of criminals, and for the fame time." Les fruits des immeubles de celuy qui eft condamné par juftice royale appartiennent au roy pour la premiere "année exempts de toutes dettes, autres que les rentes feigneuriales et "foncieres deuës pour ladite année: et outre il a les meubles du condamné "les dettes prealablement payées."-" Ce droit eft donné au roy à cause "de fa fouveraineté, et peut-eftre auffi en confideration de la charge qu'il "a de faire fuire les proces par fes officiers, et que par fois felon les oc"curences l'on prend les frais fur la recepte du domaine." Vid. Couftume Reformée de Normandie, vol. i. p. 387.—The addition of the day seems to have been made with an intention of preventing all difputes about inclufive and exclufive.

66

This term of a year and a day is likewife ufed in the Danish law. "Si Agricola domum reliquerit, vicini per annum et diem, quo minus de"ftruatur cuftodiant." Jus Dan. p. 292.

CA P. XXIII.

OMNES kidelli deponantur decetero penitus per Tamifiam et Medeweyam et per totam Angl', nifi per cofteram maris.] Thefe Wears or Cruves (as the word Kidellus is fometimes tranflated) both obstructing the navigation of rivers, and being the means of destroying the fish, are frequently prohibited both by the ancient English and Scots Statutes-The navigation of rivers hath been more early attended to [i] in all countries, than the other method of conveying commodities by land carriage; and as most of the countries of Europe were at this time of the Roman Catholic perfuafion, the preservation of fish was neceffarily a greater object than it is at present.It appears by the old Chronicles, that there were Kidelli or Wears anciently below London-Bridge, as well as above it.-Thefe were not deftroyed till 7 Hen. IV. when all the Wears, from Stanes to the Medway, were removed. Stow, p. 333.-The archbishop of Canterbury gave great oppofition to this, who probably owned fome of thefe Wears, and, from his great power, had prevented this chapter of Magna Charta from being put in execution till that time.

The Wears, befides other inconveniences, prevented flotes of wood from coming down the rivers, which must have been very fenfibly felt formerly in this country, as coals were little ufed. This right of floating wood down a river makes a confiderable head of German Law, under the name of Jus

[i] Henry I is faid to have joined the rivers of Trent and Witham. And there is another regulation in Magna Charta de Ripariis-The firft ftatute which relates to the highways is 13 Edw. I. ch. v.

gratiæ

gratiæ die flot-oder flot-gerechtichfects. Krebs de Jure Lign. et Lapid. p. 418 [k].

The pulling down Kidelli is one of the articles given in charge at the court of Eyre. Fleta, p. 25.

CA P. XXV.

UNA menfura vini fit per totum regnum noftrum, et una menfura cervifie, et una menfura bladi, fcilicet et una latitudo pannorum. De ponderibus vero fit ficut de menfuris.] It is remarkable, that, in the old Scotch laws, the measure of Caithness is referred to as a standard, which was probably, from its fituation, the most uncivilifed part of the country. Vid. the Laws of David II. ch. 14.

It is a very early regulation in all the laws of Europe, that there fhould be a standard of one measure throughout the kingdom [7]. This is likewife very frequently injoined by subsequent laws, and which appear never to be carried into execution.-Montefquieu, in his Efprit des Loix, fays, It is the mark of a little mind in a legiflator to attempt regulations of this kind; but he should rather have faid, that it does not fhew wifdom in a legislator to attempt what appears, by long experience, to be impracticable, though in theory it seems to be attended with no great difficulties, and much to be defired for general convenience-With us it hath been attempted by at leaft fix different Statutes, all of which have proved ineffectual.

It appears, by Fabian's Chronicle, that in buying and felling, in the time of Henry the Third, the fcales were fo hung, that the buyer was to have an advantage of 10 or 12 pounds in a hundred.-There was about that time, however, a regulation made by the corporation of London, that the scales fhould hang even; and that the buyer fhould be entitled to an allowance only of 4tb .p. 62-This regulation how, reasonable as it was, they were obliged to defend before the king in council. ibid.

CA P. XXVIII.

