COMMENTARIES

ON THE LAWS
OF ENGLAND
BOOK THE FIRST (1765)

WILLIAM BLACKSTONE, Esq.

Based on the first edition, together with the most

material corrections and additions in the second edition.

Translation of greek, latin, italian and french quotations

(with some modifications) by J. W. Jones, Esq. (1823)

Footnotes have been converted to chapter end notes.

Spelling has been modernized.

This electronic edition

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www.lonang.com
 Table of Contents

Dedication . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Preface . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

INTRODUCTION
Sect. 1: On the Study of the Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Sect. 2: Of the Nature of Laws in General . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Sect. 3: Of the Laws of England . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
Sect. 4: Of the Countries Subject to the Laws of England . . . . . . . . . . . . . . . . . . . . . . . . . . . 57

BOOK 1: Rights Of Persons

Chap. 1: Of the Absolute Rights of Individuals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
Chap. 2: Of the Parliament . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89
Chap. 3: Of the King, and His Title . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 114
Chap. 4: Of the King's Royal Family . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 130
Chap. 5: Of the Councils Belonging to the King . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 135
Chap. 6: Of the King's Duties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 139
Chap. 7: Of the King's Prerogative . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 142
Chap. 8: Of the King's Revenue . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 168
Chap. 9: Of Subordinate Magistrates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 202
Chap. 10: Of the People, whether Aliens, Denizens, or Natives . . . . . . . . . . . . . . . . . . . . . . 219
Chap. 11: Of the Clergy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 225
Chap. 12: Of the Civil State . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 238
Chap. 13: Of the Military and Maritime States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 245
Chap. 14: Of Master and Servant . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 254
Chap. 15: Of Husband and Wife . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 261
Chap. 16: Of Parent and Child . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 270
Chap. 17: Of Guardian and Ward . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 279
Chap. 18: Of Corporations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 283
William Blackstone: Vol. 1, Commentaries on the Laws of England (1765) Page 1

Dedication

TO

THE QUEEN'S MOST EXCELLENT MAJESTY,

THE FOLLOWING VIEW

OF THE LAWS AND CONSTITUTION

OF ENGLAND,

THE IMPROVEMENT AND PROTECTION OF WHICH

HAVE DISTINGUISHED THE REIGN

OF HER MAJESTY'S ROYAL CONSORT,

IS,

WITH ALL GRATITUDE AND HUMILITY,

MOST RESPECTFULLY INSCRIBED

BY HER DUTIFUL

AND MOST OBEDIENT

SERVANT,

WILLIAM BLACKSTONE

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William Blackstone: Vol. 1, Commentaries on the Laws of England (1765) Page 2

Preface

The following sheets contain the substance of a course of lectures on the laws of England, which
were read by the author in the university of Oxford. His original plan took it's rise in the year 1753:
and, notwithstanding the novelty of such an attempt in this age and country, and the prejudices
usually conceived against any innovations in the established mode of education, he had the
satisfaction to find (and he acknowledges it with a mixture of pride and gratitude) that his endeavors
were encouraged and patronized by those, both in the university and out of it, whose good opinion
and esteem he was principally desirous to obtain.

The death of Mr Viner in 1756, and his ample benefaction to the university for promoting the study
of the law, produced about two years afterwards a regular and public establishment of what the
author had privately undertaken. The knowledge of our laws and constitution was adopted as a
liberal science by general academical authority; competent endowments were decreed for the
support of a lecturer, and the perpetual encouragement of students; and the compiler of the ensuing
commentaries had the honor to be elected the first Vinerian professor.

In this situation he was led, both by duty and inclination, to investigate the elements of the law, and
the grounds of our civil polity, with greater assiduity and attention than many have thought it
necessary to do. And yet all, who of late years have attended the public administration of justice,
must be sensible that a masterly acquaintance with the general spirit of laws and the principles of
universal jurisprudence, combined with an accurate knowledge of our own municipal constitutions,
their original, reason, and history, has given a beauty and energy to many modern judicial decisions,
with which our ancestors were wholly unacquainted. If, in the pursuit of these inquiries, the author
has been able to rectify any errors which either himself or others may have heretofore imbibed, his
pains will be sufficiently answered: and, if in some points he is still mistaken, the candid and
judicious reader will make due allowances for the difficulties of a search so new, so extensive, and
so laborious.

The labor indeed of these researches, and of a regular attention to his duty, for a series of so many
years, he has found inconsistent with his health, as well as his other avocations: and has therefore
desired the university's permission to retire from his office, after the conclusion of the annual course
in which he is at present engaged. But the hints, which he had collected for the use of his pupils,
having been thought by some of his more experienced friends not wholly unworthy of the public
eye, it is therefore with the less reluctance that he now commits them to the press: though probably
the little degree of reputation, which their author may have acquired by the candor of an audience
(a test widely different from that of a deliberate perusal) would have been better consulted by a total
suppression of his lectures; ) had that been a matter entirely within his power.

For the truth is, that the present publication is as much the effect of necessity, as it is of choice. The
notes which were taken by his hearers, have by some of them (too partial in his favor) been thought
worth revising and transcribing; and these transcripts have been frequently lent to others. Hence
copies have been multiplied, in their nature imperfect, if not erroneous; some of which have fallen
into mercenary hands, and become the object of clandestine sale. Having therefore so much reason
to apprehend a surreptitious impression, he chose rather to submit his own errors to the world, than
to seem answerable for those of other men. And, with this apology, he commits himself to the
indulgence of the public.

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Introduction
William Blackstone: Vol. 1, Commentaries on the Laws of England (1765) Page 4

SECTION 1
On The Study of The Law*

Mr. Vice-Chancellor, And Gentlemen Of The University,

The general expectation of so numerous and respectable an audience, the novelty, and (I may add)
the importance of the duty required from this chair, must unavoidably be productive of great
diffidence and apprehensions in him who has the honor to be placed in it. He must be sensible how
much will depend upon his conduct in the infancy of a study which is now first adopted by public
academical authority; which has generally been reputed (however unjustly) of a dry and unfruitful
nature; and of which the theoretical elementary parts have hitherto received a very moderate share
of cultivation. He can not but reflect that, if either his plan of instruction be crude and injudicious,
or the execution of it lame and superficial, it will cast a damp upon the farther progress of this most
useful and most rational branch of learning; and may defeat for a time the public-spirited design of
our wise and munificent benefactor. And this he must more especially dread, when he feels by
experience how unequal his abilities are (unassisted by preceding examples) to complete, in the
manner he could wish, so extensive and arduous a task; since he freely confesses, that his former
more private attempts have fallen very short of his own ideas of perfection. And yet the candor he
has already experienced, and this last transcendent mark of regard, his present nomination by the
free and unanimous suffrage of a great and learned university, (an honor to be ever remembered with
the deepest and most affectionate gratitude,) these testimonies of your public judgment must entirely
supersede his own, and forbid him to believe himself totally insufficient for the labor at least of this
employment. One thing he will venture to hope for, and it certainly shall be his constant aim, by
diligence and attention to atone for his other defects; esteeming, that the best return, which he can
possibly make for your favorable opinion of his capacity, will be his unwearied endeavors in some
little degree to deserve it.

The science thus committed to his charge, to be cultivated, methodized, and explained in a course
of academical lectures, is that of the laws and constitution of our own country: a species of
knowledge, in which the gentlemen of England have been more remarkably deficient than those of
all Europe besides. In most of the nations on the continent, where the civil or imperial law under
different modifications is closely interwoven with the municipal laws of the land, no gentleman, or
at least no scholar, thinks his education is completed, till he has attended a course or two of lectures,
both upon the institutes of Justinian and the local constitutions of his native soil, under the very
eminent professors that abound in their several universities. And in the northern parts of our own
island, where also the municipal laws are frequently connected with the civil, it is difficult to meet
with a person of liberal education, who is destitute of a competent knowledge in that science, which
is to be the guardian of his natural rights and the rule of his civil conduct.

Nor have the imperial laws been totally neglected even in the English nation. A general acquaintance
with their decisions has ever been deservedly considered as no small accomplishment of a
gentleman; and a fashion has prevailed, especially of late, to transport the growing hopes of this
island to foreign universities, in Switzerland, Germany, and Holland; which, though infinitely
inferior to our own in every other consideration, have been looked upon as better nurseries of the
civil, or (which is nearly the same) of their own municipal law. In the mean time it has been the

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William Blackstone: Vol. 1, Commentaries on the Laws of England (1765) Page 5

peculiar lot of our admirable system of laws, to be neglected, and even unknown, by all but one
practical profession, though built upon the soundest foundations, and approved by the experience
of ages.

Far be it from me to derogate from the study of the civil law, considered (apart from any binding
authority) as a collection of written reason. No man is more thoroughly persuaded of the general
excellence of its rules, and the usual equity of its decisions, nor is better convinced of its use as well
as ornament to the scholar, the divine, the statesman, and even the common lawyer. But we must not
carry our veneration so far as to sacrifice our Alfred and Edward to the manes of Theodosius and
Justinian; we must not prefer the edict of the praetor, or the rescript of the Roman emperor, to our
own immemorial customs or the sanctions of an English parliament; unless we can also prefer the
despotic monarchy of Rome and Byzantium, for whose meridians the former were calculated, to the
free constitution of Britain, which the latter are adapted to perpetuate.

Without detracting therefore from the real merit which abounds in the imperial law, I hope I may
have leave to assert, that if an Englishman must be ignorant of either the one or the other, he had
better be a stronger to the Roman than the English institutions. For I think it an undeniable position,
that a competent knowledge of the laws of that society in which we live, is the proper
accomplishment of every gentleman and scholar; an highly useful, I had almost said essential, part
of liberal and polite education. And in this I am warranted by the example of ancient Rome; where,
as Cicero inform us,1 the very boys were obliged to learn the twelve tables by heart as a carmen
necessarium, or indispensable lesson, to imprint on their tender minds an early knowledge of the
laws and constitution of their country.

But as the long and universal neglect of this study, with us in England, seems in some degree to call
in question the truth of this evident position, it shall therefore be the business of this introductory
discourse, in the first place to demonstrate the utility of some general acquaintance with the
municipal law of the land, by pointing out its particular uses in all considerable situations of life.
Some conjectures will then be offered with regard to the causes of neglecting this useful study; to
which will be subjoined a few reflections on the peculiar propriety of reviving it in our own
universities.

And, first, to demonstrate the utility of some acquaintance with the laws of the land, let us only
reflect a moment on the singular frame and polity of that land, which is governed by this system of
laws. A land, perhaps the only one in the universe, in which political or civil liberty is the very end
and scope of the constitution.2 This liberty, rightly understood consists in the power of doing
whatever the laws permit;3 which is only to be effected by a general conformity of all orders and
degrees to those equitable rules of action, by which the meanest individual is protected from the
insults and oppression of the greatest. As therefore every subject is interested in the preservation of
the laws, it is incumbent upon every man to be acquainted with those at least with which he is
immediately concerned; lest he incur the censure, as well as inconvenience, of living in society
without knowing the obligations which it lays him under. And thus much may suffice for persons
of inferior condition, who have neither time nor capacity to enlarge their views beyond that
contracted sphere in which they are appointed to move. But those on whom nature and fortune have
bestowed more abilities and greater leisure, cannot be so easily excused. These advantages are given

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William Blackstone: Vol. 1, Commentaries on the Laws of England (1765) Page 6

them, not for the benefit of themselves only, but also of the public; and yet they cannot, in any scene
of life, discharge properly their duty either to the public or themselves, without some degree of
knowledge in the laws. To evince this the more clearly, it may not be amiss to descend to a few
particulars.

Let us therefore begin with our gentlemen of independent estates and fortune, the most useful as well
as considerable body of men in the nation; whom even to suppose ignorant in this branch of learning
is treated by Mr. Locke4 as a strange absurdity. It is their landed property, with its long and
voluminous train of descents and conveyances, settlements, entails and encumbrances, that forms
the most intricate and most extensive object of legal knowledge. The thorough comprehension of
these, in all their minute distinctions, is perhaps too laborious a task for any but a lawyer by
profession; yet still the understanding of a few leading principles, relating to estates and
conveyancing, may form some check and guard upon a gentleman's inferior agents, and preserve him
at least from very gross and notorious imposition.

Again, the policy of all laws has made some forms necessary in the wording of last wills and
testaments, and more with regard to their attestation. An ignorance in these must always be of
dangerous consequence, to such as by choice or necessity compile their own testaments without any
technical assistance. Those who have attended the courts of justice are the best witnesses of the
confusion and distresses that are hereby occasioned in families; and of the difficulties that arise in
discerning the true meaning of the testator, or sometimes in discovering any meaning at all; so that
in the end his estate may often be vested quite contrary to these his enigmatical intentions, because
perhaps he has omitted one or two formal words, which are necessary to ascertain the sense with
indisputable legal precision, or has executed his will in the presence of fewer witnesses than the law
requires.

But to proceed from private concerns to those of a more public consideration. All gentlemen of
fortune are, in consequence of their property, liable to be called upon to establish the rights, to
estimate the injuries, to weigh the accusations, and sometimes to dispose of the lives of their
fellow-subjects, by serving upon juries. In this situation they have frequently a right to decide, and
that upon their oaths, questions of nice importance, in the solution of which some legal skill is
requisite; especially where the law and the fact, as it often happens, are intimately blended together.
And the general incapacity, even of our best juries, to do this with any tolerable propriety, has
greatly debased their authority; and has unavoidably thrown more power into the hands of the
judges, to direct, control, and even reverse their verdicts, than perhaps the constitution intended:

But it is not as a juror only that the English gentleman is called upon to determine questions of right,
and distribute justice to his fellow-subjects; it is principally with this order of men that the
commission of the peace is filled. And here a very ample field is opened for a gentleman to exert
his talents, by maintaining good order in his neighborhood; by punishing the dissolute and idle; by
protecting the peaceable and industrious; and above all, by healing petty differences and preventing
vexatious prosecutions. But in order to attain these desirable ends, it is necessary that the magistrate
should understand his business; and have not only the will, but the power also, (under which must
be included the knowledge) of administering legal anti effectual justice. Else, when he has mistaken
his authority, through passion through ignorance, or absurdity, he will be the object of contempt

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William Blackstone: Vol. 1, Commentaries on the Laws of England (1765) Page 7

from his inferiors, and of censure from those to whom he is accountable for his conduct.

Yet farther; most gentlemen of considerable property, at some period or other in their lives, are
ambitious of representing their country in parliament: and those, who are ambitious of receiving so
high a trust, would also do well to remember its nature and importance. They are not thus honorably
distinguished from the rest of their fellow-subjects, merely that they may privilege their persons,
their estates, or their domestics; that they may list under party banners; may grant or with-hold
supplies; may vote with or vote against a popular or unpopular administration; but upon
considerations far more interesting and important. They are the guardians of the English
constitution; the makers, repealers, and interpreters of the English laws; delegated to watch, to
check, and to avert every dangerous innovation, to propose, to adopt, and to cherish any solid and
well-weighed improvement; bound by every tie of nature, of honor, and of religion, to transmit that
constitution and those laws to their posterity, amended if possible, at least without any derogation.
And how unbecoming must it appear in a member of the legislature to vote for a new law, who is
utterly ignorant of the old! What kind of interpretation can he be enabled to give, who is a stranger
to the text upon which he comments!

Indeed it is perfectly amazing, that there should be no other state of life, no other occupation, art,
or science, in which some method of instruction is not looked upon as requisite, except only the
science of legislation, the noblest and most difficult of any. Apprenticeships are held necessary to
almost every art, commercial or mechanical: a long course of reading and study must form the
divine, the physician, and the practical professors of the laws: but every man of superior fortune
clinks himself born a legislator. Yet Tully was of a different opinion; “it is necessary,” says he,5 “for
a senator to be thoroughly acquainted with the constitution; and this, (he declares,) is a knowledge
of the most extensive nature; a matter of science, of diligence, of reflection; without which no
senator can possibly be fit for his office.”

The mischiefs that have arisen to the public from inconsiderate alterations in our laws, are too
obvious to be called in question; and how far they have been owing to the defective education of our
senators, is a point well worthy the public attention. The common law of England has fared like
other venerable edifices of antiquity, which rash and inexperienced workmen have ventured to
new-dress and refine, with all the rage of modern improvement. Hence frequently its symmetry has
been destroyed, its proportions distorted, and its majestic simplicity exchanged for specious
embellishments and fantastic novelties. For, to say the truth, almost all the perplexed questions,
almost all the niceties, intricacies, and delays, (which have sometimes disgraced the English, as well
as other courts of justice) owe their original not to the common law itself, but to innovations that
have been made in it by acts of parliament; “overladen” (as sir Edward Coke expresses it6) “with
provisos and additions, and many times on a sudden penned or corrected by men of none or very
little judgment in law.” This great and well experienced judge declares, that in all his time he never
knew two questions made upon rights merely depending upon the common law; and warmly laments
the confusion introduced by ill-judging and unlearned legislators. “But if,” he subjoins, “acts of
parliament were after the old fashion penned, by such only as perfectly knew what the common law
was before the making of any act of parliament concerning that matter, as also how far forth former
statutes had provided remedy for former mischiefs, and defects discovered by experience; then
should very few questions in law arise, and the learned should not so often and so much perplex their

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William Blackstone: Vol. 1, Commentaries on the Laws of England (1765) Page 8

heads to make atonement and peace, by construction of law, between insensible and disagreeing
words, sentences, and provisos, as they now do.” And if this inconvenience was so heavily felt in
the reign of queen Elizabeth, you may judge how the evil is increased in later times, when the statute
book is swelled to ten times a larger bulk: unless it should be found, that the penners of our modern
statutes have proportionally better informed themselves in the knowledge of the common law.

What is said of our gentlemen in general, and the propriety of their application to the study of the
laws of their country, will hold equally strong or still stronger with regard to the nobility of this
realm, except only in the article of serving upon juries. But, instead of this, they have several
peculiar provinces of far greater consequence and concern; being not only by birth hereditary
counselors of the crown, and judges upon their honor of the lives of their brother peers, but also
arbiters of the property of all their fellow-subjects, and that in the last resort. In this their judicial
capacity they are hound to decide the nicest and most critical points of the law: to examine and
correct such errors as have escaped the most experienced sages of the profession, the lord keeper
and the judges of the courts at Westminster. Their sentence is final, decisive, irrevocable: no appeal,
no correction, not even a review, can be had: and to their determination, whatever it be, the inferior
courts of justice must conform; otherwise the rule of property would no longer be uniform and
steady.

Should a judge in the most subordinate jurisdiction be deficient in the knowledge of the law, it
would reflect infinite contempt upon himself, and disgrace upon those who employ him. And yet
the consequence of his ignorance is comparatively very trifling and small: his judgment may be
examined, and his errors rectified, by other courts. But how much more serious and affecting is the
case of a superior judge, if without any skill in the laws he will boldly venture to decide a question,
upon which the welfare and subsistence of whole families may depend! where the chance of his
judging right, or wrong, is barely equal; and where, if he chances to judge wrong, he does an injury
of the most alarming nature, an injury without possibility of redress!

Yet, vast as this trust is, it can no where be so properly reposed, as in the noble hands where our
excellent constitution has placed it: and therefore placed it, because, from the independence of their
fortune and the dignity of their station, they are presumed to employ that leisure which is the
consequence of both, in attaining a more extensive knowledge of the laws than persons of inferior
rank: and because the founders of our polity relied upon that delicacy of sentiment, so peculiar to
noble birth; which, as on the one hand it will prevent either interest or affection from interfering in
questions of right, so on the other it will bind a peer in honor, an obligation which the law esteems
equal to another's oath, to be master of those points upon which it is his birthright to decide.

The Roman pandects will furnish us with a piece of history not inapplicable to our present purpose.
Servius Sulpicius, a gentleman of the patrician order, and a celebrated orator, had occasion to take
the opinion of Quintus Mutius Scaevola, the then oracle of the Roman law; but, for want of some
knowledge in that science, could not so much as understand even the technical terms, which his
friend was obliged to make use of. Upon which Mutius Scaevola could not forbear to upbraid him
with this memorable reproof,7 “that it was a shame for a patrician, a nobleman and an orator of
causes, to be ignorant of that law in which he was so peculiarly concerned.” This reproach made so
deep an impression on Sulpicius, that he immediately applied himself to the study of the law;

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William Blackstone: Vol. 1, Commentaries on the Laws of England (1765) Page 9

wherein he arrived to that proficiency, that he left behind him about an hundred and fourscore
volumes of his own compiling upon the subject; and became, in the opinion of Cicero,8 a much more
complete lawyer than even Mutius Scaevola himself.

I would not be thought to recommend to our English nobility and gentry, to become as great lawyers
as Sulpicius; though he, together with this character, sustained likewise that of an excellent orator,
a firm patriot and a wise indefatigable senator; but the inference which arises from the story is this,
that ignorance of the laws of the land has ever been esteemed dishonorable in those, who are
entrusted by their country to maintain, to administer, and to amend them.

But surely there is little occasion to enforce this argument any farther to persons of rank and
distinction, if we of this place may be allowed to form a general judgment from those who are under
our inspection; happy, that while we lay down the rule, we can also produce the example. You will
therefore permit your professor to indulge both a public and private satisfaction, by bearing this open
testimony; that in the infancy of these studies among us, they were favored with the most diligent
attendance, and pursued with the most unwearied application, by those of the noblest birth and most
ample patrimony; some of whom are still the ornaments of this seat of learning; and others at a
greater distance continue doing honor to its institutions, by comparing our polity and laws with those
of other kingdoms abroad, or exerting their senatorial abilities in the councils of the nation at home.

Nor will some degree of legal knowledge be found in the least superfluous to persons of inferior
rank; especially those of the learned professions. The clergy in particular, besides the common
obligations they are under in proportion to their rank and fortune, have also abundant reason,
considered merely as clergymen, to be acquainted with many branches of the law, which are almost
peculiar and appropriated to themselves alone. Such are the laws relating to advowsons, institutions,
and inductions; to simony, and simoniacal contracts; to uniformity, residence, and pluralities; to
tithes and other ecclesiastical clues; to marriages (more especially of late) and to a variety of other
subjects, which are consigned to the care of their order by the provisions of particular statutes. To
understand these aright, to discern what is warranted or enjoined, and what is forbidden by law,
demands a sort of legal apprehension; which is no otherwise to be acquired, than by use and a
familiar acquaintance with legal writers.

For the gentlemen of the faculty of physic, I must frankly own that I see no special reason, why they
in particular should apply themselves to the study of the law; unless in common with other
gentlemen, and to complete the character of general and extensive knowledge; a character which
their profession, beyond others, has remarkably deserved. They will give me leave however to
suggest, and that not ludicrously, that it might frequently be of use to families upon sudden
emergencies, if the physician were acquainted with the doctrine of last wills and testaments, at least
so far as relates to the formal part of their execution.

But those gentlemen who intend to profess the civil and ecclesiastical laws, in the spiritual and
maritime courts of this kingdom, are of all men (next to common lawyers) the most indispensably
obliged to apply themselves seriously to the study of our municipal laws. For the civil and canon
laws, considered with respect to any intrinsic obligation, have no force or authority in this kingdom:
they are no more binding in England than our laws are binding at Rome. But as far as these foreign

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laws on account of some peculiar propriety, have in some particular cases, and in some particular
courts, been introduced and allowed by our laws, so far they oblige, and no farther; their authority
being wholly founded upon that permission and adoption. In which we are not singular in our
notions: for even in Holland, where the imperial law is much cultivated and its decisions pretty
generally followed, we are informed by Van Leeuwen,9 that “it receives its force from custom and
the consent of the people, tacitly or expressly given: for otherwise, he adds, we should no more be
bound by this law, than by that of the Almains, the Franks, the Saxons, the Goths, the Vandals, and
other of the ancient nations.” Wherefore, in all points in which the different systems depart from
each other, the law of the land takes place of the law of Rome, whether ancient or modern, imperial
or pontifical. And, in those of our English courts wherein a reception has been allowed to the civil
and canon laws, if either they exceed the bounds of that reception, by extending themselves to other
matters than are permitted to them; or if such courts proceed according to the decisions of those
laws, in cases wherein it is controlled by the law of the land the common law in either instance both
may, and frequently does prohibit and annul their proceedings:10 and it will not be a sufficient excuse
for them to tell the king's Courts at Westminster, that their practice is warranted by the laws of
Justinian or Gregory, or is conformable to the degrees of the Rota or imperial chamber, For which
reason it becomes highly necessary for every civilian and canonist, that would act with safety as a
judge, or with prudence and reputation as an advocate, to know in what cases and how far the
English laws have given sanction to the Roman; in what points the latter are rejected; and where
they are both so intermixed and blended together as to form certain supplemental parts of the
common law of England distinguished by the titles of the king's maritime, the king's military, and
the king's ecclesiastical law. The propriety of which inquiry the university of Oxford has for more
than a century so thoroughly seen, that in her statutes11 she appoints, that one of the three questions
to be annually discussed at the act by the jurist-inceptors shall relate to the common law; subjoining
this reason, “Quia juris civilis studiosos decet haud imperitos esse juris municipalis, et differentias
exteri patriique juris notas habere.” [“For students of civil law should not be ignorant of the
municipal law nor of the remarkable differences between their own laws and those of foreign
nations.”] And the statutes12 of the university of Cambridge speak expressly to the same effect.

