaps indifferent, is now
become a permanent rule, which it is not in the breast of any
subsequent judge to alter or vary from, according to his private
sentiments: he being sworn to determine, not according to his own
private judgment, but according to the known laws and customs of the
land; not delegated to pronounce a new law, but to maintain and
expound the old one. Yet this rule admits of exception, where the
former determination is most evidently contrary to reason; much more
if it be contrary to the divine law. But even in such cases the
subsequent judges do not pretend to make a new law, but to vindicate
the old one from misrepresentation. For if it be found that the former
decision is manifestly absurd or unjust, it is declared, not that such
a sentence was _bad law_, but that it was _not law_; that is, that it
is not the established custom of the realm, as has been erroneously
determined. And hence it is that our lawyers are with justice so
copious in their encomiums on the reason of the common law; that they
tell us, that the law is the perfection of reason, that it always
intends to conform thereto, and that what is not reason is not law.
Not that the particular reason of every rule in the law can at this
distance of time be always precisely assigned; but it is sufficient
that there be nothing in the rule flatly contradictory to reason, and
then the law will presume it to be well founded[p]. And it hath been
an antient observation in the laws of England, that whenever a
standing rule of law, of which the reason perhaps could not be
remembered or discerned, hath been wantonly broke in upon by statutes
or new resolutions, the wisdom of the rule hath in the end appeared
from the inconveniences that have followed the innovation.
[Footnote n: _cap._ 8.]
[Footnote o: Seld. review of Tith. c. 8.]
[Footnote p: Herein agreeing with the civil law, _Ff._ 1. 3. 20, 21.
"_Non omnium, quae a majoribus nostris constituta sunt, ratio reddi
potest. Et ideo rationes eorum quae constituuntur, inquiri non
oportet: alioquin multa ex his, quae certa sunt, subvertuntur._"]
THE doctrine of the law then is this: that precedents and rules must
be followed, unless flatly absurd or unjust: for though their reason
be not obvious at first view, yet we owe such a deference to former
times as not to suppose they acted wholly without consideration. To
illustrate this doctrine by examples. It has been determined, time out
of mind, that a brother of the half blood (i.e. where they have only
one parent the same, and the other different) shall never succeed as
heir to the estate of his half brother, but it shall rather escheat to
the king, or other superior lord. Now this is a positive law, fixed
and established by custom, which custom is evidenced by judicial
decisions; and therefore can never be departed from by any modern
judge without a breach of his oath and the law. For herein there is
nothing repugnant to natural justice; though the reason of it, drawn
from the feodal law, may not be quite obvious to every body. And
therefore, on account of a supposed hardship upon the half brother, a
modern judge might wish it had been otherwise settled; yet it is not
in his power to alter it. But if any court were now to determine, that
an elder brother of the half blood might enter upon and seise any
lands that were purchased by his younger brother, no subsequent judges
would scruple to declare that such prior determination was unjust, was
unreasonable, and therefore was _not law_. So that _the law_, and the
_opinion of the judge_ are not always convertible terms, or one and
the same thing; since it sometimes may happen that the judge may
_mistake_ the law. Upon the whole however, we may take it as a general
rule, "that the decisions of courts of justice are the evidence of
what is common law:" in the same manner as, in the civil law, what the
emperor had once determined was to serve for a guide for the
future[q].
[Footnote q: "_Si imperialis majestas causam cognitionaliter
examinaverit, et partibus cominus constitutis sententiam dixerit,
omnes omnino judices, qui sub nostro imperio sunt, sciant hanc esse
legem, non solum illi causae pro qua producta est, sed et in omnibus
similibus._" _C._ 1. 14. 12.]
THE decisions therefore of courts are held in the highest regard, and
are not only preserved as authentic records in the treasuries of the
several courts, but are handed out to public view in the numerous
volumes of _reports_ which furnish the lawyer's library. These reports
are histories of the several cases, with a short summary of the
proceedings, which are preserved at large in the record; the arguments
on both sides; and the reasons the court gave for their judgment;
taken down in short notes by persons present at the determination. And
these serve as indexes to, and also to explain, the records; which
always, in matters of consequence and nicety, the judges direct to be
searched. The reports are extant in a regular series from the reign of
king Edward the second inclusive; and from his time to that of Henry
the eighth were taken by the prothonotaries, or chief scribes of the
court, at the expence of the crown, and published _annually_, whence
they are known under the denomination of the _year books_. And it is
much to be wished that this beneficial custom had, under proper
regulations, been continued to this day: for, though king James the
first at the instance of lord Bacon appointed two reporters with a
handsome stipend for this purpose, yet that wise institution was soon
neglected, and from the reign of Henry the eighth to the present time
this task has been executed by many private and cotemporary hands; who
sometimes through haste and inaccuracy, sometimes through mistake and
want of skill, have published very crude and imperfect (perhaps
contradictory) accounts of one and the same determination. Some of the
most valuable of the antient reports are those published by lord chief
justice Coke; a man of infinite learning in his profession, though not
a little infected with the pedantry and quaintness of the times he
lived in, which appear strongly in all his works. However his writings
are so highly esteemed, that they are generally cited without the
author's name[r].
[Footnote r: His reports, for instance, are stiled, [Greek: kat'
exochên], _the reports_; and in quoting them we usually say, 1 or 2
Rep. not 1 or 2 Coke's Rep. as in citing other authors. The reports of
judge Croke are also cited in a peculiar manner, by the name of those
princes, in whose reigns the cases reported in his three volumes were
determined; viz. Qu. Elizabeth, K. James, and K. Charles the first; as
well as by the number of each volume. For sometimes we call them, 1,
2, and 3 Cro. but more commonly Cro. Eliz. Cro. Jac. and Cro. Car.]
BESIDES these reporters, there are also other authors, to whom great
veneration and respect is paid by the students of the common law. Such
are Glanvil and Bracton, Britton and Fleta, Littleton and Fitzherbert,
with some others of antient date, whose treatises are cited as
authority; and are evidence that cases have formerly happened in which
such and such points were determined, which are now become settled and
first principles. One of the last of these methodical writers in point
of time, whose works are of any intrinsic authority in the courts of
justice, and do not entirely depend on the strength of their
quotations from older authors, is the same learned judge we have just
mentioned, sir Edward Coke; who hath written four volumes of
institutes, as he is pleased to call them, though they have little of
the institutional method to warrant such a title. The first volume is
a very extensive comment upon a little excellent treatise of tenures,
compiled by judge Littleton in the reign of Edward the fourth. This
comment is a rich mine of valuable common law learning, collected and
heaped together from the antient reports and year books, but greatly
defective in method[s]. The second volume is a comment upon many old
acts of parliament, without any systematical order; the third a more
methodical treatise of the pleas of the crown; and the fourth an
account of the several species of courts[t].
[Footnote s: It is usually cited either by the name of Co. Litt. or as
1 Inst.]
[Footnote t: These are cited as 2, 3, or 4 Inst. without any author's
name. An honorary distinction, which, we observed, was paid to the
works of no other writer; the generality of reports and other tracts
being quoted in the name of the compiler, as 2 Ventris, 4 Leonard, 1
Siderfin, and the like.]
AND thus much for the first ground and chief corner stone of the laws
of England, which is, general immemorial custom, or common law, from
time to time declared in the decisions of the courts of justice; which
decisions are preserved among our public records, explained in our
reports, and digested for general use in the authoritative writings of
the venerable sages of the law.
THE Roman law, as practised in the times of it's liberty, paid also a
great regard to custom; but not so much as our law: it only then
adopting it, when the written law is deficient. Though the reasons
alleged in the digest[u] will fully justify our practice, in making it
of equal authority with, when it is not contradicted by, the written
law. "For since, says Julianus, the written law binds us for no other
reason but because it is approved by the judgment of the people,
therefore those laws which the people hath approved without writing
ought also to bind every body. For where is the difference, whether
the people declare their assent to a law by suffrage, or by a uniform
course of acting accordingly?" Thus did they reason while Rome had
some remains of her freedom; but when the imperial tyranny came to be
fully established, the civil laws speak a very different language.
"_Quod principi placuit legis habet vigorem, cum populus ei et in eum
omne suum imperium et potestatem conferat_," says Ulpian[w].
"_Imperator solus et conditor et interpres legis existimatur_," says
the code[x]. And again, "_sacrilegii instar est rescripto principis
obviare_[y]." And indeed it is one of the characteristic marks of
English liberty, that our common law depends upon custom; which
carries this internal evidence of freedom along with it, that it
probably was introduced by the voluntary consent of the people.
[Footnote u: _Ff._ 1. 3. 32.]
[Footnote w: _Ff._ 1. 4. 1.]
[Footnote x: _C._ 1. 14. 12.]
[Footnote y: _C._ 1. 23. 5.]
II. THE second branch of the unwritten laws of England are particular
customs, or laws which affect only the inhabitants of particular
districts.
THESE particular customs, or some of them, are without doubt the
remains of that multitude of local customs before mentioned, out of
which the common law, as it now stands, was collected at first by king
Alfred, and afterwards by king Edgar and Edward the confessor: each
district mutually sacrificing some of it's own special usages, in
order that the whole kingdom might enjoy the benefit of one uniform
and universal system of laws. But, for reasons that have been now long
forgotten, particular counties, cities, towns, manors, and lordships,
were very early indulged with the privilege of abiding by their own
customs, in contradistinction to the rest of the nation at large:
which privilege is confirmed to them by several acts of parliament[z].
[Footnote z: Mag. Cart. c. 9.--1 Edw. III. st. 2. c. 9.--14 Edw. III.
st. 1. c. 1.--and 2 Hen. IV. c. 1.]
SUCH is the custom of gavelkind in Kent and some other parts of the
kingdom (though perhaps it was also general till the Norman conquest)
which ordains, among other things, that not the eldest son only of the
father shall succeed to his inheritance, but all the sons alike: and
that, though the ancestor be attainted and hanged, yet the heir shall
succeed to his estate, without any escheat to the lord.--Such is the
custom that prevails in divers antient boroughs, and therefore called
borough-english, that the youngest son shall inherit the estate, in
preference to all his elder brothers.--Such is the custom in other
boroughs that a widow shall be intitled, for her dower, to all her
husband's lands; whereas at the common law she shall be endowed of one
third part only.--Such also are the special and particular customs of
manors, of which every one has more or less, and which bind all the
copyhold-tenants that hold of the said manors.--Such likewise is the
custom of holding divers inferior courts, with power of trying causes,
in cities and trading towns; the right of holding which, when no royal
grant can be shewn, depends entirely upon immemorial and established
usage.--Such, lastly, are many particular customs within the city of
London, with regard to trade, apprentices, widows, orphans, and a
variety of other matters; which are all contrary to the general law of
the land, and are good only by special custom, though those of London
are also confirmed by act of parliament[a].
[Footnote a: 8 Rep. 126. Cro. Car. 347.]
TO this head may most properly be referred a particular system of
customs used only among one set of the king's subjects, called the
custom of merchants or _lex mercatoria_; which, however different from
the common law, is allowed for the benefit of trade, to be of the
utmost validity in all commercial transactions; the maxim of law
being, that "_cuilibet in sua arte credendum est_."
THE rules relating to particular customs regard either the proof of
their existence; their legality when proved; or their usual method of
allowance. And first we will consider the rules of proof.
AS to gavelkind, and borough-english, the law takes particular notice
of them[b], and there is no occasion to prove that such customs
actually exist, but only that the lands in question are subject
thereto. All other private customs must be particularly pleaded[c],
and as well the existence of such customs must be shewn, as that the
thing in dispute is within the custom alleged. The trial in both cases
(both to shew the existence of the custom, as, "that in the manor of
Dale lands shall descend only to the heirs male, and never to the
heirs female;" and also to shew that the lands in question are within
that manor) is by a jury of twelve men, and not by the judges, except
the same particular custom has been before tried, determined, and
recorded in the same court[d].
[Footnote b: Co. Litt. 175 _b._]
[Footnote c: Litt. §. 265.]
[Footnote d: Dr and St. 1. 10.]
THE customs of London differ from all others in point of trial: for,
if the existence of the custom be brought in question, it shall not be
tried by a jury, but by certificate from the lord mayor and aldermen
by the mouth of their recorder[e]; unless it be such a custom as the
corporation is itself interested in, as a right of taking toll, &c,
for then the law permits them not to certify on their own behalf[f].
[Footnote e: Cro. Car. 516.]
[Footnote f: Hob. 85.]
WHEN a custom is actually proved to exist, the next enquiry is into
the legality of it; for if it is not a good custom it ought to be no
longer used. "_Malus usus abolendus est_" is an established maxim of
the law[g]. To make a particular custom good, the following are
necessary requisites.
[Footnote g: Litt. §. 212. 4 Inst. 274.]
1. THAT it have been used so long, that the memory of man runneth not
to the contrary. So that if any one can shew the beginning of it, it
is no good custom. For which reason no custom can prevail against an
express act of parliament; since the statute itself is a proof of a
time when such a custom did not exist[h].
[Footnote h: Co. Litt. 113 _b._]
2. IT must have been _continued_. Any interruption would cause a
temporary ceasing: the revival gives it a new beginning, which will be
within time of memory, and thereupon the custom will be void. But this
must be understood with regard to an interruption of the _right_; for
an interruption of the _possession_ only, for ten or twenty years,
will not destroy the custom[i]. As if I have a right of way by custom
over another's field, the custom is not destroyed, though I do not
pass over it for ten years; it only becomes more difficult to prove:
but if the _right_ be any how discontinued for a day, the custom is
quite at an end.
[Footnote i: Co. Litt. 114 _b._]
3. IT must have been _peaceable_, and acquiesced in; not subject to
contention and dispute[k]. For as customs owe their original to common
consent, their being immemorially disputed either at law or otherwise
is a proof that such consent was wanting.
[Footnote k: Co. Litt. 114.]
4. CUSTOMS must be _reasonable_[l]; or rather, taken negatively, they
must not be unreasonable. Which is not always, as sir Edward Coke
says[m], to be understood of every unlearned man's reason, but of
artificial and legal reason, warranted by authority of law. Upon which
account a custom may be good, though the particular reason of it
cannot be assigned; for it sufficeth, if no good legal reason can be
assigned against it. Thus a custom in a parish, that no man shall put
his beasts into the common till the third of october, would be good;
and yet it would be hard to shew the reason why that day in particular
is fixed upon, rather than the day before or after. But a custom that
no cattle shall be put in till the lord of the manor has first put in
his, is unreasonable, and therefore bad: for peradventure the lord
will never put in his; and then the tenants will lose all their
profits[n].
[Footnote l: Litt. §. 212.]
[Footnote m: 1 Inst. 62.]
[Footnote n: Co. Copyh. §. 33.]
5. CUSTOMS ought to be _certain_. A custom, that lands shall descend
to the most worthy of the owner's blood, is void; for how shall this
worth be determined? But a custom to descend to the next male of the
blood, exclusive of females, is certain, and therefore good[o]. A
custom, to pay two pence an acre in lieu of tythes, is good; but to
pay sometimes two pence and sometimes three pence, as the occupier of
the land pleases, is bad for it's uncertainty. Yet a custom, to pay a
year's improved value for a fine on a copyhold estate, is good: though
the value is a thing uncertain. For the value may at any time be
ascertained; and the maxim of law is, _id certum est, quod certum
reddi potest_.
[Footnote o: 1 Roll. Abr. 565.]
6. CUSTOMS, though established by consent, must be (when established)
_compulsory_; and not left to the option of every man, whether he will
use them or no. Therefore a custom, that all the inhabitants shall be
rated toward the maintenance of a bridge, will be good; but a custom,
that every man is to contribute thereto at his own pleasure, is idle
and absurd, and, indeed, no custom at all.
7. LASTLY, customs must be _consistent_ with each other: one custom
cannot be set up in opposition to another. For if both are really
customs, then both are of equal antiquity, and both established by
mutual consent: which to say of contradictory customs is absurd.
Therefore, if one man prescribes that by custom he has a right to have
windows looking into another's garden; the other cannot claim a right
by custom to stop up or obstruct those windows: for these two
contradictory customs cannot both be good, nor both stand together. He
ought rather to deny the existence of the former custom[p].
[Footnote p: 9 Rep. 58.]
NEXT, as to the allowance of special customs. Customs, in derogation
of the common law, must be construed strictly. Thus, by the custom of
gavelkind, an infant of fifteen years may by one species of
conveyance (called a deed of feoffment) convey away his lands in fee
simple, or for ever. Yet this custom does not impower him to use any
other conveyance, or even to lease them for seven years: for the
custom must be strictly pursued[q]. And, moreover, all special customs
must submit to the king's prerogative. Therefore, if the king
purchases lands of the nature of gavelkind, where all the sons inherit
equally; yet, upon the king's demise, his eldest son shall succeed to
those lands alone[r]. And thus much for the second part of the _leges
non scriptae_, or those particular customs which affect particular
persons or districts only.
[Footnote q: Co. Cop. §. 33.]
[Footnote r: Co. Litt. 15 _b._]
III. THE third branch of them are those peculiar laws, which by custom
are adopted and used only in certain peculiar courts and
jurisdictions. And by these I understand the civil and canon laws.
IT may seem a little improper at first view to rank these laws under
the head of _leges non scriptae_, or unwritten laws, seeing they are
set forth by authority in their pandects, their codes, and their
institutions; their councils, decrees, and decretals; and enforced by
an immense number of expositions, decisions, and treatises of the
learned in both branches of the law. But I do this, after the example
of sir Matthew Hale[s], because it is most plain, that it is not on
account of their being _written_ laws, that either the canon law, or
the civil law, have any obligation within this kingdom; neither do
their force and efficacy depend upon their own intrinsic authority;
which is the case of our written laws, or acts of parliament. They
bind not the subjects of England, because their materials were
collected from popes or emperors; were digested by Justinian, or
declared to be authentic by Gregory. These considerations give them no
authority here: for the legislature of England doth not, nor ever did,
recognize any foreign power, as superior or equal to it in this
kingdom; or as having the right to give law to any, the meanest, of
it's subjects. But all the strength that either the papal or imperial
laws have obtained in this realm, or indeed in any other kingdom in
Europe, is only because they have been admitted and received by
immemorial usage and custom in some particular cases, and some
particular courts; and then they form a branch of the _leges non
scriptae_, or customary law: or else, because they are in some other
cases introduced by consent of parliament, and then they owe their
validity to the _leges scriptae_, or statute law. This is expressly
declared in those remarkable words of the statute 25 Hen. VIII. c. 21.
addressed to the king's royal majesty.--"This your grace's realm,
recognizing no superior under God but only your grace, hath been and
is free from subjection to any man's laws, but only to such as have
been devised, made, and ordained _within_ this realm for the wealth of
the same; or to such other, as by sufferance of your grace and your
progenitors, the people of this your realm, have taken at their free
liberty, by their own consent, to be used among them; and have bound
themselves by long use and custom to the observance of the same: not
as to the observance of the laws of any foreign prince, potentate, or
prelate; but as to the _customed_ and antient laws of this realm,
originally established as laws of the same, by the said sufferance,
consents, and custom; and none otherwise."
[Footnote s: Hist. C.L. c. 2.]
BY the civil law, absolutely taken, is generally understood the civil
or municipal law of the Roman empire, as comprized in the institutes,
the code, and the digest of the emperor Justinian, and the novel
constitutions of himself and some of his successors. Of which, as
there will frequently be occasion to cite them, by way of illustrating
our own laws, it may not be amiss to give a short and general account.
THE Roman law (founded first upon the regal constitutions of their
antient kings, next upon the twelve tables of the _decemviri_, then
upon the laws or statutes enacted by the senate or people, the edicts
of the praetor, and the _responsa prudentum_ or opinions of learned
lawyers, and lastly upon the imperial decrees, or constitutions of
successive emperors) had grown to so great a bulk, or as Livy
expresses it[t], "_tam immensus aliarum super alias acervatarum legum
cumulus_," that they were computed to be many camels' load by an
author who preceded Justinian[u]. This was in part remedied by the
collections of three private lawyers, Gregorius, Hermogenes, and
Papirius; and then by the emperor Theodosius the younger, by whose
orders a code was compiled, _A.D._ 438, being a methodical collection
of all the imperial constitutions then in force: which Theodosian code
was the only book of civil law received as authentic in the western
part of Europe till many centuries after; and to this it is probable
that the Franks and Goths might frequently pay some regard, in framing
legal constitutions for their newly erected kingdoms. For Justinian
commanded only in the eastern remains of the empire; and it was under
his auspices, that the present body of civil law was compiled and
finished by Tribonian and other lawyers, about the year 533.
[Footnote t: _l._ 3. _c._ 34.]
[Footnote u: Taylor's elements of civil law. 17.]
THIS consists of, 1. The institutes, which contain the elements or
first principles of the Roman law, in four books. 2. The digests, or
pandects, in fifty books, containing the opinions and writings of
eminent lawyers, digested in a systematical method. 3. A new code, or
collection of imperial constitutions, the lapse of a whole century
having rendered the former code, of Theodosius, imperfect. 4. The
novels, or new constitutions, posterior in time to the other books,
and amounting to a supplement to the code; containing new decrees of
successive emperors, as new questions happened to arise. These form
the body of Roman law, or _corpus juris civilis_, as published about
the time of Justinian: which however fell soon into neglect and
oblivion, till about the year 1130, when a copy of the digests was
found at Amalfi in Italy; which accident, concurring with the policy
of the Romish ecclesiastics[w], suddenly gave new vogue and authority
to the civil law, introduced it into several nations, and occasioned
that mighty inundation of voluminous comments, with which this system
of law, more than any other, is now loaded.
[Footnote w: See §. 1. pag. 18.]
THE canon law is a body of Roman ecclesiastical law, relative to such
matters as that church either has, or pretends to have, the proper
jurisdiction over. This is compiled from the opinions of the antient
Latin fathers, the decrees of general councils, the decretal epistles
and bulles of the holy see. All which lay in the same disorder and
confusion as the Roman civil law, till about the year 1151, one
Gratian an Italian monk, animated by the discovery of Justinian's
pandects at Amalfi, reduced them into some method in three books,
which he entitled _concordia discordantium canonum_, but which are
generally known by the name of _decretum Gratiani_. These reached as
low as the time of pope Alexander III. The subsequent papal decrees,
to the pontificate of Gregory IX, were published in much the same
method under the auspices of that pope, about the year 1230, in five
books entitled _decretalia Gregorii noni_. A sixth book was added by
Boniface VIII, about the year 1298, which is called _sextus
decretalium_. The Clementine constitutions, or decrees of Clement V,
were in like manner authenticated in 1317 by his successor John XXII;
who also published twenty constitutions of his own, called the
_extravagantes Joannis_: all which in some measure answer to the
novels of the civil law. To these have been since added some decrees
of later popes in five books, called _extravagantes communes_. And all
these together, Gratian's decree, Gregory's decretals, the sixth
decretal, the Clementine constitutions, and the extravagants of John
and his successors, form the _corpus juris canonici_, or body of the
Roman canon law.
BESIDES these pontificial collections, which during the times of
popery were received as authentic in this island, as well as in other
parts of christendom, there is also a kind of national canon law,
composed of _legatine_ and _provincial_ constitutions, and adapted
only to the exigencies of this church and kingdom. The _legatine_
constitutions were ecclesiastical laws, enacted in national synods,
held under the cardinals Otho and Othobon, legates from pope Gregory
IX and pope Adrian IV, in the reign of king Henry III about the years
1220 and 1268. The _provincial_ constitutions are principally the
decrees of provincial synods, held under divers arch-bishops of
Canterbury, from Stephen Langton in the reign of Henry III to Henry
Chichele in the reign of Henry V; and adopted also by the province of
York[x] in the reign of Henry VI. At the dawn of the reformation, in
the reign of king Henry VIII, it was enacted in parliament[y] that a
review should be had of the canon law; and, till such review should be
made, all canons, constitutions, ordinances, and synodals provincial,
being then already made, and not repugnant to the law of the land or
the king's prerogative, should still be used and executed. And, as no
such review has yet been perfected, upon this statute now depends the
authority of the canon law in England.
[Footnote x: Burn's eccl. law, pref. viii.]
[Footnote y: Statute 25 Hen. VIII. c. 19; revived and confirmed by 1
Eliz. c. 1.]
AS for the canons enacted by the clergy under James I, in the year
1603, and never confirmed in parliament, it has been solemnly adjudged
upon the principles of law and the constitution, that where they are
not merely declaratory of the antient canon law, but are introductory
of new regulations, they do not bind the laity[z]; whatever regard the
clergy may think proper to pay them.
[Footnote z: Stra. 1057.]
THERE are four species of courts in which the civil and canon laws are
permitted under different restrictions to be used. 1. The courts of
the arch-bishops and bishops and their derivative officers, usually
called in our law courts christian, _curiae christianitatis_, or the
ecclesiastical courts. 2. The military courts. 3. The courts of
admiralty. 4. The courts of the two universities. In all, their
reception in general, and the different degrees of that reception, are
grounded intirely upon custom; corroborated in the latter instance by
act of parliament, ratifying those charters which confirm the
customary law of the universities. The more minute consideration of
these will fall properly under that part of these commentaries which
treats of the jurisdiction of courts. It will suffice at present to
remark a few particulars relative to them all, which may serve to
inculcate more strongly the doctrine laid down concerning them[a].
[Footnote a: Hale Hist. c. 2.]
1. AND, first, the courts of common law have the superintendency over
these courts; to keep them within their jurisdictions, to determine
wherein they exceed them, to restrain and prohibit such excess, and
(in case of contumacy) to punish the officer who executes, and in some
cases the judge who enforces, the sentence so declared to be illegal.
2. THE common law has reserved to itself the exposition of all such
acts of parliament, as concern either the extent of these courts or
the matters depending before them. And therefore if these courts
either refuse to allow these acts of parliament, or will expound them
in any other sense than what the common law puts upon them, the king's
courts at Westminster will grant prohibitions to restrain and control
them.
3. AN appeal lies from all these courts to the king, in the last
resort; which proves that the jurisdiction exercised in them is
derived from the crown of England, and not from any foreign potentate,
or intrinsic authority of their own.--And, from these three strong
marks and ensigns of superiority, it appears beyond a doubt that the
civil and canon laws, though admitted in some cases by custom in some
courts, are only subordinate and _leges sub graviori lege_; and that,
thus admitted, restrained, altered, new-modelled, and amended, they
are by no means with us a distinct independent species of laws, but
are inferior branches of the customary or unwritten laws of England,
properly called, the king's ecclesiastical, the king's military, the
king's maritime, or the king's academical, laws.
LET us next proceed to the _leges scriptae_, the written laws of the
kingdom, which are statutes, acts, or edicts, made by the king's
majesty by and with the advice and content of the lords spiritual and
temporal and commons in parliament assembled[b]. The oldest of these
now extant, and printed in our statute books, is the famous _magna
carta_, as confirmed in parliament 9 Hen. III: though doubtless there
were many acts before that time, the records of which are now lost,
and the determinations of them perhaps at present currently received
for the maxims of the old common law.
[Footnote b: 8 Rep. 20.]
THE manner of making these statutes will be better considered
hereafter, when we examine the constitution of parliaments. At present
we will only take notice of the different kinds of statutes; and of
some general rules with regard to their construction[c].
[Footnote c: The method of citing these acts of parliament is various.
Many of our antient statutes are called after the name of the place,
where the parliament was held that made them: as the statutes of
Merton and Marlbridge, of Westminster, Glocester, and Winchester.
Others are denominated entirely from their subject; as the statutes of
Wales and Ireland, the _articuli cleri_, and the _praerogativa regis_.
Some are distinguished by their initial words, a method of citing very
antient; being used by the Jews in denominating the books of the
pentateuch; by the christian church in distinguishing their hymns and
divine offices; by the Romanists in describing their papal bulles; and
in short by the whole body of antient civilians and canonists, among
whom this method of citation generally prevailed, not only with regard
to chapters, but inferior sections also: in imitation of all which we
still call some of our old statutes by their initial words, as the
statute of _quia emptores_, and that of _circumspecte agatis_. But the
most usual method of citing them, especially since the time of Edward
the second, is by naming the year of the king's reign in which the
statute was made, together with the chapter, or particular act,
according to it's numeral order; as, 9 Geo. II. c. 4. For all the acts
of one session of parliament taken together make properly but one
statute; and therefore when two sessions have been held in one year,
we usually mention stat. 1. or 2. Thus the bill of rights is cited, as
1 W. & M. st. 2. c. 2. signifying that it is the second chapter or
act, of the second statute or the laws made in the second sessions of
parliament, held in the first year of king William and queen Mary.]
FIRST, as to their several kinds. Statutes are either _general_ or
_special_, _public_ or _private_. A general or public act is an
universal rule, that regards the whole community; and of these the
courts of law are bound to take notice judicially and _ex officio_;
without the statute being particularly pleaded, or formally set forth
by the party who claims an advantage under it. Special or private acts
are rather exceptions than rules, being those which only operate upon
particular persons, and private concerns; such as the Romans intitled
_senatus-decreta_, in contradistinction to the _senatus-consulta_,
which regarded the whole community[d]: and of these the judges are not
bound to take notice, unless they be formally shewn and pleaded. Thus,
to shew the distinction, the statute 13 Eliz. c. 10. to prevent
spiritual persons from making leases for longer terms than twenty one
years, or three lives, is a public act; it being a rule prescribed to
the whole body of spiritual persons in the nation: but an act to
enable the bishop of Chester to make a lease to A.B. for sixty years,
is an exception to this rule; it concerns only the parties and the
bishop's successors; and is therefore a private act.
[Footnote d: Gravin. _Orig._ 1. §. 24.]
STATUTES also are either _declaratory_ of the common law, or
_remedial_ of some defects therein. Declaratory, where the old custom
of the kingdom is almost fallen into disuse, or become disputable; in
which case the parliament has thought proper, _in perpetuum rei
testimonium_, and for avoiding all doubts and difficulties, to declare
what the common law is and ever hath been. Thus the statute of
treasons, 25 Edw. III. cap. 2. doth not make any new species of
treasons; but only, for the benefit of the subject, declares and
enumerates those several kinds of offence, which before were treason
at the common law. Remedial statutes are those which are made to
supply such defects, and abridge such superfluities, in the common
law, as arise either from the general imperfection of all human laws,
from change of time and circumstances, from the mistakes and unadvised
determinations of unlearned judges, or from any other cause
whatsoever. And, this being done either by enlarging the common law
where it was too narrow and circumscribed, or by restraining it where
it was too lax and luxuriant, this has occasioned another subordinate
division of remedial acts of parliament into _enlarging_ and
_restraining_ statutes. To instance again in the case of treason.
Clipping the current coin of the kingdom was an offence not
sufficiently guarded against by the common law: therefore it was
thought expedient by statute 5 Eliz. c. 11. to make it high treason,
which it was not at the common law: so that this was an _enlarging_
statute. At common law also spiritual corporations might lease out
their estates for any term of years, till prevented by the statute 13
Eliz. beforementioned: this was therefore a _restraining_ statute.
SECONDLY, the rules to be observed with regard to the construction of
statutes are principally these which follow.
1. THERE are three points to be considered in the construction of all
remedial statutes; the old law, the mischief, and the remedy: that is,
how the common law stood at the making of the act; what the mischief
was, for which the common law did not provide; and what remedy the
parliament hath provided to cure this mischief. And it is the business
of the judges so to construe the act, as to suppress the mischief and
advance the remedy[e]. Let us instance again in the same restraining
statute of the 13 Eliz. By the common law ecclesiastical corporations
might let as long leases as they thought proper: the mischief was,
that they let long and unreasonable leases, to the impoverishment of
their successors: the remedy applied by the statute was by making void
all leases by ecclesiastical bodies for longer terms than three lives
or twenty one years. Now in the construction of this statute it is
held, that leases, though for a longer term, if made by a bishop, are
not void during the bishop's life; or, if made by a dean with
concurrence of his chapter, they are not void during the life of the
dean: for the act was made for the benefit and protection of the
successor[f]. The mischief is therefore sufficiently suppressed by
vacating them after the death of the grantor; but the leases, during
their lives, being not within the mischief, are not within the remedy.
[Footnote e: 3 Rep. 7 _b._ Co. Litt. 11 _b._ 42.]
[Footnote f: Co. Litt. 45. 3 Rep. 60.]
2. A STATUTE, which treats of things or persons of an inferior rank,
cannot by any _general words_ be extended to those of a superior. So a
statute, treating of "deans, prebendaries, parsons, vicars, _and
others having spiritual promotion_," is held not to extend to bishops,
though they have spiritual promotion; deans being the highest persons
named, and bishops being of a still higher order[g].
[Footnote g: 2 Rep. 46.]
3. PENAL statutes must be construed strictly. Thus a statute 1 Edw.
VI. having enacted that those who are convicted of stealing _horses_
should not have the benefit of clergy, the judges conceived that this
did not extend to him that should steal but _one horse_, and therefore
procured a new act for that purpose in the following year[h]. And, to
come nearer our own times, by the statute 14 Geo. II. c. 6. stealing
sheep, _or other cattle_, was made felony without benefit of clergy.
But these general words, "or other cattle," being looked upon as much
too loose to create a capital offence, the act was held to extend to
nothing but mere sheep. And therefore, in the next sessions, it was
found necessary to make another statute, 15 Geo. II. c. 34. extending
the former to bulls, cows, oxen, steers, bullocks, heifers, calves,
and lambs, by name.
[Footnote h: Bac. Elem. c. 12.]
4. STATUTES against frauds are to be liberally and beneficially
expounded. This may seem a contradiction to the last rule; most
statutes against frauds being in their consequences penal. But this
difference is here to be taken: where the statute acts upon the
offender, and inflicts a penalty, as the pillory or a fine, it is then
to be taken strictly: but when the statute acts upon the offence, by
setting aside the fraudulent transaction, here it is to be construed
liberally. Upon this footing the statute of 13 Eliz. c. 5. which
avoids all gifts of goods, &c, made to defraud creditors _and
others_, was held to extend by the general words to a gift made to
defraud the queen of a forfeiture[i].
[Footnote i: 3 Rep. 82.]
5. ONE part of a statute must be so construed by another, that the
whole may if possible stand: _ut res magis valeat, quam pereat_. As if
land be vested in the king and his heirs by act of parliament, saving
the right of A; and A has at that time a lease of it for three years:
here A shall hold it for his term of three years, and afterwards it
shall go to the king. For this interpretation furnishes matter for
every clause of the statute to work and operate upon. But
6. A SAVING, totally repugnant to the body of the act, is void. If
therefore an act of parliament vests land in the king and his heirs,
saving the right of all persons whatsoever; or vests the land of A in
the king, saving the right of A: in either of these cases the saving
is totally repugnant to the body of the statute, and (if good) would
render the statute of no effect or operation; and therefore the saving
is void, and the land vests absolutely in the king[k].
[Footnote k: 1 Rep. 47.]
7. WHERE the common law and a statute differ, the common law gives
place to the statute; and an old statute gives place to a new one. And
this upon the general principle laid down in the last section, that
"_leges posteriores priores contrarias abrogant_." But this is to be
understood, only when the latter statute is couched in negative terms,
or by it's matter necessarily implies a negative. As if a former act
says, that a juror upon such a trial shall have twenty pounds a year;
and a new statute comes and says, he shall have twenty marks: here the
latter statute, though it does not express, yet necessarily implies a
negative, and virtually repeals the former. For if twenty marks be
made qualification sufficient, the former statute which requires
twenty pounds is at an end[l]. But if both acts be merely affirmative,
and the substance such that both may stand together, here the latter
does not repeal the former, but they shall both have a concurrent
efficacy. If by a former law an offence be indictable at the quarter
sessions, and a latter law makes the same offence indictable at the
assises; here the jurisdiction of the sessions is not taken away, but
both have a concurrent jurisdiction, and the offender may be
prosecuted at either; unless the new statute subjoins express negative
words, as, that the offence shall be indictable at the assises, _and
not elsewhere_[m].
[Footnote l: Jenk. Cent. 2. 73.]
[Footnote m: 11 Rep. 63.]
8. IF a statute, that repeals another, is itself repealed afterwards,
the first statute is hereby revived, without any formal words for that
purpose. So when the statutes of 26 and 35 Hen. VIII, declaring the
king to be the supreme head of the church, were repealed by a statute
1 & 2 Ph. and Mary, and this latter statute was afterwards repealed by
an act of 1 Eliz. there needed not any express words of revival in
queen Elizabeth's statute, but these acts of king Henry were impliedly
and virtually revived[n].
[Footnote n: 4 Inst. 325.]
9. ACTS of parliament derogatory from the power of subsequent
parliaments bind not. So the statute 11 Hen. VII. c. 1. which directs,
that no person for assisting a king _de facto_ shall be attainted of
treason by act of parliament or otherwise, is held to be good only as
to common prosecutions for high treason; but will not restrain or clog
any parliamentary attainder[o]. Because the legislature, being in
truth the sovereign power, is always of equal, always of absolute
authority: it acknowleges no superior upon earth, which the prior
legislature must have been, if it's ordinances could bind the present
parliament. And upon the same principle Cicero, in his letters to
Atticus, treats with a proper contempt these restraining clauses which
endeavour to tie up the hands of succeeding legislatures. "When you
repeal the law itself, says he, you at the same time repeal the
prohibitory clause, which guards against such repeal[p]."
[Footnote o: 4 Inst. 43.]
[Footnote p: _Cum lex abrogatur, illud ipsum abrogatur, quo non eam
abrogari oporteat._ _l._ 3. _ep._ 23.]
10. LASTLY, acts of parliament that are impossible to be performed are
of no validity; and if there arise out of them collaterally any absurd
consequences, manifestly contradictory to common reason, they are,
with regard to those collateral consequences, void. I lay down the
rule with these restrictions; though I know it is generally laid down
more largely, that acts of parliament contrary to reason are void. But
if the parliament will positively enact a thing to be done which is
unreasonable, I know of no power that can control it: and the examples
usually alleged in support of this sense of the rule do none of them
prove, that where the main object of a statute is unreasonable the
judges are at liberty to reject it; for that were to set the judicial
power above that of the legislature, which would be subversive of all
government. But where some collateral matter arises out of the general
words, and happens to be unreasonable; there the judges are in decency
to conclude that this consequence was not foreseen by the parliament,
and therefore they are at liberty to expound the statute by equity,
and only _quoad hoc_ disregard it. Thus if an act of parliament gives
a man power to try all causes, that arise within his manor of Dale;
yet, if a cause should arise in which he himself is party, the act is
construed not to extend to that; because it is unreasonable that any
man should determine his own quarrel[q]. But, if we could conceive it
possible for the parliament to enact, that he should try as well his
own causes as those of other persons, there is no court that has power
to defeat the intent of the legislature, when couched in such evident
and express words, as leave no doubt whether it was the intent of the
legislature or no.
[Footnote q: 8 Rep. 118.]
THESE are the several grounds of the laws of England: over and above
which, equity is also frequently called in to assist, to moderate,
and to explain it. What equity is, and how impossible in it's very
essence to be reduced to stated rules, hath been shewn in the
preceding section. I shall therefore only add, that there are courts
of this kind established for the benefit of the subject, to correct
and soften the rigor of the law, when through it's generality it bears
too hard in particular cases; to detect and punish latent frauds,
which the law is not minute enough to reach; to enforce the execution
of such matters of trust and confidence, as are binding in conscience,
though perhaps not strictly legal; to deliver from such dangers as are
owing to misfortune or oversight; and, in short, to relieve in all
such cases as are, _bona fide_, objects of relief. This is the
business of our courts of equity, which however are only conversant in
matters of property. For the freedom of our constitution will not
permit, that in criminal cases a power should be lodged in any judge,
to construe the law otherwise than according to the letter. This
caution, while it admirably protects the public liberty, can never
bear hard upon individuals. A man cannot suffer _more_ punishment than
the law assigns, but he may suffer _less_. The laws cannot be strained
by partiality to inflict a penalty beyond what the letter will
warrant; but in cases where the letter induces any apparent hardship,
the crown has the power to pardon.
SECTION THE FOURTH.
OF THE COUNTRIES SUBJECT TO THE LAWS OF ENGLAND.
THE kingdom of England, over which our municipal laws have
jurisdiction, includes not, by the common law, either Wales, Scotland,
or Ireland, or any other part of the king's dominions, except the
territory of England only. And yet the civil laws and local customs of
this territory do now obtain, in part or in all, with more or less
restrictions, in these and many other adjacent countries; of which it
will be proper first to take a review, before we consider the kingdom
of England itself, the original and proper subject of these laws.
WALES had continued independent of England, unconquered and
uncultivated, in the primitive pastoral state which Caesar and Tacitus
ascribe to Britain in general, for many centuries; even from the time
of the hostile invasions of the Saxons, when the ancient and christian
inhabitants of the island retired to those natural intrenchments, for
protection from their pagan visitants. But when these invaders
themselves were converted to christianity, and settled into regular
and potent governments, this retreat of the antient Britons grew every
day narrower; they were overrun by little and little, gradually driven
from one fastness to another, and by repeated losses abridged of their
wild independence. Very early in our history we find their princes
doing homage to the crown of England; till at length in the reign of
Edward the first, who may justly be stiled the conqueror of Wales, the
line of their antient princes was abolished, and the king of
England's eldest son became, as a matter of course, their titular
prince: the territory of Wales being then entirely annexed to the
dominion of the crown of England[a], or, as the statute of Rutland[b]
expresses it, "_terra Walliae cum incolis suis, prius regi jure
feodali subjecta_, (of which homage was the sign) _jam in proprietatis
dominium totaliter et cum integritate conversa est, et coronae regni
Angliae tanquam pars corporis ejusdem annexa et unita_." By the
statute also of Wales[c] very material alterations were made in divers
parts of their laws, so as to reduce them nearer to the English
standard, especially in the forms of their judicial proceedings: but
they still retained very much of their original polity, particularly
their rule of inheritance, viz. that their lands were divided equally
among all the issue male, and did not descend to the eldest son alone.
By other subsequent statutes their provincial immunities were still
farther abridged: but the finishing stroke to their independency, was
given by the statute 27 Hen. VIII. c. 26. which at the same time gave
the utmost advancement to their civil prosperity, by admitting them to
a thorough communication of laws with the subjects of England. Thus
were this brave people gradually conquered into the enjoyment of true
liberty; being insensibly put upon the same footing, and made
fellow-citizens with their conquerors. A generous method of triumph,
which the republic of Rome practised with great success; till she
reduced all Italy to her obedience, by admitting the vanquished states
to partake of the Roman privileges.
[Footnote a: Vaugh. 400.]
[Footnote b: 10 Edw. I.]
[Footnote c: 12 Edw. I.]
IT is enacted by this statute 27 Hen. VIII, 1. That the dominion of
Wales shall be for ever united to the kingdom of England. 2. That all
Welchmen born shall have the same liberties as other the king's
subjects. 3. That lands in Wales shall be inheritable according to the
English tenures and rules of descent. 4. That the laws of England, and
no other, shall be used in Wales: besides many other regulations of
the police of this principality. And the statute 34 & 35 Hen. VIII.
c. 26. confirms the same, adds farther regulations, divides it into
twelve shires, and, in short, reduces it into the same order in which
it stands at this day; differing from the kingdom of England in only a
few particulars, and those too of the nature of privileges, (such as
having courts within itself, independent of the process of Westminster
hall) and some other immaterial peculiarities, hardly more than are to
be found in many counties of England itself.
THE kingdom of Scotland, notwithstanding the union of the crowns on
the accession of their king James VI to that of England, continued an
entirely separate and distinct kingdom for above a century, though an
union had been long projected; which was judged to be the more easy to
be done, as both kingdoms were antiently under the same government,
and still retained a very great resemblance, though far from an
identity, in their laws. By an act of parliament 1 Jac. I. c. 1. it is
declared, that these two, mighty, famous, and antient kingdoms were
formerly one. And sir Edward Coke observes[d], how marvellous a
conformity there was, not only in the religion and language of the two
nations, but also in their antient laws, the descent of the crown,
their parliaments, their titles of nobility, their officers of state
and of justice, their writs, their customs, and even the language of
their laws. Upon which account he supposes the common law of each to
have been originally the same, especially as their most antient and
authentic book, called _regiam majestatem_ and containing the rules of
_their_ antient common law, is extremely similar that of Glanvil,
which contains the principles of _ours_, as it stood in the reign of
Henry II. And the many diversities, subsisting between the two laws at
present, may be well enough accounted for, from a diversity of
practice in two large and uncommunicating jurisdictions, and from the
acts of two distinct and independent parliaments, which have in many
points altered and abrogated the old common law of both kingdoms.
[Footnote d: 4 Inst. 345.]
HOWEVER sir Edward Coke, and the politicians of that time, conceived
great difficulties in carrying on the projected union: but these were
at length overcome, and the great work was happily effected in 1707, 5
Anne; when twenty five articles of union were agreed to by the
parliaments of both nations: the purport of the most considerable
being as follows:
1. THAT on the first of May 1707, and for ever after, the kingdoms of
England and Scotland, shall be united into one kingdom, by the name of
Great Britain.
2. THE succession to the monarchy of Great Britain shall be the same
as was before settled with regard to that of England.
3. THE united kingdom shall be represented by one parliament.
4. THERE shall be a communication of all rights and privileges between
the subjects of both kingdoms, except where it is otherwise agreed.
9. WHEN England raises 2,000,000_l._ by a land tax, Scotland shall
raise 48,000_l._
16, 17. THE standards of the coin, of weights, and of measures, shall
be reduced to those of England, throughout the united kingdoms.
18. THE laws relating to trade, customs, and the excise, shall be the
same in Scotland as in England. But all the other laws of Scotland
shall remain in force; but alterable by the parliament of Great
Britain. Yet with this caution; that laws relating to public policy
are alterable at the discretion of the parliament; laws relating to
private rights are not to be altered but for the evident utility of
the people of Scotland.
22. SIXTEEN peers are to be chosen to represent the peerage of
Scotland in parliament, and forty five members to sit in the house of
commons.
23. THE sixteen peers of Scotland shall have all privileges of
parliament: and all peers of Scotland shall be peers of Great Britain,
and rank next after those of the same degree at the time of the union,
and shall have all privileges of peers, except sitting in the house of
lords and voting on the trial of a peer.
THESE are the principal of the twenty five articles of union, which
are ratified and confirmed by statute 5 Ann. c. 8. in which statute
there are also two acts of parliament recited; the one of Scotland,
whereby the church of Scotland, and also the four universities of that
kingdom, are established for ever, and all succeeding sovereigns are
to take an oath inviolably to maintain the same; the other of England,
5 Ann. c. 6. whereby the acts of uniformity of 13 Eliz. and 13 Car.
II. (except as the same had been altered by parliament at that time)
and all other acts then in force for the preservation of the church of
England, are declared perpetual; and it is stipulated, that every
subsequent king and queen shall take an oath inviolably to maintain
the same within England, Ireland, Wales, and the town of Berwick upon
Tweed. And it is enacted, that these two acts "shall for ever be
observed as fundamental and essential conditions of the union."
UPON these articles, and act of union, it is to be observed, 1. That
the two kingdoms are now so inseparably united, that nothing can ever
disunite them again, but an infringement of those points which, when
they were separate and independent nations, it was mutually stipulated
should be "fundamental and essential conditions of the union." 2. That
whatever else may be deemed "fundamental and essential conditions,"
the preservation of the two churches, of England and Scotland, in the
same state that they were in at the time of the union, and the
maintenance of the acts of uniformity which establish our common
prayer, are expressly declared so to be. 3. That therefore any
alteration in the constitutions of either of those churches, or in the
liturgy of the church of England, would be an infringement of these
"fundamental and essential conditions," and greatly endanger the
union. 4. That the municipal laws of Scotland are ordained to be still
observed in that part of the island, unless altered by parliament;
and, as the parliament has not yet thought proper, except in a few
instances, to alter them, they still (with regard to the particulars
unaltered) continue in full force. Wherefore the municipal or common
laws of England are, generally speaking, of no force or validity in
Scotland; and, of consequence, in the ensuing commentaries, we shall
have very little occasion to mention, any farther than sometimes by
way of illustration, the municipal laws of that part of the united
kingdoms.
THE town of Berwick upon Tweed, though subject to the crown of England
ever since the conquest of it in the reign of Edward IV, is not part
of the kingdom of England, nor subject to the common law; though it is
subject to all acts of parliament, being represented by burgesses
therein. And therefore it was declared by statute 20 Geo. II. c. 42.
that where England only is mentioned in any act of parliament, the
same notwithstanding shall be deemed to comprehend the dominion of
Wales, and town of Berwick upon Tweed. But the general law there used
is the Scots law, and the ordinary process of the courts of
Westminster-hall is there of no authority[e].
[Footnote e: 1 Sid. 382. 2 Show. 365.]
AS to Ireland, that is still a distinct kingdom; though a dependent,
subordinate kingdom. It was only entitled the dominion or lordship of
Ireland[f], and the king's stile was no other than _dominus
Hiberniae_, lord of Ireland, till the thirty third year of king Henry
the eighth; when he assumed the title of king, which is recognized by
act of parliament 35 Hen. VIII. c. 3. But, as Scotland and England are
now one and the same kingdom, and yet differ in their municipal laws;
so England and Ireland are, on the other hand, distinct kingdoms, and
yet in general agree in their laws. The inhabitants of Ireland are,
for the most part, descended from the English, who planted it as a
kind of colony, after the conquest of it by king Henry the second, at
which time they carried over the English laws along with them. And as
Ireland, thus conquered, planted, and governed, still continues in a
state of dependence, it must necessarily conform to, and be obliged by
such laws as the superior state thinks proper to prescribe.
[Footnote f: _Stat. Hiberniae._ 14 Hen. III.]
AT the time of this conquest the Irish were governed by what they
called the Brehon law, so stiled from the Irish name of judges, who
were denominated Brehons[g]. But king John in the twelfth year of his
reign went into Ireland, and carried over with him many able sages of
the law; and there by his letters patent, in right of the dominion of
conquest, is said to have ordained and established that Ireland should
be governed by the laws of England[h]: which letters patent sir Edward
Coke[i] apprehends to have been there confirmed in parliament. But to
this ordinance many of the Irish were averse to conform, and still
stuck to their Brehon law: so that both Henry the third[k] and Edward
the first[l] were obliged to renew the injunction; and at length in a
parliament holden at Kilkenny, 40 Edw. III, under Lionel duke of
Clarence, the then lieutenant of Ireland, the Brehon law was formally
abolished, it being unanimously declared to be indeed no law, but a
lewd custom crept in of later times. And yet, even in the reign of
queen Elizabeth, the wild natives still kept and preserved their
Brehon law; which is described[m] to have been "a rule of right
unwritten, but delivered by tradition from one to another, in which
oftentimes there appeared great shew of equity in determining the
right between party and party, but in many things repugnant quite
both to God's law and man's." The latter part of which character is
alone allowed it under Edward the first and his grandson.
[Footnote g: 4 Inst. 358. Edm. Spenser's state of Ireland. p. 1513.
edit. Hughes.]
[Footnote h: Vaugh. 294. 2 Pryn. Rec. 85.]
[Footnote i: 1 Inst. 341.]
[Footnote k: _A.R._ 30. 1 Rym. _Foed._ 442.]
[Footnote l: _A.R._ 5.--_pro eo quod leges quibus utuntur Hybernici
Deo detestabiles existunt, et omni juri dissonant, adeo quod leges
censeri non debeant--nobis et consilio nostro satis videtur expediens
eisdem utendas concedere leges Anglicanas._ 3 Pryn. Rec. 1218.]
[Footnote m: Edm. Spenser. _ibid._]
BUT as Ireland was a distinct dominion, and had parliaments of it's
own, it is to be observed, that though the immemorial customs, or
common law, of England were made the rule of justice in Ireland also,
yet no acts of the English parliament, since the twelfth of king John,
extended into that kingdom; unless it were specially named, or
included under general words, such as, "within any of the king's
dominions." And this is particularly expressed, and the reason given
in the year book[n]: "Ireland hath a parliament of it's own, and
maketh and altereth laws; and our statutes do not bind them, because
they do not send representatives to our parliament: but their persons
are the king's subjects, like as the inhabitants of Calais, Gascoigny,
and Guienne, while they continued under the king's subjection." The
method made use of in Ireland, as stated by sir Edward Coke[o], of
making statutes in their parliaments, according to Poynings' law, of
which hereafter, is this: 1. The lord lieutenant and council of
Ireland must certify to the king under the great seal of Ireland the
acts proposed to be passed. 2. The king and council of England are to
consider, approve, alter, or reject the said acts; and certify them
back again under the great seal of England. And then, 3. They are to
be proposed, received, or rejected in the parliament of Ireland. By
this means nothing was left to the parliament in Ireland, but a bare
negative or power of rejecting, not of proposing, any law. But the
usage now is, that bills are often framed in either house of
parliament under the denomination of heads for a bill or bills; and in
that shape they are offered to the consideration of the lord
lieutenant and privy council, who then reject them at pleasure,
without transmitting them to England.
[Footnote n: 2 Ric. III. pl. 12.]
[Footnote o: 4 Inst. 353.]
BUT the Irish nation, being excluded from the benefit of the English
statutes, were deprived of many good and profitable laws, made for
the improvement of the common law: and, the measure of justice in both
kingdoms becoming thereby no longer uniform, therefore in the 10 Hen.
VII. a set of statutes passed in Ireland, (sir Edward Poynings being
then lord deputy, whence it is called Poynings' law) by which it was,
among other things, enacted, that all acts of parliament before made
in England, should be of force within the realm of Ireland[p]. But, by
the same rule that no laws made in England, between king John's time
and Poynings' law, were then binding in Ireland, it follows that no
acts of the English parliament made since the 10 Hen. VII. do now bind
the people of Ireland, unless specially named or included under
general words[q]. And on the other hand it is equally clear, that
where Ireland is particularly named, or is included under general
words, they are bound by such acts of parliament. For this follows
from the very nature and constitution of a dependent state: dependence
being very little else, but an obligation to conform to the will or
law of that superior person or state, upon which the inferior depends.
The original and true ground of this superiority is the right of
conquest: a right allowed by the law of nations, if not by that of
nature; and founded upon a compact either expressly or tacitly made
between the conqueror and the conquered, that if they will acknowlege
the victor for their master, he will treat them for the future as
subjects, and not as enemies[r].
[Footnote p: 4 Inst. 351.]
[Footnote q: 12 Rep. 112.]
[Footnote r: Puff. L. of N. 8. 6. 24.]
BUT this state of dependence being almost forgotten, and ready to be
disputed by the Irish nation, it became necessary some years ago to
declare how that matter really stood: and therefore by statute 6 Geo.
I. c. 5. it is declared, that the kingdom of Ireland ought to be
subordinate to, and dependent upon, the imperial crown of Great
Britain, as being inseparably united thereto; and that the king's
majesty, with the consent of the lords and commons of Great Britain in
parliament, hath power to make laws to bind the people of Ireland.
THUS we see how extensively the laws of Ireland communicate with those
of England: and indeed such communication is highly necessary, as the
ultimate resort from the courts of justice in Ireland is, as in Wales,
to those in England; a writ of error (in the nature of an appeal)
lying from the king's bench in Ireland to the king's bench in
England[s], as the appeal from all other courts in Ireland lies
immediately to the house of lords here: it being expressly declared,
by the same statute 6 Geo. I. c. 5. that the peers of Ireland have no
jurisdiction to affirm or reverse any judgments or decrees whatsoever.
The propriety, and even necessity, in all inferior dominions, of this
constitution, "that, though justice be in general administred by
courts of their own, yet that the appeal in the last resort ought to
be to the courts of the superior state," is founded upon these two
reasons. 1. Because otherwise the law, appointed or permitted to such
inferior dominion, might be insensibly changed within itself, without
the assent of the superior. 2. Because otherwise judgments might be
given to the disadvantage or diminution of the superiority; or to make
the dependence to be only of the person of the king, and not of the
crown of England[t].
[Footnote s: This was law in the time of Hen. VIII. as appears by the
antient book, entituled, _diversity of courts, c. bank le roy_.]
[Footnote t: Vaugh. 402.]
WITH regard to the other adjacent islands which are subject to the
crown of Great Britain, some of them (as the isle of Wight, of
Portland, of Thanet, &c.) are comprized within some neighbouring
county, and are therefore to be looked upon as annexed to the mother
island, and part of the kingdom of England. But there are others,
which require a more particular consideration.
AND, first, the isle of Man is a distinct territory from England and
is not governed by our laws; neither doth any act of parliament extend
to it, unless it be particularly named therein; and then an act of
parliament is binding there[u]. It was formerly a subordinate
feudatory kingdom, subject to the kings of Norway; then to king John
and Henry III of England; afterwards to the kings of Scotland; and
then again to the crown of England: and at length we find king Henry
IV claiming the island by right of conquest, and disposing of it to
the earl of Northumberland; upon whose attainder it was granted (by
the name of the lordship of Man) to sir John de Stanley by letters
patent 7 Hen. IV[w]. In his lineal descendants it continued for eight
generations, till the death of Ferdinando earl of Derby, _A.D._ 1594;
when a controversy arose concerning the inheritance thereof, between
his daughters and William his surviving brother: upon which, and a
doubt that was started concerning the validity of the original
patent[x], the island was seised into the queen's hands, and
afterwards various grants were made of it by king James the first; all
which being expired or surrendered, it was granted afresh in 7 Jac. I.
to William earl of Derby, and the heirs male of his body, with
remainder to his heirs general; which grant was the next year
confirmed by act of parliament, with a restraint of the power of
alienation by the said earl and his issue male. On the death of James
earl of Derby, _A.D._ 1735, the male line of earl William failing, the
duke of Atholl succeeded to the island as heir general by a female
branch. In the mean time, though the title of king had long been
disused, the earls of Derby, as lords of Man, had maintained a sort of
royal authority therein; by assenting or dissenting to laws, and
exercising an appellate jurisdiction. Yet, though no English writ, or
process from the courts of Westminster, was of any authority in Man,
an appeal lay from a decree of the lord of the island to the king of
Great Britain in council[y]. But, the distinct jurisdiction of this
little subordinate royalty being found inconvenient for the purposes
of public justice, and for the revenue, (it affording a convenient
asylum for debtors, outlaws, and smugglers) authority was given to the
treasury by statute 12 Geo. I. c. 28. to purchase the interest of the
then proprietors for the use of the crown: which purchase hath at
length been completed in this present year 1765, and confirmed by
statutes 5 Geo. III. c. 26, & 39. whereby the whole island and all
it's dependencies, so granted as aforesaid, (except the landed
property of the Atholl family, their manerial rights and emoluments,
and the patronage of the bishoprick[z] and other ecclesiastical
benefices) are unalienably vested in the crown, and subjected to the
regulations of the British excise and customs.
[Footnote u: 4 Inst. 284. 2 And. 116.]
[Footnote w: Selden. tit. hon. 1. 3.]
[Footnote x: Camden. Eliz. _A.D._ 1594.]
[Footnote y: 1 P.W. 329.]
[Footnote z: The bishoprick of Man, or Sodor, or Sodor and Man, was
formerly within the province of Canterbury, but annexed to that of
York by statute 33 Hen. VIII. c. 31.]
THE islands of Jersey, Guernsey, Sark, Alderney, and their appendages,
were parcel of the duchy of Normandy, and were united to the crown of
England by the first princes of the Norman line. They are governed by
their own laws, which are for the most part the ducal customs of
Normandy, being collected in an antient book of very great authority,
entituled, _le grand coustumier_. The king's writ, or process from the
courts of Westminster, is there of no force; but his commission is.
They are not bound by common acts of our parliaments, unless
particularly named[a]. All causes are originally determined by their
own officers, the bailiffs and jurats of the islands; but an appeal
lies from them to the king in council, in the last resort.
[Footnote a: 4 Inst. 286.]
BESIDES these adjacent islands, our more distant plantations in
America, and elsewhere, are also in some respects subject to the
English laws. Plantations, or colonies in distant countries, are
either such where the lands are claimed by right of occupancy only, by
finding them desart and uncultivated, and peopling them from the
mother country; or where, when already cultivated, they have been
either gained by conquest, or ceded to us by treaties. And both these
rights are founded upon the law of nature, or at least upon that of
nations. But there is a difference between these two species of
colonies, with respect to the laws by which they are bound. For it is
held[b], that if an uninhabited country be discovered and planted by
English subjects, all the English laws are immediately there in
force. For as the law is the birthright of every subject, so wherever
they go they carry their laws with them[c]. But in conquered or ceded
countries, that have already laws of their own, the king may indeed
alter and change those laws; but, till he does actually change them,
the antient laws of the country remain, unless such as are against the
law of God, as in the case of an infidel country[d].
[Footnote b: Salk. 411. 666.]
[Footnote c: 2 P. Wms. 75.]
[Footnote d: 7 Rep. 17 _b._ Calvin's case. Show. Parl. C. 31.]
OUR American plantations are principally of this latter sort, being
obtained in the last century either by right of conquest and driving
out the natives (with what natural justice I shall not at present
enquire) or by treaties. And therefore the common law of England, as
such, has no allowance or authority there; they being no part of the
mother country, but distinct (though dependent) dominions. They are
subject however to the control of the parliament; though (like
Ireland, Man, and the rest) not bound by any acts of parliament,
unless particularly named. The form of government in most of them is
borrowed from that of England. They have a governor named by the king,
(or in some proprietary colonies by the proprietor) who is his
representative or deputy. They have courts of justice of their own,
from whose decisions an appeal lies to the king in council here in
England. Their general assemblies which are their house of commons,
together with their council of state being their upper house, with the
concurrence of the king or his representative the governor, make laws
suited to their own emergencies. But it is particularly declared by
statute 7 & 8 W. III. c. 22. That all laws, by-laws, usages, and
customs, which shall be in practice in any of the plantations,
repugnant to any law, made or to be made in this kingdom relative to
the said plantations, shall be utterly void and of none effect.
THESE are the several parts of the dominions of the crown of Great
Britain, in which the municipal laws of England are not of force or
authority, merely _as_ the municipal laws of England. Most of them
have probably copied the spirit of their own law from this original;
but then it receives it's obligation, and authoritative force, from
being the law of the country.
AS to any foreign dominions which may belong to the person of the king
by hereditary descent, by purchase, or other acquisition, as the
territory of Hanover, and his majesty's other property in Germany; as
these do not in any wise appertain to the crown of these kingdoms,
they are entirely unconnected with the laws of England, and do not
communicate with this nation in any respect whatsoever. The English
legislature had wisely remarked the inconveniences that had formerly
resulted from dominions on the continent of Europe; from the Norman
territory which William the conqueror brought with him, and held in
conjunction with the English throne; and from Anjou, and it's
appendages, which fell to Henry the second by hereditary descent. They
had seen the nation engaged for near four hundred years together in
ruinous wars for defence of these foreign dominions; till, happily for
this country, they were lost under the reign of Henry the sixth. They
observed that from that time the maritime interests of England were
better understood and more closely pursued: that, in consequence of
this attention, the nation, as soon as she had rested from her civil
wars, began at this period to flourish all at once; and became much
more considerable in Europe than when her princes were possessed of a
larger territory, and her counsels distracted by foreign interests.
This experience and these considerations gave birth to a conditional
clause in the act[e] of settlement, which vested the crown in his
present majesty's illustrious house, "That in case the crown and
imperial dignity of this realm shall hereafter come to any person not
being a native of this kingdom of England, this nation shall not be
obliged to engage in any war for the defence of any dominions or
territories which do not belong to the crown of England, without
consent of parliament."
[Footnote e: Stat. 12 & 13 W. III. c. 3.]
WE come now to consider the kingdom of England in particular, the
direct and immediate subject of those laws, concerning which we are to
treat in the ensuing commentaries. And this comprehends not only
Wales, of which enough has been already said, but also part of the
sea. The main or high seas are part of the realm of England, for
thereon our courts of admiralty have jurisdiction, as will be shewn
hereafter; but they are not subject to the common law[f]. This main
sea begins at the low-water-mark. But between the high-water-mark, and
the low-water-mark, where the sea ebbs and flows, the common law and
the admiralty have _divisum imperium_, an alternate jurisdiction; one
upon the water, when it is full sea; the other upon the land, when it
is an ebb[g].
[Footnote f: Co. Litt. 260.]
[Footnote g: Finch. L. 78.]
THE territory of England is liable to two divisions; the one
ecclesiastical, the other civil.
1. THE ecclesiastical division is, primarily, into two provinces,
those of Canterbury and York. A province is the circuit of an
arch-bishop's jurisdiction. Each province contains divers dioceses, or
sees of suffragan bishops; whereof Canterbury includes twenty one, and
York three; besides the bishoprick of the isle of Man, which was
annexed to the province of York by king Henry VIII. Every diocese is
divided into archdeaconries, whereof there are sixty in all; each
archdeaconry into rural deanries, which are the circuit of the
archdeacon's and rural dean's jurisdiction, of whom hereafter; and
every deanry is divided into parishes[h].
[Footnote h: Co. Litt. 94.]
A PARISH is that circuit of ground in which the souls under the care
of one parson or vicar do inhabit. These are computed to be near ten
thousand in number. How antient the division of parishes is, may at
present be difficult to ascertain; for it seems to be agreed on all
hands, that in the early ages of christianity in this island, parishes
were unknown, or at least signified the same that a diocese does now.
There was then no appropriation of ecclesiastical dues to any
particular church; but every man was at liberty to contribute his
tithes to whatever priest or church he pleased, provided only that he
did it to some: or, if he made no special appointment or appropriation
thereof, they were paid into the hands of the bishop, whose duty it
was to distribute them among the clergy and for other pious purposes
according to his own discretion[i].
[Footnote i: Seld. of tith. 9. 4. 2 Inst. 646. Hob. 296.]
MR Camden[k] says England was divided into parishes by arch-bishop
Honorius about the year 630. Sir Henry Hobart[l] lays it down that
parishes were first erected by the council of Lateran, which was held
_A.D._ 1179. Each widely differing from the other, and both of them
perhaps from the truth; which will probably be found in the medium
between the two extremes. For Mr Selden has clearly shewn[m], that the
clergy lived in common without any division of parishes, long after
the time mentioned by Camden. And it appears from the Saxon laws, that
parishes were in being long before the date of that council of
Lateran, to which they are ascribed by Hobart.
[Footnote k: in his Britannia.]
[Footnote l: Hob. 296.]
[Footnote m: of tithes. c. 9.]
WE find the distinction of parishes, nay even of mother-churches, so
early as in the laws of king Edgar, about the year 970. Before that
time the consecration of tithes was in general _arbitrary_; that is,
every man paid his own (as was before observed) to what church or
parish he pleased. But this being liable to be attended with either
fraud, or at least caprice, in the persons paying; and with either
jealousies or mean compliances in such as were competitors for
receiving them; it was now ordered by the law of king Edgar[n], that
"_dentur omnes decimae primariae ecclesiae ad quam parochia
pertinet_." However, if any thane, or great lord, had a church within
his own demesnes, distinct from the mother-church, in the nature of a
private chapel; then, provided such church had a coemitery or
consecrated place of burial belonging to it, he might allot one third
of his tithes for the maintenance of the officiating minister: but, if
it had no coemitery, the thane must himself have maintained his
chaplain by some other means; for in such case _all_ his tithes were
ordained to be paid to the _primariae ecclesiae_ or mother-church[o].
[Footnote n: _c._ 1.]
[Footnote o: _Ibid._ _c._ 2. See also the laws of king Canute, c. 11.
about the year 1030.]
THIS proves that the kingdom was then universally divided into
parishes; which division happened probably not all at once, but by
degrees. For it seems pretty clear and certain that the boundaries of
parishes were originally ascertained by those of a manor or manors:
since it very seldom happens that a manor extends itself over more
parishes than one, though there are often many manors in one parish.
The lords, as christianity spread itself, began to build churches upon
their own demesnes or wastes, to accommodate their tenants in one or
two adjoining lordships; and, in order to have divine service
regularly performed therein, obliged all their tenants to appropriate
their tithes to the maintenance of the one officiating minister,
instead of leaving them at liberty to distribute them among the clergy
of the diocese in general: and this tract of land, the tithes whereof
were so appropriated, formed a distinct parish. Which will well enough
account for the frequent intermixture of parishes one with another.
For if a lord had a parcel of land detached from the main of his
estate, but not sufficient to form a parish of itself, it was natural
for him to endow his newly erected church with the tithes of those
disjointed lands; especially if no church was then built in any
lordship adjoining to those out-lying parcels.
THUS parishes were gradually formed, and parish churches endowed with
the tithes that arose within the circuit assigned. But some lands,
either because they were in the hands of irreligious and careless
owners, or were situate in forests and desart places, or for other
now unsearchable reasons, were never united to any parish, and
therefore continue to this day extraparochial; and their tithes are
now by immemorial custom payable to the king instead of the bishop, in
trust and confidence that he will distribute them, for the general
good of the church[p]. And thus much for the ecclesiastical division
of this kingdom.
[Footnote p: 2 Inst. 647. 2 Rep. 44. Cro. Eliz. 512.]
2. THE civil division of the territory of England is into counties, of
those counties into hundreds, of those hundreds into tithings or
towns. Which division, as it now stands, seems to owe it's original to
king Alfred; who, to prevent the rapines and disorders which formerly
prevailed in the realm, instituted tithings; so called, from the
Saxon, because _ten_ freeholders with their families composed one.
These all dwelt together, and were sureties or free pledges to the
king for the good behaviour of each other; and, if any offence were
committed in their district, they were bound to have the offender
forthcoming[q]. And therefore antiently no man was suffered to abide
in England above forty days, unless he were enrolled in some tithing
or decennary[r]. One of the principal inhabitants of the tithing is
annually appointed to preside over the rest, being called the
tithing-man, the headborough, (words which speak their own etymology)
and in some countries the borsholder, or borough's-ealder, being
supposed the discreetest man in the borough, town, or tithing[s].
[Footnote q: _Flet._ 1. 47. This the laws of king Edward the
confessor, c. 20. very justly intitle "_summa et maxima securitas, per
quam omnes statu firmissimo sustinentur;--quae hoc modo fiebat, quod
sub decennali fidejussione debebant esse universi, &c._"]
[Footnote r: Mirr. c. 1. §. 3.]
[Footnote s: Finch. L. 8.]
TITHINGS, towns, or vills, are of the same signification in law; and
had, each of them, originally a church and celebration of divine
service, sacraments, and burials; which to have, or have had, separate
to itself, is the essential distinction of a town, according to sir
Edward Coke[t]. The word _town_ or _vill_ is indeed, by the alteration
of times and language, now become a generical term, comprehending
under it the several species of cities, boroughs, and common towns. A
city is a town incorporated, which is or hath been the see of a
bishop; and though the bishoprick be dissolved, as at Westminster, yet
still it remaineth a city[u]. A borough is now understood to be a
town, either corporate or not, that sendeth burgesses to
parliament[w]. Other towns there are, to the number sir Edward Coke
says[x] of 8803, which are neither cities nor boroughs; some of which
have the privileges of markets, and others not; but both are equally
towns in law. To several of these towns there are small appendages
belonging, called hamlets; which are taken notice of in the statute of
Exeter[y], which makes frequent mention of entire vills, demi-vills,
and hamlets. Entire vills sir Henry Spelman[z] conjectures to have
consisted of ten freemen, or frank-pledges, demi-vills of five, and
hamlets of less than five. These little collections of houses are
sometimes under the same administration as the town itself, sometimes
governed by separate officers; in which last case it is, to some
purposes in law, looked upon as a distinct township. These towns, as
was before hinted, contained each originally but one parish, and one
tithing; though many of them now, by the encrease of inhabitants, are
divided into several parishes and tithings: and sometimes, where there
is but one parish there are two or more vills or tithings.
[Footnote t: 1 Inst. 115 _b._]
[Footnote u: Co. Litt. 109 _b._]
[Footnote w: Litt. §. 164.]
[Footnote x: 1 Inst. 116.]
[Footnote y: 14 Edw. I.]
[Footnote z: Gloss. 274.]
AS ten families of freeholders made up a town or tithing, so ten
tithings composed a superior division, called a hundred, as consisting
of ten times ten families. The hundred is governed by an high
constable or bailiff, and formerly there was regularly held in it the
hundred court for the trial of causes, though now fallen into disuse.
In some of the more northern counties these hundreds are called
wapentakes[a].
[Footnote a: Seld. _in Fortesc._ _c._ 24.]
THE subdivision of hundreds into tithings seems to be most peculiarly
the invention of Alfred: the institution of hundreds themselves he
rather introduced than invented. For they seem to have obtained in
Denmark[b]: and we find that in France a regulation of this sort was
made above two hundred years before; set on foot by Clotharius and
Childebert, with a view of obliging each district to answer for the
robberies committed in it's own division. These divisions were, in
that country, as well military as civil; and each contained a hundred
freemen; who were subject to an officer called the _centenarius_; a
number of which _centenarii_ were themselves subject to a superior
officer called the count or _comes_[c]. And indeed this institution of
hundreds may be traced back as far as the antient Germans, from whom
were derived both the Franks who became masters of Gaul, and the
Saxons who settled in England. For we read in Tacitus[d], that both
the thing and the name were well known to that warlike people.
"_Centeni ex singulis pagis sunt, idque ipsum inter suos vocantur; et
quod primo numerus fuit, jam nomen et honor est._"
[Footnote b: Seld. tit. of hon. 2. 5. 3.]
[Footnote c: Montesq. Sp. L. 30. 17.]
[Footnote d: _de morib. German._ 6.]
AN indefinite number of these hundreds make up a county or shire.
Shire is a Saxon word signifying a division; but a county,
_comitatus_, is plainly derived from _comes_, the count of the Franks;
that is, the earl, or alderman (as the Saxons called him) of the
shire, to whom the government of it was intrusted. This he usually
exercised by his deputy, still called in Latin _vice-comes_, and in
English the sheriff, shrieve, or shire-reeve, signifying the officer
of the shire; upon whom by process of time the civil administration of
it is now totally devolved. In some counties there is an intermediate
division, between the shire and the hundreds, as lathes in Kent, and
rapes in Sussex, each of them containing about three or four hundreds
apiece. These had formerly their lathe-reeves and rape-reeves, acting
in subordination to the shire-reeve. Where a county is divided into
_three_ of these intermediate jurisdictions, they are called
trithings[e], which were antiently governed by a trithing-reeve. These
trithings still subsist in the large county of York, where by an easy
corruption they are denominated ridings; the north, the east, and the
west-riding. The number of counties in England and Wales have been
different at different times: at present there are forty in England,
and twelve in Wales.
[Footnote e: _LL. Edw._ _c._ 34.]
THREE of these counties, Chester, Durham, and Lancaster, are called
counties palatine. The two former are such by prescription, or
immemorial custom; or, at least as old as the Norman conquest[f]: the
latter was created by king Edward III, in favour of Henry Plantagenet,
first earl and then duke of Lancaster, whose heiress John of Gant the
king's son had married; and afterwards confirmed in parliament, to
honour John of Gant himself; whom, on the death of his father-in-law,
he had also created duke of Lancaster[g]. Counties palatine are so
called _a palatio_; because the owners thereof, the earl of Chester,
the bishop of Durham, and the duke of Lancaster, had in those counties
_jura regalia_, as fully as the king hath in his palace; _regalem
potestatem in omnibus_, as Bracton expresses it[h]. They might pardon
treasons, murders, and felonies; they appointed all judges and
justices of the peace; all writs and indictments ran in their names,
as in other counties in the king's; and all offences were said to be
done against their peace, and not, as in other places, _contra pacem
domini regis_[i]. And indeed by the antient law, in all peculiar
jurisdictions, offences were said to be done against his peace in
whose court they were tried; in a court leet, _contra pacem domini_;
in the court of a corporation, _contra pacem ballivorum_; in the
sheriff's court or tourn, _contra pacem vice-comitis_[k]. These
palatine privileges were in all probability originally granted to the
counties of Chester and Durham, because they bordered upon enemies
countries, Wales and Scotland; in order that the owners, being
encouraged by so large an authority, might be the more watchful in
it's defence; and that the inhabitants, having justice administered at
home, might not be obliged to go out of the county, and leave it open
to the enemies incursions. And upon this account also there were
formerly two other counties palatine, Pembrokeshire and Hexamshire,
the latter now united with Northumberland: but these were abolished by
parliament, the former in 27 Hen. VIII, the latter in 14 Eliz. And in
27 Hen. VIII likewise, the powers beforementioned of owners of
counties palatine were abridged; the reason for their continuance in a
manner ceasing: though still all writs are witnessed in their names,
and all forfeitures for treason by the common law accrue to them[l].
[Footnote f: Seld. tit. hon. 2. 5. 8.]
[Footnote g: Plowd. 215.]
[Footnote h: _l._ 3. _c._ 8. §. 4.]
[Footnote i: 4. Inst. 204.]
[Footnote k: Seld. _in Hengham magn._ _c._ 2.]
[Footnote l: 4 Inst. 205.]
OF these three, the county of Durham is now the only one remaining in
the hands of a subject. For the earldom of Chester, as Camden
testifies, was united to the crown by Henry III, and has ever since
given title to the king's eldest son. And the county palatine, or
duchy, of Lancaster was the property of Henry of Bolinbroke, the son
of John of Gant, at the time when he wrested the crown from king
Richard II, and assumed the title of Henry IV. But he was too prudent
to suffer this to be united to the crown, lest, if he lost one, he
should lose the other also. For, as Plowden[m] and sir Edward Coke[n]
observe, "he knew he had the duchy of Lancaster by sure and
indefeasible title, but that his title to the crown was not so
assured: for that after the decease of Richard II the right of the
crown was in the heir of Lionel duke of Clarence, _second_ son of
Edward III; John of Gant, father to this Henry IV, being but the
_fourth_ son." And therefore he procured an act of parliament, in the
first year of his reign, to keep it distinct and separate from the
crown, and so it descended to his son, and grandson, Henry V, and
Henry VI. Henry VI being attainted in 1 Edw. IV, this duchy was
declared in parliament to have become forfeited to the crown[o], and
at the same time an act was made to keep it still distinct and
separate from other inheritances of the crown. And in 1 Hen. VII
another act was made to vest the inheritance thereof in Henry VII and
his heirs; and in this state, say sir Edward Coke[p] and Lambard[q],
viz. in the natural heirs or posterity of Henry VII, did the right of
the duchy remain to their days; a separate and distinct inheritance
from that of the crown of England[r].
[Footnote m: 215.]
[Footnote n: 4 Inst. 205.]
[Footnote o: 1 Ventr. 155.]
[Footnote p: 4 Inst. 206.]
[Footnote q: Archeion. 233.]
[Footnote r: If this notion of Lambard and Coke be well founded, it
might have become a very curious question at the time of the
revolution in 1688, in whom the right of the duchy remained after king
James's abdication. The attainder indeed of the pretended prince of
Wales (by statute 13 W. III. c. 3.) has now put the matter out of
doubt. And yet, to give that attainder it's full force in this
respect, the object of it must have been supposed legitimate, else he
had no interest to forfeit.]
THE isle of Ely is not a county palatine, though sometimes erroneously
called so; but only a royal franchise; the bishop having, by grant of
king Henry the first, _jura regalia_ within the isle of Ely, and
thereby he exercises a jurisdiction over all causes, as well criminal,
as civil[s].
[Footnote s: 4 Inst. 220.]
THERE are also counties _corporate_; which are certain cities and
towns, some with more, some with less territory annexed to them; to
which out of special grace and favour the kings of England have
granted to be counties of themselves, and not to be comprized in any
other county; but to be governed by their own sheriffs and other
magistrates, so that no officers of the county at large have any power
to intermeddle therein. Such are London, York, Bristol, Norwich,
Coventry, and many others. And thus much of the countries subject to
the laws of England.
COMMENTARIES
ON THE
LAWS OF ENGLAND.
BOOK THE FIRST.
OF THE RIGHTS OF PERSONS.
CHAPTER THE FIRST.
OF THE ABSOLUTE RIGHTS OF INDIVIDUALS.
THE objects of the laws of England are so very numerous and extensive,
that, in order to consider them with any tolerable ease and
perspicuity, it will be necessary to distribute them methodically,
under proper and distinct heads; avoiding as much as possible
divisions too large and comprehensive on the one hand, and too
trifling and minute on the other; both of which are equally productive
of confusion.
NOW, as municipal law is a rule of civil conduct, commanding what is
right, and prohibiting what is wrong; or, as Cicero[a], and after him
our Bracton[b], has expressed it, _sanctio justa, jubens honesta et
prohibens contraria_; it follows, that the primary and principal
objects of the law are RIGHTS, and WRONGS. In the prosecution
therefore of these commentaries, I shall follow this very simple and
obvious division; and shall in the first place consider the _rights_
that are commanded, and secondly the _wrongs_ that are forbidden by
the laws of England.
[Footnote a: 11 _Philipp._ 12.]
[Footnote b: _l._ 1. _c._ 3.]
RIGHTS are however liable to another subdivision; being either, first,
those which concern, and are annexed to the persons of men, and are
then called _jura personarum_ or the _rights of persons_; or they are,
secondly, such as a man may acquire over external objects, or things
unconnected with his person, which are stiled _jura rerum_ or the
_rights of things_. Wrongs also are divisible into, first, _private
wrongs_, which, being an infringement merely of particular rights,
concern individuals only, and are called civil injuries; and secondly,
_public wrongs_, which, being a breach of general and public rights,
affect the whole community, and are called crimes and misdemesnors.
THE objects of the laws of England falling into this fourfold
division, the present commentaries will therefore consist of the four
following parts: 1. _The rights of persons_; with the means whereby
such rights may be either acquired or lost. 2. _The rights of things_;
with the means also of acquiring and losing them. 3. _Private wrongs_,
or civil injuries; with the means of redressing them by law. 4.
_Public wrongs_, or crimes and misdemesnors; with the means of
prevention and punishment.
WE are now, first, to consider _the rights of persons_; with the means
of acquiring and losing them.
NOW the rights of persons that are commanded to be observed by the
municipal law are of two sorts; first, such as are due _from_ every
citizen, which are usually called civil _duties_; and, secondly, such
as belong _to_ him, which is the more popular acceptation of _rights_
or _jura_. Both may indeed be comprized in this latter division; for,
as all social duties are of a relative nature, at the same time that
they are due _from_ one man, or set of men, they must also be due _to_
another. But I apprehend it will be more clear and easy, to consider
many of them as duties required from, rather than as rights belonging
to, particular persons. Thus, for instance, allegiance is usually, and
therefore most easily, considered as the duty of the people, and
protection as the duty of the magistrate; and yet they are,
reciprocally, the rights as well as duties of each other. Allegiance
is the right of the magistrate, and protection the right of the
people.
PERSONS also are divided by the law into either natural persons, or
artificial. Natural persons are such as the God of nature formed us:
artificial are such as created and devised by human laws for the
purposes of society and government; which are called corporations or
bodies politic.
THE rights of persons considered in their natural capacities are also
of two sorts, absolute, and relative. Absolute, which are such as
appertain and belong to particular men, merely as individuals or
single persons: relative, which are incident to them as members of
society, and standing in various relations to each other. The first,
that is, absolute rights, will be the subject of the present chapter.
BY the absolute _rights_ of individuals we mean those which are so in
their primary and strictest sense; such as would belong to their
persons merely in a state of nature, and which every man is intitled
to enjoy whether out of society or in it. But with regard to the
absolute _duties_, which man is bound to perform considered as a mere
individual, it is not to be expected that any human municipal laws
should at all explain or enforce them. For the end and intent of such
laws being only to regulate the behaviour of mankind, as they are
members of society, and stand in various relations to each other, they
have consequently no business or concern with any but social or
relative duties. Let a man therefore be ever so abandoned in his
principles, or vitious in his practice, provided he keeps his
wickedness to himself, and does not offend against the rules of public
decency, he is out of the reach of human laws. But if he makes his
vices public, though they be such as seem principally to affect
himself, (as drunkenness, or the like) they then become, by the bad
example they set, of pernicious effects to society; and therefore it
is then the business of human laws to correct them. Here the
circumstance of publication is what alters the nature of the case.
_Public_ sobriety is a relative duty, and therefore enjoined by our
laws: _private_ sobriety is an absolute duty, which, whether it be
performed or not, human tribunals can never know; and therefore they
can never enforce it by any civil sanction. But, with respect to
_rights_, the case is different. Human laws define and enforce as well
those rights which belong to a man considered as an individual, as
those which belong to him considered as related to others.
FOR the principal aim of society is to protect individuals in the
enjoyment of those absolute rights, which were vested in them by the
immutable laws of nature; but which could not be preserved in peace
without that mutual assistance and intercourse, which is gained by the
institution of friendly and social communities. Hence it follows, that
the first and primary end of human laws is to maintain and regulate
these _absolute_ rights of individuals. Such rights as are social and
_relative_ result from, and are posterior to, the formation of states
and societies: so that to maintain and regulate these, is clearly a
subsequent consideration. And therefore the principal view of human
laws is, or ought always to be, to explain, protect, and enforce such
rights as are absolute, which in themselves are few and simple; and,
then, such rights as are relative, which arising from a variety of
connexions, will be far more numerous and more complicated. These will
take up a greater space in any code of laws, and hence may appear to
be more attended to, though in reality they are not, than the rights
of the former kind. Let us therefore proceed to examine how far all
laws ought, and how far the laws of England actually do, take notice
of these absolute rights, and provide for their lasting security.
THE absolute rights of man, considered as a free agent, endowed with
discernment to know good from evil, and with power of choosing those
measures which appear to him to be most desirable, are usually summed
up in one general appellation, and denominated the natural liberty of
mankind. This natural liberty consists properly in a power of acting
as one thinks fit, without any restraint or control, unless by the law
of nature: being a right inherent in us by birth, and one of the gifts
of God to man at his creation, when he endued him with the faculty of
freewill. But every man, when he enters into society, gives up a part
of his natural liberty, as the price of so valuable a purchase; and,
in consideration of receiving the advantages of mutual commerce,
obliges himself to conform to those laws, which the community has
thought proper to establish. And this species of legal obedience and
conformity is infinitely more desirable, than that wild and savage
liberty which is sacrificed to obtain it. For no man, that considers a
moment, would wish to retain the absolute and uncontroled power of
doing whatever he pleases; the consequence of which is, that every
other man would also have the same power; and then there would be no
security to individuals in any of the enjoyments of life. Political
therefore, or civil, liberty, which is that of a member of society, is
no other than natural liberty so far restrained by human laws (and no
farther) as is necessary and expedient for the general advantage of
the publick[c]. Hence we may collect that the law, which restrains a
man from doing mischief to his fellow citizens, though it diminishes
the natural, increases the civil liberty of mankind: but every wanton
and causeless restraint of the will of the subject, whether practiced
by a monarch, a nobility, or a popular assembly, is a degree of
tyranny. Nay, that even laws themselves, whether made with or without
our consent, if they regulate and constrain our conduct in matters of
mere indifference, without any good end in view, are laws destructive
of liberty: whereas if any public advantage can arise from observing
such precepts, the control of our private inclinations, in one or two
particular points, will conduce to preserve our general freedom in
others of more importance; by supporting that state, of society, which
alone can secure our independence. Thus the statute of king Edward
IV[d], which forbad the fine gentlemen of those times (under the
degree of a lord) to wear pikes upon their shoes or boots of more than
two inches in length, was a law that savoured of oppression; because,
however ridiculous the fashion then in use might appear, the
restraining it by pecuniary penalties could serve no purpose of common
utility. But the statute of king Charles II[e], which prescribes a
thing seemingly as indifferent; viz. a dress for the dead, who are all
ordered to be buried in woollen; is a law consistent with public
liberty, for it encourages the staple trade, on which in great measure
depends the universal good of the nation. So that laws, when prudently
framed, are by no means subversive but rather introductive of liberty;
for (as Mr Locke has well observed[f]) where there is no law, there is
no freedom. But then, on the other hand, that constitution or frame of
government, that system of laws, is alone calculated to maintain civil
liberty, which leaves the subject entire master of his own conduct,
except in those points wherein the public good requires some direction
or restraint.
[Footnote c: _Facultas ejus, quod cuique facere libet, nisi quid jure
prohibetur._ _Inst._ 1. 3. 1.]
