judices being fo ftrong, it is certainly humane in the English law to allow them a trial per medietatem linguæ [b]; which Selden informs us, they had a right to claim by the antient law-This indeed is not the modern practice, and it is to be hoped, that religious prejudices and heats will never make it neceffary.

Those who may have a defire to see more particulars with regard to the Jews, in the twelfth and thirteenth century, may consult Annal. Monast. Burt. in the first volume of Gale's Coll. p. 338-Script. poft Bedam, p. 744.-And the 7th chapter of Madox's History of the Exchequer.

[b] Our ancestors, it is true, could perfecute the Jews; but they would not perfecute them by. the mockery of a trial, confifting of judges who were prejudiced.

ARTICULI ET SACRAMENTA MINISTRORUM REGIS IN ITINERE JUSTICIARIORUM.

INCERTI TEMPORIS.

HIS ftatute confifts chiefly of the oaths to be taken by those of

TH ficers who are obliged to attend the king's juftices in Eyre, parti

cularly the fheriff, under-fheriff, and bailiffs-As the county towns are neceffarily crouded upon these occafions, it directs, that no fairs fhall be held during the affifes [], "fed quod comitatus teneatur folummodò ad "profros faciendos"-The word profrus is a very uncommon one, but fignifies the fame with the plaintiff's fuit: this is the sense of the French word profre in Britton, which answers to the producit fe" Jehan de Hages "fe profre verfe Thomas de Bruce," Britt. p. 41.-The next regulation is, that no one shall take up or hire an inn during the Eyre, "fed venienti"bus gratis concedatur:" which regulation, if it was to take place in these days, towns would not be fo folicitous to have the affifes.

[i] By a preceding statute (incerti temporis) it appears, that there were at this time only four circuits; they were thus divided, York, Northumberland, Westmoreland, Lancaster, Nottingham, and Derby - Lincolnshire, Warwickshire, Leicestershire, Staffordshire, Northamptonshire, Rutlandshire, Gloucestershire, Herefordshire, Worcestershire - Cornwall, Devonshire, Somersetshire, Dorsetshire, Wiltshire, Southamptonshire, Oxon, Berkshire, Suffex, and Surrey-Kent, Effex, Hertford, Norfolk, Suffolk, Cambridgeshire, Huntingdon, Bedford, and Bucks. And it appears by Ames's Hiftory of Printing, that before the ftatute of Henry the Eighth, which annexes Cheshire to the Welsh circuit for the counties of Denbigh, Flint, and Montgomery, that Cheshire was frequently added to the Northern circuit.

DE

DE MAGNIS ASSISIS ET DUELLIS.

T

INCERTI TEMPORIS.

HIS ftatute regulates the different actions in which the trial by battle, or by the grand affife, is to take place-The ftatute is very short, and contains nothing very particular, except that there should be fuch minute and anxious regulations about so absurd and impious a method of decifion-The laft trial by battle in England was in the time of Charles the First, and that did not end in the actual combat-It is amazing, that it should have continued fo long in fo many different parts of Europe; and the reason for the tolerating of it seems to have been, that the lord in most districts had the appointment of the judge, who either himself or his lord was interested in favour of one of the parties litigantWhat could the other party, who fufpected this prejudice against him, do better than to appeal to this chance by combat? There is a story in Grafton's Chronicle [k], which must have likewife made this trial infinitely ridiculous. A citizen of London (in the time of Henry the Sixth) was of a ftrong make, but of a faint heart-he happened to be obliged by this kind of trial to enter the lifts against an antagonist, who was both weak and puny-The friends of the citizen, to give him better spirits, dofed him with wine and aqua vitæ, so that he was very drunk when he began to engage, and fell an eafy prey to his adverfary - Montefquieu, in his Efprit des Loix, hath deduced the affront given by the lye from this trial, as when the defendant denied the plaintiff's allegation, the confequence was the trial by duel-Is it neceffary however to have recourfe to reasons derived from antient customs and practices to fhew, that the lye given must raise the warmest refentment and anger in a perfon of liberal education and difpofition [/]?

[A] P. 150.

[] See more with regard to this trial by battle, and the difufe of it, hereafter.

STATUTES

STATUTES MADE AT NORTHAMPTON.

