Lecture XLIII Continuation of the Commentary on Magna Charta
As I have dwelt on the twenty-ninth chapter of Magna Charta so long, and treated of it and every part of it so minutely, I shall, in this lecture, dispatch the remaining part thereof with more expedition. Indeed, of the thirty-first I would have said no more, than merely to observe, that it related to the military tenures now abolished, were it not proper to remark, that it was made to enforce the old feudal law, then the law of England, with respect to landed estates, and to restrain John’s successors from the violences he had introduced in favour of the royal prerogative, to the detriment of the immunities and privileges of the subjects. It has been already observed in these lectures, that by the feudal law, especially as established by the Conqueror in England, the king was very amply provided for with a landed estate, to support his dignity and expences, which was at that time looked on all over Europe as unalienable, except during the life of the king in being; and that the rest of the land was to be the property of the free subjects of the realm, subject to the services imposed, and the other consequences of his seignory as feudal lord.
One of these consequences was the escheat on the failure of heirs, either by there being none, or by the blood being corrupted by the commission of felony, which in law amounted to the same thing; as no son, uncle, nephew, or cousin, could by law claim as heir by descent to a person attainted. For the legal blood, the title to the inheritance, failed in him the last possessor, by his breach of fealty; and every heir lineal or collateral by the law of England being obliged to claim as heir to the person last seized, must be excluded, when the legal blood inheritable failed in the last possessor.
In consequence of these escheats, which often happened in those times, both by corruption of blood, and failure of heirs inheritable, (for, as I have observed before, the granting feuda antiqua ut nova was introduced only by Henry the Second, the father of John, and were not at this time become universal, as they since have been) John introduced this new maxim, that when an earldom or barony fell to the crown by escheat, he held it in the right of his crown, as it was originally derived from thence; and consequently, that the tenants of the former lord, being now, instead of intermediate, become immediate tenants of the crown, held of him in capite, as it was called; that is, that he, by this escheat, obtained privileges over the tenants of the former lord, which he, the former lord, never had, or could have, but which he claimed as king, in jure coronæ. These privileges were many in number; but it will be sufficient to mention only two of them, to shew into how much worse a state the tenants of these escheated lordships were thrown, by being considered as tenants in capite.
First, then, the king had from his tenants in capite, who came into 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 king414.
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 lord415. 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 prerogative416.
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 it417.
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-courts418; 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 them419.
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 it420.
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 barons421.
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.
10 On the following record in the register of Ely, this notion seems to be founded. Abbas Wulfricus habuit fratrem, Guthmundum vocabulo; cui filiam præpotentis viri in matrimonium conjungi paraverat; sed quoniam ille XL. hidarum terræ dominium minus obtineret, licet nobilis esset, inter proceres tunc nuncupari non potuit. It is somewhat remarkable, that Mr Hume is among those, who, resting on this foundation, would make us conceive, that a person who had 40 hides of land, could, without being noble, give his voice in the Wittenagemot. Hist. of Eng. vol. I. p. 145. The passage, however, properly understood, serves to shew, that, in the course of time, the attendance of the Nobles in parliament, having been deemed an expensive service, a law was made to relieve those of them from it who were not possessed of 40 hides of land. The reader may consult hist. Eliens. c. 36. 40. ap. Gale, the authority appealed to by Mr Hume.
11 It is perhaps impossible to ascertain the æra of this invaluable institution. It loses itself in a distant antiquity. The Saxon laws mention it as a known invention. See LL. Ethelr. c. 4. Senat. Consult. de Mont. Wal. c. 3. ap. Wilkins. See also Nicolson, Præfat. ad Leg. Anglo-Sax. Spelm. Gloss. and Coke’s 1st Institute. Olaus Wormius traces it to a remote age among the Danes; and Stiernhook among the Swedes. Monument. Dan. lib. 1. c. 10. De Jure Sueon. et Goth. vetusto. c. 4.
12 Annal. lib. 14. c. 33. Copia negotiatorum et commeatuum maxime celebre. The city of London in the Danish times was able to pay L. 11,000 as its proportion of L. 70,000, a tax then imposed on the nation. Asser, in the life of Alfred, refers to above 120 cities, boroughs and villages.
13 Lib. 1. See also Holingh. Chron. p. 192.
14 Spelman, life of Alfred, b. 2. p. 28. Malmesb. lib. 2. c. 4. A writer in Du Chesne having occasion to mention the first return of duke William to Normandy, after his invasion of England, has the following passage: Attulit quantum ex ditione trium Galliarum vix colligeretur argentum atque aurum: Chari metalli abundantia multipliciter Gallias terra illa [Anglia] vincit. Gest. Gul. Conques. p. 210.
15 LL. Anglo-Saxon. ap. Wilkins, p. 71.
16 The Confessor dying without issue, the competitors for the crown were Edgar Atheling, Harold, and duke William. The first had not capacity to sway the sceptre; and the succession of kings was not yet directed by very regular maxims. Harold was a subject, and in possession of no legal claim. William was related to Edward, and urged the destination of that prince to succeed him. On these grounds he invaded England; and by opposing Harold, he meant to secure what was his right of succession. His victory accordingly gave him the capacity of a successor, and not of a conqueror. That the quarrel was personal with Harold may be even conceived from the circumstance that duke William offered to decide their dispute by single combat. Hale, hist. of the com. law, ch. v. Cook, argument. antinorm.
With regard to William’s right of succession, the best account appears to be that which is found in Ingulphus, William of Poictiers, William Gemetensis, and Ordericus Vitalis, who were all of them his contemporaries. These authors inform us, that king Edward sent Harold into Normandy to assure duke William of his having destined him to be his successor to the crown of England; a destination which he had before observed to him by Robert Archbishop of Canterbury; and which appears to have been made with the consent of the national council. And of this relation there remains a very curious and decisive confirmation. It is a tapestry found at Bayeux, and supposed to be work of Matilda the wife of duke William, and of the ladies of her court, in which Harold is represented on his embassy. See a description of this tapestry by Smart Lethieullier, Esq; ap. Du Carrel’s Anglo-Norman antiquities. It is surprising, when these particulars are considered, that Mr. Hume should have given his sanction to the opinion that William’s right was entirely by war, and that he should have conceived that those who refuse to this prince the title of Conqueror should rest solely or chiefly on the pretence that the word conqueror is in old books and records applied to such as make an acquisition of territory by any means. Hist. of Eng. vol. 1. p. 200. It is true, that Sir Henry Spelman and other antiquaries have shown, that conquestus and conquisitio were in the age of duke William synonymous with acquisitio; but it is no less true, that the authors who refuse to duke William the title of Conqueror, rest on much superior evidence. It is not with pleasure that I differ from this great authority; but, no man has a title to enquire who will not think for himself; and the most perfect productions of human wit have their errors and their blemishes.
17 See farther, an Historical Dissertation concerning the antiquity of the English constitution. Part 2.
18 Ibid.
19 Ibid.
20 It is a very curious fact, that even some of the Anglo-Saxon nobles had all the prerogatives of earls-palatine. Alfred, we are told, put to death one of his judges for having passed sentence on a malefactor for an offence which had been committed where the king’s writ did not pass. Mirroire de Justices, ch. v. And in Selden we meet with earls who had entirely the civil and criminal jurisdiction in their own territories. Tit. Hon. part 2. ch. v. If there were no other proofs than these, they would be sufficient to evince the reality of fiefs among the Anglo-Saxons.