From the general use and necessity of some acquaintance with the common law, the inference were
extremely easy with regard to the propriety of the present institution, in a place to which gentlemen
of all ranks and degrees resort, as the fountain of all useful knowledge. But how it has come to pass
that a design of this sort has never before taken place in the university, and the reason why the study
of our laws has in general fallen into disuse, I shall previously proceed to inquire.

Sir John Fortescue, in his panegyric on the laws of England (which was written in the reign of Henry
the sixth) puts13 a very obvious question in the mouth of the young prince, whom he is exhorting to
apply himself to that branch of learning: “why the laws of England, being so good, so fruitful, and
so commodious, are not taught in the universities, as the civil and cannon laws are?” In answer to
which he gives14 what seems, with due deference be it spoken, a very jejune and unsatisfactory
reason; being in short, that “as the proceedings at common law were in his time carried on in three
different tongues, the English, the Latin, and the French, that science must be necessarily taught in
those three several languages; but that in the universities, all sciences were taught in the Latin
tongue only;” and therefore he concludes, “that they could not be conveniently taught or studied in
our universities.” But without attempting to examine seriously the validity of this reason, (the very

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shadow of which by the wisdom of your late constitutions is entirely taken away,) we perhaps may
find out a better, or at least a more plausible, account, why the study of the municipal laws has been
banished from these seats of science, than what the learned chancellor thought it prudent to give to
his royal pupil.

That ancient collection of unwritten maxims and customs, which is called the common law, however
compounded or from whatever fountains derived, had subsisted immemorially in this kingdom; and,
though somewhat altered and impaired by the violence of the times, had in great measure weathered
the rude shock of the Norman conquest. This had endeared it to the people in general, as well
because its decisions were universally known, as because it was found to be excellently adapted to
the genius of the English nation. In the knowledge of this law consisted great part of the learning
of those dark ages; it was then taught says Mr. Selden,15 in the monasteries; in the universities, and
in the families of the principal nobility. The clergy in particular, as they then engrossed almost every
other branch of learning, so (like their predecessors the British Druids16) they were peculiarly
remarkable for their proficiency in the study of the law. Nullus clericus nisi causidicus [No
clergyman who is not a lawyer also], is the character given of them soon after the conquest by
William of Malmsbury.17 The judges therefore were usually created out of the sacred order,18 as was
likewise the case among the Normans;19 and all the inferior offices were supplied by the lower
clergy, which has occasioned their successors to be denominated clerks to this day.

But the common law of England, being not committed to writing; but only handed down by
tradition, use, and experience, was not so heartily relished by the foreign clergy; who came over
hither in shoals during the reign of the conqueror and his two sons, and were utter strangers to our
constitution as well as our language. And an accident, which soon after happened, had nearly
completed its ruin. A copy of Justinian's pandects, being newly20 discovered at Amalfi, soon brought
the civil law into vogue all over the west of Europe, where before it was quite laid aside21 and in a
manner forgotten; though some traces of its authority remained in Italy22 and the eastern provinces
of the empire.23 This now became in a particular manner the favorite of the popish clergy, who
borrowed the method and many of the maxims of their canon law from this original. The study of
it was introduced into several universities abroad, particularly that of Bologna; where exercises were
performed, lectures read, and degrees conferred in this faculty, as in other branches of science: and
many nations on the continent, just then beginning to recover from the convulsions consequent upon
the overthrow of the Roman empire, and settling by degrees into peaceable forms of government,
adopted the civil law, (being the best written system then extant) as the basis of their several
constitutions; blending and interweaving it among their own feudal customs, in some places with
a more extensive, in others a more confined authority.24

Nor was it long before the prevailing mode of the times reached England. For Theobald, a Norman
abbot, being elected to the see of Canterbury,25 and extremely addicted to this new study, brought
over with him in his retinue many learned proficients therein; and among the rest Roger surnamed
Vacarius, whom he placed in the university of Oxford,26 to teach it to the people of this country. But
it did not meet with the same easy reception in England, where a mild and rational system of laws
had been established, as it did upon the continent; and, though the monkish clergy (devoted to the
will of a foreign primate) received it with eagerness and zeal, yet the laity, who were more interested
to preserve the old constitution, and had already severely felt the effect of many Norman

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innovations, continued wedded to the use of the common law. King Stephen immediately published
a proclamation,27 forbidding the study of the laws, then newly imported from Italy; which was
treated by the monks28 as a piece of impiety, and, though it might prevent the introduction of the
civil law process into our courts of justice, yet did not hinder the clergy from reading and teaching
it in their own schools and monasteries.

From this time the nation seems to have been divided into two parties; the bishops and clergy, many
of them foreigners, who applied themselves wholly to the study of the civil and canon law, which
now came to be inseparably interwoven with each other; and the nobility and laity, who adhered
with equal pertinacity to the old common law: both of them reciprocally jealous of what they were
unacquainted with, and neither of them perhaps allowing the opposite system that real merit which
is abundantly to be found in each. This appears, on the one hand, from the spleen with which the
monastic writers29 speak of our municipal laws upon all occasions; and, on the other, from the firm
temper which the nobility showed at the famous parliament of Merton: when the prelates endeavored
to procure an act, to declare all bastards legitimate in case the parents intermarried at any time
afterwards; alleging this only reason, because holy church (that is, the canon law) declared such
children legitimate: but “all the earls and barons (says the parliament roll30) with one voice
answered, that they would not change the laws of England, which had hitherto been used and
approved.” And we find the same jealousy prevailing above a century afterwards,31 when the nobility
declared with a kind of prophetic spirit, “that the realm of England has never been unto this hour,
neither by the consent of our lord the king and the lords of parliament shall it ever be, ruled or
governed by the civil law.”32 And of this temper between the clergy and laity many more instances
might be given.

While things were in this situation, the clergy, finding it impossible to root out the municipal law,
began to withdraw themselves by degrees from the temporal courts: and to that end, very early in
the reign of king Henry the third, episcopal constitutions were published,33 forbidding all
ecclesiastics to appear as advocates in foro saeculari [in the secular court]: nor did they long
continue to act as judges there, not caring to take the oath of office which was then found necessary
to be administered, that they should in all things determine according to the law and custom of this
realm;34 though they still kept possession of the high office of chancellor, an office then of little
juridical power; and afterwards, as its business increased by degrees, they modeled the process of
the court at their own discretion.

But wherever they retired and wherever their authority extended, they carried with them the same
zeal to introduce the rules of the civil, in exclusion of the municipal law. This appears in a particular
manner from the spiritual courts of all denominations, from the chancellor's courts in both our
universities, and from the high court of chancery before mentioned; in all of which the proceedings
are to this day in a course much conformed to the civil law: for which no tolerable reason can be
assigned, unless that these courts were all under the immediate direction of the popish ecclesiastics,
among whom it was a point of religion to exclude the municipal law; pope Innocent the fourth
having forbidden35 the very reading of it by the clergy because its decisions were not founded on the
imperial constitutions, but merely on the customs of the laity. And if it be considered, that our
universities began about that period to receive their present form of scholastic discipline; that they
were then, and continued to be till the time of the reformation, entirely under the influence of the

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popish clergy; (sir John Mason the first protestant, being also the first lay, chancellor of Oxford) this
will lead us to perceive the reason, why the study of the Roman laws was in those days of bigotry36
pursued with such alacrity in these seats of learning; and why the common law was entirely
despised, and esteemed little better than heretical.

And, since the reformation many causes have conspired to prevent its becoming a part of academical
education. As, first, long usage and established custom; which, as in everything else, so especially
in the forms of scholastic exercise, have justly great weight and authority. Secondly, the real
intrinsic merit of the civil law, considered upon the footing of reason and not of obligation, which
was well known to the instructors Of our youth and their total ignorance of the merit of the common
law, though its equal at least, and perhaps an improvement on the other. But the principal reason of
all, that has hindered the introduction of this branch of learning, is, that the study of the common
law, being banished from hence in the times of popery, has fallen into a quite different channel, and
has hitherto been wholly cultivated in another place. But as the long usage and established custom,
of ignorance of the laws of the land, begin now to be thought unreasonable; and as by these means
the merit of those laws will probably be more generally known; we may hope that the method of
studying them will soon revert to its ancient course, and the foundations at least of that science will
be laid in the two universities; without being exclusively confined to the channel which it fell into
at the times I have just been describing.

For, being then entirely abandoned by the clergy, a few stragglers excepted, the study and practice
of it devolved of course into the hands of laymen: who entertained upon their parts a most hearty
aversion to the civil law,37 and made no scruple to profess their contempt, nay even their ignorance38
of it, in the most public manner. But still, as the balance of learning was greatly on the side of the
clergy, and as the common law was no longer taught, & formerly, in any part of the kingdom, it must
have-been subjected to many inconveniences, and perhaps would have been gradually lost and
overrun by the civil, (a suspicion well justified from the frequent transcripts of Justinian to be met
within Bracton and Fleta) had it not been for a peculiar incident, which happened at a very critical
time, and contributed greatly to its support.

The incident which I mean was the fixing the court of common pleas, the grand tribunal for disputes
of property, to be held in one certain spot; that the seat of ordinary justice might be permanent and
notorious to all the nation. Formerly that, in conjunction with all the other superior courts, was held
before the king's capital justiciary of England, in the aula regis [King's court], or such of his palaces
wherein his royal person resided; and removed with his household from one end of the kingdom to
the other. This was found to occasion great inconvenience to the suitors; to remedy which it was
made an article of the great charter of liberties, both that of king John and king Henry the third,39
that “common pleas should no longer follow the king's court, but be held in some certain place:” in
consequence of which they have ever since been held (a few necessary removals in times of the
plague excepted) in the palace of Westminster only. This brought together the professors of the
municipal law, who before were dispersed about the kingdom, and formed them into an aggregate
body; whereby a society was established of persons, who, (as Spelman40 observes) addicting
themselves wholly to the study of the laws of the land, and no longer considering it as a mere
subordinate science for the amusement of leisure hours, soon raised those laws to that pitch of
perfection, which they suddenly attained under the auspices of our English Justinian, king Edward

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the first.

In consequence of this lucky assemblage, they naturally fell into a kind of collegiate order, and,
being excluded from Oxford and Cambridge, found it necessary to establish a new university of their
own. This they did by purchasing at various times certain houses (now called the inns of court and
of chancery) between the city of Westminster, the place of holding the king's courts, and the city of
London; for advantage of ready access to the one, and plenty of provisions in the other.41 Here
exercises were performed, lectures read, and degrees were at length conferred in the common law,
as at other universities in the canon and civil. The degrees were those of barristers (first styled
apprentices42 from apprendre, to learn) who answered to our bachelors: as the state and degree of
a sergeant,43 servientis ad legem [a sergeant at law], did to that of doctor.

The crown seems to have soon taken under its protection this infant seminary of common law; and,
the more effectually to foster and cherish it, king Henry the third in the Nineteenth year of his reign
issued out an order directed to the mayor and sheriffs of London, commanding that no regent of any
law schools within that city should for the future teach law therein.44 The word, law, or leges, being
a general term, may create some doubt at this distance of time whether the teaching of the civil law,
or the common, or both, is hereby restrained. But in either case it tends to the same end. If the civil
law only is prohibited, (which is Mr. Selden's45 opinion) it is then a retaliation upon the clergy, who
had excluded the common law from their seats of learning. If the municipal law be also included in
the restriction, (as sir Edward Coke46 understands it, and which the words seem to import) then the
intention is evidently this; by preventing private teachers within the walls of the city, to collect all
the common lawyers into the one public university, which was newly instituted in the suburbs.

In this juridical university (for such it is insisted to have been by Fortescue47 and sir Edward Coke48)
there are two sorts of collegiate houses; one called inns of chancery, in which the younger students
of the law were usually placed, “learning and studying,” says Fortescue,49 “the originals and as it
were-the elements of the law; who profiting therein, as they grew to ripeness so were they admitted
into the greater inns of the same study, called the inns of court.” And in these inns of both kinds, he
goes on to tell us, the knights and barons, with other grandees and noblemen of the realm, did use
to place their children, though they did not desire to have them thoroughly learned in the law, or to
get their living by its practice: and that in his time there were about two thousand students at these
several inns, all of whom he informs us were filii nobilium, or gentlemen born.”

Hence it is evident, that (though under the influence of the monks our universities neglected this
study, yet) in the time of Henry the sixth it was thought highly necessary and was the universal
practice, for the young nobility and gentry to be instructed in the originals and elements of the laws.
But by degrees this custom has fallen into disuse; so that in the reign of queen Elizabeth sir Edward
Coke50 does not reckon above a thousand students, and the number at present is very considerably
less. Which seems principally owing to these reasons; first because the inns of chancery, being now
almost totally filled by the inferior branch of the profession, are neither commodious nor proper for
the resort of gentlemen of any rank or figure; so that there are very rarely any young students entered
at the inns of chancery; secondly, because in the inns of court all sorts of regimen and academical
superintendence, either with regard to morals or studies, are found impracticable and therefore
entirely neglected; lastly, because persons of birth and fortune, after having finished their usual

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courses at the universities, have seldom leisure or resolution sufficient to enter upon a new scheme
of study at a new place of instruction. Wherefore few gentlemen now resort to the inns of court, but
such for whom the knowledge of practice is absolutely necessary; such I mean as are intended for
the profession: the rest of our gentry, (not to say our nobility also) having usually retired to their
estates, or visited foreign kingdoms, or entered upon public life, without any instruction in the laws
of the land, and indeed with hardly any opportunity of gaining instruction, unless it can be afforded
them in these seats of learning.

And that these are the proper places for affording assistances of this kind to gentlemen of all stations
and degrees, cannot (I think) with any color of reason be denied. For not one of the objections,
which are made to the inns of court and chancery, and which I have just now enumerated, will hold
with regard to the universities. Gentlemen may here associate with gentlemen of their own rank and
degree. Nor are their conduct and studies left entirely to their own discretion; but regulated by a
discipline so wise and exact, yet so liberal, so sensible and manly, that their conformity to its rules
(which does at present so much honor to our youth) is not more the effect of constraint, than of their
own inclinations and choice. Neither need they apprehend too long an avocation hereby from their
private concerns and amusements, or (what is a more noble object) the service of their friends and
their country. This study will go hand in hand with their other pursuits: it will obstruct none of them;
it will ornament and assist them all.

But if, upon the whole, there are any, still wedded to monastic prejudice, that can entertain a doubt
how far this study is properly and regularly academical, such persons I am afraid either have not
considered the constitution and design of an university, or else think very meanly of it. It must be
a deplorable narrowness of mind, that would confine these seats of instruction to the limited views
of one or two learned professions. To the praise of this age be it spoken, a more open and generous
way of thinking begins now universally to prevail. The attainment of liberal and genteel
accomplishments, though not of the intellectual sort, has been thought by our wisest and most
affectionate patrons,51 and very lately by the whole university,52 no small improvement of our
ancient plan of education: and therefore I may safely affirm that nothing (how unusual soever) is,
under due regulations improper to be taught in this place, which is proper for a gentleman to learn.
But that a science, which distinguishes the criterions of right and wrong; which teaches to establish
the one, and prevent punish, or redress the other; which employs in its theory the noblest faculties
of the soul, and exerts in its practice the cardinal virtues of the heart; a science, which is universal
in its use and extent accommodated to each individual, yet, comprehend the whole community; that
a science like this should ever have been deemed unnecessary to be studied in an university, is
matter of astonishment and concern. Surely, if it were not before an object of academical knowledge,
it was high time to make it one; and to those who can doubt the propriety of its reception among us
(if any such there be) we may return an answer in their own way; that ethics are confessedly a
branch of academical learning, and Aristotle himself has said, speaking of the laws of his own
country, that jurisprudence or the knowledge of those laws is the principal and most perfect branch
of ethics.53

From a thorough conviction of this truth, our munificent benefactor Mr. Viner, having employed
above half a century in amassing materials for new-modeling and rendering more commodious the
rude study of the laws of the land, consigned both the plan and execution of these his public-spirited

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designs to the wisdom of his parent university. Resolving to dedicate his learned labors “to the
benefit of posterity and the perpetual service of his Country,”54 he was sensible he could not perform
his resolution in a better and more effectual manner, than by extending to the youth of this place
those assistance, of which he so well remembered and so heartily regretted the want. And the sense,
which the university has entertained of this ample and most useful benefaction, must appear beyond
a doubt from their gratitude in receiving it with all possible marks of esteem;55 from their alacrity
and unexampled dispatch in carrying it into execution;56 and, above all, from the laws and
constitutions by which they have effectually guarded it from the neglect and abuse to which such
institutions are liable.57 We have seen an universal emulation, who best should understand, or most
faithfully pursue, the designs of our generous patron: and with pleasure we recollect, that those who
are most distinguished by their quality, their fortune, their station, their learning, or their experience,
have appeared the most zealous to promote the success of Mr. Viner's establishment.

The advantages that might result to the science of the law itself, when a little more attended to in
these seats of knowledge, perhaps, would be very considerable. The leisure and abilities of the
learned in these retirements might either suggest expedients, or execute those dictated by wiser
heads,58 for improving its method, retrenching its superfluities, and reconciling the little
contrarieties, which the practice of many centuries will necessarily create in any human system: a
task, which those, who are deeply employed in business and the more active scenes of the
profession, can hardly condescend to engage in. And as to the interest or (which is the same) the
reputation of the universities themselves, I may venture to pronounce, that if ever this study should
arrive to any tolerable perfection either here or at Cambridge, the nobility and gentry of this
kingdom would not shorten their residence upon this account nor perhaps entertain a worse opinion
of the benefits of academical education. Neither should it be considered as a matter of light
importance, that while we thus extend the pomoeria [bounds] of university learning, and adopt a new
tribe of citizens within these philosophical walls, we interest a very numerous and very powerful
profession in the preservation of our rights and revenues.

For I think it past dispute that those gentlemen who resort to the inns of court with a view to pursue
the profession, will find it expedient (whenever it is practicable) to lay the previous foundations of
this, as well as every other science, in one of our learned universities. We may appeal to the
experience of every sensible lawyer, whether anything can be more hazardous or discouraging than
the usual entrance on the study of the law. A raw and inexperienced youth, in the most dangerous
season of life, is transplanted on a sudden into the midst of allurements to pleasure, without any
restraint or check but what his own prudence can suggest; with no public direction in what course
to pursue his inquiries; no private assistance to remove the distresses and difficulties which will
always embarrass a beginner. In this situation he is expected to sequester himself from the world,
and by a tedious lonely process to extract the theory of law from a mass of undigested learning; or
else by an assiduous attendance on the courts to pick up theory and practice together, sufficient to
qualify him for the ordinary run of business. How little therefore is it to be wondered at, that we hear
of so frequent miscarriages; that so many gentlemen of bright imaginations, grow weary of so
unpromising a search,59 and addict themselves wholly to amusements, or other less innocent
pursuits; and that so many persons of moderate capacity confuse themselves at first setting out, and
continue ever dark and puzzled during the remainder of their lives.

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The evident want of some assistance in the rudiments of legal knowledge has given birth to a
practice, which, if ever it had grown to be general, must have proved of extremely pernicious
consequence. I mean the custom by some so very warmly recommended, of dropping all liberal
education, as of no use to students in the law: and placing them, in its stead, at the desk of some
skillful attorney; in order to initiate them early in all the depths of practice, and render them more
dexterous in the mechanical part of business. A few instances of particular persons, (men of
excellent learning, and unblemished integrity,) who, in spite of this method of education, have shone
in the foremost ranks of the bar, have afforded some kind of sanction to this illiberal path to the
profession, and biased many parents, of short-sighted judgment in its favor: not considering, that
there are some geniuses, formed to overcome all disadvantages, and that from such particular
instances no general rules can be formed; nor observing, that those very persons have frequently
recommended by the most forcible of all examples, the disposal of their own offspring, a very
different foundation of legal studies, a regular academical education. Perhaps too, in return, I could
now direct their eyes to our principal seats of justice, and suggest a few hints in favor of university
learning:60 . . . but in these all who hear me, I know, have already prevented me.

Making therefore due allowance for one or two shining exceptions, experience may teach us to
foretell that a lawyer thus educated to the bar, in subservience to attorneys and solicitors,61 will find
he has begun at the wrong end. If practice be the whole he is taught practice must also be the whole
he will ever know: if he be uninstructed in the elements and first principles upon which the rule of
practice is founded, the least variation from established precedents will totally distract and bewilder
him: ita lex scripta est62 [so the law is written] is the utmost his knowledge will arrive at; he must
never aspire to form, and seldom expect to comprehend, any arguments drawn a priori [beforehand],
from the spirit of the laws and the natural foundations of justice.

Nor is this all; for (as few persons of birth, or fortune, or even of scholastic education, will submit
to the drudgery of servitude and the manual labor of copying the trash of an office) should this
infatuation prevail to any considerable degree, we must rarely expect to see a gentleman of
distinction or learning at the bar. And what the consequence may be, to have their interpretation and
enforcement of the laws (which include the entire disposal of our properties, liberties, and lives) fall
wholly into the hands of obscure or illiterate men, is a matter of very public concern.

The inconveniences here pointed out can never be effectually prevented, but by making academical
education a previous step to the profession of the common law, and at the same time making the
rudiments of the law a part of academical education. For sciences are of a sociable disposition, and
flourish best in the neighborhood of each other: nor is there any branch of learning, but may be
helped and improved by assistance drawn from other arts. If therefore the student in our laws has
formed both his sentiments and style, by perusal and imitation of the purest classical writers, among
whom the historians and orators will best deserve his regard; if he can reason with precision, and
separate argument from fallacy, by the clear simple rules of pure unsophisticated logic; if he can fix
his attention, and steadily pursue truth through any the most intricate deduction, by the use of
mathematical demonstrations; if he has enlarged his conceptions of nature and art, by a view of the
several branches of genuine, experimental philosophy; if he has impressed on his mind the sound
maxims of the law of nature, the best and most authentic foundation of human laws; if, lastly he has
contemplated those maxims reduced to a practical system in the laws of imperial Rome; if he has

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done this or any part of it, (though all maybe easily done under as able instructors as ever graced any
seats of learning) a student thus qualified may enter upon the study of the law with incredible
advantage and reputation. And if, at the conclusion, or during the acquisition of these
accomplishments, he will afford himself here a year or two's farther leisure, to lay the foundation
of his future labors in a solid scientific method, without thirsting too early to attend that practice
which it is impossible he should rightly comprehend, he will afterwards proceed with the greatest
ease, and will unfold the most intricate points with an intuitive rapidity and clearness.

I shall not insist upon such motives as might be drawn from principles of economy, and are
applicable to particulars only: I reason upon more general topics. And therefore to the qualities of
the head, which I have just enumerated, I cannot but add those of the heart; affectionate loyalty to
the king, a zeal for liberty and the constitution, a sense of real honor, and well grounded principles
of religion; as necessary to form a truly valuable English lawyer, a Hyde, a Hale, or a Talbot. And,
whatever the ignorance of some, unkindness of others, may have heretofore untruly suggested,
experience will warrant us to affirm, that these endowments of loyalty and public spirit, of honor
and religion, are no where to be found in more high perfection than in the two universities of this
kingdom.

