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ITC Limited vs Chowringhee Residency Private-CHC-16/01/2015

If an order of injunction is oppressive to the defendant it should not be passed by the court. In my opinion, in the above situation, an order of injunction would be oppressive for the defendant. Furthermore, damage caused to the defendant by grant of the injunction will be much more than the damage to the plaintiff by non-grant of it . And it has been clearly laid down in the above case that the decision whether to grant or not to grant an order of injunction is exercise of discretion by the Court taking into account each and every fact in issue.

CALCUTTA HIGH COURT
ORDINARY ORIGINAL CIVIL JURISDICTION
ORIGINAL SIDE

ITC Limited
Vs.
Chowringhee Residency Private Limited

G.A. No. 2428 of 2013
C.S.No. 285 of 2013

ACT: The Indian Easements Act, 1882

For the plaintiff/petitioner:- Mr. Ahin Choudhury; senior adv. Mr. Samit Talukdar; senior adv. Mr.Sakya Sen; adv. Ms. Sudeshna Bagchi; adv. Ms. Hasnuhana Chakroborty; adv. Ms. Debasri Dutta; adv.

For the defendants/respondents:- Mr. Ram Jethmalani; senior adv. Mr. S.N. Mookherjee; senior adv. Mr. S.N. Mitra; senior adv Mr. Ratnanko Banerjee; senior adv. Mr. Sanjiv Kumar Trivedi; adv. Mr. Debanjan Mandal; adv. Mr. Arindam Banerjee; senior adv. Mr. Biswajit Kumar; adv. Ms. Shruti Swaika; adv.

Judgment on:- 16TH JANUARY, 2015

I.P. MUKERJI, J.

This suit is concerned with easementary rights. It relates to the exercise of an alleged right to obtain uninterrupted ancient light to a building, by ITC Ltd., the plaintiff, and its owner, against Chowringhee Residency Private Limited, the defendant. The plaintiff, is exercising this alleged right as dominant owner of Fountain Court comprised in premises no. 7/1 Little Russell Street Kolkata 700071, also known as Nandalal Bose Sarani over the defendant, the servient owner of a property on its western side.

What is under consideration, by me, is an interim application in aid of the above suit, taken out by the plaintiff for an order of injunction restraining the defendant from interfering with the plaintiff’s access to and use of light.

This premises comprises of about 2 bighas 1 cottah 3 chittacks and 13 square feet of land. It has this five storied building, Fountain Court, used for residential purposes. Some of the directors and other most senior officers of the plaintiff reside here.

It was purchased by the company on 13th November, 1956. The western part of the building is allegedly affected. It has 43 windows. Up till 1973, it had 30 windows. 13 were added that year. The height of this building is about 67 feet 6 inches.

At the time of purchase of this property, there also existed another five storied building on its western side. The plaintiff says that the alignment and height of this building was such that its existence did not cause any interference with the plaintiff’s access to ancient light. This building was also 67 feet 6 inches tall. It was subsequently demolished. The land on the western side of Fountain Court was mostly open space. There was only a damaged building on Chowringhee Road which did not cause any interference with the plaintiff’s access to light.

All this changed in 2013. The western side of Fountain Court comprising 42B Chowringhee Road, Kolkata was acquired by the defendant. They started laying the infrastructure and bringing in equipments and machinery, what seemed like, for the purpose of making a massive construction.

The plaintiff enquired of them about their plans by their letter dated 5th March, 2013. They were completely taken back by the reply of 12th March 2013, A residential building was to come up at the site. It was to be a tower about 240 metres tall. 60 stories were to be built. Building sanction had been accorded by the Kolkata Municipal Corporation. It is admitted by the plaintiff that as early as 18th February 2013, they had a sketch of the proposed building.

The lateral distance between the boundary of Fountain Court and the proposed building was stated to be 16.35m – 16.75m whereas the total separation between the two buildings would be 20.72m, according to the report of M/s. Ingram Gordon & associates referred to later.

According to the plaintiff, if this building block was allowed to come up, it would substantially obstruct the passage of this ancient light to Fountain Court. This would cause substantial deprivation of light to its western side and also to the building as a whole. They claim to be using this ancient light, as an easementary right uninterruptedly, from 1956, their purchase of the premises. Since this enjoyment, according to them, was well over 20 years, their easement right had become absolute and indefeasible. Hence, this suit.

The explanation in the plaint is that upon learning about the proposed construction by the defendant, the plaintiff started studying its impact on Fountain Court. Their date of engagement is not disclosed in the petition but it is said that a firm of English experts on light M/s Gordon Ingram and Associates was engaged by the plaintiff to make a study of this situation and to report.

It appears from the report of Mr. Gordon Ingram, the senior partner that on 6th June 2013 they received instructions to do their work. They made site inspection on 12th and 13th June. The report came only on 19th July 2013.

Thereafter, it took the plaintiff about 25 days to institute this suit.

According to the report of Gordon Ingram and Associates of 19th July 2013 the light which would be received by Fountain Court, after the proposed construction would be substantially diminished so as to make it insufficient for ordinary habitancy.

What exactly is the implication of this report has to be analysed.

First of all, the report is based on the principles expounded in the case of Colls Vs. Home and Colonial Stores (1904). It says that in cases decided in India, judges have referred to this case. One of the standards for assessment is whether there is substantial diminution of light, so as to amount to nuisance? Whether the “retained light” is “comfortable” and sufficient for the ordinary purposes of inhabitancy”?

Now, to come to such a finding the 50/50 rule is applied.

What is this 50/50 rule?

In making this assessment a 0.2 per cent sky factor or less is plotted in respect of a room both before and after the proposed construction is erected. What I understood, from examining the report is that less than 0.2 per cent sky factor represents insufficient light. The area of a room is sufficiently lit, if it has 0.2 per cent or more than 0.2 per cent sky factor. It more than half of a room has a sky factor of less than 0.2 per cent sky factor then the room as a whole is inadequately lit. This is known as the 50/50 rule. However, the author of the report opined that even if more than half the room had 0.2 per cent sky factor or more light, it could sometimes still be termed as inadequately lit.

According to the report, only the western side of Fountain Court would be affected. Not even the whole of it.

The report contains plans, sketches and drawings as annexures to it, where the lighting of each room on the western side is sought to be shown before erection of the proposed building and after it.

At the end Mr. Gordon Ingram, comes to the conclusion that the proposed tower on the western side of the Fountain Court would “create a substantial loss of light to the residential amenity within Fountain Court”.

Mr. Ahin Chaudhuri, learned senior advocate appearing for the plaintiff made certain straightforward submissions. He said that ever since the plaintiff acquired Fountain Court in 1956, it had uninterrupted access to and enjoyment of ancient light, from its western side. He said that the old building which was situated on the western side of Fountain Court was so situated and aligned that there was no obstruction to the passage of ancient light to the plaintiff’s building. As on the date of filing of the suit, construction of the proposed tower by the defendant on the western side of the plaintiff’s building had not begun. On the basis of the pleadings made in the plaint and on the evidence of the report of Mr. Gordon Ingram, it could be necessarily anticipated that the proposed tower would cause substantial deprivation of light to the western side of the plaintiff’s building. On the strength of the existing authorities, the plaintiff was entitled to an order of injunction restraining further construction of the building. I will discuss the authorities and other law cited by learned counsel, at a later stage.

First of all, Mr. Ram Jethmalani, learned senior advocate appearing for the defendant, argued that easement rights had to be exercised openly and in a hostile manner. On the western side of Fountain Court there was a wide open space, with a damaged building with nobody exercising or opposing exercise of any easement right. Hence, the plaintiff could not argue that they “openly” enjoyed uninterrupted access to light on the western side for over twenty years. They asserted their right to light, only in 2013, with the advent of the defendant. So there was not twenty years uninterrupted use of ancient light.

Learned Counsel also argued that no case of any worth had been made out in the plaint and in the documents appended thereto. He said that there were absolutely no details as to the manner in which the easementary right to light of the plaintiff was infringed by the defendant’s construction. At any rate, according to him, in order to get an order of injunction, the plaintiff had to establish that actionable nuisance had been committed. To establish actionable nuisance, one had to prove an unlawful act in relation to a property resulting in damage, following the definition of actionable nuisance by the Supreme Court in Rafat Ali Vs. Sugni Bai & Ors. reported in1999 (1) SCC 133 Nothing had been shown to demonstrate that occupation of Fountain Court for residential purposes would become so uncomfortable as to result in actionable nuisance, it was said. The degree to which there would be diminution of light, if at all was not established.

Mr. Jethmalani wanted to rely upon a report of an expert of light obtained by the defendant. But Mr. Chaudhuri rightly objected to its production at the stage of hearing of the interim application.

Learned counsel for the defendant invoked the principles of the Constitution of India, to be more specific, Article 300 A. It relates to the right to property. If I understood Mr. Jethmalani, correctly, according to him, the right to make construction of a building was part of the right to property. This right to property had to be taken away expressly by law. The Indian Easements Act, 1882 does not have application in the State of West Bengal. Therefore, infringement of the right to light could not be asserted by the plaintiff to deprive the defendant of the right to erect the building or tower on the western side of Fountain Court.

Moreover, his client had obtained express sanction of the building plan from Kolkata Municipal Corporation under the Kolkata Municipal Corporation Act, 1980 and the Building rules framed thereunder. The plan was according to the said building rules. The said building rules had inturn been framed on the basis of a building Code approved by the Government of India to have an India application. I will discuss the cases cited by Mr. Jethmalani at a later point of time.

At this point of time it is necessary to know what is meant by easement. It is a right enjoyed by the owner or occupier of land. It is for the beneficial enjoyment of it. Such beneficial enjoyment is signified by continuing to do something on the land or preventing and continuing to prevent something being done on another land. The benefit is attached to the land known as the dominant heritage. The land on which the right is exercised or through which this right is exercised is called the servient heritage. Right to light or air is recognised as an easement.

Now, how is this easement acquired? When access to or use of light is peaceably enjoyed as an easement, without interruption for 20 years the right to such access and use of light becomes absolute.

This is part of the old English common law with regard to right of easement. There is no dispute whatsoever that this common law has been applied by our courts in this country for a very long time. See Bhupati Bhushan Mandal Vs. Jadunath Ghosal reported in AIR 1955 Cal 70 (para 9), Nunia Mal & Anr. Vs. Maha Dev reported in AIR 1962 P & H 299 (para 17) and Prabir Guha Vs. Uttam Chand Surana reported in 2011 (2) CHN 665 (para 41).

Mr. Jethamalani, is absolutely right in his submission that the Indian Easements Act 1882 is not applicable to West Bengal. Even if the Indian Easements Act 1882 has no application in the State of West Bengal, the english common law with regard to easements, which has been applied in our country, by the age old decisions, does apply to this State. This Act, in my opinion, is nothing but a mere codification of the english common law relating to easements.

That is the justification for holding, in my view, that the principles of Indian Easements Act apply to our State.

Let us see how this common law developed in England and how it has been applied in our country.

Access to and use of ancient light as an easement and its infringement was discussed in a very early case of 1752 Fishmongers’ Co. Vs. East-India Company reported in (1752) 1 dick 163, by the House of Lords. To constitute infringement the obstruction should amount to a nuisance. In Back Vs. Stacey reported in (31) RR 679 and Parker Vs. Smith supra (1862) 38 RR 828, nuisance was defined as an illegality to a dwelling and damage caused by it. Chief Justice Tindal pronounced the dicta that to constitute infringement of the right to light and air, it should be so diminished so as to “sensibly” affect the occupation of the plaintiff’s premises and “make them less fit for occupation”. This was also affirmed in another House of Lords decision in Clarke Vs. Clark reported in 1865 (L.R.) 1 Ch.16.

What is nuisance? According to the House of Lords in Hunter Vs. Canary Wharf Limited (1997) AC 655 it is actionable user of land, so as to interfere with the plaintiff’s rights in it. According to the Supreme Court in Rafat Ali Vs Sugni Bai & Ors. 1999 (5) SCC 133 nuisance is an unlawful act in relation to property which results in damage.

Then came the celebrated case of Colls Vs. Home and Colonial Stores, Ltd reported in (1904) AC 179, before the same House. Different law lords pronounced different opinions. But, from a reading of the whole judgment, the ratio appears to be that it affirmed the principle that nuisance had to be caused by the obstruction of ancient light which was enjoyed uninterruptedly for 20 years by the owner on occupier of the dominant tenement . By such use the right had become absolute and indefeasible. (See Lord Lindlay’s speech).

The amount of light received had to be judged according to the “surrounding and circumstances of light coming from the other sources and the proximity of the premises complained of”. It was always “a question of degree” (see Lord Robertson’s speech). The dictum which is oft quoted is one of Lord Davey to the following effect :

“According to both principle and authority, I am of opinion that the owner or occupier of the dominant tenement is entitled to the uninterrupted access through his ancient windows of a quantity of light, the measure of which is what is required for the ordinary purposes of inhabitancy or business of the tenement according to the ordinary notions of mankind, and that the question for what purpose he has thought fit to use that light, or the mode in which he finds it convenient to arrange the internal structure of his tenement, does not affect the question. The actual user will neither increase nor diminish the right”.

Now, Colls Vs. Home and Colonial Stores became a part of our law after a suit was instituted in this High Court by the owner of a building complaining of erection of a higher building on the eastern side. All along the plaintiff had been enjoying uninterrupted access to and use of light from the eastern side because the other buildings on that side were much lower in height. The suit of the plaintiff was dismissed by the learned trial Judge. An appeal was preferred before a Division Bench of this Court which dismissed the appeal. Thereafter, a further appeal was preferred before the Privy Privy Council. (P.C.E Paul and Another Vs. W. Robson and Others reported in AIR 1914 Council). The tests for ascertaining whether interruption of light amounted to nuisance against the property of the plaintiff, as laid down in the Colls case, were approved and applied by the Privy Council in this appeal. It held that the courts below had correctly appreciated the principles and applied them in the facts and circumstances of the case.

Applying the same principles the Supreme Court remarked in Chapsibhai Dhanjibhai Danad Vs. Purushottam reported in 1971 (2) SCC 205.

“There must be a substantial privation of light, enough to render the occupation of the house uncomfortable, according to the ordinary notions of mankind”. (paragraph 22) Very importantly, the Supreme Court also held in paragraph 23, that it also had to be shown in detail, how raising of a construction would cause this substantial privation of light so as to make occupation of the house uncomfortable. This was emphasized by Mr. Jethmalani, to say that the plaint and the petition of the plaintiff were lacking in material particulars with regard to the details of infringement of the easement of light.

A Division Bench of this High Court pronounced the same principle In Re: Reba Samanta (1993) ILR 1 Cal 317. Mr. Justice S.K. Mukherjee opined as follows :

“In the first place, the disputed property on which the construction in progress is sought to be thwarted admittedly belongs to the opposite parties. The proposed construction again admittedly is being done on the basis of a sanctional plan and ordinarily every person has a right of constructing without interruption in such a situation, it is well settled by several judicial decisions that in order to succeed in preventing such legal right to construct on one’s own land, it is to be established that the construction would result in actionable nuisance against the complainant. In the case of a complaint of actionable nuisance regarding air and light one must show that the interference with the enjoyment of the same is such that it results in substantial deprivation of a comfortable user of the document tenement impossible. In the instant case, the lower appellate Court has overlooked, to arrive at a prima facie satisfaction, on the points as indicated above. The entire approach of the lower appellate Court is endeavoured to be justified on the basis that no prejudice would be caused to the opposite parties. If during the pendency of the suit injunction regarding the disputed construction is issued. This approach can be unhesitatingly said to be wrong with the immediate result of issuance of an interim order disregarding the basic criteria for exercise of jurisdiction in such a case. Even the only reasoning of the lower appellate Court can have no bearing in the event of success of the Plaintiff in the suit as there is already a prayer for relief by way of mandatory injunction”.

Grant of Injunction Before discussing whether this court should grant or refrain from granting an order of injunction in this case, a little background regarding exercise of this jurisdiction is necessary. In England, the courts of equity granted injunction. It did not grant damages. It appears that this kind of cases was heard by the courts of equity. By an Act of Parliament popularly known as Lord Cairn’s Act 1858, the courts of equity were empowered to grant damages in lieu of or in addition to injunction. It was always a matter of exercise of judicial discretion.

The leading case on the subject is Shelfer Vs. City of London Electric Lighting Company (1895) (1) Ch 287 decided by the Court of Appeal. The complaint was about nuisance caused by vibration of engines. The type of nuisance was mainly sound and circulation of dust. The Court opined that nuisance had first to be established. Then it prescribed certain tests to be applied by the courts to decide the type of relief to be granted by it. Was the relief to be in the form of damages or injunction or both? Once the prima facie case was established the court had to see whether the alleged act of nuisance was trivial and occasional? Whether damages were an adequate remedy and could be fairly estimated in terms of money? Whether the plaintiff had instituted the action to extract money? Whether the action was vexatious and oppressive for the defendant? If the nuisance was significant the damages to be awarded would be significant. In that situation, the court would lean in favour of granting an injunction. Awarding damages would amount to “buying” the property rights of the plaintiff, against his wish.

The case of Colls reiterated the principles of Shelfer and added that if the defendant was acting in a high-handed manner or was trying to evade the jurisdiction of the court, then an injunction ought to be granted. The judges in Colls did not grant the injunction but in Shelfer, injunction was granted.

In a case of partial diminution of light a Division Bench of the Bombay High Court as early as in 1889 opined that the plaintiff should be sufficiently compensated by damages and awarded damages accordingly. (Dhunjibhoy Cowasji Umrigae Vs. Lisboa ILR 1889 (13) Bom 252). In Lakshmi Narain Banerjee Vs. Tara Prosanna Banerjee (1904) ILR 31 Cal 944, a Division Bench of this Court granted an injunction in a case complaining of breach of easement right by overhanging branches of a tree and penetration of the soil by a growing network of roots. Our Courts in P.C.E Paul & Anr. Vs. W. Robson & Ors reported in (AIR 1914 PC 45), Chapsibhai Dhanji Danad Vs. Purushottam reported in (1971 (2) SCC 205) and In Re: Reba Samanta reported in (1993 (ILR) 1 Cal 317) considered all relevant factors and did not grant an injunction.

In Regan Vs. Paul Properties Ltd. & Ors. reported in 2007 (4) All.E.R. 48 which was a Court of Appeal judgment, the principles of Shelfer were applied. It was proved by the owner of a Maisonette that two properties which were being built opposite his at a distance of 12.8 metres and comprising of five stories resulted in substantial deprivation of light to the plaintiff’s premises. An order of injunction was issued. Even after hundred years of Shelfer, the Court of Appeal maintained that it was always a matter of discretion to be used by a court whether to grant an injunction or not.

A new test appears to have been added in the case of HKRUK II (CHC) Limited Vs. Heaney (2010) EWHC 2245 (Ch), a Chancery bench judgment. The court is to assess whether the defendant was deriving profit out of the transaction and which in my opinion means profit even after paying damages. The dicta of Shelfer was followed by a Single Judge of this Court in Parma Singh Vs. Tulsi Charan Goswami 41 CWN 794. Coventry & Ors. Vs. Lawrence & Anr. (2014) UKSC 13 is the latest decision of the English court on the subject. It was decided by the United Kingdom Supreme Court.

It is very difficult to understand the ratio of this case. In one part of the judgement it is suggested that despite planning permission a neighbour whose private rights might be infringed by the construction of a property could enforce them in a nuisance action. Whilst granting planning permission the authority is not assumed to have decided the neighbour’s common law rights (See para-95).

In paragraph-101 of the judgment the Court opined that when the plaintiff had established nuisance, he was entitled to injunction. In the very next line the Court seeks to analyse the effect of Lord Cairns’ Act and says that damages may be granted in lieu of injunction.

In paragraph 103-104 some passages from the case of Shelfer are discussed. Then again the case of Kine Vs Jolly (1905)1 Ch 480 was discussed in paragraph-106 of the report where the Court of Appeal was less inclined than in Colls and Shelfer to grant an injunction. In paragraph-119 the UK Supreme Court remarked that the tests in the Shelfer case were rigid and should be made more flexible. Damages should not be restricted to exceptional cases (see para 119). The Court quoted the passage from the speech of Lord Macnaghten in the Colls case. Th The Court should be inclined to grant damages if the conduct of the defendant had not been unfair or unneighbourly.

It appears from the ratio of this case that after analysis of all the cases on the subject that the Court was of the opinion that all the relevant factors had to be considered before deciding whether to grant an injunction or not. New factors were introduced in this judgement. The injunction may involve the loss or waste of public resources. The financial loss of the defendant may be disproportionate to the damage done to the claimant. The grant of a planning permission was seen as an administrative decision. (in para 222 of the Judgment).

A passage from a judgement of the Court of Appeal in Barr Vs. Biffa Waste Services Ltd reported in (2013) QB 455 was quoted with approval in paragraph-92 of this judgement. Paragraph 92 is inserted below:

92. In my view, therefore, Carnwath LJ was right when he said in Barr v. Biffa Waste Services Ltd. (2013) QB 455, Para 46(ii), that “The common law of nuisance has co-existed with statutory controls, albeit less sophisticated, since the 19th century. There is no principle that the common law should ‘march with’ a statutory scheme covering similar subject matter. Short of express or implied statutory authority to commit a nuisance…, there is no basis, in principle or authority, for using such a statutory scheme to cut down private law rights“.

On my reading and assessment of this judgment I tend to form the view that as Lord Macmillan had observed in the case of Donoghue Vs. Stevenson reported in 1932 AC 562 that the categories of negligence were never closed, similarly, the factors which should be considered by the judge in coming to a decision whether to grant an injunction or not in easement infringement cases are never closed and vary with the circumstances, from case to case.

It is also useful to remember the dictum in the case of Sturges Vs. Brizman (1879) 11 Chd 852 that ” what would be a nuisance in Belgrave Square would not necessarily be so in Bermondsey”. It is possible to have a mansion in a village with wide open spaces on each and every side of the building. But it is quite a different thing to have a mansion in a crowded city like Kolkata and to think that wide open spaces which were available at the time of its purchase would continue to be available in the same way for years together. If a person came to build on the neighbourhood of the village mansion, the owner or occupier would certainly have the right to protect his right to ancient light, more vigorously than he would be able to do in a crowded city. When it comes to a crowded city the standards of assessment become different than those applicable to a village. A person has to remain content with much less amount of ancient light then he needs or wants.

Prima facie case The only evidence which the plaintiff has sought to put forward in support of their claim in the suit is the report of an expert on light, Gordon Ingram and Associates.

It is quite plain that there is no interruption of light to the northern, southern and eastern parts of Fountain Court. Only the western part would be allegedly affected. The report has relied on the 50/50 rule. There is no doubt that this 50/50 rule has wide acceptance. (See the unreported case of William Cory Vs. City of London Real Property Ltd. decided on 10th May, 1954; Ough Vs. King reported in (1967) 3 All.E.R 859; HKRUK II CHC Ltd. Vs. Heaney (2010) EWHC 2245 (Ch).

The rule is this. 50 per cent of an area should have .2 percent or more than 0.2 per cent sky factor of ancient light. The report, however, goes on to add that even if the sufficiently lighted area is more than 50 per cent, still a case of deprivation of light can be made out. Appended to the report are drawings, plans, maps, charts and so on. These drawings represent the net result of the findings made by the expert. What were the findings that led to these results are not disclosed in the report. Say for example, if you take one room from the drawings attached. Let us assume that a shaded part or a hatch marked part represents a sufficiently lighted part of it. Therefore, the light in that part of the room is equal to or more than what is represented by 0.2 per cent sky factor. At the time of making of the survey, no construction had been made. The only information given by the defendant was that a 270 metre tall 60 storied tower would come up at the said lateral distance on the western side of Fountain Court. There is no mention of any measurement taken or data collected or experiments performed at the site or in a laboratory. No calculations or workings or formulae are shown to justify the results arrived at. It could at best be the opinion of the expert, based on his experience, given the limited data which was available to him.

On my part, I do not take the report as sacrosanct. It has to stand the test of trial. Mr. Ingram has to be examined and cross- examined. The defendant should be given an opportunity of producing their witness and their counter report to contradict this evidence.

But let us assume that Mr. Ingram is a recognised expert and that his opinion should be given some value. Even going by the opinion in the report, I do not think that there would be substantial deprivation of light. On my study of the expert’s report with the annexures, I do not find that a single drawing room or living room is affected. Look at appendix 5 of the report. It is a day light distribution analysis. It measures the diminution of light in square feet. Out of ten bedrooms facing the western side, only two are allegedly affected, one by 34.9 per cent and the other by 40.2 per cent.

In my prima facie opinion there would only be a partial diminution of light on the western side. Assuming the above data to be correct, habitancy cannot become so uncomfortable, as to amount to a nuisance. Following the ratio of the authorities discussed above, where the diminution of light is not substantial, damages are an adequate remedy. Injunction should not be issued.

Furthermore, as I have mentioned before it took the plaintiff about six months to file the suit after receiving the communication from the defendant that they proposed to build the tower. The plaintiff has tried to explain this delay by saying that they called in an expert from London to make the survey and furnish a report to them. The report was made available on 19th July 2013. Even after receiving the report it took the plaintiff about three weeks’ time to file the plaint. In order to get an order of injunction the plaintiff has to act with great expedition. The action which the plaintiff proposes to maintain is quia timet. It was all the more necessary that the plaintiff moved at a much faster pace, than they did to obtain an order of injunction.

Moreover, when this application was moved before Justice Patherya and her ladyship refused to pass an interim order, no steps were taken by the plaintiff to prefer an appeal. They were content to allow the defendant to file an affidavit in opposition to the petition and to make the application ready for hearing, so that they might pray for an order of injunction, a second time when the application would be heard after filing of affidavits. It is this application after filing on affidavits, which is before me.

Furthermore, these authorities tell us that if an order of injunction is oppressive to the defendant it should not be passed by the court. In my opinion, in the above situation, an order of injunction would be oppressive for the defendant. Furthermore, damage caused to the defendant by grant of the injunction will be much more than the damage to the plaintiff by non-grant of it (see Coventry and Ors. Vs. Lawrence and Anr). And it has been clearly laid down in the above case that the decision whether to grant or not to grant an order of injunction is exercise of discretion by the Court taking into account each and every fact in issue. Considering the above facts I do not think that I should exercise this discretion.

While concluding, I would like to dispose of one more point: whether sanction of a building plan by a municipal authority is in supersession of easementary rights? My answer is no, fortified by Kamalakanta De Vs. Radhabalav Kundu reported in 84 CWN 624 (Para-15), Dhannalal & Ors. Vs. Thakur Chittarsingh Mchtapsuigh reported in AIR 1959 MP 240 (Paras 6 & 7) and Wheeler vs. J.J. Sanders Ltd. & Ors. Reported in 1995 (2) All.ER 697, Coventry Vs. Lawrence & Anr. (2014) UKSC 13 ( Para 89, 94, 95). To my mind the express mandate of the statute can be set up as a defence say, for example, when by an Act of Parliament the Kolkata metro rail was to be set up. Under its operation buildings were damaged, people had to bear up with unbearable noise, vibrations, polluting substances and so on. There was no remedy except those under the Act, which was compensation. Building according to the building rules does not get such protection according to the above authorities.

Before parting with the case I should deal with one more submission of Mr. Jethmalani. He argued that on the western side of Fountain Court there were only wide open spaces before the defendant acquired premises no. 42B Chowringhee Road and started building on it. He said that the right of easement had to be openly exercised and in a manner hostile to the servient owner. Since there was nobody to challenge the plaintiff they could not claim 20 years’ uninterrupted access to and use of light. This is plainly incorrect. There could be no wide open space of land without an owner, even if there was no occupier. There is nothing in the authorities above to suggest that the right to access and use of light has to be open and hostile as against the servient owner. Fountain Court always had a servient tenement on the western side through which it enjoyed uninterrupted light for 20 years. This created a right of easement in their favour.

Under those circumstances, the order of injunction as prayed for by the plaintiff is refused. Their right to claim damages against the defendant at the trial of the suit is preserved. Their right to apply for injunction in case there is deviation from the existing building plan by the defendant is also preserved. This application is disposed of accordingly.

Certified photocopy of this Judgment and order, if applied for, be supplied to the parties upon compliance with all requisite formalities.

I.P. MUKERJI, J.





What is common law legal system

Common law

This article concerns the common-law legal system, as contrasted with the civil law legal system; for other meanings of the term, within the field of law .

The common-law legal system forms a major part of the law of many countries, especially those with a history as British territories or colonies. It is notable for the inclusion of extensive non-statutory law reflecting a consensus of centuries of judgements by working jurists.

History of the common law

The common law originally developed under the auspices of the adversarial system in historical England from judicial decisions that were based in tradition, custom, and precedent. The form of reasoning used in common law is known as casuistry or case-based reasoning. Common law may be unwritten or written in statutes or codes. The common law, as applied in civil cases (as distinct from criminal cases), was devised as a means of compensating someone for wrongful acts known as torts, including both intentional torts and torts caused by negligence and as developing the body of law recognizing and regulating contracts. Today common law is generally thought of as applying only to civil disputes; originally it encompassed the criminal law before criminal codes were adopted in most common law jurisdictions in the late 19th century. The type of procedure practiced in common law courts is known as the adversarial system; this is also a development of the common law.

Before the institutional stability imposed on England by William the Conqueror in 1066, English citizens were governed by unwritten local customs that varied from community to community and were enforced in often arbitrary fashion. For example, courts generally consisted of informal public assemblies that weighed conflicting claims in a case and, if unable to reach a decision, might require an accused to test guilt or innocence by carrying a red-hot iron or snatching a stone from a caldron of boiling water or some other “test” of veracity (trial by ordeal). If the defendant’s wound healed within a prescribed period, he was set free as innocent; if not, execution usually followed.

In 1154, Henry II became the first Plantagenet king. Among many achievements, Henry institutionalized common law by creating a unified system of law “common” to the country through incorporating and elevating local custom to the national, ending local control and peculiarities, eliminating arbitrary remedies, and reinstating a jury system of citizens sworn on oath to investigate reliably criminal accusations and civil claims. The jury reached its verdict through evaluating common local knowledge, not necessarily through the presentation of evidence, a distinguishing factor from today’s civil and criminal court systems.

Henry II’s creation of a powerful and unified court system, which curbed somewhat the power of canonical (church) courts, brought him (and England) into conflict with the church, most famously, with Thomas Becket, the archbishop of Canterbury. Things were resolved eventually, at least for a time, in Henry’s favor when a group of his henchmen murdered Becket. For its part, the Church soon canonized Becket as a saint.

As early as the 15th century, it became the practice that litigants who felt they had been cheated by the common-law system would petition the King in person. For example, they might argue that an award of damages (at common law) was not sufficient redress for a trespasser occupying their land, and instead request that the trespasser be evicted. From this developed the system of equity, administered by the Lord Chancellor, in the courts of chancery. By their nature, equity and law were frequently in conflict and litigation would frequently continue for years as one court countermanded the other, even though it was established by the 17th century that equity should prevail. A famous example is the fictional case of Jarndyce and Jarndyce in Bleak House, by Charles Dickens.

In England, courts of law and equity were combined by the Judicature Acts of 1873 and 1875, with equity being supreme in case of conflict. In the United States, parallel systems of law (providing money damages) and equity (fashioning a remedy to fit the situation) survived well into the 20th century in most juridictions: In the federal courts there is no separation between law and equity; Delaware still has separate courts of law and equity, and in many states there are separate divisions for law and equity within one court.

Common law legal systems

The common law constitutes the basis of the legal systems of: England and Wales, the Republic of Ireland, the United States (except Louisiana and Puerto Rico), Canada (except Quebec private law), Australia, New Zealand, South Africa, India, Malaysia, Singapore, Hong Kong, and many other generally English-speaking countries or Commonwealth countries. Basically, every country which has been colonised at some time by Britain except those British colonies that were taken over from other Empires, such as Quebec (following French law to some extent) and South Africa (following Roman Dutch law to some extent) where the prior civil law system was retained to respect the civil rights of the local colonists. India’s system of common law is also a mixture of English law and the local Hindu law.

The main alternative to the common law system is the civil law system, which is used in Continental Europe, the former Soviet bloc, and most of the rest of the world.

Scotland is often said to use the civil law system but in fact it has a unique system which combines elements of an uncodified civil law dating back to the Corpus Juris Civilis with an element of common law long predating the Treaty of Union with England in 1707. Scots common law differs in that the use of precedents is subject to the courts seeking to discover the principle which justifies a law rather than to search for an example as a precedent and that the principles of natural justice and fairness have always formed a source of Scots Law. Comparable pluralistic legal systems operate in Quebec, Louisiana and South Africa. These systems are referred to as mixed legal systems

The U.S. state of California has a system based on common law, but it has codified the law in the manner of the civil law jurisdictions. The reason for the enactment of the codes in California in the nineteenth century was to replace a pre-existing system based on Spanish civil law with a system based on common law, similar to that in most other states. California and a number of other Western states, however, have retained the concept of community property derived from civil law. The California courts have treated portions of the codes as an extension of the common-law tradition, subject to judicial development in the same manner as judge-made common law. (Most notably, in the case Li v. Yellow Cab Co, 13 Cal.3d 804 (1975), the California Supreme Court adopted the principle of comparative negligence in the face of a California Civil Code provision codifying the traditional common-law doctrine of contributory negligence.)

New York State, which also has a civil law history from its Dutch colonial days, also began a codification of its laws in the 19th century. The only part of this codification process that was considered complete is known as the Field Code applying to civil procedure. The original colony of New Netherlands was settled by the Dutch and the law was also Dutch. When the British captured pre-existing colonies they continued to allow the local settlers to keep their civil law. However, the Dutch settlers revolted against the English and the colony was recaptured by the Dutch. When the English finally regained control of New Netherlands — as a punishment unique in the history of the British Empire — they forced the English common law upon all the colonists, including the Dutch. This was problematic as the patroon system of land holding, based on the feudal system and civil law, continued to operate in the colony until it was abolished in the mid-nineteenth century. The influence of Roman Dutch law continued in the colony well into the late nineteenth century. The codification of a law of general obligations shows how remnants of the civil law tradition in New York continued on from the Dutch days.

Basic principles of common law

Statutes which reflect English common law are understood to always be interpreted in light of the common law tradition, and so may leave a number of things unsaid because they are already understood from the point of view of pre-existing case law and custom. This can readily be seen in the area of criminal law, which while remaining largely governed by the common law in England, has been entirely codified in many US states. Codification is the process where a statute is passed with the intention of restating the common law position in a single document rather than creating new offences, so the common law remains relevant to their interpretation. This is why even today American law schools teach the common law of crime as practiced in England in 1750, since the colonies (and subsequently the states) deviated from the common law as practiced in England only after that date.

By contrast to the statutory codifications of common law, some laws are purely statutory, and may create a new cause of action beyond the common law. An example is the tort of wrongful death, which allows certain persons, usually a spouse, child or estate, to sue for damages on behalf of the deceased. There is no such tort in English common law; thus, any jurisdiction that lacks a wrongful death statute will not allow a lawsuit for the wrongful death of a loved one. Where a wrongful death statute exists, the damages or compensation available are limited to those outlined in the statute (typically, an upper limit on the amount of damages). Courts generally interpret statutes that create new causes of action narrowly — that is, limited to their precise terms — because the courts generally recognize the legislature as being supreme in deciding the reach of judge made law unless such statute should violate some “second order” constitutional law provision (compare judicial activism).

Where a tort is grounded in common law, then all damages traditionally recognized historically for that tort may be sued for, whether or not there is mention of those damages in the current statutory law. For instance, a person who sustains bodily injury through the negligence of another may sue for medical costs, pain, suffering, loss of earnings or earning capacity, mental and/or emotional distress, loss of quality of life, disfigurement, and more. These damages need not be set forth in statute as they already exist in the tradition of common law. However, without a wrongful death statute, most of them are extinguished upon death. An old saying (in US states with no or low wrongful death damages) was: “It is better to back up and over the person to ensure his death and limit your legal liability!”

Works on the common law

The definitive historical treatise on the common law is Commentaries on the Laws of England, written by Sir William Blackstone and first published in 1765 – 1769. Since 1979 a facsimile edition of that first edition has been available in four paper-bound volumes. Today it has been superseded in the English part of the United Kingdom by Halsbury’s Laws of England that covers both common and statutory English law. The U.S. Supreme Court judge Oliver Wendell Holmes Jr also published a short volume called The Common Law which remains a classic in the field. In the United States, the Corpus Juris Secundum is a compendium of the common law and its variations throughout the various state jurisdictions.




Common Law Application

When the  Statute Law on a subject is silent, the Common Law is to govern it; and what is the Common Law, depends upon principle and precedent.

Common law

The legal system that originated in England and is now in use in the United States, which relies on the articulation of legal principles in a historical succession of judicial decisions. Common law principles can be changed by legislation.

Case law

The law as established in previous court decisions. A synonym for legal precedent. Akin to common law, which springs from tradition and judicial decisions.

With the end of the Tudor dynasty following the death of Elizabeth in 1603, James VI of Scotland inherited the throne of England as James I, thereby uniting the two kingdoms in the “union of the crowns.”  At once there was considerable debate concerning the extent of union effected by the succession of the Scottish King to the crown of England.  James, however, considered a regal union alone to be insufficient. Upon his arrival in England, James advocated a closer unity between the laws, institutions, economies, and churches of England and Scotland to protect and strengthen the Stuart dynasty.

In the early years of his reign, James himself led a sizable literary effort advocating a closer union.  Of particular importance were the discussions of naturalization contained in proposals to unite the laws of the two countries, written by both common lawyers and civil lawyers.  Civil lawyers, also known as “civilians,” were a relatively  small group of professionals who studied Roman law–the Corpus Juris Civilis as systematized and interpreted in the twelfth and succeeding centuries by scholars, notably the glossators and, later, the post-glossators or commentators.  Civilians had earned the degree of Doctor of Civil Law at Oxford, Doctor of Laws at Cambridge, or an equivalent degree at a continental university, and their professional practice as lawyers was primarily in the ecclesiastical courts, the High Court of Admiralty, and the High Court of Chivalry. Civil lawyers in the early seventeenth century in England were closely identified with crown interests because they relied on royal patronage for their professional livelihood.

The most pressing question of political debate soon became the legal status of James’s Scottish subjects in England. According to English law, were Scots aliens or were they subjects, capable of possessing and asserting at least some of the rights of English subjects, including holding land and suing in English courts? These political issues were fully debated in Parliament beginning in 1604, but the matter was not settled there.  Instead, the King’s men “determined to settle the point out of Parliament in the regular way, by resorting to the English courts of justice.”

In 1607, two civil suits were initiated in the King’s Bench and Chancery over two estates in England conveyed to a Scottish child, named as Robert “Calvin” in the pleadings, though evidence indicates the child’s true name was Robert “Colville.” Robert was born in Scotland after 1603, the year in which the English throne descended to James. Robert’s guardians, John and William Parkinson, initiated the suits, claiming that Robert had been forcibly dispossessed of both estates. The defendants in the King’s Bench were Nicholas and Robert Smith. Robert Calvin complained that the defendants *82 “unjustly, and without judgment, have disseised him of his freehold in Haggard” (Haggerston, parish of St. Leonard in Shoreditch).  One “Bingley” was the defendant in the Chancery case on a similar writ concerning an estate in Bishopsgate, St. Buttolph’s.  The defendants in both cases responded with a plea “in disability of Robert Calvin’s person” that the writs were inadmissible because Calvin was an alien.  Calvin was an alien, they argued, because he had been born “within [James’s] kingdom of Scotland, and out of the allegiance of the said lord the King of his kingdom of England.”  If Calvin were an alien, he would, according to English law, be unable to be seised of a freehold in England. The defendants’ plea thus made the status of persons born in Scotland after the accession of James I to the throne of England the paramount legal issue.

The two cases were adjourned to the Exchequer Chamber to be heard by all the King’s Bench and Common Pleas justices as well as the Lord Chancellor and barons of the Exchequer. In June 1608, fourteen justices assembled for arguments in the case. Coke reports that “the five judges of the King’s Bench, who adjourned this case into the Exchequer Chamber, rather adjourned it for weight than difficulty.”  Serjeants Laurence Hyde and Richard Hutton represented the defendants.James’s own Solicitor General, Francis Bacon, along with Attorney General Henry Hobart, argued the plaintiff’s position on behalf of the crown.  All but two of the justices determined that persons born in Scotland after the accession of James to the throne of England (the postnati, as they were referred to in the case) were to be regarded not as aliens in England but as natural-born subjects, qualified to inherit English land. The postnati as subjects born into the allegiance of James after he became King of England owed their allegiance to the sovereign of England as well as Scotland.  By constrast, the antenati, those born before 1603, were  born into the allegiance of a King with no relation to the English throne. Therefore, unless the antenati were naturalized by statute, these Scottish subjects of James remained aliens as a matter of English law.

In 1605, Sir Thomas Craig, a Scottish lawyer trained in the civil law, wrote about the working of precedent in English customary law. As in Scotland, Craig wrote, judges of English common-law courts “give the first place to the provisions of statutory or Parliament-made law, provided the subject at issue is dealt with, permitted, or prohibited in any statute. . . . If statute law offers nothing to instruct a judicial decision, recourse is had in England to common law.”  This “common” or “customary” law, according to Craig, was the “system of law the English kings at their coronation solemnly promise to respect as unchangeable and inviolable.”  If neither statute nor common law avail “to satisfy the judge,”  then next in order of preference come maxims, local custom, and finally “the precedents set by previous judicial decisions.”  Of these precedents, Craig wrote:

If no guidance can be obtained from custom, general axioms, or prescription, then the precedents set by previous judicial decisions in similar cases, and particularly in the Court of King’s Bench, must be followed, on which fresh cases when they arise must be decided if the circumstances are similar. Against a decision based on precedents there is no effective exception or reply other than proof that the circumstances of the two cases differ; and the smallest detail of difference frequently avails to break down the alleged similarity of fact. . . . If one party to the action can produce a case where the judgment supports his own contention, the other argues with all his might that the circumstances of the case before the court are distinguishable from those of the precedent quoted. It is left to the judge to pronounce which is right, and to state the points of resemblance or difference between the two cases.

Craig based his conclusions on observation only, disclaiming any first-hand experience with the English courts. Nonetheless, Craig confirms the importance of statutes in the English courts, although his view does not fully resonate with Coke’s view that statutes may themselves only embody or evidence the ancient, customary law of England.

Francis Bacon’s Proposal: The Law of Nature

Bacon, as counsel for the plaintiff, disagreed with the proposition that allegiance must be either to the King’s body politic or his body natural. Bacon argued that while the King might have a body politic for some purposes– to resolve questions of the validity of a prince’s acts before ascending the throne as sovereign -the common law of England had always held that the two were inseparable. Bacon quoted from Plowden: “There is in the King not a body natural alone, nor a body politic alone, but a body natural and politic together: Corpus corporatum in corpore naturali, et corpus naturale in corpore corporato.”  (The corporate body subsists in a natural body, and the natural body in a corporate body.) Bacon denied that the cum duo jura maxim held otherwise, and denied that the maxim was applicable to English common law:

It is a rule of the civil law, say they . . . when two rights do meet in one person, there is no confusion of them, but they remain still in the eye of law distinct, as if they were in several persons: and *109 they bring examples of it of one man bishop of two sees . . . .But this rule receiveth no forced or coined but a true and sound distinction or limitation, which is, that it evermore faileth and deceiveth in cases where there is any vigor or operation of the natural person.

Bacon made no further reference to this maxim, nor did he explain on what ground it was inapplicable. Rejecting the idea that allegiance was to the King’s body politic, however, did not avoid the defendants’ additional claim that allegiance was due by the laws of England.  Allegiance might be to the King’s natural body, but if this allegiance were a function of the laws of James’s separate bodies politic, Robert Calvin would still be an alien in England.

Bacon’s answer was that allegiance was due not by the law of either England or Scotland alone but by the law of nature, itself a part of the law of England, as it was part of the laws of all nations:

Law no doubt is the great organ by which the sovereign power doth move, and may be truly compared to the sinews in a natural body . . . . But towards the King himself the law doth a double office or operation: the first is to entitle the king, or design him . . . . The second is . . . to make the ordinary power of the King more definite or regular. . . . But I demand, do these offices or operations of law evacuate or frustrate the original submission, which was natural? Or shall it be said that all allegiance is by law? No more than it can be said, that potestas patria, the power of the father over the child, is by law. And yet no doubt laws do diversely define of that also; the law of some nations having given the fathers power to put their children to death; others, to sell them thrice . . . . Yet no man will affirm, that the obedience of the child is by law, though laws in some points do make it more positive: and even so it is of allegiance of subjects to hereditary monarchs, which is corroborated and confirmed by law, but is the work of the law of nature.

In support of the claim that allegiance was due to a sovereign by the law of nature, Bacon offered “divers acts of Parliaments” that titled the King “our natural sovereign and liege lord.”  Further, according to Bacon, “allegiance began before laws”: “The original age of kingdoms was governed by natural equity . . . . Kings were more ancient than lawgivers and the first submissions were simple  . . . .”  Bacon’s arguments are particularly noteworthy because they strongly resonate with Bodin’s writings concerning the source of the obligation of allegiance.  Bacon’s analogy of the source of the duty of allegiance in the law of nature, similar to the operation of natural law within families, also appears in Bodin’s Republique.

An additional step remained. In order to find that the allegiance due by the law of nature to the King’s natural body meant that James’s Scottish and English subjects were mutually naturalized, Bacon argued:

For, my lords, by the law of nature all men in the world are naturalized one towards another. . . . It was civil and national laws that brought in these words, and differences, of civis and exterus, alien and native. And therefore because they tend to abridge the law of nature, the law favoureth not them, but takes them strictly . . . . So by the same reason, all national laws whatsoever are to be taken strictly and hardly in any point wherein they abridge and derogate from the law of nature.

Bacon offered no further proof that natural law required this result. Perhaps the paucity of evidence reveals a difficulty in refuting the defendants’ two- body theory of allegiance and overcoming the prevailing notion that the nerves of England’s body politic–an idea favoring a positive law of allegiance– should determine the status of the postnati.

Example of application

The common law is the basis of the jurisprudence of this state. Constitution of West Virginia, article 8, § 21. Its principles are controlling, save as changed by statute. Under the common law, one spouse can not maintain against the other an action for damages for personal injuries arising within the period of the marriage. 30 Corpus Juris, page 954; Madden on Domestic Relations, page 220; Strom v. Strom, 98 Minn. 427, 107 N. W. 1047, 6 L. R. A. (N. S.) 191, 116 Am. St. Rep. 387. That is the law of this state today unless it has been changed by statute. Plaintiff’s contention that there has been such change is sought to be based on Code, 48-3-19. It reads:

“A married woman may sue or be sued alone in any court of law or chancery in this State that may have jurisdiction of the subject matter, the same in all cases as if she were a single woman, and her husband shall not be joined with her in any case unless, for reasons other than the marital relation, it is proper or necessary, because of his interest or liability, to make him a party. In no case need a married woman, because of being such, prosecute or defend by guardian or next friend.”

It is urged that the provision that a married woman may sue or be sued “the same in all cases as if she were a single woman” is of sufficient breadth to include actions between husbands and wives. That result would be possible only if great liberality of construction were proper to be applied. But such would not be the correct manner of approach. There is a fundamental rule that statutes in derogation of the common law are to be strictly construed. Kellar v. James, 63 W. Va. 139, 59 S. E. 939, 14 L. R. A. (N. S.) 1003; State v. Grymes, 65 W. Va. 451, 456, 64 S. E. 728, 17 Ann. Cas. 833; II Sutherland Statutory Construction (2d Ed.) § 454. “Statutes in derogation of the common law are allowed effect only to the extent clearly indicated by the terms used.” Bank v. Thomas, 75 W. Va. 321, 83 S. E. 985. A fundamental and time- honored principle of the common law is not to be deemed uprooted by implication.

In changing certain common law provisions in respect of the rights of married women, the legislature has been specific and unequivocal. For example, a married woman may become a business partner with any person “including her husband.” Code, 48-3-18. She shall be liable for her tortious acts, and her husband shall not be liable therefor unless he instigated them. Code, 48-3- 20. These departures from the common law are clear and specific. It is but reasonable to assume that if the legislature had intended to change the common law so that husbands and wives could maintain tort actions against each other, the expression of that intent would have been explicit, as in the two departures instanced. Evidently the purpose of the act was not to authorize damage actions between spouses, but to make it possible for a married woman to sue, or be sued by, a third person, without her husband’s being joined with her as plaintiff or defendant, as was required by the common law.

In Thompson v. Thompson, 218 U. S. 611, 31 S. Ct. 111, 112, 54 L. Ed. 1180, 30 L. R. A. (N. S.) 1153, 21 Ann. Cas. 921, the Supreme Court of the United States had under consideration a statute pertaining to the District of Columbia very similar to ours (above quoted). By the statute there under attention married women were authorized to sue separately for “the recovery, security, or protection of their property, and for torts committed against them, as fully and freely as if they were unmarried.” Code of Laws D. C. 1901, §;1155. In respect thereof the court said: “The limitation upon her right of action imposed in the requirement of the common law that the husband should join her was removed by the statute, and she was permitted to recover separately for such torts, as freely as if she were still unmarried. The statute was not intended to give a right of action as against the husband, but to allow the wife, in her own name, to maintain actions of tort which, at common law, must be brought in the joint names of herself and husband.”

A radical departure from the common law, such as the authorization of damage actions between spouses, should be given birth only through unequivocal legislative enactment. Thompson v. Thompson, supra. A change like that should not come about through judicial interpretation of a statutory provision, which indicates legislative intent to deal with matters other than those arising between husband and wife. Therefore we consider that the common law rule precluding personal tort actions between husband and wife has not been abrogated in this state.





Rajunder Narain Rae VS BIJAI GOVIND SING-20/12/1839

JUDICIAL COMMITTE OF PRIVY COUNCIL

Rajunder Narain Rae, and Cower Mohainder Narain Rae (the two surviving Sons and representatives of Rajah Sree Narain Rae),-Appellants;

Bijai Govind Sing (Son and representative of Bhyajha, deceased),-Respondent 1

ON APPEAL FROM THE SUDDER DEWANNY ADAWLUT OF BENGAL

(REPORTED 2 SUD. DEW.AD. REPS. 23).

Original Citation: (1836-39) 2 Moo Ind App 181

English Reports Citation: 18 E.R. 269

DATE: Dec. 13, 14, 15, 16, 20, 1839.

S.C. 1 Moo. P.C. 117.

Commented on and approved in regard to review of judgments in The Singapore, 1866, L.R. 1 P.C. 388: Ex parte Kisto Nauth Roy, 1869, L.R. 2 P.C. 277; 6 Moo. P.C. (N.S.) 360: Maharajah Pertab Narain, Singh v. Maharanee Subhao Koer, 1878, L.R. 5 Ind. App. 171: Venkata Narasimha Appa Row v. Court of Wards, 1886, 11 A.C. 660; L.R. 13 Ind. App. 155: See also Keerut Sing v. Koolahul Sing, 1839, 2 Moo. Ind. App. 341; Bhugwandeen Doobey v. Myna Baee, 1867, 11 Moo. Ind. App. 506. See next case.

1- Present: Members of the Judicial Committee-Mr. Baron Parke, Mr. Justice Bosanquet, the Chief Judge of the Court of Bankruptcy [Sir Thomas Erskine], and Dr. Lushington. Privy Councillor-Assessor, Sir Edward Hyde East, Bart.

RAJUNDER NARAIN RAE, and COWER MOHAINDER NARAIN RAE (the two surviving Sons and representatives of RAJAH SREE NARAIN RAE),-Appellants;

BIJAI GOVIND SING (Son and representative of BHYA JHA, deceased),-Respondent *

[Dec. 13, 14, 15, 16, 20, 1839].

On appeal from the Sudder Dewonny Adawlut of Bengal

(reported 2 Sud. Dew. Ad. Reps. 23).

A Soluhnamah, or deed of agreement to compromise conflicting claims, entered into in the presence of witnesses and solemnly acknowledged in Court, by parties who were mutually ignorant of their respective legal rights, cannot afterward be set aside upon plea of ignorance of the real facts, when the party seeking to avoid the deed had the means of ascertaining those facts within his reach [2 Moo. Ind. App. 249, 251-2].

Gross fraud and imposition are not to be imputed upon mere suspicion, and unless the charge is proved, a party cannot be released from an agreement entered into by his own solemn act [2 Moo. Ind. App. 246].

The onus of showing that a compromise has been fraudulently obtained by intimidation and false representation, is cast upon those who seek to impeach the validity of their own deed [2 Moo. Ind. App. 244].

By the Common law this Court possesses the same power as the Courts of Record and Statute have of rectifying mistakes which have crept in by misprision or otherwise, in embodying- its judgments [2 Moo. Ind. App. 215, 216, 222, 223].

Where, therefore, an Order had been made ex parte, upon the appearance of the Respondents alone, for the dismissal, of an appeal and affirmance of the judgment of the Court below, which purported to be upon the hearing of the cause, the Judicial Committee held, that such Order must be held simply as a dismissal; and it appearing that the Appellants were infants, under the protection of the Court of Wards in India, and that the Agent appointed by the Court to act as their guardian ad litem, in, the matter of the appeal, had absconded, and abandoned the cause, their Lordships rescinded the Order of dismissal, and restored the appeal on the terms of the Appellants paying the costs and giving access to the transcript of the proceedings in the Court below, in their hands, and undertaking to lodge cases within five months [2 Moo. Ind. App. 222, 223].

In this case there were three appeals between the same parties. The first respected the validity of a deed of compromise entered into by parties having  adverse claims for the property in question. The second, which was incidental, arose from the judgment below being affirmed upon the non-prosecution of the appeal; and the third involved the mode of taking the rests in an account upon which interest was decreed to be paid at the rate of one per cent, per mensem. A claim to the same property had been the subject of a previous appeal (see Eutchmeputty Ttutt Jha v. Rajunder Narain Rae, Ante [2 Moo. Ind. App.] p. 133).

Rajah Inder Narairi Rae was at the time of his death absolutely entitled for an estate of inheritance to the Zemindary of Pergunnah, Havila Poorneah, and was also possessed of personal property consisting of jewels and other effects of great value: he died in the year 1784, without issue, leaving his Widow, Ranee Indrawuttee, him surviving.

Upon his death, the Ranee (who was herself possessed of real and personal estate, which she had enjoyed separately during the Rajah’s life) took possession, according to the Hindoo law, of the zemindary and other property belonging to the late Rajah, both real and personal, and continued in possession during her life.

On the 15th of November, 1803, the Ranee died, having, as it was alleged, about six hours previous to her death, adopted Bhya Jha, the Son of her Uncle, Roodsohut Jha, and the Father of the Respondent, Bijai Govind Sing, as her Khurta Pootra, or adopted Son, and appointed him sole heir to her real and personal estate.

By virtue of such adoption or appointment, and pursuant to the established law and custom of the Country, Bhya Jha performed the Shradh or funeral rites over her corpse, and the other ceremonies required from her constituted legal heir; but the Nazir of the Zillah Court of Poorneah, not being aware of the fact of the adoption, or not crediting it, on the day of her death reported to the Zillah Court that the Ranee had died intestate, that there were none but her servants to take charge of her property and estate, and that it was unknown who was her heir or successor; and expressed his fears that unless measures were taken to protect the moveable property, it would be embezzled and made away with.

In consequence of this report, the Judge of that Court, on the same day, ordered possession of the Ranee’s dwelling-places to be taken by the Darogah of Police, for the purpose of protecting her property.

On the 16th of November, 1803, proclamation was made by the Zillah Judge announcing the attachment of the property belonging to the Ranee, and requiring those who claimed to be entitled to inherit the property of which the Ranee was in possession at her death, to appear and state their claims.

In pursuance of this proclamation, petitions were presented by Sree Narain Rae, (the Father of the present Appellants), Lullit Narain Rae, his Brother, and Ram Narain Rae, a Nephew, stating their descent with the Rajah from a common ancestor, and claiming the property of the deceased Ranee, of which they prayed to be put in possession.

Bhya Jha also filed his claim as the Khurta Pootra, or adopted Son of the Ranee.

Pending these petitions, and before any Orders were made thereon by the Court, Sree Narain Rae, Lullit Narain Rae, Ram Narain Rae, and Bhya Jha agreed to compromise their claims, and for that purpose executed a Soluhnamah, or deed of compromise, bearing date the 11th of December, 1803, which was in the terms following: –

” We, Sree Narain Rae, and Lullit Narain Rae, Sons, and Ram Narain Rae, Grandson of the late Rajah Chunder Narain Rae, Zemindars of the Pergunnahs Kudooah : Whereas Ranee Indrawutte, Zemindar of Pergunnah, Havila Poorneah, having after a short illness died on the 1st of Aughun 1211, Moolkie, being Tuesday, and in consequence of her having no Son, having on that same day, being of a sound mind, and being in full possession of her faculties, constituted Bhya Jha, her maternal first cousin (Mother’s Brother’s Son), her Khurta Pootra and proprietor (Malik) of her zemindary, etc., and the said Bhya Jha, after performing the Shradh of the said Ranee, having presented petitions to the Judge and Collector, praying to be permitted to assume the management of the said zemindary, and to possess himself of the whole zemindary and property, moveable and immoveable, to the exclusion of all other persons, in like manner as they were possessed by the said Ranee, but whereas we are descended from the same common stock with the late Rajah Inder Narain, the Husband of the late Ranee, by seven and eight removes, and are thus entitled, and Bhya Jha is also entitled in virtue of the Khurta Pootra, as well as from his near relationship ; and whereas the contest for so great a zemindary from the Zillah to the Presidency, nay even to England, would require the age of Noah to be passed in seeking jus-[185]-tice, and in anxiety and care, and make us waste our existence, and after all be like the dispute of Ummur and Zaid ; considering these things, and considering, moreover, that life is unstable and precarious, and that nothing that this world can give is worth kindling discord among us and deceiving ourselves for the encouragement of incendiaries, and to gratify the malice of the envious, and that from such contest nothing could result but reproach and dishonour to our illustrious family, which our predecessors in this great Raj having deemed unworthy, and from the beginning of the Raj to the time present, such domestic disputes have never happened, and life is but a few days, and enmity between relations is esteemed by men of elevated rank the worst of all things, therefore, we and Bhya Jha, the said Khurta Pootra, who is a person having right, and not a stranger calling to mind the name of Bhugwan, than which there is nothing more precarious either in this world or in eternity, have mutually pledged our faith and truth, and by firm agreement and fearful oaths entering into peace and concord, declaring and meaning both of us, the same have agreed to become satisfied with equal shares of the whole of the property, moveable and immoveable, composing the estate left by the late Ranee, and consisting of cash, goods, Pergunnahs, both of the former zemindary and the zemindary recently acquired by private and public sale, revenue and rent free debts, Nankur credits, mercantile concerns, etc.; that, is to say, the said Bhya Jha shall hold the right and property of one half the said zemindary, etc., and we the other half, whatever profits shall be forthcoming from the Malguzary after discharging the revenue of Govern-[186]-ment from the zemindary right, etc. We will at the end of the year account for to each, that is to say, the profits of eight Anas, or one half of the zemindary, shall be our right, and the profits of the other half Bhya Jha’s, and we shall have no claim thereunto. If, which God forbid, the public revenue should fail, both parties, to wit, We, the three persons .aforesaid, and Bhya Jha, will personally make good the loss, and after our own names and Bhya Jha’s shall be made current in the zemindary, and we shall have obtained a Perwannah and Sunnud from the ruler, for the time being, and shall have secured the revenue for 1211 Moolki, if such be the will of both parties, We the said three persons, and Bhya Jha, making a partition between us, will take eight Anas of the whole property, moveable and immoveable, etc., being his share. Designing, therefore, to enter into given engagements, we have of our own free will and consent, and on our own faith and truth, granted this writing as an agreement and declaration, the intent of which is to establish firm records between the parties to terminate our differences, and to perpetuate the illustrious name of the deceased Ranee, so that it may be a valid document for the future, and prevent any fraud or deceit on either side; and that as we have no longer any claims against Bhya Jha, should we prefer any claim of right or inheritance according to the Shiruh, or in the Adawlut of the Hakim, it may be deemed incapable of being entertained or heard with a view to proof; and should we violate this agreement, or in any other way, either of ourselves, or at the suggestion of others, and attempt by colour or pretext to establish any fraudulent objections against it, [187] we shall merit hell and to be deemed bastards and outcasts of our race. We have accordingly granted this declaration, as a valid document of partition, to serve when needed. Dated the 27th of Aughun, Moolki 1211. or llth nf December, 1803.”

A counterpart deed was executed by Bhya Jha, in favour of Sree Narain Rae, Lullit Narain Rae, and Ram Narain Rae, of which the following is a copy: –

” I, Bhya Jha, Cousin of the late Ranee Indrawuttee, am become Zemindar of the Havila, Pergunnahs Poorneah, etc. When the Ranee was in her perfect senses, and collected in her mind, she appointed me her adopted Son, to succeed to the whole of her property and estate; and, after a short illness, expired on the 1st Aughun, 1211, B. S.; upon which I, according to the Shaster, performed the funeral rites, informed the Judge and Collector of all the circumstances, and prayed to be put in sole posses¡sion of the Malguzary lands.

ò’ In the meantime, Sree Narain Rae and Lullit Narain Rae, Sons of Rajah Chunder Narain Rae deceased, Zemindar of Pergunnah Koodooah, and Ram Narain Rae, Son of Deo Narain Rae deceased, who was the eldest Son of Rajah Chunder Narain Rae deceased, are the seventh and eighth lineal descendants from Rajah Inder Narain deceased, Husband of the Ranee, and collateral Grandson with Ram Chunder Narain Rae, of one Grandfather ; and Ram Naraiii Rae, set forth to the Judge and Collector their claims, as heirs-at-law ; from which it appearing that there must be many appeals to the several Courts for adjusting the claims on this immense estate, that one ought to be immortal, for it can never end during our lifetime; and in observ-[188]-ing this, and that life is precarious and uncertain, why should we quarrel? We cannot benefit; it must fall to the lot of others : it will only bring disgrace upon our ancient house, which our forefathers would disapprove, and which has never yet fallen upon our illustrious family : it is also highly improper for good men to quarrel; God, therefore, being my witness, at the consent of both parties, i.e. Sree Narain Rae, Lullit Narain Rae, and Ram Narain Rae and myself, an Ikrarnaniali hath been entered into, firm and binding as being positively sworn to, advising that the whole of the moveable and immoveable property of the late Ranee, i.e. money and effects, lands formerly belonging to the estate, and lands lately purchased, lands in whatever way purchased (i.e. by public or private sale), Rarajee Lakhiraj lands, Nankar lands, Luknee (or debts due to the estate), Tujanet (or commercial property), should be divided half and half; and that after paying the revenues to Government, and receiving the rights of the Zemindary, and observing the accounts of the house and other expenditure, whatever may remain should be divided between the parties; i.e. the produce eight anas, or one half of the zemindary, etc. etc. etc. becomes my share, and the other half devolves upon the three Brothers, i.e. Sree Narain Rae, Lullit Narain Rae, and Ram Narain Rae. That in case losses should fall upon the Malguzary lands, they are to bo repaid by each paying according to their shares. That after affixing each party their signatures, and receiving a Perwannah and Sunnud from the Judge, and the revenues paid to Government for the year 1211, B. S., that, if I should then wish the distribution to take place, I should be enabled to receive my share as above stated, and the Brothers theirs in the like manner.

” Having written this in the form of an Ukudnamah, in perfect peace, from promise and upon oath that if I or they act contrary to what has been written, or deny the above, or are in any way deceitful, we will certainly depart to the infernal regions,-I, therefore, have written the above in the form of a Bond of Hissanamah, which, when required, may appear against me.”

Petitions were presented by all the parties for the confirmation of these deeds of compromise, the validity of which, as well as the claims stated therein, were mutually admitted in open Court by Sree Narain Rae, Lullit Narain Rae, and Bhya Jha ; but some dispute having arisen between them and Ram Narain Rae, who complained that though made a party to the deed of compromise, he was excluded in the proceedings before the Court, the Court entered upon an examination of the validity of the claims made by the several Petitioners, and on the -30th of December, 1803, declared that the Soluhnamahs were collusively executed, and could not be admitted as valid, having been entered into three days after the Ranee’s decease, while the property, which was of considerable amount, was under attachment, and before the rightful heirs were ascertained, the parties being in ignorance of their own rights, and seeking only to divide the property, without any proof of title, when there were other parties claiming to be relatives of the late Ranee; and that Sree Narain Rae and Lullit Narain Rae, having proved themselves the heirs at-law of the late Rajah, should, on giving security, be put in possession of the zemindary, and that Bhya Jha should be left to prosecute his claim in a regular suit.

The heirs-at-law being thus put in possession of the Rajah’s estates, Bhya Jha still preferred his claim to the estate of the Ranee. The Judge of Zillah Poorneah, there¡fore, on the 10th of January, 1804, stated the following case for the opinion of the Pundit of the Court:-” It having appeared that the Ranee, after the death of her Husband, the Rajah, succeeded to his entire property, moveable and immoveable, and that during the time they were in her possession she purchased other zemindaries with the profits arising from the landed property, and that considerable sums in cash had been accumulated from the profits of the Malikana, in addition to what was left by the Rajah, all of which she left behind at her death; and a Bewusta given by the Pundit having declared Sree Narain Rae and Lullit Narain Rae entitled to the whole as kinsmen in the seventh degree of affinity to the Rajah,-therefore they have both of them been now put in possession of the immoveable property, and the moveable effects are still under the seal of the Court. Bhya Jlia preferred claims as Khurta Pootra to the Ranee, and alleged himself to stand in the relationship of maternal cousin to her, but his statement respecting his being the Khurta Pootra, being liable to suspicion, an Order has been already passed for Bhya Jha to establish his claims by a regular suit; but before putting Sree Narain Rae and Lullit Narain Rae in possession of the moveable property left by the Ranee, the following question was put to the Pundit, for the information of the Court. ‘ In case it should be proved that Bhya Jha is a maternal cousin of the Ranee, is he, according to the Shasters, entitled to the moveable property vacated by her death ?’ “

The answer of the Pundit was, that ” Bhya Jha being related in the female line to the Ranee, who succeeded to the whole of her Husband’s property after his death, he cannot succeed to the aforementioned property, for there is no authority given by Manu, for any descendant in the female line to succeed to property, but Sree Narain and Lullit Narain, who are related in the seventh degree, can succeed to it.”

Although it appeared after a perusal of this Bewusta that Sree Narain Rae and Lullit Narain Rae were the legal heirs to the moveable property of the Ranee, yet before giving them possession, it appeared advisable for the Court, according to Section 2, Regulation V, of 1799, to send a copy of the proceedings held on the 10th of January, 1804, with a copy of the Bewusta of the Pundit, to the Sudder Dewanny Court, that the proceedings and Bewusta might be laid before the Pundits of that Court.

On the 4th of February, 1804, the Bewusta of the Sudder Pundits was forwarded to the Zillah Court. The question proposed to them, on the same statement as that laid before the Zillah Pundit, was as follows: –

” In case it should be proved that Bhya Jha is a maternal cousin of the Ranee, is he according to the Shasters entitled to the moveable property vacated by her death? “

The opinion of the Pundits was in these terms : –

” Having considered what is above written, and reflected on the question proposed, we give our opinions. The Ranee Indrawuttee, after her Husband’s [192] death, was heir to his property moveable and immoveable, and from the profits of the landed estate, she purchased other zemindaries. After her death Bhya Jha, in consequence of the relationship as maternal cousin, cannot succeed to any of the property, moveable or immoveable, vacated by the Husband, which devolved to his Widow, neither do any of the profits which might have accrued from it become the property of the cousin, according to any Shaster, but Sree Narain Rae and Lullit Narain Rae, who are related in the seventh degree to Rajah Inder Narain Rae, Husband of the Ranee, are the heirs. In support of this Bewusta, it is written in the Daya Bhaga, and Dae Tannoo, and in the Bibad i Bhukarun, and Buchun i Kautain Moon, ‘ let the woman who is without children, for the sake of her virtue, remain with her Father-in-law, and as long as she lives, apply her Husband’s fortune to charitable acts, and after death it devolves to her Husband’s heirs,’ “

Upon receiving this answer, the Zillah Court was of opinion that Bhya Jha, as maternal cousin, i.e., the Son of the Kanee’s Mother’s Brother, had no claim whatever, according to the Shaster, to the property vacated by her, but Sree Narain Rae and Lullit Narain Rae, who were related within seven degrees to the Rajah Inder Narain Rae, Husband of the late Ranee, were according to the Shaster entitled to the property moveable and immoveable left by her. The Bewusta given by the Pundits of the Zillah Court, and by those of the Sudder Dewanny Court appearing, on comparison, to agree, an Order was pronounced by the Zillah Court on the llth of February, 1804, as follows: –

” That Rajah Sree Narain Rae, and Lullit Narain [193] Rae do take possession of such moveable property left by the Ranee as may be under the seal of the Court, and that a Perwannah giving them possession be issued.”

On the 13th of February, 1804, Perwannahs were addressed, giving possession of the moveable property at Mohunnee and at Pusserah, to Sree Narain Rae and Lullit Narain Rae.

Ai’ter various petitions and proceedings, both on the part of Bhya Jha, Sree Narain Rae, and Lullit Narain Rae, a final Order was passed by the Sudder Court, whereby it was ordered that Bhya Jha, ” whether he claimed the whole property of the Ranee, in consequence of his having been adopted by her, or whether he laid claim to the half of it only according to the agreement contained in the Soluhnamah, with Sree Narain Rae and others, should institute a suit for that purpose in the Uewanny Court of Zillah Poorneah, in conformity to the Regulations.”

In pursuance of this Order Bhya Jha, on the 17th of June, 1805, filed a plaint in forma pauperis in the Zillah Court, against Sree Narain Rae and Lullit Narain Rae, alleging and insisting on his adoption by the Ranee, and setting forth the circumstances attending the execution of the Soluhnamah, and after stating that though he was ready and desirous of carrying the conditions of that deed into effect, the Defendants refused to concur with him ; he claimed the entire estate as Khurta Pootra, by virtue of his adoption.

To this petition of complaint, Sree Narain Rae and Lullit Narain Rae put in their answer, denying that Bhya Jha had been constituted Khurta Pootra, by the deceased Ranee, and contending that even if he had, [194] the Ranee was not authorized by the Shasters to dispose of the property in question.

On the 20th of May, 1806, Bhya Jha filed his replication, in which, after putting at issue the Defendant’s statement, he submitted that proof of his adoption as Khurta Pootra was unnecessary, inasmuch as the Defendants had admitted his title as such, upon the occasion of their acknowledgment of the Soluhnamah in open Court.

The Plaintiff filed no rejoinder, but, on the 26th of June, 1809, Bhya Jha put in a supplemental petition, setting forth, his claims to the moveable and immove¡able property, left by the Ranee, first as Khurta Pootra for the whole estate real and personal, amounting to S. R. 1,135,693; secondly, on the deed of compromise for a moiety of that sum, and that when the cause should come on for trial, he, Bhya Jha, would bring forward or rely on either of these counts as he might think proper. The Provincial Court of Moorshedabad pronounced, on the 28th of July, 1809, their decision in the cause, and after going over and examining the various circum¡stances and proceedings already detailed, and the Soluhnamah, stated that it appeared unnecessary to the Court to enter into any further consideration of the claims of either party, whether Sree Narain Rae and Lullit Narain Rae, were or were not the rightful heirs of the Ranee, and Bhya Jha, whether he was or was not Khurta Pootra, they were equally bound by the stipulations of the engagement mutually interchanged, and the Soluhnamah executed before the acting Judge, defined the rights of either party. It was, therefore, but just that the Defendants, who were in possession of the whole zemindary of the late Ranee, should make [195] over half of it to the Plaintiff, Bhya Jha; and Bhya Jha, under the present terms of the agreement, was entitled to one half of the estate, property, and effects of the Ranee, and also to a moiety of the profits of the zemindary since the time that Sree Narain Rae, and Lullit Narain Rae had possession.

From this decision, Sree Narain Rae and Lullit Narain Rae appealed to the Sudder Dewanny Adawlut, stating and insisting that the decree of the Provincial Court was contrary to justice and law. and that from the contradictory manner in which Bhya Jha had at different times stated his appointment, or adoption, to he the Khurta Pootra of the Kanee, he was not entitled to sue as such, and ought not to have been so considered;-that the Ranee had no authority to give away the property of her Husband;-that the claim made by Bhya Jha was inconsistent, since in the Zillah Court at one time he alleged, that he was entitled to the whole of the property left by the Ranee, by virtue of his appointment as Khurta Pootra, according to the law and usages of Tirhoot, without any donation or declaration of the Ranee, while at another time he pretended that the Ranee had declared him, to be the proprietor of all her property, moveable and immoveable; that if he had been in fact appointed Khurta Pootra, he would have communicated that fact to the Zillah Judge, when he proceeded to attach the property of the Ranee ;-that by an Order of the Sudder Court on the 26th of September, 1804, it had been recorded that the Appellants had denied the adoption of the Respondent, and had urged many objec¡tions against the Soluhnamah, which objections had not been controverted, or judicially examined. The petitioners also alleged, that doubts had been enter¡tained [196] by the Sudder Court, respecting the validity of the Respondent’s claim, and that the Court had declared, that it was induced to believe that the Soluhnamah had been improperly obtained for the purpose of preventing a due investigation of the claim which had been preferred by Bhya Jha. They stated also, that they had insisted that Bhya Jha’s claims to the property in question should be judicially investigated, but that no such investigation had taken place; and that the Sudder Court, when it directed Bhya Jha to institute a regular suit in support of his claim, meant thereby to put him to elect to sue either for the entirety of the property as Khurta Pootra, or for the moiety thereof, under the agreement contained in the Soluhnamah ; that the Respondent accordingly made his election and disclaimed that to which he might have been otherwise entitled, under the Soluhnamah, and preferred his claim as Khurta Pootra. That although it had been declared by the Sudder Court, that it was necessary for the ends of justice, that the claims of Bhya Jha as Khurta Pootra should be judicially investigated, yet the Provincial Court had refused to require, or receive proofs of J:he fact of the Respondent’s adoption, and had made their decree on the same facts which had been before the Sudder Dewanny Adawlut, when it had declared, that further investigation was necessary for the ends of justice. That the Respondent in the Court below, having claimed the whole of the property in dispute, in virtue of his adoption, as Khurta Pootra, it was not competent for him, under the Regulations, by a supplementary petition to pro¡ceed on the Soluhnamah. The decree, therefore, of the Provincial Court was contrary to the Order of the Superior Court, and in opposition to the claim [197] asserted in the petition of plaint, and the Provincial Court decided on a claim irregularly preferred, which had been previously abandoned, and which had not undergone any judicial investigation. The Appellants also urged, that according to the practice of the Provincial Courts, established by the Regulations, the claims and merits of all cases were required to be maintained in the plaint, answer, replica¡tion, and rejoinder, and that according to such Regulations, and the practice of the Courts, the opposite and inconsistent claims which had been brought before the Court of Moorshedabad ought not to have been admitted. That Bhya Jha, in his petition of plaint, expressly declared, that in consequence of the renunciation of the Soluhnamah, or deed of compromise, by Sree Narain Rae and Lullit Narain Rae, he preferred his claim to the whole of the property left by the Ranee; that he had, therefore, positively and expressly waived his claim to the moiety of the estate, in virtue of the Soluhnamah, and had asserted and extended his right to the whole as Khurta Pootra and donee of the Ranee; and the Petitioner further alleged tha^, Bhya Ram Misser, who prepared the Soluhnamah, had employed stratagems and artifices to defraud and intimidate the Appellants ; that the Collector had told them that the contest never would be terminated, and that they would be reduced to poverty and distress if they persisted in litigation ; that the zemindary had been placed under the superintendence of a Public Officer of Government-; that the Appel¡lants were persons who had chiefly resided in the Country, and had but little intercourse with the City, or Capital, and were alike unacquainted with the pro¡visions of the Regulations and the usages of the Court; that  they were utterly unsuspicious of the artifice or fraud practised on them by the Respondent and his Agents and .that the Soluhnamah was prepared and drawn under the direction of Bhya Ram Misser, and that the language and composition of it clearly demonstrated that it had not been prepared or written at the instance of the Appellants, and that, therefore, the Provincial Court ought not to have pronounced for the validity of that instrument. The Appellants also submitted, that if the Respondent had been entitled to a moiety of the Ranee’s property, in virtue of the Soluhnamah, and without further investigation, the same would have been decreed by the Sudder Court, when that instrument was regularly brought before it; but they insisted that the Re¡spondent had taken undue advantage of their ignorance of their lawful rights, and had thus obtained the instrument in question, which ought, on that account, to have been declared null and void, and that moreover the parties, at the time of the execution of the Soluhnamah, were not in possession of, and exercised no authority over, the property which constituted the subject of the Soluhnamah, which was, therefore, prematurely executed, contrary to Hindoo law. That the validity of the Soluhnamah could not have been maintained, unless the adoption and appoint¡ment of the Respondent to be Khurta Pootra, and to be Master of the property in dispute, had been clearly and satisfactorily established, and the admission of that fact contained in the Soluhnamah ought not to have been received as conclusive evidence of such fact, when it was specifically alleged, that such fact had never existed, and the instrument and its admissions had been obtained by fraud.

