LECTURE XLIII.

Continuation of the commentary on Magna Charta.

As I have dwelt on the twenty-ninth chapter of Magna Charta so long, and treated of it and every part of it so minutely, I shall, in this lecture, dispatch the remaining part thereof with more expedition. Indeed, of the thirty-first I would have said no more, than merely to observe, that it related to the military tenures now abolished, were it not proper to remark, that it was made to enforce the old feudal law, then the law of England, with respect to landed estates, and to restrain John’s successors from the violences he had introduced in favour of the royal prerogative, to the detriment of the immunities and privileges of the subjects. It has been already observed in these lectures, that by the feudal law, especially as established by the Conqueror in England, the king was very amply provided for with a landed estate, to support his dignity and expences, which was at that time looked on all over Europe as unalienable, except during the life of the king in being; and that the rest of the land was to be the property of the free subjects of the realm, subject to the services imposed, and the other consequences of his seignory as feudal lord.

One of these consequences was the escheat on the failure of heirs, either by there being none, or by the blood being corrupted by the commission of felony, which in law amounted to the same thing; as no son, uncle, nephew, or cousin, could by law claim as heir by descent to a person attainted. For the legal blood, the title to the inheritance, failed in him the last possessor, by his breach of fealty; and every heir lineal or collateral by the law of England being obliged to claim as heir to the person last seized, must be excluded, when the legal blood inheritable failed in the last possessor.

In consequence of these escheats, which often happened in those times, both by corruption of blood, and failure of heirs inheritable, (for, as I have observed before, the granting feuda antiqua ut nova was introduced only by Henry the Second, the father of John, and were not at this time become universal, as they since have been) John introduced this new maxim, that when an earldom or barony fell to the crown by escheat, he held it in the right of his crown, as it was originally derived from thence; and consequently, that the tenants of the former lord, being now, instead of intermediate, become immediate tenants of the crown, held of him in capite, as it was called; that is, that he, by this escheat, obtained privileges over the tenants of the former lord, which he, the former lord, never had, or could have, but which he claimed as king, in jure coronæ. These privileges were many in number; but it will be sufficient to mention only two of them, to shew into how much worse a state the tenants of these escheated lordships were thrown, by being considered as tenants in capite.

First, then, the king had from his tenants in capite, who came into possession of their lands at full age, instead of relief, to which subject lords were intitled, and which was only one fourth of the value of the lands, his primeir seizin, which was the whole year’s value. Another grievance was with respect to the wardship of military tenants under age. As to the tenants in capite, the king had, by his prerogative, a right not only to the wardship of the person of his minor tenant, and of the lands he held of him in capite, but also of all other lands held by knight-service of any other person. For as to socage lands, they were to be in the hands of the next of kin, to whom the inheritance could not descend, who, at the infant’s full age, was to be accountable for the profits: and under the pretence of such tenants, upon the superior lord’s escheat, becoming tenants in capite, John claimed and exacted the privilege, to the detriment of the other lords. These and other mischiefs, for others there were, as I observed before, and some of them are mentioned in this statute, are remedied by the general provision which restored the feudal law, that the king should hold all such escheated lordships in the same right they were before held, and have no other privilege, but what the lord by whose escheat they fell to him had: in a word, that he should hold them as lord of that lordship, not as king[414].

The thirty-second chapter relates to the alienation of lands, and gives a qualified power of that kind. By the feudal law, as it was introduced at the Conquest, no lord could alien his seignory without the tenants consent, so neither could the tenant his tenancy, without approbation of the lord. These strict rules were first broken into, in those superstitious times, in favour of churchmen; afterwards, in Richard the First’s time, to raise money for the holy war. Not but the subjects, by their insisting on Edward the Confessor’s laws, of which free alienation was a part, seemed to be fond of it. However, the kings, in all their grants of the old English laws, were careful to preserve the feudal system, in guarding against the alienation of the military tenures. Coke, on commenting in this statute, in order to the better understanding thereof, makes three observations relative to what was the common law before this statute; in the last of which I apprehend he is mistaken, as the law then stood; and that what he asserts therein to have been law did not become (so though often in practice) till after the statute quia emptores terrarum, in Edward the First’s reign.

His first observation is, that the tenant might have made a feoffment of the whole, or a part of his tenancy, to hold of himself; and no doubt but he might. This was the usual case of subinfudation, by which the lord was in no sort prejudiced; for his seignory remained entire, and he might distrain in any part for his whole service; and in such case, if the under tenant was aggrieved, he was to have his remedy against his immediate landlord the mesne, (or middle person), as he is called in our law.