Before I conclude, it may perhaps be expected, that I lay before you a short and general account of
the method I propose to follow, in endeavoring to execute the trust you have been pleased to repose
in my hands. And in these solemn lectures, which are ordained to be read at the entrance of every
term, (more perhaps to do public honor to this laudable institution, than for the private instruction
of individuals63) I presume it will best answer the intent of our benefactor and the expectation of this
learned body, if I attempt to illustrate at times such detached titles of the law, as are the most easy
to be understood, and most capable of historical or critical ornament. But in reading the complete
course, which is annually consigned to my care, a more regular method will be necessary; and, till
a better is proposed, I shall take the liberty to follow the same that I have already submitted to the
public.64 To fill up and finish that outline with propriety and correctness, and to render the whole
intelligible to the uninformed minds of beginners, (whom we are too apt to suppose acquainted with
terms and ideas, which they never had opportunity to learn,) this must be my ardent endeavor,
though by no means my promise, to accomplish. You will permit me however very briefly to
describe, rather what I conceive an academical expounder of the laws should do, than what I have
ever known to be done.

He should consider his course as a general map of the law, marking out the shape of the country, its
connections and boundaries, its greater divisions and principalities: it is not his business to describe
minutely the subordinate limits, or to fix the longitude and latitude of every inconsiderable hamlet.
His attention should be engaged, like that of the readers in Fortescue's inns of chancery, “in tracing
out the originals, and as it were the elements of the law.” For if, as Justinian65 has observed, the
tender understanding of the student be loaded at the first with a multitude and variety of matter, it
will either occasion him to desert his studies, or will carry him heavily through them, with much
labor, delay, and despondence. These originals should be traced to their fountains, as well as our
distance will permit; to the customs of the Britons and Germans, as recorded by Caesar and Tacitus;
to the codes of the northern nations on the continent, and more especially to those of our own Saxon
princes; to the rules of the Roman law either left here in the days of Papinian, or imported by

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William Blackstone: Vol. 1, Commentaries on the Laws of England (1765) Page 19

Vacarius and his followers; but, shove all, to that inexhaustible reservoir of legal antiquities and
learning, the feudal law, or, as Spelman66 has entitled it, the law of nations in our western orb. These
primary rules and fundamental principles should be weighed and compared with the precepts of the
law of nature, and the practice of other countries; should be explained by reasons, illustrated by
examples, and confirmed by undoubted authorities; their history should be deduced, their changes
and revolutions observed, and it should be shown how far they are connected with, or have at
anytime been affected by, the civil transactions of the kingdom.

A plan of this nature, if executed with care and ability, cannot fail of administering a most useful
and rational entertainment to students of all ranks and professions; and yet it must be confessed that
the study of the laws is not merely a matter of amusement; for, as a very judicious writer67 has
observed upon a similar occasion, the learner “will be considerably disappointed if he looks for
entertainment without the expense of attention.” An attention, however, not greater than is usually
bestowed in mastering the rudiments of other sciences, or sometimes in pursuing a favorite
recreation or exercise. And this attention not equally necessary to be exerted by every student upon
every occasion. Some branches of the law, as the formal process of civil suits, and the subtle
distinctions incident to landed property, which are the most difficult to be thoroughly understood,
are the least worth the pains of understanding, except to such gentlemen as intend to pursue the
profession. To others I may venture to apply, with a slight alteration, the words of sir John
Fortescue,68 when first his royal pupil determines to engage in this study. “It will not be necessary
for a gentleman as such, to examine with close application the critical niceties of the law. It will
fully be sufficient, and he may well enough be denominated. A lawyer, if under the instruction of
a master, he traces up the principles and grounds of the law, even to their original elements.
Therefore in a very short period, and with very little labor, he may be sufficiently informed in the
laws of his county, if he will but apply his mind in good earnest to receive and apprehend them. For,
though such knowledge as is necessary for a judge is hardly to be acquired by the lucubrations of
twenty years, yet, with a genius of tolerable perspicacity, that knowledge which is fit for a person
of birth or condition may be learned in a single year, without neglecting his other improvements.”

To the few therefore (the very few I am persuaded) that entertain such unworthy notions of an
university, as to suppose it intended for mere dissipation of thought; to such as mean only to while
away the awkward interval from childhood to twenty-one, between the restraints of the school and
the licentiousness of politer life, in a calm middle state of mental and of moral inactivity; to these
Mr. Viner gives no invitation to an entertainment which they never can relish. But to the long and
illustrious train of noble and ingenuous youth, who are not more distinguished among us by their
birth and possessions, than by the regularity of their conduct and their thirst after useful knowledge,
to these our benefactor has consecrated the fruits of a long and laborious life, worn out in the duties
of his calling; and will joyfully reflect (if such reflections can be now the employment of his
thoughts) that he could not more effectually have benefitted posterity, or contributed to the service
of the public, than by founding an institution which may instruct the rising generation in the wisdom
of our civil polity, and inspire them with a desire to be still better acquainted with the laws and
constitution of their country.

NOTES

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William Blackstone: Vol. 1, Commentaries on the Laws of England (1765) Page 20

* Read in Oxford, at the opening of the Vinerian lectures: 25 Oct. 1758.

1. De Legg. 2. 23.
2. Montesq. Esp. L. l. 11. C. 5.
3. Facultas ejus, quod cuique facere libet, nisi quid vi, aut jure, prohibetur. [Its essence is the power of doing whatsoever
we please, unless where authority or law forbids.] Inst. 1. 3. 1.
4. Education, §. 187.
5. De Legg. 3.18. Est senatori necessarium nosse rempublicam; idque late patet: - genus hoc omne scientiae, diligentiae,
memoriae est; sine quo paratus esse senator nullo pacto potest. [It is necessary for a senator to be thoroughly acquainted with
the constitution; and this is a knowledge of the most extensive nature; a matter of science, of diligence, of reflection; without
which no senator can possibly be fit for his office.]
6. 2 Rep. pref.
7. Ff 1.2.2.§. 43. Turpe esse patricio, et nobili, et causus oranti, jus in quo versaretur ignorare. [It was a shame for a
patrician, a nobleman, and an orator of causes, to be ignorant of that law in which he was so peculiarly concerned.]
8. Brut. 41.
9. Dedicatio corporis juris civilis. [Dedication to the body of civil law.] Edit. 1663.
10. Hale Hist. C. L. c. 2. Selden in Fletam. 5 Rep. Caudrey's case. 2Inst. 599.
11. Tit. VII. Sect. a. §. 2.
12. Doctor legum mox a doctoratu dabit operam legibus Angliae, ut non sit imperitus earum legum quas habet sua patria,
et differentias exteri patriique juris noscat. [A doctor of laws, having taken his degree, should study the laws of England, that
he be not unskilled in those of his own country, nor be ignorant of the essential differences between them and foreign laws.]
Stat. Eliz. R C. 14. Cowel. Institut. in proemio.
13. c. 47.
14. c. 48.
15. in Fletam. 7.7.
16. Caesar de bello Gal 6.12.
17. de gest. reg. l. 4.
18. Dugdale Orig. jurid. c. 8.
19. Les juges sont sages personnes et autentiques - sicome les archevesques, evesques, les chanoines des eglises
cathedraulx, et les autres personnes qui ont dignitez in saincte eglise; les abbez, les prieurs conventaulx, et les gouverneurs
des eglises, &c. [The judges are persons of wisdom and authority - such as archbishops, bishops, canons of cathedral
churches, and other dignitaries of holy church, the abbeys, priors of convents and church governors, etc.] Grand Coustumier,
ch. 9.
20. circ. A D. 1130.
21. LL. Wisigoth. 2. 1, 9.
22. Capitular. Hlubov. Pli. 4. 102.
23. Selden in Fletam. 5.5,
24. Domat's treatise of law, c. 13.§. 9. Epistol. Innocent. IV. in M. Paris ed. A. D. 1254.
25. A. D. 1138.

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William Blackstone: Vol. 1, Commentaries on the Laws of England (1765) Page 21

26. Gervas. Dorobern. Act. Pontif Gartuar. cd. 1665.

27. Reg. Bacon citat. per Selden in Fletam. 76. in Fortesc. c. 33. & 8 Rep. Pref.
28. Joan. Sarisburiens. Polycrat. 8. 22.
29. Idem, ibid. 5.16 Polydor, Virgil. Hist. l. 9.
30. Stat. Merton. 20 Hen. III. e. 9. Et omnes comites et barones una voce responderunt, quod nolunt leges Angliae mutare,
quae hucusque usitatae sunt et approbatae. [All the earls and barons with one voice answered, that they would not change
the laws of England, which had hitherto been used and approved.]
31. 11 Ric. 11.
32. Selden. Jan. Anglor. l. 2. §. 4.3. in Fortese. c. 33.
33. Spelman. Council. A. D. 1217. Wilkins, vol. 1. p. 574. 599
34. Selden in Fletam. 9. 3.
35. M. Paris ad A. D. 1254.
36. There cannot be a stranger instance of the absurd and superstitious veneration that was paid to these laws, than that the
most learned writers of the times thought they could not form a perfect character, even of the blessed virgin, without making
her a civilian and a canonist. Which Albertus Magnsus, the renowned dominican doctor of the thirteenth century, thus proves
in his Summa de laudibus Christiferae Virginis (divinum magis quam humanum opus) [Perfections of the Christ-bearing
Virgin (a work more divine than human)]. “Item quod jura civilia, et leges, et decreta scivit in summo, probatur hoc modo;
sapientia advocati manifestatur in tribus; unum quod obtineat omnia contra judicem justum et sapientem; secundo, quod
contra adversarium astutum et sagacem; tertio, quod in causa desperata : sed beatissima virgo, contra judicem
sapientissimum, Dominum; contra adversarium callidissimum, diabolum; in causa nostra desperata; sententiam optatam
obtinuit.” [“Likewise that she had a perfect knowledge of civil rights, laws, and decrees is thus proved: — the wisdom of an
advocate is manifested in three things — first, that he have a prevailing influence before a wise and just judge; secondly,
against a subtle and sagacious adversary; and thirdly, in a desperate cause: The most blessed Virgin obtained the desired
judgment from the most wise judge, the Lord — against our most cunning enemy, the devil — in our desperate cause.”] To
which an eminent franciscan, two centuries afterwards, Bernardinus de Busti (Mariale, part. 4. serm. 9.) very gravely subjoins
this note. “Nec videtur incongruum mulieres habere peritiam juris. Legitur enim de uxore Joannis Andrea glossatoris, quod
tantam peritiam in utroque jure habuit, ut publice in scholis legere ausa sit.” [“Nor does a knowledge of the law seem
inconsistent with the female character. For we read that the wife of John Andrew the Lexicographer, was so skilled both in
the common and municipal law, that she ventured to deliver lectures on both publicly in the schools.”]
37. Fortesc. de laud. LL. C. 25.
38. This remarkably appeared in the case of the abbot of Torun. M. 22. Edw. 111.24. who had caused a certain prior to be
summoned to answer at Avignon for erecting an oratory contra inhibitiomem novi operis [contrary to the prohibition of a new
work]; by which words Mr. Selden, (in Flet. 8. 5.) very justly understands to be meant the title de novi operis numtiatione
[concerning the denunciation of a new work] both in the civil and canon laws, (Ff. 39. 1. C. 8.11. and Decretal. not Extrav.
5. 32.) whereby the erection of any new buildings in prejudice of more ancient ones was prohibited. But Skipwith the king's
sergeant and afterwards chief baron of the exchequer, declares them to be flat nonsense; In ceux parolx,”contra inhibitionem
novi operis” ny ad pas entendment [In these words, “contrary to the prohibition of a new work,” there is no meaning], and
justice Schardelow mends the matter but little by informing him, that they signify a restitution in their law: for which reason
he very sagely to pay no sort of regard to them. “Ceo n'est que un restitution en leur ley, pur que a ceo n'avemus regard, &c.”
[“This is but a restitution in their law, therefore we shall pay no regard to it.”]
39. p c. 11.
40. Glossar. 334.
41. Fortesc. c. 48.
42. Apprentices or barristers seem to have been first appointed by an ordinance of king Edward the first in parliament, in
the 20th year of his reign, (Spelm. Glos. 37. Dugdale, Orig. jurid. 55.)

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William Blackstone: Vol. 1, Commentaries on the Laws of England (1765) Page 22

43. The first mention which I have met with in our lawbooks of sergeants or countors, is in the statute of Westm. 1.3 Edw.
I. c. 29. and in Horn's Mirror, e l. § .10. c. 2.§.5. c. 3.§.1. in the same reign. But M. Paris in his life of John II, abbot of St.
Alban's, which he wrote in 1255,39 Hen. 111. speaks of advocates at the common law, or countors, (quos banci narratores
vulgariter appellamus) [whom we commonly call bench reporters] as of an order of men well known. And we have an
example of the antiquity of the coif in the same author's history of England, A D. 1259, in the ease of one William de Bussy;
who, being called to account for his great knavery and malpractices, claimed the benefit of his orders or clergy. which till then
remained an entire secret; and to that end, Voluit ligamenta coifae suae solvere ut palam monstraret se tonsuram habere
clericalem; sed non est permissus. - Satelles vero eum arripiens, non per coifae ligamina sed per guttur eum apprehendens,
traxit ad carcerem. [He wished to untie the strings of his coif that he might prove to all his having the clerical tonsure; but
this was not allowed - Then an officer seizing him, not by the strings of his coif but by his throat, dragged him to prison.]
And hence sir H. Spelman conjectures, (Glossar. 335.) that coifs were introduced to hide the tonsure of such renegade clerks,
as were still tempted to remain in the secular courts in the quality of advocates or judges, notwithstanding their prohibition
by canon.
44. Ne aliquis scholas regens de legibus in eadem civitate de caetero ibidem leges doceat. [No regent of any law schools
within that city should for the future teach law therein.]
45. in Flet. 8. 2.
46. 2 Inst. proem.
47. c. 49.
48. 3 Rep. pref.
49. 3 Rep pref .
50. Ibid.
51. Lord chancellor Clarendon, in his dialogue of education, among his tracts, p. 325. appears to have been very solicitous,
that it might be made “a part of the ornament of our learned academies to teach the qualities of riding, dancing and fencing,
at those hours when more serious exercises should be intermitted.”
52. By accepting in full convocation the remainder of lord Clarendon's history from his noble descendants, on condition to
apply the profits arising from its publication to the establishment of a manage in the university.

53. Τελεια μαλιστα αζειη, οτι της τελειας αρειης χζησις εσι. [Jurisprudence or the knowledge of laws is the principal
and most perfect branch of ethics.] Ethic ad. Nichmach. l.5. c. 3.
54. See the preface to the eighteenth volume of his abridgment.
55. Mr. Viner is enrolled among the public benefactor of the university by decree of convocation.
56. Mr. Viner died June 5, 1756. His effects were collected and settled, near a volume of his work printed, almost the whole
disposed of, and the accounts made up in a year and a half from his decease, by the very diligent and worthy administrators
with the will annexed,(Dr. West and Dr. Good of Magdalane, Dr. Halley of Oriel, Mr. Buckler of All Souls, and Mr. Betts
of University college) to whom that care was consigned by the university. Another half year was employed in considering
and settling a plan of the proposed institution, and in framing the statutes thereupon, which were finally confirmed by
convocation on the 3d of July 1756. The professor was elected on the 20th of October following, and two scholars on the
succeeding day. And, lastly, it was agreed at the annual audit in 1761, to establish a fellowship; and a fellow was accordingly
elected in January following. ) The residue of this fund, arising from the sale of Mr. Viner's abridgment, will probably be
sufficient hereafter to found another fellowship and scholarship, or three more scholarships as shall be thought most
expedient.
57. The statutes are in substance as follows:
1. THAT the accounts of this benefaction be separately kept, and annually audited by the delegates of accounts and
professor, and afterwards reported to convocation.
2. THAT a professorship of the laws of England be established, with a salary of two hundred pounds per annum; the
professor to be elected by convocation, and to be at the time of his election at least a master of arts or bachelor of civil

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William Blackstone: Vol. 1, Commentaries on the Laws of England (1765) Page 23

law in the university of Oxford, of ten years standing from his matriculation; and also a barrister at law of four years
standing at the bar.
3. THAT such professor (by himself, or by deputy to be previously approved by convocation) do read one solemn
public lecture on the laws of England and in the English language, in every academical term, at certain stated times
previous to the commencement of the common law term; or forfeit twenty pounds for every omission to Mr. Viner's
general fund: and also (by himself, or by deputy to be approved, if occasional, by the vice-chancellor and proctors;
or if permanent, both the cause and the deputy to be annually approved by convocation) do yearly read one complete
course of lectures on the laws of England, and m the English language, consisting of sixty lectures at the least; to be
read during the university term time, with such proper internals that not more than four lectures may fall within any
single week: that the professor do give a month's notice of the time when the-course is to begin, and do read gratis
to the scholars of Mr. Viner's foundation: but may demand of other auditor's such gratuity as shall be settled from time
to rime by decree of convocation; and that, for every of the said sixty lectures omitted, the professor on complaint
made to the vice-chancellor within the year, do forfeit forty shillings to Mr. Viner's general fund; the proof of having
performed his duty to lie upon the said professor.
4. THAT every professor do continue in his office during life, unless in case of such misbehavior as shall amount to
bannition by the university statutes; or unless he deserts the profession of the law by betaking himself to another
profession; or unless, after one admonition by the vice-chancellor and proctors for notorious neglect, he is guilty of
another flagrant omission: in any of which cases he be deprived by the vice-chancellor, with consent of the house of
convocation.
5. That such a number of fellowships with a stipend of fifty pounds per annum, and scholarships with a stipend of
thirty pounds, be established, as the convocation shall from time to time ordain, according to the state of Mr. Viner's
revenues.
6. THAT every fellow be elected by convocation, and at the time of election be unmarried, and at least a master of
arts or bachelor of civil law, and a member of some college or hall in the university of Oxford: the scholars of this
foundation or such as have been scholars (if qualified and approved of by convocation) to have the preference: that,
if not a barrister when chosen, he be called to the bar within one year after his election; but do reside in the university
two months in every year, or in case of non-residence do forfeit the stipend of that year to Mr. Viner's general fund.
7. That every scholar be elected by convocation, and at the time of election be unmarried, and a member of some
college or hall in the university of Oxford, who shall have been matriculated twenty-four calendar months at the least:
that he do take the degree of bachelor of civil law with all convenient speed; (either proceeding in arts or otherwise)
and previous to his taking the same, between the second and eighth year from his matriculation, be found to attend
two courses of the professor's lectures, to be certified under the professor's hand and within one year after taking the
same to be called to the bar: that he do annually reside six months till he is of four years standing, and four months
from that time till he is master of arts or bachelor of civil law: after which he be hound to reside two months in every
year; or, in case of non-residence, do forfeit the stipend of that year to Mr. Viner's general fund.
8. That the scholarships do become void in case of non-attendance on the professor, or not taking the degree of
bachelor of civil law, being duly admonished so to do by the vice-chancellor and proctors: and that both fellowships
and Scholarships do expire at the end often years after each respective election; and become void in case of gross
misbehavior, non-residence for two years together, marriage, not being called to the bar within the time before limited
(being duly admonished so to be by the vice-chancellor, and proctors) or deserting the profession of the law by
following any other profession: and that in any of these cases the vice-chancellor, with consent of convocation, do
declare the place actually void.
9. That in case of any vacancy of the professorship, fellowships, or scholarships, the profits of the current year be
ratably divided between the predecessor or his representatives, and the successor; and that a new election be had
within one month afterwards, unless by that means the time of election shall fall within any vacation, in which case
it be deferred to the first week in the next full term. And that before any convocation shall be held for such election,
or for any other matter relating to Mr. Viner's benefaction, ten days public notice be given to each college and hall
of the convocation, and the cause of convoking it.
58. See lord Bacon's proposals and offer of a digest.
59. Sir Henry Spelman, in the preface to his glossary, has given us a very lively picture of his own distress upon this

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William Blackstone: Vol. 1, Commentaries on the Laws of England (1765) Page 24

occasion. “Emisit me mater Londinum, juris nostri capessendi gratia; cujus cum vestibulum salutassem, reperissemque
linguam peregrinam, dialectum barbaram, methodum inconcinnam, molem non ingentem solemn sed perpetuis humeris
sustinendam, excidit mihi (fateor) animus, &c.” [“My mother sent me to London to commence the study of the law; but when,
having paid my respects to the vestibule of this branch of learning I was met by a foreign language, a barbarous dialect, an
uncouth style, and a mass not only vast but always to be endured, I confess my courage failed me.”]
60. The four highest judicial offices were at that time filled by gentlemen, two of whom had been fellows of All Souls
college; another, student of Christ church; and the fourth a fellow of Trinity college, Cambridge.
61. See Kennet's Life of Somner, p 67.
62. Ff. 40. 9. 12.
63. See Lowth's Oratio Crewiana, p. 365.
64. The analysis of the laws of England, first published, A. D. 1759, and exhibiting the order and principal division of the
ensuing COMMENTARIES; which were originally submitted to the university in a private course of lectures, A, D. 1753.
65. Incipientibus nobis exponere jura populi Romani, ita videntur tradi posse commodissime, si primo levi ac simplici via
singula tradantur; alioqui, si statim ab initio rudem adhuc et infirmum animum studiosi multitudine ac varietate rerum
oneravimus, duorum alterum, aut desertorem studiorum efficiemus, aut cum magno labore, saepe etiam cum diffidentia (quae
plerumque juvenes avertit) serius ad id perducemus, ad quod, leviore via ductus, sine magno labore, et sine ulla diffidentia
maturius perduci potuisset. [To us about to expound the laws of the Romans, it seems that it may be done more
advantageously if first delivered separately and in an easy and simple manner; otherwise, if in the very beginning we burden
the mind of the student as yet unexercised and weak, with a multitude and diversity of things, we either cause him to
relinquish his studies altogether, or bring him much later, with great labor, and often with great diffidence (which very
frequently deters young men) to that point, to which, conducted by a more easy method, he might have been brought earlier,
with little trouble, and with sufficient confidence.] Inst. l. 1. 2.
66. Of parliaments. 57.
67. Dr. TayIors pref. to Elem. of civil law.
68. De laud. Leg. C. 8,

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William Blackstone: Vol. 1, Commentaries on the Laws of England (1765) Page 25

SECTION 2
Of the Nature of Laws in General

Law, in its most general and comprehensive sense, signifies a rule of action; and is applied
indiscriminately to all kinds of action, whether animate or inanimate, rational or irrational. Thus we
say, the laws of motion, of gravitation, of optics, or mechanics, as well as the laws of nature and of
nations. And it is that rule of action, which is prescribed by some superior, and which the inferior
is bound to obey.

Thus when the supreme being formed the universe, and created matter out of nothing, he impressed
certain principles upon that matter, from which it can never depart, and without which it would cease
to be. When he put that matter into motion, he established certain laws of motion, to which all
movable bodies must conform. And, to descend from the greatest operations to the smallest, when
a workman forms a clock, or other piece of mechanism, he establishes at his own pleasure certain
arbitrary laws for its direction; as that the hand shall describe a given space in a given time; to which
law as long as the work conforms, so long it continues in perfection, and answers the end of its
formation.

If we farther advance, from mere inactive matter to vegetable and animal life, we shall find them still
governed by laws; more numerous indeed, but equally fixed and invariable. The whole progress of
plants, from the seed to the root, and from thence to the seed again - the method of animal nutrition,
digestion, secretion, and all other branches of vital economy - are not left to chance, or the will of
the creature itself, but are performed in a wondrous involuntary manner, and guided by unerring
rules laid down by the great creator.

This then is the general signification of law, a rule of action dictated by some superior being: and,
in those creatures that have neither the power to think, nor to will, such laws must be invariably
obeyed, so long as the creature itself subsists, for its existence depends on that obedience. But laws,
in their more confined sense, and in which it is our present business to consider them, denote the
rules, not of action in general, but of human action or conduct: that is, the precepts by which man,
the noblest of all sublunary beings, a creature endowed with both reason and freewill, is commanded
to make use of those faculties in the general regulation of his behavior.

Man, considered as a creature, must necessarily be subject to the laws of his creator, for he is
entirely a dependent being. A being, independent of any other, has no rule to pursue, but such as he
prescribes to himself; but a state of dependence will inevitably oblige the inferior to take the will
of him, on whom he depends, as the rule of his conduct: not indeed in every particular, but in all
those points wherein his dependence consists. This principle therefore has more or less extent and
effect, in proportion as the superiority of the one and the dependence of the other is greater or less,
absolute or limited. And consequently, as man depends absolutely upon his maker for every thing,
it is necessary that he should in all points conform to his maker's will.

