LECTURES
ON THE
CONSTITUTION AND LAWS
OF
ENGLAND:
WITH A COMMENTARY ON
_MAGNA CHARTA_,
AND ILLUSTRATIONS OF MANY
OF THE
ENGLISH STATUTES.
BY THE LATE
FRANCIS STOUGHTON SULLIVAN, _LL. D._
Royal Professor of COMMON LAW in the UNIVERSITY of DUBLIN.
THE SECOND EDITION.
To which AUTHORITIES are added, and a DISCOURSE
is prefixed, concerning the LAWS and GOVERNMENT
of ENGLAND.
BY GILBERT STUART, _LL. D._
_LONDON_:
Printed for EDWARD and CHARLES DILLY in the Poultry; and
JOSEPH JOHNSON in St. Paul’s Church-yard.
M,DCC,LXXVI.
TO THE RIGHT HONOURABLE
FREDERICK LORD NORTH,
KNIGHT OF THE MOST NOBLE ORDER OF THE GARTER,
FIRST LORD OF THE TREASURY,
CHANCELLOR OF THE EXCHEQUER,
AND
CHANCELLOR OF THE UNIVERSITY OF OXFORD,
MY LORD,
I am ambitious of giving dignity to this Work by inscribing it to your
Lordship; and I conceive that it has a natural claim to your protection.
It regards those laws and that constitution which, at a most critical
period, you were called to defend; and of which the important purposes
are the security and the happiness of a free people.
In this illustrious rank which divides your cares between prerogative
and liberty, and in which you support the lustre of the Crown, while
you guard the independence of the subject; the greatest occasions are
afforded to distinguish the generosity of public virtue, and to employ a
capacity enlarged alike by reflection and experience.
But it does not become me to say with what honour to yourself, and
with what advantages to the nation, you sustain the arduous charge of
government. To posterity, which will not be suspected of flattery, it
must be left to celebrate the merits of an Administration, too vigorous
to yield under difficulties, and of which the glory has increased with
danger.
I am, with the greatest respect,
MY LORD,
Your Lordship’s
Most obedient,
And most humble servant,
GILBERT STUART.
ADVERTISEMENT.
The following LECTURES were delivered in the University of DUBLIN, and
procured a very high Reputation to their Author. The Researches they
contain into the Nature and History of the FEUDAL LAWS, were esteemed
extensive and ingenious; and the Description they exhibit of the ENGLISH
CONSTITUTION, will be allowed to be particularly interesting. These
Advantages have occasioned their Publication. It was thought, that
Papers, which had done so much Honour to DR. SULLIVAN, when alive, ought
to illustrate his Memory; and that they might prove of Use to the present
Age, and to Posterity.
THE Authorities assigned for DR. SULLIVAN’S Opinions and Reasonings
are furnished by the EDITOR. They are not, perhaps, in every Instance
those to which he himself would have appealed. This could not have been
expelled. They are such, notwithstanding, as will assist the Student; and
the Preliminary DISCOURSE, it is hoped, will not be thought an useless or
improper Addition to his LECTURES. It will be a Pleasure to the EDITOR
to reflect that he has endeavoured to pay a Tribute of Respect to the
Writings of a virtuous Man and an ingenious Lawyer, whom an immature
Death had ravished from his Friends and from Society.
CONTENTS.
_LECTURE_ I.
_The intention and purposes of political society—Customs and
manners govern men before the enactment of positive laws—Arts
and property the sources of legislation—Peculiarities attending
the institutions of Lycurgus and those of Moses—In the infancy
of a state, laws are few and plain—In times of civility and
refinement, they are numerous and complicated—The liberty of
the people, a great cause of the multiplicity of laws—The
difficulty of the study of the English law—The methods which
have been followed in the study of it._
_LECT._ II.
_The plan of the present undertaking—The particulars in which
it differs from that adopted by Mr Blackstone—The different
situations of the Universities of Oxford and Dublin—The chief
obstructions which occur to the student of the English laws—The
methods which may be employed to remove them—The law of_ things
_more proper to introduce a system of jurisprudence than the
law of_ persons—_The law of_ things, _or of real property in
England, has its source in the feudal customs—The necessity
of a general acquaintance with the principles of the feudal
polity—The method in which it is proposed to treat of it._
_LECT._ III.
_An enumeration and confutation of several opinions concerning
the foundation of the feudal customs—The origin and rules
of the feudal law to be deduced from the institution of the
German nations before they invaded the Roman empire—The English
indebted for this law to the Franks—A general description of
this people, with an account of the several orders of men into
which they were divided while they continued in Germany._
_LECT._ IV.
_The_ companions _of a German Prince—The constitution of a
German kingdom—The condition of property in Germany—The methods
followed there of distributing justice, and the nature of the
punishments inflicted on criminals._
_LECT._ V.
_The decline of the Roman empire—The invasions of the Northern
nations—The manner in which they settled in the Roman
provinces—The changes insensibly introduced among them in
consequence of their new situation—The policy and condition of
the Franks after they had settled in France—The rise of the
feudal law—Estates beneficiary and temporary._
_LECT._ VI.
