A short tract concerning the doctrine of "Nullum tempus occurrit regi:": shewing the particular cases to which it is applicable; and that it cannot, according to law, be effectual for the recovery of manors, lands, or tenements, alienated from the crown.


A SHORT TRACT CONCERNING THE DOCTRINE OF ‘Nullum Tempus occurrit Regi:’ SHEWING The particular Caſes to which it is applicable; AND That it cannot, according to LAW, be effectual FOR THE Recovery of Manors, Lands, or Tenements, Alienated from the Crown.


[Page iii]

. . . . . . . . . . . . . . . . . . . . . . . ‘As I have lately heard that it is now diſputed, whether or not’ you ‘ought to be excluded from the benefit of the late Nullum tempus act for quieting the poſſeſſions of the ſubject, I have taken the liberty to incloſe, for your — peruſal, a ſhort tract on the general doctrine of Nullum tempus. occurrit regi. How far the ſame may be applicable to the point in conteſt between’ you ‘and the treaſury-board, [Page iv] I cannot pretend to judge, becauſe my information concerning that affair ariſes merely from common report, ſo that, of courſe, I muſt profeſs myſelf a ſtranger to the particular circumſtances of the caſe. Nevertheleſs, as I happened, in the courſe of my reading the other day, to light upon a paſſage in Bracton, which, to me, ſeemed capable of affording a clear explanation of the Nullum tempus doctrine, I thought it a duty incumbent on me, to ſend’ you ‘my thoughts upon it. It may indeed be ſaid that Bracton is in the hands of every lawyer, and that I ought to have known that the learned gentlemen of the law, employed by’ you, ‘are already apprized of the paſſage to which I refer, as they muſt certainly, at ſome time or other, have read it; nevertheleſs, there is ſufficient reaſon for me to preſume [Page v] that they have entirely overlooked or forgot it in the preſent caſe; and that even the whole legiſlature have alſo either forgot it, or elſe are entirely ignorant of it, becauſe the late act of parliament (which was made expreſſly to guard againſt the miſtaken doctrine of Nullum tempus) muſt otherwiſe appear abſurd and ſuperfluous.

‘I think it neceſſary to preſume thus much, —, by way of excuſe for having preſumed to write to’ you ‘about buſineſs which does not in the leaſt concern me, as it might otherwiſe be deemed impertinent in me, to ſuppoſe that’ you ‘have not already the moſt learned advice that can be procured. If the little tract contains any hints that are thought capable of being enforced to your — advantage, it will give me real pleaſure; for indeed I have no greater happineſs than that of being [Page vi] ſerviceable (when it lies in my power) to any man whatever, whether friend or ſtranger.’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .



[Page vii]

WHEN an author pretends to write a treatiſe on any particular ſubject, he ought to have leiſure ſufficient to examine and thoroughly conſider every thing that has an intimate connexion with it; but, as the Writer of this has no ſuch leiſure, it is neceſſary for him to declare that he profeſſes no other knowledge of the ſubject, in queſtion, than what has occurred to him occaſionally in conſulting the law-books on other points; and, therefore, [Page viii] he offers this little Tract to his readers, not as a complete and regular ſyſtem, but rather as a ground-work for future enquiries upon the ſubject, by Writers who are bleſſed with more leiſure and abilities for ſuch reſearches than himſelf; and who may, perhaps, be hereby induced either to build upon the ſame foundation, or to eſtabliſh a better in its room.

1. A SHORT TRACT CONCERNING THE Doctrine of ‘Nullum Tempus occurrit Regi,’ &c.


1.1. PART I.

THE doctrine of ‘Nullum Tempus occurrit Regi,’ if admitted in an unlimited and general ſenſe, is capable of being wreſted to the moſt arbitrary purpoſes, and may ſeem to authorize the moſt dangerous and oppreſſive pretenſions and claims on the property of the ſubject.

As a general doctrine, therefore, it is unreaſonable; and, conſequently, inconſiſtent with the fundamental principles [Page 2] of the common law; for which reaſon I never could eſteem the Nullum Tempus doctrine as a maxim of the common law; and I have ſince found that my opinion of it was in ſome degree right, and that the doctrine is ſo far from being a general maxim, that it ought never to be mentioned without its peculiar exceptions, leſt it ſhould do injury, by being applied to improper caſes, and be miſtaken for a maxim, to the perverſion of juſtice: for the true and proper maxims of the common law demand the utmoſt deference when they are cited, their authority being unqueſtionable; becauſe ‘Contra negantem principia (vel maxima) non eſt diſputandum.’ (Co. Lit. 343. Doctor & Student, &c. c. 8. p. 27.)