This will of his maker is called the law of nature. For as God, when he created matter, and endued
it with a principle of mobility, established certain rules for the perpetual direction of that motion;
so, when he created man, and endued him with freewill to conduct himself in all parts of life, he laid

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William Blackstone: Vol. 1, Commentaries on the Laws of England (1765) Page 26

down certain immutable laws of human nature, whereby that freewill is in some degree regulated
and restrained, and gave him also the faculty of reason to discover the purport of those laws.

Considering the creator only as a being of infinite power, he was able unquestionably to have
prescribed whatever laws he pleased to his creature, man, however unjust or severe. But as be is also
a being of infinite wisdom, he has laid down only such laws as were founded in those relations of
justice, that existed in the nature of things antecedent to any positive precept. These are the eternal,
immutable laws of good and evil, to which the creator himself in all his dispensations conforms; and
which he has enabled human reason to discover, so far as they are necessary for the conduct of
human actions. Such among others are these principles: that we should live honestly, should hurt
nobody, and should render to every one his due; to which three general precepts Justinian1 has
reduced the whole doctrine of law.

But if the discovery of these first principles of the law of nature depended only upon the due
exertion of right reason, and could not otherwise be obtained than by a chain of metaphysical
disquisitions, mankind would have wanted some inducement to have quickened their inquiries, and
the greater part of the world would have rested content in mental indolence, and ignorance its
inseparable companion. As therefore the creator is a being, not only of infinite power, and wisdom,
but also of infinite goodness, he has been pleased so to contrive the constitution and frame of
humanity, that we should want no other prompter to inquire after and pursue the rule of right, but
only our own self-love, that universal principle of action. For he has so intimately connected, so
inseparably interwoven the laws of eternal justice with the happiness of each individual, that the
latter cannot be attained but by observing the former; and, if the former be punctually obeyed, it
cannot but induce the latter. In consequence of which mutual connection of justice and human
felicity, he has not perplexed the law of nature with a multitude of abstracted rules and precepts,
referring merely to the fitness or unfitness of things, as some have vainly surmised; but has
graciously reduced the rule of obedience to this one paternal precept, “that man should pursue his
own true and substantial happiness.” This is the foundation of what we call ethics, or natural law.
For the several articles into which it is branched in our systems, amount to no more than
demonstrating, that this or that action tends to man's real happiness, and therefore very justly
concluding that the performance of it is a part of the law of nature; or, on the other hand, that this
or that action is destructive of man's real happiness, and therefore that the law of nature forbids it.

This law of nature, being coeval with mankind and dictated by God himself, is of course superior
in obligation to any other-It is binding over all the globe in all countries, and at all times; no human
laws are of any validity, if contrary to this: and such of them as are valid derive all their force, and
all their authority, mediately or immediately, from this original.

But in order to apply this to the particular exigencies of each individual, it is still necessary to have
recourse to reason; whose office it is to discover, as was before observed, what the law of nature
directs in every circumstance of life: by considering, what method will tend the most effectually to
our own substantial happiness. And if our reason were always, as in our first ancestor before his
transgression, clear and perfect, unruffled by passions, unclouded by prejudice, unimpaired by
disease or intemperance, the task would be pleasant and easy; we should need no other guide but
this. But every man now finds the contrary in his own experience; that his reason is corrupt, and his

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understanding full of ignorance and error.

This has given manifold occasion for the benign interposition of divine providence; which, in
compassion to the frailty, the imperfection, and the blindness of human reason, has been pleased,
at sundry times and in diverse manners, to discover and enforce its laws by an immediate and direct
revelation. The doctrines thus delivered we call the revealed or divine law, and they are to be found
only in the holy scriptures. These precepts, when revealed, are found upon comparison to be really
a part of the original law of nature, as they tend in all their consequences to man's felicity. But we
are not from thence to conclude that the knowledge of these truths was attainable by reason, in its
present corrupted state; since we find that, until they were revealed, they were hid from the wisdom
of ages. As then the moral precepts of this law are indeed of the same original with those of the law
of nature, so their Intrinsic obligation is of equal strength and perpetuity. Yet undoubtedly the
revealed law is of infinitely more authenticity than that moral system, which is framed by ethical
writers, and denominated the natural law. Because one is the law of nature, expressly declared so
to be by God himself; the other is only what, by the assistance of human reason, we imagine to be
that law. If we could be as certain of the latter as we are of the former, both would have an equal
authority; but, till then, they can never be put in any competition together.

Upon these two foundations, the law of nature and the law of revelation, depend all human laws; that
is to say, no human laws should be suffered to contradict these. There are, it is true a great number
of indifferent points, in which both the divine law and the natural leave a man at his own liberty; but
which are found necessary for the benefit of society to be restrained within certain limits. And herein
it is that human laws have their greatest force and efficacy; for, with regard to such points as are not
indifferent, human laws are only declaratory of, and act in subordination to, the former. To instance
in the case of murder; this is expressly forbidden by the divine, and demonstrably by the natural law;
and from these prohibitions arises the true unlawfulness of this crime. Those human laws that annex
a punishment to it, do not at all increase its moral guilt, or superadd any fresh obligation in foro
conscientiae [in the court of conscience] to abstain from its perpetration. Nay, if any human law
should allow or enjoin us to commit it, we are bound to transgress that human law, or else we must
offend both the natural and the divine. But with regard to matters that are in themselves indifferent,
and are not commanded or forbidden by those superior laws; such, for instance, as exporting of wool
into foreign countries; here the inferior legislature has scope and opportunity to interpose, and to
make that action unlawful which before was not so.

If man were to live in a state of nature, unconnected with other individuals, there would be no
occasion for any other laws, than the law of nature, and the law of God. Neither could any other law
possibly exist; for a law always supposes some superior who is to make it; and in a state of nature
we are all equal, without any other superior but him who is the author of our being. But man was
formed for society; and, as is demonstrated by the writers on this subject,2 is neither capable of
living alone, nor indeed has the courage to do it. However, as it is impossible for the whole race of
mankind to be united in one great society, they must necessarily divide into many; and form separate
states, commonwealths and nations, entirely independent of each other, and yet liable to a mutual
intercourse. Hence arises a third kind of law, to regulate this mutual intercourse, called “the law of
nations:” which, as none of these states will acknowledge a superiority in the other, cannot be
dictated by any; but depends entirely upon the rules of natural law, or upon mutual compacts,

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treaties, leagues, and agreements between these several communities: in the construction also of
which compacts we have no other rule to resort to, but the law of nature; being the only one to which
all the communities are equally subject: and therefore the civil law3 very justly observes, that quod
naturalis ratio inter omnes homines constituit, vocatur jus gentium. [That rule which natural reason
has dictated to all men, is called the law of nations.]

Thus much I thought it necessary to premise concerning the law of nature, the revealed law, and the
law of nations, before I proceeded to treat more fully of the principal subject of this section,
municipal or civil law; that is, the rule by which particular districts, communities, or nations are
governed; being thus defined by Justinian,4 “jus civile est quod quisque sibi populus constituit” [“the
civil law is that which every nation has established for its own government”]. I call it municipal
law, in compliance with common speech for, though strictly that expression denotes the particular
customs of one single municipium or free town, yet it may with sufficient propriety be applied to any
one state or nation, which is governed by the same laws and customs.

Municipal law, thus understood, is properly defined to be “a rule of civil conduct prescribed by the
Supreme power in a state commanding what is right, and prohibiting what is wrong.” Let us
endeavor to explain its several properties, as they arise out of this definition.

And, first, it is a rule; not a transient sudden order from a superior, to or concerning a particular
person; but something permanent, uniform and universal. Therefore a particular act of the legislature
to confiscate the goods of Titius, or to attaint him of high treason, does not enter into the idea of a
municipal law; for the operation of this act is spent upon Titius only, and has no relation to the
community in general; it is rather a sentence than a law. But an act to declare that the crime of which
Titius is accused shall be deemed high treason; this has permanency, uniformity, and universality,
and therefore is properly a rule. It is also called a rule, to distinguish it from advice or counsel,
which we are at liberty to follow or not, as we see proper, and to judge upon the reasonableness or
unreasonableness of the thing advised; whereas our obedience to the law depends not upon our
approbation, but upon the maker's will, Counsel is only matter of persuasion, law is matter of
injunction: counsel acts only upon the willing, law upon the unwilling also.

It is also called a rule, to distinguish it from a compact or agreement; for a compact is a promise
proceeding from us, law is a command directed to us. The language of a compact is, “I will, or will
not, do this;” that of a law is, “thou shall, or shalt not, do it.” It is true there is an obligation which
a compact carries with it; equal in point of conscience to that of a law, but then the original of the
obligation is different. In compacts, we ourselves determine and promise what shall be done, before
we are obliged to do it; in laws, we are obliged to act without ourselves determining or promising
anything at all. Upon these accounts law is defined to be “a rule.”

Municipal law is also “a rule of civil conduct.” This distinguishes municipal law from the natural,
or revealed; the former of which is the rule of moral conduct, and the latter not only the rule of moral
conduct, but also the rule of faith. These regard man as a creature, and point out his duty to God, to
himself, and to his neighbor, considered in the light of an individual. But municipal or civil law
regards him also as a citizen, and bound to other duties towards his neighbor, than those of mere
nature and religion: duties, which he has engaged in by enjoying the benefits of the common union:

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and which amount to no more, than that he do contribute, on his part, to the subsistence and peace
of the society.

It is likewise “a rule prescribed.” Because a bare resolution, confined in the breast of the legislator,
without manifesting itself by some external sign, can never be properly a law. It is requisite that this
resolution be notified to the people who are to obey it. But the manner in which this notification is
to be made, is matter of very great indifference. It may be notified by universal tradition and long
practice, which supposes a previous publication, and is the case of the common law of England. It
may be notified, viva voce, by officers appointed for that purpose, as is done with regard to
proclamations, and such acts of parliament as are appointed to be publicly read in churches and other
assemblies. It may lastly be notified by writing, printing, or the like; which is the general course
taken with all our acts of parliament. Yet, whatever way is made use of, it is incumbent on the
promulgators to do it in the most public and perspicuous manner; not like Caligula, who (according
to Dio Cassius) wrote his laws in a very small character, and hung them up upon high pillars, the
more effectually to ensnare the people. There is still a more unreasonable method than this, which
is called making of laws ex post facto [after the fact]; when after an action (indifferent in itself) is
committed, the legislator then for the first time declares it to have been a crime, and inflicts a
punishment upon the person who has committed it. Here it is impossible that the party could foresee
that an action, innocent when it was done, should be afterwards converted to guilt by a subsequent
law: he had therefore no cause to abstain from it; and all punishment for not abstaining must of
consequence be cruel and unjust.5 All laws should be therefore made to commence in futuro [in the
future], and be notified before their commencement, which is implied in the term “prescribed.” But
when this rule is in the usual manner notified, or prescribed, it is then the subject's business to be
thoroughly acquainted therewith; for if ignorance, of what he might know, were admitted as a
legitimate excuse, the laws would be of no effect, but might always be eluded with impunity.

But farther: municipal law is “a rule of civil conduct prescribed by the supreme power in a state.”
For legislature, as was before observed, is the greatest act of superiority that can be exercised by one
being over another. Wherefore it is requisite to the very essence of a law, that it be made by the
supreme power. Sovereignty and legislature are indeed convertible terms; one cannot subsist without
the other.

This will naturally lead us into a short inquiry concerning the nature of society and civil government;
and the natural, inherent right that belongs to the sovereignty of a state, wherever that sovereignty
be lodged, of making and enforcing laws.

The only true and natural foundations of society are the wants and the fears of individuals. Not that
we can believe, with some theoretical writers, that there ever was a time when there was no such
thing as society, either natural or civil; and that, from the impulse of reason, and through a sense of
their wants and weaknesses, individuals met together in a large plain, entered into an original
contract, and chose the tallest roan present to be their governor. This notion, of an actually existing
unconnected state of nature, is too wild to be seriously admitted: and besides it is plainly
contradictory to the revealed accounts of the primitive origin of mankind, and their preservation two
thousand years afterwards; both which were effected by the means of single families. These formed
the first natural society, among themselves; which, every day extending its limits, laid the first

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though imperfect rudiments of civil or political society: and when it grew too large to subsist with
convenience in that pastoral state wherein the patriarchs appear to have lived, it necessarily
subdivided itself by various migrations into more. Afterwards, as agriculture increased, which
employs and can maintain a much greater number of hands, migrations became less frequent; and
various tribes, which had formerly separated, reunited again; sometimes by compulsion and
conquest, sometimes by accident, and sometimes perhaps by compact. But, though society had not
its formal beginning from any convention of individuals, actuated by their wants and their fears; yet
it is the sense of their weakness and imperfection that keeps mankind together, that demonstrates
the necessity of this union, and that therefore is the solid and natural foundation, as well as the
cement, of civil society. And this is what we mean by the original contract of society; which, though
perhaps in no instance it has ever been formally expressed at the first institution of a state, yet in
nature and reason must always be understood and implied, in the very act of associating together:
namely, that the whole should protect all its parts, and that every part should pay obedience to the
will of the whole; or, in other words, that the community should guard the rights of each individual
member, and that (in return for this protection) each individual should submit to the laws of the
community; without which submission of all it was impossible that protection could be certainly
extended to any.

For when civil society is once formed, government at the same time results of course, as necessary
to preserve and to keep that society in order. Unless some superior be constituted, whose commands
and decisions all the members are bound to obey, they would still remain as in a state of nature,
without any judge upon earth to define their several rights, and redress their several wrongs. But,
as all the members which compose this society were naturally equal, it may be asked, in whose
hands are the reins of government to be entrusted? To this the general answer is easy; but the
application of it to particular cases has occasioned one half of those mischiefs, which are apt to
proceed from misguided political zeal. In general, all mankind will agree that government should
be reposed in such persons, in whom those qualities are most likely to be found, the perfection of
which is among the attributes of him who is emphatically styled the supreme being; the three grand
requisites, I mean, of wisdom, of goodness, and of power: wisdom, to discern the real interest of the
community: goodness, to endeavor always to pursue that real interest; and strength, or power, to
carry this knowledge and intention into action. These are the natural foundations of sovereignty, and
these are the requisites that ought to be found in every well-constituted frame of government.

How the several forms of government we now see in the world at first actually began, is matter of
great uncertainty, and has occasioned infinite disputes. It is not my business or intention to enter into
any of them. However they began, or by what right soever they subsist, there is and must be in all
of them a supreme, irresistible, absolute, uncontrolled authority, in which the jura summi imperii
or the rights of sovereignty, reside. And this authority is placed in those hands, wherein (according
to the opinion of the founders of such respective states, either expressly given, or collected from
their tacit approbation) the qualities requisite for supremacy, wisdom, goodness, and power, are the
most likely to be found.

The political writers of antiquity will not allow more than three regular forms of government; the
first, when the sovereign power is lodged in an aggregate assembly consisting of all the free
members of a community, which is called a democracy; the second, when it is lodged in a council,

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composed of select members, and then it is styled an aristocracy; the last, when it is entrusted in the
hands of a single person, and then it takes the name of a monarchy. All other species of government,
they say, are either corruptions of, or reducible to, these three.

By the sovereign power, as was before observed, is meant the making of laws; for wherever that
power resides, all others must conform to, and be directed by it, whatever appearance the outward
form and administration of the government may put on. For it is at any time in the option of the
legislature to alter that form and administration by a new edict or rule, and to put the execution of
the laws into whatever hands it pleases; by constituting one, or a few, or many executive
magistrates: and all the other powers of the state must obey the legislative power in the discharge
of their several functions, or else the constitution is at an end.

In a democracy, where the right of making laws resides in the people at large, public virtue, or
goodness of intention, is more likely to be found, than either of the other qualities of government.
Popular assemblies are frequently foolish in their contrivance, and weak in their execution; but
generally mean to do the thing that is right and just, and have always a degree of patriotism or public
spirit. In aristocracies there is more wisdom to be found, than in the other frames of government;
being composed, or intended to be composed, of the most experienced citizens: but there is less
honesty than in a republic, and less strength than in a monarchy. A monarchy is indeed the most
powerful of any; for by the entire conjunction of the legislative and executive powers all the sinews
of government are knit together, and united in the hand of the prince: but then there is eminent
danger of his employing that strength to improvident or oppressive purposes.

Thus these three species of government have, all of them, their several perfections and
imperfections. Democracies are usually the best calculated to direct the end of a law; aristocracies
to invent the means by which that end shall be obtained; and monarchies to carry those means into
execution. And the ancients, as was observed, had in general no idea of any other permanent form
of government but these three: for though Cicero6 declares himself of opinion, “esse optime
constitutam rempublicam, quae ex tribus generibus illis, regali, optimo, et populari, sit modice
confusa” [“the best constituted republic, is that which is duly compounded of these three estates,
the monarchical, aristocratical, and democratical”]; yet Tacitus treats this notion of a mixed
government, formed out of them all, and partaking of the advantages of each, as a visionary whim,
and one that, if effected, could never be lasting or secure.7

But, happily for us of this island, the British constitution has long remained, and I trust will long
continue, a standing exception to the truth of this observation. For, as with us, the executive power
of the laws is lodged in a single person, they have all the advantages of strength and dispatch, that
are to be found in the most absolute monarchy: and as the legislature of the kingdom is entrusted to
three distinct powers, entirely independent of each other; first, the king; secondly, the lords spiritual
and temporal, which is an aristocratical assembly of persons selected for their piety, their birth, their
wisdom, their valor, or their property; and thirdly, the house of commons, freely chosen by the
people from among themselves, which makes it a kind of democracy; as this aggregate body,
actuated by different springs, and attentive to different interests, composes the British parliament,
and has the supreme disposal of every thing; there can no inconvenience be attempted by either of
the three branches, but will be withstood by one of the other two; each branch being armed with a

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negative power, sufficient to repel any innovation which it shall think inexpedient or dangerous.

Here then is lodged the sovereignty of the British constitution; and lodged as beneficially as is
possible for society. For in no other shape could we be so certain of finding the three great qualities
of government so well and so happily united. If the supreme power were lodged in any one of the
three branches separately, we must be exposed to the inconveniences of either absolute monarchy,
aristocracy, or democracy; and so want two of the three principal ingredients of good polity, either
virtue, wisdom, or power. If it were lodged in any two of the branches for instance, in the king and
house of lords, our laws might be providently made, and well executed, but they might not have
always the good of the people in view: if lodged in the king and commons, we should want that
circumspection and mediatory caution, which the wisdom of the peers is to afford: if the supreme
rights of legislature were lodged in the two houses only and the king had no negative upon their
proceedings, they might be tempted to encroach upon the royal prerogative, or perhaps to abolish
the kingly office, and thereby weaken (if not totally destroy) the strength of the executive power.
But the constitutional government of this island is so admirably tempered and compounded, that
nothing can endanger or hurt it, but destroying the equilibrium of power between one branch of the
legislature and the rest. For if ever it should happen that the independence of any one of the three
should be lost, or that it should become subservient to the views of either of the other two, there
would soon be an end of our constitution. The legislature would be changed from that, which (upon
the supposition of an original contract, either actual or implied) is presumed to have been originally
set up by the general consent and fundamental act of the society: and such a change, however
effected is according to Mr. Locke8 (who perhaps carries his theory too far) at once an entire
dissolution of the bands of government; and the people are thereby reduced to a state of anarchy,
with liberty to constitute to themselves a new legislative power.

Having thus cursorily considered the three usual species of government, and our own singular
constitution, selected and compounded from them all, I proceed to observe, that as the power of
making laws constitutes the supreme authority, so wherever the supreme authority in any state
resides, it is the right of that authority to make laws; that is, in the words of our definition, to
prescribe the rule of civil action. And this may be discovered from the very end and institution of
civil states. For a state is a collective body, composed of a multitude of individuals, united for their
safety and convenience, and intending to act together as one man. If it therefore is to act as one man,
it ought to act by one uniform will. But, inasmuch as political communities are made up of many
natural persons, each of whom has his particular will and inclination, these several wills cannot by
any natural union be joined together, or tempered and disposed into a lasting harmony, so as to
constitute and produce that one uniform will of the whole. It can therefore be no otherwise produced
than by a political union; by the consent of all persons to submit their own private wills to the will
of one man, or of one or more assemblies of men, to whom the supreme authority is entrusted; and
this will of that one man, or assemblage of men, is in different states, according to their different
constitutions, understood to be law.

Thus far as to the right of the supreme power to make laws; but farther, it is its duty likewise. For
since the respective members are bound to conform themselves to the will of the state, it is expedient
that they receive directions from the state declaratory of that its will. But, as it is impossible, in so
great a multitude, to give injunctions to every particular man, relative to each particular action, it

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is therefore incumbent on the state to establish general rules, for the perpetual information and
direction of all persons in all points, whether of positive or negative duty. And this, in order that
every man may know what to look upon as his own, what as another's; what absolute and what
relative duties are required at his hands; what is to be esteemed honest, dishonest or Indifferent;
what degree every man retains of his natural liberty; what he has given up as the price of the benefits
of society; and after what manner each person is to moderate the use and exercise of those rights
which the state assigns him, in order to promote and secure the public tranquility.

From what has been advanced, the truth of the former branch of our definition is (I trust) sufficiently
evident; that “municipal law is a rule of civil conduct prescribed by the supreme power in a state.”
I proceed now to the latter branch of it; that it is a rule so prescribed, “commanding what is right,
and prohibiting what is wrong.”

Now in order to do this completely, it is first of all necessary that the boundaries of right and wrong
be established and ascertained by law. And when this is once done, it will follow of course that it
is likewise the business of the law, considered as a rule of civil conduct, to enforce these rights and
to restrain or redress these wrongs. It remains therefore only to consider in what manner the law is
said to ascertain the boundaries of right and wrong; and the methods which it takes to command the
one and prohibit the other.

For this purpose every law may be said to consist of several parts: one, declaratory; whereby the
rights to be observed, and the wrongs to be eschewed, are clearly defined and laid down: another,
directory: whereby the subject is instructed and enjoined to observe those rights, and to abstain from
the commission of those wrongs: a third, remedial: whereby a method is pointed out to recover a
man's private rights, or redress his private wrongs; to which may be added a fourth, usually termed
the sanction, or vindicatory branch of the law; whereby it is signified what evil or penalty shall be
incurred by such as commit any public wrongs, and transgress or neglect their duty.

With regard to the first of these, the declaratory part of the municipal law, this depends not so much
upon the law of revelation or of nature as upon the wisdom and will of the legislator. This doctrine,
which before was slightly touched, deserves a more particular explication. Those rights then which
God and nature have established, and are therefore called natural rights, such as are life and liberty,
need not the aid of human laws to be more effectually invested in every man than they are; neither
do they receive any additional strength when declared by the municipal laws to be inviolable. On
the contrary, no human legislature has power to abridge or destroy them, unless the owner shall
himself commit some act that amounts to a forfeiture. Neither do divine or natural duties (such as,
for instance, the worship of God, the maintenance of children, and the like) receive any stronger
sanction from being also declared to be duties by the law of the land. The case is the same as to
crimes and misdemeanors, that are forbidden by the superior laws, and therefore styled mala in se
[wrong in itself], such as murder, theft, and perjury; which contract no additional turpitude from
being declared unlawful by the inferior legislature. For that legislature in all these cases acts only,
as was before observed, in subordination to the great lawgiver, transcribing and publishing his
precepts. So that, upon the whole, the declaratory part of the municipal law has no force or operation
at all, with regard to actions that are naturally and intrinsically right or wrong.

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But with regard to things in themselves indifferent, the case is entirely altered. These become either
right or wrong, just or unjust, duties or misdemeanors, according as the municipal legislator sees
proper, for promoting the welfare of the society, and more effectually carrying on the purposes of
civil life. Thus our own common law has declared, that the goods of the wife do instantly upon
marriage become the property and right of the husband; and our statute law has declared all
monopolies a public offense: yet that right, and this offense, have no foundation in nature; but are
merely created by the law, for the purposes of civil society. And sometimes, where the thing itself
has its rise from the law of nature, the particular circumstances and mode of doing it become right
or wrong, as the laws of the land shall direct. Thus, for instance, in civil duties; obedience to
superiors is the doctrine of revealed as well as natural religion: but who those superiors shall be, and
in what circumstances or to what degrees they shall be obeyed, it is the province of human laws to
determine. And so, as to injuries or crimes, it must be left to our own legislature to decide, in what
cases the seizing another's cattle shall amount to a trespass or a theft; and where it shall be a
justifiable action, as when a landlord takes them by way of distress for rent.