[Footnote d: 3 Edw. IV. c. 5.]
[Footnote e: 30 Car. II. st. 1. c. 3.]
[Footnote f: on Gov. p. 2. §. 57.]
THE idea and practice of this political or civil liberty flourish in
their highest vigour in these kingdoms, where it falls little short
of perfection, and can only be lost or destroyed by the folly or
demerits of it's owner: the legislature, and of course the laws of
England, being peculiarly adapted to the preservation of this
inestimable blessing even in the meanest subject. Very different from
the modern constitutions of other states, on the continent of Europe,
and from the genius of the imperial law; which in general are
calculated to vest an arbitrary and despotic power of controlling the
actions of the subject in the prince, or in a few grandees. And this
spirit of liberty is so deeply implanted in our constitution, and
rooted even in our very soil, that a slave or a negro, the moment he
lands in England, falls under the protection of the laws, and with
regard to all natural rights becomes _eo instanti_ a freeman[g].
[Footnote g: Salk. 666.]
THE absolute rights of every Englishman (which, taken in a political
and extensive sense, are usually called their liberties) as they are
founded on nature and reason, so they are coeval with our form of
government; though subject at times to fluctuate and change: their
establishment (excellent as it is) being still human. At some times we
have seen them depressed by overbearing and tyrannical princes; at
others so luxuriant as even to tend to anarchy, a worse state than
tyranny itself, as any government is better than none at all. But the
vigour of our free constitution has always delivered the nation from
these embarrassments, and, as soon as the convulsions consequent on
the struggle have been over, the ballance of our rights and liberties
has settled to it's proper level; and their fundamental articles have
been from time to time asserted in parliament, as often as they were
thought to be in danger.
FIRST, by the great charter of liberties, which was obtained, sword in
hand, from king John; and afterwards, with some alterations, confirmed
in parliament by king Henry the third, his son. Which charter
contained very few new grants; but, as sir Edward Coke[h] observes,
was for the most part declaratory of the principal grounds of the
fundamental laws of England. Afterwards by the statute called
_confirmatio cartarum_[i], whereby the great charter is directed to be
allowed as the common law; all judgments contrary to it are declared
void; copies of it are ordered to be sent to all cathedral churches,
and read twice a year to the people; and sentence of excommunication
is directed to be as constantly denounced against all those that by
word, deed, or counsel act contrary thereto, or in any degree infringe
it. Next by a multitude of subsequent corroborating statutes, (sir
Edward Coke, I think, reckons thirty two[k],) from the first Edward to
Henry the fourth. Then, after a long interval, by _the petition of
right_; which was a parliamentary declaration of the liberties of the
people, assented to by king Charles the first in the beginning of his
reign. Which was closely followed by the still more ample concessions
made by that unhappy prince to his parliament, before the fatal
rupture between them; and by the many salutary laws, particularly the
_habeas corpus_ act, passed under Charles the second. To these
succeeded _the bill of rights_, or declaration delivered by the lords
and commons to the prince and princess of Orange 13 February 1688; and
afterwards enacted in parliament, when they became king and queen:
which declaration concludes in these remarkable words; "and they do
claim, demand, and insist upon all and singular the premises, as their
undoubted rights and liberties." And the act of parliament itself[l]
recognizes "all and singular the rights and liberties asserted and
claimed in the said declaration to be the true, antient, and
indubitable rights of the people of this kingdom." Lastly, these
liberties were again asserted at the commencement of the present
century, in the _act of settlement_[m], whereby the crown is limited
to his present majesty's illustrious house, and some new provisions
were added at the same fortunate aera for better securing our
religion, laws, and liberties; which the statute declares to be "the
birthright of the people of England;" according to the antient
doctrine of the common law[n].
[Footnote h: 2 Inst. proem.]
[Footnote i: 25 Edw. I.]
[Footnote k: 2 Inst. proem.]
[Footnote l: 1 W. and M. st. 2. c. 2.]
[Footnote m: 12 & 13 W. III. c. 2.]
[Footnote n: Plowd. 55.]
THUS much for the _declaration_ of our rights and liberties. The
rights themselves thus defined by these several statutes, consist in a
number of private immunities; which will appear, from what has been
premised, to be indeed no other, than either that _residuum_ of
natural liberty, which is not required by the laws of society to be
sacrificed to public convenience; or else those civil privileges,
which society hath engaged to provide, in lieu of the natural
liberties so given up by individuals. These therefore were formerly,
either by inheritance or purchase, the rights of all mankind; but, in
most other countries of the world being now more or less debased and
destroyed, they at present may be said to remain, in a peculiar and
emphatical manner, the rights of the people of England. And these may
be reduced to three principal or primary articles; the right of
personal security, the right of personal liberty; and the right of
private property: because as there is no other known method of
compulsion, or of abridging man's natural free will, but by an
infringement or diminution of one or other of these important rights,
the preservation of these, inviolate, may justly be said to include
the preservation of our civil immunities in their largest and most
extensive sense.
I. THE right of personal security consists in a person's legal and
uninterrupted enjoyment of his life, his limbs, his body, his health,
and his reputation.
1. LIFE is the immediate gift of God, a right inherent by nature in
every individual; and it begins in contemplation of law as soon as an
infant is able to stir in the mother's womb. For if a woman is quick
with child, and by a potion, or otherwise, killeth it in her womb; or
if any one beat her, whereby the child dieth in her body, and she is
delivered of a dead child; this, though not murder, was by the antient
law homicide or manslaughter[o]. But at present it is not looked upon
in quite so atrocious a light, though it remains a very heinous
misdemesnor[p].
[Footnote o: _Si aliquis mulierem praegnantem percusserit, vel ei
venenum dederit, per quod fecerit abortivam; si puerperium jam
formatum fuerit, et maxime si fuerit animatum, facit homicidium._
Bracton. _l._ 3. _c._ 21.]
[Footnote p: 3 Inst. 90.]
AN infant _in ventre sa mere_, or in the mother's womb, is supposed in
law to be born for many purposes. It is capable of having a legacy, or
a surrender of a copyhold estate made to it. It may have a guardian
assigned to it[q]; and it is enabled to have an estate limited to it's
use, and to take afterwards by such limitation, as if it were then
actually born[r]. And in this point the civil law agrees with ours[s].
[Footnote q: Stat. 12 Car. II. c. 24.]
[Footnote r: Stat. 10 & 11 W. III. c. 16.]
[Footnote s: _Qui in utero sunt, in jure civili intelliguntur in rerum
natura esse, cum de eorum commodo agatur._ _Ff._ 1. 5. 26.]
2. A MAN'S limbs, (by which for the present we only understand those
members which may be useful to him in fight, and the loss of which
only amounts to mayhem by the common law) are also the gift of the
wise creator; to enable man to protect himself from external injuries
in a state of nature. To these therefore he has a natural inherent
right; and they cannot be wantonly destroyed or disabled without a
manifest breach of civil liberty.
BOTH the life and limbs of a man are of such high value, in the
estimation of the law of England, that it pardons even homicide if
committed _se defendendo_, or in order to preserve them. For whatever
is done by a man, to save either life or member, is looked upon as
done upon the highest necessity and compulsion. Therefore if a man
through fear of death or mayhem is prevailed upon to execute a deed,
or do any other legal act; these, though accompanied with all other
the requisite solemnities, are totally void in law, if forced upon him
by a well-grounded apprehension of losing his life, or even his limbs,
in case of his non-compliance[t]. And the same is also a sufficient
excuse for the commission of many misdemesnors, as will appear in the
fourth book. The constraint a man is under in these circumstances is
called in law _duress_, from the Latin _durities_, of which there are
two sorts; duress of imprisonment, where a man actually loses his
liberty, of which we shall presently speak; and duress _per minas_,
where the hardship is only threatened and impending, which is that we
are now discoursing of. Duress _per minas_ is either for fear of loss
of life, or else for fear of mayhem, or loss of limb. And this fear
must be upon sufficient reason; "_non_," as Bracton expresses it,
"_suspicio cujuslibet vani et meticulosi hominis, sed talis qui possit
cadere in virum constantem; talis enim debet esse metus, qui in se
contineat vitae periculum, aut corporis cruciatum_[u]." A fear of
battery, or being beaten, though never so well grounded, is no duress;
neither is the fear of having one's house burnt, or one's goods taken
away and destroyed; because in these cases, should the threat be
performed, a man may have satisfaction by recovering equivalent
damages[w]: but no suitable atonement can be made for the loss of
life, or limb. And the indulgence shewn to a man under this, the
principal, sort of duress, the fear of losing his life or limbs,
agrees also with that maxim of the civil law; _ignoscitur ei qui
sanguinem suum qualiter qualiter redemptum voluit_[x].
[Footnote t: 2 Inst. 483.]
[Footnote u: _l._ 2. _c._ 5.]
[Footnote w: 2 Inst. 483.]
[Footnote x: _Ff._ 48. 21. 1.]
THE law not only regards life and member, and protects every man in
the enjoyment of them, but also furnishes him with every thing
necessary for their support. For there is no man so indigent or
wretched, but he may demand a supply sufficient for all the
necessities of life, from the more opulent part of the community, by
means of the several statutes enacted for the relief of the poor, of
which in their proper places. A humane provision; yet, though dictated
by the principles of society, discountenanced by the Roman laws. For
the edicts of the emperor Constantine, commanding the public to
maintain the children of those who were unable to provide for them, in
order to prevent the murder and exposure of infants, an institution
founded on the same principle as our foundling hospitals, though
comprized in the Theodosian code[y], were rejected in Justinian's
collection.
[Footnote y: _l._ 11. _t._ 27.]
THESE rights, of life and member, can only be determined by the death
of the person; which is either a civil or natural death. The civil
death commences if any man be banished the realm[z] by the process of
the common law, or enters into religion; that is, goes into a
monastery, and becomes there a monk professed: in which cases he is
absolutely dead in law, and his next heir shall have his estate. For,
such banished man is entirely cut off from society; and such a monk,
upon his profession, renounces solemnly all secular concerns: and
besides, as the popish clergy claimed an exemption from the duties of
civil life, and the commands of the temporal magistrate, the genius of
the English law would not suffer those persons to enjoy the benefits
of society, who secluded themselves from it, and refused to submit to
it's regulations[a]. A monk is therefore accounted _civiliter
mortuus_, and when he enters into religion may, like other dying men,
make his testament and executors; or, if he makes none, the ordinary
may grant administration to his next of kin, as if he were actually
dead intestate. And such executors and administrators shall have the
same power, and may bring the same actions for debts due _to_ the
religious, and are liable to the same actions for those due _from_
him, as if he were naturally deceased[b]. Nay, so far has this
principle been carried, that when one was bound in a bond to an abbot
and his successors, and afterwards made his executors and professed
himself a monk of the same abbey, and in process of time was himself
made abbot thereof; here the law gave him, in the capacity of abbot,
an action of debt against his own executors to recover the money
due[c]. In short, a monk or religious is so effectually dead in law,
that a lease made even to a third person, during the life (generally)
of one who afterwards becomes a monk, determines by such his entry
into religion: for which reason leases, and other conveyances, for
life, are usually made to have and to hold for the term of one's
_natural_ life[d].
[Footnote z: Co. Litt. 133.]
[Footnote a: This was also a rule in the feodal law, _l._ 2. _t._ 21.
_desiit esse miles seculi, qui factus est miles Christi; nec
beneficium pertinet ad eum qui non debet gerere officium_.]
[Footnote b: Litt. §. 200.]
[Footnote c: Co. Litt. 133 _b._]
[Footnote d: 2 Rep. 48. Co. Litt. 132.]
THIS natural life being, as was before observed, the immediate
donation of the great creator, cannot legally be disposed of or
destroyed by any individual, neither by the person himself nor by any
other of his fellow creatures, merely upon their own authority. Yet
nevertheless it may, by the divine permission, be frequently forfeited
for the breach of those laws of society, which are enforced by the
sanction of capital punishments; of the nature, restrictions,
expedience, and legality of which, we may hereafter more conveniently
enquire in the concluding book of these commentaries. At present, I
shall only observe, that whenever the _constitution_ of a state vests
in any man, or body of men, a power of destroying at pleasure, without
the direction of laws, the lives or members of the subject, such
constitution is in the highest degree tyrannical: and that whenever
any _laws_ direct such destruction for light and trivial causes, such
laws are likewise tyrannical, though in an inferior degree; because
here the subject is aware of the danger he is exposed to, and may by
prudent caution provide against it. The statute law of England does
therefore very seldom, and the common law does never, inflict any
punishment extending to life or limb, unless upon the highest
necessity: and the constitution is an utter stranger to any arbitrary
power of killing or maiming the subject without the express warrant of
law. "_Nullus liber homo_, says the great charter[e], _aliquo modo
destruatur, nisi per legale judicium parium suorum aut per legem
terrae._" Which words, "_aliquo modo destruatur_," according to sir
Edward Coke[f], include a prohibition not only of _killing_, and
_maiming_, but also of _torturing_ (to which our laws are strangers)
and of every oppression by colour of an illegal authority. And it is
enacted by the statute 5 Edw. III. c. 9. that no man shall be
forejudged of life or limb, contrary to the great charter and the law
of the land: and again, by statute 28 Ed. III. c. 3. that no man
shall be put to death, without being brought to answer by due process
of law.
[Footnote e: c. 29.]
[Footnote f: 2 Inst. 48.]
3. BESIDES those limbs and members that may be necessary to man, in
order to defend himself or annoy his enemy, the rest of his person or
body is also entitled by the same natural right to security from the
corporal insults of menaces, assaults, beating, and wounding; though
such insults amount not to destruction of life or member.
4. THE preservation of a man's health from such practices as may
prejudice or annoy it, and
5. THE security of his reputation or good name from the arts of
detraction and slander, are rights to which every man is intitled, by
reason and natural justice; since without these it is impossible to
have the perfect enjoyment of any other advantage or right. But these
three last articles (being of much less importance than those which
have gone before, and those which are yet to come) it will suffice to
have barely mentioned among the rights of persons; referring the more
minute discussion of their several branches, to those parts of our
commentaries which treat of the infringement of these rights, under
the head of personal wrongs.
II. NEXT to personal security, the law of England regards, asserts,
and preserves the personal liberty of individuals. This personal
liberty consists in the power of loco-motion, of changing situation,
or removing one's person to whatsoever place one's own inclination may
direct; without imprisonment or restraint, unless by due course of
law. Concerning which we may make the same observations as upon the
preceding article; that it is a right strictly natural; that the laws
of England have never abridged it without sufficient cause; and, that
in this kingdom it cannot ever be abridged at the mere discretion of
the magistrate, without the explicit permission of the laws. Here
again the language of the great charter[g] is, that no freeman shall
be taken or imprisoned, but by the lawful judgment of his equals, or
by the law of the land. And many subsequent old statutes[h] expressly
direct, that no man shall be taken or imprisoned by suggestion or
petition to the king, or his council, unless it be by legal
indictment, or the process of the common law. By the petition of
right, 3 Car. I, it is enacted, that no freeman shall be imprisoned or
detained without cause shewn, to which he may make answer according to
law. By 16 Car. I. c. 10. if any person be restrained of his liberty
by order or decree of any illegal court, or by command of the king's
majesty in person, or by warrant of the council board, or of any of
the privy council; he shall, upon demand of his counsel, have a writ
of _habeas corpus_, to bring his body before the court of king's bench
or common pleas; who shall determine whether the cause of his
commitment be just, and thereupon do as to justice shall appertain.
And by 31 Car. II. c. 2. commonly called _the habeas corpus act_, the
methods of obtaining this writ are so plainly pointed out and
enforced, that, so long as this statute remains unimpeached, no
subject of England can be long detained in prison, except in those
cases in which the law requires and justifies such detainer. And, lest
this act should be evaded by demanding unreasonable bail, or sureties
for the prisoner's appearance, it is declared by 1 W. & M. st. 2. c.
2. that excessive bail ought not to be required.
[Footnote g: c. 29.]
[Footnote h: 5 Edw. III. c. 9. 25 Edw. III. st. 5. c. 4. and 28 Edw.
III. c. 3.]
OF great importance to the public is the preservation of this personal
liberty: for if once it were left in the power of any, the highest,
magistrate to imprison arbitrarily whomever he or his officers thought
proper, (as in France it is daily practiced by the crown) there would
soon be an end of all other rights and immunities. Some have thought,
that unjust attacks, even upon life, or property, at the arbitrary
will of the magistrate, are less dangerous to the commonwealth, than
such as are made upon the personal liberty of the subject. To bereave
a man of life, or by violence to confiscate his estate, without
accusation or trial, would be so gross and notorious an act of
despotism, as must at once convey the alarm of tyranny throughout the
whole kingdom. But confinement of the person, by secretly hurrying him
to gaol, where his sufferings are unknown or forgotten; is a less
public, a less striking, and therefore a more dangerous engine of
arbitrary government. And yet sometimes, when the state is in real
danger, even this may be a necessary measure. But the happiness of our
constitution is, that it is not left to the executive power to
determine when the danger of the state is so great, as to render this
measure expedient. For the parliament only, or legislative power,
whenever it sees proper, can authorize the crown, by suspending the
_habeas corpus_ act for a short and limited time, to imprison
suspected persons without giving any reason for so doing. As the
senate of Rome was wont to have recourse to a dictator, a magistrate
of absolute authority, when they judged the republic in any imminent
danger. The decree of the senate, which usually preceded the
nomination of this magistrate, "_dent operam consules, nequid
respublica detrimenti capiat_," was called the _senatus consultum
ultimae necessitatis_. In like manner this experiment ought only to be
tried in cases of extreme emergency; and in these the nation parts
with it's liberty for a while, in order to preserve it for ever.
THE confinement of the person, in any wise, is an imprisonment. So
that the keeping a man against his will in a private house, putting
him in the stocks, arresting or forcibly detaining him in the street,
is an imprisonment[i]. And the law so much discourages unlawful
confinement, that if a man is under _duress of imprisonment_, which we
before explained to mean a compulsion by an illegal restraint of
liberty, until he seals a bond or the like; he may alledge this
duress, and avoid the extorted bond. But if a man be lawfully
imprisoned, and either to procure his discharge, or on any other fair
account, seals a bond or a deed, this is not by duress of
imprisonment, and he is not at liberty to avoid it[k]. To make
imprisonment lawful, it must either be, by process from the courts of
judicature, or by warrant from some legal officer, having authority
to commit to prison; which warrant must be in writing, under the hand
and seal of the magistrate, and express the causes of the commitment,
in order to be examined into (if necessary) upon a _habeas corpus_. If
there be no cause expressed, the goaler is not bound to detain the
prisoner[l]. For the law judges in this respect, saith sir Edward
Coke, like Festus the Roman governor; that it is unreasonable to send
a prisoner, and not to signify withal the crimes alleged against him.
[Footnote i: 2 Inst. 589.]
[Footnote k: 2 Inst. 482.]
[Footnote l: 2 Inst. 52, 53.]
A NATURAL and regular consequence of this personal liberty, is, that
every Englishman may claim a right to abide in his own country so long
as he pleases; and not to be driven from it unless by the sentence of
the law. The king indeed, by his royal prerogative, may issue out his
writ _ne exeat regnum_, and prohibit any of his subjects from going
into foreign parts without licence[m]. This may be necessary for the
public service, and safeguard of the commonwealth. But no power on
earth, except the authority of parliament, can send any subject of
England _out of_ the land against his will; no not even a criminal.
For exile, or transportation, is a punishment unknown to the common
law; and, wherever it is now inflicted, it is either by the choice of
the criminal himself, to escape a capital punishment, or else by the
express direction of some modern act of parliament. To this purpose
the great charter[n] declares that no freeman shall be banished,
unless by the judgment of his peers, or by the law of the land. And by
the _habeas corpus_ act, 31 Car. II. c. 2. (that second _magna carta_,
and stable bulwark of our liberties) it is enacted, that no subject of
this realm, who is an inhabitant of England, Wales, or Berwick, shall
be sent prisoner into Scotland, Ireland, Jersey, Guernsey, or places
beyond the seas; (where they cannot have the benefit and protection of
the common law) but that all such imprisonments shall be illegal; that
the person, who shall dare to commit another contrary to this law,
shall be disabled from bearing any office, shall incur the penalty of
a praemunire, and be incapable of receiving the king's pardon: and
the party suffering shall also have his private action against the
person committing, and all his aiders, advisers and abettors, and
shall recover treble costs; besides his damages, which no jury shall
assess at less than five hundred pounds.
[Footnote m: F.N.B. 85.]
[Footnote n: cap. 29.]
THE law is in this respect so benignly and liberally construed for the
benefit of the subject, that, though _within_ the realm the king may
command the attendance and service of all his liege-men, yet he cannot
send any man _out of_ the realm, even upon the public service: he
cannot even constitute a man lord deputy or lieutenant of Ireland
against his will, nor make him a foreign embassador[o]. For this might
in reality be no more than an honorable exile.
[Footnote o: 2 Inst. 47.]
III. THE third absolute right, inherent in every Englishman, is that
of property; which consists in the free use, enjoyment, and disposal
of all his acquisitions, without any control or diminution, save only
by the laws of the land. The original of private property is probably
founded in nature, as will be more fully explained in the second book
of the ensuing commentaries: but certainly the modifications under
which we at present find it, the method of conserving it in the
present owner, and of translating it from man to man, are entirely
derived from society; and are some of those civil advantages, in
exchange for which every individual has resigned a part of his natural
liberty. The laws of England are therefore, in point of honor and
justice, extremely watchful in ascertaining and protecting this right.
Upon this principle the great charter[p] has declared that no freeman
shall be disseised, or divested, of his freehold, or of his liberties,
or free customs, but by the judgment of his peers, or by the law of
the land. And by a variety of antient statutes[q] it is enacted, that
no man's lands or goods shall be seised into the king's hands, against
the great charter, and the law of the land; and that no man shall be
disinherited, nor put out of his franchises or freehold, unless he be
duly brought to answer, and be forejudged by course of law; and if any
thing be done to the contrary, it shall be redressed, and holden for
none.
[Footnote p: c. 29.]
[Footnote q: 5 Edw. III. c. 9. 25 Edw. III. st. 5. c. 4. 28 Edw. III.
c. 3.]
SO great moreover is the regard of the law for private property, that
it will not authorize the least violation of it; no, not even for the
general good of the whole community. If a new road, for instance, were
to be made through the grounds of a private person, it might perhaps
be extensively beneficial to the public; but the law permits no man,
or set of men, to do this without consent of the owner of the land. In
vain may it be urged, that the good of the individual ought to yield
to that of the community; for it would be dangerous to allow any
private man, or even any public tribunal, to be the judge of this
common good, and to decide whether it be expedient or no. Besides, the
public good is in nothing more essentially interested, than in the
protection of every individual's private rights, as modelled by the
municipal law. In this, and similar cases the legislature alone can,
and indeed frequently does, interpose, and compel the individual to
acquiesce. But how does it interpose and compel? Not by absolutely
stripping the subject of his property in an arbitrary manner; but by
giving him a full indemnification and equivalent for the injury
thereby sustained. The public is now considered as an individual,
treating with an individual for an exchange. All that the legislature
does is to oblige the owner to alienate his possessions for a
reasonable price; and even this is an exertion of power, which the
legislature indulges with caution, and which nothing but the
legislature can perform.
NOR is this the only instance in which the law of the land has
postponed even public necessity to the sacred and inviolable rights of
private property. For no subject of England can be constrained to pay
any aids or taxes, even for the defence of the realm or the support of
government, but such as are imposed by his own consent, or that of his
representatives in parliament. By the statute 25 Edw. I. c. 5 and 6.
it is provided, that the king shall not take any aids or tasks, but
by the common assent of the realm. And what that common assent is, is
more fully explained by 34 Edw. I. st. 4. cap. 1. which enacts, that
no talliage or aid shall be taken without assent of the arch-bishops,
bishops, earls, barons, knights, burgesses, and other freemen of the
land[r]: and again by 14 Edw. III. st. 2. c. 1. the prelates, earls,
barons, and commons, citizens, burgesses, and merchants shall not be
charged to make any aid, if it be not by the common assent of the
great men and commons in parliament. And as this fundamental law had
been shamefully evaded under many succeeding princes, by compulsive
loans, and benevolences extorted without a real and voluntary consent,
it was made an article in the petition of right 3 Car. I, that no man
shall be compelled to yield any gift, loan, or benevolence, tax, or
such like charge, without common consent by act of parliament. And,
lastly, by the statute 1 W. & M. st. 2. c. 2. it is declared, that
levying money for or to the use of the crown, by pretence of
prerogative, without grant of parliament; or for longer time, or in
other manner, than the same is or shall be granted, is illegal.
[Footnote r: See the historical introduction to the great charter, &c,
_sub anno_ 1297; wherein it is shewn that this statute _de talliagio
non concedendo_, supposed to have been made in 34 Edw. I, is in
reality nothing more than a sort of translation into Latin of the
_confirmatio cartarum_, 25 Edw. I, which was originally published in
the Norman language.]
IN the three preceding articles we have taken a short view of the
principal absolute rights which appertain to every Englishman. But in
vain would these rights be declared, ascertained, and protected by the
dead letter of the laws, if the constitution had provided no other
method to secure their actual enjoyment. It has therefore established
certain other auxiliary subordinate rights of the subject, which serve
principally as barriers to protect and maintain inviolate the three
great and primary rights, of personal security, personal liberty, and
private property. These are,
1. THE constitution, powers, and privileges of parliament, of which I
shall treat at large in the ensuing chapter.
2. THE limitation of the king's prerogative, by bounds so certain and
notorious, that it is impossible he should exceed them without the
consent of the people. Of this also I shall treat in it's proper
place. The former of these keeps the legislative power in due health
and vigour, so as to make it improbable that laws should be enacted
destructive of general liberty: the latter is a guard upon the
executive power, by restraining it from acting either beyond or in
contradiction to the laws, that are framed and established by the
other.
3. A THIRD subordinate right of every Englishman is that of applying
to the courts of justice for redress of injuries. Since the law is in
England the supreme arbiter of every man's life, liberty, and
property, courts of justice must at all times be open to the subject,
and the law be duly administred therein. The emphatical words of
_magna carta_[s], spoken in the person of the king, who in judgment of
law (says sir Edward Coke[t]) is ever present and repeating them in
all his courts, are these; "_nulli vendemus, nulli negabimus, aut
differemus rectum vel justitiam_: and therefore every subject,"
continues the same learned author, "for injury done to him _in bonis,
in terris, vel persona_, by any other subject, be he ecclesiastical or
temporal without any exception, may take his remedy by the course of
the law, and have justice and right for the injury done to him, freely
without sale, fully without any denial, and speedily without delay."
It were endless to enumerate all the _affirmative_ acts of parliament
wherein justice is directed to be done according to the law of the
land: and what that law is, every subject knows; or may know if he
pleases: for it depends not upon the arbitrary will of any judge; but
is permanent, fixed, and unchangeable, unless by authority of
parliament. I shall however just mention a few _negative_ statutes,
whereby abuses, perversions, or delays of justice, especially by the
prerogative, are restrained. It is ordained by _magna carta_[u], that
no freeman shall be outlawed, that is, put out of the protection and
benefit of the laws, but according to the law of the land. By 2 Edw.
III. c. 8. and 11 Ric. II. c. 10. it is enacted, that no commands or
letters shall be sent under the great seal, or the little seal, the
signet, or privy seal, in disturbance of the law; or to disturb or
delay common right: and, though such commandments should come, the
judges shall not cease to do right. And by 1 W. & M. st. 2. c. 2. it
is declared, that the pretended power of suspending, or dispensing
with laws, or the execution of laws, by regal authority without
consent of parliament, is illegal.
[Footnote s: c. 29.]
[Footnote t: 2 Inst. 55.]
[Footnote u: c. 29.]
NOT only the substantial part, or judicial decisions, of the law, but
also the formal part, or method of proceeding, cannot be altered but
by parliament: for if once those outworks were demolished, there would
be no inlet to all manner of innovation in the body of the law itself.
The king, it is true, may erect new courts of justice; but then they
must proceed according to the old established forms of the common law.
For which reason it is declared in the statute 16 Car. I. c. 10. upon
the dissolution of the court of starchamber, that neither his majesty,
nor his privy council, have any jurisdiction, power, or authority by
English bill, petition, articles, libel (which were the course of
proceeding in the starchamber, borrowed from the civil law) or by any
other arbitrary way whatsoever, to examine, or draw into question,
determine or dispose of the lands or goods of any subjects of this
kingdom; but that the same ought to be tried and determined in the
ordinary courts of justice, and by _course of law_.
4. IF there should happen any uncommon injury, or infringement of the
rights beforementioned, which the ordinary course of law is too
defective to reach, there still remains a fourth subordinate right
appertaining to every individual, namely, the right of petitioning the
king, or either house of parliament, for the redress of grievances.
In Russia we are told[w] that the czar Peter established a law, that
no subject might petition the throne, till he had first petitioned two
different ministers of state. In case he obtained justice from
neither, he might then present a third petition to the prince; but
upon pain of death, if found to be in the wrong. The consequence of
which was, that no one dared to offer such third petition; and
grievances seldom falling under the notice of the sovereign, he had
little opportunity to redress them. The restrictions, for some there
are, which are laid upon petitioning in England, are of a nature
extremely different; and while they promote the spirit of peace, they
are no check upon that of liberty. Care only must be taken, lest,
under the pretence of petitioning, the subject be guilty of any riot
or tumult; as happened in the opening of the memorable parliament in
1640: and, to prevent this, it is provided by the statute 13 Car. II.
st. 1. c. 5. that no petition to the king, or either house of
parliament, for any alterations in church or state, shall be signed by
above twenty persons, unless the matter thereof be approved by three
justices of the peace or the major part of the grand jury, in the
country; and in London by the lord mayor, aldermen, and common
council; nor shall any petition be presented by more than two persons
at a time. But under these regulations, it is declared by the statute
1 W. & M. st. 2. c. 2. that the subject hath a right to petition; and
that all commitments and prosecutions for such petitioning are
illegal.
[Footnote w: Montesq. Sp. L. 12. 26.]
5. THE fifth and last auxiliary right of the subject, that I shall at
present mention, is that of having arms for their defence, suitable to
their condition and degree, and such as are allowed by law. Which is
also declared by the same statute 1 W. & M. st. 2. c. 2. and is indeed
a public allowance, under due restrictions, of the natural right of
resistance and self-preservation, when the sanctions of society and
laws are found insufficient to restrain the violence of oppression.
IN these several articles consist the rights, or, as they are
frequently termed, the liberties of Englishmen: liberties more
generally talked of, than thoroughly understood; and yet highly
necessary to be perfectly known and considered by every man of rank or
property, lest his ignorance of the points whereon it is founded
should hurry him into faction and licentiousness on the one hand, or a
pusillanimous indifference and criminal submission on the other. And
we have seen that these rights consist, primarily, in the free
enjoyment of personal security, of personal liberty, and of private
property. So long as these remain inviolate, the subject is perfectly
free; for every species of compulsive tyranny and oppression must act
in opposition to one or other of these rights, having no other object
upon which it can possibly be employed. To preserve these from
violation, it is necessary that the constitution of parliaments be
supported in it's full vigor; and limits certainly known, be set to
the royal prerogative. And, lastly, to vindicate these rights, when
actually violated or attacked, the subjects of England are entitled,
in the first place, to the regular administration and free course of
justice in the courts of law; next to the right of petitioning the
king and parliament for redress of grievances; and lastly to the right
of having and using arms for self-preservation and defence. And all
these rights and liberties it is our birthright to enjoy entire;
unless where the laws of our country have laid them under necessary
restraints. Restraints in themselves so gentle and moderate, as will
appear upon farther enquiry, that no man of sense or probity would
wish to see them slackened. For all of us have it in our choice to do
every thing that a good man would desire to do; and are restrained
from nothing, but what would be pernicious either to ourselves or our
fellow citizens. So that this review of our situation may fully
justify the observation of a learned French author, who indeed
generally both thought and wrote in the spirit of genuine freedom[x];
and who hath not scrupled to profess, even in the very bosom of his
native country, that the English is the only nation in the world,
where political or civil liberty is the direct end of it's
constitution. Recommending therefore to the student in our laws a
farther and more accurate search into this extensive and important
title, I shall close my remarks upon it with the expiring wish of the
famous father Paul to his country, "ESTO PERPETUA!"
[Footnote x: Montesq. Sp. L. 11. 5.]
CHAPTER THE SECOND.
OF THE PARLIAMENT.
WE are next to treat of the rights and duties of persons, as they are
members of society, and stand in various relations to each other.
These relations are either public or private: and we will first
consider those that are public.
THE most universal public relation, by which men are connected
together, is that of government; namely, as governors and governed,
or, in other words, as magistrates and people. Of magistrates also
some are _supreme_, in whom the sovereign power of the state resides;
others are _subordinate_, deriving all their authority from the
supreme magistrate, accountable to him for their conduct, and acting
in an inferior secondary sphere.
IN all tyrannical governments the supreme magistracy, or the right
both of _making_ and of _enforcing_ the laws, is vested in one and the
same man, or one and the same body of men; and wherever these two
powers are united together, there can be no public liberty. The
magistrate may enact tyrannical laws, and execute them in a tyrannical
manner, since he is possessed, in quality of dispenser of justice,
with all the power which he as legislator thinks proper to give
himself. But, where the legislative and executive authority are in
distinct hands, the former will take care not to entrust the latter
with so large a power, as may tend to the subversion of it's own
independence, and therewith of the liberty of the subject. With us
therefore in England this supreme power is divided into two branches;
the one legislative, to wit, the parliament, consisting of king,
lords, and commons; the other executive, consisting of the king alone.
It will be the business of this chapter to consider the British
parliament; in which the legislative power, and (of course) the
supreme and absolute authority of the state, is vested by our
constitution.
THE original or first institution of parliaments is one of those
matters that lie so far hidden in the dark ages of antiquity, that the
tracing of it out is a thing equally difficult and uncertain. The
word, _parliament_, itself (or _colloquium_, as some of our historians
translate it) is comparatively of modern date, derived from the
French, and signifying the place where they met and conferred
together. It was first applied to general assemblies of the states
under Louis VII in France, about the middle of the twelfth century[a].
But it is certain that, long before the introduction of the Norman
language into England, all matters of importance were debated and
settled in the great councils of the realm. A practice, which seems to
have been universal among the northern nations, particularly the
Germans[b]; and carried by them into all the countries of Europe,
which they overran at the dissolution of the Roman empire. Relics of
which constitution, under various modifications and changes, are still
to be met with in the diets of Poland, Germany, and Sweden, and the
assembly of the estates in France; for what is there now called the
parliament is only the supreme court of justice, composed of judges
and advocates; which neither is in practice, nor is supposed to be in
theory, a general council of the realm.
[Footnote a: Mod. Un. Hist. xxiii. 307.]
[Footnote b: _De minoribus rebus principes consultant, de majoribus
omnes._ Tac. _de mor. Germ._ _c._ 11.]
WITH us in England this general council hath been held immemorially,
under the several names of _michel-synoth_, or great council,
_michel-gemote_ or great meeting, and more frequently _wittena-gemote_
or the meeting of wise men. It was also stiled in Latin, _commune
concilium regni_, _magnum concilium regis_, _curia magna_, _conventus
magnatum vel procerum_, _assisa generalis_, and sometimes _communitas
regni Angliae_[c]. We have instances of it's meeting to order the
affairs of the kingdom, to make new laws, and to amend the old, or, as
Fleta[d] expresses it, "_novis injuriis emersis nova constituere
remedia_," so early as the reign of Ina king of the west Saxons, Offa
king of the Mercians, and Ethelbert king of Kent, in the several
realms of the heptarchy. And, after their union, the mirrour[e]
informs us, that king Alfred ordained for a perpetual usage, that
these councils should meet twice in the year, or oftener, if need be,
to treat of the government of God's people; how they should keep
themselves from sin, should live in quiet, and should receive right.
Our succeeding Saxon and Danish monarchs held frequent councils of
this sort, as appears from their respective codes of laws; the titles
whereof usually speak them to be enacted, either by the king with the
advice of his wittena-gemote, or wise men, as, "_haec sunt instituta,
quae Edgarus rex consilio sapientum suorum instituit_;" or to be
enacted by those sages with the advice of the king, as, "_haec sunt
judicia, quae sapientes consilio regis Ethelstani instituerunt_;" or
lastly, to be enacted by them both together, as; "_hae sunt
institutiones, quas rex Edmundus et episcopi sui cum sapientibus suis
instituerunt_."
[Footnote c: Glanvil. _l._ 13 _c._ 32. _l._ 9. _c._ 10.--Pref. 9
Rep.--2 Inst. 526.]
[Footnote d: _l._ 2. _c._ 2.]
[Footnote e: c. 1. §. 3.]
THERE is also no doubt but these great councils were held regularly
under the first princes of the Norman line. Glanvil, who wrote in the
reign of Henry the second, speaking of the particular amount of an
amercement in the sheriff's court, says, it had never yet been
ascertained by the general assise, or assembly, but was left to the
custom of particular counties[f]. Here the general assise is spoken of
as a meeting well known, and it's statutes or decisions are put in a
manifest contradistinction to customs, or the common law. And in
Edward the third's time an act of parliament, made in the reign of
William the conqueror, was pleaded in the case of the abbey of St
Edmund's-bury, and judicially allowed by the court[g].
[Footnote f: _Quanta esse debeat per nullam assisam generalem
determinatum est, sed pro consuetudine singulorum comitatuum debetur._
_l._ 9. _c._ 10.]
[Footnote g: Year book, 21 Edw. III. 60.]
HENCE it indisputably appears, that parliaments, or general councils,
are coeval with the kingdom itself. How those parliaments were
constituted and composed, is another question, which has been matter
of great dispute among our learned antiquarians; and, particularly,
whether the commons were summoned at all; or, if summoned, at what
period they began to form a distinct assembly. But it is not my
intention here to enter into controversies of this sort. I hold it
sufficient that it is generally agreed, that in the main the
constitution of parliament, as it now stands, was marked out so long
ago as the seventeenth year of king John, _A.D._ 1215, in the great
charter granted by that prince; wherein he promises to summon all
arch-bishops, bishops, abbots, earls, and greater barons, personally;
and all other tenants in chief under the crown, by the sheriff and
bailiffs; to meet at a certain place, with forty days notice, to
assess aids and scutages when necessary. And this constitution has
subsisted in fact at least from the year 1266, 49 Hen. III: there
being still extant writs of that date, to summon knights, citizens,
and burgesses to parliament. I proceed therefore to enquire wherein
consists this constitution of parliament, as it now stands, and has
stood for the space of five hundred years. And in the prosecution of
this enquiry, I shall consider, first, the manner and time of it's
assembling: secondly, it's constituent parts: thirdly, the laws and
customs relating to parliament, considered as one aggregate body:
fourthly and fifthly, the laws and customs relating to each house,
separately and distinctly taken: sixthly, the methods of proceeding,
and of making statutes, in both houses: and lastly, the manner of the
parliament's adjournment, prorogation, and dissolution.
I. AS to the manner and time of assembling. The parliament is
regularly to be summoned by the king's writ or letter, issued out of
chancery by advice of the privy council, at least forty days before it
begins to sit. It is a branch of the royal prerogative, that no
parliament can be convened by it's own authority, or by the authority
of any, except the king alone. And this prerogative is founded upon
very good reason. For, supposing it had a right to meet spontaneously,
without being called together, it is impossible to conceive that all
the members, and each of the houses, would agree unanimously upon the
proper time and place of meeting: and if half of the members met, and
half absented themselves, who shall determine which is really the
legislative body, the part assembled, or that which stays away? It is
therefore necessary that the parliament should be called together at a
determinate time and place; and highly becoming it's dignity and
independence, that it should be called together by none but one of
it's own constituent parts; and, of the three constituent parts, this
office can only appertain to the king; as he is a single person, whose
will may be uniform and steady; the first person in the nation, being
superior to both houses in dignity; and the only branch of the
legislature that has a separate existence, and is capable of
performing any act at a time when no parliament is in being[h]. Nor is
it an exception to this rule that, by some modern statutes, on the
demise of a king or queen, if there be then no parliament in being,
the last parliament revives, and is to sit again for six months,
unless dissolved by the successor: for this revived parliament must
have been originally summoned by the crown.
[Footnote h: By motives somewhat similar to these the republic of
Venice was actuated, when towards the end of the seventh century it
abolished the tribunes of the people, who were annually chosen by the
several districts of the Venetian territory, and constituted a doge in
their stead; in whom the executive power of the state at present
resides. For which their historians have assigned these, as the
principal reasons. 1. The propriety of having the executive power a
part of the legislative, or senate; to which the former annual
magistrates were not admitted. 2. The necessity of having a single
person to convoke the great council when separated. Mod. Un. Hist.
xxvii. 15.]
IT is true, that by a statute, 16 Car. I. c. 1. it was enacted, that
if the king neglected to call a parliament for three years, the peers
might assemble and issue out writs for the choosing one; and, in case
of neglect of the peers, the constituents might meet and elect one
themselves. But this, if ever put in practice, would have been liable
to all the inconveniences I have just now stated; and the act itself
was esteemed so highly detrimental and injurious to the royal
prerogative, that it was repealed by statute 16 Car. II. c. 1. From
thence therefore no precedent can be drawn.
IT is also true, that the convention-parliament, which restored king
Charles the second, met above a month before his return; the lords by
their own authority, and the commons in pursuance of writs issued in
the name of the keepers of the liberty of England by authority of
parliament: and that the said parliament sat till the twenty ninth of
December, full seven months after the restoration; and enacted many
laws, several of which are still in force. But this was for the
necessity of the thing, which supersedes all law; for if they had not
so met, it was morally impossible that the kingdom should have been
settled in peace. And the first thing done after the king's return,
was to pass an act declaring this to be a good parliament,
notwithstanding the defect of the king's writs[i]. So that, as the
royal prerogative was chiefly wounded by their so meeting, and as the
king himself, who alone had a right to object, consented to wave the
objection, this cannot be drawn into an example in prejudice of the
rights of the crown. Besides we should also remember, that it was at
that time a great doubt among the lawyers[k], whether even this
healing act made it a good parliament; and held by very many in the
negative: though it seems to have been too nice a scruple.
[Footnote i: Stat. 12 Car. II. c. 1.]
[Footnote k: 1 Sid. 1.]
IT is likewise true, that at the time of the revolution, _A.D._ 1688,
the lords and commons by their own authority, and upon the summons of
the prince of Orange, (afterwards king William) met in a convention
and therein disposed of the crown and kingdom. But it must be
remembered, that this assembling was upon a like principle of
necessity as at the restoration; that is, upon an apprehension that
king James the second had abdicated the government, and that the
throne was thereby vacant: which apprehension of theirs was confirmed
by their concurrent resolution, when they actually came together. And
in such a case as the palpable vacancy of a throne, it follows _ex
necessitate rei_, that the form of the royal writs must be laid aside,
otherwise no parliament can ever meet again. For, let us put another
possible case, and suppose, for the sake of argument, that the whole
royal line should at any time fail, and become extinct, which would
indisputably vacate the throne: in this situation it seems reasonable
to presume, that the body of the nation, consisting of lords and
commons, would have a right to meet and settle the government;
otherwise there must be no government at all. And upon this and no
other principle did the convention in 1688 assemble. The vacancy of
the throne was precedent to their meeting without any royal summons,
not a consequence of it. They did not assemble without writ, and then
make the throne vacant; but the throne being previously vacant by the
king's abdication, they assembled without writ, as they must do if
they assembled at all. Had the throne been full, their meeting would
not have been regular; but, as it was really empty, such meeting
became absolutely necessary. And accordingly it is declared by statute
1 W. & M. st. 1. c. 1. that this convention was really the two houses
of parliament, notwithstanding the want of writs or other defects of
form. So that, notwithstanding these two capital exceptions, which
were justifiable only on a principle of necessity, (and each of which,
by the way, induced a revolution in the government) the rule laid down
is in general certain, that the king, only, can convoke a parliament.
AND this by the antient statutes of the realm[l], he is bound to do
every year, or oftener, if need be. Not that he is, or ever was,
obliged by these statutes to call a _new_ parliament every year; but
only to permit a parliament to sit annually for the redress of
grievances, and dispatch of business, _if need be_. These last words
are so loose and vague, that such of our monarchs as were enclined to
govern without parliaments, neglected the convoking them, sometimes
for a very considerable period, under pretence that there was no need
of them. But, to remedy this, by the statute 16 Car. II. c. 1. it is
enacted, that the sitting and holding of parliaments shall not be
intermitted above three years at the most. And by the statute 1 W. &
M. st. 2. c. 2. it is declared to be one of the rights of the people,
that for redress of all grievances, and for the amending,
strengthening, and preserving the laws, parliaments ought to be held
_frequently_. And this indefinite _frequency_ is again reduced to a
certainty by statute 6 W. & M. c. 2. which enacts, as the statute of
Charles the second had done before, that a new parliament shall be
called within three years[m] after the determination of the former.
[Footnote l: 4 Edw. III. c. 14. and 36 Edw. III. c. 10.]
[Footnote m: This is the same period, that is allowed in Sweden for
intermitting their general diets, or parliamentary assemblies. Mod.
Un. Hist. xxxiii. 15.]
II. THE constituent parts of a parliament are the next objects of our
enquiry. And these are, the king's majesty, sitting there in his royal
political capacity, and the three estates of the realm; the lords
spiritual, the lords temporal, (who sit, together with, the king, in
one house) and the commons, who sit by themselves in another[n]. And
the king and these three estates, together, form the great corporation
or body politic of the kingdom, of which the king is said to be
_caput, principium, et finis_. For upon their coming together the king
meets them, either in person or by representation; without which there
can be no beginning of a parliament[o]; and he also has alone the
power of dissolving them.
[Footnote n: 4 Inst. 1.]
[Footnote o: 4 Inst. 6.]
IT is highly necessary for preserving the ballance of the
constitution, that the executive power should be a branch, though not
the whole, of the legislature. The total union of them, we have seen,
would be productive of tyranny; the total disjunction of them for the
present, would in the end produce the same effects, by causing that
union, against which it seems to provide. The legislature would soon
become tyrannical, by making continual encroachments, and gradually
assuming to itself the rights of the executive power. Thus the long
parliament of Charles the first, while it acted in a constitutional
manner, with the royal concurrence, redressed many heavy grievances
and established many salutary laws. But when the two houses assumed
the power of legislation, in exclusion of the royal authority, they
soon after assumed likewise the reins of administration; and, in
consequence of these united powers, overturned both church and state,
and established a worse oppression than any they pretended to remedy.
To hinder therefore any such encroachments, the king is himself a part
of the parliament: and, as this is the reason of his being so, very
properly therefore the share of legislation, which the constitution
has placed in the crown, consists in the power of _rejecting_, rathar
[Transcriber's Note: rather] than _resolving_; this being sufficient
to answer the end proposed. For we may apply to the royal negative, in
this instance, what Cicero observes of the negative of the Roman
tribunes, that the crown has not any power of _doing_ wrong, but
merely of _preventing_ wrong from being done[p]. The crown cannot
begin of itself any alterations in the present established law; but it
may approve or disapprove of the alterations suggested and consented
to by the two houses. The legislative therefore cannot abridge the
executive power of any rights which it now has by law, without it's
own consent; since the law must perpetually stand as it now does,
unless all the powers will agree to alter it. And herein indeed
consists the true excellence of the English government, that all the
parts of it form a mutual check upon each other. In the legislature,
the people are a check upon the nobility, and the nobility a check
upon the people; by the mutual privilege of rejecting what the other
has resolved: while the king is a check upon both, which preserves the
executive power from encroachments. And this very executive power is
again checked, and kept within due bounds by the two houses, through
the privilege they have of enquiring into, impeaching, and punishing
the conduct (not indeed of the king, which would destroy his
constitutional independence; but, which is more beneficial to the
public) of his evil and pernicious counsellors. Thus every branch of
our civil polity supports and is supported, regulates and is
regulated, by the rest; for the two houses naturally drawing in two
directions of opposite interest, and the prerogative in another still
different from them both, they mutually keep each other from exceeding
their proper limits; while the whole is prevented from separation, and
artificially connected together by the mixed nature of the crown,
which is a part of the legislative, and the sole executive magistrate.
Like three distinct powers in mechanics, they jointly impel the
machine of government in a direction different from what either,
acting by themselves, would have done; but at the same time in a
direction partaking of each, and formed out of all; a direction which
constitutes the true line of the liberty and happiness of the
community.
[Footnote p: _Sulla--tribunis plebis sua lege injuriae faciendae
potestatem ademit, auxilii ferendi reliquit._ _de LL._ 3. 9.]
LET us now consider these constituent parts of the sovereign power, or
parliament, each in a separate view. The king's majesty will be the
subject of the next, and many subsequent chapters, to which we must at
present refer.
THE next in order are the spiritual lords. These consist of two
arch-bishops, and twenty four bishops; and, at the dissolution of
monasteries by Henry VIII, consisted likewise of twenty six mitred
abbots, and two priors[q]: a very considerable body, and in those
times equal in number to the temporal nobility[r]. All these hold, or
are supposed to hold, certain antient baronies under the king: for
William the conqueror thought proper to change the spiritual tenure,
of frankalmoign or free alms, under which the bishops held their lands
during the Saxon government, into the feodal or Norman tenure by
barony; which subjected their estates to all civil charges and
assessments, from which they were before exempt[s]: and, in right of
succession to those baronies, the bishops obtained their seat in the
house of lords[t]. But though these lords spiritual are in the eye of
the law a distinct estate from the lords temporal, and are so
distinguished in all our acts of parliament, yet in practice they are
usually blended together under the one name of _the lords_; they
intermix in their votes; and the majority of such intermixture binds
both estates. For if a bill should pass their house, there is no doubt
of it's being effectual, though every lord spiritual should vote
against it; of which Selden[u], and sir Edward Coke[w], give many
instances: as, on the other hand, I presume it would be equally good,
if the lords temporal present were inferior to the bishops in number,
and every one of those temporal lords gave his vote to reject the
bill; though this sir Edward Coke seems to doubt of[x].
[Footnote q: Seld. tit. hon. 2. 5. 27.]
[Footnote r: Co. Litt. 97.]
[Footnote s: Gilb. Hist. Exch. 55. Spelm. W.I. 291.]
[Footnote t: Glanv. 7. 1. Co. Litt. 97. Seld. tit. hon. 2. 5. 19.]
[Footnote u: Baronage. p. 1. c. 6.]
[Footnote w: 2 Inst. 585, 6, 7.]
[Footnote x: 4 Inst. 25.]
THE lords temporal consist of all the peers of the realm (the bishops
not being in strictness held to be such, but merely lords of
parliament[y]) by whatever title of nobility distinguished; dukes,
marquisses, earls, viscounts, or barons; of which dignities we shall
speak more hereafter. Some of these sit by descent, as do all antient
peers; some by creation, as do all new-made ones; others, since the
union with Scotland, by election, which is the case of the sixteen
peers, who represent the body of the Scots nobility. Their number is
indefinite, and may be encreased at will by the power of the crown:
and once, in the reign of queen Anne, there was an instance of
creating no less than twelve together; in contemplation of which, in
the reign of king George the first, a bill passed the house of lords,
and was countenanced by the then ministry, for limiting the number of
the peerage. This was thought by some to promise a great acquisition
to the constitution, by restraining the prerogative from gaining the
ascendant in that august assembly, by pouring in at pleasure an
unlimited number of new created lords. But the bill was ill-relished
and miscarried in the house of commons, whose leading members were
then desirous to keep the avenues to the other house as open and easy
as possible.
[Footnote y: Staunford. P.C. 153.]
THE distinction of rank and honours is necessary in every
well-governed state; in order to reward such as are eminent for their
services to the public, in a manner the most desirable to individuals,
and yet without burthen to the community; exciting thereby an
ambitious yet laudable ardor, and generous emulation in others. And
emulation, or virtuous ambition, is a spring of action which, however
dangerous or invidious in a mere republic or under a despotic sway,
will certainly be attended with good effects under a free monarchy;
where, without destroying it's existence, it's excesses may be
continually restrained by that superior power, from which all honour
is derived. Such a spirit, when nationally diffused, gives life and
vigour to the community; it sets all the wheels of government in
motion, which under a wise regulator, may be directed to any
beneficial purpose; and thereby every individual may be made
subservient to the public good, while he principally means to promote
his own particular views. A body of nobility is also more peculiarly
necessary in our mixed and compounded constitution, in order to
support the rights of both the crown and the people, by forming a
barrier to withstand the encroachments of both. It creates and
preserves that gradual scale of dignity, which proceeds from the
peasant to the prince; rising like a pyramid from a broad foundation,
and diminishing to a point as it rises. It is this ascending and
contracting proportion that adds stability to any government; for when
the departure is sudden from one extreme to another, we may pronounce
that state to be precarious. The nobility therefore are the pillars,
which are reared from among the people, more immediately to support
the throne; and if that falls, they must also be buried under it's
ruins. Accordingly, when in the last century the commons had
determined to extirpate monarchy, they also voted the house of lords
to be useless and dangerous. And since titles of nobility are thus
expedient in the state, it is also expedient that their owners should
form an independent and separate branch of the legislature. If they
were confounded with the mass of the people, and like them had only a
vote in electing representatives, their privileges would soon be borne
down and overwhelmed by the popular torrent, which would effectually
level all distinctions. It is therefore highly necessary that the body
of nobles should have a distinct assembly, distinct deliberations, and
distinct powers from the commons.
THE commons consist of all such men of any property in the kingdom as
have not seats in the house of lords; every one of which has a voice
in parliament, either personally, or by his representatives. In a free
state, every man, who is supposed a free agent, ought to be, in some
measure, his own governor; and therefore a branch at least of the
legislative power should reside in the whole body of the people. And
this power, when the territories of the state are small and it's
citizens easily known, should be exercised by the people in their
aggregate or collective capacity, as was wisely ordained in the petty
republics of Greece, and the first rudiments of the Roman state. But
this will be highly inconvenient, when the public territory is
extended to any considerable degree, and the number of citizens is
encreased. Thus when, after the social war, all the burghers of Italy
were admitted free citizens of Rome, and each had a vote in the public
assemblies, it became impossible to distinguish the spurious from the
real voter, and from that time all elections and popular deliberations
grew tumultuous and disorderly; which paved the way for Marius and
Sylla, Pompey and Caesar, to trample on the liberties of their
country, and at last to dissolve the commonwealth. In so large a state
as ours it is therefore very wisely contrived, that the people should
do that by their representatives, which it is impracticable to perform
in person: representatives, chosen by a number of minute and separate
districts, wherein all the voters are, or easily may be,
distinguished. The counties are therefore represented by knights,
elected by the proprietors of lands; the cities and boroughs are
represented by citizens and burgesses, chosen by the mercantile part
or supposed trading interest of the nation; much in the same manner as
the burghers in the diet of Sweden are chosen by the corporate towns,
Stockholm sending four, as London does with us, other cities two, and
some only one[z]. The number of English representatives is 513, and of
Scots 45; in all 558. And every member, though chosen by one
particular district, when elected and returned serves for the whole
realm. For the end of his coming thither is not particular, but
general; not barely to advantage his constituents, but the _common_
wealth; to advise his majesty (as appears from the writ of summons[a])
"_de communi consilio super negotiis quibusdam arduis et urgentibus,
regem, statum et defensionem regni Angliae et ecclesiae Anglicanae
concernentibus_." And therefore he is not bound, like a deputy in the
united provinces, to consult with, or take the advice, of his
constituents upon any particular point, unless he himself thinks it
proper or prudent so to do.
[Footnote z: Mod. Un. Hist. xxxiii. 18.]
[Footnote a: 4 Inst. 14.]
THESE are the constituent parts of a parliament, the king, the lords
spiritual and temporal, and the commons. Parts, of which each is so
necessary, that the consent of all three is required to make any new
law that shall bind the subject. Whatever is enacted for law by one,
or by two only, of the three is no statute; and to it no regard is
due, unless in matters relating to their own privileges. For though,
in the times of madness and anarchy, the commons once passed a
vote[b], "that whatever is enacted or declared for law by the commons
in parliament assembled hath the force of law; and all the people of
this nation are concluded thereby, although the consent and
concurrence of the king or house of peers be not had thereto;" yet,
when the constitution was restored in all it's forms, it was
particularly enacted by statute 13 Car. II. c. 1. that if any person
shall maliciously or advisedly affirm, that both or either of the
houses of parliament have any legislative authority without the king,
such person shall incur all the penalties of a praemunire.
[Footnote b: 4 Jan. 1648.]
III. WE are next to examine the laws and customs relating to
parliament, thus united together and considered as one aggregate body.
THE power and jurisdiction of parliament, says sir Edward Coke[c], is
so transcendent and absolute, that it cannot be confined, either for
causes or persons, within any bounds. And of this high court he adds,
it may be truly said "_si antiquitatem spectes, est vetustissima; si
dignitatem, est honoratissima; si juridictionem, est capacissima_." It
hath sovereign and uncontrolable authority in making, confirming,
enlarging, restraining, abrogating, repealing, reviving, and
expounding of laws, concerning matters of all possible denominations,
ecclesiastical, or temporal, civil, military, maritime, or criminal:
this being the place where that absolute despotic power, which must in
all governments reside somewhere, is entrusted by the constitution of
these kingdoms. All mischiefs and grievances, operations and remedies,
that transcend the ordinary course of the laws, are within the reach
of this extraordinary tribunal. It can regulate or new model the
succession to the crown; as was done in the reign of Henry VIII and
William III. It can alter the established religion of the land; as was
done in a variety of instances, in the reigns of king Henry VIII and
his three children. It can change and create afresh even the
constitution of the kingdom and of parliaments themselves; as was done
by the act of union, and the several statutes for triennial and
septennial elections. It can, in short, do every thing that is not
naturally impossible; and therefore some have not scrupled to call
it's power, by a figure rather too bold, the omnipotence of
parliament. True it is, that what they do, no authority upon earth can
undo. So that it is a matter most essential to the liberties of this
kingdom, that such members be delegated to this important trust, as
are most eminent for their probity, their fortitude, and their
knowlege; for it was a known apothegm of the great lord treasurer
Burleigh, "that England could never be ruined but by a parliament:"
and, as sir Matthew Hale observes[d], this being the highest and
greatest court, over which none other can have jurisdiction in the
kingdom, if by any means a misgovernment should any way fall upon it,
the subjects of this kingdom are left without all manner of remedy. To
the same purpose the president Montesquieu, though I trust too
hastily, presages[e]; that as Rome, Sparta, and Carthage have lost
their liberty and perished, so the constitution of England will in
time lose it's liberty, will perish: it will perish, whenever the
legislative power shall become more corrupt than the executive.
[Footnote c: 4 Inst. 36.]
[Footnote d: of parliaments, 49.]
[Footnote e: Sp. L. 11. 6.]
IT must be owned that Mr Locke[f], and other theoretical writers, have
held, that "there remains still inherent in the people a supreme power
to remove or alter the legislative, when they find the legislative act
contrary to the trust reposed in them: for when such trust is abused,
it is thereby forfeited, and devolves to those who gave it." But
however just this conclusion may be in theory, we cannot adopt it, nor
argue from it, under any dispensation of government at present
actually existing. For this devolution of power, to the people at
large, includes in it a dissolution of the whole form of government
established by that people, reduces all the members to their original
state of equality, and by annihilating the sovereign power repeals all
positive laws whatsoever before enacted. No human laws will therefore
suppose a case, which at once must destroy all law, and compel men to
build afresh upon a new foundation; nor will they make provision for
so desperate an event, as must render all legal provisions
ineffectual. So long therefore as the English constitution lasts, we
may venture to affirm, that the power of parliament is absolute and
without control.
[Footnote f: on Gov. p. 2. §. 149, 227.]
IN order to prevent the mischiefs that might arise, by placing this
extensive authority in hands that are either incapable, or else
improper, to manage it, it is provided that no one shall sit or vote
in either house of parliament, unless he be twenty one years of age.
This is expressly declared by statute 7 & 8 W. III. c. 25. with regard
to the house of commons; though a minor was incapacitated before from
sitting in either house, by the law and custom of parliament[g]. To
prevent crude innovations in religion and government, it is enacted by
statute 30 Car. II. st. 2. and 1 Geo. I. c. 13. that no member shall
vote or sit in either house, till he hath in the presence of the house
taken the oaths of allegiance, supremacy, and abjuration, and
subscribed and repeated the declaration against transubstantiation,
and invocation of saints, and the sacrifice of the mass. To prevent
dangers that may arise to the kingdom from foreign attachments,
connexions, or dependencies, it is enacted by the 12 & 13 W. III. c.
2. that no alien, born out of the dominions of the crown of Great
Britain, even though he be naturalized, shall be capable of being a
member of either house of parliament.
[Footnote g: 4 Inst. 47.]
FARTHER: as every court of justice hath laws and customs for it's
direction, some the civil and canon, some the common law, others their
own peculiar laws and customs, so the high court of parliament hath
also it's own peculiar law, called the _lex et consuetudo
parliamenti_; a law which sir Edward Coke[h] observes, is "_ab omnibus
quaerenda, a multis ignorata, a paucis cognita_." It will not
therefore be expected that we should enter into the examination of
this law, with any degree of minuteness; since, as the same learned
author assures us[i], it is much better to be learned out of the rolls
of parliament, and other records, and by precedents, and continual
experience, than can be expressed by any one man. It will be
sufficient to observe, that the whole of the law and custom of
parliament has it's original from this one maxim; "that whatever
matter arises concerning either house of parliament, ought to be
examined, discussed, and adjudged in that house to which it relates,
and not elsewhere." Hence, for instance, the lords will not suffer
the commons to interfere in settling a claim of peerage; the commons
will not allow the lords to judge of the election of a burgess; nor
will either house permit the courts of law to examine the merits of
either case. But the maxims upon which they proceed, together with
their method of proceeding, rest entirely in the breast of the
parliament itself; and are not defined and ascertained by any
particular stated laws.
[Footnote h: 1 Inst. 11.]
[Footnote i: 4 Inst. 50.]
THE _privileges_ of parliament are likewise very large and indefinite;
which has occasioned an observation, that the principal privilege of
parliament consisted in this, that it's privileges were not certainly
known to any but the parliament itself. And therefore when in 31 Hen.
VI the house of lords propounded a question to the judges touching the
privilege of parliament, the chief justice, in the name of his
brethren, declared, "that they ought not to make answer to that
question; for it hath not been used aforetime that the justices should
in any wise determine the privileges of the high court of parliament;
for it is so high and mighty in his nature, that it may make law; and
that which is law, it may make no law; and the determination and
knowlege of that privilege belongs to the lords of parliament, and not
to the justices[k]." [Transcriber's Note: missing end quotation mark
added] Privilege of parliament was principally established, in order
to protect it's members not only from being molested by their
fellow-subjects, but also more especially from being oppressed by the
power of the crown. If therefore all the privileges of parliament were
once to be set down and ascertained, and no privilege to be allowed
but what was so defined and determined, it were easy for the executive
power to devise some new case, not within the line of privilege, and
under pretence thereof to harass any refractory member and violate the
freedom of parliament. The dignity and independence of the two houses
are therefore in great measure preserved by keeping their privileges
indefinite. Some however of the more notorious privileges of the
members of either house are, privilege of speech, of person, of their
domestics, and of their lands and goods. As to the first, privilege of
speech, it is declared by the statute 1 W. & M. st. 2. c. 2. as one of
the liberties of the people, "that the freedom of speech, and debates,
and proceedings in parliament, ought not to be impeached or questioned
in any court or place out of parliament." And this freedom of speech
is particularly demanded of the king in person, by the speaker of the
house of commons, at the opening of every new parliament. So likewise
are the other privileges, of person, servants, lands and goods; which
are immunities as antient as Edward the confessor, in whose laws[l] we
find this precept. "_Ad synodos venientibus, sive summoniti sint, sive
per se quid agendum habuerint, sit summa pax_:" and so too, in the old
Gothic constitutions, "_extenditur haec pax et securitas ad
quatuordecim dies, convocato regni senatu_[m]." This includes not only
privilege from illegal violence, but also from legal arrests, and
seisures by process from the courts of law. To assault by violence a
member of either house, or his menial servants, is a high contempt of
parliament, and there punished with the utmost severity. It has
likewise peculiar penalties annexed to it in the courts of law, by the
statutes 5 Hen. IV. c. 6. and 11 Hen. VI. c. 11. Neither can any
member of either house be arrested and taken into custody, nor served
with any process of the courts of law; nor can his menial servants be
arrested; nor can any entry be made on his lands; nor can his goods be
distrained or seised; without a breach of the privilege of parliament.
These privileges however, which derogate from the common law, being
only indulged to prevent the member's being diverted from the public
business, endure no longer than the session of parliament, save only
as to the freedom of his person: which in a peer is for ever sacred
and inviolable; and in a commoner for forty days after every
prorogation, and forty days before the next appointed meeting[n];
which is now in effect as long as the parliament subsists, it seldom
being prorogued for more than fourscore days at a time. But this
privilege of person does not hold in crimes of such public malignity
as treason, felony, or breach of the peace[o]; or rather perhaps in
such crimes for which surety of the peace may be required. As to all
other privileges which obstruct the ordinary course of justice, they
cease by the statutes 12 W. III. c. 3. and 11 Geo. II. c. 24.
immediately after the dissolution or prorogation of the parliament, or
adjournment of the houses for above a fortnight; and during these
recesses a peer, or member of the house of commons, may be sued like
an ordinary subject, and in consequence of such suits may be
dispossessed of his lands and goods. In these cases the king has also
his prerogative: he may sue for his debts, though not arrest the
person of a member, during the sitting of parliament; and by statute 2
& 3 Ann. c. 18. a member may be sued during the sitting of parliament
for any misdemesnor or breach of trust in a public office. Likewise,
for the benefit of commerce, it is provided by statute 4 Geo. III. c.
33, that any trader, having privilege of parliament, may be served
with legal process for any just debt, (to the amount of 100_l._) and
unless he makes satisfaction within two months, it shall be deemed an
act of bankruptcy; and that commissions of bankrupt may be issued
against such privileged traders, in like manner as against any other.
[Footnote k: Seld. Baronage. part. 1. c. 4.]
[Footnote l: _cap._ 3.]
[Footnote m: Stiernh. _de jure Goth._ _l._ 3. _c._ 3.]
[Footnote n: 2 Lev. 72.]
[Footnote o: 4 Inst. 25.]
THESE are the general heads of the laws and customs relating to
parliament, considered as one aggregate body. We will next proceed to
IV. THE laws and customs relating to the house of lords in particular.
These, if we exclude their judicial capacity, which will be more
properly treated of in the third and fourth books of these
commentaries, will take up but little of our time.
ONE very antient privilege is that declared by the charter of the
forest[p], confirmed in parliament 9 Hen. III; viz. that every lord
spiritual or temporal summoned to parliament, and passing through the
king's forests, may, both in going and returning, kill one or two of
the king's deer without warrant; in view of the forester, if he be
present; or on blowing a horn if he be absent, that he may not seem to
take the king's venison by stealth.
[Footnote p: cap. 11.]
IN the next place they have a right to be attended, and constantly
are, by the judges of the court of king's bench and commonpleas, and
such of the barons of the exchequer as are of the degree of the coif,
or have been made serjeants at law; as likewise by the masters of the
court of chancery; for their advice in point of law, and for the
greater dignity of their proceedings. The secretaries of state, the
attorney and solicitor general, and the rest of the king's learned
counsel being serjeants, were also used to attend the house of peers,
and have to this day their regular writs of summons issued out at the
beginning of every parliament[q]: but, as many of them have of late
years been members of the house of commons, their attendance is fallen
into disuse.
[Footnote q: Stat. 31 Hen. VIII. c. 10. Smith's commonw. b. 2. c. 3.
Moor. 551. 4 Inst. 4. Hale of parl. 140.]
ANOTHER privilege is, that every peer, by licence obtained from the
king, may make another lord of parliament his proxy, to vote for him
in his absence[r]. A privilege which a member of the other house can
by no means have, as he is himself but a proxy for a multitude of
other people[s].
[Footnote r: Seld. baronage. p. 1. c. 1.]
[Footnote s: 4 Inst. 12.]
EACH peer has also a right, by leave of the house, when a vote passes
contrary to his sentiments, to enter his dissent on the journals of
the house, with the reasons for such dissent; which is usually stiled
his protest.
ALL bills likewise, that may in their consequences any way affect the
rights of the peerage, are by the custom of parliament to have their
first rise and beginning in the house of peers, and to suffer no
changes or amendments in the house of commons.
THERE is also one statute peculiarly relative to the house of lords; 6
Ann. c. 23. which regulates the election of the sixteen representative
peers of North Britain, in consequence of the twenty second and twenty
third articles of the union: and for that purpose prescribes the
oaths, &c, to be taken by the electors; directs the mode of balloting;
prohibits the peers electing from being attended in an unusual manner;
and expressly provides, that no other matter shall be treated of in
that assembly, save only the election, on pain of incurring a
praemunire.
V. THE peculiar laws and customs of the house of commons relate
principally to the raising of taxes, and the elections of members to
serve in parliament.
FIRST, with regard to taxes: it is the antient indisputable privilege
and right of the house of commons, that all grants of subsidies or
parliamentary aids do begin in their house, and are first bestowed by
them[t]; although their grants are not effectual to all intents and
purposes, until they have the assent of the other two branches of the
legislature. The general reason, given for this exclusive privilege of
the house of commons, is, that the supplies are raised upon the body
of the people, and therefore it is proper that they alone should have
the right of taxing themselves. This reason would be unanswerable, if
the commons taxed none but themselves: but it is notorious, that a
very large share of property is in the possession of the house of
lords; that this property is equally taxable, and taxed, as the
property of the commons; and therefore the commons not being the
_sole_ persons taxed, this cannot be the reason of their having the
_sole_ right of raising and modelling the supply. The true reason,
arising from the spirit of our constitution, seems to be this. The
lords being a permanent hereditary body, created at pleasure by the
king, are supposed more liable to be influenced by the crown, and when
once influenced to continue so, than the commons, who are a temporary
elective body, freely nominated by the people. It would therefore be
extremely dangerous, to give them any power of framing new taxes for
the subject: it is sufficient, that they have a power of rejecting, if
they think the commons too lavish or improvident in their grants. But
so reasonably jealous are the commons of this valuable privilege, that
herein they will not suffer the other house to exert any power but
that of rejecting; they will not permit the least alteration or
amendment to be made by the lords to the mode of taxing the people by
a money bill; under which appellation are included all bills, by which
money is directed to be raised upon the subject, for any purpose or in
any shape whatsoever; either for the exigencies of government, and
collected from the kingdom in general, as the land tax; or for private
benefit, and collected in any particular district; as by turnpikes,
parish rates, and the like. Yet sir Matthew Hale[u] mentions one case,
founded on the practice of parliament in the reign of Henry VI[w],
wherein he thinks the lords may alter a money bill; and that is, if
the commons grant a tax, as that of tonnage and poundage, for _four_
years; and the lords alter it to a less time, as for _two_ years;
here, he says, the bill need not be sent back to the commons for their
concurrence, but may receive the royal assent without farther
ceremony; for the alteration of the lords is consistent with the grant
of the commons. But such an experiment will hardly be repeated by the
lords, under the present improved idea of the privilege of the house
of commons: and, in any case where a money bill is remanded to the
commons, all amendments in the mode of taxation are sure to be
rejected.
[Footnote t: 4 Inst. 29.]
[Footnote u: on parliaments, 65, 66.]
[Footnote w: Year book, 33 Hen. VI. 17.]
NEXT, with regard to the elections of knights, citizens, and
burgesses; we may observe that herein consists the exercise of the
democratical part of our constitution: for in a democracy there can be
no exercise of sovereignty but by suffrage, which is the declaration
of the people's will. In all democracies therefore it is of the utmost
importance to regulate by whom, and in what manner, the suffrages are
to be given. And the Athenians were so justly jealous of this
prerogative, that a stranger, who interfered in the assemblies of the
people, was punished by their laws with death: because such a man was
esteemed guilty of high treason, by usurping those rights of
sovereignty, to which he had no title. In England, where the people do
not debate in a collective body but by representation, the exercise of
this sovereignty consists in the choice of representatives. The laws
have therefore very strictly guarded against usurpation or abuse of
this power, by many salutary provisions; which may be reduced to these
three points, 1. The qualifications of the electors. 2. The
qualifications of the elected. 3. The proceedings at elections.
1. AS to the qualifications of the electors. The true reason of
requiring any qualification, with regard to property, in voters, is to
exclude such persons as are in so mean a situation that they are
esteemed to have no will of their own. If these persons had votes,
they would be tempted to dispose of them under some undue influence or
other. This would give a great, an artful, or a wealthy man, a larger
share in elections than is consistent with general liberty. If it were
probable that every man would give his vote freely, and without
influence of any kind, then, upon the true theory and genuine
principles of liberty, every member of the community, however poor,
should have a vote in electing those delegates, to whose charge is
committed the disposal of his property, his liberty, and his life.
But, since that can hardly be expected in persons of indigent
fortunes, or such as are under the immediate dominion of others, all
popular states have been obliged to establish certain qualifications;
whereby some, who are suspected to have no will of their own, are
excluded from voting, in order to set other individuals, whose wills
may be supposed independent, more thoroughly upon a level with each
other.
AND this constitution of suffrages is framed upon a wiser principle
than either of the methods of voting, by centuries, or by tribes,
among the Romans. In the method by centuries, instituted by Servius
Tullius, it was principally property, and not numbers that turned the
scale: in the method by tribes, gradually introduced by the tribunes
of the people, numbers only were regarded and property entirely
overlooked. Hence the laws passed by the former method had usually too
great a tendency to aggrandize the patricians or rich nobles; and
those by the latter had too much of a levelling principle. Our
constitution steers between the two extremes. Only such as are
entirely excluded, as can have no will of their own: there is hardly a
free agent to be found, but what is entitled to a vote in some place
or other in the kingdom. Nor is comparative wealth, or property,
entirely disregarded in elections; for though the richest man has only
one vote at one place, yet if his property be at all diffused, he has
probably a right to vote at more places than one, and therefore has
many representatives. This is the spirit of our constitution: not that
I assert it is in fact quite so perfect as I have here endeavoured to
describe it; for, if any alteration might be wished or suggested in
the present frame of parliaments, it should be in favour of a more
complete representation of the people.
BUT to return to our qualifications; and first those of electors for
knights of the shire. 1. By statute 8 Hen. VI. c. 7. and 10 Hen. VI.
c. 2. The knights of the shires shall be chosen of people dwelling in
the same counties; whereof every man shall have freehold to the value
of forty shillings by the year within the county; which by subsequent
statutes is to be clear of all charges and deductions, except
parliamentary and parochial taxes. The knights of shires are the
representatives of the landholders, or landed interest, of the
kingdom: their electors must therefore have estates in lands or
tenements, within the county represented: these estates must be
freehold, that is, for term of life at least; because beneficial
leases for long terms of years were not in use at the making of these
statutes, and copyholders were then little better than villeins,
absolutely dependent upon their lord: this freehold must be of forty
shillings annual value; because that sum would then, with proper
industry, furnish all the necessaries of life, and render the
freeholder, if he pleased, an independent man. For bishop Fleetwood,
in his _chronicon pretiosum_ written about sixty years since, has
fully proved forty shillings in the reign of Henry VI to have been
equal to twelve pounds _per annum_ in the reign of queen Anne; and, as
the value of money is very considerably lowered since the bishop
wrote, I think we may fairly conclude, from this and other
circumstances, that what was equivalent to twelve pounds in his days
is equivalent to twenty at present. The other less important
qualifications of the electors for counties in England and Wales may
be collected from the statutes cited in the margin[x]; which direct,
2. That no person under twenty one years of age shall be capable of
voting for any member. This extends to all sorts of members, as well
for boroughs as counties; as does also the next, viz. 3. That no
person convicted of perjury, or subornation of perjury, shall be
capable of voting in any election. 4. That no person shall vote in
right of any freehold, granted to him fraudulently to qualify him to
vote. Fraudulent grants are such as contain an agreement to reconvey,
or to defeat the estate granted; which agreements are made void, and
the estate is absolutely vested in the person to whom it is so
granted. And, to guard the better against such frauds, it is farther
provided, 5. That every voter shall have been in the actual
possession, or receipt of the profits, of his freehold to his own use
for twelve calendar months before; except it came to him by descent,
marriage, marriage settlement, will, or promotion to a benefice or
office. 6. That no person shall vote in respect of an annuity or
rentcharge, unless registered with the clerk of the peace twelve
calendar months before. 7. That in mortgaged or trust-estates, the
person in possession, under the abovementioned restrictions, shall
have the vote. 8. That only one person shall be admitted to vote for
any one house or tenement, to prevent the splitting of freeholds. 9.
That no estate shall qualify a voter, unless the estate has been
assessed to some land tax aid, at least twelve months before the
election. 10. That no tenant by copy of court roll shall be permitted
to vote as a freeholder. Thus much for the electors in counties.
[Footnote x: 7 & 8 W. III. c. 25. 10 Ann. c. 23. 2 Geo. II. c. 21. 18
Geo. II. c. 18. 31 Geo. II. c. 14. 3 Geo. III. c. 24.]
AS for the electors of citizens and burgesses, these are supposed to
be the mercantile part or trading interest of this kingdom. But as
trade is of a fluctuating nature, and seldom long fixed in a place, it
was formerly left to the crown to summon, _pro re nata_, the most
flourishing towns to send representatives to parliament. So that as
towns encreased in trade, and grew populous, they were admitted to a
share in the legislature. But the misfortune is, that the deserted
boroughs continued to be summoned, as well as those to whom their
trade and inhabitants were transferred; except a few which petitioned
to be eased of the expence, then usual, of maintaining their members:
four shillings a day being allowed for a knight of the shire, and two
shillings for a citizen or burgess; which was the rate of wages
established in the reign of Edward III[y]. Hence the members for
boroughs now bear above a quadruple proportion to those for counties,
and the number of parliament men is increased since Fortescue's time,
in the reign of Henry the sixth, from 300 to upwards of 500, exclusive
of those for Scotland. The universities were in general not empowered
to send burgesses to parliament; though once, in 28 Edw. I. when a
parliament was summoned to consider of the king's right to Scotland,
there were issued writs, which required the university of Oxford to
send up four or five, and that of Cambridge two or three, of their
most discreet and learned lawyers for that purpose[z]. But it was king
James the first, who indulged them with the permanent privilege to
send constantly two of their own body; to serve for those students
who, though useful members of the community, were neither concerned in
the landed nor the trading interest; and to protect in the legislature
the rights of the republic of letters. The right of election in
boroughs is various, depending intirely on the several charters,
customs, and constitutions of the respective places, which has
occasioned infinite disputes; though now by statute 2 Geo. II. c. 24.
the right of voting for the future shall be allowed according to the
last determination of the house of commons concerning it. And by
statute 3 Geo. III. c. 15. no freeman of any city or borough (other
than such as claim by birth, marriage, or servitude) shall be intitled
to vote therein unless he hath been admitted to his freedom twelve
calendar months before.
[Footnote y: 4 Inst. 16.]
[Footnote z: Prynne parl. writs. I. 345.]
2. OUR second point is the qualification of persons to be elected
members of the house of commons. This depends upon the law and custom
of parliaments[a], and the statutes referred to in the margin[b]. And
from these it appears, 1. That they must not be aliens born, or
minors. 2. That they must not be any of the twelve judges, because
they sit in the lords' house; nor of the clergy, for they sit in the
convocation; nor persons attainted of treason or felony, for they are
unfit to sit any where[c]. 3. That sheriffs of counties, and mayors
and bailiffs of boroughs, are not eligible in their respective
jurisdictions, as being returning officers[d]; but that sheriffs of
one county are eligible to be knights of another[e]. 4. That, in
strictness, all members ought to be inhabitants of the places for
which they are chosen: but this is intirely disregarded. 5. That no
persons concerned in the management of any duties or taxes created
since 1692, except the commissioners of the treasury, nor any of the
officers following, (viz. commissioners of prizes, transports, sick
and wounded, wine licences, navy, and victualling; secretaries or
receivers of prizes; comptrollers of the army accounts; agents for
regiments; governors of plantations and their deputies; officers of
Minorca or Gibraltar; officers of the excise and customs; clerks or
deputies in the several offices of the treasury, exchequer, navy,
victualling, admiralty, pay of the army or navy, secretaries of state,
salt, stamps, appeals, wine licences, hackney coaches, hawkers and
pedlars) nor any persons that hold any new office under the crown
created since 1705, are capable of being elected members. 6. That no
person having a pension under the crown during pleasure, or for any
term of years, is capable of being elected. 7. That if any member
accepts an office under the crown, except an officer in the army or
navy accepting a new commission, his seat is void; but such member is
capable of being re-elected. 8. That all knights of the shire shall be
actual knights, or such notable esquires and gentlemen, as have
estates sufficient to be knights, and by no means of the degree of
yeomen. This is reduced to a still greater certainty, by ordaining, 9.
That every knight of a shire shall have a clear estate of freehold or
copyhold to the value of six hundred pounds _per annum_, and every
citizen and burgess to the value of three hundred pounds; except the
eldest sons of peers, and of persons qualified to be knights of
shires, and except the members for the two universities: which
somewhat ballances the ascendant which the boroughs have gained over
the counties, by obliging the trading interest to make choice of
landed men: and of this qualification the member must make oath, and
give in the particulars in writing, at the time of his taking his
seat. But, subject to these restrictions and disqualifications, every
subject of the realm is eligible of common right. It was therefore an
unconstitutional prohibition, which was inserted in the king's writs,
for the parliament holden at Coventry, 6 Hen. IV, that no apprentice
or other man of the law should be elected a knight of the shire
therein[f]: in return for which, our law books and historians[g] have
branded this parliament with the name of _parliamentum indoctum_, or
the lack-learning parliament; and sir Edward Coke observes with some
spleen[h], that there was never a good law made thereat.
[Footnote a: 4 Inst. 47.]
[Footnote b: 1 Hen. V. c. 1. 23 Hen. VI. c. 15. 1 W. & M. st. 2. c. 2.
5 & 6 W. & M. c. 7. 11 & 12 W. III. c. 2. 12 & 13 W. III. c. 10. 6
Ann. c. 7. 9 Ann. c. 5. 1 Geo. I. c. 56. 15 Geo. II. c. 22. 33 Geo.
II. c. 20.]
[Footnote c: 4 Inst. 47.]
[Footnote d: Hale of parl. 114.]
[Footnote e: 4 Inst. 48.]
[Footnote f: Pryn. on 4 Inst. 13.]
[Footnote g: Walsingh. _A.D._ 1405.]
[Footnote h: 4 Inst. 48.]
3. THE third point regarding elections, is the method of proceeding
therein. This is also regulated by the law of parliament, and the
several statutes referred to in the margin[i]; all which I shall
endeavour to blend together, and extract out of them a summary account
of the method of proceeding to elections.
[Footnote i: 7 Hen. IV. c. 15. 8 Hen. VI. c. 7. 23 Hen. VI. c. 15. 1
W. & M. st. 1. c. 2. 2 W. & M. st. 1. c. 7. 5 & 6 W. & M. c. 20. 7 W.
III. c. 4. 7 & 8 W. III. c. 7. and c. 25. 10 & 11 W. III. c. 7. 12 &
13 W. III. c. 10. 6 Ann. c. 23. 9 Ann. c. 5. 10 Ann. c. 19. and c. 23.
2 Geo. II. c. 24. 8 Geo. II. c. 30. 18 Geo. II. c. 18. 19 Geo. II. c.
28.]
AS soon as the parliament is summoned, the lord chancellor, (or if a
vacancy happens during parliament, the speaker, by order of the house)
sends his warrant to the clerk of the crown in chancery; who thereupon
issues out writs to the sheriff of every county, for the election of
all the members to serve for that county, and every city and borough
therein. Within three days after the receipt of this writ, the sheriff
is to send his precept, under his seal, to the proper returning
officers of the cities and boroughs, commanding them to elect their
members; and the said returning officers are to proceed to election
within eight days from the receipt of the precept, giving four days
notice of the same; and to return the persons chosen, together with
the precept, to the sheriff.
BUT elections of knights of the shire must be proceeded to by the
sheriffs themselves in person, at the next county court that shall
happen after the delivery of the writ. The county court is a court
held every month or oftener by the sheriff, intended to try little
causes not exceeding the value of forty shillings, in what part of the
county he pleases to appoint for that purpose: but for the election of
knights of the shire, it must be held at the most usual place. If the
county court falls upon the day of delivering the writ, or within six
days after, the sheriff may adjourn the court and election to some
other convenient time, not longer than sixteen days, nor shorter than
ten; but he cannot alter the place, without the consent of all the
candidates; and in all such cases ten days public notice must be given
of the time and place of the election.
AND, as it is essential to the very being of parliament that elections
should be absolutely free, therefore all undue influences upon the
electors are illegal, and strongly prohibited. For Mr Locke[k] ranks
it among those breaches of trust in the executive magistrate, which
according to his notions amount to a dissolution of the government,
"if he employs the force, treasure, and offices of the society to
corrupt the representatives, or openly to preingage the electors, and
prescribe what manner of persons shall be chosen. For thus to regulate
candidates and electors, and new model the ways of election, what is
it, says he, but to cut up the government by the roots, and poison the
very fountain of public security?" As soon therefore as the time and
place of election, either in counties or boroughs, are fixed, all
soldiers quartered in the place are to remove, at least one day before
the election, to the distance of two miles or more; and not return
till one day after the poll is ended. Riots likewise have been
frequently determined to make an election void. By vote also of the
house of commons, to whom alone belongs the power of determining
contested elections, no lord of parliament, or lord lieutenant of a
county, hath any right to interfere in the election of commoners; and,
by statute, the lord warden of the cinque ports shall not recommend
any members there. If any officer of the excise, customs, stamps, or
certain other branches of the revenue, presumes to intermeddle in
elections, by persuading any voter or dissuading him, he forfeits
100_l_, and is disabled to hold any office.
[Footnote k: on Gov. part. 2. §. 222.]
THUS are the electors of one branch of the legislature secured from
any undue influence from either of the other two, and from all
external violence and compulsion. But the greatest danger is that in
which themselves co-operate, by the infamous practice of bribery and
corruption. To prevent which it is enacted that no candidate shall,
after the date (usually called the _teste_) of the writs, or after the
vacancy, give any money or entertainment to his electors, or promise
to give any, either to particular persons, or to the place in general,
in order to his being elected; on pain of being incapable to serve for
that place in parliament. And if any money, gift, office, employment,
or reward be given or promised to be given to any voter, at any time,
in order to influence him to give or withhold his vote, both he that
takes and he that offers such bribe forfeits 500_l_, and is for ever
disabled from voting and holding any office in any corporation;
unless, before conviction, he will discover some other offender of the
same kind, and then he is indemnified for his own offence[l]. The
first instance that occurs of election bribery, was so early as 13
Eliz. when one Thomas Longe (being a simple man and of small capacity
to serve in parliament) acknowleged that he had given the returning
officer and others of the borough of Westbury four pounds to be
returned member, and was for that premium elected. But for this
offence the borough was amerced, the member was removed, and the
officer fined and imprisoned[m]. But, as this practice hath since
taken much deeper and more universal root, it hath occasioned the
making of these wholesome statutes; to complete the efficacy of which,
there is nothing wanting but resolution and integrity to put them in
strict execution.
[Footnote l: In like manner the Julian law _de ambitu_ inflicts fines
and infamy upon all who were guilty of corruption at elections; but,
if the person guilty convicted another offender, he was restored to
his credit again. _Ff._ 48. 14. 1.]
[Footnote m: 4 Inst. 23. Hale of parl. 112. Com. Journ. 10 & 11 May
1571.]
UNDUE influence being thus (I wish the depravity of mankind would
permit me to say, effectually) guarded against, the election is to be
proceeded to on the day appointed; the sheriff or other returning
officer first taking an oath against bribery, and for the due
execution of his office. The candidates likewise, if required, must
swear to their qualification; and the electors in counties to theirs;
and the electors both in counties and boroughs are also compellable to
take the oath of abjuration and that against bribery and corruption.
