a year and a day, unless the lord pleased to compound with him, and so
intitle himself to the immediate possession. But this did not satisfy
the greediness of the officers of the crown. It was easy to gather the
profits until very near the time the king’s right expired, and then,
for a week or fortnight before it was out, they had it in their power
to commit waste enough, if the lord, who was intitled by the escheat,
did not buy them out. This was certainly against the spirit of the law
whereof we are speaking, which was intended to give the king a real
profit, instead of a right destructive to the community in general; but
the waste was not prohibited expressly, and this was pretext enough for
these officers to exact composition for not doing it within the year. It
was accordingly claimed and paid, and accounted for as due to the king,
on that old maxim, That general laws do not change the prerogative royal,
but by express words. This was the doctrine and practice in the courts of
the third Henry, and convenient enough for him, who was always indigent.
But what was the opinion of the lawyers of that age, we may learn from
Bracton, Britton, and the author of Fleta; the first of which wrote in
the latter end of this reign, and the other two in the reign following.
Bracton says expressly, that “the king’s power over the lands of felons
convicted, was because he had a right to throw down the buildings, unroot
the gardens, and plow up the meadows; but because such things turned to
the great damage of the lords, it was provided, for common utility, that
such houses, gardens, and meadows should remain, and that the king for
this should have the advantage of the whole land for a year and a day,
and so every thing should return entire to the lord. Then he goes on,
but now both is demanded, namely, a fine for the term, likewise for the
waste, nor do I see the reason why[391].” Thus far Bracton. Britton says,
speaking in the person of the king, of felons, for in that manner his
book is written, “Their moveables are ours; their heirs are disinherited;
and we will have their tenements, of whatsoever holden, for a year and
a day, so that they shall remain in our hands that year and day, and
that we shall not cause to perish the tenements, nor hurt the woods,
nor plow the meadows, as hath been accustomed in time past[392].” Fleta
talks in the same strain, in commenting on this law of _Magna Charta_,
which he expressly quotes, that, as a mark of brand on felony, it had
been antiently provided that the houses should be thrown down, and so
goes on to enumerate the other species of waste, which I need not here
repeat, as I have mentioned them already; and then he says “because by
such doings great damage would accrue to the lords of the fiefs; for
common utility it was provided, that such hardships and severities should
cease; and that the king, in consideration thereof, should, for a year
and a day, enjoy the commodity of the whole land; after which term it
should return to the lords of the propriety entirely, without waste or
destruction[393].” The _Mirror_, another antient law-book, joins with
these; and this book, which was written in the same reign of Edward
the first, or, at the latest, in that of his son, says, “the point of
felons lands being held for the year is disused; for by that, the king
ought not to have but the waste by right, or the year, in name, (that
is, in nature) of a fine; to save the fief from _estrepement_ (that is,
waste), the ministers of the king take both the one and the other[394].”
A melancholy consideration, that, under his name, and in pretence of
his profit, though not really to his advantage, such a law should, for
their own profit, be eluded by his ministers; as by these testimonies,
one cotemporary, and the rest immediately subsequent, we are informed
it was contrary to the intention of this chapter of _Magna Charta_; but
the practice prevailed for a long time after. I shall conclude this
lecture with the words of Lord Coke on this chapter of _Magna Charta_.
“Out of these old books you may observe, that when any thing is given to
the king, in lieu or satisfaction of _an antient right of his crown_,
when once he is in possession of the new recompence, and the same in
charge, his officers and ministers will many times demand the old also,
which may turn to great prejudice, if it be not duly and discreetly
prevented[395]”.
LECTURE XXXIX.
_Continuation of the commentary on Magna Charta._
The twenty-third chapter of _Magna Charta_ prohibits _fish weires_ in
rivers, which are great annoyances to navigation, and the free liberty
of fishing; and which have stood their ground in spite of all the laws
that can be made against them. The next relates to the inferior courts
of Lords of Manors, and to writs of _Præcipe in capite_; which having
gone into disuse, with the feudal tenures, I shall pass them over. The
twenty-fifth orders, that measures and weights should be one and the same
through the whole kingdom; witness the difference between Troy weight and
Averdupois; the wine gallon and ale gallon. Established customs, which
of necessity must come into daily practice, are hard to be rooted out
by positive laws; and indeed it is more prudent to let them continue.