Thus much for the declaratory part of the municipal law: and the directory stands much upon the
same footing; for this virtually includes the former, the declaration being usually collected from the
direction. The law that says, “thou shall not steal,” implies a declaration that stealing is a crime. And
we have seen9 that, in things naturally indifferent, the very essence of right and wrong depends upon
the direction of the laws to do or to omit them.

The remedial part of a law is so necessary a consequence of the former two, that laws must be very
vague and imperfect without it. For in vain would rights be declared, in vain directed to be observed,
if there were no method of recovering and asserting those rights, when wrongly withheld or invaded.
This is what we mean properly, when we speak of the protection of the law. When, for instance, the
declaratory part of the law has said, “that the field or inheritance, which belonged to Titius's father,
is vested by his death in Titius;” and the directory part has “forbidden any one to enter on another's
property, without the leave of the owner:” if Gaius after this will presume to take possession of the
land, the remedial part of the law will then interpose its office; will make Gaius restore the
possession to Titius, and also pay him damages for the invasion.

With regard to the sanction of laws, or the evil that may attend the breach of public duties; it is
observed, that human legislators have for the most part chosen to make the sanction of their laws
rather vindicatory than remuneratory, or to consist rather in punishments, than in actual particular
rewards. Because, in the first place, the quiet enjoyment and protection of all our civil rights and
liberties, which are the sure and general consequence of obedience to the municipal law, are in
themselves the best and most valuable of all rewards. Because also, were the exercise of every virtue
to be enforced by the proposal of particular rewards, it were impossible for any state to furnish stock
enough for so profuse a bounty. And farther, because the dread of evil is a much more forcible
principle of human actions than the prospect of good.10 For which reasons, though a prudent
bestowing of rewards is sometimes of exquisite use, yet we find that those civil laws, which enforce
and enjoin our duty, do seldom, if ever, propose any privilege or gift to such as obey the law; but
do constantly come armed with a penalty denounced against transgressors, either expressly defining
the nature and quantity of the punishment, or else leaving it to the discretion of the judges, and those
who are entrusted with the care of putting the laws in execution.

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Of all the parts of a law the most effectual is the vindicatory. For it is but lost labor to say, “do this,
or avoid that,” unless we also declare, “this shall be the consequence of your non-compliance.” We
must therefore observe, that the main strength and force of a law consists in the penalty annexed to
it. Herein is to be found the principal obligation of human laws.

Legislators and their laws are said to compel and oblige; not that by any natural violence they so
constrain a man, as to render it impossible for him to act otherwise than as they direct, which is the
strict sense of obligation: but because, by declaring and exhibiting a penalty against offenders, they
bring it to pass that no man can easily choose to transgress the law; since, by reason of the
impending correction, compliance is in a high degree preferable to disobedience. And, even where
rewards are proposed as well as punishments threatened, the obligation of the law seems chiefly to
consist in the penalty: for rewards, in their nature, can only persuade and allure; nothing is
compulsory but punishment.

It is true, it has been held, and very justly, by the principal of our ethical writers, that human laws
are binding upon men's consciences. But if that were the only or most forcible obligation, the good
only would regard the laws, and the bad would set them at defiance. And, true as this principle is,
it must be understood with some restriction. It holds, I apprehend, as to rights; and that, when the
law has determined the field to belong to Titius, it is matter of conscience no longer to withhold or
to invade it. So also in regard to natural duties, and such offenses as are mala in se: here we are
bound in conscience, because we are bound by superior laws, before those human laws were in
being, to perform the one and abstain from the other. But in relation to those laws which enjoin only
positive duties, and forbid only such things as are not mala in se but mala prohibita [wrong because
prohibited] merely, without any intermixture of moral guilt, annexing a penalty to non-compliance,11
here I apprehend conscience is no farther concerned, than by directing a submission to the penalty,
in case of our breach of those laws: for otherwise the multitude of penal laws in a state would not
only be looked upon as impolitic, but would also be a very wicked, thing; if every such law were
a snare for the conscience of the subject. But in these cases the alternative is offered to every man;
“either abstain from this or submit to such a penalty:” and his conscience will be clear, whichever
side of the alternative he thinks proper to embrace . . . Thus, by the statutes for preserving the game,
a penalty is denounced against every unqualified person that kills a hare, and against every person
who possesses a partridge in August . . . And so too, by other statutes, pecuniary penalties are
inflicted for exercising trades without serving an apprenticeship thereto, for not burying the dead
in woolen, for not performing statute-work on the public roads, and for innumerable other positive
misdemeanors. Now these prohibitory laws do not make the transgression a moral offense, or sin:
the only obligation in conscience is to submit to the penalty, if levied. It must however be observed,
that we are here speaking of laws that are simply and purely penal, where the thing forbidden or
enjoined is wholly a matter of indifference, and where the penalty inflicted is an adequate
compensation for the civil inconvenience supposed to arise from the offense. But where
disobedience to the law involves in it also any degree of public mischief or private injury, there it
falls within our former distinction, and is also an offense against conscience.12

I have now gone through the definition laid down of a municipal law; and have shown that it is “a
rule ... of civil conduct ... prescribed ... by the supreme power in a state ... commanding what is right
and prohibiting what is wrong:” in the explication of which I have endeavored to interweave a few

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useful principles, concerning the nature of civil government, and the obligation of human laws.
Before I conclude this section, it may not be amiss to add a few observations concerning the
interpretation of laws.

When any doubt arose upon the construction of the Roman laws, the usage was to state the case to
the emperor in writing, and take his opinion upon it. This was certainly a bad method of
interpretation. To interrogate the legislature to decide particular disputes, is not only endless, but
affords great room for partiality and oppression. The answers of the emperor were called his
rescripts, and these had in succeeding cases the force of perpetual laws; though they ought to be
carefully distinguished, by every rational civilian, from those general constitutions, which had only
the nature of things for their guide. The emperor Macrinus, as his historian Capitolinus informs us,
had once resolved to abolish these rescripts, and retain only the general edicts: he could not bear that
the hasty and crude answers of such princes as Commodus and Caracalla should be reverenced as
laws. But Justinian thought otherwise,13 and he has preserved them all. In like manner the canon
laws, or decretal epistles of the popes, are all of them rescripts in the strictest sense. Contrary to all
true forms of reasoning, they argue from particulars to generals.

The fairest and most rational method to interpret the will of the legislator, is by exploring his
intentions at the time when the law was made, by signs the most natural and probable. And these
signs are either the words, the context, the subject-matter, the effects and consequence, or the spirit
and reason of the law. Let us take a short view of them all.

1. Words are generally to be understood in their usual and most known signification; not so much
regarding the propriety of grammar, as their general and popular use. Thus the law mentioned by
Pufendorf,14 which forbad a layman to lay hands on a priest, was adjudged to extend to him, who
had hurt a priest with a weapon. Again; terms of art, or technical terms, must be taken according to
the acceptation of the learned in each art, trade, and science. So in the act of settlement, where the
crown of England is limited “to the princess Sophia, and the heirs of her body, being protestants,”
it becomes necessary to call in the assistance of lawyers, to ascertain the precise idea of the words
“heirs of her body;” which in a legal sense comprise only certain of her lineal descendants.

2. If words happen to be still dubious, we may establish their meaning from the context; with which
it may be of singular use to compare a word, or a sentence, whenever they are ambiguous, equivocal,
or intricate. Thus the proeme, or preamble, is often called in to help the construction of an act of
parliament. Of the same nature and use is the comparison of a law with other laws, that are made by
the same legislator, that have some affinity with the subject, or that expressly relate to the same
point.

Thus, when the law of England declares murder to be felony without benefit of clergy, we must
resort to the same law of England to learn what the benefit of clergy is: and when the common law
censures simoniacal contracts, it affords great light to the subject to consider what the canon law has
adjudged to be simony.

3. As to the subject-matter, words are always to be understood as having a regard thereto; for that
is always supposed to be in the eye of the legislator, and all his expressions directed to that end.

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Thus, when a law of our Edward III. forbids all ecclesiastical persons to purchase provisions at
Rome, it might seem to prohibit the buying of grain and other victuals; but when we consider that
the statute was made to repress the usurpations of the papal see, and that the nominations to
benefices by the pope were called provisions, we shall see that the restraint is intended to be laid
upon such provisions only.

4. As to the effects and consequence, the rule is, that where words bear either none, or a very absurd
signification, if literally understood, we must a little deviate from the received sense of them.
Therefore the Bolognian law, mentioned by Pufendorf,15 which enacted “that whoever drew blood
in the streets should be punished with the utmost severity,” was held after a long debate not to
extend to the surgeon, who opened the vein of a person that fell down in the street with a fit.

5. But, lastly, the most universal and effectual way of discovering the true meaning of a law, when
the words are dubious, is by considering the reason and spirit of it; or the cause which moved the
legislator to enact it. For when this reason ceases, the law itself ought likewise to cease with it. An
instance of this is given in a case put by Cicero, or whoever was the author of the treatise inscribed
to Herennius.16 There was a law, that those who in a storm forsook the ship, should forfeit all
property therein; and that the ship and lading should belong entirely to those who staid in it. In a
dangerous tempest all the mariners forsook the ship, except only one sick passenger, who by reason
of his disease was unable to get out and escape. By chance the ship came safe to port. The sick man
kept possession, and claimed the benefit of the law. Now here all the learned agree, that the sick man
is not within the reason of the law; for the reason of making it was, to give encouragement to such
as should venture their lives to save the vessel: but this is a merit, which he could never pretend to,
who neither staid in the ship upon that account, nor contributed anything to its preservation.

From this method of interpreting laws, by the reason of them, arises what we call equity; which is
thus defined by Grotius,17 “the correction of that, wherein the law (by reason of its universality) is
deficient.” For since in laws all cases cannot be foreseen or expressed, it is necessary, that when the
general decrees of the law come to be applied to particular cases, there should be somewhere a
power vested of defining those circumstances, which (had they been foreseen) the legislator himself
would have expressed. And these are the cases which, according to Grotius, “lex non exacte definit,
sed arbitrio boni viri permittit” [“law does not define exactly, but leaves some discretion to the wise
judge”].

Equity thus depending, essentially, upon the particular circumstances of each individual case, there
can be no established rules and fixed precepts of equity laid down, without destroying its very
essence, and reducing it to a positive law. And, on the other hand, the liberty of considering all cases
in an equitable light, must not be indulged too far; lest thereby we destroy all law, and leave the
decision of every question entirely in the breast of the judge. And law, without equity, though hard
and disagreeable, is much more desirable for the public good, than equity without law: which would
make every judge a legislator, and introduce most infinite confusion; as there would then be almost
as many different rules of action laid down in our courts, as there are differences of capacity and
sentiment in the human mind.

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NOTES

1. Juris praecepta sunt haec, honesta vivere, non laudere suum cuique tribuere. [The precepts of the law are these, to live
honestly, not to injure another, and to give to every one his due.] Inst. 1.1.3.
2. Pufendorf, l 7. c. 1. compared with Barbeyrac's Commentary.
3. Ff. 1. 19.
4. Inst 1.2. 1.
5. Such laws among the Romans were denominated privilegia, or private laws of which Cicero ( de leg. 3.19. and in his
oration pro domo, 17.) thus speaks: “Vetant leges sacratae, vetant duodecim tabulae, leges privatis hominibus inogari; id
enim est privilegium. Nemo unquam tulit: nihil est crudelius, nihil perniciosius, nihil quod minus haec civitas ferre possit.”
[“The sacred laws forbid, the twelve tables forbid, that the interests of private individuals should be affected by special laws;
for that is privilege. There has never been an instance of it: nothing could be more cruel, nothing more injurious, nothing
which to this nation could be less tolerable.”]
6. In his fragments de rep. l. 2.
7. “Cunctas nationes et urbes, populus, aut primores, aut singuli regunt: delecta ex his et constituta reipublicae forma
laudari facilius quam eveniri, vel, si evenit, haud diuturna esse potest.” [“The government of all cities or countries is either
democratical, aristocratical, or monarchical. It is more easy to approve of a government composed of these three in the form
of a republic than to carry it into execution; or if effected, it cannot be lasting.”] Ann l. 4.”
8. On government, part ii. §. 212.
9. See page 43.
10. Locke, Hum. Und. b. 2. c. 21.
11. See Vol III. 420.
12. Lex pure poenalis obligat tantum ad poenam, non item ad culpam: lex poenalis mixta et ad culpam obligat et ad
poenam. [The object of a law purely penal regards the punishment solely, not the crime also: a mixed penal law involves both
the crime and punishment.] (Sanderson de conscient. obligat. prael. viii. §. 17. 24.)
13. Inst. 1.2.6.
14. L. of N. and N. 5.12. 3.
15. l. 5. C. 12. §8.
16. l. 1. c. 11.
17. de aequitate, §3.

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William Blackstone: Vol. 1, Commentaries on the Laws of England (1765) Page 39

SECTION 3
Of the Laws of England

The municipal law of England, or the rule of civil conduct prescribed to the inhabitants of this
kingdom, may with sufficient propriety be divided into two kinds; the lex non scripta, the unwritten
or common law; and the lex scripta, the written or statute law.

The lex non scripta, or unwritten law, includes not only general customs, or the common law
properly so called; but also the particular customs of certain parts of the kingdom; and likewise those
particular laws, that are by custom observed only in certain courts and jurisdictions.

When I call these parts of our law leges non scriptae, I would not be understood as if all those laws
were at present merely oral, or communicated from the former ages to the present solely by word
of mouth. It is true indeed that, in the profound ignorance of letters which formerly overspread the
whole western world, all laws were entirely traditional; for this plain reason, because the nations
among which they prevailed, had but little idea of writing. Thus the British as well as the Gallic
druids committed all their laws as well as learning to memory;1 and it is said of the primitive Saxons
here, as well as their brethren on the continent, that leges sola memoria et usu retinebant [laws were
retained solely by memory and custom].2 But, with us at present, the monuments and evidences of
our legal customs are contained in the records of the several courts of justice, in books of reports and
judicial decisions, and in the treatises of learned sages of the profession, preserved and handed down
to us from the times of highest antiquity. However I therefore stile these parts of our law leges non
scriptae, because their original institution and authority are not set down in writing, as acts of
parliament are, but they receive their binding power, and the force of laws, by long and immemorial
usage, and by their universal reception throughout the kingdom. In like manner as Aulus Gellius
defines the jus non scriptum to be that, which is “tacito et illiterato hominum consensu et moribus
expressum” [“expressed by the tacit and unwritten customs and consent of men”].

Our ancient lawyers, and particularly Fortescue,3 insist with abundance of warmth, that these
customs are as old as the primitive Britons; and continued down, through the several mutations of
government and inhabitants, to the present time, unchanged and unadulterated. This may be the case
as to some: but in general, as Mr. Selden in his notes observes, this assertion must be understood
with many grains of allowance; and ought only to signify, as the truth seems to be, that there never
was any formal exchange of one system of laws for another: though doubtless by the intermixture
of adventitious nations, the Romans, the Picts, the Saxons, the Danes, and the Normans, they must
have insensibly introduced and incorporated many of their own customs with those that were before
established; thereby in all probability improving the texture and wisdom of the whole, by the
accumulated wisdom of diverse particular countries. Our laws, says lord Bacon,4 are mixed as our
language: and, as our language is so much the richer, the laws are the more complete.

And indeed our antiquaries and early historians do all positively assure us, that our body of laws is
of this compounded nature. For they tell us, that in the time of Alfred, the local customs of the
several provinces of the kingdom were grown so various, that he found it expedient to compile his
dome-book, or liber judicialis, for the general use of the whole kingdom. This book is said to have
been extant so late as the reign of king Edward the fourth, but is now unfortunately lost. It contained,

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we may probably suppose, the principal maxims of the common law, the penalties for
misdemeanors, and the forms of judicial proceedings. Thus much may at least be collected from that
injunction to observe it, which we find in the laws of king Edward the elder, the son of Alfred.5
“Omnibus qui reipublicae praesunt etiam atque etiam mando, ut omnibus aequos se praebeant
judices, perinde ac in judiciali libro (Saxonice, dom-bec) scriptum habeter: nec quicquam formident
quin jus commune (Saxonice, folcnihte) audacter libereque dicant.” [“To all who preside over the
republic my positive and repeated injunction is, that they conduct themselves towards all as just
judges, as it is written in the dome-book, and without fear boldly and freely to declare the common
law.”]

But the irruption and establishment of the Danes in England, which followed soon after, introduced
new customs, and caused this code of Alfred in many provinces to fall into disuse; or at least to be
mixed and debased with other laws of a coarser alloy. So that about the beginning of the eleventh
century there were three principal systems of laws, prevailing in different districts. 1. The
Mercen-Lage, or Mercian laws which were observed in many of the midland counties, and those
bordering on the principality of Wales, the retreat of the ancient Britons; and therefore very probably
intermixed with the British or Druidical customs. 2. The West-Saxon-Lage, or laws of the west
Saxons, which obtained in the counties to the south and west of the island, from Kent to Devonshire.
These were probably much the same with the laws of Alfred above-mentioned, being the municipal
law of the far most considerable part of his dominions, and particularly including Berkshire, the seat
of his peculiar residence. 3. The Dane-Lage, or Danish law, the very name of which speaks its
original and composition. This was principally. maintained in the rest of the midland counties, and
also on the eastern coast, the part most exposed to the visits of that piratical people. As for the very
northern provinces, they were at that time under a distinct government.6

Out of these three laws, Roger Hoveden7 and Ranulphus Cestrensis8 inform us, king Edward the
confessor extracted one uniform law or digest of laws, to be observed throughout the whole
kingdom; though Hoveden and the author of an old manuscript chronicle9 assure us likewise, that
this work was projected and begun by his grandfather king Edgar. And indeed a general digest of
the same nature has been constantly found expedient, and therefore put in practice by other great
nations, which were formed from an assemblage of little provinces, governed by peculiar customs.
As in Portugal, under king Edward, about the beginning of the fifteenth century:10 in Spain, under
Alonzo X, who about the year 1250 executed the plan of his father St. Ferdinand, and collected all
the provincial customs into one uniform law, in the celebrated code entitled las partidas:11 and in
Sweden, about the same era; when a universal body of common law was compiled out of the
particular customs established by the laghmen of every province, and entitled the land's lagh, being
analogous to the common law of England.12

Both these undertakings, of king Edgar and Edward the confessor, seem to have been no more than
a new edition, or fresh promulgation, of Alfred's code or dome-book with such additions and
improvements as the experience of a century and an half had suggested. For Alfred is generally
styled by the same historians the legum Anglicanarum conditor [founder of the English laws], as
Edward the confessor is the restitutor [restorer]. These however are the laws which our histories so
often mention under the name of the laws of Edward the confessor; which our ancestors struggled
so hardly to maintain, under the first princes of the Norman line; and which subsequent princes so

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frequently promised to keep and restore, as the most popular act they could do, when pressed by
foreign emergencies or domestic discontents. These are the laws, that so vigorously withstood the
repeated attacks of the civil law; which established in the twelfth century a new Roman empire over
most of the states of the continent: states that have lost, and perhaps upon that account, their political
liberties; while the free constitution of England, perhaps upon the same account, has been rather
improved than debased. These, in short, are the laws which gave rise and original to that collection
of maxims and customs, which is now known by the name of the common law. A name either given
to it, in contradistinction to other laws, as the statute law, the civil law, the law merchant, and the
like; or, more probably, as a law common to all the realm, the jus commune or folk-right mentioned
by king Edward the elder, after the abolition of the several provincial customs and particular laws
before-mentioned.

But though this is the most likely foundation of this collection of maxims and customs, yet the
maxims and customs, so collected, are of higher antiquity than memory or history can reach: nothing
being more difficult than to ascertain the precise beginning and first spring of an ancient and long
established custom. Whence it is, that in our law, the goodness of a custom depends upon its having
been used time out of mind; or, in the solemnity of our legal phrase, time whereof the memory of
man runs not to the contrary. This it is that gives it its weight and authority: and of this nature are
the maxims and customs which compose the common law, or lex non scripta, of this kingdom.

This unwritten, or common, law is properly distinguishable into three kinds: 1. General customs;
which are the universal rule of the whole kingdom, and form the common law, in its stricter and
more usual signification. 2. Particular customs; which for the most part affect only the inhabitants
of particular districts. 3. Certain particular laws; which by custom are adopted and used by some
particular courts, of pretty general and extensive jurisdiction.

I. As to general customs, or the common law, properly so called; this is that law, by which
proceedings and determinations in the king's ordinary courts of justice are guided and directed. This,
for the most part, settles the course in which lands descend by inheritance; the manner and form of
acquiring and transferring property; the solemnities and obligation of contracts; the rules of
expounding wills, deeds, and acts of parliament; the respective remedies of civil injuries; the several
species of temporal offenses, with the manner and degree of punishment; and an infinite number of
minuter particulars, which diffuse themselves as extensively as the ordinary distribution of common
justice requires. Thus, for example, that there shall be four superior courts of record; the chancery,
the king's bench, the common pleas, and the exchequer ) that the eldest son alone is heir to his
ancestor ) that property may be acquired and transferred by writing ) that a deed is of no validity
unless sealed and delivered ) that wills shall be construed more favorably, and deeds more strictly
) that money lent upon bond is recoverable by action of debt ) that breaking the public peace is an
offense, and punishable by fine and imprisonment ) all these are doctrines that are not set down in
any written statute or ordinance, but depend merely upon immemorial usage, that is, upon common
law, for their support.

Some have divided the common law into two principal grounds or foundations: 1. Established
customs; such as that, where there are three brothers, the eldest brother shall be heir to the second,
in exclusion of the youngest: and 2. Established rules and maxims; as, “that the king can do no

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wrong, that no man shall be bound to accuse himself,” and the like. But I take these to be one and
the same thing. For the authority of these maxims rests entirely upon general reception and usage:
and the only method of proving, that this or that maxim is a rule of the common law, is by showing
that it has been always the custom to observe it.

But here a very natural, and very material, question arises: how are these customs or maxims to be
known, and by whom is their validity to be determined? The answer is, by the judges in the several
courts of justice. They are the depositories of the laws; the living oracles, who must decide in all
cases of doubt, and who are bound by an oath to decide according to the law of the land. Their
knowledge of that law is derived from experience and study; from the “viginti annorum
lucubrationes” [“night-time studies of twenty years”], which Fortescue13 mentions; and from being
long personally accustomed to the judicial decisions of their predecessors. And indeed these judicial
decisions are the principal and most authoritative evidence, that can be given, of the existence of
such a custom as shall form a part of the common law. The judgment itself, and all the proceedings
previous thereto, are carefully registered and preserved, under the name of records, in public
repositories set apart for that particular purpose; and to them frequent recourse is had, when any
critical question arises, in the determination of which former precedents may give light or assistance.
And therefore, even so early as the conquest, we find the “praeteritorum memoria eventorum”
[“remembrance of past events”] reckoned up as one of the chief qualifications of those, who were
held to be “legibus patriae optime instituti”14 [“best instructed in the laws of their country”]. For
it is an established rule to abide by former precedents, where the same points come again in
litigation; as well to keep the scale of justice even and steady, and not liable to waver with every
new judge's opinion; as also because the law in that case being solemnly declared and determined,
what before was uncertain, and perhaps indifferent, is now become a permanent rule, which it is not
in the breast of any subsequent judge to alter or vary from, according to his private sentiments: he
being sworn to determine, not according to his own private judgment, but according to the known
laws and customs of the land; not delegated to pronounce a new law, but to maintain and expound
the old one. Yet this rule admits of exception, where the former determination is most evidently
contrary to reason; much more if it be dearly contrary to the divine law. But even in such cases the
subsequent judges do not pretend to make a new law, but to vindicate the old one from
misrepresentation. For if it be found that the former decision is manifestly absurd or unjust, it is
declared, not that such a sentence was bad law, but that it was not law; that is, that it is not the
established custom of the realm, as has been erroneously determined. And hence it is that our
lawyers are with justice so copious in their encomiums on the reason of the common law, that they
tell us, that the law is the perfection of reason, that it always intends to conform thereto, and that
what is not reason is not law. Not that the particular reason of every rule in the law can at this
distance of time be always precisely assigned; but it is sufficient that there be nothing in the rule
flatly contradictory to reason, and then the law will presume it to be well founded.15 And it has been
an ancient observation in the laws of England, that whenever a standing rule of law, of which the
reason perhaps could not be remembered or discerned, has been wantonly broken in upon by statutes
or new resolutions, the wisdom of the rule has in the end appeared from the inconveniences that
have followed the innovation.