_The introduction of estates for life into the feudal
system—The nature and forms of investiture—The oath of fealty,
and the obligations of Lord and tenant._
_LECT._ VII.
_Improper feuds or benefices—Grants to the Church—Grants
in which the oath of fealty was remitted—Grants to which
a condition was annexed that enlarged or diminished the
estate—Grants which reserved certain other services, beside
military service—Grants implying some certain service, as
rent, and not reserving military service—Grants reserving
no services, but general fealty—Grand Serjeantry—Petty
Serjeantry—Grants to women—Grants of things not
corporeal—Feudum de Cavena—Feudum de Camera._
_LECT._ VIII.
_Feudum Soldatæ—Feudum habitationis—Feudum Guardiæ—Feudum
Gastaldiæ—Feudum mercedis—Incorporeal benefices in
England—Advowsons—Presentative advowsons—Collative
advowsons—Donatives._
_LECT._ IX.
_Tithes—The voluntary contributions of the faithful, the
original revenue of the Church—The establishment of regular
payments—The appropriations of the Church—The history and
general rules of tithes in England._
_LECT._ X.
_The right of Seignory and its consequences—The right of
Reversion—Rent seck—Rent charge—The nature of_ distress, _as
the remedy for recovering feudal duties. Observations on_
distresses _in general_.
_LECT._ XI.
_The manner in which estates for life came to be enlarged
into descendible estates—The nature of Reliefs—Feudal
oppressions—The admission of allodial lands into the feudal
policy—The extension of the feudal system in France._
_LECT._ XII.
_Consequences attending the introduction of estates of
inheritance—The incident of homage—Differences in England and
the Continent, with regard to the ceremonies of homage and
fealty—The fine of alienation—Attornment—Warranties—Wardship in
chivalry._
_LECT._ XIII.
_Wardship in Socage—The nature and history of the incident of
marriage._
_LECT._ XIV.
_The rules of descent in the old feudal law in regard to the
sons of the last possessor—Representation and collateral
succession—Feminine feuds._
_LECT._ XV.
_The difference between allodial and feudal lands—The
restrictions on the feudal law—The decay of these—The history
of voluntary alienations._
_LECT._ XVI.
_Involuntary alienations of feudal land—Talliage—Edward I.
introduces the first involuntary attachment of lands—Statutes
enacted for this purpose—Their effects—The origin of estates
Tail._
_LECT._ XVII.
_The consequences and history of estates Tail._
_LECT._ XVIII.
_The constitution of a feudal monarchy—The dignity and revenues
of the King—An examination of his power as to the raising of
taxes and subsidies._
_LECT._ XIX.
_The King’s power as to the making, repealing, altering, or
dispensing with laws._
_LECT._ XX.
_Lords of Parliament or Peers—Earls or Barons—The earlier state
of Baronies in England—The Barones majores & minores—Barons by
writ and by letters patent—The different ranks of Nobility._
_LECT._ XXI.
_Earls or Counts as distinguished from Barons—The office of
Counts—Their condition after the conquest—Counties Palatine in
England—Counties Palatine in Ireland—Spiritual Peers—The trials
of Noblemen._
_LECT._ XXII.
_The share of the Commons in the Legislature—The Armigeri or
Gentry—Knights Bannerets—The nature of Knighthood altered
in the reign of James I.—Knights Baronets—Citizens and
Burghers—The advancement of the power and reputation of the
Commons._
_LECT._ XXIII.
_The privilege of voting for Knights of the Shire—The business
of the different branches of the Legislature, distinct and
separate—The method of passing laws—The history and form of the
legislature in Ireland._
_LECT._ XXIV.
_Villenage—The Servi in Germany, mentioned by Cæsar and
Tacitus, the predecessors of the Socmen or socage tenants in
the feudal monarchy—Villeins in gross and villeins belonging to
the land of the Lord—The condition of villeins—The different
ways by which a man may become a villein—The means by which
villenage or its effects may be suspended._
_LECT._ XXV.
_The methods invented to destroy villenage—The bent of the law
of England towards liberty—Copyhold tenants—Tenants in ancient
demesne._
_LECT._ XXVI.
_The condition and state of laws in England during the Saxon
times—The military policy of the Saxons not so perfect as
that of the Franks—Their Kings elective—The division of the
kingdom into shires, hundreds, and tithings—The administration
of justice—The county court—The hundred court and court
leet—The court-baron—The curia regis—Method of trial in
the Saxon courts—The ordeal—The waging of law—The trial by
battle—Juries._
_LECT._ XXVII.
_The punishment of public crimes and private wrongs among the
Saxons—The ranks of men among the Saxons—The difficulty of
ascertaining the nature of the Saxon estates, and the tenures
by which they were held—Observations to prove, that the Saxon
lands were in general allodial._
_LECT._ XXVIII.
_The Saxons, though their lands in general were allodial, were
not strangers to military benefices for life—The alterations
introduced by William the Norman, as to the tenure of lands in
England._
_LECT._ XXIX.
