STATUTES MADE AT WESTMINSTER. TH 15 Henry VI. A. D. 1436. HE firft chapter of this law recites, that the court of the steward and marshal of the houfhold (now commonly called the Marfbalfea Court) had, by a fiction in the pleadings, fuppofed the plaintiff or defendant to belong to the king's houfhold, who in reality had no fuch office, and by that means had improperly increased their jurifdiction-The ftatute, therefore, directs, that proof may be admitted against this allegagation in the pleading, and by that means the fuits are confined to those parties only, who are the proper objects of the jurisdiction of the courtThis seems to be a very wife provision of the legislature, as all fuch fictions derogate from the proper weight and dignity in the proceedings of a court of justice- Ufe may, in fome measure, have taken away from the ridicule of the fiction of a quo minus in the Exchequer, as well as other fictions; but the nature of them cannot be thoroughly altered fo as to make that proper, which, in its commencement, was a ridiculous and falfe furmife. The 2d chapter deferves only to be taken notice of, as it is the first permiffion to export corn to be found in the ftatute book [a]-Agriculture must now have been greatly improved, as appears by Fortefcue's defcription of England (in his treatise De Laudibus Anglia) which he fays is a well-peopled (I had almost said Paradife of a country) whilft he reprefents France to be an uncultivated defart-He might have, indeed, fome national prejudices; but he had certainly great opportunities of comparing the two countries, as he was fo long abroad with the fon of Henry the Sixth. The 4th chapter directs, that no one shall fue a subpœna out of the Court of Chancery, without finding proper fecurity, as this practice is recited to be" en fubverfion et impediment del common ley"-The civil wars, during the reign of Henry the Fourth, must have greatly increased feoffments to fecret uses and trufts [b], which the courts of common law either could not [a] The words of the ftatute are, "Item pur ceo que null homme poet carier blees hors du "royaume fans licence del roy, per caufe de quel fermours ne poent vendre leurs blees finon a "baes prife, a grand damage de tout le royaume"-The good policy of this ftatute, with the addition of the bounty upon exportation, hath made England the granary of the world. [b] There is an Irish statute against these fecret enfeofments, fo early as the 3d of Edward the Second, commonly tiled the Statutes of Kilkenny. I reach, reach, or were unwilling to extend their jurisdiction to this must have greatly encreased the business of the Court of Equity, whofe wings it was therefore neceffary to clip-The inconvenience to. the fubject arofe not only from the proceedings being more expenfive and dilatory than by the common law, but likewife from the inexperience and ignorance of the judge of the court, whofe office was rather the office of a secretary of state, than the prefident of a court of justice-The first person invested with this high office, who was properly qualified by a legal education, was Sir Thomas More [c]. Notwithstanding this first precedent, we find that queen Elizabeth appointed her vice-chamberlain, Sir Christopher Hatton, without any notice being taken, by the hiftorians of the time, of the impropriety of this appointment-In the reign of James the First, archbishop Williams was appointed lord keeper; and Hacket, who wrote his life, fays, that he difpatched many more caufes than his predeceffors [d] had done in the fame time; and that the court had really a great deal of business (whilst he was lord keeper), appears by this most irrefragable proof, that fourteen or fifteen ferjeants, or barrifters of great eminence, attended the Chancery, whilft he prefided [e]-Notwithstanding this proof of the great increase of business in the Court of Equity, there is scarce a report (if any) of a decifion by lord Bacon-Some few indeed (and those important ones) by lord Nottingham-We have hardly a determination of confequence by the great lord Somers; and though he was fucceeded by lawyers of ability and eminence, yet it may be faid, that we owe the prefent beneficial and rational system of equity to the peculiar national felicity of the greatest lawyer and statesman of this (or perhaps any other) country, having prefided in this court near twenty years without a fingle decree having been reverfed, either in the whole, or in any part of it-An infallibility which in no other instance was ever the lot of humanity. [c] Roper, in his life of Sir Thomas, informs us, that he read every bill preferred to him, and often stopped any further proceedings. [d] Sir Nicholas Bacon and lord Ellesmere. [] Hackett's Life of archbishop Williams. STATUTES STATUTES MADE AT WESTMINSTER. T 20 Hen. VI. A. D. 1442. HE 9th chapter of this law is the only inftance of an explanation of any part of Magna Charta, though it hath been fo repeatedly confirmed in almoft every reign fince that of Henry the ThirdIt recites a doubt, whether a peerefs was to be confidered as within the words of the known 29th chapter, "Nullus liber homo capiatur, &c. nifi per legale judicium parium fuorum, aut per legem terræ [a]"-There had now elapfed two hundred and feven years fince Magna Charta was first enacted; and it seems at first rather extraordinary that no peerefs had been tried for a capital offence, which must have before fettled this doubtThe first reafon for this feems to be, that the number of peers did not