The doctrine of the law then is this: that precedents and rules must be followed, unless flatly absurd
or unjust: for though their reason be not obvious at first view, yet we owe such a deference to former

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William Blackstone: Vol. 1, Commentaries on the Laws of England (1765) Page 43

times, as not to suppose that they acted wholly without consideration. To illustrate this doctrine by
examples. It has been determined, time out of mind, that a brother of the half blood shall never
succeed as heir to the estate of his half brother, but it shall rather escheat to the king, or other
superior lord. Now this is a positive law, fixed and established by custom, which custom is
evidenced by judicial decisions; and therefore can never be departed from by any modern judge
without a breach of his oath and the law. For herein there is nothing repugnant to natural justice;
though the artificial reason of it, drawn from the feudal law, may not be quite obvious to every body.
And therefore, though a modern judge, on account of a supposed hardship upon the half brother,
might wish it had been otherwise settled, yet it is not in his power to alter it. But if any court were
now to determine, that an elder brother of the half blood might enter upon and seize any lands that
were purchased by his younger brother, no subsequent judges would scruple to declare that such
prior determination was unjust, was unreasonable, and therefore was not law. So that the law, and
the opinion of the judge, are not always convertible terms, or one and the same thing; since it
sometimes may happen, that the judge may mistake the law. Upon the whole, however, we may take
it as a general rule, “that the decisions of courts of justice are the evidence of what is common law:”
in the same manner as, in the civil law, what the emperor had once determined, was to serve for a
guide for the future.16

The decisions therefore of courts are held in the highest regard, and are not only preserved as
authentic records in the treasuries of the several courts, but are handed out to public view in the
numerous volumes of reports which furnish the lawyer's library. These reports are histories of the
several cases, with a short summary of the proceedings which are preserved at large in the record,
the arguments on both sides, and the reasons the court gave for its judgment; taken down in short
notes by persons present at the determination. And these serve as indexes to, and also to explain, the
records; which always, in matters of consequence and nicety, the judges direct to be searched. The
reports are extant in a regular series from the reign of king Edward the second inclusive; and from
his time to that of Henry the eighth were taken by the prothonotaries, or chief scribes of the court,
at the expense of the crown, and published annually, whence they are known under the denomination
of the year books. And it is much to be wished that this beneficial custom had, under proper
regulations, been continued to this day: for, though king James the first at the instance of lord Bacon
appointed two reporters17 with a handsome stipend for this purpose, yet that wise institution was
soon neglected; and, from the reign of Henry the eighth to the present time, this task has been
executed by many private and contemporary hands; who sometimes through haste and inaccuracy,
sometimes through mistake and want of skill, have published very crude and imperfect (perhaps
contradictory) accounts of one and the same determination. Some of the most valuable of the ancient
reports are those published by lord chief justice Coke; a man of infinite learning in his profession,
though not a little infected with the pedantry and quaintness of the times he lived in, which appear
strongly in all his works. However his writings are so highly esteemed, that they are generally cited
without the author's name.18

Besides these reporters, there are also other authors, to whom great veneration and respect is paid
by the students of the common law. Such are Glanvil and Bracton, Britton and Fleta, Hengham and
Littleton, Statham, Brooke, Fitzherbert, and Staundforde, with some others of ancient date; whose
treatises are cited as authority, and are evidence that cases have formerly happened, in which such
and such points were determined, which are now become settled and first principles. One of the last

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of these methodical writers in point of time, whose works are of any intrinsic authority in the courts
of justice, and do not entirely depend on the strength of their quotations from old authors, is the
same learned judge we have just mentioned, sir Edward Coke; who has written four volumes of
institutes, as he is pleased to call them, though they have little of the institutional method to warrant
such a title. The first volume is a very extensive comment upon a little excellent treatise of tenures,
compiled by judge Littleton in the reign of Edward the fourth. This comment is a rich mine of
valuable common law learning, collected and heaped together from the ancient reports and year
books, but greatly defective in method.19 The second volume is a comment upon many old acts of
parliament, without any systematical order; the third a more methodical treatise of the pleas of the
crown; and the fourth an account of the several species of courts.20

And thus much for the first ground and chief corner stone of the laws of England, which is general
immemorial custom, or common law, from time to time declared in the decisions of the courts of
justice: which decisions are preserved among our public records, explained in our reports, and
digested for general use in the authoritative writings of the venerable sages of the law.

The Roman law, as practiced in the times of its liberty, paid also a great regard to custom; but not
so much as our law: it only then adopting it, when the written law was deficient. Though the reasons
alleged in the digest21 will fully justify our practice, in making it of equal authority with, when it is
not contradicted by, the written law. “For since, says Julianus, the written law binds us for no other
reason but because it is approved by the judgment of the people, therefore those laws which the
people have approved without writing ought also to bind every body. For where is the difference,
whether the people declare their assent to a law by suffrage, or by a uniform course of acting
accordingly?” Thus did they reason while Rome had some remains of her freedom: but, when the
imperial tyranny came to be fully established, the civil laws speak a very different language. “Quod
principi placuit legis habet vigorem, cum populus ei et in eum omne suum imperium et potestatum
conferat” [“the constitution of the prince has the force of law, as the people place all their power
and authority in his hands”], says Ulpian.22 “Imperator solus et conditor et interpres legis
existimatur” [“The emperor alone is both the maker and interpreter of law”], says the code:23 and
again, “sacrilegii instar est rescripto principis obviari”24 [“it is sacrilege to oppose the answer of
the prince”]. And indeed it is one of the characteristic marks of English liberty, that our common
law depends upon custom; which carries this internal evidence of freedom along with it, that it
probably was introduced by the voluntary consent of the people.

II. The second branch of the unwritten laws of England are particular customs, or laws which affect
only the inhabitants of particular districts.

These particular customs, or some of them, are without doubt the remains of that multitude of local
customs before-mentioned, out of which the common law, as it now stands, was collected at first by
king Alfred, and afterwards by king Edgar and Edward the confessor: each district mutually
sacrificing some of its own special usages, in order that the whole kingdom might enjoy the benefit
of one uniform and universal system of laws. But, for reasons that have been now long forgotten,
particular counties, cities, towns, manors, and lordships, were very early indulged with the privilege
of abiding by their customs, in contradistinction to the rest of the nation at large: which privilege
is confirmed to them by several acts of parliament.25

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Such is the custom of gavelkind in Kent and some other parts of the kingdom (though perhaps it was
also general till the Norman conquest) which ordains, among other things, that not the eldest son
only of the father shall succeed to his inheritance, but all the sons alike: and that, though the ancestor
be attainted and hanged, yet the heir shall succeed to his estate, without any escheat to the lord. )
Such is the custom that prevails in diverse ancient boroughs, and therefore called borough-english,
that the youngest son shall inherit the estate, in preference to all his elder brothers. ) Such is the
custom in other boroughs that a widow shall be entitled, for her dower, to all her husband's lands;
whereas at the common law she shall be endowed of one third part only. Such also are the special
and particular customs of manors, of which every one has more or less, and which bind all the
copyhold and customary tenants that hold of the said manors. ) Such likewise is the custom of
holding diverse inferior courts, with power of trying causes, in cities and trading towns; the right
of holding which, when no royal grant can be shown, depends entirely upon immemorial and
established usage. ) Such, lastly, are many particular customs within the city of London, with regard
to trade, apprentices, widows, orphans, and a variety of other matters. All these are contrary to the
general law of the land, and are good only by special usage; though the customs of London are also
confirmed by act of parliament.26

To this head may most properly be referred a particular system of customs used only among one set
of the king's subjects, called the custom of merchants or lex mercatoria: which, however different
from the general rules of the common law, is yet engrafted into it, and made a part of it;27 being
allowed, for the benefit of trade, to be of the utmost validity in all commercial transactions: for it
is a maxim of law, that “cuilibet in sua arte credendum est” [“every man is to be credited in what
concerns his own profession”].

The rules relating to particular customs regard either the proof of their existence; their legality when
proved; or their usual method of allowance. And first we will consider the rules of proof.

As to gavelkind, and borough-english, the law takes particular notice of them,28 and there is no
occasion to prove that such customs actually exist, but only that the lands in question are subject
thereto. All other private customs must be particularly pleaded,29 and as well the existence of such
customs must be shown, as that the thing in dispute is within the custom alleged. The trial in both
cases (both to show the existence of the custom, as, “that in the manor of Dale lands shall descend
only to the heirs male, and never to the heirs female;” and also to show “that the lands in question
are within that manor”) is by a jury of twelve men, and not by the judges; except the same particular
custom has been before tried, determined, and recorded in the same court.30

The customs of London differ from all others in point of trial: for, if the existence of the custom be
brought in question, it shall not be tried by a jury, but by certificate from the lord mayor and
alderman by the mouth of their recorder,31 unless it be such a custom as the corporation is itself
interested in, as a right of taking toll, etc. for then the law permits them not to certify on their own
behalf.32

When a custom is actually proved to exist, the next inquiry is into the legality of it; for, if it is not
a good custom, it ought to be no longer used. “Malus usus abolendus est” [“bad customs should be
abolished”] is an established maxim of the law.33 To make a particular custom good, the following

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are necessary requisites.

1. That it have been used so long, that the memory of man runs not to the contrary. So that, if any
one can show the beginning of it, it is no good custom. For which reason no custom can prevail
against an express act of parliament; since the statute itself is a proof of a time when such a custom
did not exist.34

2. It must have been continued. Any interruption would cause a temporary ceasing: the revival gives
it a new beginning, which will be within time of memory, and thereupon the custom will be void.
But this must be understood with regard to an interruption of the right; for an interruption of the
possession only, for ten or twenty years, will not destroy the custom.35 As if the inhabitants of a
parish have a customary right of watering their cattle at a certain pool, the custom is not destroyed,
though they do not use it for ten years; it only becomes more difficult to prove: but if the right be
any how discontinued for a day, the custom is quite at an end.

3. It must have been peaceable, and acquiesced in; not subject to contention and dispute.36 For as
customs owe their original to common consent, their being immemorially disputed, either at law or
otherwise, is a proof that such consent was wanting.

4. Customs must be reasonable;37 or rather, taken negatively, they must not be unreasonable. Which
is not always, as sir Edward Coke says,38 to be understood of every unlearned man's reason, but of
artificial and legal reason, warranted by authority of law. Upon which account a custom may be
good, though, the particular reason of it cannot be assigned; for it suffices, if no good legal reason
can be assigned against it. Thus a custom in a parish, that no man shall put his beasts into the
common till the third of October, would be good; and yet it would be hard to show the reason why
that day in particular is fixed upon, rather than the day before or after. But a custom, that no cattle
shall be put in till the lord of the manor has first put in his, is unreasonable, and therefore bad: for
peradventure the lord will never put in his; and then the tenants will lose all their profits.39

5. Customs ought to be certain. A custom, that lands shall descend to the most worthy of the owner's
blood, is void; for how shall this worth be determined? but a custom to descend to the next male of
the blood, exclusive of females, is certain, and therefore good.40 A custom to pay two pence an acre
in lieu of tithes, is good; but to pay sometimes two pence and sometimes three pence, as the occupier
of the land pleases, is bad for its uncertainty. Yet a custom to pay a year's improved value for a fine
on a copyhold estate, is good; though the value is a thing uncertain: for the value may at any time
be ascertained; and the maxim of law is, id certum est, quod certum reddi potest [that is certain
which can be made certain].

6. Customs, though established by consent, must be (when established) compulsory; and not left to
the option of every man, whether he will use them or no. Therefore a custom, that all the inhabitants
shall be rated toward the maintenance of abridge, will be good; but a custom, that every man is to
contribute thereto at his own pleasure, is idle and absurd, and indeed no custom at all.

7. Lastly, customs must be consistent with each other: one custom cannot be set up in opposition to
another. For if both are really customs, then both are of equal antiquity, and both established by

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mutual consent: which to say of contradictory customs is absurd. Therefore, if one man prescribes
that by custom he has a right to have windows looking into another's garden; the other cannot claim
a right by custom to stop up or obstruct those windows: for these two contradictory customs cannot
both be good, nor both stand together. He ought rather to deny the existence of the former custom.41

Next, as to the allowance of special customs. Customs, in derogation of the common law, must be
construed strictly. Thus, by the custom of gavelkind, an infant of fifteen years may by one species
of conveyance (called a deed of feoffment) convey away his lands in fee simple, or for ever. Yet this
custom does not empower him to use any other conveyance, or even to lease them for seven years:
for the custom must be strictly pursued.42 And, moreover, all special customs must submit to the
king's prerogative. Therefore, if the king purchases lands of the nature of gavelkind, where all the
sons inherit equally; yet, upon the king's demise, his eldest son shall succeed to those lands alone.43
And thus much for the second part of the leges non scriptae, or those particular customs which affect
particular persons or districts only.

III. The third branch of them are those peculiar laws, which by custom are adopted and used only
in certain peculiar courts and jurisdictions. And by these I understand the civil and canon laws.

It may seem a little improper at first view to rank these laws under the head of leges non scriptae,
or unwritten laws, seeing they are set forth by authority in their pandects, their codes, and their
institutions; their councils, decrees, and decretals; and enforced by an immense number of
expositions, decisions, and treatises of the learned in both branches of the law. But I do this, after
the example of sir Matthew Hale,44 because it is most plain, that it is not on account of their being
written laws, that either the canon law, or the civil law, have any obligation within this kingdom:
neither do their force and efficacy depend upon their own intrinsic authority, which is the case of
our written laws, or acts of parliament. They bind not the subjects of England, because their
materials were collected from popes or emperors; were digested by Justinian, or declared to be
authentic by Gregory. These considerations give them no authority here: for the legislature of
England does not, nor ever did, recognize any foreign power, as superior or equal to it in this
kingdom; or as having the right to give law to any, the meanest, of its subjects. But all the strength
that either the papal or imperial laws have obtained in this realm (or indeed in any other kingdom
in Europe) is only because they have been admitted and received by immemorial usage and custom
in some particular cases, and some particular courts; and then they form a branch of the leges non
scriptae, or customary laws: or else, because they are in some other cases introduced by consent of
parliament, and then they owe their validity to the leges scriptae, or statute law. This is expressly
declared in those remarkable words of the statute 25 Henry VIII. c. 21, addressed to the king's royal
majesty. ) “This your grace's realm, recognizing no superior under God but only your grace, has
been and is free from subjection to any man's laws, but only to such as have been devised, made, and
ordained within this realm for the wealth of the same; or to such other as, by sufferance of your
grace and your progenitors, the people of this your realm have taken at their free liberty, by their
own consent, to be used among them: and have bound themselves by long use and custom to the
observance of the same: not as to the observance of the laws of any foreign prince, potentate, or
prelate; but as to the customed and ancient laws of this realm, originally established as laws of the
same, by the said sufferance, consents, and custom; and none otherwise.”

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By the civil law, absolutely taken, is generally understood the civil or municipal law of the Roman
empire, as comprised in the institutes, the code, and the digest of the emperor Justinian, and the
novel constitutions of himself and some of his successors. Of which, as there will frequently be
occasion to cite them, by way of illustrating our own laws, it may not be amiss to give a short and
general account.

The Roman law (founded first upon the regal constitutions of their ancient kings, next upon the
twelve tables of the decemviri, then upon the laws or statutes enacted by the senate or people, the
edicts of the praetor, and the responsa prudentum or opinions of learned lawyers, and lastly upon
the imperial decrees, or constitutions of successive emperors) had grown to so great a bulk, or, as
Livy expresses it,45 “tam immensus aliarum super alias acervatarum legum cumulus” [“such a vast
pile of laws heaped one upon the other”], that they were computed to be many camels' load by an
author who preceded Justinian.46 This was in part remedied by the collections of three private
lawyers, Gregorius, Hermogenes, and Papirius; and then by the emperor Theodosius the younger,
by whose orders a code was compiled, A. D. 438, being a methodical collection of all the imperial
constitutions then in force: which Theodosian code was the only book of civil law received as
authentic in the western part of Europe, till many centuries after; and to this it is probable that the
Franks and Goths might frequently pay some regard, in framing legal constitutions for their newly
erected kingdoms. For Justinian commanded only in the eastern remains of the empire; and it was
under his auspices, that the present body of civil law was compiled and finished by Tribonian and
other lawyers, about the year 533.

This consists of, 1. The institutes; which contain the elements or first principles of the Roman law,
in four books. 2. The digests, or pandects, in fifty books; containing the opinions and writings of
eminent lawyers, digested in a systematical method. 3. A new code, or collection of imperial
constitutions, in twelve books; the lapse of a whole century having rendered the former code, of
Theodosius, imperfect. 4. The novels, or new constitutions, posterior in time to the other books, and
amounting to a supplement to the code; containing new decrees of successive emperors, as new
questions happened to arise. These form the body of Roman law, or corpus juris civilis, as published
about the time of Justinian; which however fell soon into neglect and oblivion, till about the year
1130, when a copy of the digests was found at Amalfi in Italy: which accident, concurring with the
policy of the Roman ecclesiastics,47 suddenly gave new vogue and authority to the civil law,
introduced it into several nations, and occasioned that mighty inundation of voluminous comments,
with which this system of law, more than any other, is now loaded.

The canon law is a body of Roman ecclesiastical law, relative to such matters as that church either
has, or pretends to have, the proper jurisdiction over. This is compiled from the opinions of the
ancient Latin fathers, the decrees of general councils, and the decretal epistles and bulls of the holy
see. All which lay in the same disorder and confusion as the Roman civil law: till, about the year
1151, one Gratian an Italian monk, animated by the discovery of Justinian's pandects, reduced the
ecclesiastical constitutions also into some method, in three books; which he entitled concordia
discordantium canonum [arrangement of confused canons], but which are generally known by the
name of decretum Gratiani [decree of Gratian]. These reached as low as the time of pope Alexander
III. The subsequent papal decrees, to the pontificate of Gregory IX, were published in much the
same method under the auspices of that pope, about the year 1230, in five books; entitled decretalia

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Gregorii noni [decretals of Gregory the ninth]. A sixth book was added by Boniface VIII, about the
year 1298, which is called sextus decretalium [sixth decretal]. The Clementine constitutions, or
decrees of Clement V, were in like manner authenticated in 1317 by his successor John XXII; who
also published twenty constitutions of his own, called the extravagantes Joannis [extravagance of
John]: all which in some measure answer to the novels of the civil law. To these have been since
added some decrees of later popes in five books, called extravagantes communes [common
extravagance]. And all these together, Gratian's decree, Gregory's decretals, the sixth decretal, the
Clementine constitutions, and the extravagance of John and his successors, form the corpus juris
canonici, or body of the Roman canon law.

Besides these pontifical collections, which during the times of popery were received as authentic
in this island, as well as in other parts of Christendom, there is also a kind of national canon law,
composed of legatine and provincial constitutions, and adapted only to the exigencies of this church
and kingdom. The legatine constitutions were ecclesiastical laws, enacted in national synods, held
under the cardinals Otho and Othobon, legates from pope Gregory IX, and pope Clement IV, in the
reign of king Henry III, about the years 1220 and 1268. The provincial constitutions are principally
the decrees of provincial synods, held under diverse archbishops of Canterbury, from Stephen
Langton in the reign of Henry III, to Henry Chichele in the reign of Henry V; and adopted also by
the province of York,48 in the reign of Henry VI. At the dawn of the reformation, in the reign of king
Henry VIII, it was enacted in parliament49 that a review should be had of the canon law; and, till
such review should be made, all canons, constitutions, ordinances, and synodals provincial, being
then already made, and not repugnant to the law of the land or the king's prerogative, should still be
used and executed. And, as no such review has yet been perfected, upon this statute now depends
the authority of the canon law in England.

As for the canons enacted by the clergy under James I, in the year 1603, and never confirmed in
parliament, it has been solemnly adjudged upon the principles of law and the constitution, that where
they are not merely declaratory of the ancient canon law, but are introductory of new regulations,
they do not bind the laity;50 whatever regard the clergy may think proper to pay them.

There are four species of courts, in which the civil and canon laws are permitted (under different
restrictions) to be used. 1. The courts of the archbishops and bishops, and their derivative officers,
usually called in our law courts Christian, curiae Christianitatis, or the ecclesiastical courts. 2. The
military courts. 3. The courts of admiralty. 4. The courts of the two universities. In all, their
reception in general, and the different degrees of that reception, are grounded entirely upon custom;
corroborated in the latter instance by act of parliament, ratifying those charters which confirm the
customary law of the universities. The more minute consideration of these will fall properly under
that part of these commentaries which treats of the jurisdiction of courts. It will suffice at present
to remark a few particulars relative to them all, which may serve to inculcate more strongly the
doctrine laid down concerning them.51

1. And, first, the courts of common law have the superintendency over these courts; to keep them
within their jurisdictions, to determine wherein they exceed them, to restrain and prohibit such
excess, and (in case of contumacy) to punish the officer who executes, and in some cases the judge
who enforces, the sentence so declared to be illegal.

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2. The common law has reserved to itself the exposition of all such acts of parliament, as concern
either the extent of these courts, or the matters depending before them. And therefore, if these courts
either refuse to allow these acts of parliament, or will expound them in any other sense than what
the common law puts upon them, the king's courts at Westminster will grant prohibitions to restrain
and control them.

3. An appeal lies from all these courts to the king, in the last resort; which proves that the
jurisdiction exercised in them is derived from the crown of England, and not from any foreign
potentate, or intrinsic authority of their own. And, from these three strong marks and ensigns of
superiority, it appears beyond a doubt, that the civil and canon laws, though admitted in some cases
by custom in some courts, are only subordinate, and leges sub graviori lege [laws subject to a more
weighty law]; and that, thus admitted, restrained, altered, new-modeled, and amended, they are by
no means with us a distinct independent species of laws, but are inferior branches of the customary
or unwritten laws of England, properly called the king's ecclesiastical, the king's military, the king's
maritime, or the king's academical, laws.

Let us next proceed to the leges scriptae, the written laws of the kingdom: which are statutes, acts,
or edicts, made by the king's majesty, by and with the advice and consent of the lords spiritual and
temporal and commons in parliament assembled.52 The oldest of these now extant, and printed in
our statute books, is the famous Magna Charta, as confirmed in parliament 9 Hen. III. though
doubtless there were many acts before that time, the records of which are now lost, and the
determinations of them perhaps at present currently received for the maxims of the old common law.

The manner of making these statutes will be better considered hereafter, when we examine the
constitution of parliaments. At present we will only take notice of the different kinds of statutes; and
of some general rules with regard to their construction.53

First, as to their several kinds. Statutes are either general or special, public or private. A general or
public act is an universal rule, that regards the whole community: and of this the courts of law are
bound to take notice judicially and ex officio [officially]; without the statute being particularly
pleaded, or formally set forth by the party who claims an advantage under it. Special or private acts
are rather exceptions than rules, being those which only operate upon particular persons, and private
concerns: such as the Romans entitled senatus-decreta [Senate decrees], in contradistinction to the
senatus consulta [Senate acts], which regarded the whole community:54 and of these (which are not
promulgated with the same notoriety as the former) the judges are not to take notice, unless they be
formally shown and pleaded. Thus, to show the distinction, the statute 13 Eliz. c. 10. to prevent
spiritual persons from making leases for longer terms than twenty-one years, or three lives, is a
public act; it being a rule prescribed to the whole body of spiritual persons in the nation: but an act
to enable the bishop of Chester to make a lease to A. B. for sixty years, is an exception to this rule;
it concerns only the parties and the bishop's successors; and is therefore a private act.

Statutes are also either declaratory of the common law, or remedial of some defects therein.
Declaratory, where the old custom of the kingdom is almost fallen into disuse, or become disputable;
in which case the parliament has thought proper, in perpetuum rei testimonium [as its lasting
testimony], and for avoiding all doubts and difficulties, to declare what the common law is and ever

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has been. Thus the statute of treasons, 25 Edw. III. cap. 2, does not make any new species of
treasons; but only, for the benefit of the subject, declares and enumerates those several kinds of
offense, which before were treason at the common law. Remedial statutes are those which are made
to supply such defects, and abridge such superfluities, in the common law, as arise either from the
general imperfection of all human laws, from change of time and circumstances, from the mistakes
and unadvised determinations of unlearned (or even learned) judges, or from any other cause
whatsoever. And this being done, either by enlarging the common law where it was too narrow and
circumscribed, or by restraining it where it was too lax and luxuriant, has occasioned another
subordinate division of remedial acts of parliament into enlarging and restraining statutes. To
instance again in the case of treason. Clipping the current coin of the kingdom was an offense not
sufficiently guarded against by the common law: therefore it was thought expedient by statute 5 Eliz.
c. 11. to make it high treason, which it was not at the common law: so that this was an enlarging
statute. At common law also spiritual corporations might lease out their estates for any term of years,
till prevented by the statute 13 Eliz. before-mentioned: this was therefore a restraining statute.