This maxim may indeed ſeem applicable to myſelf, for denying that the authority and weight of a maxim is due to the doctrine of Nullum Tempus, &c. But I hope to be able, in the courſe of [Page 3] this work, to obviate any ſuch imputation, and to prove that it really is not a general maxim. In order to ſet this point in a clear light, it will be neceſſary firſt of all to take a ſhort view of thoſe particular rights of the crown, which, in law, are juſtly eſteemed unalienable, and which I apprehend to be as follows.

The king is inveſted, by his office, with a kind of limited property in the perſons of all his free ſubjects, by which he is enabled, and, indeed, bound in duty to claim, and free them whenever their perſons are unlawfully ſeized, impriſoned, or otherwiſe detained at home or abroad, under pretence of right of ſervice, whereby their perſons are claimed as private property, acquired by purchaſe, cuſtom, or any other mode of acquiſition * whatſoever. For no claims of this [Page 4] kind, upon a freeman, are to be favoured in law, or can poſſibly be accounted valid, becauſe the maxim aſſures us that "Liber homo" is "res quaſi ſacra," "which may not be ſold:" ſo that there can be no juſt claim of property in the perſon of a freeman, except the official right and claim of property veſted in the king; and, as this is limited by the laws for the benefit and freedom of the ſubject, it is, for that very reaſon, unalienable from the crown.

[Page 5] Other unalienable rights of the Crown are thoſe which form the public revenue, and belong to the king's exchequer, all which are included by this author in the term "Res fiſcalis," * and which he alſo eſteems "res quaſi ſacra."

There are alſo ſeveral other rights, which are inherent in the Crown, for the public good, and cannot therefore be diſpoſed of, or alienated, viz. ſuch as Peace, Juſtice, &c. — ‘et quae faciunt ipſam coronam, et communem utilitatem reſpiciunt, ſicut eſt Pax et Juſtitia, &c.’

To all ſuch things we may ſafely apply the doctrine of ‘Nullum tempus occurrit regi.’— The ſame is likewiſe applicable to a few other things, even of an inferior or ſecond claſs; I mean ſuch as [Page 6] are nevertheleſs ſo far alienable, that they may lawfully, without damage to the king or his ſubjects, be transferred, for a time, to other perſons. — ‘Sunt et aliae res quae pertinent ad coronam propter privilegium regis, et ita communem non reſpiciunt utilitatem, quin dari poſſunt et ad alium transferri, quia, ſi transferantur, tranſlatio nulli erit damnoſa, nec ipſi regi ſive principi, &c.’—The things, ranked in this claſs of Royal Property, are, ſea-wrecks, treaſures found, great fiſh, as whales, ſturgeons, and other royal fiſh. And whoſoever pretends to have a right to enjoy the profits ariſing from theſe particular things, muſt be able to produce a ſpecial warrant for that purpoſe; becauſe preſcription, even of a very long time, is not ſufficient to juſtify the pretenſion: ‘Diuturnitas enim temporis, in hoc caſu, injuriam non minuit, ſed auget, nec in primo caſu, NEC IN ISTO, CURRIT TEMPUS CONTRA REGEM, [Page 7] nec incumbit ei probatio quia ad ipſum pertineant, cum conſtare debeat ſingulis, quod hujuſmodi de jure gentium pertineant ad coronam.’

But, with reſpect to things of a third claſs, as crown-manors, lands, tenements, &c. the caſe is widely different, for the doctrine of Nullum tempus, &c. affects them not at all! And I am aſtoniſhed that ſo many gentlemen, learned in the law, whoſe attention has lately been employed upon this point, ſhould have thought it neceſſary to provide, by a ſpecial act of parliament, againſt this doctrine, when the common law of England, that ought always to be preferred, * has already ſufficiently guarded us againſt the tyrannical conſtruction of the phraſe, which, like a mere bug-bear, is formidable only whilſt miſunderſtood, though it has raiſed an epidemical panic, of which [Page 8] the late act is a proof. — ‘Sunt etiam aliae res quae pertinent ad coronam, quae non ſunt ita ſacrae, quin transferri poſſunt, ſicut ſunt, FUNDI, TERRAE, et TENEMENTA, et HUJUSMODI per quos corona regis roboratur, et in quibus CURRIT TEMPUS CONTRA REGEM, ſicut contra quamlibet privatam perſonam.