21 Madox, hist. of Excheq. Erant in Anglia quodammodo, says an old writer concerning the age of Stephen, tot reges vel potius tyranni, quot domini Castellorum. Gul. Neubrigens.
22 Civitas London. habeat omnes antiquas libertates et liberas consuetudines suas tam per terras quam per aquas. Præterea volumus et concedimus quod omnes aliae civitates et burgi et villae et portus habeant omnes libertates, et liberas consuetudines suas. Magna charta ap. Blackstone, Law Tracts, vol. III. p. 21.
23 They had suffered considerably, even from the time of the Confessor to that of Domesday-book. Authors ought therefore to be cautious in reasoning back from that monument to the Saxon period. It is a pity, that the survey of the kingdom taken by Alfred did not yet remain. The comparison of it with that of William would lead to very curious discoveries.
24 The first summons of knights extant on record is supposed to be in the 49th of Henry III. But this, though it were true, does not prove that knights were not known till that time. The writ does not say so; nor can it be gathered from it, that knights of the shire were then newly established. If there remained, indeed, an uniform series of records from the earliest times, in which there was no mention of knights till the age of Henry III. there might thence arise a strong argument against their antiquity. But this is not the case; and it happens, that in the 15th year of king John, there is a writ to the sheriff to summon four knights of the county; 15. Jo. Rs. rot. claus. pt. 2. m. 7. dorso. 4 discretos milites, de comitatu suo, ad loquendum nobiscum. There is also similar evidence, that in the 32d and 42d years of Henry III. knights made their appearance in parliament. Whitelocke, Notes, vol. I. 438. vol. II. 120. In the close roll, also, of the 38th year of Henry III. there is extant a writ of summons directed to the sheriffs of Bedfordshire and Buckinghamshire, requiring two knights to be sent for each of these counties. Lyttelton, Hist. Henry II. notes to the 2d book, p. 70. 79. In ancient times, it was usual to summon sometimes four knights, sometimes three, sometimes two, and even sometimes one knight. But from the reign of Edward III. it has been the constant practice for the sheriff to return two knights for each county. Whitelocke, vol. I. 439.
The first summons directed to the sheriff for the election of citizens and burgesses, is supposed to be in the 23d of Edward I. But in the sixth year of king John, says Whitelocke, there is extant on record a writ to the sheriff, which mentions “Bishops, earls, barons, and all our faithful people in England; by whose assent, lawes were then made.” 6. Jo. regis, rot. claus. m. 3. dors. et rot. pat. m. 2. Assensu archiepis. &c. et omnium fidelium nostrorum Angliæ. Notes on the king’s writ, vol. II. p. 120. An ordinance in this year of king John, directed to all the sheriffs in England, is mentioned from the records by Sir Robert Cotton, and has these words: Provisum est assensu Archiepiscoporum, comitum, baronum, et omnium fidelium nostrorum Angliae. Cotton. posth. p. 15.
In the conventio inter regem Johannem et barones the people are stated as parties; a circumstance which would not have happened if they had not been represented. Hæc est conventio facta inter dominum Johannem regem Angliæ ex una parte, et Robertum filium Walteri Marescallum, &c. et liberos homines totius regni ex altera parte. Blackstone’s Edition of the charters, ap. Law Tracts, vol. II. p. 39. 40. And what confirms this notion is, that we find the mayor of London and the constable of Chester in the list of those who were chosen conservators of the public liberties in consequence of the great charter. Other proofs, likeways, of the antiquity of the commons are to be found in the great charters. See Lyttelton, Hist. Henry II. Notes to the 2d book, p. 71.
It is also worthy of notice, that the 25th of Edward I. which confirms the great charter, observes, that it was made by the common assent of all the realm: And the 15th of Edward III. observes, that it was made par le roy, ses piers, et la communalté de la terre.
Nor must it be omitted, that the 5th of Richard II. has this remarkable passage: The king doth will and command, and it is assented in the parliament, by the prelates, lords and commons, that all and singular persons and commonalties, which from henceforth shall have the summons of the parliament, shall come from henceforth to the parliaments in the manner as they are bound to do, and have been accustomed within the realm of England of old times. And if any person of the same realm, which from henceforth shall have the said summons (be he archbishop, bishop, abbot, prior, duke, earl, baron, banneret, knight of the shire, citizen of city, burgess of borough, or other singular person, or commonalty) do absent himself, and come not at the said summons (except he may reasonably and honestly excuse him to our lord the king) he shall be amerced, and otherwise punished, according as of old times hath been used to be done within the said realm in the said case. And if any sheriff of the realm be from henceforth negligent in making his returns of writs of the parliament; or that he leave out of the said returns any cities or borough which be bound and of old time were wont to come to the parliament, he shall be amerced, or otherwise punished in the manner as was accustomed to be done in the said case in times past. Stat. 2. cap. 4.
The expression “of old time,” so often used here, must doubtless carry us farther back than the 23d of Edward I. or even the 49th of Henry III. The space of two or even three reigns does not make a period of antiquity. We do not say, that the accession of George I. was in ancient times.
I know well, that the expressions commonalty, communitas regni, baronagium Angliæ, magnates, nobiles, proceres, &c. have been considered as solely applicable to barons and tenants in capite. But one must beware of giving credit to this opinion. The great charter of king John bears to have been made per regem, barones et liberos homines totius regni; a certain proof that it was not made by the king and the barons only; yet Henry III. speaking of this parliament, calls it baronagium Angliæ. The magnates and proceres are said to have made the statute of Mortmain; but it is well known, that the parliament which gave authority to this act consisted of king, lords and Commons. In the 35th of Edward I. the expression cum comitibus, baronibus, proceribus, nobilibus, ac communitatibus, evidently refers to knights, citizens and burgesses: And in the 14th of Edward III. commonalty and Commons are used as synonymous. See farther, Whitelocke, vol. II. ch. 81. Coke, 2nd Inst. 583. Petyt, Rights of the Commons. Atkyns, on the power and jurisdiction of parliament.
Mr Hume, I am sensible, strenuously asserts the late origin of the Commons; and one would almost imagine, that his history of England had been written to prove it. His reasonings, however, on constitutional points, do not appear to me to be always decisive; and it is with pain I observe the respect which this great man has paid to the opinions of Dr Brady; a writer who is known to have disgraced excellent talents, by pleading the cause of a faction, and giving a varnish to tyranny.
The brevity which was necessary to this tract, has permitted me rather to hint at, than to treat the antiquity of the Commons. In a work which I hope one day to lay before the public, I shall have an opportunity of entering into it at greater length.
25 Hist. Dissert. concerning the antiq. of the Engl. constitut. part 2.
26 Madox, Hist. of the Excheq. Bar. Angl. The granting of supplies to the sovereign, naturally suggested to the people the petitioning for redress when under the pressure of any grievance; and the crown, where it expected much, would not naturally exercise a rigorous severity.
The term petitioners indeed, has, by some authors, been considered as reproachful to the Commons; but how a petition, as the spring of a law, could have meanness in it, is inconceivable. Even in the free age of Charlemagne, this mode of application was employed. Baluz. capit. reg. Franc. tom. 1. The behaving with reverence to the sovereign is very different from acting with servility. And as to the petitioning against grievances, it is to be remembered, that respectful requisitions of ancient and constitutional privileges, which had suffered invasion, are not to be considered as mean solicitations for acts of favour.
27 Conf. Cart. an. 25. Ed. I. It is singular, that even after the times of Edward I. some writers will not allow, that the Commons were any essential branch of the legislature; yet the writ of summons expresses in strong terms their right of assent: Ad audiendum et faciendum et consentiendum; and a multitude of examples may be produced of their actually consulting and determining about peace and war and other important matters of state.