Secondly, the rules to be observed with regard to the construction of statutes are principally these
which follow.

1. There are three points to be considered in the construction of all remedial statutes; the old law,
the mischief, and the remedy: that is, how the common law stood at the making of the act; what the
mischief was, for which the common law did not provide; and what remedy the parliament has
provided to cure this mischief. And it is the business of the judges so to construe the act, as to
suppress the mischief and advance the remedy.55 Let us instance again in the same restraining statute
of 13 Eliz. c. 10, By the common law, ecclesiastical corporations might let as long leases as they
thought proper: the mischief was, that they let long and unreasonable leases, to the impoverishment
of their successors: the remedy applied by the statute was by making void all leases by ecclesiastical
bodies for longer terms than three lives or twenty-one years. Now in the construction of this statute
it is held, that leases, though for a longer term, if made by a bishop, are not void during the bishop's
continuance in his see; or, if made by a dean and chapter, they are not void during the continuance
of the dean: for the act was made for the benefit and protection of the successor.56 The mischief is
therefore sufficiently suppressed by vacating them after the determination of the interest of the
grantors; but the leases, during their continuance, being not within the mischief, are not within the
remedy.

2. A statute, which treats of things or persons of an inferior rank, cannot by any general words be
extended to those of a superior. So a statute, treating of “deans, prebendaries, parsons, vicars, and
others having spiritual promotion,” is held not to extend to bishops, though they have spiritual
promotion; deans being the highest persons named, and bishops being of a still higher order.57

3. Penal statutes must be construed strictly. Thus the statute 1 Edw. VI. c. 12. having enacted that
those who are convicted of stealing horses should not have the benefit of clergy, the judges
conceived that this did not extend to him that should steal but one horse, and therefore procured a
new act for that purpose in the following year.58 And, to come nearer our own times, by the statute
14 Geo. II. c. 6. stealing sheep, or other cattle, was made felony without benefit of clergy. But these
general words, “or other cattle,” being looked upon as much too loose to create a capital offense, the

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act was held to extend to nothing but mere sheep. And therefore, in the next sessions, it was found
necessary to make another statute, 15 Geo. II. c. 34. extending the former to bulls, cows, oxen,
steers, bullocks, heifers, calves, and lambs by name.

4. Statutes against frauds are to be liberally and beneficially expounded. This may seem a
contradiction to the last rule, most statutes against frauds being in their consequences penal. But this
difference is here to be taken: where the statute acts Upon the offender, and inflicts a penalty, as the
pillory or a fine, it is then to be taken strictly: but when the statute acts upon the offense, by setting
aside the fraudulent transaction, here it is to be construed liberally. Upon this footing the statute of
13 Eliz. c. 5. which avoids all gifts of goods, etc. made to defraud creditors and others, was held to
extend by the general words to a gift made to defraud the queen of a forfeiture.59

5. One part of a statute must be so construed by another, that the whole may (if possible) stand: ut
res magis valeat, quam pereat [the whole subject matter may rather operate than be annulled]. As
if land be vested in the king and his heirs by act of parliament, saving the right of A; and A has at
that time a lease of it for three years: here A shall hold it for his term of three years, and afterwards
it shall go to the king. For this interpretation furnishes matter for every clause of the statute to work
and operate upon. But,

6. A saving, totally repugnant to the body of the act, is void. If therefore an act of parliament vests
land in the king and his heirs, saving the right of all persons whatsoever; or vests the land of A in
the king, saving the right of A: in either of these cases the saving is totally repugnant to the body of
the statute, and (if good) would render the statute of no effect or operation; and therefore the saving
is void, and the land vests absolutely in the king.60

7. Where the common law and a statute, differ, the common law gives place to the statute, and an
old statute gives place to a new one. And this upon a general principle of universal law, that “leges
posteriores priores contrarias abrogant” [“new laws repeal those preceding which are contrary”]:
consonant to which it was laid down by a law of the twelve tables of Rome, that “quod populus
postremum jussit, id jus ratum esto” [“let that which the people have last decreed be considered as
law”]. But this is to be understood, only when the latter statute is couched in negative terms, or
where its matter is so clearly repugnant, that it necessarily implies a negative. ) As if a former act
says, that a juror upon such a trial shall have twenty pounds a year; and a new statute afterwards
enacts that he shall have twenty marks: here the latter statute, though it does not express, yet
necessarily implies a negative, and, virtually repeals the former. For if twenty marks be made
qualification sufficient, the former statute which requires twenty pounds is at an end.61 But if both
acts be merely affirmative, and the substance such that both may stand together, here the latter does
not repeal the former, but they shall both have a concurrent efficacy. If by a former law an offense
be indictable at the quarter-sessions, and a latter law makes the same offense indictable at the
assizes; here the jurisdiction of the sessions is not taken away, but both have a concurrent
jurisdiction, and the offender may be prosecuted at either: unless the new statute subjoins express
negative words, as, that the offense shall be indictable at the assizes, and not elsewhere.62

8. If a statute, that repeals another, is itself repealed afterwards, the first statute is hereby revived,
without any formal words for that purpose. So when the statutes of 26 and 35 Hen. VIII, declaring

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the king to be the supreme head of the church, were repealed by a statute 1 and 2 Philip and Mary,
and this latter statute was afterwards repealed by an act of 1 Eliz. there needed not any express
words of revival in queen Elizabeth's statute, but these acts of king Henry were impliedly and
virtually revived.63

9. Acts of parliament derogatory from the power of subsequent parliaments bind not. So the statute
11 Hen. VII. c. 1. which directs, that no person for assisting a king de facto [in fact] shall be
attainted of treason by act of parliament or otherwise, is held to be good only as to common
prosecutions for high treason; but will not restrain or clog any parliamentary attainder.64 Because
the legislature, being in truth the sovereign power, is always of equal, always of absolute authority:
it acknowledges no superior upon earth, which the prior legislature must have been, if its ordinances
could bind a subsequent parliament. And upon the same principle Cicero, in his letters to Atticus,
treats with a proper contempt these restraining clauses, which endeavor to tie up the hands of
succeeding legislatures. “When you repeal the law itself, says he, you at the same time repeal the
prohibitory clause, which guards against such repeal.”65

10. Lastly, acts of parliament that are impossible to be performed are of no validity: and if there arise
out of them collaterally any absurd consequences, manifestly contradictory to common reason, they
are, with regard to those collateral consequences, void. I lay down the rule with these restrictions;
though I know it is generally laid down more largely, that acts of parliament contrary to reason are
void. But if the parliament will positively enact a thing to he done which is unreasonable, I know
of no power in the ordinary forms of the constitution, that is vested with authority to control it: and
the examples usually alleged in support of this sense of the rule do none of them prove, that, where
the main object of a statute is unreasonable, the judges are at liberty to reject it; for that were to set
the judicial power above that of the legislature, which would be subversive of all government. But
where some collateral matter arises out of the general words, and happens to be unreasonable; there
the judges are in decency to conclude that this consequence was not foreseen by the parliament, and
therefore they are at liberty to expound the statute by equity, and only quoad hoc [as to this]
disregard it. Thus if an act of parliament gives a man power to try all causes, that arise within his
manor of Dale; yet, if a cause should arise in which he himself is party, the act is construed not to
extend to that, because it is unreasonable that any man should determine his own quarrel.66 But, if
we could conceive it possible for the parliament to enact, that he should try as well his own causes
as those of other persons, there is no court that has power to defeat the intent of the legislature, when
couched in such evident and express words, as leave no doubt whether it was the intent of the
legislature or no.

These are the several grounds of the laws of England: over and above which, equity is also
frequently called in to assist, to moderate, and to explain them. What equity is, and how impossible
in its very essence to be reduced to stated rules, has been shown in the preceding section. I shall
therefore only add, that (besides the liberality of sentiment with which our common law judges
interpret acts of parliament, and such rules of the unwritten law as are not of a positive kind) there
are also peculiar courts of equity established for the benefit of the subject; to detect latent frauds and
concealments, which the process of the courts of law is not adapted to reach; to enforce the
execution of such matters of trust and confidence, as are binding in conscience, though not
cognizable in a court of law; to deliver from such dangers as are owing to misfortune or oversight;

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and to give a more specific relief, and more adapted to the circumstances of the case, than can
always be obtained by the generality of the rules of the positive or common law. This is the business
of our courts of equity, which however are only conversant in matters of property. For the freedom
of our constitution will not permit, that in criminal cases a power should be lodged in any judge, to
construe the law otherwise than according to the letter. This caution, while it admirably protects the
public liberty, can never bear hard upon individuals. A man cannot suffer more punishment than the
law assigns, but he may suffer less. The laws cannot be strained by partiality to inflict a penalty
beyond what the letter will warrant; but, in cases where the letter induces any apparent hardship, the
crown has the power to pardon.

NOTES

1. Caes. de b. G. lib. 6. c. 13.

2. Spelm. Gl. 362.
3. c. 17.
4. See his proposals of a digest.
5. c. 2.
6. Hal. Hist. 55.
7. in Hen. II.
8. in Edw. Confessor.
9. in Seld. ad Eadmer. 6
10. Mod. Un. Hist. xxii 135.
11. Ibid xx. 211.
12. Ibid xxxiii. 21. 58.
13. cap. 8.
14. Seld. review of Tith c. 8.
15. Herein agreeing with the civil law, Ff. 1. 3. 20, 21. “Non omnium, quae a majoribus nostris constituta sunt, ratio reddi
potest; et ideo rationes eorum, quae constituuntur, inquiri non oportet: alioquin multa ex his, quae certa sunt, subvertuntur.”
[“Reasons cannot be given for all the laws which our ancestors have appointed; therefore we should not seek them; otherwise
many of those laws which are established would be subverted.”]
16. “Si imperialis majestas causam cognitionaliter examinaverit, et partibus, cominus constitutis sententiam dixerit, omnes
omnino judices, qui sub nostro imperio sunt, sciant hanc esse legem, non solum illi causae pro qua producta est, sed et in
omnibus similibus.” [“If the Emperor shall have examined the cause, and shall immediately declare his opinion, let all the
judges of the land know that this is law, not only with respect to that cause which first produced the opinion, but to every
other of the like nature.”] C. 1. 14. 12.
17. Pat. 15 Jac. I. p. 18, 17 Rym. 26.

18. His reports, for instance, are styled κατ εξοχην the reports, and in quoting them we usually say, 1 or 2 Kep. not 1 or
2 Coke's Rep. as in citing other authors. The reports of judge Croke are also cited in a peculiar manner, by the name of those
princes, in whose reigns the cases reported in his three volumes were determined; viz. queen Elizabeth, king James, and king
Charles the first; as well as by the number of each volume. For sometimes we call them 1, 2, and 3 Cro. but more commonly
Cro. Eliz. Cro. Jac. and Cro. Car.

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19. It is usually cited either by the name of Co. Litt. or as 1 Inst.

20. These are cited as 2, 3, or 4 Inst. without any author's name. An honorary distinction, which, we observed, is paid to the
works of no other writer; the generality of reports and other tracts being quoted in the name of the compiler, as 2 Ventris, 4
Leonard, 1 Siderfin, and the like.
21. Ff. 1. 3. 32.
22. Ff. 1. 4. 1.
23. C. 1. 14. 12.
24. C. 1. 23. 5.
25. Mag. Chart. 9 Hen. III. c. 9 ... 1 Edw. III. st. 2. c. 9 ... 14 Edw. III. st. 1. c. 1 ... and 2 Hen. IV. c. 1.
26. 8 Rep 126. Cro. Car. 347.
27. Winch. 24.
28. Co. Litt. 175.
29. Litt. §. 265.
30. Dr. & St. 1. 10.
31. Cro. Car. 516.
32. Hob. 85.
33. Litt. §. 212. 4 Inst. 274.
34. Co. Litt. 113.
35. Ibid. 114.
36. Ibid.
37. Litt. § 212.
38. 1 Inst. 62.
39. Co. Copyh. § 33.
40. 1 Roll Abr 565
41. 9 Rep 58
42. Co. Cop. §. 33.
43. Co. Litt. 15.
44. Hist. C. L. c. 2.
45. l. 3. c. 34.
46. Taylor's elements of civil law 17.
47. See §. 1. p. 18.
48. Burn's eccl. law, pref. viii.
49. Statute 25 Hen. VIII, c. 19, revived and confirmed by 1 Eliz. c. 1.
50. Stra. 1057.

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William Blackstone: Vol. 1, Commentaries on the Laws of England (1765) Page 56

51. Hale Hist. c. 2.

52. 8 Rep. 20.
53. The method of citing these acts of parliament is various. Many of our ancient statutes are called after the name of the
place where the parliament was held that made them; as the statutes of Merton and Marlbridge, of Westminster, Gloucester,
and Winchester. Others are denominated entirely from their subject; as the statutes of Wales and Ireland, the articuli cleri
[articles of the clergy], and the praerogativa regis [King’s prerogative]. Some are distinguished by their initial words, a
method of citing very ancient: being used by the Jews in denominating the books of the pentateuch, by the Christian church
in distinguishing their hymns and divine offices; by the Romanists in describing their papal bulls; and in short by the whole
body of ancient civilians and canonists, among whom this method of citation generally prevailed, not only with regard to
chapters, but inferior sections also; in imitation of all which we still call some of our old statutes by their initial words, as the
statute of quia emptores [because purchasers], and that of circumspecte agatis [that ye act circumspectly]. But the most usual
method of citing them, especially since the time of Edward the second, is by naming the year of the king's reign in which the
statute was made, together with the chapter, or particular act, according to its numeral order, as 9 Geo. II. c. 4. For all the acts
of one session of parliament taken together make properly but one statute: and therefore when two sessions have been held
in one year, we usually mention stat. 1. or 2. Thus the bill of rights is cited, as 1 W. and M. st. 2. c. 2 signifying that it is the
second chapter or act, of the second statute, or the laws made in the second session of parliament, in the first year of king
William and queen Mary.
54. Gravin. Orig. 1. §. 24.
55. 3 Rep. 7. Co. Litt. 11. 42.
56. Co. Litt. 45. 3 Rep. 60. 10 Rep. 58.
57. 2 Rep. 46.
58. 2 & 3 Edw. VI. c. 33 Bac. Elem. c. 12.
59. 3 Rep. 83.
60. 1 Rep. 47.
61. Jenk. Cent. 2. 73.
62. 11 Rep. 63.
63. 4 Inst. 325.
64. 4 Inst. 43.
65. Cum lex abrogatur, illad ipsum abrogatur, quo non eam abrogari oporteut. [When you repeal the law itself, you at the
same time repeal the prohibitory clause, which guards against such repeal.] l ep. 23.
66. 8. Rep. 118.

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SECTION 4
Of the Countries Subject to the Laws of England

The kingdom of England, over which our municipal laws have jurisdiction, includes not, by the
common law, either Wales, Scotland, or Ireland, or any other part of the king's dominions, except
the territory of England only. And yet the civil laws and local customs of this territory do now
obtain, in part or in all, with more or less restrictions, in these and many other adjacent countries;
of which it will be proper first to take a view, before we consider the kingdom of England itself, the
original and proper subject of these laws.

Wales had continued independent of England, unconquered and uncultivated, in the primitive
pastoral state which Caesar and Tacitus ascribe to Britain in general, for many centuries; even from
the time of the hostile invasions of the Saxons, when the ancient and Christian inhabitants of the
island retired to those natural entrenchments, for protection from their pagan visitants. But when
these invaders themselves were converted to Christianity, and settled into regular and potent
governments, this retreat of the ancient Britons grew every day narrower; they were over-run by
little and little, gradually driven from one fastness to another, and by repeated losses abridged of
their wild independence. Very early in our history we find their princes doing homage to the crown
of England; till at length in the reign of Edward the first, who may justly be styled the conqueror of
Wales, the line of their ancient princes was abolished, and the king of England's eldest son became,
as a matter of course, their titular prince; the territory of Wales being then entirely re-annexed (by
a kind of feudal resumption) to the dominion of the crown of England;1 or, as the statute of
Rhudhlan2 expresses it, “terra Walliae cum incolis suis, prius regi jure feodali subjecta, (of which
homage was the sign) jam in proprietatis dominium totaliter et cum integritate conversa est, et
coronae regni Angliae tanquam pars corporis ejusdem annexa et unita” [“the country of Wales,
together with its inhabitants, was formerly held under the King by the feudal law; it is now
completely converted into a principality, and annexed to, and united with, the crown of England, as
forming a part of the same kingdom”]. By the statute also of Wales3 very material alterations were
made in diverse parts of their laws, so as to reduce them nearer to the English standard, especially
in the forms of their judicial proceedings: but they still retained very much of their original polity;
particularly their rule of inheritance, viz. that their lands were divided equally among all the issue
male, and did not descend to the eldest son alone. By other subsequent statutes their provincial
immunities were still farther abridged: but the finishing stroke to their independency was given by
the statute 27 Hen. VIII. c. 26. which at the same time gave the utmost advancement to their civil
prosperity, by admitting them to a thorough communication of laws with the subjects of England.
Thus were this brave people gradually conquered into the enjoyment of true liberty; being insensibly
put upon the same footing, and made fellow-citizens with their conquerors. A generous method of
triumph, which the republic of Rome practiced with great success; till she reduced all Italy to her
obedience, by admitting the vanquished states to partake of the Roman privileges.

It is enacted by this statute 27 Hen. VIII, 1. That the dominion of Wales shall be for ever united to
the kingdom of England. 2. That all Welshmen born shall have the same liberties as other the king's
subjects. 3. That lands in Wales shall be inheritable according to the English tenures and rules of
descent. 4. That the laws of England, and no other, shall be used in Wales: besides many other
regulations of the police of this principality. And the statute 34 and 35 Hen. VIII, c. 26. confirms

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the same, adds farther regulations, divides it into twelve shires, and, in short, reduces it into the same
order in which it stands at this day; differing from the kingdom of England in only a few particulars,
and those too of the nature of privileges, (such as having courts within itself, independent of the
process of Westminster-hall,) and some other immaterial peculiarities, hardly more than are to be
found in many counties of England itself.

The kingdom of Scotland, notwithstanding the union of the crowns on the accession of their king
James VI. to that of England, continued an entirely separate and distinct kingdom for above a
century more, though an union had been long projected; which was judged to be the more easy to
be done, as both kingdoms were anciently under the same government, and still retained a very great
resemblance, though far from an identity, in their laws. By an act of parliament 1 Jac. I. c. 1. it is
declared, that these two mighty, famous, and ancient kingdoms were formerly one. And sir Edward
Coke observes,4 how marvelous a conformity there was, not only in the religion and language of the
two nations, but also in their ancient laws, the descent of the crown, their parliaments, their titles of
nobility, their officers of state and of justice, their writs, their customs, and even the language of
their laws. Upon which account he supposes the common law of each to have been originally the
same; especially as their most ancient and authentic book, called regiam majestatem, and containing
the rules of their ancient common law, is extremely similar to that of Glanvil, which contains the
principles of ours, as it stood in the reign of Henry II. And the many diversities, subsisting between
the two laws at present, may be well enough accounted for, from a diversity of practice in two large
and uncommunicating jurisdictions, and from the acts of two distinct and independent parliaments,
which have in many points altered and abrogated the old common law of both kingdoms.

However, sir Edward Coke, and the politicians of that time, conceived great difficulties in carrying
on the projected union: but these were at length overcome, and the great work was happily effected
in 1707, 6 Anne; when twenty-five articles of union were agreed to by the parliaments of both
nations; the purport of the most considerable being as follows:

1. That on the first of May, 1707, and for ever after, the kingdoms of England and Scotland shall be
united into one kingdom, by the name of Great Britain.

2. The succession to the monarchy of Great Britain shall be the same as was before settled with
regard to that of England.

3. The united kingdom shall be represented by one parliament.

4. There shall be a communication of all rights and privileges between the subjects of both
kingdoms, except where it is otherwise agreed.

9. When England raises 2,000,000£ by a land-tax, Scotland shall raise 48,000£.

16, 17. The standards of the coin, of weights, and of measures, shall be reduced to those of England,
throughout the united kingdoms.

18. The laws relating to trade, customs, and the excise, shall be the same in Scotland as in England.

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But all the other laws of Scotland shall remain in force; though alterable by the parliament of Great
Britain. Yet with this caution: that laws relating to public policy are alterable at the discretion of the
parliament; laws relating to private right are not to be altered but for the evident utility of the people
of Scotland.

22. Sixteen peers are to be chosen to represent the peerage of Scotland in parliament, and forty-five
members to sit in the house of commons.

23. The sixteen peers of Scotland shall have all privileges of parliament: and all peers of Scotland
shall be peers of Great Britain, and rank next after those of the same degree at the time of the union,
and shall have all privileges of peers, except sitting in the house of lords and voting on the trial of
a peer.

These are the principal of the twenty-five articles of union, which are ratified and confirmed by
statute 5 Ann. c. 8. in which statute there are also two acts of parliament recited; the one of Scotland,
whereby the church of Scotland and also the four universities of that kingdom, are established for
ever, and all succeeding sovereigns are to take an oath inviolably to maintain the same: the other of
England, 5 Ann. c. 6. whereby the acts of uniformity of. 13 Eliz. and 13 Car. II. (except as the same
had been altered by parliament at that time) and all other acts then in force for the preservation of
the church of England, are declared perpetual; and it is stipulated, that every subsequent king and
queen shall take an oath inviolably to maintain the same within England, Ireland, Wales, and the
town of Berwick upon Tweed. And it is enacted, that these two acts “shall for ever be observed as
fundamental and essential conditions of the union.”

Upon these articles and act of union, it is to be observed, 1. That the two kingdoms are now so
inseparably united, that nothing can ever disunite them again; except the mutual consent of both, or
the successful resistance of either, upon apprehending an infringement of those points which, when
they were separate and independent nations, it was mutually stipulated should be “fundamental and
essential conditions of the union.”5 2. That whatever else may be deemed “fundamental and essential
conditions,” the preservation of the two churches, of England and Scotland, in the same state that
they were in at the time of the union, and the maintenance of the acts of uniformity which establish
our common prayer, are expressly declared so to be. 3. That therefore any alteration in the
constitution of either of those churches, or in the liturgy of the church of England, (unless with the
consent of the respective churches, collectively or representatively given,) would be an infringement
of these “fundamental and essential conditions,” and greatly endanger the union. 4. That the
municipal laws of Scotland are ordained to be still observed in that part of the island, unless altered
by parliament; and, as the parliament has not yet thought proper, except in a few instances, to alter
them, they still (with regard to the particulars unaltered) continue in full force. Wherefore the
municipal or common laws of England are, generally speaking, of no force or validity in Scotland;
and of consequence, in the ensuing commentaries, we shall have very little occasion to mention, any
farther than sometimes by way of illustration, the municipal laws of that part of the united kingdoms.

The town of Berwick upon Tweed was originally part of the kingdom of Scotland; and, as such, was
for a time reduced by king Edward I. into the possession of the crown of England: and, during such
its subjection, it received from that prince a charter, which (after its subsequent cession by Edward

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William Blackstone: Vol. 1, Commentaries on the Laws of England (1765) Page 60

Balliol, to be for ever united to the crown and realm of England) was confirmed by king Edward III,
with some additions; particularly that it should be governed by the laws and usages which it enjoyed
during the time of king Alexander, that is before its reduction by Edward I. Its constitution was
new-modeled, and put upon an English footing by a charter of king James I: and all its liberties,
franchises, and customs, were confirmed in parliament by the statutes 22 Edw. IV. c. 8. and 2 Jac.
I. c. 28. Though therefore it has some local peculiarities, derived from the ancient laws of Scotland,6
yet it is clearly part of the realm of England, being represented by burgesses in the house of
commons, and bound by all acts of the British parliament, whether specially named or otherwise.
And therefore it was (perhaps superfluously) declared by statute 20 Geo. II. c. 42. that, where
England only is mentioned in any act of parliament, the same notwithstanding has and shall be
deemed to comprehend the dominion of Wales and town of Berwick upon Tweed. And though
certain of the king's writs or processes of the courts of Westminster do not usually run into Berwick,
any more than the principality of Wales, yet it has been solemnly adjudged7 that all prerogative writs
(as those of mandamus [we command], prohibition, habeas corpus [we have the body], certiorari
[we have given notice], etc.) may issue to Berwick as well as to every other of the dominions of the
crown of England, and that indictments and other local matters arising in the town of Berwick may
be tried by a jury of the county of Northumberland.