The second observation is, that the tenant could not alien in fee apart of the tenancy, to hold, not of himself, but of the lord, than which nothing could be more reasonable; for it would have been against these old rules also, for a tenant to bring in another, as immediate vassal to the lord, without his the lord’s consent. The tenant would by that means dismember the seignory, which he received, entire, and so deprive the lord of his right of distraining in the whole, and confine him merely to that part remaining in his own hands, as original tenant. For as to the part of the allienee, he could not distrain that for his service, there having been no feudal contract between them. Such alienation, therefore, unless when the lord accepted the allienee as a tenant, was a breach of fealty, and against the old feudal principles, and consequently unlawful in England.

The third observation Coke makes on this statute, is, that by the common law the tenant might have made a feoffment of the whole tenancy, to be holden of the lord. For, says he, that was no prejudice at all to the lord[415]. But though this certainly prevailed as common law, long before either Coke or Littleton wrote, I cannot help thinking, both because it was contrary to the old feudal law, and also from the words of the statute quia emptores terrarum, that it was first introduced by that act of parliament, the words of which are, de cætero liceat unicuique libero homini terras suas, seu tenementa sua vel partem, inde vendere. Here the alienating the whole is declared from henceforth lawful; which words had been nugatory, if this had been common law before.

The chapter of Magna Charta of which we are speaking, was, then, the first positive law that allowed the free alienation of lands. It, in one sense, enlarged, whilst in another it expressly restrained, the power of the tenant; whereas, before, he might alien the whole, or part of his tenancy in fee, but subject to the distress of the lord. Now, by this statute, he was confined to an alienation only for so much, that, out of what remained, the lord might have sufficient distress for his entire service, and the part conveyed was in the alienee’s hands, free from any future distress by the lord, or service due to him, fealty only excepted. But it not being specified, how much of the land was a sufficiency, though the half, or what was the half in value, was, in common estimation, reputed such, the tenants, under this pretence, would alien more; which gave occasion to many disputes and suits, and the propensity to general alienations continuing, the law called quia emptores terrarum, already mentioned, was at length made, which gave a general licence to alien the whole, or a part at pleasure, to hold of the superior lord; and this put an end, in the law of England, to subinfudation of fee simples. For, since the passing that law, if a man infeoffs another of the whole or part of his land, there is no tenure between the feoffer and feoffee, but the feoffee holds of the feoffer’s lord. But as to lower estates, as fee tail estates for life, years, or at will, subinfudation remains; because the whole estate is not out of the donor, or lessor, but a reversion remains in him; wherefore the tenure, in such case, is of the donor or lessor.

By the statute of Magna Charta, in case of alienation of part, to hold of the lord, the residue remaining in the original tenant’s hands, was to answer the services, and the alienee held of the lord, by fealty only. But now by the second chapter of the forementioned statute, the services were to be apportioned, that is, divided in proportion to the value of the lands. If half of the lands, not in extent, but value, was aliened, the alienee paid half: if one third, the like quantity. I have observed before, on this statute of quia emptores, that the king, not being named, was not bound by it. For his tenant in capite to alien without licence was a forfeiture, until, in the reign of Edward the Third, a fine for alienating was substituted in the place of the forfeiture, which fine continued until the restoration, when it was abolished.

The thirty-third chapter provides, that the patrons, that is, the heirs of the founders of abbeys, who, by title under the king’s letters patent, or by tenure, or antient possession, were intitled to the custody of temporalities, during the vacancy of the abbey, should enjoy them free from molestation of any person, or of the king, under the pretence of the prerogative[416].

The thirty-fourth chapter is relative to appeals of murder, brought by private persons. When a man is murdered, not only the king, who is injured by the loss of a subject, may prosecute the offender, but also the party principally injured, that is, the widow of the deceased, if he had one; for she, as having one person with him, stands intitled to this remedy in the first place; but if he left no widow, his heir at law might pursue it. It follows, therefore, that a female heir might, by the common law, have brought an appeal of murder, as the daughter, or the sister, if there had been neither children or brother. But this statute alters the common law, and takes away the appeal, in such case, from every woman, except the widow; so that, at this day, if a man be murdered, leaving no widow, and his next heir be a female, no appeal of murder can be brought. But this disability is personal to women; for though a daughter or sister, living, can bring no appeal, though heir, yet, if they be dead before the murder, leaving a son who is heir, he may bring it[417].