For the confusion that such an alteration of things in daily or hourly
practice would occasion, would be more detrimental, for a considerable
time at least, than the uniformity intended to be introduced would be
attended with advantage[396].
The twenty-sixth is concerning the writ _De odio et atia_, that is, of
hatred and malice; which, though not abolished, hath long since been
antiquated; but, as it was an antient provision for restoring the liberty
of the subject, I shall take some notice of it. It was a maxim of the
common law, that no man imprisoned for any offence, which, if proved,
would touch his life or members, could be bailed out but by the supreme
criminal court, the King’s Bench; which, upon danger of death, or such
other special causes as appeared sufficient to them, had that power.
Hence, in those unsettled and oppressive times, it became a practice
for malicious persons to have a man clapped up in prison for a capital
offence, without either indictment or appeal brought against him; and
there he was of necessity to lie, until the justice in eyre came into
the county to deliver the gaols, which regularly was but once in seven
years; to avoid this hardship, the writ we are now speaking of was
invented, and issued out from time to time, as occasion required, out of
the Chancery. Besides, by this chapter of _Magna Charta_, it is ordered
to be granted without any purchase or reward; whereas, before, all the
original writs were purchased at the price the chancellor pleased to
set on them, which was a grievous oppression. It ordered the sheriff to
make inquisition in the county court, by the oath of a jury, whether the
imprisonment proceeded from malice or not. If they found it did, upon its
return, the person accused had a right to a writ, ordering the sheriff to
bail him by twelve _manucaptors_, or securities. But, this was only where
there was no indictment, or appeal; for these were accusations of record,
and therefore the finding the charge malicious in the county court, which
was no court of record, could not avail against them. This, writ has gone
into disuse, since justices of gaol-delivery have continued to go into
every county twice a year; a proceeding which has evidently superseded
the necessity of it[397].
The twenty-seventh chapter restrains the unjust practice in the king,
of arrogating to himself the wardship of his socage or burgage tenants,
where they held lands by military service from others, his subjects. The
whole military system hath since been dissolved by act of parliament, and
therefore it will be unnecessary for me to explain or enlarge upon the
nature of the mischief complained of in this chapter. The next forbids
any judge or officer of the king to oblige a man to _wage his law_, that
is, swear to his innocence, except in a cause where a suit was instituted
against him; but _wager of law_, being now totally fallen into disuse,
I hasten to the twenty-ninth chapter, the corner-stone of the English
liberties, made in affirmance of the old common law[398].
By the bare reading of this chapter we may learn the extravagances of
John’s reign, which it was intended to redress. It consists of two parts.
The first runs thus: _Nullus liber homo capiatur, vel imprisonetur,
aut disseisetur, de libero tenemento suo, vel libertatibus vel liberis
consuetudinibus suis, aut utlagetur aut exuletur, aut aliquo modo
destruatur, nec super eum ibimus, nec super eum mittimus, nisi per
legale judicium parium suorum, vel per legem terræ._ First, then, to see
to whom this act extends: the words _liber homo_, in antient acts of
parliament, is, in general, rightly construed _freeholders_, and so it
means here, in the second branch which prohibits disseisins; for none but
a freeholder is capable of being disseised, no others being said to have
a seisin of land. But it must not, throughout the whole of this act, be
confined to this limited sense. The first branch speaks of the restraint
of liberty; the third, of unjust outlawries; the fourth, of unjust
banishment; the fifth, of any kind of destruction, or wrongs; which,
offered to an innocent person, are against the natural rights of mankind,
and therefore, the remedy must extend to all: and so it hath always been
understood; for women are included in it, and so are villeins, for they
are free men against all but their lord.
Let us next consider the end of this part, which is an exception running
through the whole; _nisi per legale judicium parium suorum, vel per legem
terræ_. That is, by the common law, which doth not, in all these cases,
require a trial by peers; a thing indeed impossible, where the party
doth not appear; in which case there is a necessity of proceeding to
judgment another way. Coke observes, the words _legale judicium parium
suorum_ include the trial both of lords and commons, the finding of the
latter being upon oath, and called _Veredictum_, and in which all must
be unanimous; wherein it differs from the trial of lords, for they find
not upon oath, but upon honour; and it is not necessary that all should
agree, the majority, provided that majority consists of twelve, being
sufficient[399].
Upon this a question may be put, who are the peers of a woman of quality?