Bhya Jha, by his answer to the Appellant’s reasons of appeal, asserted the validity of the deed of compromise, and that the Judges of the Provincial Court had decided justly. That although he had, by his petition of plaint, claimed the whole of the Ranee’s property as Khurta Pootra, yet he had also in the same petition stated the particulars of the Soluhnamah under which he was entitled to a moiety of the property: that his witnesses had attended the Provincial Court to prove his case and his adoption : that one witness had actually been examined, and that he had frequently petitioned the Provincial Court to examine his other witnesses, but that his application was not complied with : that the Provincial Court had considered the admissions contained in the Soluhnamah as affording sufficient evidence to establish the validity of that instrument, and that thereupon they had pronounced him entitled to a moiety of the property in dispute; that when he should obtain possession of a moiety of the property thus decreed to him, he should consider whether he was not entitled to appeal to the Sudder Dewanny Adawlut against the decree of the Provincial Court, inasmuch as it had not decreed to the Respondent the whole of the property which he had claimed as Khurta Pootra; that he had not renounced his claim founded on the Soluhnamah, and that such instrument, had not been obtained by misrepresentation or intimidation ; that he had filed a supplementary petition, asserting his claim under the Soluhnamah; and that such petition was not objected to by the Appellants, and was admitted and received by the Provincial Court; that he was entitled to prefer his plaint in any manner he deemed most desirable, and that it was the duty of the Judges to ascertain, [200] whether he was entitled to the whole or to a part only of what he had claimed; that even if the Re¡spondent had not expressly preferred his claim under the Soluhnamah, the Provincial Court, on the perusal of that instrument, which had been regularly brought to its notice, would have been justified in pronouncing the decree which was then im¡pugned ; that it appeared from the deposition of Mr. Laing, who had been Collector of the Zillah Poorneah, and which had been taken in the Nizamut Adawlut on the 1st of April, 1809, that the Appellants had frequently applied to him on the subject of their claims, and the claim of the Respondent, and that Mr. Laing had advised them to agree to a settlement between themselves without a suit in Court; that the Appellants had then stated to Mr. Laing, that when they wished to speak to the Respondent on the subject of entering into an amicable agreement, it was difficult to see him, or to have any conversation with him, for he was sur¡rounded by his advisers; that he (Mr. Laing) thought the Appellants had requested him to advise the Respondent to make a settlement, to which Mr. Laing replied, ” that it was so desirable to compromise, that there was no neccessity for advice,” and that in fact he did afterwards advise him to agree to a compromise. The Respondent, therefore, contended, that it appeared from this deposition that the Appellants had first mentioned the subject, of the settlement; that he had no wish to have any collusive or irregular settlement with them; on the contrary, he wished to have no intercourse with them. He further contended, that’the petition, which was afterwards presented to the Collector by the Appellants, and the answers given by them to the Zillah Judge when interrogated respect [201]-ing the Soluh-namah, abundantly contradicted the assertions contained in their petitions of appeal. That these acts, and the admissions of the Appellants in open Court, clearly proved that they had not been imposed on by misrepresentations, and that the Appellants had not then conceived the intention of imputing the execution of the Soluhnamah to conspiracy or fraud. That the Soluhnamah was attested by respectable witnesses, including the Vakeels of the Appellants. That after these solemn admissions of the adoption of the Respondent, the Appellants ought not to lie allowed by a Court of justice to deny that fact.

The Appellants replied to this answer, insisting that, according to the Hindoo law, when one or more persons, not having property at his or their disposal, enter into an agreement between themselves, in expectation that the property will thereby be obtained, such an agreement is not valid, and cannot be sustained, and that an agreement respecting property can only lawfully apply to that which is in the actual possession of one of the contracting parties. The Appellants also contended, that Ram Narain was a party to the Soluhnamah, and that it had been determined that he was not entitled to any benefit in virtue of the Soluhnamah. That, if it was inoperative with respect to Ram Narain’s interests, inasmuch as he was not otherwise entitled to participate in the estate of the Ranee, it ought to be deemed for the same reason insufficient to sustain the claims of the Respondent. They also insisted that the rights of Bhya Jha, under the Soluhnamah, entirely depended on the due proof of his title of Khurta Pootra, and of the donation of the Ranee; and that no such proof had been submitted to the Provincial Court; and that, even if it were satisfac-[202]-torily proved that he had been appointed Khurta Pootra to the Ranee, that appointment would not entitle the Respondent to the property of the Rajah. To this the Respondent rejoined.

The Widow of Deo Narain, as the Mother of Ram Narain, claimed to be associated with the other parties’ Appellants, in order to obtain a share of the property of the Ranee, but her claim was not sustained by the Sudder Dewanny Court.

At this period of the cause, Lullit Narain Rae died, leaving a Widow, but no children, him surviving.

The appeal being thus before the Sudder Dewanny Court, the Judge of that Court, with the view of ascertaining the Hindoo Law applicable to the case, referred the proceedings, with the following questions, to the Pundits of the Court: –

” Supposing Bhya Jha, though constituted the Ranee’s adopted Son, and Malik of her property, not legally entitled to any part of the property in the Ranee’s possession at the time of her death, besides the Stridhun (the sole property of a woman, possessed and transmissible independently of her Husband), whether there be any tests in the Mitheela law-tracts, authorizing the Appellants to resist the enforcement of the deed of compromise, voluntarily executed by them, oil the plea of ignorance on this point when the deed was executed?

” Whether the Appellants can object against the enforcement of the deed volun¡tarily executed by them, on the plea, that since the time of executing it they have ascertained that the Ranee’s Stridhun amounts to an inconsiderable part of the estate?

” Whether there be any authority for annulling the conditions of the deed on the grounds stated by the Appellants; that at the time of its execution the pro-[203]-perty therein referred to was not in the possession of either party, but under attach¡ment by the Zillah Court till it could be ascertained who were the legal heirs; that there were other Claimants to the estate, and that owing to the objections of the Appellants, the Respondent had not obtained possession of the estate by virtue of the deed?”

To which questions the Pundits answered: –

” If Sree Narain Rae and Lullit Narain Rae, the heirs of Rajah Inder Narain Rae, without fraud on the part of Bhya Jha, with their own free will, signed the deed of compromise, they are not at liberty under the Mitheela law, to avoid the conditions of the deed, (by which half of the property was agreed to be given up to Bhya Jha,) on the plea that they were ignorant at the time of executing the deed ; that besides file Stridhun, Bhya Jha was not entitled to any of the property possessed by the Ranee; and that they have, since the execution of the deed of compromise, ascertained that the Stridhun property, left by the Ranee, bears a very small propor¡tion to half of the entire property possessed by her at her death; for there is no text authorising the setting aside a deed of this nature on a plea of ignorance, although at the time the deed of compromise in question was executed, the property real and personal, which devolved to the Ranee from Rajah Inder Narain Rae, was under attachment by the Court, on account of the rightful heirs not having been ascertained; and although in consequence of the objections of the Appellants, Bhya Jha had been kept out of possession, yet under the law of Mitheela, the afore¡said deed will not be void, for there is no text by which possession of the subject of an agreement is declared necessary to its validity.”

On the 12th of September, 1810, the cause came on for consideration before Mr. Harrington and Mr. Stuart, and it was resolved to remit the cause for the purpose of taking evidence both as to the fact of adoption and the circumstances under which the compromise had taken place.

Witnesses were examined by the Provincial and Zillah Courts, under the Orders of the Sudder Dewanny Adawlut, with respect to the fact of adoption of Bhya Jha, by the Ranee, and also as to the fraud and intimidation stated to have been used by Bhya Ram Misser, acting, as it was alleged, on behalf of Bhya Jha.

The witnesses for Bhya Jha proved that the Ranee had constituted Bhya Jha her Khurta Pootra, or adopted Son, and made over to him her property real and personal.

Mr. Harrington and Mr. Stuart, the first and third Judges of the Sudder Court, filed a long and elaborate opinion in favour of the claim of Bhya Jha under the Soluhnamah. The Sudder Dewanny Adawlut on the 27th of July, 1812, pronounced their final decree as follows: –

” In the opinion of both the said Judges, in consideration of the pleadings, the depositions of the witnesses, the Bewustas of the Pundits, and all the other papers in this cause, the objection of the Appellants to the right of Bhya Jha to the Soluhna¡mah, executed on the 27th Aughun, 1211, Moolki, (llth December, 1803,) are not valid and sufficient. Wherefore, the decree passed by the Provincial Court of Moor-shedabad, on the 28th July, 1809, which ordered Bhya Jha to be put in possession of a moiety of the contested property, and also of the produce arising therefrom, since the time that Sree Narain Rae, and [205] Lullit Narain Rae, have had possession, ought to be confirmed. Moreover, Bhya Jha is entitled to a moiety of the entire property left by the Ranee Indrawuttee, specified in the petition of plaint in this Court, which the Provincial Court in their decree ordered to be placed in deposit until there was a decision given on the claims of the other Claimants to the property under trial in any Court, except the present: therefore an Order and final decree was passed, confirming the decree passed by the Provincial Court, on the 28th of July, 1809, that Bhya Jha should receive a moiety of the landed estate, assessed, and rent free, furniture, cash, and other property, moveable and immoveable, left by the Ranee Indrawuttee, deceased, which were given in possession to Sree Narain Rae and Lullit Narain Rae, deceased, in the summary inquiry, and are now, in addition to the cash, Company’s paper, and other property, which, by Order of this Court, were placed in deposit in the Zillah Court, in the hands of the Appellant, Sree Narain, with a moiety of the produce arising from the landed estate, and ex¡pended by Sree Narain and Lullit Narain, during the time it was in their possession, till the year 1215, with the interest thereon, at the rate of twelve per centum per annum, at the end of each year, and a moiety of the Company’s paper is placed as a deposit in the Zillah Court for the produce of 1216, 1217, and 1218, from Sree Narain Rae (who is in possession of his own and the late Lullit Narain Rae’s share, with his share of the interest thereon); and it is incumbent on the Zillah Judge, to put the Respondent in immediate joint possession of one half of the landed estate, according to the Regulations ; afterwards, if the parties, or either of them, shall petition to have the [206] landed estate divided, they ought, according to Regula¡tion V., 1810, to file a petition before the Collector; whereas this cause is decided according to the Soluhnamah, in which there is a stipulation to take joint possession, with the power of afterwards dividing the property: therefore the expense of division will fall, half and half, on both parties; and the Judge of the Zillah Court, in carrying into execution this decree, having given to Bhya Jha one half of the Company’s cash, paper, and other property in deposit, will keep the remainder in deposit until further orders : and having required from Sree Narain Rae an account of receipts from the disputed estate, from the time that Sree Narain Rae and Lullit Narain Rae obtained possession till the issuing of this decree, and allowed for the necessary disbursements, the Government revenue, the money in deposit, the profits of the year 1216, 1217, and 1218, which were placed in the Court, without any account of them; and having, in the presence of both parties, made an accurate account of the entire remaining profits of each year, he will send the particulars of it, with the necessary papers for the information and approval of this Court; after which, such orders as may be right will be passed with respect to Bhya Jha’s receiv¡ing a moiety of the profits coming to him. Whereas the objection of the Appellants, Sree Narain Rae and Lullit Narain Rae, deceased, to the Soluhnamah, on which the deciee given by the Provincial Court was formed, were not thoroughly inquired into, on which account the appeal to this Court was not without foundation; therefore, the costs of suit of both parties are not to be at the expense of the Appellants.” And it was ordered, that both parties shall be answerable for the costs of suit in this Court, (6th June, 29th November, 1836.*)

At the period of the presentation of the appeal, the Appellants were infants under the protection of the Court of Wards, and the Agent, Robert Walter Poe, whom that Court had nominated to prosecute the appeal on their behalf, and to take charge of their interests, though supplied with ample funds for that purpose, misapplied those funds, and wholly neglected their interests, having abandoned the Country. In consequence of this neglect, the Appellants were unable to prosecute the appeal.

On the 29th of July, 1833, a peremptory Order was made by the Privy Council, directing the Appellants to deliver printed cases within a fortnight, otherwise the Court would proceed to hear the case ex parte.

The Appellants having neglected to comply with this Order, the case came on ex parte on the 5th of April, 1834, when no Counsel appearing for the Appellants, an Order was made affirming the decrees of the Court, and dismissing the appeal with costs.

In December, 1835, the Appellants presented a petition to have the Order for dismissing the appeal, and affirmance of the judgment of the Court below recalled, and for leave also to prosecute their original [208] petition of appeal, or to file a new petition, as they should be advised.

The Petitioners set forth the grounds of appeal as contained in the original petition of appeal; and after stating the facts above mentioned, and that one of the Appellants, Raj under Narain Rae, attained his age of eighteen years in October, 1830, and was consequently of age, but that the other Petitioner, Coower Mohunder Narain, was still a minor, proceeded to state, that in consequence of the very great importance of the case to the Petitioners, the great value of the property in question, and the great loss they would sustain if the judgment pronounced against them were allowed to remain without their being permitted to prosecute the appeal; they had incurred the expense of sending their own Solicitor, for the purpose of attending to their interests, and to prosecute without delay their appeal, if he should be per¡mitted to do so ; and they submitted, that where an appeal is dismissed on account of, and through the wilful neglect of, the Guardians of infants to bring it to a decision, the infants, when they come of age, ought to be permitted to have the appeal restored or revised, and that under all the circumstances of the case, and more especially by reason of their infancy and inability to prosecute the appeal to a hearing at an earlier period, and the circumstances that the Agent’s negligence and misconduct had been the cause of the delay and miscarriage which had occurred, and that he was appointed by the Regulations of the Supreme Government to act for the Petitioners, they ought not in a matter of such great value, and so highly important to their interests, to be deprived of an opportunity of having the same heard on its merits. The Petitioners [209] also stated, that they were advised that they had a good case on the merits, and prayed that the Order dismissing their appeal for want of prosecution might be recalled, and that, on payment of the costs, they might be permitted to prosecute their original appeal.

The petition was supported by affidavits.

Sir Charles Wetherell, K.C., and Mr. J. Stuart, for the Appellants.

Sir Charles Wetherell.-The Order of the 16th April, 1834, affirming the judgment of the Court below, and dismissing the appeal, is wrong; it ought to have been only for a dismissal, and must be held to operate as such. The first part of the Order is mere form; it cannot be intended that the judgment of the Court below should be affirmed by this Court, which to this moment is uninformed of the grounds of that judgment. It may be absurd or unjust, or even illegal, and yet if really affirmed, it would be the law, and binding on all Courts in similar cases; such a position will not bear argument. The Order is erroneous on the face of it; it pur¡ports to be on the hearing of Counsel; there was no hearing, the case was merely opened, pro forma, by the Respondent’s Counsel, none of the facts or circumstances were stated, nor was the Court informed that the Appellants were infants: the merits were not gone into, nor was the magnitude of the property mentioned. The special circumstances on which the Order purports to have been made are not true. Where there is palpable error on the face of an Order, the power to correct such is incident to the Court by which it has been made; the error here is clerical, it is a mis-statement of the circumstances under which the Court pronounced its decision ; there is no C°urt of Law or Equity in which such an error would not be amended. No printed case was put in by the Appellants; can the printing of the Respondent’s case be said to be a hearing? The amount of the property in question is 60,000 per annum; how could the Court know anything of the facts, unless the case was stated on both sides? Yet the Order is to affirm the judgment below on the hearing of the appeal. It was never stated to the Court that this was the case of infants, whose interests were under the protection of the Court of Wards. That Court appointed Poe to act as their Agent in this Country; he was not the personal Guardian of the infants, but the mere Agent of the Court of Wards, and was, at the utmost, but a Guardian ad litem. No application was made to enlarge the time, nor was it stated at the hearing (if such it can be called) that the Agent of the Court of Wards had absconded. Could the Court have made an Order to dismiss the appeal, if they had known that fact?

The rights of an infant cannot be prejudiced by the acts of his Guardian; that is part and parcel of the law of England. Kelsatt v. KelsaU (2 Myl. and K. 409) establishes the right of an infant Defendant to put in a fresh answer on coming of age, though a decree has been made against him upon his appearance and answer by Guardian; he may even state a new case, and go into evidence in support of it. If such is the course in the Court of Chancery, how can it be contended here that he is precluded by his Guardian’s default? By the law of Scotland, ” Restitution lies not only against extrajudicial acts, but judicial; ex. gr. against the sentence of a Judge, though pronounced in font contradictorio, where the proper allegations or defences, either in law or in fact, have been omitted; or when others, false in fact or hurtful to the minor, have been offered to the Court by his Guardians ” (Erskine’s Inst. B. I. tit, vii., sec. 38). In The Orphan Board v. Van Reenen (1 Knapp’s P.C. Cases, 94), it is laid down as a position not to be disputed, that ” infants are not to be prejudiced by the negligence of their Guardians”; and the Court held, that the appeal having been dismissed on account of the neglect of the Guardians of the infants to bring it to a decision, the infants, on coming of age, had a right to revive it. If the Order here operated merely as a dismissal, as I contend it must, the authority of that case is conclusive. The Privy Council dismissed the appeal for want of information, concluding the party in culpa who was not in culpa : it is, therefore, perfectly competent for your Lordships to advise His Majesty to rescind an Order made in ignorance of the facts, and which consequently contains statements directly at variance with the facts. The Lord Chancellor is accustomed to exert a similar authority when he orders a Patent to be rescinded by fieri facias.

Mr. J. Stuart.-It is no fatal objection to this application that the report made on the hearing of the cause has been confirmed by the King in Council. Admitting this to be a Court of last resort, there is no authority for maintaining such to be the practice. A decree made in default of one party, does not stand in the same light as a decree made on the hearing of both parties. Such a decree is never treated as res judicata. The statement on the face of the Order is, that it was made on the appearance of one party only: that makes the Order, in fact, only a dis¡missal for want of prosecution. Where, as in this case, the default is by the party complaining, the business of the other side is not active. A Kespondent is never an actor, except to rid himself of the appeal. The affirmance of a decree is a solemn act, and can never be said to have been intended in the absence of the party complaining of the decree. The justice of the case is satisfied by the simple dis¡missal of the appeal; the Respondent has no right, nor does he suffer any hardship. That is the course in the Court of Chancery; in Palmer v. Palmer, 5th November, 1836, on appeal to the Lord Chancellor, the Appellant not appearing at the hear¡ing, the appeal was dismissed with costs ; there was no affirmance of the judgment below. It is impossible to carry the case higher than one of dismissal for want of prosecution. As to the merits, they were never entered into ; and there is no con¡tradiction to the affidavit made in support of the present application. The cases cited show, that there may be cases of affirmance of a judgment below, where the infant has by his Guardian appeared and been a party at the hearing, and which notwithstanding, the Court will review; but here there was neither hearing, in the proper sense of the word, or materials for hearing.

Mr. Serjeant Spankie and Mr. Stinton, for the Respondent.-This, is an appli¡cation to change the practice of this Court. The rule has hitherto been, that where an Appellant makes default at the hearing, the judgment below is affirmed; that has always been understood to be the course. If a contrary practice is now intro¡duced, the inconvenience that must result is inconceivable: there is no case in which such an application as the present may not be made, and your Lordships will be occupied with applications for re-hearings in every cause that has been heard ex parte. The Order of 16th April, 1834, only purports, that the cause was heard in the usual manner, and the usual Order made. The petition for re-hearing is in misericordia, and your Lordships will weigh very maturely any advice you may deem it right to give for the alteration of a practice that has so long prevailed. With respect to the merits, as far as they appear upon this petition, the parties have not been damaged. The decree appealed against was pronounced in 1812. The regula¡tion of the Sudder Court is, that an appeal must be prosecuted within six months after the decree is pronounced, unless by special leave of the King in Council; * the Father of the present Appellant had the judgment standing against him for nine years. The Statute of limitations runs against infants as well as adults; twelve years is the period within which a demand can be made in India; of that period nine years had expired. They make no case to ask for a review, and the question is, whether your Lordships will let them in under this petition to open the whole pro¡ceedings in the Court below. Where there have been laches, the Courts are not accustomed to grant such indulgence, even to an infant. Fraser, the Agent on the other side, knowing the defalcation of Poe, ought to have applied to the Court of Wards. It is said that he applied to the East India Company, but that was [214] vain and nugatory; they had nothing to do with it: he ought to have appeared at the hearing, and stated the facts now insisted on; that might have induced the Court to stay the hearing of the appeal till further inquiry had been made; more than a year was allowed to elapse before any steps were taken to revive the appeal: we stand upon the fact that the appeal was dis¡missed. The consequence of admitting the application now made will be to unsettle the whole practice of this Court.


* Bengal Reg. XVI., 1797, sec. 7. [As to condition of appeal from Bengal to Privy Council, see Letters Patent of 28th Dec., 1865, arts. 39-42 (Stat. R. and O. Rev. IV., 93-95); Code of Civ. Proc. (Act XIV. of 1882), ss. 595 et seq.; and Civ. Proc. Amend. Act (Act. VII. of 1888), s. 57.]


Lord Brougham (Dec. 14, 1836).-This was a petition to rehear the cause upon which their Lordships had given their judgment on the 16th April, 1834, after an Order of the 29th July, 1833, calling on the Appellants to deliver printed cases in a fortnight, otherwise their Lordships would proceed to hear the cause ex parte; 110 cases were delivered, and the cause came on accordingly. The Appellant not appearing, an Order was made in what is understood to have been the usual form in the Privy Council in such cases: it was, that after hearing the Counsel for the Respon¡dent, and no one appearing for the Appellants, the decree appealed from be affirmed, and the appeal dismissed with costs. This Order was confirmed, that is to say, the report of their Lordships was adopted, and made an Order of the King in Council.

The ground of the present application is, that there has been no hearing, but that the affirmance was pronounced merely on the Appellant making default. This it is contended entitles their Lordships to amend the Order, and advise His Majesty to revoke the confirming Order; and if the power do so exist, the Appellant then contends that it ought to be exerted in this instance, inasmuch as he makes out a strong case for the indulgence of the Court. The parties were infants under the Court of Wards in Calcutta, and appeared by a public functionary, through the appointment of that Court, as their guardian ad lit em. This person neglected the case altogether, and not only did not provide funds for carrying it on, but absconded with funds in his hands which had been allowed for the expense of the suit, and he was not to be found when the Agent here desired to communicate with him; nor has he since returned. Although some delay occurred in prosecuting the appeal, during the lifetime of the party, the Father of the infants who had commenced the appeal, it is clear that the infants had been substituted in his room, and steps had been taken which waived any objection on the ground of his laches; and whether this was waived by the Respondent ot by the Court is immaterial for the present purpose; the case for indulgence is, therefore, a strong one, provided there is the power to grant this application.

It is unquestionably the strict rule, and ought to be distinctly understood as such, that no appeal in this Court can be re-heard, and that an Order once made, that is, a report submitted to His Majesty and adopted, by being made an Order in Council, is final, and cannot be altered. The same is the case of the judgments of the House of Lords, that is, of the Court of Parliament, or of the King in Parlia¡ment, as it is sometimes expressed, the only other Supreme Tribunal in this country. Whatever, therefore, has been really determined in these Courts must stand, there being 110 power of re-hearing for the purpose of changing the [216] judgment pronounced; nevertheless, if by misprision in embodying the judgments, errors have been introduced, these Courts possess, by Common law, the same power which the Courts of Record and Statute have of recti¡fying the mistakes which have crept in. The Courts of Equity may correct the decrees made while they are in minutes; when they are complete they can only vary them by re-hearing; and when they are signed and enrolled they can no longer be re-heard, but they must be altered, if at all, by appeal. The Courts of Law, after the term in which the judgments are given, can only alter them so as to coorrect mis-prisions, a power given by the Statutes of Amendment. The House of Lords exer¡cises a similar power of rectifying- mistakes made in drawing up its own judgments, and this Court must possess the same authority. The Lords have, however, gone a step further, and have corrected mistakes introduced through inadvertence in the details of judgments; or have supplied manifest defects, in order to enable the decrees to be enforced, or have added explanatory matter, or have reconciled in¡consistencies. But with the exception of one case in 1669 (Dumaresq v. J,e Hardi, llth March, 1667, and 26th March, 1669), of doubtful authority, here, and another in Parliament of still less weight in 1642 (which was an appeal from the Privy Council to Parliament, and at a time when the Government was in an unsettled state), no instance, it is believed, can be produced of a re-hearing upon the whole cause, and an entire alteration of the judgment once pronounced.

It may be .material to observe in what way the House of Lords has exercised this power of correcting errors which have occurred in drawing up the judgment pro¡nounced. The cases are chiefly where some trivial mistake made it impossible to carry the decree into execution, as in Hill v. Spence (Lords’ Journ. 46 vol., 536), April, 1808; a reference having been directed to the Master of the Exchequer in Ireland, and there being no such Officer, their Lordships amended the Order by inserting ” the Chief Remembrancer or his Deputy; ” or for the purpose of supply¡ing a plain omission and executing the manifest intention of the decree, as in Dent v. Buck (Lords’ Journ. 17 vol., 76; Colles, Parl. Cases, 182), March, 1702, where an Order had been made, reversing the decree of the Exchequer in England, affirmed in the Exchequer Chamber, dismissing a Bill for tithes, on the foot of an agreement, and no direction had been given to proceed on hearing or determining the right to tithe. This direction was added to the judgment of reversal. Or where, as in Oundle v. Barton (Lords’ Journ. 15 vol., 170), January, 1692, a Charity information had been dismissed, and the Lords reversed the decree of Lord Chancellor Jeffries, dismissing, but gave no decree for establishing the charity, and the Lords Com¡missioners had refused to make such decree. Upon the petition of the Attorney-General (Sir John Sommers), the House oi Lords amended their former Order by adding a direction to decree for the prayer of the Information. So where the Courts below had misunderstood the Orders of the House, to save new appeals, explanatory additions have been made, with Orders setting aside whatever had in the meantime been done below under the misapprehension, as was done in Calthorp v. May (Lords’ Journ. 19 vol., 435), April, 1712. But the instances are numerous, and at all times, of rejecting applications for re-hearings and fundamental alterations, on whatever grounds made; and often in cases of apparent merits and great claims to indulgence.

Their Lordships have carried their discretionary power of alteration no further than to rectify errors of a subordinate kind, and, in very peculiar circumstances, to indulge parties by keeping partial questions open, which the decree had con¡cluded, without there having been any distinct intention of that kind on the part of the House. The cases which have gone the furthest in granting such indulgences, and in rectifying such errors, are Sedgwick v. Hitchcock (Lords’ Journ. 14 vol., 601), December, 1690; Page v. Hamilton (Lords’ Journ. 47 vol., 116 and 322), May, 1809 ; Agnew v. Dunlop (Lords’ Journ. 55 vol., 565), March, 1823. In the first case the Lords Commissioners had declared a Mortgagee only entitled to 800 out of 2200, claimed by him on his mortgage, and had ordered that the deed should be delivered up, and the residue divided among the other Creditors. The Lords reversed this decree, and ordered the party to be treated in every respect as a Mortgagee, paid his full mortgage money, with interest, costs, etc. The other Creditors applied to the House to re-hear and alter. The House refused to allow any re-hearing, except on one point, the application to be permitted to try their title at law. This was granted ; the judgment being amended by striking out all after the Order reversing the decree below, namely, directing to sell and distribute, excluding the Mortgagee, and instead of the part struck out, inserting an Order that the Respondents be allowed to try their title at law. Afterwards, by a second amendment, their Lnrd-ships, on the Appellant’s application, added a particular direction in furtherance, however, [219] of their former’ one, that the question should be particularly tried, whether or not the mortgage deed had been fraudulently obtained. It is to be observed, as Lord Redesdale has remarked, that proceedings of this kind were more frequent during the long period immediately after the Revolution, when the Great Seal was in commission, and the Speaker of the House of Lords was a Commoner, and could take no part in its debates.

In Page v. Ham-Aton, 1809 [Lords’ Journ. 47 vol., 116 and 322], the House, after hearing Counsel, rectified several material errors which had been introduced into an Order of August, 1807, the Order of amendment stating expressly that the original judg¡ment had directed variations of the decree below, inconsistent with the parts of it affirmed by the same judgment, which rendered the decree contradictory; and that it had described parties as Trustees who were not Trustees, and directed an account, against them in a character which they did not sustain. The ground of the amend¡ment here allowed expressly is that the Order amended had been framed under a mistake as to the variations which the House really agreed to make in the decree appealed from. This amendment was made upon great consideration, and after a Committee had been appointed to search for precedents.

The last case mentioned is that of Agnew v. Dunlop [Lords’ Journal, 55 vol., 565], in 1823, in which an application to re-hear the very important judgment that had been given was without hesitation refused. But it being represented that the Order reversing the decree appealed from, and adjudging the estates in question to the Appellant, had also decided in his favour another question, which had not been argued at the Bar, namely, his claim to the rents and profits since the title accrued, the House took this into consideration. It is certain that the question was adverted to in the printed cases, and though not argued at the Bar, that it might have been argued: and that the Respondent might have taken, at the hearing, the objection which he now put forward, that the matter had not been argued in the Court below. All this is stated in the preamble of the Order made by their Lordships on the application to amend, in which Counsel were heard. Nevertheless their Lordships, ” conceiving that the neglect of the Respondents, either to discuss the question on the hearing of the appeal, or to request that it might be remitted to the consideration of the Court below, arose from the mistaken apprehension that the House of Lords could not regularly hear it because it had not been discussed below,” think fit, ” under the particular circumstances of the case, to order that the judg¡ment be amended by omitting the words, etc.,” that is, the part of the judgment disposing of the question of debts and profits, which is saved entire for both parties to proceed upon in the Court below.

It is impossible to doubt that the indulgence extended in such cases is mainly owing to the natural desire prevailing to prevent irremediable injustice being done by a Court of the last resort, where by some accident, without any blame, the party has not been heard, and an Order has been inadvertently made as if the party had been heard.

Where a party makes default in any of the Courts below, and the judgment is perfected against him upon that default, it cannot be amended upon any suggestion, unless there has been misprision, and the judgment has been entered contrary to the truth of the proceedings, as judgment for the Defendant instead of nonsuit. So where on writ of error the Plaintiff does not appear after joinder in error, the judgment is of affirmance. But in this case no final judgment can be said to be pronounced, because the party making default may proceed again. Whereas if in the Courts of the last resort, the like judgment of affirmance be pronounced, the matter is final, and that judgment stands as a precedent in whatever points were raised in the cause. For this reason, where the Appellant or the Plaintiff in error does not appear in the House of Lords on his writ or appeal coming on for hearing, the judgment is to dismiss merely, and not to affirm, unless their Lordships have considered the merits of the case.

This they may do whether the party appealing shall appear or not, for they may consider the cause upon the printed cases laid before the House, though one of the parties does not appear to argue the question, or even though neither party argue it; nay, though there be no printed cases delivered in, provided that the proceedings in the Court below, being before their Lordships, are by them taken into considera¡tion, and that the matter in question appears in the proceedings, there seems to be nothing which should absolutely preclude them from giving judgment, either against or for the absent party. But then there must have been a hearing of the case, and on both sides; that is, either a hearing at the Bar, or by the cases delivered, or by examination of the whole proceedings below, as well on the one side as on the other. In no other circumstances would it be safe to give a judgment of affirmance in the last resort, that judgment making a precedent binding on all other Courts, and that judgment also being conclusive forever between the parties.

The safer and better course seerns to be, that where the Appellant does not appear, and there are no means of knowing the grounds of his appeal, the Order should be to dismiss without affirming. In this case he could not be let in to renew his appeal without satisfying the Court as to the grounds of default, and complying with such conditions as should be prescribed. Where the Respondent appears not, ex necessitate the Court must hear and determine the case upon the best considera¡tion of its merits, which the matters before the Court enables it to give; but in neither case can the judgment be pronounced as of course for the party appearing, merely on the ground of the other party’s absence.

In the present case the form has been adopted which has been used in a great majority of instances, where the Appellant did not appear at the hearing. It is not, however, known whether, in these instances, there were or not cases laid before their Lordships, or such access to the proceedings below, and such recourse had to these proceedings as might enable their Lordships to supply the defect occasioned by the Appellant’s default; and in at least one instance, the Order was made, as it ought to have been made here, simply dismissing the appeal, and not affirming the decree below. Their Lordships consider that a simple dismissal is to be regarded as the Order which must have been in the Court’s contemplation, and that no more could have been intended in substance, althought the objectionable form, importing affirmance, was followed.

We, therefore, think that, in the particular circumstances of this case, His Majesty should be advised to amend the Order of the 16th April, 1834, by making it conformable to what it must be taken to have in-[223]-tended, and to let in the Appellant to be heard notwithstanding the dismissal, that is to say, to restore the appeal; and in case His Majesty shall be pleased so to order, that these conditions shall be imposed upon the Appellants, namely, payment of the Respondent’s costs occasioned by the default in April, 1834, and by this application; and that he shall now lodge cases within five months; and to permit the Respondent to take copies of any part of the proceedings in his possession, at the charge of the Respondent, and undertake to disturb nothing done from the date of the judgment, until notice is received of this Order.

The following Order was made in conformity with the above judgment by the King in Council, on the 22nd December, 1836: ” That His Majesty’s Order in Council on the said appeal of the 16th April, 1834, be amended, by striking out so much of the said Order as affirms the decree of the Sudder Dewanny Adawlut, at Fort William in Bengal, of the 27th of July, 1812; and it is hereby further ordered, that so much of the said Order of the 16th of April, 1834, as dismissed the said appeal with costs, and the same is hereby rescinded; and that the said appeal be restored; and that the Appellants be allowed to prosecute the same to a hearing ; provided, nevertheless, and it is hereby further ordered, that such leave be subject to the several conditions mentioned in the said report, whereof the Judges of the Sudder Dewanny Adawlut, at Fort William in Bengal, for the time being, and all other persons whom it may concern, are to take notice and govern themselves accordingly.”

The appeal having been thus restored, come on now for hearing on the merits. Sir Charles Wetherell, Q.C., and Mr. J. Stuart, for the Appellants.

Sir Charles Wetherell.-The decision of this appeal is to be guided by the same principles as if the lands in dispute were of English tenure, and the question between the Heir-at-law and the Devisee. It must be determined on the abstract and general principles of Equity. The Provincial Court is a Court both of Law and Equity, governed by its own peculiar rules, I admit, but the principles of Equity, so far as the circumstances of this case are concerned, are the same as prevail in our Courts here. There are two questions; first, as to the point of the adoption; second, as to the validity of the compromise. The Provincial Court refused to enter upon the first question, and decided the cause wholly upon the ground of the agreement of compromise being a valid and subsisting agreement; they would not inquire into the question of title. The Sudder Court pursued the same course, notwithstanding that both that Court and the Provincial Court had deemed it requisite, in the first instance, to put the Defendants, Sree Narain and Lullit Narain, to the proof of their title, and to require the opinions of the Pundits upon their right of succession; but which they rejected as so much waste paper. Under these circumstances, I shall reverse the order of these points, and inquire, in the first instance, what effect is to be given to the Soluhnamah under the circum¡stances in which it was executed. It must be borne in mind, that at the date of the deed, Bhya Jha was a Claimant for the whole of the estate, real and personal, of the Ranee and her late Husband, the Rajah. He alleged himself to have been constituted Khurta Pootra by the Ranee; a title which, if she was capable of con¡ferring it, and it was created with proper solemnities, would be superior to all others. The present appellants were the nearest heirs of the Rajah; they are de¡scended in the seventh degree from a common ancestor; that is admitted, and was proved to the satisfaction of the Court; so that if no adoption had taken place their title at least to the real estate would have been paramount. Now, in these circumstances, let us see what takes place. The property of the Ranee is in the possession of the Government. Notwithstanding all the allegations of Bhya Jha as to his having been solemnly adopted, and having performed the funeral rites, the Collector, who is on the spot, knows nothing about it, and seeing that there is about to be a general scramble for this lady’s property, he applies for and obtains an Order from the Government, authorizing him to take possession of her estate and effects. In this state of things, there being petitions from Sree Narain and Lullit Narain for possession on the ground of heirship, and counter-petitions from Bhya Jha on the ground of adoption, which were still pending, a deed of compromise, or, as it is termed, a Soluhnamah, was prepared, and, with a counterpart deed, executed by both parties. These instruments in form are like deeds of the same nature in this country; their legal effect is precisely similar; they are of even date; that executed by Bhya Jha admits the heirship of Sree Narain and Lullit Narain, by descent; the other admits, or rather assumes, the adoption of Bhya Jha. Now these, I contend, are not such admissions as, if made in utter ignorance of the fact, from false and fraudulent representations, could be binding on the parties imposed [226] upon. The admission of Bhya Jha that the other Claimants were the legal heirs of the Ranee, could not bind any third person, or preclude a thousand Claimants, if they could prove a higher title ; the Court, therefore, called on them to prove their descent. Neither could the admission of the adoption of Bhya Jha be used to the prejudice of any other Claimant by the same title. But the title of Bhya Jha was riot proved; it stood alone upon the admission in the deed of compromise. Now, it must be remembered, that Bhya Jha was at this time a Claimant for the whole property. If he was really Khurta Pootra, and his appointment a valid one, there was an end to any claim on the grounds of heirship by descent. His putting for¡ward, therefore, such claim when he knew it unfounded in fact as well as law, was a blind to those claiming by descent, calculated to alarm and induce them to a compromise. That this was the object is apparent from the Soluhnamah; it states that the zemindary was the property of the Ranee; that was contrary to the fact. It then states and proceeds upon the assumption of Bhya Jha’s adoption being a valid adoption, and having been actually made, which again was contrary both to law and fact; and the real heirs, in opposition to their own undoubted claims, are made to recite and admit those statements as facts, and acknowledge the title of Bhya Jha, when in truth they neither did nor could know anything about it, and the facts stated were in direct opposition to the truth. Now, at the time he executed this instrument, Bhya Jha knew that his claim as Khurta Pootra was worth nothing. He, in the first place, knew that the Ranee had no power to adopt; there is no evi¡dence that the Rajah gave her any such authority, and without his [227] authority she could not, by the law of the country, name a successor to his property. The alleged performance of the funeral rites by Bhya Jha was not true. It appears from the proceedings in the cause that they were performed by Bhya Misser, the Mooktar, whose expenses on account of the funeral were allowed by Government. The representation made by Bhya Misser of the adoption was fraudulent. If he was cognizant of the fact of Bhya Jha’s adoption, why did he, Bhya Misser, perform the funeral rites? If the fact of adoption was within the knowledge of Bhya Jha- ” suppressio veri ” is ” suggestio falsi “-it would be evidence of the legality of his claim; and, therefore, it is assumed and stated in the Soluhnamah, that he did perform the Sraddh of the Ranee. But such assertion was contrary to a fact; in ignorance of which the legal heirs were induced to release their rights. Of what avail would such a recital, made as this was, fraudulently, be in our Courts here? Even where there is no fraud, a deed may be avoided here from ignorance, mistake, misapprehension, or improvidence. In Broderick v. Broderick (1 P. W. 239), a release given by the heir to a devisee, upon a representation that the Will was duly executed, which was contrary to the fact, was set aside. In Pwey v. Desbouvrie (3 P. W. 315), a Freeman of London, by his Will, gave his Daughter 16,000 upon condition that she should release her orphanage part, together with all her claim or right to his personal estate by virtue of the custom of the City of London, and made his Son his Executor. In compliance with this advice, she executed a release; her orphanage share, it appeared, was much more than the legacy so substituted,  and as she was not informed at the time of executing the release that she might elect, this omission was held by the Court to be so material as to avoid her release. The principle of that decision is precisely what we are contending for here. But the case of Lansdowne v. Lansdowne (Mosely, 364; 2 Jac. and Wai. 205) is in its circumstances still nearer; there, upon the death of a second Brother, his eldest and youngest consulted a Schoolmaster as to which of them had a right to the lands; the Schoolmaster gave his opinion in favour of the youngest, whereupon they agreed to divide the estate; but the Court set aside the conveyance of the moiety as being given under a mistake. Also in Gee v. Spencer (1 Vern. 31), a release was set aside by reason of the misapprehension of the party. In Evans v. Llewellyn (2 Bro. C.C. 150), the conveyance was set aside merely on the ground that the parties were misinformed of their rights, though there was neither fraud nor imposition practised. Bingham v. Bingham (1 Ves. Sen. 126), Cocking v. Pratt (1 Ves. Sen. 400, and 3 Ves. Sen. 176), are to the same effect. In Leonard v. Leonard (1 Ball and Beat. 323), it was established as a principle, by Lord Manners, after a most careful examination and comment on all the authorities, that a compromise of rights, doubtful in point of law, but founded upon a misrepresentation or sup¡pression of facts in the knowledge of one of the parties only, cannot be supported, and a deed of compromise was set aside on that ground. The correctness of that decision has never been doubted. In Gordon v. Gordon (3 Swan. 467), Lord Eldon says, ” though family agreements are to be supported, where there is no fraud or mistake on either  side, or none to which the other party is accessary, yet where there is mistake, though innocent, and the other party is accessary to it, this Court will interfere.” All these authorities show the uniform principle upon which a Court of Equity acts in cases where there is mis¡take, even without fraud; where that is an ingredient, the case is much stronger.

II. Upon what foundation does the alleged adoption rest? It is said to have been a verbal nuncupative adoption. In the first place had the Ranee any power to appoint an haeres factus? By the Hindoo law, a Widow who succeeds to her Husband’s property has no power to dispose of it (2 Mac. Princ. of Hindoo Law, vol. 2, p. 33); nor can she adopt a Son without the permission of her late Husband (11). 175; see also Strange’s “Hindu Law,” vol. 1, p. 78-9); nor can she alienate, either by gift or Will, “acquisitions made by means of the property devolved on her from her Husband (76. 259). Now there is no proof of her authority to adopt here. But assuming she had the right, was it duly exercised? Of the twenty-six witnesses which Bhya Jha proposed to examine to prove his adoption, one only was produced, Gujeraj Sing; his evidence is worthless; it is mere hearsay. The impossibility of supporting his claim as Khurta Pootra seems to have struck Bhya Jha himself, for he suddenly changes his ground of claim, and insists on the deed of compromise. The Provincial Court take no notice of his failure of proof of the adoption (notwith¡standing the suit was originally preferred by him in the character of alleged Khurta Pootra, and that the assumption of that title alone gave him a locus standi in Court), but proceeds upon the deed of compromise executed by Lullit Narain and Sree Narain, at the least in ignorance of their rights, if not upon the fraudulent representation of Bhya Jha. Upon that instrument, they award him a moiety of the property in question; and that decision is afterwards affirmed by the Sudder Court. Such a decision cannot be supported; it is against all principles both of equity and justice.

Mr. Stuart.-The whole question in this case is, was the deed of compromise fairly executed? If mistake or ignorance would avoid the deed, far more will fraud practised by either party do so. Our title is, as the heirs at law; everything, there¡fore, done to conceal our title is a fraud upon us ; and if an instrument is procured from us in ignorance of our rights, or under a mistaken apprehension of the rights of others, such instrument is invalid, and cannot be maintained in Equity. The third Judge, Mr. Stuart, admits the want of proof of the fact of adoption, and says (I quote from his printed judgment): “If we were now called upon to decide upon taat fact, we should feel the greatest difficulty in determining upon which side the balance inclines; and should we even think, that the evidence in the negative pre¡ponderates upon the whole, that surely would be no reason for setting aside the Soluhnamah.” Now, that is, I submit, bad law as well as bad reasoning. The proof of want of title of one party representing himself as Khurta Pootra, when in fact he was no such tiling, would in every Court of Equity in the world, I apprehend, be a reason, and a most cogent one, for setting aside a deed made on the faith of such a statement. But the Judge goes on to say: ” An agreement having been entered into with the utmost delibera-[231]-tion, one chief purpose of which was to prevent the necessity of litigating a particular fact, to rescind that agreement for fraud, upon the ground of very doubtful evidence against the fact in question, would be contrary to every principle with which I am acquainted. To consider the matter more generally, proof of fraud ought not to be derived from contradictory and nicely balanced evidence.” Now, without combating these principles, which I apprehend might easily be shewn not to be consistent with the authorities here, it is sufficient answer to say, that the third judge has thrown entirely out of his con¡sideration, the effect of ignorance or mistake, and proceeds upon the assumption that nothing but fraud, and that not proved from ” contradictory and nicely balanced evidence,” ever can avail to set aside an instrument of compromise. The cases already cited show how erroneous this doctrine is; and though I contend, that the fraud practised by Bhya Jha was abundantly sufficient to rescind this agree¡ment, yet the ignorance or misapprehension of their rights, under which Sree Narain and Lullit Narain laboured when they executed it, is enough to preclude their being held bound by it.

Mr. Serjeant Spankie, and Mr. Turtori, for the Respondents.

Mr. Serjeant Spankie.The principles derived from our Courts of Equity, regarding instruments executed in ignorance, mistake or misapprehension of the rights of the parties, are not strictly applicable to this case. The Soluhnamah is not, as it has been assumed in the argument on the other side, an instrument declaratory of the rights, but of the claims of the parties; it is an agreement to compromise conflicting and doubtful interests, the grounds of which are stated as incidental and introductory to the proposed arrangement. It does not profess to investigate or decide, but to waive the decision of the strict rights of the parties, and to settle the amount each party is to receive, for the sake of certainty and peace. It is a ” transactio,” a dealing of its own particular nature in ” re dubia,” which stands precisely on the same footing as ” res judicata,” and according to the Civil Law, is in effect of equal force with a sentence or decree in which both parties have acquiesced (Cod. Lib. II. Tit. IV. de transactionibus). This is very different from an agreement such as it is argued to be.

I. The parties are, if there is any ignorance, mutually ignorant. It is said that Lullit Narain and Sree Narain had proved their titles as heirs at law, but that was not so at the time the instrument was executed; they had petitioned the Court as such, and so had Bhya Jha as Khurta Pootra, but each party was in ignorance of the validity of the other’s claim, and must have remained so until a legal decision was come to on the validity of those claims: it is clear that if they litigated their rights, one or other must fail, their claims being adverse. Then if no surprise was practised, what ground is there to impute fraud? The heirs at law, or those claim¡ing as such, might commit fraud with the same facility as the Khurta Pootra. But what is the conduct of the parties? They deliberately execute this instrument in the presence of witnesses, and acknowledge it in open Court. They say, we have conflicting claims; we agree to settle them without further litigation ; here is our deed of compromise; it is a voluntary act; we acknowledge and desire to be bound by it. Nothing can come more near to the ” transactio ” than this. Would a party levying a fine in the Court of Common Pleas, or a woman separately examined, be allowed to say afterwards, I was imposed on; though I knew the good¡ness of my own title, I did not know the badness of yours, and that ignorance entitles me to rescind and annul the proceedings? Such a thing was never heard of here. But it is contended, that the principles of our Courts of Equity must be imported into this case, and that according to those principles this agreement cannot stand. The cases cited are where the title concealed was ascertained and had actual exist¡ence; in Pusey v. Desbouvrie [3 P. Wms. 315], the party compromising her rights was ignorant of them; but they were valid and subsisting rights known to the other party, and not, as in this case, about to be the subject of contest. In Gordon v. Gordon [3 Swans. 467] there was concealment of a material fact, the legitimacy of the elder Brother; yet Lord Eldon’s remarks show, that if both parties had been ignorant of that fact, the arrangement would not have been overturned. Gee v. Spencer [1 Vern. 31]”cannot be relied on as an authority; the facts are not stated sufficiently to show the grounds of the decision. In Naylor v. Winch (1 Sim. and St. 555), the Court held, that it could not inquire into the adequacy or inadequacy of the consideration of a compromise fairly and deliberately made; the interests of the parties turned upon the construction to be given to the bequest of an annuity, and the Court observed, that, it being a question of doubt, it was extremely reasonable that the parties should terminate their differences by dividing the stake between them. In Leonard v. Leonard [1 Ball and Bea. 323] there was concealment of a material fact. In Stockley v. Stockley (1 Ves. and Bea. 30), Lord Eldon says, that family compromises of doubtful rights are, if reasonable, to be favoured; and he adds, that in such arrangements the Court does not go the length of doing relief upon the principle that prevails between strangers. It is no reason for setting aside a release because the party releasing has a right; he must be ignorant of his right, or it must be concealed from him, Cann v. Cann (1 P. W. 727). All these authorities show the distinctions between an agreement made in fraud of an ignorant or mis¡taken party’s rights, and a ” transactio ” such as this.

II. The question of adoption cannot be decided upon this appeal; it was not strictly litigated in the Court below ; both Provincial and the Sudder Courts proceeded on the Soluhnamah, and from the first proceedings, Bhya Jha’s claim was directed to that instrument. That accounts for the non-production of twenty-six witnesses summoned by him. The Court felt that there was ground to infer his title sufficient to give him a locus standi and entitle him to compromise. That is sufficient for my argument; but I apprehend the circumstances go much further. There is no ground for supposing that the Ranee had not the power to make a Khurta Pootra; she had property distinct from her Husband; that is in evidence; she was allowed to enjoy it during her Husband’s lifetime, and there is no evidence of his having made any disposition of it. Under such circumstances the natural inference is, that [235] he gave her power over it; and if so, it would seem to follow as of course, that, in the absence of any evidence to contradict such intention, he should have given her power over his own as well as her estate; if so, the power to make a Khurta Pootra would follow as of course. But there is much doubt on this subject even among the Hindoo lawyers. In the Mitdcshard, ch. II. sec. i. (Trans, by Colebrooke, p. 335), the succession of women to their Husband’s property is shown to be allowed ; the same doctrine appears from the Ddya Bhdga, ch. XI. sec. i. (Trans, by Colebrooke, p. 158); and in the Digest (3 Cole. Dig. of “Hindu Law,” 557), the succession of females is treated of at large. From these authorities, as well as the evidence in the case, the right of the Ranee to make a Khurta Pootra seems undoubted; and Mr. Stuart, the Judge in the Court below, certainly assumes that power, and shows it to be consistent with Hindoo law and authority.

Mr. Turton.-To reverse the decision of the Provincial and Sudder Courts, this Court must be satisfied that the Judges below have miscarried in fact or law. The artificial rules of the Courts of Equity here cannot be applied to the native Courts of India. The general principles of Equity are, no doubt, the same all over the world, and to that extent the principles of the Court of Chancery may be said to apply to the Sudder and Provincial Court; but the practice contended for here is the application of a refined rule, arising from a state of morals and society, that has no existence in India. It is said this was an unrighteous bargain, because Bhya Jha knew at the time he made it he [236] could not prove that he was Khurta Pootra; that was concealment enough to vitiate the contract. Now, supposing that on investigation of his title previous to the decision of the Court on it, he had discovered that there was a fatal objection to it, would that be a ground even here for annulling such an instrument of compromise made previous to such examination, and pending his claim? Clearly not. But what is his conduct? In fact, on the first opportunity that presented itself, he makes his claim; he petitions the Government, claiming to be Khurta Pootra; that act put his title in litigation, and until his plaint was rejected by the decision of the Court, it was a valid and subsisting claim, amply sufficient to give him a right to compromise, if he thought fit. It is not enough to prove that without the adoption of Bhya Jha, Sree Narain and Lullit Narain would have been entitled as heirs at law; Bhya Jha must be shown to have conspired with his witnesses to prove a fraudulent title, such title being the ground of the compromise; this is inconsistent with all the evidence in the case. It is not necessary to enter upon the Eanee’s right to make a Khurta Pootra; that may be, although I apprehend it is not, a disputed question; neither is it necessary for the purpose of this argument to go into the details of the adoption; the Court below declined very properly entering upon them; all that is sufficient is that Bhya Jha should be shown, at the time he executed the Soluhnamah, to have had a locus atandi in Court; that is abundantly proved. The party impeaching a deed, valid on the face of it, on the ground of fraud, must prove such fraud, Field v. Soivle (4 Russ. 112); and where there has been ample opportunity in the Court below to the party to tender such proof, if he neglect it this Court will not interfere, Motee Lai Opudhiya v. Juggernath Gurg (1 Moore’s Indian App. Cases, 1). In Attvood v. (1 Russ. 353), the Master of the Rolls (Lord Gifford) held that where a person, after due deliberation, had entered into an agreement for the purpose of compro¡mising a claim made bona fide, to which he believed himself liable, and with the nature and extent of which he was fully acquainted, the compromise of such a claim was sufficient consideration for the agreement, and that a Court of Equity would compel specific performance, without inquiring whether he was in truth liable to the claim. The same principle was held in Naylar v. Winch (1 Sim. and St. 555). I contend, therefore, that the Courts below were, even upon the refined principles of the Equity Courts here, amply justified in rejecting Bhya Jha’s claim for the whole property on the ground now contended for; and it is enough for me to show that Bhya Jha’s claim at the time the compromise was made was a bona fide claim as Khurta Pootra. It is not necessary to enter into an examination of the evidence on that subject; there is enough to satisfy the Court; but the Judges below pro¡ceeded on a different ground, and much evidence we might have tendered was withdrawn by us. If that question is to be agitated, the case must go back to the Provincial Court.

Mr. Justice Bosanquet (May 9, 1839).-The Appellants in this case represent Sree Narain Rae, who, with his Brother, Lullit Narain Rae, was co-heir at law in the seventh degree of Inder Narain  Rae, late Rajah of the zemindary of the Pergunnah Havilah Poorneah, who died in the year 1784, leaving the Ranee Indra-wuttee, his Widow, in possession of his estate and effects.

On the death of the Ranee, on the 15th of November, 1803, the zemindary, and all the estate of which she died possessed, were claimed by Bhya Jha, the Son of her Uncle, Roodrudhut Jha, who is represented by the Respondent, and who set up a title as Khurta Pootra, or heir, by the adoption by the Ranee.

Bhya Jha burned the body of the Ranee on the evening of the day on which she died. He also performed the Shradh, or funeral ceremony, three days after the death, having in consequence of a petition preferred to the Zillah Judge obtained Rs. 5000 for that purpose.

Adverse claims having been preferred, the property was secured by authority of the Zillah Court, which, after having consulted the Sudder Dewanny Adawlut, put the heirs in possession upon giving security, leaving Bhya Jha to establish his right by adoption.

On the 11th of December, a Soluhnamah, or deed of compromise, was executed by the heirs at law and Bhya Jha, by which it was agreed, that they should divide the whole of the property, moveable and immoveable, comprising the estate left by the late Ranee, as well the former zemindary, as the zemindary then recently acquired by private and public sale, in equal moieties. This instrument was executed in the presence of many witnesses.

On the 28th of December, Sree Narain Rae and his Brother, the co-heirs, as well as Bhya Jha, appeared before the Judge of the Zillah Court, when Sree Narain and his Brother, being asked why they executed the [239] deed when the right of no one had been inquired into, they replied. ” We understood that the Ranee had con¡stituted Bhya Jha her Khurta Pootra, in which case he is also an heir, and he also understood us to be rightful heirs ; wherefore we and Bhya Jha agreed to a mutual compromise, and have executed this engagement, which specifies also the objects.” Being asked if they made this declaration in consequence of the oath set forth in the deed of compromise, or of their free will, they answered, ” Our claim was for the entire estate ò but since we have voluntarily entered into this engagement, we are satisfied and agree, of our free will, to relinquish a moiety of it.”

Bhya Jha being also examined, said, ” The late Ranee constituted me her Khurta Pootra; Sree Narain and Lullit Narain are kinsmen and rightful heirs of the Ranee’s Husband. They delivered a petition to the Court, claiming the entire estate left by the Ranee, and also preferred a claim to the whole. Wherefore, to prevent litigation, which .might cause the ruin of both parties, we agreed to a com¡promise, and exchanged engagements accordingly.” Being asked what he now elaimed, he answered, ” I have now no claim beyond what is stated in the Soluh-namah.” All of them, on being questioned if they wished to have joint possession of the estate, answered, ” We are desirous of having joint possession, and will here¡after carry into effect the stipulations of our reciprocal Soluhnamahs.”

On the 30th of December, the Zillah Court pronounced an opinion, that the agreement was manifestly collusive, and could not be sanctioned as valid; and further stated that, the petitions of the parties having been sent to the Sudder Dewanny Adawlut, the instruc-[240]-tions of that Court were, that the nearest of kin, who according to the Shaster should appear to be the legal heirs, should, on giving security, be put into possession of the estate, and that Bhya Jha should pro¡secute his claim by a regular civil suit.. It was, therefore, ordered, that he should prefer his claim by a regular suit, according to usage, and Sree Narain and Lullit Narain were put into possession.

Bhya Jha appealed from the decision of the Zillah Court, to the Provincial Court of Moorshedabad. In consequence of petitions to the Sudder Dewanny Adawlut, the parties appeared there. The co-heirs asserted, that Bhya Jha was not the adopted Son of the Ranee, and that they had been induced to sign the Soluhnamah by threats of Bhya Jha, Bhya Ram Misser, and others, and prayed that Bhya Jha might be required to prove that he was the adopted Son of the Ranee, and might be directed to prosecute, according to the existing Regulations, his claims to the property left by the Ranee at her decease.

On the 26th of September, 1804, the Sudder Dewanny Adawlut, after expressing strong doubts of the validity of the claim, declared that it was necessary for the ends of justice, that Bhya Jha’s claim to the whole of the property of the late Ranee should be judicially investigated; and, therefore, order that Bhya Jha, whether he claimed the whole of the property of the Ranee in consequence of his having been adopted by her, or whether he laid claim to the half of it only, according to the agreement on the Soluhnamah with Sree Narain and others, should institute a suit for the purposes in the Court of Zillah Poorneah, in conformity to the Regulations. A suit was accordingly instituted by Bhya Jha.

 On the 3rd of September, 1806, the Court ordered the parties to produce all papers and documents on which they intended to rely, before the 4th of November next following.

Bhya Jha contended, that it was not necessary for him to prove that he had been appointed Khurta Pootra, inasmuch as the Defendant had admitted it by the Soluhnamah

Witnesses named in a list were, nevertheless, directed by the Court to be examined; but on the 22nd of June, 1808, pursuant to a general order of the Government, all the proceedings were transferred to the Provincial Court of Moorshedabad.

On the 26th of June, 1809, Bhya Jha presented a petition, stating that he had two claims on the property, moveable and immoveable, left by the late Ranee.

That one claim was as Khurta Pootra. That the other claim was founded on the Soluhnamah, or deed of compromise. That the supplemental or annexed claim included two counts, first as Khurta Pootra for the whole estate, real and personal, amounting to S.R. 1,315,693; secondly, on the deed of compromise for a moiety of that sum ; and that when the cause should come on for trial, he would bring forward or rely on either of these counts, as he might think proper.

On the 28th of July, 1809, after hearing one witness only, the Court of Moorshedabad proceeded to determine the case, and pronounced that it was unnecessary to enter into a further consideration of the claims of either party; observing, that whether Sree Narain and Lullit Narain were the rightful heirs, or Bhya Jha was or was not Khurta Pootra, they were equally bound by the stipulations of the engagement, mutually inter-change, and the Soluhnamah executed before the Judge defined the rights of either party. It was, therefore, ordered that Sree Narain and Lullit Narain should give to Bhya Jha possession of one moiety of the property, and one-half of the profits received, and each party should pay his own costs.

From this decision Sree Narain and Lullit Narain appealed to the Sudder Dewanny Adawlut.

An objection was made there to the right of Bhya Jha to enforce his claim under the Soluhnamah, after having, by a petition to the Zillah Court, on the 5th of September, 1805, claimed the entire property, and by a letter of the 10th of September 1806, declared that if Sree Narain and Lullit Narain would not abide by the stipulations contained in it, he, Bhya Jha, would henceforth consider the same null and void.

The Court ordered an investigation to be made upon two points: first, as to the fact of Bhya Jha’s adoption by the Ranee; and secondly, the alleged fraud of Bhya Jha, Bhya Ram Misser, and others, in obtaining the Soluhnamah. In consequence of this Order a great body of evidence was given on both sides, and the Sudder Dewanny Court, after very fi-11 consideration of the whole case, by their final decree of the 27th of July, 1812, confirmed the decree passed by the Provincial Court of Moorshedabad of the 28th of July, 180’9, which ordered Bhya Jha to be put in pos¡session of a moiety of the contested property, and also half of the produce arising therefrom since the time that Sree Narain and Lullit Narain had had possession ; and moreover declared that Bhya Jha was entitled to a moiety of the entire pro¡perty left by the Ranee, specified in the petition of the Plaintiff in the cause which the Provincial Court in their decree, had order to be placed in deposit. But as the objection [243] of the Appellants to the Soluhnamah, on which the decree of the Provincial Court was founded, were not thoroughly inquired into, on which account the appeal to the Sudder Dewanny Adawlut was not without foundation, it was ordered that both parties should be answerable for the costs of suit in that Court.

The first question to be determined was, whether Bhya Jha was precluded from insisting upon the Soluhnamah.

The Court, considering that Bhya Jha was riot the first to swerve from the re¡ciprocal agreement entered into between him and his Opponents, but, on the contrary, had uniformly expressed his willingness to carry the same into effect, even after his Opponents had retracted their consent, and until the Order of the 26th of September, 1804, which directed a judicial investigation into his claim to the property of the Ranee, that he preferred his claim upon the agreement before the cause had come to a hearing in the Provincial Court, and that he had acquiesced in the decree of that Court, maintaining the agreement, and praying that it might be affirmed; and did not apply for any examination of witnesses to support his title to the whole estate, but, on the contrary, objected to such examination when ordered by the Court, and desired a confirmation of the Judgment for half the estate, in conformity with the deed of compromise; and, moreover, considering that forms of pleading were not very strictly observed in the Native Courts;-determined, and, as their Lordships think, rightly determined, upon the grounds above mentioned, that Bhya Jha was at liberty to insist upon the validity of the Soluhnamah in support of the judgment of the Provincial Court of Moorshedabad.

The next question to be considered was, whether that instrument ought to be supported by the Court, or whether it was not impeachable on, legal or equitable grounds.

The first ground of objection was, that it had been obtained by the fraudulent representation of a transaction which wag absolutely false, namely, that the Ranee by words addressed personally to Bhya Jha on the morning of her death, had con¡stituted him her Khurta Pootra, or adopted heir.

If this were clearly proved to be untrue, it must necessarily have been untrue within the knowledge of Bhya Jha himself ; and any deed of compromise founded on an assertion of such matter by him, however deliberately entered into by the co¡heirs at law, would unquestionably be invalid.

The Judges of the Sudder Dewanny Adawlut, after carefully reviewing all the evidence in the cause, did not feel themselves able satisfactorily to declare that the adoption had taken place, neither did they feel themselves justified in pronouncing that the representation of its having taken place was false.

Without satisfactorily establishing the former, Bhya Jha could not be entitled to recover the whole estate. But when after the assertion of his title on the one side and the denial of it on the other, a compromise was entered into, in the presence of many witnesses, by parties on the spot, and solemnly acknowledged by the parties in a Court of law to have been voluntarily executed, the burthen of showing that it had been fraudulently obtained by false representation was cast upon those who sought to impeach the validity of their own deed.

The laborious and accurate examination which the testimony in this case has undergone at the Bar has greatly assisted their Lordships in determining whether the Sudder Dewanny Adawlut arrived at a just conclusion.

They find a great body of positive evidence to the fact of adoption, given by persons who swear to having been present at the time when the Ranee, being of sound mind, addressed Bhya Jha, saying, ” When I was but five or six months old my Mother died, and a short time after, my Father died; and ever since your Father maintained me, and having brought me to this Rajah, gave me in marriage; I am, therefore, greatly indebted to your Father, and thereby you have claims on me; I have made you my Khurta Pootra, property, estate, and effects, which I have bequeathed to you; ” after which words Bhya Jha rose and thankfully accepted them. These witnesses further swear, that she told Bhya Jha to burn her body and perform the Shradh; others swear that, in their hearing, the Ranee personally de¡clared on the same morning, that she had actually made Bhya Jha her Khurta Pootra, and gave her reasons; and others depose that she had on that same morning consulted them as to the proper hour for making a Khurta Pootra. It is beyond all dispute, that Bhya Jha almost immediately after the death of the Ranee burnt her body, an. office which it belonged to Khurta Pootra to perform ; that his right to succeed as Khurta Pootra was claimed for him by a petition presented the next day, and that he also publicly performed the ceremony of the Shradh three days after the death, as the adopted heir, on which occasion he was placed on the Musnud (the cushion or chair of State in which a Rajah or Zemindar sits in public), and the turban put upon his head. [246] On, the other hand it is sworn by many wit¡nesses who profess to have been in attendance on the Ranee on that day, that she did not make any Khurta Pootra; that she was incapable from extreme illness and insensibility of doing any such act; that several of the persons who swear to having witnessed the act were not present at the time; that Bhya Jha himself was absent from the house during that morning, and did not arrive till after the death of the Ranee; that he was at another place at the time when the adoption is sworn to have taken place; and that he had, for a long time before, ceased to come into her pre¡sence, in consequence of her having been displeased with him on account of his having practised sorcery against her. Declarations of witnesses on both sides, con¡trary to the facts deposed to by them in evidence, are sworn to by others; and tampering with the witnesses by the Opponents on both sides is deposed to.

It cannot be denied, therefore, that circumstances are stated upon the face of the evidence which are calculated to excite suspicion, both with respect to the fact of the adoption, and the credit of several witnesses adduced to prove it.

But the case of the Appellants is founded upon a charge of positive fraud and imposition, and gross fraud is not to be imputed upon suspicion only. Unless the charge be proved, parties are not to be released from agreements entered into by their solemn acts. There may be ground to pause in giving full credit to the alleged adoption; but their Lordships, upon a review of the testimony given on one side and the other, regard being had both to the matter and the credibility of such testi¡mony, do not see such a preponderating weight of evidence against the fact of adoption as to justify a determination that the assertion of its existence was an utter falsehood, and they are, therefore, of opinion, that the ground of impeach¡ing the Soluhnamah by the co-heirs, on account of its being, founded on a sufjpestio falsi by their Opponent, Bhya Jha, has not been maintained.

The next objection to the Soluhnamah is an alleged suppressio veri.

But the evidence does not afford any foundation for that objection. If the imputed falsehood of the adoption be laid out of the case for want of sufficient proof to support that imputation, the parties, in respect of the knowledge of circumstances, must be considered to stand upon equal terms. They belonged to the same caste, they lived in the neighbourhood of the Ranee at the time of her death; they had the opportunity of making inquiry into all material facts, and their attention was alive to the grounds of claim to the property; these grounds having been made the subject of assertion on the one side and denial on the other, before the execution of the deed. It does not appear, that Bhya Jha was in any respect better informed with respect to the rights of the heirs, the bearing of the law upon their rights or his own, or the nature or amount of the property, real and personal, than the heirs themselves, still less that anything was concealed which they might not be supposed to know as well as he.

The ground, however, which is most strongly relied upon and to which a great part of the evidence is addressed, is that the heirs were induced to execute the Soluhnamah by intimidation and undue persuasion.

The person alleged to have been most active in this [248] respect is Bhya Ram Misser, the Mooktar or Manager of the late Ranee, who is said to have urged the heirs to enter into the compromise, by repeated importunities, by the representation of the injury which they must necessarily sustain by a long protracted litigation, which would prevent both them and their children from deriving any benefit from the zemindary, and by actual threats that he would cause the ruin of it, and had the means of carrying such threats into effect.

Other persons, and among them the Collector of the East India Company, are stated to have used persuasion to the same effect as Bhya Ram Misser; but it is to be observed, that the charge of having employed intimidation is confined to the latter ; and that as he was dead at the time when witnesses in support of the charge were examined, the opportunity of confronting them by his evidence was known by the witnesses to be lost. At what precise time Bhya Ram Misser died, does not appear. In the examination of Doorgapersaud, however, on the 16th of April, 1811, it does appear that he was then dead ; and it was not till after that day, that the examina¡tions were taken of the witnesses who charge Bhya Ram Misser with having em¡ployed threats.

The advice to enter into a compromise rather than engage in litigation, subject to be protracted by appeal, not only to the Sudder Dewanny Adawlut, but to Eng¡land, could not, in the absence of fraudulent intention, be deemed a ground for impeaching the validity of the Soluhnamah. Indeed, Doorgapersaud himself, the Vakeel of Sree Narain Rae, states in his evidence, that he concurred in persuading his Client, upon the same grounds, to accede to the com-[249]-promise; and his evidence with respect to fraud, in causing the Soluhnamah to be executed, is con¡fined to the persuasion and advice in which he himself concurred.

The allegation of compulsion, by the threats of Bhya Ram Misser, brought for¡ward in evidence after his death, cannot countervail the solemn and unequivocal declaration made by the heirs to the Judge of the court, that they had voluntarily entered into the engagement, that they were satisfied, and had agreed of their free will to relinquish a moiety of the property, more especially when it is recollected, that they were not taken by surprise, having, according to their own evidence, executed the instrument after the respective claims of the parties had been the subject, of dispute.

The last ground of objection is, that the heirs have given up a moiety of their undoubted right, under a palpable mistake, of which it is contrary to the principles of equity that Bhya Jha should be allowed to take advantage.

To judge properly of this objection, we must look at the circumstances as they stood at the time when the Soluhnamah was executed. The Appellants are not entitled to avail themselves of all the light which subsequent investigation in the course of the suit has thrown upon their claims. If the nature or the extent of the rights of the respective parties could be considered as the fair subject of doubt at the date of the deed, and if, to avoid expense and delay by legal inquiry, they agreed to settle the contest by an amicable arrangement, such transaction is to be dis¡turbed on the ground of the inequality of benefit which either party may eventually have received from it.

It has ultimately been ascertained that the Ranee, without the authority of the Rajah, her Husband, was not entitled to make an adopted heir to her Hus¡band’s zemindary. But at the date of the Soluhnamah, even this point does not seem to have been taken as clearly understood. Sree Narain Rae and his Brother were related to the late Rajah in the seventh degree; and Bhya Jha was her Cousin, the Son of her Uncle; and not only do they in the Soluhnamah say, if Bhya Jha was Khurta Pootra he was also an heir; but the Judge of the Zillah Court says, if Bhya Jha was really Khurta Pootra, he would be entitled by the Shaster to the whole estate, real and personal. It appears further, that besides the zemindary of the Rajah, the Ranee died possessed of a very large zemindary property, part of which had been purchased during a long widowhood of nineteen years. Whether any, and what part of such zemindary property had been given to her by her Hus¡band, whether any, or what part of it was purchased with the profits of her Husband’s zemindary, or any, and what part with her own property, is quite un¡ascertained. Further it appears, that she died possessed of more than three lacs of rupees in personal effects, or nearly 30,000. That she was entitled to dispose of her separate property or Stridhun, consisting of whatever was given to her by her Husband, or her Husband’s family, or any part of her own family, whether moveable or immoveable, by adopting an heir of her own, appears to have been sufficiently established; whether she was authorized to dispose of landed property, purchased with the profits of her Husband’s zemindary, and remaining in her possession at her death, became a subject of discussion in the  Sudder Dewanny Adawlut; the result of which discussion appears to have been unfavourable to her right; but it could not by any means be treated from the commencement of the adverse claims as a matter free from doubt; for Mr. Harrington, in his minute with reference to the final judgment of the Sudder Dewanny Adawlut, though he expresses his concurrence in the result above mentioned, and refers to the Bewustas of the Pundits in support of it, remarks that it is not clearly decided by the authority of works of the Mithila school, to which this family belonged, whether any moveable property, inherited by a Widow from her Husband, and in her possession at the time of her death, or any money or other property arising from the product of the landed estate, during her possession, devolves, on her death, to her own heir or to the heir of her Husband.

Under all these circumstances, the true amount of the relative rights of the litigant parties must be considered as having been doubtful, whether the law or the fact be regarded. The uncertain event of the legal part of the case may be inferred from what is contained in the minute of Mr. Harrington above referred to. And it is justly observed by Mr. Stuart, the other Judge, that even after all the inquiry which had taken place, the rights of the parties, as they depended on facts, remained so doubtful, that they would even then afford a fair and equitable basis for a compromise.

Upon the whole, therefore their Lordships are of opinion, that the Appellants have failed to establish that the execution of the Soluhnamah was obtained by fraudu¡lent misrepresentation or concealment, or the execution of it compelled by fear, or that the agreement at the time when it was entered into was not a fair subject of compromise of disputed and doubtful rights: and, consequently, that the decree of the Sudder Dewanny Adawlut ought to be affirmed.

That Court, though it affirmed the decree of the Provincial Court, did not give the costs of the appeal, because a full opportunity of investigating the case in the Court below had not been allowed. But a very full investigation of the case took place in the Sudder Dewanny Adawlut. From the decree of that Court an appeal was made to the King in Council, and in consequence of the Appellants having omitted to appeal, the case was heard ex-parte, and the decree affirmed. The Appellants upon a special application to His Majesty in Council were allowed to restore the appeal, and bring on the case for hearing, their Lordships being of opinion, that instead of affirming the decree, they ought to have dismissed the appeal. The case has now been fully considered, and the judgment being in favour of the Respondent, affirming the determination of two Courts in India, as well as the former determination here, their Lordships are of opinion that the costs of the appeal ought to be paid by the Appellants.

Note

[S.C. 1 Moo. P.C. 117. Commented on and approved in regard to review of judg¡ments in The Singapore, 1866, L.R. 1 P.O. 388: Ex parte Kisto Nauth Roy, 1869, L.E. 2 P.C. 277; 6 Moo. P.C. (N.S.) 360 : Maharajah Pertab Narain, Singh v. Maharanee Subhao Koer, 1878, L.E. 5 Ind. App. 171: Venkata Narasimha Appa Row v. Court of Wards, 1886, 11 A.C. 660; L.R. 13 Ind. App. 155: See also Keerut Sing v. Koolahul Sing, 1839, 2 Moo. Ind. App. 341 ; Bhugwan-deen Doobey v. Myna Baee, 1867, 11 Moo. Ind. App. 506. See next case.]




History of the Common Law of England by Matthew Hale 1713

The History of the Common Law of England
by Matthew Hale
1713

I. Concerning the Distribution of the Law of England into Common Law, and Statute Law. And First, concerning the Statute Law, or Acts of Parliament

The Laws of England may aptly enough be divided into two Kinds, viz. Lex Scripta, the written Law: and Lex non Scripta, the unwritten Law: For although (as shall be shewn hereafter) all the Laws of this Kingdom have some Monuments or Memorials thereof in Writing, yet all of them have not their Original in Writing; for some of those Laws have obtain’d their Force by immemorial Usage or Custom, and such Laws are properly call’d Leges non Scriptae, or unwritten Laws or Customs.