And it might not be amiss, if the members elected were bound to take
the latter oath, as well as the former; which in all probability
would be much more effectual, than administring it only to the
electors.
THE election being closed, the returning officer in boroughs returns
his precept to the sheriff, with the persons elected by the majority:
and the sheriff returns the whole, together with the writ for the
county and the knights elected thereupon, to the clerk of the crown in
chancery; before the day of meeting, if it be a new parliament, or
within fourteen days after the election, if it be an occasional
vacancy; and this under penalty of 500_l_. If the sheriff does not
return such knights only as are duly elected, he forfeits, by the old
statutes of Henry VI, 100_l_; and the returning officer in boroughs
for a like false return 40_l_; and they are besides liable to an
action, in which double damages shall be recovered, by the later
statutes of king William: and any person bribing the returning officer
shall alio forfeit 300_l_. But the members returned by him are the
sitting members, until the house of commons, upon petition, shall
adjudge the return to be false and illegal. And this abstract of the
proceedings at elections of knights, citizens, and burgesses,
concludes our enquiries into the laws and customs more peculiarly
relative to the house of commons.
VI. I PROCEED now, sixthly, to the method of making laws; which is
much the same in both houses: and I shall touch it very briefly,
beginning in the house of commons. But first I must premise, that for
dispatch of business each house of parliament has it's speaker. The
speaker of the house of lords is the lord chancellor, or keeper of the
king's great seal; whose office it is to preside there, and manage the
formality of business. The speaker of the house of commons is chosen
by the house; but must be approved by the king. And herein the usage
of the two houses differs, that the speaker of the house of commons
cannot give his opinion or argue any question in the house; but the
speaker of the house of lords may. In each house the act of the
majority binds the whole; and this majority is declared by votes
openly and publickly given: not as at Venice, and many other
senatorial assemblies, privately or by ballot. This latter method may
be serviceable, to prevent intrigues and unconstitutional
combinations: but is impossible to be practiced with us; at least in
the house of commons, where every member's conduct is subject to the
future censure of his constituents, and therefore should be openly
submitted to their inspection.
TO bring a bill into the house, if the relief sought by it is of a
private nature, it is first necessary to prefer a petition; which must
be presented by a member, and usually sets forth the grievance desired
to be remedied. This petition (when founded on facts that may be in
their nature disputed) is referred to a committee of members, who
examine the matter alleged, and accordingly report it to the house;
and then (or, otherwise, upon the mere petition) leave is given to
bring in the bill. In public matters the bill is brought in upon
motion made to the house, without any petition at all. Formerly, all
bills were drawn in the form of petitions, which were entered upon the
_parliament rolls_, with the king's answer thereunto subjoined; not in
any settled form of words, but as the circumstances of the case
required[n]: and at the end of each parliament the judges drew them
into the form of a statute, which was entered on the _statute-rolls_.
In the reign of Henry V, to prevent mistakes and abuses, the statutes
were drawn up by the judges before the end of the parliament; and, in
the reign of Henry VI, bills in the form of acts, according to the
modern custom, were first introduced.
[Footnote n: See, among numberless other instances, the _articuli
cleri_, 9 Edw. II.]
THE persons, directed to bring in the bill, present it in a competent
time to the house, drawn out on paper, with a multitude of blanks, or
void spaces, where any thing occurs that is dubious, or necessary to
be settled by the parliament itself; (such, especially, as the precise
date of times, the nature and quantity of penalties, or of any sums of
money to be raised) being indeed only the sceleton of the bill. In the
house of lords, if the bill begins there, it is (when of a private
nature) perused by two of the judges, who settle all points of legal
propriety. This is read a first time, and at a convenient distance a
second time; and after each reading the speaker opens to the house the
substance of the bill, and puts the question, whether it shall proceed
any farther. The introduction of the bill may be originally opposed,
as the bill itself may at either of the readings; and, if the
opposition succeeds, the bill must be dropt for that sessions; as it
must also, if opposed with success in any of the subsequent stages.
AFTER the second reading it is committed, that is, referred to a
committee; which is either selected by the house in matters of small
importance, or else, upon a bill of consequence, the house resolves
itself into a committee of the whole house. A committee of the whole
house is composed of every member; and, to form it, the speaker quits
the chair, (another member being appointed chairman) and may sit and
debate as a private member. In these committees the bill is debated
clause by clause, amendments made, the blanks filled up, and sometimes
the bill entirely new modelled. After it has gone through the
committee, the chairman reports it to the house with such amendments
as the committee have made; and then the house reconsider the whole
bill again, and the question is repeatedly put upon every clause and
amendment. When the house have agreed or disagreed to the amendments
of the committee, and sometimes added new amendments of their own, the
bill is then ordered to be engrossed, or written in a strong gross
hand, on one or more long rolls of parchment sewed together. When this
is finished, it is read a third time, and amendments are sometimes
then made to it; and, if a new clause be added, it is done by tacking
a separate piece of parchment on the bill, which is called a ryder.
The speaker then again opens the contents; and, holding it up in his
hands, puts the question, whether the bill shall pass. If this is
agreed to, one of the members is directed to carry it to the lords,
and desire their concurrence; who, attended by several more, carries
it to the bar of the house of peers, and there delivers it to their
speaker, who comes down from his woolsack to receive it.
IT there passes through the same forms as in the other house, (except
engrossing, which is already done) and, if rejected, no more notice is
taken, but it passes _sub silentio_, to prevent unbecoming
altercations. But if it is agreed to, the lords send a message by two
masters in chancery (or sometimes two of the judges) that they have
agreed to the same: and the bill remains with the lords, if they have
made no amendment to it. But if any amendments are made, such
amendments are sent down with the bill to receive the concurrence of
the commons. If the commons disagree to the amendments, a conference
usually follows between members deputed from each house; who for the
most part settle and adjust the difference: but, if both houses remain
inflexible, the bill is dropped. If the commons agree to the
amendments, the bill is sent back to the lords by one of the members,
with a message to acquaint them therewith. The same forms are
observed, _mutatis mutandis_, when the bill begins in the house of
lords. And when both houses have done with the bill, it always is
deposited in the house of peers, to wait the royal assent.
THIS may be given two ways: 1. In person; when the king comes to the
house of peers, in his crown and royal robes, and sending for the
commons to the bar, the titles of all the bills that have passed both
houses are read; and the king's answer is declared by the clerk of the
parliament in Norman-French: a badge, it must be owned, (now the only
one remaining) of conquest; and which one could wish to see fall into
total oblivion; unless it be reserved as a solemn memento to remind us
that our liberties are mortal, having once been destroyed by a foreign
force. If the king consents to a public bill, the clerk usually
declares, "_le roy le veut_, the king wills it so to be;" if to a
private bill, "_soit fait come il est desirè_, be it as it is
desired." If the king refuses his assent, it is in the gentle language
of "_le roy s'avisera_, the king will advise upon it." 2. By statute
33 Hen. VIII. c. 21. the king may give his assent by letters patent
under his great seal, signed with his hand, and notified, in his
absence, to both houses assembled together in the high house. And,
when the bill has received the royal assent in either of these ways,
it is then, and not before, a statute or act of parliament.
THIS statute or act is placed among the records of the kingdom; there
needing no formal promulgation to give it the force of a law, as was
necessary by the civil law with regard to the emperors edicts: because
every man in England is, in judgment of law, party to the making of an
act of parliament, being present thereat by his representatives.
However, a copy thereof is usually printed at the king's press, for
the information of the whole land. And formerly, before the invention
of printing, it was used to be published by the sheriff of every
county; the king's writ being sent to him at the end of every session,
together with a transcript of all the acts made at that session,
commanding him "_ut statuta illa, et omnes articulos in eisdem
contentos, in singulis locis ubi expedire viderit, publice proclamari,
et firmiter teneri et observari faciat_." And the usage was to
proclaim them at his county court, and there to keep them, that
whoever would might read or take copies thereof; which custom
continued till the reign of Henry the seventh[o].
[Footnote o: 3 Inst. 41. 4 Inst. 26.]
AN act of parliament, thus made, is the exercise of the highest
authority that this kingdom acknowleges upon earth. It hath power to
bind every subject in the land, and the dominions thereunto belonging;
nay, even the king himself, if particularly named therein. And it
cannot be altered, amended, dispensed with, suspended, or repealed,
but in the same forms and by the same authority of parliament: for it
is a maxim in law, that it requires the same strength to dissolve, as
to create an obligation. It is true it was formerly held, that the
king might in many cases dispense with penal statutes[p]: but now by
statute 1 W. & M. st. 2. c. 2. it is declared, that the suspending or
dispensing with laws by regal authority, without consent of
parliament, is illegal.
[Footnote p: Finch. L. 81. 234.]
VII. THERE remains only, in the seventh and last place, to add a word
or two concerning the manner in which parliaments may be adjourned,
prorogued, or dissolved.
AN adjournment is no more than a continuance of the session from one
day to another, as the word itself signifies: and this is done by the
authority of each house separately every day; and sometimes for a
fortnight or a month together, as at Christmas or Easter, or upon
other particular occasions. But the adjournment of one house is no
adjournment of the other[q]. It hath also been usual, when his majesty
hath signified his pleasure that both or either of the houses should
adjourn themselves to a certain day, to obey the king's pleasure so
signified, and to adjourn accordingly[r]. Otherwise, besides the
indecorum of a refusal, a prorogation would assuredly follow; which
would often be very inconvenient to both public and private business.
For prorogation puts an end to the session; and then such bills, as
are only begun and not perfected, must be resumed _de novo_ (if at
all) in a subsequent session: whereas, after an adjournment, all
things continue in the same state as at the time of the adjournment
made, and may be proceeded on without any fresh commencement.
[Footnote q: 4 Inst. 28.]
[Footnote r: Com. Journ. _passim_: _e.g._ 11 Jun. 1572. 5 Apr. 1604. 4
Jun. 14 Nov. 18 Dec. 1621. 11 Jul. 1625. 13 Sept. 1660. 25 Jul. 1667.
4 Aug. 1685. 24 Febr. 1691. 21 Jun. 1712. 16 Apr. 1717. 3 Feb. 1741.
10 Dec. 1745.]
A PROROGATION is the continuance of the parliament from one session to
another, as an adjournment is a continuation of the session from day
to day. This is done by the royal authority, expressed either by the
lord chancellor in his majesty's presence, or by commission from the
crown, or frequently by proclamation. Both houses are necessarily
prorogued at the same time; it not being a prorogation of the house of
lords, or commons, but of the parliament. The session is never
understood to be at an end, until a prorogation: though, unless some
act be passed or some judgment given in parliament, it is in truth no
session at all[s]. And formerly the usage was, for the king to give
the royal assent to all such bills as he approved, at the end of every
session, and then to prorogue the parliament; though sometimes only
for a day or two[t]: after which all business then depending in the
houses was to be begun again. Which custom obtained so strongly, that
it once became a question[u], whether giving the royal assent to a
single bill did not of course put an end to the session. And, though
it was then resolved in the negative, yet the notion was so deeply
rooted, that the statute 1 Car. I. c. 7. was passed to declare, that
the king's assent to that and some other acts should not put an end to
the session; and, even so late as the restoration of Charles II, we
find a proviso tacked to the first bill then enacted[w] that his
majesty's assent thereto should not determine the session of
parliament. But it now seems to be allowed, that a prorogation must be
expressly made, in order to determine the session. And, if at the time
of an actual rebellion, or imminent danger of invasion, the parliament
shall be separated by adjournment or prorogation, the king is
empowered[x] to call them together by proclamation, with fourteen days
notice of the time appointed for their reassembling.
[Footnote s: 4 Inst. 28. Hale of parl. 38.]
[Footnote t: Com. Journ. 21 Oct. 1553.]
[Footnote u: _Ibid._ 21 Nov. 1554.]
[Footnote w: Stat. 12 Car. II. c. 1.]
[Footnote x: Stat. 30 Geo. II. c. 25.]
A DISSOLUTION is the civil death of the parliament; and this may be
effected three ways: 1. By the king's will, expressed either in person
or by representation. For, as the king has the sole right of convening
the parliament, so also it is a branch of the royal prerogative, that
he may (whenever he pleases) prorogue the parliament for a time, or
put a final period to it's existence. If nothing had a right to
prorogue or dissolve a parliament but itself, it might happen to
become perpetual. And this would be extremely dangerous, if at any
time it should attempt to encroach upon the executive power: as was
fatally experienced by the unfortunate king Charles the first; who,
having unadvisedly passed an act to continue the parliament then in
being till such time as it should please to dissolve itself, at last
fell a sacrifice to that inordinate power, which he himself had
consented to give them. It is therefore extremely necessary that the
crown should be empowered to regulate the duration of these
assemblies, under the limitations which the English constitution has
prescribed: so that, on the one hand, they may frequently and
regularly come together, for the dispatch of business and redress of
grievances; and may not, on the other, even with the consent of the
crown, be continued to an inconvenient or unconstitutional length.
2. A PARLIAMENT may be dissolved by the demise of the crown. This
dissolution formerly happened immediately upon the death of the
reigning sovereign, for he being considered in law as the head of the
parliament, (_caput, principium, et finis_) that failing, the whole
body was held to be extinct. But, the calling a new parliament
immediately on the inauguration of the successor being found
inconvenient, and dangers being apprehended from having no parliament
in being in case of a disputed succession, it was enacted by the
statutes 7 & 8 W. III. c. 15. and 6 Ann. c. 7. that the parliament in
being shall continue for six months after the death of any king or
queen, unless sooner prorogued or dissolved by the successor: that, if
the parliament be, at the time of the king's death, separated by
adjournment or prorogation, it shall notwithstanding assemble
immediately: and that, if no parliament is then in being, the members
of the last parliament shall assemble, and be again a parliament.
3. LASTLY, a parliament may be dissolved or expire by length of time.
For if either the legislative body were perpetual; or might last for
the life of the prince who convened them, as formerly; and were so to
be supplied, by occasionally filling the vacancies with new
representatives; in these cases, if it were once corrupted, the evil
would be past all remedy: but when different bodies succeed each
other, if the people see cause to disapprove of the present, they may
rectify it's faults in the next. A legislative assembly also, which is
sure to be separated again, (whereby it's members will themselves
become private men, and subject to the full extent of the laws which
they have enacted for others) will think themselves bound, in interest
as well as duty, to make only such laws as are good. The utmost extent
of time that the same parliament was allowed to sit, by the statute 6
W. & M. c. 2. was _three_ years; after the expiration of which,
reckoning from the return of the first summons, the parliament was to
have no longer continuance. But by the statute 1 Geo. I. st. 2. c. 38.
(in order, professedly, to prevent the great and continued expenses of
frequent elections, and the violent heats and animosities consequent
thereupon, and for the peace and security of the government then just
recovering from the late rebellion) this term was prolonged to _seven_
years; and, what alone is an instance of the vast authority of
parliament, the very same house, that was chosen for three years,
enacted it's own continuance for seven. So that, as our constitution
now stands, the parliament must expire, or die a natural death, at the
end of every seventh year; if not sooner dissolved by the royal
prerogative.
CHAPTER THE THIRD.
OF THE KING, AND HIS TITLE.
THE supreme executive power of these kingdoms is vested by our laws in
a single person, the king or queen: for it matters not to which sex
the crown descends; but the person entitled to it, whether male or
female, is immediately invested with all the ensigns, rights, and
prerogatives of sovereign power; as is declared by statute 1 Mar. st.
3. c. 1.
IN discoursing of the royal rights and authority, I shall consider the
king under six distinct views: 1. With regard to his title. 2. His
royal family. 3. His councils. 4. His duties. 5. His prerogative. 6.
His revenue. And, first, with regard to his title.
THE executive power of the English nation being vested in a single
person, by the general consent of the people, the evidence of which
general consent is long and immemorial usage, it became necessary to
the freedom and peace of the state, that a rule should be laid down,
uniform, universal, and permanent; in order to mark out with
precision, _who_ is that single person, to whom are committed (in
subservience to the law of the land) the care and protection of the
community; and to whom, in return, the duty and allegiance of every
individual are due. It is of the highest importance to the public
tranquillity, and to the consciences of private men, that this rule
should be clear and indisputable: and our constitution has not left us
in the dark upon this material occasion. It will therefore be the
endeavour of this chapter to trace out the constitutional doctrine of
the royal succession, with that freedom and regard to truth, yet mixed
with that reverence and respect, which the principles of liberty and
the dignity of the subject require.
THE grand fundamental maxim upon which the _jus coronae_, or right of
succession to the throne of these kingdoms, depends, I take to be
this: "that the crown is, by common law and constitutional custom,
hereditary; and this in a manner peculiar to itself: but that the
right of inheritance may from time to time be changed or limited by
act of parliament; under which limitations the crown still continues
hereditary." And this proposition it will be the business of this
chapter to prove, in all it's branches: first, that the crown is
hereditary; secondly, that it is hereditary in a manner peculiar to
itself; thirdly, that this inheritance is subject to limitation by
parliament; lastly, that when it is so limited, it is hereditary in
the new proprietor.
1. FIRST, it is in general _hereditary_, or descendible to the next
heir, on the death or demise of the last proprietor. All regal
governments must be either hereditary or elective: and, as I believe
there is no instance wherein the crown of England has ever been
asserted to be elective, except by the regicides at the infamous and
unparalleled trial of king Charles I, it must of consequence be
hereditary. Yet while I assert an hereditary, I by no means intend a
_jure divino_, title to the throne. Such a title may be allowed to
have subsisted under the theocratic establishments of the children of
Israel in Palestine: but it never yet subsisted in any other country;
save only so far as kingdoms, like other human fabrics, are subject to
the general and ordinary dispensations of providence. Nor indeed have
a _jure divino_ and an _hereditary_ right any necessary connexion with
each other; as some have very weakly imagined. The titles of David and
Jehu were equally _jure divino_, as those of either Solomon or Ahab;
and yet David slew the sons of his predecessor, and Jehu his
predecessor himself. And when our kings have the same warrant as they
had, whether it be to sit upon the throne of their fathers, or to
destroy the house of the preceding sovereign, they will then, and not
before, possess the crown of England by a right like theirs,
_immediately_ derived from heaven. The hereditary right, which the
laws of England acknowlege, owes it's origin to the founders of our
constitution, and to them only. It has no relation to, nor depends
upon, the civil laws of the Jews, the Greeks, the Romans, or any other
nation upon earth: the municipal laws of one society having no
connexion with, or influence upon, the fundamental polity of another.
The founders of our English monarchy might perhaps, if they had
thought proper, have made it an elective monarchy: but they rather
chose, and upon good reason, to establish originally a succession by
inheritance. This has been acquiesced in by general consent; and
ripened by degrees into common law: the very same title that every
private man has to his own estate. Lands are not naturally descendible
any more than thrones: but the law has thought proper, for the benefit
and peace of the public, to establish hereditary succession in one as
well as the other.
IT must be owned, an elective monarchy seems to be the most obvious,
and best suited of any to the rational principles of government, and
the freedom of human nature: and accordingly we find from history
that, in the infancy and first rudiments of almost every state, the
leader, chief magistrate, or prince, hath usually been elective. And,
if the individuals who compose that state could always continue true
to first principles, uninfluenced by passion or prejudice, unassailed
by corruption, and unawed by violence, elective succession were as
much to be desired in a kingdom, as in other inferior communities. The
best, the wisest, and the bravest man would then be sure of receiving
that crown, which his endowments have merited; and the sense of an
unbiassed majority would be dutifully acquiesced in by the few who
were of different opinions. But history and observation will inform
us, that elections of every kind (in the present state of human
nature) are too frequently brought about by influence, partiality, and
artifice: and, even where the case is otherwise, these practices will
be often suspected, and as constantly charged upon the successful, by
a splenetic disappointed minority. This is an evil, to which all
societies are liable; as well those of a private and domestic kind, as
the great community of the public, which regulates and includes the
rest. But in the former there is this advantage; that such suspicions,
if false, proceed no farther than jealousies and murmurs, which time
will effectually suppress; and, if true, the injustice may be remedied
by legal means, by an appeal to those tribunals to which every member
of society has (by becoming such) virtually engaged to submit.
Whereas, in the great and independent society, which every nation
composes, there is no superior to resort to but the law of nature; no
method to redress the infringements of that law, but the actual
exertion of private force. As therefore between two nations,
complaining of mutual injuries, the quarrel can only be decided by the
law of arms; so in one and the same nation, when the fundamental
principles of their common union are supposed to be invaded, and more
especially when the appointment of their chief magistrate is alleged
to be unduly made, the only tribunal to which the complainants can
appeal is that of the God of battels, the only process by which the
appeal can be carried on is that of a civil and intestine war. An
hereditary succession to the crown is therefore now established, in
this and most other countries, in order to prevent that periodical
bloodshed and misery, which the history of antient imperial Rome, and
the more modern experience of Poland and Germany, may shew us are the
consequences of elective kingdoms.
2. BUT, secondly, as to the particular mode of inheritance, it in
general corresponds with the feodal path of descents, chalked out by
the common law in the succession to landed estates; yet with one or
two material exceptions. Like them, the crown will descend lineally
to the issue of the reigning monarch; as it did from king John to
Richard II, through a regular pedigree of six lineal descents. As in
them, the preference of males to females, and the right of
primogeniture among the males, are strictly adhered to. Thus Edward V
succeeded to the crown, in preference to Richard his younger brother
and Elizabeth his elder sister. Like them, on failure of the male
line, it descends to the issue female; according to the antient
British custom remarked by Tacitus[a], "_solent foeminarum ductu
bellare, et sexum in imperiis non discernere_." Thus Mary I succeeded
to Edward VI; and the line of Margaret queen of Scots, the daughter of
Henry VII, succeeded on failure of the line of Henry VIII, his son.
But, among the females, the crown descends by right of primogeniture
to the eldest daughter only and her issue; and not, as in common
inheritances, to all the daughters at once; the evident necessity of a
sole succession to the throne having occasioned the royal law of
descents to depart from the common law in this respect: and therefore
queen Mary on the death of her brother succeeded to the crown alone,
and not in partnership with her sister Elizabeth. Again: the doctrine
of representation prevails in the descent of the crown, as it does in
other inheritances; whereby the lineal descendants of any person
deceased stand in the same place as their ancestor, if living, would
have done. Thus Richard II succeeded his grandfather Edward III, in
right of his father the black prince; to the exclusion of all his
uncles, his grandfather's younger children. Lastly, on failure of
lineal descendants, the crown goes to the next collateral relations of
the late king; provided they are lineally descended from the blood
royal, that is, from that royal stock which originally acquired the
crown. Thus Henry I succeeded to William II, John to Richard I, and
James I to Elizabeth; being all derived from the conqueror, who was
then the only regal stock. But herein there is no objection (as in the
case of common descents) to the succession of a brother, an uncle, or
other collateral relation, of the _half_ blood; that is, where the
relationship proceeds not from the same _couple_ of ancestors (which
constitutes a kinsman of the _whole_ blood) but from a _single_
ancestor only; as when two persons are derived from the same father,
and not from the same mother, or _vice versa_: provided only, that the
one ancestor, from whom both are descended, be he from whose veins the
blood royal is communicated to each. Thus Mary I inherited to Edward
VI, and Elizabeth inherited to Mary; all born of the same father, king
Henry VIII, but all by different mothers. The reason of which
diversity, between royal and common descents, will be better
understood hereafter, when we examine the nature of inheritances in
general.
[Footnote a: _in vit. Agricolae._]
3. THE doctrine of _hereditary_ right does by no means imply an
_indefeasible_ right to the throne. No man will, I think, assert this,
that has considered our laws, constitution, and history, without
prejudice, and with any degree of attention. It is unquestionably in
the breast of the supreme legislative authority of this kingdom, the
king and both houses of parliament, to defeat this hereditary right;
and, by particular entails, limitations, and provisions, to exclude
the immediate heir, and vest the inheritance in any one else. This is
strictly consonant to our laws and constitution; as may be gathered
from the expression so frequently used in our statute book, of "the
king's majesty, his heirs, and successors." In which we may observe,
that as the word, "heirs," necessarily implies an inheritance or
hereditary right, generally subsisting in the royal person; so the
word, "successors," distinctly taken, must imply that this inheritance
may sometimes be broke through; or, that there may be a successor,
without being the heir, of the king. And this is so extremely
reasonable, that without such a power, lodged somewhere, our polity
would be very defective. For, let us barely suppose so melancholy a
case, as that the heir apparent should be a lunatic, an ideot, or
otherwise incapable of reigning: how miserable would the condition of
the nation be, if he were also incapable of being set aside!--It is
therefore necessary that this power should be lodged somewhere: and
yet the inheritance, and regal dignity, would be very precarious
indeed, if this power were _expressly_ and _avowedly_ lodged in the
hands of the subject only, to be exerted whenever prejudice, caprice,
or discontent should happen to take the lead. Consequently it can no
where be so properly lodged as in the two houses of parliament, by and
with the consent of the reigning king; who, it is not to be supposed,
will agree to any thing improperly prejudicial to the rights of his
own descendants. And therefore in the king, lords, and commons, in
parliament assembled, our laws have expressly lodged it.
4. BUT, fourthly; however the crown maybe limited or transferred, it
still retains it's descendible quality, and becomes hereditary in the
wearer of it: and hence in our law the king is said never to die, in
his political capacity; though, in common with other men, he is
subject to mortality in his natural: because immediately upon the
natural death of Henry, William, or Edward, the king survives in his
successor; and the right of the crown vests, _eo instanti_, upon his
heir; either the _haeres natus_, if the course of descent remains
unimpeached, or the _haeres factus_, if the inheritance be under any
particular settlement. So that there can be no _interregnum_; but as
sir Matthew Hale[b] observes, the right of sovereignty is fully
invested in the successor by the very descent of the crown. And
therefore, however acquired, it becomes in him absolutely hereditary,
unless by the rules of the limitation it is otherwise ordered and
determined. In the same manner as landed estates, to continue our
former comparison, are by the law hereditary, or descendible to the
heirs of the owner; but still there exists a power, by which the
property of those lands may be transferred to another person. If this
transfer be made simply and absolutely, the lands will be hereditary
in the new owner, and descend to his heirs at law: but if the transfer
be clogged with any limitations, conditions, or entails, the lands
must descend in that chanel, so limited and prescribed, and no other.
[Footnote b: 1 Hist. P.C. 61.]
IN these four points consists, as I take it, the constitutional notion
of hereditary right to the throne: which will be still farther
elucidated, and made clear beyond all dispute, from a short historical
view of the successions to the crown of England, the doctrines of our
antient lawyers, and the several acts of parliament that have from
time to time been made, to create, to declare, to confirm, to limit,
or to bar, the hereditary title to the throne. And in the pursuit of
this enquiry we shall find, that from the days of Egbert, the first
sole monarch of this kingdom, even to the present, the four cardinal
maxims above mentioned have ever been held the constitutional canons
of succession. It is true, this succession, through fraud, or force,
or sometimes through necessity, when in hostile times the crown
descended on a minor or the like, has been very frequently suspended;
but has always at last returned back into the old hereditary chanel,
though sometimes a very considerable period has intervened. And, even
in those instances where the succession has been violated, the crown
has ever been looked upon as hereditary in the wearer of it. Of which
the usurpers themselves were so sensible, that they for the most part
endeavoured to vamp up some feeble shew of a title by descent, in
order to amuse the people, while they gained the possession of the
kingdom. And, when possession was once gained, they considered it as
the purchase or acquisition of a new estate of inheritance, and
transmitted or endeavoured to transmit it to their own posterity, by a
kind of hereditary right of usurpation.
KING Egbert about the year 800, found himself in possession of the
throne of the west Saxons, by a long and undisturbed descent from his
ancestors of above three hundred years. How his ancestors acquired
their title, whether by force, by fraud, by contract, or by election,
it matters not much to enquire; and is indeed a point of such high
antiquity, as must render all enquiries at best but plausible guesses.
His right must be supposed indisputably good, because we know no
better. The other kingdoms of the heptarchy he acquired, some by
consent, but most by a voluntary submission. And it is an established
maxim in civil polity, and the law of nations, that when one country
is united to another in such a manner, as that one keeps it's
government and states, and the other loses them; the latter entirely
assimilates or is melted down in the former, and must adopt it's laws
and customs[c]. And in pursuance of this maxim there hath ever been,
since the union of the heptarchy in king Egbert, a general
acquiescence under the hereditary monarchy of the west Saxons, through
all the united kingdoms.
[Footnote c: Puff. L. of N. and N. b. 8. c. 12. §. 6.]
FROM Egbert to the death of Edmund Ironside, a period of above two
hundred years, the crown descended regularly, through a succession of
fifteen princes, without any deviation or interruption; save only that
king Edred, the uncle of Edwy, mounted the throne for about nine
years, in the right of his nephew a minor, the times being very
troublesome and dangerous. But this was with a view to preserve, and
not to destroy, the succession; and accordingly Edwy succeeded him.
KING Edmund Ironside was obliged, by the hostile irruption of the
Danes, at first to divide his kingdom with Canute, king of Denmark;
and Canute, after his death, seised the whole of it, Edmund's sons
being driven into foreign countries. Here the succession was suspended
by actual force, and a new family introduced upon the throne: in whom
however this new acquired throne continued hereditary for three
reigns; when, upon the death of Hardiknute, the antient Saxon line was
restored in the person of Edward the confessor.
HE was not indeed the true heir to the crown, being the younger
brother of king Edmund Ironside, who had a son Edward, sirnamed (from
his exile) the outlaw, still living. But this son was then in Hungary;
and, the English having just shaken off the Danish yoke, it was
necessary that somebody on the spot should mount the throne; and the
confessor was the next of the royal line then in England. On his
decease without issue, Harold II usurped the throne, and almost at the
same instant came on the Norman invasion: the right to the crown
being all the time in Edgar, sirnamed Atheling, (which signifies in
the Saxon language the first of the blood royal) who was the son of
Edward the outlaw, and grandson of Edmund Ironside; or, as Matthew
Paris[d] well expresses the sense of our old constitution, "_Edmundus
autem latusferreum, rex naturalis de stirpe regum, genuit Edwardum; et
Edwardus genuit Edgarum, cui de jure debebatur regnum Anglorum_."
[Footnote d: _A.D._ 1066.]
WILLIAM the Norman claimed the crown by virtue of a pretended grant
from king Edward the confessor; a grant which, if real, was in itself
utterly invalid: because it was made, as Harold well observed in his
reply to William's demand[e], "_absque generali senatus et populi
conventu et edicto_;" which also very plainly implies, that it then
was generally understood that the king, with consent of the general
council, might dispose of the crown and change the line of succession.
William's title however was altogether as good as Harold's, he being a
mere private subject, and an utter stranger to the royal blood. Edgar
Atheling's undoubted right was overwhelmed by the violence of the
times; though frequently asserted by the English nobility after the
conquest, till such time as he died without issue: but all their
attempts proved unsuccessful, and only served the more firmly to
establish the crown in the family which had newly acquired it.
[Footnote e: William of Malmsb. _l._ 3.]
THIS conquest then by William of Normandy was, like that of Canute
before, a forcible transfer of the crown of England into a new family:
but, the crown being so transferred, all the inherent properties of
the crown were with it transferred also. For, the victory obtained at
Hastings not being[f] a victory over the nation collectively, but only
over the person of Harold, the only right that the conqueror could
pretend to acquire thereby, was the right to possess the crown of
England, not to alter the nature of the government. And therefore, as
the English laws still remained in force, he must necessarily take
the crown subject to those laws, and with all it's inherent
properties; the first and principal of which was it's descendibility.
Here then we must drop our race of Saxon kings, at least for a while,
and derive our descents from William the conqueror as from a new
stock, who acquired by right of war (such as it is, yet still the
_dernier resort_ of kings) a strong and undisputed title to the
inheritable crown of England.
[Footnote f: Hale, Hist. C.L. c. 5. Seld. review of tithes, c. 8.]
ACCORDINGLY it descended from him to his sons William II and Henry I.
Robert, it must be owned, his eldest son, was kept out of possession
by the arts and violence of his brethren; who proceeded upon a notion,
which prevailed for some time in the law of descents, that when the
eldest son was already provided for (as Robert was constituted duke of
Normandy by his father's will) in such a case the next brother was
entitled to enjoy the rest of their father's inheritance. But, as he
died without issue, Henry at last had a good title to the throne,
whatever he might have at first.
STEPHEN of Blois, who succeeded him, was indeed the grandson of the
conqueror, by Adelicia his daughter, and claimed the throne by a
feeble kind of hereditary right; not as being the nearest of the male
line, but as the nearest male of the blood royal. The real right was
in the empress Matilda or Maud, the daughter of Henry I; the rule of
succession being (where women are admitted at all) that the daughter
of a son shall be preferred to the son of a daughter. So that Stephen
was little better than a mere usurper; and the empress Maud did not
fail to assert her right by the sword: which dispute was attended with
various success, and ended at last in a compromise, that Stephen
should keep the crown, but that Henry the son of Maud should succeed
him; as he afterwards accordingly did.
HENRY, the second of that name, was the undoubted heir of William the
conqueror; but he had also another connexion in blood, which endeared
him still farther to the English. He was lineally descended from
Edmund Ironside, the last of the Saxon race of hereditary kings. For
Edward the outlaw, the son of Edmund Ironside, had (besides Edgar
Atheling, who died without issue) a daughter Margaret, who was married
to Malcolm king of Scotland; and in her the Saxon hereditary right
resided. By Malcolm she had several children, and among the rest
Matilda the wife of Henry I, who by him had the empress Maud, the
mother of Henry II. Upon which account the Saxon line is in our
histories frequently said to have been restored in his person: though
in reality that right subsisted in the _sons_ of Malcolm by queen
Margaret; king Henry's best title being as heir to the conqueror.
FROM Henry II the crown descended to his eldest son Richard I, who
dying childless, the right vested in his nephew Arthur, the son of
Geoffrey his next brother; but John, the youngest son of king Henry,
seised the throne; claiming, as appears from his charters, the crown
by hereditary right[g]: that is to say, he was next of kin to the
deceased king, being his surviving brother; whereas Arthur was removed
one degree farther, being his brother's son, though by right of
representation he stood in the place of his father Geoffrey. And
however flimzey this title, and those of William Rufus and Stephen of
Blois, may appear at this distance to us, after the law of descents
hath now been settled for so many centuries, they were sufficient to
puzzle the understandings of our brave, but unlettered, ancestors. Nor
indeed can we wonder at the number of partizans, who espoused the
pretensions of king John in particular; since even in the reign of his
father, king Henry II, it was a point undetermined[h], whether, even
in common inheritances, the child of an elder brother should succeed
to the land in right of representation, or the younger surviving
brother in right of proximity of blood. Nor is it to this day decided
in the collateral succession to the fiefs of the empire, whether the
order of the stocks, or the proximity of degree shall take place[i].
However, on the death of Arthur and his sister Eleanor without issue,
a clear and indisputable title vested in Henry III the son of John:
and from him to Richard the second, a succession of six generations,
the crown descended in the true hereditary line. Under one of which
race of princes[k], we find it declared in parliament, "that the law
of the crown of England is, and always hath been, that the children of
the king of England, whether born in England, or elsewhere, ought to
bear the inheritance after the death of their ancestors. Which law,
our sovereign lord the king, the prelates, earls, and barons, and
other great men, together with all the commons, in parliament
assembled, do approve and affirm for ever."
[Footnote g: "_Regni Angliae; quod nobis jure competit haereditario._"
Spelm. _Hist. R. Joh. apud_ Wilkins. 354.]
[Footnote h: Glanv. _l._ 7. _c._ 3.]
[Footnote i: Mod. Un. Hist. xxx. 512.]
[Footnote k: Stat. 25 Edw. III. st. 2.]
UPON Richard the second's resignation of the crown, he having no
children, the right resulted to the issue of his grandfather Edward
III. That king had many children, besides his eldest, Edward the black
prince of Wales, the father of Richard II: but to avoid confusion I
shall only mention three; William his second son, who died without
issue; Lionel duke of Clarence, his third son; and John of Gant duke
of Lancaster, his fourth. By the rules of succession therefore the
posterity of Lionel duke of Clarence were entitled to the throne, upon
the resignation of king Richard; and had accordingly been declared by
the king, many years before, the presumptive heirs of the crown; which
declaration was also confirmed in parliament[l]. But Henry duke of
Lancaster, the son of John of Gant, having then a large army in the
kingdom, the pretence of raising which was to recover his patrimony
from the king, and to redress the grievances of the subject, it was
impossible for any other title to be asserted with any safety; and he
became king under the title of Henry IV. But, as sir Matthew Hale
remarks[m], though the people unjustly assisted Henry IV in his
usurpation of the crown, yet he was not admitted thereto, until he had
declared that he claimed, not as a conqueror, (which he very much
inclined to do[n]) but as a successor, descended by right line of the
blood royal; as appears from the rolls of parliament in those times.
And in order to this he set up a shew of two titles: the one upon the
pretence of being the first of the blood royal in the intire male
line, whereas the duke of Clarence left only one daughter Philippa;
from which female branch, by a marriage with Edmond Mortimer earl of
March, the house of York descended: the other, by reviving an exploded
rumour, first propagated by John of Gant, that Edmond earl of
Lancaster (to whom Henry's mother was heiress) was in reality the
elder brother of king Edward I; though his parents, on account of his
personal deformity, had imposed him on the world for the younger: and
therefore Henry would be intitled to the crown, either as successor to
Richard II, in case the intire male line was allowed a preference to
the female; or, even prior to that unfortunate prince, if the crown
could descend through a female, while an intire male line was
existing.
[Footnote l: Sandford's geneal. hist. 246.]
[Footnote m: Hist. C.L. c. 5.]
[Footnote n: Seld. tit. hon. 1. 3.]
HOWEVER, as in Edward the third's time we find the parliament
approving and affirming the right of the crown, as before stated, so
in the reign of Henry IV they actually exerted their right of
new-settling the succession to the crown. And this was done by the
statute 7 Hen. IV. c. 2. whereby it is enacted, "that the inheritance
of the crown and realms of England and France, and all other the
king's dominions, shall be _set and remain_[o] in the person of our
sovereign lord the king, and in the heirs of his body issuing;" and
prince Henry is declared heir apparent to the crown, to hold to him
and the heirs of his body issuing, with remainder to lord Thomas, lord
John, and lord Humphry, the king's sons, and the heirs of their bodies
respectively. Which is indeed nothing more than the law would have
done before, provided Henry the fourth had been a rightful king. It
however serves to shew that it was then generally understood, that the
king and parliament had a right to new-model and regulate the
succession to the crown. And we may observe, with what caution and
delicacy the parliament then avoided declaring any sentiment of
Henry's original title. However sir Edward Coke more than once
expressly declares[p], that at the time of passing this act the right
of the crown was in the descent from Philippa, daughter and heir of
Lionel duke of Clarence.
[Footnote o: _soit mys et demoerge._]
[Footnote p: 4 Inst. 37, 205.]
NEVERTHELESS the crown descended regularly from Henry IV to his son
and grandson Henry V and VI; in the latter of whose reigns the house
of York asserted their dormant title; and, after imbruing the kingdom
in blood and confusion for seven years together, at last established
it in the person of Edward IV. At his accession to the throne, after a
breach of the succession that continued for three descents, and above
threescore years, the distinction of a king _de jure_, and a king _de
facto_ began to be first taken; in order to indemnify such as had
submitted to the late establishment, and to provide for the peace of
the kingdom by confirming all honors conferred, and all acts done, by
those who were now called the usurpers, not tending to the disherison
of the rightful heir. In statute 1 Edw. IV. c. 1. the three Henrys are
stiled, "late kings of England successively in dede, and not of
ryght." And, in all the charters which I have met with of king Edward,
wherever he has occasion to speak of any of the line of Lancaster, he
calls them "_nuper de facto, et non de jure, reges Angliae_."
EDWARD IV left two sons and a daughter; the eldest of which sons, king
Edward V, enjoyed the regal dignity for a very short time, and was
then deposed by Richard his unnatural uncle; who immediately usurped
the royal dignity, having previously insinuated to the populace a
suspicion of bastardy in the children of Edward IV, to make a shew of
some hereditary title: after which he is generally believed to have
murdered his two nephews; upon whose death the right of the crown
devolved to their sister Elizabeth.
THE tyrannical reign of king Richard III gave occasion to Henry earl
of Richmond to assert his title to the crown. A title the most remote
and unaccountable that was ever set up, and which nothing could have
given success to, but the universal detestation of the then usurper
Richard. For, besides that he claimed under a descent from John of
Gant, whose title was now exploded, the claim (such as it was) was
through John earl of Somerset, a bastard son, begotten by John of Gant
upon Catherine Swinford. It is true, that, by an act of parliament 20
Ric. II, this son was, with others, legitimated and made inheritable
to all lands, offices, and dignities, as if he had been born in
wedlock: but still, with an express reservation of the crown,
"_excepta dignitate regali_[q]."
[Footnote q: 4 Inst. 36.]
NOTWITHSTANDING all this, immediately after the battle of Bosworth
field, he assumed the regal dignity; the right of the crown then
being, as sir Edward Coke expressly declares[r], in Elizabeth, eldest
daughter of Edward IV: and his possession was established by
parliament, held the first year of his reign. In the act for which
purpose, the parliament seems to have copied the caution of their
predecessors in the reign of Henry IV; and therefore (as lord Bacon
the historian of this reign observes) carefully avoided any
recognition of Henry VII's right, which indeed was none at all; and
the king would not have it by way of new law or ordinance, whereby a
right might seem to be created and conferred upon him; and therefore a
middle way was rather chosen, by way (as the noble historian expresses
it) of _establishment_, and that under covert and indifferent words,
"that the inheritance of the crown should _rest_, _remain_, and
_abide_ in king Henry VII and the heirs of his body:" thereby
providing for the future, and at the same time acknowleging his
present possession; but not determining either way, whether that
possession was _de jure_ or _de facto_ merely. However he soon after
married Elizabeth of York, the undoubted heiress of the conqueror, and
thereby gained (as sir Edward Coke[s] declares) by much his best title
to the crown. Whereupon the act made in his favour was so much
disregarded, that it never was printed in our statute books.
[Footnote r: 4 Inst. 37.]
[Footnote s: _Ibid._]
HENRY the eighth, the issue of this marriage, succeeded to the crown
by clear indisputable hereditary right, and transmitted it to his
three children in successive order. But in his reign we at several
times find the parliament busy in regulating the succession to the
kingdom. And, first, by statute 25 Hen. VIII. c. 12. which recites the
mischiefs, which have and may ensue by disputed titles, because no
perfect and substantial provision hath been made by law concerning the
succession; and then enacts, that the crown shall be entailed to his
majesty, and the sons or heirs males of his body; and in default of
such sons to the lady Elizabeth (who is declared to be the king's
eldest issue female, in exclusion of the lady Mary, on account of her
supposed illegitimacy by the divorce of her mother queen Catherine)
and to the lady Elizabeth's heirs of her body; and so on from issue
female to issue female, and the heirs of their bodies, by course of
inheritance according to their ages, _as the crown of England hath
been accustomed and ought to go_, in case where there be heirs female
of the same: and in default of issue female, then to the king's right
heirs for ever. This single statute is an ample proof of all the four
positions we at first set out with.
BUT, upon the king's divorce from Ann Boleyn, this statute was, with
regard to the settlement of the crown, repealed by statute 28 Hen.
VIII. c. 7. wherein the lady Elizabeth is also, as well as the lady
Mary, bastardized, and the crown settled on the king's children by
queen Jane Seymour, and his future wives; and, in defect of such
children, then with this remarkable remainder, to such persons as the
king by letters patent, or last will and testament, should limit and
appoint the same. A vast power; but, notwithstanding, as it was
regularly vested in him by the supreme legislative authority, it was
therefore indisputably valid. But this power was never carried into
execution; for by statute 35 Hen. VIII. c. 1. the king's two daughters
are legitimated again, and the crown is limited to prince Edward by
name, after that to the lady Mary, and then to the lady Elizabeth, and
the heirs of their respective bodies; which succession took effect
accordingly, being indeed no other than the usual course of the law,
with regard to the descent of the crown.
BUT lest there should remain any doubt in the minds of the people,
through this jumble of acts for limiting the succession, by statute 1
Mar. p. 2. c. 1. queen Mary's hereditary right to the throne is
acknowleged and recognized in these words: "the crown of these realms
is most lawfully, justly, and rightly _descended_ and come to the
queen's highness that now is, being the very, true, and undoubted heir
and inheritrix thereof." And again, upon the queen's marriage with
Philip of Spain, in the statute which settles the preliminaries of
that match[t], the hereditary right to the crown is thus asserted and
declared: "as touching the right of the queen's inheritance in the
realm and dominions of England, the children, whether male or female,
shall succeed in them, according to the known laws, statutes, and
customs of the same." Which determination of the parliament, that the
succession _shall_ continue in the usual course, seems tacitly to
imply a power of new-modelling and altering it, in case the
legislature had thought proper.
[Footnote t: 1 Mar. p. 2. c. 2.]
ON queen Elizabeth's accession, her right is recognized in still
stronger terms than her sister's; the parliament acknowleging[u],
"that the queen's highness is, and in very deed and of most mere right
ought to be, by the laws of God, and the laws and statutes of this
realm, our most lawful and rightful sovereign liege lady and queen;
and that her highness is rightly, lineally, and lawfully descended and
come of the blood royal of this realm of England; in and to whose
princely person, and to the heirs of her body lawfully to be begotten,
after her, the imperial crown and dignity of this realm doth belong."
And in the same reign, by statute 13 Eliz. c. 1. we find the right of
parliament to direct the succession of the crown asserted in the most
explicit words. "If any person shall hold, affirm, or maintain that
the common laws of this realm, not altered by parliament, ought not to
direct the right of the crown of England; or that the queen's majesty,
with and by the authority of parliament, is not able to make laws and
statutes of sufficient force and validity, to limit and bind the crown
of this realm, and the descent, limitation, inheritance, and
government thereof;--such person, so holding, affirming, or
maintaining, shall during the life of the queen be guilty of high
treason; and after her decease shall be guilty of a misdemesnor, and
forfeit his goods and chattels."
[Footnote u: Stat. 1 Eliz. c. 3.]
ON the death of queen Elizabeth, without issue, the line of Henry VIII
became extinct. It therefore became necessary to recur to the other
issue of Henry VII, by Elizabeth of York his queen: whose eldest
daughter Margaret having married James IV king of Scotland, king James
the sixth of Scotland, and of England the first, was the lineal
descendant from that alliance. So that in his person, as clearly as in
Henry VIII, centered all the claims of different competitors from the
conquest downwards, he being indisputably the lineal heir of the
conqueror. And, what is still more remarkable, in his person also
centered the right of the Saxon monarchs, which had been suspended
from the conquest till his accession. For, as was formerly observed,
Margaret the sister of Edgar Atheling, the daughter of Edward the
outlaw, and granddaughter of king Edmund Ironside, was the person in
whom the hereditary right of the Saxon kings, supposing it not
abolished by the conquest, resided. She married Malcolm king of
Scotland; and Henry II, by a descent from Matilda their daughter, is
generally called the restorer of the Saxon line. But it must be
remembered, that Malcolm by his Saxon queen had sons as well as
daughters; and that the royal family of Scotland from that time
downwards were the offspring of Malcolm and Margaret. Of this royal
family king James the first was the direct lineal heir, and therefore
united in his person every possible claim by hereditary right to the
English, as well as Scottish throne, being the heir both of Egbert and
William the conqueror.
AND it is no wonder that a prince of more learning than wisdom, who
could deduce an hereditary title for more than eight hundred years,
should easily be taught by the flatterers of the times to believe
there was something divine in this right, and that the finger of
providence was visible in it's preservation. Whereas, though a wise
institution, it was clearly a human institution; and the right
inherent in him no natural, but a positive right. And in this and no
other light was it taken by the English parliament; who by statute 1
Jac. I. c. 1. did "recognize and acknowlege, that immediately upon the
dissolution and decease of Elizabeth late queen of England, the
imperial crown thereof did by inherent birthright, and lawful and
undoubted succession, descend and come to his most excellent majesty,
as being lineally, justly, and lawfully, next and sole heir of the
blood royal of this realm." Not a word here of any right immediately
derived from heaven: which, if it existed any where, must be sought
for among the _aborigines_ of the island, the antient Britons; among
whose princes indeed some have gone to search it for him[w].
[Footnote w: Elizabeth of York, the mother of queen Margaret of
Scotland, was heiress of the house of Mortimer. And Mr Carte observes,
that the house of Mortimer, in virtue of it's descent from Gladys only
sister to Lewellin ap Jorweth the great, had the true right to the
principality of Wales. iii. 705.]
BUT, wild and absurd as the doctrine of divine right most undoubtedly
is, it is still more astonishing, that when so many human hereditary
rights had centered in this king, his son and heir king Charles the
first should be told by those infamous judges, who pronounced his
unparalleled sentence, that he was an elective prince; elected by his
people, and therefore accountable to them, in his own proper person,
for his conduct. The confusion, instability, and madness, which
followed the fatal catastrophe of that pious and unfortunate prince,
will be a standing argument in favour of hereditary monarchy to all
future ages; as they proved at last to the then deluded people: who,
in order to recover that peace and happiness which for twenty years
together they had lost, in a solemn parliamentary convention of the
states restored the right heir of the crown. And in the proclamation
for that purpose, which was drawn up and attended by both houses[x],
they declared, "that, according to their duty and allegiance, they did
heartily, joyfully, and unanimously acknowlege and proclaim, that
immediately upon the decease of our late sovereign lord king Charles,
the imperial crown of these realms did by inherent birthright and
lawful and undoubted succession descend and come to his most excellent
majesty Charles the second, as being lineally, justly, and lawfully,
next heir of the blood royal of this realm: and thereunto they most
humbly and faithfully did submit and oblige themselves, their heirs
and posterity for ever."
[Footnote x: Com. Journ. 8 May, 1660.]
THUS I think it clearly appears, from the highest authority this
nation is acquainted with, that the crown of England hath been ever an
hereditary crown; though subject to limitations by parliament. The
remainder of this chapter will consist principally of those instances,
wherein the parliament has asserted or exercised this right of
altering and limiting the succession; a right which, we have seen, was
before exercised and asserted in the reigns of Henry IV, Henry VII,
Henry VIII, queen Mary, and queen Elizabeth.
THE first instance, in point of time, is the famous bill of exclusion,
which raised such a ferment in the latter end of the reign of king
Charles the second. It is well known, that the purport of this bill
was to have set aside the king's brother and presumptive heir, the
duke of York, from the succession, on the score of his being a papist;
that it passed the house of commons, but was rejected by the lords;
the king having also declared beforehand, that he never would be
brought to consent to it. And from this transaction we may collect two
things: 1. That the crown was universally acknowleged to be
hereditary; and the inheritance indefeasible unless by parliament:
else it had been needless to prefer such a bill. 2. That the
parliament had a power to have defeated the inheritance: else such a
bill had been ineffectual. The commons acknowleged the hereditary
right then subsisting; and the lords did not dispute the power, but
merely the propriety, of an exclusion. However, as the bill took no
effect, king James the second succeeded to the throne of his
ancestors; and might have enjoyed it during the remainder of his life,
but for his own infatuated conduct, which (with other concurring
circumstances) brought on the revolution in 1688.
THE true ground and principle, upon which that memorable event
proceeded, was an entirely new case in politics, which had never
before happened in our history; the abdication of the reigning
monarch, and the vacancy of the throne thereupon. It was not a
defeazance of the right of succession, and a new limitation of the
crown, by the king and both houses of parliament: it was the act of
the nation alone, upon an apprehension that there was no king in
being. For in a full assembly of the lords and commons, met in
convention upon this apprehended vacancy, both houses[y] came to this
resolution; "that king James the second, having endeavoured to subvert
the constitution of the kingdom, by breaking the original contract
between king and people; and, by the advice of jesuits and other
wicked persons, having violated the fundamental laws; and having
withdrawn himself out of this kingdom; has abdicated the government,
and that the throne is thereby vacant." Thus ended at once, by this
sudden and unexpected vacancy of the throne, the old line of
succession; which from the conquest had lasted above six hundred
years, and from the union of the heptarchy in king Egbert almost nine
hundred. The facts themselves thus appealed to, the king's endeavours
to subvert the constitution by breaking the original contract, his
violation of the fundamental laws, and his withdrawing himself out of
the kingdom, were evident and notorious: and the consequences drawn
from these facts (namely, that they amounted to an abdication of the
government; which abdication did not affect only the person of the
king himself, but also all his heirs, and rendered the throne
absolutely and completely vacant) it belonged to our ancestors to
determine. For, whenever a question arises between the society at
large and any magistrate vested with powers originally delegated by
that society, it must be decided by the voice of the society itself:
there is not upon earth any other tribunal to resort to. And that
these consequences were fairly deduced from these facts, our ancestors
have solemnly determined, in a full parliamentary convention
representing the whole society. The reasons upon which they decided
may be found at large in the parliamentary proceedings of the times;
and may be matter of instructive amusement for us to contemplate, as a
speculative point of history. But care must be taken not to carry this
enquiry farther, than merely for instruction or amusement. The idea,
that the consciences of posterity were concerned in the rectitude of
their ancestors' decisions, gave birth to those dangerous political
heresies, which so long distracted the state, but at length are all
happily extinguished. I therefore rather chuse to consider this great
political measure, upon the solid footing of authority, than to reason
in it's favour from it's justice, moderation, and expedience: because
that might imply a right of dissenting or revolting from it, in case
we should think it unjust, oppressive, or inexpedient. Whereas, our
ancestors having most indisputably a competent jurisdiction to decide
this great and important question, and having in fact decided it, it
is now become our duty at this distance of time to acquiesce in their
determination; being born under that establishment which was built
upon this foundation, and obliged by every tie, religious as well as
civil, to maintain it.
[Footnote y: Com. Journ. 7 Feb. 1688.]
BUT, while we rest this fundamental transaction, in point of
authority, upon grounds the least liable to cavil, we are bound both
in justice and gratitude to add, that it was conducted with a temper
and moderation which naturally arose from it's equity; that, however
it might in some respects go beyond the letter of our antient laws,
(the reason of which will more fully appear hereafter[z]) it was
agreeable to the spirit of our constitution, and the rights of human
nature; and that though in other points (owing to the peculiar
circumstances of things and persons) it was not altogether so perfect
as might have been wished, yet from thence a new aera commenced, in
which the bounds of prerogative and liberty have been better defined,
the principles of government more thoroughly examined and understood,
and the rights of the subject more explicitly guarded by legal
provisions, than in any other period of the English history. In
particular, it is worthy observation that the convention, in this
their judgment, avoided with great wisdom the wild extremes into which
the visionary theories of some zealous republicans would have led
them. They held that this misconduct of king James amounted to an
_endeavour_ to subvert the constitution, and not to an actual
subversion, or total dissolution of the government, according to the
principles of Mr Locke[a]: which would have reduced the society almost
to a state of nature; would have levelled all distinctions of honour,
rank, offices, and property; would have annihilated the sovereign
power, and in consequence have repealed all positive laws; and would
have left the people at liberty to have erected a new system of state
upon a new foundation of polity. They therefore very prudently voted
it to amount to no more than an abdication of the government, and a
consequent vacancy of the throne; whereby the government was allowed
to subsist, though the executive magistrate was gone, and the kingly
office to remain, though king James was no longer king. And thus the
constitution was kept intire; which upon every sound principle of
government must otherwise have fallen to pieces, had so principal and
constituent a part as the royal authority been abolished, or even
suspended.
[Footnote z: See chapter 7.]
[Footnote a: on Gov. p. 2. c. 19.]
THIS single postulatum, the vacancy of the throne, being once
established, the rest that was then done followed almost of course.
For, if the throne be at any time vacant (which may happen by other
means besides that of abdication; as if all the bloodroyal should
fail, without any successor appointed by parliament;) if, I say, a
vacancy by any means whatsoever should happen, the right of disposing
of this vacancy seems naturally to result to the lords and commons,
the trustees and representatives of the nation. For there are no other
hands in which it can so properly be intrusted; and there is a
necessity of it's being intrusted somewhere, else the whole frame of
government must be dissolved and perish. The lords and commons having
therefore determined this main fundamental article, that there was a
vacancy of the throne, they proceeded to fill up that vacancy in such
manner as they judged the most proper. And this was done by their
declaration of 12 February 1688[b], in the following manner: "that
William and Mary, prince and princess of Orange, be, and be declared
king and queen, to hold the crown and royal dignity during their
lives, and the life of the survivor of them; and that the sole and
full exercise of the regal power be only in, and executed by, the said
prince of Orange, in the names of the said prince and princess, during
their joint lives; and after their deceases the said crown and royal
dignity to be to the heirs of the body of the said princess; and for
default of such issue to the princess Anne of Denmark and the heirs of
her body; and for default of such issue to the heirs of the body of
the said prince of Orange."
[Footnote b: Com. Journ. 12 Feb. 1688.]
PERHAPS, upon the principles before established, the convention might
(if they pleased) have vested the regal dignity in a family intirely
new, and strangers to the royal blood: but they were too well
acquainted with the benefits of hereditary succession, and the
influence which it has by custom over the minds of the people, to
depart any farther from the antient line than temporary necessity and
self-preservation required. They therefore settled the crown, first on
king William and queen Mary, king James's eldest daughter, for their
_joint_ lives; then on the survivor of them; and then on the issue of
queen Mary: upon failure of such issue, it was limited to the princess
Anne, king James's second daughter, and her issue; and lastly, on
failure of that, to the issue of king William, who was the grandson of
Charles the first, and nephew as well as son in law of king James the
second, being the son of Mary his only sister. This settlement
included all the protestant posterity of king Charles I, except such
other issue as king James might at any time have, which was totally
omitted through fear of a popish succession. And this order of
succession took effect accordingly.
THESE three princes therefore, king William, queen Mary, and queen
Anne, did not take the crown by hereditary right or _descent_, but by
way of donation or _purchase_, as the lawyers call it; by which they
mean any method of acquiring an estate otherwise than by descent. The
new settlement did not merely consist in excluding king James, and the
person pretended to be prince of Wales, and then suffering the crown
to descend in the old hereditary chanel: for the usual course of
descent was in some instances broken through; and yet the convention
still kept it in their eye, and paid a great, though not total, regard
to it. Let us see how the succession would have stood, if no
abdication had happened, and king James had left no other issue than
his two daughters queen Mary and queen Anne. It would have stood thus:
queen Mary and her issue; queen Anne and her issue; king William and
his issue. But we may remember, that queen Mary was only nominally
queen, jointly with her husband king William, who alone had the regal
power; and king William was absolutely preferred to queen Anne, though
his issue was postponed to hers. Clearly therefore these princes were
successively in possession of the crown by a title different from the
usual course of descent.
IT was towards the end of king William's reign, when all hopes of any
surviving issue from any of these princes died with the duke of
Glocester, that the king and parliament thought it necessary again to
exert their power of limiting and appointing the succession, in order
to prevent another vacancy of the throne; which must have ensued upon
their deaths, as no farther provision was made at the revolution, than
for the issue of king William, queen Mary, and queen Anne. The
parliament had previously by the statute of 1 W. & M. st. 2. c. 2.
enacted, that every person who should be reconciled to, or hold
communion with, the see of Rome, should profess the popish religion,
or should marry a papist, should be excluded and for ever incapable to
inherit, possess, or enjoy, the crown; and that in such case the
people should be absolved from their allegiance, and the crown should
descend to such persons, being protestants, as would have inherited
the same, in case the person so reconciled, holding communion,
professing, or marrying, were naturally dead. To act therefore
consistently with themselves, and at the same time pay as much regard
to the old hereditary line as their former resolutions would admit,
they turned their eyes on the princess Sophia, electress and duchess
dowager of Hanover, the most accomplished princess of her age[c]. For,
upon the impending extinction of the protestant posterity of Charles
the first, the old law of regal descent directed them to recur to the
descendants of James the first; and the princess Sophia, being the
daughter of Elizabeth queen of Bohemia, who was the youngest daughter
of James the first, was the nearest of the antient blood royal, who
was not incapacitated by professing the popish religion. On her
therefore, and the heirs of her body, being protestants, the remainder
of the crown, expectant on the death of king William and queen Anne
without issue, was settled by statute 12 & 13 W. III. c. 2. And at the
same time it was enacted, that whosoever should hereafter come to the
possession of the crown, should join in the communion of the church of
England as by law established.
[Footnote c: Sandford, in his genealogical history, published _A.D._
1677, speaking (page 535) of the princesses Elizabeth, Louisa, and
Sophia, daughters of the queen of Bohemia, says, the first was reputed
the most learned, the second the greatest artist, and the last one of
the most accomplished ladies in Europe.]
THIS is the last limitation of the crown that has been made by
parliament: and these several actual limitations, from the time of
Henry IV to the present, do clearly prove the power of the king and
parliament to new-model or alter the succession. And indeed it is now
again made highly penal to dispute it: for by the statute 6 Ann. c. 7.
it is enacted, that if any person maliciously, advisedly, and
directly, shall maintain by writing or printing, that the kings of
this realm with the authority of parliament are not able to make laws
to bind the crown and the descent thereof, he shall be guilty of high
treason; or if he maintains the same by only preaching, teaching, or
advised speaking, he shall incur the penalties of a praemunire.
THE princess Sophia dying before queen Anne, the inheritance thus
limited descended on her son and heir king George the first; and,
having on the death of the queen taken effect in his person, from him
it descended to his late majesty king George the second; and from him
to his grandson and heir, our present gracious sovereign, king George
the third.
HENCE it is easy to collect, that the title to the crown is at present
hereditary, though not quite so absolutely hereditary as formerly; and
the common stock or ancestor, from whom the descent must be derived,
is also different. Formerly the common stock was king Egbert; then
William the conqueror; afterwards in James the first's time the two
common stocks united, and so continued till the vacancy of the throne
in 1688: now it is the princess Sophia, in whom the inheritance was
vested by the new king and parliament. Formerly the descent was
absolute, and the crown went to the next heir without any restriction:
but now, upon the new settlement, the inheritance is conditional,
being limited to such heirs only, of the body of the princess Sophia,
as are protestant members of the church of England, and are married to
none but protestants.
AND in this due medium consists, I apprehend, the true constitutional
notion of the right of succession to the imperial crown of these
kingdoms. The extremes, between which it steers, are each of them
equally destructive of those ends for which societies were formed and
are kept on foot. Where the magistrate, upon every succession, is
elected by the people, and may by the express provision of the laws be
deposed (if not punished) by his subjects, this may sound like the
perfection of liberty, and look well enough when delineated on paper;
but in practice will be ever productive of tumult, contention, and
anarchy. And, on the other hand, divine indefeasible hereditary right,
when coupled with the doctrine of unlimited passive obedience, is
surely of all constitutions the most thoroughly slavish and dreadful.
But when such an hereditary right, as our laws have created and vested
in the royal stock, is closely interwoven with those liberties, which,
we have seen in a former chapter, are equally the inheritance of the
subject; this union will form a constitution, in theory the most
beautiful of any, in practice the most approved, and, I trust, in
duration the most permanent. It was the duty of an expounder of our
laws to lay this constitution before the student in it's true and
genuine light: it is the duty of every good Englishman to understand,
to revere, to defend it.
CHAPTER THE FOURTH.
OF THE KING'S ROYAL FAMILY.
THE first and most considerable branch of the king's royal family,
regarded by the laws of England, is the queen.
THE queen of England is either queen _regent_, queen _consort_, or
queen _dowager_. The queen _regent_, _regnant_, or _sovereign_, is she
who holds the crown in her own right; as the first (and perhaps the
second) queen Mary, queen Elizabeth, and queen Anne; and such a one
has the same powers, prerogatives, rights, dignities, and duties, as
if she had been a king. This was observed in the entrance of the last
chapter, and is expressly declared by statute 1 Mar. I. st. 3. c. 1.
But the queen _consort_ is the wife of the reigning king; and she by
virtue of her marriage is participant of divers prerogatives above
other women[a].
[Footnote a: Finch. L. 86.]
AND, first, she is a public person, exempt and distinct from the king;
and not, like other married women, so closely connected as to have
lost all legal or separate existence so long as the marriage
continues. For the queen is of ability to purchase lands, and to
convey them, to make leases, to grant copyholds, and do other acts of
ownership, without the concurrence of her lord; which no other married
woman can do[b]: a privilege as old as the Saxon aera[c]. She is also
capable of taking a grant from the king, which no other wife is from
her husband; and in this particular she agrees with the _augusta_, or
_piissima regina conjux divi imperatoris_ of the Roman laws; who,
according to Justinian[d], was equally capable of making a grant to,
and receiving one from, the emperor. The queen of England hath
separate courts and officers distinct from the king's, not only in
matters of ceremony, but even of law; and her attorney and solicitor
general are intitled to a place within the bar of his majesty's
courts, together with the king's counsel[e]. She may also sue and be
sued alone, without joining her husband. She may also have a separate
property in goods as well as lands, and has a right to dispose of them
by will. In short, she is in all legal proceedings looked upon as a
feme sole, and not as a feme covert; as a single, not as a married
woman[f]. For which the reason given by Sir Edward Coke is this:
because the wisdom of the common law would not have the king (whose
continual care and study is for the public, and _circa ardua regni_)
to be troubled and disquieted on account of his wife's domestic
affairs; and therefore it vests in the queen a power of transacting
her own concerns, without the intervention of the king, as if she was
an unmarried woman.
[Footnote b: 4 Rep. 23.]
[Footnote c: Seld. _Jan. Angl._ 1. 42.]
[Footnote d: _Cod._ 5. 16. 26.]
[Footnote e: Selden tit. hon. 1. 6. 7.]
[Footnote f: Finch. L. 86. Co. Litt. 133.]
THE queen hath also many exemptions, and minute prerogatives. For
instance: she pays no toll[g]; nor is she liable to any amercement in
any court[h]. But in general, unless where the law has expressly
declared her exempted, she is upon the same footing with other
subjects; being to all intents and purposes the king's subject, and
not his equal: in like manner as, in the imperial law, "_augusta
legibus soluta non est_[i]."
[Footnote g: Co. Litt. 133.]
[Footnote h: Finch. L. 185.]
[Footnote i: _Ff._ 1. 3. 31.]
THE queen hath also some pecuniary advantages, which form her a
distinct revenue: as, in the first place, she is intitled to an
antient perquisite called queen-gold or _aurum reginae_; which is a
royal revenue, belonging to every queen consort during her marriage
with the king, and due from every person who hath made a voluntary
offering or fine to the king, amounting to ten marks or upwards, for
and in consideration of any privileges, grants, licences, pardons, or
other matter of royal favour conferred upon him by the king: and it is
due in the proportion of one tenth part more, over and above the
intire offering or fine made to the king; and becomes an actual debt
of record to the queen's majesty by the mere recording the fine[k].
As, if an hundred marks of silver be given to the king for liberty to
take in mortmain, or to have a fair, market, park, chase, or free
warren; there the queen is intitled to ten marks in silver, or (what
was formerly an equivalent denomination) to one mark in gold, by the
name of queen-gold, or _aurum reginae_[l]. But no such payment is due
for any aids or subsidies granted to the king in parliament or
convocation; nor for fines imposed by courts on offenders, against
their will; nor for voluntary presents to the king, without any
consideration moving from him to the subject; nor for any sale or
contract whereby the present revenues or possessions of the crown are
granted away or diminished[m].
[Footnote k: Pryn. _Aur. Reg._ 2.]
[Footnote l: 12 Rep. 21. 4 Inst. 358.]
[Footnote m: _Ibid._ Pryn. 6. Madox. hist. exch. 242.]
THE revenue of our antient queens, before and soon after the conquest,
seems to have consisted in certain reservations or rents out of the
demesne lands of the crown, which were expressly appropriated to her
majesty, distinct from the king. It is frequent in domesday-book,
after specifying the rent due to the crown, to add likewise the
quantity of gold or other renders reserved to the queen[n]. These were
frequently appropriated to particular purposes; to buy wool for her
majesty's use[o], to purchase oyl for her lamps[p], or to furnish her
attire from head to foot[q], which was frequently very costly, as one
single robe in the fifth year of Henry II stood the city of London in
upwards of fourscore pounds[r]. A practice somewhat similar to that of
the eastern countries, where whole cities and provinces were
specifically assigned to purchase particular parts of the queen's
apparel[s]. And, for a farther addition to her income, this duty of
queen-gold is supposed to have been originally granted; those matters
of grace and favour, out of which it arose, being frequently obtained
from the crown by the powerful intercession of the queen. There are
traces of it's payment, though obscure ones, in the book of domesday
and in the great pipe-roll of Henry the first[t]. In the reign of
Henry the second the manner of collecting it appears to have been well
understood, and it forms a distinct head in the antient dialogue of
the exchequer[u] written in the time of that prince, and usually
attributed to Gervase of Tilbury. From that time downwards it was
regularly claimed and enjoyed by all the queen consorts of England
till the death of Henry VIII; though after the accession of the Tudor
family the collecting of it seems to have been much neglected: and,
there being no queen consort afterwards till the accession of James I,
a period of near sixty years, it's very nature and quantity became
then a matter of doubt: and, being referred by the king to his then
chief justices and chief baron, their report of it was so very
unfavorable[w], that queen Anne (though she claimed it) yet never
thought proper to exact it. In 1635, 11 Car. I, a time fertile of
expedients for raising money upon dormant precedents in our old
records (of which ship-money was a fatal instance) the king, at the
petition of his queen Henrietta Maria, issued out his writ for levying
it; but afterwards purchased it of his consort at the price of ten
thousand pounds; finding it, perhaps, too trifling and troublesome to
levy. And when afterwards, at the restoration, by the abolition of the
military tenures, and the fines that were consequent upon them, the
little that legally remained of this revenue was reduced to almost
nothing at all, in vain did Mr Prynne, by a treatise which does honour
to his abilities as a painful and judicious antiquarian, endeavour to
excite queen Catherine to revive this antiquated claim.
[Footnote n: _Bedefordscire. Maner. Lestone redd. per annum xxii lib.
&c: ad opus reginae ii uncias auri.----Herefordscire. In Lene, &c,
consuetud. ut praepositus manerii veniente domina sua (regina) in
maner. praesentaret ei xviii oras denar. ut esset ipsa laeto animo._
Pryn. Append. to _Aur. Reg._ 2, 3.]
[Footnote o: _causa coadunandi lanam reginae._ Domesd. _ibid._]
[Footnote p: _Civitas Lundon. Pro oleo ad lampad. reginae._ _Mag. rot.
pip. temp. Hen. II. ibid._]
[Footnote q: _Vicecomes Berkescire, xvi l. pro cappa reginae._ (_Mag.
rot. pip. 19--22 Hen. II. ibid._) _Civitas Lund. cordubanario reginae
xx s._ _Mag. Rot. 2 Hen. II._ Madox hist. exch. 419.]
[Footnote r: _Pro roba ad opus reginae, quater xx l. & vi s. & viii
d._ _Mag. Rot. 5 Hen. II. ibid._ 250.]
[Footnote s: _Solere aiunt barbaros reges Persarum ac
Syrorum--uxoribus civitates attribuere, hoc modo; haec civitas mulieri
redimiculum praebeat, haec in collum, haec in crines, &c._ _Cic. in
Verrem._ _lib._ 3. _c._ 33.]
[Footnote t: See Madox _Disceptat. epistolar._ 74. Pryn. _Aur. Regin._
Append. 5.]
[Footnote u: _lib._ 2. _c._ 26.]
[Footnote w: Mr Prynne, with some appearance of reason, insinuates,
that their researches were very superficial. _Aur. Reg._ 125.]
ANOTHER antient perquisite belonging to the queen consort, mentioned
by all our old writers[x], and, therefore only, worthy notice, is
this: that on the taking of a whale on the coasts, which is a royal
fish, it shall be divided between the king and queen; the head only
being the king's property, and the tail of it the queen's. "_De
sturgione observetur, quod rex illum habebit integrum: de balena vero
sufficit, si rex habeat caput, et regina caudam._" The reason of this
whimsical division, as assigned by our antient records[y], was, to
furnish the queen's wardrobe with whalebone.
[Footnote x: Bracton, _l._ 3. _c._ 3. Britton, _c._ 17. Fleta, _l._ 1.
_c._ 45 & 46.]
[Footnote y: Pryn. _Aur. Reg._ 127.]
BUT farther: though the queen is in all respects a subject, yet, in
point of the security of her life and person, she is put on the same
footing with the king. It is equally treason (by the statute 25 Edw.
III.) to compass or imagine the death of our lady the king's
companion, as of the king himself: and to violate, or defile, the
queen consort, amounts to the same high crime; as well in the person
committing the fact, as in the queen herself, if consenting. A law of
Henry the eighth[z] made it treason also for any woman, who was not a
virgin, to marry the king without informing him thereof. But this law
was soon after repealed; it trespassing too strongly, as well on
natural justice, as female modesty. If however the queen be accused
of any species of treason, she shall (whether consort or dowager) be
tried by the house of peers, as queen Ann Boleyn was in 28 Hen. VIII.
[Footnote z: Stat. 33 Hen. VIII. c. 21.]
THE husband of a queen regnant, as prince George of Denmark was to
queen Anne, is her subject; and may be guilty of high treason against
her: but, in the instance of conjugal fidelity, he is not subjected to
the same penal restrictions. For which the reason seems to be, that,
if a queen consort is unfaithful to the royal bed, this may debase or
bastardize the heirs to the crown; but no such danger can be
consequent on the infidelity of the husband to a queen regnant.
A QUEEN _dowager_ is the widow of the king, and as such enjoys most of
the privileges belonging to her as queen consort. But it is not high
treason to conspire her death; or to violate her chastity, for the
same reason as was before alleged, because the succession to the crown
is not thereby endangered. Yet still, _pro dignitate regali_, no man
can marry a queen dowager without special licence from the king, on
pain of forfeiting his lands and goods. This sir Edward Coke[a] tells
us was enacted in parliament in 6 Hen. IV, though the statute be not
in print. But she, though an alien born, shall still be intitled to
dower after the king's demise, which no other alien is[b]. A queen
dowager, when married again to a subject, doth not lose her regal
dignity, as peeresses dowager do their peerage when they marry
commoners. For Katherine, queen dowager of Henry V, though she married
a private gentleman, Owen ap Meredith ap Theodore, commonly called
Owen Tudor; yet, by the name of Katherine queen of England, maintained
an action against the bishop of Carlisle. And so the queen of Navarre
marrying with Edmond, brother to king Edward the first, maintained an
action of dower by the name of queen of Navarre[c].
[Footnote a: 2 Inst. 18.]
[Footnote b: Co. Litt. 31 _b._]
[Footnote c: 2 Inst. 50.]
THE prince of Wales, or heir apparent to the crown, and also his royal
consort, and the princess royal, or eldest daughter of the king, are
likewise peculiarly regarded by the laws. For, by statute 25 Edw. III,
to compass or conspire the death of the former, or to violate the
chastity of either of the latter, are as much high treason, as to
conspire the death of the king, or violate the chastity of the queen.
And this upon the same reason, as was before given; because the prince
of Wales is next in succession to the crown, and to violate his wife
might taint the blood royal with bastardy: and the eldest daughter of
the king is also alone inheritable to the crown, in failure of issue
male, and therefore more respected by the laws than any of her younger
sisters; insomuch that upon this, united with other (feodal)
principles, while our military tenures were in force, the king might
levy an aid for marrying his eldest daughter, and her only. The heir
apparent to the crown is usually made prince of Wales and earl of
Chester, by special creation, and investiture; but, being the king's
eldest son, he is by inheritance duke of Cornwall, without any new
creation[d].
[Footnote d: 8 Rep. 1. Seld. titl. of hon. 2. 5.]
THE younger sons and daughters of the king, who are not in the
immediate line of succession, are little farther regarded by the laws,
than to give them precedence before all peers and public officers as
well ecclesiastical as temporal. This is done by the statute 31 Hen.
VIII. c. 10. which enacts that no person, except the king's children,
shall presume to sit or have place at the side of the cloth of estate
in the parliament chamber; and that certain great officers therein
named shall have precedence above all dukes, except only such as shall
happen to be the king's son, brother, uncle, nephew (which sir Edward
Coke[e] explains to signify grandson or _nepos_) or brother's or
sister's son. And in 1718, upon a question referred to all the judges
by king George I, it was resolved by the opinion of ten against the
other two, that the education and care of all the king's
grandchildren while minors, and the care and approbation of their
marriages, when grown up, did belong of right to his majesty as king
of this realm, during their father's life[f]. And this may suffice for
the notice, taken by law, of his majesty's royal family.
[Footnote e: 4 Inst. 362.]
[Footnote f: Fortesc. Al. 401-440.]
CHAPTER THE FIFTH.
OF THE COUNCILS BELONGING TO THE KING.
THE third point of view, in which we are to consider the king, is with
regard to his councils. For, in order to assist him in the discharge
of his duties, the maintenance of his dignity, and the exertion of his
prerogative, the law hath assigned him a diversity of councils to
advise with.
1. THE first of these is the high court of parliament, whereof we have
already treated at large.
2. SECONDLY, the peers of the realm are by their birth hereditary
counsellors of the crown, and may be called together by the king to
impart their advice in all matters of importance to the realm, either
in time of parliament, or, which hath been their principal use, when
there is no parliament in being[a]. Accordingly Bracton[b], speaking
of the nobility of his time, says they might properly be called
"_consules, a consulendo; reges enim tales sibi associant ad
consulendum_." And in our law books[c] it is laid down, that peers are
created for two reasons; 1. _Ad consulendum_, 2. _Ad defendendum
regem_: for which reasons the law gives them certain great and high
privileges; such as freedom from arrests, &c, even when no parliament
is sitting: because the law intends, that they are always assisting
the king with their counsel for the commonwealth; or keeping the realm
in safety by their prowess and valour.
[Footnote a: Co. Litt. 110.]
[Footnote b: _l._ 1. _c._ 8.]
[Footnote c: 7 Rep. 34. 9 Rep. 49. 12 Rep. 96.]
INSTANCES of conventions of the peers, to advise the king, have been
in former times very frequent; though now fallen into disuse, by
reason of the more regular meetings of parliament. Sir Edward Coke[d]
gives us an extract of a record, 5 Hen. IV, concerning an exchange of
lands between the king and the earl of Northumberland, wherein the
value of each was agreed to be settled by advice of parliament (if any
should be called before the feast of St Lucia) or otherwise by advice
of the grand council (of peers) which the king promises to assemble
before the said feast, in case no parliament shall be called. Many
other instances of this kind of meeting are to be found under our
antient kings: though the formal method of convoking them had been so
long left off, that when king Charles I in 1640 issued out writs under
the great seal to call a great council of all the peers of England to
meet and attend his majesty at York, previous to the meeting of the
long parliament, the earl of Clarendon[e] mentions it as a new
invention, not before heard of; that is, as he explains himself, so
old, that it had not been practiced in some hundreds of years. But,
though there had not so long before been an instance, nor has there
been any since, of assembling them in so solemn a manner, yet, in
cases of emergency, our princes have at several times thought proper
to call for and consult as many of the nobility as could easily be got
together: as was particularly the case with king James the second,
after the landing of the prince of Orange; and with the prince of
Orange himself, before he called that convention parliament, which
afterwards called him to the throne.
[Footnote d: 1 Inst. 110.]
[Footnote e: Hist. b. 2.]
BESIDES this general meeting, it is usually looked upon to be the
right of each particular peer of the realm, to demand an audience of
the king, and to lay before him, with decency and respect, such
matters as he shall judge of importance to the public weal. And
therefore, in the reign of Edward II, it was made an article of
impeachment in parliament against the two Hugh Spencers, father and
son, for which they were banished the kingdom, "that they by their
evil covin would not suffer the great men of the realm, the king's
good counsellors, to speak with the king, or to come near him; but
only in the presence and hearing of the said Hugh the father and Hugh
the son, or one of them, and at their will, and according to such
things as pleased them[f]."
[Footnote f: 4 Inst. 53.]
3. A THIRD council belonging the king, are, according to sir Edward
Coke[g], his judges of the courts of law, for law matters. And this
appears frequently in our statutes, particularly 14 Ed. III. c. 5. and
in other books of law. So that when the king's council is mentioned
generally, it must be defined, particularized, and understood,
_secundum subjectam materiam_; and, if the subject be of a legal
nature, then by the king's council is understood his council for
matters of law; namely, his judges. Therefore when by statute 16 Ric.
II. c. 5. it was made a high offence to import into this kingdom any
papal bulles, or other processes from Rome; and it was enacted, that
the offenders should be attached by their bodies, and brought before
the king and his _council_ to answer for such offence; here, by the
expression of king's _council_, were understood the king's judges of
his courts of justice, the subject matter being legal: this being the
general way of interpreting the word, _council_[h].
[Footnote g: 1 Inst. 110.]
[Footnote h: 3 Inst. 125.]
4. BUT the principal council belonging to the king is his privy
council, which is generally called, by way of eminence, _the council_.
And this, according to sir Edward Coke's description of it[i], is a
noble, honorable, and reverend assembly, of the king and such as he
wills to be of his privy council, in the king's court or palace. The
king's will is the sole constituent of a privy counsellor; and this
also regulates their number, which of antient time was twelve or
thereabouts. Afterwards it increased to so large a number, that it was
found inconvenient for secresy and dispatch; and therefore king
Charles the second in 1679 limited it to thirty: whereof fifteen were
to be the principal officers of state, and those to be counsellors,
_virtute officii_; and the other fifteen were composed of ten lords
and five commoners of the king's choosing[k]. But since that time the
number has been much augmented, and now continues indefinite. At the
same time also, the antient office of lord president of the council
was revived in the person of Anthony earl of Shaftsbury; an officer,
that by the statute of 31 Hen. VIII. c. 10. has precedence next after
the lord chancellor and lord treasurer.
[Footnote i: 4 Inst. 53.]
[Footnote k: Temple's Mem. part 3.]
PRIVY counsellors are _made_ by the king's nomination, without either
patent or grant; and, on taking the necessary oaths, they become
immediately privy counsellors during the life of the king that chooses
them, but subject to removal at his discretion.
THE _duty_ of a privy counsellor appears from the oath of office[l],
which consists of seven articles: 1. To advise the king according to
the best of his cunning and discretion. 2. To advise for the king's
honour and good of the public, without partiality through affection,
love, meed, doubt, or dread. 3. To keep the king's counsel secret. 4.
To avoid corruption. 5. To help and strengthen the execution of what
shall be there resolved. 6. To withstand all persons who would attempt
the contrary. And, lastly, in general, 7. To observe, keep, and do all
that a good and true counsellor ought to do to his sovereign lord.
[Footnote l: 4 Inst. 54.]
THE _power_ of the privy council is to enquire into all offences
against the government, and to commit the offenders into custody, in
order to take their trial in some of the courts of law. But their
jurisdiction is only to enquire, and not to punish: and the persons
committed by them are entitled to their _habeas corpus_ by statute 16
Car. I. c. 10. as much as if committed by an ordinary justice of the
peace. And, by the same statute, the court of starchamber, and the
court of requests, both of which consisted of privy counsellors, were
dissolved; and it was declared illegal for them to take cognizance of
any matter of property, belonging to the subjects of this kingdom.
But, in plantation or admiralty causes, which arise out of the
jurisdiction of this kingdom, and in matters of lunacy and ideocy
(being a special flower of the prerogative) with regard to these,
although they may eventually involve questions of extensive property,
the privy council continues to have cognizance, being the court of
appeal in such causes: or, rather, the appeal lies to the king's
majesty himself, assisted by his privy council.
AS to the _qualifications_ of members to sit this board: any natural
born subject of England is capable of being a member of the privy
council; taking the proper oaths for security of the government, and
the test for security of the church. But, in order to prevent any
persons under foreign attachments from insinuating themselves into
this important trust, as happened in the reign of king William in many
instances, it is enacted by the act of settlement[m], that no person
born out of the dominions of the crown of England, unless born of
English parents, even though naturalized by parliament, shall be
capable of being of the privy council.
[Footnote m: Stat. 12. & 13 W. III. c. 2.]
THE _privileges_ of privy counsellors, as such, consist principally in
the security which the law has given them against attempts and
conspiracies to destroy their lives. For, by statute 3 Hen. VII. c.
14. if any of the king's servants of his houshold, conspire or imagine
to take away the life of a privy counsellor, it is felony, though
nothing be done upon it. And the reason of making this statute, sir
Edward Coke[n] tells us, was because such servants have greater and
readier means, either by night or by day, to destroy such as be of
great authority, and near about the king: and such a conspiracy was,
just before this parliament, made by some of king Henry the seventh's
houshold servants, and great mischief was like to have ensued
thereupon. This extends only to the king's menial servants. But the
statute 9 Ann. c. 16. goes farther, and enacts, that _any persons_
that shall unlawfully attempt to kill, or shall unlawfully assault,
and strike, or wound, any privy counsellor in the execution of his
office, shall be felons, and suffer death as such. This statute was
made upon the daring attempt of the sieur Guiscard, who stabbed Mr
Harley, afterwards earl of Oxford, with a penknife, when under
examination for high crimes in a committee of the privy council.
[Footnote n: 3 Inst. 38.]
THE _dissolution_ of the privy council depends upon the king's
pleasure; and he may, whenever he thinks proper, discharge any
particular member, or the whole of it, and appoint another. By the
common law also it was dissolved _ipso facto_ by the king's demise; as
deriving all it's authority from him. But now, to prevent the
inconveniences of having no council in being at the accession of a new
prince, it is enacted by statute 6 Ann. c. 7. that the privy council
shall continue for six months after the demise of the crown, unless
sooner determined by the successor.
CHAPTER THE SIXTH.
OF THE KING'S DUTIES.
I PROCEED next to the duties, incumbent on the king by our
constitution; in consideration of which duties his dignity and
prerogative are established by the laws of the land: it being a maxim
in the law, that protection and subjection are reciprocal[a]. And
these reciprocal duties are what, I apprehend, were meant by the
convention in 1688, when they declared that king James had broken the
_original contract_ between king and people. But however, as the terms
of that original contract were in some measure disputed, being alleged
to exist principally in theory, and to be only deducible by reason and
the rules of natural law; in which deduction different understandings
might very considerably differ; it was, after the revolution, judged
proper to declare these duties expressly; and to reduce that contract
to a plain certainty. So that, whatever doubts might be formerly
raised by weak and scrupulous minds about the existence of such an
original contract, they must now entirely cease; especially with
regard to every prince, who has reigned since the year 1688.
[Footnote a: 7 Rep. 5.]
THE principal duty of the king is, to govern his people according to
law. _Nec regibus infinita aut libera potestas_, was the constitution
of our German ancestors on the continent[b]. And this is not only
consonant to the principles of nature, of liberty, of reason, and of
society, but has always been esteemed an express part of the common
law of England, even when prerogative was at the highest. "The king,"
saith Bracton[c], who wrote under Henry III, "ought not to be subject
to man, but to God, and to the law; for the law maketh the king. Let
the king therefore render to the law, what the law has invested in him
with regard to others; dominion, and power: for he is not truly king,
where will and pleasure rules, and not the law." And again[d]; "the
king also hath a superior, namely God, and also the law, by which he
was made a king." Thus Bracton: and Fortescue also[e], having first
well distinguished between a monarchy absolutely and despotically
regal, which is introduced by conquest and violence, and a political
or civil monarchy, which arises from mutual consent; (of which last
species he asserts the government of England to be) immediately lays
it down as a principle, that "the king of England must rule his people
according to the decrees of the laws thereof: insomuch that he is
bound by an oath at his coronation to the observance and keeping of
his own laws." But, to obviate all doubts and difficulties concerning
this matter, it is expressly declared by statute 12 & 13 W. III. c. 2.
that "the laws of England are the birthright of the people thereof;
and all the kings and queens who shall ascend the throne of this realm
ought to administer the government of the same according to the said
laws; and all their officers and ministers ought to serve them
respectively according to the same: and therefore all the laws and
statutes of this realm, for securing the established religion, and the
rights and liberties of the people thereof, and all other laws and
statutes of the same now in force, are by his majesty, by and with the
advice and consent of the lords spiritual and temporal and commons,
and by authority of the same, ratified and confirmed accordingly."