If she be noble by blood, that is, a peeress, (for I speak not of the
nobility by courtesy, which is merely nominal) there is no doubt but the
barons and other noblemen; if she be ennobled by marrying a peer, she
becomes in law one person with her husband, and therefore must have the
same peers with him, which right continues after her husband’s death,
unless she marries a commoner; for then, being one person with him, she
becomes a commoner; whereas a peeress, in her own right, marrying a
commoner, forfeits not her dignity, though she becomes one person with
him. She was not ennobled by her own act, and therefore, by no act of her
own can destroy that nobility she has by the gift of God, or the king, by
means of her blood, which she cannot alter.
Two exceptions, however, there are to the rule of every Englishman’s
being tried for offences by his peers; but neither of them against the
purport of this statute. First, the statute speaks in the disjunctive,
_per legale judicium parium suorum, aut per legem terræ_: now the _lex
terræ_, the common law, in the universal practice of it, allows these
exceptions; nor will they be found to be against the letter; for the
words are _nec super eum ibimus_, _nec super eum mittemus_, speaking in
the person of the king; which shews that it is meant of the accusation
or other suit of the king. Now these exceptions are not at his suit.
One of these exceptions I mentioned in a former lecture. It is where a
commoner is impeached by the commons in parliament; and the reason I
then gave, is, I think, plain and satisfactory, that every jury that
could be summoned is supposed a party to the charge brought by their
representatives, and therefore, as the man is accused as an enemy to
the king by the body of the people, that there may not be a failure of
justice, the lords, as the only indifferent persons, must be the judges.
The other exception may seem more extraordinary. It is that a lord of
parliament appealed, that is, accused of a crime, by a private person,
not for the satisfaction of public justice, but of his own private
wrong, shall not be tried by his peers, but by a jury of commoners. When
this law was introduced, the lords were few in number, immensely rich
and powerful, linked together frequently by alliances, almost always
by factions. In this towering situation, they looked down on the lower
ranks with disdain; frequently injured and oppressed them; and little
prospect would the poor commoner have of redress, were the criminal to
be tried by those of his own rank, several of them his relations, most
of them liable to be suspected of the same offences; especially, as the
law will not allow a lord to be challenged. Neither did the lord run any
extraordinary risk of being unjustly condemned. The lower rank of people
in all countries and ages have been used to look with respect on persons
possessed of great wealth and power, invested with titles of honour,
and dignified by blood of an antient descent. But, in those military
ages, such veneration was highly encreased by that valour and personal
bravery, which distinguished every one of the nobility, and than which
no virtue is more apt to captivate, in general, the hearts of mankind.
Besides, that the lord had his advantage of challenging suspected jurors;
whereas, if tried by his peers, he had not such privilege of exception,
though they were ever so notoriously his enemies. Every commoner almost,
how great soever, was, in those days, under the influence of some one or
other of the lords, and there could be little doubt but that influence
would be exerted, and successfully too, unless the guilt was too clear
and evident.
It may here be asked, When a civil suit is depending between a lord and a
commoner, how the issue is to be tried, whether by the lords alone, or by
commoners only, or by a jury composed of an equal number of each; in the
same manner, as, when an alien is tried, it is by a jury half natives,
half aliens? The answer is, it shall be tried by a jury of commoners;
only, on account of the dignity of the lord, there must be a knight on
the jury. I need not enlarge on the reason, as it is the same with the
former, the lesser danger of partiality.
I now come to the other part of the disjunctive, _aut per legem terræ_;
and it will be necessary to point out in general (for to descend into
particulars, would carry me a great deal too far) the principal cases,
where this _lex terræ_ supersedes the trial _per pares_. First, then, if
a man accused of a crime pleads guilty, so that there is no doubt of the
fact, it would be an absurd and useless delay to summon a jury, to find
what is already admitted: accordingly, by the _lex terræ_ judgment is
given on the confession. So in a civil action, if the defendant confesses
the action, or if he appears, and afterwards, when he should defend
himself, makes default, and will not plead (which case is equivalent
to confession) no jury is requisite. So, if both parties plead all the
matters material in the case, and a demurrer is joined, that is, the
facts agreed on both sides, and only the matter of right, depending on
the facts already allowed, in contest, the judges shall try by demurrer,
and give judgment according to _law_ without a jury. The general rule
is, that a jury shall try _facts_, and the judges the _law_; for it
would carry a face of absurdity to expect from a common, or indeed, from
any jury, a decision of a point of law that is controverted between the
lawyers of the plaintiff and defendant, who have made that science their
particular study. Besides, as the law inflicts so heavy a punishment on
jurors who give a false verdict, it would be the utmost cruelty to force
men unpractised in law to run such a hazard, where it must be supposed
an equal chance, at least, they may mistake. The same dangers that the
jurors would run by mistaking the law, hath, in points complicated both
of law and fact, introduced _special verdicts_, that is, the finding of
all the facts by the jury, and the leaving the matter of right to be
judged by the court, who best know the law: but this by way of digression.
