possession of their lands at full age, instead of _relief_, to which
subject lords were intitled, and which was only one fourth of the
value of the lands, his _primeir seizin_, which was the whole year’s
value. Another grievance was with respect to the wardship of military
tenants under age. As to the tenants _in capite_, the king had, by his
prerogative, a right not only to the wardship of the person of his minor
tenant, and of the lands he held of him _in capite_, but also of all
other lands held by knight-service of any other person. For as to socage
lands, they were to be in the hands of the next of kin, to whom the
inheritance could not descend, who, at the infant’s full age, was to be
accountable for the profits: and under the pretence of such tenants, upon
the superior lord’s escheat, becoming tenants _in capite_, John claimed
and exacted the privilege, to the detriment of the other lords. These
and other mischiefs, for others there were, as I observed before, and
some of them are mentioned in this statute, are remedied by the general
provision which restored the feudal law, that the king should hold all
such escheated lordships in the same right they were before held, and
have no other privilege, but what the lord by whose escheat they fell to
him had: in a word, that he should hold them as lord of that lordship,
not as king[414].
The thirty-second chapter relates to the alienation of lands, and gives
a qualified power of that kind. By the feudal law, as it was introduced
at the Conquest, no lord could alien his seignory without the tenants
consent, so neither could the tenant his tenancy, without approbation
of the lord. These strict rules were first broken into, in those
superstitious times, in favour of churchmen; afterwards, in Richard the
First’s time, to raise money for the holy war. Not but the subjects, by
their insisting on Edward the Confessor’s laws, of which free alienation
was a part, seemed to be fond of it. However, the kings, in all their
grants of the old English laws, were careful to preserve the feudal
system, in guarding against the alienation of the military tenures. Coke,
on commenting in this statute, in order to the better understanding
thereof, makes three observations relative to what was the common law
before this statute; in the last of which I apprehend he is mistaken, as
the law then stood; and that what he asserts therein to have been law did
not become (so though often in practice) till after the statute _quia
emptores terrarum_, in Edward the First’s reign.
His first observation is, that the tenant might have made a feoffment of
the whole, or a part of his tenancy, to hold _of himself_; and no doubt
but he might. This was the usual case of subinfudation, by which the
lord was in no sort prejudiced; for his seignory remained entire, and he
might distrain in any part for his whole service; and in such case, if
the under tenant was aggrieved, he was to have his remedy against his
immediate landlord the _mesne_, (or middle person), as he is called in
our law.
The second observation is, that the tenant could not alien in fee _apart_
of the tenancy, to hold, not of himself, but of the lord, than which
nothing could be more reasonable; for it would have been against these
old rules also, for a tenant to bring in another, as immediate vassal to
the lord, without his the lord’s consent. The tenant would by that means
dismember the seignory, which he received, entire, and so deprive the
lord of his right of distraining in the whole, and confine him merely to
that part remaining in his own hands, as original tenant. For as to the
part of the _allienee_, he could not distrain that for his service, there
having been no feudal contract between them. Such alienation, therefore,
unless when the lord accepted the _allienee_ as a tenant, was a breach of
fealty, and against the old feudal principles, and consequently unlawful
in England.
The third observation Coke makes on this statute, is, that by the common
law the tenant might have made a feoffment of the whole tenancy, to be
holden of the lord. For, says he, that was no prejudice at all to the
lord[415]. But though this certainly prevailed as common law, long before
either Coke or Littleton wrote, I cannot help thinking, both because
it was contrary to the old feudal law, and also from the words of the
statute _quia emptores terrarum_, that it was first introduced by that
act of parliament, the words of which are, _de cætero liceat unicuique
libero homini terras suas, seu tenementa sua vel partem, inde vendere_.
Here the alienating the whole is declared from henceforth lawful; which
words had been nugatory, if this had been common law before.