There is evidence that Edward I. called a parliament, and consulted with the Lords and Commons about the conquest of Wales; and that on receiving information that the French King intended to invade some of his dominions in France, he summoned a parliament ad tractand. ordinand. et faciend. cum prælatis, proceribus et aliis incolis regni quibuslibet, hujusmodi periculis et excogitatis malis sit objurand. Inserting in the writ these memorable words, Lex justissima, provida circumspectione stabilita: Quod omnes tangit, ab omnibus approbetur.
Edward II. consulted with his people in his first year pro solemnitate sponsalium et coronationis; and in his sixth year he consulted them, super diversis negotiis statum regni et expeditionem guerrae Scotiae specialiter tangentibusA.
Edward III. summoned the peers and Commons in his first year to consult them, Whether they would resolve on peace or war with the Scottish king. In his sixth year, he assembled the lords and Commons, and required their advice, Whether he should undertake an expedition to the Holy Land. The lords and Commons consulted accordingly; and while they applauded his religious and princely forwardness to the holy enterprize, advised a delay of it for that season. In his thirteenth year, the parliament assembled avisamento prælatorum, procerum, necnon communitatis to advise de expeditione guerrae in partibus transmarinis; and ordinances were made for provision of ships, arraying of men for the marches, and defence of the isle of Jersey. In his fortieth year, the Pope demanding the tribute of king John, the parliament assembled, where, after consultation apart, the prelates, lords and Commons advise the refusal of it, although it be by the dint of the sword.
Richard II. in the first year of his reign, advised with the peers and Commons, How he should best resist his enemies? In the second year, he consulted his people how to withstand the Scots; who had combined against him with France. In the sixth year, he consulted the parliament about the defence of the borders; his possessions beyond sea, Ireland and Gascoyne, his subjects in Portugal, and safe keeping of the seas; and whether he should proceed by treaty or alliance, or the duke of Lancaster by force? The lords approved the duke’s intention for Portugal; and the Commons advised, that Thomas bishop of Norwich, having the Pope’s croiceris, should invade France. In his fourteenth year, this prince advised with the lords and Commons for the war with Scotland, and would not, without their counsels, conclude a final peace with France. And the year ensuing the Commons interested the king to use moderation in the law of provisions, and proposed that the duke of Aquitaine should be employed to negotiate the peace with France.
With regard to the power of the Commons as to judicature in the times of which we speak, there are not wanting decisive proofs. In the reign of Edward II. the peers and Commons gave consent and judgment to the revocation and reversement of the sentence of banishment of the two SpencersB. In the first year of Edward III. when Elizabeth the widow of Sir John de Burgo complained in parliament, that Hugh Spencer the younger, Robert Baldock and William Cliffe his instruments, had by duress forced her to make a writing to the king, in consequence of which she was despoiled of her inheritance, sentence was given for her by the prelates, lords and Commons. In the 4th year of Edward III. it appears by a letter to the pope, that to the sentence given against the earl of Kent, the Commons were parties as well as the peers, for the king directed their proceedings in these words: Comitibus, magnatibus, baronibus, et aliis de communitate dicti regni ad parliamentum illud congregatis injunximus, ut super his discernerent et judicarent quod rationi et justiciæ conveniret. When in the first year of Richard II. William Weston and John Jennings were arraigned in parliament for surrendering certain forts to the king; the Commons were parties to the sentence against them, as appears from a writing annexed to the record. In the first year of Henry IV. although the Commons refer by protestation, the pronouncing the sentence of deposition against King Richard II. to the lords, yet they were equally interested in it, as is evident from the record; for there were made proctors or commissioners for the whole parliament, one bishop, one earl, one abbot, one baronet, and two knights. “And to infer, says a learned and accurate authorC, that because the lords pronounced the sentence, the point of judgment should be only theirs, were as absurd as to conclude that no authority was left in any other commissioner of oyer and terminer than in the person of that man solely that speaketh the sentence.” In the second year of Henry V. the petition of the Commons imported no less than a right to act and assent to all things in parliament; and the king allowed that they possessed this right.
These examples of the importance of the people are striking; and they are supported by the authority of the parliament-rolls, or by records above exception. The curious reader may see them, and other proofs to the same purpose, in the posthumous pieces of Sir Robert Cotton.
A In his history of this prince, Mr Hume has the following very strange assertion: “The Commons, though now an estate in parliament, were yet of so little consideration, that their assent was never demanded.” Vol. II. p. 139.
B The share the Commons had in this act, Sir Robert Cotton authenticates from the parliament rolls. Cottoni posthuma, p. 348. Yet Mr Hume, in the most positive terms, denies that the Commons had any concern in it. Vol. 2. p. 140.
C Sir Robert Cotton.
28 Hale, hist. of the com. law, ch. vii. It has been sometimes insisted upon, that much improvement was brought to England by the canon and civil laws. I cannot, however, but imagine, that these laws, have, on the whole, been rather attended with disadvantage. For tyrannical maxims do not suit a limited government. They may have assisted, indeed, the invention, and extended the views of some lawyers; but they have filled the heads of more with illiberal prejudices.
29 The reader, who is desirous of seeing proofs of the consideration of the people during the wars between the Houses of York and Lancaster, may consult Cotton’s abridgment of the records; and Bacon on the laws and government of England. Part II.
30 In the year 1546, there were 126 boroughs that returned members to parliament; and the greatest number of these were wealthy and populous. Brown Willis, notit. parliam. vol. I. In the reign of Edward VI. 23 new boroughs were summoned to send burgesses to parliament. Philip and Mary added 13 more, Elizabeth 30, James the 2 universities and 12 boroughs, Cha. I. 8 boroughs, and Cha. II. the county of Durham and 2 boroughs. Ellys on temporal liberty. Anciently the king might incorporate any town, and enable it to send burgesses to parliament; but this privilege remains not at present with the crown. If the king was now to venture on the creation of a parliamentary borough, it would rest with the house of commons whether they would receive the members.
31 “As for her government, says a great authority, I assure myself I shall not exceed, if I do affirm, that this part of the island never had 45 years of better times; and yet not all through the calmness of the season, but through the wisdom of her regiment.” Lord Bacon.
32 “She loved not to be tied, but would be knit unto her people. Of 13 parliaments called during her reign, not one became abortive by unkindness; and yet not any one of them passed without subsidy granted by the people, but one wherein none was desired. And sometimes the aid was so liberal, that she refused the one half, and thanked the people for the remnant; a courtesy that rang loud abroad, to the shame of other princes. She never altered, continued, repealed, nor explained any law, otherwise than by act of parliament, whereof there are multitudes of examples in the statutes of her reign.” Nat. Bacon, Discourse on the laws and government of England, part 2.
I do not mean to say, that Elizabeth, and the princes who preceded her, never acted against the spirit of our government. Her reign, and those of many of her predecessors, were doubtless stained with bold exertions of authority. But bold exertions of authority must not be interpreted to infer despotism in our government. We must separate the personal qualities of princes, and the principles of the constitution. The government of England, and the administrations of its chief magistrates, are very different things.