Thus we are aſſured, by the authority of an ancient and unexceptionable writer, that crown-lands are exactly upon the ſame footing as private freeholds, with reſpect to time or preſcription, which is the very reverſe of the Nullum tempus doctrine, lately adopted by the Treaſury.

Now, it is a maxim in law, that a quiet and uninterrupted poſſeſſion for ſixty years creates a proper title. ‘Poſſeſſio pacifica POUR ANNS 60 facit jus.’ (Prin. Leg. et Aeq. p. 81. See alſo Jenk. cent. 26.) And, therefore, as we have before ſhewn, that Crown manors, lands, [Page 9] and tenements, are exactly upon the ſame footing with reſpect to time or preſcription as private freeholds, we muſt neceſſarily conclude that the king entirely loſes his title to alienated lands, if there are better proofs of ſuch a peaceable poſſeſſion, on the one ſide, than of a continued claim on the other; in which caſe the lands muſt become wholly and entirely the property of the poſſeſſor. And, even when alienated crown lands are claimed within any ſhorter term than ſixty years, the king may not ſeize, for it is a maxim, ‘That the king can diſſeize no man, nor be diſſeized;’ (Doctor & Student);* and, even though the king cannot be diſſeized, yet this is not to be conſtrued ſo as to annul that intereſt, which private perſons acquire, by time, in the poſſeſſion of alienated [Page 10] lands, for that is ſufficiently eſtabliſhed by an act of 1 Edw. III. c. 12. which ordains, with reſpect to ‘lands and tenements holden of the king in chief, and ALIENED WITHOUT LICENCE ’— that the ‘king ſhall NOT HOLD THEM AS FORFEIT in ſuch caſe, but’—‘there ſhall be a reaſonable fine taken in Chancery by DUE PROCESS. ’ Here is no limited time for poſſeſſion, ſo that the act is as efficacious for thoſe who have been in poſſeſſion only 3 years, as for thoſe who have held 20 times 3 years as above. See alſo 9 Edw. III. c. 2. 21 Jac. c. 25. 8. Hen. VI. c. 9. § 7. and 31 Eliz. c. 11.

By the two laſt mentioned acts a peaceable and quiet poſſeſſion for 3 years creates a right that will juſtify "keeping poſſeſſion WITH FORCE:" but as the king is not expreſſly named, I conceive that ſo ſhort a time doth not bar his title to any reaſonable fines, not prohibited by 12 Char. II. [Page 11] c. 24.* becauſe it is a maxim that ‘the king is not bound by ſtatute law, unleſs expreſſly named.’

What hath hitherto been advanced, I hope, will be thought ſufficient to eſtabliſh the abſolute property of all perſons, who ſhall be able to prove a peaceable poſſeſſion of alienated crown-lands, unclaimed for 60 years, and alſo that thoſe perſons who have held alienated crown-lands for more than three years unclaimed, have a right to continue in poſſeſſion, on paying a reaſonable fine; and conſequently that the doctrine of Nullum tempus, &c. is by no means effectual for the recovery of manors, lands, or tenements, alienated from the crown. And I truſt that my candid [Page 12] readers will acknowledge and hold faſt this my opinion, until they ſee more authentic vouchers produced in ſupport of the contrary doctrine.


1.2. PART II. Concerning ſome Precautions and Conditions neceſſary to be obſerved in the granting of Crown Lands, Tenements, &c.

[Page 13]

THE crown is limited, as well in the mode of granting, as in the conditions to be granted; inſomuch that when any grant or leaſe is made contrary to the rules preſcribed by law, the ſame is thereby rendered null and void. I ſhall not pretend to ſpeak of all the particular precautions and conditions neceſſary to be obſerved on theſe occaſions, but only ſome few of the moſt eſſential, which, I apprehend, have not been ſo much regarded of late as they ought.

[Page 14] The legiſlature hath agreed, and laid it down as a rule, that all the ancient and military tenures of lands, and ‘even SOCCAGE IN CAPITE, of the king, and the conſequents upon the ſame, have been much more burthenſome, grievous, and PREJUDICIAL, to the kingdom, than they have been BENEFICIAL to the king.’ (See Preamble to 12 Cha. II. cap. 24.) For this juſt reaſon, founded on experience, the king hath ever ſince been reſtrained by the law from granting any part of his dominions upon ſuch conditions.

