ferved for the reign of Louis the Fifteenth, in a royal edict, to style the English nos veritables enemies [z].

I cannot conclude thefe obfervations without taking notice, that the prefent ftatute of Henry the Third, in French, is inferted between others in Latin; and that, during the fame feffions of parliament, there is an inftance, in the statute of Westminster the fecond (which is, properly speaking, a Capitularium [a]) of French chapters being inferted in the fame law, preceded and followed by chapters in Latin.

From a very diligent and attentive perufal of the Statute-book, the best general rule which can be given with regard to an act of parliament's being in Latin or French, is, that, when the interefts of the clergy are particularly concerned, the ftatute is in Latin-I do not however pretend to fay, that this rule is without its exceptions.

[x] We do not find that the alliance between Cromwell and the French was an unpopular measure even so late as the last century-Nor in the century before was the English nation at all alarmed with the proposed alliance between Queen Elizabeth and the Duke of Anjou. - [a] See the Notes on Magna Charta, p. 1.

STATU

STATUTUM DE MERTO N.

20 Hen. III. A. D. 1236.

HIS ftatute [a], as well as many others in this century, seems to be

only an ordinance; the difference between an ordinance and ftatute (according to Lord Coke) confifting in this, that the ordinance wants the confent of one component part of the legislature, which is, in all inftances, that of the Commons [b]-It hath however been long printed, and confidered as an act of parliament, and improvements of waste grounds by inclosing are not unfrequently made under the fourth chapter of it. It is called the Statute of Merton, from the parliament, or rather council, fitting at the Priory of Merton, in Surrey, which belonged to Canones Regulares, according to Dugdale-Though fome of the priories might have had very large and fpacious houses, yet it is not probable that there could have been accommodation for what is now called a Parliament, with the intervention of the Commons, and it should seem, from Dugdale's fhort account of this Priory, that it was by no means largely endowed-This ftatute, in its different chapters, contains many wife regulations-The kingdom was at peace, and the king had the spirit to refuse his affent to a very tyrannical request of the barons, that, if any offence was committed in their parks or ponds [c], the offender was to be fent to their own prifons, and tried, undoubtedly, in their own courts.-And when in the year 1329, a statute was made, entitled, De Malefactoribus in Parcis, this oppreffive claufe is

[a] This ftatute is inferted in the Annal. Monast. Burton. Gale, vol. i. p. 287.

[6] Elfinge ftates the diftinction thus: "What begun in the Commons was only termed a petition (for they had no power to ordain); and what begun in the Lords was ftyled an or“dinance—Actus Parliamenti was an act made by the Lords and Commons; and it became "Statutum when it received the King's confent." Elfinge, p. 26.

[c] The word in the original is vivarium, which I have tranflated a pond, agreeable to the Vulgar tranflation of the statutes—It is very true, that the claffical fignification of the word is often pond or few.

Plures annabunt thynni et vivaria crefcent.

fugitivum dicere pifcem,

Depaftumque diu vivaria Cafaris.- Juvenal.

But the Latin of the Gloffaries must fix the fignification of a word in an antient ftatute- Spelman fays, “parci et warennæ noftræ, sub vivariorum appe`latione fæpe veniunt"—And to confirm this fenfe of the word, carp, which is the most valuable pond-fith, was not known in England at this time. It should therefore be tranflated warren, and not pond; warren, from the old French word garrenne, fignifying a tract of ground in which the lord had a right garrenner, or to forbid others killing the game.

omitted:

omitted though in other refpects the punishment of fuch offenders is very fevere. One of the old Chronicles fays, that the barons, after they had carried their points by the provifions in Magna Charta, "evaferunt "totidem tyranni ;" and as the commons could not at this time refift their oppreffion, the only altar of refuge was in the crown.

CA P. I.

DE viduis primo, quæ poft mortem virorum fuorum expelluntur de dotibus fuis, et dotes fuas, vel quarentenam [fuam] habere non poffunt fine placito,]. There is great humanity in making the redrefs of the grievances of the widow the principal object of this parliament, De viduis primo.

We find by the feventh chapter of Magna Charta (already obferved upon) that the widow was to remain forty days in the capital meffuage* after the death of the husband-As the law required this mark of refpect to the memory of the deceased, it likewife provided for her fubfiftence during that time; and this fubfiftence was called her quarentena, which fhe had a right to demand against the heir-The other regulation of this chapter is a confirmation of the feventh article of Magna Charta, which fays, Vidua nil det pro dote fuâ.

CA P. IV.