[Footnote b: _Tac. de M.G._ _c._ 7.]
[Footnote c: _l._ 1. _c._ 8.]
[Footnote d: _l._ 2. _c._ 16. §. 3.]
[Footnote e: _c._ 9. & 34.]
AND, as to the terms of the original contract between king and people,
these I apprehend to be now couched in the coronation oath, which by
the statute 1 W. & M. st. 1. c. 6. is to be administred to every king
and queen, who shall succeed to the imperial crown of these realms, by
one of the archbishops or bishops of the realm, in the presence of all
the people; who on their parts do reciprocally take the oath of
allegiance to the crown. This coronation oath is conceived in the
following terms:
"_The archbishop or bishop shall say_, Will you solemnly promise and
swear to govern the people of this kingdom of England, and the
dominions thereto belonging, according to the statutes in parliament
agreed on, and the laws and customs of the same?--_The king or queen
shall say_, I solemnly promise so to do.
"_Archbishop or bishop._ Will you to your power cause law and justice,
in mercy, to be executed in all your judgments?--_King or queen._ I
will.
"_Archbishop or bishop._ Will you to the utmost of your power maintain
the laws of God, the true profession of the gospel, and the protestant
reformed religion established by the law? And will you preserve unto
the bishops and clergy of this realm, and to the churches committed to
their charge, all such rights and privileges as by law do or shall
appertain unto them, or any of them?--_King or queen._ All this I
promise to do.
"_After this the king or queen, laying his or her hand upon the holy
gospels, shall say_, The things which I have here before promised I
will perform and keep: so help me God. _And then shall kiss the
book._"
THIS is the form of the coronation oath, as it is now prescribed by
our laws: the principal articles of which appear to be at least as
antient as the mirror of justices[f], and even as the time of
Bracton[g]: but the wording of it was changed at the revolution,
because (as the statute alleges) the oath itself had been framed in
doubtful words and expressions, with relation to antient laws and
constitutions at this time unknown[h]. However, in what form soever it
be conceived, this is most indisputably a fundamental and original
express contract; though doubtless the duty of protection is impliedly
as much incumbent on the sovereign before coronation as after: in the
same manner as allegiance to the king becomes the duty of the subject
immediately on the descent of the crown, before he has taken the oath
of allegiance, or whether he ever takes it at all. This reciprocal
duty of the subject will be considered in it's proper place. At
present we are only to observe, that in the king's part of this
original contract are expressed all the duties that a monarch can owe
to his people; viz. to govern according to law: to execute judgment in
mercy: and to maintain the established religion.
[Footnote f: _cap._ 1. §. 2.]
[Footnote g: _l._ 3. _tr._ 1. _c._ 9.]
[Footnote h: In the old folio abridgment of the statutes, printed by
Lettou and Machlinia in the reign of Edward IV, (_penes me_) there is
preserved a copy of the old coronation oath; which, as the book is
extremely scarce, I will here transcribe. _Ceo est le serement que le
roy jurre a soun coronement: que il gardera et meintenera lez droitez
et lez franchisez de seynt esglise grauntez auncienment dez droitez
roys christiens dEngletere, et quil gardera toutez sez terrez honoures
et dignitees droiturelx et franks del coron du roialme dEngletere en
tout maner dentierte sanz null maner damenusement, et lez droitez
dispergez dilapidez ou perduz de la corone a soun poiair reappeller en
launcien estate, et quil gardera le peas de seynt esglise et al
clergie et al people de bon accorde, et quil face faire en toutez sez
jugementez owel et droit justice oue discrecion et misericorde, et
quil grauntera a tenure lez leyes et custumez du roialme, et a soun
poiair lez face garder et affermer que lez gentez du people avont
faitez et esliez, et les malveys leyz et custumes de tout oustera, et
ferme peas et establie al people de soun roialme en ceo garde
esgardera a soun poiair: come Dieu luy aide._ _Tit. sacramentum regis.
fol. m. ij._]
CHAPTER THE SEVENTH.
OF THE KING'S PREROGATIVE.
IT was observed in a former chapter[a], that one of the principal
bulwarks of civil liberty, or (in other words) of the British
constitution, was the limitation of the king's prerogative by bounds
so certain and notorious, that it is impossible he should ever exceed
them, without the consent of the people, on the one hand; or without,
on the other, a violation of that original contract, which in all
states impliedly, and in ours most expressly, subsists between the
prince and the subject. It will now be our business to consider this
prerogative minutely; to demonstrate it's necessity in general; and to
mark out in the most important instances it's particular extent and
restrictions: from which considerations this conclusion will evidently
follow, that the powers which are vested in the crown by the laws of
England, are necessary for the support of society; and do not intrench
any farther on our _natural_ liberties, than is expedient for the
maintenance of our _civil_.
[Footnote a: chap. 1. page 137.]
THERE cannot be a stronger proof of that genuine freedom, which is the
boast of this age and country, than the power of discussing and
examining, with decency and respect, the limits of the king's
prerogative. A topic, that in some former ages was thought too
delicate and sacred to be profaned by the pen of a subject. It was
ranked among the _arcana imperii_; and, like the mysteries of the
_bona dea_, was not suffered to be pried into by any but such as were
initiated in it's service: because perhaps the exertion of the one,
like the solemnities of the other, would not bear the inspexion of a
rational and sober enquiry. The glorious queen Elizabeth herself made
no scruple to direct her parliaments to abstain from discoursing of
matters of state[b]; and it was the constant language of this favorite
princess and her ministers, that even that august assembly "ought not
to deal, to judge, or to meddle, with her majesty's prerogative
royal[c]." And her successor, king James the first, who had imbibed
high notions of the divinity of regal sway, more than once laid it
down in his speeches, that "as it is atheism and blasphemy in a
creature to dispute what the deity may do, so it is presumption and
sedition in a subject to dispute what a king may do in the height of
his power: good christians, he adds, will be content with God's will,
revealed in his word; and good subjects will rest in the king's will,
revealed in _his_ law[d]."
[Footnote b: Dewes. 479.]
[Footnote c: _Ibid._ 645.]
[Footnote d: King James's works. 557, 531.]
BUT, whatever might be the sentiments of some of our princes, this was
never the language of our antient constitution and laws. The
limitation of the regal authority was a first and essential principle
in all the Gothic systems of government established in Europe; though
gradually driven out and overborne, by violence and chicane, in most
of the kingdoms on the continent. We have seen, in the preceding
chapter, the sentiments of Bracton and Fortescue, at the distance of
two centuries from each other. And sir Henry Finch, under Charles the
first, after the lapse of two centuries more, though he lays down the
law of prerogative in very strong and emphatical terms, yet qualifies
it with a general restriction, in regard to the liberties of the
people. "The king hath a prerogative in all things, that are not
injurious to the subject; for in them all it must be remembered, that
the king's prerogative stretcheth not to the doing of any wrong[e]."
_Nihil enim aliud potest rex, nisi id solum quod de jure potest_[f].
And here it may be some satisfaction to remark, how widely the civil
law differs from our own, with regard to the authority of the laws
over the prince, or (as a civilian would rather have expressed it) the
authority of the prince over the laws. It is a maxim of the English
law, as we have seen from Bracton, that "_rex debet esse sub lege,
quia lex facit regem_:" the imperial law will tell us, that "_in
omnibus, imperatoris excipitur fortuna; cui ipsas leges Deus
subjecit_[g]." We shall not long hesitate to which of them to give the
preference, as most conducive to those ends for which societies were
framed, and are kept together; especially as the Roman lawyers
themselves seem to be sensible of the unreasonableness of their own
constitution. "_Decet tamen principem_," says Paulus, "_servare leges,
quibus ipse solutus est_[h]." This is at once laying down the
principle of despotic power, and at the same time acknowleging it's
absurdity.
[Footnote e: Finch. L. 84, 85.]
[Footnote f: Bract. _l._ 3. _tr._ 1. _c._ 9.]
[Footnote g: _Nov._ 105. §. 2.]
[Footnote h: _Ff._ 32. 1. 23.]
BY the word prerogative we usually understand that special
pre-eminence, which the king hath, over and above all other persons,
and out of the ordinary course of the common law, in right of his
regal dignity. It signifies, in it's etymology, (from _prae_ and
_rogo_) something that is required or demanded before, or in
preference to, all others. And hence it follows, that it must be in
it's nature singular and eccentrical; that it can only be applied to
those rights and capacities which the king enjoys alone, in
contradistinction to others, and not to those which he enjoys in
common with any of his subjects: for if once any one prerogative of
the crown could be held in common with the subject, it would cease to
be prerogative any longer. And therefore Finch[i] lays it down as a
maxim, that the prerogative is that law in case of the king, which is
law in no case of the subject.
[Footnote i: Finch. L. 85.]
PREROGATIVES are either _direct_ or _incidental_. The _direct_ are
such positive substantial parts of the royal character and authority,
as are rooted in and spring from the king's political person,
considered merely by itself, without reference to any other extrinsic
circumstance; as, the right of sending embassadors, of creating peers,
and of making war or peace. But such prerogatives as are _incidental_
bear always a relation to something else, distinct from the king's
person; and are indeed only exceptions, in favour of the crown, to
those general rules that are established for the rest of the
community: such as, that no costs shall be recovered against the king;
that the king can never be a joint-tenant; and that his debt shall be
preferred before a debt to any of his subjects. These, and an infinite
number of other instances, will better be understood, when we come
regularly to consider the rules themselves, to which these incidental
prerogatives are exceptions. And therefore we will at present only
dwell upon the king's substantive or direct prerogatives.
THESE substantive or direct prerogatives may again be divided into
three kinds: being such as regard, first, the king's royal
_character_; secondly, his royal _authority_; and, lastly, his royal
_income_. These are necessary, to secure reverence to his person,
obedience to his commands, and an affluent supply for the ordinary
expenses of government; without all of which it is impossible to
maintain the executive power in due independence and vigour. Yet, in
every branch of this large and extensive dominion, our free
constitution has interposed such seasonable checks and restrictions,
as may curb it from trampling on those liberties, which it was meant
to secure and establish. The enormous weight of prerogative (if left
to itself, as in arbitrary government it is) spreads havoc and
destruction among all the inferior movements: but, when balanced and
bridled (as with us) by it's proper counterpoise, timely and
judiciously applied, it's operations are then equable and regular, it
invigorates the whole machine, and enables every part to answer the
end of it's construction.
IN the present chapter we shall only consider the two first of these
divisions, which relate to the king's political _character_ and
_authority_; or, in other words, his _dignity_ and regal _power_; to
which last the name of prerogative is frequently narrowed and
confined. The other division, which forms the royal _revenue_, will
require a distinct examination; according to the known distribution of
the feodal writers, who distinguish the royal prerogatives into the
_majora_ and _minora regalia_, in the latter of which classes the
rights of the revenue are ranked. For, to use their own words,
"_majora regalia imperii praeeminentiam spectant; minora vero ad
commodum pecuniarium immediate attinent; et haec proprie fiscalia
sunt, et ad jus fisci pertinent_[k]."
[Footnote k: _Peregrin. de jure fisc._ _l._ 1. _c._ i. _num._ 9.]
FIRST, then, of the royal dignity. Under every monarchical
establishment, it is necessary to distinguish the prince from his
subjects, not only by the outward pomp and decorations of majesty, but
also by ascribing to him certain qualities, as inherent in his royal
capacity, distinct from and superior to those of any other individual
in the nation. For, though a philosophical mind will consider the
royal person merely as one man appointed by mutual consent to preside
over many others, and will pay him that reverence and duty which the
principles of society demand, yet the mass of mankind will be apt to
grow insolent and refractory, if taught to consider their prince as a
man of no greater perfection than themselves. The law therefore
ascribes to the king, in his high political character, not only large
powers and emoluments which form his prerogative and revenue, but
likewise certain attributes of a great and transcendent nature; by
which the people are led to consider him in the light of a superior
being, and to pay him that awful respect, which may enable him with
greater ease to carry on the business of government. This is what I
understand by the royal dignity, the several branches of which we will
now proceed to examine.
I. AND, first, the law ascribes to the king the attribute of
_sovereignty_, or pre-eminence. "_Rex est vicarius_," says Bracton[l],
"_et minister Dei in terra: omnis quidem sub eo est, et ipse sub
nullo, nisi tantum sub Deo._" He is said to have _imperial_ dignity,
and in charters before the conquest is frequently stiled _basileus_
and _imperator_, the titles respectively assumed by the emperors of
the east and west[m]. His realm is declared to be an _empire_, and his
crown imperial, by many acts of parliament, particularly the statutes
24 Hen. VIII. c. 12. and 25 Hen. VIII. c. 28; which at the same time
declare the king to be the supreme head of the realm in matters both
civil and ecclesiastical, and of consequence inferior to no man upon
earth, dependent on no man, accountable to no man. Formerly there
prevailed a ridiculous notion, propagated by the German and Italian
civilians, that an emperor could do many things which a king could
not, (as the creation of notaries and the like) and that all kings
were in some degree subordinate and subject to the emperor of Germany
or Rome. The meaning therefore of the legislature, when it uses these
terms of _empire_ and _imperial_, and applies them to the realm of
England, is only to assert that our king is equally sovereign and
independent within these his dominions, as any emperor is in his
empire; and owes no kind of subjection to any other potentate upon
earth. Hence it is, that no suit or action can be brought against the
king, even in civil matters, because no court can have jurisdiction
over him. For all jurisdiction implies superiority of power: authority
to try would be vain and idle, without an authority to redress; and
the sentence of a court would be contemptible, unless that court had
power to command the execution of it: but who, says Finch[n], shall
command the king? Hence it is likewise, that by law the person of the
king is sacred, even though the measures pursued in his reign be
completely tyrannical and arbitrary: for no jurisdiction upon earth
has power to try him in a criminal way; much less to condemn him to
punishment. If any foreign jurisdiction had this power, as was
formerly claimed by the pope, the independence of the kingdom would be
no more: and, if such a power were vested in any domestic tribunal,
there would soon be an end of the constitution, by destroying the free
agency of one of the constituent parts of the sovereign legislative
power.
[Footnote l: _l._ 1. _c._ 8.]
[Footnote m: Seld. tit. of hon. 1. 2.]
[Footnote n: Finch. L. 83.]
ARE then, it may be asked, the subjects of England totally destitute
of remedy, in case the crown should invade their rights, either by
private injuries, or public oppressions? To this we may answer, that
the law has provided a remedy in both cases.
AND, first, as to private injuries; if any person has, in point of
property, a just demand upon the king, he must petition him in his
court of chancery, where his chancellor will administer right as a
matter of grace, though not upon compulsion[o]. And this is entirely
consonant to what is laid down by the writers on natural law. "A
subject, says Puffendorf[p], so long as he continues a subject, hath
no way to _oblige_ his prince to give him his due, when he refuses it;
though no wise prince will ever refuse to stand to a lawful contract.
And, if the prince gives the subject leave to enter an action against
him, upon such contract, in his own courts, the action itself proceeds
rather upon natural equity, than upon the municipal laws." For the end
of such action is not to _compel_ the prince to observe the contract,
but to _persuade_ him. And, as to personal wrongs; it is well observed
by Mr Locke[q], "the harm which the sovereign can do in his own person
not being likely to happen often, nor to extend itself far; nor being
able by his single strength to subvert the laws, nor oppress the body
of the people, (should any prince have so much weakness and ill nature
as to endeavour to do it)--the inconveniency therefore of some
particular mischiefs, that may happen sometimes, when a heady prince
comes to the throne, are well recompensed by the peace of the public
and security of the government, in the person of the chief magistrate
being thus set out of the reach of danger."
[Footnote o: Finch. L. 255.]
[Footnote p: Law of N. and N. l. 8. c. 10.]
[Footnote q: on Gov. p. 2. §. 205.]
NEXT, as to cases of ordinary public oppression, where the vitals of
the constitution are not attacked, the law hath also assigned a
remedy. For, as a king cannot misuse his power, without the advice of
evil counsellors, and the assistance of wicked ministers, these men
may be examined and punished. The constitution has therefore provided,
by means of indictments, and parliamentary impeachments, that no man
shall dare to assist the crown in contradiction to the laws of the
land. But it is at the same time a maxim in those laws, that the king
himself can do no wrong; since it would be a great weakness and
absurdity in any system of positive law, to define any possible wrong,
without any possible redress.
FOR, as to such public oppressions as tend to dissolve the
constitution, and subvert the fundamentals of government, they are
cases which the law will not, out of decency, suppose; being incapable
of distrusting those, whom it has invested with any part of the
supreme power; since such distrust would render the exercise of that
power precarious and impracticable. For, whereever [Transcriber's
Note: wherever] the law expresses it's distrust of abuse of power, it
always vests a superior coercive authority in some other hand to
correct it; the very notion of which destroys the idea of sovereignty.
If therefore (for example) the two houses of parliament, or either of
them, had avowedly a right to animadvert on the king, or each other,
or if the king had a right to animadvert on either of the houses, that
branch of the legislature, so subject to animadversion, would
instantly cease to be part of the supreme power; the ballance of the
constitution would be overturned; and that branch or branches, in
which this jurisdiction resided, would be completely sovereign. The
supposition of _law_ therefore is, that neither the king nor either
house of parliament (collectively taken) is capable of doing any
wrong; since in such cases the law feels itself incapable of
furnishing any adequate remedy. For which reason all oppressions,
which may happen to spring from any branch of the sovereign power,
must necessarily be out of the reach of any _stated rule_, or
_express legal_ provision: but, if ever they unfortunately happen, the
prudence of the times must provide new remedies upon new emergencies.
INDEED, it is found by experience, that whenever the unconstitutional
oppressions, even of the sovereign power, advance with gigantic
strides and threaten desolation to a state, mankind will not be
reasoned out of the feelings of humanity; nor will sacrifice their
liberty by a scrupulous adherence to those political maxims, which
were originally established to preserve it. And therefore, though the
positive laws are silent, experience will furnish us with a very
remarkable case, wherein nature and reason prevailed. When king James
the second invaded the fundamental constitution of the realm, the
convention declared an abdication, whereby the throne was rendered
vacant, which induced a new settlement of the crown. And so far as
this precedent leads, and no farther, we may now be allowed to lay
down the _law_ of redress against public oppression. If therefore any
future prince should endeavour to subvert the constitution by breaking
the original contract between king and people, should violate the
fundamental laws, and should withdraw himself out of the kingdom; we
are now authorized to declare that this conjunction of circumstances
would amount to an abdication, and the throne would be thereby vacant.
But it is not for us to say, that any one, or two, of these
ingredients would amount to such a situation; for there our precedent
would fail us. In these therefore, or other circumstances, which a
fertile imagination may furnish, since both law and history are
silent, it becomes us to be silent too; leaving to future generations,
whenever necessity and the safety of the whole shall require it, the
exertion of those inherent (though latent) powers of society, which no
climate, no time, no constitution, no contract, can ever destroy or
diminish.
II. BESIDES the attribute of sovereignty, the law also ascribes to the
king, in his political capacity, absolute _perfection_. The king can
do no wrong. Which antient and fundamental maxim is not to be
understood, as if every thing transacted by the government was of
course just and lawful, but means only two things. First, that
whatever is exceptionable in the conduct of public affairs is not to
be imputed to the king, nor is he answerable for it personally to his
people: for this doctrine would totally destroy that constitutional
independence of the crown, which is necessary for the balance of
power, in our free and active, and therefore compounded, constitution.
And, secondly, it means that the prerogative of the crown extends not
to do any injury: it is created for the benefit of the people, and
therefore cannot be exerted to their prejudice[r].
[Footnote r: Plowd. 487.]
THE king, moreover, is not only incapable of _doing_ wrong, but even
of _thinking_ wrong: he can never mean to do an improper thing: in him
is no folly or weakness. And therefore, if the crown should be induced
to grant any franchise or privilege to a subject contrary to reason,
or in any wise prejudicial to the commonwealth, or a private person,
the law will not suppose the king to have meant either an unwise or an
injurious action, but declares that the king was deceived in his
grant; and thereupon such grant is rendered void, merely upon the
foundation of fraud and deception, either by or upon those agents,
whom the crown has thought proper to employ. For the law will not cast
an imputation on that magistrate whom it entrusts with the executive
power, as if he was capable of intentionally disregarding his trust:
but attributes to mere imposition (to which the most perfect of
sublunary beings must still continue liable) those little
inadvertencies, which, if charged on the will of the prince, might
lessen him in the eyes of his subjects.
YET still, notwithstanding this personal perfection, which the law
attributes to the sovereign, the constitution has allowed a latitude
of supposing the contrary, in respect to both houses of parliament;
each of which, in it's turn, hath exerted the right of remonstrating
and complaining to the king even of those acts of royalty, which are
most properly and personally his own; such as messages signed by
himself, and speeches delivered from the throne. And yet, such is the
reverence which is paid to the royal person, that though the two
houses have an undoubted right to consider these acts of state in any
light whatever, and accordingly treat them in their addresses as
personally proceeding from the prince, yet, among themselves, (to
preserve the more perfect decency, and for the greater freedom of
debate) they usually suppose them to flow from the advice of the
administration. But the privilege of canvassing thus freely the
personal acts of the sovereign (either directly, or even through the
medium of his reputed advisers) belongs to no individual, but is
confined to those august assemblies: and there too the objections must
be proposed with the utmost respect and deference. One member was sent
to the tower[s], for suggesting that his majesty's answer to the
address of the commons contained "high words, to fright the members
out of their duty;" and another[t], for saying that a part of the
king's speech "seemed rather to be calculated for the meridian of
Germany than Great Britain."
[Footnote s: Com. Journ. 18 Nov. 1685.]
[Footnote t: Com. Journ. 4 Dec. 1717.]
IN farther pursuance of this principle, the law also determines that
in the king can be no negligence, or _laches_, and therefore no delay
will bar his right. _Nullum tempus occurrit regi_ is the standing
maxim upon all occasions: for the law intends that the king is always
busied for the public good, and therefore has not leisure to assert
his right within the times limited to subjects[u]. In the king also
can be no stain or corruption of blood: for if the heir to the crown
were attainted of treason or felony, and afterwards the crown should
descend to him, this would purge the attainder _ipso facto_[w]. And
therefore when Henry VII, who as earl of Richmond stood attainted,
came to the crown, it was not thought necessary to pass an act of
parliament to reverse this attainder; because, as lord Bacon in his
history of that prince informs us, it was agreed that the assumption
of the crown had at once purged all attainders. Neither can the king
in judgment of law, as king, ever be a minor or under age; and
therefore his royal grants and assents to acts of parliament are good,
though he has not in his natural capacity attained the legal age of
twenty one[x]. By a statute indeed, 28 Hen. VIII. c. 17. power was
given to future kings to rescind and revoke all acts of parliament
that should be made while they were under the age of twenty four: but
this was repealed by the statute 1 Edw. VI. c. 11. so far as related
to that prince; and both statutes are declared to be determined by 24
Geo. II. c. 24. It hath also been usually thought prudent, when the
heir apparent has been very young, to appoint a protector, guardian,
or regent, for a limited time: but the very necessity of such
extraordinary provision is sufficient to demonstrate the truth of that
maxim of the common law, that in the king is no minority; and
therefore he hath no legal guardian[y].
[Footnote u: Finch. L. 82. Co. Litt. 90 _b._]
[Footnote w: Finch. L. 82.]
[Footnote x: Co. Litt. 43.]
[Footnote y: The methods of appointing this guardian or regent have
been so various, and the duration of his power so uncertain, that from
thence alone it may be collected that his office is unknown to the
common law; and therefore (as sir Edward Coke says, 4 Inst. 58.) the
surest way is to have him made by authority of the great council in
parliament. The earl of Pembroke by his own authority assumed, in very
troublesome times, the regency of Henry III, who was then only nine
years old; but was declared of full age by the pope at seventeen,
confirmed the great charter at eighteen, and took upon him the
administration of the government at twenty. A guardian and council of
regency were named for Edward III, by the parliament which deposed his
father; the young king being then fifteen, and not assuming the
government till three years after. When Richard II succeeded at the
age of eleven, the duke of Lancaster took upon him the management of
the kingdom, till the parliament met, which appointed a nominal
council to assist him. Henry V on his death-bed named a regent and a
guardian for his infant son Henry VI, then nine months old: but the
parliament altered his disposition, and appointed a protector and
council, with a special limited authority. Both these princes remained
in a state of pupillage till the age of twenty three. Edward V, at the
age of thirteen, was recommended by his father to the care of the duke
of Glocester; who was declared protector by the privy council. The
statutes 25 Hen. VIII. c. 12. and 28 Hen. VIII. c. 7. provided, that
the successor, if a male and under eighteen, or if a female and under
sixteen, should be till such age in the governance of his or her
natural mother, (if approved by the king) and such other counsellors
as his majesty should by will or otherwise appoint: and he accordingly
appointed his sixteen executors to have the government of his son,
Edward VI, and the kingdom; which executors elected the earl of
Hertford protector. The statute 24 Geo. II. c. 24. in case the crown
should descend to any of the children of Frederick late prince of
Wales under the age of eighteen, appoints the princess dowager;--and
that of 5 Geo. III. c. 27. in case of a like descent to any of his
present majesty's children, empowers the king to name either the
queen, the princess dowager, or any descendant of king George II
residing in this kingdom;--to be guardian and regent, till the
successor attains such age, assisted by a council of regency: the
powers of them all being expressly defined and set down in the several
acts.]
III. A THIRD attribute of the king's majesty is his _perpetuity_. The
law ascribes to him, in his political capacity, an absolute
immortality. The king never dies. Henry, Edward, or George may die;
but the king survives them all. For immediately upon the decease of
the reigning prince in his natural capacity, his kingship or imperial
dignity, by act of law, without any _interregnum_ or interval, is
vested at once in his heir; who is, _eo instanti_, king to all intents
and purposes. And so tender is the law of supposing even a possibility
of his death, that his natural dissolution is generally called his
_demise_; _dimissio regis, vel coronae_: an expression which signifies
merely a transfer of property; for, as is observed in Plowden[z], when
we say the demise of the crown, we mean only that in consequence of
the disunion of the king's body natural from his body politic, the
kingdom is transferred or demised to his successor; and so the royal
dignity remains perpetual. Thus too, when Edward the fourth, in the
tenth year of his reign, was driven from his throne for a few months
by the house of Lancaster, this temporary transfer of his dignity was
denominated his _demise_; and all process was held to be discontinued,
as upon a natural death of the king[a].
[Footnote z: Plowd. 177. 234.]
[Footnote a: M. 49 Hen. VI. pl. 1-8.]
WE are next to consider those branches of the royal prerogative, which
invest this our sovereign lord, thus all-perfect and immortal in his
kingly capacity, with a number of authorities and powers; in the
exertion whereof consists the executive part of government. This is
wisely placed in a single hand by the British constitution, for the
sake of unanimity, strength and dispatch. Were it placed in many
hands, it would be subject to many wills: many wills, if disunited and
drawing different ways, create weakness in a government: and to unite
those several wills, and reduce them to one, is a work of more time
and delay than the exigencies of state will afford. The king of
England is therefore not only the chief, but properly the sole,
magistrate of the nation; all others acting by commission from, and in
due subordination to him: in like manner as, upon the great revolution
in the Roman state, all the powers of the antient magistracy of the
commonwealth were concentred in the new emperor; so that, as
Gravina[b] expresses it, "_in ejus unius persona veteris reipublicae
vis atque majestas per cumulatas magistratuum potestates
exprimebatur_."
[Footnote b: _Orig._ 1. §. 105.]
AFTER what has been premised in this chapter, I shall not (I trust) be
considered as an advocate for arbitrary power, when I lay it down as a
principle, that in the exertion of lawful prerogative, the king is and
ought to be absolute; that is, so far absolute, that there is no legal
authority that can either delay or resist him. He may reject what
bills, may make what treaties, may coin what money, may create what
peers, may pardon what offences he pleases: unless where the
constitution hath expressly, or by evident consequence, laid down some
exception or boundary; declaring, that thus far the prerogative shall
go and no farther. For otherwise the power of the crown would indeed
be but a name and a shadow, insufficient for the ends of government,
if, where it's jurisdiction is clearly established and allowed, any
man or body of men were permitted to disobey it, in the ordinary
course of law: I say, in the _ordinary_ course of law; for I do not
now speak of those _extraordinary_ recourses to first principles,
which are necessary when the contracts of society are in danger of
dissolution, and the law proves too weak a defence against the
violence of fraud or oppression. And yet the want of attending to this
obvious distinction has occasioned these doctrines, of absolute power
in the prince and of national resistance by the people, to be much
misunderstood and perverted by the advocates for slavery on the one
hand, and the demagogues of faction on the other. The former,
observing the absolute sovereignty and transcendent dominion of the
crown laid down (as it certainly is) most strongly and emphatically
in our lawbooks, as well as our homilies, have denied that any case
can be excepted from so general and positive a rule; forgetting how
impossible it is, in any practical system of laws, to point out
beforehand those eccentrical remedies, which the sudden emergence of
national distress may dictate, and which that alone can justify. On
the other hand, over-zealous republicans, feeling the absurdity of
unlimited passive obedience, have fancifully (or sometimes factiously)
gone over to the other extreme: and, because resistance is justifiable
to the person of the prince when the being of the state is endangered,
and the public voice proclaims such resistance necessary, they have
therefore allowed to every individual the right of determining this
expedience, and of employing private force to resist even private
oppression. A doctrine productive of anarchy, and (in consequence)
equally fatal to civil liberty as tyranny itself. For civil liberty,
rightly understood, consists in protecting the rights of individuals
by the united force of society: society cannot be maintained, and of
course can exert no protection, without obedience to some sovereign
power: and obedience is an empty name, if every individual has a right
to decide how far he himself shall obey.
IN the exertion therefore of those prerogatives, which the law has
given him, the king is irresistible and absolute, according to the
forms of the constitution. And yet, if the consequence of that
exertion be manifestly to the grievance or dishonour of the kingdom,
the parliament will call his advisers to a just and severe account.
For prerogative consisting (as Mr Locke[c] has well defined it) in the
discretionary power of acting for the public good, where the positive
laws are silent, if that discretionary power be abused to the public
detriment, such prerogative is exerted in an unconstitutional manner.
Thus the king may make a treaty with a foreign state, which shall
irrevocably bind the nation; and yet, when such treaties have been
judged pernicious, impeachments have pursued those ministers, by whose
agency or advice they were concluded.
[Footnote c: on Gov. 2. §. 166.]
THE prerogatives of the crown (in the sense under which we are now
considering them) respect either this nation's intercourse with
foreign nations, or it's own domestic government and civil polity.
WITH regard to foreign concerns, the king is the delegate or
representative of his people. It is impossible that the individuals of
a state, in their collective capacity, can transact the affairs of
that state with another community equally numerous as themselves.
Unanimity must be wanting to their measures, and strength to the
execution of their counsels. In the king therefore, as in a center,
all the rays of his people are united, and form by that union a
consistency, splendor, and power, that make him feared and respected
by foreign potentates; who would scruple to enter into any
engagements, that must afterwards be revised and ratified by a popular
assembly. What is done by the royal authority, with regard to foreign
powers, is the act of the whole nation: what is done without the
king's concurrence is the act only of private men. And so far is this
point carried by our law, that it hath been held[d], that should all
the subjects of England make war with a king in league with the king
of England, without the royal assent, such war is no breach of the
league. And, by the statute 2 Hen. V. c. 6. any subject committing
acts of hostility upon any nation in league with the king, was
declared to be guilty of high treason: and, though that act was
repealed by the statute 20 Hen. VI. c. 11. so far as relates to the
making this offence high treason, yet still it remains a very great
offence against the law of nations, and punishable by our laws, either
capitally or otherwise, according to the circumstances of the case.
[Footnote d: 4 Inst. 152.]
I. THE king therefore, considered as the representative of his people,
has the sole power of sending embassadors to foreign states, and
receiving embassadors at home. This may lead us into a short enquiry,
how far the municipal laws of England intermeddle with or protect the
rights of these messengers from one potentate to another, whom we call
embassadors.
THE rights, the powers, the duties, and the privileges of embassadors
are determined by the law of nature and nations, and not by any
municipal constitutions. For, as they represent the persons of their
respective masters, who owe no subjection to any laws but those of
their own country, their actions are not subject to the control of the
private law of that state, wherein they are appointed to reside. He
that is subject to the coercion of laws is necessarily dependent on
that power by whom those laws were made: but an embassador ought to be
independent of every power, except that by which he is sent; and of
consequence ought not to be subject to the mere municipal laws of that
nation, wherein he is to exercise his functions. If he grossly
offends, or makes an ill use of his character, he may be sent home and
accused before his master[e]; who is bound either to do justice upon
him, or avow himself the accomplice of his crimes[f]. But there is
great dispute among the writers on the laws of nations, whether this
exemption of embassadors extends to all crimes, as well natural as
positive; or whether it only extends to such as are _mala prohibita_,
as coining, and not to those that are _mala in se_, as murder[g]. Our
law seems to have formerly taken in the restriction, as well as the
general exemption. For it has been held, both by our common lawyers
and civilians[h], that an embassador is privileged by the law of
nature and nations; and yet, if he commits any offence against the law
of reason and nature, he shall lose his privilege[i]: and that
therefore, if an embassador conspires the death of the king in whose
land he is, he may be condemned and executed for treason; but if he
commits any other species of treason, it is otherwise, and he must be
sent to his own kingdom[k]. And these positions seem to be built upon
good appearance of reason. For since, as we have formerly shewn, all
municipal laws act in subordination to the primary law of nature, and,
where they annex a punishment to natural crimes, are only declaratory
of and auxiliary to that law; therefore to this natural, universal
rule of justice embassadors, as well as other men, are subject in all
countries; and of consequence it is reasonable that wherever they
transgress it, there they shall be liable to make atonement[l]. But,
however these principles might formerly obtain, the general practice
of Europe seems now to have adopted the sentiments of the learned
Grotius, that the security of embassadors is of more importance than
the punishment of a particular crime[m]. And therefore few, if any,
examples have happened within a century past, where an embassador has
been punished for any offence, however atrocious in it's nature.
[Footnote e: As was done with count Gyllenberg the Swedish minister to
Great Britain, _A.D._ 1716.]
[Footnote f: Sp. L. 26. 21.]
[Footnote g: Van Leeuwen _in Ff._ 50. 7. 17. Barbeyrac's Puff. l. 8.
c. 9. §. 9. & 17. Van Bynkershoek _de foro legator._ c. 17, 18, 19.]
[Footnote h: 1 Roll. Rep. 175. 3 Bulstr. 27.]
[Footnote i: 4 Inst. 153.]
[Footnote k: 1 Roll. Rep. 185.]
[Footnote l: Foster's reports. 188.]
[Footnote m: _Securitas legatorum utilitati quae ex poena est
praeponderat._ _de jur. b. & p._ 2. 18. 4. 4.]
IN respect to civil suits, all the foreign jurists agree, that neither
an embassador, nor any of his train or _comites_, can be prosecuted
for any debt or contract in the courts of that kingdom wherein he is
sent to reside. Yet sir Edward Coke maintains, that, if an embassador
make a contract which is good _jure gentium_, he shall answer for it
here[n]. And the truth is, we find no traces in our lawbooks of
allowing any privilege to embassadors or their domestics, even in
civil suits, previous to the reign of queen Anne; when an embassador
from Peter the great, czar of Muscovy, was actually arrested and taken
out of his coach in London, in 1708, for debts which he had there
contracted. This the czar resented very highly, and demanded (we are
told) that the officers who made the arrest should be punished with
death. But the queen (to the amazement of that despotic court)
directed her minister to inform him, "that the law of England had not
yet protected embassadors from the payment of their lawful debts; that
therefore the arrest was no offence by the laws; and that she could
inflict no punishment upon any, the meanest, of her subjects, unless
warranted by the law of the land[o]." To satisfy however the clamours
of the foreign ministers (who made it a common cause) as well as to
appease the wrath of Peter[p], a new statute was enacted by
parliament[q], reciting the arrest which had been made, "in contempt
of the protection granted by her majesty, contrary to the law of
nations, and in prejudice of the rights and privileges, which
embassadors and other public ministers have at all times been thereby
possessed of, and ought to be kept sacred and inviolable:" wherefore
it enacts, that for the future all process whereby the person of any
embassador, or of his domestic or domestic servant, may be arrested,
or his goods distreined or seised, shall be utterly null and void; and
the persons prosecuting, soliciting, or executing such process shall
be deemed violaters of the law of nations, and disturbers of the
public repose; and shall suffer such penalties and corporal punishment
as the lord chancellor and the two chief justices, or any two of them,
shall think fit. But it is expressly provided, that no trader, within
the description of the bankrupt laws, who shall be in the service of
any embassador, shall be privileged or protected by this act; nor
shall any one be punished for arresting an embassador's servant,
unless his name be registred with the secretary of state, and by him
transmitted to the sheriffs of London and Middlesex. Exceptions, that
are strictly conformable to the rights of embassadors[r], as observed
in the most civilized countries. And, in consequence of this statute,
thus enforcing the law of nations, these privileges are now usually
allowed in the courts of common law[s].
[Footnote n: 4 Inst. 153.]
[Footnote o: Mod. Un. Hist. xxxv. 454.]
[Footnote p: A copy of the act made upon this occasion, very elegantly
engrossed and illuminated, was sent him to Moscow as a present.]
[Footnote q: 7 Ann. c. 12.]
[Footnote r: _Saepe quaesitum est an comitum numero et jure habendi
sunt, qui legatum comitantur, non ut instructior fiat legatio, sed
unice ut lucro suo consulant, institores forte et mercatores. Et,
quamvis hos saepe defenderint et comitum loco habere voluerint legati,
apparet tamen satis eo non pertinere, qui in legati legationisve
officio non sunt. Quum autem ea res nonnunquam turbas dederit, optimo
exemplo in quibusdam aulis olim receptum fuit, ut legatus teneretur
exhibere nomenclaturam comitum suorum._ Van Bynkersh. _c._ 15. _prope
finem_.]
[Footnote s: Fitzg. 200. Stra. 797.]
II. IT is also the king's prerogative to make treaties, leagues, and
alliances with foreign states and princes. For it is by the law of
nations essential to the goodness of a league, that it be made by the
sovereign power[t]; and then it is binding upon the whole community:
and in England the sovereign power, _quoad hoc_, is vested in the
person of the king. Whatever contracts therefore he engages in, no
other power in the kingdom can legally delay, resist, or annul. And
yet, lest this plenitude of authority should be abused to the
detriment of the public, the constitution (as was hinted before) hath
here interposed a check, by the means of parliamentary impeachment,
for the punishment of such ministers as advise or conclude any treaty,
which shall afterwards be judged to derogate from the honour and
interest of the nation.
[Footnote t: Puff. L. of N. b. 8. c. 9. §. 6.]
III. UPON the same principle the king has also the sole prerogative of
making war and peace. For it is held by all the writers on the law of
nature and nations, that the right of making war, which by nature
subsisted in every individual, is given up by all private persons that
enter into society, and is vested in the sovereign power[u]: and this
right is given up not only by individuals, but even by the intire body
of people, that are under the dominion of a sovereign. It would indeed
be extremely improper, that any number of subjects should have the
power of binding the supreme magistrate, and putting him against his
will in a state of war. Whatever hostilities therefore may be
committed by private citizens, the state ought not to be affected
thereby; unless that should justify their proceedings, and thereby
become partner in the guilt. Such unauthorized voluntiers in violence
are not ranked among open enemies, but are treated like pirates and
robbers: according to that rule of the civil law[w]; _hostes hi sunt
qui nobis, aut quibus nos, publice bellum decrevimus: caeteri latrones
aut praedones sunt_. And the reason which is given by Grotius[x], why
according to the law of nations a denunciation of war ought always to
precede the actual commencement of hostilities, is not so much that
the enemy may be put upon his guard, (which is matter rather of
magnanimity than right) but that it may be certainly clear that the
war is not undertaken by private persons, but by the will of the whole
community; whose right of willing is in this case transferred to the
supreme magistrate by the fundamental laws of society. So that, in
order to make a war completely effectual, it is necessary with us in
England that it be publicly declared and duly proclaimed by the king's
authority; and, then, all parts of both the contending nations, from
the highest to the lowest, are bound by it. And, wherever the right
resides of beginning a national war, there also must reside the right
of ending it, or the power of making peace. And the same check of
parliamentary impeachment, for improper or inglorious conduct, in
beginning, conducting, or concluding a national war, is in general
sufficient to restrain the ministers of the crown from a wanton or
injurious exertion of this great prerogative.
[Footnote u: Puff. l. 8. c. 6. §. 8. and Barbeyr. _in loc._]
[Footnote w: _Ff._ 50. 16. 118.]
[Footnote x: _de jur. b. & p._ _l._ 3. _c._ 3. §. 11.]
IV. BUT, as the delay of making war may sometimes be detrimental to
individuals who have suffered by depredations from foreign potentates,
our laws have in some respect armed the subject with powers to impel
the prerogative; by directing the ministers of the crown to issue
letters of marque and reprisal upon due demand: the prerogative of
granting which is nearly related to, and plainly derived from, that
other of making war; this being indeed only an incomplete state of
hostilities, and generally ending in a formal denunciation of war.
These letters are grantable by the law of nations[y], whenever the
subjects of one state are oppressed and injured by those of another;
and justice is denied by that state to which the oppressor belongs. In
this case letters of marque and reprisal (words in themselves
synonimous and signifying a taking in return) may be obtained, in
order to seise the bodies or goods of the subjects of the offending
state, until satisfaction be made, wherever they happen to be found.
Indeed this custom of reprisals seems dictated by nature herself; and
accordingly we find in the most antient times very notable instances
of it[z]. But here the necessity is obvious of calling in the
sovereign power, to determine when reprisals may be made; else every
private sufferer would be a judge in his own cause. And, in pursuance
of this principle, it is with us declared by the statute 4 Hen. V. c.
7. that, if any subjects of the realm are oppressed in time of truce
by any foreigners, the king will grant marque in due form, to all that
feel themselves grieved. Which form is thus directed to be observed:
the sufferer must first apply to the lord privy-seal, and he shall
make out letters of request under the privy seal; and, if, after such
request of satisfaction made, the party required do not within
convenient time make due satisfaction or restitution to the party
grieved, the lord chancellor shall make him out letters of marque
under the great seal; and by virtue of these he may attack and seise
the property of the aggressor nation, without hazard of being
condemned as a robber or pirate.
[Footnote y: Grot. _de jur. b. & p._ _l._ 3. _c._ 2. §. 4 & 5.]
[Footnote z: See the account given by Nestor, in the eleventh book of
the Iliad, of the reprisals made by himself on the Epeian nation; from
whom he took a multitude of cattle, as a satisfaction for a prize won
at the Elian games by his father Neleus, and for debts due to many
private subjects of the Pylian kingdom: out of which booty the king
took three hundred head of cattle for his own demand, and the rest
were equitably divided among the other creditors.]
V. UPON exactly the same reason stands the prerogative of granting
safe-conducts, without which by the law of nations no member of one
society has a right to intrude into another. And therefore Puffendorf
very justly resolves[a], that it is left in the power of all states,
to take such measures about the admission of strangers, as they think
convenient; those being ever excepted who are driven on the coasts by
necessity, or by any cause that deserves pity or compassion. Great
tenderness is shewn by our laws, not only to foreigners in distress
(as will appear when we come to speak of shipwrecks) but with regard
also to the admission of strangers who come spontaneously. For so long
as their nation continues at peace with ours, and they themselves
behave peaceably, they are under the king's protection; though liable
to be sent home whenever the king sees occasion. But no subject of a
nation at war with us can, by the law of nations, come into the realm,
nor can travel himself upon the high seas, or send his goods and
merchandize from one place to another, without danger of being seized
by our subjects, unless he has letters of safe-conduct; which by
divers antient statutes[b] must be granted under the king's great seal
and inrolled in chancery, or else are of no effect: the king being
supposed the best judge of such emergencies, as may deserve exception
from the general law of arms.
[Footnote a: Law of N. and N. b. 3. c. 3. §. 9.]
[Footnote b: 15 Hen. VI. c. 3. 18 Hen. VI. c. 8. 20 Hen. VI. c. 1.]
INDEED the law of England, as a commercial country, pays a very
particular regard to foreign merchants in innumerable instances. One I
cannot omit to mention: that by _magna carta_[c] it is provided, that
all merchants (unless publickly prohibited beforehand) shall have safe
conduct to depart from, to come into, to tarry in, and to go through
England, for the exercise of merchandize, without any unreasonable
imposts, except in time of war: and, if a war breaks out between us
and their country, they shall be attached (if in England) without harm
of body or goods, till the king or his chief justiciary be informed
how our merchants are treated in the land with which we are at war;
and, if ours be secure in that land, they shall be secure in ours.
This seems to have been a common rule of equity among all the northern
nations; for we learn from Stiernhook[d], that it was a maxim among
the Goths and Swedes, "_quam legem exteri nobis posuere, eandem illis
ponemus_." But it is somewhat extraordinary, that it should have found
a place in _magna carta_, a mere interior treaty between the king and
his natural-born subjects; which occasions the learned Montesquieu to
remark with a degree of admiration, "that the English have made the
protection of _foreign_ merchants one of the articles of their
_national_ liberty[e]." But indeed it well justifies another
observation which he has made[f], "that the English know better than
any other people upon earth, how to value at the same time these three
great advantages, religion, liberty, and commerce." Very different
from the genius of the Roman people; who in their manners, their
constitution, and even in their laws, treated commerce as a
dishonorable employment, and prohibited the exercise thereof to
persons of birth, or rank, or fortune[g]: and equally different from
the bigotry of the canonists, who looked on trade as inconsistent with
christianity[h], and determined at the council of Melfi, under pope
Urban II, _A.D._ 1090, that it was impossible with a safe conscience
to exercise any traffic, or follow the profession of the law[i].
[Footnote c: _c._ 30.]
[Footnote d: _de jure Sueon._ _l._ 3. _c._ 4.]
[Footnote e: Sp. L. 20. 13.]
[Footnote f: Sp. L. 20. 6.]
[Footnote g: _Nobiliores natalibus, et honorum luce conspicuos, et
patrimonio ditiores, perniciosum urbibus mercimonium exercere
prohibemus._ _C._ 4 63. 3.]
[Footnote h: _Homo mercator vix aut nunquam potest Deo placere: et
ideo nullus Christianus debet esse mercator; aut si voluerit esse,
projiciatur de ecclesia Dei._ _Decret._ 1. 88. 11.]
[Footnote i: _Falsa fit poenitentia [laici] cum penitus ab officio
curiali vel negotiali non recedit, quae sine peccatis agi ulla ratione
non praevalet._ _Act. Concil. apud Baron._ _c._ 16.]
THESE are the principal prerogatives of the king, respecting this
nation's intercourse with foreign nations; in all of which he is
considered as the delegate or representative of his people. But in
domestic affairs he is considered in a great variety of characters,
and from thence there arises an abundant number of other prerogatives.
I. FIRST, he is a constituent part of the supreme legislative power;
and, as such, has the prerogative of rejecting such provisions in
parliament, as he judges improper to be passed. The expediency of
which constitution has before been evinced at large[k]. I shall only
farther remark, that the king is not bound by any act of parliament,
unless he be named therein by special and particular words. The most
general words that can be devised ("any person or persons, bodies
politic, or corporate, _&c._") affect not him in the least, if they
may tend to restrain or diminish any of his rights or interests[l].
For it would be of most mischievous consequence to the public, if the
strength of the executive power were liable to be curtailed without
it's own express consent, by constructions and implications of the
subject. Yet where an act of parliament is expressly made for the
preservation of public rights and the suppression of public wrongs,
and does not interfere with the established rights of the crown, it is
said to be binding as well upon the king as upon the subject[m]: and,
likewise, the king may take the benefit of any particular act, though
he be not especially named[n].
[Footnote k: ch. 2. pag. 149.]
[Footnote l: 11 Rep. 74 _b._]
[Footnote m: 11 Rep. 71.]
[Footnote n: 7 Rep. 32.]
II. THE king is considered, in the next place, as the generalissimo,
or the first in military command, within the kingdom. The great end of
society is to protect the weakness of individuals by the united
strength of the community: and the principal use of government is to
direct that united strength in the best and most effectual manner, to
answer the end proposed. Monarchical government is allowed to be the
fittest of any for this purpose: it follows therefore, from the very
end of it's institution, that in a monarchy the military power must be
trusted in the hands of the prince.
IN this capacity therefore, of general of the kingdom, the king has
the sole power of raising and regulating fleets and armies. Of the
manner in which they are raised and regulated I shall speak more, when
I come to consider the military state. We are now only to consider the
prerogative of enlisting and of governing them: which indeed was
disputed and claimed, contrary to all reason and precedent, by the
long parliament of king Charles I; but, upon the restoration of his
son, was solemnly declared by the statute 13 Car. II. c. 6. to be in
the king alone: for that the sole supreme government and command of
the militia within all his majesty's realms and dominions, and of all
forces by sea and land, and of all forts and places of strength, ever
was and is the undoubted right of his majesty, and his royal
predecessors, kings and queens of England; and that both or either
house of parliament cannot, nor ought to, pretend to the same.
THIS statute, it is obvious to observe, extends not only to fleets and
armies, but also to forts, and other places of strength, within the
realm; the sole prerogative as well of erecting, as manning and
governing of which, belongs to the king in his capacity of general of
the kingdom[o]: and all lands were formerly subject to a tax, for
building of castles wherever the king thought proper. This was one of
the three things, from contributing to the performance of which no
lands were exempted; and therefore called by our Saxon ancestors the
_trinoda necessitas: sc. pontis reparatio, arcis constructio, et
expeditio contra hostem_[p]. And this they were called upon to do so
often, that, as sir Edward Coke from M. Paris assures us[q], there
were in the time of Henry II 1115 castles subsisting in England. The
inconvenience of which, when granted out to private subjects, the
lordly barons of those times, was severely felt by the whole kingdom;
for, as William of Newbury remarks in the reign of king Stephen,
"_erant in Anglia quodammodo tot reges vel potius tyranni, quot domini
castellorum_:" but it was felt by none more sensibly than by two
succeeding princes, king John and king Henry III. And therefore, the
greatest part of them being demolished in the barons' wars, the kings
of after times have been very cautious of suffering them to be rebuilt
in a fortified manner: and sir Edward Coke lays it down[r], that no
subject can build a castle, or house of strength imbatteled, or other
fortress defensible, without the licence of the king; for the danger
which might ensue, if every man at his pleasure might do it.
[Footnote o: 2 Inst. 30.]
[Footnote p: Cowel's interpr. _tit. castellorum operatio_. Seld. _Jan.
Angl._ 1. 42.]
[Footnote q: 2 Inst. 31.]
[Footnote r: 1 Inst. 5.]
TO this branch of the prerogative may be referred the power vested in
his majesty, by statutes 12 Car. II. c. 4. and 29 Geo. II. c. 16. of
prohibiting the exportation of arms or ammunition out of this kingdom,
under severe penalties: and likewise the right which the king has,
whenever he sees proper, of confining his subjects to stay within the
realm, or of recalling them when beyond the seas. By the common
law[s], every man may go out of the realm for whatever cause he
pleaseth, without obtaining the king's leave; provided he is under no
injunction of staying at home: (which liberty was expressly declared
in king John's great charter, though left out in that of Henry III)
but, because that every man ought of right to defend the king and his
realm, therefore the king at his pleasure may command him by his writ
that he go not beyond the seas, or out of the realm without licence;
and if he do the contrary, he shall be punished for disobeying the
king's command. Some persons there antiently were, that, by reason of
their stations, were under a perpetual prohibition of going abroad
without licence obtained; among which were reckoned all peers, on
account of their being counsellors of the crown; all knights, who were
bound to defend the kingdom from invasions; all ecclesiastics, who
were expressly confined by cap. 4. of the constitutions of Clarendon,
on account of their attachment in the times of popery to the see of
Rome; all archers and other artificers, lest they should instruct
foreigners to rival us in their several trades and manufactures. This
was law in the times of Britton[t], who wrote in the reign of Edward
I: and sir Edward Coke[u] gives us many instances to this effect in
the time of Edward III. In the succeeding reign the affair of
travelling wore a very different aspect: an act of parliament being
made[w], forbidding all persons whatever to go abroad without licence;
_except_ only the lords and other great men of the realm; and true and
notable merchants; and the king's soldiers. But this act was repealed
by the statute 4 Jac. I. c. 1. And at present every body has, or at
least assumes, the liberty of going abroad when he pleases. Yet
undoubtedly if the king, by writ of _ne exeat regnum_, under his great
seal or privy seal, thinks proper to prohibit him from so doing; or if
the king sends a writ to any man, when abroad, commanding his return;
and in either case the subject disobeys; it is a high contempt of the
king's prerogative, for which the offender's lands shall be seised
till he return; and then he is liable to fine and imprisonment[x].
[Footnote s: F.N.B. 85.]
[Footnote t: c. 123.]
[Footnote u: 3 Inst. 175.]
[Footnote w: 5 Ric. II. c. 2.]
[Footnote x: 1 Hawk. P.C. 22.]
III. ANOTHER capacity, in which the king is considered in domestic
affairs, is as the fountain of justice and general conservator of the
peace of the kingdom. By the fountain of justice the law does not mean
the _author_ or _original_, but only the _distributor_. Justice is not
derived from the king, as from his _free gift_; but he is the steward
of the public, to dispense it to whom it is _due_[y]. He is not the
spring, but the reservoir; from whence right and equity are conducted,
by a thousand chanels, to every individual. The original power of
judicature, by the fundamental principles of society, is lodged in the
society at large: but as it would be impracticable to render complete
justice to every individual, by the people in their collective
capacity, therefore every nation has committed that power to certain
select magistrates, who with more ease and expedition can hear and
determine complaints; and in England this authority has immemorially
been exercised by the king or his substitutes. He therefore has alone
the right of erecting courts of judicature: for, though the
constitution of the kingdom hath entrusted him with the whole
executive power of the laws, it is impossible, as well as improper,
that he should personally carry into execution this great and
extensive trust: it is consequently necessary, that courts should be
erected, to assist him in executing this power; and equally necessary,
that, if erected, they should be erected by his authority. And hence
it is, that all jurisdictions of courts are either mediately or
immediately derived from the crown, their proceedings run generally in
the king's name, they pass under his seal, and are executed by his
officers.
[Footnote y: _Ad hoc autem creatus est et electus, ut justitiam faciat
universis._ Bract. _l._ 3. _tr._ 1. _c._ 9.]
IT is probable, and almost certain, that in very early times, before
our constitution arrived at it's full perfection, our kings in person
often heard and determined causes between party and party. But at
present, by the long and uniform usage of many ages, our kings have
delegated their whole judicial power to the judges of their several
courts; which are the grand depositary of the fundamental laws of the
kingdom, and have gained a known and stated jurisdiction, regulated by
certain and established rules, which the crown itself cannot now alter
but by act of parliament[z]. And, in order to maintain both the
dignity and independence of the judges in the superior courts, it is
enacted by the statute 13 W. III. c. 2. that their commissions shall
be made (not, as formerly, _durante bene placito_, but) _quamdiu bene
se gesserint_, and their salaries ascertained and established; but
that it may be lawful to remove them on the address of both houses of
parliament. And now, by the noble improvements of that law in the
statute of 1 Geo. III. c. 23. enacted at the earnest recommendation of
the king himself from the throne, the judges are continued in their
offices during their good behaviour, notwithstanding any demise of the
crown (which was formerly held[a] immediately to vacate their seats)
and their full salaries are absolutely secured to them during the
continuance of their commissions: his majesty having been pleased to
declare, that "he looked upon the independence and uprightness of the
judges, as essential to the impartial administration of justice; as
one of the best securities of the rights and liberties of his
subjects; and as most conducive to the honour of the crown[b]."
[Footnote z: 2 Hawk. P.C. 2.]
[Footnote a: Ld Raym. 747.]
[Footnote b: Com. Journ. 3 Mar. 1761.]
IN criminal proceedings, or prosecutions for offences, it would still
be a higher absurdity, if the king personally sate in judgment;
because in regard to these he appears in another capacity, that of
_prosecutor_. All offences are either against the king's peace, or his
crown and dignity; and are so laid in every indictment. For, though in
their consequences they generally seem (except in the case of treason
and a very few others) to be rather offences against the kingdom than
the king; yet, as the public, which is an invisible body, has
delegated all it's power and rights, with regard to the execution of
the laws, to one visible magistrate, all affronts to that power, and
breaches of those rights, are immediately offences against him, to
whom they are so delegated by the public. He is therefore the proper
person to prosecute for all public offences and breaches of the peace,
being the person injured in the eye of the law. And this notion was
carried so far in the old Gothic constitution, (wherein the king was
bound by his coronation oath to conserve the peace) that in case of
any forcible injury offered to the person of a fellow subject, the
offender was accused of a kind of perjury, in having violated the
king's coronation oath; _dicebatur fregisse juramentum regis
juratum_[c]. And hence also arises another branch of the prerogative,
that of _pardoning_ offences; for it is reasonable that he only who is
injured should have the power of forgiving. And therefore, in
parliamentary impeachments, the king has no prerogative of pardoning:
because there the commons of Great Britain are in their own names the
prosecutors, and not the crown; the offence being for the most part
avowedly taken to be done against the public. Of prosecutions and
pardons I shall treat more at large hereafter; and only mention them
here, in this cursory manner, to shew the constitutional grounds of
this power of the crown, and how regularly connected all the links are
in this vast chain of prerogative.
[Footnote c: Stiernh. _de jure Goth._ _l._ 3. _c._ 3. A notion
somewhat similar to this may be found in the mirrour. c. 1. §. 5.]
IN this distinct and separate existence of the judicial power, in a
peculiar body of men, nominated indeed, but not removeable at
pleasure, by the crown, consists one main preservative of the public
liberty; which cannot subsist long in any state, unless the
administration of common justice be in some degree separated both from
the legislative and also from the executive power. Were it joined with
the legislative, the life, liberty, and property, of the subject would
be in the hands of arbitrary judges, whose decisions would be then
regulated only by their own opinions, and not by any fundamental
principles of law; which, though legislators may depart from, yet
judges are bound to observe. Were it joined with the executive, this
union might soon be an over-ballance for the legislative. For which
reason, by the statute of 16 Car. I. c. 10. which abolished the court
of star chamber, effectual care is taken to remove all judicial power
out of the hands of the king's privy council; who, as then was evident
from recent instances, might soon be inclined to pronounce that for
law, which was most agreeable to the prince or his officers. Nothing
therefore is more to be avoided, in a free constitution, than uniting
the provinces of a judge and a minister of state. And indeed, that the
absolute power, claimed and exercised in a neighbouring nation, is
more tolerable than that of the eastern empires, is in great measure
owing to their having vested the judicial power in their parliaments,
a body separate and distinct from both the legislative and executive:
and, if ever that nation recovers it's former liberty, it will owe it
to the efforts of those assemblies. In Turkey, where every thing is
centered in the sultan or his ministers, despotic power is in it's
meridian, and wears a more dreadful aspect.
A CONSEQUENCE of this prerogative is the legal _ubiquity_ of the king.
His majesty, in the eye of the law, is always present in all his
courts, though he cannot personally distribute justice[d]. His judges
are the mirror by which the king's image is reflected. It is the regal
office, and not the royal person, that is always present in court,
always ready to undertake prosecutions, or pronounce judgment, for the
benefit and protection of the subject. And from this ubiquity it
follows, that the king can never be nonsuit[e]; for a nonsuit is the
desertion of the suit or action by the non-appearance of the plaintiff
in court. For the same reason also, in the forms of legal proceedings,
the king is not said to appear _by his attorney_, as other men do; for
he always appears in contemplation of law in his own proper person[f].
[Footnote d: Fortesc. c. 8. 2 Inst. 186.]
[Footnote e: Co. Litt. 139.]
[Footnote f: Finch. L. 81.]
FROM the same original, of the king's being the fountain of justice,
we may also deduce the prerogative of issuing proclamations, which is
vested in the king alone. These proclamations have then a binding
force, when (as Sir Edward Coke observes[g]) they are grounded upon
and enforce the laws of the realm. For, though the making of laws is
entirely the work of a distinct part, the legislative branch, of the
sovereign power, yet the manner, time, and circumstances of putting
those laws in execution must frequently be left to the discretion of
the executive magistrate. And therefore his constitutions or edicts,
concerning these points, which we call proclamations, are binding upon
the subject, where they do not either contradict the old laws, or tend
to establish new ones; but only enforce the execution of such laws as
are already in being, in such manner as the king shall judge
necessary. Thus the established law is, that the king may prohibit any
of his subjects from leaving the realm: a proclamation therefore
forbidding this in general for three weeks, by laying an embargo upon
all shipping in time of war[h], will be equally binding as an act of
parliament, because founded upon a prior law. A proclamation for
disarming papists is also binding, being only in execution of what the
legislature has first ordained: but a proclamation for allowing arms
to papists, or for disarming any protestant subjects, will not bind;
because the first would be to assume a dispensing power, the latter a
legislative one; to the vesting of either of which in any single
person the laws of England are absolutely strangers. Indeed by the
statute 31 Hen. VIII. c. 8. it was enacted, that the king's
proclamations should have the force of acts of parliament: a statute,
which was calculated to introduce the most despotic tyranny; and which
must have proved fatal to the liberties of this kingdom, had it not
been luckily repealed in the minority of his successor, about five
years after[i].
[Footnote g: 3 Inst. 162.]
[Footnote h: 4 Mod. 177, 179.]
[Footnote i: Stat. 1 Edw. VI. c. 12.]
IV. THE king is likewise the fountain of honour, of office, and of
privilege: and this in a different sense from that wherein he is
stiled the fountain of justice; for here he is really the parent of
them. It is impossible that government can be maintained without a
due subordination of rank; that the people may know and distinguish
such as are set over them, in order to yield them their due respect
and obedience; and also that the officers themselves, being encouraged
by emulation and the hopes of superiority, may the better discharge
their functions: and the law supposes, that no one can be so good a
judge of their several merits and services, as the king himself who
employs them. It has therefore intrusted with him the sole power of
conferring dignities and honours, in confidence that he will bestow
them upon none, but such as deserve them. And therefore all degrees of
nobility, of knighthood, and other titles, are received by immediate
grant from the crown: either expressed in writing, by writs or letters
patent, as in the creations of peers and baronets; or by corporeal
investiture, as in the creation of a simple knight.
FROM the same principle also arises the prerogative of erecting and
disposing of offices: for honours and offices are in their nature
convertible and synonymous. All offices under the crown carry in the
eye of the law an honour along with them; because they imply a
superiority of parts and abilities, being supposed to be always filled
with those that are most able to execute them. And, on the other hand,
all honours in their original had duties or offices annexed to them:
an earl, _comes_, was the conservator or governor of a county; and a
knight, _miles_, was bound to attend the king in his wars. For the
same reason therefore that honours are in the disposal of the king,
offices ought to be so likewise; and as the king may create new
titles, so may he create new offices: but with this restriction, that
he cannot create new offices with new fees annexed to them, nor annex
new fees to old offices; for this would be a tax upon the subject,
which cannot be imposed but by act of parliament[k]. Wherefore, in 13
Hen. IV, a new office being created by the king's letters patent for
measuring cloths, with a new fee for the same, the letters patent
were, on account of the new fee, revoked and declared void in
parliament.
[Footnote k: 2 Inst. 533.]
UPON the same, or a like reason, the king has also the prerogative of
conferring privileges upon private persons. Such as granting place or
precedence to any of his subjects, as shall seem good to his royal
wisdom[l]: or such as converting aliens, or persons born out of the
king's dominions, into denizens; whereby some very considerable
privileges of natural-born subjects are conferred upon them. Such also
is the prerogative of erecting corporations; whereby a number of
private persons are united and knit together, and enjoy many
liberties, powers, and immunities in their politic capacity, which
they were utterly incapable of in their natural. Of aliens, denizens,
natural-born, and naturalized subjects, I shall speak more largely in
a subsequent chapter; as also of corporations at the close of this
book of our commentaries. I now only mention them incidentally, in
order to remark the king's prerogative of making them; which is
grounded upon this foundation, that the king, having the sole
administration of the government in his hands, is the best and the
only judge, in what capacities, with what privileges, and under what
distinctions, his people are the best qualified to serve, and to act
under him. A principle, which was carried so far by the imperial law,
that it was determined to be the crime of sacrilege, even to doubt
whether the prince had appointed proper officers in the state[m].
[Footnote l: 4 Inst. 361.]
[Footnote m: _Disputare de principali judicio non oportet: sacrilegii
enim instar est, dubitare an is dignus sit; quem elegerit imperator._
_C._ 9. 29. 3.]
V. ANOTHER light in which the laws of England consider the king with
regard to domestic concerns, is as the arbiter of commerce. By
commerce, I at present mean domestic commerce only. It would lead me
into too large a field, if I were to attempt, to enter upon the nature
of foreign trade, it's privileges, regulations, and restrictions; and
would be also quite beside the purpose of these commentaries, which
are confined to the laws of England. Whereas no municipal laws can be
sufficient to order and determine the very extensive and complicated
affairs of traffic and merchandize; neither can they have a proper
authority for this purpose. For as these are transactions carried on
between the subjects of independent states, the municipal laws of one
will not be regarded by the other. For which reason the affairs of
commerce are regulated by a law of their own, called the law merchant
or _lex mercatoria_, which all nations agree in and take notice of.
And in particular the law of England does in many cases refer itself
to it, and leaves the causes of merchants to be tried by their own
peculiar customs; and that often even in matters relating to inland
trade, as for instance with regard to the drawing, the acceptance, and
the transfer, of bills of exchange[n].
[Footnote n: Co. Litt. 172. Ld Raym. 181. 1542.]
WITH us in England, the king's prerogative, so far as it relates to
mere domestic commerce, will fall principally under the following
articles:
FIRST, the establishment of public marts, or places of buying and
selling, such as markets and fairs, with the tolls thereunto
belonging. These can only be set up by virtue of the king's grant, or
by long and immemorial usage and prescription, which presupposes such
a grant[o]. The limitation of these public resorts, to such time and
such place as may be most convenient for the neighbourhood, forms a
part of oeconomics, or domestic polity; which, considering the kingdom
as a large family, and the king as the master of it, he clearly has a
right to dispose and order as he pleases.
[Footnote o: 2 Inst. 220.]
SECONDLY, the regulation of weights and measures. These, for the
advantage of the public, ought to be universally the same throughout
the kingdom; being the general criterions which reduce all things to
the same or an equivalent value. But, as weight and measure are things
in their nature arbitrary and uncertain, it is therefore expedient
that they be reduced to some fixed rule or standard: which standard it
is impossible to fix by any written law or oral proclamation; for no
man can, by words only, give another an adequate idea of a foot-rule,
or a pound-weight. It is therefore necessary to have recourse to some
visible, palpable, material standard; by forming a comparison with
which, all weights and measures may be reduced to one uniform size:
and the prerogative of fixing this standard, our antient law vested in
the crown; as in Normandy it belonged to the duke[p]. This standard
was originally kept at Winchester: and we find in the laws of king
Edgar[q], near a century before the conquest, an injunction that the
one measure, which was kept at Winchester, should be observed
throughout the realm. Most nations have regulated the standard of
measures of length by comparison with the parts of the human body; as
the palm, the hand, the span, the foot, the cubit, the ell, (_ulna_,
or arm) the pace, and the fathom. But, as these are of different
dimensions in men of different proportions, our antient historians[r]
inform us, that a new standard of longitudinal measure was ascertained
by king Henry the first; who commanded that the _ulna_ or antient ell,
which answers to the modern yard, should be made of the exact length
of his own arm. And, one standard of measures of length being gained,
all others are easily derived from thence; those of greater length by
multiplying, those of less by subdividing, that original standard.
Thus, by the statute called _compositio ulnarum et perticarum_, five
yards and an half make a perch; and the yard is subdivided into three
feet, and each foot into twelve inches; which inches will be each of
the length of three grains of barley. Superficial measures are derived
by squaring those of length; and measures of capacity by cubing them.
The standard of weights was originally taken from corns of wheat,
whence the lowest denomination of weights we have is still called a
grain; thirty two of which are directed, by the statute called
_compositio mensurarum_, to compose a penny weight, whereof twenty
make an ounce, twelve ounces a pound, and so upwards. And upon these
principles the first standards were made; which, being originally so
fixed by the crown, their subsequent regulations have been generally
made by the king in parliament. Thus, under king Richard I, in his
parliament holden at Westminster, _A.D._ 1197, it was ordained that
there shall be only one weight and one measure throughout the kingdom,
and that the custody of the assise or standard of weights and measures
shall be committed to certain persons in every city and borough[s];
from whence the antient office of the king's aulnager seems to have
been derived, whose duty it was, for a certain fee, to measure all
cloths made for sale, till the office was abolished by the statute 11
& 12 W. III. c. 20. In king John's time this ordinance of king Richard
was frequently dispensed with for money[t]; which occasioned a
provision to be made for inforcing it, in the great charters of king
John and his son[u]. These original standards were called _pondus
regis_[w], and _mensura domini regis_[x]; and are directed by a
variety of subsequent statutes to be kept in the exchequer, and all
weights and measures to be made conformable thereto[y]. But, as sir
Edward Coke observes[z], though this hath so often by authority of
parliament been enacted, yet it could never be effected; so forcible
is custom with the multitude, when it hath gotten an head.
[Footnote p: _Gr. Coustum._ _c._ 16.]
[Footnote q: _cap._ 8.]
[Footnote r: William of Malmsb. _in vita Hen. I._ Spelm. _Hen. I. ap._
Wilkins. 299.]
[Footnote s: Hoved. Matth. Paris.]
[Footnote t: Hoved. _A.D._ 1201.]
[Footnote u: 9 Hen. III. c. 25.]
[Footnote w: _Plac. 35 Edw. I. apud_ Cowel's Interpr. _tit. pondus
regis._]
[Footnote x: _Flet._ 2. 12.]
[Footnote y: 14 Edw. III. st. 1. c. 12. 25 Edw. III. st. 5. c. 10. 16
Ric. II. c. 3. 8 Hen. VI. c. 5. 11 Hen. VI. c. 8. 11 Hen. VII. c. 4.
22 Car. II. c. 8.]
[Footnote z: 2 Inst. 41.]
THIRDLY, as money is the medium of commerce, it is the king's
prerogative, as the arbiter of domestic commerce, to give it authority
or make it current. Money is an universal medium, or common standard,
by comparison with which the value of all merchandize may be
ascertained: or it is a sign, which represents the respective values
of all commodities. Metals are well calculated for this sign, because
they are durable and are capable of many subdivisions: and a precious
metal is still better calculated for this purpose, because it is the
most portable. A metal is also the most proper for a common measure,
because it can easily be reduced to the same standard in all nations:
and every particular nation fixes on it it's own impression, that the
weight and standard (wherein consists the intrinsic value) may both
be known by inspection only.
AS the quantity of precious metals increases, that is, the more of
them there is extracted from the mine, this universal medium or common
sign will sink in value, and grow less precious. Above a thousand
millions of bullion are calculated to have been imported into Europe
from America within less than three centuries; and the quantity is
daily increasing. The consequence is, that more money must be given
now for the same commodity than was given an hundred years ago. And,
if any accident was to diminish the quantity of gold and silver, their
value would proportionably rise. A horse, that was formerly worth ten
pounds, is now perhaps worth twenty; and, by any failure of current
specie, the price may be reduced to what it was. Yet is the horse in
reality neither dearer nor cheaper at one time than another: for, if
the metal which constitutes the coin was formerly twice as scarce as
at present, the commodity was then as dear at half the price, as now
it is at the whole.
THE coining of money is in all states the act of the sovereign power;
for the reason just mentioned, that it's value may be known on
inspection. And with respect to coinage in general, there are three
things to be considered therein; the materials, the impression, and
the denomination.
WITH regard to the materials, sir Edward Coke lays it down[a], that
the money of England must either be of gold or silver; and none other
was ever issued by the royal authority till 1672, when copper
farthings and half-pence were coined by king Charles the second, and
ordered by proclamation to be current in all payments, under the value
of six-pence, and not otherwise. But this copper coin is not upon the
same footing with the other in many respects, particularly with regard
to the offence of counterfeiting it.
[Footnote a: 2 Inst. 577.]
AS to the impression, the stamping thereof is the unquestionable
prerogative of the crown: for, though divers bishops and monasteries
had formerly the privilege of coining money, yet, as sir Matthew Hale
observes[b], this was usually done by special grant from the king, or
by prescription which supposes one; and therefore was derived from,
and not in derogation of, the royal prerogative. Besides that they had
only the profit of the coinage, and not the power of instituting
either the impression or denomination; but had usually the stamp sent
them from the exchequer.
[Footnote b: 1 Hist. P.C. 191.]
THE denomination, or the value for which the coin is to pass current,
is likewise in the breast of the king; and, if any unusual pieces are
coined, that value must be ascertained by proclamation. In order to
fix the value, the weight, and the fineness of the metal are to be
taken into consideration together. When a given weight of gold or
silver is of a given fineness, it is then of the true standard, and
called sterling metal; a name for which there are various reasons
given[c], but none of them entirely satisfactory. And of this sterling
metal all the coin of the kingdom must be made by the statute 25 Edw.
III. c. 13. So that the king's prerogative seemeth not to extend to
the debasing or inhancing the value of the coin, below or above the
sterling value[d]: though sir Matthew Hale[e] appears to be of another
opinion. The king may also, by his proclamation, legitimate foreign
coin, and make it current here; declaring at what value it shall be
taken in payments[f]. But this, I apprehend, ought to be by comparison
with the standard of our own coin; otherwise the consent of parliament
will be necessary. There is at present no such legitimated money;
Portugal coin being only current by private consent, so that any one
who pleases may refuse to take it in payment. The king may also at any
time decry, or cry down, any coin of the kingdom, and make it no
longer current[g].
[Footnote c: Spelm. Gloss. 203.]
[Footnote d: 2 Inst. 577.]
[Footnote e: 1 H.P.C. 194.]
[Footnote f: _Ibid._ 197.]
[Footnote g: _Ibid._]
VI. THE king is, lastly, considered by the laws of England as the head
and supreme governor of the national church.
TO enter into the reasons upon which this prerogative is founded is
matter rather of divinity than of law. I shall therefore only observe
that by statute 26 Hen. VIII. c. 1. (reciting that the king's majesty
justly and rightfully is and ought to be the supreme head of the
church of England; and so had been recognized by the clergy of this
kingdom in their convocation) it is enacted, that the king shall be
reputed the only supreme head in earth of the church of England, and
shall have, annexed to the imperial crown of this realm, as well the
titles and stile thereof, as all jurisdictions, authorities, and
commodities, to the said dignity of supreme head of the church
appertaining. And another statute to the same purport was made, 1
Eliz. c. 1.
IN virtue of this authority the king convenes, prorogues, restrains,
regulates, and dissolves all ecclesiastical synods or convocations.
This was an inherent prerogative of the crown, long before the time of
Henry VIII, as appears by the statute 8 Hen. VI. c. 1. and the many
authors, both lawyers and historians, vouched by sir Edward Coke[h].
So that the statute 25 Hen. VIII. c. 19. which restrains the
convocation from making or putting in execution any canons repugnant
to the king's prerogative, or the laws, customs, and statutes of the
realm, was merely declaratory of the old common law: that part of it
only being new, which makes the king's royal assent actually necessary
to the validity of every canon. The convocation or ecclesiastical
synod, in England, differs considerably in it's constitution from the
synods of other christian kingdoms: those consisting wholly of
bishops; whereas with us the convocation is the miniature of a
parliament, wherein the archbishop presides with regal state; the
upper house of bishops represents the house of lords; and the lower
house, composed of representatives of the several dioceses at large,
and of each particular chapter therein, resembles the house of
commons with it's knights of the shire and burgesses[i]. This
constitution is said to be owing to the policy of Edward I; who
thereby at one and the same time let in the inferior clergy to the
privilege of forming ecclesiastical canons, (which before they had
not) and also introduced a method of taxing ecclesiastical benefices,
by consent of convocation[k].
[Footnote h: 4 Inst. 322, 323.]
[Footnote i: In the diet of Sweden, where the ecclesiastics form one
of the branches of the legislature, the chamber of the clergy
resembles the convocation of England. It is composed of the bishops
and superintendants; and also of deputies, one of which is chosen by
every ten parishes or rural deanry. Mod. Un. Hist. xxxiii. 18.]
[Footnote k: Gilb. hist. of exch. c. 4.]
FROM this prerogative also of being the head of the church arises the
king's right of nomination to vacant bishopricks, and certain other
ecclesiastical preferments; which will better be considered when we
come to treat of the clergy. I shall only here observe, that this is
now done in consequence of the statute 25 Hen. VIII. c. 20.
AS head of the church, the king is likewise the _dernier resort_ in
all ecclesiastical causes; an appeal lying ultimately to him in
chancery from the sentence of every ecclesiastical judge: which right
was restored to the crown by statute 25 Hen. VIII. c. 19. as will more
fully be shewn hereafter.
CHAPTER THE EIGHTH.
OF THE KING'S REVENUE.
HAVING, in the preceding chapter, considered at large those branches
of the king's prerogative, which contribute to his royal dignity, and
constitute the executive power of the government, we proceed now to
examine the king's _fiscal_ prerogatives, or such as regard his
_revenue_; which the British constitution hath vested in the royal
person, in order to support his dignity and maintain his power: being
a portion which each subject contributes of his property, in order to
secure the remainder.
THIS revenue is either ordinary, or extraordinary. The king's ordinary
revenue is such, as has either subsisted time out of mind in the
crown; or else has been granted by parliament, by way of purchase or
exchange for such of the king's inherent hereditary revenues, as were
found inconvenient to the subject.
WHEN I say that it has subsisted time out of mind in the crown, I do
not mean that the king is at present in the actual possession of the
whole of this revenue. Much (nay, the greatest part) of it is at this
day in the hands of subjects; to whom it has been granted out from
time to time by the kings of England: which has rendered the crown in
some measure dependent on the people for it's ordinary support and
subsistence. So that I must be obliged to recount, as part of the
royal revenue, what lords of manors and other subjects frequently
look upon to be their own absolute rights, because they are and have
been vested in them and their ancestors for ages, though in reality
originally derived from the grants of our antient princes.
I. THE first of the king's ordinary revenues, which I shall take
notice of, is of an ecclesiastical kind; (as are also the three
succeeding ones) viz. the custody of the temporalties of bishops; by
which are meant all the lay revenues, lands, and tenements (in which
is included his barony) which belong to an archbishop's or bishop's
see. And these upon the vacancy of the bishoprick are immediately the
right of the king, as a consequence of his prerogative in church
matters; whereby he is considered as the founder of all
archbishopricks and bishopricks, to whom during the vacancy they
revert. And for the same reason, before the dissolution of abbeys, the
king had the custody of the temporalties of all such abbeys and
priories as were of royal foundation (but not of those founded by
subjects) on the death of the abbot or prior[a]. Another reason may
also be given, why the policy of the law hath vested this custody in
the king; because, as the successor is not known, the lands and
possessions of the see would be liable to spoil and devastation, if no
one had a property therein. Therefore the law has given the king, not
the temporalties themselves, but the _custody_ of the temporalties,
till such time as a successor is appointed; with power of taking to
himself all the intermediate profits, without any account to the
successor; and with the right of presenting (which the crown very
frequently exercises) to such benefices and other preferments as fall
within the time of vacation[b]. This revenue is of so high a nature,
that it could not be granted out to a subject, before, or even after,
it accrued: but now by the statute 14 Edw. III. st. 4. c. 4 & 5. the
king may, after the vacancy, lease the temporalties to the dean and
chapter; saving to himself all advowsons, escheats, and the like. Our
antient kings, and particularly William Rufus, were not only
remarkable for keeping the bishopricks a long time vacant, for the
sake of enjoying the temporalties, but also committed horrible waste
on the woods and other parts of the estate; and, to crown all, would
never, when the see was filled up, restore to the bishop his
temporalties again, unless he purchased them at an exorbitant price.
To remedy which, king Henry the first[c] granted a charter at the
beginning of his reign, promising neither to sell, nor let to farm,
nor take any thing from, the domains of the church, till the successor
was installed. And it was made one of the articles of the great
charter[d], that no waste should be committed in the temporalties of
bishopricks, neither should the custody of them be sold. The same is
ordained by the statute of Westminster the first[e]; and the statute
14 Edw. III. st. 4. c. 4. (which permits, as we have seen, a lease to
the dean and chapter) is still more explicit in prohibiting the other
exactions. It was also a frequent abuse, that the king would for
trifling, or no causes, seise the temporalties of bishops, even during
their lives, into his own hands: but this is guarded against by
statute 1 Edw. III. st. 2. c. 2.
[Footnote a: 2 Inst. 15.]
[Footnote b: Stat. 17 Edw. II. c. 14. F.N.B. 32.]
[Footnote c: Matth. Paris.]
[Footnote d: 9 Hen. III. c. 5.]
[Footnote e: 3 Edw. I. c. 21.]
THIS revenue of the king, which was formerly very considerable, is now
by a customary indulgence almost reduced to nothing: for, at present,
as soon as the new bishop is consecrated and confirmed, he usually
receives the restitution of his temporalties quite entire, and
untouched, from the king; and then, and not sooner, he has a fee
simple in his bishoprick, and may maintain an action for the same[f].
[Footnote f: Co. Litt. 67. 341.]
II. THE king is entitled to a corody, as the law calls it, out of
every bishoprick: that is, to send one of his chaplains to be
maintained by the bishop, or to have a pension allowed him till the
bishop promotes him to a benefice[g]. This is also in the nature of an
acknowlegement to the king, as founder of the see; since he had
formerly the same corody or pension from every abbey or priory of
royal foundation. It is, I apprehend, now fallen into total disuse;
though sir Matthew Hale says[h], that it is due of common right, and
that no prescription will discharge it.
[Footnote g: F.N.B. 230.]
[Footnote h: Notes on F.N.B. above cited.]
III. THE king also (as was formerly observed[i]) is entitled to all
the tithes arising in extraparochial places[k]: though perhaps it may
be doubted how far this article, as well as the last, can be properly
reckoned a part of the king's own royal revenue; since a corody
supports only his chaplains, and these extraparochial tithes are held
under an implied trust, that the king will distribute them for the
good of the clergy in general.
[Footnote i: page 110.]
[Footnote k: 2 Inst. 647.]
IV. THE next branch consists in the first-fruits, and tenths, of all
spiritual preferments in the kingdom; both of which I shall consider
together.
THESE were originally a part of the papal usurpations over the clergy
of this kingdom; first introduced by Pandulph the pope's legate,
during the reigns of king John and Henry the third, in the see of
Norwich; and afterwards attempted to be made universal by the popes
Clement V and John XXII, about the beginning of the fourteenth
century. The first-fruits, _primitiae_, or _annates_, were the first
year's whole profits of the spiritual preferment, according to a rate
or _valor_ made under the direction of pope Innocent IV by Walter
bishop of Norwich in 38 Hen. III, and afterwards advanced in value by
commission from pope Nicholas the third, _A.D._ 1292, 20 Edw. I[l];
which valuation of pope Nicholas is still preserved in the
exchequer[m]. The tenths, or _decimae_, were the tenth part of the
annual profit of each living by the same valuation; which was also
claimed by the holy see, under no better pretence than a strange
misapplication of that precept of the Levitical law, which directs[n],
"that the Levites should offer the tenth part of their tithe as a
heave-offering to the Lord, and give it to Aaron the _high_ priest."
But this claim of the pope met with vigorous resistance from the
English parliament; and a variety of acts were passed to prevent and
restrain it, particularly the statute 6 Hen. IV. c. 1. which calls it
a horrible mischief and damnable custom. But the popish clergy,
blindly devoted to the will of a foreign master, still kept it on
foot; sometimes more secretly, sometimes more openly and avowedly: so
that, in the reign of Henry VIII, it was computed, that in the compass
of fifty years 800000 ducats had been sent to Rome for first-fruits
only. And, as the clergy expressed this willingness to contribute so
much of their income to the head of the church, it was thought proper
(when in the same reign the papal power was abolished, and the king
was declared the head of the church of England) to annex this revenue
to the crown; which was done by statute 26 Hen. VIII. c. 3. (confirmed
by statute 1 Eliz. c. 4.) and a new _valor beneficiorum_ was then
made, by which the clergy are at present rated.
[Footnote l: F.N.B. 176.]
[Footnote m: 3 Inst. 154.]
[Footnote n: Numb. 18. 26.]
BY these lastmentioned statutes all vicarages under ten pounds a year,
and all rectories under ten marks, are discharged from the payment of
first-fruits: and if, in such livings as continue chargeable with this
payment, the incumbent lives but half a year, he shall pay only one
quarter of his first-fruits; if but one whole year, then half of them;
if a year and half, three quarters; and if two years, then the whole;
and not otherwise. Likewise by the statute 27 Hen. VIII. c. 8. no
tenths are to be paid for the first year, for then the first-fruits
are due: and by other statutes of queen Anne, in the fifth and sixth
years of her reign, if a benefice be under fifty pounds _per annum_
clear yearly value, it shall be discharged of the payment of
first-fruits and tenths.
THUS the richer clergy, being, by the criminal bigotry of their popish
predecessors, subjected at first to a foreign exaction, were
afterwards, when that yoke was shaken off, liable to a like
misapplication of their revenues, through the rapacious disposition of
the then reigning monarch: till at length the piety of queen Anne
restored to the church what had been thus indirectly taken from it.
This she did, not by remitting the tenths and first-fruits entirely;
but, in a spirit of the truest equity, by applying these superfluities
of the larger benefices to make up the deficiences of the smaller. And
to this end she granted her royal charter, which was confirmed by the
statute 2 Ann. c. 11. whereby all the revenue of first-fruits and
tenths is vested in trustees for ever, to form a perpetual fund for
the augmentation of poor livings. This is usually called queen Anne's
bounty; which has been still farther regulated by subsequent statutes,
too numerous here to recite.
V. THE next branch of the king's ordinary revenue (which, as well as
the subsequent branches, is of a lay or temporal nature) consists in
the rents and profits of the demesne lands of the crown. These demesne
lands, _terrae dominicales regis_, being either the share reserved to
the crown at the original distribution of landed property, or such as
came to it afterwards by forfeitures or other means, were antiently
very large and extensive; comprizing divers manors, honors, and
lordships; the tenants of which had very peculiar privileges, as will
be shewn in the second book of these commentaries, when we speak of
the tenure in antient demesne. At present they are contracted within a
very narrow compass, having been almost entirely granted away to
private subjects. This has occasioned the parliament frequently to
interpose; and, particularly, after king William III had greatly
impoverished the crown, an act passed[o], whereby all future grants or
leases from the crown for any longer term than thirty one years or
three lives are declared to be void; except with regard to houses,
which may be granted for fifty years. And no reversionary lease can be
made, so as to exceed, together with the estate in being, the same
term of three lives or thirty one years: that is, where there is a
subsisting lease, of which there are twenty years still to come, the
king cannot grant a future interest, to commence after the expiration
of the former, for any longer term than eleven years. The tenant must
also be made liable to be punished for committing waste; and the
usual rent must be reserved, or, where there has usually been no rent,
one third of the clear yearly value[p]. The misfortune is, that this
act was made too late, after almost every valuable possession of the
crown had been granted away for ever, or else upon very long leases;
but may be of benefit to posterity, when those leases come to expire.
[Footnote o: 1 Ann. st. 1. c. 7.]
[Footnote p: In like manner, by the civil law, the inheritances or
_fundi patrimoniales_ of the imperial crown could not be alienated,
but only let to farm. _Cod._ _l._ 11. _t._ 61.]