I have, indeed, heard of a foreign iſland being granted to a noble lord upon ſome ſuch antiquated conditions, whereby he is ſaid to be eſtabliſhed as lord paramount, with a peculiar unconſtitutional authority; but this, I am willing to preſume, is merely report; and, even if it were true, the grant would be innocent enough, becauſe it is null and void in itſelf, as the king has had no right ſince [Page 15] 12 Cha. II. to make a grant on any other tenure than that of free and common ſoccage. * — The king is alſo bound to have reſpect to former grants, becauſe, even in caſes when the king hath granted during pleaſure, a ſecond grant, not mentioning the former, ſhall be void. ( [...] Hen. VIII. c. 15).

Now, in order to ſet forth more clearly ſome other circumſtances wherein the crown is limited in the mode of granting, and in the conditions to be granted, I ſhall beg leave to ſuppoſe a caſe. — Suppoſe a crafty and litigious perſon makes intereſt with the lord-treaſurer, or [Page 16] the commiſſioners of the treaſury, for a grant of alienated crown-lands, on condition that he ſhall, at his own expence, prove and eſtabliſh the right of the crown, and recover the lands from the preſent poſſeſſor.

Let us alſo ſuppoſe a lord-treaſurer, or commiſſioners of the treaſury, ſo regardleſs of the neceſſary and legal precautions againſt abuſes in granting crown-lands, that they approve the clandeſtine offer, and procure a grant from their royal maſter agreeable to the wiſhes of the propoſer.

But what will ſuch an adventurer gain by his parchments, whilſt the king's courts are worthy to be eſteemed courts of juſtice and law? Be pleaſed to obſerve that my ſuppoſitions are now at a ſtand. They extend no farther than the imaginary caſe already laid down. For I am not to ſuppoſe, or conceive, that any learned perſons, who preſide in the king's courts, are ſubject to venal time-ſerving, [Page 17] or the factious ſpirit of party influence, which is the ſource of the moſt dangerous partiality; becauſe partiality is entirely inconſiſtent with the high character of judges, and muſt neceſſarily make ſhipwreck of their ſouls!

For a partial judge cannot truly be ſaid to "have the fear of God before his eyes:" and, as this is the firſt principle which the common law of England requires, and deems abſolutely neceſſary in all ranks of the community, but more particularly in judges, I am bound in Chriſtian charity not to ſuſpect ſuch a legal incapacity in any of them, until I am convinced, by experience, to the contrary.

For this reaſon I have not attempted, by declamation and far-fetched arguments, to eſtabliſh my opinion; nor do I rely on the intereſt and number of my friends to make it paſs current; neither do I demand favour of my readers, as being a friend to adminiſtration; but [Page 18] I have founded my opinion merely on the authority of law; and, whilſt our judges as well as juries are ſuſceptible of that juſt and indiſpenſible fear before mentioned, and are in the leaſt ‘mindful of the ſolemn account which they themſelves muſt one day give,’ ſo long ſhall I preſume that our courts are impartial; and that they will carefully and conſcientiouſly weigh and determine every caſe that is laid before them according to the known laws of the land; and, conſequently, that they would reject, with diſdain, the claim of my ſuppoſed adventurer, if his pretenſions to the alienated lands in queſtion had no better foundation than ſuch a grant as I have ſuppoſed. The Courts would inform the litigious adventurer that his grant is of no ſignification, and cannot convey to him the leaſt right in the alienated lands, becauſe the Crown is bound to prove and eſtabliſh its own right in all manors, lands, &c. before it can grant [Page 19] them to any perſon whatever; for both the lord-chancellor and the lord-treaſurer (and conſequently the commiſſioners of the treaſury) are abſolutely reſtrained, by an act of parliament, (8 Hen. VI. c. 16.*) from letting or granting the [Page 20] king's lands to farm, until lawful enqueſts and verdicts (that is from good towns, and of good people, 36 Ed. III. c. 13; or a jury of twelve ſufficient men, 1 Hen. VIII. c. 8.) have been taken thereupon, and ‘ be fully returned in the Chancery, or in the Exchequer, but all ſuch lands and tenements ſhall entirely and continually remain in the hands of our lord the king, until the ſaid enqueſts and verdicts be returned,’ &c. — And, when the perſons ‘ grieved by the ſame enqueſts, or putting out of their lands and tenements, come into the Chancery, and proffer themſelves to traverſe the ſaid enqueſts, and then offer to take the ſame lands or tenements to ferm. And, if they ſo do, that then the ſame lands, &c. be committed to them if they ſhew good evidence, &c. ’ So that there is [Page 21] no poſſibility for the crown to make a valid grant upon the conditions before deſcribed, viz. ‘the eſtabliſhing of the Crown's right at the expence of the grantee.’