Those Laws therefore, that I call Leges Scriptae, or written Laws, are such as are usually called Statute Laws, or Acts of Parliament, which are originally reduced into Writing before they are enacted, or receive any binding Power, every such Law being in the first Instance formally drawn up in Writing, and made, as it were, a Tripartite lndenture, between the King, the Lords and the Commons; for without the concurrent Consent of all those Three Parts of the Legislature, no such Law is, or can be made: But the Kings of this Realm, with the Advice and Consent of both Houses of Parliament, have Power to make New Laws, or to alter, repeal, or enforce the Old. And this has been done in all Succession of Ages.

Now, Statute Laws, or Acts of Parliament, are of Two Kinds, viz. First, Those Statutes which were made before Time of Memory; and, Secondly, Those Statutes which were made within or since Time of Memory; wherein observe, That according to a juridical Account and legal Signification, Time within Memory is the Time of Limitation in a Writ of Right; which by the Statute of Westminster 1. cap. 38. was settled, and reduced to the Beginning of the Reign of King Richard I or Ex prima Coronatione Regis Richardi Primi, who began his Reign the 6th of July 1189, and was crown’d the 3d of September following: So that whatsoever was before that Time, is before Time of Memory; and what is since that Time, is, in a legal Sense, said to be within or since the Time of Memory.

And therefore it is, that those Statutes or Acts of Parliament that were made before the Beginning of the Reign of King Richard I and have not since been repealed or altered, either by contrary Usage, or by subsequent Acts of Parliament, are now accounted Part of the Lex non Scripta, being as it were incorporated thereinto, and become a Part of the Common Law; and in Truth, such Statutes are not now pleadable as Acts of Parliament, (because what is before Time of Memory is supposed without a Beginning, or at least such a Beginning as the Law takes Notice of) but they obtain their Strength by meer immemorial Usage or Custom.

And doubtless, many of those Things that now obtain as Common Law, had their Original by Parliamentary Acts or Constitutions, made in Writing by the King, Lords and Commons; though those Acts are now either not extant, or if extant, were made before Time of Memory; and the Evidence of the Truth hereof will easily appear, for that in many of those old Acts of Parliament that were made before Time of Memory, and are yet extant, we many find many of those Laws enacted which now obtain merely as Common Law, or the General Custom of the Realm: And were the rest of those Laws extant, probably the Footsteps of the Original Institution of many more Laws that now obtain meerly as Common Law, or Customary Laws, by immemorial Usage, would appear to have been at first Statute Laws, or Acts of Parliament.

Those ancient Acts of Parliament which are ranged under the Head of Leges non Scriptae, or Customary Laws, as being made before Time of Memory, are to be considered under Two Periods: Viz. First, Such as were made before the coming in of King William I commonly called, The Conqueror; or, Secondly, Such as intervened between his coming in, and the Beginning of the Reign of Richard I which is the legal Limitation of Time of Memory.

The former Sort of these Laws are mentioned by our ancient Historians, especially by Brompton, and are now collected into one Volume by William Lambard, Esq; in his Tractatus de priscis Anglorum Legibus, being a Collection of the Laws of the Kings, Ina, Alfred, Edward, Athelstane, Edmond, Edgar, Ethelred, Canutus, and of Edward te Confessor; which last Body of Laws, compiled by Edward the Confessor, as they were more full and perfect than the rest, and better accommodated to the then State of Things, so they were such whereof the English were always very zealous, as being the great Rule and Standard of their Rights and Liberties: Whereof more hereafter.

The second Sort are those Edicts, Acts of Parliament, or Laws, that were made after the coming in of King William, commonly named, The Conqueror, and before the beginning of the Reign of King Richard I and more especially are those which follow; whereof I shall make but a brief Remembrance here, because it will be necessary in the Sequel of this Discourse (it may be more than once) to resume the Mention of them; and besides, Mr Selden, in his Book called, Janus Anglorum, has given a full Account of those Laws; so that at present it will be sufficient for me, briefly to collect the Heads or Divisions of them, under the Reigns of those several Kings wherein they were made, viz.

First, The Laws of King William I. These consisted in a great Measure of the Repetition of the Laws of King Edward the Confessor, and of the enforcing them by his own Authority, and the Assent of Parliament, at the Request of the English; and some new Laws were added by himself with the like Assent of Parliament, relating to Military Tenures, and the Preservation of the publick Peace of the Kingdom; all which are mention’d by Mr Lambert, in the Tractate before-mentioned, but more fully by Mr Selden, in his Collections and Observations upon Eadmerus.

Secondly, We find little of new Laws after this, till the Time of King Henry I, who besides the Confirmation of the Laws of the Confessor, and of King William I brought in a new Volume of Laws, which to this Day are extant, and called the Laws of King Henry I. The entire Collection of these is entered in the Red Book of the Exchequer, and from thence are transcribed and published by the Care of Sir Roger Twisden, in the latter End of Mr Lambart’s Book before-mention’d; what the Success of those Laws were in the Time of King Steven, and King Henry 2 we shall see hereafter: But they did not much obtain in England, and are now for the most Part become wholly obsolete, and in Effect quite antiquated.

Thirdly, The next considerable Body of Acts of Parliament, were those made under the Reign of King Henry 2 commonly called, The Constitiutions of Clarendon; what they were, appears best in Hoveden and Mat. Paris, under the years of that King. We have little Memory else of any considerable Laws enacted in this King’s Time, except his Assizes, and such Laws as related to the Forests; which were afterwards improv’d under the Reign of King Richard I. But of this hereafter, more at large.

And this shall serve for a short Instance of those Statutes, or Acts of Parliament, that were made before Time of Memnory; whereof, as we have no Authentical Records, but only Transcripts, either in our ancient Historians, or other Books and Manuscripts; so they being Things done before Time of Memory, obtain at this Day no further than as by Usage and Custom they are, as it were, engrafted into the Body of the Common Law, and made a Part thereof.

And now I come to those Leges Scriptae, or Acts of Parliament, which were made since or within the Time of Memory, viz. Since the Beginning of the Reign of Richard I and those I shall divide into Two General Heads, viz. Those we usually call the Old Statutes, and those we usually call the New or later Statutes: And because I would prefix some certain Time or Boundary between them, I shall call those the Old Statutes which end with the Reign of King Edward 2 and those I shall call the New or later Statutes which begin with the Reign of King Edward 3 and so are derived through a Succession of Kings and Queens down to this Day, by a continued and orderly Series.

Touching these later Sort I shall say nothing, for they all keep an orderly and regular Series of Time, and are extant upon Record, either in the Parliament Rolls, or in the Statute Rolls of King Edward 3 and those Kings that follow: For excepting some few years in the Beginning of K. Edward 3. i.e. 2, 3, 7, 8 & 9 Edw. 3. all the Parliament Rolls that ever were since that Time have been preserved, and are extant; and, for the most Part, the Petitions upon which the Acts were drawn up, or the very Acts themselves.

Now therefore touching the elder Acts of Parliament, viz. Those that were made between the First Year of the Reign of K. Richard I and the last year of K. Edward 2 we have little extant in any authentical History; and nothing in any authentical Record touching Acts made in the Time of K. Rich. I unless we take in those Constitutions and Assizes mentioned by Hoveden as aforesaid.

Neither is there any great Evidence, what Acts of Parliament pass’d in the Time of King John, tho’ doubtless many there were both in his Time, and in the Time of K. Rich. I. But there is no Record extant of them, and the English Histories of those Times give us but little Account of those Laws; only Matthew Paris gives us an Historical Account of the Magna Charta, and Charta de Foresta, granted by King John at Running Mead the 15th of June, in the Seventeenth Year of his Reign.

And it seems, that the Concession of these Charters was in a Parliamentary Way; you may see the Transcripts of both Charters verbatim in Mat. Paris, and in the Red Book of the Exchequer. There were seven Pair of these Charters sent to some of the Great Monasteries under the Seal of King John, one Part whereof sent to the Abby of Tewkesbury I have seen under the Seal of that King; the Substance thereof differs something from the Magna Charta, and Charta de Foresta, granted by King Henry 3 but not very much, as may appear by comparing them.

But tho’ these Charters of King John seem to have been passed in a kind of Parliament, yet it was in a Time of great Confusion between that King and his Nobles; and therefore they obtained not a full Settlement till the Time of King Henry 3 when the Substance of them was enacted by a full and solemn Parliament.

I therefore come down to the Times of those succeeding Kings, Henry 3. Edw. I. and Edw. 2. and the Statutes made in the Times of those Kings, I call the Old Statutes; partly because many of them were made but in Affirmance of the Common Law; and partly because the rest of them, that made a Change in the Common Law, are yet so ancient, that they now seem to have been as it were a Part of the Common Law, especially considering the many Expositions that have been made of them in the several Successions of Times, whereby as they became the great Subject of Judicial Resolutions and Decisions; so those Expositions and Decisions, together also with those old Statutes themselves, are as it were incorporated into the very Common Law, and become a Part of it.

In the Times of those three Kings last mentioned, as likewise in the Times of their Predecessors, there were doubtless many more Acts of Parliament made than are now extant of Record, or otherwise, which might be a Means of the Change of the Common Law in the Times of those Kings from what it was before, tho’ all the Records of Memorials of those Acts of Parliament introducing such a Change, are not at this Day extant: But of those that are extant, I shall give you a brief Account, not intending a large or accurate Treatise touching that matter.

The Reign of Henry 3 was a troublesome Time, in respect of the Differences between him and his Barons, which were not composed till his 51st year, after the Battle of Evesham. In his Time there were many Parliaments, but we have only one Summons of Parliament extant of Record in his Reign, viz. 49 Henry 3. and we have but few of those many Acts of Parliament that passed in his Time, viz. The great Charter, and Charta de Foresta, in the Ninth year of his Reign, which were doubtless pass’d in Parliament; the Statute of Merton, in the 20th year of his Reign; the Statute of Marlbridge, in the 52d year. and the Dictum sive Edictum de Kenelworth, about the same Time; and some few other old Acts.

In the Time of K. Edw. I. there are many more Acts of Parliament extant than in the Time of K. Henry 3. Yet doubtless, in this King’s Time, there were many more Statutes made than are now extant: Those that are now extant, are commonly bound together in the old Book of Magna Charta. By those Statutes, great Alterations and Amendments were made in the Common Law; and by those that are now extant, we may reasonably guess, that there were considerable Alterations and Amendments made by those that are not extant, which possibly may be the real, tho’ sudden Means of the great Advance and Alteration of the Laws of England in this King’s Reign, over what they were in the Time of his Predecessors.

The first Summons of Parliament that I remember extant of Record in this King’s Time, is 23 Edw. I, tho’ doubtless there were many more before this, the Records whereof are either lost or mislaid: For many Parliaments were held by this King before that Time, and many of the Acts pass’d in those Parliaments are still extant; as, the Statutes of Westminster I, in the 3d of Edw. I. The Statutes of Gloucester, 6 Edw. I. The Statutes of Westminster 2, and of Winton, 13 Edw. I. The Statutes of Westminster 3, and of Quo Warranto, 18 Edw. I. And divers others in other years, which I shall have Occasion to mention hereafter.

In the Time of K. Edw. 2, many Parliaments were held, and many Laws were enacted; but we have few Acts of Parliament of his Reign extant, especially of Record.

And now, because I intend to give some short Account of some general Observations touching Parliaments, and of Acts of Parliament pass’d in the Times of those three Princes, viz. Henry 3. Edw. I. and Edw. 2. because they are of greatest Antiquity, and therefore the Circumstances that atended them most liable to be worn out by Process of Time, I will here mention some Particulars relating to them to preserve their Memory, and which may also be useful to be known in relation to other Things.

We are therefore to know, That there are these several Kinds of Records of Things done in Parliament, or especially relating thereto, viz. I. The Summons to Parliament. 2. The Rolls of Parliament. 3. Bundles of Petitions in Parliament. 4. The Statutes, or Acts of Parliament themselves. And, 5. The Brevia de Parliamento, which for the most part were such as issued for the Wages of Knights and Burgesses; but with these I shall not meddle.

First, as to the Summons to Parliament. These Summons to Parliament are not all entred of Record in the Times of Henry 3 and Edw. I. none being extant of Record in the Time of Hen. 3. but that of 49 Hen. 3. and none in the Time of Edw. I. till the 23 Edw. I. But after that year, they are for the most part extant of Record, viz. In Dorso Claius’ Rotulorum, in the Backside of the Close Rolls.

Secondly, As to the Rolls of Parliament, viz. The Entry of the several Petitions, Answers and Transactions in Parliament. Those are generally and successively extant of Record in the Tower, from 4 Edw. 3. downward till the End of the Reign of Edw. 4. Excepting only those Parliaments that intervened between the 1st and the 4th, and between the 6th and the 11th, of Edw. 3.

But of those Rolls in the Times of Hen. 3. and Edw. I. and Edw. 2. many are lost and few extant; also, of the Time of Henry 3. I have not seen any Parliament Roll; and all that I ever saw of the Time of Edw. I. was one Roll of Parliament in the Receipt of the Exchequer of 18 Edw. I. and those Proceedings and Remembrances which are in the Liber placitor’ Parliamenti in the Tower, beginning, as I remember, with the 20th year of Edw. I. and ending with the Parliament of Carlisle, 35 Edw. I and not continued between those years with any constant Series; but including some Remembrances of some Parliaments in the Time of Edw. I. and others in the Time of Edw. 2.

In the Time of Edw. 2. besides the Rotulus Ordinationum, of the Lords Ordoners, about 7 Edw. 2. we have little more than the Parliament Rolls of 7 & 8 Edw. 2. and what others are interspersed in the Parliament Book of Edw. I. above mentioned, and, as I remember, some short Remembrances of Things done in Parliament in the 19 Edw. 3.

Thirdly, As to the Bundles of Petitions in Parliament. They were for the most part Petitions of private Persons, and are commonly endorsed with Remissions to the several Courts where they were properly determinable. There are many of those Bundles of Petitions, some in the Times of Edw. I. and Edw. 2 and more in the Times of Edw. 3. and the Kings that succeeded him.

Fourthly, The Statutes, or Acts of Parliament themselves. These seem, as if in the Time of Edw. I. they were drawn up into the Form of a Law in the first Instance, and so assented to by both Houses, and the King, as may appear by the very Observation of the Contexture and Fabrick of the Statutes of those Times. But from near the Beginning of the Reign of Edw. 3. till very near the End of Hen. 6. they were not in the first Instance drawn up in the Form of Acts of Parliament; but the Petition and the Answer were entred in the Parliament Rolls, and out of both, by Advice of the Judges, and others of the King’s Council, the Act was drawn up conformable to the Petition and Answer, and the Act itself for the most part entred in a Roll, called, The Statute Roll, and the Tenor thereof affixed to Proclamation Writs, directed to the several Sheriffs to proclaim it as a Law in their respective Counties.

But because sometimes Difficulties and Troubles arose, by this extracting of the Statute out of the Petition and Answer; about the latter End of Hen. 6. and Beginning of Edward 4. they took a Course to reduce ’em, even in the first Instance, into the full and compleat Form of Acts of Parliament, which was prosecuted (or Entred) commonly in this Form: Item quaedam Petitio exhibita fuit in hoc Parliamento forman actus in se continens, &c. and abating that Stile, the Method still continues much the same, namely; That the entire Act is drawn up in Form, and so comes to the King for his assent.

The ancient Method of passing Acts of Parliament being thus declared, I shall now give an Account touching those Acts of Parliament that are at this Day extant of the Times of Henry 3. Edw. I. and Edw. 2. and they are of two Sorts, viz. Some of them are extant of Record; others are extant in ancient Books and Memorials, but none of Record. And those which are extant of Record, are either Recorded in the proper and natural Roll, viz. the Statute Roll: or they are entred in some other Roll, especially in the Close Rolls and Patent Rolls, or in both. Those that are extant, but not of Record, are such as tho’ they have no Record extant of them, but possibly the same is lost; yet they are preserved in ancient Books and Monuments. and in all Times have had the Reputation and Authority of Acts of Parliament.

For an Act of Parliament made within Time of Memory, loses not its being so, because not extant of Record, especially if it be a general Act of Parliament. For of general Acts of Parliament, the Courts of Common Law are to take Notice without pleading of them; and such acts shall never be put to be tried by the Record, upon an Issue of Nul tiel Record. but it shall be tried by the Court, who, if there be any Difficulty or Uncertainty touching it or the right Pleading of it, are to use for their Information ancient Copies, Transcripts, Books, Pleadings and Memorials to inform themselves, but not to admit the same to be put in Issue by a Plea of Niul tiel Record.

For, as shall be shewn hereafter, there are very many old Statutes which are admitted and obtain as such, tho’ there be no Record at this Day extant thereof, nor yet any other written Evidence of the same, but what is in a manner only Traditional, as namely, Ancient and Modern Books of Pleadings, and the common receiv’d Opinion and Reputation, and the Approbation of the Judges Learned in the Laws: For the Judges and Courts of Justice are, ex Officio, (bound) to take Notice of publick Acts of Parliament, and whether they are truly pleaded or not, and therefore they are the Triers of them. But it is otherwise of private Acts of Parliament, for they may be put in Issue, and tried by the Record upon Nul tiel Record pleaded, unless they are produced exemplified, as was done in the Prince’s Cafe in my Lord Coke’s 8th Rep. and therefore the Averment of Nul tiel Record was refused in that Case.

The old Statutes or Acts of Parliament that are of Record, as is before said, are entred either upon the proper Statute Roll, or some other Roll in Chancery.

The first Statute Roll which we have, is in the Tower, and begins with Magna Charta, and ends with Edw. 3. and is called Magnus Rotulus Statutor’. There are five other Statute Rolls in that Office, of the Times of Richard 2. Henry 4. Hen. 5. Hen. 6. and Edw. 4.

I shall now give a Scheme of those ancient Statutes of the Times of Henry 3. Edw. I. and Edw. 2. that are recorded in the first of those Rolls or elsewhere, to the best of my Remembrance, and according to those Memorials I have long had by me, viz.

Magna Charta. Magno Rot. Stat. membr. 40. & Rot. Cartar. 28 E. I and membr. 16.

Charta de Foresta. Mag. Rot. Stat. membr. 19 & Rot. Cartar. 28 E. I membr. 26.

Stat. de Gloucestre. Mag. Rot. Stat. memb. 47.

Westm. 2. Rot. Mag. Stat. membr. 47.

Westm. 3. Rot. Clauso, 18 E. I. membr. 6. Dorso.

Winton. Rot. Mag. Stat. memb. 41. Rot. Clauso, 8 E. 3. memb. 6. Dorso. Pars. 2. Rot. Clauso, 5 R. 2. membr. 13. Rot. Paten. 25 E. I. membr. 13.

De Mercatoribus. Mag. Rot. Stat. Membr. 47. In Dorso.

De Religiosis. Mag. Rot. Stat. membr. 47.

Articuli Cleri. Mag. Rot. Stat. membr. 34. Dorso 2 Pars. Pat. E. I. 2. membr. 34. 2 Pars. Pat. 2 E. 3. membr. 15.

De hiis qui ponendi sunt in Assisis. Mag. Rot. Stat. membr. 41.

De Finibus levatis. Mag. Rot. Stat. membr. 37.

De defensione Juris liberi Parliam. Lib. Parl. E. I. fo. 32.

Stat. Eborum. Mag. Rot. Stat. membr. 32.

De conjunctis infeofatis. Mag. Rot. Stat. membr. 34.

De Escaetoribus. Mag. Rot. Stat. membr. 35. Dorso, & Rot. Claus. 29 E. I. membr. 14. Dorso.

Stat. de Lincolne. Mag. Rot. Stat. membr. 32.

Stat. de Priscis. Rot. Mag. Stat. membr. 33. In Schedula de libertatibus perquirendis, vel Rot. Claus. 27 E. I. membr. 24.

Stat. de Acton Burnel. Rot. Mag. Stat. membr. 46. Dorso, & Rot. Claus. II. E. I. membr. 2.

Juramentum Vicecomit. Rot. Mag. Stat. membr. 34. Dorso, & Rot. Claus. 5 E. 2. membr. 23.

Articuli Stat. Gloucestriae. Rot. Claus. 2 E. 2. Pars. 2. membr. 8.

De Pistoribus & Braciatoribus. 2 Pars, Claus. vel Pat. 2 R 2. membr. 29.

De asportatis Religiosor. Mag. Rot. Stat. membr. 33.

Westm. 4. De Vicecomitibus & Viridi caera. Rot. Mag. Stat. membr. 33. In Dorso.

Confirmationes Chartarum. Mag. Rot. Stat. membr. 28.

De Terris Templariorum. Mag. Rot. Stat. membr. 31. in Dorso, & Claus. 17 E. 2. membr. 4.

Litera patens super prisis bonorum Cleri. Rot. Mag. Stat. membr. 33. In Dorso.

De Forma mittendi extractas ad Scaccar. Rot. Mag. Stat. membr. 36. & membr. 30. In Dorso.

Statutum de Scaccar. Mag. Rot. Stat.

Statutum de Rutland. Rot Claus. 12 E. 1.

Ordinatio Forestae. Mag. Rot. Stat. membr. 30. & Rot. Claus. 17 E. 2. Pars 2. membr. 3.

According to a strict Inquiry made about 30 years since, these were all the old Statutes of the Times of Hen. 3. Edw. I. and Edw. 2. that were then to be found of Record; what other Statutes have been found since, I know not.

The Ordinance called Butler’s, for the Heir to punish Waste in the Life of the Ancestor, tho’ it be of Record in the Parliament Book of Edw. I yet it never was a Statute, nor never so received, but only some Constitution of the King’s Council or Lords in Parliament, and which never obtain’d the Strength or Force of an Act of Parliament.

Now those Statutes that ensue, tho’ most of ’em are unquestionable Acts of Parliament, yet are not of Record that I know of, but only their Memorials preserved in ancient Printed and Manuscript Books of Statutes; yet they are at this Day for the most part generally accepted and taken as Acts of Parliament, tho’ some of ’em are now antiquated and of little Use, viz.

The Statutes of Merton, Marlbridge, Westm. I. Explanatio Statuti Gloucestriae, De Champertio, De visu Frankplegii, De pane & Cervisia, Articuli Inquisitionis super Stat. de Winton, Circumspecte agatis, De districtione Scaccarii, De Conspirationibus, De vocatis ad Warrant. Statut. de Carliol, De Prerogativa Regis, De modo faciendi Homag. De Wardis & Releivis Dies Communes in Banco. Stat. de Bigamis, Dies Communes in Banco in casu consimili. Stat. Hiberniae, De quo Warranto, De Essoin calumpniand. Judicium collistrigii, De Frangentibus Prisonar’. De malefactoribus in Parcis, De Consultationibus, De Officio Coronatoris, De Protectionibus, Sententia lata super Chartas, Modus levandi Fines. Statut. de Gavelet, De Militibus, De Vasto, De anno Bissextili, De appellatis, De Extenta Manerii, Compositio Mensearum vel Computatio Mensarum. Stat. de Quo Warranto, Ordinatio de Inquisitionibus, Ordinatio de Foresta, De admensura Terre, De dimissione Denarior. Statut. de Quo Warranto novum, Ne Rector prosternat arbores in Caemeterio, Consuetudines & Assisa de Foresta, Compositio de Ponderibus, De Tallagio, De visu Terrae & servitio Regis, Compositio ulnarum & particarum, De Terris amortizandis, Dictum de Kenelworth, &c.

From whence we may collect these Two observations, viz.

First, That altho’ the Record itself be not extant, yet general Statutes made within Time of Memory, namely, since 1 Richardi Primi, do not lose their Strength, if any authentical Memorials thereof are in Books, and seconded with a general receiv’d Tradition attesting and approving the same.

Secondly, That many Records, even of Acts of Parliament, have in long Process of Time been lost, and possibly the Things themselves forgotten at this Day, which yet in or near the Times wherein they were made, might cause many of those authoritative Alterations in some Things touching the Proceedings and Decisions in Law: The Original Cause of which Change being otherwise at this Day hid and unknown to us; and indeed, Histories (and Annals) give us an Account of the Suffrages of many Parliaments, whereof we at this Time have none, or few Footsteps extant in Records or Acts of Parliament. The Instance of the great Parliament at Oxford, about 40th of Henry 3, may, among many others of like Nature, be a concurrent Evidence of this: For tho’ we have Mention made in our Histories of many Constitutions made in the said Parliament at Oxford, and which occasioned much Trouble in the Kingdom, yet we have no Monuments of Record concerning that Parliament, or what those Constitutions were.

And thus much shall serve touching those Old Statutes or Leges Scriptae, or Acts of Parliament made in the Times of those three Kings, Henry 3. Edw. I. and Edw. 2. Those that follow in the Times of Edw. 3. and the succeeding Kings, are drawn down in a continued Series of Time, and are extant of Record in the Parliament Rolls, and in the Statute Rolls, without any remarkable Omission, and therefore I shall say nothing of them.

II. Concerning the Lex non Scripta, i.e. The Common or Municipal Laws of this Kingdom

In the former Chapter, I have given you a short Account of that Part of the Laws of England which is called Lex Scripta, namely, Statutes or Acts of Parliament, which in their original Formation are reduced into Writing, and are so preserv’d in their Original Form, and in the same Stile and Words wherein they were first made: I now come to that Part of our Laws called, Lex non Scripta, under which I include not only General Customs, or the Common Law properly so called, but even those more particular Laws and Customs applicable to certain Courts and Persons, whereof more hereafter.

And when I call those Parts of our Laws Leges non Scriptae, I do not mean as if all those Laws were only Oral, or communicated from the former Ages to the later, merely by Word. For all those Laws have their several Monuments in Writing, whereby they are transferr’d from one Age to another, and without which they would soon lose all kind of Certainty: For as the Civil and Canon Laws have their Responsa Prudentum Consilia & Decisions, i.e. their Canons, Decrees, and Decretal Determinations extant in Writing; so those Laws of England which are not comprised under the Title of Acts of Parliament, are for the most part extant in Records of Pleas, Proceedings and Judgments, in Books of Reports, and Judicial Decisions, in Tractates of Learned Men’s Arguments and Opinions, preserved from ancient Times, and still extant in Writing.

But I therefore stile those Parts of the Law, Leges non Scriptae, because their Authoritative and Original Institutions are not set down in Writing in that Manner, or with that Authority that Acts of Parliament are, but they are grown into Use, and have acquired their binding Power and the Force of Laws by a long and immemorial Usage, and by the Strength of Custom and Reception in this Kingdom. The Matters indeed, and the Substance of those Laws, are in Writing, but the formal and obliging Force and Power of them grows by long Custom and Use, as will fully appear in the ensuing Discourse.

For the Municipal Laws of this Kingdom, which I thus call Leges non Scriptae, are of a vast Extant, and indeed include in their Generality all those several Laws which are allowed, as the Rule and Direction of Justice and Judicial Proceedings, and which are applicable to all those various Subjects, about which Justice is conversant. I shall, for more Order, and the better to guide my Reader, distinguish them into Two Kinds, viz.

First, The Common Law, as it is taken in its proper and usual Acceptation.

Secondly, Those particular Laws applicable to particular subjects, Matters or Courts.

1. Touching the former, viz. The Common Law in its usual and proper Acceptation. This is that Law by which Proceedings and Determinations in the King’s Ordinary Courts of Justice are directed and guided. This directs the Course of Discents of Lands, and the Kinds; the Natures, and the Extents and Qualifications of Estates; therein also the Manner, Forms, Ceremonies and Solemnities of transferring Estates from one to another. The Rules of Settling, Acquiring, and Transferring of Properties; The Forms, Solemnities and Obligation of Contracts; The Rules and Directions for the Exposition of Wills, Deeds and Acts of Parliament. The Process, Proceedings, Judgments and Executions of the King’s Ordinary Courts of Justice; The Limits, Bounds and Extents of Courts, and their Jurisdictions. The several Kinds of Temporal Offences, and Punishments at Common Law. and the Manner of the Application of the several Kinds of Punishments, and infinite more Particulars which extend themselves as large as the many Exigencies in the Distribution of the King’s Ordinary Justice requires.

And besides these more common and ordinary Matters to which the Common Law extends, it likewise includes the Laws applicable to divers Matters of very great Moment; and tho’ by Reason of that Application, the said Common Law assumes divers Denominations, yet they are but Branches and Parts of it; like as the same Ocean, tho’ it many times receives a different Name from the Province, Shire, Island or Country to which it is contiguous, yet these are but Parts of the same Ocean.

Thus the Common Law includes, Lex Prerogativa, as ’tis applied with certain Rules to that great Business of the King’s Prerogative; so ’tis called Lex Forestae, as it is applied under its special and proper Rules to the Business of Forests; so it is called Lex Mercatoria. as it is applied under its proper Rules to the Business of Trade and Commerce; and many more instances of like Nature may be given: Nay, the various and particular Customs of Cities, Towns and Manors, are thus far Parts of the Common Law, as they are applicable to those particular Places, which will appear from these Observations, viz.

First, The Common Law does determine what of those Customs are good and reasonable, and what are unreasonable and void. Secondly, The Common Law gives to those Customs, that it adjudges reasonable, the Force and Efficacy of their Obligation. Thirdly, The Common Law determines what is that Continuance of Time that is sufficient to make such a Custom. Fourthly, The Common Law does interpose and authoritatively decide the Exposition, Limits and Extension of such Customs.

This Common Law, though the Usage, Practice and Decisions of the King’s Courts of Justice may expound and evidence it, and be of great Use to illustrate and explain it; yet it cannot be authoritatively altered or changed but by Act of Parliament. But of this Common Law, and the Reason of its Denomination, more at large hereafter.

Now, Secondly, As to those particular Laws I before mentioned, which are applicable to particular Matters, Subjects or Courts: These make up the second Branch of the Laws of England, which I include under the general Term of Leges non Scriptae, and by those particular Laws I mean the Laws Ecclesiastical, and the Civil Law, so far forth as they are admitted in certain Courts, and certain Matters allow’d to the Decision of those Courts, whereof hereafter.

It is true, That those Civil and Ecclesiastical Laws are indeed Written Laws; the Civil Law being contain’d in their Pandects, and the Institutions of Justinian, &c. (their Imperial Constitutions or Codes answering to our Leges Scriptae, or Statutes.) And the Canon or Ecclesiastical Laws contain’d for the most part in the Canons and Constitutions of Councils and Popes, collected in their Decretum Gratiani, and the Decretal Epistles of Popes, which make up the Body of their Corpus Juris Canonici, together with huge Volumes of Councils and Expositions, Decisions, and Tractates of learned Civilians and Canonists, relating to both Laws; so that it may seem at first View very improper to rank these under the Branch of Leges non Scriptae, or Unwritten Laws.

But I have for the following Reason rang’d these Laws among the Unwritten Laws of England, viz. because it is most plain, That neither the Canon Law nor the Civil Law have any Obligation as Laws within this Kingdom, upon any Account that the Popes or Emperors made those Laws, Canons, Rescripts or Determinations, or because Justinian compiled their Corpus Juris Civilis, and by his Edicts confirm’d and publish’d the same as authentical, or because this or that Council or Pope made those or these Canons or Degrees, or because Gratian, or Gregory, or Boniface, or Clement, did, as much as in them lie, authenticate this or that Body of Canons or Constitutions; for the King of England does not recognize any Foreign Authority as superior or equal to him in this Kingdom, neither do any Laws of the Pope or Emperor, as they are such, bind here: But all the Strength that either the Papal or Imperial Laws have obtained in this Kingdom, is only because they have been received and admitted either by the Consent of Parliament, and so are Part of the Statute Laws of the Kingdom, or else by immemorial Usage and Custom in some particular Cases and Courts, and no otherwise; and therefore so far as such Laws are received and allowed of here, so far they obtain and no farther; and the Authority and Force they have here is not founded on, or derived from themselves; for so they bind no more with us than our Laws bind in Rome or Italy. But their Authority is founded merely on their being admitted and received by us, which alone gives ’em their Authoritative Essence, and qualifies their Obligation.

And hence it is, That even in those Courts where the Use of those Laws is indulged according to that Reception which has been allowed ’em: If they exceed the Bounds of that Reception, by extending themselves to other Matters than has been allowed ’em; or if those Courts proceed according to that Law, when it is controuled by the Common Law of the Kingdom: The Common Law does and may prohibit and punish them; and it will not be a sufficient Answer, for them to tell the King’s Courts, that Justinian or Pope Gregory have decreed otherwise. For we are not bound by their Decrees further, or otherwise than as the Kingdom here has, as it were transposed the same into the Common and Municipal Laws of the Realm, either by Admission of, or by Enacting the same, which is that alone which can make ’em of any Force in England. I need not give particular Instances herein; the Truth thereof is plain and evident, and we need go no further than the Statutes of 24 H. 8. cap. 12. 25 H. 8. c. 19, 20, 21, and the learned Notes of Selden upon Fleta, and the Records there cited; nor shall I spend much Time touching the Use of those Laws in the several Courts of this Kingdom: But will only briefly mention some few Things concerning them.

There are Three Courts of Note, wherein the Civil, and in one of them the Canon or Ecclesiastical Law, has been with certain Restrictions allow’d in this Kingdom, viz. 1st. The Courts Ecclesiastical, of the Bishops and their derivative Officers. 2dly. The Admiralty Court. 3dly. The Curia Militaris, or Court of the Constable and Marshal, or Persons commission’d to exercise that Jurisdiction. I shall touch a little upon each of these.

First, The Ecclesiastical Courts, they are of two Kinds, viz. 1st. Such as are derived immediately by the King’s Commission; such was formerly the Court of High Commission; which tho’, without the help of an Act of Parliament, it could not in Matters of Ecclesiastical Cognizance use any Temporal Punishment or Censure, as Fine, Imprisoment, &c. Yet even by the Common Law, the Kings of England, being delivered from Papal Usurpation, might grant a Commission to hear and determine Ecclesiastical Causes and Offences, according to the King’s Ecclesiastical Laws, as Cawdry’s Case, Cook’s 5th Report. 2dly. Such as are not derived by any immediate Commission from the King; but the Laws of England have annexed to certain Offices, Ecclesiastical Jurisdiction, as incident to such Offices: Thus every Bishop by his Election and Confirmation, even before Consecration, had Ecclesiastical Jurisdiction annex’d to his Office, as Judex Ordinarius within his Diocese; and diverse Abbots anciently, and most Archdeacons at this Day, by Usage, have had the like Jurisdiction within certain Limits and Precincts.

But altho’ these are Judices Ordinarii, and have Ecclesiastical Jurisdiction annex’d to their Ecclesiastical Offices, yet this Jurisdiction Ecclesiastical in Foro Exteriori is derived from the Crown of England: For there is no External Jurisdiction, whether Ecclesiastical or Civil, within this Realm, but what is derived from the Crown: It is true, both anciently, and at this Day, the process of Ecclesiastical Courts runs in the Name, and issues under: the Seal of the Biship; and what Practice stands so at this Day by Virtue of several Acts of Parliament, too long here to recount. But that is no Impediment of their deriving their Jurisdictions from the Crown; for till 27 H. 8. cap. 24. The Process in Counties Palatine ran in the Name of the Counts Palatine, yet no Man ever doubted, but that the Palatine Jurisdictions were derived from the Crown.

Touching the Severance of the Bishop’s Consistory from the Sheriff’s Court: See the Charter of King Will. I, and Mr Selden’s Notes on Eadmerus.

Now the Matters of Ecclesiastical Jurisdiction are of Two Kinds, Criminal and Civil.

The Criminal Proceedings extend to such Crimes, as by the Laws of this Kingdom are of Ecclesiastical Cognizance; as Heresy, Fornication, Adultery, and some others, wherein their Proceedings are, Pro Reformatione Morum, & Pro Salute Animae; and the Reason why they have Conuzance of those and the like offences, and not of others, as Murther, Theft, Burglary, &c. is not so much from the Nature of the Offence (for surely the one is as much a Sin as the other, and therefore, if their Cognizance were of Offences quatenus peccata contra Deum, it would extend to all Sins whatsoever, it being against God’s Law). But the true Reason is, because the Law of the Land has indulged unto that jurisdiction the Conuzance of some Crimes and not of others.

The Civil Causes committed to their Cognizance, wherein the Proceedings are ad lnstantiam Partis, ordinarily are Matters of Tythes, Rights of Institution and Induction to Ecclesiastical Benefices, Cases of Matrimony and Divorces, and Testamentary Causes, and the Incidents thereunto, as Insinuation or Probation of Testaments, Controversies touching the same, and of Legacies of Goods and Moneys, &c.

Altho’ de Jure Communi the Cognizance of Wills and Testaments does not belong to the Ecclesiastical Court, but to the Temporal or Civil jurisdiction; yet de Consuetudine Angliae Pertinet ad Judices Ecclesiasticos, as Linwood himself agrees, Exercit. de Testamentis, cap. 4. in Glossa. So that it is the Custom or Law of England that gives the Extent and Limits of their external Jurisdiction in Foro Contentioso.

The Rule by which they proceed, is the Canon Law, but not in its full Latitude, and only so far as it stands uncorrected, either by contrary Acts of Parliament, or the Common Law and Custom of England; for there are divers Canons made in ancient Times, and Decretals of the Popes that never were admitted here in England, and particularly in relation to Tythes; many things being by our Laws privileg’d from Tythes, which by the Canon Law are chargeable, (as Timber, Oar, Coals, &c.) without a Special Custom subjecting them thereunto.

Where the Canon Law, or the Stylius Curiae, is silent, the Civil Law is taken as a Director, especially in Points of Exposition and Determination, touching Wills and Legacies.

But Things that are of Temporal Cognizance only, cannot by Charter be delivered over to Ecclesiastical jurisdiction, nor be judged according to the Rules of the Canon or Civil Law, which is aliud Examen, and not competent to the Nature of Things of Common Law Cognizance: And therefore, Mich. 8 H. 4. Rot. 72. coram Rege. when the Chancellor of Oxford proceeded according to the Rule of tle Civil Law in a Case of Debt, the judgment was reversed in B. R. wherein the principal Error assigned was, because they proceeded Per Legem Civilem iubi qiuilibet ligeus Domini Regis Regni sui Angliae in quibusciunque Placitis & querelis infra hoc Regnum factis & emergentibus de Jure tractari debt Per Communem Legem Angliae; and altho’ King H. 8. 14 Anno Regni sui, granted to the University a liberal Charter to proceed according to the Use of the University, viz. By a Course much conform’d to the Civil Law; yet that Charter had not been sufficient to have warranted such Proceedings without the Help of an Act of Parliament: And therefore in 13 Eliz. an Act passed, whereby that Charter was in Effect enacted; and ’tis thereby that at this Day they have a kind of Civil Law Proceedure, even in Matters that are of themselves of Common Law Cognizance, where either of the Parties to the Suit are privileged.

The Coertion or Execution of the Sentence in Ecclesiastical Courts, is only by Excommunication of the Person contumacious, and upon Signification thereof into Chancery, a Writ de Excommunicatio capiendo issues, whereby the Party is imprisoned till Obedience yielded to the Sentence. But besides this Coertion, the Sentences of the Ecclesiastical Courts touching some Matters do introduce a real Effect, without any other Execution; as a Divorce, a Vinculo Matrimonii for the Causes of Consanguinity, Precontract, or Frigidity, do induce a legal Dissolution of the Marriage; so a Sentence of Deprivation from an Ecclesiastical Benefice, does by Virtue of the very Sentence, without any other Coertion or Execution, introduce a full Determination of the Interest of the Person deprived.

And thus much concerning the Ecclesiastical Courts, and the Use of the Canon and Civil Law in them, as they are the Rule and Direction of Proceedings therein.

Secondly, The second special Jurisdiction wherein the Civil Law is allow’d, at least as a Director or Rule in some Cases, is the Admiral Court or Jurisdiction. This jurisdiction is derived also from the Crown of England, either immediately by Commission from the King, or mediately, which is several Ways, either by Commission from the Lord High Admiral, whose Power and Constitution is by the King, or by the Charters granted to particular Corporations bordering upon the Sea, and by Commission from them, or by Prescription, which nevertheless in Presumption of Law is derived at first from the Crown by Charter not now extant.

The Admiral Jurisdiction is of Two Kinds, viz. Jurisdictio Voluntaria, which is no other but the Power of the Lord High Admiral, as the King’s General at Sea over his Fleets; or Jurisdictio Contentiosa, which is that Power of Jurisdiction which the Judge of the Admiralty has in Foro Contentioso; and what I have to say is of this later Jurisdiction.

The Jurisdiction of the Admiral Court, as to the Matter of it, is confined by the Laws of this Realm to Things done upon the High Sea only; as Depredations and Piracies upon the High Sea; Offences of Masters and Mariners upon the High Sea; Maritime Contracts made and to be executed upon the High Sea; Matters of Prize and Reprizal upon the High Sea. But touching Contracts or Things made within the Bodies of English Counties, or upon the Land beyond the Sea, tho’ the Execution thereof be in some Measure upon the High Sea, as Charter Parties, or Contracts made even upon the High Sea, touching Things that are not in their own Nature Maritime, as a Bond or Contract for the Payment of Money, so also of Damages in Navigable Rivers, within the Bodies of Counties, Things done upon the Shore at Low-Water, Wreck of the Sea, &c. These Things belong not to the Admiral’s Jurisdiction: And thus the Common Law, and the Statutes of I 3 Rich. 2. cap. 15. 15 Rich. 2. cap. 3. confine and limit their Jurisdiction to Matters Maritime, and such only as are done upon the High Sea.

This Court is not bottom’d or founded upon the Authority of the Civil Law, but hath both its Power and Jurisdiction by the Law and Custom of the Realm, in such Matters as are proper for its Cognizance; and this appears by their Process, viz. The Arrest of the Persons of the Defendants, as well as by Attachment of their Goods; and likewise by those Customs and Laws Maritime, whereby many of their Proceedings are directed, and which are not in many Things conformable to the Rules of the Civil Law; such are those ancient Laws of Oleron, and other Customs introduced by the Practice of the Sea, and Stile of the Court.

Also, The Civil Law is allowed to be the Rule of their Proceedings, only so far as the same is not contradicted by the Statute of this Kingdom, or by those Maritime Laws and Customs, which in some Points have obtain’d in Derogation of the Civil Law: But by the Statute 28 Hen. 8. cap. 15. all Treasons, Murders, Felonies, done on the High Sea, or in any Haven, River, Creek, Port or Place, where the Admirals have to pretend to have Jurisdiction, are to be determined by the King’s Commission, as if the Offences were done at Land, according to the Course of the Common Law.

And thus much shall serve touching the Court of Admiralty, and the Use of the Civil Law therein.

Thirdly, The Third Court, wherein the Civil Law has its Use in this Kingdom, is the Military Court, held before the Constable and Marshal anciently, as the Judiciis Ordinarii in this Case, or otherwise before the King’s Commissioners of that Jurisdiction, as Judices Delegati.

The Matter of their Jurisdiction is declared and limited by the Statutes of 8 R. 2. cap. 5. and 13 R. 2. cap. 2. And not only by those Statutes, but more by the very Common Law is their Jurisdiction declared and limited as follows, viz.

First, Negatively. They are not to meddle with any Thing determinable by the Common Law. And therefore, inasmuch as Matter of Damages, and the Quantity and Determination thereof, is of that Conuzance; the Court of Constable and Marshal cannot, even in such Suits as are proper for their Conuzance, give Damages against the Party convicted before them, and at most can only order Reparation in Point of Honour, as Mendacium sibi ipsi imponere: Neither can they, as to the Point of Reparation, in Honour, hold Plea of any such Words or Things, wherein the Party is relievable by the Courts of the Common Law.

Secondly, Affirmatively: Their Jurisdiction extends to Matters of Arms and Matters of War, viz.

First, As to Matters of Arms (or Heraldry), the Constable and Marshal had Conuzance thereof, viz. Touching the Rights of Coat-Armour, Bearings, Crests, Supporters, Pennons, &c. And also touching the Rights of Place and Precedence, in Cases where either Acts of Parliament or the King’s Patent (he being the Fountain of Honour) have not already determined it, for in such Cases they have no Power to alter it. Those Things were anciently allowed to the Conuzance of the Constable and Marshal, as having some Relation to Military Affairs; but so restrain’d, that they were only to determine the Right, and give Reparation to the Party injured in Point of Honour, but not to repair him in Damages.

But, Secondly, As to Matters of War. The Constable and Marshal had a double Power, viz.

1. A Ministerial Power, as they were Two great ordinary Officers, anciently, in the King’s Army; the Constable being in Effect the King’s General, and the Marshal was employed in marshalling the King’s Army, and keeping the List of the Officers and Soldiers therein; and his Certificate was the Trial of those whose Attendance was requisite. Vide Littleton, section 102.

Again, 2. The Constable and Marshal had also a Judicial Power, or a Court wherein several Matters were determinable: As 1st, Appeals of Death or Murder committed beyond the Sea, according to the Course of the Civil Law. 2dly, The Rights of Prisoners taken in War. 3dly, The Offences and Miscarriages of Soldiers contrary to the Laws and Rules of the Army: For always preparatory to an actual War, the Kings of this Realm, by Advice of the Constable, (and Marshal) were used to compose a Book of Rules and Orders for the due Order and Discipline of their Officers and Soldiers, together with certain Penalties on the Offenders; and this was called, Martial Law. We have extant in the Black Book of the Admiralty, and elsewhere, several Exemplars of such Military Laws, and especially that of the 9th of Rich. 2. composed by the King, with the Advice of the Duke of Lancaster, and others.

But touching the Business of Martial Law, these Things are to be observed, viz.

First, That in Truth and Reality it is not a Law, but something indulged rather than allowed as a Law; the Necessity of Government, Order and Discipline in an Army, is that only which can give those Laws a Countenance, Quod enim Necessitas cogit desendi.

Secondly, This indulged Law was only to extend to Members of the Army, or to those of the opposite Army, and never was so much indulged as intended to be (executed or) exercised upon others; for others who were not listed under the Army, had no Colour of Reason to be bound by Military Constitutions, applicable only to the Army, whereof they were not Parts; but they were to be order’d and govern’ d according to the Laws to which they were subject, though it were a Time of War.

Thirdly, That the Exercise of Martial Law, whereby any Person should lose his Life or Member, or Liberty, may not be permitted in Time of Peace, when the King’s Courts are open for all Persons to receive Justice, according to the Laws of the Land. This is in Substance declared by the Petition of Right, 3 Car. I. whereby such Commissions and Martial Law were repealed, and declared to be contrary to Law: And accordingly was that famous Case of Edmond Earl of Kent; who being taken at Pomsret, 15 Ed. 2. the King and divers Lords proceeded to give Sentence of Death against him, as in a kind of Military Court by a Summary Proceeding; which Judgment was afterwards in 1 Ed. 3. revers’d in Parliament: And the Reason of that Reversal serving to the Purpose in Hand, I shall here insert it as entered in the Record, viz.

Quod cum quicunq; homo ligeus Domini Regis pro Seditionibus, &c. tempore pacis captus & in quacunque Curia Domini Regis ductus fuerit de ejusmodi Seditionibus & aliis Felonius sibi impositis per Legem & Consuetudine Regni arrectari debet & Responsionem adduci, Et inde per Communem Legem, antequam fuerit Morti adiudicand’ (triari) &c. Unde cum notorium sit & manifestum quod totum tempus quo impositum fuit eidem Comiti propter Mala & Facionora fecisse, ad tempus in quo captus fuit & in quo Morti adiudicatus fuit, fuit tempus Pacis maximae, Cum per totum tempus praedictum & Cancellaria & aliae plac. Curiae Domini Regis aperte fuer’ in quibus cuilibet Lex Sebatur sicut Seri consuevit, Nec idem Dominus Rex unquam tempore illo cum vexillis explicatis Equitabat, &c.

And accordingly the Judgment was revers’d; for Martial Law, which is rather indulg’d than allow’d, and that only in Cases of Necessity, in Time of open War, is not permitted in Time of Peace, when the ordinary Courts of Justice are open.

In this Military Court, Court of Honour, or Court Martial, the Civil Law has been used and allowed in such Things as belong to their Jurisdiction; as the Rule or Direction of their Proceedings and Decisions, so far forth as the same is not controuled by the Laws of this Kingdom, and those Customs and Usages which have obtain’d in England, which even in Matters of Honour are in some Points derogatory to the Civil Law. But this Court has been long disused upon great Reasons.

And thus I have given a brief Prospect of these Courts and Matters, wherein the Canon and Civil Law has been in some Measure allowed, as the Rule or Direction of Proceedings or Decisions: But although in these Courts and Matters the Laws of England, upon the Reasons and Account before expressed, have admitted the Use and Rule of the Canon and Civil Law; yet even herein also, the Common Law of England has retain’d those Signa Superioritatis, and the Preference and Superintendence in relation to those Courts: Namely,

1st. As the Laws and Statutes of the Realm have prescribed to those Courts their Bounds and Limits, so the Courts of Common Law have the Superintendency over those Courts, to keep them within the Limits and Bounds of their several Jurisdictions, and to judge and determine whether they have exceeded those Bounds, or not; and in Case they do exceed their Bounds, the Courts at Common Law issue their Prohibitions to restrain them, directed either to the Judge or Party, or both: And also, in case they exceed their Jurisdiction, the Officer that executes the Sentence, and in some Cases the Judge that gives it, are punishable in the Courts at Common Law; sometimes at the Suit of the King, sometimes at the Suit of the Party, and sometimes at the Suit of both, according to the Variety and Circumstances of the Case.

2dly. The Common Law, and the Judges of the Courts of Common Law, have the Exposition of such Statutes or Acts of Parliament as concern either the Extent of the Jurisdiction of those Courts (whether Ecclesiastical, Maritime or Military) or the Matters depending before them; and therefore, if those Courts either refuse to allow these Acts of Parliament, or expound them in any other Sense than is truly and properly the Exposition of them, the King’s Great Courts of the Common Law (who next under the King and his Parliament have the Exposition of those Laws) may prohibit and controul them.

And thus much touching those Courts wherein the Civil and Canon Laws are allowed as Rules and Directions under the Restrictions above-mentioned: Touching which, the Sum of the Whole is this:

First, That the Jurisdiction exercised in those Courts is derived from the Crown of England, and that the last Devolution is to the King, by Way of Appeal.

Secondly, That although the Canon or Civil Law be respectively allowed as the Direction or Rule of their Proceedings, yet that is not as if either of those Laws had any original Obligation in England, either as they are the Laws of Emperors, Popes, or General Councils, but only by Virtue of their Admission here, which is evident; for that those Canons or Imperial Constitutions which have not been receiv’d here do not bind; and also, for that by several contrary Customs and Stiles used here many of those Civil and Canon Laws are controuled and derogated.

Thirdly, That although those Laws are admitted in some Cases in those Courts, yet they are but Leges sub graviori Lege; and the Common Laws of this Kingdom have ever obtain’d and retain’d the Superintendency over them, and those Signa Superioritatis before-mentioned, for the Honour of the King and the Common Laws of England.

III. Concerning the Common Law of England, its Use and Excellence, and the Reason of its Denomination

I Come now to that other Branch of our Laws, the Common Municipal Law of this Kingdom, which has the Superintendency of all those other particular Laws used in the before-mentioned Courts, and is the common Rule for the Administration of common Justice in this great Kingdom; of which it has been always tender, and there is great Reason for it; for it is not only a very just and excellent Law in it self, but it is singularly accommodated to the Frame of the English Government, and to the Disposition of the English Nation, and such as by a long Experience and Use is as it were incorporated into their very Temperament, and, in a Manner, become the Complection and Constitution of the English Commonwealth.

Insomuch, that even as in the natural Body the due Temperament and Constitution does by Degrees work out those accidental Diseases which sometimes happen, and do reduce the Body to its just State and Constitution; so when at any Time through the Errors, Distempers or Iniquities of Men or Times, the Peace of the Kingdom, and right Order of Government, have received Interruption, the Common Law has wasted and wrought out those Distempers, and reduced the Kingdom to its just State and Temperament, as our present (and former) Times can easily witness.

This Law is that which asserts, maintains, and, with all imaginable Care, provides for the Safety of the King’s Royal Person, his Crown and Dignity, and all his just Rights, Revenues, Powers, Prerogatives and Government, as the great Foundation (under God) of the Peace, Happiness, Honour and Justice, of this Kingdom; and this Law is also, that which declares and asserts the Rights and Liberties, and the Properties of the Subject; and is the just, known, and common Rule of Justice and Right between Man and Man, within this Kingdom.

And from hence it is, that the Wisdom of the Kings of England, and their great Council, the Honourable House of Parliament, have always been jealous and vigilant for the Reformation of what has been at any Time found defective in it, and so to remove all such Obstacles as might obstruct the free Course of it, and to support, countenance and encourage the Use of it, as the best, safest and truest Rule of Justice in all Matters, as well Criminal as Civil.

I should be too Voluminous to give those several Instances that occur frequently in the Statutes, the Parliament Rolls, and Parliamentary Petitions, touching this Matter; and shall therefore only instance in some few Particulars in both Kinds, viz. Criminal and Civil: And First, in Matters Civil.

In the Parliament 18 Edw. 1. In a Petition in the Lords House, touching Land between Hugh Lowther and Adam Edingthorp: The Defendant alledges, That if the Title should in this Manner be proceeded in, he should lose the Benefit of his Warranty; and also, that the Plaintiff, if he hath any Right, hath his Remedy at Common Law by Assize of Mortdancestor, and therefore demands Judgment, Si de libero Tenemento debeat hic sine brevi Respondere; and the Judgment of the Lords in Parliament thereupon is enter’d in these Words, viz.

Et quia actio de predicto Tenemento petendo & etiam suum recuperare, si quid habere debeat vel possit eidem Adae per Assisam mortis Antecessoris competere debet nec est juri consonum vel hactenus in Curia ista usitat’ quod aliquis sine Lege Communi, & Brevi de Cancellaria de libero Tenemento suo respondeat & maxime in Casu ubi Breve de Cancellaria Locum habere potest, dictum est praefato Adae quod sibi perquirat per Breve de Cancellaria, si sibi viderit Expederire.

Rot. Parl. 13 R. 2. No. 10. Adam Chaucer preferr’d his Petition to the King and Lords in Parliament, against Sir Robert Knolles, to be relieved touching a Mortgage, which he supported was satisfied, and to have Restitution of his Lands. The Defendant appeared, and upon the several Allegations on both Sides, the Judgment is thus entered, viz.

Et apres les Raisons & les Allegeances de l’un party & de l’autre, y sembles a Seigneurs du Parlement que le dit Petition ne estoit Petition du Parlement, deins que le mattier en icel comprize dovii estre discuss per le Commune Ley. St pur ceo agard suit que le dit Robert iroit eut sans jour & que le dit Adam ne prendroit rien per say suit icy, eins que il sueroit per le Commune Ley si il luy sembloit ceo faire.

Where we may note, the Words are Dovit estre, and not Poet estre discusse Per le, &c.

Rot. Parl. 5o Ed. 3. No. 43. A Judgment being given against the Bishop of Norwich, for the Archdeaconry of Norwich, in the Common Bench, the Bishop petitioned the Lords in Parliament, that the Record might be brought into that House, and to be reversed for Error.

Et quoy a luy estoit finalement Respondu per common Assent des ils les Justices que si Error y fust si ascun a fine force per le Ley de Angleterre tiel Error fuit voire en Parlement immediatement per voy de Error ains en Bank le Roy, & en nul part ailhors, Mais si le Case avenoit que Error fust fait en Bank le Roy adonque ceo serra amendes en Parlement.

And let any Man but look over the Rolls of Parliament, and the Bundles of Petitions in Parliament, of the Times of Ed. I. Ed. 2. Ed. 3. Hen. 4. H. 5. & H. 6. he will find Hundreds of Answers of Petitions in Parliament concerning Matters determinable at Common Law, endorsed with Answers to this, or the like Effect, viz “Suez vous a le Commune Ley; sequatur ad Communem Legem; Perquirat Breve in Cancellaria si sibi viderit expedire; ne est Petition du Parlement, Mandetur ista Petitio in Cancellarium, vel Cancellario, vel justiciariis de Banco, vel Thesaurario & Baronibus de Scaccario,” and the like.

And these were not barely upon the Bene Placita of the Lords, but were De jure, as appears by those former Judgments given in the Lords House in Parliament; and the Reason is evident; First, Because, if such a Course of extraordinary Proceeding should be had before the Lords in the first Instance, the Party should lose the Benefit of his Appeal by Writ of Error, according as the Law allows; and that is the Reason, why even in a Writ of Error, or Petition of Error upon a Judgment in any inferior Court, it cannot go Per Saltum into Parliament, till it has passed the Court of King’s-Bench; for that the first appeal is thither. Secondly, Because the Subject would by that Means lose his Trial Per Pares, and consequently his Attaint, in case of a Mistake in Point of Issue or Damages: To both which he is entitled by Law.

And although some Petitions of this Nature have been deterwined in that Manner, yet it has been (generally) when the Exception has not been started, or at least not insisted upon: And One Judgment in Parliament, that Cases of that Nature ought to be determined according to the Course of the Common Law, is of greater Weight than many Cases to the contrary, wherein the Question was not stirred: Yea, even tho’ it should be stirred, and the contrary affirm’d upon a Debate of the Question, because greater Weight is to be laid upon the Judgment of any Court when it is exclusive of its jurisdiction, than upon a judgment of the same Court in Affirmance of it.

Now as to Matters Criminal, whether Capital or not, they are determinable by the Common Law, and not otherwise; and in Affirmance of that Law, where the Statutes of Magna Charta, cap. 29. 5 Ed. 3. cap. 9. 25 Ed. 3. cap. 4. 29 Ed. 3. cap. 3. 27 Ed. 3. cap. 17. 38 Ed. 3. cap. 9. & 40 Ed. 3. cap. 3. The Effect of which is, That no Man shall be put out of his Lands or Tenewents, or be imprisoned by any Suggestion, unless it be by Indictment or Presentment of lawful Men, or by Process at Comwon Law.

And by the Statute of 1 Hen. 4. cap. 14. it is enacted, That no Appeals be sued in Parliament at any Time to come: This extends to all Accusations by particular Persons, and that not only of Treason or Felony, but of other Crimes and Misdemeanors. It is true, the Petition upon which that Act was drawn up, begins with Appeals of Felony and Treason, but the Close thereof, as also the King’s Answer, refers as well to Misdemeanors as matters Capital; and because this Record will give a great Light to this whole Business, I will here set down the Petition and the Answer verbatim. Vide Rot. Parl. I Hen. 4. No. 144.

Item, Supplyont les Commens que desore en avant nul appele de Traison ne de autre Felony quelconq; soit accept ou receive en le Parlement ains en vous autres Courts de dans vostre Realm dementiers que en vous dits Courts purra estre Terminer come ad ote fait & use ancienement en temps de vous noble Progeniteurs; Et que chescun Person qui en temps a venir serra accuse ou impeach en vostre Parlement ou en ascuns des vos dits Courts per les Seigniors & Commens di vostre Realm ou per ascun Person & defence ou Response a son Accusement ou Empeachment & sur son Response reasonable Record Judgment & Tryal come de ancienement temps ad estre fait & use per les bones Leges de vostre Realm, nient obstant que les dits Empeachments ou Accusements soient faits per les Seigneurs ou Commens de vostre Relme come que de novel en temps de Ric. nadgarius Roy ad estre fait & use a contrar, a tres grand Mischief & tres grand Maleveys Exemple de vostre Realm.

Le Roy voet que de cy en avant touts les Appeles de choses faits deins le Relme soient tryez & terwinez per les bones Leys faits en temps de tres noble Progeniteurs de nostre dit Seigneur le Roy, Et que touts les Appeles de choses faits hors du Realm, soient triez & terminez devant le Constable & Marshal de Angleterre, & que nul Appele soit fait en Parlement desore en ascun tempts a venir.

This is the Petition and Answer. The Statute as drawn up hereupon, is general, and runs thus:

Item. Pur plusieurs grands Inconveniencies & Mischeifs que plusieurs fait ont advenus per colour des plusieurs Appeles faits deins le Realm avant ces heurs ordain est & establuz, Que desore en avant touts Appeles de choses faits deins le Realm soient tries & termines per les bones Leys de le Realm faits & uses en temps de tres noble Progeniteurs de dit nostre Seigneur le Roy; Etque ils les Appeles de choses faits hors du Realm soient tries & termines devant le Constable & Marshal pur les temps esteant; Et ouster accordes est & assentus que nulls Appeles soient desore faits ou pursues en Parlement en nul temps avenir.

Where we may observe, That thougb the Petition expresses (only) Treason and Felony, yet the Act is general against all Appeals in Parliament; and many Times the Purview of an Act is larger than the Preamble, or the Petition, and so ’tis here: For the Body of the Act prohibits all Appeals in Parliament, and there was Reason for it: For the Mischief, viz. Appeals in Parliament in the Time of King Richard 2 (as in the Petition is set forth) were not only of Treason and Felony, but of Misdemeanors also, as appears by that great Proceeding, 11 R. 2, against divers, by the Lords Appellants, and consequently it was necessary to have the Remedy as large as the Mischief. And I do not remember that after this Statute there were any Appeals in Parliament, either for Matters Capital or Criminal, at the Suit of any Particular Person or Persons.

It is true, Impeachments by the House of Commons, sent up to the House of Lords, were frequent as well after as before this Statute, and that justly, and with good Reason; for that neither the Act nor the Petition ever intended to restrain them, but only to regulate them, viz. That the Parties might be admitted to their Defence to them, and as neither the Words of the Act nor the Practice of After-times extended to restrain such Impeachments as were made by the House of Commons, so neither do those Impeachments and Appeals agree in their Nature or Reason; for Appeals were nothing else but Accusations, either of Capital or Criminal Misdemeanors, made in the Lords House by particular Persons; but an Impeachment is made by the Body of the House of Commons, which is equivalent to an Indictment Pro Corpore Regni, and therefore is of another Nature than an Accusation or Appeal, only herein they agree, viz. Impeachments in Cases Capital against Peers of the Realm, have been ever tried and determined in the Lords House; but Impeachments against a Commoner have not been usual in the House of Lords, unless preparatory to a Bill, or to direct an Indictment in the Courts below: But Impeachments at the Prosecutions of the House of Commons, for Misdemeanors as well against a Commoner as any other, have usually received their Determinations and final Judgments in the House of Lords; whereof there have been numerous Precedents in all Times, both before and since the said Act.

And thus much in general touching the great Regard that Parliaments and the Kingdom have had, and that most justly, to the Common Law, and the great Care they have had to preserve and maintain it, as the Common Interest and Birthright of the King and Kingdom.

I shall now add some few Words touching the Stiles and Appellations of the Common Law, and the Reasons of it: ‘Tis called sometimes by Way of Eminence, Lex Terrae, as in the Statute of Magna Charta, cap. 29. where certainly the Common Law is at least principally intended by those Words, aut Per Legem Terrae, as appears by the Exposition thereof in several subsequent Statutes, and particularly in the Statute 28 Ed. 3. cap. 3 which is but an Exposition and Declaration of that Statute: Sometimes ’tis called, Lex Angliae, as in the Statute of Merton, cap…. Nolumus Leges Angliae mutare, &c. Sometimes ’tis called, Lex & Consuetudo Regni, as in all Commissions of Oyer and Terminer, and in the Statutes of 18 Ed. I. cap…. and De quo Warranto, and divers others; but most commonly ’tis called, The Common Law, or, The Common Law of England, as in the Statute of Articuli super Chartas, cap. 15. in the Statute 25 Ed. 3. cap. 5. and infinite more Records and Statutes.

Now the Reason why ’tis call’d The Common Law, or what was the Occasion that first gave that Determination to it, is variously assigned, viz.

First, Some have thought it to be so called by Way of Contradistinction to those other Laws that have obtain’d within this Kingdom; as, 1st. By Way of Contradistinction to the Statute Law, thus a Writ of Entry ad Communem Legem, is so call’d in Contradistinction to Writs of Entry in Casu consimili, and Casu Proviso, which are given by Act of Parliament. 2dly, By Way of Contradistinction to particular Customary Laws: Thus Discents at Common Law, Dower at Common Law, are in Contradistinction to such Dowers and Discents as are directed by particular Customs. And 3dly, In Contradistinction to the Civil, Canon, Martial and Military Laws, which are in some particular Cases and Courts admitted, as the Rule of their Proceedings.

Secondly, Some have conceived, that the Reason of this Appellation was this, viz. In the Beginning of the Reign of Edward 3 before the Conquest, commonly called, Edward the Confessor, there were several Laws, and of several Natures, which obtain’d in several Parts of this Kingdom, viz. The Mercian Laws, in the counties of Gloucester, Worcester, Hereford, Warwick, Oxon, Chester, Salop and Stafford. The Danish Laws, in the Counties of York, Derby, Nottingham, Leicester, Lincoln, Northampton, Bedford, Bucks, Hertford, Essex, Middlesex, Norfolk, Suffolk, Cambridge and Huntington. The West-Saxon Laws, in the Counties of Kent, Sussex, Surrey, Berks, Southampton, Wilts, Somerset, Dorset, and Devon.

This King, to reduce the Kingdom as well under one Law, as it then was under one Monarchical Government, extracted out of all those Provincial Laws, one Law to be observed through the whole Kingdom: Thus Ranulphus Cestrensis, cited by Sir Henry Spelman in his Glossary, under the Title Lex, says, “Ex tribus his Legibus Sanctus Edvardus unam Legem —-” &c. And the same in totidem verbis, is affirmed in his History of the last Year of the same King Edward. (Vide ibid. Plura de hoc) But Hoveden carries up the Common Laws, or those stiled the Confessor’s Laws, much further; for he in his History of Henry 2 tell us, “Quod istae Leges prius inventae & constitutae erant Tempore Edgari, Avi sui,” &c. (Vide Hoveden) And possibly the Grandfather might be the first Collector of them into a Body, and afterwards Edward might add to the Composition, and give it the Denomination of the Common Law. but the Original of it cannot in Truth be referred to either, but is much more ancient, and is as undiscoverable as the Head of Nile: Of which more at large in the following Chapter.

Thirdly, Others say, and that most truly, That it is called the Common Law, because it is the common Municipal Law or Rule of justice in this Kingdom: So that Lex Communis, or Jus Communis, is all one and the same with Lex Patriae, or Jus Patrium; for although there are divers particular Laws, some by Custom applied to particular Places, and some to particular Causes; yet that Law which is common to the generality of all Persons, Things and Causes, and has a Superintendency over those particular Laws that are admitted in Relation to particular Places or Matters, is Lex Communis Angliae, as the Municipal Laws of other Countries may be, and are sometimes called, The Common Law of that Country,. as Lex Communis Norrica, Lex Communis Burgundica, Lex Communis Lombardica, &c. So that although all the former Reasons have their Share in this Appellation, yet the principal Cause thereof seems to be the latter: And hence some of the Ancients call’d it Lex Communis. others Lex Patriae; and so they were called in their Confirmation by King William I. Whereof hereafter.

IV. Touching the Original of the Common Law of England

The Kingdom of England being a very ancient Kingdom, has had many Vicissitudes and Changes (especially before the coming in of King William I) under several either Conquests or Accessions of Foreign Nations. For tho’ the Britains were, as is supposed, the most ancient Inhabitants, yet there were mingled with them, or brought in upon them, the Romans, the Picts, the Saxons, the Danes, and lastly, the Normans; and many of those Foreigners were as it were incorporated together, and made one Common People and Nation; and hence arises the Difficulty, and indeed Moral Impossibility, of giving any satisfactory or so much as probable Conjecture, touching the Original of the Laws, for the following Reasons, viz.

First, From the Nature of Laws themselves in general, which being to be accommodated to the Conditions, Exigencies and Conveniencies of the People, for or by whom they are appointed, as those Exigencies and Conveniencies do insensibly grow upon the People, so many Times there grows insensibly a Variation of Laws, especially in a long Tract of Time; and hence it is, that tho’ for the Purpose in some particular Part of the Common Law of England, we may easily say, That the Common Law, as it is now taken, is otherwise than it was in that particular Part or Point in the Time of Hen. 2 when Glanville wrote, or than it was in the time of Hen. 3 when Bracton wrote, yet it is not possible to assign the certain Time when the Change began; nor have we all the Monuments or Memorials, either of Acts of Parliament, or of Judicial Resolutions, which might induce or occasion such Alterations; for we have no authentick Records of any Acts of Parliament before 9 Hen. 3 and those we have of that King’s Time, are but few. Nor have we any Reports of Judicial Decisions in any constant Series of Time before the Reign of Edw. I tho’ we have the Plea Rolls of the Times of Hen. 3 and King John, in some remarkable Order. So that Use and Custom, and Judicial Decisions and Resolutions, and Acts of Parliament, tho’ not now extant, might introduce some New Laws, and alter some Old, which we now take to be the very Common Law itself, tho’ the Times and precise Periods of such Alterations are not explicitely or clearly known: But tho’ those particular Variations and Accessions have happened in the Laws, yet they being only partial and successive, we may with just Reason say, They are the same English Laws now, that they were 600 Years since in the general. As the Argonauts Ship was the same when it returned home, as it was when it went out, tho’ in that long Voyage it had successive Amendments, and scarce came back with any of its former Materials; and as Titius is the same Man he was 40 Years since, tho’ Physicians tells us, That in a Tract of seven Years, the Body has scarce any of the same Material Substance it had before.

Secondly, The 2d Difficulty in the Search of the Antiquity of Laws and their Original, is in Relation to that People unto whom the Laws are applied, which in the Case of England, will render many Observables, to shew it hard to be traced. For,

1st, It is an ancient Kingdom, and in such Cases, tho’ the People and Government had continued the same ab Origine (as they say the Chinese did, till the late Incursion of the Tartars) without the Mixture of other People, or Laws; yet it were an impossible Thing to give any certain Account of the Original of the Laws of such a People, unless we had as certain Monuments thereof as the Jews had of theirs, by the Hand of Moses, and that upon the following Accounts, viz.

First, We have not any clear and certain Monuments of the original Foundation of the English Kingdom or State, when, and by whom, and how it came to be planted. That which we have concerning it, is uncertain and traditional; and since we cannot know the Original of the planting of this Kingdom, we cannot certainly know the Original of the Laws thereof, which may be well presum’d to be very near as ancient as the Kingdom itself. Again, 2dly, Tho’ Tradition might be a competent Discoverer of the Original of a Kingdom or State, I mean Oral Tradition, yet such a Tradition were incompetent without written Monuments to derive to us, at so long a Distance, the original Laws and Constitutions of the Kingdom, because they are of a complex Nature, and therefore not orally traducible to so great a Distance of Ages, unless we had the original or authentick Transcript of those Laws as the People the Jews had of their Law, or as the Romans had of their Laws of the Twelve Tables engraven in Brass. But yet further, 3dly, It is very evident to every Day’s Experience, that Laws, the further they go from their original Institution, grow the larger, and the more numerous: In the first Coalition of a People, their Prospect is not great, they provide Laws for their present Exigence and Convenience: But in Process of Time, possibly their first Laws are changed, altered or antiquated, as some of the Laws of the Twelve Tables among the Romans were: But whatsoever be done touching their Old Laws, there must of Necessity be a Provision of New, and other Laws successively answering to the Multitude of successive Exigencies and Emergencies, that in a long Tract of Time will offer themselves; so that if a Man could at this Day have the Prospects of all the Laws of the Britains before any Invasion upon them, it would yet be impossible to say, which of them were New, and which were Old, and the several Seasons and Periods of Time wherein every Law took its Rise and Original, especially since it appears, that in those elder Times, the Britains were not reduced to that civiliz’d Estate, as to keep the Annals and Memorials of their Laws and Government, as the Romans and other civiliz’d Parts of the World have done.

It is true, when the Conquest of a Country appears, we can tell when the Laws of conquering People came to be given to the Conquered. Thus we can tell that in the Time of Hen. 2 when the Conquest of Ireland had obtain’d a good Progress, and in the Time of K. John, when it was compleated, the English Laws were settled in Ireland: But if we were upon this Inquiry, What were the Original of those English Laws that were thus settled there; we are still under the same Quest and Difficulty that we are now, viz. What is the Original of the English Laws. For they that begin New Colonies, Plantations and Conquests; if they settle New Laws, and which the Places had not before, yet for the most Part (I don’t say altogether) they are the Old Laws which obtain’d in those Countries from whence the Conquerors or Planters came.

Secondly, the 2d Difficulty of the Discovery of the Original of the English Laws is this, That this Kingdom has had many and great Vicissitudes of People that inhabited it, and that in their several Times prevail’d and obtain’d a great Hand in the Government of this Kingdom, whereby it came to pass, that there arose a great Mixture and Variety of Laws: In some Places the Laws of the Saxons, in some Places the Laws of the Danes, in some Places the Laws of the ancient Britains, in some Places, the Laws of the Mercians, and in some Places, or among some People (perhaps) the Laws of the Normans: For altho’, as I shall shew hereafter, the Normans never obtain’d this Kingdom by such a Right of Conquest, as did or might alter the established Laws of the Kingdom; yet considering that K. Will. I brought with him a great Multitude of that Nation, and many Persons of great Power and Eminence, which were planted generally over this Kingdom, especially in the Possessions of such as had oppos’d his coming in, it must needs be suppos’d, that those Occurrences might easily have a great Influence upon the Laws of this Kingdom, and secretly and insensibly introduce New Laws, Customs and Usages; so that altho’ the Body and Gross of the Law might continue the same, and so continue the ancient Denomination that it first had, yet it must needs receive diverse Accessions from the Laws of those People that were thus intermingled with the ancient Britains or Saxons, as the Rivers of Severn, Thames, Trent, &c. tho’ they continue the same Denomination which their first Stream had, yet have the Accession of divers other Streams added to them in the Tracts of their Passage which enlarge and augment them. And hence grew those several Denominations of the Saxon, Merician, and Danish Laws, out of which (as before is shewn) the Confessor extracted his Body of the Common Law, and therefore among all those various Ingredients and Mixtures of Laws, it is almost an impossible Piece of Chymistry to reduce every Caput Legis to its true Original, as to say, This is a Piece of the Danish, this of the Norman, or this of the Saxon or British Law: Neither was it, or indeed is it much material, which of these is their Original; for ’tis very plain, the Strength and Obligation, and the formal Nature of a Law, is not upon Account that the Danes, or the Saxons, or the Normans, brought it in with them, but they became Laws, and binding in this Kingdom, by Virtue only of their being received and approved here.

Thirdly, A Third Difficulty arises from those accidental Emergencies that happened, either in the Alteration of Laws, or communicating or conveying of them to this Kingdom: For first, the Subdivision of the Kingdom into small Kingdoms under the Heptarchy, did most necessarily introduce a Variation of Laws, because the several Parts of the Kingdom, were not under one common Standard, and so it will soon be in any Kingdoms that are cantonized, and not under one common Method of Dispensation of Laws, tho’ under one and the same King. Again, The Intercourse and Traffick with other Nations, as it grew more or greater, did gradually make a Communication and Transmigration of Laws from us to them, and from them to us. Again, The Growth of Christianity in this Kingdom, and the Reception of Learned Men from other Parts, especially from Rome, and the Credit that they obtained here, might reasonably introduce some New Laws, and antiquate or abrogate some Old ones that seem’d less consistent with the Christian Doctrines, and by this Means, not only some of the Judicial Laws of the Jews, but also some Points relating to, or bordering upon, or derived from the Canon or Civil Laws, as may be seen in those Laws of the ancient Kings, Ina, Alphred, Canutus, &c. collected by Mr. Lambard.

Having thus far premised, it seems, upon the whole Matter, an endless and insuperable Business to carry up the English Laws to their several Springs and Heads, and to find out their first Original; neither would it be of any Moment or Use if it were done: For whenever the Laws of England, or the several Capita thereof began, or from whence or whomsoever derived, or what Laws of other Countries contributed to the Matter of our Laws; yet most certainly their Obligation arises not from their Matter, but from their Admission and Reception, and Authorization in this Kingdom; and those Laws, if convenient and useful for the Kingdom, were never the worse, tho’ they were desumed and taken from the Laws of other Countries, so as they had their Stamp of Obligation and Authority from the Reception and Approbation of this Kingdom by Virtue of the Common Law, of which this Kingdom has been always jealous, especially in relation to the Canon, Civil, and Norman Law, for the Reasons hereafter shewn.