_The alterations introduced by William, as to the
administration of justice—The Judges of the Curia Regis are
appointed from among the Normans—The county courts decline—The
introduction of the Norman language—The distinction between
courts of record, and not of record—The separation of the
spiritual and temporal courts—The consequences of this measure._
_LECT._ XXX.
_Robert Duke of Normandy, and William Rufus, dispute the
succession to the Conqueror—The English prefer the latter—The
forest laws—The cruelty and oppressions of William—The
advancement of Henry, the Conqueror’s youngest son, to the
crown of England—He grants a charter—The nature of this
charter—His dispute with Anselm concerning Investitures—The
celibacy of the clergy—State of the kingdom under Stephen._
_LECT._ XXXI.
_Henry II. succeeds to the crown—The reformation
of abuses—Alterations introduced into the English
law—The commutation of services into money—Escuage or
Scutage—Reliefs—Assizes of novel disseisin, and other assizes._
_LECT._ XXXII.
_The institution of Judges itinerant, or Justices in Eyre—The
advantages attending it—The jurisdiction of these Judges—Their
circuits—The present form of transacting the county
business—The division of the Curia Regis into four courts—The
jurisdiction of the court of King’s Bench._
_LECT._ XXXIII.
_The jurisdiction of the high court of Chancery—The chancellor,
a very considerable officer in the Curia Regis—The repeal of
letters patent, improvidently issued to the detriment of the
King or the subject, a branch of the jurisdiction of the court
of Chancery—The Chancery, assistant to the Exchequer in matters
of the King’s revenue—Other branches of the business of this
court._
_LECT._ XXXIV.
_The court of Common Bench or Common Pleas—The jurisdiction
of this court—Actions real, personal, or mixt—The court of
Exchequer—The jurisdiction of this court—Exchequer chamber—The
judicature of Parliament._
_LECT._ XXXV.
_Henry II’s dispute with Becket—The constitutions of
Clarendon—The murder of Becket._
_LECT._ XXXVI.
_The rebellions of Henry’s sons—He is succeeded by Richard
I.—The steps taken at this period towards settling the
succession to the kingdom—The laws of Oleron—Accession of
John—His cruelty and oppressions._
_LECT._ XXXVII.
_John’s dispute with the court of Rome—Cardinal Langton
promoted to be Archbishop of Canterbury—Pope Innocent lays
the kingdom under an interdict—John is excommunicated—His
submission to Innocent—The discontents of the Barons—Magna
charta and charta de Foresta—An examination of the Question,
Whether the rights and liberties, contained in these charters,
are to be considered as the antient rights and liberties of
the nation, or as the fruits of rebellion, and revocable by the
successors of John?_
_LECT._ XXXVIII.
_The minority of Henry III.—Ecclesiastical grievances—The
dispensing power—The canon law—Confirmation of Magna Charta—A
commentary on Magna Charta, in so far as it relates to what now
is law._
_LECT._ XXXIX, XL, XLI, XLII, and XLIII.
_Continuation of the commentary on Magna Charta._
A DISCOURSE CONCERNING THE LAWS AND GOVERNMENT OF ENGLAND.
The last conquest attempted under the Roman Republic was that of Britain.
Julius Cæsar, on the pretence that its states had given assistance to
the Gauls, but chiefly from a motive of glory, carried the Roman Eagles
into a country from which he was to retreat with disgrace. It required
a length of time, and a succession of able Proconsuls to reduce to
subjection Communities of fierce and independent warriours; and policy
effected what could not be operated by arms. The Britains were debauched
into a resemblance with a most corrupted people. They renounced the
fatigues of war for the blandishments of peace. They forsook their huts
for palaces; affected a costliness of living, and gave way to a seducing
voluptuousness. They sunk into an abject debasement, without having run
that career of greatness, which, in general, precedes the decline of
nations; and, when they were trained to an oppressive yoke, the Romans
found it necessary to abandon them. The impression which the barbarous
tribes had made upon the Empire required the presence of the distant
legions[1].
The liberty which the Romans, on their departure, presented to the
Britains, could not be enjoyed by them. Timid and dastardly, they fled
before the Picts and Scots, and allowed their country to be ravaged by a
cruel and undisciplined enemy. Amidst the suggestions of their fear, they
forgot every principle of policy and of prudence; they called to their
defence a foreign valour. The Saxons were invited to fight their battles;
but they acted not long as protectors. They were allured by the prospect
of compleating a settlement in this island; and the total ruin of its
inhabitants was projected. Despair gave a temporary vigour and union to
the Britains. They were unable, however, to resist a people, accustomed
to victory, and directed by experienced commanders. The valiant and
magnanimous fell by the sword; the ignoble submitted to an ignominious
servitude: Wales afforded a retreat to some; and others found shelter in
Armorica[2].
But, if the Saxon conquest was ruinous to the Britains, it was yet
attended with consequences which were lasting and important. The sun of
liberty revisited the island, and displayed itself with uncommon lustre.