The chapter of _Magna Charta_ of which we are speaking, was, then, the
first positive law that allowed the free alienation of lands. It, in one
sense, enlarged, whilst in another it expressly restrained, the power
of the tenant; whereas, before, he might alien the whole, or part of
his tenancy in fee, but subject to the distress of the lord. Now, by
this statute, he was confined to an alienation only for so much, that,
out of what remained, the lord might have sufficient distress for his
entire service, and the part conveyed was in the _alienee_’s hands, free
from any future distress by the lord, or service due to him, fealty
only excepted. But it not being specified, how much of the land was
a sufficiency, though the half, or what was the half in value, was,
in common estimation, reputed such, the tenants, under this pretence,
would alien more; which gave occasion to many disputes and suits, and
the propensity to general alienations continuing, the law called _quia
emptores terrarum_, already mentioned, was at length made, which gave
a general licence to alien the whole, or a part at pleasure, to hold
of the superior lord; and this put an end, in the law of England, to
subinfudation of fee simples. For, since the passing that law, if a man
infeoffs another of the whole or part of his land, there is no tenure
between the feoffer and feoffee, but the feoffee holds of the feoffer’s
lord. But as to lower estates, as fee tail estates for life, years, or at
will, subinfudation remains; because the whole estate is not out of the
donor, or lessor, but a reversion remains in him; wherefore the tenure,
in such case, is of the donor or lessor.
By the statute of _Magna Charta_, in case of alienation of part, to hold
of the lord, the residue remaining in the original tenant’s hands, was
to answer the services, and the _alienee_ held of the lord, by fealty
only. But now by the second chapter of the forementioned statute, the
services were to be apportioned, that is, divided in proportion to the
value of the lands. If half of the lands, not in _extent_, but _value_,
was aliened, the _alienee_ paid half: if one third, the like quantity.
I have observed before, on this statute of _quia emptores_, that the
king, not being named, was not bound by it. For his tenant _in capite_
to alien without licence was a forfeiture, until, in the reign of Edward
the Third, a fine for alienating was substituted in the place of the
forfeiture, which fine continued until the restoration, when it was
abolished.
The thirty-third chapter provides, that the patrons, that is, the heirs
of the founders of abbeys, who, by title under the king’s letters patent,
or by tenure, or antient possession, were intitled to the custody of
temporalities, during the vacancy of the abbey, should enjoy them free
from molestation of any person, or of the king, under the pretence of the
prerogative[416].
The thirty-fourth chapter is relative to appeals of murder, brought
by private persons. When a man is murdered, not only the king, who is
injured by the loss of a subject, may prosecute the offender, but also
the party principally injured, that is, the widow of the deceased, if he
had one; for she, as having one person with him, stands intitled to this
remedy in the first place; but if he left no widow, his heir at law might
pursue it. It follows, therefore, that a female heir might, by the common
law, have brought an appeal of murder, as the daughter, or the sister, if
there had been neither children or brother. But this statute alters the
common law, and takes away the appeal, in such case, from every woman,
except the widow; so that, at this day, if a man be murdered, leaving
no widow, and his next heir be a female, no appeal of murder can be
brought. But this disability is personal to women; for though a daughter
or sister, living, can bring no appeal, though heir, yet, if they be dead
before the murder, leaving a son who is heir, he may bring it[417].
I shall now make a few observations on the right of the widow’s bringing
such appeal. First, then, the man slain must be _vir suus_, as the
statute expresses it. If, therefore, they had been divorced, the marriage
being dissolved, she could not have an appeal. It was otherwise, if they
had been only separated _a mensâ & thoro_; for then he still continued
her husband. He ceases likewise to be _vir suus_, if she ceases to be his
wife, or widow. Therefore, by her marrying again, her appeal is gone,
even though the second husband should die within the year, the time
limited for bringing it. This is carried so far, that though she brings
an appeal while a widow, yet if she marries while it is depending, it
shall abate for ever. So if she has obtained judgment of death against
the _appellee_, if she marries before execution, she can never have
execution against him. In one point the heir is less favoured in appeals
than the widow; for if the person murdered had been attainted of high
treason, or felony, so that his blood was corrupted, the heir could not
have it; for the civil relation between them was extinguished, by the
ancestor’s civil death: but the relation of husband and wife depends on
the law of God, who has declared the bond indissoluble; therefore no law
of man can make him cease to be _vir suus_, and, in such case, she shall
have an appeal.
The thirty-fifth chapter treats of the county-courts[418]; but having
already, in a former lecture, mentioned what appeared to me sufficient
on that subject, I shall proceed to the next, viz. the first law made to
prevent alienations in mortmain. Lands given to a corporation, whether
spiritual or lay, are said to fall into _mortmain_, that is, into a dead
hand, an hand useless and unprofitable to the lord of the fee, from whom
he could never receive the fruits. There could be no escheat, either for
want of heirs, or felony, because the body never died, nor was capable of
committing felony. For the same reason of its never dying, there could
be no wardship, or relief; neither could there be marriage. But besides
the loss to the lords, the public also suffered; for the military service
the lands were subject to, were often withdrawn, or, at least, very
insufficiently performed.