amount to a fourth of the number which they consist of at present; and the fecond is, that though perhaps peereffes might have joined with their. husbands in the frequent treafons (in the early part of the English history). yet to the honour of these more early ages, it was thought inhuman to prosecute a woman, as she was supposed to act under the coercion of her husband, and could not, from the imbecillity of her fex, contribute much to carrying the treason into execution, except by her good wishes for every enterprize in which her lord was embarked — It was reserved for the reign of James the Second to prosecute lady Lisle for the harbouring of a traitor. It seems rather extraordinary that the peerage (who, like other bodies of men, are generally very tenacious of their privileges) should not have at this time infifted upon being tried for a misdemeanor by their peers, and not by a common jury, as the prejudices of such a jury are more likely to operate in a misdemeanor than in a capital offence-Surely the words "Nullus liber homo capiatur, aut imprifonetur, aut aliquo alio modo "deftruatur, nifi per legale judicium parium fuorum," feem to have been anxiously inferted to include every kind of criminal profecution. It is indeed not only a provifion in favour of the fubject, by one of the chapters of magna charta, but feems to have been likewife the law of every part of Europe, where the feudal policy had been introduced [a] This ftatute was occafioned by the dutchess of Gloucefter's being firft profecuted for treason, and afterwards for necromancy-Profecutions for this laft offence were now very common, as appears by the many writs in Rymer de Sortilegis Capiendis. Kk Thus Thus Thaumafieres in his Commentary on les affifes de Jerufalem, fays, "Les nobles eftoient jugés par leur Paires, et les Bourgeois par autres Bourgeois, et prudhommes" He likewife cites Beaumanoir for this, "Se li jugemens fut fait par Bourgeois, je ne tins pas che pour jugemens, "car il est fait par chaux qui ne puent, ne ne doivent juger"-I have already, indeed, taken notice, that the fame law prevailed in France, in the observations on magna charta; but fince that sheet was printed off, I have procured Beaumanoir's Conftumes de Beauvoifis, & les affifes de Ferufalem, printed at Bourges in 1690, which afford this confirmation of what I have before advanced, and of which very curious and valuable works I shall have occafion to speak more fully, in the observations upon the ftatute of the 27th of Henry VIII. By the enumeration of the ranks of peerage in this ftatute, viz. Duchesses, Conteles, et Baroneffes, we may correct a mistake of the heralds, who inform us, that John lord Beaumont was created a viscount in the eighteenth year of this king; but it is impoffible that the legislature, two years after this creation of a new rank of nobility, fhould have omitted to enumerate it in the prefent ftatute, between the rank of countess, and baronefs-This new rank of nobility was, however, instituted before the thirtieth year of this king, as the 30th Hen. VI. ch. ii. makes mention of it amongst the other degrees of nobility. STATUTES I STATUTES MADE AT WESTMINSTER. 33 Hen. VI. A, D. 1455. HAVE before had occafion to obferve, that the common law hath been weakened by the legislature's making declarations againft offences, which were criminal by the common law, when properly underftood-The Ift chapter, of the present statute, furnishes an inftance of this, by providing a remedy against the fervants of a deceased perfon, who, upon the death of their master, have riotously taken poffeffion of his goods, and made diftribution of them amongst themselves-There can be no doubt but that this was punishable by the common law, either as a riot or a larceny, according to the circumstances attending the cafe. By the 9th chapter of the statute of the preceding year it is in the fame manner declared, that a bond, extorted from a woman whilft under "confinement, fhall be void ;" and there can be as little doubt, but that'a bond, fo obtained, was clearly void by the common law-In like manner, the 24th chapter, of the 28th of this king, makes it felony for any Welsh, or Lancashire man, to take the goods of another, under pretence of a distress, which being in fraudem legis, was most undoubtedly a felony by the common law-Thefe three inftances occurring within two or three years, feem to make it probable, that the drawing of acts of parliament was now in the hands of the clerks of the two houfes, who probably had not a legal education; and this observation receives a confirmation, from the figurative stile, and number of epithets, which are used in the 31ft of this king, with relation to Cade, the Kentifh rebel" le plus abominable, tyrenne, "horrible, et errant faulx traitour John Cade"-which number of epithets by no means agrees with the fimplicity of the common law-The attorneygeneral, in opening the circumftances of guilt, which are to be proved against a traytor, may use oratory if he pleafes (though perhaps better omitted); but the common law in the indictments fpeaks but one and the fame language in every offence; and though many may think, that fome parts of an old form might be dropt, yet it is much more prudent to adhere to it, as will ftrike any one, who reads an indictment, or charge, either in the French, or Scots law-proceedings, which are drawn cut to a prepofterous length, and in which the advocate attempts to projede the judge, by rhetorical, and figurative defcriptions. |