The Saxons, independent in their original seats, submitted not to tyrants
in their new situation. They laid the foundation of a political fabric,
the most valuable that has, at any time, appeared among men; and which,
though shaken by violent revolutions, a train of fortunate circumstances
has continued down to the present times. Fluctuations have taken place
between prerogative and liberty; but, accident and wisdom have still
conspired to preserve us from the fate of the other kingdoms of Europe.
During the existence, however, of the Heptarchy, the Saxons seem to
have departed little from their original condition of Society. The
ferocious picture which Tacitus has drawn of the Germans, is, with a few
exceptions, characteristic of them. If we admire their heroism, we are
shocked with their cruelty; and if we are in love with their democratical
maxims, we must sometimes regret their contempt of justice and of order.
The most important innovation introduced into their manners during this
æra was their conversion to christianity. But their acquaintance with
this mode of faith failed to be productive of beneficial consequences.
As they received it from the corrupted source of the Church of Rome,
it involved them in endless and idle disputes. It detracted from the
vigour of their understanding, by turning their attention from civil
precautions, and the arts of policy, to the relics of saints, and the
severities of religious discipline. The power derived from it intoxicated
ecclesiastics: They presumed to interfere in affairs of state; and, a
foundation seemed already to be laid for subjecting the island to the
dominion of the Roman Pontiff[3].
When the Saxon kingdoms were consolidated into one state under Egbert,
improvements were made in civility and knowledge. The incursions of the
Danes, and the disorders resulting from them, called forth the ability
and the wisdom of the Anglo-Saxon Princes. Alfred, notwithstanding the
other important transactions of his reign, found leisure to frame into a
code the laws of his predecessors, and those Germanic customs which had
retained their influence. King Edgar has likeways come down to us with
the character of an able legislator. The establishment of the Danes in
England gave occasion to new usages and new laws; but these were neither
many, nor considerable[4]. The ability of Canute did not allow him to
make distinctions between his Danish and his English subjects; and the
sceptre was not long in returning to a prince of the Saxon line. No
Monarch was ever more acceptable to a State than Edward the Confessor;
and, though he had rather the qualities of a saint than those of a king,
his laws have been highly extolled. They were strenuously contended
for during the administration of the earlier Norman princes; they kept
their ground in opposition to the clergy and the imperial institutions;
and they furnished the foundation of what is termed the Common Law of
England[5].
In no portion of the Anglo-Saxon period does the power of the Sovereign
appear to have been exorbitant or formidable. The enaction of Laws,
and the supreme sway in all matters, whether civil or ecclesiastical,
were vested in the _Wittenagemot_, or great National Assembly[6]. This
council consisted of King, Lords, and Commons, and exhibited a species
of government, of which political liberty was the necessary consequence;
as its component parts were mutually a check to one another. The free
condition of the northern nations, and the peculiarity of their situation
when they had made conquests, gave rise to this valuable scheme of
administration, and taught the politicians of Europe what was unknown to
antiquity, a distinction between despotism and monarchy.
The executive power remained with the crown; but it was the united assent
of the three estates which constituted the legislature. The Lords were
spiritual as well as temporal; for notwithstanding that the Ecclesiastics
preached humility, and the contempt of private interest, they had been
seized with ambition and the love of superiority[7]. The people exercised
an authority that was important and ample. The counties appeared
by their knights, and the cities and boroughs by their citizens and
burgesses; the Commons, as at this day constituted, being included under
the appellation of the _wites_ or _sapientes_, who are always mentioned
as a part of the Anglo-Saxon parliament[8]. The assertors of prerogative,
indeed, have affirmed that these were judges or men skilled in the law;
but this opinion they support by very exceptionable evidence[9]: And it
has been conjectured, with no measure of propriety, by some compromising
writers, that all the more considerable proprietors of land had a title,
without any election, to give their votes in the Wittenagemot[10].
In inferior assemblies, and in the forms of judicial proceedings, the
marks are also to be traced of the power of the people, and of a limited
administration. The hundred and county courts were admirably calculated
for the protection of the subject. They were composed of _freeholders_,
who were bound, under a penalty, to assemble at stated times; and who,
with the hundreder, earl and bishop, gave decision in all matters of
civil, criminal, or ecclesiastical import. A very powerful obstruction
was thus created to the oppressions of the great. And, in the institution
of a _jury_, our ancestors possessed a bulwark, the most efficacious and
noble that human wisdom has ever devised for the security of the persons
and possessions of men[11].
Nor was the condition of those times so entirely destitute of grandeur
as some historians have been fond to assert. Even in the age of Tacitus,
London was a port not unknown to navigators and traders[12]; and we have
the authority of Bede, that England abounded at an early period with
cities which were wealthy and populous[13]. Alfred was particularly
attentive to encourage industry, trade and manufactures; and even
imported the luxuries of life from the most distant countries[14]. It
was a law of Athelstane, that the merchant, who had performed at his
own expence three long and hazardous voyages, should be invested with
nobility[15]. Civility and knowledge, commerce and wealth increased under
Edgar, whose ability and affable manners allured many foreigners to his
court; and affairs did not degenerate, nor was England less respectable
under the peaceful and fortunate administration of Edward the Confessor.