These alienations, without the consent of the superior lord, were
directly against the feudal polity; yet such was the power of the clergy,
who were the principal gainers thereby, in those ages, and so great
their influence, that they were not only tolerated, but universally
practised, through all Europe; for the founding of a monastery was the
usual atonement for the most atrocious crimes. In England, particularly,
from the accession of the Conqueror to that of John, containing one
hundred and thirty-four years, there were no less than an hundred and
four monasteries founded, many of them very richly endowed, besides
particular benefactions made to them and the old ones. No wonder, then,
it was found necessary, by laws, to put a stop to the growing wealth
of the church; but the reign of John, a vassal to the Pope, was not a
time to expect a remedy. Accordingly, this act goes no farther than to
remedy a collusive practice, by which a vassal, to defraud his lord of
the fruits of his seignory, made over his lands to a convent, and took it
back to hold from them; and to that end, the statute declares the land,
in such case, forfeited to the lord.
I shall say no more on this point, nor of the many cunning practices
churchmen, in after times, put in use by the advice of the most learned
lawyers they could procure, in order to creep out of this, and every
other statute made to restrain them, and for employing which, Coke says,
they were much to be commended. But he has forgot to tell us whether he
thought those great lawyers deserved commendation, for finding means
to elude the most beneficial laws of the land. It will be enough here
to say, that, from these devices, arose, in time, the wide-spreading
doctrine of _uses and trusts_, which have over-run our whole law, and
that the judicial powers of courts of equity have grown with them[419].
The next chapter was made to restrain the intolerable exactions of
_escuage_ which John had introduced, and forbids the assessing it, in any
other manner than was used in the time of Henry the Second, his father,
that is, as I observed under that reign, very moderately; so that every
man had his option, whether he would serve in person, or pay it[420].
Next comes the thirty-eighth, which is the conclusion. First, it saves
to the subjects all other rights and privileges before had, though
not mentioned herein. Coke observes, that there is no saving for the
_prerogative of the king_, or his heirs; for that would have rendered all
illusory. Secondly, it ordains that the king and his heirs should observe
it. Thirdly, that all the subjects should. Fourthly, it recites, that,
in consideration hereof, the king received from the subjects a grant
of the fifteenth of their moveables. For _Magna Charta_ is not merely
a declaration of the old laws, but alters them in many instances; for
which favourable alterations the subjects made this grant, and thereby
became purchasers of them. Fifthly, it prohibites the king, and his
heirs, from doing any thing whereby these liberties might be infringed or
weakened; and declares all such doings null and void. Lastly, comes the
alteration of twelve bishops, and nineteen abbots, and thirty-one earls
and barons[421].
FOOTNOTES
[1] Cæsar de bell. Gal. lib. 4. c. 18. Tacit. vit. Agric. Dion Cassius,
vit. Sever.
[2] Bede, lib. 1.
[3] Bede, lib. 3. and 5.
[4] The division of laws, during the Anglo-Saxon period, into
West-Saxon-lage, Mercen-lage and Dane-lage, was not of any importance.
These differed not essentially from one another. “Our Saxons, says Sir
Henry Spelman, though divided into many kingdoms, yet were they all one
in effect, in manners, laws and language: So that the breaking of their
government into many kingdoms, or the reuniting of their kingdoms into
a monarchy, wrought little or no change amongst them touching laws.
For, though we talk of the _West-Saxon-law_, the _Mercian-law_ and the
_Dane-law_, whereby the west parts of _England_, the middle parts, and
those of _Norfolk_, _Suffolk_ and the north, were severally governed;
yet held they all an uniformity in substance, differing rather in their
_mulcts_ than in their _canea_; that is, in the quantity of fines and
amerciaments, than in the course and frame of justice.” _Relig. Spelm._
p. 49.
[5] King Edward’s laws were compiled from those of former princes, and
abolished any little peculiarities which distinguished the West-Saxon,
Mercian and Danish laws, subjecting the whole kingdom to a common law.