VI. HITHER might have been referred the advantages which were used to
arise to the king from the profits of his military tenures, to which
most lands in the kingdom were subject, till the statute 12 Car. II.
c. 24. which in great measure abolished them all: the explication of
the nature of which tenures, must be referred to the second book of
these commentaries. Hither also might have been referred the
profitable prerogative of purveyance and pre-emption: which was a
right enjoyed by the crown of buying up provisions and other
necessaries, by the intervention of the king's purveyors, for the use
of his royal houshold, at an appraised valuation, in preference to all
others, and even without consent of the owner; and also of forcibly
impressing the carriages and horses of the subject, to do the king's
business on the publick roads, in the conveyance of timber, baggage,
and the like, however inconvenient to the proprietor, upon paying him
a settled price. A prerogative, which prevailed pretty generally
throughout Europe, during the scarcity of gold and silver, and the
high valuation of money consequential thereupon. In those early times
the king's houshold (as well as those of inferior lords) were
supported by specific renders of corn, and other victuals, from the
tenants of the respective demesnes; and there was also a continual
market kept at the palace gate to furnish viands for the royal use[q].
And this answered all purposes, in those ages of simplicity, so long
as the king's court continued in any certain place. But when it
removed from one part of the kingdom to another (as was formerly very
frequently done) it was found necessary to send purveyors beforehand,
to get together a sufficient quantity of provisions and other
necessaries for the houshold: and, lest the unusual demand should
raise them to an exorbitant price, the powers beforementioned were
vested in these purveyors; who in process of time very greatly abused
their authority, and became a great oppression to the subject though
of little advantage to the crown; ready money in open market (when the
royal residence was more permanent, and specie began to be plenty)
being found upon experience to be the best proveditor of any.
Wherefore by degrees the powers of purveyance have declined, in
foreign countries as well as our own; and particularly were abolished
in Sweden by Gustavus Adolphus, toward the beginning of the last
century[r]. And, with us in England, having fallen into disuse during
the suspension of monarchy, king Charles at his restoration consented,
by the same statute, to resign intirely these branches of his revenue
and power, for the ease and convenience of his subjects: and the
parliament, in part of recompense, settled on him, his heirs, and
successors, for ever, the hereditary excise of fifteen pence _per_
barrel on all beer and ale sold in the kingdom, and a proportionable
sum for certain other liquors. So that this hereditary excise, the
nature of which shall be farther explained in the subsequent part of
this chapter, now forms the sixth branch of his majesty's ordinary
revenue.
[Footnote q: 4 Inst. 273.]
[Footnote r: Mod. Un. Hist. xxxiii. 220.]
VII. A SEVENTH branch might also be computed to have arisen from wine
licences; or the rents payable to the crown by such persons as are
licensed to sell wine by retale throughout England, except in a few
privileged places. These were first settled on the crown by the
statute 12 Car. II. c. 25. and, together with the hereditary excise,
made up the equivalent in value for the loss sustained by the
prerogative in the abolition of the military tenures, and the right of
pre-emption and purveyance: but this revenue was abolished by the
statute 30 Geo. II. c. 19. and an annual sum of upwards of £7000 _per
annum_, issuing out of the new stamp duties imposed on wine licences,
was settled on the crown in it's stead.
VIII. AN eighth branch of the king's ordinary revenue is usually
reckoned to consist in the profits arising from his forests. Forests
are waste grounds belonging to the king, replenished with all manner
of beasts of chase or venary; which are under the king's protection,
for the sake of his royal recreation and delight: and, to that end,
and for preservation of the king's game, there are particular laws,
privileges, courts and officers belonging to the king's forests; all
which will be, in their turns, explained in the subsequent books of
these commentaries. What we are now to consider are only the profits
arising to the king from hence; which consist principally in
amercements or fines levied for offences against the forest-laws. But
as few, if any courts of this kind for levying amercements have been
held since 1632, 8 Car. I. and as, from the accounts given of the
proceedings in that court by our histories and law books[s], nobody
would now wish to see them again revived, it is needless (at least in
this place) to pursue this enquiry any farther.
[Footnote s: 1 Jones. 267-298.]
IX. THE profits arising from the king's ordinary courts of justice
make a ninth branch of his revenue. And these consist not only in
fines imposed upon offenders, forfeitures of recognizances, and
amercements levied upon defaulters; but also in certain fees due to
the crown in a variety of legal matters, as, for setting the great
seal to charters, original writs, and other legal proceedings, and for
permitting fines to be levied of lands in order to bar entails, or
otherwise to insure their title. As none of these can be done without
the immediate intervention of the king, by himself or his officers,
the law allows him certain perquisites and profits, as a recompense
for the trouble he undertakes for the public. These, in process of
time, have been almost all granted out to private persons, or else
appropriated to certain particular uses: so that, though our
law-proceedings are still loaded with their payment, very little of
them is now returned into the king's exchequer; for a part of whose
royal maintenance they were originally intended. All future grants of
them however, by the statute 1 Ann. st. 2. c. 7. are to endure for no
longer time than the prince's life who grants them.
X. A TENTH branch of the king's ordinary revenue, said to be grounded
on the consideration of his guarding and protecting the seas from
pirates and robbers, is the right to _royal fish_, which are whale and
sturgeon: and these, when either thrown ashore, or caught near the
coasts, are the property of the king, on account[t] of their superior
excellence. Indeed our ancestors seem to have entertained a very high
notion of the importance of this right; it being the prerogative of
the kings of Denmark and the dukes of Normandy[u]; and from one of
these it was probably derived to our princes. It is expressly claimed
and allowed in the statute _de praerogativa regis_[w]: and the most
antient treatises of law now extant make mention of it[x]; though they
seem to have made a distinction between whale and sturgeon, as was
incidentally observed in a former chapter[y].
[Footnote t: Plowd. 315.]
[Footnote u: Stiernh. _de jure Sueonum._ _l._ 2. _c._ 8. _Gr.
Coustum._ _cap._ 17.]
[Footnote w: 17 Edw. II. c. 11.]
[Footnote x: Bracton. _l._ 3. _c._ 3. Britton. _c._ 17. Fleta. _l._ 1.
_c._ 45 & 46.]
[Footnote y: ch. 4. pag. 216.]
XI. ANOTHER maritime revenue, and founded partly upon the same reason,
is that of shipwrecks; which are also declared to be the king's
property by the same prerogative statute 17 Edw. II. c. 11. and were
so, long before, at the common law. It is worthy observation, how
greatly the law of wrecks has been altered, and the rigour of it
gradually softened, in favour of the distressed proprietors. Wreck, by
the antient common law, was where any ship was lost at sea, and the
goods or cargo were thrown upon the land; in which case these goods,
so wrecked, were adjudged to belong to the king: for it was held,
that, by the loss of the ship, all property was gone out of the
original owner[z]. But this was undoubtedly adding sorrow to sorrow,
and was consonant neither to reason nor humanity. Wherefore it was
first ordained by king Henry I, that if any person escaped alive out
of the ship it should be no wreck[a]; and afterwards king Henry II, by
his charter[b], declared, that if on the coasts of either England,
Poictou, Oleron, or Gascony, any ship should be distressed, and either
man or beast should escape or be found therein alive, the goods should
remain to the owners, if they claimed them within three months; but
otherwise should be esteemed a wreck, and should belong to the king,
or other lord of the franchise. This was again confirmed with
improvements by king Richard the first, who, in the second year of his
reign[c], not only established these concessions, by ordaining that
the owner, if he was shipwrecked and escaped, "_omnes res suas liberas
et quietas haberet_," but also, that, if he perished, his children, or
in default of them his brethren and sisters, should retain the
property; and, in default of brother or sister, then the goods should
remain to the king[d]. And the law, so long after as the reign of
Henry III, seems still to have been guided by the same equitable
provisions. For then if a dog (for instance) escaped, by which the
owner might be discovered, or if any certain mark were set on the
goods, by which they might be known again, it was held to be no
wreck[e]. And this is certainly most agreeable to reason; the rational
claim of the king being only founded upon this, that the true owner
cannot be ascertained. But afterwards, in the statute of Westminster
the first[f], the law is laid down more agreeable to the charter of
king Henry the second: and upon that statute hath stood the legal
doctrine of wrecks to the present time. It enacts, that if any live
thing escape (a man, a cat, or a dog; which, as in Bracton, are only
put for examples[g],) in this case, and, as it seems, in this case
only, it is clearly not a legal wreck: but the sheriff of the county
is bound to keep the goods a year and a day (as in France for one
year, agreeably to the maritime laws of Oleron[h], and in Holland for
a year and an half) that if any man can prove a property in them,
either in his own right or by right of representation[i], they shall
be restored to him without delay; but, if no such property be proved
within that time, they then shall be the king's. If the goods are of a
perishable nature, the sheriff may sell them, and the money shall be
liable in their stead[k]. This revenue of wrecks is frequently granted
out to lords of manors, as a royal franchise; and if any one be thus
entitled to wrecks in his own land, and the king's goods are wrecked
thereon, the king may claim them at any time, even after the year and
day[l].
[Footnote z: Dr & St. d. 2. c. 51.]
[Footnote a: Spelm. _Cod. apud_ Wilkins. 305.]
[Footnote b: 26 May, _A.D._ 1174. 1 Rym. _Foed._ 36.]
[Footnote c: Rog. Hoved. _in Ric. I_.]
[Footnote d: In like manner Constantine the great, finding that by the
imperial law the revenue of wrecks was given to the prince's treasury
or _fiscus_, restrained it by an edict (_Cod._ 11. 5. 1.) and ordered
them to remain to the owners; adding this humane expostulation, "_Quod
enim jus habet fiscus in aliena calamitate, ut de re tam luctuosa
compendium sectetur?_"]
[Footnote e: Bract. _l._ 3. _c._ 3.]
[Footnote f: 3 Edw. I. c. 4.]
[Footnote g: Flet. 1. _c._ 44. 2 Inst. 167.]
[Footnote h: §. 28.]
[Footnote i: 2 Inst. 168.]
[Footnote k: Plowd. 166.]
[Footnote l: 2 Inst. 168. Bro. Abr. _tit. Wreck_.]
IT is to be observed, that in order to constitute a legal _wreck_, the
goods must come to land. If they continue at sea, the law
distinguishes them by the barbarous and uncouth appellations of
_jetsam_, _flotsam_, and _ligan_. Jetsam is where goods are cast into
the sea, and there sink and remain under water: flotsam is where they
continue swimming on the surface of the waves: ligan is where they are
sunk in the sea, but tied to a cork or buoy, in order to be found
again[m]. These are also the king's, if no owner appears to claim
them; but, if any owner appears, he is entitled to recover the
possession. For even if they be cast overboard, without any mark or
buoy, in order to lighten the ship, the owner is not by this act of
necessity construed to have renounced his property[n]: much less can
things ligan be supposed to be abandoned, since the owner has done all
in his power, to assert and retain his property. These three are
therefore accounted so far a distinct thing from the former, that by
the king's grant to a man of wrecks, things jetsam, flotsam, and ligan
will not pass[o].
[Footnote m: 5 Rep. 106.]
[Footnote n: _Quae enim res in tempestate, levandae navis causa,
ejiciuntur, hac dominorum permanent. Quia palam est, eas non eo animo
ejici, quod quis habere nolit._ _Inst._ 2. 1. §. 48.]
[Footnote o: 5 Rep. 108.]
WRECKS, in their legal acceptation, are at present not very frequent:
it rarely happening that every living creature on board perishes; and
if any should survive, it is a very great chance, since the
improvement of commerce, navigation, and correspondence, but the owner
will be able to assert his property within the year and day limited by
law. And in order to preserve this property entire for him, and if
possible to prevent wrecks at all, our laws have made many very humane
regulations; in a spirit quite opposite to those savage laws, which
formerly prevailed in all the northern regions of Europe, and a few
years ago were still laid to subsist on the coasts of the Baltic sea,
permitting the inhabitants to seize on whatever they could get as
lawful prize; or, as an author of their own expresses it, "_in
naufragorum miseria et calamitate tanquam vultures ad praedam
currere_[p]." For by the statute 2 Edw. III. c. 13. if any ship be
lost on the shore, and the goods come to land (so as it be not legal
wreck) they shall be presently delivered to the merchants, they paying
only a reasonable reward to those that saved and preserved them, which
is intitled _salvage_. Also by the common law, if any persons (other
than the sheriff) take any goods so cast on shore, which are not legal
wreck, the owners might have a commission to enquire and find them
out, and compel them to make restitution[q]. And by statute 12 Ann.
st. 2. c. 18. confirmed by 4 Geo. I. c. 12. in order to assist the
distressed, and prevent the scandalous illegal practices on some of
our sea coasts, (too similar to those on the Baltic) it is enacted,
that all head-officers and others of towns near the sea shall, upon
application made to them, summon as many hands as are necessary, and
send them to the relief of any ship in distress, on forfeiture of
100_l._ and, in case of assistance given, salvage shall be paid by the
owners, to be assessed by three neighbouring justices. All persons
that secrete any goods shall forfeit their treble value: and if they
wilfully do any act whereby the ship is lost or destroyed, by making
holes in her, stealing her pumps, or otherwise, they are guilty of
felony, without benefit of clergy. Lastly, by the statute 26 Geo. II.
c. 19. plundering any vessel either in distress, or wrecked, and
whether any living creature be on board or not, (for, whether wreck or
otherwise, it is clearly not the property of the populace) such
plundering, I say, or preventing the escape of any person that
endeavors to save his life, or wounding him with intent to destroy
him, or putting out false lights in order to bring any vessel into
danger, are all declared to be capital felonies; in like manner as the
destroying trees, steeples, or other stated seamarks, is punished by
the statute 8 Eliz. c. 13. with a forfeiture of 200_l._ Moreover, by
the statute of George II, pilfering any goods cast ashore is declared
to be petty larceny; and many other salutary regulations are made, for
the more effectually preserving ships of any nation in distress[r].
[Footnote p: Stiernh. _de jure Sueon._ _l._ 3. _c._ 5.]
[Footnote q: F.N.B. 112.]
[Footnote r: By the civil law, to destroy persons shipwrecked, or
prevent their saving the ship, is capital. And to steal even a plank
from a vessel in distress, or wrecked, makes the party liable to
answer for the whole ship and cargo. (_Ff._ 47. 9. 3.) The laws also
of the Wisigoths, and the most early Neapolitan constitutions,
punished with the utmost severity all those who neglected to assist
any ship in distress, or plundered any goods cast on shore.
(Lindenbrog. _Cod. LL. antiq._ 146. 715.)]
XII. A TWELFTH branch of the royal revenue, the right to mines, has
it's original from the king's prerogative of coinage, in order to
supply him with materials: and therefore those mines, which are
properly royal, and to which the king is entitled when found, are only
those of silver and gold[s]. By the old common law, if gold or silver
be found in mines of base metal, according to the opinion of some the
whole was a royal mine, and belonged to the king; though others held
that it only did so, if the quantity of gold or silver was of greater
value than the quantity of base metal[t]. But now by the statutes 1 W.
& M. st. 1. c. 30. and 5 W. & M. c. 6. this difference is made
immaterial; it being enacted, that no mines of copper, tin, iron, or
lead, shall be looked upon as royal mines, notwithstanding gold or
silver may be extracted from them in any quantities: but that the
king, or persons claiming royal mines under his authority, may have
the ore, (other than tin-ore in the counties of Devon and Cornwall)
paying for the same a price stated in the act. This was an extremely
reasonable law: for now private owners are not discouraged from
working mines, through a fear that they may be claimed as royal ones;
neither does the king depart from the just rights of his revenue,
since he may have all the precious metal contained in the ore, paying
no more for it than the value of the base metal which it is supposed
to be; to which base metal the land-owner is by reason and law
entitled.
[Footnote s: 2 Inst. 577.]
[Footnote t: Plowd. 566.]
XIII. TO the same original may in part be referred the revenue of
treasure-trove (derived from the French word, _trover_, to find)
called in Latin _thesaurus inventus_, which is where any money or
coin, gold, silver, plate, or bullion, is found hidden _in_ the earth,
or other private place, the owner thereof being unknown; in which case
the treasure belongs to the king: but if he that hid it be known, or
afterwards found out, the owner and not the king is entitled to it[u].
Also if it be found in the sea, or _upon_ the earth, it doth not
belong to the king, but the finder, if no owner appears[w]. So that it
seems it is the _hiding_, not the _abandoning_ of it, that gives the
king a property: Bracton[x] defining it, in the words of the
civilians, to be "_vetus depositio pecuniae_." This difference clearly
arises from the different intentions, which the law implies in the
owner. A man, that hides his treasure in a secret place, evidently
does not mean to relinquish his property; but reserves a right of
claiming it again, when he sees occasion; and, if he dies and the
secret also dies with him, the law gives it the king, in part of his
royal revenue. But a man that scatters his treasure into the sea, or
upon the public surface of the earth, is construed to have absolutely
abandoned his property, and returned it into the common stock, without
any intention of reclaiming it; and therefore it belongs, as in a
state of nature, to the first occupant, or finder; unless the owner
appear and assert his right, which then proves that the loss was by
accident, and not with an intent to renounce his property.
[Footnote u: 3 Inst. 132. Dalt. Sheriffs. c. 16.]
[Footnote w: Britt. c. 17. Finch. L. 177.]
[Footnote x: _l._ 3. _c._ 3. §. 4.]
FORMERLY all treasure-trove belonged to the finder[y]; as was also the
rule of the civil law[z]. Afterwards it was judged expedient for the
purposes of the state, and particularly for the coinage, to allow part
of what was so found to the king; which part was assigned to be all
_hidden_ treasure; such as is _casually lost_ and unclaimed, and also
such as is _designedly abandoned_, still remaining the right of the
fortunate finder. And that the prince shall be entitled to this hidden
treasure is now grown to be, according to Grotius[a], "_jus commune,
et quasi gentium_:" for it is not only observed, he adds, in England,
but in Germany, France, Spain, and Denmark. The finding of deposited
treasure was much more frequent, and the treasures themselves more
considerable, in the infancy of our constitution than at present. When
the Romans, and other inhabitants of the respective countries which
composed their empire, were driven out by the northern nations, they
concealed their money under-ground; with a view of resorting to it
again when the heat of the irruption should be over, and the invaders
driven back to their desarts. But as this never happened, the
treasures were never claimed; and on the death of the owners the
secret also died along with them. The conquering generals, being aware
of the value of these hidden mines, made it highly penal to secrete
them from the public service. In England therefore, as among the
feudists[b], the punishment of such as concealed from the king the
finding of hidden treasure was formerly no less than death; but now it
is only fine and imprisonment[c].
[Footnote y: Bracton. _l._ 3. _c._ 3. 3 Inst. 133.]
[Footnote z: _Ff._ 41. 1. 31.]
[Footnote a: _de jur. b. & p._ _l._ 2. _c._ 8. §. 7.]
[Footnote b: Glanv. _l._ 1. _c._ 2. Crag. 1. 16. 40.]
[Footnote c: 3 Inst. 133.]
XIV. WAIFS, _bona waviata_, are goods stolen, and waived or thrown
away by the thief in his flight, for fear of being apprehended. These
are given to the king by the law, as a punishment upon the owner, for
not himself pursuing the felon, and taking away his goods from him[d].
And therefore if the party robbed do his diligence immediately to
follow and apprehend the thief (which is called making fresh _suit_)
or do convict him afterwards, or procure evidence to convict him, he
shall have his goods again[e]. Waived goods do also not belong to the
king, till seised by somebody for his use; for if the party robbed can
seise them first, though at the distance of twenty years, the king
shall never have them[f]. If the goods are hid by the thief, or left
any where by him, so that he had them not about him when he fled, and
therefore did not throw them away in his flight; these also are not
_bona waviata_, but the owner may have them again when he pleases[g].
The goods of a foreign merchant, though stolen and thrown away in
flight, shall never be waifs[h]: the reason whereof may be, not only
for the encouragement of trade, but also because there is no wilful
default in the foreign merchant's not pursuing the thief, he being
generally a stranger to our laws, our usages, and our language.
[Footnote d: Cro. Eliz. 694.]
[Footnote e: Finch. L. 212.]
[Footnote f: _Ibid._]
[Footnote g: 5 Rep. 109.]
[Footnote h: Fitzh. _Abr. tit. Estray._ 1. 3 Bulstr. 19.]
XV. ESTRAYS are such valuable animals as are found wandering in any
manor or lordship, and no man knoweth the owner of them; in which case
the law gives them to the king as the general owner and lord paramount
of the soil, in recompence for the damage which they may have done
therein; and they now most commonly belong to the lord of the manor,
by special grant from the crown. But in order to vest an absolute
property in the king or his grantees, they must be proclaimed in the
church and two market towns next adjoining to the place where they are
found; and then, if no man claims them, after proclamation and a year
and a day passed, they belong to the king or his substitute without
redemption[i]; even though the owner were a minor, or under any other
legal incapacity[k]. A provision similar to which obtained in the old
Gothic constitution, with regard to all things that were found, which
were to be thrice proclaimed, _primum coram comitibus et viatoribus
obviis, deinde in proxima villa vel pago, postremo coram ecclesia vel
judicio_: and the space of a year was allowed for the owner to reclaim
his property[l]. If the owner claims them within the year and day, he
must pay the charges of finding, keeping, and proclaiming them[m]. The
king or lord has no property till the year and day passed: for if a
lord keepeth an estray three quarters of a year, and within the year
it strayeth again, and another lord getteth it, the first lord cannot
take it again[n]. Any beast may be an estray, that is by nature tame
or reclaimable, and in which there is a valuable property, as sheep,
oxen, swine, and horses, which we in general call cattle; and so
Fleta[o] defines it, _pecus vagans, quod nullus petit, sequitur, vel
advocat_. For animals upon which the law sets no value, as a dog or
cat, and animals _ferae naturae_, as a bear or wolf, cannot be
considered as estrays. So swans may be estrays, but not any other
fowl[p]; whence they are said to be royal fowl. The reason of which
distinction seems to be, that, cattle and swans being of a reclaimed
nature, the owner's property in them is not lost merely by their
temporary escape; and they also, from their intrinsic value, are a
sufficient pledge for the expense of the lord of the franchise in
keeping them the year and day. For he that takes an estray is bound,
so long as he keeps it, to find it in provisions and keep it from
damage[q]; and may not use it by way of labour, but is liable to an
action for so doing[r]. Yet he may milk a cow, or the like, for that
tends to the preservation, and is for the benefit, of the animal[s].
[Footnote i: Mirr. c. 3. §. 19.]
[Footnote k: 5 Rep. 108. Bro. _Abr. tit. Estray._ Cro. Eliz. 716.]
[Footnote l: Stiernh. _de jur. Gothor._ _l._ 3. _c._ 5.]
[Footnote m: Dalt. Sh. 79.]
[Footnote n: Finch. L. 177.]
[Footnote o: _l._ 1. _c._ 43.]
[Footnote p: 7 Rep. 17.]
[Footnote q: 1 Roll. Abr. 889.]
[Footnote r: Cro. Jac. 147.]
[Footnote s: Cro. Jac. 148. Noy. 119.]
BESIDES the particular reasons before given why the king should have
the several revenues of royal fish, shipwrecks, treasure-trove, waifs,
and estrays, there is also one general reason which holds for them
all; and that is, because they are _bona vacantia_, or goods in which
no one else can claim a property. And therefore by the law of nature
they belonged to the first occupant or finder; and so continued under
the imperial law. But, in settling the modern constitutions of most of
the governments in Europe, it was thought proper (to prevent that
strife and contention, which the mere title of occupancy is apt to
create and continue, and to provide for the support of public
authority in a manner the least burthensome to individuals) that these
rights should be annexed to the supreme power by the positive laws of
the state. And so it came to pass that, as Bracton expresses it[t],
_haec, quae nullius in bonis sunt, et olim fuerunt inventoris de jure
naturali, jam efficiuntur principis de jure gentium_.
[Footnote t: _l._ 1. _c._ 12.]
XVI. THE next branch of the king's ordinary revenue consists in
forfeitures of lands and goods for offences; _bona confiscata_, as
they are called by the civilians, because they belonged to the
_fiscus_ or imperial treasury; or, as our lawyers term them,
_forisfacta_, that is, such whereof the property is gone away or
departed from the owner. The true reason and only substantial ground
of any forfeiture for crimes consist in this; that all property is
derived from society, being one of those civil rights which are
conferred upon individuals, in exchange for that degree of natural
freedom, which every man must sacrifice when he enters into social
communities. If therefore a member of any national community violates
the fundamental contract of his association, by transgressing the
municipal law, he forfeits his right to such privileges as he claims
by that contract; and the state may very justly resume that portion of
property, or any part of it, which the laws have before assigned him.
Hence, in every offence of an atrocious kind, the laws of England have
exacted a total confiscation of the moveables or personal estate; and
in many cases a perpetual, in others only a temporary, loss of the
offender's immoveables or landed property; and have vested them both
in the king, who is the person supposed to be offended, being the one
visible magistrate in whom the majesty of the public resides. The
particulars of these forfeitures will be more properly recited when we
treat of crimes and misdemesnors. I therefore only mention them here,
for the sake of regularity, as a part of the _census regalis_; and
shall postpone for the present the farther consideration of all
forfeitures, excepting one species only, which arises from the
misfortune rather than the crime of the owner, and is called a
_deodand_.
BY this is meant whatever personal chattel is the immediate occasion
of the death of any reasonable creature; which is forfeited to the
king, to be applied to pious uses, and distributed in alms by his high
almoner[u]; though formerly destined to a more superstitious purpose.
It seems to have been originally designed, in the blind days of
popery, as an expiation for the souls of such as were snatched away by
sudden death; and for that purpose ought properly to have been given
to holy church[w]; in the same manner, as the apparel of a stranger
who was found dead was applied to purchase masses for the good of his
soul. And this may account for that rule of law, that no deodand is
due where an infant under the years of discretion is killed by a fall
_from_ a cart, or horse, or the like, not being in motion[x]; whereas,
if an adult person falls from thence and is killed, the thing is
certainly forfeited. For the reason given by sir Matthew Hale seems to
be very inadequate, _viz._ because an infant is not able to take care
of himself: for why should the owner save his forfeiture, on account
of the imbecillity of the child, which ought rather to have made him
more cautious to prevent any accident of mischief? The true ground of
this rule seems rather to be, that the child, by reason of it's want
of discretion, is presumed incapable of actual sin, and therefore
needed no deodand to purchase propitiatory masses: but every adult,
who dies in actual sin, stood in need of such atonement, according to
the humane superstition of the founders of the English law.
[Footnote u: 1 Hal. P.C. 419. Fleta. _l._ 1. _c._ 25.]
[Footnote w: Fitzh. _Abr. tit. Enditement._ _pl._ 27. Staunf. P.C. 20,
21.]
[Footnote x: 3 Inst. 57. 1 Hal. P.C. 422.]
THUS stands the law, if a person be killed by a fall from a thing
standing still. But if a horse, or ox, or other animal, of his own
motion, kill as well an infant as an adult, or if a cart run over him,
they shall in either case be forfeited as deodands[y]; which is
grounded upon this additional reason, that such misfortunes are in
part owing to the negligence of the owner, and therefore he is
properly punished by such forfeiture. A like punishment is in like
cases inflicted by the mosaical law[z]: "if an ox gore a man that he
die, the ox shall be stoned, and his flesh shall not be eaten." And
among the Athenians[a], whatever was the cause of a man's death, by
falling upon him, was exterminated or cast out of the dominions of the
republic. Where a thing, not in motion, is the occasion of a man's
death, that part only which is the immediate cause is forfeited; as if
a man be climbing up a wheel, and is killed by falling from it, the
wheel alone is a deodand[b]: but, wherever the thing is in motion, not
only that part which immediately gives the wound, (as the wheel, which
runs over his body) but all things which move with it and help to make
the wound more dangerous (as the cart and loading, which increase the
pressure of the wheel) are forfeited[c]. It matters not whether the
owner were concerned in the killing or not; for if a man kills another
with my sword, the sword is forfeited[d] as an accursed thing[e]. And
therefore, in all indictments for homicide, the instrument of death
and the value are presented and found by the grand jury (as, that the
stroke was given with a certain penknife, value sixpence) that the
king or his grantee may claim the deodand: for it is no deodand,
unless it be presented as such by a jury of twelve men[f]. No deodands
are due for accidents happening upon the high sea, that being out of
the jurisdiction of the common law: but if a man falls from a boat or
ship in fresh water, and is drowned, the vessel and cargo are in
strictness a deodand[g].
[Footnote y: _Omnia, quae movent ad mortem, sunt Deo danda._ Bracton.
_l._ 3. _c._ 5.]
[Footnote z: Exod. 21. 28.]
[Footnote a: Aeschin. _contr. Ctesiph._]
[Footnote b: 1 Hal. P.C. 422.]
[Footnote c: 1 Hawk. P.C. c. 26.]
[Footnote d: A similar rule obtained among the antient Goths. _Si
quis, me nesciente, quocunque meo telo vel instrumento in perniciem
suam abutatur; vel ex aedibus meis cadat, vel incidat in puteum meum,
quantumvis tectum et munitum, vel in cataractam, et sub molendino meo
confringatur, ipse aliqua mulcta plectar; ut in parte infelicitatis
meae numeretur, habuisse vel aedificasse aliquod quo homo periret._
Stiernhook _de jure Goth._ _l._ 3. _c._ 4.]
[Footnote e: Dr & St. d. 2. c. 51.]
[Footnote f: 3 Inst. 57.]
[Footnote g: 3 Inst. 58. 1 Hal. P.C. 423. Molloy _de jur. maritim._ 2.
225.]
DEODANDS, and forfeitures in general, as well as wrecks, treasure
trove, royal fish, mines, waifs, and estrays, may be granted by the
king to particular subjects, as a royal franchise: and indeed they are
for the most part granted out to the lords of manors, or other
liberties; to the perversion of their original design.
XVII. ANOTHER branch of the king's ordinary revenue arises from
escheats of lands, which happen upon the defect of heirs to succeed to
the inheritance; whereupon they in general revert to and vest in the
king, who is esteemed, in the eye of the law, the original proprietor
of all the lands in the kingdom. But the discussion of this topic more
properly belongs to the second book of these commentaries, wherein we
shall particularly consider the manner in which lands may be acquired
or lost by escheat.
XVIII. I PROCEED therefore to the eighteenth and last branch of the
king's ordinary revenue; which consists in the custody of idiots, from
whence we shall be naturally led to consider also the custody of
lunatics.
AN idiot, or natural fool, is one that hath had no understanding from
his nativity; and therefore is by law presumed never likely to attain
any. For which reason the custody of him and of his lands was formerly
vested in the lord of the fee[h]; (and therefore still, by special
custom, in some manors the lord shall have the ordering of idiot and
lunatic copyholders[i]) but, by reason of the manifold abuses of this
power by subjects, it was at last provided by common consent, that it
should be given to the king, as the general conservator of his people,
in order to prevent the idiot from wasting his estate, and reducing
himself and his heirs to poverty and distress[k]: This fiscal
prerogative of the king is declared in parliament by statute 17 Edw.
II. c. 9. which directs (in affirmance of the common law[l],) that the
king shall have ward of the lands of natural fools, taking the profits
without waste or destruction, and shall find them necessaries; and
after the death of such idiots he shall render the estate to the
heirs; in order to prevent such idiots from aliening their lands, and
their heirs from being disherited.
[Footnote h: Flet. _l._ 1. _c._ 11. §. 10.]
[Footnote i: Dyer. 302. Hutt. 17. Noy 27.]
[Footnote k: F.N.B. 232.]
[Footnote l: 4 Rep. 126.]
BY the old common law there is a writ _de idiota inquirendo_, to
enquire whether a man be an idiot or not[m]: which must be tried by a
jury of twelve men; and if they find him _purus idiota_, the profits
of his lands, and the custody of his person may be granted by the king
to some subject, who has interest enough to obtain them[n]. This
branch of the revenue hath been long considered as a hardship upon
private families; and so long ago as in the 8 Jac. I. it was under the
consideration of parliament, to vest this custody in the relations of
the party, and to settle an equivalent on the crown in lieu of it; it
being then proposed to share the same fate with the slavery of the
feodal tenures, which has been since abolished[o]. Yet few instances
can be given of the oppressive exertion of it, since it seldom happens
that a jury finds a man an idiot _a nativitate_, but only _non compos
mentis_ from some particular time; which has an operation very
different in point of law.
[Footnote m: F.N.B. 232.]
[Footnote n: This power, though of late very rarely exerted, is still
alluded to in common speech, by that usual expression of _begging_ a
man for a fool.]
[Footnote o: 4. Inst. 203. Com. Journ. 1610.]
A MAN is not an idiot[p], if he hath any glimmering of reason, so that
he can tell his parents, his age, or the like common matters. But a
man who is born deaf, dumb, and blind, is looked upon by the law as in
the same state with an idiot[q]; he being supposed incapable of
understanding, as wanting those senses which furnish the human mind
with ideas.
[Footnote p: F.N.B. 233.]
[Footnote q: Co. Litt. 42. Fleta. _l._ 6. _c._ 40.]
A LUNATIC, or _non compos mentis_, is one who hath had understanding,
but by disease, grief, or other accident hath lost the use of his
reason. A lunatic is indeed properly one that hath lucid intervals;
sometimes enjoying his senses, and sometimes not, and that frequently
depending upon the change of the moon. But under the general name of
_non compos mentis_ (which sir Edward Coke says is the most legal
name[r]) are comprized not only lunatics, but persons under frenzies;
or who lose their intellects by disease; those that _grow_ deaf, dumb,
and blind, not being _born_ so; or such, in short, as are by any means
rendered incapable of conducting their own affairs. To these also, as
well as idiots, the king is guardian, but to a very different purpose.
For the law always imagines, that these accidental misfortunes may be
removed; and therefore only constitutes the crown a trustee for the
unfortunate persons, to protect their property, and to account to them
for all profits received, if they recover, or after their decease to
their representatives. And therefore it is declared by the statute 17
Edw. II. c. 10. that the king shall provide for the custody and
sustentation of lunatics, and preserve their lands and the profits of
them, for their use, when they come to their right mind: and the king
shall take nothing to his own use; and if the parties die in such
estate, the residue shall be distributed for their souls by the advice
of the ordinary, and of course (by the subsequent amendments of the
law of administrations) shall now go to their executors or
administrators.
[Footnote r: 1 Inst. 246.]
THE method of proving a person _non compos_ is very similar to that of
proving him an idiot. The lord chancellor, to whom, by special
authority from the king, the custody of idiots and lunatics is
intrusted[s], upon petition or information, grants a commission in
nature of the writ _de idiota inquirendo_, to enquire into the party's
state of mind; and if he be found _non compos_, he usually commits the
care of his person, with a suitable allowance for his maintenance, to
some friend, who is then called his committee. However, to prevent
sinister practices, the next heir is never permitted to be this
committee of the person; because it is his interest that the party
should die. But, it hath been said, there lies not the same objection
against his next of kin, provided he be not his heir; for it is his
interest to preserve the lunatic's life, in order to increase the
personal estate by savings, which he or his family may hereafter be
entitled to enjoy[t]. The heir is generally made the manager or
committee of the estate, it being clearly his interest by good
management to keep it in condition; accountable however to the court
of chancery, and to the _non compos_ himself, if he recovers; or
otherwise, to his administrators.
[Footnote s: 3 P. Wms. 108.]
[Footnote t: 2 P. Wms. 638.]
IN this care of idiots and lunatics the civil law agrees with ours; by
assigning them tutors to protect their persons, and curators to manage
their estates. But in another instance the Roman law goes much beyond
the English. For, if a man by notorious prodigality was in danger of
wasting his estate, he was looked upon as _non compos_ and committed
to the care of curators or tutors by the praetor[u]. And by the laws
of Solon such prodigals were branded with perpetual infamy[w]. But
with us, when a man on an inquest of idiocy hath been returned an
_unthrift_ and not an _idiot_[x], no farther proceedings have been
had. And the propriety of the practice itself seems to be very
questionable. It was doubtless an excellent method of benefiting the
individual and of preserving estates in families; but it hardly seems
calculated for the genius of a free nation, who claim and exercise the
liberty of using their own property as they please. "_Sic utere tuo,
ut alienum non laedas_," is the only restriction our laws have given
with regard to oeconomical prudence. And the frequent circulation and
transfer of lands and other property, which cannot be effected
without extravagance somewhere, are perhaps not a little conducive
towards keeping our mixed constitution in it's due health and vigour.
[Footnote u: _Solent praetores, si talem hominem invenerint, qui neque
tempus neque finem expensarum habet, sed bona sua dilacerando et
dissipando profundit, curatorem ei dare, exemplo furiosi: et tamdiu
erunt ambo in curatione, quamdiu vel furiosus sanitatem, vel ille
bonos mores, receperit._ _Ff._ 27. 10. 1.]
[Footnote w: Potter. Antiqu. b. 1. c. 26.]
[Footnote x: Bro. _Abr. tit. Ideot._ 4.]
THIS may suffice for a short view of the king's _ordinary_ revenue, or
the proper patrimony of the crown; which was very large formerly, and
capable of being increased to a magnitude truly formidable: for there
are very few estates in the kingdom, that have not, at some period or
other since the Norman conquest, been vested in the hands of the king
by forfeiture, escheat, or otherwise. But, fortunately for the liberty
of the subject, this hereditary landed revenue, by a series of
improvident management, is sunk almost to nothing; and the casual
profits, arising from the other branches of the _census regalis_, are
likewise almost all of them alienated from the crown. In order to
supply the deficiences of which, we are now obliged to have recourse
to new methods of raising money, unknown to our early ancestors; which
methods constitute the king's _extraordinary_ revenue. For, the
publick patrimony being got into the hands of private subjects, it is
but reasonable that private contributions should supply the public
service. Which, though it may perhaps fall harder upon some
individuals, whose ancestors have had no share in the general plunder,
than upon others, yet, taking the nation throughout, it amounts to
nearly the same; provided the gain by the extraordinary, should appear
to be no greater than the loss by the ordinary, revenue. And perhaps,
if every gentleman in the kingdom was to be stripped of such of his
lands as were formerly the property of the crown; was to be again
subject to the inconveniences of purveyance and pre-emption, the
oppression of forest laws, and the slavery of feodal tenures; and was
to resign into the king's hands all his royal franchises of waifs,
wrecks, estrays, treasure-trove, mines, deodands, forfeitures, and the
like; he would find himself a greater loser, than by paying his
_quota_ to such taxes, as are necessary to the support of government.
The thing therefore to be wished and aimed at in a land of liberty, is
by no means the total abolition of taxes, which would draw after it
very pernicious consequences, and the very supposition of which is the
height of political absurdity. For as the true idea of government and
magistracy will be found to consist in this, that some few men are
deputed by many others to preside over public affairs, so that
individuals may the better be enabled to attend to their private
concerns; it is necessary that those individuals should be bound to
contribute a portion of their private gains, in order to support that
government, and reward that magistracy, which protects them in the
enjoyment of their respective properties. But the things to be aimed
at are wisdom and moderation, not only in granting, but also in the
method of raising, the necessary supplies; by contriving to do both in
such a manner as may be most conducive to the national welfare and at
the same time most consistent with oeconomy and the liberty of the
subject; who, when properly taxed, contributes only, as was before
observed[y], some part of his property, in order to enjoy the rest.
[Footnote y: pag. 271.]
THESE extraordinary grants are usually called by the synonymous names
of aids, subsidies, and supplies; and are granted, we have formerly
seen[z], by the commons of Great Britain, in parliament assembled:
who, when they have voted a supply to his majesty, and settled the
_quantum_ of that supply, usually resolve themselves into what is
called a committee of ways and means, to consider of the ways and
means of raising the supply so voted. And in this committee every
member (though it is looked upon as the peculiar province of the
chancellor of the exchequer) may propose such scheme of taxation as he
thinks will be least detrimental to the public. The resolutions of
this committee (when approved by a vote of the house) are in general
esteemed to be (as it were) final and conclusive. For, through
[Transcriber's Note: though] the supply cannot be actually raised upon
the subject till directed by an act of the whole parliament, yet no
monied man will scruple to advance to the government any quantity of
ready cash, on the credit of a bare vote of the house of commons,
though no law be yet passed to establish it.
[Footnote z: pag. 163.]
THE taxes, which are raised upon the subject, are either annual or
perpetual. The usual annual taxes are those upon land and malt.
I. THE land tax, in it's modern shape, has superseded all the former
methods of rating either property, or persons in respect of their
property, whether by tenths or fifteenths, subsidies on land, hydages,
scutages, or talliages; a short explication of which will greatly
assist us in understanding our antient laws and history.
TENTHS, and fifteenths[a], were temporary aids issuing out of personal
property, and granted to the king by parliament. They were formerly
the real tenth or fifteenth part of all the moveables belonging to the
subject; when such moveables, or personal estates, were a very
different and a much less considerable thing than what they usually
are at this day. Tenths are said to have been first granted under
Henry the second, who took advantage of the fashionable zeal for
croisades to introduce this new taxation, in order to defray the
expense of a pious expedition to Palestine, which he really or
seemingly had projected against Saladine emperor of the Saracens;
whence it was originally denominated the Saladine tenth[b]. But
afterwards fifteenths were more usually granted than tenths.
Originally the amount of these taxes was uncertain, being levied by
assessments new made at every fresh grant of the commons, a commission
for which is preserved by Matthew Paris[c]: but it was at length
reduced to a certainty in the eighth of Edw. III. when, by virtue of
the king's commission, new taxations were made of every township,
borough, and city in the kingdom, and recorded in the exchequer; which
rate was, at the time, the fifteenth part of the value of every
township, the whole amounting to about 29000_l._ and therefore it
still kept up the name of a fifteenth, when, by the alteration of the
value of money and the encrease of personal property, things came to
be in a very different situation. So that when, of later years, the
commons granted the king a fifteenth, every parish in England
immediately knew their proportion of it; that is, the same identical
sum that was assessed by the same aid in the eighth of Edw. III; and
then raised it by a rate among themselves, and returned it into the
royal exchequer.
[Footnote a: 2 Inst. 77. 4 Inst. 34.]
[Footnote b: Hoved. _A.D._ 1188. Carte. 1. 719. Hume. 1. 329.]
[Footnote c: _A.D._ 1232.]
THE other antient levies were in the nature of a modern land tax; for
we may trace up the original of that charge as high as to the
introduction of our military tenures[d]; when every tenant of a
knight's fee was bound, if called upon, to attend the king in his army
for forty days in every year. But this personal attendance growing
troublesome in many respects, the tenants found means of compounding
for it, by first sending others in their stead, and in process of time
by making a pecuniary satisfaction to the crown in lieu of it. This
pecuniary satisfaction at last came to be levied by assessments, at so
much for every knight's fee, under the name of scutages; which appear
to have been levied for the first time in the fifth year of Henry the
second, on account of his expedition to Toulouse, and were then (I
apprehend) mere arbitrary compositions, as the king and the subject
could agree. But this precedent being afterwards abused into a means
of oppression, (by levying scutages on the landholders by the royal
authority only, whenever our kings went to war, in order to hire
mercenary troops and pay their contingent expences) it became
thereupon a matter of national complaint; and king John was obliged to
promise in his _magna carta_[e], that no scutage should be imposed
without the consent of the common council of the realm. This clause
was indeed omitted in the charters of Henry III, where[f] we only find
it stipulated, that scutages should be taken as they were used to be
in the time of king Henry the second. Yet afterwards, by a variety of
statutes under Edward I and his grandson[g], it was provided, that
the king shall not take any aids or tasks, any talliage or tax, but by
the common assent of the great men and commons in parliament.
[Footnote d: See the second book of these commentaries.]
[Footnote e: _cap._ 14.]
[Footnote f: 9 Hen. III. c. 37.]
[Footnote g: 25 Edw. I. c. 5 & 6. 34 Edw. I. st. 4. c. 1. 14 Edw. III.
st. 2. c. 1.]
OF the same nature with scutages upon knights-fees were the
assessments of hydage upon all other lands, and of talliage upon
cities and burghs[h]. But they all gradually fell into disuse, upon
the introduction of subsidies, about the time of king Richard II and
king Henry IV. These were a tax, not immediately imposed upon
property, but upon persons in respect of their reputed estates, after
the nominal rate of 4_s._ in the pound for lands, and 2_s._ 6_d._ for
goods; and for those of aliens in a double proportion. But this
assessment was also made according to an antient valuation; wherein
the computation was so very moderate, and the rental of the kingdom
was supposed to be so exceeding low, that one subsidy of this sort did
not, according to sir Edward Coke[i], amount to more than 70000_l._
whereas a modern land tax at the same rate produces two millions. It
was antiently the rule never to grant more than one subsidy, and two
fifteenths at a time; but this rule was broke through for the first
time on a very pressing occasion, the Spanish invasion in 1588; when
the parliament gave queen Elizabeth two subsidies and four fifteenths.
Afterwards, as money sunk in value, more subsidies were given; and we
have an instance in the first parliament of 1640, of the king's
desiring twelve subsidies of the commons, to be levied in three years;
which was looked upon as a startling proposal: though lord Clarendon
tells us[k], that the speaker, serjeant Glanvile, made it manifest to
the house, how very inconsiderable a sum twelve subsidies amounted to,
by telling them he had computed what he was to pay for them; and, when
he named the sum, he being known to be possessed of a great estate, it
seemed not worth any farther deliberation. And indeed, upon
calculation, we shall find, that the total amount of these twelve
subsidies, to be raised in three years, is less than what is now
raised in one year, by a land tax of two shillings in the pound.
[Footnote h: Madox. hist. exch. 480.]
[Footnote i: 4 Inst. 33.]
[Footnote k: Hist. b. 2.]
THE grant of scutages, talliages, or subsidies by the commons did not
extend to spiritual preferments; those being usually taxed at the same
time by the clergy themselves in convocation; which grants of the
clergy were confirmed in parliament, otherwise they were illegal, and
not binding; as the same noble writer observes of the subsidies
granted by the convocation, who continued sitting after the
dissolution of the first parliament in 1640. A subsidy granted by the
clergy was after the rate of 4_s._ in the pound according to the
valuation of their livings in the king's books; and amounted, sir
Edward Coke tells us[l], to about 20000_l._ While this custom
continued, convocations were wont to sit as frequently as parliaments:
but the last subsidies, thus given by the clergy, were those confirmed
by statute 15 Car. II. cap. 10. since which another method of taxation
has generally prevailed, which takes in the clergy as well as the
laity; in recompense for which the beneficed clergy have from that
period been allowed to vote at the elections of knights of the
shire[m]; and thenceforward also the practice of giving ecclesiastical
subsidies hath fallen into total disuse.
[Footnote l: 4 Inst 33.]
[Footnote m: Dalt. of sheriffs, 418. Gilb. hist. of exch. c. 4.]
THE lay subsidy was usually raised by commissioners appointed by the
crown, or the great officers of state: and therefore in the beginning
of the civil wars between Charles I and his parliament, the latter,
having no other sufficient revenue to support themselves and their
measures, introduced the practice of laying weekly and monthly
assessments[n] of a specific sum upon the several counties of the
kingdom; to be levied by a pound rate on lands and personal estates:
which were occasionally continued during the whole usurpation,
sometimes at the rate of 120000_l._ a month; sometimes at inferior
rates[o]. After the restoration the antient method of granting
subsidies, instead of such monthly assessments, was twice, and twice
only, renewed; viz. in 1663, when four subsidies were granted by the
temporalty, and four by the clergy; and in 1670, when 800000_l._ was
raised by way of subsidy, which was the last time of raising supplies
in that manner. For, the monthly assessments being now established by
custom, being raised by commissioners named by parliament, and
producing a more certain revenue; from that time forwards we hear no
more of subsidies; but occasional assessments were granted as the
national emergencies required. These periodical assessments, the
subsidies which preceded them, and the more antient scutage, hydage,
and talliage, were to all intents and purposes a land tax; and the
assessments were sometimes expressly called so[p]. Yet a popular
opinion has prevailed, that the land tax was first introduced in the
reign of king William III; because in the year 1692 a new assessment
or valuation of estates was made throughout the kingdom; which, though
by no means a perfect one, had this effect, that a supply of
500000_l._ was equal to 1_s._ in the pound of the value of the estates
given in. And, according to this enhanced valuation, from the year
1693 to the present, a period of above seventy years, the land tax has
continued an annual charge upon the subject; above half the time at
4_s._ in the pound, sometimes at 3_s_, sometimes at 2_s_, twice[q] at
1_s_, but without any total intermission. The medium has been 3_s._
3_d._ in the pound, being equivalent to twenty three antient
subsidies, and amounting annually to more than a million and an half
of money. The method of raising it is by charging a particular sum
upon each county, according to the valuation given in, _A.D._ 1692:
and this sum is assessed and raised upon individuals (their personal
estates, as well as real, being liable thereto) by commissioners
appointed in the act, being the principal landholders of the county,
and their officers.
[Footnote n: 29 Nov. 4 Mar. 1642.]
[Footnote o: One of these bills of assessment, in 1656, is preserved
in Scobell's collection, 400.]
[Footnote p: Com. Journ. 26 Jun. 9 Dec. 1678.]
[Footnote q: in the years 1732 and 1733.]
II. THE other annual tax is the malt tax; which is a sum of 750000_l_,
raised every year by parliament, ever since 1697, by a duty of 6_d._
in the bushel on malt, and a proportionable sum on certain liquors,
such as cyder and perry, which might otherwise prevent the consumption
of malt. This is under the management of the commissioners of the
excise; and is indeed itself no other than an annual excise, the
nature of which species of taxation I shall presently explain: only
premising at present, that in the year 1760 an additional perpetual
excise of 3_d._ _per_ bushel was laid upon malt; and in 1763 a
proportionable excise was laid upon cyder and perry.
THE perpetual taxes are,
I. THE customs; or the duties, toll, tribute, or tariff, payable upon
merchandize exported and imported. The considerations upon which this
revenue (or the more antient part of it, which arose only from
exports) was invested in the king, were said to be two[r]; 1. Because
he gave the subject leave to depart the kingdom, and to carry his
goods along with him. 2. Because the king was bound of common right to
maintain and keep up the ports and havens, and to protect the merchant
from pirates. Some have imagined they are called with us customs,
because they were the inheritance of the king by immemorial usage and
the common law, and not granted him by any statute[s]: but sir Edward
Coke hath clearly shewn[t], that the king's first claim to them was by
grant of parliament 3 Edw. I. though the record thereof is not now
extant. And indeed this is in express words confessed by statute 25
Edw. I. c. 7. wherein the king promises to take no customs from
merchants, without the common assent of the realm, "saving to us and
our heirs, the customs on wools, skins, and leather, formerly granted
to us by the commonalty aforesaid." These were formerly called the
hereditary customs of the crown; and were due on the exportation only
of the said three commodities, and of none other: which were stiled
the _staple_ commodities of the kingdom, because they were obliged to
be brought to those ports where the king's staple was established, in
order to be there first rated, and then exported[u]. They were
denominated in the barbarous Latin of our antient records,
_custuma_[w]; not _consuetudines_, which is the language of our law
whenever it means merely usages. The duties on wool, sheep-skins, or
woolfells, and leather, exported, were called _custuma antiqua sive
magna_; and were payable by every merchant, as well native as
stranger; with this difference, that merchant-strangers paid an
additional toll, _viz._ half as much again as was paid by natives. The
_custuma parva et nova_ were an impost of 3_d._ in the pound, due from
merchant-strangers only, for all commodities as well imported as
exported; which was usually called the alien's duty, and was first
granted in 31 Edw. I[x]. But these antient hereditary customs,
especially those on wool and woolfells, came to be of little account
when the nation became sensible of the advantages of a home
manufacture, and prohibited the exportation of wool by statute 11 Edw.
III. c. 1.
[Footnote r: Dyer. 165.]
[Footnote s: Dyer. 43. _pl._ 24.]
[Footnote t: 2 Inst. 58, 59.]
[Footnote u: Dav. 9.]
[Footnote w: This appellation seems to be derived from the French word
_coustum_, or _coûtum_, which signifies toll or tribute, and owes it's
own etymology to the word _coust_, which signifies price, charge, or,
as we have adopted it in English, _cost_.]
[Footnote x: 4 Inst. 29.]
THERE is also another antient hereditary duty belonging to the crown,
called the _prisage_ or _butlerage_ of wines. Prisage was a right of
_taking_ two tons of wine from every ship importing into England
twenty tons or more; which by Edward I was exchanged into a duty of
2_s._ for every ton imported by merchant-strangers; which is called
butlerage, because paid to the king's butler[y].
[Footnote y: Dav. 8. _b._ 2 Bulstr. 254.]
OTHER customs payable upon exports and imports are distinguished into
subsidies, tonnage, poundage, and other imposts. Subsidies are such as
were imposed by parliament upon any of the staple commodities before
mentioned, over and above the _custuma antiqua et magna_: tonnage was
a duty upon all wines imported, over and above the prisage and
butlerage aforesaid: poundage was a duty imposed _ad valorem_, at the
rate of 12_d._ in the pound, on all other merchandize whatsoever: and
the other imports were such as were occasionally laid on by
parliament, as circumstances and times required[z]. These distinctions
are now in a manner forgotten, except by the officers immediately
concerned in this department; their produce being in effect all
blended together, under the one denomination of the customs.
[Footnote z: Dav. 11, 12.]
BY these we understand, at present, a duty or subsidy paid by the
merchant, at the quay, upon all imported as well as exported
commodities, by authority of parliament; unless where, for particular
national reasons, certain rewards, bounties, or drawbacks, are allowed
for particular exports or imports. Those of tonnage and poundage, in
particular, were at first granted, as the old statutes, and
particularly 1 Eliz. c. 19. express it, for the defence of the realm,
and the keeping and safeguard of the seas, and for the intercourse of
merchandize safely to come into and pass out of the same. They were at
first usually granted only for a stated term of years, as, for two
years in 5 Ric. II[a]; but in Henry the fifth's time, they were
granted him for life by a statute in the third year of his reign; and
again to Edward IV for the term of his life also: since which time
they were regularly granted to all his successors, for life, sometimes
at their first, sometimes at other subsequent parliaments, till the
reign of Charles the first; when, as had before happened in the reign
of Henry VIII[b] and other princes, they were neglected to be asked.
And yet they were imprudently and unconstitutionally levied and taken
without consent of parliament, (though more than one had been
assembled) for fifteen years together; which was one of the causes of
those unhappy discontents, justifiable at first in too many instances,
but which degenerated at last into causeless rebellion and murder.
For, as in every other, so in this particular case, the king (previous
to the commencement of hostilities) gave the nation ample satisfaction
for the errors of his former conduct, by passing an act[c], whereby he
renounced all power in the crown of levying the duty of tonnage and
poundage, without the express consent of parliament; and also all
power of imposition upon any merchandizes whatever. Upon the
restoration this duty was granted to king Charles the second for life,
and so it was to his two immediate successors; but now by three
several statutes, 9 Ann. c. 6. 1 Geo. I. c. 12. and 3 Geo. I. c. 7. it
is made perpetual and mortgaged for the debt of the publick. The
customs, thus imposed by parliament, are chiefly contained in two
books of rates, set forth by parliamentary authority[d]; one signed by
sir Harbottle Grimston, speaker of the house of commons in Charles the
second's time; and the other an additional one signed by sir Spenser
Compton, speaker in the reign of George the first; to which also
subsequent additions have been made. Aliens pay a larger proportion
than natural subjects, which is what is now generally understood by
the aliens' duty; to be exempted from which is one principal cause of
the frequent applications to parliament for acts of naturalization.
[Footnote a: Dav. 12.]
[Footnote b: Stat. 6 Hen. VIII. c. 14.]
[Footnote c: 16 Car. I. c. 8.]
[Footnote d: Stat. 12 Car. II. c. 4. 11 Geo. I. c. 7.]
THESE customs are then, we see, a tax immediately paid by the
merchant, although ultimately by the consumer. And yet these are the
duties felt least by the people; and, if prudently managed, the people
hardly consider that they pay them at all. For the merchant is easy,
being sensible he does not pay them for himself; and the consumer, who
really pays them, confounds them with the price of the commodity: in
the same manner as Tacitus observes, that the emperor Nero gained the
reputation of abolishing the tax on the sale of slaves, though he only
transferred it from the buyer to the seller; so that it was, as he
expresses it, "_remissum magis specie, quam vi: quia cum venditor
pendere juberetur, in partem pretii emptoribus accrescebat_[e]." But
this inconvenience attends it on the other hand, that these imposts,
if too heavy, are a check and cramp upon trade; and especially when
the value of the commodity bears little or no proportion to the
quantity of the duty imposed. This in consequence gives rise also to
smuggling, which then becomes a very lucrative employment: and it's
natural and most reasonable punishment, _viz._ confiscation of the
commodity, is in such cases quite ineffectual; the intrinsic value of
the goods, which is all that the smuggler has paid, and therefore all
that he can lose, being very inconsiderable when compared with his
prospect of advantage in evading the duty. Recourse must therefore be
had to extraordinary punishments to prevent it; perhaps even to
capital ones: which destroys all proportion of punishment[f], and puts
murderers upon an equal footing with such as are really guilty of no
natural, but merely a positive offence.
[Footnote e: Hist. l. 13.]
[Footnote f: Montesqu. Sp. L. b. 13. c. 8.]
THERE is also another ill consequence attending high imports on
merchandize, not frequently considered, but indisputably certain; that
the earlier any tax is laid on a commodity, the heavier it falls upon
the consumer in the end: for every trader, through whose hands it
passes, must have a profit, not only upon the raw material and his own
labour and time in preparing it, but also upon the very tax itself,
which he advances to the government; otherwise he loses the use and
interest of the money which he so advances. To instance in the article
of foreign paper. The merchant pays a duty upon importation, which he
does not receive again till he sells the commodity, perhaps at the end
of three months. He is therefore equally entitled to a profit upon
that duty which he pays at the customhouse, as to a profit upon the
original price which he pays to the manufacturer abroad; and considers
it accordingly in the price he demands of the stationer. When the
stationer sells it again, he requires a profit of the printer or
bookseller upon the whole sum advanced by him to the merchant: and the
bookseller does not forget to charge the full proportion to the
student or ultimate consumer; who therefore does not only pay the
original duty, but the profits of these three intermediate traders,
who have successively advanced it for him. This might be carried much
farther in any mechanical, or more complicated, branch of trade.
II. DIRECTLY opposite in it's nature to this is the excise duty; which
is an inland imposition, paid sometimes upon the consumption of the
commodity, or frequently upon the retail sale, which is the last stage
before the consumption. This is doubtless, impartially speaking, the
most oeconomical way of taxing the subject: the charges of levying,
collecting, and managing the excise duties being considerably less in
proportion, than in any other branch of the revenue. It also renders
the commodity cheaper to the consumer, than charging it with customs
to the same amount would do; for the reason just now given, because
generally paid in a much later stage of it. But, at the same time, the
rigour and arbitrary proceedings of excise-laws seem hardly compatible
with the temper of a free nation. For the frauds that might be
committed in this branch of the revenue, unless a strict watch is
kept, make it necessary, wherever it is established, to give the
officers a power of entring and searching the houses of such as deal
in excisable commodities, at any hour of the day, and, in many cases,
of the night likewise. And the proceedings in case of transgressions
are so summary and sudden, that a man may be convicted in two days
time in the penalty of many thousand pounds by two commissioners or
justices of the peace; to the total exclusion of the trial by jury,
and disregard of the common law. For which reason, though lord
Clarendon tells us[g], that to his knowlege the earl of Bedford (who
was made lord treasurer by king Charles the first, to oblige his
parliament) intended to have set up the excise in England, yet it
never made a part of that unfortunate prince's revenue; being first
introduced, on the model of the Dutch prototype, by the parliament
itself after it's rupture with the crown. Yet such was the opinion of
it's general unpopularity, that when in 1642 "aspersions were cast by
malignant persons upon the house of commons, that they intended to
introduce excises, the house for it's vindication therein did declare,
that these rumours were false and scandalous; and that their authors
should be apprehended and brought to condign punishment[h]." It's
original establishment was in 1643, and it's progress was gradual[i];
being at first laid upon those persons and commodities, where it was
supposed the hardship would be least perceivable, _viz._ the makers
and venders of beer, ale, cyder, and perry[k]; and the royalists at
Oxford soon followed the example of their brethren at Westminster by
imposing a similar duty; both sides protesting that it should be
continued no longer than to the end of the war, and then be utterly
abolished[l]. But the parliament at Westminster soon after imposed it
on flesh, wine, tobacco, sugar, and such a multitude of other
commodities that it might fairly be denominated general; in pursuance
of the plan laid down by Mr Pymme (who seems to have been the father
of the excise) in his letter to sir John Hotham[m], signifying, "that
they had proceeded in the excise to many particulars, and intended to
go on farther; but that it would be necessary to use the people to it
by little and little." And afterwards, when the people had been
accustomed to it for a series of years, the succeeding champions of
liberty boldly and openly declared, "the impost of excise to be the
most easy and indifferent levy that could be laid upon the people[n]:"
and accordingly continued it during the whole usurpation. Upon king
Charles's return, it having then been long established and it's
produce well known, some part of it was given to the crown, in the 12
Car. II, by way of purchase (as was before observed) for the feodal
tenures and other oppressive parts of the hereditary revenue. But,
from it's first original to the present time, it's very name has been
odious to the people of England. It has nevertheless been imposed on
abundance of other commodities in the reigns of king William III, and
every succeeding prince, to support the enormous expenses occasioned
by our wars on the continent. Thus brandies and other spirits are now
excised at the distillery; printed silks and linens, at the printers;
starch and hair powder, at the maker's; gold and silver wire, at the
wiredrawer's; all plate whatsoever, first in the hands of the vendor,
who pays yearly for a licence to sell it, and afterwards in the hands
of the occupier, who also pays an annual duty for having it in his
custody; and coaches and other wheel carriages, for which the occupier
is excised; though not with the same circumstances of arbitrary
strictness with regard to plate and coaches, as in the other
instances. To these we may add coffee and tea, chocolate, and cocoa
paste, for which the duty is paid by the retailer; all artificial
wines, commonly called sweets; paper and pasteboard, first when made,
and again if stained or printed; malt as before-mentioned; vinegars;
and the manufacture of glass; for all which the duty is paid by the
manufacturer; hops, for which the person that gathers them is
answerable; candles and soap, which are paid for at the maker's; malt
liquors brewed for sale, which are excised at the brewery; cyder and
perry, at the mill; and leather and skins, at the tanner's. A list,
which no friend to his country would wish to see farther encreased.
[Footnote g: Hist. b. 3.]
[Footnote h: Com. Journ. 8 Oct. 1642.]
[Footnote i: The translator and continuator of Petavius's
chronological history (Lond. 1659.) informs us, that it was first
moved for, 28 Mar. 1643, by Mr Prynne. And it appears from the
journals of the commons that on that day the house resolved itself
into a committee to consider of raising money, in consequence of which
the excise was afterwards voted. But Mr Prynne was not a member of
parliament till 7 Nov. 1648; and published in 1654 "A protestation
against the illegal, detestable, and oft-condemned tax and extortion
of excise in general." It is probably therefore a mistake of the
printer for Mr Pymme, who was intended for chancellor of the exchequer
under the earl of Bedford. (Lord Clar. b. 7.)]
[Footnote k: Com. Journ. 17 May 1643.]
[Footnote l: Lord Clar. b. 7.]
[Footnote m: 30 May 1643. Dugdale of the troubles, 120.]
[Footnote n: Ord. 14 Aug. 1649. c. 50. Scobell. 72. Stat. 1656. c. 19.
Scobell. 453.]
III. I PROCEED therefore to a third duty, namely that upon salt; which
is another distinct branch of his majesty's extraordinary revenue, and
consists in an excise of 3_s._ 4_d._ _per_ bushel imposed upon all
salt, by several statutes of king William and other subsequent reigns.
This is not generally called an excise, because under the management
of different commissioners: but the commissioners of the salt duties
have by statute 1 Ann. c. 21. the same powers, and must observe the
same regulations, as those of other excises. This tax had usually been
only temporary; but by statute 26 Geo. II. c. 3. was made perpetual.
IV. ANOTHER very considerable branch of the revenue is levied with
greater chearfulness, as, instead of being a burden, it is a manifest
advantage to the public. I mean the post-office, or duty for the
carriage of letters. As we have traced the original of the excise to
the parliament of 1643, so it is but justice to observe that this
useful invention owes it's birth to the same assembly. It is true,
there existed postmasters in much earlier times: but I apprehend their
business was confined to the furnishing of posthorses to persons who
were desirous to travel expeditiously, and to the dispatching
extraordinary pacquets upon special occasions. The outline of the
present plan seems to have been originally conceived by Mr Edmond
Prideaux, who was appointed attorney general to the commonwealth after
the murder of king Charles. He was a chairman of a committee in 1642
for considering what rates should be set upon inland letters[o]; and
afterwards appointed postmaster by an ordinance of both the houses[p],
in the execution of which office he first established a weekly
conveyance of letters into all parts of the nation[q]: thereby saving
to the public the charge of maintaining postmasters, to the amount of
7000_l._ _per annum_. And, his own emoluments being probably
considerable, the common council of London endeavoured to erect
another post-office in opposition to his, till checked by a resolution
of the commons[r], declaring, that the office of postmaster is and
ought to be in the sole power and disposal of the parliament. This
office was afterwards farmed by one Manley in 1654[s]. But, in 1657, a
regular post-office was erected by the authority of the protector and
his parliament, upon nearly the same model as has been ever since
adopted, with the same rates of postage as were continued till the
reign of queen Anne[t]. After the restoration a similar office, with
some improvements, was established by statute 12 Car. II. c. 35. but
the rates of letters were altered, and some farther regulations added,
by the statutes 9 Ann. c. 10. 6 Geo. I. c. 21. 26 Geo. II. c. 12. and
5 Geo. III. c. 25. and penalties were enacted, in order to confine the
carriage of letters to the public office only, except in some few
cases: a provision, which is absolutely necessary; for nothing but an
exclusive right can support an office of this sort: many rival
independent offices would only serve to ruin one another. The
privilege of letters coming free of postage, to and from members of
parliament, was claimed by the house of commons in 1660, when the
first legal settlement of the present post-office was made[u]; but
afterwards dropped[w] upon a private assurance from the crown, that
this privilege should be allowed the members[x]. And accordingly a
warrant was constantly issued to the postmaster-general[y], directing
the allowance thereof, to to [Transcriber's Note: duplicate word] the
extent of two ounces in weight: till at length it was expressly
confirmed by statute 4 Geo. III. c. 24; which adds many new
regulations, rendered necessary by the great abuses crept into the
practice of franking; whereby the annual amount of franked letters had
gradually increased, from 23600_l._ in the year 1715, to 170700_l._ in
the year 1763[z]. There cannot be devised a more eligible method, than
this, of raising money upon the subject: for therein both the
government and the people find a mutual benefit. The government
acquires a large revenue; and the people do their business with
greater ease, expedition, and cheapness, than they would be able to do
if no such tax (and of course no such office) existed.
[Footnote o: Com. Journ. 28 Mar. 1642.]
[Footnote p: _Ibid._ 7 Sept. 1644.]
[Footnote q: _Ibid._ 21 Mar. 1649.]
[Footnote r: _Ibid._]
[Footnote s: Scobell. 358.]
[Footnote t: Com. Journ. 9 Jun. 1657. Scobell. 511.]
[Footnote u: Com. Journ. 17 Dec. 1660.]
[Footnote w: _Ibid._ 22 Dec. 1660.]
[Footnote x: _Ibid._ 16 Apr. 1735.]
[Footnote y: _Ibid._ 26 Feb. 1734.]
[Footnote z: _Ibid._ 28 Mar. 1764.]
V. A FIFTH branch of the perpetual revenue consists in the stamp
duties, which are a tax imposed upon all parchment and paper whereon
any legal proceedings, or private instruments of almost any nature
whatsoever, are written; and also upon licences for retailing wines,
of all denominations; upon all almanacks, newspapers, advertisements,
cards, dice, and pamphlets containing less than six sheets of paper.
These imposts are very various, according to the nature of the thing
stamped, rising gradually from a penny to ten pounds. This is also a
tax, which though in some instances it may be heavily felt, by greatly
increasing the expence of all mercantile as well as legal proceedings,
yet (if moderately imposed) is of service to the public in general, by
authenticating instruments, and rendering it much more difficult than
formerly to forge deeds of any standing; since, as the officers of
this branch of the revenue vary their stamps frequently, by marks
perceptible to none but themselves, a man that would forge a deed of
king William's time, must know and be able to counterfeit the stamp of
that date also. In France and some other countries the duty is laid on
the contract itself, not on the instrument in which it is contained:
but this draws the subject into a thousand nice disquisitions and
disputes concerning the nature of his contract, and whether taxable or
not; in which the farmers of the revenue are sure to have the
advantage. Our method answers the purposes of the state as well, and
consults the ease of the subject much better. The first institution of
the stamp duties was by statute 5 & 6 W. & M. c. 21. and they have
since in many instances been encreased to five times their original
amount.
VI. A SIXTH branch is the duty upon houses and windows. As early as
the conquest mention is made in domesday book of fumage or fuage,
vulgarly called smoke farthings; which were paid by custom to the king
for every chimney in the house. And we read that Edward the black
prince (soon after his successes in France) in imitation of the
English custom, imposed a tax of a florin upon every hearth in his
French dominions[a]. But the first parliamentary establishment of it
in England was by statute 13 & 14 Car. II. c. 10. whereby an
hereditary revenue of 2_s._ for every hearth, in all houses paying to
church and poor, was granted to the king for ever. And, by subsequent
statutes, for the more regular assessment of this tax, the constable
and two other substantial inhabitants of the parish, to be appointed
yearly, were, once in every year, empowered to view the inside of
every house in the parish. But, upon the revolution, by statute 1 W.
& M. st. 1. c. 10. hearth-money was declared to be "not only a great
oppression to the poorer sort, but a badge of slavery upon the whole
people, exposing every man's house to be entered into, and searched at
pleasure, by persons unknown to him; and therefore, to erect a lasting
monument of their majesties' goodness in every house in the kingdom,
the duty of hearth-money was taken away and abolished." This monument
of goodness remains among us to this day: but the prospect of it was
somewhat darkened when, in six years afterwards, by statute 7 W. III.
c. 18. a tax was laid upon all houses (except cottages) of 2_s._ now
advanced to 3_s._ _per_ house, and a tax also upon all windows, if
they exceed nine, in such house. Which rates have been from time to
time varied, (particularly by statutes 20 Geo. II. c. 3. and 31 Geo.
II. c. 22.) and power is given to surveyors, appointed by the crown,
to inspect the outside of houses, and also to pass through any house
two days in the year, into any court or yard to inspect the windows
there.
[Footnote a: Mod. Un. Hist. xxiii. 463. Spelm. Gloss. _tit. Fuage_.]
VII. THE seventh branch of the extraordinary perpetual revenue is the
duty arising from licences to hackney coaches and chairs in London,
and the parts adjacent. In 1654 two hundred hackney coaches were
allowed within London, Westminster, and six miles round, under the
direction of the court of aldermen[b]. By statute 13 & 14 Car. II. c.
2. four hundred were licensed; and the money arising thereby was
applied to repairing the streets[c]. This number was increased to
seven hundred by statute 5 W. & M. c. 22. and the duties vested in the
crown: and by the statute 9 Ann. c. 23. and other subsequent
statutes[d], there are now eight hundred licensed coaches and four
hundred chairs. This revenue is governed by commissioners of it's own,
and is, in truth, a benefit to the subject; as the expense of it is
felt by no individual, and it's necessary regulations have established
a competent jurisdiction, whereby a very refractory race of men may
be kept in some tolerable order.
[Footnote b: Scobell. 313.]
[Footnote c: Com. Journ. 14 Feb. 1661.]
[Footnote d: 10 Ann. c. 19. §. 158. 12 Geo. I. c. 15. 33 Geo. II. c.
25.]
VIII. THE eighth and last branch of the king's extraordinary perpetual
revenue is the duty upon offices and pensions; consisting in a payment
of 1_s._ in the pound (over and above all other duties) out of all
salaries, fees, and perquisites, of offices and pensions payable by
the crown. This highly popular taxation was imposed by statute 31 Geo.
II. c. 22. and is under the direction of the commissioners of the land
tax.
THE clear neat produce of these several branches of the revenue, after
all charges of collecting and management paid, amounts annually to
about seven millions and three quarters sterling; besides two millions
and a quarter raised annually, at an average, by the land and malt
tax. How these immense sums are appropriated, is next to be
considered. And this is, first and principally, to the payment of the
interest of the national debt.
IN order to take a clear and comprehensive view of the nature of this
national debt, it must first be premised, that after the revolution,
when our new connections with Europe introduced a new system of
foreign politics, the expenses of the nation, not only in settling the
new establishment, but in maintaining long wars, as principals, on the
continent, for the security of the Dutch barrier, reducing the French
monarchy, settling the Spanish succession, supporting the house of
Austria, maintaining the liberties of the Germanic body, and other
purposes, increased to an unusual degree: insomuch that it was not
thought advisable to raise all the expenses of any one year by taxes
to be levied within that year, lest the unaccustomed weight of them
should create murmurs among the people. It was therefore the policy of
the times, to anticipate the revenues of their posterity, by borrowing
immense sums for the current service of the state, and to lay no more
taxes upon the subject than would suffice to pay the annual interest
of the sums so borrowed: by this means converting the principal debt
into a new species of property, transferrable from one man to another
at any time and in any quantity. A system which seems to have had it's
original in the state of Florence, _A.D._ 1344: which government then
owed about 60000_l._ sterling; and, being unable to pay it, formed the
principal into an aggregate sum, called metaphorically a _mount_ or
_bank_, the shares whereof were transferrable like our stocks, with
interest at 5 _per cent._ the prices varying according to the
exigencies of the state[e]. This laid the foundation of what is called
the national debt: for a few long annuities created in the reign of
Charles II will hardly deserve that name. And the example then set has
been so closely followed during the long wars in the reign of queen
Anne, and since, that the capital of the national debt, (funded and
unfunded) amounted in January 1765 to upwards of 145,000,000_l._ to
pay the interest of which, and the charges for management, amounting
annually to about four millions and three quarters, the revenues just
enumerated are in the first place mortgaged, and made perpetual by
parliament. Perpetual, I say; but still redeemable by the same
authority that imposed them: which, if it at any time can pay off the
capital, will abolish those taxes which are raised to discharge the
interest.
[Footnote e: _Pro tempore, pro spe, pro commodo, minuitur eorum
pretium atque augescit._ Aretin. See Mod. Un. Hist. xxxvi. 116.]
BY this means the quantity of property in the kingdom is greatly
encreased in idea, compared with former times; yet, if we coolly
consider it, not at all encreased in reality. We may boast of large
fortunes, and quantities of money in the funds. But where does this
money exist? It exists only in name, in paper, in public faith, in
parliamentary security: and that is undoubtedly sufficient for the
creditors of the public to rely on. But then what is the pledge which
the public faith has pawned for the security of these debts? The land,
the trade, and the personal industry of the subject; from which the
money must arise that supplies the several taxes. In these therefore,
and these only, the property of the public creditors does really and
intrinsically exist: and of course the land, the trade, and the
personal industry of individuals, are diminished in their true value
just so much as they are pledged to answer. If A's income amounts to
100_l._ _per annum_; and he is so far indebted to B, that he pays him
50_l._ _per annum_ for his interest; one half of the value of A's
property is transferred to B the creditor. The creditor's property
exists in the demand which he has upon the debtor, and no where else;
and the debtor is only a trustee to his creditor for one half of the
value of his income. In short, the property of a creditor of the
publick, consists in a certain portion of the national taxes: by how
much therefore he is the richer, by so much the nation, which pays
these taxes, is the poorer.
THE only advantage, that can result to a nation from public debts, is
the encrease of circulation by multiplying the cash of the kingdom,
and creating a new species of money, always ready to be employed in
any beneficial undertaking, by means of it's transferrable quality;
and yet productive of some profit, even when it lies idle and
unemployed. A certain proportion of debt seems therefore to be highly
useful to a trading people; but what that proportion is, it is not for
me to determine. Thus much is indisputably certain, that the present
magnitude of our national incumbrances very far exceeds all
calculations of commercial benefit, and is productive of the greatest
inconveniences. For, first, the enormous taxes, that are raised upon
the necessaries of life for the payment of the interest of this debt,
are a hurt both to trade and manufactures, by raising the price as
well of the artificer's subsistence, as of the raw material, and of
course, in a much greater proportion, the price of the commodity
itself. Secondly, if part of this debt be owing to foreigners, either
they draw out of the kingdom annually a considerable quantity of
specie for the interest; or else it is made an argument to grant them
unreasonable privileges in order to induce them to reside here.
Thirdly, if the whole be owing to subjects only, it is then charging
the active and industrious subject, who pays his share of the taxes,
to maintain the indolent and idle creditor who receives them. Lastly,
and principally, it weakens the internal strength of a state, by
anticipating those resources which should be reserved to defend it in
case of necessity. The interest we now pay for our debts would be
nearly sufficient to maintain any war, that any national motives could
require. And if our ancestors in king William's time had annually
paid, so long as their exigences lasted, even a less sum than we now
annually raise upon their accounts, they would in the time of war have
borne no greater burdens, than they have bequeathed to and settled
upon their posterity in time of peace; and might have been eased the
instant the exigence was over.
THE produce of the several taxes beforementioned were originally
separate and distinct funds; being securities for the sums advanced on
each several tax, and for them only. But at last it became necessary,
in order to avoid confusion, as they multiplied yearly, to reduce the
number of these separate funds, by uniting and blending them together;
superadding the faith of parliament for the general security of the
whole. So that there are now only three capital funds of any account,
the _aggregate_ fund, and the _general_ fund, so called from such
union and addition; and the _south sea_ fund, being the produce of the
taxes appropriated to pay the interest of such part of the national
debt as was advanced by that company and it's annuitants. Whereby the
separate funds, which were thus united, are become mutual securities
for each other; and the whole produce of them, thus aggregated, is
liable to pay such interest or annuities as were formerly charged upon
each distinct fund; the faith of the legislature being moreover
engaged to supply any casual deficiences.
THE customs, excises, and other taxes, which are to support these
funds, depending on contingencies, upon exports, imports, and
consumptions, must necessarily be of a very uncertain amount; but they
have always been considerably more than was sufficient to answer the
charge upon them. The surplusses therefore of the three great national
funds, the aggregate, general, and south sea funds, over and above
the interest and annuities charged upon them, are directed by statute
3 Geo. I. c. 7. to be carried together, and to attend the disposition
of parliament; and are usually denominated the _sinking_ fund, because
originally destined to sink and lower the national debt. To this have
been since added many other intire duties, granted in subsequent
years; and the annual interest of the sums borrowed on their
respective credits is charged on and payable out of the produce of the
sinking fund. However the neat surplusses and savings, after all
deductions paid, amount annually to a very considerable sum;
particularly in the year ending at Christmas 1764, to about two
millions and a quarter. For, as the interest on the national debt has
been at several times reduced, (by the consent of the proprietors, who
had their option either to lower their interest or be paid their
principal) the savings from the appropriated revenues must needs be
extremely large. This sinking fund is the last resort of the nation;
on which alone depend all the hopes we can entertain of ever
discharging or moderating our incumbrances. And therefore the prudent
application of the large sums, now arising from this fund, is a point
of the utmost importance, and well worthy the serious attention of
parliament; which has thereby been enabled, in this present year 1765,
to reduce above two millions sterling of the public debt.
BUT, before any part of the aggregate fund (the surplusses whereof are
one of the chief ingredients that form the sinking fund) can be
applied to diminish the principal of the public debt, it stands
mortgaged by parliament to raise an annual sum for the maintenance of
the king's houshold and the civil list. For this purpose, in the late
reigns, the produce of certain branches of the excise and customs, the
post-office, the duty on wine licences, the revenues of the remaining
crown lands, the profits arising from courts of justice, (which
articles include all the hereditary revenues of the crown) and also a
clear annuity of 120000_l._ in money, were settled on the king for
life, for the support of his majesty's houshold, and the honour and
dignity of the crown. And, as the amount of these several branches
was uncertain, (though in the last reign they were generally computed
to raise almost a million) if they did not arise annually to
800,000_l._ the parliament engaged to make up the deficiency. But his
present majesty having, soon after his accession, spontaneously
signified his consent, that his own hereditary revenues might be so
disposed of as might best conduce to the utility and satisfaction of
the public, and having graciously accepted the limited sum of
800000_l._ _per annum_ for the support of his civil list (and that
also charged with three life annuities, to the princess of Wales, the
duke of Cumberland, and the princess Amalie, to the amount of
77000_l._) the said hereditary and other revenues are now carried into
and made a part of the aggregate fund, and the aggregate fund is
charged with the payment of the whole annuity to the crown of
800000_l._ _per annum_[f]. Hereby the revenues themselves, being put
under the same care and management as the other branches of the public
patrimony, will produce more and be better collected than heretofore;
and the public is a gainer of upwards of 100000_l._ _per annum_ by
this disinterested bounty of his majesty. The civil list, thus
liquidated, together with the four millions and three quarters,
interest of the national debt, and the two millions and a quarter
produced from the sinking fund, make up the seven millions and three
quarters _per annum_, neat money, which were before stated to be the
annual produce of our _perpetual_ taxes; besides the immense, though
uncertain, sums arising from the _annual_ taxes on land and malt, but
which, at an average, may be calculated at more than two millions and
a quarter; and, added to the preceding sum, make the clear produce of
the taxes, exclusive of the charge of collecting, which are raised
yearly on the people of this country, and returned into the king's
exchequer, amount to upwards of ten millions sterling.
[Footnote f: Stat. 1 Geo. III. c. 1.]
THE expences defrayed by the civil list are those that in any shape
relate to civil government; as, the expenses of the houshold; all
salaries to officers of state, to the judges, and every of the king's
servants; the appointments to foreign embassadors; the maintenance of
the royal family; the king's private expenses, or privy purse; and
other very numerous outgoings, as secret service money, pensions, and
other bounties: which sometimes have so far exceeded the revenues
appointed for that purpose, that application has been made to
parliament to discharge the debts contracted on the civil list; as
particularly in 1724, when one million was granted for that purpose by
the statute 11 Geo. I. c. 17.
THE civil list is indeed properly the whole of the king's revenue in
his own distinct capacity; the rest being rather the revenue of the
public, or it's creditors, though collected, and distributed again, in
the name and by the officers of the crown: it now standing in the same
place, as the hereditary income did formerly; and, as that has
gradually diminished, the parliamentary appointments have encreased.
The whole revenue of queen Elizabeth did not amount to more than
600000_l._ a year[g]: that of king Charles I was[h] 800000_l._ and the
revenue voted for king Charles II was[i] 1200000_l._ though it never
in fact amounted to quite so much[k]. But it must be observed, that
under these sums were included all manner of public expenses, among
which lord Clarendon in his speech to the parliament computed that the
charge of the navy and land forces amounted annually to 800000_l._
which was ten times more than before the former troubles[l]. The same
revenue, subject to the same charges, was settled on on [Transcriber's
Note: duplicate word] king James II[m]: but by the encrease of trade,
and more frugal management, it amounted on an average to a million and
half _per annum_, (besides other additional customs, granted by
parliament[n], which produced an annual revenue of 400000_l._) out of
which his fleet and army were maintained at the yearly expense of[o]
1100000_l._ After the revolution, when the parliament took into it's
own hands the annual support of the forces, both maritime and
military, a civil list revenue was settled on the new king and queen,
amounting, with the hereditary duties, to 700000_l._ _per annum_[p];
and the same was continued to queen Anne and king George I[q]. That of
king George II, we have seen, was nominally augmented to[r] 800000_l._
and in fact was considerably more. But that of his present majesty is
expressly limited to that sum; and, by reason of the charges upon it,
amounts at present to little more than 700000_l._ And upon the whole
it is doubtless much better for the crown, and also for the people, to
have the revenue settled upon the modern footing rather than the
antient. For the crown; because it is more certain, and collected with
greater ease: for the people; because they are now delivered from the
feodal hardships, and other odious branches of the prerogative. And
though complaints have sometimes been made of the encrease of the
civil list, yet if we consider the sums that have been formerly
granted, the limited extent under which it is now established, the
revenues and prerogatives given up in lieu of it by the crown, and
(above all) the diminution of the value of money compared with what it
was worth in the last century, we must acknowlege these complaints to
be void of any rational foundation; and that it is impossible to
support that dignity, which a king of Great Britain should maintain,
with an income in any degree less than what is now established by
parliament.
[Footnote g: Lord Clar. continuation. 163.]
[Footnote h: Com. Journ. 4 Sept. 1660.]
[Footnote i: _Ibid._]
[Footnote k: _Ibid._ 4 Jun. 1663. Lord Clar. _ibid._]
[Footnote l: _Ibid._ 165.]
[Footnote m: Stat. 1 Jac. II. c. 1.]
[Footnote n: Stat. 1 Jac. II. c. 3 & 4.]
[Footnote o: Com. Journ. 1 Mar. 20 Mar. 1688.]
[Footnote p: _Ibid._ 14 Mar. 1701.]
[Footnote q: _Ibid._ 17 Mar. 1701. 11 Aug. 1714.]
[Footnote r: Stat. 1 Geo. II. c. 1.]
THIS finishes our enquiries into the fiscal prerogatives of the king;
or his revenue, both ordinary and extraordinary. We have therefore now
chalked out all the principal outlines of this vast title of the law,
the supreme executive magistrate, or the king's majesty, considered in
his several capacities and points of view. But, before we intirely
dismiss this subject, it may not be improper to take a short
comparative review of the power of the executive magistrate, or
prerogative of the crown, as it stood in former days, and as it stands
at present. And we cannot but observe, that most of the laws for
ascertaining, limiting, and restraining this prerogative have been
made within the compass of little more than a century past; from the
petition of right in 3 Car. I. to the present time. So that the powers
of the crown are now to all appearance greatly curtailed and
diminished since the reign of king James the first: particularly, by
the abolition of the star chamber and high commission courts in the
reign of Charles the first, and by the disclaiming of martial law, and
the power of levying taxes on the subject, by the same prince: by the
disuse of forest laws for a century past: and by the many excellent
provisions enacted under Charles the second; especially, the abolition
of military tenures, purveyance, and preemption; the _habeas corpus_
act; and the act to prevent the discontinuance of parliaments for
above three years: and, since the revolution, by the strong and
emphatical words in which our liberties are asserted in the bill of
rights, and act of settlement; by the act for triennial, since turned
into septennial, elections; by the exclusion of certain officers from
the house of commons; by rendering the seats of the judges permanent,
and their salaries independent; and by restraining the king's pardon
from operating on parliamentary impeachments. Besides all this, if we
consider how the crown is impoverished and stripped of all it's
antient revenues, so that it greatly depends on the liberality of
parliament for it's necessary support and maintenance, we may perhaps
be led to think, that the ballance is enclined pretty strongly to the
popular scale, and that the executive magistrate has neither
independence nor power enough left, to form that check upon the lords
and commons, which the founders of our constitution intended.
BUT, on the other hand, it is to be considered, that every prince, in
the first parliament after his accession, has by long usage a truly
royal addition to his hereditary revenue settled upon him for his
life; and has never any occasion to apply to parliament for supplies,
but upon some public necessity of the whole realm. This restores to
him that constitutional independence, which at his first accession
seems, it must be owned, to be wanting. And then, with regard to
power, we may find perhaps that the hands of government are at least
sufficiently strengthened; and that an English monarch is now in no
danger of being overborne by either the nobility or the people. The
instruments of power are not perhaps so open and avowed as they
formerly were, and therefore are the less liable to jealous and
invidious reflections; but they are not the weaker upon that account.