Passing therefore from this unsearchable Inquiry, I shall descend to that which gives the Authority, viz. The formal Constituents, as I may call them, of the Common Law, and they seem to be principally, if not only, those three, viz. 1st. The Common Usage, or Custom, and Practice of this Kingdom, in such Parts thereof as lie in Usage or Custom. 2dly. The Authority of Parliament, introducing such Laws; and, 3dly. The Judicial Decisions of Courts of Justice, consonant to one another in the Series and Successions of Time.

1. As to the first of these, Usage and Custom generally receiv’d, do Obtinere vim Legis, and is that which gives Power sometimes to the Canon Law, as in the Ecclesiastical Courts; sometimes to the Civil Law, as in the Admiralty Courts; and again, controuls both, when they cross other Customs that are generally receiv’d in the Kingdom. This is that which directs Discents, has settled some ancient Ceremonies and Solemnities in Conveyances, Wills and Deeds, and in many more Particulars. And if it be enquired, What is the Evidence of this Custom, or wherein it consists, or is to be found? I answer, It is not simply an unwritten Custom, not barely Orally deriv’d down from one Age to another; but it is a Custom that is derived down in Writing, and transmitted from Age to Age, especially since the Beginning of Edw. I to whose Wisdom the Laws of England owe almost as much as the Laws of Rome to Justinian.

2. Acts of Parliament. And here it must not be wonder’d at, that I make Acts of Parliament one of the Authoritative Constituents of the Common Law, tho’ I had before contradistinguished the one from the other; for we are to know, that although the Original or Authentick Transcripts of Acts of Parliament are not before the Time of Hen. 3 and many that were in his Time are perish’d and lost; yet certainly such there were, and many of those Things that we now take for Common Law, were undoubtedly Acts of Parliament, tho’ now not to be found of Record. And if in the next Age, the Statutes made in the Time of Hen. 3 and Edw. I were lost, yet even those would pass for Parts of the Common Law, and indeed, by long Usage and the many Resolutions grounded upon them, and by their great Antiquity, they seem even already to be incorporated with the very Common Law; and that this is so, may appear, tho’ not by Records, for we have none so ancient, yet by an authentical and unquestionable History, wherein a Man may, without Much Difficulty, find, That many of those Capitala Legum that are now used and taken for Common Law, were things enacted in Parliaments or Great Councils under William I and his Predecessors, Kings of England, as may be made appear hereafter. But yet, those Constitutions and Laws being made before Time of Memory, do now obtain, and are taken as Part of the Common Law and immemorial Customs of the Kingdom; and so they ought now to be esteem’d tho’ in their first Original they were Acts of Parliament.

3. Judicial Decisions. It is true, the Decisions of Courts of Justice, tho’ by Virtue of the Laws of this Realm they do bind, as a Law between the Parties thereto, as to the particular Case in Question, ’till revers’d by Error or Attaint, yet they do not make a Law properly so called, (for that only the King and Parliament can do); yet they have a great Weight and Authority in Expounding, Declaring, and Publishing what the Law of this Kingdom is, especially when such Decisions hold a Consonancy and Congruity with Resolutions and Decisions of former Times; and tho’ such Decisions are less than a Law, yet they are a greater Evidence thereof than the Opinion of any private Persons, as such, whatsoever.

1st. Because the Persons who pronounce those Decisions, are Men chosen by the King for that Employment, as being of greater Learning, Knowledge, and Experience in the Laws than others. 2dly. Because they are upon their Oaths to judge according to the Laws of the Kingdom. 3dly. Because they have the best Helps to inform their Judgments. 4thly. Because they do Sedere Pro Tribunali, and their Judgments are strengthen’d and upheld by the Laws of this Kingdom, till they are by the same Law revers’d or avoided.

Now Judicial Decisions, as far as they refer to the Laws of this Kingdom, are for the Matter of them of Three Kinds:

First, They are either such as have their reasons singly in the Laws and Customs of this Kingdom, as, Who shall succeed as Heir to the Ancestor, what is the Ceremony requisite for passing a Freehold, what Estate, and how much shall the Wife have for her Dower? And many such Matters wherein the ancient and express Laws of the Kingdom give an express Decision, and the Judge seems only the instrument to pronounce it; and in these Things, the Law or custom of the Realm is the only Rule and Measure to judge by, and in reference to those Matters, the Decisions of Courts are the Conservatories and Evidences of those Laws.

Secondly, Or they are such Decisions, as by Way of Deduction and Illation upon those Laws are framed or deduced; as for the Purpose, Whether of an Estate thus or thus limited, the Wife shall be endowed? Whether if thus or thus limited, the Heir may be barr’d? And infinite more of the like complicated Questions. And herein the Rule of Decision is, First, the Common Law and Custom of the Realm, which is the great Substratum that is to be maintain’d; and then Authorities or Decisions of former Times in the same or the like Cases, and then the Reason of the Thing itself.

Thirdly, Or they are such as seem to have no other Guide but the common Reason of the Thing, unless the same Point has been formally decided, as in the Exposition of the Intention of Clauses in Deeds, Wills, Covenants, &c. where the very Sense of the Words, and their Positions and Relations, give a rational Account of the Meaning of the Parties, and in such Cases the Judge does much better herein, than what a bare grave Grammarian or Logician, or other prudent Men could do; for in many Cases there have been former Resolutions, either in Point or agreeing in Reason or Analogy with the Case in Question; or perhaps also, the Clause to be expounded is mingled with some Terms or Clauses that require the Knowledge of the Law to help out with the Construction or Exposition: Both which do often happen in the same Case, and therefore it requires the Knowledge of the Law to render and expound such Clauses and Sentences; and doubtless a good Common Lawyer is the best Expositor of such Clauses, &c. Vide Plowden, 122, to 130, 140, &c.

V. How the Common Law of England stood at and for some Time after the coming in of King William I

It is the Honour and Safety, and therefore the just Desire of Kingdoms that recognize no Superior but God, that their Laws have those two Qualifications, viz. 1st. That they be not dependent upon any Foreign Power; for a Dependency in Laws derogates from the Honour and Integrity of the Kingdom, and from the Power and Sovereignty of the Prince thereof. Secondly, That they taste not of Bondage or Servitude; for that derogates from the Dignity of the Kingdom, and from the Liberties of the People thereof.

In Relation to the former Consideration, the Kings of this Realm, and their great Councils, have always been jealous and careful, that they admitted not any Foreign Power, (especially such as pretended Authority to improve Laws upon other free Kingdoms or States) nor to countenance the Admission of such Laws here as were derived from such a Power.

Rome, as well Ancient as Modern, pretended a kind of universal Power and Interest; the former by their Victories, which were large, and extended even to Britain itself; and the later upon the Pretence of being Universal Bishop or Vicar-General in all Matters Ecclesiastical; so that upon Pretence of the former, the Civil Law, and upon Pretence of the later, the Canon Law was introduc’d, or pretended to some Kind of Right in the Territories of some absolute Princes, and among others here in England: But this kingdom has been always very jealous of giving too much Countenance to either of those Laws, and has always shewn a just Indignation and Resentment against any Encroachments of this Kind, either by the one Law or the other. It is true, as before is shewn, that in the Admiralty and Military Courts, the Civil Law has been admitted, and in the Ecclesiastical Courts, the Canon Law has been in some Particulars admitted. But still they carry such Marks and Evidences about them, whereby it may be known that they bind not, nor have the Authority of Laws from themselves, but from the authoritative Admission of this Kingdom.

And, as thus the Kingdom, for the Reasons before given, never admitted the Civil or the Canon Law to be the Rule of the Administration of Common Justice in this Kingdom; so neither has it endured any Laws to be imposed upon the People by any Right of Conquest, as being unsuitable to the Honour or Liberty of the English Kingdom, to recognize their Laws as given them at the Will and Pleasure of a Conqueror. And hence it was, that altho’ the People unjustly assisted King Hen. 4 in his Usurpation of the Crown, yet he was not admitted thereunto, until he had declared, that he claimed not as a Conqueror, but as a Successor; only he reserved to himself the Liberty of extending a Pretence of Conquest against the Scroops that were slain in Battle against him; which yet he durst not rest upon without a Confirmation in Parliament. Vide Rot. Parl. 1 H. 4. No. 56. & Pars 2. Ibid. No 17.

And upon the like Reason it was, That King William I tho’ he be called the Conqueror, and his attaining the Crown here, is often in History, and in some Records, called Conquestus Angliae; yet in Truth it was not such a Conquest as did, or could alter the Laws of this Kingdom, or impose Laws upon the People Per Modum Conquestus, or Jure Belli: And therefore, to wipe off that false Imputation upon our Laws, as if they were the Fruit or Effect of a Conquest, or carried in them the Badge of Servitude to the Will of the Conqueror, which Notion some ignorant and prejudiced Persons have entertain’d; I shall rip up, and lay open this whole Business from the Bottom, and to that End enquire into the following Particulars, viz.

1. Of the Thing called Conquest, what it is, when attained, and the Rights thereof.

2. Of the several Kinds of Conquest, and their Effects, as to the Alteration of Laws by the Victor.

3. How the English Laws stood at the Entry of King William the First.

4. By what Title he entred, and whether by such a Right of Conquest as did, or could, alter the English Laws.

5. Whether De Facto there was any Alteration of the said Laws, and by what Means after his coming in.

First, Touching the first of these, viz. Conquest, what it is, when attain’d, and the Rights thereof. It is true, That it seems to be admitted as a kind of Law among all Nations, That in Case of a Solemn War between Supream Princes, the Conqueror acquires a Right of Dominion, as well as a Property over the Things and Persons that are fully conquered; and the Reasons assign’d are Principally these, viz.

1st. Because both Parties have apealed to the highest Tribunal that can be, viz. The Trial by War, wherein the great Judge and Sovereign of the World, The Lord of Hosts, seems in a more especial Manner than in other Cases to decide the Controversy. 2dly. Because unless this should be a final Decision, Mankind would be destroy’d by endless Broils, Wars and Contentions; therefore, for the Preservation of Mankind, this great Decision ought to be final, and the conquer’d ought to acquiesce in it. 3dly. Because if this should not be admitted, and be by, as it were, the tacit Consent of Mankind accounted a lawful Acquisition, there would not be any Security or Peace under any Government: For by the various Revolutions of Dominion acquired by this Means, have been, and are to this Day the Successions of Kingdoms and States preserved. What was once the Romans, was before that the Graecians, and before them the Persians, and before the Persians, the Assyrians; and if this just Victory were not allowed to be a firm Acquest of Dominion, the present Possessors would be still obnoxious to the Claim of the former Proprietors, and so they would be in a restless State of Doubts, Difficulties and Changes upon the Pretention of former Claims: Therefore, to cut off this Instability and Unsettledness in Dominion and Property, it would seem that the common Consent of all Nations has tacitly submitted, that Acquisition by Right of Conquest, in a Solemn War between Persons not Subjects of each other by Bonds of Allegiance or Fidelity, should be allowed as one of the lawful Titles of acquiring Dominion over the Persons, Places and Things so conquer’d.

But whatever be the real Truth or Justice of this Position, yet we are much at a Loss touching the Things in Hypothesi, viz. Whether this be the Effect of every Kind of Conquest? Whether the War be Just or Unjust? What are the Requisites to the Constituting of a just War? Who are the Persons that may acquire? And what are the Solemnities requisite for that Acquest? But above all, the greatest Difficulty is, when there shall be said, Such a Victory as acquires this Right? Indeed, if there be a total Deletion of every Person of the Opposing Party or Country, then the Victory is compleat, because none remains to call it in Question. But suppose they are beaten in one Battle, may they not rally again? Or if the greater Part be subdued, may not the lesser keep their Ground? Or if they do not at the present, may they not in the next Age regain their Liberty? Or if they be quiet for a Time, may they not as they have Opportunity, renew their Pretentions? And altho’ the Victor, by his Power, be able to quell and suppress them, yet he is beholden to his Sword for it, and the Right that he got by his Victory before, would not be sufficient without a Power and Force to establish and secure him against new Troubles. And on the other Side, if those few subdu’d Persons can by Force regain what they once had a Pretence to, a former Victory will be but a weak Defence; and if it would, they would have the like Pretence to a Claim of Acquest by Victory over him, as he had over them.

It seems therefore a difficult Thing to determine in what indivisible Moment this Victory is so compleat, that Jure Belli the Acquest of Dominion is fully gotten, and therefore Victors use to secure themselves against Disputes of that Kind, and as it were to under-pin their Acquest Jure Belli, that they might not be lost by the same Means, whereby they were gained by the Continuation of eternal Forces of Standing Armies, Castles, Garrisons, Munitions, and other Acts of Power and Force, so as thereby to over-bear and prevent an ordinary Possibility of the Prevailing of the conquered or subdued People, against the Conqueror or Victor. He that lays the Weight of his Title upon Victory or Conquest, rarely rests in it as a compleat Conquest, till he has added to it somewhat of Consent or Faith of the conquered, submitting voluntarily to him, and then, and not till then, he thinks his Title secure, and his Conquest compleat: And indeed, he has no Reason to think his Title can be otherwise secure; for where the Title is meerly Force or Power, his Title will fail, if the conquered can with like Force or Power over-match his, and to regain their former Interest or Dominion.

Now this Consent is of Two Kinds, either Express’d, or Imply’d. An express Consent is, when after a Victory the Party conquered do expresly submit themselves to the Victors, either simply or absolutely, by Dedition, yielding themselves, giving him their Faith and their Allegiance; or else under certain Pacts, Conventions, Agreements, or Capitulations, as when the subdued Party, either by themselves, or by Substitutes, or Delegates by them chosen, do yield their Faith and their Allegiance to the Victor upon certain Pacts or Agreements between them; as for holding or continuing their Religion, their Laws, their Form of Civil Administration, &c.

And thus, tho’ Force were perhaps the Occasion of this Consent, yet in Truth ’tis Consent only that is the true proximate and fix’d Foundation of the Victor’s Right; which now no longer rests barely upon external Force, but upon the express Consent and Pact of the subdu’d People, and consequently this Pact or Convention is that which is to be the immediate Foundation of that Dominion; and upon a diligent Observation of Most Acquests gotten by Conquest, or so called, we shall find this to be the Conclusion of almost all Victories, they end in Deditions and Capitulations, and Faith given to the Conqueror, whereby oftentimes the former Laws, Privileges, and Possessions are confirmed to the Subdued, without which the Victors seldom continue long or quiet in their New Acquests, without extream Expence, Force, Severity and Hazard.

An implied Consent is, when the Subdued do continue for a long Time quiet and peaceable under the Government of the Victor, accepting his Government, submitting to his Laws, taking upon them the Offices and Employments under him, and obeying and owning him as their Governor, without opposing him, or claiming their former Right. This seems to be a tacit Acceptance of, and Assent to him; and tho’ this is gradual, and possibly no determinate Time is stinted, wherein a Man can say, this Year, or this Month, or this Day, such a tacit Consent was compleated and concluded: For Circumstances may make great Variations in the Sufficiency of the Evidence of such an Assent; yet by a long and quiet Tract of peaceable Submission to the Laws and Government of the Victor, Men may reasonably conjecture, that the conquered have relinquished their Purpose of regaining by Force what by Force they lost.

But still all this is intended of a lawful Conquest by a Foreign Prince or State, and not an Usurpation by a Subject, either upon his Prince or Fellow Subject; for several Ages and Discents do not purge the Unlawfulness of such an Usurpation.

Secondly. Concerning the several Kinds of Conquests, and their Effects, as to the Alteration of Laws by the Victor. There seems to be a double kind of Conquest, which induces a various Consideration touching the Change of Laws, viz. Victoria in Regem & Populum, & Victoria in Regem tantum. The Conquest over the People or Country, is when the War is denounced by a Prince or State Foreign, and no Subject, and when the Intention and Denunciation of the War is against the King and People or Country, and the Pretention of Title is by the Sword, or Jure Belli; such were most of the Conquests of ancient Monarchs, viz. The Assyrian, Persian, Graecian, and Roman Conquests; and in such Cases, the Acquisitions of the Victor were absolute and universal, he gain’d the Interest and Property of the very Soil of the Country subdued; which the Victor might, at his Pleasure, give, fell or arrent: He gain’d a Power of abolishing or changing their Laws and Customs, and of giving New, or of imposing the Law of the Victor’s Country. But although this the Conqueror might do, yet a Change of the Laws of the conquered Country was rarely universally made, especially by the Romans: Who, though in their own particular Colonies planted in conquered Countries, they observed the Roman Law, which possibly might by Degrees, without any rigorous Imposition, gain and insinuate themselves into the conquered People, and so gradually obtain, and insensibly conform them, at least so many of them as were conterminous to the Colonies and Garrisons to the Roman Laws; yet they rarely made a rigorous and universal Change of the Laws of the conquered Country, unless they were such as were foreign and barbarous, or altogether inconsistent with the Victor’s Government: But in other Things, they commonly indulged unto the conquered, the Laws and Religion of their Country upon a double Account, viz.

First. On Account of Humanity, thinking it a hard and oversevere Thing to impose presently upon the conquered a Change of their Customs, which long Use had made dear to them. And, 2dly. Upon the Account of Prudence; for the Romans being a wise and experienced People, found that those Indulgences made their Conquests the more easy, and their Enjoyments thereof the more firm, when as a rigorous Change of the Laws and Religion of the People would render them in a restless and unquiet Condition, and ready to lay hold of any Opportunity of Defection or Rebellion, to regain their ancient Laws and Religion, which ordinary People count most dear to them; (though at this Day the Indulgence of a Paganish Religion is not used to be allowed by any Christian Victor, as is observed in Calvin’s Case in the Seventh Report;) and to give One Instance for all, it was upon this Account, That though the Romans had wholly subdued Syria and Palestina, yet they allow’d to the Inhabitants the Jews, &c. the Use of their Religion and Laws, so far forth as consisted with the Safety and Security of the Victor’s Interest: And therefore, though they reserved to themselves the Cognizance of such Causes as concern’d themselves, their Officers or Revenues, and such Cases as might otherwise disturb the Security of their Empire, as Treasons, Insurrections, and the like; yet ’tis evident they indulged the People of the Jews, &c. to judge by their own Law, not only of some Criminal Proceedings, but even of Capital in some Cases, as appears by the History of the Gospels, and Acts of the Apostles.

But still this was but an Indulgence, and therefore was resumable by the Victor, unless there intervened any Capitulation between the Conqueror and the Conquered to the contrary. which was frequent, especially in those Cases, when it was not a compleat Conquest, but rather a Dedition upon Terms and Capituiations, agreed between the Conqueror and the Conquered; wherein usually the yielding Party secured to themselves, by the Articles of their Dedition, the Enjoyment of their Laws and Religion; and then by the Laws of Nature and of Nations, both which oblige in the Observation of Faith and Promises, those Terms and Capitulations, were to be observed. Again, 2dly. When after a full Conquest, the conquered People resumed so much Courage and Power as began to put them into a Capacity of regaining their former Laws and Liberties. This commonly was the Occasion of Terms and Capitulations between the Conquerors and Conquered. Again, 3dly. When by long Succession of Time, the Conquered had either been incorporated with the conquering People, whereby they had worn out the very Marks and Discriminations between the Conquerors and Conquered; and if they continued distinct, yet by a long Prescription, Usage and Custom, the Laws and Rights of the conquered People were in a Manner settled, and the long Permission of the Conquerors amounted to a tacite Concession or Capitulation, for the Enjoyment of their Laws and Liberties.

But of this more than enough is said, because it will appear in what follows, That William I never made any such Conquest of England.

Secondly, Therefore I come to the Second Kind of Conquest, viz. That which is only Victoria in Regem: And this is where the Conqueror either has a real Right to the Crown or chief Government of a Kingdom, or at least has, or makes some Pretence of Claim thereunto; and, in Pursuance of such Claim, raises War, and by his Forces obtains what he so pretends a Title to. Now this Kind of Conquest does only instate the Victor in those Rights of Government, which the conquered Prince, or that Prince to whom the Conqueror pretends a Right of Succession, had; whereby he becomes only a Successor Jure Belli, but not a Victor or Conqueror upon the People; and therefore has no more Right of altering their Laws, or taking away their Liberties or Possessions, than the conquered Prince, or the Prince to whom he pretends a Right of Succession, had; for the Intention, Scope and Effect of his Victory extends no further than the Succession, and does not at all affect the Rights of the People. The Conqueror is, as it were, the Plaintiff, and the conquered Prince is the Defendant, and the Claim is a Claim of Title to the Crown; and because each of them pretends a Right to the Sovereignty, and there is no other competent Trial of the Title between them, they put themselves upon the great Trial by Battle; wherein there is nothing in Question touching the Rights of the People, but only touching the Right of the Crown, and that being decided by the Victory, the Victor comes in as a Successor, and not Jure Victoriae, as in relation to the Peoples Rights; the most Sacred whereof are their Laws and Religion.

Indeed, those that do voluntarily assist the conquered Prince, commonly undergo the same Hazard with him, and do, as it were, put their Interest upon the Hazard and Issue of the same Trial, and therefore commonly fall under the same Severity with the conquered, at least de facto; because, perchance the Victor thinks he cannot be secure without it: But yet Usage, and indeed common Prudence, makes the Conquerors use great Moderation and Discrimination in relation to the Assistants of the conquered Prince; and to extend this Severity only to the eminent and busy Assistants of the Conquered, and not to the Gregarii, or such as either by Constraint or by Necessity were enforced to serve against him; and as to those also, on whom they exercise their Power, it has been rarely done Jure Belli aut Victoriae, but by a judiciary Proceeding, as in Cases of Treason, because now the great Title by Battle has pronounced for the Right of the Conqueror, and at best no Man must dare to say otherwise now, whatsoever Debility was in his Pretension or Claim. We shall see the Instances hereof in what follows.

Thirdly, As to the Third Point, How the Laws of England stood at the entry of King William I and it seems plain, that at the Time of his Entry into England, the Laws, commonly call’d, The Laws of Edward the Confessor, were then the standing Laws of the Kingdom. Hoveden tells us, in a Digression under his History of King Henry 2 that those Laws were originally put together by King Edgar, who was the Confessor’s Grandfather, viz.

Verum tamen post mortem ipsius Regis Edgari usq; ad Coronationem Sancti Regis Edvardi quod-Tempus Continet Sexaginta & Septem Annos prece (vel pretio) Leges sopitae sunt & Jus praetermissae sed postquam Rex Edvardus in Regno fuit sublimatus Concilio Baronum Angliae Legem Annos Sexaginta & Septem Sopitam, excitavit & confirmavit, & ea lex sic confirmata vocata est Lex Sancti Edvardi, non quod ipse prius invenisset eam sed cum praetermissa fuisset & oblivioni penitus dedita a morte avi sui Regis Edgari qui primus inventor ejus fuisse dicitur usque ad sua Tempora, viz. Sexaginta & Septem Annos.

And the same Passage in totidem Verbis is in the History of Litchfield, cited in Sir Robert Twisden’s Prologue to the Laws of King William I. But although possibly those Laws were collected by King Edgar, yet it is evident, by what is before said, they were augmented by the Confessor, by that Extract of Laws beforementioned, which he made out of that Threefold Law, that obtain’d in several Parts of England, viz. The Danish, the Mercian, and the West-Saxon Laws.

This Manual (as I may call it) of Laws, stiled, The Confessor’s Laws, was but a finall Volume, and contains but few Heads, being rather a Scheme or Directory touching some Method to be observed in the Distribution of Justice, and some particular Proceedings relative thereunto, especially in Matters of Crime, as appears by the Laws themselves, which are now printed in Mr Lambart’s Saxon Laws, p. 133. and other Places; yet the English were very jealous for them, no less or otherwise than they are at this Time for the Great Charter; insomuch, that they were never satisfied till the said Laws were reinforced and mingled for the most Part with the Coronation Oath of King William I and some of his Successors.

And this may serve shortly touching this Third Point, whereby we see that the Laws that obtain’d at the Time of the Entry of King William I were the English Laws, and principally those of Edward the Confessor.

Fourthly, The Fourth Particular is, The Pretensions of King William I to the Crown of England, and what kind of Conquest he made; and this will be best rendered and understood by producing the History of that Business, as it is delivered over to us by the ancient Historians that lived in Or near that Time: The Sum, or Totum whereof, is this.

King Edward the Confessor having no Children, nor like to have any, had Three Persons related to him, whom he principally favoured, viz. 1st. Edgar Aetheling, the Son of Edward, the Son of Edmond Ironside, Mat. Paris, Anno 1066. Edmundus aiutem latus serreum Rex naturalis de stirpe Regum genuit Edwardum & Edwardus genuit Edgarum cui dejure debebatur Regnum Anglorum. 2dly. Harold, the Son of Goodwin, Earl of Kent, the Confessor’s Father-in-Law, he having married Earl Goodwin’s Daughter: And 3dly, William Duke of Normandy, who was allied to the Confessor thus, viz. William was the Son of Robert, the Son of Richard Duke of Normandy, which Richard was Brother unto the Confessor’s Mother. Vide Hoveden, sub initio Anni primi Willielmi primi.

There was likewise a great Familiarity, as well as this Alliance, between the Confessor and Duke William; for the Confessor had often made considerable Residencies in Normandy. And this gave a fair Expectation to Duke William of succeeding him in this Kingdom: And there was also, at least pretended, a Promise made him by the Confessor, That Duke William should succeed him in the Crown of England; and because Harold was in great Favour with the King, and of great Power in England, and therefore the likeliest Man by his Assistance to advance, or by his Opposition to hinder or temperate the Duke’s Expectation, there was a Contract made between the Duke and Harold in Normandy in the Confessor’s Lifetime, That Harold should, after the Confessor’s Death, assist the Duke in obtaining the Crown of England. (Vide Brompton, Hoveden, &c.) Shortly after which the Confessor died, and then stepp’d up the Three Competitors to the Crown, viz.

1. Edgar Aetheling, who was indeed favoured by the Nobility, but being an Infant, was overborn by the Power of Harold, who thereupon began to set up for himself: Whereupon Edgar, with his Two Sisters, fled into Scotland; where he, and one of his Sisters, dying without Issue, Margaret, his other Sister and Heir, married Malcolm, King of Scots; from whence proceeded the Race of the Scottish Kings.

2. Harold, who having at first raised a Power under Pretence of supporting and preserving Duke William’s Title to this Kingdom, and having by Force suppress’d Edgar, he thereupon claimed the Crown to himself; and pretending an Adoption or Bequest of the Kingdom upon him by the Confessor, he forgot his Promise made to Duke William, and usurped the Crown, which he held but the Space of 9 Months and 4 Days. Hoveden.

3. William, Duke of Normandy, who pretended a Promise of Succession by the Confessor, and a Capitulation or Stipulation by Harold for his Assistance; and had, it seems, so far interested the Pope in Favour of his Pretensions, that he pronounced for William against both the others.

Hereupon the Duke makes his Claim to the Crown of England, gathered a powerful Army, and came over, and upon the 14th of October, Anno 1067, gave Harold Battle, and overthrew him at that Place in Sussex, where William afterwards founded Battle-Abby, in Memory of that Victory; and then he took upon him the Government of the Kingdom, as King thereof, and upon Christmas following was solemnly crown’d at Westminster by the Archbishop of York; and he declared at his Coronation, That he claimed the Crown not Jure Belli, but Jure Successionis; and Brompton gives us this Account thereof, Cum nomen Tyranni exhorresceret & nomen legitimi principis induere vellet petiit consecrari; and accordingly, says the same Author, the Archbishop of York, in respect of some present incapacity in the Archbishop of Canterbury, Munus hoc adimplevit ipsumque Gulielmum Regem ad jura Ecclesiae Anglicanae tuenda & conservanda populumque suum recte regendum, & Leges rectas Statuendumi, Sacramento Solemniter adstrinxit; and thereupon he took the Homage of the Nobility.

This being the true, though short Account of the State of that Business, there necessarily follows from thence those plain and unquestionable Consequences,

First, That the Conquest of King William I was not a Conquest upon the Country or People, but only upon the King of it, in the Person of Harold, the Usurper; for William I came in upon a Pretence of Title of Succession to the Confessor; and the Prosecution and Success of the Battle he gave to Harold was to make good his Claim of Succession, and to remove Harold, as an unlawful Usurper upon his Right; which Right was now decided in his Favour, and determined by that great Trial by Battle.

Secondly, That he acquired in Consequence thereof no greater Right than what was in the Confessor, to whom he pretended a Right of Succession; and therefore could no more alter the Laws of the Kingdom upon the Pretence of Conquest, than the Confessor himself might, or than the Duke himself could have done, had he been the true and rightful Successor to the Crown, in Point of Descent from the Confessor; neither is it material, whether his Pretence were true or false, or whether, if true, it were available or not, to entitle him to the Crown; for whatsoever it was, it was sufficient to direct his Claim, and to qualify his Victory so, that the Jus Belli thereby acquired could be only Victoria in Regem, sed non in Populum, and put him only in the State, Capacity and Qualification of a Successor to the King, and not as Conqueror of the Kingdom.

Thirdly, And as this his antecedent Claim kept his Acquest within the Bounds of a Successor, and restrained him from the unlimited Bounds and Power of a Conqueror; so his subsequent Coronation, and the Oath by him taken, is a further unquestionable Demonstration, that he was restrain’d within the Bounds of a Successor, and not enlarged with the Latitude of a Victor; for at his Coronation he binds himself by a solemn Oath to preserve the Rights of the Church, and to govern according to the Laws, and not absolutely and unlimitedly according to the Will of a Conqueror.

Fourthly, That if there were any Doubt whether there might be such a Victory as might give a Pretension to him, of altering Laws, or governing as a Conqueror; yet to secure from that possible Fear, and to avoid it, he ends his Victory in a Capitulation; namely, he takes the ancient Oath of a King unto the People, and the People reciprocally giving or returning him that Assurance that Subjects ought to give their Prince, by performing their Homage to him as their King, declared by the Victory he had obtain’d over the Usurper, to be the Successor of the Confessor: And consequently, if there might be any Pretence of Conquest over the People’s Rights, as well as over Harold’s, yet the Capitulation or Stipulation removes the Claim or Pretence of a Conqueror, and enstates him in the regulated Capacity and State of a Successor. And upon all this it is evident, That King William I could not abrogate or alter the ancient Laws of the Kingdom, any more than if he had succeeded the Confessor as his lawful Heir, and had acquir’d the Crown by the peaceable Course of Descent, without any Sword drawn.

And thus much may suffice, to shew that King William I did not enter by such a Right of Conquest, as did or could alter the Laws of this Kingdom.

Therefore I come to the last Question I proposed to be considered, viz. Whether de Facto there was anything done by King William I after his Accession to the Crown, in Reference either to the Alteration or Confirmation of the Laws, and how and in what Manner the same was done: And this being a Narrative of Matters of Fact, I shall divide into those Two Inquiries, viz. 1st. What was done in Relation to the Lands and Possessions of the English: And 2dly, What was done in Relation to the Laws of the Kingdom in general; for both of these will be necessary to make up a clear Narrative touching the Alteration or Suspension, Confirmation or Execution of the Laws of this Kingdom by him.

First, Therefore touching the former, viz. What was done in Relation to the Lands and Possessions of the English. Those Two Things must be premised, viz. First, a Matter of Right, or Law; which is this, That in Case this had been a Conquest upon the Kingdom, it had been at the Pleasure of the Conqueror to have taken all the Lands of the Kingdom into his own Possession, to have put a Period to all former Titles, to have cancelled all former Grants, and to have given, as it were, the Date and Original to every Man’s Claim, so as to have been no higher nor ancienter than such his Conquest, and to hold the same by a Title derived wholly from and under him. I do not say, that every absolute Conqueror of a Kingdom will do thus, but that he may if he will, and have Power to effect it.

Secondly, The Second Thing to be premised is, a Matter of Fact, which is this; That Duke William brought in with him a great Army of Foreigners, that would have expected a Reward of their Undertaking, and therefore were doubtless very craving and importunate for Gratifications to be made them by the Conqueror. Again, it is very probable, that of the English themselves, there were Persons of very various Conditions and Inclinations; some perchance did adhere to the Duke, and were assistant to him openly, or at least under-hand, towards the bringing him in; and those were sure to enjoy their Possessions privately and quietly when the Duke prevailed. Again, some did, without all question, adhere to Harold, and those in all Probability were severely dealt with, and dispossess’d of their Lands, unless they could make their Peace. Again, possibly there were others who assisted Harold, partly out of Fear and Compulsion; yet those, possibly, if they were of any Note or Eminence, fared little better than the rest. Again, there were some that probably stood Neuters, and medled not; and those, though they could not expect much Favour, yet they might in Justice expect to enjoy their own. Again, it must needs be supposed, That the Duke having so great an Army of Foreigners, so many ambitious and covetous Minds to be satisfied, so many to be rewarded in Point of Gratitude; and after so great a Concussion as always happens upon the Event of a Victory, it must needs, upon those and such like Accounts, be evident to any Man that considers Things of this Nature, that there were great Outrages and Oppressions comwitted by the Victor’s Soldiers and their Officers, many false Accusations made against innocent Persons, great Disturbances and Evictions of Possessions, many right Owners being unjustly thrown out, and consequently many Occupations and Usurpations of other Men’s Rights and Possessions, and a long while before those Things could be reduced to any quiet and regular Settlement.

These general Observations being premised, we will now see what de Facto was done in Relation to Men’s Possessions, in Consequence of this Victory of the Duke.

First, It is certain that he took into his Hands all the Demesn Lands of the Crown which were belonging to Edward the Confessor at the Time of his Death, and avoided all the Dispositions and Grants thereof made by Harold, during his short Reign; and this might be one great End of his making that noble Survey in the fourth year of his Reign, called generally Doomsday-Read, in some Records, as Rot. Winton, &c. thereby to ascertain what were the Possessions of the Crown in the Time of the Confessor, and those he entirely resumed: And this is the Reason why in some of our old Books it is said, Ancient Demesn is that which was held by King William the Conqueror; and in others ’tis said, Ancient Demesn is that which was held by King Edward the Confessor, and both true in their Kind; and in this Respect, viz. That whatsoever appeared to be the Confessor’s at the Time of his Death, was assumed by King William into his own Possession.

Secondly, It is also certain, That no Person simply, and quatenus an English Man, was dispossess’d of any of his Possessions, and consequently their Land was not pretended unto as acquired Jure Belli, which appears most plainly by the following Evidences, viz.

First, That very many of those Persons that were possessed of Lands in the Time of Edward the Confessor, and so returned upon the Book of Doomsday, retain’d the same unto them and their Descendants, and some of their Descendants retain the same Possessions to this Day, which could not have been, if presently Jure Belli ac Vicioriae universalis, the Lands of the English had been vested in the Conqueror. And again,

Secondly, We do find, that in all Times, even suddenly after the Conquest, the Charters of the ancient Saxon Kings were pleaded and allowed, and Titles made and created by them to Lands, Liberties, Franchises and Regalities, affirm’d and adjudg’d under William I. Yea, when that Exception has been offered, That by the Conquest those Charters had lost their Force, yet those Claims were allowed as in 7 E. 3. Fines, as mentioned by Mr Selden, in his Notes upon Eadmerus, which could not be, if there had been such a Conquest as had vested all Mens Rights in the Conqueror.

Thirdly, Many Recoveries were had shortly after this Conquest, as well by Heirs as Successors of the Seisin of their Predecessors before the Conquest. We shall take one or two Instances for all; namely, that famous Record apud Pinendon, by the Archbishop of Canterbury, in the Time of King William I of the Seisin and Title of his Predecessors before the Conquest: See the whole Process and Proceedings thereupon in the End of Mr Selden’s Notes upon Eadmerus; and see Spelman’s Glossary, Title Drenches. Upon these Instances, and much more that might be added, it is without Contradiction, That the Rights and Inheritances of the English qua Tales, were not abrogated or impeach’d by this Conquest, but continued notwithstanding the same; for, as is before observ’d, it was Jure Belli quoad Regem, sed non quoad Populum.

But to descend to some Particulars: The English Persons that the Conqueror had to deal with, were of Three Kinds, viz. First, Such as adhered to him aginst Harold the Usurper; and, without all Question, those continued the Possession of their Lands, and their Possessions were rather increased by him, than any way diminished. Secondly, Such as adhered to Harold, and opposed the Duke, and fought against him; and doubtless, as to those, the Duke after his Victory used his Power, and dispossess’d them of their Estates: Which Thing is usual upon all Conclusions and Events of this Kind, upon a double Reason; 1st, To secure himself against the Power of those that oppos’d him, and to weaken them in their Estates, that they should not afterwards be enabled to make Head against him. And, 2dly, To gratify those that assisted him, and to reward their Services in that Expedition; and to make them firm to his Interest, which was now twisted with their own: For it can’t be imagined, but that the Conqueror was assisted with a great Company of Foreigners, some that he favour’d, some that had highly deserved for their Valour, some that were necessitous Soldiers of Fortune, and others that were either ambitious or covetous: All whose Desires, Deserts, or Expectations, the Conqueror had no other Means to satisfy, but by the Estates of such as had appeared open Enemies to him; and doubtless, many innocent Persons suffered in this Kind, under false Suggestions and Accusations, which occasioned great Exclamations by the Writers of those Times against the Violences and Oppressions which were used after this Victory. And, Thirdly, Such as stood Neuters, and meddled not on either Side during the Controversy: And doubtless, for some Time after this great Change, many of those suffered very much, and were hardly used in their Estates, especially such as were of the more eminent Sort.

Gervasius Tilburiensis, who wrote in the Time of Hen. 2. Libro I. Cap. Quid Murdrum & quare sic dictum, gives us a large Account of what he had traditionally learned touching this Matter, to this Effect, viz. “Post Regni Conquisitionem & Perduellium Subjectionem, &c. Nomine autem Successionis a temporibus subactae Gentis nihil sibi Vendicarent,” &c. i. e. After the Conquest of the Kingdom, and Subjection of the Rebels, when the King himself and his great Men had surveyed their new Acquisitions; and strict Inquiry was made, who there were that, fighting against the King, had saved themselves by Flight; From these, and the Heirs of such as were slain in Battle, fighting against him, all Hopes of Succession, or of possessing their Estates, were lost; for the People being subdued, they held their Lives as a Favour, &c.

But Gervase, as he speaks so liberally in Relation to the Conquest, and the Subacta Gens, as he terms us; so it should seem, he was in great Measure mistaken in this Relation: For it is most plain, That those that were not engaged visibly in the Assistance of Harold, were not, according to the Rules of those Times, disabled to enjoy their Possessions, or make Title of Succession to their Ancestors, or transmit to their Posterity as formerly, tho’ possibly some Oppressions might be used to particular Persons here and there to the contrary. And this appears by that excellent Monument of Antiquity, set down in Sir H. Spelman’s Glossary, in the Title of Drenches or Drenges, which I shall here transcribe, viz.

Edwinus de Sharborne, Et quidam alii qui ejecti fuerunt & Terris suis abierunt ad conquestorem & dixerunt ei, quod nunquam ante conquestum, nec in conquestum, nec post, fuerunt contra Regem ipsum in Concilio, aut in auxilio sed tenuerunt se in pace, Et hoc parati sunt probare qualiter Rex vellet Ordinare, Per quod idem Rex facit Inquiri per totam Angliam si ita fuit, quod quidem probatum fuit, propter quod idem Rex praecepit ut omnes illi qui sic tenuerunt se in pace in forma praedicta quod ipsi rehaberent omnes Terras & Dominationes suas adeo integre & in pace ut unquam habuerent vel tenuerunt ante conquestum suum, Et quod ipsi in posterum vocarentur Drenges.

But it seems the Possessions of the Church were not under this Discrimination, for they being held not in Right of the Person, but of the Church, were not subject to any Confiscation by the Adherence of the Possessor to Harold the Usurper: And therefore, tho’ it seems Stigand Archbishop of Canterbury, at the coming in of William I had been in some Opposition against him, which probably might be the true Cause why he perform’d not the Office of his Coronation, which of Right belonged to him, tho’ some other Impediments were pretended, Vide Eadmerus in initio Libri, and might also possibly be the Reason why a considerable Part of his Possessions were granted to Odo Bishop of Bayonne, but were afterwards recovered by Lanfrank, his Successor, at Pinendon, in pleno Comitatu, ubi Rex praecepit totum Comitatum absque mora considere, & homines Comitatus omnes Francigenos & praecipue Anglos in antiquis Legibus & Consuetudinibus peritos, in unum convenire.

To this may be added those several Grants and Charters made by King William I mentioned in the History of Ely, and in Eadmerus, for restoring to Bishopricks and Abbies such Lands, or Goods, as had been taken away from them, viz.

Willielmus Dei gratia Rex Anglorum, Lanfranco Archiepiscopo Cantuar’ & Galfrido Episcopo Constantiarum & Roberto Comiti de ou & Richardo filio Comitis Gilberti & Hugoni de Monteforti, suisque aliis proceribus Regni Angliae salutem. Summonete Vicecomites meos ex meo praecepto, & ex parte mea eis dicite ut reddant Episcopatibus meis & Abbatiis totum Dominium omnesque Dominicas terras quas de Domino Episcopatuum meorum, & Abbatiarum, Episcopi mei & Abbates eis vel lenitate timore vel cupiditate dederunt vel habere consenserunt vel ipsi violentia sua inde abstraxerunt, & quod hacteuus injuste possiderunt de Dominio Ecclesiarum mearum. Et nisi reddiderint sicut eos ex parte mea summonebitis, vos ipsos velint nolint, constringite reddere; Et quod si quilibet alius vel aliquis vestrum quibus hanc Justitiam imposui ejusdem querelae fuerit reddat similiter quod de Domino Episcopatuum vel Abbatiarum mearum habuit ne propter illud quod inde aliquis vestrum habebit, minus exerceat super meos Vicecomites vel alios, quicunque teneant Dominium Ecclesiarum mearum, quod Praecipio, &c.

Willielmus Rex Anglor’ omnibus suis fidelibus suis & Vicecomitibus in quorum Vicecomitatibus Abbatia de Heli Terras habet salutem. Praecipio ut Abbatia pred. habeat Omnes consuetudines suas scilicet Saccham & Socham Toll & Team & Infanganetheof, Hamsocua, & Grithbrice Fithwite & Ferdwite infra Burgum & extra & omnes alias forisfacturas in terra sua super suos homines sicut habuit Die qua Rex Edwardus fuit vivus & mortuus, & sicut mea jussione dirationatae apud Keneteford per plures Scyras ante meos Barones, viz. Galfridum Constantientem Ep. & Baldewine Abbatem, &c. Teste Rogero Bigot.

Willielmus Rex Angl. Lanfranco Archiepo’, & Rogero Comiti Moritoniae, & Galfrido Constantien Epo. salutem. Mando vobis & Praecipio ut iterum faciatis congregari omnes Scyras quae interfuerunt placito habito de Terris Ecclesia de Heli, antequam mea conjux in Normaniam novissime veniret, cum quibus etiam sint de Baronibus meis, qui competenter adesse poterint & praedicto placito interfuerint & qui terras ejusdem Ecclesiae tenent; Quibus in unum congregatis eligantur plures de illis Anglis qui sciunt quomodo Terrae jacebant praefatae Ecclesiae Die qua Rex Edwardus Obiit, & quod inde dixerint ididem jure jurando testentur; quo facto restituentur Ecclesiae terrae quae in Dominico suo erant die obitus Regis Edwardi; Exceptis his quas homines clamabant me sibi dedisse; illas vero Literis mihi significate quae sint, & qui eas tenent; Qui autem tenent Theinlandes quae proculdubio debent teneri de Ecclesia faciant concordiam cum Abbate quam Meliorem poterint, & si nolurunt terrae remaneant ad Ecclesiam, Hoc quoque detinentibus Socham & Saccam fiat, &c.

Willielmus Rex Anglorum, Lanfranco Archiepisc’, & G. Episc. & R. Comiti M. salutem, &c. Defendite ne Remigius Episcopus novas consuetudines requirat infra Insulam de Heli, Nolo enim quod ibi habeat nisi illud quod Antecessor ejus habebat Tempore Regis Edwar.di Scilicet qua die ipse Rex mortuus est. Et si Remig. Episcopus inde Placitare voluerit placitet inde sicut fecisset tempore Regis Edw. & placitum istum sit in vestra praesentia; De custodia de Norguic Abbatem Simeonem quietum esse demittite; Sed ibi municionem suam conduci faciat & custodiri. Facite remanere placitum de Terris quas Calumniantur Willielmus de ou, & Radulphus filius Gualeranni, & Robertus Gernon; si inde placitare noluerint sicut inde placitassent temPore Regis Edwardi, & sicut iu eodem tempore Abbatia consuetudines suas habebat, Volo ut eas omnio faciatis habere sicut Abbas per Chartas sUas, & per Testes suos eas deplacitare poterit.

I might add many more Charters to the foregoing, and more especially those famous Charters in Spelman’s Councils, Vol. 2. Fol. 14. & 165, whereby it appears, That King William I. Communi Concilio, & Concilio Archiepiscoporum, Episcoporum & Abbatum, & omnium Principum & Baronum Regni, instituted the Courts for holding Pleas of Ecclesiastick Causes, to be separate and distinct from those Courts that had Jurisdiction of Civil Causes. Sed de his plusquam fatis.

And thus I conclude the Point I first propounded, viz. How King William I after his Victory, dealt with the Possessions of the English, whereby it appears that there was no Pretence of an Universal Conquest, or that he was a Victor in Populum; neither did he claim the Title of English Lands upon that Account, but only made Use of his Victory thus far, to seize the Lands of such as had oppos’d him: Which is universal in all Cases of Victories, tho’ without the Pretence of Conquest.

Secondly, Therefore I come to the Second general Question, viz. What was done in Relation to the Laws? It is very plain, that the King, after his Victory, did, as all wise Princes would have done, endeavour to make a stricter Union between England and Normandy; and in order thereunto, he endeavoured to bring in the French instead of the Saxon Language, then used in England: “Deliberavit” (says Holcot) “quomodo Linguam Saxonicam possit destruere, & Anglicam & Normanicam idiomate concordare & ideo ordinavit quod nullus in Curia Regis placitaret nisi in Lingua Gallica, &c.” From whence arose the Practice of Pleading in our Courts of Law in the Norman or French Tongue, which Custom continued till the Statute of 36 E. 3. c. 15.

And as he thus endeavoured to make a Community in their Language, so possibly he might endeavour to make the like in their Laws, and to introduce the Norman Laws into England, or as many of ’em as he thought convenient; and it is very probable, that after the Victory, the Norman Nobility and Soldiers were scattered through the whole Kingdom, and mingled with the English, which might possibly introduce some of the Norman Laws and Customs insensibly into this Kingdom: And to that End the Conqueror did industriously mingle the English and Normans together, shuffling the Normans into English Possessions here, and putting the English into Possessions in Normandy, and making Marriages among them, especially between the Nobility of both Nations.

This gave the English a Suspicion, that they should suddenly have a Change of their Laws before they were aware of it. But it fell out much better: For first, there arising some Danger of a Defection of the English, countenanced by the Archbishop of York in the North, and Frederick, Abbot of St. Albans in the South; the King, by the Perswasions of Lanfrank, Archbishop of Canterbury, “Probonopacis apud Berkhamstead juravit super Animas reliquias Sancti Altani tactisque Sacrosanctis Evangelis (ministrante juramento Abbate Frederico) ut bonas & approbatas antiquas Regni Leges quas sancti & pii Angliae Reges ejus Antecessores, & maxime Rex Edvardus statuit inviolabiliter observaret; Et sic pacificati ad propria laeti recesserunt.” Vide Mat. Paris, in Vita Frederici Abbatis Sancti Albani.

But altho’ now, upon this Capitulation, the ancient English Laws were confirm’d, and namely, the Laws of St. Edward the Confessor; yet it appeared not what those Laws were: And therefore, in the Fourth Year of his Reign, we are told by Hoveden, in a Digression he makes in his History under the Reign of King Hen. 2 and also in the Chronicle of Lithfield.

Willielmus Rex, Anno quarto Regni sui Consilio Baronum suorum fecit Summonari per Universos Consulatos Angliae, Anglos Nobiles & Sapientes & sua Lege eruditos ut eorum jura & consuetudines ab ipsis audiret, Electis igitur de singulis totius Patriae Comitatibus viri duodecim, jurejurando confirmaverunt ut quoad possint recto tramite neque ad Dextram neque ad Sinistram partem divertentes Legum suarum consuetudinem & sancitam patef acerent. nihil praetermittentes nihil addentes, nihil praevaricando mutantes, &c.

And then sets down many of those ancient Laws approv’d and confirm’d by the King, and Communi Concilium,. wherein it appears, that he seems to be most pleased with those Laws that came under the Title of Lex Danica, as most consonant to the Norman Customs.

Quo auditu mox universi compatrioti qui Leges dixerint Tristes effecti, uno ministerio deprecati sunt quatenus permitteret Leges sibi proprias & consuetudines antiquas habere in quibus vi%erunt Patres, & ipsi in iis nati & nutriti sunt, quia durum Valde sibi foret suscipere Leges ignotas, & judicare de iis quae nesciebant; Rege vero ad flectendum ingrato existente, tandem eum persecuti sunt deprecantes quatenus pro Anima Regis Edvardi qui es sub diem suum eis concesserat Barones & Regnum & cujus orant Leges non aliorum extraneorum cogere quam sub Legibus perseverare patriis; Unde Consilio habito Praecatui Baronem tandem acquievit, &c.

Gervasius Tilburiensis, who lived near that Time, speaks shortly, and to the Purpose, thus: “Propositis Legibus Anglicanis secundum triplicitam earum Distinctionem, i.e. Merchenlage, Westsaxon-lage, & Dane-lage quasdam autem approbans illis transmarinas Legis Neustriae quas ad Regni Pacem tuendam efficasissime videbantur adjecit.”

So that by this, there appears to have been a double Collection of Laws, viz.

First, The Laws of the Confessor, which were granted and confirmed by King William, and are also called the Laws of King William, which are transcribed in Mr Selden’s Notes upon Eadmerus, Page 173. the Title whereof is thus, viz. “Hae sunt Leges & Consuetudines quas Willielmus Rex concessit universo populo Angliae post subactam Terram eadem sunt quas Edvardus Rex cognatus ejus observavit ante eum”: And these seem to be the very same that Ingulfus mentions to have been brought from London, and placed by him in the Abbey of Crowland in the fifteenth year of the same King William, attuli eadem Vice mecum Londini in meum Monasterium Legum Volumen, &c.

Secondly, There were certain additional Laws at that Time establish’d, which Gervasius Tilburiensis calls, Leges Neustriae quae ifficacissimae vidibantur ad tuendam Regni Pacim; which seems to be included in those other Laws of King William transcribed in the same Notes upon Eadmerus, Pag. 189, 193, &c. which indeed were principally designed for the Establishment of King William in the Throne, and for the securing of the Peace of the Kingdom, especially between the English and Normans, as appears by these Instances, viz.

The Law de Murdro, or the Common Fine for a Norman or Frenchman slain, and the offender not discovered: The Law for the Oath of Allegiance to the King: The Introduction of the Trial by single Combat, which many Learned Men have thought was not in Use here in England before Will. 1. And the Law touching Knights Service, which Bracton, Lib. 2 supposes to be introduced by the Conqueror, viz.

Quod omnes Comites Milites & Servientes & universi liberi homines totius Regni habeant & teneant se semper bene in Armis & in Equis ut decet & quod sint semper prompti & bene parati ad Servitium suum integrum nobis explendum & peragendum cum semper Opus affuerit secundum quod nobis de Fœodo debent & Tenementis suis de Jure facere & sicut illis statuimus per Commune Concilium totius Regini praedicti, & illis dedimus & concessimus in Fœodo jure haereditario.

Wherein we may observe, that this Constitution seems to point at Two Things, viz. The assizing of Men for Arms, which was frequent under the Title De assidenda ad Arma, and is afterwards particularly enforc’d and rectified by the Statute of Winton, 13 Ed. I and next of Conventional Services reserved by Tenures upon Grants made out of the Crown or Knights Service, called in Latin, Forinsecum, or Regale Servitium.

And Note, That these Laws were not imposed ad Libitum Regis, but they were such as were settled Per Commune Concilium Regni, and possibly at that very Time when Twelve out of every County were return’d to ascertain the Confessor’s Laws, as before is mentioned out of Hoveden, which appears to be as sufficient and effectual a Parliament as ever was held in England.

By all which it is apparent, First, That William I did not pretend, nor indeed could he pretend, notwithstanding this Nominal Conquest, to alter the Laws of this Kingdom without common Consent in Communi Concilio Regni, or in Parliament. And, Secondly, That if there could be any Pretence of any such Right, or if in that turbulent Time something of that Kind had happened; yet by all those solemn Capitulations, Oaths, and Concessions, that Pretence was wholly avoided, and the ancient Laws of the Kingdom settled, and were not to be altered, or added unto, at the Pleasure of the Conqueror, without Consent in Parliament.

In the Seventeenth Year of his Reign, (or as some say, the Fifteenth) he began that great Survey, recorded in Two Books, called, The Great Doomsday Book, and Little Doomsday Book, and finished it in the Twentieth year of his Reign, Anno Domini 1086, as appears by the learned Preface of Mr Selden to Eadmerus, and indeed by the Books themselves. The Original Record of which is still extant, remaining in the Custody of the Vice-Chamberlains of his Majesty’s Exchequer. This Record contains a Survey of all the ancient Demesn Lands of the Kingdom, and contains in many Manors, not only the Tenants Names, with the Quantity of Lands and their Values, but likewise the Number and Quality of the Residents or Inhabitants, with divers Rights, Privileges, and Customs claimed by them; and being made and found by Verdict or Presentment of Juries in every Hundred or Division upon their Oaths, there was no receeding from, or avoiding what was written in this Record: And therefore as Gervasius Tilburiensis says, Page 41. “Ob hoc nos eundem Librum Judiciarium Nominamus; Non quod in eo de propositis aliquibus dubiis seratur sententia, sed quod ab eo sicut ab ultimo Die Judicii non licet ulla ratione descedere.”

And thus much shall suffice touching the Fifth General Head; namely, of the Progress made after the Coming-in of King William, relating to the Laws of England, their Establishment, Settlement, and Alteration. If any one be minded to see what this Prince did in reference to Ecclesiasticks, let him consult Eadmerus, and the learned Notes of Mr. Selden upon it, especially Page 1 67, 168, &c. where he shall find how this King divided the Episcopal Consistory from the County Court, and how he restrain’d the Clergy and their Courts from exercising ecclesiastical Jurisdiction upon Tenants in Capite.

VI. Concerning the Parity or Similitude of the Laws of England and Normandy, and the Reasons thereof

The great Similitude that in many Things appears hetween the Laws of England, and those of Normandy, has given some Occasion to such as consider not well of Things, to suppose that this happened by the Power of the Conqueror, in conforming the Laws of this Kingdom to those of Normandy; and therefore will needs have it, that our English Laws still retain the Mark of that Conquest, and that we received our Laws from him as from a Conqueror; than which Assertion, (as it appears even by what has before been said) nothing can be more untrue. Besides, if there were any Laws derived from the Normans to us, as perhaps there might be some, yea, possibly many; yet it no more concludes the Position to be true, that we received such Laws Per Modum Conquestus, than if the Kingdom of England should at this Day take some of the Laws of Persia, Spain, Egypt, or Assyria, and by Authority of Parliament settle them here. Which tho’ they were for their Matter Foreign, yet their obligatory Power, and their formal Nature or Reason of becoming Laws here, were not at all due to those Countries, whose Laws they were, but to the proper and intrinsical Authority of this Kingdom by which they were received as, or enacted into, Laws: And therefore, as no Law that is Foreign, binds here in England, till it be received and authoritatively engrafted into the Law of England; so there is no Reason in common Prudence and Understanding for any Man to conclude, that no Rule or Method of Justice is to be admitted in a Kingdom, tho’ never so useful or beneficial, barely upon this Account, That another People entertain’d it, and made it a Part of their Laws before us.

But as to the Matter itself, I shall consider, and enquire of the following Particulars, viz.

1. How long the Kingdom of England and Dutchy of Normandy stood in Conjunction under one Governor.

2. What Evidence we have touching the Laws of Normandy, and of their Agreement with ours.

3. Wherein consists that Parity or Disparity of the English and Norman Laws.

4. What might be reasonably judged to be the Reason and Foundation of that Likeness, which is to be found between the Laws of both Countries.

First, Touching the Conjunction under one Governor of England and Normandy, we are to know, That the Kingdom of England and Dutchy of Normandy were de facto in Conjunction under these Kings, viz. William I, William 2, Henry I, King Stephen, Henry 2, and Richard I who, dying without Issue, left behind him Arthur Earl of Britain, his Nephew, only Son of Geoffry Earl of Britain, second Brother of Richard I and John the youngest Brother to Richard I who afterward became King of England by usurping the Crown from his Nephew Arthur. But the Princes of Normandy still adhered to Arthur, “sicut Domino Ligeo suo dicentes Judicium & Consuetudinem esse illarum Regionum ut Arthurus Filius, Fratris Senioris in Patrimonio sido debito & haereditate Avunculo suo succedat eodem jure quod Gaulfridus Pater ejus esset habiturus si Regi Richardo defuncto supervixisset.”

And therein they said true, and the Laws of England were the same, Witness the Succession of Richard 2 to Edward 3 also the Laws of Germany, and the ancient Saxons were accordant hereunto; and it was accordingly decided in a Trial by Battle, under Otho the Emperor, as we are told by Radulphus, de Diceto sub Anno 945. And such are the Laws of France to this Day, Vide Chopimus de Domanio Franciae, Lib. 2. Tit. 12. and such were the ancient Customs of the Normans, as we are told by the Grand Contumier, cap. 99. And such is the Law of Normandy, and of the Isles of Jersey and Guernsey (which some Time were Parcel thereof) at this Day, as is agreed by Terrier, the best Expositor of their Customs, Lib. 2. cap. 2. And so it was adjudg’d within my Remembrance in the Isle of Jersey, in a Controversy there, between John Perchard and John Rowland, for the Goods and Estate of Peter Perchard.

But nevertheless, John the Uncle of Arthur came by Force and Power, Et Rotomagum Gladio Diucatus Normanniae accinctus est Per Ministerium Kotomagensis Archiepiscopi, as Mat. Paris says; and shortly after also usurped the Crown of England, and imprisoned his Nephew Arthur, who died in the year 1202, being as was supposed murthered by his said Uncle, Vide Mat. Paris, in fine Regni Regis Rici’ Primi, and Walsingham in his Ypodigma Neustriae sub eodem Anno 1202.

And to countenance his Usurpation in Normandy, and to give himself the better Pretence of Title, he by his Power so far prevailed there, that he obtained a Change of the Law there, purely to serve his Turn, by transferring the Right of Inheritance from the Son of the elder Brother to the younger Brother, as appears by the Grand Contumier, cap. 99. But withal, the Gloss takes Notice of it as an Innovation, and brought in by Men of Power, tho’ it mentions not the particular Reason, which was aforesaid.

The King of France (of whom the Dutchy of Normandy was holden) highly resented the Injury done by King John to his Nephew Arthur, who, as was strongly suspected, came not fairly to his End. He summoned King John as Duke of Normandy into France, to give an Account of his Actions, and upon his Default of appearing, he was by King Philip of France forejudged of the Said Dutchy, Vide Mat. Paris, in initio Regni Johannis; and this Sentence was so effectually put in Execution, that in the year 1204, Mat Paris tells us, “Tota Normannia, Turania Andegavia, & Pictavia cum Civitatibus & Castellis & Rebus aliis praeter Rupellam, Toar, & Mar Castellam sunt in Regis Francorum Dominium devoluta.”

But yet he retained, tho’ with much Difficulty, the Islands of Jersey and Guernsey, and the uninterrupted Possession of some Parts of Normandy for some Time after, and both he and and his Son King Hen. 3 kept the Stile and Title of Dukes of Normandy, &c. ’till the 43d year of King Hen. 3 at which Time for 3000 Livres Tournois, and upon some other Agreements, he resigned Normandy and Anjou to the King of France, and never afterwards used that Title, as appears by the Continuation of Mat. Paris, sub Anno 1260, only the four Islands, some Time Parcel of Normandy, were still, and to this Day, are enjoyed by the Crown of England, viz. Jersey, Guernsey, Sarke, and Aldernay, tho’ they are still governed under their ancient Norman Laws.

Secondly, As to the Second Enquiry, What Evidence we have touching the Laws of Normandy: The best, and indeed only common Evidence of the ancient Customs and Laws of Normandy, is that Book which is called, The Grand Contumier of Normandy, which in later years has been illustrated, not only with a Latin and French Gloss, but also with the Commentaries of Terrier, a French Author.

This Book does not only contain many of the ancienter Laws of Normandy, but most plainly it contains those Laws and Customs which were in Use here in the Time of King Hen. 2, King Rich. I and King John, yea, and such also as were in Use and Practice in that Country after the Separation of Normandy from the Crown of England; for we shall find therein, in their Writs and Processes, frequent Mention of King Rich. I and the entire Text of the 110th Chapter thereof is an Edict of Philip King of France, after the Severance of Normandy from the Crown of England. (I speak not of those additional Edicts which are annex’d to that Book of a far later Date.) So that we are not to take that Book as a Collection of the Laws of Normandy, as they stood before the Accession or Union thereof to the Crown of England; but as they stood long after, under the Time of those Dukes of Normandy that succeeded William I and it seems to be a Collection made after the Time of K. Hen. 3 or at least after the Time of K. John, and consequently it states their Laws and Customs as they stood in Use and Practice about the Time of that Collection made, which observation will be of Use in the ensuing Discourse.

Thirdly, Touching the Third Particular, viz. The Agreement and Disparity of the Laws of England and Normandy. It is very true, we shall find a great Suitableness in their Laws, in many Things agreeing with the Laws of England, especially as they stood in the Time of King Hen. 2 the best Indication whereof we have in the Collection of Glanville; the Rules of Discents, of Writs, of Process, of Trials, and some other Particulars, holding a great Analogy in both Dominions, yet not without their Differences and Disparities in many Particulars, viz.

First, Some of those Laws are such as were never used in England; for Instance, There was in Normandy a certain Tribute paid to the Duke, called Monya, i. e. a certain Sum yielded to him (in Consideration that he should not alter their Coin) payable every three years, Vide Contumier, cap. 15. But this Payment was never admitted in England; indeed it was taken for a Time, but was ousted by the first Law of King Hen. 1 as an Usurpation. Again, by the Custom of Normandy, the Lands descended to the Bastard Eigne, born before Marriage of the same Woman, by whom the same Man had other Children after Marriage, Contumier, cap. 27. But the Laws of England were always contrary, as appears by Glanville, Lib. 7. cap. 13. And the Statute of Merton, which says, Nolumus Leges Anglicans Mutare, &c. Again, by the Laws of Normandy, if a Man died without Issue, or Brother, or Sister, the Lands did descend to the Father, Contumier, cap. 15. Terrier, cap. 2. But in England, this Law seems never to have been used.

2dly, Again, Some Laws were used in Normandy, which were in Use in England long before the supposed Norman Conquest, and therefore could in no Possibility have their original Force, or any binding Power here upon that Pretence: For Instance, it appears by the Custumier of Normandy, that the Sheriff of the County was an Annual Officer, and so ’tis evident he was likewise in England before the Conquest: And among the Laws of Edward the Confessor, it is provided, “Quod Aldermanni in Civitatibus eandem habeant Dignitatem qualem habent Ballivi hundredorum in Ballivis suis sub Vicecomitem”: Again, Wreck of the Sea, and Treasure Trove was a Prerogative belonging to the Dukes of Normandy, as appears by the Contumier, cap. 17, & 18. and so it was belonging to the Crown of England before the Conquest, as appears by the Charter of Edward the Confessor to the Abby or Ramsey of the Manor of Ringstede, cum toto ejectu Maris quod Wreccum dicitur, and the like, vide ibid. of Treasure Trove, & vide the Laws of Edward the Confessor, cap. 14. So Fealty, Homage, and Relief, were incident to Tenures by the Laws of Normandy, Vide Contumier, cap. 29. And so they were in England before the Conquest, as appears by the Laws of Edward the Confessor, cap. 35. and the Laws of Canutus, mentioned by Brompton cap. 8. So the Trial by Jury of Twelve Men was the usual Trial among the Normans in most Suits, especially in Assizes, & Juris Utrums, as appears by the Contumier, cap. 92, 93, & 94. and that Trial was in Use here in England before the Conquest, as appears in Brompton among the Laws of King Elthred, cap. 3. which gives some Specimen of it, viz. “Habeant placita in singulis Wapentachiis & exeant Seniores duodecim Thani vel Praepositus cum iis & jurent quod neminem innocentem accusare nec Noxium concelare.”

3dly, Again, In some Things, tho’ both the Law of Normandy and the Law of England agreed in the Fact, and in the Manner of Proceeding, yet there was an apparent Discrimination in their Law from ours: As for Instance, The Husband seized in Right of the Wife, having Issue by her, and she dying, by the Custom of Normandy he held but only during his Widowhood, Contiumier, cap. 119. But in England, he held during his Life by the Curtesy of England.

4thly, But in some Things, the Laws of Normandy agreed with the Laws of England, especially as they stood in the Times of Hen. 2 and Rich. I so that they seem to be as it were Copies or Counterparts one of another; tho’ in many Things, the Laws of England are since changed in a great Measure from what they then were? For Instance, at this Day in England, and for very many Ages past, all Lands of Inheritance, as well Socage Tenures, as of Knights Service, descend to the eldest Son, unless in Kent and some other Places where the Custom directs the Descent to all the Males, and in some places to the youngest; but the ancient Law used in England, though it directed Knights Services and Serjeanties to descend to the eldest Son, yet it directed Vassalagies and Soccage Lands to descend to all the Sons, Glanvil. Lib. 7. cap. 3. and so does the Laws of Normandy to this Day. Vide Contumier, cap. 26. & post hic, cap. 11.

Again. Leprosy at this Day does not impede the Descent; but by the Laws in Use in England, in the elder Times, unto the Time of King John, and for some Time afterwards, Leprosy did impede the Descent, as Placito Quarto Johannis, in the Case of W. Fulch, a Judge of that Time, and accordingly were the Laws of Normandy. Vide Le Contumier, cap. 27.

Again. At this Day, by the Law of England, in Cases of Trials by Twelve Men, all ought to agree, and any one dissenting, no Verdict can be given; but by the Laws of Normandy, tho’ a Verdict ought to be by the concurring Consent of Twelve Men, yet in Case of Dissent or Disagreement of the Jury, they used to put off the lesser Number that were Dissenters, and added a kind of Tales equal to the greater Number so agreeing, until they had got a Verdict of Twelve Men that concurred, Contumier, c. 95. And we may find some ancient Footsteps of the like Use here in England, tho’ long since antiquated, Vide Bracton, Lib. 4. cap. 19. where he speaks thus,

Contingit etiam multotiens quod Juratores in veritate dicenda sunt sibi contrarii ita quod in unam concordare non possunt sententiam, Quo casu de Consilio Curiae affortietur Assisa, ita quod apponantur alii juxta numerum majoris partis quae dissenserit, vel saltem quatuor vel sex & adjungantur aliis, vel etiam per seipsos sine aliis, de veritate discutiant & judicent, & per se respondeant & eorum veredictum allocabitur & tenebitur cum quibus ipsi convenirent.

Again. At this Day, by the Laws of England, a Man may give his Lands in Fee-simple, which he has by Descent, to any one of his Children, and disinherit the rest: But by the ancient Laws used here, it seems to be otherwise; as Mich. 10. Johannis Glanv. Lib. 7. cap. 2. the Case of William de Causeia. And accordingly were the Laws of Normandy, as we find in the Grand Contumier, cap. 36. “Quand le Pere avoit plusieurs fills, ils ne peut fairde de son Heritage le un Meillenr que le auter”; and yet it seems to this Day, in England, it holds some Resemblance in Cases of Frank-Marriage, viz. That the Doness, in Case she will have any Part of her Father’s other Lands, ought to put her Lands in Hochpot.

Again, By the Law of England, the younger Brother shall not exclude the Son of the elder, who died in the Life-time of the Father: And this was the ancient Law of Normandy, but received some Interruption in Favour of King John’s Claim, Vide Contumier. cap. 25. & hic ante; and indeed, generally the Rule of Descents in Normandy was the same in most Cases with that of Descents with us at this Day; as for Instance, That the Descent of the Line of the Father shall not resort to that of the Mother, Et e converso; and that the Course was otherwise in Cases of Purchases. But in most Things the Law of Normandy was consonant to the Law with us, as it was in the Time of King Richard I and King John; except in Cases of Descents to Bastard eigne, excluding Mulier Puisne, as aforesaid.

Again, at this Day there are many Writs now in Use which were anciently also in Use here, as well as in Normandy: As Writs of Rights, Writs of Dower, Writs De novel Desseisin, de Mortdancestor, Juris utrum, Darrein presentment, &c. And some that are now out of Use, though anciently in Use here in England; as Writs De Feodo vel Vado, De Feodo vel Warda, &c. All which are taken notice of by Glanville, Lib. 13. cap. 28, 29. And the very same Forms of Writs in Effect were in Use in Normandy, as appears by the Contumier Per Totum, and the Writ De Feodo vel Vado, (ibid. cap. 11.) according to Glanville, Lib. 13. cap. 27. runs thus, viz.

Rex Vicecomiti salutem: Summone per bonos summonitores duodenim liberos & legales homines de vicineto quod sint coram me vel Justiciis meis eo die parati Sacramento Recognoscere utrum N. teneat unam Carucatem Terrae in illa villa quae R. clamat versus eum per Breve meum in Feodo an in vadio, invadiatem ei ab ipso R. vel ab H. antecessore ejus, (vel aliter si sit Feodam vel haereditas ipsius N. an in vadio invadiata ei ab ipso R. vel ab H. &c. Et interim terram illam videant, &c. (Vide ibid.)

And according to the Grand Contumier, that Writ runs thus, viz.

Si Rex fecerit te securum de clamore suo prosequend’ summoneas Recognitores de Viceneto quod sint ad primas Assisas Ballivae, ad cognoscendum utrum Carucata Terrae in B. quod. G. deforceat R. sit Feodum tenentis vel vadium novum dictum per manus G. post Coronationem Regis Richardi & pro quanta, & utrum sit propinquior Haeres ad redimendum vadium, & videatur interum Terrae, &c.

So that there seems little Variance, either in the Nature or in the Form of those Writs used here in the Time of Henry 2. And those used in Normandy when the Contumier was made.

Again, The Use was in England, to limit certain notable Times, within the Compass of which those Titles which Men design’d to be relieved upon, must accrue: Thus it was done in the Time of Henry 3 by the Statute of Merton, cap. 8. at which Time the Limitation in a Writ of Right was from the Time of King Henry I and by that Statute it is reduced to the Time of King Henry 2 and for Assizes of Mortdancestor they were thereby reduced from the last Return of King John out of Ireland, which was 12 Johannis, and for Assizes of Novel Disseisin, a Prima Transfretatione Regis in Normanniam, which was 5 Hen. 3 and which before that had been Post ultimum redditum Henricus 3 de Britannia, as appears by Bracton. And this Time of Limitation was also afterwards, by the Statutes of Westm. I. cap. 39. and West. 2. cap. 2. 46. reduced unto a narrow Scantlet, the Writ of Right being limited to the First Coronation of King Richard I.

But before the Limitation set by that Statute of Merton, there were several Limitations set for severals Writs; for we find among the Pleas of King John’s Time, the Limitation of Writs, De Tempore quo Rex Henricus avus noster fuit vivus & Mortuus; and in a Writ of Aile, Die quo Rex Henricus obiit in the Time of Henry 2. as appears by Glanville, Lib. 13. cap. 3. there were then divers Limitations in Use, as in Moridancestors, Post Prima Coronationem nostram, viz. Henrici secundi, Glanvil. Lib. I. cap. I and touching Assizes of Novel Disseisin, Vide ibid. cap. 32. where he tells us, Cium quis intra Assisam, &c. And the Time of Limitation in an Assize, was then post ultimdm meam Transfretationem, (viz. Henrici Primi) in Normanniam, Lib. 13. cap. 33. But in a Writ of Right, as also in a Writ of Customs and Services, it was de Tempore Regis Henrici avi mei, viz. Hen. I. vid. ib. Lib. 12. cap. 10, 16. and it seems very apparent, that the Limitations anciently in Normandy, for all Actions Ancestral was Post Primam Coronaiionem Regis Henrici fecundi, as appears expresly in the Contumier, cap. 111. De Feofe & Gage.

So that anciently the Time of Limitation in Normandy was the same as in England, and indeed borrowed from England, viz. In all Actions Ancestrel from the Coronation of Henry 2. And thus in those Actions wherein the Limitation was anciently from the Coronation of King Richard I was substituted as in the Writ De Feofe & Gage, in the Contumier, cap. 111. De Feofe & Forme, cap. 112. In the Writ De Ley Apparisan, ib. cap. 24. & cap. 22. “Ascun Gage ne peut estre requise en Normandy, si il ne suit engage post le Coronement de Roy Richard ou deins quarante annus”: So that the old Limitation, as well for the Redemption of Mortgages, as for bringing those Writs above-mentioned, was post Coronationem Regis Henrici Secundi; but altered, as it seems, by King Philip, the Son of Lewis King of France, after King John’s Ejectment out of Normandy, and since the Time from the Coronation of King Richard I is estimated to bear Proportion to 40 years. It is probable this Change of the Limitation by King Philip of France, was about the Beginning of the Reign of King Henry 3 or about 30 or 40 years after the Coronation of Richard I from whose Coronation about 30 years were elapsed, 5 aut. 6 Henrici 3 for anciently the Limitation in this Case was 30 years.

Fourthly, I now come to the Fourth Inquiry, viz. How this great Parity between the Laws of England and Normandy came to be effected; and before I come to it, I shall premise Two Observables, which I would have the Reader to carry along with him through the whole Discourse, viz. First, That this Parity of Laws does not at all infer a Necessity, that they should be imposed by the Conqueror, which is sufficiently shewn in the foregoing Chapters; and in this it will appear that there were divers other Means that caused a Similitude of both Laws, without any Supposition of imposing them by the Conqueror. Secondly, That the Laws of Normandy were in the greater Part thereof borrowed from ours, rather than ours from them, and the Similitude of the Laws of both Countries did in greater Measure arise from their Imitation of our Laws, rather than from our Imitation of theirs, though there can’t be denied a Reciprocal Imitation of each others Laws was, in some Measure at least, had in both Dominions: And these Two Things being premised, I descend to the Means whereby this Parity or Similitude of the Laws of both Countries did arise, as follow, viz.

First, Mr Camden and some others have thought, there was ever some Congruity between the ancient Customs of this Island and those of the Country of France, both in Matters Religious and Civil; and tells us of the ancient Druids, who were the common Instructors of both Countries. Gallia Causidicos docuit facunda Britannos: And some have thought, that anciently both Countries were conjoined by a small Neck of Land, which might make an easier Transition of the Customs of either Country to the other; but those Things are too remote Conjectures, and we need them not to solve the Congruity of Laws between England and Normandy. Therefore,

Secondly, It seems plain, that before the Normans coming in Way of Hostility, there was a great Intercourse of Commerce and Trade, and a mutual Communication, between those Two Countries; and the Consanguinity between the Two Princes gave Opportunities of several Interviews between them and their Courts in each others Countries: And it is evident by History, that the Confessor, before his Accession to the Crown, made a long Stay in Normandy, and was there often, which of Consequence must draw many of the English thither, and of the Normans hither; all which sight be a Means of their mutual Understanding of the Customs and Laws of each others Country, and gave Opportunities of Incorporating and ingrafting divers of them into each other, as they were found useful or convenient; and therefore the Author of the Prologue to the Grand Custumier thinks it more probable, That the Laws of Normandy were derived from England, than that ours were derived from thence.