33 Hume, Hist. of England, vol. V. p. 462. This historian, the most accomplished, perhaps, who has written in modern times, has attempted to vindicate both James and Charles; but he has done nothing more than to produce evidence to shew, that in some respects they acted from precedents of administration in former princes; and this, if taken even in the fullest extent, is insufficient to justify them. Charles, however, it will be allowed, exceeded every violation of liberty, of which there had been any example; and when he had consented to reduce the exorbitancy of the regal power, his conduct created a suspicion of his sincerity. But on the supposition that he did not advance his authority beyond the practice of former times, he is not therefore to be vindicated. It is no exculpation of a crime in one individual, that it has been committed by others. The advantages of a free government belonged to the people of England; and they were the proper judges when to enforce their privileges against an invader. They might pardon in one sovereign what they would punish in another. They might overlook in Elizabeth what they did not wish to excuse in Charles. The doctrine of resistance is delicate. In a free constitution, like that of which we speak, the prince and the people will often fall into situations where they seem to encroach, or actually do so, on the rights of one another. But it is never on slight grounds that the people will be prevailed upon to take arms against their chief magistrate. After all, had England been an absolute monarchy, Was it thence proper and just that it should remain in that situation? There are rights which it is impossible that men can either lose or forfeit. No authority and no precedent, no usage and no law, can give a sanction to tyranny.
34 Lord Clarendon applies to him, with great propriety, what was said of Cinna, ausum eum, quæ nemo auderet bonus; perfecisse, quæ a nullo, nisi fortissimo, perfici possent.
35 Bill of rights, toleration act, act of settlement.
36 L’Esprit des Loix, Liv. xi. ch. 3.
37 Plut. Vit. Lycurg.
38 Spencer, Dissert. de ratione Leg. Usuram prohibentis.
39 Lindenbrogius, codex legum antiquarum.
40 Conringius de Antiquitatibus Academicis. Bruckerus, Hist. Philos. Giannone’s hist. of Naples, lib. 1. chap. 10. § 1. and 11. lib. 11. chap. 6. § 1.
41 Præfat. ad Glossar.
42 P. 55.
43 Corvini jus feudale.
44 See Craig, de Feud. lib. 1. dieg. 5. and Selden’s Titles of Honour, part second, chap. 1. § 23. Basnage, Coutume reformée de Normandie, tom. 1. p. 139.
45 Selden. Ibid. Craig, lib. 1. dieg. 5.
46 This Emperor, says Lampridius, gave the territories gained on the frontiers, limitaneis ducibus et militibus, ita ut eorum essent si hæredes illorum militarent, nec unquam ad privatos pertinerent; dicens attentius eos militaturos si etiam sua rura defenderent. Addidit sane his et animalia et servos; ut possent colere quod acceperunt, ne per inopiam hominum vel per senectutem possidentium defererentur rura vicina barbariæ, quod turpissimum esse dicebat. See also Molin. in consuet. Paris. tit. 1. de Fiefs, and Loyseau, des Off. lib. 1. chap. 1.
47 De bell. Gall. lib. 4. chap. 22.
48 Montesquieu, L’esprit des loix, liv. 30. chap. 2. and 6.
49 Lib. Feud. 1. tit. 1.
50 L’esprit des loix, liv. 31. chap. 31.
51 Tacitus de moribus Germanorum. Cæsar de bell. Gall. lib. 6.
52 Servis, non in nostrum morem descriptis per familiam ministeriis utantur. Suam quisque sedem, suos penates regit. Frumenti modum dominus, aut pecoris, aut vestis, ut colono injungit; et servus hactenus paret. Tacit. de mor. Germ. cap. 25.
53 De mor. Germ. cap. 24.
54 De mor. Germ. cap. 11.
55 Ibid. cap. 7.
56 L’esprit des loix, liv. 31.
57 Mably, Observations sur l’histoire de France, liv. 1. cap. 3.
58 De mor. Germ. cap. 13. and 14.
59 L’Esprit des loix, liv. 31.
60 De mor. Germ. cap. 7. 12. and 14.
61 Ibid. cap. xi.
62 Muratori, Antiq. Ital. vol. 4. p. 160. et Seq. Mably, Observations sur l’histoire de France, tom. 2. p. 96. et Seq. Madox, Firma Burgi, cap. 1. sect. 9.
63 Tacit, de mor. Germ. c. 13. Spelman’s Glossary, voc. Miles.
64 Tacit, de mor. Germ. cap. 12.
65 Hi cuique sanctissimi testes, hi maximi laudatores. Tacit. de m. G. c. 7. Consult also c. 5. and c. 18.
66 It is to be wished, that our ingenious Professor had here entered more at large into the history of property in land. The subject is important and little understood. The conceptions entertained by the antient inhabitants of Germany and Gaul concerning property have been explained and illustrated in a book, intituled, “An Historical Dissertation concerning the Antiquity of the English Constitution.” The author of this treatise seems to be the first who has remarked that land is originally the property of nations, and has attempted to account for the manner in which it comes to descend to individuals. See his Dissert. part 1. sect. 3. See also Professor Millar’s valuable work on the Distinction of Ranks in Society, p. 165. et seq. 2d edition.
67 Cæsar, de bell. Gall. lib. 4. c. 1. Lib. 6. c. 22. Tacit. de mor. Germ. c. 26.
68 Du Cange, Glossarium voc. Juramentum. Georgisch, corp. juris Germanici antiqui.
69 Spelman, Gloss. voc. Lada et Ladare. Struv. Hist. jur. criminal. sect. 9.
70 L’Esprit des loix, liv. 28. ch. 17.
71 Georgisch, corp. juris Germanici antiqui, p. 347. and p. 368.
72 Du Cange, Gloss. voc. Duellum. Spelman, voc. Campus. Selden’s Duello, or Treatise on Single Combat, ch. 5.
73 Georgisch, corp. juris Germanici antiqui, p. 980, 1063, 1223, 1267, 1270.
74 Selden, Analecta Anglo-Britannica, lib. 2. cap. 8.
75 Brady’s Hist. of England, p. 65.
76 Mr Barrington has remarked, that “the last trial by battle in England was in the time of Charles I. and that it did not end in the actual combat.” Observations on the Statutes, 3d edition, p. 202. The last instance which occurs of the judicial combat in the history of France, was the famous one between M. Jarnac and M. de la Chaistaignerie, A. D. 1547. Dr. Robertson’s Charles V. vol. 1. p. 298.
77 Tacit. de mor. Germ. cap. 12. and 25.
78 Lindenbrog. Cod. Leg. Antiq. p. 1404. Tacit. de mor. Germ. c. 21. LL. Wal. by Wotton, p. 192. 194. LL. Anglo-Saxon, ap. Wilkins, p. 18. 20. 41. Hickes. Dissert. Epist. p. 110. Georgisch, corpus jur. Germ. antiq.
79 Montesquieu on the Rise and Decline of the Roman Empire. Dr. Geddes, in his Tract concerning the Nations which overturned the Empire of the Romans, p. 21.-26.
80 Selden’s titles of honour, part 1. chap. 5. § 1.
81 Procop. de bel. Goth. ap. script. Byz. Jornandes, Paulus Warnefridus, Gregory of Tours. Mably, observations sur l’histoire de France, tom. 1. chap. 1.
82 Giannone’s hist. of Naples, lib. II. cap. 4.
83 Bouquet, le droit public de France, èclairci par les monuments de l’antiquité, p. 6.-10. Montesquieu, l’Esprit des loix, liv. 30. chap. 6, 7, 8, 9.
84 Reliq. Spelm. p. 2.-7.
85 Potgiesser, de stat. servorum, lib. 2. cap. 1. Montesquieu, l’Esprit des loix, liv. 30. chap. 14. Du Cange, voc. Servus.