His code, accordingly, was termed _lex Angliæ_, or _lex terræ_. No
correct copy of it has descended to us. Those regulations, which pass
under his name in the editions of the Saxon-laws by Lambard and Wilkins,
have evidently some interpolations. Traces of them are to be seen in
Hoveden and Knyghton; and remains of them are likeways to be found in the
laws of William I. From the time of this Prince to that of King John,
they continued, with the addition of some Norman laws and customs, the
law of the land. _Præcipimus_, says William, _ut omnes habeant et teneant
leges Edwardi regis in omnibus rebus, adauctis his quas constituimus
ad utilitatem Anglorum_. _Leg. Guliel. ap._ Wilkins, p. 229. By the
influence of the Barons under the last Prince, they were drawn up in
the form of _Magna Charta_. For the _great charter_ was not what some
partial writers have represented it, a concession of privileges extorted
by violence, but a declaration of the principal grounds of the _antient_
and fundamental laws of England, and a correction of the defects of the
common law. See _Lord Coke 2 Inst._ and _Lord Lyttelton’s hist. of Henry
II. vol. I._ p. 42. 526.
[6] _Wittenagemot_, imports a council of wise men; the Saxon word _witta_
signifying a wise man; and the British word _gemot_ expressing a synod or
council. During the Heptarchy, each kingdom had its _Wittenagemot_.
[7] The lay lords were the earls, thanes, and other nobility of the
kingdom. The spiritual lords were the bishops and dignitaries of
the church, whose possessions were held in Frankalmoigne. After the
conquest, they were subjected to military service and held by barony.
What may seem extraordinary, Abesses were also in use to sit in the
Saxon Wittenagemots. In Wightred’s great council at Beconceld, _anno_
694. the Abesses sat and deliberated, and several of them subscribed the
decrees made in it. _Spel. conc. vol. I._ The abesses appeared also in
Ethelwolf’s parliament at Winchester _anno_ 855. _Ingulph, edit. Savil._
862. And king Edward’s charter to the abbay of Croyland was subscribed
by an abbess. Even in the time of Henry III. and in that of Edward I.
it appears that four abbesses were summoned to parliament; those of
Shaftsbury, Berking, St. Mary of Winchester, and of Wilton. _Tit. hon. p.
729, and Whitelock’s notes upon the king’s writ for choosing members of
Parliament, vol. I. p. 479. 480._
[8] The preambles of the Saxon laws express an anxiety to please the
people, and allude to their consent in enacting them. The laws of king
Ina begin thus: _Ego Ina Dei gratia Occiduorum Saxonum Rex, cum consilio
et cum doctrina Cenredæ patris mei, et Heddæ Episcopi mei, et cum omnibus
meis senatoribus, et senioribus SAPIENTIBUS POPULI MEI, et multa etiam
societate ministrorum Dei, consultabam de salute animæ nostræ, et de
fundamento regni nostri, ut justæ leges, et justa statuta per ditionem
nostram stabilita et constituta essent, ut nullus senator nec subditus
noster post hæc has nostras leges infringeret_. See _LL. Anglo-Saxon,
ap. Wilkins, p. 14._ The preambles to the laws of the other princes are
nearly similar; and those of Edgar, Ethelred and Canute, may serve as
additional examples. 1. Leges Eadgari regis. _Hoc et institutum quod
Eadgarus cum SAPIENTUM SUORUM consilio instituit in gloriam Dei, et sibi
ipsi in dignitatem regiam, et in utilitatem omni populo suo_. 2. Leges
Æthelredi regis. _Hoc est consilium quod Æthelredus rex, et SAPIENTES
EJUS consultaverunt ad emendationem pacis omni populo Wodstoci in regione
Merciorum, secundum Angliæ leges_. 3. Leges Cnuti regis. _Hoc est
consilium quod Cnutus rex, totius Angliæ et Danorum et Norwegorum rex,
cum SAPIENTUM SUORUM consilio sancivit, in laudem Dei, et sibi ipsi in
ornamentum regium, et ad utilitatem populi; et hoc erat sacris natalibus
domini nostri Wintoniæ_. See _Wilkins_, p. 76. 102. 126.
In the 8th law of Edward the Confessor we read, _Hæc concessa sunt a
rege, baronibus et POPULO_; and in his 35th law we have the following
words: _Hoc enim factum fuit per COMMUNE CONSILIUM et ASSENSUM omnium
episcoporum, principum, procerum, comitum, et omnium SAPIENTUM seniorum
et POPULORUM totius regni, et per præceptum regis Inæ prædicti._ See
Wilkins, p. 198. The laws of Edward are, I know, to be read with
distrust; but they are allowed to contain genuine relics of that prince;
and, in the present case, there seems no reason for suspicion. Their
_appeal_ of consequence to the _assent_ of the _people_ must be allowed
to be of authority. For, if such _assent_ was not known and believed in
that age, how is it possible that they could appeal to it? The advocates
for the late origin of the house of commons will not surely suppose, that
the Confessor alluded prophetically to transactions which were not to
happen till the reigns of Henry III. and Edward I.