Thirdly, ‘Tis evident, that when the Duke of Normandy came in, he brought over a great Multitude, not only of ordinary Soldiers, but of the best of the Nobility and Gentry of Normandy; hither they brought their Families, Language and Customs, and the Victor used all Art and Industry to incorporate them into this Kingdom: And the more effectually to make both People become one Nation, he made Marriages between the English and Normans, transplanting many Norman Families hither, and many English Families thither; he kept his Court sometimes here, and sometimes there; and by those Means insensibly derived many Norman Customs hither, and English Customs thither, without any severe Imposition of Laws on the English as Conqueror: And by this Method he might easily prevail to bring in, even without the Peoples Consent, some Customs and Laws that perhaps were of Foreign Growth; which might the more easily be done, considering how in a short Time the People of both Nations were intermingled; they were singled in Marriages, in Families, in the Church, in the State, in the Court, and in Councils; yea, and in Parliaments in both Dominions, though Normandy became, as it were, an Appendix to England, which was the nobler Dominion, and received a greater Conformity of their Laws to the English, than they gave to it.

Fourthly, But the greatest Means of the Assimilation of the Laws of both Kingdoms was this: The Kings of England continued Dukes of Normandy till King John’s Time, and he kept some Footing there notwithstanding the Confiscation thereof by the King of France, as aforesaid; and during all this Time, England, which was an absolute Monarch, had the Prelation or Preference before Normandy, which was but a Feudal Dutchy, and a small Thing in respect of England; and by this Means Normandy became, as it were, an Appendant to England, and successively received its Laws and Government from England; which had a greater Influence on Normandy than that could have on England; insomuch that oftentimes there issued Precepts into Normandy to summon Persons there to answer in Civil Causes here; yea, even for Lands and Possessions in Normandy; as Placito 1 Johannis, a Precept issued to the Seneschal of Norsandy, to summon Robert Jeronymus, to answer to John Marshal, in a Plea of Land, giving him 40 Days Warning; to which the Tenant appeared, and pleaded a Recovery in Normandy: And the like Precept issued for William de Bosco, against Jeoffry Rusham, for Lands in Corbespine in Normandy.

And on the other Side, Trin. 14 Johannis, in a Suit between Francis Borne and Thomas Adorne, for certain Lands in Ford. The Defendant pleaded a Concord made in Normandy in the Time of King Richard I upon a Suit there before the King, for the Honour of Bonn in Normandy, and for certain Lands in England, whereof the Lands in Question were Parcel, before the Seneschal of Normandy, Anno 1099. But it was excepted against, as an insufficient Fine, and varying in Form from other Fines; and therefore the Defendant relied upon it as a Release.

By these, and many the like Instances, it appears as follows, viz.

First, That there was a great Intercourse between England and Normandy before and after the Conqueror, which might give a great Opportunity of an Assimilation and Conformity of the Laws in both Countries. Secondly, That a much greater Conformation of Laws arose after the Conqueror, during the Time that Normandy was enjoyed by the Crown of England, than before. And Thirdly, That this Similitude of the Laws of England and Normandy was not by Conformation of the Laws of England to those of Normandy, but by Conformation of the Laws of Normandy to those of England, which now grew to a great Height, Perfection and Glory; so that Normandy became but a Perquisite or Appendant of it.

And as the Reason of the Thing speaks it, so the very Fact itself attests it. For

First, It is apparent, That in Point of Limitation in Actions Ancestral, from the Time of the Coronation of King Henry 2 it was anciently so here in England in Glanville’s Time, and was transmitted from hence into Normandy; for it is no way reasonable to suppose the contrary, since Glanville mentions it to be enacted here, Concilio procerum; and though this be but a single Point, or Instance, yet the Evidence thereof makes out a Criterion, or probable Indication, that many other Laws were in like Manner so sent hence into Normandy.

Secondly, It appears, That in the Succession of the Kings of England, from King William I to King Henry 2 the Laws of England received a great Improvement and Perfection, as will plainly appear from Glanville’s Book, written in the Time of King Henry 2 especially if compared with those Sums or Collections of Laws, either of Edward the Confessor, William I or Henry I whereof hereafter.

So that it seems, by Use, Practice, Commerce, Study and Improvement of the English People, they arrived in Henry 2d’s Time to a greater Improvement of the Laws; and that in the Time of King Richard I and King John, they were more perfected, as may be seen in the Pleadings, especially of King John’s Time: And tho’ far inferior to those of the Times of Succeeding Kings, yet they are far more regular and perfect than those that went before them. And now if any do but compare the Contumier of Normandy, with the Tract of Glanville, he will plainly find that the Norman Tract of Laws followed the Pattern of Glanville, and was writ long after it, when possibly the English Laws were yet more refined and more perfect; for it is plain beyond Contradiction, that the Collection of the Customs and Laws of Normandy was made after the Time of King Henry 2, for it mentions his Coronation, and appoints it for the Limitation of Actions Ancestrel, which must at least be 30 years after; nay, the Contumier appears to have been made after the Act of Settlement of Normandy in the Crown of France; for therein is specified the Institution of Philip King of France, for appointing the Coronation of King Richard I for the Limitation of Actions which was after the said Philip’s full Possession of Normandy.

Indeed, if those Laws and Customs of Normandy had been a Collection of the Laws they had had there before the coming in of King William I, it might have been a Probability that their Laws, being so near like ours, might have been transplanted from thence hither; but the Case is visibly otherwise, for the Contumier is a Collection after the Time of King Richard I, yea, after the Time of King John, and possibly after Henry 3d’s Time, when it had received several Repairings, Amendments and Polishings, under the several Kings of England, William I, William 2, Henry I, King Steven, Henry 2, Richard I, and King John; who were either knowing themselves in the Laws of England, or were assisted with a Council that were knowing therein.

And as in this Tract of Time the Laws of England received a great Advance and Perfection, as appears by that excellent Collection of Glanville, written even in Henry 2’s Time, when yet there were near 30 years to acquire unto a further Improvement before Normandy was lost; so from the Laws of England thus modelled, polished and perfected, the same Draughts were drawn upon the Laws of Normandy, which received the fairest Lines from the Laws of England, as they stood at least in the Beginning of King John’s Time, and were in Effect in a great Measure the Defloration of the English Laws, and a Transcript of them, though mingled and interlarded with many particular Laws and Customs of their own, which altered the Features of the Original in many Points.

VII. Concerning the Progress of the Laws of England after the Time of King William I, until the Time of King Edward 2

That which precedes in the Two foregoing Chapters, gives us some Account of the Laws of England, as they stood in and after the great Change which happened under King William I commonly called The Conqueror. I shall now proceed to the History thereof in the ensuing Times, until the Reign of King Edward 2.

William I having Three Sons; Robert the eldest, William the next, and Henry the youngest, disposed of the Crown of England to William his second Son, and the Dutchy of Normandy to Robert his eldest Son; and accordingly William 2 commonly called, William Rufus, succeeded his Father in this Kingdom. We have little memorable of him in relation to the Laws, only that he severely press’d and extended the Forest Laws.

Henry I, Son of William I and Brother of William 2 succeeded his said Brother in the Kingdom of England, and afterwards expelled his eldest Brother Robert out of the Dutchy of Normandy also. He proceeded much in the Benefit of the Laws, viz.

First, He restored the Free-Election of Bishops and Abbots, which before that Time he and his Predecessors invested, Per Anniulum & Bacculum; yet reserving those Three Ensigns of the Patronage thereof, viz. Conge d’Eslire, Custody of the Temporalties, and Homage upon their Restitution. Vide Hoveden, in Vita sua.

But Secondly, The great Essay he made, was the composing an Abstract or Manual of Laws, wherein he confirm’d the Laws of Edward the Confessor, Cum illis Emendationibus quibus eam Pater meus emendavit Baronum suorum Concilio; and then adds his own Laws, some whereof seem to taste of the Canon Law. The whole Collection is transcribed in the Red Book of the Exchequer; from whence it is now printed in the End of Lambard’s Saxon Laws; and therefore not needfull to be here repeated.

They, for the most Part, contain a Model of Proceedings in the County Courts, the Hundred Courts, and the Courts Leet; the former to be held Twelve Times in the Year, the latter twice; and also of the Courts Baron. These were the ordinary usual Courts, wherein Justice was then, and for a long Time after, most commonly administred; also they concern Criminal Proceedings, and the Punishment of Crimes, and some few Things touching Civil Actions and Interests, as in Chapter 70, directing Descents, viz.

Si quis sine Liberis decesserit Pater aut Mater ejus in Hereditatem succedant, vel Frater vel Soror, si Pater & Mater desint; si nec hos habeat, Frater vel Soror Patris vel Matris, & deinceps in quintum Genetalium, qui cum propiores in parentela sint hereditario Jure succedant; Et dum virilis sexus extiterit & haereditas ab inde sit Femina non haereditetur; primum Patris Feodum primogenitus Filius habeat. Emptiones vero & deinceps Acquisitiones det cui magis velit, sed si Bockland habeat quam ei Parentes dederint, Mittat eam extra cognationem suam.

I have observ’d and inserted this Law, for Two Reasons, viz. First, To justify what I before said, That the Laws of Normandy took the English Laws for their Pattern in many Things; Vide le Contumier, cap. 25, 26, 36, &c. And Secondly, To see how much the Laws of England grew and increased in their Particularity and Application between this Time and the Laws of William I which in Chapter 36, has no more touching Descents but this, viz. Si quis intestatus obierit, liberi ejus haereditatem equsliter dividant. But Process of Time grafted thereupon, and made particular Provisions for particular Cases, and added Distributions and Subdivisions to those General Rules.

These Laws of King Henry I are a kind of Miscellany, made up of those ancient Laws, called, The Laws of the Confessor, and King William I and of certain Parts of the Canon and Civil Law, and of other Provisions, that Custom and the Prudence of the King and Council had thought upon, chosen, and put together.

King Stephen succeeded, by Way of Usurpation, upon Maud the sole Daughter and Heir of King Hen. I. The Laws of Hen. I grew tedious and ungrateful to the People, partly because new, and so not so well known, and partly because more difficult and severe than those ancient Laws, called, The Confessor’s; for Walsingham, in his Ypodigma Neustriae, tells us, That the Londoners petitioned Queen Maud, ut liceret eis uti Legibus sancti Edvardi & non legibus Patris sui Henrici, quia graives erant,. and that her Refusal gave Occasion to their Defection from her, and strengthened Stephen in his Usurpation; who according to the Method of Usurpers, to secure himself in the Throne, was willing and ready to gratify the Desires of the People herein; and furthermore, took his Oath, 1st, That he would not retain in his Hands the Temporalties of the Bishops: 2dly, That he would remit the Severity of the Forest Laws; and 3dly, That he would also remit the Tribute of Danegelt: But he performed nothing.

His Times were troublesome, he did little in relation to the Laws; nor have we any Memorial of any Record touching his Proceedings therein, only there are some few Pipe Rolls of his Time, relating to the Revenue of the Crown.

Henry 2, the Son of Maud, succeeded Stephen, he reigned long, viz. about Thirty Five Years; and tho’ he was not without great Troubles and Difficulties, yet he built up the Laws and the Dignity of the Kingdom to a great Height and Perfection. For,

First, In the Entrance of his Government he settled the Peace of the Kingdom; he also reformed the Coin, which was much adulterated and debased in the Times and Troubles of King Stephen, Et Leges Henrici avi sui praecepit per totum Regnum inviolabiliter observari. Hoveden.

Secondly, Against the Insolencies and Usurpations of the Clergy. he by the Advice of his Council or Parliament at Clarendon, enacted those Sixteen Articles mentioned by Mat. Paris, sub Anno 1164. They are long, and therefore I remit you thither for the Particulars of them.

‘Tis true, Thomas Becket, Archbishop of Canterbury, boldly and insolently took upon him to declare many of those Articles void, especially those Five mentioned in his Epistle to Suffragans, recorded by Hoveden, viz. 1st, That there should be no Appeal to the Bishop without the King’s Licence. 2dly, That no Archbishop or Bishop should go over the Seas at the Pope’s Command without the King’s Licence. 3dly, That the Bishop should not excommunicate the King’s Tenants in Capite without the King’s Licence. 4thly, That the Bishop should not have the Conuzance of Perjury, or Fidei Laesionis. And, 5thly, That the Clergy should be convened before Lay Judges, and that the King’s Courts should have Conuzance of Churches and of Tythes.

Thirdly, He raised up the Municipal Laws of the Kingdom to a greater Perfection, and a more orderly and regular Administration than before; ’tis true, we have no Record of judicial Proceedings so ancient as that Time, except the Pipe Rolls in the Exchequer, which are only Accounts of his Revenue: But we need no other Evidence hereof than the Tractate of Glanville, which tho’ perhaps it was not written by that Ranulphus de Glanvilla, who was Justitiarius Angliae under Hen. 2, yet it seems to be wholly written at that Time; and by that Book, tho’ many Parts thereof are at this Day antiquated and altered, and in that long Course of Time, which has elapsed since that King’s Reign, much enlarged, reformed, and amended; yet by comparing it with those Laws of the Confessor and Conqueror, yea, and the Laws of his Grandfather King Hen. I which he confirmed; it will easily appear, that the Rule and Order, as well as the Administration of the Law, was greatly improved beyond what it was formerly, and we have more Footsteps of their Agreement and Concord herein with the Laws, as they were used from the Time of Edw. I and downwards, than can be found in all those obsolete Laws of Hen. I which indeed were but disorderly, confused and general Things, rather the Cases and Shells of directing the Way of Administration than Institutions of Law, if compared with Glanville’s Tractate of our Laws.

Fourthly, The Administration of the Common Justice of the Kingdom, seems to be wholly dispensed in the County Courts, Hundred Courts, and Courts Baron, except some of the greater Crimes reformed by the Laws of King Hen. I and that Part thereof which was sometimes taken up by the Justitiarius Anglicae: This doubtless bred great Inconvenience, Uncertainty, and Variety in the Laws, viz.

First, by the Ignorance of the Judges, which were the Freeholders of the County: For altho’ the Alderman or Chief Constable of every Hundred was always to be a Man learned in the Laws; and altho’ not only the Freeholders, but the Bishops, Barons, and great Men, were by the Laws of King Hen. I appointed to attend the County Court; yet they seldom attend there, or if they did, in Process of Time they neglected the Study of the English Laws, as great Men usually do.

Secondly, Another Inconvenience was, That this also bred great Variety of Laws, especially in the several Counties: For the Decisions or Judgments being made by divers Courts, and several Independent Judges and Judicatories, who had no common Interest among them in their several Judicatories, thereby in Process of Time every several County would have several Laws, Customs, Rules, and Forms of Proceeding, which is always the Effect of several Independent Judicatories administred by several Judges.

Thirdly, A Third Inconvenience was, That all the Business of any Moment was carried by Parties and Factions: For the Freeholders being generally the Judges, and Conversing one among another, and being as it were the Chief Judges, not only of the Fact, but of the Law; every Man that had a Suit there, sped according as he could make Parties; and Men of great Power and Interest in the County did easily overbear others in their own Causes, or in such wherein they were interested, either by Relation of Kindred, Tenure, Service, Dependance, or Application.

And altho’ in Cases of false Judgment, the Law, even as then used, proved a Remedy by Writ of false Judgment before the King or his Chief Justice; and in Case the Judgment was found to be such in the County Court, all the Suiters were considerably amerced, (which also continued long after in Use with some Severity) yet this proved but an ineffectual Remedy for those Mischiefs.

Therefore the King took another and a more effectual Course; for in the 22d Year of his Reign, by Advice of his Parliament held at Northampton, he instituted Justices itinerant, dividing the Kingdom into Six Circuits, and to every Circuit allotting Three Judges, Knowing or Experienced in the Laws of the Realm: These Justices with their several Circuits are declared by Hoveden, sub eodem Anno, i. e. 22 H. 2. viz.

1. Hugo Cressy, Walterus filius Roberti, & Robertus Maunsel, for Norfolk, Suffolk, Cambridge, Huntingdon, Bedford, Buckingham, Essex, and Hartford Counties.

2. Hugo de Gundevilla, W. filius Radulphi, & W. Basset, for Lincoln, Nottingham, Derby, Stafford, W arwick, Northampton, and Leicester Counties.

3. Robertus filius Bernardi, Richardus Giffard, & Rogerus filius Ramfrey, for Kent, Surrey, Sussex, Hampshire, Berks, and Oxon Counties.

4. W. filius Stephani, Bertein de Verdun, & Turstavi filius Simonis, for Hereford, Gloucester, Worcester, and Salop Countries.

5. Radulphus filius Stephani, W. Ruffus, & Gilbertus Pipard, for the Counties of Wilts, Dorset, Somerset, Devon, and Cornwall.

6. Robertus deWatts, Radulphus de Glanvilla, & Robertus Picknot, for the Counties of York, Richmond, Lancaster Copland, Westmorland, Northumberland, and Cumberland.

Hi, (Consilio Archiepiscoporum, Episcoporum, Comitum & Baronum Regni, &c. apud Nottingham existentium) missi sunt per singulos Angliae Comitatus & juraverunt quod cuilibet jus suum conservarent illae sum. Hoveden fo. 313. & Mat. Paris, in Anno 1176.

And that these Men were well known in the Law, appears by their Companion Radulphus de Glanvilla, who seems to be the Author of the Treatise De Legibus Angliae, and was afterwards made Justitiarius Angliae.

To those Justices, was afterwards committed the Conuzance of all Civil and Criminal Pleas happening within their Divisions, and likewise Pleas of the Crown, Pleas touching Liberties, and the King’s Rights; and the better to acquaint them with their Business, there were certain Assises which were first enacted at Clarendon, and afterwards confirmed at Northampton; they were not much unlike the Capitula ltineris mentioned in our old Magna Charta, but not so perfect, and are set down by Hoveden iubi supra, and are too long to be here inserted: I shall only take Notice of this one, viz. Establishing Descents, because I shall hereafter have Occasion to use it, Si quis obierit Francus Tenens haeredes ipsius remaneant in talem Seisina qualem Pater suus, &c.

But besides those Courts in Eyre, there were two great standing Courts, viz. The Exchequer, and the Court of Kings-Bench, Vel Curiam coram ipso Rege, vel ejus Justiciario; and it was provided by the above-mentioned Assisae, “Quod Justiciae faciant omnes Justicias & Rectitudines Spectantes ad Dominium Regis, & ad Coronam suam, per breve Domini Regis vel illorum qui in ejus Loco erunt de Feodo dimidii Militis & infra, Nisi tam grandis sit quaerela quod non possit deduci sine Domino Rege vel talis quam Justiciae ei reponunt pro dubitatione sua, vel ad illos qui in Loco ejus erunt,” &c.

Neither do I find any distinct Mention of the Court of Common Bench in the Time of this King, tho’ in the Time of King John there is often mention made thereof, and the Rolls of that Court of King John’s Time are yet extant upon Record, & vide post. sub Richardi Primi.

The Limitation of the Assise of Novel Disseisin, is by those Assises appointed to be, a tempore quo Dominus Rex venit in Angliam proximam post Pacis factam inter ipsum, & Regem filium suum.

The same King afterwards, in the Twenty fifth Year of his Reign, divided the Limits of his Itinerant Justices into Four Circuits or Divisions, and to each Circuit assigned a greater Number of Justices, viz. Five at least, which are thus set down in Hoveden, Folio 337. viz.

Anno 1179, 25 H. 2. Magno Concilio celebrato apud Windeshores, Communi Consilio Archiepiscoporum Comitum & Baronum & coram Rege Filio Suo, Rex divisit Angliam in quatuor Partes, & unicuique partium praefecit viros sapientes ad faciendum Justitiam in Terra sua in hunc Modum.

1. Ricardus-Episcopus Winton, Ricardus Thesaurarius Regis, Nicholaus filius Turoldi, Thomas Basset & Robertus de Whitefield, for the Counties of Southampton, Wilts, Gloucester, Somerset, Devon, Cornwall, Berks and Oxon.

2. Galfridus Eliensis Episcopus, Nicholaus Capellanus Regis, Gilbertus Pipard, Reginald de Wisebeck Capellanus Reges & Gaulfridus Hosce, for the Counties of Cambridge, Huntingdon, Northampton, Leicester, Warwick, Winchester, Hereford, Stafford and Salop.

3. Johannes Episcopas Norwicensis, Hugo Murdac Clericus Regis, Michael Bellet, Richardus de le Pec, & Radulphus Brito, for Norfolk, Suffolk, Essex, Hartford, Middlesex, Kent, Surrey, Sussex, Bucks and Bedford.

4. Galfredus de Luci, Johannes Comyn, Hugo de Gaerst, Radulphus de Glanvilla, W. de Bendings, Alanus de Furnellis, for the Counties of Nottingham, Derby, York, Northumberland, Westmorland, Cumberland, and Lancaster.

Isti sunt Justiciae in Curia Regis constituti ad audiendum clamores Populi.

This Prince did these Three notable Things, viz.

First, By this Means, he improved and perfected the Laws of England, and doubtless transferred over many of the English Laws into Normandy, which, as before is observed, caused that great Suitableness between their Laws and ours; so that the Similitude did arise much more by a Conformation of their Laws to those of England, than by any Conformation of the English Laws to theirs, especially in the Reigns of King Hen. 2 and his Two Sons, King Richard, and King John, both of whom were also Dukes of Normandy.

Secondly, He check’d the Pride and Insolence of the Pope and the Clergy, by those Constitutions made in a Parliament at Clarendon, whereby he restrained the Exorbitant Power of the Ecclesiasticks, and the Exemption they claimed from Secular Jurisdiction. And,

Thirdly, He subdued and conquered Ireland, and added it to the Crown of England, which Conquest was begun by Richard Earl of Stigule or Strongbow, 14 H. 2. But was perfected by the King himself in the Seventeenth Year of his Reign, and for the greater Solemnity of the Business, was ratified by the Fealties of the Bishops and Nobles of Ireland, and by a Bull of Confirmation from Pope Alexander, who was willing to interest himself in that Business, to ingratiate himself with the King, and to gain a Pretence for that arrogant Usurpation of disposing of Temporal Dominions, Vide Hoveden, Anno 14 H. 2.

Richard I eldest Son of King Henry 2 succeeded his Father. I have seen little of Record touching the Juridicial Proceedings, either of him, or his said Father, other than what occurs in the Pipe-Rolls in the Exchequer, which both in the Time of Hen. 2, Rich. I, and King John, and all the succeeding Kings, are fairly preserved; and the best Remembrances that we have of this King’s Reign in relation to the Law, are what Roger Hoveden’s Annals have delivered down to us, viz.

First, He instituted a Body of Naval Laws in his Return from the Holy Land, in the Island of Oleron, which are yet extant with some Additions; De quibus, Vide Mr Selden’s Mare Clausum, Lib. 2. cap. 24. and I suppose they are the same which are attributed to him by Mat. Paris, Anno 1196. and he constituted Justices to put them in Execution.

Secondly, He observed the same Method of distributing Justice as his Father had begun, by Justices Itinerant per singulos Angliae Comitatus, to whom he deliver two Kinds of Extracts or Articles of Inquiry, viz. Capitula Coronae, much reformed and augmented from what they were before, and Capitula de Judaeis; the whole may be read in Hoveden, fo. 423. sub Anno 5 R. I. and by those Articles it appears, That at that Time there was a settled Court for the Common-Pleas, as well as for the King’s Bench, tho’ it seems that Pleas of Land were then indifferently held in either, as appears by the first and second Articles thereof, where we have, Placita Per breve Domini Regis, vel Per breve Capitalis Justiciae, vel a Capitali Curia Regis coram eis (Justiciis) missa: The former whereof seems to be the Common-Pleas, which held Pleas by Original Writ, which Writ was under the King’s Teste when he was in England; but when he was beyond the Seas, it was under the Teste of the Justiciarius Angliae, as the Custos Regni in the King’s Absence.

The Power which the Justices Itinerant had to hold Pleas in Writs of Right, or the Grand Assize, was sometimes limited, as here by the Articuli Coronae under Hen. 2. to half a Knight’s Fee, or under: For here in these Articles it is, De Magnis Assisis quae sunt de centum Solidis & infra. But in the next Commissions, or Capitula Coronae, it is, De Magnis Assisis usque ad decem Libratas Terre & infra.

In his eighth Year, he established a Common Rule for Weights and Measures throughout England, called Assisa de Mensuris, wherein we find the Measure of Woollen Cloths was then the same with that of Magna Charta, 9 H. 3. viz. De diuobus ulnis infra Lisuras.

In the Year before his Death, the like Justices Errant went through many Counties of England, to whom Articles, or Capitiuls Placitorium Coronae, not much unlike the former were delivered. Vide Hoveden, sub Anno 1198. fo. 445.

And in the same Year, he issued Commissions in the Trent, Hugh de Neville being Chief Justice; and to those were also delivered Articles of Inquiry, commonly called Assisae de Foresta, which may be read at large in Hoveden, sub eodem Anno. These gave great Discontent to the Kingdom, for both the Laws of the Forest, and their Execution were rigorous and grievous.

King John succeeded his said Brother, both in the Kingdom of England, and Dutchy of Normandy; the Evidence that we have, touching the Progress of the Laws of his Time, are principally Three, viz. First. His Charters of Liberties. 2dly, The Records of Pleadings and Proceedings in his Courts; And 3dly, The Course he took for settling the English Laws in Ireland.

1. Touching the first of these, his Charters of the Liberties of England, and of the Forest, were hardly, and with Difficulty, gained by his Baronage at Stanes, Anno Dom. 1215. The Collection of the former was, as Mat. Paris tells us, upon the View of the Charter or Law of King Hen. I. which says, he contained “quasdam Libertates & Leges a Rege Edvardo Sancto, Ecclesiae & Magnatibus concessas, exceptis quibusdam Libertatibus quas idem Rex de suo adjecit”; and that thereupon the Baronage fell into a Resolution to have those Laws granted by King John. But as it is certain, that the Laws added by King Hen. I to those of the Confessor were many more, and much differing from his; so the Laws contained in the Great Charter of King John, differed much from those of King Hen. I. Neither are we to think, that the Charter of King John contained all the Laws of England, but only or principally such as were of a more comprehensive Nature, and concerned the Common Rights and Liberties of the Church, Baronage and Commonalty which were of the greatest Moment, and had been most invaded by King John’s Father and Brother.

The lesser Charter, or De Foresta, was to reform the Excesses and Encroachments which were made, especially in the Time of Rich. I and Hen. 2 who had made New Afforestations, and much extended the Rigour of the Forest Laws: And both these Charters do in Substance agree with that Magna Charta, & de Foresta, granted and confirm’d 9 Hen. 3. I shall not need to recite them, or to make any Collections or Inferences from them; they are both extant in the Red Book of the Exchequer, and in Mat. Paris, sub Anno 1215, and the Record and the Historian do Verbatim agree.

As to the Second Evidence we have of the Progress of the Laws in King John’s Time, they are the Records of Pleadings and Proceedings which are still extant: But altho’ this King endeavoured to bring the Law, and the Pleadings and Proceedings thereof, to some better Order than he found it; for saving his Profits whereof he was very studious, and for the better Reduction of it into Order and Method, we find frequently in the Records of his Time, Fines imposed, Pro Stultiloquio, which were no other than Mulcts imposed by the Court for barbarous and disorderly Pleading: From whence afterwards that Common Fine arose, Pro Pulchre Placitando, which was indeed no other than a Fine for want of it; and yet for all this, the Proceeding in his Courts were rude, imperfect, and defective, to what they were in the ensuing Times of Edw. I. &c. But some few Observables I shall take Notice of upon the Perusal of the Judicial Records of the Time of King John, viz.

1 st. That the Courts of King’s-Bench and Common-Pleas were then distinct Courts, and distinctly held from the Beginning to the End of King John’s Reign.

2dly, That as yet, neither one nor both of those Courts dispatch’d the Business of the Kingdom, but a great Part thereof was dispatch’d by the Justices Itinerant, which were sometimes in Use, but not without their Intermissions, and much of the Publick Business was dispatch’d in the County Courts, and in other inferior Courts; and so it continued, tho’ with a gradual Decrease till the End of King Edw. I, and for some Time after: And hence it was, That in those elder Times, the Profits of those County Courts for which the Sheriff answered in his Farm, de Proficuis Comitatus; also Fines were levied there, and post Fines, and Fines Pro licentia concordandi, and great Fines there answered; Fines Pro lnquisitionibus habendi, Fines for Misdeameanors, tho’ called Amerciaments, arose to great Sums, as will appear to any who shall peruse the ancient Viscontiels.

But, as I said before, the Business of Inferior Courts grew gradually less and less, and consequently their Profits and Business of any Moment came to the Great Courts, where they were dispatch’d with greater Justice and Equality. Besides, the greater Courts observing what Partiality and Brocage was used in the inferior Courts, gave a pretty quick Ear to Writs of false Judgment, which was the Appeal the Law allowed from erroneous Judgments in the County Courts; and this, by Degrees, wasted the Credit and Business of those inferior Courts.

3dly, That the Distinction between the King’s-Bench and Common-Bench, as to the Point of Communia Placita, was not yet, nor for some Time after, settled; and hence it is, that frequently in the Time of King John, we shall find that Common Pleas were held in B. R. yea, in Mich. & Hill. 13 Johannis, a Fine is levied coram iPso Rege, between Gilbert Fitz Roger and Helwise his Wife, Plaintiffs, and Robert Barpyard Tenant of certain Lands in Kirby, &c.

And again, whereas there was frequently a Liberty granted anciently by the Kings of England, and allowed, Quod non implacitetur nisi coram Rege, I find inter Placita de diversis Terminis secundo Johannis, That upon a Suit between Henry de Rochala, and the Abbot of Leicester before the Justices de Banco, the Abbot pleaded the Charter of King Richard I. Quod idem Abbas pro nullo respondeat nisi coram ipso Rege vel Capitali Justitiario suo; and it is ruled against the Abbot, Quia omnia Placita quae coram Justic. de Banco tenentur, coram Domino Regi vel ejus Capitali Justitiario teneri intelliguntur. But this Point was afterwards settled by the Statute of Magna Charta, Quod Communia Placita non sequantur Curiam nostram.

4thly. That the four Terms were then held according as was used in After-times with little Variance, and had the same Denominations they still retain.

5thly. That there were oftentimes considerable Sums of Money, or Horses, or other Things given to obtain Justice; sometimes ’tis said to be, Pro habenda Inquisitione ut supra, and inter Placita incertitemporis Regis Johannis. The Men of Yarmouth against the Men of Hastings and Winchelsea, Afferunt Domino Regi tres Palsridos, & sex Asturias Narenses ad Inquisitionem habendam Per Legales, &c. and frequently the same was done, and often accounted for in the Pipe-Rolls, under the Name of Oblata; and to remedy this Abuse, was the Provision made in King John’s and King Hen. 3d’s Charters, Nulli Vendemus Justitiam ivel Rectum. But yet Fines upon Originals being certain, having continued to this Day, notwithstanding that Provision; but those enormous Oblata before mentioned, are thereby remedied and taken away.

6thly, That in all the Time of King John, the Purgation Per Ignem & Aquam, or the Trial by Ordeal, continued as appears by frequent Entries upon the Rolls; but it seems to have ended with this King, for I do not find it in Use in any Time after: Perchance the Barbarousness of the Trial, and Persuasions of the Clergy, prevailed at length to antiquate it, for many Canons had been made against it.

7thly, In this King’s Time, the Descent of Socage as well as Knight’s Service Lands to the eldest Son prevailed in all Places, unless there was a special Custom, that the Lands were partible inter Masculos;. and therefore, Mich. secundo Johannis, in a rationabili Parte Bonorum, by Gilbert Beville against William Beville his elder Brother for Lands in Gunthorpe, the Defendant pleaded, Quod Nunquam Parita Vel Partibilia fuere; and because the Defendant could not prove it, Judgment was given for the Demandant: And by Degrees it prevail’d so, that whereas at this Time the Averment came on the Part of the Heir at Law, that the Land nunquam Parita Vel Partibilis extetit; in a little Time after the Averment was turn’d on the other Hand, viz. That tho’ the Land was Socage, yet unless he did aver and prove that it was Partita & Partibilis, he failed in his Demand.

Thirdly, The third Instance of the Progress of King John’s Reign, in Relation to the Common Law, was his settling the same in Ireland, which he made his more immediate and particular Business: But hereof we shall add a particular Chapter by itself, when we have shewn you what Proceedings and Progress was made therein in the Time of Edw. I. The many and great Troubles that fell upon King John and the whole Kingdom, especially towards the latter End of his Reign, did much hinder the good Effect of settling the Laws of England, and consequently the Peace thereof, which might have been bottom’d, especially upon the Great Charter. But this Unfortunate Prince and Kingdom were so entangled with intestine Wars, and with the Invasion of the French, who assisted the English Barons against their King, and by the Advantages and Usurpations that the Pope and Clergy made by those Distempers, that all ended in a Confusion with the King’s Death.

I come therefore to the long and troublesome Reign of Hen. 3 who was about nine Years old at his Father’s Death; he being born in Festo sancti, Remigii 1207, and King John died in Festo sancti Lucae, 1216, and the young King was crown’d the 28th of October, being then in the tenth Year of his Age, and was under the Tutelage of William Earl-Marshal.

The Nobility were quick and earnest, notwithstanding his Minority, to have the Liberties and Laws of the Kingdom confirm’d; and Preparatory thereto, in the Year 1223, Writs issued to the several Counties to enquire, by twelve good and lawful Knights, Que fuerunt Libertates in Anglia tempore Regni Henrici avi sui, returnable quindena Paschae. What Success those Inquisitions had, or what Returns were made thereof, appears not: But in the next Year following, the young King standing in Need of a Supply of Money from the Clergy and Laity, none would be granted, unless the Liberties of the Kingdom were confirm’d, as they were express’d and contain’d in the two Charters of King John; which the King accordingly granted in his Parliament at Westminster, and they were accordingly proclaim’d, Ita quod Chartae utrorumque Regum in nulla inveniatur dissimiles. Mat. Paris. Anno 1224.

In the Year 1227, The King holding his Parliament at Oxford, and being now of full Age; by ill Advice, causes the two Charters he had formerly granted to be cancell’d, “Hanc occasionem praetendens, quod Chartae illae concessae fuerunt & Libertates scriptae & signatae dum ipse erat sub Custodia, nec sui Corporis aut sigilli aliquam potestatem habuit, unde viribus carere debuit,” &c. Which Fact occasion’d a great disturbance in the Kingdom: And this Inconstancy in the King, was in Truth the Foundation of all his future Troubles, and yet was ineffectual to his End and Purpose; for those Charters were not avoidable for the King’s Nonage, and if there could have been any such Pretence, that alone would not avoid them, for they were Laws confirm’d in Parliament.

But the Great Charter, and the Charter of the Forest, did not expire so; for in 1253, they were again, seal’d and publish’d: And because after the Battle of Evesham, the King had wholly subdued the Barons, and thereby a Jealousy might grow, that he again meant to infringe it; in the Parliament at Marlbridge, cap. 5. they are again confirm’d. And thus we have the great Settlement of the Laws and Liberties of the Kingdom establish’d in this King’s Time: The Charters themselves are not every Word the same with those of King John, but they differ very little in Substance.

This Great Charter, and Charta de Foresta, was the great Basis upon which this Settlement of the English Laws stood in the Time of this King and his Son; there were also some additional Laws of this King yet extant, which much polish’ d the Common Law, viz. The Statutes of Merton and Marlbridge, and some others.

We have likewise two other principal Monuments of the great Advance and Perfection that the English Laws attain’d to under this King, viz. The Tractate of Bracton, and those Records of Plea, as well in both Benches, as before the Justices Itinerant, the Records whereof are still extant.

Touching the former, viz. Bracton’s Tractate, it yields us a great Evidence of the Growth of the Laws between the Times of Henry 2, and Hen. 3. If we do but compare Glanville’s Book with that of Bracton, we shall see a very great Advance of the Law in Writings of the latter, over what they are in Glanville. It will be needless to instance Particulars; some of the Writs and Process do indeed in Substance agree, but the Proceedings are much more regular and settled, as they are in Bracton, above what they are in Glanville. The Book itself in the Beginning seems to borrow its Method from the Civil Law; but the greatest Part of the Substance is either of the Course of Proceedings in the Law known to the Author, or of Resolutions and Decisions in the Courts of King’s-Bench and Common-Bench, and before Justices Itinerant, for now the inferior Courts began to be of little Use or Esteem.

As to the Judicial Records of the Time of this King, they were grown to a much greater Degree of Perfection, and the Pleadings more orderly, many of which are extant: But the great Troubles, and the Civil Wars, that happen’d in his Time, gave a great Interruption to the legal Proceedings of Courts; they had a particular Commission and Judicatory for Matters happening in Time of War, stiled, Placita de Tempore Turbationis, wherein are many excellent Things: They were made principally about the Battle of Evesham, and after it; and for settling of the Differences of this Kingdom, was the Dictum, or Edictum de Kenelworth made, which is printed in the old Magna Charta.

We have little extant of Resolutions in this King’s Time, but what are either remember’d by Bracton, or some few broken and scatter’d Reports collected by Fitzherbet in his Abridgment. There are also some few Sums or Constitutions relative to the Law, which tho’ possibly not Acts of Parliament, yet have obtain’d in Use as such; as De districtione Scaccarii, Statiutum Panis & Cervisiae Dies Communes in Banco Statutum Hiberniae, Stat. de Scaccario, Judicium Collistrigii, and others.

We come now to the Time of Edw. I, who is well stiled our English Justinian; for in his Time the Law, quasi Per Saltum, obtained a very great Perfection. The Pleadings are short indeed, but excellently good and perspicuous: And altho’ for some Time some of those Imperfections and ancient inconvenient Rules obtain’d; as for Instance, in Point of Descents, where the middle Brother held of the eldest, and dying without Issue, the Lands descended to the youngest, upon that old Rule in the Time of Hen. 2. Nemo Potest esse Dominius & Haeres, mention’d in Glanville, at least if he had once receiv’d Homage, 13 E. I. Fitz Avowry 235. Yet the Laws did never in any one Age receive so great and sudden an Advancement, nay, I think I may safely say, all the Ages since his Time have not done so much in Reference to the orderly settling and establishing of the distributive justice of this Kingdom, as he did within a short Compass of the thirty-five Years of his Reign, especially about the first thirteen Years thereof.

Indeed many Penal Statutes and Provisions, in Relation to the Peace and good Government of the Kingdom, have been since made. But as touching the Common Administration of Justice between Party and Party, and accommodating of the Rules, and of the Methods and Orders of Proceding, he did the most, at least of any King since William I and left the same as a fix’d and stable Rule and Order of Proceeding, very little differing from that which we now hold and practice, especially as to the Substance and principal Contexture thereof.

It would be the Business of a Volume to set down all the Particulars, and therefore I shall only give some short Observations touching the same.

First, He perfectly settled the Great Charter, and Charta de Foresta, not only by a Practice consonant to them in the Distribution of Law and Right, but also by that solemn Act passed 25 E. I. and stiled Confirmationes Cartarum.

Secondly, He established and distributed the several Jurisdictions of Courts within their proper Bounds. And because this Head has several Branches, I shall subdivide the same, viz.

1. He check’d the Incroachments and insolencies of the Pope and the Clergy, by the Statute of Carlisle.

2. He declared the Limits and Bounds of the Ecclesiastical Jurisdiction, by the Statute of Circumspecte Agatis & Articuli Cleri. For note, Tho’ this later Statute was not publisbed till Edw. 2, yet was compiled in the Beginning of Edw. I.

3. He established the Limits of the Court of Common Pleas, perfectly performing the Direction of Magna Charta, Qiuod Communia Placita non sequantur Curia nostra, in relation to B. R. and in express Terms extending it to the Court of Exchequer by the Statute of Articuli super Chartas, cap. 4. It is true, upon my First reading of the Placita de Banco of Edw. I. I found very many Appeals of Death, of Rape, and of Robbery therein; and therefore I doubted, whether the same were not held at least by Writ in the Common Pleas Court: But upon better Inquiry, I found many of the Records before Justices Itinerant were enter’d or fill’d up among the Records of the Common Pleas, which might occasion that Mistake.

4. He establish’d the Extent of the Jurisdiction of the Steward and Marshal. Vide Articuli super Chartas, cap. 3. And,

5. He also settled the Bounds of Inferior Courts, not only of Counties, Hundreds, and Courts Baron, which he kept within their proper and narrow Bounds, for the Reasons given before; and so gradually the Common Justice of the Kingdom came to be administred by Men knowing in the Laws, and conversant in the great Courts of B. R. and C. B. and before Justices Itinerant; and also by that excellent Statute of Westminster 1. cap. 35. he kept the Courts of Great Men within their Limits, under several Penalties, wherein ordinarily very great Incroachments and Oppressions were exercised.

The Third general Observation I make is, He did not only explain, but excellently enforc’d, Magna Charta, by the Statute De Tallagio non concedendo, 34 E. I.

Fourthly, He provided against the Interruption of the Common Justice of the Kingdom, by Mandates under the Great Seal, or Privy Seal, by the Statute of Articuli super Chartas, cap 6. which, notwithstanding Magna Charta, had formerly been frequent in Use.

Fifthly, He settled the Forms, Solemnities, and Efficacies of Fines, confining them to the Common-Pleas, and to Justices Itinerant, and appointed the Place where they brought the Records after their Circuits, whereby one common Repository might be kept of Assurances of Lands; which he did by the Statute De modo levandi Fines, 18 E. I.

Sixthly, He settled that great and orderly Method for the Safety and Preservation of the Peace of the Kingdom, and suppressing of Robberies, by the Statute of Winton.

Seventhly, He settled the Method of Tenures, to prevent Multiplicity of Penalties, which grew to a great Inconvenience, and remedied it by the Statute of Quia Emptores Terrarum, 18 E. I.

Eighthly, He settled a speedier Way for Recovery of Debts, not only for Merchants and Tradesmen, by the Statutes of Acton, Burnel, & de Mercatoribus, but also for other Persons, by granting an Execution for a Moiety of the Lands by Elegit.

Ninthly, He made effectual Provision for Recovery of Advowsons and Presentations to Churches, which was before infinitely lame and defective, by Statute Westminster 2. cap. I.

Tenthly, He made that great Alteration in Estates from what they were formerly, by Statute Westminster 2. cap. 1. whereby Estates of Fee-Simple, conditional at Common Law, were turn’d into Estates-Tail, not removable from the Issue by the ordinary Methods of Alienation; and upon this Statute, and for the Qualifications hereof, are the Superstructures built of 4 H. 7. cap. 32, 32 H. 8. and 33 H. 8.

Eleventhly, He introduced quite a new Method, both in the Laws of Wales, and in the Method of their Dispensation, by the Statute of Rutland.

Twelfthly, In brief, partly by the Learning and Experience of his Judges, and partly by his own wise Interposition, he silently and without Noise abrogated many ill and inconvenient Usages, both in his Courts of Justice, and in the Country. He rectified and set in Order the Method of collecting his Revenue in the Exchequer, and removed obsolete and illeviable Parts thereof out of Charge; and by the Statutes of Westminster 1. and Westminster 2. Gloucester and Westminster 3. and of Articuli super Chartas, he did remove almost all that was either grievous or impractical out of the Law, and the Course of its Administration, and substituted such apt, short, pithy, and effectual Remedies and Provisions, as by the Length of Time, and Experience had of their Convenience, have stood ever since without any great Alteration, and are now as it were incorporated into, and become a Part of the Common Law itself.

Upon the whole Matter, it appears, That the very Scheme, Mold and Model of the Common Law, especially in relation to the Administration of the Common Justice between Party and Party, as it was highly rectified and set in a much better Light and Order by this King than his Predecessors left it to him, so in a very great Measure it has continued the same in all succeeding Ages to this Day; so that the Mark or Epocha we are to take for the true Stating of the Law of England, what it is, is to be considered, stated and estimated from what it was when this King left it. Before his Time it was in a great Measure rude and unpolish’d, in comparison of what it was after his Reduction thereof; and on the other Side, as it was thus polished and ordered by him, so has it stood hitherto without any great or considerable Alteration, abating some few Additions and Alterations which succeeding Times have made, which for the most part are in the subject Matter of the Laws themselves, and not so much in the Rules, Methods, or ways of its Administration.

As I before observed some of those many great Accessions to the Perfection of the Law under this King, so I shall now observe some of those Boxes or Repositories where they may be found, which are of the following Kiuds, viz.

First, The Acts of Parliament in the Time of this King are full of excellent Wisdom and Perspicuity, yet Brevity; but of this, enough before is said.

Secondly, The Judicial Records in the Time of this King. I shall not mention those of the Chancery, the Close-Patent and Charter Rolls, which yet will very much evidence the Learning and Judgment of that Time; but I shall mention the Rolls of Judicial Proceedings, especially those in the King’s-Bench and Common-Pleas, and in the Eyres. I have read over many of them, and do generally observe,

1. That they are written in an excellent Hand.

2. That the Pleading is very short, but very clear and perspicuous, and neither loose or uncertain, nor perplexing the Matter either with Impropriety, Obscurity, or Multiplicity of Words: They are clearly and orderly digested, effectually representing the Business that they intend.

3. That the Title and the Reason of the Law upon which they proceed (which many times is expresly delivered upon the Record itself) is perspicuous, clear and rational; so that their short and pithy Pleadings and judgments do far better render the Sense of the Business, and the Reasons thereof, than those long, intricate, perplexed, and formal Pleadings, that oftentimes of late are unnecessarily used.

Thirdly, The Reports of the Terms and Years of this King’s Time, a few broken cases whereof are in Fitzherbert’s Abridgment; but we have no successive Terms or Years thereof, but only ancient Manuscripts perchance, not running through the whole Time of this King, yet they are very good, but very brief: Either the Judges then spoke less, or the Reporters were not so ready handed as to take all they said. And hence this Brevity makes them the more obscure. But yet in those brief Interlocutions between the Judge and the Pleaders, and in their Definitions, there appears a great deal of Learning and Judgment. Some of those Reports, tho’ broken, yet the best of their Kind, are in LincolnsInn Library.

Fourthly, The Tracts written or collected in the Time of this wise and excellent Prince, which seem to be of Two Kinds, viz. Such as were only the Tractates of private Men, and therefore had no greater Authority than private Collections, yet contain much of the Law then in Use, as Fleta the Mirror, Britton and Thornton; or else, 2dly, They were Sums or Abstracts of some particular Parts of the Law, as Novae Narrationes, Hengam Magna & Parva, Cadit assisa Summa, De Bastardia Summa; by all which, compared even with Bracton, there appears a Growth and a Perfecting of the Law into a greater Regularity and Order.

And thus much shall serve for the several Periods or Growth of the Common Law until the Time of Edw. I inclusively, wherein having been somewhat prolix, I shall be the briefer in what follows, especially feeling that from this Time downwards, the Books and Reports printed give a full Account of the ensuing Progress of the Law.

VIII. A Brief Continuation of the Progress of the Laws, from the Time of King Edward 2 inclusive, down to these Times

Having in the former Chapter been somewhat large in Discoursing of the Progress of the Laws, and the incidental Additions they received in the several Reigns of King William 2, King Hen. I, King Stephen, King Hen. 2, King Richard I, King John, King Hen. 3 and King Edw. I. I shall now proceed to give a brief Account of the Progress thereof in the Time of Edw. 2 and the succeeding Reigns, down to these Times.

Edward 2 succeeding his Father, tho’ he was an unfortunate Prince, and by reason of the Troubles and Unevenness of his Reign, the very Law itself had many Interruptions, yet it held its Current in a great Measure according to that Frame and State that his Father had left it in.

Besides the Records of judicial Proceedings in his Time, many whereof are still extant, there were some other Things that occur’d in his Reign which gave us some kind of Indication of the State and Condition of the Law during that Reign: As,

First, The Statutes made in his Time and especially that of 17 E. 2. stiled De Prerogativa Regis, which tho’ it be called a Statute, yet for the most part is but a Sum or Collection of certain of the King’s Prerogatives that were known Law long before; as for Instance, The King’s Wardship of Lands in Capite attracting the Wardship of Lands held of others; The King’s Grant of a Manor not carrying an Advowson Appendant unless named; The King’s Title to the Escheat of the Lands of the Normans, which was in Use from the first Defection of Normandy under King John; The King’s Title to Wreck, Royal Fish, Treasure Trove and many others, which were ancient Prerogatives to the Crown.

Secondly, The Reports of the Years and Terms of this King’s Reign; these are not printed in any one entire Volume, or in any Series or Order of Time, only some broken Cases thereof in Fitzherbert’s Abridgment, and in some other Books dispersedly; yet there are many entire Copies thereof abroad very excellently reported, wherein are many Resolutions agreeing with those of Edw. 1st’s Time. The best Copy of these Reports that I know now extant, is that in Lincoln’s-Inn Library, which gives a fair Specimen of the Learning of the Pleaders and Judges of that Time.

King Edw. 3, succeeded his Father; his Reign was long, and under it the Law was improved to the greatest Height. The Judges and Pleaders were very learned: The Pleadings are somewhat more polished than those in the Time of Edw. I, yet they have neither Uncertainty, Prolixity, nor Obscurity. They were plain and skilful, and in the Rules of Law, especially in relation to Real Actions, and Titles of Inheritance, very learned and excellently polished, and exceeded those of the Time of Edw. I. So that at the latter End of this King’s Reign the Law seemed to be near its Meridian.

The Reports of this King’s Time run from the Beginning to the End of his Reign, excepting some few Years between the 10th and 17th, and 30th and 33d Years of his Reign; but those Omitted Years are extant in many Hands in old Manuscripts.

The Book of Assizes is a Collection of the Assizes that happened in the Time of Edw. 3, being from the Beginning to the End extracted out of the Books and Assizes of those that attended the Assizes in the Country.

The justices Itinerant continued by intermitting Vicissitudes till about the 4th of Edw. 3, and some till the 10th of Edw. 3. Their Jurisdiction extended to pleas of the Crown or Criminal Causes, Civil Suits and Pleas of Liberties, and Quo Warranto’s; the Reports thereof are not printed, but are in many Hands in Manuscript, both of the Times of Edw. I, Edw. 2, and Edw. 3, full of excellent Learning. Some few broken Reports of those Eyres, especially of Cornwal, Nottingham, Northampton, and Derby, are collected by Fitzherbert in his Abridgment.

After the 10th of Edw. 3, I do not find any Justices Errant ad Communia Placita, but only ad Placita forestae; other Things that concerned those Justices Itinerant were supplied and transacted in the Common Bench for Communia Placita, in the King’s-Bench and Exchequer for Placita de Libertatibus, and hefore Justices of Assize, Nisi Prius, Oyer and Terminer, and Gaol Delivery for Assizes and pleas of the Crown.

And thus much for the Law in the Time of Edw. 3.

Richard 2 succeeding his Grandfather, the Dignity of the Law, together with the Honour of the Kingdom, by reason of the Weakness of this Prince, and the Difficulties occurring in his Government, seem’d somewhat to decline, as may appear by comparing the Twelve last Years of Edw. 3, commonly called Quadragesms, with the Reports of King Richard 2, wherein appears a visible Declination of the Learning and Depth of the judges and Pleaders.

It is true, we have no printed continued Report of this King’s Reign; but I have seen the entire Years and Terms thereof in a Manuscript, out of which, or some other Copy thereof, I suppose Fitzherbert abstracted those broken Cases of this Reign in his Abridgment.

In all those former Times, especially from the End of Edw. 3, back to the Beginning of Edw. I, the Learning of the Common Law consisted principally in Assizes and Real Actions; and rarely was any Title determined in any Personal Action, unless in Cases of Titles to Rents, or Services by Replevin; and the Reasons thereof were principally these, viz.

First, Because these ancient Times were great Favourers of the Possessor, and therefore if about the Time of Edw. 2, a Disseisor had been in Possession by a Year and a Day, he was not to be put out without a Recovery by Assize. Again, if the Disseisor had made a Feoffment, they did not countenance an Entry upon the Feoffee, because thereby he might lose his Warranty, which he might save if he were Impleaded in an Assize or Writ of Entry; and by this Means Real Actions were frequent, and also assizes.

Secondly, They were willing to quiet Men’s Possessions, and therefore after a Recovery or Bar in an Assize or Real Action, the Party was driven to an Action of a higher Nature.

Thirdly, Because there was then no known Action wherein a Person could recover his Possession, other than by an Assize or a Real Action; for till the End of Edw. 4, the Possession was not recovered in an Ejectione firmae, but only Damages.

Fourthly, Because an Assize was a speedy and effectual Remedy to recover a Possession, the Jury being ready Impannell’d and at the Bar the first Day of the Return. And altho’ by Disusage, the Practisers of Law are not so ready in it, yet the Course thereof in those Times was as ready and as well known to all Professors of the Law as the Course of Ejectione firmae is now.

Touching the Reports of the Years and Terms of Hen. 4, and Hen. 5, I can only say, They do not arrive either in the Nature of the Learning contained in them, or in the Judiciousness and Knowledge of the Judges and Pleaders, nor in any other Respect arise to the Perfection of the last Twelve Years of Edw. 3.

But the Times of Hen. 6,as also of Edw. 4, Edw. 5, and Hen. 7, were Times that abounded with Learning and excellent Men. There is little Odds in the Usefulness or Learning of these Books, only the first Part of Hen. 6, is more barren, spending itself much in Learning of little Moment, and now out of Use; but the second Part is full of excellent Learning.

In the Times of those Three Kings, Hen. 6, Edw. 4, and Hen. 7, the Learning seems to be much alike. But these Two Things are observable in them, and indeed generally in all Reports after the Time of Edw. 3. viz.

First, That Real Actions and Assizes were not so frequent as formerly, but many Titles of Land were determined in Personal Actions; and the Reasons hereof seem to be,

1st. Because the Learning of them began by little and little to be less known or understood.

2dly, The ancient Strictness of preserving Possession to Possessors till Eviction by Action, began not to be so much in Use, unless in Cases of Descents and Discontinuances, the latter necessarily drove the Demandant to his Formedon, or his Cui in Vita, &c. But the Descents that told Entry were rare, because Men preserved their Rights to enter, &c. by continual Claims.

3dly, Because the Statute of 8 H. 6. had helped Men to an Action to recover their Possessions by a Writ of Forcible Entry, even while the Method of Recovery of Possessions by Ejectments was not known or used.

The Second Thing observable is, That tho’ Pleadings in the Times of those Kings were far shorter than afterwards, especially after Hen. 8, yet they were much longer than in the Time of King Edw. 3 and the Pleaders, yea and the Judges too, became somewhat too curious therein, so that that Art or Dexterity of Pleading, which in its Use, Nature and Design, was only to render the Fact plain and intelligible, and to bring the Matter to judgment with a convenient Certainty, began to degenerate from its primitive Simplicity, and the true Use and End thereof, and to become a Piece of Nicety and Curiosity; which how these later Times have improved, the Length of the Pleadings, the many and unnecessary Repetitions, the many Miscarriages of Causes upon small and trivial Niceties in Pleading, have too much witnessed.

I should now say something touching the Times since Hen. 7 to this Day, and therefore shall conclude this Chapter with some general observations touching the Proceedings of Law in these later Times.

And first, I shall begin where I left before, touching the Length and Nicety of Pleadings, which at this Day far exceeds not only that short yet perspicuous Course of Pleading which was in the Time of Hen. 6, Edw. 4, and Hen. 7, but those of all Times whatsoever, as our vast Presses of Parchment for any one Plea do abundantly witness.

And the Reasons thereof seem to be these, viz.

First, Because in ancient Times the Pleadings were drawn at the Bar, and the Exceptions (also) taken at the Bar, which were rarely taken for the Pleasure or Curiosity of the Pleader, but only when it was apparent that the Omission or the Matter excepted to was for the most part the very Merit and Life of the Cause, and purposely omitted or mispleaded because his Matter or Cause would bear no better: But now the Pleadings being first drawn in Writing, are drawn to an excessive Length, and with very much Labouriousness and Care enlar ged, lest it might afford an Exception not intended by the Pleader, and which could be easily supplied from the Truth of the Case; lest the other Party should catch that Advantage which commonly the adverse Party studies, not in Contemplation of the Merits or Justice of the Cause, but to find a slip to fasten upon, tho’ in Truth, either not material to the Merits of the Plea, or at least not to the Merits of the Cause, if the Plea were in all Things conform to it.

Secondly, Because those Parts of Pleading which in ancient Times might perhaps be material, but at this Time are become only mere Styles and Forms, are still continued with much Religion, and so all those ancient Forms at first introduced for Convenience, but now not necessary, or it may be antiquated as to their Use, are yet continued as Things wonderfully material, tho’ they only swell the Bulk, but contribute nothing to the Weight of the Plea.

Thirdly, These Pleas being mostly drawn by Clerks, who are paid for Entries and Copies thereof, the larger the Pleadings are, the more Profits come to them, and the dearer the Clerk’s Place is, the dearer he makes the Client pay.

Fourthly, An Overforwardness in Courts to give Countenance to frivolous Exceptions, tho’ they make nothing to the true Merits of the Cause; whereby it often happens that Causes are not determined according to their Merits, but do often miscarry for inconsiderable Omissions in Pleading.

But, Secondly, I shall consider what is the Reason that in the Time of Edw. I one Term contained not above two or three Hundred Rolls, but at this Day one Term contains two Thousand Rolls or more.

The Reasons whereof may be these, viz.

1st. Many petty Businesses, as Trespasses and Debts under 40s. are now brought to Westminster, which used to be dispatched in the County or Hundred Courts; and yet the Plaintiffs are not to be blamed, because at this Day those inferior Courts are so ill served, and Justice there so ill administred, that they were better seek it (where it may be had) at Westminster, tho’ at somewhat more Expence.

2dly, Multitudes of Attorneys practising in the Great Courts at Westminster, who are ready at every Market to gratify the Spleen, Spite or Pride, of every Plaintiff.

3dly, A great Increase of People in this Kingdom above what they were anciently, which must needs multiply Suits.

4thly, A great Increase of Trade and Trading Persons, above what there were in ancient Times, which must have the like Effect.

5thly, Multitudes of new Laws, both Penal and others, all which breed new Questions, and new Suits at Law, and in particular, the Statute touching the devising of Lands, cum multis aliis.

6thly, Multiplication of Actions upon the Case, which were rare formerly, and thereby Wager of Law ousted, which discouraged many Suits: For when Men were sure, that in case they rested upon a bare Contract without Specialty, the other Party might wage his Law, they would not rest upon such Contracts without reducing the Debt into a Specialty, if it were of any Value, which created much Certainty, and accorded many Suits.

And herewith I shall conclude this Chapter, shewing what Progress the Law has made, from the Reign of King Edw. I down to these Times.

IX. Concerning the settling of the Common Law of England in Ireland and Wales: And some Observations touching the Isles of Man, Jersey, and Guernsey, etc.

The Kingdom of Ireland being conquered by Hen. 2. about the Year 1171. He in his Great Council at Oxon, constituted his younger Son, John, King thereof, who prosecuted that Conquest so fully, that he introduced the English Laws into that Kingdom, and swore all the great Men there to the Observation of the same, which Laws were, after the Decease of King John, again reinforc’d by the Writ of King Hen. 3. reciting that of King John, Rot. Claus. 10 H. 3. Memb. 8. & 10. Vide infra, & Pryn. 252, 253, &c.

And because the Laws of England were not so suddenly known there, Writs from Time to Time issued from hence, containing divers Capitula Legum Angliae. and commanding their Observation in Ireland, as Rot. Parl. 11 H. 3. the Law concerning Tenancy by Curtesy, Rot. Claus. 20 H. 3. Memb. 3. Dorso. The Law concerning the Preference of the Son born after Marriage, to the Son born of the same Woman before Marriage, or Bastard eigne & Mulier puisne, Rot. Clauf. 20 H. 3. Memb. 4. in Dorso: So the Law concerning all the Parceners inheriting without doing Homage, and several Transmissions of the like Nature.

For tho’ King Hen. 2. had done as much to introduce the English Laws there, as the Nature of the Inhabitants or the Circunmstances of the Times would permit; yet partly for want of Sheriffs, that Kingdom being then not divided into Counties, and partly by reason of the Instability of the Irisb, he could not fully effect his Design: And therefore, King John, to supply those Defects as far as he was able, divided Leinster and Munster into the several Counties of Dublin, Kildare, Meath, Uriel, Catherlogh, Kilkenny, Wexford, Waterford, Cork, Limerick, Tiperary, and Kerry; and appointed Sheriffs and other Officers to govern ’em after the Manner of England; and likewise caused an Abstract of the English Laws under his Great Seal to be transmitted thither, and deposited in the Exchequer at Dublin: And soon after, in an Irish Parliament, by a general Consent, and at the Instance of the Irish, he ordain’d, That the English Laws and Customs should thenceforth be observ’d in Ireland; and in order to it, he sent his Judges thither, and erected Courts of Judicature at Dublin.

But notwithstanding these Precautions of King John, yet for that the Brehon Law, and other Irish Customs, gave more of Power to the great Men, and yet did not restrain the Common People to so strict and regular a Discipline as the Laws of England did. Therefore the very English themselves became corrupted by them, and the English Laws soon became of little Use or Esteem, and were look’d upon by the Irish and the degenerate English as a Yoke of Bondage; so that King Hen. 3. was oftentimes necessitated to revive. em, and by several successive W rits to join the Observation of them. And in the Eleventh Year of his Reign, he sent the following Writ, viz.

Henrici Rex, &c. Baronibus Militibus & aliis liberi Tenentibus Lageniae, salutem, &c. Satis ut credimus vestra audivit discretio, quod cum bonae memoriae Johannes, quondam Rex Angliae Pater noster venit in Hiberniam, ipse duxit secum viros discretos & Legis peritos, quorum Communi Consilio, & ad instantiam Hiberniensium Statuit & praecepit Leges Anglicanas teneri in Hibernia, ita quod Leges easdem in scriptis readactas reliquit sub sigillo suo ad Scaccar. Dublin. Cum igitur Consuetudo & Lex Angliae fuerit, quod si aliquis desponsaverit aliquam Mulierem, sive Viduam sive aliam haereditatem habentem, & ipse postmodum ex ea prolem suscitaverit cujus clamor auditus fuerit infra quatuor parietes idem Vir si supervixerit ipsam uxorem suam, habebit tota vita sua Custodiam Haereditatis uxoris suae, licet ea forte habuerit Haeredem de primo viro suo qui fuerit Plenae aetatis vobis Mandamus injungentes quatenus in loquela quae est in Curia Willi. Com. Maresc. inter Mauritium Fitz Gerald Petent. & Galfridum de Marisco Justiciarium nostrum Hiberniae tenentem, vel in Alia Loquela quae fuerit in Casu praedicto nullo modo Justitiam in contrar’ facere praesumatis.

Teste Rege apud Westm.

10 Decemb. Anno 110 Regni Nostri.

And Note, In the same Year another Writ was sent to the Lord Justice, commanding him to aid the Episcopal Excommunications in Ireland with the Secular Arm, as in England was used.

And about this Time, Hubert de Burgo, the Chief Justice of England, and Earl of Kent, was made Earl of Connaught, and Lord Justice of Ireland during Life; and because he could not personally attend, he on March the 10th, 1227, appointed Richard de Burgo, to be his Deputy, or Lord Justice, to whom the King sent the following Writ:

Rex dilecto & fideli suo Richardo de Burgo Justiciario suo Hiberniae salutem. Mandamus vobis firmiter praecipientes, quatenus certo die & loco faciatis venire coram vobis, Archiepiscopos, Episcopos, Abbates, Priores, Comites & Barones, Milites & libere Tenentes & Ballivos singulorum Comitatuum, & coram eis publice legi faciatis Chartam Domini Johannis Regis Patris nostri, cui sigillum suum appensum est, quam fieri fecit, & jurari a Magnatibus Hiberniae de Legibus & consuetudinibus Anglorum observandis in Hibernia, & Praecipiatis eis ex parte nostra, quod Leges illas & consuetudines in Charta praedicta contentas de cetero firmiter teneant & observent. Et hoc idem per singulos Comitatus Hiberniae clamari faciatis, & teneri prohibentes firmiter ex parte nostra & forisiacturam nostram, ne quis contra hoc Mandatum nostrum, venire praesumat. Eo excepto quod nec de morte nec de catallis Hibernensium occisorum nihil statuatur ex parte nostra citra quindecim dies a Sancti Michaelis, Anno Regni Nostri 12? Super quo respectum dedimus Magnat. nostri de Hib. usque ad Terminum praedict’ Teste Meipso apud Westm. 8° die Maii, Anno Regni Nostri 12?

And about the 20th Year of Hen. 3. several Writs were sent into Ireland, especially directing several Statutes which had been made in England to be put in Use, and to be observed in Ireland; as the Statute of Merton in the Case of Bastardy, &c.

But yet it seems by the frequent Grants that were made afterwards to particular Native Irish Men, quod legibus utantur Anglicanis, That the Native Irish had not the full Privilege of the English Laws, in Relation at least to the Liberties of English Men, till about the Third of Edw. 3. Vide Rot. Claus. 2 E. 3. Memb. 17.

As the Common Law of England was thus by King John and Hen. 3. introduced into Ireland, so in the Tenth of Hen. 7. all the precedent Statutes of England were there settled by the Parliament of Ireland. ‘Tis true, many ancient Irish Customs continued in Ireland, and do continue there even unto this Day; but such as are contrary to the Laws of England are disallow’d Vide Davis’s Reports, the Case of Tanistry.

As touching Wales, That was not always the Feudal Territory of the Kingdom of England; but having been long governed by a Prince of their own, there were very many Laws and Customs used in Wales, utterly strange to the Laws of England, the Principal whereof they attribute to their King Howell Dha.

After King Edw. I had subdued Wales, and brought it immediately under his Dominion; He first made a strict Inquisition touching the Welsh Laws within their several Commotes and Seigniores, which Inquisitions are yet of Record: After which, in the 12th of Edw. I. the Statute of Rutland was made, whereby the Administration of Justice in Wales was settled in a Method very near to the Rule of the Law of England. The Preamble of the said Statute is notable, viz.

Edvardus Dei gratia Rex Angliae Dominus Hiberniae & Dux Acquitaniae omnibus Fidelibas suis de Terra sua de Snodon & de aliis terris suis in Wallia Salutem in Domino. Divina Providentia quae in sua Dispositione non fallitur, inter alia suae Dispensationis Munera, quibus nos & Regnum nostrum Angliae decorari dignata est, Terram Walliae cum incolis suis prius nobis juri Feodali subjectam, tam sui gratia in proprietatis nostrae Dominium, obstaculis quibuscunque cessantibus, totaliter & cum integritate convertit, & Coroniae Regni praedicti tantum partem corporis ejusdem annexuit & univit. Nos, &c.

According to the Method in that Statute prescribed, has the Method of Justice been hitherto administred in Wales, with such Alterations and additions therein as have been made by the several subsequent Statutes of 27 and 34 H. 8. &c.

Touching the Isle of Man. This was sometimes Parcel of the Kingdom of Norway, and governed by Particular Laws and Customs of their own, tho’ many of them hold Proportion, or bear some Analogy, to the Laws of England, and probably were at first and originally derived from hence; seeing the Kingdom of Norway as well as the Isle of Man have anciently been in Subjection to the Crown of England. Vide Legis Willi. Primi, in Lambard’s Saxon Laws.

Berwick was sometimes Parcel of Scotland, but was won by Conquest by King Edw. I, and after that lost by King Edw. 2, and afterwards regained by Edw. 3. It was governed by the Laws of Scotland, and their own particular Customs, and not according to the Rules of the Common Law of England, further than as by Custom it is there admitted, as in Liber Parliamenti, 21 E. I. in the Case of Moyne and Bartlemew, Pro Dote in Berwick; yet now by Charter, they send Burgesses to the Parliament of England.

Touching the Islands of Jersey, Guernsey, Sark, and Alderney; They were anciently a Part of the Dutchy of Normandy, and in that Right, the Kings of England held them till the Time of King John; but although King John, as is before shewn, was unjustly deprived of that Dutchy, yet he kept the Islands; and when after that, they were by Force taken from him, he by the like Force regained them, and they have ever since continued in the Possession of the Crown of England.

As to their Laws, they are not governed by the Laws of England, but by the Laws and Customs of Normandy. But not as they are at this Day; for since the actual Division and Separation of those Islands from that Dutchy, there have been several New Edicts and Laws made by the Kings of France which have much altered the old Law of Normandy, which Edicts and Laws bind not in those Islands, they having been ever since King John’s Time at least under the actual Allegiance of England.

And hence it is, that tho’ there be late Collections of the Laws and Customs of Normandy, as Terrier and some others, yet they are not of any Authority it those Islands; for the Decision of Controversies, as the Grand Contumier of Normandy is, which is (at least in the greatest Part thereof) a Collection of the Laws of Normandy as they stood before the Disjoining of those Islands from the Dutchy, viz. before the Time of King Hen. 3. tho’ there be in that Collection some Edicts of the Kings of France which were made after that Disjunction; and those Laws, as I have shewn before, tho’ in some Things they agree with the Laws of England, yet in many Things they differ, and in some are absolutely repugnant.

And hence it is, that regularly Suits arising in those Islands are not to be tried or determined in the King’s Courts in England, but are to be heard, tried, and determined in those Islands, either before the ordinarY Courts of Jurats there, or by the Justices Itinerant there, commissioned under the Great Seal of England, to determine Matters there arising; and the Reason is, because their Course of Proceedings, and their Laws, differ from the Course of Proceedings and the Laws of England.

And altho’ it be true, that in ancient Times, since the Loss of Normandy, some scattering Instances are of Pleas moved here touching Things done in those Islands, yet the general settled Rule has been to remit them to those Islands, to be tried and determined there by their Law; tho’ at this Day the Courts at Westminster hold Plea of all transitory Actions wheresoever they arise, for it cannot appear upon the Record where they did arise.

Mic. 42 E. 2. Rot. 45. coram Rege. A great Complaint was made by Petition, against the Deputy Governor of those Islands, for divers Oppressions and Wrongs done there: This Petition was by the Chancellor delivered into the Court of B. R. to proceed upon it, whereupon there were Pleadings on both Sides; but because it appeared to be for Things done and transacted in the said Islands, Judgment was thus given:

Et quia Negotiam praedict’ in Curia hic terminari non potest, eo quod Juratores Insulae praedict’ coram Justitiariis hic venire non possunt, nec de Jure debent, nec aliqua Negotia infra Insula praedicta emergentia terminari non debent, nisi secundum Consuet. Insulae Praedictae. Ideo Recordum retro traditur Cancellario ut inde fiat Commissio Domini Regis ad Negotia praedicta in Insula praedicta audienda & Terminanda secundum Consuet’ Insulae praedictae.

And accordingly 14 Junii, 1565, upon a Report from the Attorney General, and Advice with the two Chief Justices, a general Direction was given by the Queen and her Council, That all Suits between the Islanders, or wherein one Party was an Islander, for Matters arising within the Islands, should be there heard and determined.

But still this is to be taken with this Distinction and Limitation, viz. That where the Suit is immediately for the King, there the King may make his Suit in any of the Courts here, especially in the Court of King’s-Bench: For Instance, in a Quare Impedit brought by the King in B. R. here for a Church in those Islands; so in a Qiuo Warranto for Liberties there; so a Demand of Redemption of Lands sold by the King’s Tenant within a Year and a Day according to the Custom of Normandy; so in an Information for a Riot, or grand Contempt against a Governor deputed by the King. These and the like Suits have been maintained by the King in his Court of King’s-Bench here, tho’ for Matters arising within those Islands: This appears, Paschae 16 E. 2. coram Rege, Rot. 82. Mich. 18 E. 2. Rot. 123, 124, 125. & Pas. I E. 3. Rot. 59.

And for the same Reason it is, that a Writ of Habeas Corpus lies into those Islands for one imprisoned there, for the King may demand, and must have an Account of the Cause of any of his Subjects Loss of Liberty; and therefore a Return must be made of this Writ, to give the Court an Account of the Cause of Imprisonment; for no Liberty, whether of a County Palatine, or other, holds Place against those Brevia Mandatoria, as that great Instance of punishing the Bishop of Durham for refusing to execute a Writ of Habeas Corpus out of the King’s Bench, 33 E. I. makes evident.

And as Pleas arising in the Islands regularly, ought not in the first Instance to be deduced into the Courts here, (except in the King’s Case;) so neither ought they to be deduced into the King’s Courts here in the second Instance; and therefore if a Sentence or Judgment be given in the Islands, the Party grieved thereby, may have his Appeal to the King and his Council to reverse the same if there be Cause. And this was the Course of Relief in the Dutchy of Normandy, viz. by Appeal to the Duke and his Council; and in the same Manner, it is still observed in the Case of erroneous Decrees or Sentences in those Islands, viz. To appeal to the King and his Council.

But the Errors in such Decrees or Sentences are not examined by Writ of Error in the King’s-Bench, for these Reasons, viz.

1st. Because the Courts there, and those here, go not by the same Rule, Method, or Order of Law.

And 2dly, Because those Islands, though they are Parcel of the Dominion of the Crown of England, yet they are not Parcel of the Realm of England, nor indeed ever were; but were anciently Parcel of the Dutchy of Normandy, and are those Rewains thereof which the Power of the Crown and Kingdom of France have not been able to wrest from the Kings of England.

X. Concerning the Communication of the Laws of England unto the Kingdom of Scotland

Because this Inquiry will be of Use, not only in itself, but also as a Parallel Discovery of the Transmission of the English Laws into Scotland, as before is shewn they were into Normandy; I shall in this Chapter pursue and solve their several Queries, viz.

1st, What Laws of Scotland hold a Congruity and Suitableness with those of England.

2dly, Whether these be a sufficient Ground for us to suppose, that that Similitude or Congruity began with a Conformation of their Laws to those of England. And,

3dly, What might be reasonably judged to be the Means or Reason of the Conformation of their Laws unto the Laws of England.

As to the First of these Inquiries; It is plain, beyond all Contradiction, that many of the Laws of Scotland hold a Congruity and Similitude, and many of them a perfect Identity with the Laws of England, at least as the English Laws stood in the Times of Hen. 2. Richard I. King John, Henry 3. and Edw. I. And altho, in Scotland, Use hath always been made of the Civil Law, in point of Direction or Guidance, where their Municipal Laws, either Customary or Parliamentary failed; yet as to their particular Municipal Laws, we shall find a Resemblance, Parity and Identity, in their Laws with the Laws of England, anciently in Use; and we need go no further for Evidence hereof, than the Regiam Majestatem, a Book published by Mr Skeen in Scotland. It would be too long to Instance in all the Points that might be produced; and therefore I shall single out some few, remitting the Reader for his further Satisfaction to the Book itself.

Dower of the Wife to be the Third Part of her Husband’s Lands of Inheritance; the Writ to recover the same; the Means of forfeiting thereof by Treason or Felony of the Husband or Adultery of the Wife; are in great Measure conformable to the Laws of England. Vide Regiam Majestatem, Lib. 2. cap. 16, 17. and Quoniam Attachiamento, cap. 85.

The Exclusion of the Descent to the elder Brother by his receiving Homage, which tho’ now antiquated in England, was anciently received here for Law, as appears by Glanville, Lib. 7. cap. I. and Vide Regiam Majestatem, Lib. 2. cap. 22.

The Exclusion of Daughters from Inheritances by a Son: The Descent to all the Daughters in Coparcenary for want of Sons; the chief House allotted to the eldest Daughter upon this Partition; the Descent to the Collateral Heirs, for want of Lineal, &c. Ibid. cap. 24, 25, 26, 27, 28, 33, 34. But this is now altered in some Things Per Stat. Rob. cap. 3.