86 Spelman reliq. 12, 14, 248. Muratori antiq. Ital. vol. 5. p. 712.
87 Brussel, usage des fiefs, liv. 2. Selden’s tit. of honour, part 2, cap. 1. § 23. and § 33.
88 Mably, observations sur l’histoire de France, liv. 1. chap. 5. and 6.
89 Gregor. Turonen. lib. 2. cap. 27. Usage des fiefs, par Brussel, liv. 2. cap. 6. Dissertation on the antiq. of the English constitution, part 3. § 2.
90 Lib. feud. 1. tit. 1. Hume appendix, 2. Dalrymple, Essay on feudal property, cap. 5. § 1.
91 Coke on Littleton, lib. 2. chap. 4.
92 Montesquieu, l’Esprit des loix. liv. 30. chap. 13. Du Cange, voc. Alod. Schilteri Thesaur. voc. Alod.
93 Heinnec. Elem. jur. Germ. lib. 3. § 26. Selden’s tit. of hon. part 2. chap. 1. Spelman, voc. Comites.
94 Ripuar. L. L. tit. de diversis interfectionibus, p. 160, 161. ap. Georgisch, corp. jur. Germ. Du Cange, voc. Faida.
95 Bacon’s Discourse on the Laws and Government of England, p. 11.-27. Monast. Anglican, passim. Mezeray, abr. chronol. tom. 1. p. 172.
96 Montesquieu, l’Esprit de Loix, liv. 30. chap. 21. liv. 31. chap. 9. 10. 11.
97 Lib. 1. Feud. tit. 1. Hanneton, de jur. feud. p. 139. Du Cange, voc. Fideles et Fidelitas.
98 Mably, Observations sur l’histoire de France, liv. 1. chap. 6. Du Cange voc. Beneficium.
99 Spelman’s Gloss. voc. Feodiem. Dalrymple on Feudal-Property, chap. 1. Hume, Append. 2.
100 Du Cange, voc. Investitura. Spelman, voc. Pares Curiæ. Craig de feud. lib. 2. dieg. 2.
101 Bracton, lib. 2. cap. 17. Spelman, voc. Fidelitas, et Seisina. Fleta, lib. 3. cap. 15.
102 Spelman, Gloss. p. 266. Feud. lib. 2. tit. 6. Littleton, lib. 2. chap. 2. Basnage, contume reformée de Normandie, tit. Des fiefs et droits Feodaux, art. 107.
103 Coke on Littleton, book 2. chap. 1. Du Cange, voc. Vassaticum. Wright on tenures, p. 55, 56.
104 Feud. lib. 2. tit. 23. and 24. Dalrymple on Feud. property, chap. 2. Wright on tenures, p. 72.
105 Madox, Antiquities of the Exchequer, vol. 1. p. 653. Coke on Littleton, lib. 2. chap. 2.
106 Du Cange, voc. Auxilium. Madox, Antiq. Excheq. chap. 15.
107 Feud. lib. 2. tit. 25.
108 Bracton, lib. 3. p. 130. Spelm. voc. Escheata. Glanville, lib. 7. cap. 17. Dalrymple on feud. property, p. 62. Ed. 1757. Hengham Parva, chap. 6. Coke on Littleton, b. 1. chap. 1.
109 Craig, de feud. lib. 2. dieg. 207.
110 Craig, de feud. lib. 1. dieg. 11. and 12.
111 Ibid.
112 Ibid.
113 Reliq. Spelm. p. 3, 7, 33, 43. Gervas. de Tilb. Dialog. de Scaccar. lib. 1. cap. 7. Madox, Antiq. Excheq. vol. 1. p. 272.
114 Fortescue de Laud. leg. Angl. p. 99. Ed. 1737. Coke on Littleton, b. 2. chap. 7.
115 Carte, hist. of England, vol. 2. p. 169. The reign of Edward I. in Kennet’s collect. of English historians, p. 197.
116 Coke on Littleton, lib. 2. chap. 8. Madox, Antiq. Excheq. vol. 1. p. 321, 326.
117 Madox, hist. of Excheq. vol. 1. p. 51.
118 Ib. p. 40. 41.
119 Ib. p. 43.
120 It may not be improperly remarked in this place, that about the 18th year of Henry II. Geoffrey Martell held in England the office or serjeanty of Pincernaria, or Butlership. See Madox, hist. Excheq. vol. 1. p. 50.
121 Lib. 2. cap. 9.
122 Feud. lib. 1. tit. 8.
123 Brussel, usage des Fiefs, tom. 1. p. 41. Du Cange, voc. Cavena and Canava.
124 Spelman, and Du Cange, voc. Camera, et voc. Feudum. Craig, de Feud. lib. 1. Dieges. 10.
125 Du Cange, voc. Soldata, et voc. Feudum. ædificii.
126 Coke on Littleton, lib. 2. chap. 4.
127 Du Cange, voc. Gastaldus.
128 Gibson, Cod. Jur. Eccles. Anglican, tit. 23.
129 Montesquieu, l’Esprit de Loix, liv. 31. chap. 11. Bacon, hist. and polit. disc. on the laws and government of England, ch. 59. Inett’s hist. of the English Church, vol. 2. ch. 2.
130 Gibson, Cod. Jur. Eccles. Anglican. tit. 23.
131 Ibid.
132 Ibid. and tit. 30.
133 Gibson, Cod. Jur. Eccles. Anglican, tit. 34.
134 Gibson, tit. 1. and 2.
135 Father Paul on beneficiary matters, ch. 2. and ch. 6. Selden’s history of tithes, ch. 4. sect. 1. Spelm. larger work of tithes, ch. 6.
136 Selden’s hist. of tithes, ch. 6. and 7. Spelm. larger work of tithes, ch. 29.
137 De non temerand. Eccles. tract. Spelm. p. 3.
138 Montesquieu, l’Esprit des loix. liv. 31. chap. 12. Selden of tithes, ch. 7. Father Paul of benefices, ch. 11.
139 Father Paul of benefices, ch. 14.
140 Giannone’s hist. of Naples, b. 19. chap. 4. § 2.
141 Selden on tithes, chap. 8. Bacon, hist. and polit. disc. on the Laws and Government of England, chap. 59. L. l. Angl. Sax. ap. Wilkins.
142 Brady, Appendix to his hist. p. 15. Carte, hist. of England, vol. 1. p. 441.
143 Selden on tithes, chap. 14.
144 Carte’s hist. of England, vol. 3. p. 135, 143, 148, 149. Lord Herbert’s life and reign of Henry VIII. p. 186. et seq. ap. Kennet.
145 Gibson, Cod. Jur. Eccles. Anglican. tit. 35. Hume, vol. 1. p. 51.
146 Wood, Institute of the Laws of England, fol. 161. et seq.
147 Madox, Baronia Angl.
148 4. Instit. 268. Scroggs of Courts Baron, p. 56.
149 Coke on Littleton, lib. 2. chap. 12. § 215.
150 Madox, Antiquities of the Excheq. vol. 1. p. 652.
151 Coke on Littleton, lib. 2. chap. 12.
152 Ibid.
153 Coke, ut supra.
154 Madox, Antiq. of the Excheq. chap. 13. The Statutes at Marlebridge, ap. Ruffhead, vol. 1. p. 30.
155 Ruffhead, vol. 1. p. 37.
156 Glanvil, lib. 9. c. 8. lib. 10. c. 3. lib. 11. c. 4.
157 Houard, Anciennes loix des François conservées dans les coutumes Angloises, tom. 1. p. 32. et seq. Craig, lib. 1. dieg. 4.