In the _Mirroire de Justices_, it is expressly said, that no king, during
the Saxon times, could change his money, nor enhance nor impair it, nor
make any money but of silver, without the _assent_ of the _Lords_ and
all the COMMONS. Part of this book is conceived by Sir Edward Coke to
have been written before the conquest; and additions were made to it
by Andrew Horn in the reign of Edward I. from old MSS. the authors of
which must have seen ancient rolls and records. Matter, also, from more
exceptionable materials, it is to be thought, was superadded by him. The
book is notwithstanding of considerable weight and authority. _Mirroire
des Justices_, cap. 1. sect. 3. _Atkyns on the power of parliament._
Concerning the high antiquity of the _commons_, Sir Edward Coke is
clear and explicit; and he has founded chiefly his opinion on the
ancient tract, which bears this title: _Modus quomodo parliamentum regis
Angliæ et ANGLORUM SUORUM, tenebatur TEMPORIBUS REGIS EDWARDI, filii
REGIS Ethelredi, qui modus recitatus fuit per discretiores regni coram
Willielmo duce Normanniæ conquestore et rege Angliæ, ipso conquestore hoc
præcipiente, et per ipsum approbatus, et suis temporibus et temporibus
successorum suorum regum Angliæ usitatus._ Other authors beside Lord
Coke have paid great respect to this treatise. It is to be acknowledged,
however, that Mr Selden has demonstrated that this tract could not
possibly be of the age of the Confessor, from its employing terms which
were not in use till long after. But this does not wholly derogate
from its force as to the point in question. For, allowing it to have
been written in the reign of Edward III. the period which, with great
probability, some writers have assigned to it, it yet proves that the
sense of that period was full and strong with regard to the antiquity
of the constitution, as consisting of king, lords and _commons_; a
circumstance which must have great weight in opposition to those, who
would make us believe, that our constitution, as so formed, was unknown
till the times of Henry III. and Edward I. _4 Institute_, _p._ 2. 12.
_Selden_, _tit. hon._ _p._ 739. 743.
“In the time of king Canutus, says Whitelocke, to a charter then graunted
to the monastery of St. Edmond’s Bury (probably in a publique councell)
after the subscriptions of the queen and dukes, followes, _I Oslaus,
KNIGHT_, _I Thored, KNIGHT_, _I Thurkell, KNIGHT_, and so of others. How
many these were, or how for several counties, doth not appear; nor in
that parlement of the same king (for so is testified by the discription
of it) where it is sayd, that _the king calling all the prælats of his
kingdome, and the nobles, and great men to his parlement_, there were
present bishops, abbots, dukes, earles, _with many MILITIBUS_, butte
the certain number is not extant; nor of those which are mentioned in
the parlement of Edward the Confessor, where after the king, queen,
archbishops, bishops, abbots, king’s chapleins, Thaines, KNIGHTS are
reckoned in that parlement.” _Notes upon the king’s writ_, vol. I. p. 437.
Lambard, Dugdale, and other antiquaries, produce a very strong evidence
of the antiquity of the representation of boroughs, by evincing, “That in
every quarter of the realm, a great many boroughs do yet send burgesses
to parliament, which are nevertheless so ancient, and so long since
decayed, and gone to nought, that it cannot be shewed that they have been
of any reputation at any time since the Conquest; and much less that
they have obtained this privilege by the grant of any king succeeding
the same. So that the interest which they have in parliament groweth
by an ancient usage before the Conquest, whereof they cannot shew any
beginning.” _Lambard Archeion_, _p._ 256. 257. _Coke Epist._ 9. _Rep.
Dugdale, Jurid._ _p._ 15.
This matter receives confirmation from what we are told of the _boroughs
of ancient demesne_. “These, says Whitelocke, were tenants of the demesne
lands of William I. and of Edward the Confessor; who (to the end that
they might not be hindered from their business of husbandry of the
king’s lands) had many privileges, whereof one was, that they should not
be compelled to serve in parliament. Another was, that they should not
contribute to the wages of KNIGHTS OF THE SHIRE. Which privileges they
still enjoy, and had their beginning in the times of William I. and of
the Confessor, whose tenants they first were, as appears in the book of
Domesday, and is a strong proof, that KNIGHTS and BURGESSES were then in
parliament.” _Notes upon the Kings Writ_, vol. II. p. 139.
See also the 22d note to the present tract.
[9] The law was not then a particular profession.