ITEM quia multi magnates Angliæ, qui feoffaverunt milites et alios libere tenenentes fuos de parvis tenementis in magnis maneriis fuis, quefli fuerunt, quod commodum fuum facere non potuerunt de refiduo maneriorum fuorum, ficut de vaftis, boscis, et pafturis (communibus), cum ipfi feoffati habeant fufficientem pafturam, quantum pertinet ad tenementa fua &c.] There is a reading of Fitzherbert (who was Judge of the Common Pleas in the reign of Henry the Eighth) upon the ftatute of 4 Edw. I. entitled, Extenta Manerii - In this reading, he hath occafion to explain what shall be deemed fufficient common of pasture, and gives his explanation in these words: "It is necessary to knowen what is fufficient common of pafture, and that me feemeth by reafon fhould be thus, To fe how muche cattel the bay and the strawe that a husbandman getteth upon his own tenements, will find fufficiently in winter, if they lye in the house, and be kept therwith all the winter feafon; for fo much cattel should he have common in fommer, and that is fufficient." As improvements are fometimes, even now, made under this ftatute (thongh the facility of procuring private acts of parliament for the fame purpose makes it every day lefs frequent), and the great question on these occafions is, whether fufficient common is left; I thought it might not be improper to give the conftruction of this great lawyer and father of husbandry

2

husbandry upon these words of the ftatute-This reading of Fitzherbert's is entitled Surveyenge, and is printed by Berthelet in 1539.-This clause, which is confined by the prefent ftatute to lord and tenant, is extended to others by 13 Edw. I. ch. viii.

CA P. V.

SIMILITER provifum eft, et a domino rege conceffum, quod de cetero non current ufure contra aliquem infra ætatem exiftentem,] The effects and debts of an usurer were antiently forfeited to the king, as appears by many records in Prynne's Collection; Tacitus fays, that, amongst the antient Germans, "fœnus agitare ignotum, ideoque magis fervatur, quam fi vetitum esset”. The true reafon probably for its not prevailing amongst them, or our ancestors, was, that they had little or no perfonal property, and those who have large landed eftates have always been envious of the fudden fortunes raised by commerce, and the improvement and increase of perfonal estates -Treatife may be wrote on treatise to prove that these two interefts mutually fupport and ftrengthen each other; the prejudice may indeed be somewhat leffened, but cannot be eradicated.

CA P. VII.

DE dominis qui maritaverint illos quos habent in custodia, villanis vel aliis, ficut burgenfibus ubi difparagentur:] This difparagement of marriage was formerly a very confiderable head of the law, whilft the feudal tenures fubfifted; and this chapter of the ftatute, by mentioning the instance of a marriage with a burgenfis to be a difparagement, explains what the ideas of these times were with regard to a proper marriage. Feudal notions of pride had fo far prevailed, that the only thing to be confidered was the rank and family of the person tendered in marriage to the ward.

66

By the antient law of Scotland, If an over-lord caufes marry the heirs "of his vallal, if the heir be within the age of fourteen years, he shall tine and amit "the wardship till the perfect age of the heir." Skene's Translation of the Quon. Attach, ch. 92.-This book of the antient Scots law is entitled, Quoniam Attachiamenta; from the initial words, Because the Attachments are the beginning of Pleas.

CA P. IX.

ET rogaverunt omnes epifcopi magnates, ut confentirent, quod nati ante matrimonium effent legitimi, ficut illi qui nati funt poft matrimonium, quantum ad fucceffionem bereditariam, quia ecclefia tales habet pro legitimis. Et omnes comites et

barones

barones una voce refponderunt quod nolunt leges Anglia mutare, quæ hucufque ufitata funt et approbate. Selden, in his Differtatio ad, Fletam, fays, that Robert Groffetefte, bishop of London, wrote about this time a treatise to prove the neceffity of introducing the civil law into this country [a]; and Lord Coke, in his 3d Inft. p. 208. mentions, that William de la Poole, duke of Suffolk, attempted the fame innovation in the reign of Henry the Sixth; which ich occafioned Fortefcue's writing his treatise De laudibus legum Anglia [b]. It was one of the articles of impeachment against Cardinal Wolfey, "quod ipfe intendebat finaliter antiquiffimas Anglicanas leges "penitus fubvertere, et hoc regnum Angliæ, et ejufdem regni populum "dictis legibus civilibus, et canonibus fubjugare."

Notwithstanding the oppofition to the introducing this part of the Civil law to legitimate the children of thofe who married after living in a state of fornication (which feems to be a very humane law in favour of the innocent) it by no means prevails to the full extent, in thofe countries which are fuppofed to have adopted the civil law For example, by the antient laws of Spain the legitimation of the children, by a subsequent marriage, is confined to the cafe of a batchelor marrying a fpinfter, Si ome foltero con muger foltera fiziere fijos, e defpue cafare con ella, eftos fijos fean berederos. Fuer. Real de Efpan. p. 134. printed at Salamanca, 1569.

The remarkable oppofition to the introducing this part of the civil law, probably arose from its being propofed by one of the Poitevine favourites of Henry the Third-The sturdy barons, not approving of the proposer, rejected the propofal und voce-You are a foreigner, and fhall not introduce foreign laws, be they good or bad.

[a] Selden likewife mentions in the fame differtation, that, notwithstanding this unanimous diffent of the barons, in another reign the children of John of Gaunt, by his wife Catherine before marriage, were made legitimate by act of parliament.

[6] The author, who fpeaks the most disrespectfully of the common law of England, is a French writer," Leges Angliæ plenæ funt tricarum, ambiguitatumque, et fibi contrariæ. "Fuerunt fiquidem excogitatæ atque fancita a Normannis, quibus nulla gens magis litigiofa, atque in controverfiis machinandis, et proferendis fallacior reperiri poteft." Philip. Honor.