Lectures on the constitution and laws of England / With a commentary on Magna Charta, and illustrations of many of the English statutes

by Francis Stoughton Sullivan

The second branch of this act is a very equitable one. It concerns merchant enemies, or rather such merchant strangers as came in friends, and afterwards became enemies, by a war’s breaking out between the sovereigns while they are in England. It provides that, on a war’s so breaking out, the persons and effects of such merchants should be seized, and safely kept till it should be known how the English merchants had been treated in the enemy’s country; and that, if they were well treated, these should be so too. This regulation, however, is not put in use; because, by the treaties made between the sovereigns of Europe, it is stipulated, that, on the breaking out of war, the merchants in each others country should have a certain number of days to withdraw themselves and their effects. But if a merchant enemy comes into the country, after war declared, he is to be treated as an enemy; to which, by the old law, now antiquated, there was a very humane exception, that of persons driven into England by stress of weather.

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.