158 Bracton, lib. 2. c. 36. Hume, append. 2. Du Cange, voc. relevium. Spelman, voc. relevamen. Reliq. Spel. p. 32, 33.
159 Fleta, lib. 3. c. 77. Feud. lib. 1. tit. 1. Dalrymple on feudal property, ch. 5. Madox, antiq. of the Exchequer, ch. 10. § 4.
160 Wright on tenures, p. 95. 96.
161 LL. Hen. 1. c. 1.
162 Lib. 9. c. 4.
163 Madox, antiq. of the Exchequer, ch. x.
164 Ruffhead, vol. 1. p. 2.
165 Bracton, lib. 2. fol. 86.
166 Montesquieu, l’Esprit de Loix, liv. 31. chap. 1.
167 St. Amand on the legislative power of England, p. 27. Montesquieu, l’Esprit des loix, liv. 31. ch. 8. Dr Robertson’s Charles V. vol. 1. p. 222.
168 Mably, observations sur l’histoire de la France, tom. 1. l. 1. ch. 5. and 6. Montesquieu, l’Esprit des loix, liv. 31. ch. 9.
169 Spelman on feuds and tenures. Mably, observations sur l’histoire de France, tom. 1. l. 2. ch. 3, 4, 5, 6. Montesquieu, l’Esprit des loix, liv. 31. ch. 28, 29, 30, 31. Houard, anciennes loix des François, liv. 1. ch. 1. Basnage, coutume de Normandie, tom. 1. p. 146.
170 See the authorities quoted above, and Selden’s titles of honour, part 2. chap. 5.
171 Coke on Littleton, lib. 2. ch. 1.
172 Houard, anciennes loix des François, liv. 2. ch. 1. Du Cange, voc. Hominium. Spelman, voc. Homagium.
173 Wright on tenures, p. 154. et seq. Dalrymple on feudal property, chap. 2. § 2. Millar on the distinction of ranks in society, second edit. p. 215.
174 Wright on tenures, p. 172.
175 Coke on Littleton, lib. 3. chap. 13.
176 Houard, anciennes loix des François, liv. 3. chap. 13. Coke, ut supra.
177 Wright on tenures, p. 168, 169.
178 Wright on tenures, p. 186.
179 Fortescue de laud. leg. Angliæ, cap. 44. Glanvil, lib. 2. chap. 9. Spel. reliq. p. 25, 26. Du Cange, voc. Warda.
180 Craig, de feud. lib. 2. dieg. 20. Wright on tenures, p. 86. et seqq. Dalrymple on feud. property, chap. 2. § 2.
181 Ruffhead’s Statutes, p. 2, 3. Basnage, Coutume de Normandie, tit. des gardes.
182 Coke on Littleton, lib. 2. ch. 5. sect. 123. Houard, anciennes loix des François, liv. 2. ch. 5.
183 LL. Henry 1. c. 1. Bracton, lib. 2. c. 37. sect. 6. Craig, de feud. lib. 2. Dieges. 21. Du Cange, voc. Maritagium. Glanvil, liv. 7. c. 12.
184 Wright on tenures, p. 97.
185 Ruffhead’s statutes, fol. p. 19.
186 Ibid. p. 6.
187 Coke’s institutes, part 2. p. 440. Ruffhead, vol. I.
188 32 Henry VIII. c. 46. 12 Car. II.
189 Craig, de feud. lib. 2. Dieges. 13. Dalrymple on feudal property, ch. 5. sect. 1.
190 Craig de feud. lib. 2. dieges. 14.
191 Basnage, coutume de Normandie, tit. De partage d’heritage. LL. Hen. 1. 70.
192 Dalrymple on feud. property, chap. 5. § 1. Hume, appen. 2.
193 Hale’s hist. of the common law, chap. 5. Bacon’s hist. and polit. discourse on the laws and government of England, part 1. chap. 45, 55, and 56.
194 Id. chap. 57. See also Tyrrel’s history, and Kennet’s historians.
195 Glanvil, lib. 7. cap. 3. Craig de feud. lib. 2. dieges. 15. Dalrymple on feudal property, chap. 5. § 2.
196 Lib. Feud. 2. tit. 12.
197 Lindenbrogius, cod. leg. antiq. p. 679.
198 Dalrymple on feud. property, chap. 5.
199 Craig. de feud. lib. 2. dieges. 14.
200 Hale, hist. com. law, chap. 9.
201 Giannone’s hist. of Naples. Selden’s tit. hon. part 2. chap. 9.
202 Bouquet, le droit public de France, p. 30.-36.—Allodium, proprietas quæ a nullo recognoscitur. Tenere in allodium, id est, in plenam et absolutam proprietatem. Habet integrum ac directum dominium quale à principio de jure gentium fuit distributum et distinctum. Du Moulin, de l’ancienne coûtume de Paris, art. 46.
203 Dalrymple on feud. property, ch. 3. sect. 1.
204 Lib. 4. feud. tit. 34. Ruffhead’s statutes, v. 1. p. 122.
205 Gibson, cod. jur. eccles. Anglican, tit. 28.
206 Kennet’s collection of historians, vol. 1. p. 116. Carte, hist. of England, vol. 1. p. 469. 555.
207 Hume, hist. of England, vol. 1.
208 LL. Hen. 1. cap. 70.
209 Lib. 7. c. 1.
210 Glanvil, ut supra. Ruffhead’s statutes, vol. 1. p. 8.
211 Britton, c. 18. Wright on tenures, p. 163. 164.
212 Staunford, de prerog. Reg. cap. 7.
213 An. 27. Hen. VIII. cap. 10. ap. Ruffhead, vol. 2. p. 226.
214 Madox, hist. of Exchequer, ch. 17. Firma burgi.
215 Du Cange, et Spelman, voc. Tallagium. Madox, antiq. of the Exchequer, ch. 17.
216 Hume’s hist. of England, appendix 2. Madox, Firma burgi, ch. 1.
217 Ruffhead, vol. 1. p. 115.
218 An. 13. Ed. I. c. 18. apud Ruffhead, append.
219 An. 23. Henry VIII. cap. 6. ap. Ruffhead, vol. 2. p. 167.
220 An. 13. Eliz. c. 7. An. 1. James I. cap. 15. 21. James I. cap. 19. 5. George II. c. 30.
221 Coke on Littleton, book 1. chap. 2. § 13.
222 Wright on tenures, p. 186. et seq.
223 Coke’s institutes, part 2. p. 332. Ruffhead, vol. 1. p. 79.
224 Coke’s institutes, part 2. p. 336.
225 Hume’s hist. of England, vol. 1. Carte’s hist. 382, 383, 384, 420. Brady’s hist. append.
226 Selden, tit. hon. part 2. chap. 5. § 3.
227 Ibid. § 8. and 9.
228 Coke on Littleton, lib. 3. chap. 13. § 703, 709.
229 Lib. 3. chap. 13. § 720.
230 Saintgerman, cap. 50.
231 Bacon, voc. Fine and Recovery. An. 4. Hen. VII. c. 24. ap. Ruffhead, vol. 2. p. 79.
232 An. 32. Hen. VIII. c. 36. ap. Ruffhead, vol. 2. p. 296.
233 Ruffhead, vol. 2. p. 216.
234 Hottoman. Franco-Gall. Boulainvilliers on the antient parliaments of France. Fortescue de laud. leg. Angl. cap. 34. 36.