The full Ages of Males 21, of Females 14, to be out of Ward in Socage 16. Ibid. cap. 42.

That the Custody of Idiots belonged to the King, Ibid. cap. 46.

The Custody of Heirs in Socage belong to the next of Kin, to whom the Inheritance can’t descend. Vide Regiam Majest. cap. 47.

The Son born before Marriage, or Bastard eigne, not to be legitimate by the Marriage after, nor was he hereditable by the ancient Laws of Scotland, though afterward altered in Use, as it seems, Regiam Majest. cap. 51.

The Confiscation of Bona Usurariorum, after their Death, conform to the old Law here used. Ibid. cap. 54. tho’ now antiquated.

The Laws of Escheats, for want of Heirs, or upon Attainder. Ibid. cap. 55.

The Acquittal of Lands given in Frank-Marriage, till the fourth Degree be past, Ibid. cap. 57. Homage, the Manner of making it with the Persons, by, or to whom, as in England, Ibid. cap. 61, 62, 63, &c.

The Relief of an Heir in Knights Service, of full Age, Regiam Majestatem, cap. 17.

The Preference of the Sister of the whole Blood, before the Sister of the half Blood. Quoniam Attachiamento, cap. 89.

The single Value of the Marriage, and Forfeiture of the double Value, precisely agree with the Statute of Marlbridge. Ibid. cap. 91.

The Forfeiture of the Lord’s disparaging his Ward in Marriage, agrees with Magna Charta, and the Statute of Marlbridge. Quoniam Attachiamento, cap. 92.

The Preference of the Lord by Priority to the Custody of the Ward. Ibid. cap. 95.

The Punishment of the Ravisher of a Ward, by two Years Imprisonment, &c. as here. Ibid. cap. 90.

The Jurisdiction of the Lord in Infangtheof. Ibid. cap. 100.

Goods confiscate, and Deodands, as here, Liber De Modo tenendi Cur. Baron. cap. 62, 63, 64.

And the like of Waifs. Ibid. cap. 65.

Widows, not to marry without Consent of the Lord, Statute Mesei. 2. cap. 23.

Wreck of the Sea, defined precisely as in the Statute Westm. 2. Vide Ibid. cap. 25.

The Division of the Deceased’s Goods, one Third to the Wife, another Third to the Children, and another to the Executor, &c. conformable to the ancient Law of England, and the Custom of the North to this Day. Lib. 2. cap. 37.

Also the Proceedings to recover Possessions, by Mortdancester, Juris Utrum, Assise de Novel disseisin, &c. The Writs and Process are much the same with those in England, and are directed according to Glanville, and the old Statutes in the Time of Edw. I. and Hen. 3. Vide Regiam Majestat. Lib. 3. cap. 27 to 36.

Many more Instances might be given of many of the Municipal Laws of Scotland, either precisely the same with those in England, or very near, and like to them: Tho’ it is true, they have some particular Laws that hold not that Conformity to ours, which were introduced either by particular or common Customs, or by Acts of their Parliaments. But, by what has been said and instanced in, it appears, That like as hetween the Laws of England and Normandy, so also between the Laws of England and Scotland, there was anciently a great Similitude and Likeness.

I come therefore to the Second Thing I proposed to enquire into, viz. what Evidence there is, That those Laws of Scotland were either desumed from the English Laws, or from England, transmitted thither in such a Manner, as that the Laws here in England were as it were the Original or prime Exemplar, out of which those parallel or similar Laws of Scotland were copied or transcribed into the Body of their Laws: And this appears evident on the following Reasons, viz.

First, For that Glanville (which, as has been observed, is the ancientest Collection we have of English Laws) seem to be even transcribed in many entire Capita of the Laws above-mentioned, and in some others where Glanville doubts, that Book doubts; and where Glanville follows the Practice of the Laws then in Use, tho’ altered in succeeding Times, at least after the Reign of Edw. I. there the Regiam Majestatem does accordingly; for Instance, viz.

Glanville, Lib. 7. cap. I. determines, That a Man can’t give away part of the Lands which he held by Hereditary Descent unto his Bastard, without the Consent of his Heir, and that he may not give all his Purchases from his eldest Son; and this is also declared to be the Law of Scotland accordingly, Regiam Majestatem, Lib. 2. cap. 19, 20. Tho’ since Glanville’s Time, the Law has been altered in England.

Also Glanville, Lib. 7. cap. I. makes a great Doubt, Whether the second Son, being enfeoffed by the Father, and dies without Issue; whether the Land shall return to the Father, or descend to his eldest, or to his youngest Brother; and at last gives such a Decision as we find almost in the same Terms and Words recited in the Question and Decisions laid down in Regiam. Majest. Lib. 2. cap. 22.

Again, Glanville, Lib. 7. cap. I. makes it a difficult Question in his Time, Whether the eldest Son dying in the Life-time of his Father, having Issue, the Nephew or the youngest Son shall inherit; and gives the Arguments Pro & contra: And Regiam Majestatem, cap. 33. seems to be even a Transcript thereof out of Glanville.

And further, the Tract concerning Assizes, and the Time of Limitation, the very Form of the Writs, and the Method of the Process, and the Directions touching their Proceedings are but Transcripts of Glanville, as appears by comparing Regiam Majestatem, Lib. 3. cap. 36. with Glanville, Lib. 13. cap. 32. and the Collector of those Laws of Scotland in all the before-mentioned Places, and divers others, quotes Glanville as the Pattern at least of those Laws.

But Secondly, A second Evidence is, because many of the Laws which are mentioned in the Regiam Majestatem quoniam Archiamento, and other Collections of the Scotish Laws, are in Truth very Translations of several Statutes made in England in the Times of King Hen. 3. and King Edw. I. For Instance; the Statute of their King Robert 2. cap. I. touching Alienations to Religious Men, is nothing else but an Enacting of the Statute of Mortmain, 13 E. 1. cap. 13. The Law above-mentioned, touching the Disparagement of Wards, is desumed out of Magna Charta, cap. 6. and the Statute of Merton, cap. 6. So the Law abovesaid, against Ravishers of Wards, is taken out of Westm. 2. cap. 35. So the said Law of the double Value of Marriage, is taken out of Westm. 1. cap. 22. The Law concerning Wreck of the Sea, is but a Transcript out of Westm. 1. cap. 4. and divers other Instances of like Nature might be given, whereby it may appear, that very many of those Laws in Scotland which are a part of their Corpus Juris, bear a Similitude to the Laws of England, and were taken as it were out of those Common or Statute Laws here, that obtain’d in the Time of Edw. I and before, but especially such as were in Use or Enacted in the Time of Edw. I and the Laws of England, relative to those Matters, were as it were the Original and Exemplar from whence those Similar or Parallel Laws of Scotland were derived or borrowed.

Thirdly, I come now to consider the Third Particular, viz. By what Means, or by what Reason this Similitude of Laws in England and Scotland happened, or upon what Account, or how the Laws of England at least in many Particulars, or Capita Legum, came to be communicated into Scotland, and they seem to be principally these two, viz. First, The Vicinity of that Kingdom to this. And Secondly, The Subjection of that Kingdom unto the Kings of England, at least for some considerable Time.

Touching the former of these; First, It is very well known, that England and Scotland made but one Island, divided not by the Sea or any considerable Arm thereof, but only by the Interjacency of the River Tweed, and some Desart Ground, which did not hinder any easy common Access of the People of the one Kingdom to the other: And by this Means, First, The Intercourse of Commerce between that Kingdom and this was very frequent and usual, especially in the Northern Counties, and this Intercourse of Commerce brought unto those of Scotland an Acquaintance and Familiarity with our English Laws and Customs, which in Process of Time were adopted and received gradually into Scotland.

Again, Secondly, This Vicinity gave often Opportunities of transplanting of Persons of either Nation into the other, especially in those Northern Parts, and thereby the English transplanted and carried with them the Use of their Native Customs of England, and the Scots transplanted hither, became acquainted with our Customs, which by occasional Remigrations were gradually translated and became diffus’d and planted in Scotland; and it is well known, that upon this Account some of the Nobility and great Men of Scotland had Possessions here as well as there: The Earls of Angus were not only Noblemen of Scotland, but were also Barons of Parliament here, and sate in our English Parliaments, as appears by the Summons to Parliament, Tempore Edvardi Tertii.

Again, Thirdly, The Kings of Scotland had Feodal Possessions here; for Instance, The Counties of Cumberland, Northumberland and Westmoreland, were anciently held of the Crown of England by the Kings of Scotland, attended with several Vicissitudes and Changes until the Feast of St. Michael, 1237, at which Time Alexander King of Scotland finally released his Pretensions thereunto, as appears by the Deed thereof enter’d into the Red-Book of the Exchequer, and the Parliament Book of 20 E. I. and in Consideration thereof, Hen. 3. gave him the Lands of Penreth and Sourby, Habend’ sibi Heredibus suis Regibus Scotiae, and by Virtue of that Special Limitation, they came to John the eldest Son of the eldest Daughter of Alexander King of Scotland, together with that Kingdom; but the Land of Tindale, and the Manor of Huntingdon, which were likewise given to him and his Heirs, but without that Special Limitation, Regibus Scotiae, fell in Coparcenry, one Moiety thereof to the said John King of Scotland, as the Issue of the eldest Daughter, and the other Moiety to Hastings, who was descended from the younger Daughter of the said Alexander: But those Possessions came again to the Crown of England by the Forfeiture of King John of Scotland, who through the Favour of the King of England he had Restitution of the Kingdom of Scotland, yet never had Restitution of those Possessions he had in England, and forfeited and lost by his levying War against the Kingdom of England, as aforesaid.

And thus I have shewn, that the Vicinity of the Kingdoms of England and Scotland, and the Consequence thereof, viz. Translations of Persons and Families, Intercourse of Trade and Commerce, and Possessions obtained by the Natives of each Kingdom in the other, might be one Means for communicating our Laws to them.

But Secondly, There was another Means far more effectual for that End, viz. The Superiority and Interest that the Kings of England obtain’d over the Crown and Kingdom of Scotland, whereby it is no Wonder that many of our English Laws were transplanted thither by the Power of the English Kings. This Interest, Dominion, or Superiority of the Kings of England in the Realm of Scotland may be considered these Two Ways, viz. 1st. How it stood antecedently to the Reign of King Edw. I. And 2dly, How it stood in his Time.

Touching the former of those, I shall not trouble myself with collecting Arguments or Authorities relating thereto; he that desires to see the whole Story thereof, let him consult Walsingham, sub Anno 18 Edw. I. as also Rot. Parl. 12 R. 2. Pars secunda, No. 3. Rot. Claus. 29 E. I. M. 10. Dorso, and the Letter of the Nobility to the Pope asserting it. Ibid.

And this might be one Means, whereby the Laws of England in elder Times might in some Measure be introduced into Scotland.

But I rather come to the Times of King Edw. I who was certainly the greatest Refiner of the English Laws, and studiously endeavoured to enlarge the Dominions of the Crown of England, so to extend and propagate the Laws of England into all Parts subject to his Dominion. This Prince, besides the ancient Claim he made to the Superiority of the Crown of England over that of Scotland, did for many Years actually enjoy that Superiority in its full Extent, and the Occasion and Progress thereof was thus, as it is related by Walsingham, and consonantly to him appears by the Records of those Times, viz. King Edw. I. having formerly received the Homage and Fealty of Alexander King of Scots, as appears Rot. Claus. 5 E. I. M. 5. Dorso, was taken to be Superior Dominus Scotiae Regni.

Alexander dying, left Margaret his only Daughter, and she dying without Issue, about 18 E. I. there fell a Controversy touching the Succession of the Crown of Scotland, between the King of Norway claiming as Tenant by the Curtesy, Robert de Bruce descended from the younger Daughter of David King of Scots, and John de Baliol descended from the elder Daughter, with divers other Competitors.

All the Competitors submit their Claim to the Decision of Edw. I. King of England as Superior Dominus Regni Scotiae, who thereupon pronounced his Sentence for John de Baliol, and accordingly put him in Possession of the Kingdom, and required and received his Homage.

The King of England, notwithstanding this, kept still the Possession, & Insignia of his Superiority. his Court of King’ sBench sate actually at Roxborough in Scotland, Mich. 20, 21 Ed. I. coram Rege, and upon Complaint of Injuries done by the said John King of Scots, now restor’d to his Kingdom, he summoned him often to answer in his Courts, Mich. 21, 22 Edw. I. Northumh. Scot. He was summoned by the Sheriff of Northumberland to answer to Walbesi in the King’s Court, Pas. 21. E. I. coram Rege. Rot. 34. He was in like wanner summoned to answer John Mazune in the King’s-Bench for an Injury done to him, and Judgment given against the King of Scots, and that judgment executed.

John King of Scots, being not contented with this Subjection, did in the 24th Year of King Edw. I resign back his Homage to King Edward, and bid Defiance to him; wherefore King Edw. I the same Year with a powerful Army entered Scotland, took the King of Scots Prisoner, and the greatest part of that Kingdom into his Possession, and appointed the Earl Warren to be Custos Regni, Cressingham to be his Treasurer, and Ormsby his Justice, and commanded his Judges of his Courts of England to issue the King of England’s Writs into Scotland.

And when in the 27th Year of his Reign, the Pope, instigated by the French King, interpos’d in the Behalf of the King of Scotland, he and his Nobility resolutely denied the Pope’s Intercession and Mediation.

Thus the Kingdom of Scotland continued in an actual Subjection to the Crown of England for many Years; for Rot. Claus. 33 E. I. Membr. 13. Dorso, and Rot. Claus. 34 E. I. Memb. 3. Dorso; several Provisions are made for the better ordering of the Government of Scotland.

What Proceedings there were herein in the Time of Edw. 2 and what Capitulations and Stipulations were afterwards made by King Edw. 3 upon the Marriage of his Sister by Robert de Bruce touching the Relaxation of the Superius Dominium of Scotland, is not pertinent to what I aim at, which is, to shew how the English Laws that were in Use and Force in the Time of Edw. I obtained to be of Force in Scotland, which is but this, viz.

King Edward I having thus obtained the actual Superiority of the Crown of Scotland, from the Beginning of the Reign until his 20th Year, and then placing John de Baliol in that Kingdom, and yet continuing his Superiority thereof, and keeping his Courts of Justice, and exercising Dominion and Jurisdiction by his Officers and Ministers in the very Bowels of that Kingdom, and afterwards upon the Defection of this King John, in the 24th of Edw. I taking the whole Kingdom into his actual Administration, and placing his own Judges and great Officers there, and commanding his Courts of King’s-Bench (&c.) here, to Issue their Process thither, and continuing in the actual Administration of the Government of that Kingdom during Life: It is no Wonder that those Laws, which obtained and were in Use in England, in and before the Time of this King, were in a great Measure translated thither; and possibly either by being enacted in that Kingdom, or at least for so long Time, put in Use and Practice there, many of the Laws in Use and Practice here in England were in his Time so rivetted and settled in that Kingdom, that ’tis no Wonder to find they were not shaken or altered by the liberal Concessions made afterwards by King Edw. 3 upon the Marriage of his Sister; but that they remain Part of the Municipal Laws of that Kingdom to this Day.

And that which renders it more evident, That this was one of the greatest Means of fixing and continuing the Laws of England in Scotland, is this, viz. This very King Edw. I was not only a Martial and Victorious, but also a very Wise and Prudent Prince, and one that very well knew how to use a Victory, as well as obtain it: And therefore knew it was the best Means of keeping those Dominions he had powerfully obtain’ d, by substituting and translating his own Laws into the Kingdom which he had thus subdued. Thus he did upon his Conquest of Wales; and doubtless thus he did upon his Conquest of Scotland, and those Laws which we find there so nearly agreeing with the Laws of England used in his Time, especially the Statutes of Westm. 1 and Westm. 2 are the Monuments and Footsteps of his Wisdom and Prudence.

And, as thus he was a most Wise Prince, and to secure his Acquests, introduced many other Laws of his Native Kingdom into Scotland; so he very well knew the Laws of England were excellent Laws fitted for the due Administration of Justice to the Constitution of the Governed, and fitted for the Preservation of the Peace of a Kingdom, and for the Security of a Government: And therefore he was very solicitous, by all prudent and careful Means imaginable, to graft and plant the Laws of England in all Places where he might, having before-hand used all possible Care and Industry for Rectifying and Refining the English Laws to their greatest Perfection.

Again, It seems very evident, that the Design of King Edw. I was by all Means possible to unite the Kingdom of Scotland (as he had done the Principality of Wales) to the Crown of England, so that thereby Britain might have been one entire Monarchy, including Scotland as well as Wales and England under the same Sceptre; and in order to the accomplishing thereof, there could not have been a better Means than to make the Interest of Scotland one with England, and to knit ’em as it were together in one Communion, which could never have been better done than by establishing one Common Law and Rule of Justice and Commerce among them; and therefore he did, as Opportunity and Convenience served, translate over to that Kingdom as many of our English Customs and Laws as within that Compass of Time he conveniently could.

And thus I have given an Essay of the Reasons and Means, how and why we find so many Laws in Scotland parallel to those in England, and holding so much of Congruity and Likeness to them.

And the Reason why we have but few of their Laws that correspond with ours of a later Date than Edw. I or at least Edw. 2 is because since the Beginning of Edw. 3 that Kingdom has been distinct, and held little Communion with us till the Union of the two Crowns in the Person of King James I and in so great an Interval it must needs he, that by the Intervention and Succession of new Laws, much of what was so ancient as the Times of Edw. I and Edw. 2 have received many Alterations: So that it is a great Evidence of the Excellency of our English Laws, that there remain to this Day so many of them in Force in that Part of Great Britain continuing to bear Witness, that once that excellent Prince Edw. I exercised Dominion and Jurisdiction there.

And thus far of the Communion of the Laws of England to Scotland, and of the Means whereby it was effected; from whence it may appear, That as in Wales, Ireland and Normandy, so also in Scotland, such Laws which in those Places have a Congruity or Similitude with the Laws of England, were derived from the Laws of England, as from their Fountain and Original, and were not derived from any of those Places to England.

XI. Touching the Course of Descents in England

Among the many Preferences that the Laws of England have above others, I shall single out Two particular Titles which are of Common Use, wherein their Preference is very visible, and the due Consideration of their Excellence therein, may give us a handsome Indication or Specimen of their Excellencies above other Laws in other Parts or Titles of the same also.

Those Titles, or Capitula Legum, which I shall single out for this Purpose, are these Two, viz. 1st, The hereditary Transmission of Lands from Ancestor to Heir, and the Certainty thereof: and 2dly, The Manner of Trial by Jury, which, as it stands at this Day settled in England, together with the Circumstances and Appendixes thereof, is certainly the best Manner of Trial in the World; and I shall herein give an Account of the successive Progress of those Capitula Legis, and what Growth they have had in Succession of Time till they arriv’d so that State and Perfection which they have now obtain’d.

First, Then, touching Descents and hereditary Transmissions: It seems by the Laws of the Greeks and Romans, that the same Rule was held both in Relation to Lands and Goods, where they were not otherwise disposed of by the Ancestor, which the Romans therefore called Successio ab intestato; but the Customs of particular Countries, and especially here in England, do put a great Difference, and direct a several Method in the Transmission of Goods or Chattels, and that of the Inheritances of Lands.

Now as to hereditary Transmissions or Successions, commonly called with us Descents, I shall hold this Order in my Discourse, viz.

First, I shall give some short Account of the ancient Laws both of the Jews, the Greeks, and the Romans, touching this Matter.

Secondly, I shall observe some Things wherein it may appear, how the particular Customs or Municipal Laws of other Countries varied from those Laws, and the Laws here formerly used.

Thirdly, I shall give some Account of the Rules and Laws of Descents or hereditary Transmissions as they formerly stood, and as at this Day they stand in England, with the successive Alterations, that Process of Time, and the Wisdom of our Ancestors, and certain Customs grown up, tacitly, gradually, and successively have made therein.

And First, touching the Laws of Succession, as well of Descent of Inheritances of Lands, as also of Goods and Chattels, which among the Jews was the same in both.

Mr Selden, in his Book De Successionibus apud Hebraeos, has given us an excellent Account, as well out of the Holy Text as out of the Comments of the Rabins, or Jewish Lawyers, touching the same, which you may see at large in the 5th, 6th, 7th, 12th and 13th Chapters of that Book; and which, for so much thereof as concerns my present Purpose, I shall briefly comprise under the Eight following Heads, viz.

First, That in the Descending Line, the Descent or Succession was to all the Sons, only the eldest Son had a double Portion to any one of the rest, viz. If there were three Sons, the Estate was to be divided into four Parts, of which the eldest was to have two Fourth Parts, and the other two Sons were to have one Fourth Part each.

Secondly, If the Son died in his Father’s Life-time, then the Grandson, and so in lnfinitum, succeeded in the Portion of his Father, as if his Father had been in Possession of it, according to the Jus Representationis now in Use here.

Thirdly, The Daughter did not succeed in the Inheritance of the Father as long as there were Sons, or any Descendants from Sons in Being; but if any of the Sons died in the Life-time of his Father having Daughters, but without Sons, the Daughters succeeded in his Part as if he himself had been Possessed.

Fourthly, And in Case the Father left only Daughters and no Sons, the Daughters equally succeeded to their Father as in Copartnership, without any Prelation or Preference of the eldest Daughter to two Parts, or a double Portion.

Fifthly, But if the son had purchased an Inheritance and died without Issue, leaving a Father and Brothers, the Inheritance of such Son so dying did not descend to the Brothers, (unless in Case of the next Brother’s taking to Wife the Deceased’s Widow to raise up Children to his deceased Brother) but in such Case the Father inherited to such Son entirely.

Sixthly, But if the Father in that Case was dead, then it came to the Brothers, as it were as Heirs to the Father, in the same Manner as if the Father had been actually Possess’d thereof; and therefore the Father’s other Sons and their Descendants in Infinitum succeeded; but yet especially, and without any double Portion to the eldest, because tho’ in Truth the Brothers succeeded as it were in Right of Representation from the Father, yet if the Father died before the Son, the Descent was de Facto immediately from the Brother deceased to the other Brothers, in which Case their Law gave not a double Portion; and in Case the Father had no Sons or Descendants from them, then it descended to all the Sisters.

Seventhly, If the Son died without Issue, and his Father or any Descendants from him were extant, it went not to the Grandfather or his other Descendants; but if the Father was dead without Issue, then it descended to the Grandfather, and if he were dead, then it went to his Sons and their Descendants, and for want of them, then to his Daughters or their Descendants, as if the Grandfather himself had been actually possess’d and had died, and so miutatis mutandis to the Proavus, Abavus, Atavus, &c. and their Descendants.

Eighthly, But the Inheritance of the Son never resorted to the Mother, or to any of her Ancestors, but both she and they were totally excluded from the Succession.

The double Portion therefore that was Jus Primogeniturae, never took Place but in that Person that was the Primogenitus, of him from whom the inheritance immediately descended, or him that represented him; as if A. had two Sons, B. and C. and B. the eldest had two Sons, D. and E. and then B. died, whereas B. should have had a double Portion, viz. two Thirds in Case he had survived his Father; but now this double Portion shall be equally divided between D. and E. and D. shall not have two Thirds of the two Thirds that descended from A. to them. Vide Selden, ut supra.

Thus much of the Laws or Rules touching Descents among the Jews.

Among the Graecians, the Laws of Descents in some Sort resemble those of the Jews, and in some Things they differed. Vide Petit’s Leges Attica, Cap. I. Tit. 6. De Testamentis & Hereditario Jure, where the Text of their Law runs thus, viz.

Omnes legitimi Filii Haereditatem Paternam ex aequo inter se Haeriscunto, si quis intestatus moritur relictis Filiabus qui eas in Uxores ducunt haeredes sunto, si nullae supersint, hi ab intestato haereditatem cernunto: Et primo quidem Fratres defuncti Germani, & legitimi Fratrum Filii haereditatem simil adeunto; si nulli Fratres aut Fratrum Filii supersint, iis geniti eadem Lege haereditatem cernunto: Masculi autem iis geniti etiam si remotiori cognationis sint Gradu, praeferuntor, si nulli supersint, Paterni proximi, ad sobrinorum usque Filios, Materni defuncti propinqui simili Lege Haereditatem adeunto; si e neutra cognatione supersint intra definitum Gradum proximus cognatus Paternus, addito Notho Nothave; superstite Legitima Filia Nothus Haereditatem Patris ne adito.

This Law is very obscure, but the Sense thereof seems to be briefly this, viz. That all the Sons equally shall inherit to the Father; but if he have no Sons, then the Husbands of the Daughters; and if he have no Children, then his Brothers and their Children; and if none, than his next Kindred on the Part of his Father, preferring the Males before the Females; and if none of the Father’s Line, ad Sobrinorum usque Filios, then to descend to the Mother’s Line. Vide Petit’s Gloss thereon.

Among the Romans it appears, that the Laws of Successions or Descents did successively vary, for the Laws of the Twelve Tables did exclude the Females from Inheriting, and had many other Streightnesses and Hardships which were successively remedied: First, by the Emperor Claudius, and after him by Adrian, in his Senatus Consultus Tertullianus, and after him hy Justinian in his Third Institutes, Tit. De Haereditatibus quae ab intestato deseruntur, and the two ensuing Titles. And again, all this was further explained and settled by the Novel Constitutions of the said Justinian, stiled the Authenticae Novellae, cap. 18. De Haereditatibus ab intestato venientibus & agnatorum Jiure sublato. Therefore omitting the large Inquiry into the Successive Changes of the Roman Law in this particular, I shall only set down how, according to that Constitution, the Roman Law stands settled therein.

Descents or Successions from any Person are of Three Kinds, viz. 1st, In the Descending Line. 2dly, The Ascending Line. 3dly, The Collateral Line; and this latter is either in Agnatos a Parte Patris, or in Cognatos a Parte Matris.

1. ln the Descending Line, These Rules are by the Roman Law directed, viz.

1. The Descending Line, (whether Male or Female, whether immediate or remote) takes Place, and prevents the Descent or Succession Ascending or Collateral in infinitum.

2. The remote Descents of the Descending Line succeed in Stirpem, i.e. in that Right which his Parent should have had.

3. This Descent or Succession is equal in all the Daughters, all the Sons, and all the Sons and Daughters, without preferring the Male before the Female; so that if the common Ancestor had three Sons and three Daughters, each of them had a sixth Part; and if one of them had died in the Life of the Father, having three Sons and three Daughters, the sixth Part that belonged to that Party should have been divided equally between his or her six Children, and so in in finitum in the Descending Line.

2. In the Ascending Line, there are these two Rules, viz.

1. If the Son dies without Issue, or any descending from him, having a Father and a Mother living, both of them shall equally succeed to the Son, and prevent all others in the Collateral Line, except Brothers and Sisters, and if only a Father, or only a Mother, he or she shall succeed alone.

2. But if the Deceased leaves a Father and a Mother, with a Brother and a Sister, ex utrisque Parentibus conjuncti, they all Four shall equally succeed to the Son by equal Parts without Preference of the Males.

3. In the Collateral Line, (i.e. where the Person dies without Father or Mother, Son or Daughter, or any descending from them in the Right Line) the Rules are these, viz.

1. The Brothers and Sisters, ex utrisque Parentibius conjuncti, and the immediate Children of them, shall exceed equally without Preference of either Sex, and the Children from them shall succeed in stirpes; as if there be a Brother and Sister, and the Sister dies in the Life of the Descendant leaving one or more Children, all such Children shall succeed in the Moiety that should have come to their deceased Mother, had she survived.

2. But if there be no Brothers or Sisters, ex utrisque Parentibus conjuncti, nor any of their immediate Children, then the Brothers and Sisters of the half Blood and their immediate Children shall succeed in Stirpes to the Deceased, without any Prerogative to the Male.

3. But if there be no Brothers or Sisters of the wbole or half Blood, nor any of their immediate Children (for the Grandchildren are not provided for by the Law) then the next Kindred are called to the Inheritance.

(But by the Author’s Leave, I think the Grandchildren are impliedly provided for, as they succeed their Father or Mother Jure representationis.)

4. And if the next Kindred be in an equal Degree, whether on the Part of the Father as Agnati, or on the Part of the Mother as Cognati, then they are equally called to the Inheritance, and succeeded in Capita, and not in Stirpes.

Thus far of the settled Laws of the Jews, Greeks, and Romans, but the Particular or Municipal Laws and Customs of almost every Country derogate from those Laws, and direct Successions in a much different Way. For Instance.

By the Customs of Lombardy, according to which the Rules of the Feuds, both in their Descents and in other Things, are much directed; their Descents are in a much different Manner, viz.

Leges Feiudarum, Lib. I. Tit. I. If a Feud be granted to one Brother who dies without Issue, it descends not to his other Brother unless it be specially provided for in the first Infeudation: If the Donee dies, having Issue Sons and Daughters, it descends only to the Sons; whereas by the Roman Law it descends to both: The Brother succeeds not to the Brother unless specially provided for, & Ibid. Tit. 50. The Ascendants succeed not, but only the Descendants, neither does a Daughter succeed nisi ex Pacto, vel nisi sit Feodum Faemineum If we come nearer Home to the Laws of Normandy, Lands there are of Two Kinds, viz. Partible, and not Partible; the Lands that are partible, are Valvasories, Burgages, and such like, which are much of the Nature of our Socage Lands; these descend to all the Sons, or to all the Daughters: Lands not partible, are Fiefs and Dignities, they descend to the eldest Son, and not to all the Sons; but if there be no Sons, then to all the Daughters, and become partible.

The Rules and Directions of their Descents are as follow, viz.

1. For want of Sons or Nephews, it descends to the Daughters; if there be no Sons or Descendants from them, it goes to Brothers, and for want of Brothers, to Sisters, (observing as before the Difference between Lands partible and not partible) and accordingly the Descent runs to the Posterity of Brothers to the seventh Degree; and if there be no Brothers nor Sisters, nor any Descendants from them within the Seventh Degree, it descends to the Father, and if the Father be dead, then to the Uncles and Aunts and their Posterity, (as above is said in the Case of Brothers and Sisters) and if there be none, then to the Grandfather.

So that according to their Law, the Father is postponed to the Brother and Sister, and their Issues, but is preferred before the Uncle: Tho’ according to the Jewish Law, the Father is preferred before the Brother; by the Roman Law, he succeeds together equally with the Brother; but by the English Law, the Father cannot take from his Son by an immediate Descent, but may take as Heir to his Brother, who was Heir to his Son by Collateral Descent.

2. If Lands descended from the Part of the Father, they could never resort by a Descent to the Line of the Mother; but in Case of Purchases by the Son who died without Issue, for want of Heirs of the Part of the Father, it descended to the Heirs of the Part of the Mother according to the Law of England.

3. The Son of the eldest Son dying in the Life of the Father, is preferred before a younger Son surviving his Father as the Law stands here now settled, tho’ it had some Interruption, 4 Johannis.

4. On Equality of Degrees in Collateral Descents, the Male Line is preferred before the Female.

5. Altho’ by the Civil Law, Fratres ex utroque Parente conjuncti Praeferuntur Fratribus consanguineis tantum vel uterinis; yet it should seem by the Contumier of Normandy, Fratres consanguineis ei ex eodem Patre sed diversa Matre, shall take by Descent together with the Brothers, ex utroque conjuncti, upon the Death of any such Brothers. But Quere hereof, for this seems a Mistake; for, as I take it, the half Blood hinders the Descent between Brothers and Sisters by their Laws as well as ours.

6. Leprosy was amongst them an Impediment of Succession, but then it seems it ought to be first solemnly adjudged so by the Sentence of the Church.

Upon all this, and much more that might be observed upon the Customs of several Countries, it appears, That the Rules of Successions, or hereditary Transmissions, have been various in several Countries according to their various Laws, Customs, and Usages.

And now, after this brief Survey of the Laws and Customs of other Countries, I come to the Laws and Usages of England in relation to Descents, and the Growth that those Customs successively have had, and whereunto they are now arrived.

First, Touching hereditary Successions: It seems, that according to the ancient British Laws, the eldest Son inherited their Earldoms and Baronies; for they had great Dignities and Jurisdictions annex’d to them, and were in Nature of Principalities, but that their ordinary Freeholds descended to all their Sons; and this Custom they carried with them into Wales, whither they wvere driven. This appears by Statutum Waltiae 12 E. I. and which runs thus, viz.

Aliter usitatum est in Wallia quam in Anglia quoad successionem haereditatis; eo quod haereditas partibilis est inter haeredes Masculos, & a tempore cujus non extiterit Memoria partibilis exitit. Dominus Rex non vult quod consuetudo illa abrogetur: sed quod haereditates remaneant partibiles, inter consimiles haeredes sicut esse Consueverunt; & fiat partitio illius sicut fieri consuevit. Hoc excepto Bastardi non habeant de caetero haereditates & etiam quod non habeant purpartes, cum legitimis nec sine legitimis.

Whereupon Three Things are observable, viz. 1st, That at this Time the hereditary Succession of the eldest Son was then known to be the common and usual Law in England. 2dly, That the Succession of all the Sons was the ancient customary Law among the British in Wales, which by this Statute was continued to them. 3dly, That before this Time, Bastards were admitted to inherit in Wales as well as the Legitimate Children, which Custom is thereby abrogated; and although we have but few Evidences touching the British Laws before their Expulsion hence into Wales, yet this Usage in Wales seems sufficiently to evidence this to have been the ancient British Law.

Secondly, As to the Times of the Saxons and Danes, their Laws collected hy Brompton and Mr Lambard, speak not much concerning the Course of Descents; yet it seems that commonly Descents of their ordinary Lands at least, except Baronies and Royal Inheritances, descended also to all the Sons: For amongst the Laws of King Canutus, in Mr Lambard is the Law, viz. No. 68. “Sive quis incuria five Morte repentina fuerit intestato mortuus, Dominus tamen nullam rerum suarum Partem (praeter eam quae jure debetur Hereoti nomine) sibi assumito. Verum eas Judicio suo Uxori, Liberis & cognatione proximis juste (pro suo cuique jure) distributio.” Upon which Law, we may observe these five things, viz.

1st. That the Wife had a Share, as well of the Lands for her Dower, as of the Goods.

2dly, That in reference to hereditary Successions, there then seem’d to be little Difference between Lands and Goods, for this Law makes no Distinction.

3dly, That there was a Kind of settled Right of Succession, with Reference to Proximity and Remoteness of Blood, or Kin, Et cognatione proximis pro suo cuique jure.

4thly, That in Reference to Children, they all seem’d to succeed alike, without any Distinction between Males and Females.

5thly, That yet the Ancestor might dispose of by his Will as well Lands as Goods, which Usage seems to have obtained here unto the Time of Hen. 2 as will appear hereafter. Vide Glanville.

Thirdly, It seems that, until the Conquest, the Descent of Lands was at least to all the Sons alike, and for ought appears to all the Daughters also, and that there was no Difference in the hereditary Transmission of Lands and Goods, at least in Reference to the Children: This appears by the Laws of King Edward the Confessor, confirm’d by King William I and recited in Mr Lambard, Folio 167. as also by Mr Selden in his Notes upon Eadmerus, viz. Lege 36 Tit. De Intestatorum Bonis; Pag. 184. “Si quis Intestatus obierit, Liberi ejus Haereditatem aequaliter divident.”

But this equal Division of Inheritances among all the Children was found to be very inconvenient: For,

1st, It weakened the Strength of the Kingdom, for by frequent parcelling and subdividing of Inheritances, in Process of Time they became so divided and crumbled, that there were few Persons of able Estates left to undergo publick Charges and Offices.

2dly, It did by Degrees bring the Inhabitants to a low Kind of Country living, and Families were broken; and the younger Sons, which had they not had those little Parcels of Land to apply themselves to, would have betaken themselves to Trades, or to Civil or Military, or Ecclesiastical Employments, neglecting those Opportunities, wholly apply’d themselves to those small Divisions of Lands, whereby they neglected the Opportunities of greater Advantage of enriching themselves and the Kingdom.

And therefore King William I having by his Accession to the Crown gotten into his Hands the Possessions and Demesns of the Crown, and also very many and great Possessions of those that oppos’d him, or adhered to Harold, disposed of those Lands or great Part of them to his Countrymen, and others that adhered to him, and reserved certain honorary Tenures, either by Baronage, or in Knights-Service or Grand Serjeancy, for the Defence of the Kingdom, and possibly also, even at the Desire of many of the Owners, changed their former Tenures into Knights-Service, which Introduction of new Tenures was nevertheless not done without Consent of Parliament; as appears by the additional Laws before mentioned, that King William made by Advice of Parliament, mentioned by Mr Selden in his Notes on Eadmerus, Page 191, amongst which this was one, viz.

Statuimus etiam & firmiter praecipimus ut omnes Comites Barones Milites & Servientes & universi liberi Homines totius Regni nostri habeant & teneant se semper in Armis & in Equis ut decet & oportet, & quod sint semper prompti & bene parati ad Servitium suum integrum nobis explendendum & peragendum, cum semper opus fuerit secundum quod nobis de Feodis debent & tenentur Tenementis suis de Jure facere & sicut illis statuimus per Commune Concilium totius Regni nostri, Et illis dedimus & concessimus in Feodo Jure haereditario.

Whereby it appears, that there were two Kinds of Military Provisions; one that was set upon all Freeholds by common Consent of Parliament, and which was usually called Assisa Armorum; and another that was Conventional and by Tenure, upon the Infeudation of the Tenant, and which was usually called Knights Service, and sometimes Royal, sometimes Foreign Service, and sometimes Servitium Loricae.

And hence it came to pass, that not only by the Customs of Normandy, but also according to the Customs of other Countries, those honorary Fees, or Infeudations, became descendible to the Eldest, and not to all the Males. And hence also it is, that in Kent, where the Custom of all the Males taking by Descent generally prevails, and that pretend a Concession of all their Customs by the Conqueror, to obtain a Submission to his Government, according to that Romantick Story of their Moving Wood: But even in Kent itself, those ancient Tenements or Fees that are held anciently by Knights Service, are descendible to the Eldest Son, as Mr Lambard has observed to my Hands in his Perambulation, Page 533, 553. out of 9 H. 3. Fitz. Prescription 63. 26 H. 8.5. and the Statute of 31 H. 8. cap. 3. And yet even in Kent, if Gavelkind Lands escheat, or come to the Crown by Attainder or Dissolution of Monasteries, and be granted to be held by Knights Service, or Per Baroniam, the Customary Descent is not changed, neither can it be but by Act of Parliament, for it is a Custom fix’d to the Land.

But those honorary infeudations made in ancient Times, especially shortly after the conquest, did silently and suddenly assume the Rule of Descents to the Eldest, and accordingly held it; and so altho’ possibly there were no Acts of Parliament of those Elder Times, at least none that are now known of, for altering the ancient Course of Descents from all the Sons to the Eldest, yet the Use of the Neighbouring Country might introduce the same Usage here as to those honorary Possessions.

And because those honorary Infeudations were many, and scattered almost through all the Kingdom, in a little Time they introduced a Parity in the Succession of Lands of other Tenures, as Socages, Valvasories, &c. So that without Question, by little and little, almost generally in all Counties of England (except Kent, who were most tenacious of their old Customs in which they gloried, and some particular Feuds and Places where a contrary Usage prevailed) the generality of Descents or Successions, by little and little, as well of Socage Lands as Knights Service, went to the eldest Son, according to the Declaration of King Edw. I in the Statute of Wales above mentioned, as will more fully appear by what follows.

In the Time of Hen. I as we find by his 70th Law, it seems that the whole Land did not Descend to the eldest Son, but begun to look a little that Way, viz. Primum Patris Feudum, Primogenitus Filius habeat. And as to Collateral Descents, that Law determines thus: “Si quis sine. Liberis decesserit Pater aut Mater ejus in haereditatem succedat vel Frater vel Soror si Pater & Mater desint, si nec hos, habeat Soror Patris vel Matris, & deinceps in Quintum Geniculum; qui cum propinquiores in parentela sint haereditario jure succedant; & dum Virilis sexus extiterit & haereditas ab inde sit, Foeminea non haereditetur.”

By this Law it seems to appear;

1. The eldest Son, tho’ he had Jus Primogeniturae, the principal Fee of his Father’s Land, yet he had not all the Land.

2. That for want of Children, the Father or Mother inherited before the Brother or Sister.

3. That for want of Children, and Father, Mother, Brother, and Sister, the Land descended to the Uncles and Aunts to the fifth Generation.

4. That in Successions Collateral, Proximity of Blood was preferred.

5. That the Male was preferred before the Female, i.e. The Father’s Line was preferred before the Mother’s, unless the Land descended from the Mother, and then the Mother’s Line was preferred.

How this Law was observed in the interval between Hen. I. and Hen. 2. we can give no Account of; but the next Period that we come to is, the Time of Hen. 2. wherein Glanville gives us an Account how the Law stood at that Time: Vide Glanville, Lib. 7. Wherein, notwithstanding it will appear, that there was some Uncertainty and Unsettledness in the Business of Descents or Hereditary Successions, tho’ it was much better polished then formerly, the Rules then of Succession were either in Reference to Goods, or Lands. 1st, As to Goods, one Third Part thereof went to the Wife, another Third Part went to the Children, and the other Third was left to the Disposition of the Testator; but if he had no Wife, then a Moiety went to the Children, and the other Moiety was at the Deceased’s Disposal. And the like Rule if he had left a Wife, but no Children. Glanv. lib. 7. cap. 5. & Vide lib. 2. cap. 29.

But as to the Succession of Lands, the Rules are these.

First, If the Lands were Knights Service, they generally went to the eldest Son; and in case of no Sons, then to all the Daughters; and in case of no Children, then to the eldest Brother.

Secondly, If the Lands were Socage, they descended to all the Sons to be divided; Si feurit Soccagium & id antiquitus divisum; only the Chief House was to be allotted to the Purparty of the Eldest, and a Compensation made to the rest in lieu thereof: “Si vero non fuerit antiquitus divisum, tunc Primogenitus secundum quorundam Consuetudinem totam Haereditatem obtinebit, secundum autem quorundam Consuetudinem postnatus Filius Haeres est.” Glanville, lib. 7. cap. 3. So that altho’ Custom directed the Descent variously, either to the eldest or youngest, or to all the Sons, yet it seems that at this Time, Jus Commune, or Common Right, spoke for the eldest Son to be Heir, no Custom intervening to the contrary.

Thirdly, As the Son or Daughter, so their Children in infinitum, are preferred in the Descent before the Collateral Line or Uncles.

Fourthly, But if a Man had two Sons, and the eldest Son died in the Life-time of his Father, having Issue a Son or Daughter, and then the Father dies. it was then controverted, whether the Sou or Nephew should succeed to the Father, tho’ the better Opiuion seems to be for the Nephew, Glanvil. lib. 7. cap. 3.

Fifthly, A Bastard could not inherit, Ibid. cap. 13, or 17. And altho’ by the Canon or Civil Law, if A. have a Son born of B. before Marriage, and after A. marries B. this Son shall be legitimate and heritable; yet according to the Laws of England then, and ever since used, he was not heritable, Glanvil. lib. 7. cap. 15.

Sixthly, In case the Purchaser died without Issue, the Land descended to the Brothers; and for want of Brothers, to the
Sisters; and for want of them, to the Children of the Brothers or
Sisters; and for want of them, to the Uncles; and so onward
according to the Rules of Descents at this Day; and the Father or
Mother were not to inherit to the Son, but the Brothers or Uncles, and their Children. Ibid. cap. 1. & 4.
And it seems, That in all Things else the Rules of Descents in reference to the Colateral Line were much the same as now; as namely, That if Lands descended of the Part of the Father, it should not resort to the Part of the Mother, or e converso; but in the Case of Purchasers, for want of Heirs of the Part of the Father, it resorted to the Line of the Mother, and the nearer and more worthy of Blood were preferred: So that if there were any of the Part of the Father, tho’ never so far distant, it hindred the Descent to the Line of the Mother, though much nearer.

But in those Times it seems there were two Impediments of Descents or hereditary Successions which do not now obtain, viz.

First, Leprosy, if so adjudged by Sentence of the Church: This indeed I find not in Glanville; but I find it pleaded and allowed in the Time of King John, and thereupon the Land was adjudged from the Leprous Brother to the Sister. Pasch. 4 Johannis.

Secondly, There was another Curiosity in Law, and it was wonderful to see how much and how long it prevailed; for we find it in Use in Glanville, who wrote Temp. Hen. 2. in Bracton Temp. Hen. 3. in Fleta Temp. Edw. I and in the broken Year of 13 E. I. Fitzh. Avowry 235. Nemo potest esse Tenens & Dominus, & Homagium repellit Perquisitum: And therefore if there had been three Brothers, and the eldest Brother had enfeoffed the second, reserving Homage, and had received Homage, and then the second had died without Issue, the Land should have descended to the youngest Brother and not to the eldest Brother, Qiuia Homagium repellit perquisitum, as ’tis here said, for he could not pay Homage to himself. Vide for this, Bracton, Lib. 2. cap. 30. Glanvil. Lib. 7. cap. I. Fleta, Lib. 6. cap. I.

But at this Day the Law is altered, and so it has been for ought I can find ever since 13 E. I. Indeed, it is antiquated rather than altered, and the Fancy upon which it was grounded has appear’d trivial; for if the eldest Son enfeoff the second, reserving Homage, and that Homage paid, and then the second Son dies without Issue, it will descend to the Eldest as Heir, and the Seigniory is extinct. It might indeed have had some Color of Reason to have examined, whether he might not have waved the Descent, in case his Services had been more beneficial than the Land: But there could be little Reason from thence to exclude him from the Succession. I shall mention no more of this Impediment, nor of that of Leprosy, for that they both are vanished and antiquated long since; and, as the Law now is, neither of these are any Impediment of Descents.

And now passing over the Time of King John and Richard I because I find nothing of Moment therein on this Head, unless the Usurpation of King John upon his eldest Brother’s Son, which he would fain have justified by introducing a Law of prefering the younger Son before the Nephew descended from the elder Brother: But this Pretention could no way justify his Usurpation, as has been already shewn in the Time of Hen. 2.

Next, I come to the Time of Hen. 3 in whose Time the Tractate of Bracton was written, and thereby in Lib. 2. cap. 30 & 31 and Lib. 5. cap. It appears, That there is so little Variance as to Point of Descents between the Law as it was taken when Bracton wrote, and the Law as afterwards taken in Edw. I’s Time, when Britton and Fleta wrote, that there is very little Difference between them, as may easily appear by comparing Bracton ubi supra. & Fleta, Lib. 5. cap. 9. Lib. 6. cap. 1, 2. that the latter seem to be only Transcripts or Abstracts of the former. Wherefore I shall set down the Substance of what both say, and thereby it will appear, that the Rules of Descents in Hen. 3. and Edw. I’s Time were very much one.

First, At this Time the Law seems to be unquestionably settled, that the eldest Son was of Common Right Heir, not only in Cases of Knight Service Lands, but also of Socage Lands, (unless there were a special Custom to the contrary, as in Kent and some other Places) and so that Point of the Common Law was fully settled.

Secondly, That all the Descendants in infinitum, from any Person that had been Heir, if living, were inheritable Jure representationis; as, the Descendants of the Son, of the Brother, of the Uncle, &c. And also, Thirdly, That the eldest Son dying in the Life-time of the Father, his Son or Issue was to have the Preference as Heir to the Father before the younger Brother, and so the Doubt in Glanville’s Time was settled, Glanvil. Lib. 7, cap. 3. “Cum quis autem moriatur habens Filium postnatum, & ex primogenito Filio praemortuo Nepotem, Magna quidem Juris dubitatio solet isse uter illorum preferendus fit alii in illa Successioni, scilicet, utrum Filius aut Nepos?”

Fourthly, The Father, or Grandfather, could not by Law inherit immediately to the Son.

Fifthly, Leprosy, Though it were an Exception to a Plaintiff, because he ought not to converse in the Courts of Law, as Bracton, Lib. 5. cap. 20 yet we no where find it to be an Impediment of a Descent.

So that upon the whole Matter, for any Thing I can observe in them, the Rules of Descents then stood settled in all Points as they are at this Day, except some few Matters (which yet soon after settled as they now stand) viz.

First, That Impediment or Hindrance of a Descent from him that did Homage to him that received it, seems to have heen yet in Use, at least till 13 E. I. and in Fleta’s Time, for he puts the Case and admits it.

Secondly, Whereas both Bracton and Fleta agree, that half Blood to him that is a Purchaser is an Impediment of a Descent from the Common Ancestor, half Blood is no Impediment. As for Instance; A. has Issue B. a Son and C. a Daughter by one Venter, and D. a Son by another Venter: If B. purchases in Fee and dies without Issue, it shall descend to the Sister, and not to the Brother of the half Blood; but if the Land had descended from A. to B. and he had entred and died without Issue, it was a Doubt in Bracton and Britton’s Time, whether it should go to the younger Son, or to the Daughter? But the Law is since settled, that in both Cases it descends to the Daughter, Et. seisina facit Stipitem & Primum Gradum. Et Possessio Fratris de Feodo simplici facit Sororem esse haeredem.

Thus upon the whole it seems, That abating those small and inconsiderable Variances, the States and Rules of Descents as they stood in the Time of Hen. 3, or at least in the Time of Edw. I were reduced to their full Complement and Perfection, and vary nothing considerably from what they are at this Day, and have continued ever since that Time.

I shall therefore set down the State and Rule of Descents in Fee-Simple as it stands at this Day, without meddling with Particular Limitations of Entails of Estates, which vary the Course of Descents in some Cases from the Common Rules of Descents of hereditary Successions; and herein we shall see what the Law has been and continued touching the same ever since Bracton’s Time, who wrote in the Time of Hen. 3. now above 400 Years since, and by that we shall see what Alterations the Succession of Time has made therein.

And now to give a short Scheme of the Rules of Descents, or hereditary Successions, of the Lands of Subjects as the Law stands at this Day, and has stood for above four hundred Years past, viz.

All possible hereditary Successions may be distinguished into these 3 Kinds, viz, either,

1st, In the Descending Line, as from Father to Son or Daughter, Nephew or Niece, i.e. Grandson or Grandaughter. Or,

2dly, ln the Collateral Line, as from Brother to Brother or Sister, and so to Brother and Sisters Children. Or,

3dly, In an Ascending Line, either direct, as from Son to Father or Grandfather, (which is not admitted by the Law of England) or in the transversal Line, as to the Uncle or Aunt, Great-Uncle or Great-Aunt, &c. And because this Line is again divided into the Line of the Father, or the Line of the Mother, this transverse ascending Succession is either in the Line of the Father, Grandfather, &c. on the Blood of the Father; or in the Line of the Mother, Grandmother, &c. on the Blood of the Mother: The former are called Agnati, the latter Cognati: I shall therefore set down a Scheme of Pedigrees as high as Great-Grandfather and Great-Grandmothers Grandsires, and as low as Great-Grandchild; which nevertheless will be applicable to more remote Successions with a little Variation, and will explain the whole Nature of Descents or hereditary Successions.

This Pedigree, with its Application, will give a plain Account of all Hereditary Successions under their several Cases and Limitations, as will appear by the following Rules, taking our Mark or Epocha from the FATHER and MOTHER.

But first, I shall premise certain general Rules, which will direct us much in the Course of Descents as they stand here in England: (Viz.)

First. In Descents, the Law prefers the Worthiest of Blood: As,

1st, In all Descents immediate, the Male is preferred before the Female, whether in Successions Descending, Ascending, or Collateral: Therefore in Descents, the Son inherits and excludes the Daughter, the Brother is preferred before the Sister, the Uncle before the Aunt.

2dly, In all Descents immediate, the Descendants from Males are to be preferred before the Descendants from Females: And hence it is, That the Daughter of the eldest Son is preferred in Descents from the Father before the Son of the younger Son; and the Daughter of the eldest Brother, or Uncle, is preferred before the Son of the younger; and the Uncle, nay, the Great-Uncle, i.e. the Grandfather’s Brother, shall inherit before the Uncle of the Mothers Side.

Secondly, In Descents, the next of Blood is preferred before the more remote, tho’ equally or more worthy. And hence it is,

1st, The Sister of the whole Blood is preferred in Descents before the Brother of the half Blood, because she is more strictly joined to the Brother of the whole Blood (viz. by Father and by Mother) than the half Brother, though otherwise he is the more worthy.

2dly, Because the Son or Daughter being nearer than the Brother, and the Brother or Sister than the Uncle, the Son or Daughter shall inherit before the Brother or Sister, and they before the Uncle.

3dly, That yet the Father or Grandfather, or Mother or Grandmother, in a direct ascending Line, shall never succeed immediately the Son or Grandchild; but the Father’s Brother (or Sisters) shall be preferred before the Father himself; and the Grandfather’s Brother (or Sisters) before the Grandfather: And yet upon a strict Account, the Father is nearer of Blood to the Son than the Uncle, yea than the Brother; for the Brother is therefore of the Blood of the Brother, because both derive from the same Parent, the Common Fountain of both their Blood. And therefore the Father at this Day is preferred in the Administration of the Goods before the Son’s Brother of the whole Blood, and a Remainder limited Proximo de Sanguine of the Son shall vest in the Father before it shall vest in the Uncle. Vide Littleton, Lib. I. fol. 8, 10.

Thirdly, That all the Descendants from such a Person as by the Laws of England might have been Heir to another, hold the same Right by Representation as that Common Root f rom whence they are derived; and therefore,

1st, They are in Law in the same Right of Worthiness and Proximity of Blood, as their Root that might have been Heir was, in case he had been living: And hence it is, that the Son or Grandchild, whether Son or Daughter of the eldest Son, succeeds before the younger Son; and the Son or Grandchild of the eldest Brother, before the youngest Brother; and so through all the Degrees of Succession, by the Right of Representation, the Right of Proximity is transferred from the Root to the Branches, and gives them the same Preference as the next and worthiest of Blood.

2dly, This Right transferred by Representation is infinite and unlimited in the Degrees of those that descend from the Represented; for Filius the Son, the Nepos the Grandson, the Abnepos the Great-Grandson, and so in infinitum enjoy the same Privilege of Representation as those from whom they derive their Pedigree lhave, whether it be in Descents Lineal, or Transversal; and theref ore the Great-Grandchild of the eldest Brother, whether it be Son or Daughter. shall be preferred before the younger Brother, because tho’ the Female be less worthy than the Male, yet she stands in Right of Representation of the eldest Brother, who was more worthy than the younger. And upon this Account it is,

3dly, That if a Man have two Daughters, and the eldest dies in the Life of the Father, leaving six Daughters, and then the Father dies; the youngest Daughter shall have an equal Share with the other six Daughters, because they stand in Representation and Stead of their Mother, who could have had but a Moiety.

Fourthly, That hy the Law of England, without a special Custom to the contrary, the eldest Son, or Brother, or Uncle, excludes the younger; and the Males in an equal Degree do not all inherit: But all the Daughters, whether by the same or divers Venters, do inherit together to the Father, and all the Sisters by the same Venter do inherit to the Brother.

Fifthly, That the last Seisin in any Ancestor, makes him, as it were the Root of the Descent equally to many Intents as if he had been a Purchaser; and therefore he that cannot, according to the Rules of Descents, derive his Succession from him that was left actually seised, tho’ he might have derived it from some precedent Ancestor, shall not inherit. And hence it is, That where Lands descend to the eldest Son from the Father, and the Son enters and dies without Issue, his Sister of the whole Blood shall inherit as Heir to the Brother, and not the younger Son of the half Blood, because he cannot be Heir to the Brother of the half Blood: But if the eldest Son had survived the Father and died before Entry, the youngest Son should inherit as Heir to the Father, and not the Sister, because he is Heir to the Father that was last actually seised. And hence it is, That tho’ the Uncle is preferred before the Father in Descents to the Son; yet if the Uncle enter after the Death of the Son, and die without Issue, the Father shall inherit to the Uncle, quia Seisina facit Stipitem.

Sixthly, That whosoever derives a Title to any Land, must be of the Blood to him that first purchased it: And this is the Reason why, if the Son purchase Lands and dies without Issue, it shall descend to the Heirs of the Part of the Father; and if he has none, then to the Heirs on the Part of the Mother; because, tho’ the Son has both the Blood of the Father and of the Mother in him, yet he is of the whole Blood of the Mother, and the Consanguinity of the Mother are Consanguinei Cognati of the Son.

And of the other Side, if the Father had purchased Lands, and it had descended to the Son, and the Son had died without Issue, and without any Heir of the Part of the Father, it should never have descended in the Line of the Mother, but escheated: For tho’ the Consanguinei of the Mother were the Consanguinei of the Son, yet they were not of Consanguinity to the Father, who was the Purchaser; but if there had been none of the Blood of the Grandfather, yet it might have resorted to the Line of the Grandmother, because her Consanguinei were as well of the Blood of the Father, as the Mother’s Consanguinity is of the Blood of the Son: And consequently also, if the Grandfather had purchased Lands, and they had descended to the Father, and from him to the Son; if the Son had entred and died without Issue, his Father’s Brothers or Sisters, or their Descendants, or, for want of them, his Great-Grandfather’s Brothers or Sisters, or their Descendants, or, for want of them, any of the Consanguinity of the Great-Grandfather, or Brothers or Sisters of the Great-Grandmother, or their Descendants, might have inherited, for the Consanguinity of the Great-Grandmother was the Consanguinity of the Grandfather; but none of the Line of the Mother, or Grandmother, viz. the Grandfather’s Wife, should have inherited, for that they were not of the Blood of the first Purchaser. And the same Rule e converso holds in Purchases in the Line of the Mother or Grandmother, they shall always keep in the same Line that the first Purchaser settled them in.

But it is not necessary, That he that inherits be always Heir to the Purchaser; it is sufficient if he be of his Blood, and Heir to him that was last seised. The Father purchases Lands which descended to the Son, who dies without Issue, they shall never descend to the Heir of the Part of the Son’s Mother; but if the Son’s Grandmother has a Brother, and the Son’s Great-Grandmother hath a Brother, and there are no other Kindred, they shall descend to the Grandmother’s Brother; and yet if the Father had died without Issue, his Grandmother’s Brother should have been preferred before his Mother’s Brother, because the former was Heir of the Part of his Father tho’ a Female, and the latter was only Heir of the Part of his Mother; but where the Son is once seized and dies without Issue, his Grandmother’s Brother is to him Heir of the Part of his Father, and being nearer than his Great Grandmother’s Brother, is preferred in the Descent.

But Note, This is always intended so long as the Line of Descent is not broken; for if the Son alien those Lands, and then repurchase them again in Fee, now the Rules of Descents are to be observ’d as if he were the original Purchaser, and as if it had been in the Line of the Father or Mother.

Seventhly, In all Successions, as well in the Line Descending, Transversal, or Ascending, the Line that is first derived from a Male Root has always the Preference.

Instances whereof in the Line Descending, &c. viz.

A. has Issue two Sons B. and C. B. has Issue a Son and a Daughter D. and E. D. the Son has Issue a Daughter F. and E. the Daughter has Issue a Son G. Neither C. nor any of his Descendants, shall inherit so long as there are any Descendants from D. and E. and neither E. the Daughter, nor any of her Descendants, shall inherit so long as there are any Descendants from D. the Son, whether they be Male or Female.

So in Descents Collateral, as Brothers and Sisters, the same Instances apply’d thereto, evidence the same Conclusions.

But in Successions in the Line Ascending, there must be a fuller Explication; because it is darker and more obscure, I shall therefore set forth the whole Method of Transversal Ascending Descents under the Eight ensuing Rules, viz.

First, If the Son purchases Lands in Fee-Simple, and dies without Issue, those of the Male Line ascending, usque infinitum shall be preferred in the Descent, according to their Proximity of Degree to the Son; and therefore the Father’s Brothers and Sisters and their Descendants shall be preferred before the Brothers, of the Grandfather and their Descendants; and if the Father had no Brothers nor Sisters, the Grandfather’s Brothers and their Descendants, and for want of Brothers, his Sisters and their Descendants, shall be preferr’d before the Brothers of the Great Grandfather: For altho’ by the Law of England the Father or Grandfather cannot immediately inherit to the Son, yet the Direction of the Descent to the Collateral Ascending Line, is as much as if the Father or Grandfather had been by Law inheritable; and therefore as in Case the Father had been inheritable, and should have inherited to the Son before the Grandfather, and the Grandfather, before the Great-Grandfather, and consequently if the Father had inherited and died without Issue, his eldest Brother and his Descendants should have inherited before the younger Brother and his Descendants; and if he had no Brothers but Sisters, the Sisters and their Descendants should have inherited before his Uncles or the Grandfather’s Brothers and their Descendants. So though the Law of England excludes the Father from inheriting, yet it substitutes and directs the Descent as it should have been, had the Father inherited, viz. It lets in those first that are in the next Degree to him.

Secondly, The second Rule is this: That the Line of the Part of the Mother shall never inherit as long as there are any, tho’ never so remote, of the Line of the Part of the Father; and therefore, tho’ the Mother has a Brother, yet if the Atavus or Atavia Patris (i. e. the Great-Great-Great-Grandfather, or Great-Great-Great-Grandmother of the Father) has a Brother or a Sister, he or she shall be preferred, and exclude the Mother’s Bother, though he is much nearer.

Thirdly, But yet further. The Male Line of the Part of the Father ascending, shall in AEternum exclude the Female Line of the Part of the Father ascending; and therefore in the Case proposed of the Son’s purchasing Lands and dying without Issue, the Sister of the Father’s Grandfather, or of his Great-Grandfather, and so in infinitum shall be preferred before the Father’s Mother’s Brother, tho’ the Father’s Mother’s Brother be a Male, and the Father’s Grandfather or Great-Grandfather’s Sister be a Female, and more remote, because she is of the Male Line, which is more worthy than the Female Line, though the Female Line, be also of the Blood of the Father.

Fourthly, But as in the Male Line ascending, the more near is preferred before the more remote; so in the Female Line descending, so it be of the Blood of the Father, it is preferred before the more remote. The Son, therefore purchasing Lands, and dying without Issue, and the Father, Grandfather, and Great-Grandfather, and so upward, all the Male Line being dead without any Brother or Sister, or any descending from them; but the Father’s Mother has a Sister or Brother, and also the Father’s Grandmother has a Brother, and likewise the Father’s GreatGrandmother has a Brother: Tho’ it is true, that all these are of the Blood of the Father; and tho’ the very remotest of them, shall exclude the Son’s Mother’s Brother; and tho’ it be also true, that the Great-Grandmother’s Blood has passed through more Males of the Father’s Blood than the Blood of the Grandmother or Mother of the Father; yet in this Case, the Father’s Mother’s Sister shall be preferred before the Father’s Grandmother’s Brother, or the Great Grandmother’s Brother, because they are all in the Female Line, viz. Cognati (and not Agnati), and the Father’s Mother’s Sister is the nearest, and therefore shall have the Preference as well as in the Male Line ascending, the Father’s Brother or his Sister shall he preferred before the Grandfather’s Brother.

Fifthly, But yet in the last Case, where the Son purchases Lands and dies without Issue, and without any Heir on the Part of the Grandfather, the Lands shall descend to the Grandmother’s Brother or Sister, as Heir on the Part of his Father; yet if the Father had purchased this Land and died, and it descended to his Son who died without Issue, the Lands should not have descended to the Father’s Mother’s Brother or Sister, for the Reasons before given in the Third Rule: But for want of Brothers or Sisters of the Grandfather, Great-Grandfather, and so upwards in the Male ascending Line, it should descend to the Father’s Grandmother’s Brother or Sister which is his Heir of the Part of his Father, who should be preferred before the Father’s Mother’s Brother, who is in Truth the Heir of the Part of the Mother of the Purchaser, tho’ the next Heir of the Part of the Father of him that last died seized; and therefore, as if the Father that was the Purchaser had died without Issue, the Heirs of the Part of the Father, whether of the Male or Female Line, should have been preferred before the Heirs of the Part of the Mother; so the Son, who stands now in the Place of the Father, and inherits to him primarily, in his Father’s Line, dying without Issue, the same Devolution and hereditary Succession should have been as if his Father had immediately died without Issue, which should have been to his Grandmother’s Brother, as Heir of the Part of the Father, though by the Female Line, and not to his Mother’s Brother, who was only Heir of the Part of his Mother, and who is not to take till the Father’s Line both Male and Female be spent.

Sixthly, If the Son purchases Lands and died without Issue, and it descends to any Heir of the Part of the Father, and then if the Line of the Father (after Entry and Possession) fail, it shall never return to the Line of the Mother; tho’ in the first Instance, or first Descent from the Son, it might have descended to the Heir of the Part of the Mother; for now by this Descent and Seisin it is lodged in the Father’s Line, to whom the Heir of the Part of the Mother can never derive a Title as Heir, but it shall rather escheat: But if the Heir of the Part of the Father had not entred, and then that Line had failed, it might have descended to the Heir of the Part of the Mother as Heir to the Son, to whom immediately, for want of Heirs of the Part of the Father, it might have descended.

Seventhly, And upon the same Reason, if it had once descended to the Heir of the Part of the Father of the Grandfather’s Line, and that Heir had entred, it should never descend to the Heir of the Part of the Father of the Grandmother’s Line, because the Line of the Grandmother was not of the Blood or Consanguinity of the Line of the Grandfather’s Side.

Eighthly, If for Default of Heirs of the Purchaser of the Part of the Father, the Lands descend to the Line of the Mother, the Heirs of the Mother of the Part of her Father’s Side, shall be preferred in the Succession before her Heirs of the Part of her Mother’s Side, because they are the more worthy.

And thus the Law stands in Point of Descents or Hereditary Successions in England at this Day, and has so stood and continued for above four Hundred Years past, as by what has before been said, may easily appear. And Note, The most Part of the Eight Rules and Differences above specified and explained, may be collected out of the Resolutions in the Case of Clare versus Brook, &c. in Plowden’s Commentaries, Folio 444.

XII. Touching Trials by Jury

Having in the former Chapter somewhat largely treated of the Course of Descents, I shall now with more Brevity consider that other Title of our Law which I before propounded (in order to evidence the Excellency of the Laws of England above those of other Nations,) viz. The Trial by a Jury of Twelve Men; which upon all Accounts, as it is settled here in this Kingdom, seems to be the best Trial in the World: I shall therefore give a short Account of the Method and Manner of that Trial, viz.

First, The Writ to return a Jury, issues to the Sheriff of the County: And,

1st, He is to be a Person of Worth and Value, that so he may be responsible for any Defaults, either of himself or his Officers. And, 2dly, Is sworn, faithfully and honestly to execute his Office. This Officer is entrusted to elect and return the Jury, which he is obliged to do in this Manner: 1. Without the Nomination of either Party. 2. They are to be such Persons as for Estate and Quality are fit to serve upon that Employment. 3. They are to be of the Neighbourhood of the Fact to be inquired, or at least of the County or Bailywick. And, 4. Anciently Four, and now Two of them at least are to be of the Hundred. But Note, This is now in great Measure altered by Statute.

Secondly, Touching the Number and Qualifications of the Jury.

1st, As to their Number, though only Twelve are sworn, yet Twenty-four are to be returned to supply the Defects or Want of Appearance of those that are challenged off, or make Default. 2dly, Their Qualifications are many, and are generally set down in the Writ that summons them, viz. 1. They are to be Probi & legales Homines. 2. Of sufficient Freeholds, according to several Provisions of Acts of Parliament. 3. Not Convict of any notorious Crime that may render them unfit for that Employment. 4. They are not to be of the Kindred or Alliance of any of the Parties. And, 5. Not to be such as are prepossed or prejudiced before they hear their Evidence.

Thirdly, The Time of their Return.

Indeed, in Assizes, the Jury is to be ready at the Bar the first Day of the Return of the Writ: But in other Cases, the Pannel is first returned upon the Venire Facias, or ought to be so, and the Proofs or Witnesses are to be brought or summoned by Distringas or Habeas Corpora for their Appearance at the Trial, whereby the Parties may have Notice of the Jurors, and of their Sufficiency and Indifferency, that so they may make their Challenges upon the Appearance of the Jurors if there be just Cause.

Fourthly, The Place of their Appearance.

If it be in Cases of such Weight and Consequence as by the Judgment of the Court is fit to be tried at the Bar, then their Appearance is directed to be there; but in ordinary Cases, the Place of Appearance is in the Country at the Assizes, or Nisi Prius, in the County where the Issue to be tried arises: And certainly this is an excellent Constitution. The great Charge of Suits is the Attendance of the Parties, the Jury-Men and Witnesses: And therefore tho’ the Preparation of the Causes in Point of pleading to Issue, and the Judgment, is for the most Part in the Courts at Westminster, whereby there is kept a great Order and Uniformity of Proceedings in the whole Kingdom, to prevent Multiplicity of Laws and Forms; yet those are but of small Charge, or Trouble, or Attendance, one Attorney being able to dispatch forty Mens Business with the same Ease, and no greater Attendance than one Man would dispatch his own Business: But the great Charge and Attendance is at the Trial, which is therefore brought Home to the Parties in the Countries, and for the most Part near where they live.

Fifthly, The Persons before whom they are to appear.

If the Trial be at the Bar, it is to be before that Court where the Trial is; if in the Country, then before the Justices of Assizes, or Nisi Prius, who are Persons well acquainted with the Common Law, and for the most Part are Two of those Twelve ordinary Justices who are appointed for the Common Dispensation of Justice in the Three great Courts at Westminster. And this certainly was a most wise Constitution: For

1st, It prevents Factions and Parties in the Carriage of Business, which would soon appear in every Cause of Moment, were the Trial only before Men residing in the Counties, as Justices of the Peace, or the like, or before Men of little or no Place, Countenance or Preheminence above others; and the more to prevent Partiality in this Kind, those Judges are by Law prohibited to hold their Sessions in Counties where they were born or dwell.

2dly, As it prevents Factions and Part-takings, so it keeps both the Rule and the Administration of the Laws of the Kingdom uniform; for those Men are employed as Justices, who as they have had a Common Education in the Study of the Law, so they daily in Term-time converse and consult with one another; acquaint one another with their Judgments, sit near one another in Westminster-Hall, whereby their Judgments and Decisions are necessarily communicated to one another, either immediately or by Relations of others, and by this Means their Judgments and their Administrations of Common Justice carry a Consonancy, Congruity and Uniformity one to another, whereby both the Laws and the Administrations thereof are preserved from that Confusion and Disparity that would unavoidably ensue, if the Administration was by several incommunicating Hands, or by provincial Establishments: And besides all this, all those Judges are solemnly sworn to observe and judge according to the Laws of the Kingdom, according to the best of their Knowledge and Understanding.

Sixthly, When the Jurors appear, and are called, each Party has Liberty to take his Challenge to the Array itself, if unduly or partially made by the Sheriff; or if the Sheriff be of Kin to either Party, or to the Polls, either for Insufficiency of Freehold, or Kindred or Alliance to the other Party, or such other Challenges, either Principal, or to the Favour, as renders the Juror unfit and incompetent to try the Cause, and the Challenge being confess’d or found true by some of the rest of the Jury, that particular incompetent Person is withdrawn.

Seventhly, Then Twelve, and no less, of such as are indifferent and are return’d upon the principal Pannel, or the Tales, are sworn to try the same according to their Evidence.

Eighthly, Being thus sworn, the Evidence on either Part is given in upon the Oath of Witnesses, or other Evidence by Law allowed, (as Records and ancient Deeds, but later Deeds and Copies of Records must be attested by the Oaths of Witnesses) and other Evidence in the open Court, and in the Presence of the Parties, their Attornies, Council and all By-standers, and before the Judge and Jury, where each Party has Liberty of excepting, either to the Competency of the Evidence, or the Competency or Credit of the Witnesses, which Exceptions are publickly stated, and by the Judges openly or publickly allowed or disallowed, wherein if the Judge be partial, his Partiality and Injustice will be evident to all By-standers; and if in his Direction or Decision he mistake the Law, either through Partiality, Ignorance, or Inadvertency, either Party may require him to seal a Bill of Exception, thereby to deduce the Error of the Judge (if any were) to a due Ratification or Reversal by Writ of Error.

Ninthly, The Excellency of this open Course of Evidence to the Jury in Presence of the Judge, Jury, Parties and Council, and even of the adverse Witnesses, appears in these Particulars:

1st, That it is openly; and not in private before a Commissioner or Two, and a couple of Clerks, where oftentimes Witnesses will deliver that which they will be ashamed to testify publickly.

2dly, That it is Ore Tenus personally, and not in Writing, wherein oftentimes, yea too often, a crafty Clerk, Commissioner, or Examiner, will make a Witness speak what he truly never meant, by his dressing of it up in his own Terms, Phrases, and Expressions; whereas on the other Hand, many times the very Manner of a Witness’s delivering his Testimony will give a probable Indication whether he speaks truly or falsly. and by this Means also he has Opportunity to correct, amend, or explain his Testimony upon further Questioning with him, which he can never have after a Deposition is set down in Writing.

3dly, That by this Course of personal and open Examination, there is Opportunity for all Persons concern’d, viz. The Judge, or any of the Jury, or Parties, or their Council or Attornies, to propound occasional Questions, which beats and boults out the Truth much better than when the Witness only delivers a formal Series of his Knowledge without being interrogated; and on the other Side, preparatory, limited, and formal Interrogatories in Writing, preclude this Way of occasional Interrogations, and the best Method of searching and sifting out the Truth is choak’d and suppress’d.

4thly, Also by this personal Appearance and Testimony of Witnesses, there is Opportunity of confronting the adverse Witnesses, of observing the Contradiction of Witnesses sometimes of the same Side, and by this Means great Opportunities are gained for the true and clear Discovery of the Truth.

5thly, And further, The very Quality, Carriage, Age, Condition, Education, and Place of Commorance of Witnesses, is by this Means plainly and evidently set forth to the Court and the Jury, whereby the Judge and Jurors may have a full Information of them, and the Jurors, as they see Cause, may give the more or less Credit to their Testimony, for the Jurors are not only Judges of the Fact, but many Times of the Truth of Evidence; and if there be just Cause to disbelieve what a Witness swears, they are not bound to give their Verdict according to the Evidence or Testimony of that Witness; and they may sometimes give Credit to one Witness, tho’ oppos’d by more than one. And indeed, it is one of the Excellencies of this Trial above the Trial by Witnesses, that altho’ the Jury ought to give a great Regard to Witnesses and their Testimony, yet they are not always bound by it, but may either upon reasonable Circumstances, inducing a Blemish upon their Credibility, tho, otherwise in themselves in Strictness of Law they are to be heard, pronounce a Verdict contrary to such Testimonies, the Truth whereof they have just Cause to suspect, and may and do often pronounce their Verdict upon one single Testimony, which Thing the Civil Law admits not of.

Tenthly, Another Excellency of this Trial is this; That the Judge is always present at the Time of the Evidence given in it: Herein he is able in Matters of Law emerging upon the Evidence to direct them; and also, in Matters of Fact, to give them a great Light and Assistance by his weighing the Evidence before them, and observing where the Question and Knot of the Business lies, and by shewing them his Opinion even in Matter of Fact, which is a great Advantage and Light to Lay-Men: And thus, as the Jury assists the Judge in determining the Matter of Fact, so the Judge assists the Jury in determining Points of Law, and also very much in investigating and enlightning the Matter of Fact, whereof the Jury are Judges.

Eleventhly, When the Evidence is fully given, the Jurors withdraw to a private Place, and are kept from all Speech with either of the Parties till their Verdict is delivered up, and from receiving any Evidence other than in open Court, where it may be search’d into, discuss’d and examin’d. In this Recess of the Jury they are to consider their Evidence, and if any Writings under Seal were given in Evidence, they are to have with them; they are to weigh the Credibility of Witnesses, and the Force and Efficacy of their Testimonies, wherein (as I before said) they are not precisely bound to the Rules of the Civil Law, viz. To have two Witnesses to prove every Fact, unless it be in Cases of Treason, nor to reject one Witness because he is single, or always to believe Two Witnesses if the Probability of the Fact does upon other Circumstances reasonably encounter them; for the Trial is not here simply by Witnesses, but by Jury; nay, it may so fall out, that the Jury upon their own Knowledge may know a Thing to be false that a Witness swore to be true, or may know a Witness to be incompetent or incredible, tho’ nothing be objected against him, and may give their Verdict accordingly.