All the proceedings of courts to bring causes to a hearing previous to
the impannelling a jury, and the carrying judgments into execution, are
_per legem terræ_, or, as my Lord Coke expresses it, the due process of
the law is _lex terræ_. The inflicting of punishment by the discretion
of courts for all contempts of their authority, without the intervention
of a jury, is also, I think part of the _lex terræ_, and founded in the
necessity of enforcing due respect and obedience to courts of justice,
and supporting their due dignity. The outlawing a person who absconds,
and cannot be found, so as to oblige him to answer a charge against him,
whether civil or criminal, is one of these proceedings _per legem terræ_
without a jury; of which, as I have now occasion, it will not be amiss to
give a short account, as it is in daily practice[400].
By the very antient law of England, the consequence of outlawry was very
troublesome. Not only a seizure of the person, lands and goods, was
lawful, but he was looked upon, not, merely, as one out of the protection
of the law, but also as a publick enemy; for whoever met him had a right
to slay him. This barbarous law undoubtedly proceeded hence, that no
person was then ever outlawed but for a felony; that is, a crime whose
punishment was death; but it was a most absurd thing to allow every
private person to execute the offender, who by refusing to answer has
confessed himself guilty: and the absurdity became more glaring, when,
about Henry the Third’s time, process of outlawry began to be extended
to all trespasses committed _vi et armis_, when the consequences were so
dreadful. Such extension seems surprising; yet the turbulent condition
of the times will, in some measure, account for it; when, under pretence
of dormant titles, forcible possessions, not without frequent bloodshed
and murders, were daily taken by the adherents of the king or barons, as
their respective parties prevailed. But when the times grew peaceable,
this bloody maxim wore out, and in the beginning of Edward the Third’s
reign, it was resolved by all the judges, that the putting any man to
death, except by the sheriff, and even by him without due warrant in law,
however outlawed and convicted, was murder; and since the forementioned
times, as the number of people encreased, and the opportunities of
concealment and absconding along with them, it has been found necessary
to grant the process of outlawry in many civil actions.
I shall briefly point out the proceedings therein, to shew the abundant
care the law of England takes, on the one hand, to do justice to the
plaintiff, if the defendant absconds, and will not appear; and, on the
other, that the defendant may have all possible opportunity of notice
before the outlawry be pronounced against him. First, there issue three
writs successively, to take the body of the defendant, if found in his
bailywick or county, and to bring him to answer. The first is called a
_capias_, from that mandatory word in the writ. When the sheriff cannot
find him in his bailywick, he returns a _non est inventus_ on the back
of the writ, on which there issues a second _capias_, called an _alias_,
from its reciting that _alias_, or before this, the like writ had issued.
On the same return of _non est inventus_ to this (for if upon any of
the processes the defendant is taken, or comes voluntarily in, so as to
answer, the end is obtained, and no further proceedings to outlawry go
on), the third writ issues called a _pluries_, because it recites the
sheriff had been _pluries_, that is, twice before, commanded to take him.
The sending these three writs, one after the other, in order to bring in
the party is, I presume (as, undoubtedly many of the antient practices in
our courts of law are) borrowed from the civil law; for by that law they
issued three citations, at the distance of ten days, one after another,
to call in the party to answer.
But as, upon a return of a _non est inventus_ on the third _capias_,
the personal apprehending the defendant may well be despaired of, the
law proceeds another way; in order, if possible, to give him notice,
that is by issuing the writ of _exigent_, so called from the Latin word
_exigere_, to _require_, or _call upon_. This writ commands the sheriff
to call the defendant in his county-court, where all the persons of the
county are supposed to have business, or at least some that can inform
him might have. The words are, _We command you that you cause such a one
to be required from county-court to county-court, until, according to the
law and custom of our realm, he be outlawed if he doth not appear. And if
he do appear, him to take, and safely keep, and so forth._ Now the law
and custom of the realm requires, in this case, that the party should be
called on five different county-court days, one after another, before
he can be outlawed; and these courts being held at the distance of four
weeks from each other, the interval amounts to sixteen weeks, besides the
time of the three previous _capias’s_; a time so abundantly sufficient,
as it is scarce to be presumed possible a person living in the county
should not have notice; and consequently, on his not appearing in the
fifth court, the coroners of the county, whose duty it is, give judgment
of outlawry against him.