And another act was made in the eighteenth year of the ſame reign, (cap. 6.) expreſſly as a remedy to prevent ſuch ſubtle and deſigning perſons from ſuing ‘to obtain ſuch gifts, and grants, and ferms, by the king's letters patents, before any inquiſition (as above) or title found for the king of the ſame, pretending ſuch gifts and grants not compriſed and remedied by the ſaid ſtatute, &c. And, if any letters patents be made to the contrary, they ſhall BE VOID AND HOLDEN FOR NONE. ’ — So that our adventurer's claim, founded on a grant made previous to theſe neceſſary ſteps, is abſolutely null and void of itſelf. And the very conditions of it (viz. that of eſtabliſhing the right of the crown at the grantee's own expence) would afford ſubſtantial proof, without any farther examination, [Page 22] that the crown had neglected all theſe legal precautions, which are abſolutely neceſſary for the foundation and exiſtence of every grant: and, conſequently, ſuch a condition is, of itſelf, ſufficient to render any grant a mere nullity.

I muſt, likewiſe, obſerve that the crown, or its miniſters, have no right to grant lands on any other terms or conditions whatſoever, beſides thoſe which are preſcribed by law ‘utterly void and of none effect,’ (ſays the 1ſt Stat. of queen Anne, ſect. 5.) ‘unleſs ſuch GRANT, LEASE, &c. be made for ſome term or eſtate, not exceeding one and thirty years, or three lives, or for ſome term of years determinable upon one, two, or three, lives; and, unleſs ſuch grant, &c. be made to commence from the date or making thereof;’ which is impoſſible in the caſe that I have ſuppoſed, where the right is afterwards to be eſtabliſhed by a conteſt at law.—There are alſo other conditions which are abſolutely neceſſary: a reſervation muſt be made of [Page 23] the ancient and moſt uſual rent, or more, or ſuch rent as hath been reſerved, yielded, and paid, for the greater part of twenty years, before the making of the grant; or a reſerved rent, not under the third part of the clear yearly value. And whatever grant is made ſince the firſt of queen Anne, otherwiſe than according to the tenure and meaning of the ſaid act, is abſolutely null and void. It would be in vain for a Treaſury-board to alledge, in ſuch a caſe, that they abated their legal conditions in conſideration of the grantee being bound to proſecute and eſtabliſh, at his own expence, the right of the crown: an impartial court (ſuch as I have deſcribed) would freely declare that the crown is not empowered to change the above preſcribed conditions, on any pretence whatſoever, being abſolutely limited and bound by this Statute of 1ſt Anne, which declares (ſect. 7.) ‘that all gifts, grants, &c. of manors, &c. [Page 24] or any part thereof, contrary to the proviſions of this act, or any of them, ſhall BE NULL AND VOID, without any inquiſition, ſcire facias, or other proceeding, to determine or make void the ſame.’

But the moſt material thing to be conſidered by a lord chancellor, a lord treaſurer, or a treaſury-board, before they preſume to reclaim alienated lands, &c. is, what I firſt of all touched upon, viz. whether the preſent poſſeſſors of lands, &c. have enjoyed a quiet poſſeſſion of ſixty years? becauſe that creates a good title; "FACIT JUS," as I have already proved; and ſuch great officers ought to be aware that ‘Reſcriptum principis contra JUS non valet;’ ſo that they would betray the honour of their royal maſter, if they were to endeavour to procure his aſſent to grants of land, &c. which, by time and poſſeſſion, are thus totally and irrecoverably alienated; for ‘Donatio principis intelligitur SINE PREJUDICIO [Page 25] TERTII. ’ (Davis, 75.6.) And ‘One ſhould be JUST before he is GENEROUS.