I shall now make a few observations on the right of the widow’s bringing such appeal. First, then, the man slain must be vir suus, as the statute expresses it. If, therefore, they had been divorced, the marriage being dissolved, she could not have an appeal. It was otherwise, if they had been only separated a mensâ & thoro; for then he still continued her husband. He ceases likewise to be vir suus, if she ceases to be his wife, or widow. Therefore, by her marrying again, her appeal is gone, even though the second husband should die within the year, the time limited for bringing it. This is carried so far, that though she brings an appeal while a widow, yet if she marries while it is depending, it shall abate for ever. So if she has obtained judgment of death against the appellee, if she marries before execution, she can never have execution against him. In one point the heir is less favoured in appeals than the widow; for if the person murdered had been attainted of high treason, or felony, so that his blood was corrupted, the heir could not have it; for the civil relation between them was extinguished, by the ancestor’s civil death: but the relation of husband and wife depends on the law of God, who has declared the bond indissoluble; therefore no law of man can make him cease to be vir suus, and, in such case, she shall have an appeal.

The thirty-fifth chapter treats of the county-courts[418]; but having already, in a former lecture, mentioned what appeared to me sufficient on that subject, I shall proceed to the next, viz. the first law made to prevent alienations in mortmain. Lands given to a corporation, whether spiritual or lay, are said to fall into mortmain, that is, into a dead hand, an hand useless and unprofitable to the lord of the fee, from whom he could never receive the fruits. There could be no escheat, either for want of heirs, or felony, because the body never died, nor was capable of committing felony. For the same reason of its never dying, there could be no wardship, or relief; neither could there be marriage. But besides the loss to the lords, the public also suffered; for the military service the lands were subject to, were often withdrawn, or, at least, very insufficiently performed.

These alienations, without the consent of the superior lord, were directly against the feudal polity; yet such was the power of the clergy, who were the principal gainers thereby, in those ages, and so great their influence, that they were not only tolerated, but universally practised, through all Europe; for the founding of a monastery was the usual atonement for the most atrocious crimes. In England, particularly, from the accession of the Conqueror to that of John, containing one hundred and thirty-four years, there were no less than an hundred and four monasteries founded, many of them very richly endowed, besides particular benefactions made to them and the old ones. No wonder, then, it was found necessary, by laws, to put a stop to the growing wealth of the church; but the reign of John, a vassal to the Pope, was not a time to expect a remedy. Accordingly, this act goes no farther than to remedy a collusive practice, by which a vassal, to defraud his lord of the fruits of his seignory, made over his lands to a convent, and took it back to hold from them; and to that end, the statute declares the land, in such case, forfeited to the lord.

I shall say no more on this point, nor of the many cunning practices churchmen, in after times, put in use by the advice of the most learned lawyers they could procure, in order to creep out of this, and every other statute made to restrain them, and for employing which, Coke says, they were much to be commended. But he has forgot to tell us whether he thought those great lawyers deserved commendation, for finding means to elude the most beneficial laws of the land. It will be enough here to say, that, from these devices, arose, in time, the wide-spreading doctrine of uses and trusts, which have over-run our whole law, and that the judicial powers of courts of equity have grown with them[419].

The next chapter was made to restrain the intolerable exactions of escuage which John had introduced, and forbids the assessing it, in any other manner than was used in the time of Henry the Second, his father, that is, as I observed under that reign, very moderately; so that every man had his option, whether he would serve in person, or pay it[420].

Next comes the thirty-eighth, which is the conclusion. First, it saves to the subjects all other rights and privileges before had, though not mentioned herein. Coke observes, that there is no saving for the prerogative of the king, or his heirs; for that would have rendered all illusory. Secondly, it ordains that the king and his heirs should observe it. Thirdly, that all the subjects should. Fourthly, it recites, that, in consideration hereof, the king received from the subjects a grant of the fifteenth of their moveables. For Magna Charta is not merely a declaration of the old laws, but alters them in many instances; for which favourable alterations the subjects made this grant, and thereby became purchasers of them. Fifthly, it prohibites the king, and his heirs, from doing any thing whereby these liberties might be infringed or weakened; and declares all such doings null and void. Lastly, comes the alteration of twelve bishops, and nineteen abbots, and thirty-one earls and barons[421].