But the beautiful pre-eminence on the side of the people, enjoyed during
the Saxon times, was soon to be violated. The invasion of the duke of
Normandy was about to introduce sanguinary and oppressive times. We
must not, however, with a multitude of authors, be deceived into the
opinion, that this warriour and statesman atchieved a _conquest_ over the
constitution and the people of England. He made effectual by arms his
right of succession to Edward; but he received the crown with all its
inherent properties. He took the oath which had been prescribed to the
Saxon princes; he acknowledged himself to be equally under restraint and
limitation; and he engaged to preserve the immunities of the church, and
to act according to the laws. The victory he obtained at Hastings was
over the person of Harold, and not over the rights of the nation[16].
His accession, at the same time, it will be allowed, was a source of
inquietude and confusion. Dominion is ever consequent on property; and
the forfeited estates of the nobility and the landed proprietors who had
assisted Harold, or who had afterwards joined in insurrections, having
been bestowed by him on his officers; and the high rank of many of these
requiring very ample retributions, a great proportion of territory was
necessarily vested in the hands of a few. Nor was it favourable to the
spirit of democracy, that the donations of William were governed by the
more extended notions of the feudal law.
This polity, which was common to the northern tribes, had not been
unknown to our Saxon ancestors; but, though they were familiar with
grants, which were precarious, or which endured for a term of years,
or during the life of the feudatory, they had seen few examples of the
perpetuity of the fief. They had not been accustomed to the last step of
the feudal progress; but a tendency to its establishment was observable
among them; and, if the invasion of William had never taken place, the
institutions of this law had yet arrived at their highest point. He only
hastened what the course of time was about to produce by slow degrees: It
was a result of his administration, that, before the end of the reign of
Henry II. fiefs, in their more enlarged condition, had spread themselves
over England[17].
This plan of political law, which had been propitious to liberty and
conquest in its rise, was prejudicial to both in its decline; and the
same institutions, which in one situation, conducted to greatness,
led the way in another to confusion and anarchy[18]. The advantages
which distinguished their earlier state, were unknown when they had
attained the ultimate step of their progress. When fiefs had become
hereditary, the association of the chief and the retainer, or the lord
and his vassal, had no longer for its support, any other tie than that
of land[19]; and, if the possessor of a fief was less attached to his
followers, he was less dependent on, and less connected with his prince.
The system had lost the circumstances, which formerly had fitted it so
admirably for war; and the few regulations it included with regard to
peace and domestic policy, were rather calculated for the narrow circle
of a nascent community, than for the complicated fabric of an extensive
empire.
The exorbitant grants, which it was necessary that duke William should
make, the full establishment of the perpetuity of the fief, and the
consequent investment of offices of rank and of dignity in particular
families, introduced all the disorders of aristocracy. The most princely
dominion was in general claimed and exercised by the great[20]. They
assumed the right of declaring war against each other of their private
authority; they coined money; and they affected to exert without appeal
every species of jurisdiction. But while they disputed in the field
the prize of military glory, or vied in displays of magnificence and
grandeur, their tenants and vassals were oppressed to supply their
necessities; and, amidst the unbounded rapine and licentiousness which
arose, no legal protection was afforded to individuals[21]. There was no
safety for the helpless but in associations with the powerful; and to
these they paid attention and service. The tribunals of justice became
corrupted; and decisions were publickly bought from the judges. New
sources of oppression were thought of; and none were infamous enough to
be rejected. The feudal casualties were exacted with the most rigorous
severity; and, while the kingdom appeared to be divided into a thousand
principalities, the people were nearly debased into a state of servility.
On a superficial view, one would be apt to imagine, that, in regard to
competition, the nobles of those times were considerably an overmatch for
the prince. But Barons, whose chief recommendations were the military
virtues, who were haughty and independent, and often inflamed against
each other with the fiercest animosity, could not always act in a body,
or by fixed and determined maxims. It was not so with the sovereign: The
master of operations, which depended on himself, he could speculate in
silence, and watch the opportunities of action. The advantages he derived
from his situation were powerful. Not to mention his prerogatives and his
revenue; the returns of feudal service reminded the nobility of their
subjection to him; and the inferior orders of men, regarding these as
their immediate oppressors, looked up to him as to their guardian.
Amidst the lawless confusion introduced by the struggles between regal
and aristocratical dominion, the constitutional rights of the Commons
seem to have received a temporary interruption, and to have been
insulted with a temporary disregard. Their assembling in parliament
grew to be less frequent and less effectual; and for a season, perhaps,
was altogether suspended. But notwithstanding the disorder occasioned
by these struggles, they were in time productive of effects which
were beneficial to the people. For if the charter, confirming their
_ancient_ liberties, which was granted by Henry I. renewed by Stephen,
and continued by Henry II. had remained without a due and proper force;
the confederacy of the barons produced under king John and Henry III.
the revival and the exercise of the most important privileges. The MAGNA
CHARTA brought back, in some measure, the golden times of the Confessor.
