to have been always accepted during the subsequent reigns, especially in the case of tenants in capite holding "ut de coronâ:" and fines were occasionally exacted from the Barons, on account of their neglect in performing personal service. This imposition was made the subject of parliamentary assessment; the accomplishing of which is a matter of curiosity in the history of our early charters: It gave rise to several forms of reservation of services, which were made with reference to it, as, for instance, the payment of a specified proportion of all escuages, assessed by Parliament: And whether from this circumstance, or from its being annexed to some particular species of knight-service, and not embracing others, such as cornage and castle-guard, escuage is sometimes spoken of both by Lyttleton and Coke, as if it were a distinct tenure from knight-service, instead of being incident to it, like homage and fealty. (Wright's Tenures, p. 122. Madox's Bar. Angl. p. 227. Hargrave's Notes to Coke Lyttleton, Chapters on Escuage and Knight Service. Madox, Exch. c. 26. Lord Lyttleton's Hen. II. Notes to Book II.) The last occasion upon which escuage was imposed by the Parliament, occurred in the reign of Edward II, and the mode of levying it was merely traditionary in the time of Lyttleton: Our Kings were generally supplied in their wars by contracts with the nobility and gentry, to serve with so many men, according to the terms of an indenture; this practice appears to have existed as early as the reign of Edward III. (Cotton's Abridg. of the Records, 13 Edw. III. and the References to Brodie's Introduction, p. 246. Henry's History, Vol. V. p. 460. Barrington on 17 Edw. IV. Case of Soldiers, 6 Rep. See the Copy of an Indenture for Service against France, in the 19th Hen. VI, and a Letter of the King upon the Subject of the same Expedition, to the Bishop of Bath. Archæol. Antiq. Soc. Vol. XVII.) The history of the Assizes of Arms and Commissions of Array, depends altogether upon a different principle than that of the feudal obligation, founded upon the tenure of lands. We read very little of private wars in England; and they do not appear ever to have been legal, notwithstanding there is a passage in Glanville which seems to sanction them: after mentioning the cases in which a lord might claim an aid from his vassals, he states it as doubtful, whether he might also do so ad guerram suam manutenendam: The most prominent instance of what might be deemed a private war, arose out of a contention between the Earls of Glocester and Hereford, in the reign of Edward I, which terminated in both of those powerful nobles being committed to prison, and paying heavy fines. There is a letter, in Mr. Ellis's collection, written by Henry VII, to Sir W. Say, which shews, that it was the practice till a late period for persons even of an inferior rank to the nobility, to call upon their vassals to assist them in determining their private feuds. But such acts

of

of outrage and spoliation were repeatedly punished as breaches of the King's peace. (Glanville, lib. ix. c. 8. Hale's P. C. p. 135, Ellis's Original Letters, Vol. I. 39. Hallam's Middle Ages, Vol. II. p. 200. Extracts from D. B. by Gale, Scrip. Hist. Brit. p. 759, 777. Earl of Northumberland's Case, 5 Hen. IV, Vaughan 142. Robertson's Charles V. Vol. I. Note 21, where some reasons are suggested to account for Private Wars being more rare in England than on the Continent.) It will be collected from the circumstances which have been adverted to in this note, that the feudal institutions did not produce in England those habits of military life, for which the manners of the continental nations of Europe, during the early period of their history, were so conspicuous. A reflection which may go far in explaining the remarkable fact of our ancestors having so eminently surpassed the inhabitants of other European States in a respect for civil rights, the maintenance of equal law, and the establishment of an envied Constitution.

CHAP. XLVI.

Chancellor. THERE are some other cases in which the Civil Law and the Common Law of England differ. For instance: the Civil Laws, in case of a manifest theft, where a person is taken in the fact, adjudge the criminal to restore fourfold, and for a theft which is not so manifest, where the proof is not so plain, the judgment is twice the value of the thing stolen. But the Laws of England, in either case, punish the party with death, provided the thing stolen, exceed the value of twelve pence. So in the case of persons who have been bondmen, and are set free, if afterwards they misbehave, and prove ungrateful, the Civil Laws adjudge them into slavery again. But, by the Laws of England; he who is once made free, is always so, let his behaviour afterwards be what it will. Other cases there are not a few, of this and the like kind, which, for brevity's sake, I pass over. In the two cases now propounded, I forbear to expatiate, or insist upon the superior excellence of the Laws of England: the properties of each law do not require such a nice examination: besides, I doubt not, your own good natural genius sufficiently distinguishes between thema.

a It will be remembered, that theft was not considered in England one of the Pleas of the Crown until Magna Charta, (Reeves's History of the Law, cap. 3. Glanv. lib. i. c. 2. 2 Inst. 32.) and that the civil remedy by appeal of larceny was continued till the Statute of Henry VIII. made for the restoration of stolen goods. (Barrington on Stat. 21 Hen. VIII. 3 Inst. 242.)