In short, our national debt and taxes (besides the inconveniences
before-mentioned) have also in their natural consequences thrown such
a weight of power into the executive scale of government, as we cannot
think was intended by our patriot ancestors; who gloriously struggled
for the abolition of the then formidable parts of the prerogative; and
by an unaccountable want of foresight established this system in their
stead. The entire collection and management of so vast a revenue,
being placed in the hands of the crown, have given rise to such a
multitude of new officers, created by and removeable at the royal
pleasure, that they have extended the influence of government to every
corner of the nation. Witness the commissioners, and the multitude of
dependents on the customs, in every port of the kingdom; the
commissioners of excise, and their numerous subalterns, in every
inland district; the postmasters, and their servants, planted in every
town, and upon every public road; the commissioners of the stamps, and
their distributors, which are full as scattered and full as numerous;
the officers of the salt duty, which, though a species of excise and
conducted in the same manner, are yet made a distinct corps from the
ordinary managers of that revenue; the surveyors of houses and
windows; the receivers of the land tax; the managers of lotteries; and
the commissioners of hackney coaches; all which are either mediately
or immediately appointed by the crown, and removeable at pleasure
without any reason assigned: these, it requires but little penetration
to see, must give that power, on which they depend for subsistence, an
influence most amazingly extensive. To this may be added the frequent
opportunities of conferring particular obligations, by preference in
loans, subscriptions, tickets, remittances, and other money-transactions,
which will greatly encrease this influence; and that over those
persons whose attachment, on account of their wealth, is frequently
the most desirable. All this is the natural, though perhaps the
unforeseen, consequence of erecting our funds of credit, and to
support them establishing our present perpetual taxes: the whole of
which is entirely new since the restoration in 1660; and by far the
greatest part since the revolution in 1688. And the same may be said
with regard to the officers in our numerous army, and the places which
the army has created. All which put together gives the executive power
so persuasive an energy with respect to the persons themselves, and so
prevailing an interest with their friends and families, as will amply
make amends for the loss of external prerogative.
BUT, though this profusion of offices should have no effect on
individuals, there is still another newly acquired branch of power;
and that is, not the influence only, but the force of a disciplined
army: paid indeed ultimately by the people, but immediately by the
crown; raised by the crown, officered by the crown, commanded by the
crown. They are kept on foot it is true only from year to year, and
that by the power of parliament: but during that year they must, by
the nature of our constitution, if raised at all, be at the absolute
disposal of the crown. And there need but few words to demonstrate how
great a trust is thereby reposed in the prince by his people. A trust,
that is more than equivalent to a thousand little troublesome
prerogatives.
ADD to all this, that, besides the civil list, the immense revenue of
seven millions sterling, which is annually paid to the creditors of
the publick, or carried to the sinking fund, is first deposited in the
royal exchequer, and thence issued out to the respective offices of
payment. This revenue the people can never refuse to raise, because it
is made perpetual by act of parliament: which also, when well
considered, will appear to be a trust of great delicacy and high
importance.
UPON the whole therefore I think it is clear, that, whatever may have
become of the _nominal_, the _real_ power of the crown has not been
too far weakened by any transactions in the last century. Much is
indeed given up; but much is also acquired. The stern commands of
prerogative have yielded to the milder voice of influence; the slavish
and exploded doctrine of non-resistance has given way to a military
establishment by law; and to the disuse of parliaments has succeeded a
parliamentary trust of an immense perpetual revenue. When, indeed, by
the free operation of the sinking fund, our national debts shall be
lessened; when the posture of foreign affairs, and the universal
introduction of a well planned and national militia, will suffer our
formidable army to be thinned and regulated; and when (in consequence
of all) our taxes shall be gradually reduced; this adventitious power
of the crown will slowly and imperceptibly diminish, as it slowly and
imperceptibly rose. But, till that shall happen, it will be our
especial duty, as good subjects and good Englishmen, to reverence the
crown, and yet guard against corrupt and servile influence from those
who are intrusted with it's authority; to be loyal, yet free;
obedient, and yet independent: and, above every thing, to hope that we
may long, very long, continue to be governed by a sovereign, who, in
all those public acts that have personally proceeded from himself,
hath manifested the highest veneration for the free constitution of
Britain; hath already in more than one instance remarkably
strengthened it's outworks; and will therefore never harbour a
thought, or adopt a persuasion, in any the remotest degree detrimental
to public liberty.
CHAPTER THE NINTH.
OF SUBORDINATE MAGISTRATES.
IN a former chapter of these commentaries[a] we distinguished
magistrates into two kinds; supreme, or those in whom the sovereign
power of the state resides; and subordinate, or those who act in an
inferior secondary sphere. We have hitherto considered the former kind
only, namely, the supreme legislative power or parliament, and the
supreme executive power, which is the king: and are now to proceed to
enquire into the rights and duties of the principal subordinate
magistrates.
[Footnote a: ch. 2. pag. 142.]
AND herein we are not to investigate the powers and duties of his
majesty's great officers of state, the lord treasurer, lord
chamberlain, the principal secretaries, or the like; because I do not
know that they are in that capacity in any considerable degree the
objects of our laws, or have any very important share of magistracy
conferred upon them: except that the secretaries of state are allowed
the power of commitment, in order to bring offenders to trial[b].
Neither shall I here treat of the office and authority of the lord
chancellor, or the other judges of the superior courts of justice;
because they will find a more proper place in the third part of these
commentaries. Nor shall I enter into any minute disquisitions, with
regard to the rights and dignities of mayors and aldermen, or other
magistrates of particular corporations; because these are mere private
and strictly municipal rights, depending entirely upon the domestic
constitution of their respective franchises. But the magistrates and
officers, whose rights and duties it will be proper in this chapter to
consider, are such as are generally in use and have a jurisdiction and
authority dispersedly throughout the kingdom: which are, principally,
sheriffs; coroners; justices of the peace; constables; surveyors of
highways; and overseers of the poor. In treating of all which I shall
enquire into, first, their antiquity and original; next, the manner in
which they are appointed and may be removed; and, lastly, their rights
and duties. And first of sheriffs.
[Footnote b: 1 Leon. 70. 2 Leon. 175. Comb. 343. 5 Mod. 84. Salk.
347.]
I. THE sheriff is an officer of very great antiquity in this kingdom,
his name being derived from two Saxon words, shire reeve, the bailiff
or officer of the shire. He is called in Latin _vice-comes_, as being
the deputy of the earl or _comes_; to whom the custody of the shire is
said to have been committed at the first division of this kingdom into
counties. But the earls in process of time, by reason of their high
employments and attendance on the king's person, not being able to
transact the business of the county, were delivered of that burden[c];
reserving to themselves the honour, but the labour was laid on the
sheriff. So that now the sheriff does all the king's business in the
county; and though he be still called _vice-comes_, yet he is entirely
independent of, and not subject to the earl; the king by his letters
patent committing _custodiam comitatus_ to the sheriff, and him alone.
[Footnote c: Dalton of sheriffs, c. 1.]
SHERIFFS were formerly chosen by the inhabitants of the several
counties. In confirmation of which it was ordained by statute 28 Edw.
I. c. 8. that the people should have election of sheriffs in every
shire, where the shrievalty is not of inheritance. For antiently in
some counties, particularly on the borders, the sheriffs were
hereditary; as I apprehend they are in Scotland, and in the county of
Westmorland, to this day: and the city of London has also the
inheritance of the shrievalty of Middlesex vested in their body by
charter[d]. The reason of these popular elections is assigned in the
same statute, c. 13. "that the commons might chuse such as would not
be a burthen to them." And herein appears plainly a strong trace of
the democratical part of our constitution; in which form of government
it is an indispensable requisite, that the people should chuse their
own magistrates[e]. This election was in all probability not
absolutely vested in the commons, but required the royal approbation.
For in the Gothic constitution, the judges of their county courts
(which office is executed by our sheriff) were elected by the people,
but confirmed by the king: and the form of their election was thus
managed; the people, or _incolae territorii_, chose _twelve_ electors,
and they nominated _three_ persons, _ex quibus rex unum
confirmabat_[f]. But, with us in England, these popular elections,
growing tumultuous, were put an end to by the statute 9 Edw. II. st.
2. which enacted, that the sheriffs should from thenceforth be
assigned by the lord chancellor, treasurer, and the judges; as being
persons in whom the same trust might with confidence be reposed. By
statutes 14 Edw. III. c. 7. and 23 Hen. VI. c. 8. the chancellor,
treasurer, _chief_ justices, and _chief_ baron, are to make this
election; and that on the morrow of All Souls in the exchequer. But
the custom now is (and has been at least ever since the time of
Fortescue[g], who was chief justice and chancellor to Henry the sixth)
that _all_ the judges, and certain other great officers, meet in the
exchequer chamber on the morrow of All Souls yearly, (which day is now
altered to the morrow of St. Martin by the act for abbreviating
Michaelmas term) and then and there nominate three persons to the
king, who afterwards appoints one of them to be sheriff. This custom,
of the _twelve_ judges nominating _three_ persons, seems borrowed from
the Gothic constitution beforementioned; with this difference, that
among the Goths the twelve nominors were first elected by the people
themselves. And this usage of ours at it's first introduction, I am
apt to believe, was founded upon some statute, though not now to be
found among our printed laws: first, because it is materially
different from the directions of all the statutes beforementioned;
which it is hard to conceive that the judges would have countenanced
by their concurrence, or that Fortescue would have inserted in his
book, unless by the authority of some statute: and also, because a
statute is expressly referred to in the record, which sir Edward Coke
tells us[h] he transcribed from the council book of 3 Mar. 34 Hen. VI.
and which is in substance as follows. The king had of his own
authority appointed a man sheriff of Lincolnshire, which office he
refused to take upon him: whereupon the opinions of the judges were
taken, what should be done in this behalf. And the two chief justices,
sir John Fortescue and sir John Prisot, delivered the unanimous
opinion of them all; "that the king did an error when he made a person
sheriff, that was not chosen and presented to him according to the
_statute_; that the person refusing was liable to no fine for
disobedience, as if he had been one of the _three_ persons chosen
according to the tenor of the _statute_; that they would advise the
king to have recourse to the _three_ persons that were chosen
according to the _statute_, or that some other thrifty man be
intreated to occupy the office for this year; and that, the next year,
to eschew such inconveniences, the order of the _statute_ in this
behalf made be observed." But, notwithstanding this unanimous
resolution of all the judges of England, thus entered in the council
book, some of our writers[i] have affirmed, that the king, by his
prerogative, may name whom he pleases to be sheriff, whether chosen by
the judges or no. This is grounded on a very particular case in the
fifth year of queen Elizabeth, when, by reason of the plague, there
was no Michaelmas term kept at Westminster; so that the judges could
not meet there _in crastino Animarum_ to nominate the sheriffs:
whereupon the queen named them herself, without such previous
assembly, appointing for the most part one of the two remaining in the
last year's list[k]. And this case, thus circumstanced, is the only
precedent in our books for the making these extraordinary sheriffs. It
is true, the reporter adds, that it was held that the queen by her
prerogative might make a sheriff without the election of the judges,
_non obstante aliquo statuto in contrarium_: but the doctrine of _non
obstante_'s, which sets the prerogative above the laws, was
effectually demolished by the bill of rights at the revolution, and
abdicated Westminster-hall when king James abdicated the kingdom. So
that sheriffs cannot now be legally appointed, otherwise than
according to the known and established law.
[Footnote d: 3 Rep. 72.]
[Footnote e: Montesq. Sp. L. b. 2. c. 2.]
[Footnote f: Stiernhook _de jure Goth._ _l._ 1. _c._ 3.]
[Footnote g: _de L.L._ _c._ 24.]
[Footnote h: 2 Inst. 559.]
[Footnote i: Jenkins. 229.]
[Footnote k: Dyer 225.]
SHERIFFS, by virtue of several old statutes, are to continue in their
office no longer than one year; and yet it hath been said[l] that a
sheriff may be appointed _durante bene placito_, or during the king's
pleasure; and so is the form of the royal writ[m]. Therefore, till a
new sheriff be named, his office cannot be determined, unless by his
own death, or the demise of the king; in which last case it was usual
for the successor to send a new writ to the old sheriff[n]: but now by
statute 1 Ann. st. 1. c. 8. all officers appointed by the preceding
king may hold their offices for six months after the king's demise,
unless sooner displaced by the successor. We may farther observe, that
by statute 1 Ric. II. c. 11. no man, that has served the office of
sheriff for one year, can be compelled to serve the same again within
three years after.
[Footnote l: 4 Rep. 32.]
[Footnote m: Dalt. of sheriffs. 8.]
[Footnote n: Dalt. 7.]
WE shall find it is of the utmost importance to have the sheriff
appointed according to law, when we consider his power and duty. These
are either as a judge, as the keeper of the king's peace, as a
ministerial officer of the superior courts of justice, or as the
king's bailiff.
IN his judicial capacity he is to hear and determine all causes of
forty shillings value and under, in his county court, of which more in
it's proper place: and he has also judicial power in divers other
civil cases[o]. He is likewise to decide the elections of knights of
the shire, (subject to the control of the house of commons) of
coroners, and of verderors; to judge of the qualification of voters,
and to return such as he shall determine to be duly elected.
[Footnote o: Dalt. c. 4.]
AS the keeper of the king's peace, both by common law and special
commission, he is the first man in the county, and superior in rank to
any nobleman therein, during his office[p]. He may apprehend, and
commit to prison, all persons who break the peace, or attempt to break
it: and may bind any one in a recognizance to keep the king's peace.
He may, and is bound _ex officio_ to, pursue and take all traitors,
murderers, felons, and other misdoers, and commit them to gaol for
safe custody. He is also to defend his county against any of the
king's enemies when they come into the land: and for this purpose, as
well as for keeping the peace and pursuing felons, he may command all
the people of his county to attend him; which is called the _posse
comitatus_, or power of the county[q]: which summons every person
above fifteen years old, and under the degree of a peer, is bound to
attend upon warning[r], under pain of fine and imprisonment[s]. But
though the sheriff is thus the principal conservator of the peace in
his county, yet, by the express directions of the great charter[t],
he, together with the constable, coroner, and certain other officers
of the king, are forbidden to hold any pleas of the crown, or, in
other words, to try any criminal offence. For it would be highly
unbecoming, that the executioners of justice should be also the
judges; should impose, as well as levy, fines and amercements; should
one day condemn a man to death, and personally execute him the next.
Neither may he act as an ordinary justice of the peace during the time
of his office[u]: for this would be equally inconsistent; he being in
many respects the servant of the justices.
[Footnote p: 1 Roll. Rep. 237.]
[Footnote q: Dalt. c. 95.]
[Footnote r: Lamb. Eiren. 315.]
[Footnote s: Stat. 2 Hen. V. c. 8.]
[Footnote t: _cap._ 17.]
[Footnote u: Stat. 1 Mar. st. 2. c. 8.]
IN his ministerial capacity the sheriff is bound to execute all
process issuing from the king's courts of justice. In the commencement
of civil causes, he is to serve the writ, to arrest, and to take bail;
when the cause comes to trial, he must summon and return the jury;
when it is determined, he must see the judgment of the court carried
into execution. In criminal matters, he also arrests and imprisons, he
returns the jury, he has the custody of the delinquent, and he
executes the sentence of the court, though it extend to death itself.
AS the king's bailiff, it is his business to preserve the rights of
the king within his bailiwick; for so his county is frequently called
in the writs: a word introduced by the princes of the Norman line; in
imitation of the French, whose territory is divided into bailiwicks,
as that of England into counties[w]. He must seise to the king's use
all lands devolved to the crown by attainder or escheat; must levy all
fines and forfeitures; must seise and keep all waifs, wrecks, estrays,
and the like, unless they be granted to some subject; and must also
collect the king's rents within his bailiwick, if commanded by process
from the exchequer[x].
[Footnote w: Fortesc. _de L.L._ c. 24.]
[Footnote x: Dalt. c. 9.]
TO execute these various offices, the sheriff has under him many
inferior officers; an under-sheriff, bailiffs, and gaolers; who must
neither buy, sell, nor farm their offices, on forfeiture of 500_l._[y]
[Footnote y: Stat. 3 Geo. I. c. 15.]
THE under-sheriff usually performs all the duties of the office; a
very few only excepted, where the personal presence of the
high-sheriff is necessary. But no under-sheriff shall abide in his
office above one year[z]; and if he does, by statute 23 Hen. VI. c. 8.
he forfeits 200_l._ a very large penalty in those early days. And no
under-sheriff or sheriff's officer shall practice as an attorney,
during the time he continues in such office[a]: for this would be a
great inlet to partiality and oppression. But these salutary
regulations are shamefully evaded, by practising in the names of other
attorneys, and putting in sham deputies by way of nominal
under-sheriffs: by reason of which, says Dalton[b], the under-sheriffs
and bailiffs do grow so cunning in their several places, that they are
able to deceive, and it may be well feared that many of them do
deceive, both the king, the high-sheriff, and the county.
[Footnote z: Stat. 42 Edw. III. c. 9.]
[Footnote a: Stat. 1 Hen. V. c. 4.]
[Footnote b: of sheriffs, c. 115.]
BAILIFFS, or sheriff's officers, are either bailiffs of hundreds, or
special bailiffs. Bailiffs of hundreds are officers appointed over
those respective districts by the sheriffs, to collect fines therein;
to summon juries; to attend the judges and justices at the assises,
and quarter sessions; and also to execute writs and process in the
several hundreds. But, as these are generally plain men, and not
thoroughly skilful in this latter part of their office, that of
serving writs, and making arrests and executions, it is now usual to
join special bailiffs with them; who are generally mean persons
employed by the sheriffs on account only of their adroitness and
dexterity in hunting and seising their prey. The sheriff being
answerable for the misdemesnors of these bailiffs, they are therefore
usually bound in a bond for the due execution of their office, and
thence are called bound-bailiffs; which the common people have
corrupted into a much more homely appellation.
GAOLERS are also the servants of the sheriff, and he must be
responsible for their conduct. Their business is to keep safely all
such persons as are committed to them by lawful warrant: and, if they
suffer any such to escape, the sheriff shall answer it to the king, if
it be a criminal matter; or, in a civil case, to the party injured[c].
And to this end the sheriff must[d] have lands sufficient within the
county to answer the king and his people. The abuses of goalers and
sheriff's officers toward the unfortunate persons in their custody are
well restrained and guarded against by statute 32 Geo. II. c. 28.
[Footnote c: Dalt. c. 118. 4 Rep. 34.]
[Footnote d: Stat. 13 & 14 Car. II. c. 21.]
THE vast expense, which custom had introduced in serving the office of
high-sheriff, was grown such a burthen to the subject, that it was
enacted, by statute 13 & 14 Car. II. c. 21. that no sheriff should
keep any table at the assises, except for his own family, or give any
presents to the judges or their servants, or have more than forty men
in livery; yet, for the sake of safety and decency, he may not have
less than twenty men in England and twelve in Wales; upon forfeiture,
in any of these cases, of 200_l._
II. THE coroner's is also a very antient office at the common law. He
is called coroner, _coronator_, because he hath principally to do with
pleas of the crown, or such wherein the king is more immediately
concerned[e]. And in this light the lord chief justice of the king's
bench is the principal coroner in the kingdom, and may (if he pleases)
exercise the jurisdiction of a coroner in any part of the realm[f].
But there are also particular coroners for every county of England;
usually four, but sometimes six, and sometimes fewer[g]. This
officer[h] is of equal antiquity with the sheriff; and was ordained
together with him to keep the peace, when the earls gave up the
wardship of the county.
[Footnote e: 2 Inst. 31. 4 Inst. 271.]
[Footnote f: 4 Rep. 57.]
[Footnote g: F.N.B. 163.]
[Footnote h: Mirror, c. 1. §. 3.]
HE is still chosen by all the freeholders in the county court, as by
the policy of our antient laws the sheriffs, and conservators of the
peace, and all other officers were, who were concerned in matters that
affected the liberty of the people[i]; and as verderors of the forests
still are, whose business it is to stand between the prerogative and
the subject in the execution of the forest laws. For this purpose
there is a writ at common law _de coronatore eligendo_[k]: in which
it is expressly commanded the sheriff, "_quod talem eligi faciat, qui
melius et sciat, et velit, et possit, officio illi intendere_." And,
in order to effect this the more surely, it was enacted by the statute
of Westm. I[l], that none but lawful and discreet knights should be
chosen. But it seems it is now sufficient if a man have lands enough
to be made a knight, whether he be really knighted or not[m]: and
there was an instance in the 5 Edw. III. of a man being removed from
this office, because he was only a merchant[n]. The coroner ought also
to have estate sufficient to maintain the dignity of his office, and
answer any fines that may be set upon him for his misbehaviour[o]: and
if he have not enough to answer, his fine shall be levyed on the
county, as a punishment for electing an insufficient officer[p]. Now
indeed, through the culpable neglect of gentlemen of property, this
office has been suffered to fall into disrepute, and get into low and
indigent hands: so that, although formerly no coroner would condescend
to be paid for serving his country, and they were by the aforesaid
statute of Westm. I. expressly forbidden to take a reward, under pain
of great forfeiture to the king; yet for many years past they have
only desired to be chosen for the sake of their perquisites; being
allowed fees for their attendance by the statute 3 Hen. VII. c. 1.
which sir Edward Coke complains of heavily[q]; though they have since
his time been much enlarged[r].
[Footnote i: 2 Inst. 558.]
[Footnote k: F.N.B. 163.]
[Footnote l: 3 Edw. I. c. 10.]
[Footnote m: F.N.B. 163, 164.]
[Footnote n: 2 Inst. 32.]
[Footnote o: F.N.B. 163, 164.]
[Footnote p: Mirr. c. 1. §. 3. 2 Inst. 175.]
[Footnote q: 2 Inst. 210.]
[Footnote r: Stat. 25 Geo. II. c. 29.]
THE coroner is chosen for life: but may be removed, either by being
made sheriff, or chosen verderor, which are offices incompatible with
the other; or by the king's writ _de coronatore exonerando_, for a
cause to be therein assigned, as that he is engaged in other business,
is incapacitated by years or sickness, hath not a sufficient estate in
the county, or lives in an inconvenient part of it[s]. And by the
statute 25 Geo. II. c. 29. extortion, neglect, or misbehaviour, are
also made causes of removal.
[Footnote s: F.N.B. 163, 164.]
THE office and power of a coroner are also, like those of a sheriff,
either judicial or ministerial; but principally judicial. This is in
great measure ascertained by statute 4 Edw. I. _de officio
coronatoris_; and consists, first, in enquiring (when any person is
slain or dies suddenly) concerning the manner of his death. And this
must be "_super visum corporis_[t];" for, if the body be not found,
the coroner cannot sit[u]. He must also sit at the very place where
the death happened; and his enquiry is made by a jury from four, five,
or six of the neighbouring towns, over whom he is to preside. If any
be found guilty by this inquest of murder, he is to commit to prison
for further trial, and is also to enquire concerning their lands,
goods and chattels, which are forfeited thereby: but, whether it be
murder or not, he must enquire whether any deodand has accrued to the
king, or the lord of the franchise, by this death: and must certify
the whole of this inquisition to the court of king's bench, or the
next assises. Another branch of his office is to enquire concerning
shipwrecks; and certify whether wreck or not, and who is in possession
of the goods. Concerning treasure trove, he is also to enquire who
were the finders, and where it is, and whether any one be suspected of
having found and concealed a treasure; "and that may be well perceived
(saith the old statute of Edw. I.) where one liveth riotously,
haunting taverns, and hath done so of long time:" whereupon he might
be attached, and held to bail, upon this suspicion only.
[Footnote t: 4 Inst. 271.]
[Footnote u: Thus, in the Gothic constitution, before any fine was
payable by the neighbourhood, for the slaughter of a man therein, "_de
corpore delicti constare oportebat; i.e. non tam fuisse aliquem in
territorio isto mortuum inventum, quam vulneratum et caesum. Potest
enim homo etiam ex alia causa subito mori_." Stiernhook _de jure
Gothor._ _l._ 3. _c._ 4.]
THE ministerial office of the coroner is only as the sheriff's
substitute. For when just exception can be taken to the sheriff, for
suspicion of partiality, (as that he is interested in the suit, or of
kindred to either plaintiff or defendant) the process must then be
awarded to the coroner, instead of the sheriff, for execution of the
king's writs[w].
[Footnote w: 4 Inst. 271.]
III. THE next species of subordinate magistrates, whom I am to
consider, are justices of the peace; the principal of whom is the
_custos rotulorum_, or keeper of the records of the county. The common
law hath ever had a special care and regard for the conservation of
the peace; for peace is the very end and foundation of civil society.
And therefore, before the present constitution of justices was
invented, there were peculiar officers appointed by the common law for
the maintenance of the public peace. Of these some had, and still
have, this power annexed to other offices which they hold; others had
it merely by itself, and were thence named _custodes_ or
_conservatores pacis_. Those that were so _virtute officii_ still
continue; but the latter sort are superseded by the modern justices.
THE kings majesty[x] is, by his office and dignity royal, the
principal conservator of the peace within all his dominions; and may
give authority to any other to see the peace kept, and to punish such
as break it: hence it is usually called the king's peace. The lord
chancellor or keeper, the lord treasurer, the lord high steward of
England, the lord mareschal, and lord high constable of England (when
any such officers are in being) and all the justices of the court of
king's bench (by virtue of their offices) and the master of the rolls
(by prescription) are general conservators of the peace throughout the
whole kingdom, and may commit all breakers of it, or bind them in
recognizances to keep it[y]: the other judges are only so in their own
courts. The coroner is also a conservator of the peace within his own
county[z]; as is also the sheriff[a]; and both of them may take a
recognizance or security for the peace. Constables, tythingmen, and
the like, are also conservators of the peace within their own
jurisdictions; and may apprehend all breakers of the peace, and commit
them till they find sureties for their keeping it[b].
[Footnote x: Lambard. Eirenarch. 12.]
[Footnote y: Lamb. 12.]
[Footnote z: Britton. 3.]
[Footnote a: F.N.B. 81.]
[Footnote b: Lamb. 14.]
THOSE that were, without any office, simply and merely conservators of
the peace, were chosen by the freeholders in full county court before
the sheriff; the writ for their election directing them to be chosen
"_de probioribus et melioribus in comitatu suo in custodes pacis_[c]."
But when queen Isabel, the wife of Edward II, had contrived to depose
her husband by a forced resignation of the crown, and had set up his
son Edward III in his place; this, being a thing then without example
in England, it was feared would much alarm the people; especially as
the old king was living, though hurried about from castle to castle;
till at last he met with an untimely death. To prevent therefore any
risings, or other disturbance of the peace, the new king sent writs to
all the sheriffs in England, the form of which is preserved by Thomas
Walsingham[d], giving a plausible account of the manner of his
obtaining the crown; to wit, that it was done _ipsius patris
beneplacito_: and withal commanding each sheriff that the peace be
kept throughout his bailiwick, on pain and peril of disinheritance and
loss of life and limb. And in a few weeks after the date of these
writs, it was ordained in parliament[e], that, for the better
maintaining and keeping of the peace in every county, good men and
lawful, which were no maintainers of evil, or barretors in the
country, should be _assigned_ to keep the peace. And in this manner,
and upon this occasion, was the election of the conservators of the
peace taken from the people, and given to the king[f]; this assignment
being construed to be by the king's commission[g]. But still they were
called only conservators, wardens, or keepers of the peace, till the
statute 34 Edw. III. c. 1. gave them the power of trying felonies; and
then they acquired the more honorable appellation of justices[h].
[Footnote c: Lamb. 16.]
[Footnote d: Hist. _A.D._ 1327.]
[Footnote e: Stat. 1 Edw. III. c. 16.]
[Footnote f: Lamb. 20.]
[Footnote g: Stat. 4 Edw. III. c. 2. and 18 Edw. III. st. 2. c. 2.]
[Footnote h: Lamb. 23.]
THESE justices are appointed by the king's special commission under
the great seal, the form of which was settled by all the judges,
_A.D._ 1590[i]. This appoints them all[k], jointly and severally, to
keep the peace, and any two or more of them to enquire of and
determine felonies, and other misdemesnors: in which number some
particular justices, or one of them, are directed to be always
included, and no business to be done without their presence; the words
of the commission running thus, "_quorum aliquem vestrum, A. B. C. D.
&c. unum esse volumus_;" whence the persons so named are usually
called justices of the _quorum_. And formerly it was customary to
appoint only a select number of justices, eminent for their skill and
discretion, to be of the _quorum_; but now the practice is to advance
almost all of them to that dignity, naming them all over again in the
_quorum_ clause, except perhaps only some one inconsiderable person
for the sake of propriety: and no exception is now allowable, for not
expressing in the form of warrants, &c, that the justice who issued
them is of the _quorum_[l].
[Footnote i: Lamb. 43.]
[Footnote k: See the form itself, Lamb. 35. Burn. tit. justices, §.
1.]
[Footnote l: Stat. 26 Geo. II. c. 27.]
TOUCHING the number and qualifications of these justices; it was
ordained by statute 18 Edw. III. c. 2. that _two_, or _three_, of the
best reputation in each county shall be assigned to be keepers of the
peace. But these being found rather too few for that purpose, it was
provided by statute 34 Edw. III. c. 1. that one lord, and three, or
four, of the most worthy men in the county, with some learned in the
law, shall be made justices in every county. But afterwards the number
of justices, through the ambition of private persons, became so large,
that it was thought necessary by statute 12 Ric. II. c. 10. and 14 Ric
II. c. 11. to restrain them at first to six, and afterwards to eight
only. But this rule is now disregarded, and the cause seems to be (as
Lambard observed long ago[m]) that the growing number of statute
laws, committed from time to time to the charge of justices of the
peace, have occasioned also (and very reasonably) their encrease to a
larger number. And, as to their qualifications, the statutes just
cited direct them to be of the best reputation, and most worthy men in
the county: and the statute 13 Ric. II. c. 10. orders them to be of
the most sufficient knights, esquires, and gentlemen of the law. Also
by statute 2 Hen. V. st. 1. c. 4. and st. 2. c. 1. they must be
resident in their several counties. And because, contrary to these
statutes, men of small substance had crept into the commission, whose
poverty made them both covetous and contemptible, it was enacted by
statute 18 Hen. VI. c. 11. that no justice should be put in
commission, if he had not lands to the value of 20_l._ _per annum_.
And, the rate of money being greatly altered since that time, it is
now enacted by statute 5 Geo. II. c. 11. that every justice, except as
is therein excepted, shall have 100_l._ _per annum_ clear of all
deductions; and, if he acts without such qualification, he shall
forfeit 100_l._ which[n] is almost an equivalent to the 20_l._ _per
annum_ required in Henry the sixth's time: and of this qualification[o]
the justice must now make oath. Also it is provided by the act 5 Geo.
II. that no practising attorney, solicitor, or proctor, shall be
capable of acting as a justice of the peace.
[Footnote m: Lamb. 34.]
[Footnote n: See bishop Fleetwood's calculations in his _chronicon
pretiosum_.]
[Footnote o: Stat. 18 Geo. II. c. 20.]
AS the office of these justices is conferred by the king, so it
subsists only during his pleasure; and is determinable, 1. By the
demise of the crown; that is, in six months after[p]. 2. By express
writ under the great seal[q], discharging any particular person, from
being any longer justice. 3. By superseding the commission by writ of
_supersedeas_, which suspends the power of all the justices, but does
not totally destroy it; seeing it may be revived again by another
writ, called a _procedendo_. 4. By a new commission, which virtually,
though silently, discharges all the former justices that are not
included therein; for two commissions cannot subsist at once. 5. By
accession of the office of sheriff or coroner[r]. Formerly it was
thought, that if a man was named in any commission of the peace, and
had afterwards a new dignity conferred upon him, that this determined
his office; he no longer answering the description of the commission:
but now[s] it is provided, that notwithstanding a new title of
dignity, the justice on whom it is conferred shall still continue a
justice.
[Footnote p: Stat. 1 Ann. c. 8.]
[Footnote q: Lamb. 67.]
[Footnote r: Stat. 1 Mar. st. 1. c. 8.]
[Footnote s: Stat. 1 Edw. VI. c. 7.]
THE power, office, and duty of a justice of the peace depend on his
commission, and on the several statutes, which have created objects of
his jurisdiction. His commission, first, empowers him singly to
conserve the peace; and thereby gives him all the power of the antient
conservators at the common law, in suppressing riots and affrays, in
taking securities for the peace, and in apprehending and committing
felons and other inferior criminals. It also empowers any two or more
of them to hear and determine all felonies and other offences; which
is the ground of their jurisdiction at sessions, of which more will be
said in it's proper place. And as to the powers given to one, two, or
more justices by the several statutes, that from time to time have
heaped upon them such an infinite variety of business, that few care
to undertake, and fewer understand, the office; they are such and of
so great importance to the public, that the country is greatly obliged
to any worthy magistrate, that without sinister views of his own will
engage in this troublesome service. And therefore, if a well meaning
justice makes any undesigned slip in his practice, great lenity and
indulgence is shewn to him in the courts of law; and there are many
statutes made to protect him in the upright discharge of his
office[t]: which, among other privileges, prohibit such justices from
being sued for any oversights without notice beforehand; and stop all
suits begun, on tender made of sufficient amends. But, on the other
hand, any malicious or tyrannical abuse of their office is sure to be
severely punished; and all persons who recover a verdict against a
justice, for any wilful or malicious injury, are entitled to double
costs.
[Footnote t: Stat. 7 Jac. I. c. 5. 21 Jac. I. c. 12. 24 Geo. II. c.
44.]
IT is impossible upon our present plan to enter minutely into the
particulars of the accumulated authority, thus committed to the charge
of these magistrates. I must therefore refer myself at present to such
subsequent parts of these commentaries, as will in their turns
comprize almost every object of the justices' jurisdiction: and in the
mean time recommend to the student the perusal of Mr Lambard's
_eirenarcha_, and Dr Burn's _justice of the peace_; wherein he will
find every thing relative to this subject, both in antient and modern
practice, collected with great care and accuracy, and disposed in a
most clear and judicious method.
I SHALL next consider some officers of lower rank than those which
have gone before, and of more confined jurisdiction; but still such as
are universally in use through every part of the kingdom.
IV. FOURTHLY, then, of the constable. The word constable is frequently
said to be derived from the Saxon, koning-staple, and to signify the
support of the king. But, as we borrowed the name as well as the
office of constable from the French, I am rather inclined to deduce
it, with sir H. Spelman and Dr Cowel, from that language, wherein it
is plainly derived from the Latin _comes stabuli_, an officer well
known in the empire; so called because, like the great constable of
France, as well as the lord high constable of England, he was to
regulate all matters of chivalry, tilts, turnaments, and feats of
arms, which were performed on horseback. This great office of lord
high constable hath been disused in England, except only upon great
and solemn occasions, as the king's coronation and the like, ever
since the attainder of Stafford duke of Buckingham under king Henry
VIII; as in France it was suppressed about a century after by an edict
of Louis XIII[u]: but from his office, says Lambard[w], this lower
constableship was at first drawn and fetched, and is as it were a very
finger of that hand. For the statute of Winchester[x], which first
appoints them, directs that, for the better keeping of the peace, two
constables in every hundred and franchise shall inspect all matters
relating to _arms_ and _armour_.
[Footnote u: Philips's life of Pole. ii. 111.]
[Footnote w: of constables, 5.]
[Footnote x: 13 Edw. I. c. 6.]
CONSTABLES are of two sorts, high constables, and petty constables.
The former were first ordained by the statute of Winchester, as
before-mentioned; and are appointed at the court leets of the
franchise or hundred over which they preside, or, in default of that,
by the justices at their quarter sessions; and are removeable by the
same authority that appoints them[y]. The petty constables are
inferior officers in every town and parish, subordinate to the high
constable of the hundred, first instituted about the reign of Edward
III[z]. These petty constables have two offices united in them; the
one antient, the other modern. Their antient office is that of
headborough, tithing-man, or borsholder; of whom we formerly spoke[a],
and who are as antient as the time of king Alfred: their more modern
office is that of constable merely; which was appointed (as was
observed) so lately as the reign of Edward III, in order to assist the
high constable[b]. And in general the antient headboroughs,
tithing-men, and borsholders, were made use of to serve as petty
constables; though not so generally, but that in many places they
still continue distinct officers from the constable. They are all
chosen by the jury at the court leet; or, if no court leet be held,
are appointed by two justices of the peace[c].
[Footnote y: Salk. 150.]
[Footnote z: Spelm. Gloss. 148.]
[Footnote a: pag. 110.]
[Footnote b: Lamb. 9.]
[Footnote c: Stat. 14 & 15 Car. II. c. 12.]
THE general duty of all constables, both high and petty, as well as of
the other officers, is to keep the king's peace in their several
districts; and to that purpose they are armed with very large powers,
of arresting, and imprisoning, of breaking open houses, and the like:
of the extent of which powers, considering what manner of men are for
the most part put upon these offices, it is perhaps very well that
they are generally kept in ignorance. One of their principal duties,
arising from the statute of Winchester, which appoints them, is to
keep watch and ward in their respective jurisdictions. Ward, guard, or
_custodia_, is chiefly intended of the day time, in order to apprehend
rioters, and robbers on the highways; the manner of doing which is
left to the discretion of the justices of the peace and the
constable[d], the hundred being however answerable for all robberies
committed therein, by day light, for having kept negligent guard.
Watch is properly applicable to the night only, (being called among
our Teutonic ancestors _wacht_ or _wacta_[e]) and it begins at the
time when ward ends, and ends when that begins; for, by the statute of
Winchester, in walled towns the gates shall be closed from sunsetting
to sunrising, and watch shall be kept in every borough and town,
especially in the summer season, to apprehend all rogues, vagabonds,
and night-walkers, and make them give an account of themselves. The
constable may appoint watchmen at his discretion, regulated by the
custom of the place; and these, being his deputies, have for the time
being the authority of their principal. But, with regard to the
infinite number of other minute duties, that are laid upon constables
by a diversity of statutes, I must again refer to Mr Lambard and Dr
Burn; in whose compilations may be also seen, what duties belong to
the constable or tything-man indifferently, and what to the constable
only: for the constable may do whatever the tything-man may; but it
does not hold _e converso_; for the tithing-man has not an equal power
with the constable.
[Footnote d: Dalt. just. c. 104.]
[Footnote e: _Excubias et explorationes quas wactas vocant._
_Capitular. Hludovic. Pii._ _cap._ 1. _A.D._ 815.]
V. WE are next to consider the surveyors of the highways. Every parish
is bound of common right to keep the high roads, that go through it,
in good and sufficient repair; unless by reason of the tenure of
lands, or otherwise, this care is consigned to some particular private
person. From this burthen no man was exempt by our antient laws,
whatever other immunities he might enjoy: this being part of the
_trinoda necessitas_, to which every man's estate was subject; viz.
_expeditio contra hostem, arcium constructio, et pontium reparatio_:
for, though the reparation of bridges only is expressed, yet that of
roads also must be understood; as in the Roman law, _ad instructiones
reparationesque itinerum et pontium, nullum genus hominum, nulliusque
dignitatis ac venerationis meritis, cessare oportet_[f]. And indeed
now, for the most part, the care of the roads only seems to be left to
parishes; that of bridges being in great measure devolved upon the
county at large, by statute 22 Hen. VIII. c. 5. If the parish
neglected these repairs, they might formerly, as they may still, be
indicted for such their neglect: but it was not then incumbent on any
particular officer to call the parish together, and set them upon this
work; for which reason by the statute 2 & 3 Ph. & M. c. 8. surveyors
of the highways were ordered to be chosen in every parish[g].
[Footnote f: _C._ 11. 74. 4.]
[Footnote g: This office, Mr Dalton (just. cap. 50.) says, exactly
answers that of the _curatores viarum_ of the Romans: but, I should
guess that theirs was an office of rather more dignity and authority
than ours, not only from comparing the method of making and mending
the Roman ways with those of our country parishes; but also because
one Thermus, who was the curator of the Flaminian way, was candidate
for the consulship with Julius Caesar. (_Cic. ad Attic._ _l._ 1. _ep._
1.)]
THESE surveyors were originally, according to the statute of Philip
and Mary, to be appointed by the constable and churchwardens of the
parish; but now[h] they are constituted by two neighbouring justices,
out of such substantial inhabitants as have either 10_l._ _per annum_
of their own, or rent 30_l._ a year, or are worth in personal estate
100_l._
[Footnote h: Stat. 3 W. & M. c. 12.]
THEIR office and duty consists in putting in execution a variety of
statutes for the repairs of the highways; that is, of ways leading
from one town to another: by which it is enacted, 1. That they may
remove all annoyances in the highways, or give notice to the owner to
remove them; who is liable to penalties on noncompliance. 2. They are
to call together all the inhabitants of the parish, six days in every
year, to labour in repairing the highways; all persons keeping
draughts, or occupying lands, being obliged to send a team for every
draught, and for every 50_l._ a year, which they keep or occupy; and
all other persons to work or find a labourer. The work must be
completed before harvest; as well for providing a good road for
carrying in the corn, as also because all hands are then supposed to
be employed in harvest work. And every cartway must be made eight feet
wide at the least[i]; and may be increased by the quarter sessions to
the breadth of four and twenty feet. 3. The surveyors may lay out
their own money in purchasing materials for repairs, where there is
not sufficient within the parish, and shall be reimbursed by a rate,
to be allowed at a special sessions. 4. In case the personal labour of
the parish be not sufficient, the surveyors, with the consent of the
quarter sessions, may levy a rate (not exceeding 6_d._ in the pound)
on the parish, in aid of the personal duty; for the due application of
which they are to account upon oath. As for turnpikes, which are now
universally introduced in aid of such rates, and the law relating to
them, these depend entirely on the particular powers granted in the
several road acts, and therefore have nothing to do with this
compendium of general law.
[Footnote i: This, by the laws of the twelve tables at Rome, was the
standard for roads that were straight; but, in winding ways, the
breadth was directed to be sixteen feet. _Ff._ 8. 3. 8.]
VI. I PROCEED therefore, lastly, to consider the overseers of the
poor; their original, appointment, and duty.
THE poor of England, till the time of Henry VIII, subsisted entirely
upon private benevolence, and the charity of welldisposed christians.
For, though it appears by the mirrour[k], that by the common law the
poor were to be "sustained by parsons, rectors of the church, and the
parishioners; so that none of them dye for default of sustenance;" and
though by the statutes 12 Ric. II. c. 7. and 19 Hen. VII. c. 12. the
poor are directed to be sustained in the cities or towns wherein they
were born, or such wherein they had dwelt for three years (which seem
to be the first rudiments of parish settlements) yet till the statute
27 Hen. VIII. c. 26. I find no compulsory method chalked out for this
purpose: but the poor seem to have been left to such relief as the
humanity of their neighbours would afford them. The monasteries were,
in particular, their principal resource; and, among other bad effects
which attended the monastic institutions, it was not perhaps one of
the least (though frequently esteemed quite otherwise) that they
supported and fed a very numerous and very idle poor, whose sustenance
depended upon what was daily distributed in alms at the gates of the
religious houses. But, upon the total dissolution of these, the
inconvenience of thus encouraging the poor in habits of indolence and
beggary was quickly felt throughout the kingdom: and abundance of
statutes were made in the reign of king Henry the eighth, for
providing for the poor and impotent; which, the preambles to some of
them recite, had of late years _strangely_ increased. These poor were
principally of two sorts: sick and impotent, and therefore unable to
work; idle and sturdy, and therefore able, but not willing, to
exercise any honest employment. To provide in some measure for both of
these, in and about the metropolis, his son Edward the sixth founded
three royal hospitals; Christ's, and St. Thomas's, for the relief of
the impotent through infancy or sickness; and Bridewell for the
punishment and employment of the vigorous and idle. But these were far
from being sufficient for the care of the poor throughout the kingdom
at large; and therefore, after many other fruitless experiments, by
statute 43 Eliz. c. 2. overseers of the poor were appointed in every
parish.
[Footnote k: c. 1. §. 3.]
BY virtue of the statute last mentioned, these overseers are to be
nominated yearly in Easter-week, or within one month after, by two
justices dwelling near the parish. They must be substantial
householders, and so expressed to be in the appointment of the
justices[l].
[Footnote l: 2 Lord Raym. 1394.]
THEIR office and duty, according to the same statute, are principally
these: first, to raise competent sums for the necessary relief of the
poor, impotent, old, blind, and such other, being poor and not able to
work: and, secondly, to provide work for such as are able, and cannot
otherwise get employment: but this latter part of their duty, which,
according to the wise regulations of that salutary statute, should go
hand in hand with the other, is now most shamefully neglected.
However, for these joint purposes, they are empowered to make and levy
rates upon the several inhabitants of the parish, by the same act of
parliament; which has been farther explained and enforced by several
subsequent statutes.
THE two great objects of this statute seem to have been, 1. To relieve
the impotent poor, and them only. 2. To find employment for such as
are able to work: and this principally by providing stocks to be
worked up at home, which perhaps might be more beneficial than
accumulating all the poor in one common work-house; a practice which
tends to destroy all domestic connexions (the only felicity of the
honest and industrious labourer) and to put the sober and diligent
upon a level, in point of their earnings, with those who are dissolute
and idle. Whereas, if none were to be relieved but those who are
incapable to get their livings, and that in proportion to their
incapacity; if no children were to be removed from their parents, but
such as are brought up in rags and idleness; and if every poor man and
his family were employed whenever they requested it, and were allowed
the whole profits of their labour;--a spirit of chearful industry
would soon diffuse itself through every cottage; work would become
easy and habitual, when absolutely necessary to their daily
subsistence; and the most indigent peasant would go through his task
without a murmur, if assured that he and his children (when incapable
of work through infancy, age, or infirmity) would then, and then only,
be intitled to support from his opulent neighbours.
THIS appears to have been the plan of the statute of queen Elizabeth;
in which the only defect was confining the management of the poor to
small, parochial, districts; which are frequently incapable of
furnishing proper work, or providing an able director. However, the
laborious poor were then at liberty to seek employment wherever it was
to be had; none being obliged to reside in the places of their
settlement, but such as were unable or unwilling to work; and those
places of settlement being only such where they were born, or had made
their abode, originally for three years[m], and afterwards (in the
case of vagabonds) for one year only[n].
[Footnote m: Stat. 19 Hen. VII. c. 12. 1 Edw. VI. c. 3. 3 Edw. VI. c.
16. 14 Eliz. c. 5.]
[Footnote n: Stat. 39 Eliz. c. 4.]
AFTER the restoration, a very different plan was adopted, which has
rendered the employment of the poor more difficult, by authorizing the
subdivision of parishes; has greatly increased their number, by
confining them all to their respective districts; has given birth to
the intricacy of our poor-laws, by multiplying and rendering more easy
the methods of gaining settlements; and, in consequence, has created
an infinity of expensive lawsuits between contending neighbourhoods,
concerning those settlements and removals. By the statute 13 & 14 Car.
II. c. 12. a legal settlement was declared to be gained by birth,
inhabitancy, apprenticeship, or service for forty days; within which
period all intruders were made removeable from any parish by two
justices of the peace, unless they settled in a tenement of the annual
value of 10_l._ The frauds, naturally consequent upon this provision,
which gave a settlement by so short a residence, produced the statute
1 Jac. II. c. 17. which directed notice in writing to be delivered to
the parish officers, before a settlement could be gained by such
residence. Subsequent provisions allowed other circumstances of
notoriety to be equivalent to such notice given; and those
circumstances have from time to time been altered, enlarged, or
restrained, whenever the experience of new inconveniences, arising
daily from new regulations, suggested the necessity of a remedy. And
the doctrine of certificates was invented, by way of counterpoise, to
restrain a man and his family from acquiring a new settlement by any
length of residence whatever, unless in two particular excepted cases;
which makes parishes very cautious of giving such certificates, and
of course confines the poor at home, where frequently no adequate
employment can be had.
THE law of settlements may be therefore now reduced to the following
general heads; or, a settlement in a parish may be acquired, 1. By
birth; which is always _prima facie_ the place of settlement, until
some other can be shewn[o]. This is also always the place of
settlement of a bastard child; for a bastard, having in the eye of the
law no father, cannot be referred to _his_ settlement, as other
children may[p]. But, in legitimate children, though the place of
birth be _prima facie_ the settlement, yet it is not conclusively so;
for there are, 2. Settlements by parentage, being the settlement of
one's father or mother: all children being really settled in the
parish where their parents are settled, until they get a new
settlement for themselves[q]. A new settlement may be acquired several
ways; as, 3. By marriage. For a woman, marrying a man that is settled
in another parish, changes her own: the law not permitting the
separation of husband and wife[r]. But if the man be a foreigner, and
has no settlement, her's is suspended during his life, if he be able
to maintain her; but after his death she may return again to her old
settlement[s]. The other methods of acquiring settlements in any
parish are all reducible to this one, of forty days residence therein:
but this forty days residence (which is construed to be lodging or
lying there) must not be by fraud, or stealth, or in any clandestine
manner; but accompanied with one or other of the following concomitant
circumstances. The next method therefore of gaining a settlement, is,
4. By forty days residence, and notice. For if a stranger comes into a
parish, and delivers notice in writing of his place of abode, and
number of his family, to one of the overseers (which must be read in
the church and registered) and resides there unmolested for forty days
after such notice, he is legally settled thereby[t]. For the law
presumes that such a one at the time of notice is not likely to
become chargeable, else he would not venture to give it; or that, in
such case, the parish would take care to remove him. But there are
also other circumstances equivalent to such notice: therefore, 5.
Renting for a year a tenement of the yearly value of ten pounds, and
residing forty days in the parish, gains a settlement without
notice[u]; upon the principle of having substance enough to gain
credit for such a house. 6. Being charged to and paying the public
taxes and levies of the parish; and, 7. Executing any public parochial
office for a whole year in the parish, as churchwarden, &c; are both
of them equivalent to notice, and gain a settlement[w], when coupled
with a residence of forty days. 8. Being hired for a year, when
unmarried, and serving a year in the same service; and 9. Being bound
an apprentice for seven years; give the servant and apprentice a
settlement, without notice[x], in that place wherein they serve the
last forty days. This is meant to encourage application to trades, and
going out to reputable services. 10. Lastly, the having an estate of
one's own, and residing thereon forty days, however small the value
may be, in case it be acquired by act of law or of a third person, as
by descent, gift, devise, &c, is a sufficient settlement[y]: but if a
man acquire it by his own act, as by purchase, (in it's popular sense,
in consideration of money paid) then[z] unless the consideration
advanced, _bona fide_, be 30_l._ it is no settlement for any longer
time, than the person shall inhabit thereon. He is in no case
removeable from his own property; but he shall not, by any trifling or
fraudulent purchase of his own, acquire a permanent and lasting
settlement.
[Footnote o: 1 Lord Raym. 567.]
[Footnote p: Salk. 427.]
[Footnote q: Salk. 528. 2 Lord Raym. 1473.]
[Footnote r: Stra. 544.]
[Footnote s: Foley. 249.]
[Footnote t: Stat. 13 & 14 Car. II c. 12. 1 Jac. II. c. 17. 3 & 4 W. &
M. c. 11.]
[Footnote u: Stat. 13 & 14 Car. II. c. 12.]
[Footnote w: Stat. 3 & 4 W. & M. c. 11.]
[Footnote x: Stat. 3 & 4 W. & M. c. 11. 8 & 9 W. III. c. 10. and 31
Geo. II. c. 11.]
[Footnote y: Salk. 524.]
[Footnote z: Stat. 9 Geo. I. c. 7.]
ALL persons, not so settled, may be removed to their own parishes, on
complaint of the overseers, by two justices of the peace, if they
shall adjudge them likely to become chargeable to the parish, into
which they have intruded: unless they are in a way of getting a legal
settlement, as by having hired a house of 10_l._ _per annum_, or
living in an annual service; for then they are not removeable[a]. And
in all other cases, if the parish to which they belong, will grant
them a certificate, acknowleging them to be _their_ parishioners, they
cannot be removed merely because _likely_ to become chargeable, but
only when they become _actually_ chargeable[b]. But such certificated
persons can gain no settlement by any of the means above-mentioned;
unless by renting a tenement of 10_l._ _per annum_, or by serving an
annual office in the parish, being legally placed therein: neither can
an apprentice or servant to such certificated person gain a settlement
by such their service[c].
[Footnote a: Salk. 472.]
[Footnote b: Stat. 8 & 9 W. III. c. 30.]
[Footnote c: Stat. 12 Ann. c. 18.]
THESE are the general heads of the laws relating to the poor, which,
by the resolutions of the courts of justice thereon within a century
past, are branched into a great variety. And yet, notwithstanding the
pains that has been taken about them, they still remain very
imperfect, and inadequate to the purposes they are designed for: a
fate, that has generally attended most of our statute laws, where they
have not the foundation of the common law to build on. When the
shires, the hundreds, and the tithings, were kept in the same
admirable order that they were disposed in by the great Alfred, there
were no persons idle, consequently none but the impotent that needed
relief: and the statute of 43 Eliz. seems entirely founded on the same
principle. But when this excellent scheme was neglected and departed
from, we cannot but observe with concern, what miserable shifts and
lame expedients have from time to time been adopted, in order to patch
up the flaws occasioned by this neglect. There is not a more necessary
or more certain maxim in the frame and constitution of society, than
that every individual must contribute his share, in order to the
well-being of the community: and surely they must be very deficient in
sound policy, who suffer one half of a parish to continue idle,
dissolute, and unemployed; and then form visionary schemes, and at
length are amazed to find, that the industry of the other half is not
able to maintain the whole.
CHAPTER THE TENTH.
OF THE PEOPLE, WHETHER ALIENS, DENIZENS, OR NATIVES.
HAVING, in the eight preceding chapters, treated of persons as they
stand in the public relations of _magistrates_, I now proceed to
consider such persons as fall under the denomination of the _people_.
And herein all the inferior and subordinate magistrates, treated of in
the last chapter, are included.
THE first and most obvious division of the people is into aliens and
natural-born subjects. Natural-born subjects are such as are born
within the dominions of the crown of England, that is, within the
ligeance, or as it is generally called, the allegiance of the king;
and aliens, such as are born out of it. Allegiance is the tie, or
_ligamen_, which binds the subject to the king, in return for that
protection which the king affords the subject. The thing itself, or
substantial part of it, is founded in reason and the nature of
government; the name and the form are derived to us from our Gothic
ancestors. Under the feodal system, every owner of lands held them in
subjection to some superior or lord, from whom or whose ancestors the
tenant or vasal had received them: and there was a mutual trust or
confidence subsisting between the lord and vasal, that the lord should
protect the vasal in the enjoyment of the territory he had granted
him, and, on the other hand, that the vasal should be faithful to the
lord and defend him against all his enemies. This obligation on the
part of the vasal was called his _fidelitas_ or fealty; and an oath of
fealty was required, by the feodal law, to be taken by all tenants to
their landlord, which is couched in almost the same terms as our
antient oath of allegiance[a]: except that in the usual oath of fealty
there was frequently a saving or exception of the faith due to a
superior lord by name, under whom the landlord himself was perhaps
only a tenant or vasal. But when the acknowlegement was made to the
absolute superior himself, who was vasal to no man, it was no longer
called the oath of fealty, but the oath of allegiance; and therein the
tenant swore to bear faith to his sovereign lord, in opposition to all
men, without any saving or exception: "_contra omnes homines
fidelitatem fecit_[b]." Land held by this exalted species of fealty
was called _feudum ligium_, a liege fee; the vasals _homines ligii_,
or liege men; and the sovereign their _dominus ligius_, or liege lord.
And when sovereign princes did homage to each other, for lands held
under their respective sovereignties, a distinction was always made
between _simple_ homage, which was only an acknowlegement of
tenure[c]; and _liege_ homage, which included the fealty
before-mentioned, and the services consequent upon it. Thus when
Edward III, in 1329, did homage to Philip VI of France, for his ducal
dominions on that continent, it was warmly disputed of what species
the homage was to be, whether _liege_ or _simple_ homage[d]. With us
in England, it becoming a settled principle of tenure, that _all_
lands in the kingdom are holden of the king as their sovereign and
lord paramount, no oath but that of fealty could ever be taken to
inferior lords, and the oath of allegiance was necessarily confined to
the person of the king alone. By an easy analogy the term of
allegiance was soon brought to signify all other engagements, which
are due from subjects to their prince, as well as those duties which
were simply and merely territorial. And the oath of allegiance, as
administred for upwards of six hundred years[e], contained a promise
"to be true and faithful to the king and his heirs, and truth and
faith to bear of life and limb and terrene honour, and not to know or
hear of any ill or damage intended him, without defending him
therefrom." Upon which sir Matthew Hale[f] makes this remark; that it
was short and plain, not entangled with long or intricate clauses or
declarations, and yet is comprehensive of the whole duty from the
subject to his sovereign. But, at the revolution, the terms of this
oath being thought perhaps to favour too much the notion of
non-resistance, the present form was introduced by the convention
parliament, which is more general and indeterminate than the former;
the subject only promising "that he will be faithful and bear _true_
allegiance to the king," without mentioning "his heirs," or specifying
in the least wherein that allegiance consists. The oath of supremacy
is principally calculated as a renuntiation of the pope's pretended
authority: and the oath of abjuration, introduced in the reign of king
William[g], very amply supplies the loose and general texture of the
oath of allegiance; it recognizing the right of his majesty, derived
under the act of settlement; engaging to support him to the utmost of
the juror's power; promising to disclose all traiterous conspiracies
against him; and expressly renouncing any claim of the pretender, by
name, in as clear and explicit terms as the English language can
furnish. This oath must be taken by all persons in any office, trust,
or employment; and may be tendered by two justices of the peace to any
person, whom they shall suspect of disaffection[h]. But the oath of
allegiance may be tendered[i] to all persons above the age of twelve
years, whether natives, denizens, or aliens, either in the court-leet
of the manor, or in the sheriff's tourn, which is the court-leet of
the county.
[Footnote a: 2 _Feud._ 5, 6, 7.]
[Footnote b: 2 _Feud._ 99.]
[Footnote c: 7 Rep. Calvin's case. 7.]
[Footnote d: 2 Carte. 401. Mod. Un. Hist. xxiii. 420.]
[Footnote e: Mirror. _c._ 3. §. 35. Fleta. 3. 16. Britton. _c._ 29. 7
Rep. Calvin's case. 6.]
[Footnote f: 1 Hal. P.C. 63.]
[Footnote g: Stat. 13 W. III. c. 6.]
[Footnote h: Stat. 1 Geo. I. c. 13.]
[Footnote i: 2 Inst. 121. 1 Hal. P.C. 64.]
BUT, besides these express engagements, the law also holds that there
is an implied, original, and virtual allegiance, owing from every
subject to his sovereign, antecedently to any express promise; and
although the subject never swore any faith or allegiance in form. For
as the king, by the very descent of the crown, is fully invested with
all the rights and bound to all the duties of sovereignty, before his
coronation; so the subject is bound to his prince by an intrinsic
allegiance, before the superinduction of those outward bonds of oath,
homage, and fealty; which were only instituted to remind the subject
of this his previous duty, and for the better securing it's
performance[k]. The formal profession therefore, or oath of
subjection, is nothing more than a declaration in words of what was
before implied in law. Which occasions sir Edward Coke very justly to
observe[l], that "all subjects are equally bounden to their
allegiance, as if they had taken the oath; because it is written by
the finger of the law in their hearts, and the taking of the corporal
oath is but an outward declaration of the same." The sanction of an
oath, it is true, in case of violation of duty, makes the guilt still
more accumulated, by superadding perjury to treason; but it does not
encrease the civil obligation to loyalty; it only strengthens the
_social_ tie by uniting it with that of _religion_.
[Footnote k: 1 Hal. P.C. 61.]
[Footnote l: 2 Inst. 121.]
ALLEGIANCE, both express and implied, is however distinguished by the
law into two sorts or species, the one natural, the other local; the
former being also perpetual, the latter temporary. Natural allegiance
is such as is due from all men born within the king's dominions
immediately upon their birth[m]. For, immediately upon their birth,
they are under the king's protection; at a time too, when (during
their infancy) they are incapable of protecting themselves. Natural
allegiance is therefore a debt of gratitude; which cannot be
forfeited, cancelled, or altered, by any change of time, place, or
circumstance, nor by any thing but the united concurrence of the
legislature[n]. An Englishman who removes to France, or to China, owes
the same allegiance to the king of England there as at home, and
twenty years hence as well as now. For it is a principle of universal
law[o], that the natural-born subject of one prince cannot by any act
of his own, no, not by swearing allegiance to another, put off or
discharge his natural allegiance to the former: for this natural
allegiance was intrinsic, and primitive, and antecedent to the other;
and cannot be devested without the concurrent act of that prince to
whom it was first due. Indeed the natural-born subject of one prince,
to whom he owes allegiance, may be entangled by subjecting himself
absolutely to another; but it is his own act that brings him into
these straits and difficulties, of owing service to two masters; and
it is unreasonable that, by such voluntary act of his own, he should
be able at pleasure to unloose those bands, by which he is connected
to his natural prince.
[Footnote m: 7 Rep. 7.]
[Footnote n: 2 P. Wms. 124.]
[Footnote o: 1 Hal. P.C. 68.]
LOCAL allegiance is such as is due from an alien, or stranger born,
for so long time as he continues within the king's dominion and
protection[p]: and it ceases, the instant such stranger transfers
himself from this kingdom to another. Natural allegiance is therefore
perpetual, and local temporary only: and that for this reason,
evidently founded upon the nature of government; that allegiance is a
debt due from the subject, upon an implied contract with the prince,
that so long as the one affords protection, so long the other will
demean himself faithfully. As therefore the prince is always under a
constant tie to protect his natural-born subjects, at all times and in
all countries, for this reason their allegiance due to him is equally
universal and permanent. But, on the other hand, as the prince affords
his protection to an alien, only during his residence in this realm,
the allegiance of an alien is confined (in point of time) to the
duration of such his residence, and (in point of locality) to the
dominions of the British empire. From which considerations sir Matthew
Hale[q] deduces this consequence, that, though there be an usurper of
the crown, yet it is treason for any subject, while the usurper is in
full possession of the sovereignty, to practice any thing against his
crown and dignity: wherefore, although the true prince regain the
sovereignty, yet such attempts against the usurper (unless in defence
or aid of the rightful king) have been afterwards punished with death;
because of the breach of that temporary allegiance, which was due to
him as king _de facto_. And upon this footing, after Edward IV
recovered the crown, which had been long detained from his house by
the line of Lancaster, treasons committed against Henry VI were
capitally punished, though Henry had been declared an usurper by
parliament.
[Footnote p: 7 Rep. 6.]
[Footnote q: 1 Hal. P.C. 60.]
THIS oath of allegiance, or rather the allegiance itself, is held to
be applicable not only to the political capacity of the king, or regal
office, but to his natural person, and blood-royal: and for the
misapplication of their allegiance, viz. to the regal capacity or
crown, exclusive of the person of the king, were the Spencers banished
in the reign of Edward II[r]. And from hence arose that principle of
personal attachment, and affectionate loyalty, which induced our
forefathers (and, if occasion required, would doubtless induce their
sons) to hazard all that was dear to them, life, fortune, and family,
in defence and support of their liege lord and sovereign.
[Footnote r: 1 Hal. P.C. 67.]
THIS allegiance then, both express and implied, is the duty of all the
king's subjects, under the distinctions here laid down, of local and
temporary, or universal and perpetual. Their rights are also
distinguishable by the same criterions of time and locality;
natural-born subjects having a great variety of rights, which they
acquire by being born within the king's ligeance, and can never
forfeit by any distance of place or time, but only by their own
misbehaviour: the explanation of which rights is the principal subject
of the two first books of these commentaries. The same is also in some
degree the case of aliens; though their rights are much more
circumscribed, being acquired only by residence here, and lost
whenever they remove. I shall however here endeavour to chalk out some
of the principal lines, whereby they are distinguished from natives,
descending to farther particulars when they come in course.
AN alien born may purchase lands, or other estates: but not for his
own use; for the king is thereupon entitled to them[s]. If an alien
could acquire a permanent property in lands, he must owe an
allegiance, equally permanent with that property, to the king of
England; which would probably be inconsistent with that, which he owes
to his own natural liege lord: besides that thereby the nation might
in time be subject to foreign influence, and feel many other
inconveniences. Wherefore by the civil law such contracts were also
made void[t]: but the prince had no such advantage of escheat thereby,
as with us in England. Among other reasons, which might be given for
our constitution, it seems to be intended by way of punishment for the
alien's presumption, in attempting to acquire any landed property: for
the vendor is not affected by it, he having resigned his right, and
received an equivalent in exchange. Yet an alien may acquire a
property in goods, money, and other personal estate, or may hire a
house for his habitation[u]: for personal estate is of a transitory
and moveable nature; and, besides, this indulgence to strangers is
necessary for the advancement of trade. Aliens also may trade as
freely as other people; only they are subject to certain higher duties
at the custom-house: and there are also some obsolete statutes of
Henry VIII, prohibiting alien artificers to work for themselves in
this kingdom; but it is generally held they were virtually repealed by
statute 5 Eliz. c. 7. Also an alien may bring an action concerning
personal property, and may make a will, and dispose of his personal
estate[w]: not as it is in France, where the king at the death of an
alien is entitled to all he is worth, by the _droit d'aubaine_ or _jus
albinatus_[x], unless he has a peculiar exemption. When I mention
these rights of an alien, I must be understood of alien-friends only,
or such whose countries are in peace with ours; for alien-enemies
have no rights, no privileges, unless by the king's special favour,
during the time of war.
[Footnote s: Co. Litt. 2.]
[Footnote t: _Cod._ _l._ 11. _tit._ 55.]
[Footnote u: 7 Rep. 17.]
[Footnote w: Lutw. 34.]
[Footnote x: The word is derived from _alibi natus_; Spelm. Gl. 24.]
WHEN I say, that an alien is one who is born out of the king's
dominions, or allegiance, this also must be understood with some
restrictions. The common law indeed stood absolutely so; with only a
very few exceptions: so that a particular act of parliament became
necessary after the restoration[y], for the naturalization of children
of his majesty's English subjects, born in foreign countries during
the late troubles. And this maxim of the law proceeded upon a general
principle, that every man owes natural allegiance where he is born,
and cannot owe two such allegiances, or serve two masters, at once.
Yet the children of the king's embassadors born abroad were always
held to be natural subjects[z]: for as the father, though in a foreign
country, owes not even a local allegiance to the prince to whom he is
sent; so, with regard to the son also, he was held (by a kind of
_postliminium_) to be born under the king of England's allegiance,
represented by his father, the embassador. To encourage also foreign
commerce, it was enacted by statute 25 Edw. III. st. 2. that all
children born abroad, provided _both_ their parents were at the time
of the birth in allegiance to the king, and the mother had passed the
seas by her husband's consent, might inherit as if born in England:
and accordingly it hath been so adjudged in behalf of merchants[a].
But by several more modern statutes[b] these restrictions are still
farther taken off: so that all children, born out of the king's
ligeance, whose _fathers_ were natural-born subjects, are now
natural-born subjects themselves, to all intents and purposes, without
any exception; unless their said fathers were attainted, or banished
beyond sea, for high treason; or were then in the service of a prince
at enmity with Great Britain.
[Footnote y: Stat. 29 Car. II. c. 6.]
[Footnote z: 7 Rep. 18.]
[Footnote a: Cro. Car. 601. Mar. 91. Jenk. Cent. 3.]
[Footnote b: 7 Ann. c. 5. and 4 Geo. II. c. 21.]
THE children of aliens, born here in England, are, generally speaking,
natural-born subjects, and entitled to all the privileges of such. In
which the constitution of France differs from ours; for there, by
their _jus albinatus_, if a child be born of foreign parents, it is an
alien[c].
[Footnote c: Jenk. Cent. 3. cites _treasure françois_, 312.]
A DENIZEN is an alien born, but who has obtained _ex donatione regis_
letters patent to make him an English subject: a high and
incommunicable branch of the royal prerogative[d]. A denizen is in a
kind of middle state between an alien, and natural-born subject, and
partakes of both of them. He may take lands by purchase or devise,
which an alien may not; but cannot take by inheritance[e]: for his
parent, through whom he must claim, being an alien had no inheritable
blood, and therefore could convey none to the son. And, upon a like
defect of hereditary blood, the issue of a denizen, born _before_
denization, cannot inherit to him; but his issue born _after_, may[f].
A denizen is not excused[g] from paying the alien's duty, and some
other mercantile burthens. And no denizen can be of the privy council,
or either house of parliament, or have any office of trust, civil or
military, or be capable of any grant from the crown[h].
[Footnote d: 7 Rep. Calvin's case. 25.]
[Footnote e: 11 Rep. 67.]
[Footnote f: Co. Litt. 8. Vaugh. 285.]
[Footnote g: Stat. 22 Hen. VIII. c. 8.]
[Footnote h: Stat. 12 W. III. c. 2.]
NATURALIZATION cannot be performed but by act of parliament: for by
this an alien is put in exactly the same state as if he had been born
in the king's ligeance; except only that he is incapable, as well as a
denizen, of being a member of the privy council, or parliament, &c[i].
No bill for naturalization can be received in either house of
parliament, without such disabling clause in it[k]. Neither can any
person be naturalized or restored in blood, unless he hath received
the sacrament of the Lord's supper within one month before the
bringing in of the bill; and unless he also takes the oaths of
allegiance and supremacy in the presence of the parliament[l].
[Footnote i: _Ibid._]
[Footnote k: Stat. 1 Geo. I. c. 4.]
[Footnote l: Stat. 7 Jac. I. c. 2.]
THESE are the principal distinctions between aliens, denizens, and
natives: distinctions, which endeavors have been frequently used since
the commencement of this century to lay almost totally aside, by one
general naturalization-act for all foreign protestants. An attempt
which was once carried into execution by the statute 7 Ann. c. 5. but
this, after three years experience of it, was repealed by the statute
10 Ann. c. 5. except one clause, which was just now mentioned, for
naturalizing the children of English parents born abroad. However,
every foreign seaman who in time of war serves two years on board an
English ship is _ipso facto_ naturalized[m]; and all foreign
protestants, and Jews, upon their residing seven years in any of the
American colonies, without being absent above two months at a time,
are upon taking the oaths naturalized to all intents and purposes, as
if they had been born in this kingdom[n]; and therefore are admissible
to all such privileges, and no other, as protestants or Jews born in
this kingdom are entitled to. What those privileges are[o], was the
subject of very high debates about the time of the famous Jew-bill[p];
which enabled all Jews to prefer bills of naturalization in
parliament, without receiving the sacrament, as ordained by statute 7
Jac. I. It is not my intention to revive this controversy again; for
the act lived only a few months, and was then repealed[q]: therefore
peace be now to it's _manes_.
[Footnote m: Stat. 13 Geo. II. c. 3.]
[Footnote n: Stat. 13 Geo. II. c. 7. 20 Geo. II. c. 24. 2 Geo. III. c.
25.]
[Footnote o: A pretty accurate account of the Jews, till their
banishment in 8 Edw. I. may be found in Molloy _de jure maritimo_, b.
3. c. 6.]
[Footnote p: Stat. 26 Geo. II. c. 26.]
[Footnote q: Stat. 27 Geo. II. c. 1.]
CHAPTER THE ELEVENTH.
OF THE CLERGY.
THE people, whether aliens, denizens, or natural-born subjects, are
divisible into two kinds; the clergy and laity: the clergy,
comprehending all persons in holy orders, and in ecclesiastical
offices, will be the subject of the following chapter.
THIS venerable body of men, being separate and set apart from the rest
of the people, in order to attend the more closely to the service of
almighty God, have thereupon large privileges allowed them by our
municipal laws: and had formerly much greater, which were abridged at
the time of the reformation, on account of the ill use which the
popish clergy had endeavoured to make of them. For, the laws having
exempted them from almost every personal duty, they attempted a total
exemption from every secular tie. But it is observed by sir Edward
Coke[a], that, as the overflowing of waters doth many times make the
river to lose it's proper chanel, so in times past ecclesiastical
persons, seeking to extend their liberties beyond their true bounds,
either lost or enjoyed not those which of right belonged to them. The
personal exemptions do indeed for the most part continue. A clergyman
cannot be compelled to serve on a jury, nor to appear at a court-leet
or view of frank pledge; which almost every other person is obliged to
do[b]: but, if a layman is summoned on a jury, and before the trial
takes orders, he shall notwithstanding appear and be sworn[c]. Neither
can he be chosen to any temporal office; as bailiff, reeve, constable,
or the like: in regard of his own continual attendance on the sacred
function[d]. During his attendance on divine service he is privileged
from arrests in civil suits[e]. In cases also of felony, a clerk in
orders shall have the benefit of his clergy, without being branded in
the hand; and may likewise have it more than once: in both which
particulars he is distinguished from a layman[f]. But as they have
their privileges, so also they have their disabilities, on account of
their spiritual avocations. Clergymen, we have seen[g], are incapable
of sitting in the house of commons; and by statute 21 Hen. VIII. c.
13. are not allowed to take any lands or tenements to farm, upon pain
of 10_l._ _per_ month, and total avoidance of the lease; nor shall
engage in any manner of trade, nor sell any merchandize, under
forfeiture of the treble value. Which prohibition is consonant to the
canon law.
[Footnote a: 2 Inst. 4.]
[Footnote b: F.N.B. 160. 2 Inst. 4.]
[Footnote c: 4 Leon. 190.]
[Footnote d: Finch. L. 88.]
[Footnote e: Stat. 50 Edw. III. c. 5. 1 Ric. II. c. 16.]
[Footnote f: 2 Inst. 637. Stat. 4 Hen. VII. c. 13. & 1 Edw. VI. c.
12.]
[Footnote g: page 169.]
IN the frame and constitution of ecclesiastical polity there are
divers ranks and degrees: which I shall consider in their respective
order, merely as they are taken notice of by the secular laws of
England; without intermeddling with the canons and constitutions, by
which they have bound themselves. And under each division I shall
consider, 1. The method of their appointment; 2. Their rights and
duties; and 3. The manner wherein their character or office may cease.
I. AN arch-bishop or bishop is elected by the chapter of his cathedral
church, by virtue of a licence from the crown. Election was, in very
early times, the usual mode of elevation to the episcopal chair
throughout all christendom; and this was promiscuously performed by
the laity as well as the clergy[h]: till at length, it becoming
tumultuous, the emperors and other sovereigns of the respective
kingdoms of Europe took the election in some degree into their own
hands; by reserving to themselves the right of confirming these
elections, and of granting investiture of the temporalties, which now
began almost universally to be annexed to this spiritual dignity;
without which confirmation and investiture, the elected bishop could
neither be consecrated, nor receive any secular profits. This right
was acknowleged in the emperor Charlemagne, _A.D._ 773, by pope
Hadrian I, and the council of Lateran[i], and universally exercised by
other christian princes: but the policy of the court of Rome at the
same time began by degrees to exclude the laity from any share in
these elections, and to confine them wholly to the clergy, which at
length was completely effected; the mere form of election appearing to
the people to be a thing of little consequence, while the crown was in
possession of an absolute negative, which was almost equivalent to a
direct right of nomination. Hence the right of appointing to
bishopricks is said to have been in the crown of England[k] (as well
as other kingdoms in Europe) even in the Saxon times, because the
rights of confirmation and investiture were in effect (though not in
form) a right of complete donation[l]. But when, by length of time,
the custom of making elections by the clergy only was fully
established, the popes began to except to the usual method of granting
these investitures, which was _per annulum et baculum_, by the
prince's delivering to the prelate a ring, and a pastoral staff or
crosier; pretending, that this was an encroachment on the church's
authority, and an attempt by these symbols to confer a spiritual
jurisdiction: and pope Gregory VII, towards the close of the eleventh
century, published a bulle of excommunication against all princes who
should dare to confer investitures, and all prelates who should
venture to receive them[m]. This was a bold step towards effecting the
plan then adopted by the Roman see, of rendering the clergy intirely
independent of the civil authority: and long and eager were the
contests occasioned by this dispute. But at length when the emperor
Henry V agreed to remove all suspicion of encroachment on the
spiritual character, by conferring investitures for the future _per
sceptrum_ and not _per annulum et baculum_; and when the kings of
England and France consented also to alter the form in their kingdoms,
and receive only homage from the bishops for their temporalties,
instead of investing them by the ring and crosier; the court of Rome
found it prudent to suspend for a while it's other pretensions[n].
[Footnote h: _per clerum et populum._ Palm. 25. 2 Roll. Rep. 102. M.
Paris. _A.D._ 1095.]
[Footnote i: _Decret._ 1. _dist._ 63. _c._ 22.]
[Footnote k: Palm. 28.]
[Footnote l: "_Nulla electio praelatorum (sunt verba Ingulphi) erat
mere libera et canonica; sed omnes dignitates tam episcoporum, quam
abbatum, per annulum et baculum regis curia pro sua complacentia
conferebat._" _Penes clericos et monachos fuit electio, sed electum a
rege postulabant._ Selden. _Jan. Angl._ l. 1. §. 39.]
[Footnote m: _Decret._ 2. _caus._ 16. _qu._ 7. _c._ 12 & 13.]
[Footnote n: Mod. Un. Hist. xxv. 363. xxix. 115.]
THIS concession was obtained from king Henry the first in England, by
means of that obstinate and arrogant prelate, arch-bishop Anselm[o]:
but king John (about a century afterwards) in order to obtain the
protection of the pope against his discontented barons, was prevailed
upon to give up by a charter, to all the monasteries and cathedrals in
the kingdom, the free right of electing their prelates, whether abbots
or bishops: reserving only to the crown the custody of the
temporalties during the vacancy; the form of granting a licence to
elect, (which is the original of our _conge d'eslire_) on refusal
whereof the electors might proceed without it; and the right of
approbation afterwards, which was not to be denied without a
reasonable and lawful cause[p]. This grant was expressly recognized
and confirmed in king John's _magna carta_[q], and was again
established by statute 25 Edw. III. st. 6. §. 3.
[Footnote o: M. Paris. _A.D._ 1107.]
[Footnote p: M. Paris. _A.D._ 1214. 1 Rym. _Foed._ 198.]
[Footnote q: _cap._ 1. _edit. Oxon._ 1759.]
BUT by statute 25 Hen. VIII. c. 20. the antient right of nomination
was, in effect, restored to the crown: it being enacted that, at every
future avoidance of a bishoprick, the king may send the dean and
chapter his usual licence to proceed to election; which is always to
be accompanied with a letter missive from the king, containing the
name of the person whom he would have them elect: and, if the dean and
chapter delay their election above twelve days, the nomination shall
devolve to the king, who may by letters patent appoint such person as
he pleases. This election or nomination, if it be of a bishop, must be
signified by the king's letters patent to the arch-bishop of the
province; if it be of an arch-bishop, to the other arch-bishop and two
bishops, or to four bishops; requiring them to confirm, invest, and
consecrate the person so elected: which they are bound to perform
immediately, without any application to the see of Rome. After which
the bishop elect shall sue to the king for his temporalties, shall
make oath to the king and none other, and shall take restitution of
his secular possessions out of the king's hands only. And if such dean
and chapter do not elect in the manner by this act appointed, or if
such arch-bishop or bishop do refuse to confirm, invest, and
consecrate such bishop elect, they shall incur all the penalties of a
_praemunire_.
AN arch-bishop is the chief of the clergy in a whole province; and has
the inspection of the bishops of that province, as well as of the
inferior clergy, and may deprive them on notorious cause[r]. The
arch-bishop has also his own diocese, wherein he exercises episcopal
jurisdiction; as in his province he exercises archiepiscopal. As
arch-bishop, he, upon receipt of the king's writ, calls the bishops
and clergy of his province to meet in convocation: but without the
king's writ he cannot assemble them[s]. To him all appeals are made
from inferior jurisdictions within his province; and, as an appeal
lies from the bishops in person to him in person, so it also lies from
the consistory courts of each diocese to his archiepiscopal court.
During the vacancy of any see in his province, he is guardian of the
spiritualties thereof, as the king is of the temporalties; and he
executes all ecclesiastical jurisdiction therein. If an archiepiscopal
see be vacant, the dean and chapter are the spiritual guardians, ever
since the office of prior of Canterbury was abolished at the
reformation[t]. The arch-bishop is entitled to present by lapse to all
the ecclesiastical livings in the disposal of his diocesan bishops,
if not filled within six months. And the arch-bishop has a customary
prerogative, when a bishop is consecrated by him, to name a clerk or
chaplain of his own to be provided for by such suffragan bishop; in
lieu of which it is now usual for the bishop to make over by deed to
the arch-bishop, his executors and assigns, the next presentation of
such dignity or benefice in the bishop's disposal within that see, as
the arch-bishop himself shall choose; which is therefore called his
option[u]: which options are only binding on the bishop himself who
grants them, and not his successors. The prerogative itself seems to
be derived from the legatine power formerly annexed by the popes to
the metropolitan of Canterbury[w]. And we may add, that the papal
claim itself (like most others of that encroaching see) was probably
set up in imitation of the imperial prerogative called _primae_ or
_primariae preces_; whereby the emperor exercises, and hath
immemorially exercised[x], a right of naming to the first prebend that
becomes vacant after his accession in every church of the empire[y]. A
right, that was also exercised by the crown of England in the reign of
Edward I[z]; and which probably gave rise to the royal corodies, which
were mentioned in a former chapter[a]. It is also the privilege, by
custom, of the arch-bishop of Canterbury, to crown the kings and
queens of this kingdom. And he hath also by the statute 25 Hen. VIII.
c. 21. the power of granting dispensations in any case, not contrary
to the holy scriptures and the law of God, where the pope used
formerly to grant them: which is the foundation of his granting
special licences, to marry at any place or time, to hold two livings,
and the like: and on this also is founded the right he exercises of
conferring degrees, in prejudice of the two universities[b].
[Footnote r: Lord Raym. 541.]
[Footnote s: 4 Inst. 322, 323.]
[Footnote t: 2 Roll. Abr. 223.]
[Footnote u: Cowel's interpr. tit. option.]
[Footnote w: Sherlock of options. 1.]
[Footnote x: Goldast. _constit. imper._ _tom._ 3. _pag._ 406.]
[Footnote y: Dufresne. V. 806. Mod. Un. Hist. xxix. 5.]
[Footnote z: _Rex, &c, salutem. Scribatis episcopo Karl. quod--Roberto
de Icard pensionem suam, quam ad preces regis praedicto Roberto
concessit, de caetero solvat; et de proxima ecclesia vacatura de
collatione praedicti episcopi, quam ipse Robertus acceptaverit,
respiciat._ _Brev._ 11 Edw. I. 3 Pryn. 1264.]
[Footnote a: ch. 8. pag. 273.]
[Footnote b: See the bishop of Chester's case. Oxon. 1721.]
THE power and authority of a bishop, besides the administration of
certain holy ordinances peculiar to that sacred order, consists
principally in inspecting the manners of the people and clergy, and
punishing them, in order to reformation, by ecclesiastical censures.
To this purpose he has several courts under him, and may visit at
pleasure every part of his diocese. His chancellor is appointed to
hold his courts for him, and to assist him in matters of
ecclesiastical law; who, as well as all other ecclesiastical officers,
if lay or married, must be a doctor of the civil law, so created in
some university[c]. It is also the business of a bishop to institute
and to direct induction to all ecclesiastical livings in his diocese.
[Footnote c: Stat. 37 Hen. VIII. c. 17.]
ARCHBISHOPRICKS and bishopricks may become void by death, deprivation
for any very gross and notorious crime, and also by resignation. All
resignations must be made to some superior[d]. Therefore a bishop must
resign to his metropolitan; but the arch-bishop can resign to none but
the king himself.
[Footnote d: Gibs. cod. 822.]
II. A DEAN and chapter are the council of the bishop, to assist him
with their advice in affairs of religion, and also in the temporal
concerns of his see[e]. When the rest of the clergy were settled in
the several parishes of each diocese (as hath formerly[f] been
mentioned) these were reserved for the celebration of divine service
in the bishop's own cathedral; and the chief of them, who presided
over the rest, obtained the name of _decanus_ or dean, being probably
at first appointed to superintend _ten_ canons or prebendaries.
[Footnote e: 3 Rep. 75. Co. Litt. 103, 300.]
[Footnote f: pag. 108, 109.]
ALL antient deans are elected by the chapter, by _conge d'eslire_ from
the king, and letters missive of recommendation; in the same manner as
bishops: but in those chapters, that were founded by Henry VIII out of
the spoils of the dissolved monasteries, the deanery is donative, and
the installation merely by the king's letters patent[g]. The chapter,
consisting of canons or prebendaries, are sometimes appointed by the
king, sometimes by the bishop, and sometimes elected by each other.
[Footnote g: Gibs. cod. 173.]
THE dean and chapter are, as was before observed, the nominal electors
of a bishop. The bishop is their ordinary and immediate superior; and
has, generally speaking, the power of visiting them, and correcting
their excesses and enormities. They had also a check on the bishop at
common law: for till the statute 32 Hen. VIII. c. 28. his grant or
lease would not have bound his successors, unless confirmed by the
dean and chapter[h].
[Footnote h: Co. Litt. 103.]
DEANERIES and prebends may become void, like a bishoprick, by death,
by deprivation, or by resignation to either the king or the bishop[j].
Also I may here mention, once for all, that if a dean, prebendary, or
other spiritual person be made a bishop, all the preferments he was
before possessed of are void; and the king may present to them in
right of his prerogative royal. But they are not void by the election,
but only by the consecration[i].
[Footnote j: Plowd. 498.]
[Footnote i: 2 Roll. Abr. 352. Salk. 137. [Transcriber's Note:
Footnotes j and i are in this order in the original.]]
III. AN arch-deacon hath an ecclesiastical jurisdiction, immediately
subordinate to the bishop, throughout the whole of his diocese, or in
some particular part of it. He is usually appointed by the bishop
himself; and hath a kind of episcopal authority, originally derived
from the bishop, but now independent and distinct from his[k]. He
therefore visits the clergy; and has his separate court for punishment
of offenders by spiritual censures, and for hearing all other causes
of ecclesiastical cognizance.
[Footnote k: 1 Burn. eccl. law. 68, 69.]
IV. THE rural deans are very antient officers of the church[l], but
almost grown out of use; though their deaneries still subsist as an
ecclesiastical division of the diocese, or archdeaconry. They seem to
have been deputies of the bishop, planted all round his diocese, the
better to inspect the conduct of the parochial clergy, and therefore
armed with an inferior degree of judicial and coercive authority[m].
[Footnote l: Kennet. par. antiq. 633.]
[Footnote m: Gibs. cod. 972.]
V. THE next, and indeed the most numerous order of men in the system
of ecclesiastical polity, are the parsons and vicars of parishes: in
treating of whom I shall first mark out the distinction between them;
shall next observe the method by which one may become a parson or
vicar; shall then briefly touch upon their rights and duties; and
shall, lastly, shew how one may cease to be either.
A PARSON, _persona ecclesiae_, is one that hath full possession of all
the rights of a parochial church. He is called parson, _persona_,
because by his person the church, which is an invisible body, is
represented; and he is in himself a body corporate, in order to
protect and defend the rights of the church (which he personates) by a
perpetual succession[n]. He is sometimes called the rector, or
governor, of the church: but the appellation of _parson_, (however it
may be depreciated by familiar, clownish, and indiscriminate use) is
the most legal, most beneficial, and most honourable title that a
parish priest can enjoy; because such a one, (sir Edward Coke
observes) and he only, is said _vicem seu personam ecclesiae gerere_.
A parson has, during his life, the freehold in himself of the
parsonage house, the glebe, the tithes, and other dues. But these are
sometimes _appropriated_; that is to say, the benefice is perpetually
annexed to some spiritual corporation, either sole or aggregate, being
the patron of the living; whom the law esteems equally capable of
providing for the service of the church, as any single private
clergyman. This contrivance seems to have sprung from the policy of
the monastic orders, who have never been deficient in subtle
inventions for the increase of their own power and emoluments. At the
first establishment of parochial clergy, the tithes of the parish were
distributed in a fourfold division; one for the use of the bishop,
another for maintaining the fabrick of the church, a third for the
poor, and the fourth to provide for the incumbent. When the sees of
the bishops became otherwise amply endowed, they were prohibited from
demanding their usual share of these tithes, and the division was into
three parts only. And hence it was inferred by the monasteries, that a
small part was sufficient for the officiating priest, and that the
remainder might well be applied to the use of their own fraternities,
(the endowment of which was construed to be a work of the most exalted
piety) subject to the burthen of repairing the church and providing
for it's constant supply. And therefore they begged and bought, for
masses and obits, and sometimes even for money, all the advowsons
within their reach, and then appropriated the benefices to the use of
their own corporation. But, in order to complete such appropriation
effectually, the king's licence, and consent of the bishop, must first
be obtained; because both the king and the bishop may sometime or
other have an interest, by lapse, in the presentation to the benefice;
which can never happen if it be appropriated to the use of a
corporation, which never dies: and also because the law reposes a
confidence in them, that they will not consent to any thing that shall
be to the prejudice of the church. The consent of the patron also is
necessarily implied, because (as was before observed) the
appropriation can be originally made to none, but to such spiritual
corporation, as is also the patron of the church; the whole being
indeed nothing else, but an allowance for the patrons to retain the
tithes and glebe in their own hands, without presenting any clerk,
they themselves undertaking to provide for the service of the
church[o]. When the appropriation is thus made, the appropriators and
their successors are perpetual parsons of the church; and must sue and
be sued, in all matters concerning the rights of the church, by the
name of parsons[p].