T

2 Edw. III. A. D. 1328.

HESE ftatutes made at Northampton confift of feventeen different chapters-They are preceded by other Capitularia of the first year of the reign of Edward the Third; and, taken together, shew the very great confufion in which the kingdom was involved during the reign of Edward the Second-As the ftatutes however become more modern, they become more clear and intelligible, and likewife generally relate to what hath before been obferved upon-I have therefore left them to speak for themselves, and shall never obtrude any remark which does not seem to be neceffary for the illuftration of the law under confideration, and which likewife bears an immediate relation to it.

The 2d chapter regulates in what cafes pardons fhall be granted, and confines them to thofe inftances only where the king is enabled to pardon by bis oath," ceft a scavoir, ou home tue autre foi defendant, ou en cas "fortuit"-On fuch an accident (for I cannot call it a crime, which always neceffarily implies a bad intention in the perpetrator) the king, was obliged, fays the statute, to grant a pardon by his oath, meaning undoubtedly his coronation oath, in which he swears to adminifter justice in mercy. I have already observed, that this power of pardoning was abused by the kings of England and other countries [7].

I should imagine however from these repeated complaints with regard to pardons, that it was not only the abuse by the crown which occafioned the clamour against them, but the confequences in point of interest to the barons-Most of them had very extensive jurifdictions and grants of forfeitures, of which they were deprived by the king's pardoning offences, et binc ille lachrymæ.

[] There is a very fingular law of the antient Goths, whilst in Spain, against any one's foliciting the king for a pardon, “ma fi el principe quifier aver merced per su voluntat, o per Dios, fagolo." Fuero Jufgo, lib. vi. p. 320.-This law is the more extraordinary, as the king is frequently injoined by those laws to exercife juftice with mercy; and without a folicitation he cannot very well hear of the circumftances which should incline him to fhew fuch mercy-By the Fuero Real de Efpanna there is a law, that a traytor or murderer fhall not be pardoned either by the king on the throne, or his fucceffor- It appears likewife in Briffonius's most learned treatise, De regio Perfarum principatu, that the kings of Perfia (defpotic as they were) could not pardon any capital crime- And this poffibly may be chiefly alluded to by the paffages in Scripture, which mention the law of the Medes and Perfians as altering not-In Holland there is no power to pardon, if there is not a Statholder. Law of Forf. p. 100.

4

STATUTES

STATUTES MADE AT WESTMINSTER.

T

66

66

HESE ftatutes likewife confift of many different chapters, and

the firft which contains any thing remarkable is the eighth, which by fome accident is the only chapter of the collection that happens not to have been tranflated-As it is not of any confiderable length, I fhall here give it in English-" As formerly a man with his horfe used to pay only "two fhillings for his paffage from Dover [m], and a man on foot only fix-pence; and of late the keepers of pacquet-boats [n] have extorted greater fums: it is enacted, that, in the abovementioned port of Dover, "and alfo in all paffages and ferries on the falt, as on fresh water (as well "as in arms of the fea), the paffengers fhall pay no more than was usual, "nor fhall the ferryman take more -And let the keeper of Dover-castle "have notice of this, and let him put the law in execution at his peril — "And if he finds any one who infringes the law, let him be punished at "the fuit of any one who will make complaint; and alfo let the bailiffs "of such districts, where there are paffages or ferries, do the fame; and "let the justices of affife have power alfo to inquire whether any one infringes the law, and they are likewife to punish as well upon the fuit of "the king as the fuit of the party."

I have the rather tranflated this chapter, because it is the only law in the Statute-book which relates to ferries; and is likewife a law which deferves much to be put in execution, though it hath escaped moft lawyers, I believe, both from its antiquity and from its not being tranflated-I fhould particularly doubt, whether the keeper of Dover-castle knows any thing of fuch a regulation, though the obfervance is so strongly enjoined to him, and that by an act of parliament which continues unrepealed-I have before observed, that we have no other law which relates to ferries-There are however several laws of this kind amongst the Scots ftatutes, and one particularly, which makes this extortion in a ferryman amount to a felony.

[m] The ftatute does not say to what place, which shews the perpetual intercourse between France and England at this time.

[] In the original, Gardeurs de passage et passagers.

STATUTES