Twelfthly, When the whole Twelve Men are agreed, then, and not till then, is their Verdict to be received; and therefore the Majority of Assentors does not conclude the Minority, as is done in some Countries where Trials by Jury are admitted: But if any one of the Twelve dissent, it is no Verdict, nor ought to be received. It is true, That in ancient Times, as Hen. 2 and Hen. 3’s Time, yea, and by Fleta in the Beginning of Edw. I’s Time, if the Jurors dissented, sometimes there was added a Number equal to the greater Party, and they were then to give up their Verdict by Twelve of the old Jurors, and the Jurors so added; but this Method has been long Time antiquated, notwithstanding the Practice in Bracton’s Time, lib. 4. cap. 9. and Fleta, lib. 4. cap. 9. for at this Day the entire Number first empanell’d and sworn are to give up an unanimous Verdict, otherwise it is none. And indeed this gives a great Weight, Value and Credit to such a Verdict, wherein Twelve Men must unanimously agree in a Matter of Fact, and none dissent; though it must be agreed, that an ignorant Parcel of Men are sometimes governed by a few that are more knowing, or of greater Interest or Reputation than the rest.

Thirteenthly, But if there be Matter of Law that carries in it any Difficulty, the Jury may, to deliver themselves from the Danger of an Attaint, find it specially, that so it may be decided in that Court where the Verdict is returnable; and if the Judge overrule the Point of Law contrary to Law, whereby the Jury are perswaded to find a general Verdict (which yet they are not bound to do, if they doubt it,) then the Judge, upon the Request of the Party desiring it, is bound by Law in convenient Time to seal a Bill of Exceptions, containing the whole Matter excepted to; that so the Party grieved, by such Indiscretion or Error of the Judge, may have Relief by Writ of Error on the Statute of Westminster 2.

Fourteenthly, Altho’ upon general Verdicts given at the Bar in the Courts at Westminster, the Judgment is given within Four Days, in Presumption that there cannot be any considerable Surprise in so solemn a Trial, or at least it may be soon espied; yet upon Trials by Nisi prius in the Country, the Judgment is not given presently by the Judge of Nisi prius, unless in Cases of Quare Impedits: But the Verdict is returned after Trial into that Court from whence the Cause issued, that thereby, if any Surprise happened either through much Business of the Court, or through Inadvertency of the Attorney or Council, or through any Miscarriage of the Jury, or through any other Casualty, the Party may have his Redress in that Court from whence the Record issued.

And thus stands this excellent Order of Trial by Jury, which is far beyond the Trial by Witnesses according to the Proceedings of the Civil Law, and of the Courts of Equity, both for the Certainty, the Dispatch, and the Cheapness thereof: It has all the Helps to investigate the Truth that the Civil Law has, and many more. For as to Certainty,

1st, It has the Testimony of Witnesses, as well as the Civil Law and Equity Courts.

2dly, It has this Testimony in a much more advantageous Way than those Courts for Discovery of Truth.

3dly, It has the Advantage of the Judge’s Observation, Attention, and Assistance, in Point of Law by way of Decision, and in Point of Fact by way of Direction to the Jury.

4thly, It has the Advantage of the Jury, and of their being de Vicineto, who oftentimes know the Witnesses and the Parties: And,

5thly, It has the unanimous Suffrage and Opinion of Twelve Men, which carries in itself a much greater Weight and Preponderation to discover the Truth of a Fact, than any other Trial whatsoever.

And as this Method is more certain, so it is much more expeditious and cheap; for oftentimes the Session of one Commission for the Examination of Witnesses for one Cause in the Ecclesiastical Courts, or Courts of Equity, lasts as long as a whole Session of Nisi prius, where a Hundred Causes are examined and tried.

And thus much concerning Trials in Civil Causes. As for Trials in Causes Criminal, they have this further Advantage, That regularly the Accusation, as preparatory to the Trial, is by a Grand Jury: So that as no Man’s Interest, according to the Course of the Common Law, is to be tried or determined without the Oaths of a Jury of twelve Men; so no Man’s Life is to be tried but by the Oaths of Twelve Men, and by the Preparatory Accusation or Indictment by Twelve Men or more precedent to his Trial, unless it be in the Case of an Appeal at the Suit of the Party.




The Concept of Possession: Why it needs to be protected

POSSESSION-Oliver Wendell Holmes, Jr.

Why is possession protected by the law, when the possessor is not an owner?

What are the rights of ownership?

Whether an easement is capable of possession?

POSSESSION is a conception which is only less important than contract. But the interest attaching to the theory of possession does not stop with its practical importance in the body of English law.

The theory has fallen into the hands of the philosophers, and with them has become a corner-stone of more than one elaborate structure. It will be a service to sound thinking to show that a far more civilized system than the Roman is framed upon a plan which is irreconcilable with the a priori doctrines of Kant and Hegel. Those doctrines are worked out in careful correspondence with German views of Roman law. And most of the speculative jurists of Germany, from Savigny to Ihering, have been at once professors of Roman law, and profoundly influenced if not controlled by some form of Kantian or post-Kantian philosophy. Thus everything has combined to give a special bent to German speculation, which deprives it of its claim to universal authority.

Why is possession protected by the law, when the possessor is not also an owner? That is the general problem which has much exercised the German mind. Kant, it is well known, was deeply influenced in his opinions upon ethics and law by the speculations of Rousseau. Kant, Rousseau, and the Massachusetts Bill of Rights agree that all men are born free and equal, and one or the other branch of that declaration has afforded the answer to the question why possession should be protected from that day to this. Kant and Hegel start from freedom. The freedom of the will, Kant said, is the essence of man. It is an end in itself; it is that which needs no further explanation, which is absolutely to be respected, and which it is the very end and object of all government to realize and affirm.

Possession is to be protected because a man by taking possession of an object has brought it within the sphere of his will. He has extended his personality into or over that object. As Hegel would have said, possession is the objective realization of free will. And by Kant’s postulate, the will of any individual thus manifested is entitled to absolute respect from every other individual, and can only be overcome or set aside by the universal will, that is, by the state, acting through its organs, the courts.

Savigny did not follow Kant on this point. He said that every act of violence is unlawful, and seemed to consider protection of possession a branch of protection to the person. But to this it was answered that possession was protected against disturbance by fraud as well as by force, and his view is discredited. Those who have been contented with humble grounds of expediency seem to have been few in number, and have recanted or are out of favor.

The majority have followed in the direction pointed out by Kant. Bruns, an admirable writer, expresses a characteristic yearning of the German mind, when he demands an internal juristic necessity drawn from the nature of possession itself, and therefore rejects empirical reasons. He finds the necessity he seeks in the freedom of the human will, which the whole legal system does but recognize and carry out. Constraint of it is a wrong, which must be righted without regard to conformity of the will to law, and so on in a Kantian vein. So Gans, a favorite disciple of Hegel, “The will is of itself a substantial thing to be protected, and this individual will has only to yield to the higher common will.” So Puchta, a great master, “The will which wills itself, that is, the recognition of its own personality, is to be protected.”

The chief variation from this view is that of Windscheid, a writer now in vogue. He prefers the other branch of the declaration in the Bill of Rights. He thinks that the protection to possession stands on the same grounds as protection against injuria, that every one is the equal of every other in the state, and that no one shall raise himself over the other. Ihering, to be sure, a man of genius, took an independent start, and said that possession is ownership on the defensive; and that, in favor of the owner, he who is exercising ownership in fact (i. e. the possessor) is freed from the necessity of proving title against one who is in an unlawful position. But to this it was well answered by Bruns, in his later work, that it assumes the title of disseisors to be generally worse than that of disseisees, which cannot be taken for granted, and which probably is not true in fact.

It follows from the Kantian doctrine, that a man in possession is to be confirmed and maintained in it until he is put out by an action brought for the purpose. Perhaps another fact besides those which have been mentioned has influenced this reasoning, and that is the accurate division between possessory and petitory actions or defences in Continental procedure. When a defendant in a possessory action is not allowed to set up title in himself, a theorist readily finds a mystical importance in possession.

But when does a man become entitled to this absolute protection? On the principle of Kant, it is not enough that he has the custody of a thing. A protection based on the sacredness of man’s personality requires that the object should have been brought within the sphere of that personality, that the free will should have unrestrainedly set itself into that object. There must be then an intent to appropriate it, that is, to make it part of one’s self, or one’s own.

Here the prevailing view of the Roman law comes in to fortify principle with precedent. We are told that, of the many who might have the actual charge or custody of a thing, the Roman law recognized as possessor only the owner, or one holding as owner and on his way to become one by lapse of time. In later days it made a few exceptions on practical grounds. But beyond the pledgee and the sequester (a receiver appointed by the court) these exceptions are unimportant and disputed. Some of the Roman jurists state in terms that depositaries and borrowers have not possession of the things intrusted to them. Whether the German interpretation of the sources goes too far or not, it must be taken account of in the examination of German theories.

Philosophy by denying possession to bailees in general cunningly adjusted itself to the Roman law, and thus put itself in a position to claim the authority of that law for the theory of which the mode of dealing with bailees was merely a corollary. Hence I say that it is important to show that a far more developed, more rational, and mightier body of law than the Roman, gives no sanction to either premise or conclusion as held by Kant and his successors.

In the first place, the English law has always had the good sense to allow title to be set up in defence to a possessory action. In the assize of novel disseisin, which which was a true possessory action, the defendant could always rely on his title. Even when possession is taken or kept in a way which is punished by the criminal law, as in case of forcible entry and detainer, proof of title allows the defendant to retain it, and in many cases has been held an answer to an action of trespass. So in trespass for taking goods the defendant may set up title in himself. There might seem to be a trace of the distinction in the general rule, that the title cannot be tried in trespass quare clausum. But this is an exception commonly put on the ground that the judgment cannot change the property, as trespass for chattels or trover can. The rule that you cannot go into title in a possessory action presupposes great difficulty in the proof, the probatio diabolica of the Canon law, delays in the process, and importance of possession ad interim,—all of which mark a stage of society which has long been passed. In ninety-nine cases out of a hundred, it is about as easy and cheap to prove at least a prima facie title as it is to prove possession.

In the next place, and this was the importance of the last Lecture to this subject, the common law has always given the possessory remedies to all bailees without exception. The right to these remedies extends not only to pledgees, lessees, and those having a lien, who exclude their bailor, but to simple bailees, as they have been called, who have no interest in the chattels, no right of detention as against the owner, and neither give nor receive a reward.

Modern German statutes have followed in the same path so far as to give the possessory remedies to tenants and some others. Bruns says, as the spirit of the Kantian theory required him to say, that this is a sacrifice of principle to convenience. But I cannot see what is left of a principle which avows itself inconsistent with convenience and the actual course of legislation. The first call of a theory of law is that it should fit the facts. It must explain the observed course of legislation. And as it is pretty certain that men will make laws which seem to them convenient without troubling themselves very much what principles are encountered by their legislation, a principle which defies convenience is likely to wait some time before it finds itself permanently realized.

It remains, then, to seek for some ground for the protection of possession outside the Bill of Rights or the Declaration of Independence, which shall be consistent with the larger scope given to the conception in modern law.

The courts have said but little on the subject. It was laid down in one case that it was an extension of the protection which the law throws around the person, and on that ground held that trespass quare clausum did not pass to an assignee in bankruptcy. So it has been said, that to deny a bankrupt trover against strangers for goods coming to his possession after his bankruptcy would be “an invitation to all the world to scramble for the possession of them”; and reference was made to “grounds of policy and convenience.” I may also refer to the cases of capture, some of which will be cited again. In the Greenland whale-fishery, by the English custom, if the first striker lost his hold on the fish, and it was then killed by another, the first had no claim; but he had the whole if he kept fast to the whale until it was struck by the other, although it then broke from the first harpoon. By the custom in the Gallipagos, on the other hand, the first striker had half the whale, although control of the line was lost. Each of these customs has been sustained and acted on by the English courts, and Judge Lowell has decided in accordance with still a third, which gives the whale to the vessel whose iron first remains in it, provided claim be made before cutting in. The ground as put by Lord Mansfield is simply that, were it not for such customs, there must be a sort of warfare perpetually subsisting between the adventurers. If courts adopt different rules on similar facts, according to the point at which men will fight in the several cases, it tends, so far as it goes, to shake an a priori theory of the matter.

Those who see in the history of law the formal expression of the development of society will be apt to think that the proximate ground of law must be empirical, even when that ground is the fact that a certain ideal or theory of government is generally entertained. Law, being a practical thing, must found itself on actual forces. It is quite enough, therefore, for the law, that man, by an instinct which he shares with the domestic dog, and of which the seal gives a most striking example, will not allow himself to be dispossessed, either by force or fraud, of what he holds, without trying to get it back again. Philosophy may find a hundred reasons to justify the instinct, but it would be totally immaterial if it should condemn it and bid us surrender without a murmur. As long as the instinct remains, it will be more comfortable for the law to satisfy it in an orderly manner, than to leave people to themselves. If it should do otherwise, it would become a matter for pedagogues, wholly devoid of reality.

I think we are now in a position to begin the analysis of possession. It will be instructive to say a word in the first place upon a preliminary question which has been debated with much zeal in Germany. Is possession a fact or a right? This question must be taken to mean, by possession and right, what the law means by those words, and not something else which philosophers or moralists may mean by them; for as lawyers we have nothing to do with either, except in a legal sense. If this had always been borne steadily in mind, the question would hardly have been asked.

A legal right is nothing but a permission to exercise certain natural powers, and upon certain conditions to obtain protection, restitution, or compensation by the aid of the public force. Just so far as the aid of the public force is given a man, he has a legal right, and this right is the same whether his claim is founded in righteousness or iniquity. Just so far as possession is protected, it is as much a source of legal rights as ownership is when it secures the same protection.

Every right is a consequence attached by the law to one or more facts which the law defines, and wherever the law gives any one special rights not shared by the body of the people, it does so on the ground that certain special facts, not true of the rest of the world, are true of him. When a group of facts thus singled out by the law exists in the case of a given person, he is said to be entitled to the corresponding rights; meaning, thereby, that the law helps him to constrain his neighbors, or some of them, in a way in which it would not, if all the facts in question were not true of him. Hence, any word which denotes such a group of facts connotes the rights attached to it by way of legal consequences, and any word which denotes the rights attached to a group of facts connotes the group of facts in like manner.

The word “possession” denotes such a group of facts. Hence, when we say of a man that he has possession, we affirm directly that all the facts of a certain group are true of him, and we convey indirectly or by implication that the law will give him the advantage of the situation. Contract, or property, or any other substantive notion of the law, may be analyzed in the same way, and should be treated in the same order. The only difference is, that, while possession denotes the facts and connotes the consequence, property always, and contract with more uncertainty and oscillation, denote the consequence and connote the facts. When we say that a man owns a thing, we affirm directly that he has the benefit of the consequences attached to a certain group of facts, and, by implication, that the facts are true of him. The important thing to grasp is, that each of these legal compounds, possession, property, and contract, is to be analyzed into fact and right, antecedent and consequent, in like manner as every other. It is wholly immaterial that one element is accented by one word, and the other by the other two. We are not studying etymology, but law. There are always two things to be asked: first, what are the facts which make up the group in question; and then, what are the consequences attached by the law to that group. The former generally offers the only difficulties.

Hence, it is almost tautologous to say that the protection which the law attaches by way of consequence to possession, is as truly a right in a legal sense as those consequences which are attached to adverse holding for the period of prescription, or to a promise for value or under seal. If the statement is aided by dramatic reinforcement, I may add that possessory rights pass by descent or devise, as well as by conveyance, and that they are taxed as property in some of the States.

We are now ready to analyze possession as understood by the common law. In order to discover the facts which constitute it, it will be found best to study them at the moment when possession is first gained. For then they must all be present in the same way that both consideration and promise must be present at the moment of making a contract. But when we turn to the continuance of possessory rights, or, as is commonly said, the continuance of possession, it will be agreed by all schools that less than all the facts required to call those rights into being need continue presently true in order to keep them alive.

To gain possession, then, a man must stand in a certain physical relation to the object and to the rest of the world, and must have a certain intent. These relations and this intent are the facts of which we are in search.

The physical relation to others is simply a relation of manifested power coextensive with the intent, and will need to have but little said about it when the nature of the intent is settled. When I come to the latter, I shall not attempt a similar analysis to that which has been pursued with regard to intent as an element of liability. For the principles developed as to intent in that connection have no relation to the present subject, and any such analysis so far as it did not fail would be little more than a discussion of evidence. The intent inquired into here must be overtly manifested, perhaps, but all theories of the grounds on which possession is protected would seem to agree in leading to the requirement that it should be actual, subject, of course, to the necessary limits of legal investigation.

But, besides our power and intent as towards our fellow-men, there must be a certain degree of power over the object. If there were only one other man in the world, and he was safe under lock and key in jail, the person having the key would not possess the swallows that flew over the prison. This element is illustrated by cases of capture, although no doubt the point at which the line is drawn is affected by consideration of the degree of power obtained as against other people, as well as by that which has been gained over the object. The Roman and the common law agree that, in general, fresh pursuit of wild animals does not give the pursuer the rights of possession. Until escape has been made impossible by some means, another may step in and kill or catch and carry off the game if he can. Thus it has been held that an action does not lie against a person for killing and taking a fox which had been pursued by another, and was then actually in the view of the person who had originally found, started, and chased it. The Court of Queen’s Bench even went so far as to decide, notwithstanding a verdict the other way, that when fish were nearly surrounded by a seine, with an opening of seven fathoms between the ends, at which point boats were stationed to frighten them from escaping, they were not reduced to possession as against a stranger who rowed in through the opening and helped himself. But the difference between the power over the object which is sufficient for possession, and that which is not, is clearly one of degree only, and the line may be drawn at different places at different times on grounds just referred to. Thus we are told that the legislature of New York enacted, in , that any one who started and pursued deer in certain counties of that State should be deemed in possession of the game so long as he continued in fresh pursuit of it, and to that extent modified the New York decisions just cited. So, while Justinian decided that a wild beast so badly wounded that it might easily be taken must be actually taken before it belongs to the captors, Judge Lowell, with equal reason, has upheld the contrary custom of the American whalemen in the Arctic Ocean, mentioned above, which gives a whale to the vessel whose iron first remains in it, provided claim be made before cutting in.

We may pass from the physical relation to the object with these few examples, because it cannot often come into consideration except in the case of living and wild things. And so we come to the intent, which is the really troublesome matter. It is just here that we find the German jurists unsatisfactory, for reasons which I have already explained. The best known theories have been framed as theories of the German interpretation of the Roman law, under the influence of some form of Kantian or post-Kantian philosophy. The type of Roman possession, according to German opinion, was that of an owner, or of one on his way to become owner. Following this out, it was said by Savigny, the only writer on the subject with whom English readers are generally acquainted, that the animus domini, or intent to deal with the thing as owner, is in general necessary to turn a mere physical detention into juridical possession. We need not stop to inquire whether this modern form or the Greek characters (animus dominantis, animus dominandi) of Theophilus and the Greek sources is more exact; for either excludes, as the civilians and canonists do, and as the German theories must, most bailees and termors from the list of possessors.

The effect of this exclusion as interpreted by the Kantian philosophy of law, has been to lead the German lawyers to consider the intent necessary to possession as primarily self-regarding. Their philosophy teaches them that a man’s physical power over an object is protected because he has the will to make it his, and it has thus become a part of his very self, the external manifestation of his freedom. The will of the possessor being thus conceived as self-regarding, the intent with which he must hold is pretty clear: he must hold for his own benefit. Furthermore, the self-regarding intent must go to the height of an intent to appropriate; for otherwise, it seems to be implied, the object would not truly be brought under the personality of the possessor.

The grounds for rejecting the criteria of the Roman law have been shown above. Let us begin afresh. Legal duties are logically antecedent to legal rights. What may be their relation to moral rights if there are any, and whether moral rights are not in like manner logically the offspring of moral duties, are questions which do not concern us here. These are for the philosopher, who approaches the law from without as part of a larger series of human manifestations. The business of the jurist is to make known the content of the law; that is, to work upon it from within, or logically, arranging and distributing it, in order, from its stemmum genus to its infima species, so far as practicable. Legal duties then come before legal rights. To put it more broadly, and avoid the word duty, which is open to objection, the direct working of the law is to limit freedom of action or choice on the part of a greater or less number of persons in certain specified ways; while the power of removing or enforcing this limitation which is generally confided to certain other private persons, or, in other words, a right corresponding to the burden, is not a necessary or universal correlative. Again, a large part of the advantages enjoyed by one who has a right are not created by the law. The law does not enable me to use or abuse this book which lies before me. That is a physical power which I have without the aid of the law. What the law does is simply to prevent other men to a greater or less extent from interfering with my use or abuse. And this analysis and example apply to the case of possession, as well as to ownership.

Such being the direct working of the law in the case of possession, one would think that the animus or intent most nearly parallel to its movement would be the intent of which we are in search. If what the law does is to exclude others from interfering with the object, it would seem that the intent which the law should require is an intent to exclude others. I believe that such an intent is all that the common law deems needful, and that on principle no more should be required.

It may be asked whether this is not simply the animus domini looked at from the other side. If it were, it would nevertheless be better to look at the front of the shield than at the reverse. But it is not the same if we give to the animus domini the meaning which the Germans give it, and which denies possession to bailees in general. The intent to appropriate or deal with a thing as owner can hardly exist without an intent to exclude others, and something more; but the latter may very well be where there is no intent to hold as owner. A tenant for years intends to exclude all persons, including the owner, until the end of his term; yet he has not the animus domini in the sense explained. Still less has a bailee with a lien, who does not even mean to use, but only to detain the thing for payment. But, further, the common law protects a bailee against strangers, when it would not protect him against the owner, as in the case of a deposit or other bailment terminable at pleasure; and we may therefore say that the intent even to exclude need not be so extensive as would be implied in the animus domini. If a bailee intends to exclude strangers to the title, it is enough for possession under our law, although he is perfectly ready to give the thing up to its owner at any moment; while it is of the essence of the German view that the intent must not be relative, but an absolute, self-regarding intent to take the benefit of the thing. Again, if the motives or wishes, and even the intentions, most present to the mind of a possessor, were all self-regarding, it would not follow that the intent toward others was not the important thing in the analysis of the law. But, as we have seen, a depositary is a true possessor under the common-law theory, although his intent is not self-regarding, and he holds solely for the benefit of the owner.

There is a class of cases besides those of bailees and tenants, which will probably, although not necessarily, be decided one way or the other, as we adopt the test of an intent to exclude, or of the animus domini. Bridges v. Hawkesworth will serve as a starting-point. There, a pocket-book was dropped on the floor of a shop by a customer, and picked up by another customer before the shopkeeper knew of it. Common-law judges and civilians would agree that the finder got possession first, and so could keep it as against the shopkeeper. For the shopkeeper, not knowing of the thing, could not have the intent to appropriate it, and, having invited the public to his shop, he could not have the intent to exclude them from it. But suppose the pocket-book had been dropped in a private room, how should the case be decided? There can be no animus domini unless the thing is known of; but an intent to exclude others from it may be contained in the larger intent to exclude others from the place where it is, without any knowledge of the object’s existence.

In McAvoy v. Medina, a pocket-book had been left upon a barber’s table, and it was held that the barber had a better right than the finder. The opinion is rather obscure. It takes a distinction between things voluntarily placed on a table and things dropped on the floor, and may possibly go on the ground that, when the owner leaves a thing in that way, there is an implied request to the shopkeeper to guard it, which will give him a better right than one who actually finds it before him. This is rather strained, however, and the court perhaps thought that the barber had possession as soon as the customer left the shop. A little later, in a suit for a reward offered to the finder of a pocket-book, brought by one who discovered it where the owner had left it, on a desk for the use of customers in a bank outside the teller’s counter, the same court said that this was not the finding of a lost article, and that “the occupants of the banking house, and not the plaintiff, were the proper depositaries of an article so left.” This language might seem to imply that the plaintiff was not the person who got possession first after the defendant, and that, although the floor of a shop may be likened to a street, the public are to be deemed excluded from the shop’s desks, counters, and tables except for the specific use permitted. Perhaps, however, the case only decides that the pocket-book was not lost within the condition of the offer.

I should not have thought it safe to draw any conclusion from wreck cases in England, which are mixed up with questions of prescription and other rights. But the precise point seems to have been adjudicated here. For it has been held that, if a stick of timber comes ashore on a man’s land, he thereby acquires a “right of possession” as against an actual finder who enters for the purpose of removing it. A right of possession is said to be enough for trespass; but the court seems to have meant possession by the phrase, inasmuch as Chief Justice Shaw states the question to be which of the parties had “the preferable claim, by mere naked possession, without other title,” and as there does not seem to have been any right of possession in the case unless there was actual possession.

In a criminal case, the property in iron taken from the bottom of a canal by a stranger was held well laid in the canal company, although it does not appear that the company knew of it, or had any lien upon it.

The only intent concerning the thing discoverable in such instances is the general intent which the occupant of land has to exclude the public from the land, and thus, as a consequence, to exclude them from what is upon it.

The Roman lawyers would probably have decided all these cases differently, although they cannot be supposed to have worked out the refined theories which have been built upon their remains.

I may here return to the case of goods in a chest delivered under lock and key, or in a bale, and the like. It is a rule of the criminal law, that, if a bailee of such a chest or bale wrongfully sells the entire chest or bale, he does not commit larceny, but if he breaks bulk he does, because in the former case he does not, and in the latter he does, commit a trespass. The reason sometimes offered is, that, by breaking bulk, the bailee determines the bailment, and that the goods at once revest in the possession of the bailor. This is, perhaps, an unnecessary, as well as inadequate fiction. The rule comes from the Year Books, and the theory of the Year Books was, that, although the chest was delivered to the bailee, the goods inside of it were not, and this theory was applied to civil as well as criminal cases. The bailor has the power and intent to exclude the bailee from the goods, and therefore may be said to be in possession of them as against the bailee.

On the other hand, a case in Rhode Island is against the view here taken. A man bought a safe, and then, wishing to sell it again, sent it to the defendant, and gave him leave to keep his books in it until sold. The defendant found some bank-notes stuck in a crevice of the safe, which coming to the plaintiff’s ears he demanded the safe and the money. The defendant sent back the safe, but refused to give up the money, and the court sustained him in his refusal. I venture to think this decision wrong. Nor would my opinion be changed by assuming, what the report does not make perfectly clear, that the defendant received the safe as bailee, and not as servant or agent, and that his permission to use the safe was general. The argument of the court goes on the plaintiff’s not being a finder. The question is whether he need be. It is hard to believe that, if the defendant had stolen the bills from the safe while it was in the owner’s hands, the property could not have been laid in the safe-owner, or that the latter could not have maintained trover for them if converted under those circumstances. Sir James Stephen seems to have drawn a similar conclusion from Cartwright v. Green and Merry v. Green; but I believe that no warrant for it can be found in the cases, and still less for the reason suggested.

It will be understood, however, that Durfee v. Jones is perfectly consistent with the view here maintained of the general nature of the necessary intent, and that it only touches the subordinate question, whether the intent to exclude must be directed to the specific thing, or may be even unconsciously included in a larger intent, as I am inclined to believe.

Thus far, nothing has been said with regard to the custody of servants. It is a well-known doctrine of the criminal law, that a servant who criminally converts property of his master intrusted to him and in his custody as servant, is guilty of theft, because he is deemed to have taken the property from his master’s possession. This is equivalent to saying that a servant, having the custody of his master’s property as servant, has not possession of that property, and it is so stated in the Year Books.

The anomalous distinction according to which, if the servant receives the thing from another person for his master, the servant has the possession, and so cannot commit theft, is made more rational by the old cases. For the distinction taken in them is, that, while the servant is in the house or with his master, the latter retains possession, but if he delivers his horse to his servant to ride to market, or gives him a bag to carry to London, then the thing is out of the master’s possession and in the servant’s. In this more intelligible form, the rule would not now prevail. But one half of it, that a guest at a tavern has not possession of the plate with which he is served, is no doubt still law, for guests in general are likened to servants in their legal position.

There are few English decisions, outside the criminal on the question whether a servant has possession. But the Year Books do not suggest any difference between civil and criminal cases, and there is an almost tradition of courts and approved writers that he has not, in any case. A master has maintained trespass against a servant for converting cloth which he was employed to sell, and the American cases go the full length of the old doctrine. It has often been remarked that a servant must be distinguished from a bailee.

But it may be asked how the denial of possession to servants can be made to agree with the test proposed, and it will be said with truth that the servant has as much the intent to exclude the world at large as a borrower. The law of servants is unquestionably at variance with that test; and there can be no doubt that those who have built their theories upon the Roman law have been led by this fact, coupled with the Roman doctrine as to bailees in general, to seek the formula of reconciliation where they have. But, in truth, the exception with regard to servants stands on purely historical grounds. A servant is denied possession, not from any peculiarity of intent with regard to the things in his custody, either towards his master or other people, by which he is distinguished from a depositary, but simply as one of the incidents of his status. It is familiar that the status of a servant maintains many marks of the time when he was a slave. The liability of the master for his torts is one instance. The present is another. A slave’s possession was his owner’s possession on the practical ground of the owner’s power over him, and from the fact that the slave had no standing before the law. The notion that his personality was merged in that of his family head survived the era of emancipation.

I have shown in the first Lecture that agency arose out of the earlier relation in the Roman law, through the extension pro hac vice to a freeman of conceptions derived from that source. The same is true, I think, of our own law, the later development of which seems to have been largely under Roman influence. As late as Blackstone, agents appear under the general head of servants, and the first precedents cited for the peculiar law of agents were cases of master and servant. Blackstone’s language is worth quoting: “There is yet a fourth species of servants, if they may be so called, being rather in a superior, a ministerial capacity; such as stewards, factors, and bailiffs: whom, however, the law considers as servants pro tempore, with regard to such of their acts as affect their master’s or employer’s property.”

It is very true that in modern times many of the effects of either relation—master and servant or principal and agent—may be accounted for as the result of acts done by the master himself. If a man tells another to make a contract in his name, or commands him to commit a tort, no special conception is needed to explain why he is held; although even in such cases, where the intermediate party was a freeman, the conclusion was not reached until the law had become somewhat mature. But, if the title Agency deserves to stand in the law at all, it must be because some peculiar consequences are attached to the fact of the relation. If the mere power to bind a principal to an authorized contract were all, we might as well have a chapter on ink and paper as on agents. But it is not all. Even in the domain of contract, we find the striking doctrine that an undisclosed principal has the rights as well as the obligations of a known contractor,—that he can be sued, and, more remarkable, can sue on his agent’s contract. The first precedent cited for the proposition that a promise to an agent may be laid as a promise to the principal, is a case of master and servant.

As my present object is only to show the meaning of the doctrine of identification in its bearing upon the theory of possession, it would be out of place to consider at any length how far that doctrine must be invoked to explain the liability of principals for their agents’ torts, or whether a more reasonable rule governs other cases than that applied where the actor has a tolerably defined status as a servant. I allow myself a few words, because I shall not be able to return to the subject.

If the liability of a master for the torts of his servant had hitherto been recognized by the courts as the decaying remnant of an obsolete institution, it would not be surprising to find it confined to the cases settled by ancient precedent. But such has not been the fact. It has been extended to new relations by analogy, It exists where the principal does not stand in the relation of paterfamilias to the actual wrong-doer. A man may be held for another where the relation was of such a transitory nature as to exclude the conception of status, as for the negligence of another person’s servant momentarily acting for the defendant, or of a neighbor helping him as a volunteer; and, so far as known, no principal has ever escaped on the ground of the dignity of his agent’s employment. The courts habitually speak as if the same rules applied to brokers and other agents, as to servants properly so called. Indeed, it has been laid down in terms, that the liability of employers is not confined to the case of servants, although the usual cases are, of course, those of menial servants, and the like, who could not pay a large verdict.

On the other hand, if the peculiar doctrines of agency are anomalous, and form, as I believe, the vanishing point of the servile status, it may well happen that common sense will refuse to carry them out to their furthest applications. Such conflicts between tradition and the instinct of justice we may see upon the question of identifying a principal who knows the truth with an agent who makes a false representation, in order to make out a fraud, as in Cornfoot v. Fowke, or upon that as to the liability of a principal for the frauds of his agent discussed in many English cases. But, so long as the fiction which makes the root of a master’s liability is left alive, it is as hopeless to reconcile the differences by logic as to square the circle.

In an article in the American Law Review I referred to an expression of Godefroi with regard to agents; eadem est persona domini et procuratoris. This notion of a fictitious unity of person has been pronounced a darkening of counsel in a recent useful work. But it receives the sanction of Sir Henry Maine, and I believe that it must stand as expressing an important aspect of the law, if, as I have tried to show, there is no adequate and complete explanation of the modern law, except by the survival in practice of rules which lost their true meaning when the objects of them ceased to be slaves. There is no trouble in understanding what is meant by saying that a slave has no legal standing, but is absorbed in the family which his master represents before the law. The meaning seems equally clear when we say that a free servant, in his relations as such, is in many respects likened by the law to a slave (not, of course, to his own detriment as a freeman). The next step is simply that others not servants in a general sense may be treated as if servants in a particular connection. This is the progress of ideas as shown us by history; and this is what is meant by saying that the characteristic feature which justifies agency as a title of the law is the absorption pro hac vice of the agent’s legal individuality in that of his principal.

If this were carried out logically, it would follow that an agent constituted to hold possession in his principal’s name would not be regarded as having the legal possession, or as entitled to trespass. But, after what has been said, no opinion can be expressed whether the law would go so far, unless it is shown by precedent. The nature of the case will be observed. It is that of an agent constituted for the very point and purpose of possession. A bailee may be an agent for some other purpose. A free servant may be made a bailee. But the bailee holds in his own as we say, following the Roman idiom, and the servant or agent holding as such does not.

It would hardly be worth while, if space allowed, to search the books on this subject, because of the great confusion of language to be found in them. It has been said, for instance, in this connection, that a carrier is a servant; while nothing can be clearer than that, while goods are in custody, they are in his possession. So where goods remain in the custody of a vendor, appropriation to the contract and acceptance have been confounded with delivery. Our law has adopted the Roman doctrine, that there may be a delivery, that is, a change of possession, by a change in the character in which the vendor holds, but has not always imitated the caution of the civilians with regard to what amounts to such a change. Bailees are constantly spoken of as if they were agents to possess,—a confusion made easier by the fact that they generally are agents for other purposes. Those cases which attribute possession to a transferee of goods in the hands of a middleman, without distinguishing whether the middleman holds in his own name or the buyer’s, are generally right in the result, no doubt, but have added to the confusion of thought upon the subject.

German writers are a little apt to value a theory of possession somewhat in proportion to the breadth of the distinction which it draws between juridical possession and actual detention; but, from the point of view taken here, it will be seen that the grounds for denying possession and the possessory remedies to servants and agents holding as such—if, indeed, the latter have not those remedies—are merely historical, and that the general theory can only take account of the denial as an anomaly. It will also be perceived that the ground on which servants and depositaries have been often likened to each other, namely, that they both hold for the benefit of another and not for themselves, is wholly without influence on our law, which has always treated depositaries as having possession; and is not the true explanation of the Roman doctrine, which did not decide either case upon that ground, and which decided each for reasons different from those on which it decided the other.

It will now be easy to deal with the question of power as to third persons. This is naturally a power coextensive with the intent. But we must bear in mind that the law deals only or mainly with manifested facts; and hence, when we speak of a power to exclude others, we mean no more than a power which so appears in its manifestation. A ruffian may be within equal reach and sight when a child picks up a pocket-book; but if he does nothing, the child has manifested the needful power as well as if it had been backed by a hundred policemen. Thus narrowed, it might be suggested that the manifestation of is only important as a manifestation of intent. But the two things are distinct, and the former becomes decisive when there are two contemporaneous and conflicting intents. Thus, where two parties, neither having title, claimed a crop of corn adversely to each other, and cultivated it alternately, and the plaintiff gathered and threw it in small piles in the same field, where it lay for a week, and then each party simultaneously began to carry it away, it was held the plaintiff had not gained possession. But the first interference of the defendant had been after the gathering into piles, the plaintiff would probably have recovered. So where trustees possessed of a schoolroom put in a schoolmaster, and he was afterwards dismissed, but the next day (June ) re-entered by force; on the fourth of July he was required by notice to depart, and was not ejected until the eleventh; it was considered that the schoolmaster never got possession as against the trustees.

We are led, in this connection, to the subject of the continuance of the rights acquired by gaining possession. To gain possession, it has been seen, there must be certain physical relations, as explained, and a certain intent. It remains to be inquired, how far these facts must continue to be presently true of a person in order that he may keep the rights which follow from their presence. The prevailing view is that of Savigny. He thinks that there must be always the same animus as at the moment of acquisition, and a constant power to reproduce at will the original physical relations to the object. Every one agrees that it is not necessary to have always a present power over the thing, otherwise one could only possess what was under his hand. But it is a question whether we cannot dispense with even more. The facts which constitute possession are in their nature capable of continuing presently true for a lifetime. Hence there has arisen an ambiguity of language which has led to much confusion of thought. We use the word “possession,” indifferently, to signify the presence of all the facts needful to gain it, and also the condition of him who, although some of them no longer exist, is still protected as if they did. Consequently it has been only too easy to treat the cessation of the facts as the loss of the right, as some German writers very nearly do.

But it no more follows, from the single circumstance that certain facts must concur in order to create the rights incident to possession, that they must continue in order to keep those rights alive, than it does, from the necessity of a consideration and a promise to create a right ex contractu, that the consideration and promise must continue moving between the parties until the moment of performance. When certain facts have once been made manifest which confer a right, there is no general ground on which the law need hold the right at an end except the manifestation of some fact inconsistent with its continuance, the reasons for conferring the particular right have great weight in determining what facts shall be to be so. Cessation of the original physical relations to the object might be treated as such a fact; but it never has been, unless in times of more ungoverned violence than the present. On the same principle, it is only a question of tradition or policy whether a cessation of the power to reproduce the original physical relations shall affect the continuance of the rights. It does not stand on the same ground as a new possession adversely taken by another. We have adopted the Roman law as to animals ferae naturae, but the general tendency of our law is to favor appropriation. It abhors the absence of proprietary or possessory rights as a kind of vacuum. Accordingly, it has been expressly decided, where a man found logs afloat and moored them, but they again broke loose and floated away, and were found by another, that the first finder retained the rights which sprung from his having taken possession, and that he could maintain trover against the second finder, who refused to give them up.

Suppose that a finder of a purse of gold has left it in his country-house, which is lonely and slightly barred, and he is a hundred miles away, in prison. The only person within twenty miles is a thoroughly equipped burglar at his front door, who has seen the purse through a window, and who intends forthwith to enter and take it. The finder’s power to reproduce his former physical relation to the gold is rather limited, yet I believe that no one would say that his possession was at an end until the burglar, by an overt act, had manifested his power and intent to exclude others from the purse. The reason for this is the same which has been put with regard to the power to exclude at the moment of gaining possession. The law deals, for the most part, with overt acts and facts which can be known by the senses. So long as the burglar has not taken the purse, he has not manifested his intent; and until he breaks through the barrier which measures the present possessor’s power of excluding him, he has not manifested his power. It may be observed further, that, according to the tests adopted in this Lecture, the owner of the house has a present possession in the strictest sense, because, although he has not the power which Savigny says is necessary, he has the present intent and power to exclude others.

It is conceivable that the common law should go so far as to deal with possession in the same way as a title, and should hold that, when it has once been acquired, rights are acquired which continue to prevail against all the world but one, until something has happened sufficient to divest ownership.

The possession of rights, as it is called, has been a fighting-ground for centuries on the Continent. It is not uncommon for German writers to go so far as to maintain that there may be a true possession of obligations; this seeming to accord with a general view that possession and right are in theory coextensive terms; that the mastery of the will over an external object in general (be that object a thing or another will), when in accord with the general will, and consequently lawful, is called right, when merely de facto is possession. Bearing in mind what was said on the question whether possession was a fact or right, it will be seen that such an antithesis between possession and right cannot be admitted as a legal distinction. The facts constituting possession generate rights as truly as do the facts which constitute ownership, although the rights a mere possessor are less extensive than those of an owner.

Conversely, rights spring from certain facts supposed to be true of the person entitled to such rights. Where these facts are of such a nature that they can be made successively true of different persons, as in the case of the occupation of land, the corresponding rights may be successively enjoyed. But when the facts are past and gone, such as the giving of a consideration and the receiving of a promise, there can be no claim to the resulting rights set up by any one except the party of whom the facts were originally true—in the case supposed, the original contractee,—because no one but the original contractee can fill the situation from which they spring.

It will probably be granted by English readers, that one of the essential constituent facts consists in a certain relation to a material object. But this object may be a slave, as well as a horse; and conceptions originated in this way may be extended by a survival to free services. It is noticeable that even Bruns, in the application of his theory, does not seem to go beyond cases of status and those where, in common language, land is bound for the services in question, as it is for rent. Free services being so far treated like servile, even by our law, that the master has a right of property in them against all the world, it is only a question of degree where the line shall be drawn. It would be possible to hold that, as one might be in possession of a slave without title, so one might have all the rights of an owner in free services rendered without contract. Perhaps there is something of that sort to be seen when a parent recovers for the seduction of a daughter over twenty-one, although there is no actual contract of service. So, throughout the whole course of the canon law and in the early law of England, rents were regarded as so far a part of the realty as to be capable of possession and disseisin, and they could be recovered like land by all assize.

But the most important case of the so-called possession of rights in our law, as in the Roman, occurs with regard to easements. An easement is capable of possession in a certain sense. A man may use land in a certain way, with the intent to exclude all others from using it in any way inconsistent with his own use, but no further. If this be true possession, however, it is a limited possession of land, not of a right, as others have shown. But where an easement has been actually created, whether by deed or prescription, although it is undoubtedly true that any possessor of the dominant estate would be protected in its enjoyment, it has not been so protected in the past on the ground that the easement was in itself an object of possession, but by the survival of precedents explained in a later Lecture. Hence, to test the existence of a mere possession of this sort which the law will protect, we will take the case of a way used de facto for four years, but in which no easement has yet been acquired, and ask whether the possessor of the quasi dominant tenement would be protected in his use as against third persons. It is conceivable that he should be, but I believe that he would not.

The chief objection to the doctrine seems to be, that there is almost a contradiction between the assertions that one man has a general power and intent to exclude the world from dealing with the land, and that another has the power to use it in a particular way, and to exclude the from interfering with that. The reconciliation of the two needs somewhat artificial reasoning. However, it should be borne in mind that the question in every case is not what was the actual power of the parties concerned, but what was their manifested power. If the latter stood thus balanced, the law might recognize a kind of split possession. But if it does not recognize it until a right is acquired, then the protection of a disseisor in the use of an easement must still be explained by a reference to the facts mentioned in the Lecture referred to.

The consequences attached to possession are substantially those attached to ownership, subject to the question the continuance of possessory rights which I have touched upon above. Even a wrongful possessor of a chattel may have full damages for its conversion by a stranger to the title, or a return of the specific thing.

It has been supposed, to be sure, that a “special property” was necessary in order to maintain replevin or trover. But modern cases establish that possession is sufficient, and an examination of the sources of our law proves that special property did not mean anything more. It has been shown that the procedure for the recovery of chattels lost against one’s will, described by Bracton, like its predecessor on the Continent, was based upon possession. Yet Bracton, in the very passage in which he expressly makes that statement, uses a phrase which, but for the explanation, would seem to import ownership,—”Poterit rem suam petere.” The writs of later days used the same language, and when it was objected, as it frequently was, to a suit by a bailee for a taking of bona et catalla sua, that it should have been for bona in custodia sua existentia, it was always answered that those in the Chancery would not frame a writ in that form.

The substance of the matter was, that goods in a man’s possession were his (sua), within the meaning of the writ. But it was very natural to attempt a formal reconciliation between that formal word and the fact by saying that, although the plaintiff had not the general property in the chattels, yet he had a property as against strangers, or a special property. This took place, and, curiously enough, two of the earliest instances in which I have found the latter phrase used are cases of a depositary, and a borrower. Brooke says that a wrongful taker “has title against all but the true owner.” In this sense the special property was better described as a “possessory property,” as it was, in deciding that, in an indictment for larceny, the property could be laid in the bailee who suffered the trespass.

I have explained the inversion by which a bailee’s right of action against third persons was supposed to stand on his responsibility over, although in truth it was the foundation of that responsibility, and arose simply from his possession. The step was short, from saying that bailees could sue because they were answerable over, to saying that they had the property as against strangers, or a special property, because they were answerable over, and that they could sue because they had a special property and were answerable over. And thus the notion that special property meant something more than possession, and was a requisite to maintaining an action, got into the law.

The error was made easier by a different use of the phrase in a different connection. A bailee was in general liable for goods stolen from his custody, whether he had a lien or not. But the law was otherwise as to a pledgee, if he had kept the pledge with his own goods, and the two were stolen together. This distinction was accounted for, at least in Lord Coke’s time, by saying that the pledge was, in a sense, the pledgee’s own, that he had a special property in it, and thus that the ordinary relation of bailment did not exist, or that the undertaking was only to keep as his own goods. The same expression was used in discussing the pledgee’s right to assign the pledge, In this sense the term applied only to pledges, but its significance in a particular connection was easily carried over into the others in which it was used, with the result that the special property which was requisite to maintain the possessory actions was supposed to mean a qualified interest in the goods.

With regard to the legal consequences of possession, it only remains to mention that the rules which have been laid down with regard to chattels also prevail with regard to land. For although the plaintiff in ejectment must recover on the strength of his own title as against a defendant in possession, it is now settled that prior possession is enough if the defendant stands on his possession alone Possession is of course sufficient for trespass. And although the early remedy by assize was restricted to those who had a technical seisin, this was for reasons which do not affect the general theory.

Before closing I must say a word concerning ownership and kindred conceptions. Following the order of analysis which has been pursued with regard to possession, the first question must be, What are the facts to which the rights called ownership are attached as a legal consequence? The most familiar mode of gaining ownership is by conveyance from the previous owner. But that presupposes ownership already existing, and the problem is to discover what calls it into being.

One fact which has this effect is first possession. The captor of wild animals, or the taker of fish from the ocean, has not merely possession, but a title good against all the world. But the most common mode of getting an original and independent title is by certain proceedings, in court or out of it, adverse to all the world. At one extreme of these is the proceeding in rem of the admiralty, which conclusively disposes of the property in its power, and, when it sells or condemns it, does not deal with this or that man’s title, but gives a new title paramount to all previous interests, whatsoever they may be. The other and more familiar case is prescription, where a public adverse holding for a certain time has a similar effect. A title by prescription is not a presumed conveyance from this or owner alone, it extinguishes all previous and inconsistent claims. The two coalesce in the ancient fine with proclamations where the combined effect of the judgment and the lapse of a year and a day was to bar claims.

So rights analogous to those of ownership may be given by the legislature to persons of whom some other set of facts is true. For instance, a patentee, or one to whom the government has issued a certain instrument, and who in fact has made a patentable invention.

But what are the rights of ownership? They are substantially the same as those incident to possession. Within the limits prescribed by policy, the owner is allowed to exercise his natural powers over the subject-matter uninterfered with, and is more or less protected in excluding other people from such interference. The owner is allowed to exclude all, and is accountable to no one. The possessor is allowed to exclude all but one, and is accountable to no one but him. The great body of questions which have made the subject of property so large and important are questions of conveyancing, not necessarily or generally dependent on ownership as distinguished from possession. They are questions of the effect of not having an independent and original title, but of coming in under a title already in existence, or of the modes in which an original title can be cut up among those who come in under it. These questions will be dealt with and explained where they belong, in the Lectures on Successions.


Source: THE COMMON LAW -By Oliver Wendell Holmes, Jr. (1841 – 1935)

Oliver was an American jurist.




The Silver Age of the Common Law-From the Accession of Edward I to the Death of Edward III- John Maxcy Zane

From: The Story of Law [1927]

[1272-1377 CE]

The Silver Age of the Common Law: From the Accession of Edward I to the Death of Edward III

The succession of Edward I. in 1272 was practically contemporaneous with Bracton’s death in 1268. A dictum of Sir William Herle, Chief Justice under Edward III. (delivered from the bench), asserts that, “he (Edward I.) was the wisest king that ever was.” Hale and Blackstone have repeated this language, and have called him the English Justinian. But Edward was no codifier or founder of legal institutions. He simply had the singular good judgment always to keep at hand the best legal advice, and to follow it. He had constantly by his side a very great Italian lawyer, Francis of Accursii. His closest friend was his chancellor, the English lawyer, Robert Burnel. The leading advocates of the bar were kept in his service. Burnel drew the code of laws called the Statute of Wales, which projected the English law over Wales. Chief Justice Hengham (whom Coke calls Ingham) drew the Statute De Donis and the provision that created the bill of exceptions. Other noted advocates like Inge, Lowther, and Cave drew the other well-known statutes, such as Quia Emptores, Coroners, Merchants, etc., which supplied the deficiencies of the existing law and procedure.

During his reign the reports of cases, called Year Books, open. There was for centuries a tradition that the Year Books were official. Plowden guardedly says that he had heard that four reporters were originally appointed by the king. Bacon is somewhat more positive. Coke swallows the tradition entire, and says that “four discreet and learned professors of the law” were appointed by the king. He even asserts that they were “grave and sad men.” Blackstone knows all about them, who they were, how they were paid, and how often the reports were published. But this is simply a growing legal myth. The reports show that they were not official. The reporter chooses among the cases as he pleases. Statements of well-known counsel are inserted as authority. The rulings of the judges are frankly criticized. One decision is said to have been “for the King’s profit rather than in accordance with law.” In another place the reporter contemptuously says of a judge’s dictum: “This is nothing to the purpose.” Even the dicta of Chief Justice Hengham are condemned as wrong. Of one ruling the reporter says that the court held the contrary at the Michaelmas term (this practice the courts have continued until the present day). The reporter makes certain judges say that a decision cited was obtained by favor and therefore was not authority. Finally, the reporter nicknames a precipitate judge, Hervey the Hasty. It is, of course, ridiculous to call such reports official, but they are all the more valuable.

The Year Books show us the legal profession in full bloom. The leaders of the bar are the serjeants, but they have not as yet a monopoly of the Common Pleas practice. Other counsel appear in the reports. There is the body of students of law, attending upon the courts; they are sometimes referred to by the judges. The leaders of the bar are few in number, but the weight of professional opinion is apparent. The reporter does not hesitate to say that the opinion of the serjeants against any decision is sure proof that it is erroneous.

The very fact that the Year Books appear shows the influence of professional opinion. The dry Latin records of the cases were sufficient for Bracton, but now there was a demand for the many things which never got on the record—the arguments of counsel, the remarks of the judges during argument, the skilful plea of the one lawyer, the adroit shift of the other, in fact, the whole picture of the lawsuit as it progressed.

These Year Books were written in Norman French, the language of the courts and lawyers. One of the manuscripts shows us what was probably a lawyer’s library in the early thirteen hundreds. Besides the reports of cases, it contains a number of statutes of Edward I. and Edward II., Bracton’s treatise, another treatise on quashing writs, another on the duties of justices, another on pleas of the crown, Metingham’s work on Essoins, and Hengham’s treatise called Magnum and Parvum. These works, with Britton and the Register of Writs, would be an ample legal library; and all these books could be tied together in one manuscript volume.

The influence of the profession is apparent in the legislative activity of the opening years of Edward I. The statutes then passed were all remedial. Wherever a case was unprovided for, wherever a remedy was defective, wherever the law seemed insufficient, the existing law was supplemented by statutes. Take the statute creating the bill of exceptions. It enjoined upon the trial judge the duty of sealing a bill of exceptions tendered to any of his rulings, and made the bill a part of the record, which could be examined upon error. We know, without any proof of the fact, that this statute was procured by professional opinion. It brought all rulings to the supreme test of an appellate tribunal. Henceforth there could be but one rule of law for all Englishmen. The fact that these statutes, such as Westminster II. and Westminster III., are still law in almost every state in this Union, is the best proof of the sagacity of those long forgotten lawyers of Edward’s reign. Nowhere is better shown the wise conservatism of the true lawyer, whose instinct is not to commit waste upon the inheritance, but to repair the splendid edifice of which he is but the life tenant.

Still another indication of the growing influence of the profession is given by the impeachment of all the judges before Parliament in the year 1289. Some of the judges impeached bore honored names in the profession. Ralph de Hengham, Chief Justice of the King’s Bench, upon trivial charges was fined in a small sum, dismissed from office, and not reinstated until ten years had passed. Weyland, Chief Justice of the Common Bench, after a prosperous career as a lawyer and a long service as judge, was found guilty of heinous offenses and abjured the realm. But with lawyer-like skill he had made his wife and children co-foeffees of several of his manors, which were not forfeited. Other judges were fined in large amounts ranging from 4,000 to 2,000 marks—immense sums, when we reflect that a Chief Justice’s salary was then but forty pounds. Lovetot, Rochester, and Sadington are not heard of again. Boyland busied himself in building a splendid mansion and left a large fortune. Hopton and Saham returned to the practice. It will be seen that only after a bitter experience did England learn the necessity of paying large salaries to judges.

Two judges were “faithful found among the faithless”—Elias de Beckingham and John de Metingham. The latter was promoted to the headship of the common bench. There he presided for twelve years. His memory is kept alive by the prayer directed to be made at Cambridge pro-animo Domini John de Metingham, as one of the benefactors of the University. He was a learned and just judge. His treatise on Essoins was a valued law book. He in one of his opinions cites Porphyrius to a definition of surplusage, as something “which may be present or absent without detriment to the subject.” Once he ruled against the opinion of all the serjeants, putting his decision on the ground of convenience. In another case he ruled in Mutford’s favor, and the gratified counsel burst forth with a quotation from Holy Writ: “Blessed is the womb that bare thee.” In another case he patiently listened to many objections to a verdict and then dryly said: “Now it is our turn,” and made short work of the objections. A counsel, not a serjeant, who had pleaded badly and lost his client’s case, he addresses pityingly as “My poor friend,” and explains to him his hopeless error. Metingham in another case thought it no objection to a verdict that the prevailing party had entertained the jury at a tavern. We are reminded that the jury has hardly as yet attained a judicial function.

Hengham came back to the bench as the successor of Metingham. He was also a legal author. His treatise was a work on the method of conducting actions, divided into Magnum and Parvam. His predecessor in the King’s Bench, Thornton, had written an abridgment of Bracton. Britton and Fleta belong very close to this period, and it is plain that there was a demand for law books. Hengham is a great authority on writs, and issues instructions to the clerks from the bench. He sometimes delivers long dicta, but the reporter adds in one case that Hengham is wrong. He was firm with the lawyers. In one case he said to Friskeney and his associates: “We forbid you to speak further of that averment on pain of suspension,” and, adds the reporter, “they obeyed.” Sometimes Hengham lost his judicial poise, as when he says to pertinacious counsel: “Leave off your noise, and deliver yourself from this account.” One of his rebukes is on a much higher plane. To a lawyer who offered a plausible but unsound argument Hengham said: “That is a sophistry, and this place is designed for truth.”

But the greatest character on the bench is William de Bereford, who succeeded Hengham as Chief Justice of the Common Bench. He served thirty-four years as a judge. We can sit in court and hear Bereford’s oaths, “By God” and “By Saint Peter.” He says to an absurd plea: “In God’s name, now, this is good!” One day he was sitting with Mutford and Stonor, associate judges. Stonor held a lively debate with counsel. Mutford then said: “Some of you have said a good deal that runs counter to what has hitherto been accepted as law.” “Yes,” interjected Bereford, “that is very true and I won’t say who they are.” The reporter naively adds, “Some thought he meant Stonor.” Bereford is sometimes cutting to counsel: “We wish to know,” he once exclaimed, “whether you have anything else to say, for as yet you have done nothing but wrangle and chatter.” One day Serjeant Westcote disputed Bereford’s law: “Really,” Bereford sarcastically rejoined, “I am much obliged to you for the challenge, not for the sake of us who sit on the bench, but for the sake of the young men who are here.” He despised the ridiculous Anglo-Saxon wager of law. “Now God forbid,” he says from the bench, “that any one should get to his law about a matter of which the jury can take cognizance, so that with a dozen or a half dozen rascals, he could swear an honest man out of his goods.” He even corrects in open court statements of his fellow judges as to the law. One day he corrects a ruling of Hervey the Hasty in spite of that judge’s protests. He is sharp with the lawyers. To Malberthorpe, counsel in great practice, he says: “You talk at random.” To Passeley, a leader of the bar, he says in an action to quiet title: “There are forty fools here who think that, as soon as one has in such case acknowledged, there is nothing more to do, although he claims more than he has. Answer by what title you claim in fee.” He sometimes jokes from the bench. The law was that a villein who had gone to a city and remained there for a year became free, but Metingham had ruled that if the villein returned to his villein tenement again he lost his freedom. Bereford illustrates this point by a joke. “I have heard tell of a man who was taken in a brothel and hanged, and if he had stayed at home, it would not have happened. So here, if he was a free citizen, why didn’t he remain in the city?” Some of Bereford’s jokes are too broad for quotation. Even if the reporters were “grave and sad men,” as Coke says, they always record Bereford’s highly seasoned anecdotes with apparent zest.

Hervey de Staunton, who is called the Hasty, is quick to answer. Mutford, a leader of the bar, asserted that a female serf who became free by marrying a free man, returned to her servile status as soon as her husband died. “That is false,” said one judge. “Worse than false, it is a heresy,” added Staunton. In another case a younger lawyer was reproved by Staunton for a poor plea, and was told to go and seek advice of counsel. Instead of being angry, the lawyer went out and came back with two eminent counsel, Willoughby and Estrange. But this is the ordinary thing. Whenever an attorney or a young lawyer attempts to plead without a serjeant, he is quickly detected in an error and told to go out and get counsel. On the circuit Staunton is reproved by his fellow judges for making a ruling before he consulted them. The retorts of the judges are quick enough. “Why,” asks Asseby, “did the other side plead that they were seized?” “Because they are rather foolish,” said Hertford, Justice, shortly, “answer over.” Berewick, a judge, says to the great Howard: “If you wish to cite a case, cite one in point.” One almost forgets in reading this that he is back in the Middle Ages. Sometimes a lawyer is fined for contempt. Lisle paid a fine of 100 shillings, yet soon afterward was made a justice of assize.

The most striking phenomenon is the smallness of the bar in active practice. A few names are constantly recurring. The fees of a leader must have been enormous. Most of them died rich. The case of William Howard, from whom flows “all the blood of all the Howards,” has been already instanced in describing the first period. Another great lawyer, a rival of Howard’s, is Hugh de Lowther. He is king’s serjeant, and appears in quo warranto proceedings, which Howard often defends. He was of an ancient family in Westmoreland. His lineal descendant became Viscount Lonsdale in 1689, and Lowther Castle (where the present Earl of Lonsdale so magnificently entertained the German Emperor) stands in the midst of the widespread domain of 35,000 acres which Edward I.’s attorney-general left to his descendants.

The largest fee of that day paid to a lawyer was £133 6s. 8d., paid by Edward II. to Herle, the king’s serjeant, and this was supplemented by a seat on the bench. After a long service on the bench Herle was permitted to retire; and it may be of interest to note that the permission spoke of “his approved fidelity, the solidity of his judgment, the gravity of his manner, and his unwearied service in his office.”

One of the names that often recurs is that of John Stonor. As a serjeant in large practice, and then as king’s serjeant, he no doubt made a fortune. He first served in the Common Pleas, then in the King’s Bench, then he was returned to the Common Pleas. Later he was chief Baron of the Exchequer, then Chief Justice of the Common Pleas, superseding Herle; but later Herle was reinstated, and Stonor took second place, but became Chief Justice again. Such is the remarkable record of this judicial maid-of-all-work. The one decision for which he is noted is a holding that an act of Parliament was invalid.

Throughout the Year Books of the three Edwards, it is noticeable that the judges are uniformly selected from the leaders of the bar. If a serjeant appears in large practice, he is almost certain to appear later on the bench. So noticeable is this that there are few great lawyers who do not reach a judicial position. Simon de Trewithosa was evidently a Cornishman. He was in immense practice, was a serjeant at law, but was never a judge. His statements of law are found in the Year Books quoted as of evident value. Another lawyer named Pole did not reach the bench. His practice was very large, and the singular fact is that he was not made even a serjeant at law. But such names as Howard, Lowther, Heyham, Hertford, Inge, Herle, Estrange, Westcote, Warrick, Passeley, Lisle, Touthby, Willoughby, Malberthorpe, Mutford, the two Scropes, Friskeney, Scotre and many others, show that professional eminence found a sure reward in a judgeship. No lawyer is elevated to the higher courts who is not a counsel in large practice.

The judges are no respecters of persons. Magnate and serf are equal before the law. Beauchamp, Earl of Warwick, pleading his own case and showing considerable technical knowledge, is treated like an ordinary counsel. Roger Bigot, Earl of Norfolk and Earl Marshal, son-in-law of the King, receives the same treatment as the humblest suitor. A poor man wrongly seized as a villein is given £100 damages, a verdict equal to ten thousand dollars at the present day. Yet we see the law’s delay, for four years elapsed between the awarding of the venire and the verdict.

The judges are skilful, tactful men. In a case where the plaintiffs failed in detinue of a charter on a variance, Berewick, the justice, said to the defendant: “What will this avail you? they can bring a new action and get it, so you may as well give it up,” and the charter was surrendered. In another case Howard has reached a difficult place and refuses to plead, but Berewick, the judge, calls up the client, takes him away from his counsel, and questions him so as to get replies which are taken as pleadings. Pleading was at that day a voluntary act. A criminal trial showed one of these judges at his best. Hugh, a man of importance, is arraigned upon an indictment for rape. He asked for counsel. “You ought to know,” the Judge replies, “that the king is party here ex officio, and you cannot have counsel against him, though if the woman appealed you, you could.” The prisoner’s counsel were then ordered to withdraw and did so. Hugh was then called upon to plead. Hugh replied that he was a clerk (a priest), and ought not to answer without his bishop. Then he was claimed for the bishop as a clerk. Thus it appears that the bishop had his representative sitting in court ready to claim the trial of any one who said he was a clerk. But the Judge was evidently informed, for he replied: “You have lost your clergy, because you married a widow.” Under the statute De Bigamis a priest who had married twice or had married a widow lost his right to be tried in the ecclesiastical court. “Answer,” said the Judge, “whether she was a widow or a virgin, and be careful, for I can call upon the jury here to verify your statement.” We note that a jury is sitting in court ready to decide, by the knowledge of its members, controverted questions of fact. Hugh replies: “She was a virgin when I married her.” The Judge calls upon the jury, who say that she was a widow. Then the Judge rules that he must answer as a layman, and asks him to consent to a jury trial. It is noticeable that the defendant in a criminal case must consent to a jury, a reminiscence of which is the question, and the answer of the prisoner, for centuries to come: “How will you be tried?” “By God and my country,” i.e. by the jury. But the prisoner objected that he was accused by the jury. (It is curious to note that the same jurymen acted as grand and petty jurors.) He further claimed that he was a knight, and the prisoner added: “I ought to be tried by my peers.” The Judge gave him a jury of knights, who were called, and the defendant was asked if he had any challenges. But Hugh still refused to consent to a jury trial, and the Judge warned him of close confinement on bread and water, if he did not consent. So Hugh consented, and asked that his challenges be heard. The Justice: “Freely, read them.” Then Hugh makes a slip: “I don’t know how to read.” The Justice: “How is this, you claim the privilege of clergy, and don’t know how to read?” Then the prisoner stands much confused; but the Judge calls on a bystander to read the challenges to the prisoner, who speaks them. The challenged jurors are excused. Then the judge states the charge to the jury and the jury say that the woman was ravished by Hugh’s men. The Justice: “Did Hugh consent?” The jury: “No.” The Justice: “Did the woman consent?” The jury: “She did,” and thereupon Hugh was acquitted. But who can say whether he was acquitted because the woman consented, and yet would have been considered liable criminally for the acts of his servants?

The counsel, however eminent, cannot wheedle the judges. In one case, Howard and Lowther on the same side urged a certain form of judgment. To Howard, Berewick replied: “We tell you that you never saw any other judgment under these circumstances, and you will get no other judgment with us.” Then Lowther argued with the Court, but Berewick was firm: “You will get no other judgment from us.” Again, Howard is on the bench, and Asseby says: “I think you would not give judgment in this wise, if you were in the case,” but Howard mildly replies: “I think you are wrong, wherefore answer.” But sometimes indulgence is shown. To a count challenged as bad, the Court say: “It would have been formal to have done this, but we will forgive him this time; but let everyone take care in the future, for whoever shall count in this manner, his writ shall abate, for it behooves us to maintain our ancient forms.”

In those days the counsel stated the proposed pleadings orally, and if held good by the Court they were reduced to legal form by the clerks. To the present day our pleadings still speak as if the party were in open court stating his pleadings. At this earlier stage of the common law the pleadings were necessarily all true. Whenever counsel in his pleading reaches a point as to which he is not advised, he imparls and seeks his client or the attorney for further information. The advocates show acuteness and ingenuity. The pleading is technically correct. All pleas must follow in their regular order—pleas in abatement before pleas to the merits; there was, however, no such rule as (for example) that the judgment upon a plea in abatement was quod recuperet. At this sensible stage of the law there was no need for statutes to allow pleading over. Sometimes counsel get stubborn and refuse to plead further, and then say that they will do so merely to oblige the court. Touthby, a very good lawyer, in one case tries to plead without binding his client, Isolde. “I say for Gilbert de Touthby but not for Isolde,” he begins. Whenever the pleadings come to a point where the party whose turn it is to plead cannot deny or avoid, judgment is given at once. The clerks enter up the technical forms of pleadings. The glorious absque hoc is present in large numbers. In an action of assault the counsel says orally, in answer to a justification: “He took him of malice and not as he has said, ready, etc.” The clerk enters this up as the regular replication de injuria sua propria absque tali causa, etc.

In almost every case there are two counsel on each side. In some cases there is a great array. Thus Heyham, Hertford, Howard, and Inge are for the defendant and Lisle and Lowther for the plaintiff. No one seems to lead, but all speak. Sometimes different counsel appear at different terms. In a great case of replevin, Estrange, Scrope, and Westcote are for the defendant and Herle and Hertepol for the plaintiff at one time. At the next term Westcote and Huntingdon are for the defendant and Herle and Hertepol for the plaintiff. At the next term Westcote and Huntingdon are for the defendant, while the plaintiff has Kyngesham, Warrick, and Passeley. The lawyers who are practicing at Westminster are also found on the circuit at the assizes. These men must have kept in mind an enormous amount of procedural rules. There were four hundred and seventy-one different original writs, each showing a different form of action and requiring its own special procedure.

The useful law book was Britton, a sort of epitome of Bracton. Chief Justice Prisot in Henry VI.’s time said that Britton was written under the orders of Edward I., and fixes its date as 1275. It supplanted Bracton, so that judges in after ages would say with singular fatuity that Bracton was never accepted as an authority in English law. Certainly Bracton’s Roman law was not understood by his immediate successors; for in Britton the actio familiae herciscundae of the Roman law has become an action about the lady of Hertescombe, who probably had estates in Devonshire. Yet Passeley, one of these lawyers, was a civilian, for the judge says to him from the bench: “Passeley, you are a legist, and there is a written law that speaks of this subject,” quoting from the Code.

It is noteworthy that no complaints are heard of the practitioners in the higher courts. There is a single case of a lawyer being bribed by the opposing counsel. But the leading lawyers were faithful and zealous. Even against the king they fought well for their clients. Both Edward I. and Edward III. made determined assaults upon the private jurisdictions of various lordships, and in all the cases the defendant’s counsel was zealous against the king. But in the lower courts, municipal, local and seigniorial, the legal “shyster” was as brazen and disgraceful as he is to-day. In 1280 the mayor and aldermen of London lamented the ignorance and ill manners of the pleaders and attorneys, who practiced in the city courts. It was ordained that no advocate should be an attorney; and thus it is apparent that the separation of the two branches of the profession, which happily endured in England, was at that early time in full effect. The city fathers were compelled to threaten with suspension the pleader who took money from both sides or reviled his antagonist.

There is an occurrence in the Abbot of Ramsey’s court for the fair at St. Ives, which shows the local pettifogger at his worst. William of Bolton is the name of the “shyster.” He was lurking around the fair, looking for victims. Simon Blake of Bury was charged with using a false ell for measuring cloth. William, eager for business, rushed in and became surety for Simon’s appearance. Then to make certain of his fee he induced Simon’s friend John Goldsmith to retain him to defend Simon, and to promise him four shillings as a fee. William agreed to defend, provided Simon would swear that he got the false ell from a merchant of  Rouen. Although Simon did so state and vouched the Rouen merchant to warranty, yet he withdrew his voucher of the Rouen merchant. The scheme, of course, was to fleece the rich foreign merchant; but Simon lost heart or was bought off. Then William had the effrontery to sue John Goldsmith for the four shillings retainer and ten pounds damages because John had induced Simon to withdraw the said voucher of the said merchant of Rouen, “out of whom,” William brazenly avers, “the said William had hoped to get a large sum of money.” The damages arose because the pettifogger was deprived of an opportunity for levying blackmail. Surely William was thrown away on that early time. He belonged to the “justice shop” of one of our large cities.

The evils of these local courts are manifest. In one case Bereford asks Malberthorpe, “Why did you not plead this exception in the county court?” “Because,” replied the counsel, “we thought it would have more chance before you than in that court.” In the same year Margery brought a writ of false judgment against the suitors of the court baron of Fulk Fitz Warin, lord of the manor, for failing to record her plea against Fulk in his own court. The suitors appeared in the king’s court before Bereford to answer the writ. Bereford, Justice: “Good people, Margery brings her writ, etc. What have you to say?” Heydon, retained for the suitors: “I will tell you all about the business.” Bereford: “You shall not say a word about it, but they out of their own mouths shall record it.” The suitors then said that they feared to record the woman’s plea out of fear of Fulk, who had beaten one of them and overawed them by force, so that they were compelled to come to the king’s court under protection. Bereford: “Go aside by yourselves and take a clerk with you and have him write down your record, taking care that Robert Heydon comes not near you.” Bereford was determined to get at the exact truth and that the suitors should make their record without the aid of counsel. The record made, Bereford issued a writ against Fulk. The king was far wiser than his subjects when he attempted by his writs of quo warranto to destroy these local courts.

The greatest lawsuit of this reign was not tried in any of the regular courts; for the Kingdom of Scotland was at stake, and the litigants were the claimants of the throne. The contestants referred the matter to the arbitration of Edward I. But Edward at once set his lawyers at work to devise by means of this arbitration some method by which he could extend his sovereignty over Scotland. Burnel, the chancellor, and Roger le Brabazon, a skilled lawyer and one of the puisne judges of the King’s Bench, prepared the case. Out of the records and the monkish chronicles, acts of fealty by former Scottish sovereigns were produced, especially that of William the Lion to Henry II. after his capture by Ranulf Glanville. They were careful to suppress Richard Coeur de Lion’s cancellation of his rights over Scotland for a large sum of money. Soon a parliament of English and Scotch was convened at Berwick. Brabazon opened the proceedings by a speech in which he adduced his proofs, and required, as a preliminary, that the contestants and all the Scotch swear fealty to Edward as their feudal suzerain. The contestants of course could not offend the court. The Scottish nobles murmured, but after seeing Brabazon’s proofs acquiesced. The Scottish commons, however, refused. A trial was then had, and Burnel, for the King, correctly adjudged the throne to Balliol. Then the King tried to extend the jurisdiction of his courts over Scotland. But Wallace, and afterwards Robert the Bruce, kept alive the resistance, until under Edward II. the crushing defeat of the English at Bannockburn ruined Edward I.’s dream of a kingdom of Great Britain. Brabazon, as Chief Justice of the King’s Bench, lived to see the fugitives from Bannockburn.

One of the results of the years of warfare was to scatter over England lawless characters called trailbaston men. To suppress these marauders special justices, fearless knights and barons, were sent throughout England. One of these justices in 33 Edward I. was John de Byrun, a lineal descendant of the Norman Ralph de Burun of the Domesday survey. In regular descent from the justice came Sir John Byron, the devoted adherent of Charles I., who was made Lord Byron. His descendant, the sixth Lord Byron, was the poet, who next to Shakespeare has been the greatest intellectual force in English literary history. Byron’s friend, the poet Shelley, was descended from William Shelley, a justice of the Common Pleas under Henry VIII. Even Shakespeare belongs on his mother’s side to the Norman Ardens, who furnished at least three justices under the Plantagenets; while Francis Beaumont, the collaborator of Fletcher, was the son and grandson of English judges belonging to the Norman Beaumonts.

The troubles of Edward II.’s reign had little effect on the courts. Malberthorpe, Chief Justice of the King’s Bench, pronounced sentence of death on the Earl of Lancaster. When Edward II. was seized by his wife Isabella and her paramour Roger Mortimer, and put to death, Malberthorpe was brought to trial for his judgment against the Earl of Lancaster; but he proved by prelates and peers the fact that he gave that judgment by command of the King, whom he dared not disobey. Such is the disgraceful entry upon his pardon. But Malberthorpe was removed and went back to the practice. We pass by the two Scropes; Bourchier, who founded a distinguished family; and Cantebrig, who gave most of his property to endow that great institution which is now Corpus Christi at Cambridge. They were all great lawyers.

The most celebrated lawyer of Edward III.’s reign, however, was Robert Parning. The Year Books show him to be a man of remarkable erudition. He came to the Common Pleas as a judge at a rather early age. In a remarkable case Parning is sitting with Stonor, Shareshulle and Shardelowe. He takes issue with Shareshulle and a great debate is held between the judges on the bench, which is accurately reported. In the end Parning was overruled, but a few months later he became Chief Justice of the King’s Bench and then Chancellor.

This is the first instance of a great common lawyer attaining the marble chair. By reference to the Register, it will be found that in his two years’ service he provided a number of new remedies. Had the chancellors continued to be professors of the common law, there would have been no separate chancery system. But after Parning’s death the chancellorship was again bestowed upon an ecclesiastic. The growing opposition to the church is shown, however, by the Commons’ petition to the king in 1371 that only laymen should be appointed to the higher offices. Thereupon Robert de Thorpe, Chief Justice of the Common Pleas, was made chancellor. On his death John Knivet, Chief Justice of the King’s Bench, succeeded to the head of the chancery; but he remained for only five years, when the office was given to an ecclesiastic. No other layman held the office until Sir Thomas More. It is interesting to note that Parning, after he became chancellor, would return to sit in the law courts, and in 1370 there is the following entry in the Year Book: “Et puis Knivet le chanc. vyent en le place, et le case lui fuit monstre par les justices et il assenty.”

Some of the happenings of the time give us some light on contemporary manners. Chief Justice Willoughby in 1331 was captured by outlaws and compelled to pay a ransom of ninety marks—more than one year’s salary. Seton, a judge under Edward III., sued a woman who called him in his court “traitor, felon and robber.” The inference is that he had decided a case against the lady, but had not impressed her with the correctness of his decision. He recovered damages, but he was given a jury of his peers, that is, a jury of lawyers. The quaint simplicity of those times is shown by Thorpe and Green, two judges, going in state to the House of Lords and asking them what was meant by a statute lately passed. It would not occur to our judges to seek for such an explanation of an absurd law. Green once pronounced judgment against the Bishop of Ely for harboring one of the latter’s men who had committed arson and murder. For this judgment the Judge was cited before the Pope, and on his refusal to appear he was excommunicated. About this time there was considerable friction between the lawyers, called “gentz de ley,” and the churchmen, called “gentz de Sainte Eglise.” The “gents of law” probably instigated the petition that only laymen should be chosen to hold such offices as chancellor. But in the next Parliament the “gents of Holy Church” retorted by obtaining a petition from Parliament praying that henceforth “gentz de ley,” practicing in the king’s courts, who made the Parliament a mere convenience for transacting the affairs of their clients, to the neglect of public business, should no longer be eligible as knights of the shire. It is likely that the real ground of hostility to the church was its great possessions. Just as to-day the mass of people look with hatred and envy upon the possessors of great fortunes, so then many people turned to the broad lands of the church for relief against the taxation growing out of the French wars.