[Footnote n: Co. Litt. 300.]
[Footnote o: Plowd. 496-500.]
[Footnote p: Hob. 307.]
THIS appropriation may be severed, and the church become
disappropriate, two ways: as, first, if the patron or appropriator
presents a clerk, who is instituted and inducted to the parsonage:
for the incumbent so instituted and inducted is to all intents and
purposes complete parson; and the appropriation, being once severed,
can never be re-united again, unless by a repetition of the same
solemnities[q]. And when the clerk so presented is distinct from the
vicar, the rectory thus vested in him becomes what is called a
_sine-cure_; because he hath no cure of souls, having a vicar under
him to whom that cure is committed[r]. Also, if the corporation which
has the appropriation is dissolved, the parsonage becomes
disappropriate at common law; because the perpetuity of person is
gone, which is necessary to support the appropriation.
[Footnote q: Co. Litt. 46.]
[Footnote r: Sine-cures might also be created by other means. 2 Burn.
eccl. law. 347.]
IN this manner, and subject to these conditions, may appropriations be
made at this day: and thus were most, if not all, of the
appropriations at present existing originally made; being annexed to
bishopricks, prebends, religious houses, nay, even to nunneries, and
certain military orders, all of which were spiritual corporations. At
the dissolution of monasteries by statutes 27 Hen. VIII. c. 28. and 31
Hen. VIII. c. 13. the appropriations of the several parsonages, which
belonged to those respective religious houses, (amounting to more than
one third of all the parishes in England[s]) would have been by the
rules of the common law disappropriated; had not a clause in those
statutes intervened, to give them to the king in as ample a manner as
the abbots, &c, formerly held the same, at the time of their
dissolution. This, though perhaps scarcely defensible, was not without
example; for the same was done in former reigns, when the alien
priories, (that is, such as were filled by foreigners only) were
dissolved and given to the crown[t]. And from these two roots have
sprung all the lay appropriations or secular parsonages, which we now
see in the kingdom; they having been afterwards granted out from time
to time by the crown[u].
[Footnote s: Seld. review of tith. c. 9. Spelm. Apology. 35.]
[Footnote t: 2 Inst. 584.]
[Footnote u: Sir H. Spelman (of tythes, c. 29.) says these are now
called impropriations, as being _improperly_ in the hands of laymen.]
THESE appropriating corporations, or religious houses, were wont to
depute one of their own body to perform divine service, and administer
the sacraments, in those parishes of which the society was thus the
parson. This officiating minister was in reality no more than a
curate, deputy, or vicegerent of the appropriator, and therefore
called _vicarius_, or _vicar_. His stipend was at the discretion of
the appropriator, who was however bound of common right to find
somebody, _qui illi de temporalibus, episcopo de spiritualibus, debeat
respondere_[w]. But this was done in so scandalous a manner, and the
parishes suffered so much by the neglect of the appropriators, that
the legislature was forced to interpose: and accordingly it is enacted
by statute 15 Ric. II. c. 6. that in all appropriations of churches,
the diocesan bishop shall ordain (in proportion to the value of the
church) a competent sum to be distributed among the poor parishioners
annually; and that the vicarage shall be _sufficiently_ endowed. It
seems the parish were frequently sufferers, not only by the want of
divine service, but also by withholding those alms, for which, among
other purposes, the payment of tithes was originally imposed: and
therefore in this act a pension is directed to be distributed among
the poor parochians, as well as a sufficient stipend to the vicar. But
he, being liable to be removed at the pleasure of the appropriator,
was not likely to insist too rigidly on the legal sufficiency of the
stipend: and therefore by statute 4 Hen. IV. c. 12. it is ordained,
that the vicar shall be a secular person, not a member of any
religious house; that he shall be vicar perpetual, not removeable at
the caprice of the monastery; and that he shall be canonically
instituted and inducted, and be sufficiently endowed, at the
discretion of the ordinary, for these three express purposes, to do
divine service, to inform the people, and to keep hospitality. The
endowments in consequence of these statutes have usually been by a
portion of the glebe, or land, belonging to the parsonage, and a
particular share of the tithes, which the appropriators found it most
troublesome to collect, and which are therefore generally called
privy, small, or vicarial, tithes; the greater, or predial, tithes
being still referred to their own use. But one and the same rule was
not observed in the endowment of all vicarages. Hence some are more
liberally, and some more scantily, endowed; and hence many things, as
wood in particular, is in some countries a predial, and in some a
vicarial tithe.
[Footnote w: Seld. tith. c. 11. 1.]
THE distinction therefore of a parson and vicar is this; that the
parson has for the most part the whole right to all the ecclesiastical
dues in his parish; but a vicar has generally an appropriator over
him, entitled to the best part of the profits, to whom he is in effect
perpetual curate, with a standing salary. Though in some places the
vicarage has been considerably augmented by a large share of the great
tithes; which augmentations were greatly assisted by the statute 29
Car. II. c. 8. enacted in favour of poor vicars and curates, which
rendered such temporary augmentations (when made by the appropriators)
perpetual.
THE method of becoming a parson or vicar is much the same. To both
there are four requisites necessary: holy orders; presentation;
institution; and induction. The method of conferring the holy orders
of deacon and priest, according to the liturgy and canons[x], is
foreign to the purpose of these commentaries; any farther than as they
are necessary requisites to make a complete parson or vicar. By common
law a deacon, of any age, might be instituted and inducted to a
parsonage or vicarage: but it was ordained by statute 13 Eliz. c. 12.
that no person under twenty three years of age, and in deacon's
orders, should be presented to any benefice with cure; and if he were
not ordained priest within one year after his induction, he should be
_ipso facto_ deprived: and now, by statute 13 & 14 Car. II. c. 4. no
person is capable to be admitted to any benefice, unless he hath been
first ordained a priest; and then he is, in the language of the law, a
clerk in orders. But if he obtains orders, or a licence to preach, by
money or corrupt practices (which seems to be the true, though not the
common notion of simony) the person giving such orders forfeits[y]
40_l._ and the person receiving 10_l._ and is incapable of any
ecclesiastical preferment for seven years afterwards.
[Footnote x: See 2 Burn. eccl. law. 103.]
[Footnote y: Stat. 31 Eliz. c. 6.]
ANY clerk may be presented[z] to a parsonage or vicarage; that is, the
patron, to whom the advowson of the church belongs, may offer his
clerk to the bishop of the diocese to be instituted. Of advowsons, or
the right of presentation, being a species of private property, we
shall find a more convenient place to treat in the second part of
these commentaries. But when a clerk is presented, the bishop may
refuse him upon many accounts. As, 1. If the patron is excommunicated,
and remains in contempt forty days[a]. Or, 2. If the clerk be
unfit[b]: which unfitness is of several kinds. First, with regard to
his person; as if he be a bastard, an outlaw, an excommunicate, an
alien, under age, or the like[c]. Next, with regard to his faith or
morals; as for any particular heresy, or vice that is _malum in se_:
but if the bishop alleges only in generals, as that he is
_schismaticus inveteratus_, or objects a fault that is _malum
prohibitum_ merely, as haunting taverns, playing at unlawful games, or
the like; it is not good cause of refusal[d]. Or, lastly, the clerk
may be unfit to discharge the pastoral office for want of learning. In
any of which cases the bishop may refuse the clerk. In case the
refusal is for heresy, schism, inability of learning, or other matter
of ecclesiastical cognizance, there the bishop must give notice to the
patron of such his cause of refusal, who, being usually a layman, is
not supposed to have knowlege of it; else he cannot present by lapse:
but if the cause be temporal, there he is not bound to give notice[e].
[Footnote z: A layman may also be presented; but he must take priests
orders before his admission. 1 Burn. 103.]
[Footnote a: 2 Roll. Abr. 355.]
[Footnote b: Glanv. _l._ 13. _c._ 20.]
[Footnote c: 2 Roll. Abr. 356. 2 Inst. 632. Stat. 3 Ric. II. c. 3. 7
Ric. II. c. 12.]
[Footnote d: 5 Rep. 58.]
[Footnote e: 2 Inst. 632.]
IF an action at law be brought by the patron against the bishop, for
refusing his clerk, the bishop must assign the cause. If the cause be
of a temporal nature and the fact admitted, (as, for instance,
outlawry) the judges of the king's courts must determine it's
validity, or, whether it be sufficient cause of refusal: but if the
fact be denied, it must be determined by a jury. If the cause be of a
spiritual nature, (as, heresy, particularly alleged) the fact if
denied shall also be determined by a jury; and if the fact be admitted
or found, the court upon consultation and advice of learned divines
shall decide it's sufficiency[f]. If the cause be want of learning,
the bishop need not specify in what points the clerk is deficient, but
only allege that he _is_ deficient[g]: for the statute 9 Edw. II. st.
1. c. 13. is express, that the examination of the fitness of a person
presented to a benefice belongs to the ecclesiastical judge. But
because it would be nugatory in this case to demand the reason of
refusal from the ordinary, if the patron were bound to abide by his
determination, who has already pronounced his clerk unfit; therefore
if the bishop returns the clerk to be _minus sufficiens in
literatura_, the court shall write to the metropolitan, to reexamine
him, and certify his qualifications; which certificate of the
arch-bishop is final[h].
[Footnote f: 2 Inst. 632.]
[Footnote g: 5 Rep. 58. 3 Lev. 313.]
[Footnote h: 2 Inst. 632.]
IF the bishop hath no objections, but admits the patron's
presentation, the clerk so admitted is next to be instituted by him;
which is a kind of investiture of the spiritual part of the benefice:
for by institution the care of the souls of the parish is committed to
the charge of the clerk. When a vicar is instituted, he (besides the
usual forms) takes, if required by the bishop, an oath of perpetual
residence; for the maxim of law is, that _vicarius non habet
vicarium_: and as the non-residence of the appropriators was the cause
of the perpetual establishment of vicarages, the law judges it very
improper for them to defeat the end of their constitution, and by
absence to create the very mischiefs which they were appointed to
remedy: especially as, if any profits are to arise from putting in a
curate and living at a distance from the parish, the appropriator, who
is the real parson, has undoubtedly the elder title to them. When the
ordinary is also the patron, and _confers_ the living, the
presentation and institution are one and the same act, and are called
a collation to a benefice. By institution or collation the church is
full, so that there can be no fresh presentation till another vacancy,
at least in the case of a common patron; but the church is not full
against the king, till induction: nay, even if a clerk is instituted
upon the king's presentation, the crown may revoke it before
induction, and present another clerk[i]. Upon institution also the
clerk may enter on the parsonage house and glebe, and take the tithes;
but he cannot grant or let them, or bring any action for them, till
induction.
[Footnote i: Co. Litt. 344.]
INDUCTION is performed by a mandate from the bishop to the
arch-deacon, who usually issues out a precept to other clergymen to
perform it for him. It is done by giving the clerk corporal possession
of the church, as by holding the ring of the door, tolling a bell, or
the like; and is a form required by law, with intent to give all the
parishioners due notice, and sufficient certainty of their new
minister, to whom their tithes are to be paid. This therefore is the
investiture of the temporal part of the benefice, as institution is of
the spiritual. And when a clerk is thus presented, instituted, and
inducted into a rectory, he is then, and not before, in full and
complete possession, and is called in law _persona impersonata_, or
parson imparsonee[k].
[Footnote k: Co. Litt. 300.]
THE rights of a parson or vicar, in his tithes and ecclesiastical
dues, fall more properly under the second book of these commentaries:
and as to his duties, they are principally of ecclesiastical
cognizance; those only excepted which are laid upon him by statute.
And those are indeed so numerous that it is impracticable to recite
them here with any tolerable conciseness or accuracy. Some of them we
may remark, as they arise in the progress of our enquiries, but for
the rest I must refer myself to such authors as have compiled
treatises expressly upon this subject[l]. I shall only just mention
the article of residence, upon the supposition of which the law doth
stile every parochial minister an incumbent. By statute 21 Hen. VIII.
c. 13. persons wilfully absenting themselves from their benefices, for
one month together, or two months in the year, incur a penalty of
5_l._ to the king, and 5_l._ to any person that will sue for the same:
except chaplains to the king, or others therein mentioned[m], during
their attendance in the houshold of such as retain them: and also
except[n] all heads of houses, magistrates, and professors in the
universities, and all students under forty years of age residing
there, _bona fide_, for study. Legal residence is not only in the
parish, but also in the parsonage house: for it hath been resolved[o],
that the statute intended residence, not only for serving the cure,
and for hospitality; but also for maintaining the house, that the
successor also may keep hospitality there.
[Footnote l: These are very numerous: but there are only two, which
can be relied on with any degree of certainty; bishop Gibson's
_codex_, and Dr Burn's ecclesiastical law.]
[Footnote m: Stat. 25 Hen. VIII. c. 16. 33 Hen. VIII. c. 28.]
[Footnote n: Stat. 28 Hen. VIII. c. 13.]
[Footnote o: 6 Rep. 21.]
WE have seen that there is but one way, whereby one may become a
parson or vicar: there are many ways, by which one may cease to be so.
1. By death. 2. By cession, in taking another benefice. For by statute
21 Hen. VIII. c. 13. if any one having a benefice of 8_l._ _per
annum_, or upwards, in the king's books, (according to the present
valuation[p],) accepts any other, the first shall be adjudged void;
unless he obtains a dispensation; which no one is entitled to have,
but the chaplains of the king and others therein mentioned, the
brethren and sons of lords and knights, and doctors and bachelors of
divinity and law, _admitted by the universities_ of this realm. And a
vacancy thus made, for want of a dispensation, is called cession. 3.
By consecration; for, as was mentioned before, when a clerk is
promoted to a bishoprick, all his other preferments are void the
instant that he is consecrated. But there is a method, by the favour
of the crown, of holding such livings _in commendam_. _Commenda_, or
_ecclesia commendata_, is a living commended by the crown to the care
of a clerk, to hold till a proper pastor is provided for it. This may
be temporary, for one, two, or three years, or perpetual; being a kind
of dispensation to avoid the vacancy of the living, and is called a
_commenda retinere_. There is also a _commenda recipere_, which is to
take a benefice _de novo_, in the bishop's own gift, or the gift of
some other patron consenting to the same; and this is the same to him
as institution and induction are to another clerk[q]. 4. By
resignation. But this is of no avail, till accepted by the ordinary;
into whose hands the resignation must be made[r]. 5. By deprivation,
either by canonical censures, of which I am not to speak; or in
pursuance of divers penal statutes, which declare the benefice void,
for some nonfeasance or neglect, or else some malefeasance or crime.
As, for simony[s]; for maintaining any doctrine in derogation of the
king's supremacy, or of the thirty nine articles, or of the book of
common-prayer[t]; for neglecting after institution to read the
articles in the church, or make the declarations against popery, or
take the abjuration oath[u]; for using any other form of prayer than
the liturgy of the church of England[w]; or for absenting himself
sixty days in one year from a benefice belonging to a popish patron,
to which the clerk was presented by either of the universities[x]; in
all which and similar cases[y] the benefice is _ipso facto_ void,
without any formal sentence of deprivation.
[Footnote p: Cro. Car. 456.]
[Footnote q: Hob. 144.]
[Footnote r: Cro. Jac. 198.]
[Footnote s: Stat. 31 Eliz. c. 6. and 12 Ann. c. 12.]
[Footnote t: Stat. 1 Eliz. c. 1 & 2. and 13 Eliz. c. 12.]
[Footnote u: Stat. 13 Eliz. c. 12. 14 Car. II. c. 4. and 1 Geo. I. c.
6.]
[Footnote w: Stat. 1 Eliz. c. 2.]
[Footnote x: Stat. 1 W. & M. c. 26.]
[Footnote y: 6 Rep. 29, 30.]
VI. A CURATE is the lowest degree in the church; being in the same
state that a vicar was formerly, an officiating temporary minister,
instead of the real incumbent. Though there are what are called
_perpetual_ curacies, where all the tithes are appropriated, and no
vicarage endowed, (being for some particular reasons[z] exempted from
the statute of Hen. IV) but, instead thereof, such perpetual curate is
appointed by the appropriator. With regard to the other species of
curates, they are the objects of some particular statutes, which
ordain, that such as serve a church during it's vacancy shall be paid
such stipend as the ordinary thinks reasonable, out of the profits of
the vacancy; or, if that be not sufficient, by the successor within
fourteen days after he takes possession[a]: and that, if any rector or
vicar nominates a curate to the ordinary to be licenced, the ordinary
shall settle his stipend under his hand and seal, not exceeding 50_l._
_per annum_, nor less than 20_l._ and on failure of payment may
sequester the profits of the benefice[b].
[Footnote z: 1 Burn. eccl. law. 427.]
[Footnote a: Stat. 28 Hen. VIII. c. 11.]
[Footnote b: Stat. 12 Ann. st. 2. c. 12.]
THUS much of the clergy, properly so called. There are also certain
inferior ecclesiastical officers of whom the common law takes notice;
and that, principally, to assist the ecclesiastical jurisdiction,
where it is deficient in powers. On which officers I shall make a few
cursory remarks.
VII. CHURCHWARDENS are the guardians or keepers of the church, and
representatives of the body of the parish[c]. They are sometimes
appointed by the minister, sometimes by the parish, sometimes by both
together, as custom directs. They are taken, in favour of the church,
to be for some purposes a kind of corporation at the common law; that
is, they are enabled by that name to have a property in goods and
chattels, and to bring actions for them, for the use and profit of the
parish. Yet they may not waste the church goods, but may be removed by
the parish, and then called to account by action at the common law:
but there is no method of calling them to account, but by first
removing them; for none can legally do it, but those who are put in
their place. As to lands, or other real property, as the church,
church-yard, &c, they have no sort of interest therein; but if any
damage is done thereto, the parson only or vicar shall have the
action. Their office also is to repair the church, and make rates and
levies for that purpose: but these are recoverable only in the
ecclesiastical court. They are also joined with the overseers in the
care and maintenance of the poor. They are to levy[d] a shilling
forfeiture on all such as do not repair to church on sundays and
holidays, and are empowered to keep all persons orderly while there;
to which end it has been held that a churchwarden may justify the
pulling off a man's hat, without being guilty of either an assault or
trespass[e]. There are also a multitude of other petty parochial
powers committed to their charge by divers acts of parliament[f].
[Footnote c: In Sweden they have similar officers, whom they call
_kiorckiowariandes_. Stiernhook. l. 3. c. 7.]
[Footnote d: Stat. 1 Eliz. c. 2.]
[Footnote e: 1 Lev. 196.]
[Footnote f: See Lambard of churchwardens, at the end of his
_eirenarcha_; and Dr Burn, tit. _church, churchwardens, visitation_.]
VIII. PARISH clerks and sextons are also regarded by the common law,
as persons who have freeholds in their offices; and therefore though
they may be punished, yet they cannot be deprived, by ecclesiastical
censures[g]. The parish clerk was formerly always in holy orders; and
some are so to this day. He is generally appointed by the incumbent,
but by custom may be chosen by the inhabitants; and if such custom
appears, the court of king's bench will grant a _mandamus_ to the
arch-deacon to swear him in, for the establishment of the custom turns
it into a temporal or civil right[h].
[Footnote g: 2 Roll. Abr. 234.]
[Footnote h: Cro. Car. 589.]
CHAPTER THE TWELFTH.
OF THE CIVIL STATE.
THE lay part of his majesty's subjects, or such of the people as are
not comprehended under the denomination of clergy, may be divided into
three distinct states, the civil, the military, and the maritime.
THAT part of the nation which falls under our first and most
comprehensive division, the civil state, includes all orders of men,
from the highest nobleman to the meanest peasant; that are not
included under either our former division, of clergy, or under one of
the two latter, the military and maritime states: and it may sometimes
include individuals of the other three orders; since a nobleman, a
knight, a gentleman, or a peasant, may become either a divine, a
soldier, or a seaman.
THE civil state consists of the nobility and the commonalty. Of the
nobility, the peerage of Great Britain, or lords temporal, as forming
(together with the bishops) one of the supreme branches of the
legislature, I have before sufficiently spoken: we are here to
consider them according to their several degrees, or titles of
honour.
ALL degrees of nobility and honour are derived from the king as their
fountain[a]: and he may institute what new titles he pleases. Hence it
is that all degrees of honour are not of equal antiquity. Those now in
use are dukes, marquesses, earls, viscounts, and barons[b].
[Footnote a: 4 Inst. 363.]
[Footnote b: For the original of these titles on the continent of
Europe, and their subsequent introduction into this island, see Mr
Selden's _titles of honour_.]
1. A _duke_, though it be with us, as a mere title of nobility,
inferior in point of antiquity to many others, yet it is superior to
all of them in rank; being the first title of dignity after the royal
family[c]. Among the Saxons the Latin name of dukes, _duces_, is very
frequent, and signified, as among the Romans, the commanders or
leaders of their armies, whom in their own language they called
[Anglo-Saxon: heretoga][d]; and in the laws of Henry I (as translated
by Lambard) we find them called _heretochii_. But after the Norman
conquest, which changed the military polity of the nation, the kings
themselves continuing for many generations _dukes_ of Normandy, they
would not honour any subjects with that title, till the time of Edward
III; who, claiming to be king of France, and thereby losing the ducal
in the royal dignity, in the eleventh year of his reign created his
son, Edward the black prince, duke of Cornwall: and many, of the royal
family especially, were afterwards raised to the same honour. However,
in the reign of queen Elizabeth, _A.D._ 1572[e], the whole order
became utterly extinct: but it was revived about fifty years
afterwards by her successor, who was remarkably prodigal of honours,
in the person of George Villiers duke of Buckingham.
[Footnote c: Camden. Britan. _tit. ordines_.]
[Footnote d: This is apparently derived from the same root as the
German [Fraktur: hertzogen], the antient appellation of dukes in that
country. Seld. tit. hon. 2. 1. 22.]
[Footnote e: Camden. Britan. _tit. ordines_. Spelman. _Gloss._ 191.]
2. A _marquess_, _marchio_, is the next degree of nobility. His office
formerly was (for dignity and duty were never separated by our
ancestors) to guard the frontiers and limits of the kingdom; which
were called the marches, from the teutonic word, _marche_, a limit:
as, in particular, were the marches of Wales and Scotland, while they
continued to be enemies countries. The persons who had command there,
were called lords marchers, or marquesses; whose authority was
abolished by statute 27 Hen. VIII. c. 27: though the title had long
before been made a mere ensign of honour; Robert Vere, earl of Oxford,
being created marquess of Dublin, by Richard II in the eighth year of
his reign[f].
[Footnote f: 2 Inst. 5.]
3. AN _earl_ is a title of nobility so antient, that it's original
cannot clearly be traced out. Thus much seems tolerably certain: that
among the Saxons they were called _ealdormen_, _quasi_ elder men,
signifying the same as _senior_ or _senator_ among the Romans; and
also _schiremen_, because they had each of them the civil government
of a several division or shire. On the irruption of the Danes, they
changed the name to _eorles_, which, according to Camden[g], signified
the same in their language. In Latin they are called _comites_ (a
title first used in the empire) from being the king's attendants; "_a
societate nomen sumpserunt, reges enim tales sibi associant_[h]."
After the Norman conquest they were for some time called _counts_, or
_countees_, from the French; but they did not long retain that name
themselves, though their shires are from thence called counties to
this day. It is now become a mere title, they having nothing to do
with the government of the county; which, as has been more than once
observed, is now entirely devolved on the sheriff, the earl's deputy,
or _vice-comes_. In all writs, and commissions, and other formal
instruments, the king, when he mentions any peer of the degree of an
earl, always stiles him "trusty and well beloved _cousin_:" an
appellation as antient as the reign of Henry IV; who being either by
his wife, his mother, or his sisters, actually related or allied to
every earl in the kingdom, artfully and constantly acknowleged that
connexion in all his letters and other public acts; from whence the
usage has descended to his successors, though the reason has long ago
failed.
[Footnote g: _Ibid._]
[Footnote h: Bracton. _l._ 1. _c._ 8. Fleta. _l._ i. _c._ 5.]
4. THE name of _vice-comes_ or _viscount_ was afterwards made use of
as an arbitrary title of honour, without any shadow of office
pertaining to it, by Henry the sixth; when in the eighteenth year of
his reign, he created John Beaumont a peer, by the name of viscount
Beaumont, which was the first instance of the kind[i].
[Footnote i: 2 Inst. 5.]
5. A _baron_'s is the most general and universal title of nobility;
for originally every one of the peers of superior rank had also a
barony annexed to his other titles[k]. But it hath sometimes happened
that, when an antient baron hath been raised to a new degree of
peerage, in the course of a few generations the two titles have
descended differently; one perhaps to the male descendants, the other
to the heirs general; whereby the earldom or other superior title hath
subsisted without a barony: and there are also modern instances where
earls and viscounts have been created without annexing a barony to
their other honours: so that now the rule does not hold universally,
that all peers are barons. The original and antiquity of baronies has
occasioned great enquiries among our English antiquarians. The most
probable opinion seems to be, that they were the same with our present
lords of manors; to which the name of court baron, (which is the
lord's court, and incident to every manor) gives some countenance. It
may be collected from king John's _magna carta_[l], that originally
all lords of manors, or barons, that held of the king _in capite_, had
seats in the great council or parliament, till about the reign of that
prince the conflux of them became so large and troublesome, that the
king was obliged to divide them, and summon only the greater barons in
person; leaving the small ones to be summoned by the sheriff, and (as
it is said) to sit by representation in another house; which gave rise
to the separation of the two houses of parliament[m]. By degrees the
title came to be confined to the greater barons, or lords of
parliament only; and there were no other barons among the peerage but
such as were summoned by writ, in respect of the tenure of their lands
or baronies, till Richard the second first made it a mere title of
honor, by conferring it on divers persons by his letters patent[n].
[Footnote k: 2 Inst. 5, 6.]
[Footnote l: _cap._ 14.]
[Footnote m: Gilb. hist. exch. c. 3. Seld. tit. of hon. 2. 5. 21.]
[Footnote n: 1 Inst. 9. Seld. _Jan. Angl._ 2. §. 66.]
HAVING made this short enquiry into the original of our several
degrees of nobility, I shall next consider the manner in which they
may be created. The right of peerage seems to have been originally
territorial; that is, annexed to lands, honors, castles, manors, and
the like, the proprietors and possessors of which were (in right of
those estates) allowed to be peers of the realm, and were summoned to
parliament to do suit and service to their sovereign: and, when the
land was alienated, the dignity passed with it as appendant. Thus the
bishops still sit in the house of lords in right of succession to
certain antient baronies annexed, or supposed to be annexed, to their
episcopal lands[o]: and thus, in 11 Hen. VI, the possession of the
castle of Arundel was adjudged to confer an earldom on it's
possessor[p]. But afterwards, when alienations grew to be frequent,
the dignity of peerage was confined to the lineage of the party
ennobled, and instead of territorial became personal. Actual proof of
a tenure by barony became no longer necessary to constitute a lord of
parliament; but the record of the writ of summons to them or their
ancestors was admitted as a sufficient evidence of the tenure.
[Footnote o: Glanv. _l._ 7. _c._ 1.]
[Footnote p: Seld. tit. of hon. b. 2. c. 9. §. 5.]
PEERS are now created either by writ, or by patent: for those who
claim by prescription must suppose either a writ or patent made to
their ancestors; though by length of time it is lost. The creation by
writ, or the king's letter, is a summons to attend the house of peers,
by the stile and title of that barony, which the king is pleased to
confer: that by patent is a royal grant to a subject of any dignity
and degree of peerage. The creation by writ is the more antient way;
but a man is not ennobled thereby, unless he actually takes his seat
in the house of lords: and therefore the most usual, because the
surest, way is to grant the dignity by patent, which enures to a man
and his heirs according to the limitations thereof, though he never
himself makes use of it[q]. Yet it is frequent to call up the eldest
son of a peer to the house of lords by writ of summons, in the name of
his father's barony: because in that case there is no danger of his
children's losing the nobility in case he never takes his seat; for
they will succeed to their grand-father. Creation by writ has also one
advantage over that by patent: for a person created by writ holds the
dignity to him _and his heirs_, without any words to that purport in
the writ; but in letters patent there must be words to direct the
inheritance, else the dignity enures only to the grantee for life[r].
For a man or woman may be created noble for their own lives, and the
dignity not descend to their heirs at all, or descend only to some
particular heirs: as where a peerage is limited to a man, and the
heirs male of his body by Elizabeth his present lady, and not to such
heirs by any former or future wife.
[Footnote q: Co. Litt. 16.]
[Footnote r: Co. Litt. 9. 16.]
LET us next take a view of a few of the principal incidents attending
the nobility, exclusive of their capacity as members of parliament,
and as hereditary counsellors of the crown; both of which we have
before considered. And first we must observe, that in criminal cases,
a nobleman shall be tried by his peers. The great are always obnoxious
to popular envy: were they to be judged by the people, they might be
in danger from the prejudice of their judges; and would moreover be
deprived of the privilege of the meanest subjects, that of being tried
by their equals, which is secured to all the realm by _magna carta_,
c. 29. It is said, that this does not extend to bishops; who, though
they are lords of parliament, and sit there by virtue of their
baronies which they hold _jure ecclesiae_, yet are not ennobled in
blood, and consequently not peers with the nobility[s]. As to
peeresses, no provision was made for their trial when accused of
treason or felony, till after Eleanor dutchess of Gloucester, wife to
the lord protector, had been accused of treason and found guilty of
witchcraft, in an ecclesiastical synod, through the intrigues of
cardinal Beaufort. This very extraordinary trial gave occasion to a
special statute, 20 Hen. VI. c. 9. which enacts that peeresses either
in their own right, or by marriage, shall be tried before the same
judicature as peers of the realm. If a woman, noble in her own right,
marries a commoner, she still remains noble, and shall be tried by her
peers: but if she be only noble by marriage, then by a second
marriage, with a commoner, she loses her dignity; for as by marriage
it is gained, by marriage it is also lost. Yet if a duchess dowager
marries a baron, she continues a duchess still; for all the nobility
are _pares_, and therefore it is no degradation[t]. A peer, or peeress
(either in her own right or by marriage) cannot be arrested in civil
cases[u]: and they have also many peculiar privileges annexed to their
peerage in the course of judicial proceedings. A peer, sitting in
judgment, gives not his verdict upon oath, like an ordinary juryman,
but upon his honour[w]: he answers also to bills in chancery upon his
honour, and not upon his oath[x]; but, when he is examined as a
witness either in civil or criminal cases, he must be sworn[y]: for
the respect, which the law shews to the honour of a peer, does not
extend so far as to overturn a settled maxim, that _in judicio non
creditur nisi juratis_[z]. The honour of peers is however so highly
tendered by the law, that it is much more penal to spread false
reports of them, and certain other great officers of the realm, than
of other men: scandal against them being called by the peculiar name
of _scandalum magnatum_; and subjected to peculiar punishment by
divers antient statutes[a].
[Footnote s: 3 Inst. 30, 31.]
[Footnote t: 2 Inst. 50.]
[Footnote u: Finch. L. 355. 1 Ventr. 298.]
[Footnote w: 2 Inst 49.]
[Footnote x: 1 P. Wms. 146.]
[Footnote y: Salk. 512.]
[Footnote z: Cro. Car. 64.]
[Footnote a: 3 Edw. I. c. 34. 2 Ric. II. st. 1. c. 5. 12 Ric. II. c.
11.]
A PEER cannot lose his nobility, but by death or attainder; hough
[Transcriber's Note: though] there was an instance, in the reign of
Edward the fourth, of the degradation of George Nevile duke of
Bedford by act of parliament[b], on account of his poverty, which
rendered him unable to support his dignity[c]. But this is a singular
instance: which serves at the same time, by having happened, to shew
the power of parliament; and, by having happened but once, to shew how
tender the parliament hath been, in exerting so high a power. It hath
been said indeed[d], that if a baron waste his estate, so that he is
not able to support the degree, the _king_ may degrade him: but it is
expressly held by later authorities[e], that a peer cannot be degraded
but by act of _parliament_.
[Footnote b: 4 Inst. 355.]
[Footnote c: The preamble to the act is remarkable: "forasmuch as
oftentimes it is seen, that when any lord is called to high estate,
and hath not convenient livelyhood to support the same dignity, it
induceth great poverty and indigence, and causeth oftentimes great
extortion, embracery, and maintenance to be had; to the great trouble
of all such countries where such estate shall happen to be: therefore,
&c."]
[Footnote d: By lord chancellor Ellesmere. Moor. 678.]
[Footnote e: 12 Rep. 107. 12 Mod. 56.]
THE commonalty, like the nobility, are divided into several degrees;
and, as the lords, though different in rank, yet all of them are peers
in respect of their nobility, so the commoners, though some are
greatly superior to others, yet all are in law peers, in respect of
their want of nobility[f].
[Footnote f: 2 Inst. 29.]
THE first name of dignity, next beneath a peer, was anciently that of
_vidames_, _vice domini_, or _valvasors_[g]: who are mentioned by our
antient lawyers[h] as _viri magnae dignitatis_; and sir Edward Coke[i]
speaks highly of them. Yet they are now quite out of use; and our
legal antiquarians are not so much as agreed upon their original or
ancient office.
[Footnote g: Camden. _ibid._]
[Footnote h: Bracton. _l._ 1. _c._ 8.]
[Footnote i: 2 Inst. 667.]
NOW therefore the first dignity after the nobility, is a _knight_ of
the order of St. George, or _of the garter_; first instituted by
Edward III, _A.D._ 1344[k]. Next follows a _knight banneret_; who
indeed by statutes 5 Ric. II. st. 2. c. 4. and 14 Ric. II. c. 11. is
ranked next after barons: and that precedence was confirmed to him by
order of king James I, in the tenth year of his reign[l]. But, in
order to intitle himself to this rank, he must have been created by
the king in person, in the field, under the royal banners, in time of
open war[m]. Else he ranks after _baronets_; who are the next order:
which title is a dignity of inheritance, created by letters patent,
and usually descendible to the issue male. It was first instituted by
king James the first, _A.D._ 1611. in order to raise a competent sum
for the reduction of the province of Ulster in Ireland; for which
reason all baronets have the arms of Ulster superadded to their family
coat. Next follow _knights of the bath_; an order instituted by king
Henry IV, and revived by king George the first. They are so called
from the ceremony of bathing, the night before their creation. The
last of these inferior nobility are _knights bachelors_; the most
antient, though the lowest, order of knighthood amongst us: for we
have an instance[n] of king Alfred's conferring this order on his son
Athelstan. The custom of the antient Germans was to give their young
men a shield and a lance in the great council: this was equivalent to
the _toga virilis_ of the Romans: before this they were not permitted
to bear arms, but were accounted as part of the father's houshold;
after it, as part of the public[o]. Hence some derive the usage of
knighting, which has prevailed all over the western world, since it's
reduction by colonies from those northern heroes. Knights are called
in Latin _equites aurati_; _aurati_, from the gilt spurs they wore;
and _equites_, because they always served on horseback: for it is
observable[p], that almost all nations call their knights by some
appellation derived from an horse. They are also called in our law
_milites_, because they formed a part, or indeed the whole of the
royal army, in virtue of their feodal tenures; one condition of which
was, that every one who held a knights fee (which in Henry the
second's time[q] amounted to 20_l._ _per annum_) was obliged to be
knighted, and attend the king in his wars, or fine for his
non-compliance. The exertion of this prerogative, as an expedient to
raise money in the reign of Charles the first, gave great offence;
though warranted by law, and the recent example of queen Elizabeth:
but it was, at the restoration, together with all other military
branches of the feodal law, abolished; and this kind of knighthood
has, since that time, fallen into great disregard.
[Footnote k: Seld. tit. of hon. 2. 5. 41.]
[Footnote l: Seld. tit. hon. 2. 11. 3.]
[Footnote m: 4 Inst. 6.]
[Footnote n: Will. Malmsb. _lib._ 2.]
[Footnote o: Tac. _de morib. Germ._ 13.]
[Footnote p: Camden. _ibid._ Co. Litt. 74.]
[Footnote q: Glanvil. _l._ 9. _c._ 4.]
THESE, sir Edward Coke says[r], are all the names of _dignity_ in this
kingdom, esquires and gentlemen being only names of _worship_. But
before these last the heralds rank all colonels, serjeants at law, and
doctors in the three learned professions.
[Footnote r: 2 Inst. 667.]
ESQUIRES and gentlemen are confounded together by sir Edward Coke, who
observes[s], that every esquire is a gentleman, and a gentleman is
defined to be one _qui arma gerit_, who bears coat armour, the grant
of which adds gentility to a man's family: in like manner as civil
nobility, among the Romans, was founded in the _jus imaginum_, or
having the image of one ancestor at least, who had borne some curule
office. It is indeed a matter somewhat unsettled, what constitutes the
distinction, or who is a real _esquire_: for it is not an estate,
however large, that confers this rank upon it's owner. Camden, who was
himself a herald, distinguishes them the most accurately; and he
reckons up four sorts of them[t]: 1. The eldest sons of knights, and
their eldest sons, in perpetual succession[u]. 2. The younger sons of
peers, and their eldest sons, in like perpetual succession: both which
species of esquires sir H. Spelman entitles _armigeri natalitii_[w].
3. Esquires created by the king's letters patent, or other
investiture; and their eldest sons. 4. Esquires by virtue of their
offices; as justices of the peace, and others who bear any office of
trust under the crown. To these may be added the esquires of knights
of the bath, each of whom constitutes three at his installation; and
all foreign, nay, Irish peers; and the eldest sons of peers of Great
Britain, who, though generally titular lords, are only esquires in the
law, and must so be named in all legal proceedings[x]. As for
_gentlemen_, says sir Thomas Smith[y], they be made good cheap in this
kingdom: for whosoever studieth the laws of the realm, who studieth in
the universities, who professeth liberal sciences, and (to be short)
who can live idly, and without manual labour, and will bear the port,
charge, and countenance of a gentleman, he shall be called master, and
shall be taken for a gentleman. A _yeoman_ is he that hath free land
of forty shillings by the year; who is thereby qualified to serve on
juries, vote for knights of the shire, and do any other act, where the
law requires one that is _probus et legalis homo_[z].
[Footnote s: 2 Inst. 668.]
[Footnote t: _Ibid._]
[Footnote u: 2 Inst. 667.]
[Footnote w: Gloss. 43.]
[Footnote x: 3 Inst. 30. 2 Inst. 667.]
[Footnote y: Commonw. of Eng. book 1. c. 20.]
[Footnote z: 2 Inst. 668.]
THE rest of the commonalty are _tradesmen_, _artificers_, and
_labourers_; who (as well as all others) must in pursuance of the
statute 1 Hen. V. c. 5. be stiled by the name and addition of their
estate, degree, or mystery, in all actions and other legal
proceedings.
CHAPTER THE THIRTEENTH.
OF THE MILITARY AND MARITIME STATES.
THE military state includes the whole of the soldiery; or, such
persons as are peculiarly appointed among the rest of the people, for
the safeguard and defence of the realm.
IN a land of liberty it is extremely dangerous to make a distinct
order of the profession of arms. In absolute monarchies this is
necessary for the safety of the prince, and arises from the main
principle of their constitution, which is that of governing by fear:
but in free states the profession of a soldier, taken singly and
merely as a profession, is justly an object of jealousy. In these no
man should take up arms, but with a view to defend his country and
it's laws: he puts not off the citizen when he enters the camp; but it
is because he is a citizen, and would wish to continue so, that he
makes himself for a while a soldier. The laws therefore and
constitution of these kingdoms know no such state as that of a
perpetual standing soldier, bred up to no other profession than that
of war: and it was not till the reign of Henry VII, that the kings of
England had so much as a guard about their persons.
IN the time of our Saxon ancestors, as appears from Edward the
confessor's laws[a], the military force of this kingdom was in the
hands of the dukes or heretochs, who were constituted through every
province and county in the kingdom; being taken out of the principal
nobility, and such as were most remarkable for being "_sapientes,
fideles, et animosi_." Their duty was to lead and regulate the English
armies, with a very unlimited power; "_prout eis visum fuerit, ad
honorem coronae et utilitatem regni_." And because of this great power
they were elected by the people in their full assembly, or folkmote,
in the same manner as sheriffs were elected: following still that old
fundamental maxim of the Saxon constitution, that where any officer
was entrusted with such power, as if abused might tend to the
oppression of the people, that power was delegated to him by the vote
of the people themselves[b]. So too, among the antient Germans, the
ancestors of our Saxon forefathers, they had their dukes, as well as
kings, with an independent power over the military, as the kings had
over the civil state. The dukes were elective, the kings hereditary:
for so only can be consistently understood that passage of Tacitus[c],
"_reges ex nobilitate, duces ex virtute sumunt_;" in constituting
their kings, the family, or blood royal, was regarded, in chusing
their dukes or leaders, warlike merit: just as Caesar relates of their
ancestors in his time, that whenever they went to war, by way either
of attack or defence, they _elected_ leaders to command them[d]. This
large share of power, thus conferred by the people, though intended to
preserve the liberty of the subject, was perhaps unreasonably
detrimental to the prerogative of the crown: and accordingly we find a
very ill use made of it by Edric duke of Mercia, in the reign of king
Edmond Ironside; who, by his office of duke or heretoch, was entitled
to a large command in the king's army, and by his repeated
treacheries at last transferred the crown to Canute the Dane.
[Footnote a: _c. de heretochiis._]
[Footnote b: "_Isti vero viri eliguntur per commune consilium, pro
communi utilitate regni, per provincias et patrias universas, et per
singulos comitatus, in pleno folkmote, sicut et vice-comites
provinciarum et comitatuum eligi debent._" _LL. Edw. Confess._ _ibid._
See also Bede, _eccl. hist._ _l._ 5. _c._ 10.]
[Footnote c: _De morib. German._ 7.]
[Footnote d: "_Quum bellum civitas aut illatum defendit, aut infert,
magistratus qui ei bello praesint deliguntur._" _De bell. Gall._ _l._
6. _c._ 22.]
IT seems universally agreed by all historians, that king Alfred first
settled a national militia in this kingdom, and by his prudent
discipline made all the subjects of his dominion soldiers: but we are
unfortunately left in the dark as to the particulars of this his so
celebrated regulation; though, from what was last observed, the dukes
seem to have been left in possession of too large and independent a
power: which enabled duke Harold on the death of Edward the confessor,
though a stranger to the royal blood, to mount for a short space the
throne of this kingdom, in prejudice of Edgar Atheling, the rightful
heir.
UPON the Norman conquest the feodal law was introduced here in all
it's rigor, the whole of which is built on a military plan. I shall
not now enter into the particulars of that constitution, which belongs
more properly to the next part of our commentaries: but shall only
observe, that, in consequence thereof, all the lands in the kingdom
were divided into what were called knight's fees, in number above
sixty thousand; and for every knight's fee a knight or soldier,
_miles_, was bound to attend the king in his wars, for forty days in a
year; in which space of time, before war was reduced to a science, the
campaign was generally finished, and a kingdom either conquered or
victorious[e]. By this means the king had, without any expense, an
army of sixty thousand men always ready at his command. And
accordingly we find one, among the laws of William the conqueror[f],
which in the king's name commands and firmly enjoins the personal
attendance of all knights and others; "_quod habeant et teneant se
semper in armis et equis, ut decet et oportet; et quod semper sint
prompti et parati ad servitium suum integrum nobis explendum et
peragendum, cum opus adfuerit, secundum quod debent de feodis et
tenementis suis de jure nobis facere_." This personal service in
process of time degenerated into pecuniary commutations or aids, and
at last the military part of the feodal system was abolished at the
restoration, by statute 12 Car. II. c. 24.
[Footnote e: The Poles are, even at this day, so tenacious of their
antient constitution, that their pospolite, or militia, cannot be
compelled to serve above six weeks, or forty days, in a year. Mod.
Univ. Hist. xxxiv. 12.]
[Footnote f: c. 58. See Co. Litt. 75, 76.]
IN the mean time we are not to imagine that the kingdom was left
wholly without defence, in case of domestic insurrections, or the
prospect of foreign invasions. Besides those, who by their military
tenures were bound to perform forty days service in the field, the
statute of Winchester[g] obliged every man, according to his estate
and degree, to provide a determinate quantity of such arms as were
then in use, in order to keep the peace: and constables were appointed
in all hundreds to see that such arms were provided. These weapons
were changed, by the statute 4 & 5 Ph. & M. c. 2. into others of more
modern service; but both this and the former provision were repealed
in the reign of James I[h]. While these continued in force, it was
usual from time to time for our princes to to [Transcriber's Note:
duplicate word] issue commissions of array, and send into every county
officers in whom they could confide, to muster and array (or set in
military order) the inhabitants of every district: and the form of the
commission of array was settled in parliament in the 5 Hen. IV[i]. But
at the same time it was provided[k], that no man should be compelled
to go out of the kingdom at any rate, nor out of his shire but in
cases of urgent necessity; nor should provide soldiers unless by
consent of parliament. About the reign of king Henry the eighth, and
his children, lord lieutenants began to be introduced, as standing
representatives of the crown, to keep the counties in military order;
for we find them mentioned as known officers in the statute 4 & 5 Ph.
& M. c. 3. though they had not been then long in use, for Camden
speaks of them[l], in the time of queen Elizabeth, as extraordinary
magistrates constituted only in times of difficulty and danger.
[Footnote g: 13 Edw. I. c. 6.]
[Footnote h: Stat. 1 Jac. I. c. 25. 21 Jac. I. c. 28.]
[Footnote i: Rushworth. part 3. pag. 667.]
[Footnote k: Stat. 1 Edw III. st. 2. c. 5 & 7. 25 Edw. III. st. 5. c.
8.]
[Footnote l: Brit. 103. Edit. 1594.]
IN this state things continued, till the repeal of the statutes of
armour in the reign of king James the first: after which, when king
Charles the first had, during his northern expeditions, issued
commissions of lieutenancy and exerted some military powers which,
having been long exercised, were thought to belong to the crown, it
became a question in the long parliament, how far the power of the
militia did inherently reside in the king; being now unsupported by
any statute, and founded only upon immemorial usage. This question,
long agitated with great heat and resentment on both sides, became at
length the immediate cause of the fatal rupture between the king and
his parliament: the two houses not only denying this prerogative of
the crown, the legality of which right perhaps might be somewhat
doubtful; but also seizing into their own hands the intire power of
the militia, the illegality of which step could never be any doubt at
all.
SOON after the restoration of king Charles the second, when the
military tenures were abolished, it was thought proper to ascertain
the power of the militia, to recognize the sole right of the crown to
govern and command them, and to put the whole into a more regular
method of military subordination[m]: and the order, in which the
militia now stands by law, is principally built upon the statutes
which were then enacted. It is true the two last of them are
apparently repealed; but many of their provisions are re-enacted, with
the addition of some new regulations, by the present militia laws: the
general scheme of which is to discipline a certain number of the
inhabitants of every county, chosen by lot for three years, and
officered by the lord lieutenant, the deputy lieutenants, and other
principal landholders, under a commission from the crown. They are not
compellable to march out of their counties, unless in case of invasion
or actual rebellion, nor in any case compellable to march out of the
kingdom. They are to be exercised at stated times: and their
discipline in general is liberal and [Transcriber's Note: 'and'
missing here but is in printer's mark on previous page] easy; but,
when drawn out into actual service, they are subject to the rigours of
martial law, as necessary to keep them in order. This is the
constitutional security, which our laws have provided for the public
peace, and for protecting the realm against foreign or domestic
violence; and which the statutes[n] declare is essentially necessary
to the safety and prosperity of the kingdom.
[Footnote m: 13 Car. II. c. 6. 14 Car. II. c. 3. 15 Car. II. c. 4.]
[Footnote n: 30 Geo. II. c. 25, &c.]
WHEN the nation is engaged in a foreign war, more veteran troops and
more regular discipline may perhaps be necessary, than can be expected
from a mere militia. And therefore at such times particular provisions
have been usually made for the raising of armies and the due
regulation and discipline of the soldiery: which are to be looked upon
only as temporary excrescences bred out of the distemper of the state,
and not as any part of the permanent and perpetual laws of the
kingdom. For martial law, which is built upon no settled principles,
but is entirely arbitrary in it's decisions, is, as sir Matthew Hale
observes[o], in truth and reality no law, but something indulged,
rather than allowed as a law: the necessity of order and discipline in
an army is the only thing which can give it countenance; and therefore
it ought not to be permitted in time of peace, when the king's courts
are open for all persons to receive justice according to the laws of
the land. Wherefore Edmond earl of Kent being taken at Pontefract, 15
Edw. II. and condemned by martial law, his attainder was reversed 1
Edw. III. because it was done in time of peace. And it is laid
down[p], that if a lieutenant, or other, that hath commission of
martial authority, doth in time of peace hang or otherwise execute any
man by colour of martial law, this is murder; for it is against _magna
carta_[q]. And the petition of right[r] enacts, that no soldier shall
be quartered on the subject without his own consent[s]; and that no
commission shall issue to proceed within this land according to
martial law. And whereas, after the restoration, king Charles the
second kept up about five thousand regular troops, by his own
authority, for guards and garrisons; which king James the second by
degrees increased to no less than thirty thousand, all paid from his
own civil list; it was made one of the articles of the bill of
rights[t], that the raising or keeping a standing army within the
kingdom in time of peace, unless it be with consent of parliament, is
against law.
[Footnote o: Hist. C.L. c. 2.]
[Footnote p: 3 Inst. 52.]
[Footnote q: _cap._ 29.]
[Footnote r: 3 Car. I. See also stat. 31 Car. II. c. 1.]
[Footnote s: Thus, in Poland, no soldier can be quartered upon the
gentry, the only freemen in that republic. Mod. Univ. Hist. xxxiv.
23.]
[Footnote t: Stat. 1 W. & M. st. 2. c. 2.]
BUT, as the fashion of keeping standing armies has universally
prevailed over all Europe of late years (though some of it's
potentates, being unable themselves to maintain them, are obliged to
have recourse to richer powers, and receive subsidiary pensions for
that purpose) it has also for many years past been annually judged
necessary by our legislature, for the safety of the kingdom, the
defence of the possessions of the crown of Great Britain, and the
preservation of the balance of power in Europe, to maintain even in
time of peace a standing body of troops, under the command of the
crown; who are however _ipso facto_ disbanded at the expiration of
every year, unless continued by parliament.
TO prevent the executive power from being able to oppress, says baron
Montesquieu[u], it is requisite that the armies with which it is
entrusted should consist of the people, and have the same spirit with
the people; as was the case at Rome, till Marius new-modelled the
legions by enlisting the rabble of Italy, and laid the foundation of
all the military tyranny that ensued. Nothing then, according to these
principles, ought to be more guarded against in a free state, than
making the military power, when such a one is necessary to be kept on
foot, a body too distinct from the people. Like ours therefore, it
should wholly be composed of natural subjects; it ought only to be
enlisted for a short and limited time; the soldiers also should live
intermixed with the people; no separate camp, no barracks, no inland
fortresses should be allowed. And perhaps it might be still better,
if, by dismissing a stated number and enlisting others at every
renewal of their term, a circulation could be kept up between the
army and the people, and the citizen and the soldier be more
intimately connected together.
[Footnote u: Sp. L. 11. 6.]
TO keep this body of troops in order, an annual act of parliament
likewise passes, "to punish mutiny and desertion, and for the better
payment of the army and their quarters." This regulates the manner in
which they are to be dispersed among the several inn-keepers and
victuallers throughout the kingdom; and establishes a law martial for
their government. By this, among other things, it is enacted, that if
any officer and soldier shall excite, or join any mutiny, or, knowing
of it, shall not give notice to the commanding officer; or shall
defect, or list in any other regiment, or sleep upon his post, or
leave it before he is relieved, or hold correspondence with a rebel or
enemy, or strike or use violence to his superior officer, or shall
disobey his lawful commands; such offender shall suffer such
punishment as a court martial shall inflict, though it extend to death
itself.
HOWEVER expedient the most strict regulations may be in time of actual
war, yet, in times of profound peace, a little relaxation of military
rigour would not, one should hope, be productive of much
inconvenience. And, upon this principle, though by our standing
laws[w] (still remaining in force, though not attended to) desertion
in time of war is made felony, without benefit of clergy, and the
offence is triable by a jury and before the judges of the common law;
yet, by our militia laws beforementioned, a much lighter punishment is
inflicted for desertion in time of peace. So, by the Roman law also,
desertion in time of war was punished with death, but more mildly in
time of tranquillity[x]. But our mutiny act makes no such distinction:
for any of the faults therein mentioned are, equally at all times,
punishable with death itself, if a court martial shall think proper.
This discretionary power of the court martial is indeed to be guided
by the directions of the crown; which, with regard to military
offences, has almost an absolute legislative power. "His majesty, says
the act, may form articles of war, and constitute courts martial, with
power to try any crime by such articles, and inflict such penalties as
the articles direct." A vast and most important trust! an unlimited
power to create crimes, and annex to them any punishments, not
extending to life or limb! These are indeed forbidden to be inflicted,
except for crimes declared to be so punishable by this act; which
crimes we have just enumerated, and, among which, we may observe that
any disobedience to lawful commands is one. Perhaps in some future
revision of this act, which is in many respects hastily penned, it may
be thought worthy the wisdom of parliament to ascertain the limits of
military subjection, and to enact express articles of war for the
government of the army, as is done for the government of the navy:
especially as, by our present constitution, the nobility and gentry of
the kingdom, who serve their country as militia officers, are annually
subjected to the same arbitrary rule, during their time of exercise.
[Footnote w: Stat. 18 Hen. VI. c. 19. 2 & 3 Edw. VI. c. 2.]
[Footnote x: _Ff._ 49. 16. 5.]
ONE of the greatest advantages of our English law is, that not only
the crimes themselves which it punishes, but also the penalties which
it inflicts, are ascertained and notorious: nothing is left to
arbitrary discretion: the king by his judges dispenses what the law
has previously ordained; but is not himself the legislator. How much
therefore is it to be regretted that a set of men, whose bravery has
so often preserved the liberties of their country, should be reduced
to a state of servitude in the midst of a nation of freemen! for sir
Edward Coke will inform us[y], that it is one of the genuine marks of
servitude, to have the law, which is our rule of action, either
concealed or precarious: "_misera est servitus, ubi jus est vagum aut
incognitum_." Nor is this state of servitude quite consistent with the
maxims of sound policy observed by other free nations. For, the
greater the general liberty is which any state enjoys, the more
cautious has it usually been of introducing slavery in any particular
order or profession. These men, as baron Montesquieu observes[z],
seeing the liberty which others possess, and which they themselves
are excluded from, are apt (like eunuchs in the eastern seraglios) to
live in a state of perpetual envy and hatred towards the rest of the
community; and indulge a malignant pleasure in contributing to destroy
those privileges, to which they can never be admitted. Hence have many
free states, by departing from this rule, been endangered by the
revolt of their slaves: while, in absolute and despotic governments
where there no real liberty exists, and consequently no invidious
comparisons can be formed, such incidents are extremely rare. Two
precautions are therefore advised to be observed in all prudent and
free governments; 1. To prevent the introduction of slavery at all:
or, 2. If it be already introduced, not to intrust those slaves with
arms; who will then find themselves an overmatch for the freemen. Much
less ought the soldiery to be an exception to the people in general,
and the only state of servitude in the nation.
[Footnote y: 4 Inst. 332.]
[Footnote z: Sp. L. 15. 12.]
BUT as soldiers, by this annual act, are thus put in a worse condition
than any other subjects, so, by the humanity of our standing laws,
they are in some cases put in a much better. By statute 43 Eliz. c. 3.
a weekly allowance is to be raised in every county for the relief of
soldiers that are sick, hurt, and maimed: not forgetting the royal
hospital at Chelsea for such as are worn out in their duty. Officers
and soldiers, that have been in the king's service, are by several
statutes, enacted at the close of several wars, at liberty to use any
trade or occupation they are fit for, in any town in the kingdom
(except the two universities) notwithstanding any statute, custom, or
charter to the contrary. And soldiers in actual military service may
make their wills, and dispose of their goods, wages, and other
personal chattels, without those forms, solemnities, and expenses,
which the law requires in other cases[a]. Our law does not indeed
extend this privilege so far as the civil law; which carried it to an
extreme that borders upon the ridiculous. For if a soldier, in the
article of death, wrote any thing in bloody letters on his shield, or
in the dust of the field with his sword, it was a very good military
testament[b]. And thus much for the military state, as acknowleged by
the laws of England.
[Footnote a: Stat. 29 Car. II. c. 3. 5 W. III. c. 21. §. 6.]
[Footnote b: _Si milites quid in clypeo literis sanguine suo
rutilantibus adnotaverint, aut in pulvere inscripserint gladio suo,
ipso tempore quo, in praelio, vitae sortem derelinquunt, hujusmodi
voluntatem stabilem esse oportet._ _Cod._ 6. 21. 15.]
THE _maritime_ state is nearly related to the former; though much more
agreeable to the principles of our free constitution. The royal navy
of England hath ever been it's greatest defence and ornament: it is
it's antient and natural strength; the floating bulwark of the island;
an army, from which, however strong and powerful, no danger can ever
be apprehended to liberty: and accordingly it has been assiduously
cultivated, even from the earliest ages. To so much perfection was our
naval reputation arrived in the twelfth century, that the code of
maritime laws, which are called the laws of Oleron, and are received
by all nations in Europe as the ground and substruction of all their
marine constitutions, was confessedly compiled by our king Richard the
first, at the isle of Oleron on the coast of France, then part of the
possessions of the crown of England[c]. And yet, so vastly inferior
were our ancestors in this point to the present age, that even in the
maritime reign of queen Elizabeth, sir Edward Coke[d] thinks it matter
of boast, that the royal navy of England then consisted of _three and
thirty_ ships. The present condition of our marine is in great measure
owing to the salutary provisions of the statutes, called the
navigation-acts; whereby the constant increase of English shipping and
seamen was not only encouraged, but rendered unavoidably necessary. By
the statute 5 Ric. II. c. 3. in order to augment the navy of England,
then greatly diminished, it was ordained, that none of the king's
liege people should ship any merchandize out of or into the realm but
only in ships of the king's ligeance, on pain of forfeiture. In the
next year, by statute 6 Ric. II. c. 8. this wise provision was
enervated, by only obliging the merchants to give English ships, (if
able and sufficient) the preference. But the most beneficial statute
for the trade and commerce of these kingdoms is that navigation-act,
the rudiments of which were first framed in 1650[e], with a narrow
partial view: being intended to mortify the sugar islands, which were
disaffected to the parliament and still held out for Charles II, by
stopping the gainful trade which they then carried on with the
Dutch[f]; and at the same time to clip the wings of those our opulent
and aspiring neighbours. This prohibited all ships of foreign nations
from trading with any English plantations without licence from the
council of state. In 1651[g] the prohibition was extended also to the
mother country; and no goods were suffered to be imported into
England, or any of it's dependencies, in any other than English
bottoms; or in the ships of that European nation of which the
merchandize imported was the genuine growth or manufacture. At the
restoration, the former provisions were continued, by statute 12 Car.
II. c. 18. with this very material improvement, that the master and
three fourths of the mariners shall also be English subjects.
[Footnote c: 4 Inst. 144. _Coutumes de la mer._ 2.]
[Footnote d: 4 Inst. 50.]
[Footnote e: Scobell 132.]
[Footnote f: Mod. Un. Hist. xli. 289.]
[Footnote g: Scobell. 176.]
MANY laws have been made for the supply of the royal navy with seamen;
for their regulation when on board; and to confer privileges and
rewards on them during and after their service.
1. FIRST, for their supply. The power of impressing men for the sea
service by the king's commission, has been a matter of some dispute,
and submitted to with great reluctance; though it hath very clearly
and learnedly been shewn, by sir Michael Foster[h], that the practise
of impressing, and granting powers to the admiralty for that purpose,
is of very antient date, and hath been uniformly continued by a
regular series of precedents to the present time: whence he concludes
it to be part of the common law[i]. The difficulty arises from hence,
that no statute has expressly declared this power to be in the crown,
though many of them very strongly imply it. The statute 2 Ric. II. c.
4. speaks of mariners being arrested and retained for the king's
service, as of a thing well known, and practised without dispute; and
provides a remedy against their running away. By a later statute[k],
if any waterman, who uses the river Thames, shall hide himself during
the execution of any commission of pressing for the king's service, he
is liable to heavy penalties. By another[l], no fisherman shall be
taken by the queen's commission to serve as a mariner; but the
commission shall be first brought to two justices of the peace,
inhabiting near the sea coast where the mariners are to be taken, to
the intent that the justices may chuse out and return such a number of
ablebodied men, as in the commission are contained, to serve her
majesty. And, by others[m], especial protections are allowed to seamen
in particular circumstances, to prevent them from being impressed. All
which do most evidently imply a power of impressing to reside
somewhere; and, if any where, it must from the spirit of our
constitution, as well as from the frequent mention of the king's
commission, reside in the crown alone.
[Footnote h: Rep. 154.]
[Footnote i: See also Comb. 245.]
[Footnote k: Stat. 2 & 3 Ph. & M. c. 16.]
[Footnote l: Stat. 5 Eliz. c. 5.]
[Footnote m: Stat. 7 & 8 W. III. c. 21. 2 Ann. c. 6. 4 & 5 Ann. c. 19.
13 Geo. II. c. 17. &c.]
BUT, besides this method of impressing, (which is only defensible from
public necessity, to which all private considerations must give way)
there are other ways that tend to the increase of seamen, and manning
the royal navy. Parishes may bind out poor boys apprentices to masters
of merchantmen, who shall be protected from impressing for the first
three years; and if they are impressed afterwards, the masters shall
be allowed their wages[n]: great advantages in point of wages are
given to volunteer seamen in order to induce them to enter into his
majesty's service[o]: and every foreign seaman, who during a war shall
serve two years in any man of war, merchantman, or privateer, is
naturalized _ipso facto_[p]. About the middle of king William's reign,
a scheme was set on foot[q] for a register of seamen to the number of
thirty thousand, for a constant and regular supply of the king's
fleet; with great privileges to the registered men, and, on the other
hand, heavy penalties in case of their non-appearance when called for:
but this registry, being judged to be rather a badge of slavery, was
abolished by statute 9 Ann. c. 21.
[Footnote n: Stat. 2 Ann. c. 6.]
[Footnote o: Stat. 1 Geo. II. st. 2. c. 14.]
[Footnote p: Stat. 13 Geo. II. c. 3.]
[Footnote q: Stat. 7 & 8 W. III. c. 21.]
2. THE method of ordering seamen in the royal fleet, and keeping up a
regular discipline there, is directed by certain express rules,
articles and orders, first enacted by the authority of parliament soon
after the restoration[r]; but since new-modelled and altered, after
the peace of Aix la Chapelle[s], to remedy some defects which were of
fatal consequence in conducting the preceding war. In these articles
of the navy almost every possible offence is set down, and the
punishment thereof annexed: in which respect the seamen have much the
advantage over their brethren in the land service; whose articles of
war are not enacted by parliament, but framed from time to time at the
pleasure of the crown. Yet from whence this distinction arose, and why
the executive power, which is limited so properly with regard to the
navy, should be so extensive with regard to the army, it is hard to
assign a reason: unless it proceeded from the perpetual establishment
of the navy, which rendered a permanent law for their regulation
expedient; and the temporary duration of the army, which subsisted
only from year to year; and might therefore with less danger be
subjected to discretionary government. But, whatever was apprehended
at the first formation of the mutiny act, the regular renewal of our
standing force at the entrance of every year has made this distinction
idle. For, if from experience past we may judge of future events, the
army is now lastingly ingrafted into the British constitution; with
this singularly fortunate circumstance, that any branch of the
legislature may annually put an end to it's legal existence, by
refusing to concur in it's continuance.
[Footnote r: Stat. 13 Car. II. st. 1. c. 9.]
[Footnote s: Stat. 22 Geo. II. c. 23.]
3. WITH regard to the privileges conferred on sailors, they are pretty
much the same with those conferred on soldiers; with regard to relief,
when maimed, or wounded, or superannuate, either by county rates, or
the royal hospital at Greenwich; with regard also to the exercise of
trades, and the power of making informal testaments: and, farther[t],
no seaman aboard his majesty's ships can be arrested for any debt,
unless the same be sworn to amount to at least twenty pounds; though,
by the annual mutiny acts, a soldier may be arrested for a debt which
extends to half that value, but not to a less amount.
[Footnote t: Stat. 1 Geo. II. st. 2. c. 14.]
CHAPTER THE FOURTEENTH.
OF MASTER AND SERVANT.
HAVING thus commented on the rights and duties of persons, as standing
in the _public_ relations of magistrates and people; the method I have
marked out now leads me to consider their rights and duties in
_private_ oeconomical relations.
THE three great relations in private life are, 1. That of _master and
servant_; which is founded in convenience, whereby a man is directed
to call in the assistance of others, where his own skill and labour
will not be sufficient to answer the cares incumbent upon him. 2. That
of _husband and wife_; which is founded in nature, but modified by
civil society: the one directing man to continue and multiply his
species, the other prescribing the manner in which that natural
impulse must be confined and regulated. 3. That of _parent and child_,
which is consequential to that of marriage, being it's principal end
and design: and it is by virtue of this relation that infants are
protected, maintained, and educated. But, since the parents, on whom
this care is primarily incumbent, may be snatched away by death or
otherwise, before they have completed their duty, the law has
therefore provided a fourth relation; 4. That of _guardian and ward_,
which is a kind of artificial parentage, in order to supply the
deficiency, whenever it happens, of the natural. Of all these
relations in their order.
IN discussing the relation of _master and servant_, I shall, first,
consider the several sorts of servants, and how this relation is
created and destroyed: secondly, the effects of this relation with
regard to the parties themselves: and, lastly, it's effect with regard
to other persons.
I. AS to the several sorts of servants: I have formerly observed[a]
that pure and proper slavery does not, nay cannot, subsist in England;
such I mean, whereby an absolute and unlimited power is given to the
master over the life and fortune of the slave. And indeed it is
repugnant to reason, and the principles of natural law, that such a
state should subsist any where. The three origins of the right of
slavery assigned by Justinian[b], are all of them built upon false
foundations. As, first, slavery is held to arise "_jure gentium_,"
from a state of captivity in war; whence slaves are called _mancipia,
quasi manu capti_. The conqueror, say the civilians, had a right to
the life of his captive; and, having spared that, has a right to deal
with him as he pleases. But it is an untrue position, when taken
generally, that, by the law of nature or nations, a man may kill his
enemy: he has only a right to kill him, in particular cases; in cases
of absolute necessity, for self-defence; and it is plain this absolute
necessity did not subsist, since the victor did not actually kill him,
but made him prisoner. War is itself justifiable only on principles of
self-preservation; and therefore it gives no other right over
prisoners, but merely to disable them from doing harm to us, by
confining their persons: much less can it give a right to kill,
torture, abuse, plunder, or even to enslave, an enemy, when the war is
over. Since therefore the right of _making_ slaves by captivity,
depends on a supposed right of slaughter, that foundation failing, the
consequence drawn from it must fail likewise. But, secondly, it is
said that slavery may begin "_jure civili_;" when one man sells
himself to another. This, if only meant of contracts to serve or work
for another, is very just: but when applied to strict slavery, in the
sense of the laws of old Rome or modern Barbary, is also impossible.
Every sale implies a price, a _quid pro quo_, an equivalent given to
the seller in lieu of what he transfers to the buyer: but what
equivalent can be given for life, and liberty, both of which (in
absolute slavery) are held to be in the master's disposal? His
property also, the very price he seems to receive, devolves _ipso
facto_ to his master, the instant he becomes his slave. In this case
therefore the buyer gives nothing, and the seller receives nothing: of
what validity then can a sale be, which destroys the very principles
upon which all sales are founded? Lastly, we are told, that besides
these two ways by which slaves "_fiunt_," or are acquired, they may
also be hereditary: "_servi nascuntur_;" the children of acquired
slaves are, _jure naturae_, by a negative kind of birthright, slaves
also. But this being built on the two former rights must fall together
with them. If neither captivity, nor the sale of oneself, can by the
law of nature and reason, reduce the parent to slavery, much less can
it reduce the offspring.
[Footnote a: pag. 123.]
[Footnote b: _Servi aut fiunt, aut nascuntur: fiunt jure gentium, aut
jure civili: nascuntur ex ancillis nostris._ _Inst._ 1. 3. 4.]
UPON these principles the law of England abhors, and will not endure
the existence of, slavery within this nation: so that when an attempt
was made to introduce it, by statute 1 Edw. VI. c. 3. which ordained,
that all idle vagabonds should be made slaves, and fed upon bread,
water, or small drink, and refuse meat; should wear a ring of iron
round their necks, arms, or legs; and should be compelled by beating,
chaining, or otherwise, to perform the work assigned them, were it
never so vile; the spirit of the nation could not brook this
condition, even in the most abandoned rogues; and therefore this
statute was repealed in two years afterwards[c]. And now it is laid
down[d], that a slave or negro, the instant he lands in England,
becomes a freeman; that is, the law will protect him in the enjoyment
of his person, his liberty, and his property. Yet, with regard to any
right which the master may have acquired, by contract or the like, to
the perpetual service of John or Thomas, this will remain exactly in
the same state as before: for this is no more than the same state of
subjection for life, which every apprentice submits to for the space
of seven years, or sometimes for a longer term. Hence too it follows,
that the infamous and unchristian practice of withholding baptism from
negro servants, lest they should thereby gain their liberty, is
totally without foundation, as well as without excuse. The law of
England acts upon general and extensive principles: it gives liberty,
rightly understood, that is, protection, to a jew, a turk, or a
heathen, as well as to those who profess the true religion of Christ;
and it will not dissolve a civil contract, either express or implied,
between master and servant, on account of the alteration of faith in
either of the contracting parties: but the slave is entitled to the
same liberty in England before, as after, baptism; and, whatever
service the heathen negro owed to his English master, the same is he
bound to render when a christian.
[Footnote c: Stat. 3 & 4 Edw. VI. c. 16.]
[Footnote d: Salk. 666.]
1. THE first sort of servants therefore, acknowleged by the laws of
England, are _menial servants_; so called from being _intra moenia_,
or domestics. The contract between them and their masters arises upon
the hiring. If the hiring be general without any particular time
limited, the law construes it to be a hiring for a year[e]; upon a
principle of natural equity, that the servant shall serve, and the
master maintain him, throughout all the revolutions of the respective
seasons; as well when there is work to be done, as when there is
not[f]: but the contract may be made for any larger or smaller term.
All single men between twelve years old and sixty, and married ones
under thirty years of age, and all single women between twelve and
forty, not having any visible livelihood, are compellable by two
justices to go out to service, for the promotion of honest industry:
and no master can put away his servant, or servant leave his master,
either before or at the end of his term, without a quarter's warning;
unless upon reasonable cause to be allowed by a justice of the
peace[g]: but they may part by consent, or make a special bargain.
[Footnote e: Co. Litt. 42.]
[Footnote f: F.N.B. 168.]
[Footnote g: Stat. 5 Eliz. c. 4.]
2. ANOTHER species of servants are called _apprentices_ (from
_apprendre_, to learn) and are usually bound for a term of years, by
deed indented or indentures, to serve their masters, and be maintained
and instructed by them: for which purpose our statute law[h] has made
minors capable of binding themselves. This is usually done to persons
of trade, in order to learn their art and mystery; and sometimes very
large sums are given with them, as a premium for such their
instruction: but it may be done to husbandmen, nay to gentlemen, and
others. And[i] children of poor persons may be apprenticed out by the
overseers, with consent of two justices, till twenty four years of
age, to such persons as are thought fitting; who are also compellable
to take them: and it is held, that gentlemen of fortune, and
clergymen, are equally liable with others to such compulsion[k].
Apprentices to trades may be discharged on reasonable cause, either at
request of themselves or masters, at the quarter sessions, or by one
justice, with appeal to the sessions[l]: who may, by the equity of the
statute, if they think it reasonable, direct restitution of a ratable
share of the money given with the apprentice[m]. And parish
apprentices may be discharged in the same manner, by two justices[n].
[Footnote h: Stat. 5 Eliz. c. 4.]
[Footnote i: Stat. 5 Eliz. c. 4. 43 Eliz. c. 2. 1 Jac. I. c. 25. 7
Jac. I. c. 3. 8 & 9 W. & M. c. 30. 2 & 3 Ann. c. 6. 4 Ann. c. 19. 17
Geo. II. c. 5.]
[Footnote k: Salk. 57. 491.]
[Footnote l: Stat. 5 Eliz. c. 4.]
[Footnote m: Salk. 67.]
[Footnote n: Stat. 20 Geo. II. c. 19.]
3. A THIRD species of servants are _labourers_, who are only hired by
the day or the week, and do not live _intra moenia_, as part of the
family; concerning whom the statute so often cited[o] has made many
very good regulations; 1. Directing that all persons who have no
visible effects may be compelled to work: 2. Defining how long they
must continue at work in summer and winter: 3. Punishing such as leave
or desert their work: 4. Empowering the justices at sessions, or the
sheriff of the county, to settle their wages: and 5. Inflicting
penalties on such as either give, or exact, more wages than are so
settled.
[Footnote o: Stat. 5 Eliz. c. 4.]
4. THERE is yet a fourth species of servants, if they may be so
called, being rather in a superior, a ministerial, capacity; such as
_stewards_, _factors_, and _bailiffs_: whom however the law considers
as servants _pro tempore_, with regard to such of their acts, as
affect their master's or employer's property. Which leads me to
consider,
II. THE manner in which this relation, of service, affects either the
master or servant. And, first, by hiring and service for a year, or
apprenticeship under indentures, a person gains a settlement in that
parish wherein he last served forty days[p]. In the next place persons
serving as apprentices to any trade have an exclusive right to
exercise that trade in any part of England[q]. This law, with regard
to the exclusive part of it, has by turns been looked upon as a hard
law, or as a beneficial one, according to the prevailing humour of the
times: which has occasioned a great variety of resolutions in the
courts of law concerning it; and attempts have been frequently made
for it's repeal, though hitherto without success. At common law every
man might use what trade he pleased; but this statute restrains that
liberty to such as have served as apprentices: the adversaries to
which provision say, that all restrictions (which tend to introduce
monopolies) are pernicious to trade; the advocates for it alledge,
that unskilfulness in trades is equally detrimental to the public, as
monopolies. This reason indeed only extends to such trades, in the
exercise whereof skill is required: but another of their arguments
goes much farther; viz. that apprenticeships are useful to the
commonwealth, by employing of youth, and learning them to be early
industrious; but that no one would be induced to undergo a seven years
servitude, if others, though equally skilful, were allowed the same
advantages without having undergone the same discipline: and in this
there seems to be much reason. However, the resolutions of the courts
have in general rather confined than extended the restriction. No
trades are held to be within the statute, but such as were in being
at the making of it[r]: for trading in a country village,
apprenticeships are not requisite[s]: and following the trade seven
years is sufficient without any binding; for the statute only says,
the person must serve _as_ an apprentice, and does not require an
actual apprenticeship to have existed[t].
[Footnote p: See page 352.]
[Footnote q: Stat. 5 Eliz. c. 4.]
[Footnote r: Lord Raym. 514.]
[Footnote s: 1 Ventr. 51. 2 Keb. 583.]
[Footnote t: Lord Raym. 1179.]
A MASTER may by law correct his apprentice or servant for negligence
or other misbehaviour, so it be done with moderation[u]: though, if
the master's wife beats him, it is good cause of departure[w]. But if
any servant, workman, or labourer assaults his master or dame, he
shall suffer one year's imprisonment, and other open corporal
punishment, not extending to life or limb[x].
[Footnote u: 1 Hawk. P.C. 130. Lamb. Eiren. 127.]
[Footnote w: F.N.B. 168.]
[Footnote x: Stat. 5 Eliz. c. 4.]
BY service all servants and labourers, except apprentices, become
entitled to wages: according to their agreement, if menial servants;
or according to the appointment of the sheriff or sessions, if
labourers or servants in husbandry: for the statutes for regulation of
wages extend to such servants only[y]; it being impossible for any
magistrate to be a judge of the employment of menial servants, or of
course to assess their wages.
[Footnote y: 2 Jones. 47.]
III. LET us, lastly, see how strangers may be affected by this
relation of master and servant: or how a master may behave towards
others on behalf of his servant; and what a servant may do on behalf
of his master.
AND, first, the master may _maintain_, that is, abet and assist his
servant in any action at law against a stranger: whereas, in general,
it is an offence against public justice to encourage suits and
animosities, by helping to bear the expense of them, and is called in
law maintenance[z]. A master also may bring an action against any man
for beating or maiming his servant; but in such case he must assign,
as a special reason for so doing, his own damage by the loss of his
service; and this loss must be proved upon the trial[a]. A master
likewise may justify an assault in defence of his servant, and a
servant in defence of his master[b]: the master, because he has an
interest in his servant, not to be deprived of his service; the
servant, because it is part of his duty, for which he receives his
wages, to stand by and defend his master[c]. Also if any person do
hire or retain my servant, being in my service, for which the servant
departeth from me and goeth to serve the other, I may have an action
for damages against both the new master and the servant, or either of
them: but if the new master did not know that he is my servant, no
action lies; unless he afterwards refuse to restore him upon
information and demand[d]. The reason and foundation upon which all
this doctrine is built, seem to be the property that every man has in
the service of his domestics; acquired by the contract of hiring, and
purchased by giving them wages.
[Footnote z: 2 Roll. Abr. 115.]
[Footnote a: 9 Rep. 113.]
[Footnote b: 2 Roll. Abr. 546.]
[Footnote c: In like manner, by the laws of king Alfred, c. 38. a
servant was allowed to fight for his master, a parent for his child,
and a husband or father for the chastity of his wife or daughter.]
[Footnote d: F.N.B. 167, 168.]
AS for those things which a servant may do on behalf of his master,
they seem all to proceed upon this principle, that the master is
answerable for the act of his servant, if done by his command, either
expressly given, or implied: _nam qui facit per alium, facit per
se_[e]. Therefore, if the servant commit a trespass by the command or
encouragement of his master, the master shall be guilty of it: not
that the servant is excused, for he is only to obey his master in
matters that are honest and lawful. If an innkeeper's servants rob his
guests, the master is bound to restitution[f]: for as there is a
confidence reposed in him, that he will take care to provide honest
servants, his negligence is a kind of implied consent to the robbery;
_nam, qui non prohibet, cum prohibere possit, jubet_. So likewise if
the drawer at a tavern sells a man bad wine, whereby his health is
injured, he may bring an action against the master[g]: for, although
the master did not expressly order the servant to sell it to that
person in particular, yet his permitting him to draw and sell it at
all is impliedly a general command.
[Footnote e: 4 Inst. 109.]
[Footnote f: Noy's Max. c. 43.]
[Footnote g: 1 Roll. Abr. 95.]
IN the same manner, whatever a servant is permitted to do in the usual
course of his business, is equivalent to a general command. If I pay
money to a banker's servant, the banker is answerable for it: if I pay
it to a clergyman's or a physician's servant, whose usual business it
is not to receive money for his master, and he imbezzles it, I must
pay it over again. If a steward lets a lease of a farm, without the
owner's knowlege, the owner must stand to the bargain; for this is the
steward's business. A wife, a friend, a relation, that use to transact
business for a man, are _quoad hoc_ his servants; and the principal
must answer for their conduct: for the law implies, that they act
under a general command; and, without such a doctrine as this, no
mutual intercourse between man and man could subsist with any
tolerable convenience. If I usually deal with a tradesman by myself,
or constantly pay him ready money, I am not answerable for what my
servant takes up upon trust; for here is no implied order to the
tradesman to trust my servant: but if I usually send him upon trust,
or sometimes on trust, and sometimes with ready money, I am answerable
for all he takes up; for the tradesman cannot possibly distinguish
when he comes by my order, and when upon his own authority[h].
[Footnote h: Dr & Stud. d. 2. c. 42. Noy's max. c. 44.]
IF a servant, lastly, by his negligence does any damage to a stranger,
the master shall answer for his neglect: if a smith's servant lames a
horse while he is shoing him, an action lies against the master, and
not against the servant. But in these cases the damage must be done,
while he is actually employed in the master's service; otherwise the
servant shall answer for his own misbehaviour. Upon this principle,
by the common law[i], if a servant kept his master's fire negligently,
so that his neighbour's house was burned down thereby, an action lay
against the master; because this negligence happened in his service:
otherwise, if the servant, going along the street with a torch, by
negligence sets fire to a house; for there he is not in his master's
immediate service, and must himself answer the damage personally. But
now the common law is, in the former case, altered by statute 6 Ann.
c. 3. which ordains that no action shall be maintained against any, in
whose house or chamber any fire shall accidentally begin; for their
own loss is sufficient punishment for their own or their servants'
carelessness. But if such fire happens through negligence of any
servant (whose loss is commonly very little) such servant shall
forfeit 100_l_, to be distributed among the sufferers; and, in default
of payment, shall be committed to some workhouse and there kept to
hard labour for eighteen months[k]. A master is, lastly, chargeable if
any of his family layeth or casteth any thing out of his house into
the street or common highway, to the damage of any individual, or the
common nusance of his majesty's liege people[l]: for the master hath
the superintendance and charge of all his houshold. And this also
agrees with the civil law[m]; which holds, that the _pater familias_,
in this and similar cases, "_ob alterius culpam tenetur, sive servi,
sive liberi_."
[Footnote i: Noy's max. c. 44.]
[Footnote k: Upon a similar principle, by the law of the twelve tables
at Rome, a person by whose negligence any fire began was bound to pay
double to the sufferers; or if he was not able to pay, was to suffer a
corporal punishment.]
[Footnote l: Noy's max. c. 44.]
[Footnote m: _Ff._ 9. 3. 1. _Inst._ 4. 5. 1.]
WE may observe, that in all the cases here put, the master may be
frequently a loser by the trust reposed in his servant, but never can
be a gainer: he may frequently be answerable for his servant's
misbehaviour, but never can shelter himself from punishment by laying
the blame on his agent. The reason of this is still uniform and the
same; that the wrong done by the servant is looked upon in law as the
wrong of the master himself; and it is a standing maxim, that no man
shall be allowed to make any advantage of his own wrong.
CHAPTER THE FIFTEENTH.
OF HUSBAND AND WIFE.
THE second private relation of persons is that of marriage, which
includes the reciprocal duties of husband and wife; or, as most of our
elder law books call them, of _baron_ and _feme_. In the consideration
of which I shall in the first place enquire, how marriages may be
contracted or made; shall next point out the manner in which they may
be dissolved; and shall, lastly, take a view of the legal effects and
consequence of marriage.
I. OUR law considers marriage in no other light than as a civil
contract. The _holiness_ of the matrimonial state is left entirely to
the ecclesiastical law: the temporal courts not having jurisdiction to
consider unlawful marriages as a sin, but merely as a civil
inconvenience. The punishment therefore, or annulling, of incestuous
or other unscriptural marriages, is the province of the spiritual
courts; which act _pro salute animae_[a]. And, taking it in this civil
light, the law treats it as it does all other contracts; allowing it
to be good and valid in all cases, where the parties at the time of
making it were, in the first place, _willing_ to contract; secondly,
_able_ to contract; and, lastly, actually _did_ contract, in the
proper forms and solemnities required by law.
[Footnote a: Salk. 121.]
FIRST, they must be _willing_ to contract. "_Consensus, non
concubitus, facit nuptias_," is the maxim of the civil law in this
case[b]: and it is adopted by the common lawyers[c], who indeed have
borrowed (especially in antient times) almost all their notions of the
legitimacy of marriage from the canon and civil laws.
[Footnote b: _Ff._ 50. 17. 30.]
[Footnote c: Co. Litt. 33.]
SECONDLY, they must be _able_ to contract. In general, all persons are
able to contract themselves in marriage, unless they labour under some
particular disabilities, and incapacities. What those are, it will
here be our business to enquire.
NOW these disabilities are of two sorts: first, such as are canonical,
and therefore sufficient by the ecclesiastical laws to avoid the
marriage in the spiritual court; but these in our law only make the
marriage voidable, and not _ipso facto_ void, until sentence of
nullity be obtained. Of this nature are pre-contract; consanguinity,
or relation by blood; and affinity, or relation by marriage; and some
particular corporal infirmities. And these canonical disabilities are
either grounded upon the express words of the divine law, or are
consequences plainly deducible from thence: it therefore being sinful
in the persons, who labour under them, to attempt to contract
matrimony together, they are properly the object of the ecclesiastical
magistrate's coercion; in order to separate the offenders, and inflict
penance for the offence, _pro salute animarum_. But such marriages not
being void _ab initio_, but voidable only by sentence of separation,
they are esteemed valid to all civil purposes, unless such separation
is actually made during the life of the parties. For, after the death
of either of them, the courts of common law will not suffer the
spiritual court to declare such marriages to have been void; because
such declaration cannot now tend to the reformation of the parties[d].
And therefore when a man had married his first wife's sister, and
after her death the bishop's court was proceeding to annul the
marriage and bastardize the issue, the court of king's bench granted
a prohibition _quoad hoc_; but permitted them to proceed to punish the
husband for incest[e]. These canonical disabilities, being entirely
the province of the ecclesiastical courts, our books are perfectly
silent concerning them. But there are a few statutes, which serve as
directories to those courts, of which it will be proper to take
notice. By statute 32 Hen. VIII. c. 38. it is declared, that all
persons may lawfully marry, but such as are prohibited by God's law;
and that all marriages contracted by lawful persons in the face of the
church, and consummate with bodily knowlege, and fruit of children,
shall be indissoluble. And (because in the times of popery a great
variety of degrees of kindred were made impediments to marriage, which
impediments might however be bought off for money) it is declared by
the same statute, that nothing (God's law except) shall impeach any
marriage, but within the Levitical degrees; the farthest of which is
that between uncle and niece[f]. By the same statute all impediments,
arising from pre-contracts to other persons, were abolished and
declared of none effect, unless they had been consummated with bodily
knowlege: in which case the canon law holds such contract to be a
marriage _de facto_. But this branch of the statute was repealed by
statute 2 & 3 Edw. VI. c. 23. How far the act of 26 Geo. II. c. 33.
(which prohibits all suits in ecclesiastical courts to compel a
marriage, in consequence of any contract) may collaterally extend to
revive this clause of Henry VIII's statute, and abolish the impediment
of pre-contract, I leave to be considered by the canonists.
[Footnote d: _Ibid._]
[Footnote e: Salk. 548.]
[Footnote f: Gilb. Rep. 158.]
THE other sort of disabilities are those which are created, or at
least enforced, by the municipal laws. And, though some of them may be
grounded on natural law, yet they are regarded by the laws of the
land, not so much in the light of any moral offence, as on account of
the civil inconveniences they draw after them. These civil
disabilities make the contract void _ab initio_, and not merely
voidable: not that they dissolve a contract already formed, but they
render the parties incapable of forming any contract at all: they do
not put asunder those who are joined together, but they previously
hinder the junction. And, if any persons under these legal
incapacities come together, it is a meretricious, and not a
matrimonial, union.
1. THE first of these legal disabilities is a prior marriage, or
having another husband or wife living; in which case, besides the
penalties consequent upon it as a felony, the second marriage is to
all intents and purposes void[g]: polygamy being condemned both by the
law of the new testament, and the policy of all prudent states,
especially in these northern climates. And Justinian, even in the
climate of modern Turkey, is express[h], that "_duas uxores eodem
tempore habere non licet_."
[Footnote g: Bro. Abr. _tit. Bastardy._ pl. 8.]
[Footnote h: _Inst._ 1. 10. 6.]