It appeared to the barons, that they could not expect the assistance of
the people, if, in treating with John, they should only act for their
own emolument; they were therefore careful that stipulations should be
made in favour of general liberty. The people were considered as parties
to transactions which most intimately concerned them. The feudal rigours
were abated; and the privileges, claimed by the more dignified possessors
of fiefs, were communicated to inferior vassals. The cities and boroughs
received a confirmation of their _ancient_ immunities and customs[22].
Provisions were made for a proper execution of justice; and in the
restraints affixed to the power of the king and the nobility, the people
found protection and security.
The sovereign, no less than the nobles, was an enemy to public liberty;
and yet both contributed to establish it. Stephen gave the example
of a practice, which as it served to enfeeble the aristocracy, was
not forgotten by his successors. In the event of the reversion to the
crown of a great barony, he gave it away in different divisions; and
the tenants _in capite_ produced in this manner, threw naturally their
influence into the scale of the commons. The partitions, also, which the
extravagance of the nobility, and the failure of male-heirs, introduced
into great estates, contributed to restore the democracy. It was a
result, likeways, of the madness of the Crusades, that many adventurers
to the east returned with more cultivated manners, and more improved
notions of order and liberty; and the romantic glory of acquiring
a renown there, had induced many potent barons to dispose of their
possessions. The boroughs hastened to recover the shock, which they had
received during the violent administrations of William and of Rufus[23];
and, if charters of corporation and community were granted seldom
during the reigns of Henry I. and of Stephen, they were frequent under
Henry II. Richard I. king John, and Henry III. During the sovereignty,
accordingly, of the last, and during that of Edward I. the acquisitions
secured by the Commons appeared so considerable, that their assembling in
parliament became a matter of greater regularity, and they rose to their
ancient importance from the disorder into which they had been thrown
during agitated and turbulent times.
The 49th year of Henry III. and the 23d year of Edward I. which so many
writers consider as the dates of the establishment of the Commons, were,
of consequence, nothing more than memorable epochs in their history[24].
Under Edward I. the constitution received a stability to which it was
no less indebted to his military than his civil capacity. The wars
and expeditions in which he engaged, involved him in immense expence;
and calling for supplies, rendered him particularly attentive to the
people. The feudal force of the kingdom could not be employed by him
with efficacy. In the decline of the gothic system, the nobles were not
sufficiently in subjection to the prince; and their service was limited
to a narrow period. In the reign, indeed, of Henry II. a pecuniary
payment had been substituted in the place of the personal attendance of
the military vassal; and the custom had prevailed of hiring soldiers of
fortune. But, amidst the prevalence of private and mercenary views, the
generous principles which had given solidity to the feudal fabric[25],
having totally decayed, and the holding by a military tenure having
ceased to be considered as an honour; vassals thought of eluding the
duties to which they were bound by their possessions, and granting them
away in fictitious conveyances, received them back under the burden of
elusory or civil donations. It even grew to be usual among tenants to
refuse the pecuniary payments, or the _scutages_ to which they were
liable: They denied the number of their fees; they alledged that the
charge demanded of them was not justified by their charters; and, while
the prince was ready to march against an enemy, it was not convenient to
look into records and registers. The sovereign deprived of his service,
and defrauded of his revenue, and under the necessity of levying a
military force, had no resource so secure or abundant as the generosity
of the people[26].
The admirable improvements with which Edward enriched the laws, and
facilitated the preservation of domestic peace and order, contributed
also with the greatest efficacy to advance and secure the liberties
of England. He established the limits of the different courts; he
gave a check to the insolence and encroachments of the clergy; he
abrogated all inconvenient and dangerous usages; and the great charter,
and the charter of the forest, received from him the most ample
settlement[27]. The sagacity of his precautions and policy procured
to him most deservedly the name of the _English Justinian_; and it may
be mentioned as a convincing proof, both of his genius, and of his
having studied the welfare of his people, that, to the form into which
he modelled the common law, as to the administration of common justice,
the wisdom of succeeding times has not been able to add any considerable
improvements[28].
The crown of Edward I. but not his talents, descended to Edward II. The
indolence, however, and the incapacity of the last prince, joined to his
absurd passion for favourites, though they rendered his reign tumultuous
and unhappy, were no less favourable to the dignity of parliament, and
the power of the people, than the excellent administration of Edward
III. and the necessities to which he was subjected by his ambition and
his prowess. A weak prince may lose the prerogatives transmitted to him;
but will never be the founder of a despotism. A high-spirited monarch,
dependent for resources on his people, may carry destruction and ruin
into the country of an enemy, but will not easily be induced to attack
the liberty and the prosperity of his own kingdom.