235 Craig, de feud. lib. 1. dieges. 16. Du Cange voc. Dominicum.
236 Madox, hist. Excheq. Carte’s hist. of England, vol. 1. p. 423.
237 Carte, ibid. Hume, append. 2. Madox, antiq. of the Excheq. passim.
238 Firma Burgi, ch. 4. 5. 11.
239 Bibliotheca politica, Dial. 5. and 10.
240 Biblioth. polit. 320. 330. 333. 339. 356. 357. 370.
241 L’Esprit des loix, liv. 11 chap. 6.
242 Asser, de Gestis Alfredi. Tyrrel, gen. introduct. to the hist. of England.
243 Lib. 3. cap. 9. fol. 107.
244 Giannone’s hist. of Naples, lib. 11. chap. 2. Hume’s hist. of England, vol. 2. p. 441.
245 Dissertatio Seldeni ad Fletam, cap. 7.
246 Bacon, hist. and polit. discourse on the laws and government of England, part 2. ch. 1. and 2. The reign of Rich. II. in Kennet’s collection of historians.
247 Hume’s hist. of England, vol. 2.
248 Camden’s reign of Elizabeth, passim.
249 Wilson’s life and reign of James I. ap. Kennet.
250 Bibliotheca politica, dial. 11. Bacon, hist. and political discourse, part 1. chap. 64.
251 Madox, Antiq. of the Exchequer, vol. 1. p. 197, 198. Baronia Anglica, book 1. chap. 1. Spelman, voc. Baro.
252 Brady’s introduction, in append. Baronia Anglica, p. 33.
253 Selden’s titles of honour, part 2. chap. 5. Baronia Anglica, book 1. chap. 2.
254 Camden, Britan. p. 122.
255 Selden, tit. Honour, part 2. chap. 5. § 21.
256 Baronia Anglica, book 2. chap. 1. Selden’s tit. Hon. part 2. chap. 5. § 22.
257 Coke on Littleton, lib. 2. chap. 8. § 159. Baronia Anglica, p. 164. et seq.
258 Coke on Littleton, p. 166. St. Amand on the legislative power of England, p. 193.
259 Selden, tit. Hon. part 2. chap. 5. § 27. and 28.
260 Camden’s Introd. to his Britan. p. 234. et seq. Baronia Anglica. Selden, tit. hon. part 2. chap. 5. § 29. 30. 31.
261 Selden, tit. hon. part 2. ch. 1.
262 Du Bos, hist. critique de L’etablissments de la monarchie Françoise, tom. 3. 497, &c. Mascou’s hist. of the antient Germans, b. 16. § 36.
263 Spelman’s treatise of Feuds and Tenures.
264 Selden, tit. hon. part 2. ch. 5.
265 Selden, tit. hon. part 2. ch. 5. § 10.
266 Baronia Anglica, p. 150, et seq. Selden, tit. hon. part 2. chap 5. § 8. Bacon, hist. and polit. discourse on the laws of England, part 1. ch. 29.
267 Coke on Littleton, lib. 2. § 135. Selden, tit. hon. part 2. ch. 5. § 19.
268 Robertson’s hist. of Scotland, book 1. p. 68. Essays on Brit. Antiq. Ess. 2.
269 Gibson, cod. jur. eccles. Angl. vol. 1. p. 143.
270 Privileges of the Baronage, by Selden, ch. 2. p. 1537 of the edition of his works by Wilkins. Coke’s institute, second part, p. 49. and 50.; third part, p. 26.-31.
271 Spelman, voc. Armiger. Du Cange, voc. Armigiri.
272 Selden, tit. hon. part 2. ch. 5. § 33. Camden’s introd. to his Britan, 242.
273 Selden, tit. hon. part 2. ch. 5. § 39.
274 Spelm. reliq. dissert. de milite. Coke’s inst. part 2. p. 593.
275 Selden, tit. hon. part 2. ch. 5. § 46. Cotton’s posthumous works.
276 Madox, Firma Burgi, ch. 1.
277 Madox, Firma Burgi, ch. 2. Ruffhead, vol. 1. p. 4.
278 Ruffhead, vol. 1. p. 156.
279 Gurdon’s history of Parliament. Tyrrel’s introduction to his history. L. L. Anglo Saxon, ap. Wilkins.
280 History of the common law of England, p. 107.
281 Biblioth, polit. dial. 6, 7, 8. Hume, vol. 1.
282 Ruffhead, vol. 1. p. 544.
283 Spelman, voc. Parlamentum. Hales on Parliaments. Ellys on Temporal Liberty.
284 Elsringe, on the method of passing bills in Parliament. Gurdon’s hist. of Parliament.
285 Ruffhead’s preface to the statutes.
286 Kennet’s English Historians, vol. 2. p. 587, 606. Carte, vol. 2. p. 828. Hume, vol. 2. and 3.
287 Lord Bacon’s life of Henry VII. ap. Kennet, vol. 2. p. 612.
288 Irish statutes, vol. 1. p. 23. Coke, 4. instit. chap. 76.
289 Irish Statutes, p. 48.
290 Irish Stat. vol. 1. p. 143.
291 Coke on Littleton, lib. 2. ch. 11. § 172.
292 Bracton, lib. 4. cap. 28.
293 Reliq. Spelm. 251. Barington on the statutes 270. et seq. Gurdon’s hist. of Court-Baron and Court-Leet, p. 573.
294 Coke on Littleton, lib. 2. chap. 11.
295 Lib. 2. § 194.
296 Littleton, § 187, 188.
297 Littleton, § 174.
298 Coke on Littleton, lib. 2. ch. 11.
299 Cap. 42.
300 Wilkins, Leg. Anglosax.
301 Formulare Anglicanum, tit. Grants and Manumissions of Villeins.
302 Hickes. dissert. epist. p. 13. et seq. Brady’s hist. p. 82. Fitzherbert’s natura brevium, p. 187, 189, 190. Cowell’s interpreter, voc. copiehould. Coke on Littleton, lib. 2. chap. 11.
303 Carte, hist. of England, vol. 2. p. 844. 845. 846.
304 Fitzherbert’s natura brevium, p. 28. Kitchen on Courts.
305 Coke on Littleton, lib. 1. chap. 8.
306 Madox, Hist. of the Excheq. vol. 1. p. 295. Cowell’s Interpreter, voc. Demaine. Spel. Gloss. voc. Dominicum.
307 Bacon’s discourse on the Laws and Government of England, part 1. chap. 16.
308 Tyrrel’s general Introduction to his Hist. of England. Hume, append. 1.
309 Spelm. Gloss. voc. Comitatus, hundredus, et trithinga. Tyrrel’s introduction to his Hist. Carte’s Hist. vol. 1. p. 310. Spelm. life of Alfred. Gurdon’s Hist. of Court Baron and Court Leet.
310 Gurdon’s hist. of Court Baron and Court Leet. Cowel’s Interpreter, voc. Frank-pledge. Bacon’s Discourse on the Laws and Government of England, part. 1. chap. 23.
311 Bacon, chap. 24.
312 Bacon’s discourse on the Laws and Government of England, chap. 25, 26.
313 Dugdale’s Origines Juridiciales, chap. 9, 10, 11, 12, 13, 14, 15.
314 Madox, Hist. of Exchequer, chap. 1.
315 Madox, Hist. Excheq. Dalrymple on Feudal Property, ch. 7. § 1.
316 Dugdale, orig. Jurid. ch. 25. 26. Nicholson, præfat. ad leg. Anglo. Sax. Du Cange, voc. Duellum et Juramentum. Spel. voc. Campus et Judicium Dei. Muratori antiq. Ital. Dissertat. 38.
