A. D. 1305.] IMPROVEMENTS IN THE LAWS. 269 they prayed that he would imitate the conduct of his predecessor. The answer, with which they returned, Dec. declared all such concessions invalid; but this declara- 29. tion proceeded on the supposition that the concessions were contrary to the rights of the crown, which the king had sworn to transmit to his posterity, and was accompanied with a clause saving to his subjects all the rights of which they were previously in possession *. Whether it were that with these limitations the papal rescript did not fully meet the king's wishes, or that he was intimidated by the rebellion of the Scots, he made no public use of its contents; but suffered the concessions, galling as they were, to remain on the statute roll at his death, and to descend to future sovereigns as the recognised law of the land. Thus, after a long struggle, was won from an able and powerful monarch the most valuable of the privileges enjoyed by the commons of England at the present day. If we are indebted to the patriotism of cardinal Langton, and the barons at Runnymead, the framers of the great charter, we ought equally to revere the memory of archbishop Winchelsea, and the earls of Hereford and Norfolk. The former erected barriers against the abuse of the sovereign authority; the latter fixed the liberties of the subject on a sure and permanent foundation. III. Notwithstanding these instances of oppression, Edward has obtained the name of the English Justinian, from the improvements which were made during his reign in the national code, and the administration of justice; improvements for which his people were perhaps as much indebted to his necessities as his wisdom; since they were always granted at the request of his parliament, and purchased with the vote of a valuable aid. That the courts of king's bench, exchequer, and common pleas, might not encroach on each other, the limits of their respective jurisdictions were accurately Rym. ii. 972. + Stat. 34 Edw. I. St. 5. A. D. defined; and that the courts christian might not assume the undue cognizance of temporal rights, they were confined to matrimonial and testamentary causes, the non-payment of tithes, perjury, defamation, mortuaries, and the infliction of public penance. The institution 1285. of itinerary judges was retained; and, for the more prompt administration of justice, it was enacted that two of the number, aided by one or more discreet knights, should hold assizes in each county thrice in the year*. These officers might not be deficient in learning or talents; but there is great reason to doubt their integrity. With small salaries they amassed immense riches; and when the king, after an absence of three years, returned to England in 1289, all the judges were apprehended, and indicted for bribery. Two only were acquitted. Weyland, the chief justice of the king's bench, was found guilty of having first instigated his servants to commit murder, and then screened them from punishment. He abjured the realm, and all his property, both real and personal, was adjudged to the king*. Stratton, the chief baron of the exchequer, suffered a long imprisonment, was deprived of his lay fees, and paid a fine of thirty-four thousand marks. Sir Ralf de Hengham, the grand justiciary, and regent during the king's absence, was amerced in the sum of seven thousand, the rest in smaller sums, amounting in the aggregate to twentyfour thousand marks. * Stat. 13 Edw. I. c. 30. Eight years later he divided the kingdom into four circuits, and appointed two judges to each, to be always employed in this office to the ease of the people. Middlesex was in no circuit, because the king's bench was in the county. Stat. of Realm, 1. 112. The history of Weyland is curious. He escaped from custody, disguised himself, and was admitted a novice among the friars minors at St. Edmundsbury. His retreat was however discovered: but as he was in a sanctuary, forty days were allowed him according to law, after which the introduction of provisions into the convent was prohibited. The friars soon left it through want: Weyland followed them, and was conducted to the Tower. In the king's council the option was given to him to stand his trial, to be imprisoned for life, or to abjure the realm. He chose the latter; and having walked barefoot and bareheaded, with a crucifix in his hand, to the sea side, was immediately transported. See Dunst. 573577. Wikes, 118, 119. CHAP. III.] CREATION OF ESTATES TAIL. 271 For the preservation of the peace was enacted the celebrated statute of Winchester, which revived the ancient custom of requiring sureties from strangers and lodgers, established the watch and ward from sunset to sunrise in all cities and boroughs; regulated the hue and cry; and ordered all hedges and underwood to be cleared away to the distance of two hundred feet on each side of the high roads leading from town to town, that they might not afford shelter to robbers *. These regulations, however, were ill observed, till the king issued a commission to certain knights in every shire, authorizing them to enforce the provisions of the act, and to call to their aid the posse of the sheriff as often as it might be requisite. The utility of these commissioners was soon ascertained: they were gradually armed with more extensive powers; and instead