2. THE next legal disability is want of age. This is sufficient to
avoid all other contracts, on account of the imbecillity of judgment
in the parties contracting; _a fortiori_ therefore it ought to avoid
this, the most important contract of any. Therefore if a boy under
fourteen, or a girl under twelve years of age, marries, this marriage
is only inchoate and imperfect; and, when either of them comes to the
age of consent aforesaid, they may disagree and declare the marriage
void, without any divorce or sentence in the spiritual court. This is
founded on the civil law[i]. But the canon law pays a greater regard
to the constitution, than the age, of the parties[k]: for if they are
_habiles ad matrimonium_, it is a good marriage, whatever their age
may be. And in our law it is so far a marriage, that, if at the age of
consent they agree to continue together, they need not be married
again[l]. If the husband be of years of discretion, and the wife under
twelve, when she comes to years of discretion he may disagree as well
as she may: for in contracts the obligation must be mutual; both must
be bound, or neither: and so it is, _vice versa_, when the wife is of
years of discretion, and the husband under[m].
[Footnote i: _Leon. Constit._ 109.]
[Footnote k: _Decretal._ _l._ 4. _tit._ 2. _qu._ 3.]
[Footnote l: Co. Litt. 79.]
[Footnote m: _Ibid._]
3. ANOTHER incapacity arises from want of consent of parents or
guardians. By the common law, if the parties themselves were of the
age of consent, there wanted no other concurrence to make the marriage
valid: and this was agreeable to the canon law. But, by several
statutes[n], penalties of 100_l._ are laid on every clergyman who
marries a couple either without publication of banns (which may give
notice to parents or guardians) or without a licence, to obtain which
the consent of parents or guardians must be sworn to. And by the
statute 4 & 5 Ph. & M. c. 8. whosoever marries any woman child under
the age of sixteen years, without consent of parents or guardians,
shall be subject to fine, or five years imprisonment: and her estate
during the husband's life shall go to and be enjoyed by the next heir.
The civil law indeed required the consent of the parent or tutor at
all ages; unless the children were emancipated, or out of the parents
power[o]: and, if such consent from the father was wanting, the
marriage was null, and the children illegitimate[p]; but the consent
of the mother or guardians, if unreasonably withheld, might be
redressed and supplied by the judge, or the president of the
province[q]: and if the father was _non compos_, a similar remedy was
given[r]. These provisions are adopted and imitated by the French and
Hollanders, with this difference: that in France the sons cannot marry
without consent of parents till thirty years of age, nor the daughters
till twenty five[s]; and in Holland, the sons are at their own
disposal at twenty five, and the daughters at twenty[t]. Thus hath
stood, and thus at present stands, the law in other neighbouring
countries. And it has been lately thought proper to introduce somewhat
of the same policy into our laws, by statute 26 Geo. II. c. 33.
whereby it is enacted, that all marriages celebrated by licence (for
banns suppose notice) where either of the parties is under twenty
one, (not being a widow or widower, who are supposed emancipated)
without the consent of the father, or, if he be not living, of the
mother or guardians, shall be absolutely void. A like provision is
made as in the civil law, where the mother or guardian is _non
compos_, beyond sea, or unreasonably froward, to dispense with such
consent at the discretion of the lord chancellor: but no provision is
made, in case the father should labour under any mental or other
incapacity. Much may be, and much has been, said both for and against
this innovation upon our antient laws and constitution. On the one
hand, it prevents the clandestine marriages of minors, which are often
a terrible inconvenience to those private families wherein they
happen. On the other hand, restraints upon marriage, especially among
the lower class, are evidently detrimental to the public, by hindering
the encrease of people; and to religion and morality, by encouraging
licentiousness and debauchery among the single of both sexes; and
thereby destroying one end of society and government, which is,
_concubitu prohibere vago_. And of this last inconvenience the Roman
laws were so sensible, that at the same time that they forbad marriage
without the consent of parents or guardians, they were less rigorous
upon that very account with regard to other restraints: for, if a
parent did not provide a husband for his daughter, by the time she
arrived at the age of twenty five, and she afterwards made a slip in
her conduct, he was not allowed to disinherit her upon that account;
"_quia non sua culpa, sed parentum, id commisisse cognoscitur_[u]."
[Footnote n: 6 & 7 W. III. c. 6. 7 & 8 W. III. c. 35. 10 Ann. c. 19.]
[Footnote o: _Ff._ 23. 2. 2, & 18.]
[Footnote p: _Ff._ 1. 5. 11.]
[Footnote q: _Cod._ 5. 4. 1, & 20.]
[Footnote r: _Inst._ 1. 10. 1.]
[Footnote s: Domat, of dowries §. 2. Montesq. Sp. L. 23. 7.]
[Footnote t: _Vinnius in Inst._ _l._ 1. _t._ 10.]
[Footnote u: _Nov._ 115. §. 11.]
4. A FOURTH incapacity is want of reason; without a competent share of
which, as no other, so neither can the matrimonial contract, be valid.
Idiots and lunatics, by the old common law, might have married[w];
wherein it was manifestly defective. The civil law judged much more
sensibly, when it made such deprivations of reason a previous
impediment; though not a cause of divorce, if they happened after
marriage[x]. This defect in our laws is however remedied with regard
to lunatics, and persons under frenzies, by the express words of the
statute 15 Geo. II. c. 30. and idiots, if not within the letter of the
statute, are at least within the reason of it.
[Footnote w: 1 Roll. Abr. 357.]
[Footnote x: _Ff._ 23. _tit._ 1. _l._ 8. & _tit._ 2. _l._ 16.]
LASTLY, the parties must not only be willing, and able, to contract,
but actually must contract themselves in due form of law, to make it a
good civil marriage. Any contract made, _per verba de praesenti_, or
in words of the present tense, and in case of cohabitation _per verba
de futuro_ also, between persons able to contract, was before the late
act deemed a valid marriage to many purposes; and the parties might be
compelled in the spiritual courts to celebrate it _in facie
ecclesiae_. But these verbal contracts are now of no force, to compel
a future marriage[y]. Neither is any marriage at present valid, that
is not celebrated in some parish church or public chapel, unless by
dispensation from the arch-bishop of Canterbury. It must also be
preceded by publication of banns, or by licence from the spiritual
judge. Many other formalities are likewise prescribed by the act; the
neglect of which, though penal, does not invalidate the marriage. It
is held to be also essential to a marriage, that it be performed by a
person in orders[z]; though the intervention of a priest to solemnize
this contract is merely _juris positivi_, and not _juris naturalis aut
divini_: it being said that pope Innocent the third was the first who
ordained the celebration of marriage in the church[a]; before which it
was totally a civil contract. And, in the times of the grand
rebellion, all marriages were performed by the justices of the peace;
and these marriages were declared valid, without any fresh
solemnization, by statute 12 Car. II. c. 33. But, as the law now
stands, we may upon the whole collect, that no marriage by the
temporal law is _ipso facto_ void, that is celebrated by a person in
orders,--in a parish church or public chapel (or elsewhere, by special
dispensation)--in pursuance of banns or a licence,--between single
persons,--consenting,--of sound mind,--and of the age of twenty one
years;--or of the age of fourteen in males and twelve in females, with
consent of parents or guardians, or without it, in case of widowhood.
And no marriage is _voidable_ by the ecclesiastical law, after the
death of either of the parties; nor during their lives, unless for the
canonical impediments of pre-contract, if that indeed still exists; of
consanguinity; and of affinity, or corporal imbecillity, subsisting
previous to the marriage.
[Footnote y: Stat. 26 Geo. II. c. 33.]
[Footnote z: Salk. 119.]
[Footnote a: Moor 170.]
II. I AM next to consider the manner in which marriages may be
dissolved; and this is either by death, or divorce. There are two
kinds of divorce, the one total, the other partial; the one _a vinculo
matrimonii_, the other merely _a mensa et thoro_. The total divorce,
_a vinculo matrimonii_, must be for some of the canonical causes of
impediment before-mentioned; and those, existing _before_ the
marriage, as is always the case in consanguinity; not supervenient, or
arising _afterwards_, as may be the case in affinity or corporal
imbecillity. For in cases of total divorce, the marriage is declared
null, as having been absolutely unlawful _ab initio_; and the parties
are therefore separated _pro salute animarum_: for which reason, as
was before observed, no divorce can be obtained, but during the life
of the parties. The issue of such marriage, as is thus entirely
dissolved, are bastards[b].
[Footnote b: Co. Litt. 235.]
DIVORCE _a mensa et thoro_ is when the marriage is just and lawful _ab
initio_, and therefore the law is tender of dissolving it; but, for
some supervenient cause, it becomes improper or impossible for the
parties to live together: as in the case of intolerable ill temper, or
adultery, in either of the parties. For the canon law, which the
common law follows in this case, deems so highly and with such
mysterious reverence of the nuptial tie, that it will not allow it to
be unloosed for any cause whatsoever, that arises after the union is
made. And this is said to be built on the divine revealed law; though
that expressly assigns incontinence as a cause, and indeed the only
cause, why a man may put away his wife and marry another[c]. The civil
law, which is partly of pagan original, allows many causes of absolute
divorce; and some of them pretty severe ones, (as if a wife goes to
the theatre or the public games, without the knowlege and consent of
the husband[d]) but among them adultery is the principal, and with
reason named the first[e]. But with us in England adultery is only a
cause of separation from bed and board[f]: for which the best reason
that can be given, is, that if divorces were allowed to depend upon a
matter within the power of either the parties, they would probably be
extremely frequent; as was the case when divorces were allowed for
canonical disabilities, on the mere confession of the parties[g],
which is now prohibited by the canons[h]. However, divorces _a vinculo
matrimonii_, for adultery, have of late years been frequently granted
by act of parliament.
[Footnote c: Matt. xix. 9.]
[Footnote d: _Nov._ 117.]
[Footnote e: _Cod._ 5. 17. 8.]
[Footnote f: Moor 683.]
[Footnote g: 2 Mod. 314.]
[Footnote h: Can. 1603 c. 105.]
IN case of divorce _a mensa et thoro_, the law allows alimony to the
wife; which is that allowance, which is made to a woman for her
support out of the husband's estate; being settled at the discretion
of the ecclesiastical judge, on consideration of all the circumstances
of the case. This is sometimes called her _estovers_; for which, if he
refuses payment, there is (besides the ordinary process of
excommunication) a writ at common law _de estoveriis habendis_, in
order to recover it[i]. It is generally proportioned to the rank and
quality of the parties. But in case of elopement, and living with an
adulterer, the law allows her no alimony[k].
[Footnote i: 1 Lev. 6.]
[Footnote k: Cowel. tit. Alimony.]
III. HAVING thus shewn how marriages may be made, or dissolved, I come
now, lastly, to speak of the legal consequences of such making, or
dissolution.
BY marriage, the husband and wife are one person in law[l]: that is,
the very being or legal existence of the woman is suspended during the
marriage, or at least is incorporated and consolidated into that of
the husband: under whose wing, protection, and _cover_, she performs
every thing; and is therefore called in our law-french a
_feme-covert_; is said to be _covert-baron_, or under the protection
and influence of her husband, her _baron_, or lord; and her condition
during her marriage is called her _coverture_. Upon this principle, of
an union of person in husband and wife, depend almost all the legal
rights, duties, and disabilities, that either of them acquire by the
marriage. I speak not at present of the rights of property, but of
such as are merely _personal_. For this reason, a man cannot grant any
thing to his wife, or enter into covenant with her[m]: for the grant
would be to suppose her separate existence; and to covenant with her,
would be only to covenant with himself: and therefore it is also
generally true, that all compacts made between husband and wife, when
single, are voided by the intermarriage[n]. A woman indeed may be
attorney for her husband[o]; for that implies no separation from, but
is rather a representation of, her lord. And a husband may also
bequeath any thing to his wife by will; for that cannot take effect
till the coverture is determined by his death[p]. The husband is bound
to provide his wife with necessaries by law, as much as himself; and
if she contracts debts for them, he is obliged to pay them[q]: but for
any thing besides necessaries, he is not chargeable[r]. Also if a wife
elopes, and lives with another man, the husband is not chargeable even
for necessaries[s]; at least if the person, who furnishes them, is
sufficiently apprized of her elopement[t]. If the wife be indebted
before marriage, the husband is bound afterwards to pay the debt; for
he has adopted her and her circumstances together[u]. If the wife be
injured in her person or her property, she can bring no action for
redress without her husband's concurrence, and in his name, as well as
her own[w]: neither can she be sued, without making the husband a
defendant[x]. There is indeed one case where the wife shall sue and be
sued as a feme sole, viz. where the husband has abjured the realm, or
is banished[y]: for then he is dead in law; and, the husband being
thus disabled to sue for or defend the wife, it would be most
unreasonable if she had no remedy, or could make no defence at all. In
criminal prosecutions, it is true, the wife may be indicted and
punished separately[z]; for the union is only a civil union. But, in
trials of any sort, they are not allowed to be evidence for, or
against, each other[a]: partly because it is impossible their
testimony should be indifferent; but principally because of the union
of person: and therefore, if they were admitted to be witnesses _for_
each other, they would contradict one maxim of law, "_nemo in propria
causa testis esse debet_;" and if _against_ each other, they would
contradict another maxim, "_nemo tenetur seipsum accusare_." But where
the offence is directly against the person of the wife, this rule has
been usually dispensed with[b]: and therefore, by statute 3 Hen. VII.
c. 2. in case a woman be forcibly taken away, and married, she may be
a witness against such her husband, in order to convict him of felony.
For in this case she can with no propriety be reckoned his wife;
because a main ingredient, her consent, was wanting to the contract:
and also there is another maxim of law, that no man shall take
advantage of his own wrong; which the ravisher here would do, if by
forcibly marrying a woman, he could prevent her from being a witness,
who is perhaps the only witness, to that very fact.
[Footnote l: Co. Litt. 112.]
[Footnote m: _Ibid._]
[Footnote n: Cro. Car. 551.]
[Footnote o: F.N.B. 27.]
[Footnote p: Co. Litt. 112.]
[Footnote q: Salk. 118.]
[Footnote r: 1 Sid. 120.]
[Footnote s: Stra. 647.]
[Footnote t: 1 Lev. 5.]
[Footnote u: 3 Mod. 186.]
[Footnote w: Salk. 119. 1 Roll. Abr. 347.]
[Footnote x: 1 Leon. 312. This was also the practice in the courts of
Athens. (Pott. Antiqu. b. 1. c. 21.)]
[Footnote y: Co. Litt. 133.]
[Footnote z: 1 Hawk. P.C. 3.]
[Footnote a: 2 Haw. P.C. 431.]
[Footnote b: State trials, vol. 1. Lord Audley's case. Stra. 633.]
IN the civil law the husband and wife are considered as two distinct
persons; and may have separate estates, contracts, debts, and
injuries[c]: and therefore, in our ecclesiastical courts, a woman may
sue and be sued without her husband[d].
[Footnote c: _Cod._ 4. 12. 1.]
[Footnote d: 2 Roll. Abr. 298.]
BUT, though our law in general considers man and wife as one person,
yet there are some instances in which she is separately considered; as
inferior to him, and acting by his compulsion. And therefore all deeds
executed, and acts done, by her, during her coverture, are void, or at
least voidable; except it be a fine, or the like matter of record, in
which case she must be solely and secretly examined, to learn if her
act be voluntary[e]. She cannot by will devise lands to her husband,
unless under special circumstances; for at the time of making it she
is supposed to be under his coercion[f]. And in some felonies, and
other inferior crimes, committed by her, through constraint of her
husband, the law excuses her[g]: but this extends not to treason or
murder.
[Footnote e: Litt. §. 669, 670.]
[Footnote f: Co. Litt. 112.]
[Footnote g: 1 Hawk. P.C. 2.]
THE husband also (by the old law) might give his wife moderate
correction[h]. For, as he is to answer for her misbehaviour, the law
thought it reasonable to intrust him with this power of restraining
her, by domestic chastisement, in the same moderation that a man is
allowed to correct his servants or children; for whom the master or
parent is also liable in some cases to answer. But this power of
correction was confined within reasonable bounds[i]; and the husband
was prohibited to use any violence to his wife, _aliter quam ad virum,
ex causa regiminis et castigationis uxoris suae, licite et
rationabiliter pertinet_[k]. The civil law gave the husband the same,
or a larger, authority over his wife; allowing him, for some
misdemesnors, _flagellis et fustibus acriter verberare uxorem_; for
others, only _modicam castigationem adhibere_[l]. But, with us, in
the politer reign of Charles the second, this power of correction
began to be doubted[m]: and a wife may now have security of the peace
against her husband[n]; or, in return, a husband against his wife[o].
Yet the lower rank of people, who were always fond of the old common
law, still claim and exert their antient privilege: and the courts of
law will still permit a husband to restrain a wife of her liberty, in
case of any gross misbehaviour[p].
[Footnote h: _Ibid._ 130.]
[Footnote i: Moor. 874.]
[Footnote k: F.N.B. 80.]
[Footnote l: _Nov._ 117. _c._ 14. & Van Leeuwen _in loc._]
[Footnote m: 1 Sid. 113. 3 Keb. 433.]
[Footnote n: 2 Lev. 128.]
[Footnote o: Stra. 1207.]
[Footnote p: Stra. 478. 875.]
THESE are the chief legal effects of marriage during the coverture;
upon which we may observe, that even the disabilities, which the wife
lies under, are for the most part intended for her protection and
benefit. So great a favourite is the female sex of the laws of
England.
CHAPTER THE SIXTEENTH.
OF PARENT AND CHILD.
THE next, and the most universal relation in nature, is immediately
derived from the preceding, being that between parent and child.
CHILDREN are of two sorts; legitimate, and spurious, or bastards: each
of which we shall consider in their order; and first of legitimate
children.
I. A LEGITIMATE child is he that is born in lawful wedlock, or within
a competent time afterwards. "_Pater est quem nuptiae demonstrant_,"
is the rule of the civil law[a]; and this holds with the civilians,
whether the nuptials happen before, or after, the birth of the child.
With us in England the rule is narrowed, for the nuptials must be
precedent to the birth; of which more will be said when we come to
consider the case of bastardy. At present let us enquire into, 1. The
legal duties of parents to their legitimate children. 2. Their power
over them. 3. The duties of such children to their parents.
[Footnote a: _Ff._ 2. 4. 5.]
1. AND, first, the duties of parents to legitimate children: which
principally consist in three particulars; their maintenance, their
protection, and their education.
THE duty of parents to provide for the _maintenance_ of their children
is a principle of natural law; an obligation, says Puffendorf[b], laid
on them not only by nature herself, but by their own proper act, in
bringing them into the world: for they would be in the highest manner
injurious to their issue, if they only gave the children life, that
they might afterwards see them perish. By begetting them therefore
they have entered into a voluntary obligation, to endeavour, as far as
in them lies, that the life which they have bestowed shall be
supported and preserved. And thus the children will have a perfect
_right_ of receiving maintenance from their parents. And the president
Montesquieu[c] has a very just observation upon this head: that the
establishment of marriage in all civilized states is built on this
natural obligation of the father to provide for his children; for that
ascertains and makes known the person who is bound to fulfil this
obligation: whereas, in promiscuous and illicit conjunctions, the
father is unknown; and the mother finds a thousand obstacles in her
way;--shame, remorse, the constraint of her sex, and the rigor of
laws;--that stifle her inclinations to perform this duty: and besides,
she generally wants ability.
[Footnote b: L. of N. l. 4. c. 11.]
[Footnote c: Sp. L. l. 23. c. 2.]
THE municipal laws of all well-regulated states have taken care to
enforce this duty: though providence has done it more effectually than
any laws, by implanting in the breast of every parent that natural
[Greek: storgê], or insuperable degree of affection, which not even
the deformity of person or mind, not even the wickedness, ingratitude,
and rebellion of children, can totally suppress or extinguish.
THE civil law[d] obliges the parent to provide maintenance for his
child; and, if he refuses, "_judex de ea re cognoscet_." Nay, it
carries this matter so far, that it will not suffer a parent at his
death totally to disinherit his child, without expressly giving his
reason for so doing; and there are fourteen such reasons reckoned
up[e], which may justify such disinherison. If the parent alleged no
reason, or a bad, or false one, the child might set the will aside,
_tanquam testamentum inofficiosum_, a testament contrary to the
natural duty of the parent. And it is remarkable under what colour the
children were to move for relief in such a case: by suggesting that
the parent had lost the use of his reason, when he made the
_inofficious_ testament. And this, as Puffendorf observes[f], was not
to bring into dispute the testator's power of disinheriting his own
offspring; but to examine the motives upon which he did it: and, if
they were found defective in reason, then to set them aside. But
perhaps this is going rather too far: every man has, or ought to have,
by the laws of society, a power over his own property: and, as Grotius
very well distinguishes[g], natural right obliges to give a
_necessary_ maintenance to children; but what is more than that, they
have no other right to, than as it is given them by the favour of
their parents, or the positive constitutions of the municipal law.
[Footnote d: _Ff._ 25. 3. 5.]
[Footnote e: _Nov._ 115.]
[Footnote f: _l._ 4. _c._ 11. §. 7.]
[Footnote g: _De j.b. & p._ _l._ 2. _c._ 7. _n._ 3.]
LET us next see what provision our own laws have made for this natural
duty. It is a principle of law[h], that there is an obligation on
every man to provide for those descended from his loins: and the
manner, in which this obligation shall be performed, is thus pointed
out[i]. The father, and mother, grandfather, and grandmother of poor
impotent persons shall maintain them at their own charges, if of
sufficient ability, according as the quarter sessions shall direct:
and[k] if a parent runs away, and leaves his children, the
churchwardens and overseers of the parish shall seise his rents,
goods, and chattels, and dispose of them towards their relief. By the
interpretations which the courts of law have made upon these statutes,
if a mother or grandmother marries again, and was before such second
marriage of sufficient ability to keep the child, the husband shall be
charged to maintain it[l]: for this being a debt of hers, when
single, shall like others extend to charge the husband. But at her
death, the relation being dissolved, the husband is under no farther
obligation.
[Footnote h: Raym. 500.]
[Footnote i: Stat. 43 Eliz. c. 2.]
[Footnote k: Stat. 5 Geo. I. c. 8.]
[Footnote l: Styles. 283. 2 Bulstr. 346.]
NO person is bound to provide a maintenance for his issue, unless
where the children are impotent and unable to work, either through
infancy, disease, or accident; and then is only obliged to find them
with necessaries, the penalty on refusal being no more than 20_s._ a
month. For the policy of our laws, which are ever watchful to promote
industry, did not mean to compel a father to maintain his idle and
lazy children in ease and indolence: but thought it unjust to oblige
the parent, against his will, to provide them with superfluities, and
other indulgences of fortune; imagining they might trust to the
impulse of nature, if the children were deserving of such favours.
Yet, as nothing is so apt to stifle the calls of nature as religious
bigotry, it is enacted[m], that if any popish parent shall refuse to
allow his protestant child a fitting maintenance, with a view to
compel him to change his religion, the lord chancellor shall by order
of court constrain him to do what is just and reasonable. But this did
not extend to persons of another religion, of no less bitterness and
bigotry than the popish: and therefore in the very next year we find
an instance of a Jew of immense riches, whose only daughter having
embraced christianity, he turned her out of doors; and on her
application for relief, it was held she was intitled to none[n]. But
this gave occasion[o] to another statute[p], which ordains, that if
jewish parents refuse to allow their protestant children a fitting
maintenance, suitable to the fortune of the parent, the lord
chancellor on complaint may make such order therein as he shall see
proper.
[Footnote m: Stat. 11 & 12 W. III. c. 4.]
[Footnote n: Lord Raym. 699.]
[Footnote o: Com. Journ. 18 Feb. 12 Mar. 1701.]
[Footnote p: 1 Ann. st. 1. c. 30.]
OUR law has made no provision to prevent the disinheriting of children
by will; leaving every man's property in his own disposal, upon a
principle of liberty in this, as well as every other, action: though
perhaps it had not been amiss, if the parent had been bound to leave
them at the least a necessary subsistence. By the custom of London
indeed, (which was formerly universal throughout the kingdom) the
children of freemen are entitled to one third of their father's
effects, to be equally divided among them; of which he cannot deprive
them. And, among persons of any rank or fortune, a competence is
generally provided for younger children, and the bulk of the estate
settled upon the eldest, by the marriage-articles. Heirs also, and
children, are favourites of our courts of justice, and cannot be
disinherited by any dubious or ambiguous words; there being required
the utmost certainty of the testator's intentions to take away the
right of an heir[q].
[Footnote q: 1 Lev. 130.]
FROM the duty of maintenance we may easily pass to that of
_protection_; which is also a natural duty, but rather permitted than
enjoined by any municipal laws: nature, in this respect, working so
strongly as to need rather a check than a spur. A parent may, by our
laws, maintain and uphold his children in their lawsuits, without
being guilty of the legal crime of maintaining quarrels[r]. A parent
may also justify an assault and battery in defence of the persons of
his children[s]: nay, where a man's son was beaten by another boy, and
the father went near a mile to find him, and there revenged his son's
quarrel by beating the other boy, of which beating he afterwards died;
it was not held to be murder, but manslaughter merely[t]. Such
indulgence does the law shew to the frailty of human nature, and the
workings of parental affection.
[Footnote r: 2 Inst. 564.]
[Footnote s: 1 Hawk. P.C. 131.]
[Footnote t: Cro. Jac. 296. 1 Hawk. P.C. 83.]
THE last duty of parents to their children is that of giving them an
_education_ suitable to their station in life: a duty pointed out by
reason, and of far the greatest importance of any. For, as Puffendorf
very well observes[u], it is not easy to imagine or allow, that a
parent has conferred any considerable benefit upon his child, by
bringing him into the world; if he afterwards entirely neglects his
culture and education, and suffers him to grow up like a mere beast,
to lead a life useless to others, and shameful to himself. Yet the
municipal laws of most countries seem to be defective in this point,
by not constraining the parent to bestow a proper education upon his
children. Perhaps they thought it punishment enough to leave the
parent, who neglects the instruction of his family, to labour under
those griefs and inconveniences, which his family, so uninstructed,
will be sure to bring upon him. Our laws, though their defects in this
particular cannot be denied, have in one instance made a wise
provision for breeding up the rising generation; since the poor and
laborious part of the community, when past the age of nurture, are
taken out of the hands of their parents, by the statutes for
apprenticing poor children[w]; and are placed out by the public in
such a manner, as may render their abilities, in their several
stations, of the greatest advantage to the commonwealth. The rich
indeed are left at their own option, whether they will breed up their
children to be ornaments or disgraces to their family. Yet in one
case, that of religion, they are under peculiar restrictions: for[x]
it is provided, that if any person sends any child under his
government beyond the seas, either to prevent it's good education in
England, or in order to enter into or reside in any popish college, or
to be instructed, persuaded, or strengthened in the popish religion;
in such case, besides the disabilities incurred by the child so sent,
the parent or person sending shall forfeit 100_l._ which[y] shall go
to the sole use and benefit of him that shall discover the offence.
And[z] if any parent, or other, shall send or convey any person beyond
sea, to enter into, or be resident in, or trained up in, any priory,
abbey, nunnery, popish university, college, or school, or house of
jesuits, or priests, or in any private popish family, in order to be
instructed, persuaded, or confirmed in the popish religion; or shall
contribute any thing towards their maintenance when abroad by any
pretext whatever, the person both sending and sent shall be disabled
to sue in law or equity, or to be executor or administrator to any
person, or to enjoy any legacy or deed of gift, or to bear any office
in the realm, and shall forfeit all his goods and chattels, and
likewise all his real estate for life.
[Footnote u: L. of N. b. 6. c. 2. §. 12.]
[Footnote w: See page 414.]
[Footnote x: Stat. 1 Jac. I. c. 4. & 3 Jac. I. c. 5.]
[Footnote y: Stat. 11 & 12 W. III. c. 4.]
[Footnote z: Stat. 3 Car. I. c. 2.]
2. THE _power_ of parents over their children is derived from the
former consideration, their duty; this authority being given them,
partly to enable the parent more effectually to perform his duty, and
partly as a recompence for his care and trouble in the faithful
discharge of it. And upon this score the municipal laws of some
nations have given a much larger authority to the parents, than
others. The antient Roman laws gave the father a power of life and
death over his children; upon this principle, that he who gave had
also the power of taking away[a]. But the rigor of these laws was
softened by subsequent constitutions; so that[b] we find a father
banished by the emperor Hadrian for killing his son, though he had
committed a very heinous crime, upon this maxim, that "_patria
potestas in pietate debet, non in atrocitate, consistere_." But still
they maintained to the last a very large and absolute authority: for a
son could not acquire any property of his own during the life of his
father; but all his acquisitions belonged to the father, or at least
the profits of them for his life[c].
[Footnote a: _Ff._ 28. 2. 11. _Cod._ 8. 47. 10.]
[Footnote b: _Ff._ 48. 9. 5.]
[Footnote c: _Inst._ 2. 9. 1.]
THE power of a parent by our English laws is much more moderate; but
still sufficient to keep the child in order and obedience. He may
lawfully correct his child, being under age, in a reasonable
manner[d]; for this is for the benefit of his education. The consent
or concurrence of the parent to the marriage of his child under age,
was also _directed_ by our antient law to be obtained: but now it is
absolutely _necessary_; for without it the contract is void[e]. And
this also is another means, which the law has put into the parent's
hands, in order the better to discharge his duty; first, of
protecting his children from the snares of artful and designing
persons; and, next, of settling them properly in life, by preventing
the ill consequences of too early and precipitate marriages. A father
has no other power over his sons _estate_, than as his trustee or
guardian; for, though he may receive the profits during the child's
minority, yet he must account for them when he comes of age. He may
indeed have the benefit of his children's labour while they live with
him, and are maintained by him: but this is no more than he is
entitled to from his apprentices or servants. The legal power of a
father (for a mother, as such, is entitled to no power, but only to
reverence and respect) the power of a father, I say, over the persons
of his children ceases at the age of twenty one: for they are then
enfranchised by arriving at years of discretion, or that point which
the law has established (as some must necessarily be established) when
the empire of the father, or other guardian, gives place to the empire
of reason. Yet, till that age arrives, this empire of the father
continues even after his death; for he may by his will appoint a
guardian to his children. He may also delegate part of his parental
authority, during his life, to the tutor or schoolmaster of his child;
who is then _in loco parentis_, and has such a portion of the power of
the parent committed to his charge, viz. that of restraint and
correction, as may be necessary to answer the purposes for which he is
employed.
[Footnote d: 1 Hawk. P.C. 130.]
[Footnote e: Stat. 26 Geo. II. c. 33.]
3. THE _duties_ of children to their parents arise from a principle of
natural justice and retribution. For to those, who gave us existence,
we naturally owe subjection and obedience during our minority, and
honour and reverence ever after; they, who protected the weakness of
our infancy, are entitled to our protection in the infirmity of their
age; they who by sustenance and education have enabled their offspring
to prosper, ought in return to be supported by that offspring, in case
they stand in need of assistance. Upon this principle proceed all the
duties of children to their parents, which are enjoined by positive
laws. And the Athenian laws[f] carried this principle into practice
with a scrupulous kind of nicety: obliging all children to provide for
their father, when fallen into poverty; with an exception to spurious
children, to those whose chastity had been prostituted by consent of
the father, and to those whom he had not put in any way of gaining a
livelyhood. The legislature, says baron Montesquieu[g], considered,
that in the first case the father, being uncertain, had rendered the
natural obligation precarious; that, in the second case, he had
sullied the life he had given, and done his children the greatest of
injuries, in depriving them of their reputation; and that, in the
third case, he had rendered their life (so far as in him lay) an
insupportable burthen, by furnishing them with no means of
subsistence.
[Footnote f: Potter's Antiq. b. 4. c. 15.]
[Footnote g: Sp. L. l. 26. c. 5.]
OUR laws agree with those of Athens with regard to the first only of
these particulars, the case of spurious issue. In the other cases the
law does not hold the tie of nature to be dissolved by any
misbehaviour of the parent; and therefore a child is equally
justifiable in defending the person, or maintaining the cause or suit,
of a bad parent, as a good one; and is equally compellable[h], if of
sufficient ability, to maintain and provide for a wicked and unnatural
progenitor, as for one who has shewn the greatest tenderness and
parental piety.
[Footnote h: Stat. 43 Eliz. c. 2.]
II. WE are next to consider the case of illegitimate children, or
bastards; with regard to whom let us inquire, 1. Who are bastards. 2.
The legal duties of the parents towards a bastard child. 3. The rights
and incapacities attending such bastard children.
1. WHO are bastards. A bastard, by our English laws, is one that is
not only begotten, but born, out of lawful matrimony. The civil and
canon laws do not allow a child to remain a bastard, if the parents
afterwards intermarry[i]: and herein they differ most materially from
our law; which, though not so strict as to require that the child
shall be _begotten_, yet makes it an indispensable condition that it
shall be _born_, after lawful wedlock. And the reason of our English
law is surely much superior to that of the Roman, if we consider the
principal end and design of establishing the contract of marriage,
taken in a civil light; abstractedly from any religious view, which
has nothing to do with the legitimacy or illegitimacy of the children.
The main end and design of marriage therefore being to ascertain and
fix upon some certain person, to whom the care, the protection, the
maintenance, and the education of the children should belong; this end
is undoubtedly better answered by legitimating all issue born after
wedlock, than by legitimating all issue of the same parties, even born
before wedlock, so as wedlock afterwards ensues: 1. Because of the
very great uncertainty there will generally be, in the proof that the
issue was really begotten by the same man; whereas, by confining the
proof to the birth, and not to the begetting, our law has rendered it
perfectly certain, what child is legitimate, and who is to take care
of the child. 2. Because by the Roman laws a child may be continued a
bastard, or made legitimate, at the option of the father and mother,
by a marriage _ex post facto_; thereby opening a door to many frauds
and partialities, which by our law are prevented. 3. Because by those
laws a man may remain a bastard till forty years of age, and then
become legitimate, by the subsequent marriage of his parents; whereby
the main end of marriage, the protection of infants, is totally
frustrated. 4. Because this rule of the Roman laws admits of no
limitations as to the time, or number, of bastards so to be
legitimated; but a dozen of them may, twenty years after their birth,
by the subsequent marriage of their parents, be admitted to all the
privileges of legitimate children. This is plainly a great
discouragement to the matrimonial state; to which one main inducement
is usually not only the desire of having _children_, but also the
desire of procreating lawful _heirs_. Whereas our constitutions guard
against this indecency, and at the same time give sufficient allowance
to the frailties of human nature. For, if a child be begotten while
the parents are single, and they will endeavour to make an early
reparation for the offence, by marrying within a few months after, our
law is so indulgent as not to bastardize the child, if it be born,
though not begotten, in lawful wedlock: for this is an incident that
can happen but once; since all future children will be begotten, as
well as born, within the rules of honour and civil society. Upon
reasons like these we may suppose the peers to have acted at the
parliament of Merton, when they refused to enact that children born
before marriage should be esteemed legitimate[k].
[Footnote i: _Inst._ 1. 10. 13. _Decretal._ _l._ 4. _t._ 17. _c._ 1.]
[Footnote k: _Rogaverunt omnes episcopi magnates, ut consentirent quod
nati ante matrimonium essent legitimi, sicut illi qui nati sunt post
matrimonium, quia ecclesia tales habet pro legitimis. Et omnes comites
et barones una voce responderunt, quod nolunt leges Angliae mutare,
quae hucusque usitatae sunt et approbatae._ Stat. 20 Hen. III. c. 9.
See the introduction to the great charter, _edit. Oxon._ 1759. _sub
anno_ 1253.]
FROM what has been said it appears, that all children born before
matrimony are bastards by our law; and so it is of all children born
so long after the death of the husband, that, by the usual course of
gestation, they could not be begotten by him. But, this being a matter
of some uncertainty, the law is not exact as to a few days[l]. And
this gives occasion to a proceeding at common law, where a widow is
suspected to feign herself with child, in order to produce a
supposititious heir to the estate: an attempt which the rigor of the
Gothic constitutions esteemed equivalent to the most atrocious theft,
and therefore punished with death[m]. In this case with us the heir
presumptive may have a writ _de ventre inspiciendo_, to examine
whether she be with child, or not[n]; which is entirely conformable to
the practice of the civil law[o]: and, if the widow be upon due
examination found not pregnant, any issue she may afterwards produce,
though within nine months, will be bastard. But if a man dies, and his
widow soon after marries again, and a child is born within such a
time, as that by the course of nature it might have been the child of
either husband; in this case he is said to be more than ordinarily
legitimate; for he may, when he arrives to years of discretion,
choose which of the fathers he pleases[p]. To prevent this, among
other inconveniences, the civil law ordained that no widow should
marry _infra annum luctus_[q]; a rule which obtained so early as the
reign of Augustus[r], if not of Romulus: and the same constitution was
probably handed down to our early ancestors from the Romans, during
their stay in this island; for we find it established under the Saxon
and Danish governments[s].
[Footnote l: Cro. Jac. 541.]
[Footnote m: Stiernhook _de jure Gothor._ _l._ 3. _c._ 5.]
[Footnote n: Co. Litt. 8.]
[Footnote o: _Ff._ 25. _tit._ 4. _per tot._]
[Footnote p: Co. Litt. 8.]
[Footnote q: _Cod._ 5. 9. 2.]
[Footnote r: But the year was then only _ten_ months. Ovid. Fast. I.
27.]
[Footnote s: _Sit omnis vidua sine marito duodecim menses._ _LL.
Ethelr._ _A.D._ 1008. _LL. Canut._ _c._ 71.]
AS bastards may be born before the coverture, or marriage state, is
begun, or after it is determined, so also children born during wedlock
may in some circumstances be bastards. As if the husband be out of the
kingdom of England (or, as the law somewhat loosely phrases it, _extra
quatuor maria_) for above nine months, so that no access to his wife
can be presumed, her issue during that period shall be bastard[t].
But, generally, during the coverture access of the husband shall be
presumed, unless the contrary can be shewn[u]; which is such a
negative as can only be proved by shewing him to be elsewhere: for the
general rule is, _praesumitur pro legitimatione_[w]. In a divorce _a
mensa et thoro_, if the wife breeds children, they are bastards; for
the law will presume the husband and wife conformable to the sentence
of separation, unless access be proved: but, in a voluntary separation
by agreement, the law will suppose access, unless the negative be
shewn[x]. So also if there is an apparent impossibility of procreation
on the part of the husband, as if he be only eight years old, or the
like, there the issue of the wife shall be bastard[y]. Likewise, in
case of divorce in the spiritual court _a vinculo matrimonii_, all the
issue born during the coverture are bastards[z]; because such divorce
is always upon some cause, that rendered the marriage unlawful and
null from the beginning.
[Footnote t: Co. Litt. 244.]
[Footnote u: Salk. 123. 3 P.W. 276. Stra. 925.]
[Footnote w: 5 Rep. 98.]
[Footnote x: Salk. 123.]
[Footnote y: Co. Litt. 244.]
[Footnote z: _Ibid._ 235.]
2. LET us next see the duty of parents to their bastard children, by
our law; which is principally that of maintenance. For, though
bastards are not looked upon as children to any civil purposes, yet
the ties of nature, of which maintenance is one, are not so easily
dissolved: and they hold indeed as to many other intentions; as,
particularly, that a man shall not marry his bastard sister or
daughter[a]. The civil law therefore, when it denied maintenance to
bastards begotten under certain atrocious circumstances[b], was
neither consonant to nature, nor reason, however profligate and wicked
the parents might justly be esteemed.
[Footnote a: Lord Raym. 68. Comb. 356.]
[Footnote b: _Nov._ 89. _c._ 15.]
THE method in which the English law provides maintenance for them is
as follows[c]. When a woman is delivered, or declares herself with
child, of a bastard, and will by oath before a justice of peace charge
any person having got her with child, the justice shall cause such
person to be apprehended, and commit him till he gives security,
either to maintain the child, or appear at the next quarter sessions
to dispute and try the fact. But if the woman dies, or is married
before delivery, or miscarries, or proves not to have been with child,
the person shall be discharged: otherwise the sessions, or two
justices out of sessions, upon original application to them, may take
order for the keeping of the bastard, by charging the mother, or the
reputed father with the payment of money or other sustentation for
that purpose. And if such putative father, or lewd mother, run away
from the parish, the overseers by direction of two justices may seize
their rents, goods, and chattels, in order to bring up the said
bastard child. Yet such is the humanity of our laws, that no woman can
be compulsively questioned concerning the father of her child, till
one month after her delivery: which indulgence is however very
frequently a hardship upon parishes, by suffering the parents to
escape.
[Footnote c: Stat. 18 Eliz. c. 3. 7 Jac. I. c. 4. 3 Car. I. c. 4. 13 &
14 Car. II. c. 12. 6 Geo. II. c. 31.]
3. I PROCEED next to the rights and incapacities which appertain to a
bastard. The rights are very few, being only such as he can _acquire_;
for he can _inherit_ nothing, being looked upon as the son of nobody,
and sometimes called _filius nullius_, sometimes _filius populi_[d].
Yet he may gain a sirname by reputation[e], though he has none by
inheritance. All other children have a settlement in their father's
parish; but a bastard in the parish where born, for he hath no
father[f]. However, in case of fraud, as if a woman be sent either by
order of justices, or comes to beg as a vagrant, to a parish which she
does not belong to, and drops her bastard there; the bastard shall, in
the first case, be settled in the parish from whence she was illegally
removed[g]; or, in the latter case, in the mother's own parish, if the
mother be apprehended for her vagrancy[h]. The incapacity of a bastard
consists principally in this, that he cannot be heir to any one,
neither can he have heirs, but of his own body; for, being _nullius
filius_, he is therefore of kin to nobody, and has no ancestor from
whom any inheritable blood can be derived. A bastard was also, in
strictness, incapable of holy orders; and, though that were dispensed
with, yet he was utterly disqualified from holding any dignity in the
church[i]: but this doctrine seems now obsolete; and in all other
respects, there is no distinction between a bastard and another man.
And really any other distinction, but that of not inheriting, which
civil policy renders necessary, would, with regard to the innocent
offspring of his parents' crimes, be odious, unjust, and cruel to the
last degree: and yet the civil law, so boasted of for it's equitable
decisions, made bastards in some cases incapable even of a gift from
their parents[k]. A bastard may, lastly, be made legitimate, and
capable of inheriting, by the transcendent power of an act of
parliament, and not otherwise[l]: as was done in the case of John of
Gant's bastard children, by a statute of Richard the second.
[Footnote d: _Fort. de LL._ _c._ 40.]
[Footnote e: Co. Litt. 3.]
[Footnote f: Salk. 427.]
[Footnote g: Salk. 121.]
[Footnote h: Stat. 17 Geo. II. c. 5.]
[Footnote i: Fortesc. _c._ 40. 5 Rep. 58.]
[Footnote k: _Cod._ 6. 57. 5.]
[Footnote l: 4 Inst. 36.]
CHAPTER THE SEVENTEENTH.
OF GUARDIAN AND WARD.
THE only general private relation, now remaining to be discussed, is
that of guardian and ward; which bears a very near resemblance to the
last, and is plainly derived out of it: the guardian being only a
temporary parent; that is, for so long time as the ward is an infant,
or under age. In examining this species of relationship, I shall first
consider the different kinds of guardians, how they are appointed, and
their power and duty: next, the different ages of persons, as defined
by the law: and, lastly, the privileges and disabilities of an infant,
or one under age and subject to guardianship.
1. THE guardian with us performs the office both of the _tutor_ and
_curator_ of the Roman laws; the former of which had the charge of the
maintenance and education of the minor, the latter the care of his
fortune; or, according to the language of the court of chancery, the
_tutor_ was the committee of the person, the _curator_ the committee
of the estate. But this office was frequently united in the civil
law[a]; as it is always in our law with regard to minors, though as to
lunatics and idiots it is commonly kept distinct.
[Footnote a: _Ff._ 26. 4. 1.]
OF the several species of guardians, the first are guardians _by
nature_: viz. the father and (in some cases) the mother of the child.
For, if an estate be left to an infant, the father is by common law
the guardian, and must account to his child for the profits[b]. And,
with regard to daughters, it seems by construction of the statute 4 &
5 Ph. & Mar. c. 8. that the father might by deed or will assign a
guardian to any woman-child under the age of sixteen, and if none be
so assigned, the mother shall in this case be guardian[c]. There are
also guardians _for nurture_[d], which are, of course, the father or
mother, till the infant attains the age of fourteen years[e]: and, in
default of father or mother, the ordinary usually assigns some
discreet person to take care of the infant's personal estate, and to
provide for his maintenance and education[f]. Next are guardians _in
socage_, (an appellation which will be fully explained in the second
book of these commentaries) who are also called guardians _by the
common law_. These take place only when the minor is entitled to some
estate in lands, and then by the common law the guardianship devolves
upon his next of kin, to whom the inheritance cannot possibly descend;
as, where the estate descended from his father, in this case his uncle
by the mother's side cannot possibly inherit this estate, and
therefore shall be the guardian[g]. For the law judges it improper to
trust the person of an infant in his hands, who may by possibility
become heir to him; that there may be no temptation, nor even
suspicion of temptation, for him to abuse his trust[h]. The Roman laws
proceed on a quite contrary principle, committing the care of the
minor to him who is the next to succeed to the inheritance, presuming
that the next heir would take the best care of an estate, to which he
has a prospect of succeeding: and this they boast to be "_summa
providentia_[i]." But in the mean time they forget, how much it is
the guardian's interest to remove the incumbrance of his pupil's life
from that estate, for which he is supposed to have so great a
regard[k]. And this affords Fortescue[l], and sir Edward Coke[m], an
ample opportunity for triumph; they affirming, that to commit the
custody of an infant to him that is next in succession, is "_quasi
agnum committere lupo, ad devorandum_[n]." These guardians in socage,
like those for nurture, continue only till the minor is fourteen years
of age; for then, in both cases, he is presumed to have discretion, so
far as to choose his own guardian. This he may do, unless one be
appointed by father, by virtue of the statute 12 Car. II. c. 24.
which, considering the imbecillity of judgment in children of the age
of fourteen, and the abolition of guardianship _in chivalry_ (which
lasted till the age of twenty one, and of which we shall speak
hereafter) enacts, that any father, under age or of full age, may by
deed or will dispose of the custody of his child, either born or
unborn, to any person, except a popish recusant, either in possession
or reversion, till such child attains the age of one and twenty years.
These are called guardians _by statute_, or _testamentary_ guardians.
There are also special guardians _by custom_ of London, and other
places[o]; but they are particular exceptions, and do not fall under
the general law.
[Footnote b: Co. Litt. 88.]
[Footnote c: 3 Rep. 39.]
[Footnote d: Co. Litt. 88.]
[Footnote e: Moor. 738. 3 Rep. 38.]
[Footnote f: 2 Jones 90. 2 Lev. 163.]
[Footnote g: Litt. §. 123.]
[Footnote h: _Nunquam custodia alicujus de jure alicui remanet, de quo
habeatur suspicio, quod possit vel velit aliquod jus in ipsa
hereditate clamare._ Glanv. _l._ 7. _c._ 11.]
[Footnote i: _Ff._ 26. 4. 1.]
[Footnote k: The Roman satyrist was fully aware of this danger, when
he puts this private prayer into the mouth of a selfish guardian;
_Pupillum o utinam, quem proximus haeres
Impello, expungam._ Perf. 1. 12.]
[Footnote l: _c._ 44.]
[Footnote m: 1 Inst. 88.]
[Footnote n: This policy of our English law is warranted by the wise
institutions of Solon, who provided that no one should be another's
guardian, who was to enjoy the estate after his death. (Potter's
Antiqu. l. 1. c. 26.) And Charondas, another of the Grecian
legislators, directed that the inheritance should go to the father's
relations, but the education of the child to the mother's; that the
guardianship and right of succession might always be kept distinct.
(Petit. _Leg. Att._ _l._ 6. _t._ 7.)]
[Footnote o: Co. Litt. 88.]
THE power and reciprocal duty of a guardian and ward are the same,
_pro tempore_, as that of a father and child; and therefore I shall
not repeat them: but shall only add, that the guardian, when the ward
comes of age, is bound to give him an account of all that he has
transacted on his behalf, and must answer for all losses by his wilful
default or negligence. In order therefore to prevent disagreeable
contests with young gentlemen, it has become a practice for many
guardians, of large estates especially, to indemnify themselves by
applying to the court of chancery, acting under it's direction, and
accounting annually before the officers of that court. For the lord
chancellor is, by right derived from the crown, the general and
supreme guardian of all infants, as well as idiots and lunatics; that
is, of all such persons as have not discretion enough to manage their
own concerns. In case therefore any guardian abuses his trust, the
court will check and punish him; nay sometimes proceed to the removal
of him, and appoint another in his stead[p].
[Footnote p: 1 Sid. 424. 1 P. Will. 703.]
2. LET us next consider the ward, or person within age, for whose
assistance and support these guardians are constituted by law; or who
it is, that is said to be within age. The ages of male and female are
different for different purposes. A male at _twelve_ years old may
take the oath of allegiance; at _fourteen_ is at years of discretion,
and therefore may consent or disagree to marriage, may choose his
guardian, and, if his discretion be actually proved, may make his
testament of his personal estate; at _seventeen_ may be an executor;
and at _twenty one_ is at his own disposal, and may aliene his lands,
goods, and chattels. A female also at _seven_ years of age may be
betrothed or given in marriage; at _nine_ is entitled to dower; at
_twelve_ is at years of maturity, and therefore may consent or
disagree to marriage, and, if proved to have sufficient discretion,
may bequeath her personal estate; at _fourteen_ is at years of legal
discretion, and may choose a guardian; at _seventeen_ may be
executrix; and at _twenty one_ may dispose of herself and her lands.
So that full age in male or female, is twenty one years, which age is
completed on the day preceding the anniversary of a person's birth[q];
who till that time is an infant, and so stiled in law. Among the
antient Greeks and Romans _women_ were never of age, but subject to
perpetual guardianship[r], unless when married, "_nisi convenissent in
manum viri_:" and, when that perpetual tutelage wore away in process
of time, we find that, in females as well as males, full age was not
till twenty five years[s]. Thus, by the constitutions of different
kingdoms, this period, which is merely arbitrary, and _juris
positivi_, is fixed at different times. Scotland agrees with England
in this point; (both probably copying from the old Saxon constitutions
on the continent, which extended the age of minority "_ad annum
vigesimum primum, et eo usque juvenes sub tutelam reponunt_[t]") but
in Naples they are of full age at _eighteen_; in France, with regard
to marriage, not till _thirty_; and in Holland at _twenty five_.
[Footnote q: Salk. 44. 625.]
[Footnote r: Pott. Antiq. l. 4. c. 11. Cic. _pro Muren._ 12.]
[Footnote s: _Inst._ 1. 23. 1.]
[Footnote t: Stiernhook _de jure Sueonum._ _l._ 2. _c._ 2. This is
also the period when the king, as well as the subject, arrives at full
age in modern Sweden. Mod. Un. Hist. xxxiii. 220.]
3. INFANTS have various privileges, and various disabilities: but
their very disabilities are privileges; in order to secure them from
hurting themselves by their own improvident acts. An infant cannot be
sued but under the protection, and joining the name, of his guardian;
for he is to defend him against all attacks as well by law as
otherwise[u]: but he may sue either by his guardian, or _prochein
amy_, his next friend who is not his guardian. This _prochein amy_ may
be any person who will undertake the infant's cause; and it frequently
happens, that an infant, by his _prochein amy_, institutes a suit in
equity against a fraudulent guardian. In criminal cases, an infant of
the age of _fourteen_ years may be capitally punished for any capital
offence[w]: but under the age of _seven_ he cannot. The period between
_seven_ and _fourteen_ is subject to much incertainty: for the infant
shall, generally speaking, be judged _prima facie_ innocent; yet if he
was _doli capax_, and could discern between good and evil at the time
of the offence committed, he may be convicted and undergo judgment and
execution of death, though he hath not attained to years of puberty
or discretion[x]. And sir Matthew Hale gives us two instances, one of
a girl of thirteen, who was burned for killing her mistress; another
of a boy still younger, that had killed his companion, and hid
himself, who was hanged; for it appeared by his hiding that he knew he
had done wrong, and could discern between good and evil; and in such
cases the maxim of law is, that _malitia supplet aetatem_.
[Footnote u: Co. Litt. 135.]
[Footnote w: 1 Hal. P.C. 25.]
[Footnote x: 1 Hal. P.C. 26.]
WITH regard to estates and civil property, an infant hath many
privileges, which will be better understood when we come to treat more
particularly of those matters: but this may be said in general, that
an infant shall lose nothing by non-claim, or neglect of demanding his
right; nor shall any other _laches_ or negligence be imputed to an
infant, except in some very particular cases.
IT is generally true, that an infant can neither aliene his lands, nor
do any legal act, nor make a deed, nor indeed any manner of contract,
that will bind him. But still to all these rules there are some
exceptions; part of which were just now mentioned in reckoning up the
different capacities which they assume at different ages: and there
are others, a few of which it may not be improper to recite, as a
general specimen of the whole. And, first, it is true, that infants
cannot aliene their estates: but[y] infant trustees, or mortgagees,
are enabled to convey, under the direction of the court of chancery or
exchequer, the estates they hold in trust or mortgage, to such person
as the court shall appoint. Also it is generally true, that an infant
can do no legal act: yet an infant who has an advowson, may present to
the benefice when it becomes void[z]. For the law in this case
dispenses with one rule, in order to maintain others of far greater
consequence: it permits an infant to present a clerk (who, if unfit,
may be rejected by the bishop) rather than either suffer the church to
be unserved till he comes of age, or permit the infant to be debarred
of his right by lapse to the bishop. An infant may also purchase
lands, but his purchase is incomplete: for, when he comes to age, he
may either agree or disagree to it, as he thinks prudent or proper,
without alleging any reason; and so may his heirs after him, if he
dies without having completed his agreement[a]. It is, farther,
generally true, that an infant, under twenty one, can make no deed
that is of any force or effect: yet[b] he may bind himself apprentice
by deed indented, or indentures, for seven years; and[c] he may by
deed or will appoint a guardian to his children, if he has any.
Lastly, it is generally true, that an infant can make no other
contract that will bind him: yet he may bind himself to pay for his
necessary meat, drink, apparel, physic, and such other necessaries;
and likewise for his good teaching and instruction, whereby he may
profit himself afterwards[d]. And thus much, at present, for the
privileges and disabilities of infants.
[Footnote y: Stat. 7 Ann. c. 19.]
[Footnote z: Co. Litt. 172.]
[Footnote a: Co. Litt. 2.]
[Footnote b: Stat. 5 Eliz. c. 4.]
[Footnote c: Stat. 12 Car. II. c. 24.]
[Footnote d: Co. Litt. 172.]
CHAPTER THE EIGHTEENTH.
OF CORPORATIONS.
WE have hitherto considered persons in their natural capacities, and
have treated of their rights and duties. But, as all personal rights
die with the person; and, as the necessary forms of investing a series
of individuals, one after another, with the same identical rights,
would be very inconvenient, if not impracticable; it has been found
necessary, when it is for the advantage of the public to have any
particular rights kept on foot and continued, to constitute artificial
persons, who may maintain a perpetual succession, and enjoy a kind of
legal immortality.
THESE artificial persons are called bodies politic, bodies corporate,
(_corpora corporata_) or corporations: of which there is a great
variety subsisting, for the advancement of religion, of learning, and
of commerce; in order to preserve entire and for ever those rights and
immunities, which, if they were granted only to those individuals of
which the body corporate is composed, would upon their death be
utterly lost and extinct. To shew the advantages of these
incorporations, let us consider the case of a college in either of our
universities, founded _ad studendum et orandum_, for the encouragement
and support of religion and learning. If this was a mere voluntary
assembly, the individuals which compose it might indeed read, pray,
study, and perform scholastic exercises together, so long as they
could agree to do so: but they could neither frame, nor receive, any
laws or rules of their conduct; none at least, which would have any
binding force, for want of a coercive power to create a sufficient
obligation. Neither could they be capable of retaining any privileges
or immunities: for, if such privileges be attacked, which of all this
unconnected assembly has the right, or ability, to defend them? And,
when they are dispersed by death or otherwise, how shall they transfer
these advantages to another set of students, equally unconnected as
themselves? So also, with regard to holding estates or other property,
if land be granted for the purposes of religion or learning to twenty
individuals not incorporated, there is no legal way of continuing the
property to any other persons for the same purposes, but by endless
conveyances from one to the other, as often as the hands are changed.
But, when they are consolidated and united into a corporation, they
and their successors are then considered as one person in law: as one
person, they have one will, which is collected from the sense of the
majority of the individuals: this one will may establish rules and
orders for the regulation of the whole, which are a sort of municipal
laws of this little republic; or rules and statutes may be prescribed
to it at it's creation, which are then in the place of natural laws:
the privileges and immunities, the estates and possessions, of the
corporation, when once vested in them, will be for ever vested,
without any new conveyance to new successions; for all the individual
members that have existed from the foundation to the present time, or
that shall ever hereafter exist, are but one person in law, a person
that never dies: in like manner as the river Thames is still the same
river, though the parts which compose it are changing every instant.
THE honour of originally inventing these political constitutions
entirely belongs to the Romans. They were introduced, as Plutarch
says, by Numa; who finding, upon his accession, the city torn to
pieces by the two rival factions of Sabines, and Romans, thought it a
prudent and politic measure, to subdivide these two into many smaller
ones, by instituting separate societies of every manual trade and
profession. They were afterwards much considered by the civil law[a],
in which they were called _universitates_, as forming one whole out of
many individuals; or _collegia_, from being gathered together: they
were adopted also by the canon law, for the maintenance of
ecclesiastical discipline; and from them our spiritual corporations
are derived. But our laws have considerably refined and improved upon
the invention, according to the usual genius of the English nation:
particularly with regard to sole corporations, consisting of one
person only, of which the Roman lawyers had no notion; their maxim
being that "_tres faciunt collegium_[b]." Though they held, that if a
corporation, originally consisting of three persons, be reduced to
one, "_si universitas ad unum redit_," it may still subsist as a
corporation, "_et stet nomen universitatis_[c]."
[Footnote a: _Ff._ _l._ 3. _t._ 4. _per tot._]
[Footnote b: _Ff._ 50. 16. 85.]
[Footnote c: _Ff._ 3. 4. 7.]
BEFORE we proceed to treat of the several incidents of corporations,
as regarded by the laws of England, let us first take a view of the
several sorts of them; and then we shall be better enabled to
apprehend their respective qualities.
THE first division of corporations is into _aggregate_ and _sole_.
Corporations aggregate consist of many persons united together into
one society, and are kept up by a perpetual succession of members, so
as to continue for ever: of which kind are the mayor and commonalty of
a city, the head and fellows of a college, the dean and chapter of a
cathedral church. Corporations sole consist of one person only and his
successors, in some particular station, who are incorporated by law,
in order to give them some legal capacities and advantages,
particularly that of perpetuity, which in their natural persons they
could not have had. In this sense the king is a sole corporation[d]:
so is a bishop: so are some deans, and prebendaries, distinct from
their several chapters: and so is every parson and vicar. And the
necessity, or at least use, of this institution will be very apparent,
if we consider the case of a parson of a church. At the original
endowment of parish churches, the freehold of the church, the
church-yard, the parsonage house, the glebe, and the tithes of the
parish, were vested in the then parson by the bounty of the donor, as
a temporal recompence to him for his spiritual care of the
inhabitants, and with intent that the same emoluments should ever
afterwards continue as a recompense for the same care. But how was
this to be effected? The freehold was vested in the parson; and, if we
suppose it vested in his natural capacity, on his death it might
descend to his heir, and would be liable to his debts and
incumbrances: or, at best, the heir might be compellable, at some
trouble and expense, to convey these rights to the succeeding
incumbent. The law therefore has wisely ordained, that the parson,
_quatenus_ parson, shall never die, any more than the king; by making
him and his successors a corporation. By which means all the original
rights of the parsonage are preserved entire to the successor: for the
present incumbent, and his predecessor who lived seven centuries ago,
are in law one and the same person; and what was given to the one was
given to the other also.
[Footnote d: Co. Litt. 43.]
ANOTHER division of corporations, either sole or aggregate, is into
_ecclesiastical_ and _lay_. Ecclesiastical corporations are where the
members that compose it are entirely spiritual persons; such as
bishops; certain deans, and prebendaries; all archdeacons, parsons,
and vicars; which are sole corporations: deans and chapters at
present, and formerly prior and convent, abbot and monks, and the
like, bodies aggregate. These are erected for the furtherance of
religion, and the perpetuating the rights of the church. Lay
corporations are of two sorts, _civil_ and _eleemosynary_. The civil
are such as are erected for a variety of temporal purposes. The king,
for instance, is made a corporation to prevent in general the
possibility of an _interregnum_ or vacancy of the throne, and to
preserve the possessions of the crown entire; for, immediately upon
the demise of one king, his successor is, as we have formerly seen, in
full possession of the regal rights and dignity. Other lay
corporations are erected for the good government of a town or
particular district, as a mayor and commonalty, bailiff and burgesses,
or the like: some for the advancement and regulation of manufactures
and commerce; as the trading companies of London, and other towns: and
some for the better carrying on of divers special purposes; as
churchwardens, for conservation of the goods of the parish; the
college of physicians and company of surgeons in London, for the
improvement of the medical science; the royal society, for the
advancement of natural knowlege; and the society of antiquarians, for
promoting the study of antiquities. And among these I am inclined to
think the general corporate bodies of the universities of Oxford and
Cambridge must be ranked: for it is clear they are not spiritual or
ecclesiastical corporations, being composed of more laymen than
clergy: neither are they eleemosynary foundations, though stipends are
annexed to particular magistrates and professors, any more than other
corporations where the acting officers have standing salaries; for
these are rewards _pro opera et labore_, not charitable donations
only, since every stipend is preceded by service and duty: they seem
therefore to be merely civil corporations. The eleemosynary sort are
such as are constituted for the perpetual distribution of the free
alms, or bounty, of the founder of them to such persons as he has
directed. Of this kind are all hospitals for the maintenance of the
poor, sick, and impotent; and all colleges, both _in_ our universities
and _out_[e] of them: which colleges are founded for two purposes; 1.
For the promotion of piety and learning by proper regulations and
ordinances. 2. For imparting assistance to the members of those
bodies, in order to enable them to prosecute their devotion and
studies with greater ease and assiduity. And all these eleemosynary
corporations are, strictly speaking, lay and not ecclesiastical, even
though composed of ecclesiastical persons[f], and although they in
some things partake of the nature, privileges, and restrictions of
ecclesiastical bodies.
[Footnote e: Such as at Manchester, Eton, Winchester, &c.]
[Footnote f: 1 Lord Raym. 6.]
HAVING thus marshalled the several species of corporations, let us
next proceed to consider, 1. How corporations, in general, may be
created. 2. What are their powers, capacities, and incapacities. 3.
How corporations are visited. And 4. How they may be dissolved.
I. CORPORATIONS, by the civil law, seem to have been created by the
mere act, and voluntary association of their members; provided such
convention was not contrary to law, for then it was _illicitum
collegium_[g]. It does not appear that the prince's consent was
necessary to be actually given to the foundation of them; but merely
that the original founders of these voluntary and friendly societies
(for they were little more than such) should not establish any
meetings in opposition to the laws of the state.
[Footnote g: _Ff._ 47. 22. 1. _Neque societas, neque collegium, neque
hujusmodi corpus passim omnibus habere conceditur; nam et legibus, et
senatus consultis, et principalibus constitutionibus ea res
coercetur._ _Ff._ 3. 4. 1.]
BUT, with us in England, the king's consent is absolutely necessary to
the erection of any corporation, either impliedly or expressly given.
The king's implied consent is to be found in corporations which exist
by force of the _common law_, to which our former kings are supposed
to have given their concurrence; common law being nothing else but
custom, arising from the universal agreement of the whole community.
Of this sort are the king himself, all bishops, parsons, vicars,
churchwardens, and some others; who by common law have ever been held
(as far as our books can shew us) to have been corporations, _virtute
officii_: and this incorporation is so inseparably annexed to their
offices, that we cannot frame a complete legal idea of any of these
persons, but we must also have an idea of a corporation, capable to
transmit his rights to his successors, at the same time. Another
method of implication, whereby the king's consent is presumed, is as
to all corporations by _prescription_, such as the city of London, and
many others[h], which have existed as corporations, time whereof the
memory of man runneth not to the contrary; and therefore are looked
upon in law to be well created. For though the members thereof can
shew no legal charter of incorporation, yet in cases of such high
antiquity the law presumes there once was one; and that by the variety
of accidents, which a length of time may produce, the charter is lost
or destroyed. The methods, by which the king's consent is expressly
given, are either by act of parliament or charter. By act of
parliament, of which the royal assent is a necessary ingredient,
corporations may undoubtedly be created[i]: but it is observable, that
most of those statutes, which are usually cited as having created
corporations, do either confirm such as have been before created by
the king; as in the case of the college of physicians, erected by
charter 10 Hen. VIII[k], which charter was afterwards confirmed in
parliament[l]; or, they permit the king to erect a corporation _in
futuro_ with such and such powers; as is the case of the bank of
England[m], and the society of the British fishery[n]. So that the
immediate creative act is usually performed by the king alone, in
virtue of his royal prerogative[o].
[Footnote h: 2 Inst. 330.]
[Footnote i: 10 Rep. 29. 1 Roll. Abr. 512. [Transcriber's Note:
footnote marker missing in original.]]
[Footnote k: 8 Rep. 114.]
[Footnote l: 14 & 15 Hen. VIII. c. 5.]
[Footnote m: Stat. 5 & 6 W. & M. c. 20.]
[Footnote n: Stat. 23 Geo. II. c. 4.]
[Footnote o: See page 263.]
ALL the other methods therefore whereby corporations exist, by common
law, by prescription, and by act of parliament, are for the most part
reducible to this of the king's letters patent, or charter of
incorporation. The king's creation may be performed by the words
"_creamus, erigimus, fundamus, incorporamus_," or the like. Nay it is
held, that if the king grants to a set of men to have _gildam
mercatoriam_, a mercantile meeting or assembly[p], this is alone
sufficient to incorporate and establish them for ever[q].
[Footnote p: _Gild_ signified among the Saxons a fraternity, derived
from the verb [Anglo-Saxon: gildan] to pay, because every man paid his
share towards the expenses of the community. And hence their place of
meeting is frequently called the _Gild-hall_.]
[Footnote q: 10 Rep. 30. 1 Roll. Abr. 513.]
THE parliament, we observed, by it's absolute and transcendent
authority, may perform this, or any other act whatsoever: and actually
did perform it to a great extent, by statute 39 Eliz. c. 5. which
incorporated all hospitals and houses of correction founded by
charitable persons, without farther trouble: and the same has been
done in other cases of charitable foundations. But otherwise it is not
usual thus to intrench upon the prerogative of the crown, and the king
may prevent it when he pleases. And, in the particular instance
before-mentioned, it was done, as sir Edward Coke observes[r], to
avoid the charges of incorporation and licences of mortmain in small
benefactions; which in his days were grown so great, that it
discouraged many men to undertake these pious and charitable works.
[Footnote r: 2 Inst. 722.]
THE king may grant to a subject the power of erecting corporations[s],
though the contrary was formerly held[t]: that is, he may permit the
subject to name the persons and powers of the corporation at his
pleasure; but it is really the king that erects, and the subject is
but the instrument: for though none but the king can make a
corporation, yet _qui facit per alium, facit per se_[v]. In this
manner the chancellor of the university of Oxford has power by charter
to erect corporations; and has actually often exerted it, in the
erection of several matriculated companies, now subsisting, of
tradesmen subservient to the students.
[Footnote s: Bro. _Abr. tit. Prerog._ 53. Viner. _Prerog._ 88. pl.
16.]
[Footnote t: Yearbook, 2 Hen. VII. 13.]
[Footnote v: 10 Rep. 33.]
WHEN a corporation is erected, a name must be given it; and by that
name alone it must sue, and be sued, and do all legal acts; though a
very minute variation therein is not material[u]. Such name is the
very being of it's constitution; and, though it is the will of the
king that erects the corporation, yet the name is the knot of it's
combination, without which it could not perform it's corporate
functions[w]. The name of incorporation, says sir Edward Coke, is as
a proper name, or name of baptism; and therefore when a private
founder gives his college or hospital a name, he does it only as
godfather; and by that same name the king baptizes the incorporation[x].
[Footnote u: 10 Rep. 122. [Transcriber's Note: Footnotes v and u are
in this order in the original.]]
[Footnote w: Gilb. Hist. C.P. 182.]
[Footnote x: 10 Rep. 28.]
II. AFTER a corporation is so formed and named, it acquires many
powers, rights, capacities, and incapacities, which we are next to
consider. Some of these are necessarily and inseparably incident to
every corporation; which incidents, as soon as a corporation is duly
erected, are tacitly annexed of course[y]. As, 1. To have perpetual
succession. This is the very end of it's incorporation: for there
cannot be a succession for ever without an incorporation[z]; and
therefore all aggregate corporations have a power necessarily implied
of electing members in the room of such as go off[a]. 2. To sue or be
sued, implead or be impleaded, grant or receive, by it's corporate
name, and do all other acts as natural persons may. 3. To purchase
lands, and hold them, for the benefit of themselves and their
successors: which two are consequential to the former. 4. To have a
common seal. For a corporation, being an invisible body, cannot
manifest it's intentions by any personal act or oral discourse: it
therefore acts and speaks only by it's common seal. For, though the
particular members may express their private consents to any act, by
words, or signing their names, yet this does not bind the corporation:
it is the fixing of the seal, and that only, which unites the several
assents of the individuals, who compose the community, and makes one
joint assent of the whole[b]. 5. To make by-laws or private statutes
for the better government of the corporation; which are binding upon
themselves, unless contrary to the laws of the land, and then they are
void. This is also included by law in the very act of incorporation[c]:
for, as natural reason is given to the natural body for the governing
it, so by-laws or statutes are a sort of political reason to govern
the body politic. And this right of making by-laws for their own
government, not contrary to the law of the land, was allowed by the
law of the twelve tables at Rome[d]. But no trading company is, with
us, allowed to make by-laws, which may affect the king's prerogative,
or the common profit of the people, unless they be approved by the
chancellor, treasurer, and chief justices, or the judges of assise in
their circuits[e]. These five powers are inseparably incident to every
corporation, at least to every corporation _aggregate_: for two of
them, though they may be practised, yet are very unnecessary to a
corporation _sole_; viz. to have a corporate seal to testify his sole
assent, and to make statutes for the regulation of his own conduct.
[Footnote y: 10 Rep. 30. Hob. 211.]
[Footnote z: 10 Rep. 26.]
[Footnote a: 1 Roll. Abr. 514.]
[Footnote b: Dav. 44. 48.]
[Footnote c: Hob. 211.]
[Footnote d: _Sodales legem quam volent, dum ne quid ex publica lege
corrumpant, sibi ferunto._]
[Footnote e: Stat. 19 Hen. VII. c. 7.]
THERE are also certain privileges and disabilities that attend an
aggregate corporation, and are not applicable to such as are sole; the
reason of them ceasing, and of course the law. It must always appear
by attorney; for it cannot appear in person, being, as sir Edward Coke
says[f], invisible, and existing only in intendment and consideration
of law. It can neither maintain, or be made defendant to, an action of
battery or such like personal injuries; for a corporation can neither
beat, nor be beaten, in it's body politic[g]. A corporation cannot
commit treason, or felony, or other crime, in it's corporate
capacity[h]: though it's members may, in their distinct individual
capacities. Neither is it capable of suffering a traitor's, or felon's
punishment, for it is not liable to corporal penalties, nor to
attainder, forfeiture, or corruption of blood[i]. It cannot be
executor or administrator, or perform any personal duties; for it
cannot take an oath for the due execution of the office. It cannot be
a trustee; for such kind of confidence is foreign to the ends of it's
institution: neither can it be compelled to perform such trust,
because it cannot be committed to prison[k]; for it's existence being
ideal, no man can apprehend or arrest it. And therefore also it cannot
be outlawed; for outlawry always supposes a precedent right of
arresting, which has been defeated by the parties absconding, and that
also a corporation cannot do: for which reasons the proceedings to
compel a corporation to appear to any suit by attorney are always by
distress on their lands and goods[l]. Neither can a corporation be
excommunicated; for it has no soul, as is gravely observed by sir
Edward Coke[m]: and therefore also it is not liable to be summoned
into the ecclesiastical courts upon any account; for those courts act
only _pro salute animae_, and their sentences can only be inforced by
spiritual censures: a consideration, which, carried to it's full
extent, would alone demonstrate the impropriety of these courts
interfering in any temporal rights whatsoever.
[Footnote f: 10 Rep. 32.]
[Footnote g: Bro. _Abr. tit. Corporation._ 63.]
[Footnote h: 10 Rep. 32.]
[Footnote i: The civil law also ordains that, in any misbehaviour of a
body corporate, the directors only shall be answerable in their
personal capacity, and not the corporation. _Ff._ 4. 3. 15.]
[Footnote k: Plowd. 538.]
[Footnote l: Bro. _Abr. tit. Corporation._ 11. _Outlawry._ 72.]
[Footnote m: 10 Rep. 32.]
THERE are also other incidents and powers, which belong to some sort
of corporations, and not to others. An aggregate corporation may take
goods and chattels for the benefit of themselves and their successors,
but a sole corporation cannot[n]: for such moveable property is liable
to be lost or imbezzled, and would raise a multitude of disputes
between the successor and executor; which the law is careful to avoid.
In ecclesiastical and eleemosynary foundations, the king or the
founder may give them rules, laws, statutes, and ordinances, which
they are bound to observe: but corporations merely lay, constituted
for civil purposes, are subject to no particular statutes; but to the
common law, and to their own by-laws, not contrary to the laws of the
realm[o]. Aggregate corporations also, that have by their constitution
a head, as a dean, warden, master, or the like, cannot do any acts
during the vacancy of the headship, except only appointing another:
neither are they then capable of receiving a grant; for such
corporation is incomplete without a head[p]. But there may be a
corporation aggregate constituted without a head[q]: as the
collegiate church of Southwell in Nottinghamshire, which consists only
of prebendaries; and the governors of the Charter-house, London, who
have no president or superior, but are all of equal authority. In
aggregate corporations also, the act of the major part is esteemed the
act of the whole[r]. By the civil law this major part must have
consisted of two thirds of the whole; else no act could be
performed[s]: which perhaps may be one reason why they required three
at least to make a corporation. But, with us, _any_ majority is
sufficient to determine the act of the whole body. And whereas,
notwithstanding the law stood thus, some founders of corporations had
made statutes in derogation of the common law, making very frequently
the unanimous assent of the society to be necessary to any corporate
act; (which king Henry VIII found to be a great obstruction to his
projected scheme of obtaining a surrender of the lands of
ecclesiastical corporations) it was therefore enacted by statute 33
Hen. VIII. c. 27. that all private statutes shall be utterly void,
whereby any grant or election, made by the head, with the concurrence
of the major part of the body, is liable to be obstructed by any one
or more, being the minority: but this statute extends not to any
negative or necessary voice, given by the founder to the head of any
such society.
[Footnote n: Co. Litt. 46.]
[Footnote o: Lord Raym. 8.]
[Footnote p: Co. Litt. 263, 264.]
[Footnote q: 10 Rep. 30.]
[Footnote r: Bro. _Abr. tit. Corporation._ 31, 34.]
[Footnote s: _Ff._ 3. 4. 3.]
WE before observed that it was incident to every corporation, to have
a capacity to purchase lands for themselves and successors: and this
is regularly true at the common law[t]. But they are excepted out of
the statute of wills[u]; so that no devise of lands to a corporation
by will is good: except for charitable uses, by statute 43 Eliz. c.
4[w]. And also, by a great variety of statutes[x], their privilege
even of purchasing from any living grantor is greatly abridged; so
that now a corporation, either ecclesiastical or lay, must have a
licence from the king to purchase[y], before they can exert that
capacity which is vested in them by the common law: nor is even this
in all cases sufficient. These statutes are generally called the
statutes of _mortmain_; all purchases made by corporate bodies being
said to be purchases in mortmain, _in mortua manu_: for the reason of
which appellation sir Edward Coke[z] offers many conjectures; but
there is one which seems more probable than any that he has given us:
viz. that these purchases being usually made by ecclesiastical bodies,
the members of which (being professed) were reckoned dead persons in
law, land therefore, holden by them, might with great propriety be
said to be held _in mortua manu_.
[Footnote t: 10 Rep. 30.]
[Footnote u: 34 Hen. VIII. c. 5.]
[Footnote w: Hob. 136.]
[Footnote x: From _magna carta_, 9 Hen. III. c. 36. to 9 Geo. II. c.
36.]
[Footnote y: By the civil law a corporation was incapable of taking
lands, unless by special privilege from the emperor: _collegium, si
nullo speciali privilegio subnixum fit, haereditatem capere non posse,
dubium non est_. _Cod._ 6. 24. 8.]
[Footnote z: 1 Inst. 2.]
I SHALL defer the more particular exposition of these statutes of
mortmain, till the next book of these commentaries, when we shall
consider the nature and tenures of estates; and also the exposition of
those disabling statutes of queen Elizabeth, which restrain spiritual
and eleemosynary corporations from aliening such lands as they are
present in legal possession of: only mentioning them in this place,
for the sake of regularity, as statutable incapacities incident and
relative to corporations.
THE general _duties_ of all bodies politic, considered in their
corporate capacity, may, like those of natural persons, be reduced to
this single one; that of acting up to the end or design, whatever it
be, for which they were created by their founder.
III. I PROCEED therefore next to enquire, how these corporations may
be _visited_. For corporations being composed of individuals, subject
to human frailties, are liable, as well as private persons, to deviate
from the end of their institution. And for that reason the law has
provided proper persons to visit, enquire into, and correct all
irregularities that arise in such corporations, either sole or
aggregate, and whether ecclesiastical, civil, or eleemosynary. With
regard to all ecclesiastical corporations, the ordinary is their
visitor, so constituted by the canon law, and from thence derived to
us. The pope formerly, and now the king, as supreme ordinary, is the
visitor of the arch-bishop or metropolitan; the metropolitan has the
charge and coercion of all his suffragan bishops; and the bishops in
their several dioceses are the visitors of all deans and chapters, of
all parsons and vicars, and of all other spiritual corporations. With
respect to all lay corporations, the founder, his heirs, or assigns,
are the visitors, whether the foundation be civil or eleemosynary; for
in a lay incorporation the ordinary neither can nor ought to visit[a].
[Footnote a: 10 Rep. 31.]
I KNOW it is generally said, that civil corporations are subject to no
visitation, but merely to the common law of the land; and this shall
be presently explained. But first, as I have laid it down as a rule
that the founder, his heirs, or assigns, are the visitors of all
lay-corporations, let us enquire what is meant by the _founder_. The
founder of all corporations in the strictest and original sense is the
king alone, for he only can incorporate a society: and in civil
incorporations, such as mayor and commonalty, &c, where there are no
possessions or endowments given to the body, there is no other founder
but the king: but in eleemosynary foundations, such as colleges and
hospitals, where there is an endowment of lands, the law
distinguishes, and makes two species of foundation; the one _fundatio
incipiens_, or the incorporation, in which sense the king is the
general founder of all colleges and hospitals; the other _fundatio
perficiens_, or the dotation of it, in which sense the first gift of
the revenues is the foundation, and he who gives them is in law the
founder: and it is in this last sense that we generally call a man the
founder of a college or hospital[b]. But here the king has his
prerogative: for, if the king and a private man join in endowing an
eleemosynary foundation, the king alone shall be the founder of it.
And, in general, the king being the sole founder of all civil
corporations, and the endower the perficient founder of all
eleemosynary ones, the right of visitation of the former results,
according to the rule laid down, to the king; and of the latter, to
the patron or endower.
[Footnote b: 10 Rep. 33.]
THE king being thus constituted by law the visitor of all civil
corporations, the law has also appointed the place, wherein he shall
exercise this jurisdiction: which is the court of king's bench; where,
and where only, all misbehaviours of this kind of corporations are
enquired into and redressed, and all their controversies decided. And
this is what I understand to be the meaning of our lawyers, when they
say that these civil corporations are liable to no visitation; that
is, that the law having by immemorial usage appointed them to be
visited and inspected by the king their founder, in his majesty's
court of king's bench, according to the rules of the common law, they
ought not to be visited elsewhere, or by any other authority. And this
is so strictly true, that though the king by his letters patent had
subjected the college of physicians to the visitation of four very
respectable persons, the lord chancellor, the two chief justices, and
the chief baron; though the college had accepted this charter with all
possible marks of acquiescence, and had acted under it for near a
century; yet, in 1753, the authority of this provision coming in
dispute, on an appeal preferred to these supposed visitors, they
directed the legality of their own appointment to be argued: and, as
this college was a mere civil, and not an eleemosynary foundation,
they at length determined, upon several days solemn debate, that they
had no jurisdiction as visitors; and remitted the appellant (if
aggrieved) to his regular remedy in his majesty's court of king's
bench.
AS to eleemosynary corporations, by the dotation the founder and his
heirs are of common right the legal visitors, to see that that
property is rightly employed, which would otherwise have descended to
the visitor himself: but, if the founder has appointed and assigned
any other person to be visitor, then his assignee so appointed is
invested with all the founder's power, in exclusion of his heir.
Eleemosynary corporations are chiefly hospitals, or colleges in the
university. These were all of them considered by the popish clergy, as
of mere ecclesiastical jurisdiction: however, the law of the land
judged otherwise; and, with regard to hospitals, it has long been
held[c], that if the hospital be spiritual, the bishop shall visit;
but if lay, the patron. This right of lay patrons was indeed abridged
by statute 2 Hen. V. c. 1. which ordained, that the ordinary should
visit _all_ hospitals founded by subjects; though the king's right was
reserved, to visit by his commissioners such as were of royal
foundation. But the subject's right was in part restored by statute 14
Eliz. c. 5. which directs the bishop to visit such hospitals only,
where no visitor is appointed by the founders thereof: and all the
hospitals founded by virtue of the statute 39 Eliz. c. 5. are to be
visited by such persons as shall be nominated by the respective
founders. But still, if the founder appoints nobody, the bishop of the
diocese must visit[d].
[Footnote c: Yearbook, 8 Edw. III. 28. 8 Aff. 29.]
[Footnote d: 2 Inst. 725.]
COLLEGES in the universities (whatever the common law may now, or
might formerly, judge) were certainly considered by the popish clergy,
under whose direction they were, as _ecclesiastical_, or at least as
_clerical_, corporations; and therefore the right of visitation was
claimed by the ordinary of the diocese. This is evident, because in
many of our most ancient colleges, where the founder had a mind to
subject them to a visitor of his own nomination, he obtained for that
purpose a papal bulle to exempt them from the jurisdiction of the
ordinary; several of which are still preserved in the archives of the
respective societies. And I have reason to believe, that in one of our
colleges, (wherein the bishop of that diocese, in which Oxford was
formerly comprized, has immemorially exercised visitatorial authority)
there is no special visitor appointed by the college statutes: so that
the bishop's interposition can be ascribed to nothing else, but his
supposed title as ordinary to visit this, among other ecclesiastical
foundations. And it is not impossible, that the number of colleges in
Cambridge, which are visited by the bishop of Ely, may in part be
derived from the same original.
BUT, whatever might be formerly the opinion of the clergy, it is now
held as established common law, that colleges are lay-corporations,
though sometimes totally composed of ecclesiastical persons; and that
the right of visitation does not arise from any principles of the
canon law, but of necessity was created by the common law[e]. And yet
the power and jurisdiction of visitors in colleges was left so much in
the dark at common law, that the whole doctrine was very unsettled
till king William's time; in the sixth year of whose reign, the famous
case of _Philips and Bury_ happened[f]. In this the main question was,
whether the sentence of the bishop of Exeter, who (as visitor) had
deprived doctor Bury the rector of Exeter college, could be examined
and redressed by the court of king's bench. And the three puisne
judges were of opinion, that it might be reviewed, for that the
visitor's jurisdiction could not exclude the common law; and
accordingly judgment was given in that court. But the lord chief
justice, Holt, was of a contrary opinion; and held, that by the common
law the office of visitor is to judge according to the statutes of the
college, and to expel and deprive upon just occasions, and to hear all
appeals of course; and that from him, and him only, the party grieved
ought to have redress; the founder having reposed in him so entire a
confidence, that he will administer justice impartially, that his
determinations are final, and examinable in no other court whatsoever.
And, upon this, a writ of error being brought in the house of lords,
they reversed the judgment of the court of king's bench, and concurred
in sir John Holt's opinion. And to this leading case all subsequent
determinations have been conformable. But, where the visitor is under
a temporary disability, there the court of king's bench will
interpose, to prevent a defect of justice. Thus the bishop of Chester
is visitor of Manchester college: but, happening also to be warden,
the court held that his power was suspended during the union of those
offices; and therefore issued a peremptory _mandamus_ to him, as
warden, to admit a person intitled to a chaplainship[g]. Also it is
said[h], that if a founder of an eleemosynary foundation appoints a
visitor, and limits his jurisdiction by rules and statutes, if the
visitor in his sentence exceeds those rules, an action lies against
him; but it is otherwise, where he mistakes in a thing within his
power.
[Footnote e: Lord Raym. 8.]
[Footnote f: Lord Raym. 5. 4 Mod. 106. Shower. 35. Skinn. 407. Salk.
403. Carthew. 180.]
[Footnote g: Stra. 797.]
[Footnote h: 2 Lutw. 1566.]
IV. WE come now, in the last place, to consider how corporations may
be dissolved. Any particular member may be disfranchised, or lose his
place in the corporation, by acting contrary to the laws of the
society, or the laws of the land; or he may resign it by his own
voluntary act[i]. But the body politic may also itself be dissolved in
several ways; which dissolution is the civil death of the corporation:
and in this case their lands and tenements shall revert to the person,
or his heirs, who granted them to the corporation; for the law doth
annex a condition to every such grant, that if the corporation be
dissolved, the grantor shall have the lands again, because the cause
of the grant faileth[k]. The grant is indeed only during the life of
the corporation; which _may_ endure for ever: but, when that life is
determined by the dissolution of the body politic, the grantor takes
it back by reversion, as in the case of every other grant for life.
And hence it appears how injurious, as well to private as public
rights, those statutes were, which vested in king Henry VIII, instead
of the heirs of the founder, the lands of the dissolved monasteries.
The debts of a corporation, either to or from it, are totally
extinguished by it's dissolution; so that the members thereof cannot
recover, or be charged with them, in their natural capacities[l]:
agreeable to that maxim of the civil law[m], "_si quid universitati
debetur, singulis non debetur; nec, quod debet universitas, singuli
debent_."
[Footnote i: 11 Rep. 98.]
[Footnote k: Co. Litt. 13.]
[Footnote l: 1 Lev. 237.]
[Footnote m: _Ff._ 3. 4. 7.]
A CORPORATION may be dissolved, 1. By act of parliament, which is
boundless in it's operations; 2. By the natural death of all it's
members, in case of an aggregate corporation; 3. By surrender of it's
franchises into the hands of the king, which is a kind of suicide; 4.
By forfeiture of it's charter, through negligence or abuse of it's
franchises; in which case the law judges that the body politic has
broken the condition upon which it was incorporated, and thereupon the
incorporation is void. And the regular course is to bring a writ of
_quo warranto_, to enquire by what warrant the members now exercise
their corporate power, having forfeited it by such and such
proceedings. The exertion of this act of law, for the purposes of the
state, in the reigns of king Charles and king James the second,
particularly by seising the charter of the city of London, gave great
and just offence; though perhaps, in strictness of law, the
proceedings were sufficiently regular: but now[n] it is enacted, that
the charter of the city of London shall never more be forfeited for
any cause whatsoever. And, because by the common law corporations were
dissolved, in case the mayor or head officer was not duly elected on
the day appointed in the charter or established by prescription, it is
now provided[o], that for the future no corporation shall be dissolved
upon that account; and ample directions are given for appointing a new
officer, in case there be no election, or a void one, made upon the
charter or prescriptive day.
[Footnote n: Stat. 2 W. & M. c. 8.]
[Footnote o: Stat. 11 Geo. I. c. 4.]
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