The sons of Edward III. had contributed, while he lived, to his grandeur,
and that of the nation; but no sooner was he laid in his grave, than
they excited commotions. The ambition of their posterity was still more
pestilent and fatal. The wars between the Houses of York and Lancaster
deluged England with blood. The passions of men were driven into rage
and phrenzy; and in the massacres, rather than the battles that ensued,
conquest or death seemed the only alternative. But while we turn with
sorrow from this bloody period of our story, our sympathy is softened
by the recollection, that the contending princes brought accessions
to liberty, by adding to the weight of the Commons. The favour and
countenance of the people were anxiously solicited by both factions; and
their influence failed not to grow, while the means of extending it were
offered, and while they were courted to seize them[29].
The nation, when satiated with the calamities of civil war, thought of
uniting the claims of the two hostile families. Henry VII. the heir of
the House of Lancaster, was married to Elizabeth, the heiress of the
House of York. This prince affected to be profound, and he has obtained
that character. But the condition of Europe at the time in which he
lived, and the situation in which he found himself, pointed out to him
his strain of conduct. He was more mysterious than wise; more prudent
than enterprizing; and more a slave to avarice than ambition. Without
having intended it, he placed the grandeur of the Commons on the most
solid foundation. In the liberty which he granted to the nobility of
breaking their entails, he saw only the degradation of that order. The
civil wars had involved them in great expence; and the growing commerce
and refinement of the times, exposed them to still greater. Their
princely possessions flowed from them to give dignity to the people[30].
Henry VIII. had no certain character, and was actuated by no fixed and
determined maxims. He had not the ability to form, nor the firmness to
put into execution a deliberate scheme to overturn the liberties of
his country. With less capacity than his ancestor, his reign was more
splendid; and, with a more imperious temper, he had the art or the
felicity to preserve the affection of his subjects. The father removed
the pillar which supported the power of the nobles: The son gave a
mortal blow to the influence of the clergy. In the humiliation of both,
the Commons found a matter of triumph. The Reformation, though it
interrupted the progress of literature, was yet highly conducive to civil
liberty. The church in losing an authority which it had never merited,
and which it had often abused, sunk into a dependence on government. The
supremacy returned to the sovereign to whom it originally belonged, and
with whom it ought constantly to have remained. The visitation of the
monasteries discovered more than the inventions of a pious fraud; vices
and abuses which cannot be described, without conveying to the mind the
impression of whatever is most wicked and most dishonourable: Their
suppression gave encouragement to industry and to the arts; and their
wealth diffused in a thousand channels, circulated through the kingdom.
The Reformation advanced under Edward VI. but it was destined that this
prince should only make his appearance on the stage of public life,
and give the hope of an able administration. The sway of Mary was a
paroxysm of religious madness. She knew not, that when the individuals
of a kingdom have agreed to adopt a new religion, it is the duty of the
sovereign to give a sanction to it. The reformed were about to experience
whatever cruelty the extremity of a mistaken zeal can inflict. But the
fires lighted by Gardiner, Bonner, and such abominable men, brought no
converts to popery. The dread of endangering the succession of Elizabeth
prevented the parliament from giving a check to the obstinate malignity
and the sanguinary rage of this unworthy queen; or, perhaps, the nation
had scarcely recovered the astonishment into which it was thrown by
the atrocity of her deeds, when, in the sixth year of her reign,
superstition, peevishness, and the most selfish and unhappy passions, put
an end to her life.
Elizabeth, who had learned wisdom from misfortune, attained the summit of
political glory. The perilous condition of affairs, on her commencing to
reign, required singular moderation and ability, and she exerted them. A
sagacity, almost incapable of mistake, directed all her operations[31].
England grew in commerce and advantages, while the rest of Europe was
agitated with contentions, and debated with the tyranny of power. Her
jealousy of prerogative was corrected by her attachment to the felicity
of her people; and the popularity with which she reigned is the fullest
proof that she preserved inviolated all the barriers of liberty[32].
The reformation which the folly of her predecessor had interrupted, was
compleated by her prudence.
This accomplished princess was succeeded by James VI. of Scotland. He
substituted, in the place of ability, the affectation of it. The English
nation received him with marks of respect which they were not to continue
long. With high notions of kingly dignity, all his actions tended to
degrade it; and, while his littleness rendered him contemptible at
home, he became an object of ridicule abroad, from his ignorance of
foreign politics. Careless in the choice of his ministers, and supremely
conceited of his own wisdom, his reign brought no glory to the crown.
The great improvement, which, about this period, displayed itself in the
national manners, diffused among all ranks of men very enlarged ideas
concerning the nature and principles of civil government. The arts had
been cultivated with uncommon success. Discoveries had been made in the
most distant regions of the globe. Commerce had brought great accessions
of wealth. The balance of property had turned with no equivocal direction
to the side of the people.
It was not an age for fastidious and tyrannical maxims. The Commons
knew all their strength, and were determined to employ it. The prince
endeavoured in vain to impress them with his exorbitant notions of regal
authority. Every complaint and grievance of the subject were inquired
into; every suspicious and inclement act of prerogative was opposed. The
doctrines of the divine right of kings, and of passive obedience, were
now first heard of, and alarmed and astonished the nation. Pretensions to
power, destructive of the natural and inherent privileges of humanity,
and inconsistent with every principle of common sense, were asserted from
the pulpit, were claimed by the sovereign. The extravagance of James
awakened the thunder which was to burst on the head of his successor.