NULLUS Ballivus de cetero ponat aliquem ad legem manifeftam, nec ad juramentum fimplici loquela fua, fine teftibus fidelibus ad koc induétis.] Before this Statute, they admitted of the Wager of Law in inferior courts, without

[4] Coals were first used in London in the reign of Edward I. and the fmoak was fuppofed to corrupt the air fo much, that he forbad the use of them by proclamation. Stowe's London, vol. i. p. 2.

[7] Henry I made this standard (for a yard) to be taken from his own arm; and one of the chronicles fays, that he was magni et proceri corporis,.

producing

producing witneffes. 1 Inft. p. 168. and it is fo far from being peculiar to England, that mention is made of it in all the antient laws of Europe.

As Slade's cafe in Coke's reports is the great leading cafe with regard to the wager of law; it may, not be improper to inform the reader, that Lord Chief Juftice Vaughan fays, it is founded upon arguments, not fit for a declamation; much lefs for a folemn judgment.

CAP. XXIX.

NULLUS liber bomo capiatur vel imprisonetur aut diffeifetur de libero tenemento fuo, vel libertatibus, vel liberis confuetudinibus fuis, aut utlagetur, aut exulet, aut aliquo modo deftruatur: nec fuper eum ibimus, nec fuper eum mittemus, nifi per legale judicium parium fuorum, vel per legem terre. Nulli vendemus, nulli negabimus aut differemus re&um vel juftitiam.] Much hath been written upon the antiquity of the trial by jury, in this country; and whether the fame form of trial hath been used in other countries-It is clear by the Regiam Majeftatem (which in most particulars is the fame with our Glanvill) that this trial was us'd in Scotland, in civil matters, fo early as David the first, who began his reign in 1124.-[This book is confider'd as authentic by Lord Coke, and all the writers upon the Scots law, except Craig, whofe opinion Macdoual strongly combats.] "When the twelve loyal men compeer and pass upon the affize, they fhall proceed and try qhuilk of the parties the perfewer or the defendant hath beft richt to "the londs clamed." This is cited from Skeene's tranflation of the Regiam Majeftatem.

There is a paffage in Clarke's Preface to the Laws of Hoel Dda, which, at thefame time that it fhews this method of trial was in ufe amongst the Welsh, accounts for the unanimity required from the petit jury, and which is not required from the grand jury-His words are these : p. xiv. "Sacra"mentum minus, vel (ut cum Wallis loquar) Llw rheithwr nod, juramen"tum compurgatorum inferiorum, hoc erat; cum homines non ingenui "jurabant fe credere juramentum accufati effe verum: facramentum alter"rum, Lkw rheithwr arall, cum homines ingenui jurabant, fibi verifimilius. "videri, quod accufatus ante juraverat. In inferiori genere, fi unus fo"lummodo compurgatorum juramentum detrectaverit, reliquorum tefti“monium nihil valuit; in altero, licet pars tertia jurare noluerit, tamen "fecundum beffem judicatum eft: ad abnegandum idem delictum, eodem "numero utriufque generis compurgatorum faepius utebantur, quod unice

probat, hanc majoris minorifque facramenti diftinctionem a confacramen"talium numero oriri non poffe: et quod magis fuadet errâffe in hac re Hickefium, apud Anglo-Normannos a multis retro faeculis luculenta

"funt

"funt hujufce moris paululum immutati veftigia. In judicum itineran"tium curiis, quas grandes affizas vocamus, ubi criminales provincialium "actiones expediuntur, de eodem delicto duo conftituta funt ad veritatem inquirendam juratorum genera, qui fub majoris minorifve juratae no*mine diftinguuntur. His, nifi in eandem omnes fententiam conceffe"rint, veredictum five refponfum apud judicem proferre non licet; illis "licet, fi vel duodecim confenferint. Ex hoc veteri compurgatorum in"stituto emanâffe demum duodecimviratus judicium, nec ab eo (ut cenfuit "Hickelius) toto coelo differre, quae dicta funt, nullum dubitandi locum "videntur reliquiffe."-There is a record in the Appendix to the second volume of Dr. Brady's Hift. which gives the whole form of the judgement, with the intervention of a jury, in the time of Charlemagne.