Such is the care the common law takes to prevent outlawries by surprize.
But the act of the thirty-first of Elizabeth in England, enacted here
in the eleventh of James, had superadded another caution, namely
three publick proclamations. The reason of this superadded caution
was, I presume, on account of the dwindling of the business in the
county-courts, and, in consequence, their being not so well attended.
This writ, commanding the sheriff to make proclamation, issues with the
_exigent_, and recites it, and the cause for which the proceeding to an
outlawry is, and directs him to proclaim the party three several days;
first in the county-court, secondly at the quarter-sessions, a court of
more resort, and lastly on a Sunday immediately after Divine service, at
the most usual door of the church of the parish, where the person dwelt
at the time the _exigent_ issued; or if no church, in the church-yard of
the parish; or if no parish, at the nearest church, and all outlawries
in personal actions, where these solemnities are not observed, are
declared void.
I have been the more particular on this head, to shew the abundant care
the law has taken in these proceedings, and to vindicate it from the
common complaint, of outlawries being obtained surreptitiously, and
without notice. I am sensible such complaints are generally without
foundation; but if in any case they are just, the fault is not in the
law, but in man, in the laws not being duly executed; and if we are to
complain of the best laws, until they be in all cases perfectly and
uprightly executed, we shall never cease complaining while human nature
is what it is, weak and corrupt[401].
LECTURE XL.
_Continuation of the commentary on Magna Charta._
Having mentioned the several kinds of proceeding to judgment without
the intervention of juries, practised by the courts of common law, and
authorised under the words of this statute, _per legem terræ_, it will
be proper, before I quit this head, to say something of other kinds of
courts which do not admit this method of trial; which, yet, have been
received, and allowed authority in England; and whose proceedings,
however different from those of the common law, are justified by the
same words, _per legem terræ_. These are the courts _ecclesiastical_,
_maritime_, and _military_.
If we trace back the origin of ecclesiastical jurisdictions, we shall
find its source in that advice of St. Paul, who reproves the new
christians for scandalising their profession, by carrying on law-suits
against each other before heathen judges, and recommends their leaving
all matters in dispute between them to the decision of the _Ecclesiæ_,
or the congregation of the faithful. In the fervour of the zeal of these
times, this counsel was soon followed as a law. The heathen tribunals
scarce ever heard of any of their controversies. They were all carried
before the bishop, who, with his clergy, presided in the congregation;
and who, from the deference the laity paid them, became at length the
sole judges, as, in after ages, the bishop became sole judge, to the
exclusion of his clergy. These judges, however, being, properly speaking,
only _arbitrators_, had no coercive power to enforce their judgments.
They were obliged, therefore, to make use of that only means they had
of bringing the refractory to submission, namely, excluding them from
the rights of the church, and warning other Christians against their
company, and indeed, it was an effectual one; for what could a Christian,
despised and abhorred by the heathen, and shut out from the commerce of
his brethren, do, but submit? Besides, if he was really a Christian,
this proceeding seems founded on the words of the Apostle, “He that will
not hear the _ecclesia_, the congregation, let him be unto thee as an
heathen[402].”
Thus was _excommunication_ the only process in the primitive church to
inforce obedience, as it is in ecclesiastical courts at this day; though,
considering the many petty and trifling occasions on which they are, of
necessity, obliged to have recourse to these arms, having no other, and
the many temporal inconveniencies it may be attended with, it has been
the opinion of many wise and learned, as well as of many pious men, that
it would not be unworthy the attention of the legislature to devise some
other coercive means for the punishment of contempts, and to restrain
excommunication to extraordinary offences only. Though, if we consider
that the jealousy which the temporal courts, and the laity in general,
so justly conceived of these judicatures in the time of popery, hath not
even yet entirely subsided, there is little prospect that this or any
other regulation, to amend their proceedings, and others they do want,
will be attempted.