Charles I. had imbibed the same lofty conceptions of kingly power; and
his character was marked by the same incapacity for real business.
His situation required insinuation and address; but he affected the
utmost stateliness of demeanor. He disgusted the Commons; he insulted
the people. To the exercise of his authority, he fancied there was no
limitation. Inflamed with opposition, he presumed to attack whatever was
most sacred, and most valuable among men. The imprudence of Buckingham
had not softened his obstinacy: His Queen was indiscreet, and he confided
in her. The violent councils of Strafford precipitated his own and the
ruin of his master. The religious foppery of Laud completed what the
incapacity of James had begun: It was the cement of union between the
friends of liberty and the sect of the Puritans. The people beheld with
a fixed and a general indignation the insult and the violence which were
offered to the majesty of their laws, and to their constitution. The
flames of civil discord were kindled. England was torn during six years
with political and religious fury. The unfortunate Charles atoned at
length by his death the disorders he had occasioned. The delegates of
the people pronounced him guilty of misgovernment and breach of trust.
“The pomp, says an eloquent historian, the dignity, the ceremony of this
transaction, corresponded to the greatest conception that is suggested in
the whole annals of human kind[33].”
Cromwel, the immediate cause of the death of Charles, and of those
circumstances of censure which accompanied it, astonished at the height,
to which, in the course of the civil wars, his ambition had carried him,
was induced to aspire still higher. His genius was great, his fortune
greater. On the abolition of monarchy, he introduced into England a
military despotism, under the appellation of a common-wealth[34]. From an
inferior rank, he had risen gradually to direct the affairs of a powerful
nation. Though irregular in his politics, the vigour of his conduct
brought signal glory to his councils and his arms. But the fabric he had
built was ill-contrived and ill-cemented; its parts were disproportioned;
and it rested on no solid foundation. It began to totter during his own
life. His son Richard had none of the talents of an usurper. The minds
of the people united in an anxious wish for the re-establishment of
the ancient constitution; and general Monke acquired the honour of the
peerage, and the fame of uncommon political sagacity, for forwarding an
event, which it was impossible to prevent.
Charles II. never forgave the people of England for the misfortunes
he himself had suffered, nor for those of his House. This monarch had
quickness of parts, but possessed not that discernment which sees into
the future. He entered without reflection into schemes and projects,
and renounced them with the same precipitation. Though an enemy to the
constitution of his country, and though in the interest of France, he was
not able to produce any lasting disadvantage to the kingdom. His reign,
though tumultuous, was not unfavourable to liberty. The total abolition
of the military tenures and their appendages, which had place during his
sovereignty, was a most important acquisition to the people: It relieved
their estates from every source of legal oppression. The _habeas corpus_
act, which was some years posterior to it, offered the firmest security
to their persons. It produces in a court of justice the body of every
prisoner; it makes known the cause of every commitment; and, if an
individual has suffered confinement in opposition to the law, though at
the command of the king in council, he is restored to his liberty, and
has a claim of compensation for the loss and the indignity his affairs
and his honour have sustained.
The clamour against popery was loud and violent during the long
administration of Charles II. and yet the crown was permitted to pass
to the Duke of York. This confidence, so honourable to the people, was
abused by the sovereign. James II. had the zeal of a monk, not the virtue
and the talents of a great king. His bigotry and his lust of power made
him perpetrate the most atrocious and the most insolent acts. Violating
equally civil and religious liberty, his subjects deprived him of a
throne of which he was unworthy.
In settling the crown on the prince and princess of Orange, the wisest
precautions were taken, that the religion, the laws, and the liberties
of England should never more be in danger of being subverted. The limits
of the prerogative were defined; the extent of the freedom of the people
was ascertained; and the doctrine of resisting the prince, when he should
presume to encroach on the rights of the subject, was explained and
illustrated[35].
From the Saxon conquest, during a long succession of ages, this fortunate
island has never degenerated from liberty. In the most inclement periods
of its history, it despaired not of independence. It has constantly
fostered that indignant spirit which disdains all subjection to an
arbitrary sway. The constitution, prospering under the shocks it
received, fixed itself at the highest point of liberty that is compatible
with government. May it continue its purity and vigour! and give felicity
and greatness to the most distant times!
_March 1775._
LECTURES ON THE LAWS OF ENGLAND.
LECTURE I.
_The intention and purposes of political society—Customs and
manners govern men before the enactment of positive Laws—Arts
and property the sources of legislation—Peculiarities attending
the institutions of Lycurgus and those of Moses—In the infancy
of a state, laws are few and plain—In times of civility and
refinement, they are numerous and complicated—The liberty of
the people, a great cause of the multiplicity of laws—The
difficulty of the study of the English law—The methods which
have been followed in the study of it._