The points of law and opinions, which I have here laid down, may perhaps be capable of perverſion; for indeed the plaineſt truths may be wreſted and perverted by long, ſophiſtical, and deceitful, arguments;—but, let my opponents ſubmit their objections to writing, as I have done, and collate them ſide by ſide with mine, and it will be impoſſible for the moſt ſubtle prevarication to ſet aſide ſo many plain and intelligible laws, which acquire a collective force by being thus produced together: and, even if we could ſuppoſe an inclination or partiality in any of the king's juſtices, to favour and confirm every act of adminiſtration whatſoever, be it right or wrong; and, among the reſt, ſuch AN ILLEGAL ACT OF THE TREASURY LORDS as I have here ſtated in this ſuppoſed grant; yet, even the moſt [Page 26] partial of them would find themſelves expoſed to great difficulty, ſhame, and danger, by attempting to define away the true meaning of ſo many poſitive laws, in order to eſtabliſh ſuch an injuſtice: for the private opinions of the king's juſtices ought to have no weight, neither their will and inclination, except when clearly ſupported by law; becauſe they are not allowed an arbitrary or wilful diſcretion, * but merely a legal diſcretion, which is "diſcernere per legem quod ſit juſtum." — ‘For diſcretion is a ſcience, or underſtanding, to diſcern between falſity and truth, between right and wrong, between ſhadows and ſubſtance, between equity and colourable gloſſes and pretences; and not to do according to their wills and private affections; for, as one faith, ‘Talis diſcretio diſcretionem confundit.’ ’ 5 Co. 345. — If theſe ſalutary laws and unalterable [Page 27] maxims have been infringed by any great officer of the preſent times, through miſinformation, or for want of duly conſidering the point in queſtion, let them but acknowledge their error, together with a ſincere intention to make what reparation may lie in their power, and they will eaſily regain that public confidence and eſteem which they have forfeited by their miſtakes; for, ſure I am, (with ſir Edw. Cook,) ‘that no wiſe or true-hearted Engliſhman, that hath been perſuaded before he was inſtructed, will refuſe to be inſtructed in the truth, (which he may ſee with his own eyes,) leſt he ſhould be diſſuaded from error, wherewith blindfold he hath been deceived; for miſerable is his caſe, and worthy of pity, that hath been PERSUADED before he was INSTRUCTED, and now will refuſe to be INSTRUCTED becauſe he will not be PERSUADED.’ But, howſoever applicable the latter part [Page 28] of this quotation may be to any of his majeſty's late or preſent miniſters, yet am I thoroughly perſuaded that it will never be juſtly ſaid of himſelf.

As a man, he is indeed liable to be impoſed on, and may perhaps be perſuaded to give his aſſent to ſome improper things, through the inſinuation of mere worldly politicians; that the ſame are abſolutely NECESSARY; and that he muſt ſubmit to tread in the beaten tract of ſtate-policy (howſoever corrupt) to avoid the danger of greater evils.

If he ever has yielded to ſuch fallacious and dangerous doctrines, (for no doctrines are ſo productive of violence and iniquity, [Page 29] and conſequently ſo productive of certain ruin * to ſtates and kingdoms, as thoſe which are built on pretended neceſſity,) I am perſuaded it was for want of conviction that he might ſafely and with propriety avoid it, but the rectitude of his intentions, I am convinced, will never juſtly be called in queſtion.

That he is a good chriſtian, and ſincerely wiſhes to promote the general good of his people, I have not the leaſt doubt; and therefore if any man hath been injured by ſuch an illegal grant as I have deſcribed, let him find ſome means of ſtating the merits of his caſe in a proper and reſpectful manner to our gracious ſovereign, and I will FORFEIT MY LIFE, if he does not find redreſs. — MY CONFIDENCE [Page 30] is not without foundation! I had the honour to ſtand in his royal preſence, when he called God and man to witneſs, in the moſt ſolemn and affecting manner that can be deſcribed, that he would rule according to the laws.

From that time to this I have entertained the higheſt perſonal eſteem and reſpect for him, and have really more hopes of the re-eſtabliſhment of public peace and content, from the ſincerity and good heart (as I conceive) of that one man, than from the moſt earneſt endeavours of all the other honeſt and loyal people of England, who, of themſelves, without their royal maſter at their head, are by far too few and weak to reſiſt the immenſe tide of venality and corruption, which has almoſt totally overflowed this once happy iſland.— ‘Take away the wicked from before the king, and his throne ſhall [Page 31] be eſtabliſhed in righteouſneſs.’ Prov. xxv. 5.


