I shall now make a few observations on the right of the widow’s bringing such appeal. First, then, the man slain must be vir suus, as the statute expresses it. If, therefore, they had been divorced, the marriage being dissolved, she could not have an appeal. It was otherwise, if they had been only separated a mensâ & thoro; for then he still continued her husband. He ceases likewise to be vir suus, if she ceases to be his wife, or widow. Therefore, by her marrying again, her appeal is gone, even though the second husband should die within the year, the time limited for bringing it. This is carried so far, that though she brings an appeal while a widow, yet if she marries while it is depending, it shall abate for ever. So if she has obtained judgment of death against the appellee, if she marries before execution, she can never have execution against him. In one point the heir is less favoured in appeals than the widow; for if the person murdered had been attainted of high treason, or felony, so that his blood was corrupted, the heir could not have it; for the civil relation between them was extinguished, by the ancestor’s civil death: but the relation of husband and wife depends on the law of God, who has declared the bond indissoluble; therefore no law of man can make him cease to be vir suus, and, in such case, she shall have an appeal.
The thirty-fifth chapter treats of the county-courts[418]; but having already, in a former lecture, mentioned what appeared to me sufficient on that subject, I shall proceed to the next, viz. the first law made to prevent alienations in mortmain. Lands given to a corporation, whether spiritual or lay, are said to fall into mortmain, that is, into a dead hand, an hand useless and unprofitable to the lord of the fee, from whom he could never receive the fruits. There could be no escheat, either for want of heirs, or felony, because the body never died, nor was capable of committing felony. For the same reason of its never dying, there could be no wardship, or relief; neither could there be marriage. But besides the loss to the lords, the public also suffered; for the military service the lands were subject to, were often withdrawn, or, at least, very insufficiently performed.
These alienations, without the consent of the superior lord, were directly against the feudal polity; yet such was the power of the clergy, who were the principal gainers thereby, in those ages, and so great their influence, that they were not only tolerated, but universally practised, through all Europe; for the founding of a monastery was the usual atonement for the most atrocious crimes. In England, particularly, from the accession of the Conqueror to that of John, containing one hundred and thirty-four years, there were no less than an hundred and four monasteries founded, many of them very richly endowed, besides particular benefactions made to them and the old ones. No wonder, then, it was found necessary, by laws, to put a stop to the growing wealth of the church; but the reign of John, a vassal to the Pope, was not a time to expect a remedy. Accordingly, this act goes no farther than to remedy a collusive practice, by which a vassal, to defraud his lord of the fruits of his seignory, made over his lands to a convent, and took it back to hold from them; and to that end, the statute declares the land, in such case, forfeited to the lord.
I shall say no more on this point, nor of the many cunning practices churchmen, in after times, put in use by the advice of the most learned lawyers they could procure, in order to creep out of this, and every other statute made to restrain them, and for employing which, Coke says, they were much to be commended. But he has forgot to tell us whether he thought those great lawyers deserved commendation, for finding means to elude the most beneficial laws of the land. It will be enough here to say, that, from these devices, arose, in time, the wide-spreading doctrine of uses and trusts, which have over-run our whole law, and that the judicial powers of courts of equity have grown with them[419].
The next chapter was made to restrain the intolerable exactions of escuage which John had introduced, and forbids the assessing it, in any other manner than was used in the time of Henry the Second, his father, that is, as I observed under that reign, very moderately; so that every man had his option, whether he would serve in person, or pay it[420].
Next comes the thirty-eighth, which is the conclusion. First, it saves to the subjects all other rights and privileges before had, though not mentioned herein. Coke observes, that there is no saving for the prerogative of the king, or his heirs; for that would have rendered all illusory. Secondly, it ordains that the king and his heirs should observe it. Thirdly, that all the subjects should. Fourthly, it recites, that, in consideration hereof, the king received from the subjects a grant of the fifteenth of their moveables. For Magna Charta is not merely a declaration of the old laws, but alters them in many instances; for which favourable alterations the subjects made this grant, and thereby became purchasers of them. Fifthly, it prohibites the king, and his heirs, from doing any thing whereby these liberties might be infringed or weakened; and declares all such doings null and void. Lastly, comes the alteration of twelve bishops, and nineteen abbots, and thirty-one earls and barons[421].
FOOTNOTES
[1] Cæsar de bell. Gal. lib. 4. c. 18. Tacit. vit. Agric. Dion Cassius, vit. Sever.
[2] Bede, lib. 1.