But the reign of Edward III. produced a ministerial ecclesiastic worthy to rank with Lanfranc, Flambard, Roger of Salisbury, and Robert Burnel. The career of William of Wykeham is one of the glories of the English church. Of humble birth, educated at Winchester, he attracted the attention of the bishop, who employed Wykeham’s truly wonderful architectural talents in the improvements of Winchester cathedral. Here he took the clerical tonsure. A little later he entered the service of the king, and at Windsor, on the site of an old fortress of William the Conqueror, he built the keep and battlemented towers, which are yet the noblest portion of one of the magnificent royal residences of the world. He was rapidly advanced to the bishopric of Winchester and the chancellorship. His declining years were taken up with the foundation of Winchester School, and with the far greater endowment of his college of St. Mary at Oxford, now called New College. Wykeham’s foundation still renders it a wealthy institution. After the lapse of five hundred years the buildings remain as they were designed by this greatest of art-loving prelates.

It is sad to turn to the closing years of the king, whose reign began with the triumph of Cressy. He had had a long and in many ways glorious reign. His court had been the most splendid in Europe. The pageantry of knighthood had thrown its glamour over his reign. The spoil of France had enriched his people. But the ravages of the plague had almost ruined the nation. In the domain of law the prospect was dark. The king’s mistress, Alice Perrers, openly intrigued to influence the court’s decision. She caused a general ordinance against women attempting the practice of the law. The heavy fees charged for writs in the chancery were the cause of bitter complaint. The royal council was accusing men and trying them without indictment. Justice was delayed by royal writs. The very judges of the land, it was charged, condescended to accept robes and fees from the great lords. One judge was convicted of taking bribes in criminal cases. The inefficacy of appeals was a crying evil, and it was complained that the judges heard appeals against their own decisions. All these various evils were to cause a grim reckoning in the next reign. But here we must close the period which began with the legislation of Edward I. and ended in such ignominy with his grandson’s death in 1377.


The Five Ages of the Bench and Bar of England: John Maxcy Zane




The Golden Age of the Common Law-From the Norman Conquest to the Death of Bracton: John Maxcy Zane

From: The Story of Law [1927]

The Golden Age of the Common Law: From the Norman Conquest to the Death of Bracton

The period of the Norman kings is one of gradual growth. The Norman lawyers, building upon what they found, made no violent changes. The Conqueror, under the wise guidance of Lanfranc, made no attempt to change existing laws and customs. Beyond taking ecclesiastical matters out of the jurisdiction of the county court, and protecting his Norman followers by special laws and tribunals, his reign was occupied in establishing the king as the ultimate owner of the conquered land and in the division of the spoil. But even in that troubled time, one capable man rose to eminence as a lawyer. The Italian Lanfranc, Archbishop of Canterbury, learned in the civil law, by his study of Anglo-Saxon laws prevailed in the one great lawsuit of this reign. The Domesday Survey, which enumerated all the lands in England, and ascertained the status of each subject, and the ownership of the land with its burdens and the rents and the services due from tenants of the land, was probably superintended by this great lawyer.

William Rufus had for his chief minister a man whom the annalist calls “invictus causidicus,” an ever successful pleader. This Ranulf Flambard was learned in the civil and the canon law, and is the first of that  long line of trained lawyers, whose duty it was to fill the royal treasury. He worked out the legal principles of relief and wardship. Ecclesiastic though he was, he laid his hands upon the broad lands of the church. All church lands held of the king devolved, upon the death of bishop or abbot, according to Ranulf, upon the king as feudal lord. The great revenue to be derived from farming out these lands was an obvious temptation, but Flambard devised a further improvement. Since the bishop or abbot could not be inducted into office without the king’s consent and the payment of a relief, the candidate for high clerical honors was compelled to wait a number of years before receiving his office and at the same time was compelled to pay an ample relief before he received investiture of the lands. It is needless to say that the monkish chroniclers have loaded Ranulf’s memory with a mass of obloquy.

In Rufus’ time an event occurred which every lawyer recalls with peculiar interest. The King contemplated a new palace at Westminster, but only that part of it which constitutes Westminster Hall was built. It is true that the Hall has been twice rebuilt, once in Henry III.’s reign, and again under Richard II., but the Hall itself, saving for its higher roof, its windows, and higher walls, is what it was when finished in 1099. In this Hall the courts of England were held for many centuries. As soon as the Court of Common Pleas was fixed in certo loco, it continuously sat there. Later the King’s Bench took a portion of it. At one end of the Hall was fixed the marble seat and table of the Chancellor, where his court was held. Thus it happened that for centuries the courts of England were in plain sight of each other. When Sir Thomas More was being inducted as chancellor under Henry VIII., he stopped in his progress to the marble chair and knelt to receive a blessing from his father, a judge sitting in the Common Pleas. There is but one other building in the world that offers such a flood of legal memories. The old Palais de Justice in Paris has been the scene of many a great legal controversy, but Westminster Hall has listened to the judgments of Pateshull and Raleigh and Hengham. Here Gascoigne, Fortescue, Brian, Littleton, Dyer, Coke and Bacon sat. Here Hale and Nottingham, Hardwicke and Mansfield did their work for jurisprudence. The great forensic contests of England, the arguments in the case of Ship-Money, the trial of the Seven Bishops, Erskine’s perfect oratory in Hardy’s case, and Brougham in the Queen’s case, are among the memories that make this solid Norman edifice to lawyers the most interesting spot in England.

In the reign of Henry I., a man splendidly educated for that time, surnamed Beauclerk, the Scholar, we begin to see the growing interest in the law. Wearied of the oppressions of the Conqueror and Rufus, men looked back to the good old times of the Saxon. The King had married a princess of the Saxon royal house. Himself a usurper he looked to his Saxon subjects for support. They won for Stephen the Battle of the Standard against the Scotch, celebrated by Cedric in Ivanhoe. In the Saxon enthusiasm a large crop of Saxon laws appeared, some of them actual translations from old laws, some of them palpable forgeries. The King even promised to restore the old local courts of the Saxons; had he done so, we should have had no common law. It was by this time apparent that the king’s court was supplanting the old tribunals. The great lawsuits, being among the magnates, necessarily came before the king’s courts. That court was stronger than any other, and suitors instinctively would turn to it. The criminal jurisdiction of the king’s court was growing. Its jurisdiction was extended to suitors in civil causes first as a matter of favor. The bishop had been taken out of the county court and given a separate jurisdiction in ecclesiastical matters, among which were numbered the administration of estates of decedents and matters of marriage and divorce. Now under Henry I (1068-1135) began the practice of sending trained lawyers throughout the realm to take pleas of the crown and to hear civil causes. At the same time Roger of Salisbury, who was the legal adviser of Henry I., developed the exchequer portion of the king’s court. A group of men, some of them trained lawyers, gathered in the exchequer tribunal. They did incidental justice in civil controversies and traveled the circuit. Indeed, Pulling in his “Order of the Coif” dates his first serjeant at law from 1117; but this must be a printer’s error. Otherwise, Pulling’s first serjeant is as wild a piece of history as Chief Justice Catlin’s descent from Lucius Sergius Catiline.

Besides Roger of Salisbury we know of one very celebrated lawyer in this reign—a man then renowned in the law, named Alberic de Vere. He is described by William of Malmesbury as causidicus and homo causarum varietatibus exercitatus. Where he gained his legal education is not known. He was a son of one of the Conqueror’s chief barons, the Count of Guynes, in Normandy. One of the chiefs of that house marched with Godfrey of Bouillon to the rescue of the Holy Sepulchre. The lists of the men who acted as judges in the king’s courts show the names of many well-known Norman families during this reign. The educated lawyers were generally churchmen, yet the Norman barons had a natural taste for litigation. After a hundred years, scions of the great houses were to become the trained lawyers of the profession; but at this time the ecclesiastics did most of the technical legal work. They issued the writs from the chancery; they were needed to keep whatever records were kept. Alberic de Vere was not an ecclesiastic like Roger or Nigel of Salisbury, yet he was high in the confidence of Henry I., who granted to him and his heirs the dignity of Lord Great Chamberlain of England—the only great office of state that by a regular course of inheritance has descended to its present holder.

When Henry I. died, the interregnum caused by the contest between Henry’s daughter Matilda and his nephew Stephen covered the land with misgovernment and oppression. Roger of Salisbury’s son, euphemistically called his nephew—and it was by no means an uncommon thing for bishops to have sons in those days—became chancellor, but he soon fell under the displeasure of King Stephen, and in consequence the aged Bishop Roger and his family received the harshest treatment. The churchmen complained of the King’s conduct, and a great council was called by the Bishop of Winchester to examine into the matter. King Stephen selected Alberic de Vere to represent him at the council. Alberic seems to have successfully defended the King, and either he or his son was rewarded with the earldom of Oxford.

Coke, following a saying of Fortescue, makes the quaint observation that “the blessing of Heaven specially descends upon the posterity of a great lawyer.” Certainly the high position of the posterity of Alberic de Vere may be adduced as proof of the saying. Earls of Oxford of the house of Vere were great figures in English history until after the Revolution of 1688. The third earl was one of the barons who extorted Magna Charta from King John. The well-known seal of the Earl of Oxford is on the charter. The next earl, who had as a younger son been brought up as a lawyer, was head of the Common Bench under Henry III. The seventh earl was in high command at Crecy under Edward III. and at Poitiers under the Black Prince. The ninth earl was a favorite of Richard II. and became Marquis of Dublin and Duke of Ireland. Although his honors were forfeited by Parliament, his uncle, another Alberic (or Aubrey) regained the earldom and the estates under Henry IV. The thirteenth earl was the chief of the party of the Red Rose and during the Yorkist reigns wandered over the continent. Scott’s romance, Anne of Geierstein, tells his story while in exile. He came back with Henry VII. and led the Lancastrians at the battle of Bosworth. The seventeenth earl, a courtier and poet, at the court of Elizabeth, did not disdain to introduce gloves and perfumes into England. When the eighteenth earl died without issue, a noted lawsuit ensued over the Oxford peerage; the judgment of Chief Justice Crewe((1558 -1646) is an oft quoted specimen of judicial eloquence:

“I have laboured to make a covenant with myself, that affection may not press upon judgment; for I suppose there is no man, that hath any apprehension of gentry or nobleness, but his affection stands to the continuance of so noble a name and house, and would take hold of a twig or twine thread to uphold it. And yet, Time hath his revolutions. There must be a period and an end of all temporal things—finis rerum—an end of names and dignities and whatsoever is terrene; and why not of De Vere? For, where is Bohun? Where’s Mowbray? Where’s Mortimer? Nay, which is more, and most of all, where is Plantagenet? They are entombed in the urns and sepulchres of mortality.”

But the end of the house was not yet. The nineteenth earl died on the continent while fighting for Protestantism. The twentieth earl, “the noblest subject in England,” man of loose morals though he was, was too much a Protestant to follow James II. in his attempt to restore Roman Catholicism. When this twentieth earl died, the male posterity of Aubrey de Vere was extinct; but his daughter and heiress, Diana, was married to Nell Gwynn’s son by Charles II., the Duke of St. Albans.  This son had been given the name of Beauclerk, and until recently the name of this family was de Vere Beauclerk. Topham and Lady Di Beauclerk will be remembered as friends of Dr. Johnson. But the present holder of the title seems to wish to forget his name Beauclerk and is well content to be simply de Vere. Heraldry, which is called “the short-hand of history,” shows this descent in the coat of arms of the St. Albans family; in the first and fourth quarters are the royal arms, debruised by a baton sinister to show illegitimate descent, while in the second and third quarters is the ancient cognizance of the Earls of Oxford, indicating a marriage with the heiress of the Veres.

Another stout judicial baron of this time is Milo of Gloucester, whose estates enriched in after times the house of Bohun. His exploit in marching to the relief of the widow of Richard de Clare, besieged in her castle by the Welsh after the murder of her husband, may have furnished Sir Walter Scott with his story of “The Betrothed,” where he tells of the succor of the Lady Eveline Berenger in the Garde Doloreuse. In fact, if we may judge from Ivanhoe, Scott must have taken many of his names from the judicial barons. Fronteboeuf, Grantmesnil and Malvoisin are names on the rolls of the courts. Segrave, a noted lawyer in Henry III.’s reign, was, like Ivanhoe, a Saxon who attained high position.
In the reign of Henry II., who succeeded Stephen, we begin to get a glimpse of an organized legal profession. This king was a great organizer and lawyer. His statutes of novel disseisin and mort dancester, his assize utrum and of last presentment were drawn by lawyers. In his reign the royal inquisition took a great step toward the modern jury. All litigation about land was thrown into the king’s courts. Many new writs and forms of action were invented. A fixed court made up of trained lawyers sat at Westminster. At the same time the country was divided into circuits, itinerant justices traveled the circuit and adapted the county court to the regular progresses of the king’s judges. The grand jury was now brought into form, and all the important criminal business came before the royal justices.

In the king’s court Henry himself often sat. He is surrounded by his council, but every now and then he retires to consult with a special body. The judges take sides and on one occasion the King orders Geoffrey Ridel, who seems too zealous for one party, from the room. The King peruses the deeds and charters, and when certain charters are produced we hear him swearing that “by God’s eyes” they cost him dearly enough. On another occasion two charters of Edward the Confessor, wholly contradictory, are produced. The King, nonplussed, says: “I don’t know what to say, except that here is a pitched battle between deeds.”

Now began the keeping upon parchment of the records of cases. The best picture of a lawsuit in this reign is the extraordinary litigation of Richard de Anesty. He claimed certain lands as heir of his uncle. An illegitimate daughter of the uncle was in possession. The question was as to her legitimacy and that depended for solution upon the issue of marriage or no marriage. Richard begins by sending to the King in Normandy for a writ of mort dancester. Then the issue of marriage must be directed by writ from the king’s court to the ecclesiastical court. The war in France intervenes, and Richard follows the King to France for a writ to order the court Christian to proceed. Three times he appeared in the latter court. Then he appealed from that court to the Pope, and for this he needed the King’s license. Finally the Pope decided in his favor. Thereupon Richard came back and followed the King until two justices were sent to hear his case, and at last he had judgment. Everywhere he had lawyers in his pay. His friends and advocates, among them Glanville, appeared for him in the secular court. In the ecclesiastical courts and before the Pope he hired lawyers, who were canonists, some of them learned Italians. After many years he obtained his uncle’s lands; but by that time, as he pathetically writes, he had become a bankrupt.

There are noted names among the king’s judges in this reign. Richard Lucy, Henry of Essex, William Basset, and Reginald Warenne were among the judges who went the circuit. Roger Bigot and Walter Map, the satirist, were of the itinerant judges. Ranulf Glanville and the three famous clerks, Richard of Ilchester, John of Oxford, and Geoffrey Ridel, sat at Westminster. The zeal with which the Norman barons attended to their judicial duties is amazing. The list of judges is almost an index of the great baronage. Marshalls, Warennes, Bigots, Bohuns, Bassets, Lucys, Laceys, Arundels, Fitz Herveys, Mowbrays, Ardens, Bruces, de Burghs, Beaumonts, Beauchamps, Cantilupes, Cliffords, Clintons, Cobbehams, de Grays, de Spensers, Fitz Alans, de Clares, Berkeleys, Marmions, de Quinceys, Sackvilles and Zouches are all among the itinerant judges.

The lawyers of this reign include both priests and laymen. Here begin the serjeants at law. Of the thirteen whom Pulling ascribes to this reign, are Geoffrey Ridel and Hugh Murdac, both priests, and such names as Reginald Warenne, William Fitz Stephen, William Basset and Ranulf Glanville, all laymen. It is a matter worthy of notice that the date at which each of the thirteen serjeants received the degrees of the coif is the date at which he began service as a judge. It is probable that the “status et gradus servientis ad legem,” in the writ calling a serjeant, was merely a nomination of the man to be a king’s justice. The matter is too obscure to admit of positive statement. But there must have been some reason for the rule that obtained for so many centuries, that no man could become a judge until he had been called to the degree of serjeant.

The first name among these lawyers is Glanville’s. Whether he wrote our first law book, which is called Glanville, is sharply debated. But he was at any rate a great judge with considerable legal learning. He probably received his legal training in the exchequer. But he was no less a warrior. As sheriff of Yorkshire he gathered an army and defeated the Scottish King and took him prisoner. King Henry entrusted to Glanville the custody of his wife, Elinor, whom he guarded for sixteen years. When in 1179 most of the King’s justices were removed, Glanville was continued in office and took his place in the court at Westminster. In the next year he became Chief Justiciar. One slanderous story of his judicial conduct has come down to us, but it is no more than idle gossip. Under Richard the Lion Hearted, Glanville took the vow of a crusader and preceded King Richard to the Holy Land, where he died under the walls of Acre.

It may be that Glanville did not write the book that passes under his name. Perhaps Hubert Walter, his nephew, a learned civil lawyer, who became Archbishop of Canterbury, put it together. It shows traces of the Roman influence, and Glanville was no partisan of Rome. There is on record a writ of prohibition issued by Glanville against the Abbot of Battle. On the hearing Glanville said to the priests: “You monks turn your eyes to Rome alone, and Rome will one day destroy you.” The prophecy came true after three hundred years.

Far more noted in this reign is the name of Becket. He was a trained lawyer educated in the canon and the civil law at Paris. He may very well have devised some of Henry’s statutes upon legal procedure, while he was chancellor. In the struggle that went on between the warring jurisdictions of courts ecclesiastical and secular courts, he boldly espoused the clerical side. The Chief Justiciar before Glanville, Richard Lucy, drew up the constitutions of Clarendon, which defined the jurisdiction of the king’s courts over priests, and brought on the struggle between Henry II. and Becket. Lucy was twice excommunicated by Becket, but he does not appear to have been seriously affected; yet, singularly enough, at the end of his life, he founded an abbey and assuming the cowl of a monk retired to the cloister and passed his remaining years in the works of piety.

The King, astute lawyer that he was, fought the Archbishop with the very best weapons. The chronicler records that Henry II. kept in his pay a gang of “bellowing legists” (ecclesiastical lawyers) whom he “turned loose” whenever he was displeased at an Episcopal election. In his controversy with Becket, Henry used the expert clerks, John of Oxford, Richard of Ilchester, and Geoffrey Ridel. John received as his reward the see of Norwich, Geoffrey was made bishop of Ely. Both of them, priests though they were, admirably served their royal client. They represented the King upon appeals to the Pope. Becket used a weapon against them that would hardly be in the power of a modern chancellor. Both lawyers and judges were excommunicated by the sainted archbishop. But the curse of Heaven and the reprobation of the faithful did not avail. At last, the murder of Becket ended the controversy, and while the victory remained with the King, it gave to Becket the peculiar honor of being one of the only two English chancellors who are numbered as saints in the canon of the church.

When the Conqueror took the bishop out of the county court and established church tribunals for ecclesiastics (a step which was taken at the demand of the priests), it could not have been foreseen what a tremendous influence this regulation would exert upon the history of English law. Yet the struggle which soon began between these warring jurisdictions is probably the real reason why the Roman law exerted so little influence upon the common law or its procedure. At Oxford there was a school of the civil and the canon law. Ecclesiastics educated under that system were constantly filling high judicial positions, yet these men were all faithful to the king’s courts and hostile to the ecclesiastical procedure. Practically all the trained lawyers were priests, yet they uniformly upheld the English law. In after times the canon law was to mold the procedure in the chancery courts; but the secular courts were not affected. No doubt the rational conceptions learned by these ecclesiastical lawyers from the civil law had no little effect upon the substance of their decisions; but the Roman law never affected the secular courts’ procedure.

An interesting figure among clerical judges is that noted Abbot Samson of St. Edmund’s Bury, who was made one of Henry II.’s justices. The priestly chronicler records with pride that a rich suitor cursed a court where neither gold nor silver could confound an adversary. The same chronicler tells us that Osbert Fitz-Hervey, a serjeant at law, the ancestor of the Marquises of Bristol, who was twenty-five years a judge at Westminster, said: “That abbot is a shrewd fellow; if he goes on as he begins, he will cut out every lawyer of us.” In a case where the Abbot was a party, Jocelyn says that five of the assize (jury) came to the Abbot to learn how they should decide, meaning to receive money, but the Abbot would promise them nothing, and told them to decide according to their consciences. So they went away in great wrath and found a verdict against the abbey. The juror who regards his place as an opportunity for pecuniary profit seems to be as old as the common law.

The intractability of the academic theorist in the person of Walter Map, the celebrated writer, crops out in his judicial experience. He once went the circuit, but was not called upon the second time, since he insisted on excepting from his oath to do justice to all men, “Jews and white monks,” both of which classes he detested. So he went back to his more congenial work of denouncing the whole body of the clergy, from Pope to hedge priest, as all of them busy in the chase for gain. But while that work is forgotten, we still are delighted by his tales of King Arthur and his knights and table round.

Under Richard and John, sons of Henry II., the regular enrolled records of the courts begin. Soon two sets of records are developed, those of the regular tribunal sitting at Westminster and those made in the presence of the king. The first are the records of what became the court of Common Pleas, the second of what became the King’s Bench. In John’s reign and that of his son Henry III. the learned lay lawyer appears in increasing numbers. First among them is Geoffrey Fitz Peter, who appears in the famous scene in the first act of King John, where the Faulconbridge inheritance is in question. Shakespeare cites the oldest English case on the orthodox rule of the English law, pater quem nuptiae demonstrant. Chief Justice Hengham in the next reign cites this case in the Year Book. It is needless to say that if Shakespeare had had the legal knowledge which has been by some lawyers ascribed to him, he could never have made the flagrant errors as to procedure which are found in King John.

Geoffrey Fitz Peter was the son of an itinerant justice of Henry II.’s reign, who had well upheld the dignity of civil justice against the church tribunals. A certain canon of Bedford was convicted of manslaughter in a bishop’s court, and was sentenced merely to pay damages to the relatives of the deceased. In open court the judge denounced the canon as a murderer; the priest retorted with insulting words, whereupon the King ordered the priest indicted. Perhaps at this time contempts of court were not punished by the court itself in a summary way. Geoffrey Fitz Peter inherited from his father, the judge, large possessions. With his wife he obtained the title and part of the estates of the Mandeville Earls of Essex. He was a learned lawyer, if we may believe Matthew Paris. He made a ruling which probably had the most far-reaching effect of any judicial decision. The last Mandeville earl, when he found that death was approaching, attempted to atone for a somewhat oragious life by devising a large portion of his lands to the church. Fitz Peter as the husband of one of the co-heiresses was directly interested in the case. Yet he is said to have ruled that a will of lands was invalid. From that day to the passage of the Statute of Wills, a devise of lands was impossible, except by virtue of some local custom. And so it is to-day that the realty devolves upon the heir, the personalty upon the executor. Fitz Peter served as a justice itinerant; he was a serjeant at law and upon John’s accession became Chief Justiciar. He held the place of head of the law for fifteen years, and with Hubert Walter, the chancellor, was able to keep King John under some restraint. The King joyfully exclaimed when he heard of his death: “He has gone to join Hubert Walter in hell. Now, by the feet of God, I am, for the first time, king and lord of England.” John at once entered upon the course that brought him into conflict with his baronage and ended with Magna Charta.

The long reign of John’s son, Henry III., may fairly be claimed as the golden age of the common law. The regular succession of the judges is now settled. John had promised in Magna Charta that he would appoint as judges only those men who knew the law. The judges whom the rolls show as sitting at Westminster establish the character of the court. The judges are promoted in regular order. The head of the court during the first years of this reign was William, Earl of Arundel; then for two years it is Robert de Vere, Earl of Oxford; then for seven years Pateshull, who had been a puisne, was head of the court. He is succeeded by Multon, who served for a long term. Raleigh, the second man in the court, followed Multon. In regular order follow Robert de Lexington, Thurkelby, Henry de Bath, Preston, and Littlebury. Thus it appears that the character of this court, a tribunal filled with trained lawyers, has become fully established.

The Earl of Arundel, who was Henry III.’s Chief Justiciar, belongs to a legal family whose successive marriages with other great legal families form a curious study in history. In the days of Henry I. a certain William de Albini was the son of the king’s butler or pincerna. He married Queen Adeliza, the young widow of Henry I., and with her obtained the castle and earldom of Arundel, the only earldom by tenure. The heiress of the de Albinis in the time of Henry II. married the son of John Fitz Alan, a judge in the king’s court, and thus the earldom and castle of Arundel passed to the Fitz Alans. Later, in the time of Edward III., the then Earl of Arundel by marriage acquired the title of Earl of Surrey and the estates of the Norman family of Warenne, whose first chief was the companion of the Conqueror and one of his chief justiciars. The great Earl of Arundel, who went to the block in Richard II.’s time, was the head of this mighty house. Still later the heiress of the Arundels married the Howard Duke of Norfolk. Singularly enough the Howards were descended from William Howard, a celebrated English serjeant at law, who, when the Year Books open, was in large practice in the courts. He rose to the bench (though he was not, as his tombstone records, a chief justice). His descendant, Sir Robert Howard, married the heiress of the Mowbrays, who held the Earl Marshalship of England hereditary in the Marshals. The sons of the great regent William Marshal, Earl of Pembroke, dying without male heirs, the dignity passed by marriage to the Bigots, Earls of Norfolk. From them by a special deed of the lands under the then new statute De Donis, these estates and dignities became vested in Edward I.’s son, Thomas of Brotherton. His heiress married a Mowbray; the heiress of the Mowbrays married Sir Robert Howard; and when the Howards obtained by marriage the titles and estates of the Arundel family in the reign of Elizabeth, all these honors of Warennes, de Albinis, Fitz Alans, Plantagenets, and Mowbrays had become united in the Howards. Perhaps we may credit this remarkable acquisitiveness through judicious marriages to the legal strain in the Fitz Alan Howards. Not only the Duke of Norfolk, premier peer of England, but the Earl of Suffolk and Berkshire, the Earl of Effingham, the Earl of Carlisle, and Lords Howard de Walden and Howard of Glossop, thus represent to-day the serjeant at law of Edward I.’s reign.

To return to the judges of Henry III.’s reign. Two of them, Pateshull and Raleigh, have been canonized by Bracton’s treatise. Bracton cites these two judges’ decisions almost as his sole authority. Other well-known judges of the time he notices merely to remark that they committed error—not by any means a failing confined to mediaeval judges. The greatest of these lawyers, Martin de Pateshull, was a priest—as was indeed Raleigh also, and Bracton himself. Pateshull’s origin was humble, but he became a justice itinerant in John’s reign and for many years he vigorously performed his duties. One of his brother justices in a letter to the King plaintively begs to be excused from going the York circuit, “for,” he says, “the said Martin is strong and in his labor so sedulous and practiced that all his fellows, especially William Raleigh, and the writer, are overpowered by the work of Pateshull, who labors every day from sunrise until night.” The Raleigh just spoken of was Bracton’s master. He managed to survive Pateshull, and succeeded him as head of the court. He first served as Pateshull’s clerk; his high character is shown by his election over the King’s uncle to the rich see of Winchester. Raleigh was ingenious in devising many new writs, and his name is of frequent occurrence in the Register of Writs.

The bravery of these judges in the performance of their duties is shown by a characteristic story. Fawkes de Breauté, a powerful baron and noted swashbuckler of the time, had so oppressed his neighbors that they proceeded against him in the king’s court. Three judges, Pateshull, Multon and Braybroc, went up from London to try the cases at Dunstable. Thirty verdicts were found against Fawkes and large fines imposed in all the cases. He was so incensed that he sent his followers under his brother’s leadership to seize the judges. He captured and imprisoned one of the court; but this conduct called out the royal power, then wielded by Hubert de Burgh. The brother and thirty of Fawkes’ retainers were hanged, but he himself escaped to lifelong exile.

Other judges like Hubert de Burgh, Thomas de Multon, Hugh Bigot, Earl of Norfolk, Humphrey de Bohun, Earl of Hereford, must be passed over. But Robert de Bruce deserves more than a passing mention. The first Robert de Bruce had come over with the Conqueror and had received ninety-four lordships as his share of the spoil. A cadet of the house, a grandson of the first Robert, had gone to the court of the Scottish King and had married the heiress of the lordship of Annandale. The fourth Robert in Scotland was Robert the Noble, lord of Annandale, the husband of a daughter of Prince David (the Knight of the Leopard in Scott’s Talisman).

The fifth Robert, a son of the princess, though a Scotch magnate, was educated for the law at Oxford. He practiced in Westminster Hall. He became Chief Justice and held the office until Henry III.’s death. Edward I. passed him by, and he retired in disgust to Scotland. But when the daughter of Alexander III. of Scotland died, the heirs to the throne were the descendants of Prince David’s daughters. This Robert, the Chief Justice, preferred his claim. He argued his own case before Edward I., the referee, but the decision on good legal grounds was given for John Balliol. But Robert’s grandson, another Robert, the national hero of Scotland, made good his title at Bannockburn.

Other judges of this reign are interesting figures—like the Percy, whose family is the one so celebrated in ballad and story as the Percys of Northumberland, or like Gilbert Talbot, who married a Welsh princess, and whose descendant was the stout warrior John Talbot, the first of the Earls of Shrewsbury, among whose descendants appeared Lord Chancellor Talbot in the reign of George II. But the real lawyer of this reign is the man whom we know as Bracton. His book on the laws and customs of England is the finest production of the golden age of the common law. Bracton’s father was vicar of the church at Bratton, of which Raleigh was the rector. The rector took an interest in the boy. There is a tradition that he put him to school at Oxford. When Raleigh became a judge, he made Bracton a clerk. In due time Bracton was promoted to a justiceship in eyre, when he became in 1245 a serjeant at law. From 1245 to 1265 he traveled the circuit, but part of that period he sat at Westminster with Henry de Bath, Thurkelby and Preston. During this time he made a large collection of precedents (known as his Note-Book) out of the decisions of Pateshull and Raleigh. A fortunate inference by Vinogradoff, confirmed by the lamented Maitland, has identified this collection of precedents with a manuscript in the British Museum, and the work of Bracton, long considered a mere attempt to apply the civil law to our common law, has been shown to be a careful statement of the decisions of the notable judges, who preceded him.

That the general conceptions, the arrangement, and the classification of Bracton’s work should have been taken from a writer on the civil law is not at all strange. There was no other source to consult. The Roman and the canon law had been taught by Vacarius in England, and he had written a book for his students. Manuscripts of the Roman law no doubt were brought to England. The flourishing school “utriusque juris” at Oxford must have had many scholars. Ricardus Anglicus, an Englishman, gained celebrity in the law in Italy. Italian lawyers came to England, and the King had in his service the renowned Hostiensis. Simon Normannus, Odo de Kilkenny, Roger de Cantilupe, and Alexander Saecularis belonged to this band of “Romish footed” legists of the King. English students went to Bologna and studied under Azo, “lord of all the lords of law.” Azo’s book Bracton had constantly with him as he was writing his “De Legibus et Consuetudinibus Angliae.” Yet the substance of Bracton’s book is a careful statement of the actual law administered by the courts. A priest himself, he everywhere shows his loyalty to the secular tribunals. Like Henry de Bath, he was dismissed from the king’s court on account of his leanings toward the party of the barons; yet he continued a justice in eyre. The barons at one time sent him on a judicial errand to redress grievances. Perhaps Bracton had felt the rough edge of the King’s tongue. We are told that to William of York, a distinguished predecessor of Bracton, the King said: “I raised you from the depths, you were the scribbler of my writs, a justice and a hireling.” Bracton well knew the great patriot Simon de Montfort, and no doubt sympathized with his cause. We know not what he was doing when the Barons’ War was raging, but it is probable that he was quietly attending to his judicial duties.

In Bracton’s book we find that the rules of law are fixed and settled. They bind even the king. The sympathies of Bracton with the party of freedom and progress here and there appear. “While the king does justice,” says Bracton, “he is the vicegerent of the Eternal King, but when he declines to injustice, he is the minister of the devil.” He had a noble ideal of the office of the lawyer and the judge. Using the phrase of the Digest he says of his profession, namque justitiam colimus et sacra jura ministramus, “We are the ministers at the altar of justice and feed its sacred flame.”

The greatness of Bracton’s work is best proven by the reflection that five centuries were to pass away before another English lawyer, in the person of Blackstone, was to appear, competent to write a treatise upon the whole subject of English law. Fortescue’s De Laudibus is a panegyric, Littleton’s Tenures covers a small field, Coke’s Institutes are so poorly arranged and badly written as to be unfit to rank with the clear, precise, and flowing language of Bracton or of Blackstone.

The long period from the Conquest in 1066 to Bracton’s death in 1267 had been a period of marvelous growth. It began with a varied assortment of local courts lacking settled rules, and ends with a highly organized system of courts administering a settled and rational system of law. It begins with a barbarous procedure, and ends with a rationalized method of ascertaining the facts. In the criminal law it begins with a system where the criminal makes redress to the injured party or his kin, it ends in a direct punishment of crime for the benefit of the whole society. Succeeding ages have merely amplified and glossed the distinctive rules of Bracton. The common law by its very form was made capable of indefinite expansion.

In addition, the general progression of the justices, holding the assizes through the different counties, distributed the royal justice throughout the country. The different local tribunals were subjected to a close scrutiny. In fact, the holding of an eyre was regarded by the inhabitants rather as an oppressive thing. The justices inquired into all the affairs of the counties and into all the acts of the local tribunals, into the enforcement of the criminal law and into the judgments rendered in civil causes. The numerous fines imposed made royal justice the source of an imposing revenue.

About this time the clergy were forbidden by the Pope to study the temporal law, and were inhibited from sitting in lay tribunals. The lawyer ecclesiastics, like Raleigh, Pateshull, William of York, Robert de Lexington, and Bracton, were soon to pass away. While ecclesiastical chancellors remained for centuries, the common law was about to become the heritage of laymen. The lay lawyers are learned men. Fitz Peter, Segrave, Braybroc, Multon and Thurkelby are all cases in point. But the most noticeable thing is that a class of advocates, who practice in the courts, has grown up, and that the judges are uniformly selected from among the profession. The serjeants at law and the apprentices at law now form a distinct body of men, devoting themselves solely to the practice. This separate class needed but schools of law to make it a closed body of men, admission to which required special attainments. This want was soon to be supplied by the Inns of Court, where the common law was taught as at a university. Everywhere the need of retaining good lawyers was felt. This is enforced by the judges. In one of the first Year Books, the reporter makes the Chief Justice say: “B loses his money because he hadn’t a good lawyer.” A few remarks of this sort from the bench would soon prevent an appearance in court by any one except a trained lawyer.

The division of the profession into barristers and attorneys had already appeared—a distinction that endures to our own day in England. The barrister appears only for a client already present in court by himself or by an attorney. The effect of this division in the profession may be indicated in a later place. At present it is enough to note the influence that is bound to be exerted by the body of professional lawyers. Their judgment upon legal matters is sure to be of controlling importance, and their influence upon the selection of judges has invariably caused in England the promotion to judgeships of men who have proved their ability by the attainment of leadership in the practice. The great advantage of appointive judges over elective is that the influence of professional opinion can be more easily brought to bear upon the appointing power than upon an untutored electorate.

But the growing power of Parliament was making itself felt upon the growth of the law. Perhaps the conservatism of the profession assisted. It was now no longer possible to devise new writs to meet new conditions and to offer new remedies. Parliament was insisting that the grant of new writs and the creation of new remedies was the making of new laws, a power which belonged to the nation’s representatives in Parliament. Thus the growth of the law was hindered by the growth of representative government. The English law is now ready to enter upon its second period, which began with the legislative activity of Edward I.’s reign.

The peculiar feature of the development of the common law is that its moving force did not come from the mass of the people, but was imposed upon a population constantly demanding a return to old and barbarous methods. The universal jurisdiction of the king’s courts, the most valuable institution in the history of the law, was looked upon with the greatest jealousy. The extinction of the old ordeals—a measure which began with the sneers of William Rufus and was finished under John—was not demanded by any large portion of the nation. The palladium of our liberties, that jury which grew out of the royal inquisition, was wholly foreign to the English race, and was imposed upon the nation by the Norman and Angevin kings. The grand jury in its inception was to most of the people little better than an engine of royal oppression.

The Norman baronage represents the element of power among the makers of this jurisprudence. In spite of individual exceptions who were cruel and oppressive, the mass of the Normans insisted upon law and order. They demanded men learned in the law for judges, and insisted that the judges should be independent of royal dictation. They asked for their own rights, but in Magna Charta insisted upon the rights of their humblest followers. In the years when the baronage was fighting John or Henry III., when civil war was distracting the land, practically the same judges went on holding court at Westminster, uninfluenced by the varying fortunes of barons or of king. Many a tale has been told to the discredit of the Normans; the jus primae noctis superstition is still an article of faith. But the legal historian knows that English liberty and law, even representative government, was the work of the Norman. William, Earl of Pembroke, well answered the king in the spirit of the Norman lawyer: “Nor would it be for the king’s honor that I should submit to his will against reason, whereby I should rather do wrong to him and to that justice, which he is bound to administer towards his people; and I should give an ill example to all men in deserting justice and right in compliance with his mistaken will. For this would show that I loved my worldly wealth better than justice.” It was not until the Norman baronage was broken by the wars of the Roses that England was ready to submit to the tyranny of the Yorkist and Tudor sovereigns—a tyranny that found its support in the mass of the nation. And when the struggle was resumed against the Stuart kings, the words of Bracton and of William of Pembroke were eagerly cited to prove that the king himself was not above the law of the land.


The Five Ages of the Bench and Bar of England: John Maxcy Zane




Master of Laws (LLM) in Common Law: The Chinese University of Hong Kong (CUHK)

Master of Laws (LLM) in Common Law

 

The common law is a dynamic and exciting legal system which unites millions of people across the world, in such varied cultures as Hong Kong, Singapore, England, Australia, New Zealand, Canada, India, and across the United States. This course will furnish students with substantive knowledge of Hong Kong law in some core common law subjects, and further develop the skills necessary to engage with the common law tradition more widely. Through the electives, students are given an opportunity to deepen their knowledge of the common law, or complement it with the study of new subjects.

Medium of instruction: English
How and when to apply: Applications for 2020 intake are now invited. You may apply through our on-line application system at the University’s Graduate School webpage.
Admission requirements: All applicants must fulfill the General Admission Requirements and the English Language Proficiency Requirement prescribed by the University’s Graduate School.

In addition applicants must have:

  • a qualification to practise law in the jurisdiction of the student’s residence; or
  • a Bachelor of Laws (LLB) degree or a degree of equivalent standing (normally in a non common law jurisdiction); or
  • a Bachelor’s degree in a non-law subject with substantial law-related working experience.

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Duration: Full-time: one year (normative study period) – two years (maximum study period).

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Campus: The CUHK Graduate Law Centre, 2/F, Bank of America Tower, Central.
Programme requirements: 24 units: including 12 units of required courses and 12 units of elective courses. Students should pass all the assessments with a cumulative GPA of at least 2.0 in order to be recommended for graduation.

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  • Common Law: Origins and Development
  • Principles of Contract
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  • Principles of Tort

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Additional learning & development opportunities: The Sir TL Yang Society

Mooting

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Tuition fees: HK$5,880 per unit* for a total of 24 units within the normative study period.

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Further study options: Master of Philosophy in Law (MPhil) or Doctor of Philosophy in Laws (PhD)
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Tuition Fee: HK$5,880 per unit for a total of 24 units within the normative study period
Funding Nature: Self-financed



The Genius of the Common Law: Frederick Pollock

OUR LADY AND HER KNIGHTS

More than seven years have passed since I was invited to speak here in the name of our Common Law. The renewal of such an invitation is if possible more honourable than its first proffer, and it would seem a simple matter to accept it with alacrity. But it comes from the young, nay from the immortals — for are not incorporate universities immortal? — to a man who must soon be irrevocably called old if he is not already so; a man at whose age the lapse of days gives a little more warning of some kind at every solstice, and whom it tells among other things that his outlook on life and doctrine is pretty well fixed for better or worse. Such a man cannot expect to acquire fresh points of view or to frame novel conceptions of any value. He may hope, at best, to keep an open mind for the merits of younger men’s discoveries; to find in the store of his experience, now and then, something that may help them on the way; to sort out results of thought and observation not yet set in order, and make them of some little use, if it may be, to his fellow-students; perhaps even to bring home to some others the grounds of his faith in the science of law, the faith that it has to do not with a mere intellectual craft but with a vital aspect of human and national history.

When I say human, I mean to lay on that word rather more than its bare literal import. I mean to rule out, so far as one man can do it, the old pretence that a lawyer is bound to regard the system he was trained in, whether it be the Common Law or any other, as a monster of inhuman perfection. Indeed the whole theme of these lectures will include as one chief purpose the development of this protest. Laymen may still be found to say in bewilderment or disappointment, as Mr. Justice Hillary said, we may presume in jest, towards the middle of the fourteenth century, that law is what the justices will; and we are still ready to reply with his brother judge Stonore: ‘No: law is reason.’1 Reason let it be, the best we can discover in our day. But the dogmatic assertion that law is the perfection of reason belongs to a later age, an age of antiquarian reverence often falling into superstition and of technical learning often corrupted by pedantry. We are here to do homage to our lady the Common Law; we are her men of life and limb and earthly worship. But we do not worship her as a goddess exempt from human judgment or above human sympathy. She is no placid Madonna sitting in a rose garden; rather she is like the Fortitude of the Florentine master, armed and expectant, her battle-mace lightly poised in fingers ready to close, at one swift motion, to the fighting grasp. Neither is she a cold minister of the Fates. Her soul is founded in an order older than the gods themselves, but the joy of strife is not strange to her, nor yet the humours of the crowd. She belongs to the kindred of Homer’s gods, more powerful than men but not passionless or infallible. She can be jealous with Hera, merciless with Artemis, and astute with Athena. She can jest with her servants on occasion. I would not warrant that she hid her face, any more than Queen Elizabeth would have done, even at those merry sayings of Chief Justice Bereford which Maitland might not translate. She has never renounced pomps and vanities. On the contrary, she delights in picturesque variety of symbols and ceremonial up to the point where it becomes inconvenient, and sometimes a little way beyond. Her expounders may dwell on forms with a certain loving solemnity, as Littleton where he says: ‘Homage is the most honourable service, and most humble service of reverence, that a frank tenant may do to his lord.’ But they need not always be solemn. Our lady was not enthroned in the Middle Ages for nothing. Like a true medieval clerk, she can indite an edifying tale or a devout comment and make a grotesque figure in the margin. Yet I have known good English lawyers who can see nothing but barbarism in the Middle Ages. I suspect those learned friends of being, I will not say possessed, but in some measure obsessed, by the enemy; not a medieval fiend with horns and claws, but a more dangerous one, the polished and scholarly Mephistopheles of the Romanizing Renaissance. Once he broke his teeth, as Maitland has shown us, on the tough law that the Inns of Court had made. But he is not dead, and our lady the Common Law has had other brushes with him, and may have shrewd ones yet. Now this brings me to the pith and sum of my enterprise, which is to consider her adventures in these and other perils, early and late: adventures of heroic mould and beyond any one man’s competence, but not so facile as to be wanting in dramatic interest, or to fail of mixing warning with ensample. We shall find her achievements and her mishaps not less varied than those of pilgrims or knights errant in general, some of them, I think, as surprising as anything in romance. She has faced many foes and divers manner of weapons; she knows as much as Bunyan’s Christian of Apollyon’s fiery darts and Giant Despair’s grievous crab-tree cudgel.

Some one, however, may say that if we consider our lady the Common Law too curiously, we may move another kind of curiosity to profane questioning whether she is a person at all; and if we fail to prove her reality (which probably cannot be done to the satisfaction of a common jury of lay people), peradventure we may be in mercy for bringing her into contempt as some sort of persona ficta, or yet worse, that useless figment of shreds and patches, a corporation sole. It may be safer to drop romance for a time and betake ourselves to the usual abstractions of serious discourse, while not admitting that they bring us much nearer to reality. Wherever we find a named and organic body of any kind, a nation, a church, a profession, a regiment, a college or academic institution, even a club, which has lasted long enough to have a history continued for more than a generation or two, we shall hardly fail to find also something analogous to that which in a single human being is called character; abilities, dispositions, usage that may be counted on. Such bodies acquire a reputation in respect not only of capacity, solvency, or businesslike habits, but of taste and temper. They may be enlightened or stupid, pleasant or unpleasant to deal with. In fact collective tradition and custom may give rise in a corporate unit (not confining the attribute to its strictly legal sense) to a stronger and more consistent character than is shown by most individuals. There is no alternative but to say that a commonwealth and all its subordinate and co-ordinate parts are nothing but a concourse of human atoms, and social history nothing more than a succession of accidents; in other words to deny that there is any political or legal science at all beyond a bare dogmatic analysis of the facts as taken at a given date and assumed (of course falsely) to be stationary. Thus we should be like amateur collectors of minerals, ignoring the structure of the earth and making an arbitrary arrangement of specimens on the shelves of a cabinet. I confess to a deep want of interest in shelves for their own sake. But really discussion seems pretty superfluous here and now; for if the better opinion were that history is a mere hortus siccus of documents and anecdotes, there would be no reason why I should be here at all, or, being here, why there should be any one to listen to me. So let us take it as decided, for the purpose of this course at any rate, that we accept the hypothesis of a real continuity. That being our position, we must further take it as true that not only men but institutions and doctrines have a life history. Given, then, an actual moral development (without assuming that it is uniform in direction, or always for the better), we cannot regard it as development of nothing; the facts must express a spiritual unity for us whether we can define it or not. In our Faculty we are taught to beware of definition, and therefore as prudent lawyers we may content ourselves with a symbol. None better occurs to me than the old Roman one of the Genius, a symbolic personage who is not to be conceived exactly as a heathen guardian angel, for he is not only a minister of grace or persuader to virtue, nor invariably favourable. He combines all elements of fortune, and is rather an unseen comrade on a higher plane, natale comes qui temperat astrum, than a master or mentor. We may call him a clarified image of the earthly self, a self represented as bringing forth the fruit of its best possible efficiency, but always of its own, not of any better or other qualities than those it actually has. Our Genius may stand also for a protest against another erroneous view, that which, out of zeal to avoid the inconsequence of the mere story-teller, would set up a rigid external fatalism. If this were right, history would be not only inevitable (which everything is when it has happened) but a pure logical deduction from predetermined ideas, if only we had the key to that kind of logic. But it is not so, for the short reason that, even if a superhuman intelligence could formulate a calculus of human action, it could not do so without counting the men. Experience tells us that character does count, whatever else does, and what is more, that it is often decisive at the most critical points. Habit will serve a traveler on the plain road; character is tested when it comes to a parting of the ways. This has nothing to do with any metaphysical controversy. For surely no pleader for determinism will assert that the determining causes of human action are confined to external motives, nor will any sane advocate of free will deny that, when action has to be taken upon one’s judgment of what a man is likely to do, some knowledge of his former conduct and his character will be found useful. All the great moralists are at one in ascribing perfect freedom only to the man (if such a man there can be) who may do his pleasure because his will, being wholly purified, can be pleased only in what is right. Such an one is crowned and consecrated his own lord in things both temporal and spiritual, as it was said to Dante when he had passed through Purgatory. He is beyond any particular rules because the very nature of his will is to fulfil all righteousness. His action could be foretold with certainty by any one who knew the facts and had the same sense of right, and yet no man would contend that he is not free. So much passing remark seems to be called for to avoid any charge of meddling with high matters of philosophy beyond the scope of our undertaking. For the rest, we can expect no such good fortune as to meet with ideal types of perfection in our journeyings on the ground of actual history.

In the sense and for the causes I have now shortly set forth, I propose as the general subject of these lectures the Genius of the Common Law. For reasons which seem imperative, I do not propose to handle the matter as a chronicler. A concise history of the Common Law might be a very good thing; I have thought once and again of its possibilities; but if ever the time comes when it can be brought within the compass of eight, ten or twelve lectures, it will be after much more searching and sifting have been done. At present my learned friend Dr. Holdsworth of Oxford has brought us down to the sixteenth century in three substantial but not unhandy volumes. We do not know that he, or any man, could have made the story shorter with safety; we do know that it grew in the author’s hands to be a good deal longer than at first he meant it to be; we know too that our time now disposable is short. I shall assume therefore that I speak to hearers not ignorant in a general way of the lines on which our common stock of judicial and legal tradition has been formed. Supposing the road and the country to be known to that extent, we will examine a certain number of the critical adventures our fathers met with in their pilgrimage; we will observe their various fortunes on different occasions, and see what may be learnt for our profit from their success or failure.

We must begin, however, at the beginning. It is easy to say that the law of our modern courts, for most practical intents, is to be found in the decisions and statutes of the last half century or thereabouts, and the rest is antiquarianism; and if some people say this in England, I suppose it is at least as often said in America, perhaps with more colour of reason; [8] though even here I would remind learned friends that there have been boundary disputes between States involving interpretation of the original colonial charters and intricate questions of old real property law. But now we are considering the permanent mind and temper of the Common Law, not the particular rules which judges administer to-day. The branches grow indeed, but they have always grown from the same roots; and those roots must be sought for as far back as the customs of the Germanic tribes who confronted the Roman legions when Britain was still a Roman province and Celtic. The description of Tacitus is familiar1: one passage in his ‘Germania’ has been a crux of scholars for generations, and is not yet fully or finally cleared up; but we cannot pass on without a glance at the broad features of the Teutonic institutions as he shows them. We need not dwell on the question how far he purposely made out an exaggerated contrast with the manners of imperial Roman society. No one has charged him with downright invention, and we are concerned here with the type — ‘the ideal of the Teutonic system’ in Stubbs’s words — and not with individual cases. Doubtless it was better realized in some tribes and clans than in others; the extent of the variations does not matter for the present purpose. Taking the Germans as described by Tacitus, we find among them a life of great publicity, with personal command only in war time, and ultimate decision, as distinct from executive authority and preliminary counsel, in the hands of the free men assembled in arms. The family is monogamous. Morals are simple and, by comparison with Greek or Roman habits, [9] extremely strict;1 for cowardice and effeminate vice there is no mercy. Gambling, on the other hand, is unrestrained, and adventurousness encouraged. Women not only exhort men to valour but are consulted in affairs of weight, though not in public.2 The external conditions are as different as can be from those of urban and commercial civilized life as they have existed in modern times and even in the Middle Ages. With so great a change of environment, we might expect the results to have been transformed almost beyond recognition. And yet, when we look at the modern social ethics of Europe and North America, can we fail to recognize a considerable persistence of the type? That persistence was in some respects reinforced by the teaching of the Christian church after the conversion of the Roman empire; in others, on the contrary, Germanic custom has been pretty stubborn in the face of ecclesiastical discouragement. It would seem that the not uncommon practice of treating all the virtues we profess to cultivate as distinctively Christian is not altogether just. Who taught us respect for women? Our heathen ancestors. Who laid down for us the faith that the life of a free nation is public, and its actions bear lasting fruit because they are grounded in the will of the people? Our heathen ancestors. Who bade us not only hate but despise the baser forms of vice, and hold up an ideal of clean and valiant living which European Christianity could assimilate, so becoming a creed not only of God-fearing but of self-respecting men? Our heathen ancestors. Among those ancestors we may count, besides the Germans, the Scandinavians, whose invasions contributed in a notable proportion to the English stock of descent. Their customs, about the time of the Norman Conquest, were still much like those described in the ‘Germania.’ Regularity and even formality had been introduced in public business, but there was no defined executive power.

Now there are two cautions to be observed here. First, it would be foolish to claim for the Teutonic nations or kindred an exclusive title to any one of the qualities noted by Tacitus. Taken singly, we may find parallels to most of them in various regions of the world at various times. The Greeks described by Homer, for example, are much nearer to the Germanic ideal than Plato’s contemporaries; and it is more than probable that in the Germans Tacitus found a living image of regretted virtues which were believed to have flourished under the Roman republic. Other analogies have no doubt existed in other branches of the Indo-European family, and among people who are not Indo-European at all. It is enough to mention the Celts of the dimly discerned heroic age — the days to which the legendary disputes of Ossian and Patrick were assigned — and the Arabs of the time before Islam. But it remains a notable and, I think, a singular fact that the Germanic type was preserved as a whole, and so little affected by foreign influence, at the very time when the civilization of the Mediterranean lands had become cosmopolitan, and both Hellenic and Roman manners were infected with Asiatic corruption as well as Asiatic enthusiasm. Whatever may be the right explanation of this, the constant affection of the Common Law for both freedom and publicity  does appear to owe something to it. The second caution is that, in claiming justice for our pagan ancestors, I have no desire to be less than just to the Church. There is no ground for any polemical inference. All the Germanic virtues, in so far as they agree with the precepts and commendations of the Church, belong to the law of nature in the regular scholastic usage of the term: that is to say, they are the following of general rules binding on all men as moral and rational beings, and discoverable by human reason without any special aid of revelation. According to the accepted teaching of the Schoolmen, if I am rightly informed, there is no sufficient cause, indeed no excuse, for man even in his fallen state not to know the law of nature; his defect is not in understanding but in will, and his works are unacceptable for want of obedience rather than of knowledge. What we have said, therefore, of the unconverted Germans might be expressed in another way by saying that they kept a less corrupted tradition of natural law than most other heathens; and I believe this would not involve any theological indiscretion. Indeed it might be a pious or at least an innocent speculation for an orthodox historian to surmise that herein they were special instruments of a dispensation outside or antecedent to the ordinary means of grace; the like assertion, at any rate, has constantly been made concerning the Roman Empire. It is embodied in the most striking manner by the legend of Trajan’s miraculous translation to Paradise, the reward of a signal act of justice1; and this is the more notable when we remember that Trajan had authorized the persecution of Christians, though with reluctance. The same conception is the very groundwork of Dante’s treatise on Monarchy. Moreover we shall not forget that the Teutonic ideal has been exalted by writers who were good churchmen enough according to any test short of strict Roman orthodoxy, and in terms both stronger and wider than any that I have thought fit to use. But I do not call these champions in aid. It is not our business either to support or to contravene the Anglo-Saxon zeal of a Kemble, a Kingsley or a Freeman, when we can find everything we need for our particular purpose without going outside the text of Tacitus and the judicial caution of Gibbon’s comment thereon. Perhaps it is needless to disclaim any such extravagant assertion as that the Angles and Saxons and Norsemen who settled in Britain were better men than their kinsfolk of the Continent. We know that they had the good fortune to settle on an island.

When we speak of the Germanic type and traditions as having persisted, we do not affirm that our remote forefathers’ ideals of publicity, freedom, individual self-respect, and what else may be discoverable in our authorities or be fair matter of inference, have enjoyed an unbroken supremacy, still less a manifest one, throughout English history. There have always been adverse influences at work, and more than once they have seemed on the point of prevailing for good and all. Neither is it denied that there are reasonable and inevitable limits to the application of these ideals. Any civilized jurisprudence, for example, must pay some regard to the existence of State secrets which it would be dangerous to the common weal to disclose, and it must afford some protection to domestic and professional confidence; while it will not include in the name of personal freedom an unlimited franchise to defy the law and its officers, although there are people who behave as if it were so and even pretend  to think so. The most we can expect is to find, as we do find, that the tradition of public life and common counsel has never been quite inoperative; that the rulers who have been most masterful in fact have been careful at least to respect it in form; and that open defiance of it has always been disastrous to those who ventured on such courses. The Tudors, by judicious use of methods which were on the whole formally correct (whatever historians or moralists may have to say to other aspects of them), gained far more real power than that which the Stuarts, often with quite a fair show of reasons on their side, lost by relying on the King’s extraordinary privileges against Parliament and the common law. It is needless to repeat this familiar story, which I place among the things assumed to be sufficiently known.

Archaic virtues, like most good things in this world, are not without their drawbacks. Whatever else they are, they cannot help being archaic, and accordingly they go down to posterity clothed in antique and rigid forms. Those forms were once an effective and probably a necessary safeguard against a relapse into mere anarchy, the state of war in which every man’s hand is against every other man’s. But the rigidity which made them effectual for this purpose will make them, in a more settled order of things, an equally stubborn obstacle to improvement. Archaic justice binds the giants of primeval chaos in the fetters of inexorable word and form; and law, when she comes into her kingdom, must wage a new war to deliver herself from those very fetters. This conflict of substantial right and formalism is never exhausted; it is a perennial adventure of the Common Law, and perhaps the most arduous of all.


Source: Sir Frederick Pollock, The Genius of the Common Law [1912]




Common law practice

  • Common Law of India - Common law of England. Criminal Law The common law of England in relation to crimes, except so far as the same relates to the modes and degrees of punishment, shall be of full force in this state where there is no existing provision by statute on the subject. Civil Law
  • Common Law Procedure Act 1852 [UK] - WHEREAS the Process, Practice, and Mode of Pleading in the Superior Courts of Common Law at Westminster may be rendered more simple and speedy : Be it enacted by the Queen’s most Excellent Majesty, by and with the Advice and Consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and
  • D.D.A. Appellant Versus Mahender Singh and Another[ALL SC 2009 MARCH] - KEYWORDS:- COMMON LAW PRINCIPLES- INTEREST DATE:-20-03-2009- “As the Act is a self-contained Code, common law principles of justice, equity and good conscience cannot be extended in awarding interest, contrary to or beyond provisions of the statute”. AIR 2009 SC 3270 : (2009) 4 SCR 788 : (2009) 5 SCC 339
  • Difference between the practice in the Court of Chancery and in Common Law Courts - ‘Harlock v. Ashberry’, (1881) 19 Ch D 84 (C), which sets out the law obtaining in England on this point. Lush L. J., points out the difference that existed between the practice in the Court of Chancery and in Common Law Courts before the Judicature Acts as follows : “In
  • Equity Appeal - In common law cases the appellate court could ordinarily review only rulings of law. In equity cases, on the other hand, the appellate court could review findings of fact as well as conclusions of law. The significant thing about common law pleadings in error was that their scope was so limited that they did
  • Indian Courts in absence of any specific law are enjoined to decide cases “according to justice, equity and good conscience.” - The Indian Courts in the absence of any specific law are enjoined to decide cases “according to justice, equity and good conscience.” The expression “justice, equity and good conscience” has been interpreted to mean “the rules of English law if found applicable to Indian society and circumstances”; Waghela Rajsanji v.
  • M. C. Verghese Versus T. J. Ponnan and another[ALL SC 1968 NOVEMBER] - KEYWORDS:-DEFAMATION – COMMON LAW PRINCIPLES-Libellous communication- DATE:-13-11-1968 AIR 1970 SC 1876 : (1969) 2 SCR 692 : (1970) CriLJ SC 1651 (SUPREME COURT OF INDIA) M. C. Verghese Appellant Versus T. J. Ponnan and another Respondent (Before : J. C. Shah, V. Ramaswami And A. N. Grover, JJ.) Criminal Appeal
  • M.V.AL. Quamar vs Tsavliris Salvage (International) Ltd. and other[ALL SC 2000 AUGUST] - KEYWORDS:-Admiralty matter-Common law principles- common law of India- DATE:- 17-08-2000 AIR 2000 SC 2826 : (2000) 2 Suppl. SCR 440 : (2000) 8 SCC 278 : JT 2000 (9) SC 184 : (2000) 5 SCALE 618 (SUPREME COURT OF INDIA) M.V.AL. Quamar Appellant Versus Tsavliris Salvage (International) Ltd. and others
  • Natural rights theory - It must be remembered that an easement is a specific right subtracted from the general rights constituting ownership of one property and attached to the ownership of another property. In the language of the Act an easement is a restriction of a natural right. An easement, therefore, must be distinguished
  • P. Malai Chami Versus M. Andi Ambalam and others[ALL SC 1973 APRIL] - KEYWORDS:-COMMON LAW-SUIT IN EQUITY- ELECTION PETITION- DATE:-18-04-1973- AIR 1973 SC 2077 : (1973) 3 SCR 1016 : (1973) 2 SCC 170 (SUPREME COURT OF INDIA) P. Malai Chami Appellant Versus M. Andi Ambalam and others Respondent (Before : D. G. Palekar And A. Alagiriswami, JJ.) Civil Appeal No. 649 of
  • R G. Anand Appellant Versus Delux Films and others[ALL SC 1978 August] - KEYWORDS:- COPYRIGHT – COMMON LAW PRINCIPLES-Infringement of a copyright- DATE:-18-08-1978 AIR 1978 SC 1613 : (1979) 1 SCR 218 : (1978) 4 SCC 118 (SUPREME COURT OF INDIA) R G. Anand Appellant Versus Delux Films and others Respondent (Before : S. Murtaza Fazl Ali, Jaswant Singh And R. S. Pathak,
  • Succession after death and inter vivos under Common Law - SUCCESSIONS AFTER DEATH. In the Lecture on Possession, I tried to show that the notion of possessing a right as such was intrinsically absurd. All rights are consequences attached to filling some situation of fact. A right which may be acquired by possession differs from others simply in being attached
  • The Genius of the Common Law: Frederick Pollock - In the sense and for the causes I have now shortly set forth, I propose as the general subject of these lectures the Genius of the Common Law. For reasons which seem imperative, I do not propose to handle the matter as a chronicler. A concise history of the Common Law might be a very good thing; I have thought once and again of its possibilities; but if ever the time comes when it can be brought within the compass of eight, ten or twelve lectures, it will be after much more searching and sifting have been done.
  • What is Common Law - “the common law was an ‘antient collection of unwritten maxims and customs“ English law is said to be rooted in common law. Common law grew from the customs of the English people. It was not made by legal officials, as statutes are. The role of legal officials – particularly judges –
  • What is common law legal system - The common law originally developed under the auspices of the adversarial system in historical England from judicial decisions that were based in tradition, custom, and precedent. The form of reasoning used in common law is known as casuistry or case-based reasoning. Common law may be unwritten or written in statutes or codes. The common law, as applied in civil cases (as distinct from criminal cases), was devised as a means of compensating someone for wrongful acts known as torts, including both intentional torts and torts caused by negligence and as developing the body of law recognizing and regulating contracts.




Indian Courts in absence of any specific law are enjoined to decide cases “according to justice, equity and good conscience.”

The Indian Courts in the absence of any specific law are enjoined to decide cases “according to justice, equity and good conscience.” The expression “justice, equity and good conscience” has been interpreted to mean “the rules of English law if found applicable to Indian society and circumstances”; Waghela Rajsanji v. Shekh Masluddin (1887) 14 IA 89 at 96 (PC). Sir Frederick Pollock prepared a draft code of torts for India but it was never enacted into law. The law of civil wrongs in India is almost wholly the English law which is administered as rules of “justice, equity and good conscience.” [See Setalvad, The Common Law in India, original edition, p. 110]. The Indian Courts, however, before applying any rule of English law can see whether it is suited to Indian society and circumstances. The application of the English law in India as rules of justice, equity and good conscience has, therefore, been what Setalvad calls a “selective application.” The learned author quotes a number of illustrations where the Privy Council and the Indian Courts refused to apply rules of English law as they were unsuitable to Indian conditions; (The Common Law in India, pp. 53 to 56). Further, in applying the English law on a particular point the Indian, Courts are not restricted to the common law. The English law consists both of common law and statute law and the Indian Courts can see as to how far a rule of common law has been modified or abrogated by statute law of England. There is no doubt a presumption that a rule of common law is in consonance with justice, equity and good conscience. But how can that presumption continue if the country of its origin has itself rejected the rule and has made new rules in its place. If the new rules of English law replacing or modifying the common law are more in consonance with justice, equity and good conscience, it would be open to us to reject the outmoded rules of common law and to apply the new rules. It is on these principles that this High Court in AIR 1937 354 (Nagpur) refused to apply the doctrine of common employment in so far as it was abrogated by the Employers’ Liability Act of 1880. In that case Stone, C. J. observed as follows:

“I am of the opinion however that in considering what is to-day consonant to justice, equity and good conscience one should regard the law as it is in England to-day, and not the law that was part of the law of England yesterday. One cannot take the Common Law of England divorced from the statute law of England and argue that the former is in accordance with justice, equity and good conscience and that the latter which has modified it is to be ignored to-day in England, so far as this case is concerned.”

“It is true that in considering what the Common law of England is, one has not to look at the statute law of England; but the law of England is composed of both, and one seeks guidance when determining what is justice, equity and good conscience not by looking at a particular branch of the law in England, but by looking at what is the law of England at present in force, and even then one is not compelled to apply that law unless one is of the opinion that bearing in mind the circumstances as existing in India today, that law can according to justice, equity and good conscience be here applied.”

On the same point Niyogi, A. J. C. in the same case said:

“Any Court in India which takes recourse to the Common law of England and seeks to apply its principles to India cannot afford to ignore the extent to which the Common law stands abrogated by statute.”

“It, therefore, appears to me that it is manifestly anomalous and illogical to apply, in the name of justice, equity and good conscience, to India the doctrine of Common law which is no longer regarded at its source as fair and equitable and enforced as such.”

The defence of contributory negligence that a plaintiff who is only partly to blame for the accident cannot recover any damages is on the face of it illogical. Although many explanations are given of this rule, its origin was more probably due to procedural and pleading anomalies of the old common law. Lord Wright in an article in Modern Law Review said on this point as follows:

“The precise explanation of this curious rule, that the plaintiff who is in any way at fault cannot recover anything from the principal wrong-doer, seems to have been that the common law courts could not, or would not, apportion in pieces the damage contributed to, both by the plaintiff and the defendant, as the Admiralty Court did. It has been suggested in one place that the purpose was moral, namely to inculcate care; or it may have been a scholastic but fallacious attempt to apply in strict formal logic, the principle that causa proxima, or the last cause, is what is to count. It was, however, more probably due to procedural and pleading points, like other anomalous parts of the old common law. The plaintiff could declare upon the defendant’s negligence, as in Davies v. Mann (1842) 10 M & W 546 or nuisance, as in Butterfield v. Forrester (1809) 11 East 60. Against that declaration, the defendant would plead the general issue, simply the words ‘not guilty’, and that was a sufficient plea to entitle him to show that the accident was in part due to the plaintiffs own negligence; thus the plaintiff who had alleged that the accident was due to the defendant’s negligence failed.” [13 MLR 5].

Lord Wright further tells us that as long back as 1887 Fry, L. J., a great Judge, demanded why the Court could not be empowered to divide the loss; [13 MLR 2.] In Sparks v. Edward Ash. Ltd. (1943) 1 KB 223 at p. 230. Scott, L. J. referred to the “harsh and often cruel bearing of our common law doctrine of contributory negligence” and stressed the need for early law reform. The reform, as already stated, came by legislation in 1945. Even before it the Admiralty Courts had power to apportion the blame under the Maritime Conventions Act, 1911, which is applicable to India. Should we then continue to apply the doctrine of contributory negligence in India as a rule of equity, justice and good conscience when it has been rejected in the country of its origin being a harsh and cruel doctrine of the common law? Our answer is clearly in the negative. The principle of apportionment enacted in the English Act of 1945 is more in consonance with justice, equity and good conscience and since we can look to the English law as it is, we must apply this principle in place of the old rule of contributory negligence. We are happy to note that a similar view was taken by Krishnan, J. C. in State v. Lalman Badri Prasad AIR 1954 MP 17 at p. 24 and a leading Indian text book also commends this view; (See, S. Ramaswami Iyer, The law of Torts, Sixth edition, p 447).




Difference between the practice in the Court of Chancery and in Common Law Courts

‘Harlock v. Ashberry’, (1881) 19 Ch D 84 (C), which sets out the law obtaining in England on this point. Lush L. J., points out the difference that existed between the practice in the Court of Chancery and in Common Law Courts before the Judicature Acts as follows :

“In the Court of Chancery, it was the practice to require security to a certain amount for the costs of an appeal to be given in every case. That was not the practice in the Courts of Common Law ; there poverty alone was not considered a sufficient reason for requiring security to be given …………………. The rule under the Judicature Act (R. 15 of O. 58) provides that such security for the costs of any appeal shall be given an may be directed under special circumstances by the Court of appeal.

This was intended to alter the whole practice both of the Court of Chancery and of the Courts of Common Law, and to leave it in the discretion of the Court whether security should be given under special circumstances.”

As regards the practice now obtaining in England, jessel M. R., observed as follows :

“For sometime past it has been the settled practice if the respondent asks for it, to require security for costs to be given by an appellant who would be unable through poverty to pay the respondent’s costs of the appeal if it should be unsuccessful. The amount is generally very moderate and ofter turns out to be a good deal less than the actual costs.”




Common Law Procedure Act 1852 [UK]

WHEREAS the Process, Practice, and Mode of Pleading in the Superior Courts of Common Law at Westminster may be rendered more simple and speedy :

Be it enacted by the Queen’s most Excellent Majesty, by and with the Advice and Consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the Authority of the same, as follows :

Only Active legal provisions have been given below

1852 CHAPTER 76 15 and 16 Vict

[30th June 1852]

An Act to amend the Process, Practice, and Mode of Pleading in the Superior Courts of Common Law at Westminster, and in the Superior Courts of the Counties Palatine of Lancaster and Durham.

210 Proceedings in ejectment by landlord for nonpayment of rent.

In all cases between landlord and tenant, as often as it shall happen that one half year’s rent shall be in arrear, and the landlord or lessor, to whom the same is due, hath right by law to re-enter for the nonpayment thereof, such landlord or lessor shall and may, without any formal demand or re-entry, serve a writ in ejectment for the recovery of the demised premises,, which service .  shall stand in the place and stead of a demand and re-entry; and in case of judgment against the defendant for nonappearance, if it shall be made appear to the court where the said action is depending, by affidavit, or be proved upon the trial in case the defendant appears, that half a year’s rent was due before the said writ was served, and that either of the conditions in section 210A was met in relation to the arrears], and that the lessor had power to re-enter, then and in every such case the lessor shall recover judgment and execution, in the same manner as if the rent in arrear had been legally demanded, and a re-entry made; and in case the lessee or his assignee, or other person claiming or deriving under the said lease, shall permit and suffer judgment to be had and recovered on such trial in ejectment, and execution to be executed thereon, without paying the rent and arrears, together with full costs, and without proceeding for relief in equity within six months after such execution executed, then and in such case the said lessee, his assignee, and all other persons claiming and deriving under the said lease, shall be barred and foreclosed from all relief or remedy in law or equity, other than by bringing error for reversal of such judgment, in case the same shall be erroneous; and the said landlord or lessor shall from thenceforth hold the said demised premises discharged from such lease; ; provided that nothing herein contained shall extend to bar the right of any mortgagee of such lease, or any part thereof, who shall not be in possession, so as such mortgagee shall and do, within six months after such judgment obtained and execution executed pay all rent in arrear, and all costs and damages sustained by such lessor or person entitled to the remainder or reversion as aforesaid, and perform all the covenants and agreements which, on the part and behalf of the first lessee, are and ought to be performed.

210AConditions relating to commercial rent arrears recovery

(1)The first condition is that the power under section 72(1) of the Tribunals, Courts and Enforcement Act 2007 (commercial rent arrears recovery) was not exercisable to recover the arrears.
(2)The second condition is that there were not sufficient goods on the premises to recover the arrears by that power.]

211 Lessee proceeding in equity not to have injunction or relief without payment of rent and costs.

In case the said lessee, his assignee, or other person claiming any right, title, or interest, in law or equity, of, in, or to the said lease, shall, within the time aforesaid, proceed for relief in any court of equity, such person shall not have or continue any injunction against the proceedings at law on such ejectment, unless he does or shall, within forty days next after a full and perfect answer shall be made by the claimant in such ejectment, bring into court, and lodge with the proper officer such sum and sums of money as the lessor or landlord shall in his answer swear to be due and in arrear over and above all just allowances, and also the costs taxed in the said suit, there to remain till the hearing of the cause, or to be paid out to the lessor or landlord on good security, subject to the decree of the court; and in case such proceedings for relief in equity shall be taken within the time aforesaid, and after execution is executed, the lessor or landlord shall be accountable only for so much and no more as he shall really and bona fide, without fraud, deceit, or wilful neglect, make of the demised premises from the time of his entering into the actual possession thereof; and if what shall be so made by the lessor or landlord happen to be less than the rent reserved on the said lease, then the said lessee or his assignee, before he shall be restored to his possession, shall pay such lessor or landlord, what the money so by him made fell short of the reserved rent for the time such lessor or landlord held the said lands.

212 Tenant paying all rent with costs, proceedings to cease.

If the tenant or his assignee do or shall, at any time before the trial in such ejectment, pay or tender to the lessor or landlord, his executors or administrators, or his or their attorney in that cause, or pay into the court where the same cause is depending, all the rent and arrears, together with the costs, then and in such case, all further proceedings on the said ejectment shall cease and be discontinued; and if such lessee, his executors, administrators, or assigns, shall, upon such proceedings as aforesaid, be relieved in equity, he and they shall have, hold, and enjoy the demised lands, according to the lease thereof made, without any new lease.

214 On trial of any ejectment between landlord and tenant, juries to give damages for mesne profits down to the verdict, or to a day specified therein.

Wherever it shall appear on the trial of any ejectment, at the suit of a landlord against a tenant, that such tenant or his attorney hath been served with due notice of trial, the judge before whom such cause shall come on to be tried shall, whether the defendant shall appear upon such trial or not, permit the claimant on the trial, after proof of his right to recover possession of the whole or of any part of the premises mentioned in the writ in ejectment, to go into evidence of the mesne profits thereof which shall or might have accrued from the day of the expiration or determination of the tenant’s interest in the same down to the time of the verdict given in the cause, or to some preceding day to be specially mentioned therein; and the jury on the trial finding for the claimant shall in such case give their verdict upon the whole matter, both as to the recovery of the whole or any part of the premises, and also as to the amount of the damages to be paid for such mesne profits; and in such case the landlord shall have judgment within the time herein-before provided, not only for the recovery of possession and costs, but also for the mesne profits found by the jury: Provided always, that nothing herein-before contained shall be construed to bar any such landlord from bringing any action for the mesne profits which shall accrue from the verdict, or the day so specified therein, down to the day of the delivery of possession of the premises recovered in the ejectment.
215, 216.

235 Short title of Act.

In citing this Act in any instrument, document, or proceeding, it shall be sufficient to use the expression “The Common Law Procedure Act, 1852.”

236 Act not to extend to Ireland or Scotland.
Nothing in this Act shall extend to Ireland or Scotland


Read the law as originally enacted – Common Law Procedure Act 1852


You may also like :

  1. Chancery Amendment Acts 1858
  2. Judicature Acts of 1873 and 1875

Note :

Applying the above three statues the old courts of Common Law and chancery were abolished and in their place, a High Court of Justice with a Court of Appeal was established.

The High Court of Justice was divided into the following five divisions –

(i) the Chancery

(ii) the Queens Bench

(iii) the Common Pleas

(iv) the Exchequer

(v) Probate, Divorce and Admiralty.


 




Equity Appeal

In common law cases the appellate court could ordinarily review only rulings of law. In equity cases, on the other hand, the appellate court could review findings of fact as well as conclusions of law. The significant thing about common law pleadings in error was that their scope was so limited that they did not bring about a review of the merits of the judgment. The appellate court did not pass on whether or not the judgment below was fair or just, nor on what the correct judgment should have been. Instead, the sole question was, Did the trial judge commit an error? The function of an appellate court in reviewing equity cases, on the other hand, is not to search the record for errors of law, but to examine the result in the light of the evidence to see if justice has been done. Thus, the equity doctrine is in accord with the modern theory that the primary purpose of review is to see that justice is done in the individual case.