of conservators, were at last styled justices of the peace. But during Edward's expeditions into Scotland they were unable to suppress the bands of ruffians, who assembled in different places, hired themselves to the best bidder, and became the executioners of private vengeance, or the ministers of individual rapacity. These excesses, however, ceased with the submission of the Scots. An extraordinary commission 1305. of justices of traylebaston proceeded from county to April county, and by condemning, after a summary trial, 6. many of the offenders to the gallows, so intimidated the rest, that they precipitately quitted the kingdom t. During Edward's reign several alterations were made in the laws respecting the transmission or alienation Stat. of Realm, 96. +Rot. Parl. i. 178. Ryley, 280. Rym. ii. 960. Several fanciful expla nations of the name have been given. But as Sir F. Palgrave remarks (Chron. Abs. 66.) the commission is docketed, de transg' nominatis trailbaston audiend' et terminand'; and consequently the word applies to the offender or the offence. The offenders are described as murderers, robbers, and incendiaries, wandering from place to place, and lurking in woods and parks. Parl. Writs, i. 408. Perhaps they were generally armed with clubs; whence the offence might be called an act of trailbaston. A. D. of real property, which are wholly or partially in force at the present day. Originally lands were given to a man and the heirs of his body, in failure of which heirs they were to return to the donor: but it had been held by the judges that on the birth of an heir the condition was fulfilled. The feoffee could then aliene as he pleased, and he was generally careful to make his feesimple absolute, so that it might descend by common law to his heirs general. The barons complained that by this expedient the will of the donor, and the rights of his successors, were unjustly defeated; and a law was enacted, taking from the feoffee the power of disposing of his lands, and ordaining that they should descend in the terms of the original grant, and in failure of issue revert to the donor, or the heirs of the donor. The object of this statute was to preserve the rights of the lord its effect, though that does not appear to have been contemplated by the legislature, was to secure the transmission of estates through the different generations of the same family, by depriving the actual possessor of the power of alienation*. A. D. Another very important alteration regarded the con1290.. 'veyance of lands. At the commencement of Edward's reign, every tenant, who possessed freehold lands of inheritance, could convert his property into a manor, with manorial courts, profits, and immunities, by granting or selling a portion of it to two or more individuals, to be held by them and their heirs for ever, under free or military service. By this system of sub-infeudation manors were multiplied beyond measure; and the great barons discovered that they were deprived of the escheats, reliefs, and wardships, of the lesser freeholders, which by the condition of their tenures were reserved to the immediate lords of whom they held their lands. Repeated complaints gave birth to the statute of the eighteenth of this prince, by which the creation of new Stat. of Realm, 71. A. D. 1290.] STATUTES OF MORTMAIN. 273 manors was prohibited; and it was enacted, that in all sales or grants of land for the future, the new feoffee should hold his land, not of the individual from whom he received or purchased it, but of the chief lord of the fee. Hence it is, that at the present day no claim of manorial rights is admitted, unless they have existed as such since the year 1290 *. I shall notice only one more alteration, which the king appears to have had much at heart, and in which he was in a great measure defeated by the ingenuity of his opponents; I mean the statutes enacted to prevent corporate bodies, ecclesiastical or secular, from acquiring lands in mortmain. For as such bodies cannot die, the immediate lords of those lands were deprived of the escheats, reliefs, wardships, and other feudal profits, which they derived from the decease of individual proprietors. To remedy the inconvenience bodies corporate had long been incapacitated from acquiring lands without the previous consent both of the mesne lord, and the king: but they had found means to evade the prohibition by taking leases for very long terms of years, or by purchasing estates, which were held bona fide of themselves. In 1279 a statute was passed, by which all alienations in mortmain, by whatever art, or under whatever pretext they might be effected, were forbidden on pain of forfeiture to the immediate lord, or, in his default during a year, to the lord paramount, and in default of both, to the king †. But an expedient was soon discovered by which the provisions of the statute were eluded. A secret understanding took place between the parties: the body wishing to obtain the land set up a fictitious title; and the real proprietor, by collusion, suffered judgment to be given against him. This was the origin of common *Stat. of Realm, 106. Rot. Parl. tom. i. p. 41. + Stat. of Realm, 51. There are, however, several instances in which the king granted licenses for the alienation of lands in mortmain. See Rym. ii. 664, 1004. VOL. III. T |