Query. How far may this hold good ſince the making of the Habeas Corpus act, which ſuppoſes that a man may be tranſported againſt his will if he has ſigned a written contract? Sect. 13. This ſection, however, gives no authority for ſuch a forcible tranſportation; it only informs us, that the act does NOT "extend to give benefit" in ſuch caſe; but the common law, we may preſume, will or ought to "give benefit" in this, as in every other caſe, of violence and wrong, becauſe "Lex ſemper dabit remedium:" and I have already ſhewn that the right of the Crown is unalienable in this kind of property, for the maintainance of freedom.
‘Item quaſi res ſacra ut liber homo qui vendi non poteſt, cùm libertas non recipiat aeſtimationem,’ &c. Bracton, lib. 2, p. 14.
‘Et eſt res quaſi ſacra, Res fiſcalis, quae dari non poteſt, nec vendi, nec ad alium transferri a principe vel a rege regnante—’
To this rule, about Res fiſcalis, there are ſome neceſſary exceptions which will hereafter be mentioned.
‘When common law and ſtatute law concur, the common law ſhall be preferred.’ 4. Co. 71.
‘Item pro maximo habetur in legibus Angliae, quod nullus poteſt dominum regem diſſeiſire, NEC DOMINUS REX ALIQUEM DISSEISIRE POTERIT, ita quod liberum tenementum per talem diſſeiſinam transferetur de rege ad alium, NEC E CONTRA.’ Chap. 8.
See ſect. 1, 5, and 6, particularly the latter.— ‘Provided always and be it enacted, that any thing herein contained ſhall not take away, nor be conſtrued to take away, any fines for alienation, due by particular cuſtoms of particular manors and places, other than fines for alienations of lands or tenements holden immediately of the king in capite.
Sect. 4. ‘And be it farther enacted, &c. That all tenures hereafter to be created by the king's majeſty, his heirs, or ſucceſſors, upon any gifts or grants of any manors, lands, tenements, or hereditaments, of any eſtate of inheritance, at the common law, ſhall be in free and common ſocage, and ſhall be adjudged to be in free and common ſocage only, and not by knights ſervice, or in capite, and ſhall be diſcharged of all wardſhip, &c. any law, ſtatute, or reſervation to the contrary thereof in any wiſe notwithſtanding.’
8 Hen. VI. c. xvi. ‘To eſchew the dolours, grievances, and diſheriſons, which daily do happen to many of the king's liege-people, by the eſcheators, for that they take enqueſts, to inquire before them, as well by virtue of the king's writs, as of their offices, favourably and not duly, by people not impannelled, nor returned to them by the ſheriffs of the counties, and more often for their private gain, and for the diſheriſon of the king's liege-people, than for the profit of the ſame our lord the king, and alſo, for that the lands and tenements of many of the king's liege-people be ſeized into the king's hands upon ſuch enqueſts, or let to ferm by the chancellor or treaſurer before ſuch enqueſts be returned in the chancery: our lord the king hath ordained, &c. that no eſcheator or commiſſioner take in any wiſe any enqueſt to enquire, but of people returned and impanelled by the ſheriff▪ in the county, within which he is eſcheator or commiſſioner. And if any eſcheator or commiſſioner take enqueſts of people which be not impanelled, &c. that he incur the penalty of 40 l. &c. And that no lands nor tenements, ſeiſed into the hand of our lord the king, upon ſuch enqueſts taken before the eſcheators or commiſſioners, be not in any wiſe let nor granted to ferm by the chancellor or treaſurer of England, or any other the king's officer, until the ſame enqueſts and verdicts be fully returned in the chancery, or in the exchequer, but all ſuch lands, &c. ſhall intirely and continually remain in the hands of our lord the king until the ſaid enqueſts and verdicts be returned, &c.’ — See alſo 36 Ed. III. c. 13. to which this act refers for the form of letting.
Alſo diſcretion, as it is well deſcribed, is ‘ſcire per legem quid ſit juſtum.’ 10 Co. 140.
The NECESSITY of doing evil to avoid a greater evil is a doctrine too generally adopted by worldly politicians, and perfectly accords with the ancient iniquitous propoſition, "Let us do EVIL, that GOOD may come." But the unhappy ſtate of thoſe wretched politicians, who give ſuch pernicious counſel, is immediately added, — whoſe damnation is juſt! Rom. iii. 8.
‘Our INIQUITIES, like the wind, have taken us away.’ Iſaiah lxiv. 6. ‘Woe unto them that decree unrighteous decrees.’ Iſaiah x. 1.
N. B. This tract is dated in May, 1771.