317 Stiernhook de jure vetusto Sueonum et Gothorum. c. 4. Dissert. on the antiquity of the English Constitution, part. 4. § 4.
318 Mirroir des Justices, chap. 2.
319 Tacit. de Mor. Germ. c. 21. L. L. Wal. p. 192. 194. L. L. Anglo, Sax. ap. Wilkins p. 18. 20. 41. Hickes. dissert. Epist. p. 110. Lindenbrog, p. 1404.
320 Selden’s tit. of Hon. part 2. ch. 5. Hume, vol. 1.
321 1 Inst. 76. Bacon on the Government of Engl. p. 75. Saltern de antiq. leg. Brit. c. 8.
322 Spelman on Feuds and Tenures. ch. 6.
323 Taylor and Somner on Gavelkind, and Harris in his Hist. of Kent, p. 457.
324 Spel. gloss. voc. Burghbote et Brughbote.
325 Tyrrel’s Introd. p. 120. Spel. Reliq. p. 22.
326 Dr. Brady’s Glossary to his Tracts, p. 3. Spelman on Feuds and Tenures, p. 17. and 18.
327 Madox, Hist. of the Exchequer, vol. 1. chap. 10. § 4.
328 Spelm. on Feuds and Tenures, chap. 21.
329 Wright on tenures, chap. 2.
330 Hale’s hist. Com. Law, chap. 5, and 7.
331 Bacon’s hist. and polit. discourse, chap. 44, 45. &c. Tyrrel’s hist.
332 LL. Anglo Saxon, ap. Wilkins, p. 228. Wright on tenures, p. 66.
333 P. 69.
334 LL. Anglo. Saxon. ap. Wilkins. Wright on tenures, p. 72.
335 Madox, Baronia Angl. p. 25. Seld. tit. hon. part 2. ch. 5.
336 Dugdale’s orig. jurid. c. 34. Madox, hist. of Excheq. ch. 2. La coutume de Normandie.
337 Baron Gilbert’s hist. of Excheq. p. 55. Lord Littleton’s hist. of Henry II. 4to. vol. 1. p. 43. 457. Carte, vol. 1. p. 419. 420.
338 Madox, Excheq. ch. 1. Bacon on the laws and government of England, part 1. ch. 59. and 66. Brady, Carte and Tyrrel.
339 Hale, hist. com. law, ch. 7. Bacon, hist. and polit. discourse, p. 129. &c.
340 Tyrrel’s Introduct. to his hist.
341 Carte, vol. 1. p. 452, 453.
342 Kennet’s historians, and Carte.
343 Hale, hist. com. law, chap. 7. Carte, vol. 1. p. 480. et seq.
344 Carte; and Kennet’s historians.
345 Kennet’s historians. Hume, vol. 1. p. 243.
346 Bacon, hist. and polit. disc. p. 103, &c. Carte, vol. 1. p. 525. et seq.
347 Kennet’s historians.
348 Hale, hist. com. law, chap. 7. Carte.
349 Gervas. de Tilbury, dial. de Scaccario.
350 Madox, hist. of Excheq. ch. 16.
351 Lib. 9. c. 4.
352 Coke on Littleton, fol. 153.
353 Ibid.
354 Bracton, lib. 4.
355 Hale’s hist. Com. Law, chap. 7. Dugdale, orig. jurid. p. 27. Hoveden, p. 590.
356 Hale’s hist. Com. Law, ch. 7.
357 Fitzherbert, Nat. brev. p. 41.
358 Dugdale, orig. jurid. chap. 20. Madox, hist. of Exchequer, chap. 3. § 10. Bracton, lib. 3. chap. 10, 11. M. Paris, an. 1176.
359 4. Instit. p. 184, 266. Hale, hist. com. law. chap. 7.
360 2. Instit. p. 24. et seq. 4. Instit. p. 162. Selden’s notes on Hengham.
361 Dugdale, orig. jurid. chap. 17.
362 4. Institute, p. 70. et seq.
363 d’Anver’s abrigement, vol. 2.
364 4. Institute, p. 79.
365 Dugdale, orig. jurid. ch. 16. 4. Inst. p. 80.
366 4. Inst. p. 79. 80. 84. 88.
367 Ibid. p. 225. 113. 80. 76.
368 4. Inst. p. 155. 79. 206.
369 4 Inst. ch. 8. Bacon, hist. and polit. discourse, part. 2. ch. 18.
370 Baron Gilbert’s history of the Court of Common Pleas. Madox, hist. Excheq. ch. 2. sect. 9. 2 Institute, p. 53. 407. 4 Institute, ch. 8.
371 2 Institute, p. 405.
372 2. Institute, p. 21, 22.
373 Bracton, lib. 1. cap. 1. Fortescue de laud. leg. Angliæ, cap. 34.
374 Baron Gilbert, Hist. of the court of Com. Pleas. 4. Inst. ch. 10.
375 2d. Inst. p. 196. 197. 255. 551.
376 4th Inst. ch. xi.
377 4th Inst. ch. 13.
378 Hales of the power and jurisdiction of Parliament. Selden of the Judicature of Parliament. See his works vol. 3. 4. Inst. ch. 1.
379 Giannone’s hist. of Naples, b. 1. Bower’s hist. of the Popes, vol. 1.
380 Lord Lyttelton’s hist. of Henry II. b. 3.
381 Daniel, ap. Kennet. Carte.
382 Hoveden. edit. Savil. 494-549. Mat. Paris. an. 1164. Lord Lyttelton’s hist. of Henry II. book 3. Brady’s history.
383 Hume, Carte, Lyttelton, &c.
384 Hale, hist. com. law, chap. 7.
385 Mare Claus. 386. Kennet’s historians. Hume. Carte.
386 Brady, Daniel, Tyrrel, and the general histories of England.
387 Kennet’s historians. Hume. Carte.
388 Blackstone’s discourse concerning the hist. of the charters. Gurdon’s hist. of Parliament. Hale, hist. com. law, ch. 7.
389 Sir Robert Atkins on the dispensing power. Bibliotheca Politica. The general histories of England.
390 Ruffhead, vol. 1.
391 Lib. 3. p. 129. 137.
392 Cap. 5.
393 Lib. 1. cap. 28.
394 Cap. 5.
395 2 Inst. p. 37.
396 2 Inst. 38. 41. Barrington on the Statutes, p. 15. 16.
397 Mirror, cap. 5. sect. 2. Glanvil, lib. 14. cap. 3. Bracton, lib. 3. p. 121. Fleta, lib. 1. cap. 23.
398 2 Inst. p. 43. 45.
399 2. Institut. p. 48. 49.
400 2. Institut. p. 51.
401 2 Inst. p. 51. 55.
402 Father Paul, of beneficiary matters.
403 4 Institut.
404 2 Inst. p. 46.
405 2 Institut. p. 51.-55.
406 2 Inst. p. 47.
407 2 Inst. p. 47.
408 Ibid.
409 2 Inst. p. 48.
410 2 Inst. p. 48.
411 2 Institut. p. 55, 56.
412 2 Institut. p. 56.
413 2 Institut. p. 57. et seq. Barrington on the statutes. p. 23. 25.
414 2 Institut, p. 64.
415 2 Inst. p. 65.-67.
416 2 Inst. p. 68. Barrington, p. 25.
417 Ibid. p. 68. 69.
418 2 Inst. p. 69. 74.
419 2 Inst. p. 74, 75. Barrington, p. 27.
420 Ibid. p. 76. See also Inst. lib. 2. cap. Escuage. Barrington, p. 28.-31.
421 2 Inst. p. 76.-78.