The unanimity of the twelve jurors in their verdict must be admitted to be a very singular inftitution.-It should seem that the reafon for requiring this unanimity arose from compaffion to the criminal, who was to be tried; against whom, if the offence was not proved beyond all poffibility of doubt in the most scrupulous juror, it was thought to be erring on the merciful fide, that this fingle veto fhould acquit him-There are perhaps many Englishmen, and even lawyers, who do not know, that in Scotland the unanimity of a jury is not required (except in revenue causes before the court of Exchequer) and that the chancellor or foreman gives the verdict upon a majority of a fingle juror - They therefore confift of an odd ́number, viz. fifteen, and are chosen out of five and forty returned by the fheriff; the pannel or criminal having a right to challenge, as by the English law. We find that the jury's confifting of an odd number is a very ancient regulation of the Scots law." Such as be accused of any crime "that deferves death, let them pafs by the fentence of feven honeft men, "or else nine, eleven, or fifteen." Law of Kenneth mentioned by Boëthius (Hollinfhead's tranflation.)

It seems extraordinary, that we have no account of men of confequence being tried in criminal cafes either by a jury or their peers, in the early parts of the English hiftory. The earl of Gloucester was executed for treafon fo late as the reign of Richard II. without any trial by his peers [m].

[m] Notwithstanding this article of Magna Charta was chiefly intended to prevent the uudue influence of the crown in the trial of a peet, it turned out afterwards to be the great caufe of their oppreffion, as before the ftatute of William III. which directs all the Lords to be fummoned, a peer of England was the only fubject of this country who had not a fair and indifferent trial. It feems to be a very extraordinary conflruction of this ftatute, which is rarher infinuated, than contended for by Mr. Juftice Fofter, in his treatife on Treason, that the Spiritual Lords need not be fummoned under the words all who have a right to fit, and vote in Parliament, which I apprehend to have meant only the making it unneceffary ro fummon Peers who were minors, or profeffed Pepifts As for the Bifhops ufually requeling to retire before the condemnation,

C 4

Brady,

Brady, vol. iii. p. 160. and Fabian, in his Chronicle, gives a very par ticular account of the mayor and aldermen of London, claiming privileges in the reign of Henry III.-viz. that for a trespass against the king, a citi zen should defend himself by twelve of his citizens-for murder by thirty citizens-And for trespass against a stranger, by the oath of fix citizens, and himself Is it poffible to contend after this, that the trial by twelve jurymen was thoroughly established, or are there any paffages, in the old hiftorians, which clearly prove it to have been fo established, before the time of Henry III?

-

It appears from Olaus Wormius's Mon. Dan. lib. i. ch. 10. p. 72. that the trial by twelve men was first introduced into Denmark by Regnerus, furnam'd Lodbrog, who began to reign in the year 820; and from whom Ethelred is faid to have borrowed this inftitution─Pontoppidan, in his Gesta Danorum extra Daniam (Hafniæ, 1740) fays, " Defiit apud nos duodecim"virale hoc judicium, remanentibus tamen ejufdem veftigiis," and they are called in the Danish law Sande Mand. i. e. Viri veraces.-The material difference between these twelve judges, and an English jury, consists in this; that the English jury is only impanelled for the decifion of a particular caufe, whereas these twelve judges in Denmark determine all causes, within the jurifdiction of their court-It is not improbable, that our jury formerly decided all causes within a certain district, without the affistance of a judge, as questions were not then fo intricate as they are at present: and we are very much in the dark, about their manner of proceeding, till the time of Edward the Second, when the year books begin-It is much to be lamented, that we have not a collection of the cafes, which Chaucer fays, bis man of law carried in his head :

"In Termes had he cafe and domes al

"That fro the time of Kinge Williame was fall."

as, going further back, they must have neceffarily thrown infinite light upon questions of this fort.

It was usual to pay fines anciently for delaying law proceedings-This delay fometimes was extended to the defendant's life-Sometimes fines were pay'd, to expedite the administration of justice and to obtain right [n]-And in some cases, the party litigant offer'd part of what they were to recover, to the crown-Madox, in his hiftory of the Exchequer, collects likewise

or acquital, I have endeavoured; p. 113, to account for the reafon of that Canon's being eftablished at the Council of Toledo.

[] The county of Norfolk (always reprefented as a litigious county, in fo much that the number of attornies allowed to practise in it is reduced, by a ftatute of Henry VI. to eight) payed an annual compofition at the Exchequer, that they might be fairly dealt with. Madox's Hift. Excheq. p. 205.

msny