In examining the criminal jurisprudence of this Country, i ancient times, it is proper to take into consideration the privileges of clergy, and of sanctuary, which had a material influence on the practical effect of penal enactments. Benefit of clergy which was at first claimed in favor of clerks in holy orders, was gradually extended to all persons who were able to read: and, indeed, in the case of a felon who was tried before Fortescue, the prisoner was admitted to this privilege, although he could only spell and so put syllables together. In the time of Edward VI. a Statute was passed for extending the benefit of clergy to noblemen who could not read. In the reign of Henry VII. and more particularly of Henry VIII. benefit of clergy began to be modelled by the Legislature into a new form, and to be used as a distinction between offences and not between persons. The subsequent history of this privilege, corresponds with the progressive improvement of trade and commerce in the Country. (Reeves's History of the Law. Edw. I. Edw. III. Hen. VI. Edw. ÌV. Hen. VII. Hen. VIII. Barrington on 23 Hen. VIII. cap. 1.) No restrictions appear to have been imposed on the privilege of sanctuary until the reign of Henry VIII. Nor was this impolitic custom abolished till the time of James. (For an Account of Sanctuaries in England, Archæol. Antiq. Soc. Vol. VIII. Paston Letters, Vol. II. Lett. 24. 3 Inst. 115.) The distinction between thefts manifest, and thefts not manifest, is conspicuous in our ancient jurisprudence: it is discernible in the Saxon Laws. The old expression, "to be taken in the manner" is explained by Barrington to mean "detected with the thing holden in his hand," which is called in Bracton, hand-habend," and he supposes that the terms infangthief and utfangthief have reference to the same distinction, but in this he is not supported by the glossarists. Of the like nature are the divisions of offences according to the Forest Law, "Dog-draw, stable-stand, backbare, bloody-hand;" and by the Halifax Gibbet Law, the prisoner must have been taken hand-habend, or back-berend, before he was subject to be tried and beheaded, according to the singular custom of that place. (Wilkins's Leges Anglosaxoniæ, 242. n. 6. 257. n. 9. Manwood, 193. Barrington on 1 Hen. VIII. -On the Offence of Sakebere, 3 Inst. 69.) The distinction between grand and petit larceny is found in the Saxon Laws: in some ancient books of Crown Law, the value of twelve pence without more is stated to make the offence a capital felony. (Wilkins's Leges Anglosaxonicæ, p. 70. 259. n. t. Kelham's Briton, c. 15. n. 2.) An important change was taking place in the principles of Criminal Law, at the period when Fortescue wrote his treatise, by the gradual rejection of the old maxim of “ VOluntas reputabitur pro facto;" and the practice was nearly obsolete of punishing men for crimes which they had only meditated, but had not actually committed. (Reeves's History of

the

the Law, Hen. VI. Edw. IV. Year Book, 13 Hen. IV. 85, an indictment for that "il gisoit deprædando." 9 Edn. IV. 28.) The severity of punishment in cases of larceny inflicted by our ancient laws did not produce the effect expected to be derived from it. Fortescue in his Treatise on Monarchy, mentions that there were more men hanged in England for open robbery in a year, than in France during seven years, which he ascribes to the lack of heart" of the French people: it appears from the Paston Letters, that the roads near London were much infested with robbers. (Vol. III. Lett. 64.) At a period of history somewhat later, the distresses of the population arising from the system of inclosures, and the dissolution of the religious houses, led to the execution of such numbers of malefactors, as to affix to those criminal laws, which are the subject of Fortescue's commendation, a very bloody and appalling character. (Sir F. More's Preface to the Utopia, "fures nonnunquam suspendi viginti in una cruce," Harrison's Description of Britain in Holin. Vol. I. p. 182. et seq. where amongst other facts, it is said that Henry VIII hanged threescore and twelve thousand.)

With respect to the remarks of Fortescue, concerning the Civil Law in this Chapter, it is to be noticed, that a distinction is observed by Justinian, between public and private crimes, the latter class being such as besides the mischief to the public, occasioned a particular damage to individuals. But, in addition to the civil remedy, which was given to the party injured, there might be a criminal prosecution for a private crime: accordingly there were many punishments, other than of a pecuniary nature, prescribed against theft by the Civil Law: and the different circumstances under which theft might be committed, are defined and provided for by the Civil Law with a precision in which our own laws were long deficient. (Wood's Inst. of the Civil Lan; and see Lord Kaimes's Tract upon Criminal Law.)

The comparison between our Municipal Laws, and those of Rome, and other countries, is further pursued by several English writers. (Fulbecke's Parallel between the Civil Law, Canon Law, and Law of the Realm of England, published A. D. 1618. Dr. and Student, Dial. ii. c. 45.)