As to Ireland, that is still a distinct kingdom; though a dependent subordinate kingdom. It was only
entitled the dominion or lordship of Ireland8 and the king's stile was no other than dominus
Hiberniae, lord of Ireland, till the thirty-third year of king Henry the eighth; when he assumed the
title of king, which is recognized by act of parliament 35 Hen. VIII. c. 3. But, as Scotland and
England are now one and the same kingdom, and yet differ in their municipal laws; so England and
Ireland are, on the other hand, distinct kingdoms, and yet in general agree in their laws. The
inhabitants of Ireland are, for the most part, descended from the English, who planted it as a kind
of colony, after the conquest of it by king Henry the second: and the laws of England were then
received and sworn to by the Irish nation, assembled at the council of Lismore.9 And as Ireland, thus
conquered, planted, and governed, still continues in a state of dependence, it must necessarily
conform to, and be obliged by, such laws as the superior state thinks proper to prescribe.

At the time of this conquest the Irish were governed by what they call the Brehon law, so styled
from the Irish name of judges, who were denominated Brehons.10 But king John in the twelfth year
of his reign went into Ireland and carried over with him many able sages of the law; and there by
his letters patent, in right of the dominion of conquest, is said to have ordained and established that
Ireland should be governed by the laws of England:11 which letters patent sir Edward Coke12
apprehends to have been there confirmed in parliament. But to this ordinance many of the Irish were
averse to conform, and still stuck to their Brehon law: so that both Henry the third13 and Edward the
first14 were obliged to renew the injunction; and at length in a parliament held at Kilkenny, 40 Edw.
III. under Lionel the duke of Clarence, then lieutenant of Ireland, the Brehon law was formally
abolished, it being unanimously declared to be indeed no law, but a lewd custom crept in of later
times. And yet, even in the reign of queen Elizabeth, the wild natives still kept and preserved their
Brehon law; which is described15 to have been “a rule of right unwritten, but delivered by tradition
from one to another, in which oftentimes there appeared great show of equity in determining the
right between party and party, but in many things repugnant quite both to God's laws and man's.”
The latter part of this character is alone ascribed to it, by the laws before-cited of Edward the first

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William Blackstone: Vol. 1, Commentaries on the Laws of England (1765) Page 61

and his grandson.

But as Ireland was a distinct dominion, and had parliaments of its own, it is to be observed, that
though the immemorial customs, or common law, of England were made the rule of justice in
Ireland also, yet no acts of the English parliament, since the twelfth of king John, extended into that
kingdom, unless it were specially named, or included under general words, such as, “within any of
the king's dominions.” And this is particularly expressed, and the reason given in the year books:16
“a tax granted by the parliament of England shall not bind those of Ireland, because they are not
summoned to our parliament;” and again, “Ireland has a parliament of its own, and makes and alters
laws; and our statutes do not bind them, because they do not send knights to our parliament: but their
persons are the king's subjects, like as the inhabitants of Calais, Gascoigne, and Gulenne, while they
continued under the king's subjection.” The general run of laws, enacted by the superior state, are
supposed to be calculated for its own internal government, and do not extend to its distant dependent
countries; which, bearing no part in the legislature, are not therefore in its ordinary and daily
contemplation. But, when the sovereign legislative power sees it necessary to extend its care to any
of its subordinate dominions, and mentions them expressly by name or includes them under general
words, there can be no doubt but then they are bound by its laws.17

The original method of passing statutes in Ireland was nearly the same as in England, the chief
governor holding parliaments at his pleasure, which enacted such laws as they thought proper.18 But
an ill use being made of this liberty, particularly by lord Gormanstown, deputy-lieutenant in the
reign of Edward IV,19 a set of statutes were there enacted in the 10 Hen. VII. (sir Edward Poynings
being then lord deputy, whence they are called Poyning's laws) one of which,20 in order to restrain
the power as well of the deputy as the Irish parliament, provides, 1. That, before any parliament be
summoned or held, the chief governor and council of Ireland shall certify to the king under the great
seal of Ireland the considerations and causes thereof, and the articles of the acts proposed to be
passed therein. 2. That after the king, in his council of England, shall have considered, approved,
or altered the said acts or any of them, and certified them back under the great seal of England, and
shall have given license to summon and hold a parliament, then the same shall be summoned and
held; and therein the said acts so certified, and no other, shall be proposed, received, or rejected.21
But as this precluded any law from being proposed, but such as were pre-conceived before the
parliament was in being, which occasioned many inconveniences and made frequent dissolutions
necessary, it was provided by the statute of Philip and Mary before-cited, that any new propositions
might be certified to England in the usual forms, even after the summons and during the session of
parliament. By this means however there was nothing left to the parliament in Ireland, but a bare
negative or power of rejecting, not of proposing or altering, any law. But the usage now is, that bills
are often framed in either house, under the denomination of “heads for a bill or bills:” and in that
shape they are offered to the consideration of the lord lieutenant and privy council: who, upon such
parliamentary intimation, or otherwise upon the application of private persons, receive and transmit
such heads, or reject them without any transmission to England. And with regard to Poynings' law
in particular, it cannot be repealed or suspended, unless the bill for that purpose, before it be certified
to England, be approved by both the houses.22

But the Irish nation, being excluded from the benefit of the English statutes, were deprived of many
good and profitable laws, made for the improvement of the common law: and the measure of justice

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in both kingdoms becoming thence no longer uniform, it was therefore enacted by another of
Poynings' laws,23 that all acts of parliament, before made in England, should be of force within the
realm of Ireland.24 But, by the same rule, that no laws made in England, between king John's time
and Poynings' law, were then binding in Ireland, it follows that no acts of the English parliament
made since the 10 Hen. VII. do now bind the people of Ireland, unless specially named or included
under general words.25 And on the other hand it is equally clear, that where Ireland is particularly
named, or is included under general words, they are bound by such acts of parliament. For this
follows from the very nature and constitution of a dependent state: dependence being very little else,
but an obligation to conform to the will or law of that superior person or state, upon which the
inferior depends. The original and true ground of this superiority, in the present case, is what we
usually call, though somewhat improperly, the right of conquest: a right allowed by the law of
nations, if not by that of nature; but which in reason and civil policy can mean nothing more, than
that, in order to put an end to hostilities, a compact is either expressly or tacitly made between the
conqueror and the conquered, that if they will acknowledge the victor for their master, he will treat
them for the future as subjects, and not as enemies.26

But this state of dependence being almost forgotten, and ready to be disputed by the Irish nation, it
became necessary some years ago to declare how that matter really stood: and therefore by statute
6 Geo. I. c. 5. it is declared, that the kingdom of Ireland ought to be subordinate to, and dependent
upon, the imperial crown of Great Britain, as being inseparably united thereto; and that the king's
majesty, with the consent of the lords and commons of Great Britain in parliament, has power to
make laws to bind the people of Ireland.

Thus we see how extensively the laws of Ireland communicate with those of England: and indeed
such communication is highly necessary, as the ultimate resort from the courts of justice in Ireland
is, as in Wales, to those in England; a writ of error (in the nature of an appeal) lying from the king's
bench in Ireland to the king's bench in England,27 as the appeal from the chancery in Ireland lies
immediately to the house of lords here; it being expressly declared, by the same statute 6 Geo. I. c.
5. that the peers of Ireland have no jurisdiction to affirm or reverse any judgments or decrees
whatsoever. The propriety, and even necessity, in all inferior dominions, of this constitution, “that,
though justice be in general administered by courts of their own, yet that the appeal in the last resort
ought to be to the courts of the superior state,” is founded upon these two reasons. 1. Because
otherwise the law, appointed or permitted to such inferior dominion, might be insensibly changed
within itself, without the assent of the superior. 2. Because otherwise judgments might be given to
the disadvantage or diminution of the superiority; or to make the dependence to be only of the
person of the king, and not of the crown of England.28

With regard to the other adjacent islands which are subject to the crown of Great Britain, some of
them (as the isle of Wight, of Portland, of Thanet, etc.) are comprised within some neighboring
county, and are therefore to be looked upon as annexed to the mother island, and part of the kingdom
of England. But there are others which require a more particular consideration.

And, first, the isle of Man is a distinct territory from England, and is not governed by our laws:
neither does any act of parliament extend to it, unless it be particularly named therein: and then an
act of parliament is binding there.29 It was formerly a subordinate feudatory kingdom, subject to the

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kings of Norway; then to king John and Henry III. of England; afterward to the kings of Scotland;
and then again to the crown of England: and at length we find king Henry IV claiming the island by
right of conquest, and disposing of it to the earl of Northumberland; upon whose attainder it was
granted (by the name of the lordship of Man) to sir John de Stanley by letters patent 7 Henry IV.30
In his lineal descendants it continued for eight generations, till the death of Ferdinando earl of
Derby, A. D. 1594: when a controversy arose concerning the inheritance thereof, between his
daughters and William his surviving brother: upon which, and a doubt that was started concerning
the validity of the original patent,31 the island was seized into the queen's hands, and afterwards
various grants were made of it by king James the first; all which being expired or surrendered, it was
granted afresh in 7 Jac I. to William earl of Derby, and the heirs male of his body, with remainder
to his heirs general; which grant was the next year confirmed by act of parliament, with a restraint
of the power of alienation by the said earl and his issue male. On the death of James earl of Derby,
A. D. 1735, the male line of earl William failing, the duke of Atholl succeeded to the island as heir
general by a female branch. In the mean time, though the title of king had long been disused, the
earls of Derby, as lords of Man, had maintained a sort of royal authority therein; by assenting or
dissenting to laws, and exercising an appellate jurisdiction. Yet, though no English writ, or process
from the courts of Westminster, was of any authority in Man, an appeal lay from a decree of the lord
of the island to the king of Great Britain in council.32 But the distinct jurisdiction of this little
subordinate royalty being found inconvenient for the purposes of public justice, and for the revenue,
(it affording a commodious asylum for debtors, outlaws, and smugglers,) authority was given to the
treasury by statute 12 Geo. I. c. 28. to purchase the interest of the then proprietors for the use of the
crown: which purchase was at length completed in the year 1765, and confirmed by statutes 5 Geo.
III. c. 26 and 39. whereby the whole island and all its dependencies, so granted as aforesaid, (except
the landed property of the Atholl family, their manorial rights and emoluments, and the patronage
of the bishopric33 and other ecclesiastical benefices,) are inalienably vested in the crown, and
subjected to the regulations of the British excise and customs.

The islands of Jersey, Guernsey, Sark, Alderney, and their appendages, were parcel of the duchy of
Normandy, and were united to the crown of England by the first princes of the Norman line. They
are governed by their own laws, which are for the most part the ducal customs of Normandy, being
collected in an ancient book of very great authority, entitled, le grand coustumier. The king's writ,
or process, from the courts of Westminster, is there of no force; but his commission is. ) They are
not bound by common acts of our parliaments, unless particularly named.34 All causes are originally
determined by their own officers, the bailiffs and jurats of the islands; but an appeal lies from them
to the king and council, in the last resort.

Besides these adjacent islands, our more distant plantations in America, and elsewhere, are also in
some respect subject to the English laws. Plantations or colonies, in distant countries, are either such
where the lands are claimed by right of occupancy only, by finding them desert and uncultivated,
and peopling them from the mother country; or where, when already cultivated, they have either
gained, by conquest, or ceded to us by treaties. And both these rights are founded upon the law of
nature, or at least upon that of nations. But there is a difference between these two species of
colonies, with respect to the laws by which they are bound. For it has been held,35 that if an
uninhabited country be discovered and planted by English subjects, all the English laws then in
being, which are the birthright of every subject,36 are immediately there in force. But this must be

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understood with very many and very great restrictions. Such colonists carry with them only so much
of the English law, as is applicable to their own situation and the condition of an infant colony; such,
for instance, as the general rules of inheritance, and of protection from personal injuries. The
artificial refinements and distinctions incident to the property of a great and commercial people, the
laws of police and revenue, (such especially as are enforced by penalties) the mode of maintenance
for the established clergy, the jurisdiction of spiritual courts, and a multitude of other provisions,
are neither necessary nor convenient for them, and therefore are not in force. What shall be admitted
and what rejected, at what times, and under what restrictions, must, in case of dispute, be decided
in the first instance by their own provincial judicature, subject to the revision and control of the king
in council: the whole of their constitution being also liable to be new-modeled and reformed by the
general superintending power of the legislature in the mother country. But in conquered or ceded
countries, that have already laws of their own, the king may indeed alter and change those laws; but,
till he does actually change them, the ancient laws of the country remain, unless such as are against
the law of God, as in the case of an infidel country.37

Our American plantations are principally of this latter sort, being obtained in the last century either
by right of conquest and driving out the natives (with what natural justice I shall not at present
inquire) or by treaties. And therefore the common law of England, as such, has no allowance or
authority there; they being no part of the mother country, but distinct (though dependent) dominions.
They are subject however to the control of the parliament, though (like Ireland, Man, and the rest)
not bound by any acts of parliament, unless particularly named.

With respect to their interior polity, our colonies are properly of three sorts. 1. Provincial
establishments, the constitutions of which depend on the respective commissions issued by the
crown to the governors, and the instructions which usually accompany those commissions; under
the authority of which, provincial assemblies are constituted, with the power of making local
ordinances, not repugnant to the laws of England. 2. Proprietary governments, granted out by the
crown to individuals, in the nature of feudatory principalities, with all the inferior regalities, and
subordinate powers of Legislation, which formerly belonged to the owners of counties palatine: yet
still with these express conditions, that the ends for which the grant was made be substantially
pursued, and that nothing be attempted which may derogate from the sovereignty of the
mother-country. 3. Charter governments, in the nature of civil corporations, with the power of
making bye-laws for their own interior regulation, not contrary to the laws of England: and with
such rights and authorities as are specially given them in their several charters of incorporation. The
form of government in most of them is borrowed from that of England. They have a governor named
by the king, (or in some proprietary colonies by the proprietor,) who is his representative or deputy.
They have courts of justice of their own, from whose decisions an appeal lies to the king and council
here in England. Their general assemblies which are their house of commons, together with their
council of state being their upper house, with the concurrence of the king or his representative the
governor, make laws suited to their own emergencies. But it is particularly declared by statute 7 and
8 W. III. c. 22. that all laws, bye-laws, usages, and customs, which shall be in practice in any of the
plantations, repugnant to any law, made or to be made in this kingdom relative to the said
plantations, shall be utterly void and of none effect; and, because several of the colonies had claimed
the sole and exclusive right of imposing taxes upon themselves, the statute 6 Geo. III. c. 12.
expressly declares, that all his majesty's colonies and plantations in America have been, are, and of

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right ought to be, subordinate to and dependent upon the imperial crown and parliament of Great
Britain; who have full power and authority to make laws and statutes of sufficient validity to bind
the colonies and people of America, subjects of the crown of Great Britain, in all cases whatsoever.
And this authority has been since very forcibly exemplified, and carried into act, by the statute 7
Geo. III. c. 59. for suspending the legislation of New York; and by several subsequent statutes.

These are the several parts of the dominions of the crown of Great Britain, in which the municipal
laws of England are not of force or authority, merely as the municipal laws of England. Most of
them have probably copied the spirit of their own law from this original; but then it receives its
obligation, and authoritative force, from being the law of the country.

As to any foreign dominions which may belong to the person of the king by hereditary descent, by
purchase, or other acquisition, as the territory of Hanover, and his majesty's other property in
Germany; as these do not in any wise appertain to the crown of these kingdoms, they are entirely
unconnected with the laws of England, and do not communicate with this nation in any respect
whatsoever. The English legislature had wisely remarked the inconveniences that had formerly
resulted from dominions on the continent of Europe; from the Norman territory which William the
conqueror brought with him, and held in conjunction with the English throne; and from Anjou, and
its appendages, which fell to Henry the second by hereditary descent. They had seen the nation
engaged for near four hundred years together in ruinous wars for defense of these foreign dominions;
till, happily for this country, they were lost under the reign of Henry the sixth. They observed that,
from that time, the maritime interests of England were better understood and more closely pursued:
that, in consequence of this attention, the nation, as soon as she had rested from her civil wars, began
at this period to flourish all at once; and became much more considerable in Europe, than when her
princes were possessed of a larger territory, and her councils distracted by foreign interests. This
experience and these considerations gave birth to a conditional clause in the act38 of settlement,
which vested the crown in his present majesty's illustrious house, “that in case the crown and
imperial dignity of this realm shall hereafter come to any person not being a native of this kingdom
of England, this nation shall not be obliged to engage in any war for the defense of any dominions
or territories which do not belong to the crown of England, without consent of parliament,”

We come now to consider the kingdom of England in particular, the direct and immediate subject
of those laws, concerning which we are to treat in the ensuing commentaries. And this comprehends
not only Wales and Berwick, of which enough has been already said, but also part of the sea. The
main or high seas are part of the realm of England, for thereon our courts of admiralty have
jurisdiction, as will be shown hereafter; but they are not subject to the common law.39 This main-sea
begins at the low-water-mark. But between the high-water-mark, and the low-water-mark, where
the sea ebbs and flows, the common law and the admiralty have divisum imperium [divided
authority], an alternate jurisdiction; one upon the water, when it is full sea; the other upon the land
when it is an ebb.40

The territory of England is liable to two divisions; the one ecclesiastical, the other civil.

1. The ecclesiastical division is, primarily, into two provinces, those of Canterbury and York. A
province is the circuit of an archbishop's jurisdiction. Each province contains diverse dioceses, or

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sees of suffragan bishops; whereof Canterbury includes twenty-one, and York three: besides the
bishopric of the isle of Man, which was annexed to the province of York by king Henry VIII. Every
diocese is divided into archdeaconries, whereof there are sixty in all; each archdeaconry into rural
deaneries, which are the circuit of the archdeacon's and rural dean's jurisdiction, of whom hereafter;
and every deanery is divided into parishes.41

A parish is that circuit of ground which is committed to the charge of one parson, or vicar, or other
minister having care of souls therein. These districts are computed to be near ten thousand in
number.42 How ancient the division of parishes is, may at present be difficult to ascertain; for it
seems to be agreed on all hands, that in the early ages of Christianity in this island, parishes were
unknown, or at least signified the same that a diocese does now. There was then no appropriation
of ecclesiastical dues to any particular church; but every man was at liberty to contribute his tithes
to whatever priest or church he pleased, provided only that he did it to some: or, if he made no
special appointment or appropriation thereof, they were paid into the hands of the bishop, whose
duty it was to distribute them among the clergy, and for other pious purposes, according to his own
discretion.43

Mr. Camden44 says, England was divided into parishes by archbishop Honorius about the year 630.
Sir Henry Hobart45 lays it down, that parishes were first erected by the council of Lateran, which was
held A. D. 1179. Each widely differing from the other, and both of them perhaps from the truth;
which will probably be found in the medium between the two extremes. For Mr. Selden has clearly
shown,46 that the clergy lived in common without any division of parishes, long after the time
mentioned by Camden. And it appears from the Saxon laws, that parishes were in being long before
the date of that council of Lateran, to which they are ascribed by Hobart.

We find the distinction of parishes, nay even of mother-churches, so early as in the laws of king
Edgar, about the year 970. Before that time the consecration of tithes was in general arbitrary; that
is, every man paid his own (as was before observed) to what church or parish he pleased. But this
being liable to be attended with either fraud, or at least caprice, in the persons paying; and with
either jealousies or mean compliances in such as were competitors for receiving them; it was now
ordered by the law of king Edgar,47 that “dentur omnes decimae primariae ecclesiae ad quam
parochia pertinet” [“all tithes be given to the mother church to which the parish belongs”].
However, if any thane, or great lord, had a church, within his own demesnes, distinct from the
mother church, in the nature of a private chapel; then, provided such church had a cemetery or
consecrated place of burial belonging to it, he might allot one third of his tithes for the maintenance
of the officiating minister: but, if it had no cemetery, the thane must himself have maintained his
chaplain by some other means; for in such case all his tithes were ordained to be paid to the
primariae ecclesiae or mother church.48

This proves that the kingdom was then generally divided into parishes; which division happened
probably not all at once, but by degrees. For it seems pretty clear and certain, that the boundaries
of parishes were originally ascertained by those of a manor or manors: since it very seldom happens
that a manor extends itself over more parishes than one, though there are often many manors in one
parish. The lords, as Christianity spread itself, began to build churches upon their own demesnes or
wastes, to accommodate their tenants in one or two adjoining lordships; and, in order to have divine

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service regularly performed therein, obliged all their tenants to appropriate their tithes to the
maintenance of the one officiating minister, instead of leaving them at liberty to distribute them
among the clergy of the diocese in general; and this tract of land, the tithes whereof were so
appropriated, formed a distinct parish. Which will well enough account for the frequent intermixture
of parishes one with another. For, if a lord had a parcel of land detached from the main of his estate,
but not sufficient to form a parish of itself, it was natural for him to endow his newly erected church
with the tithes of those disjointed lands; especially if no church was then built in any lordship
adjoining to those outlying parcels.

Thus parishes were gradually formed, and parish churches endowed with the tithes that arose within
the circuit assigned. But some lands, either because they were in the hands of irreligious and careless
owners, or were situate in forests and desert places, or for other now unsearchable reasons, were
never united to any parish, and therefore continue to this day extraparochial, and their tithes are now
by immemorial custom payable to the king instead of the bishop, in trust and confidence that he will
distribute them for the general good of the church;49 yet extraparochial wastes and marsh-lands,
when improved and drained, are by the statute 17 Geo. II. c. 37. to be assessed to all parochial rates
in the parish next adjoining. And thus much for the ecclesiastical division of this kingdom.

2. The civil division of the territory of England is into counties, of those counties into hundreds, of
those hundreds into tithings or towns. Which division, as it now stands, seem to owe its original to
king Alfred, who, to prevent the rapines and disorders which formerly prevailed in the realm,
instituted tithings; so called, from the Saxon, because ten freeholders with their families composed
one. These all dwelt together, and were sureties or free pledges to the king for the good behavior of
each other; and if any offense was committed in their district, they were bound to have the offender
forthcoming.50 And therefore anciently no man was suffered to abide in England above forty days,
unless he were enrolled in some tithing or decennary.51 One of the principal inhabitants of the tithing
is annually appointed to preside over the rest, being called the tithing-man, the headborough, (words
which speak their own etymology) and in some countries the borsholder, or borough's-ealder, being
supposed the discreetest man in the borough, town, or tithing.52

Tithings, towns, or vills, are of the same signification in law; and are said to have had, each of them,
originally a church and celebration of divine service, sacraments, and burials:53

though that seems to be rather an ecclesiastical, than a civil, distinction. The word town or vill is
indeed, by the alteration of times and language, now become a generical term, comprehending under
it the several species of cities, boroughs, and common towns. A city is a town incorporated, which
is or has been the see of a bishop: and though the bishopric be dissolved, as at Westminster, yet still
it remains a city.54 A borough is now understood to be a town, either corporate or not, that sends
burgesses to parliament.55 Other towns there are, to the number sir Edward Coke says56 of 8803,
which are neither cities nor boroughs; some of which have the privileges of markets, and others not;
but both are equally towns in law. To several of these towns there are small appendages belonging,
called hamlets; which are taken notice of in the statute of Exeter,57 which makes frequent mention
of entire vills, demi-vills, and hamlets. Entire vills sir Henry Spelman58 conjectures to have consisted
of ten freemen, or frank-pledges, demi-vills of five, and hamlets of less than five. These little
collections of houses are sometimes under the same administration as the town itself, sometimes

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governed by separate officers; in which last case they are, to some purposes in law, looked upon as
distinct townships. These towns, as was before hinted, contained each originally but one parish, and
one tithing; though many of them now, by the increase of inhabitants, are divided into several
parishes and tithings; and, sometimes, where there is but one parish there are two or more vills or
tithings.

As ten families of freeholders made up a town or tithing, so ten tithings composed a superior
division, called a hundred, as consisting of ten times ten families. The hundred is governed by an
high constable or bailiff, and formerly there was regularly held in it the hundred court for the trial
of causes, though now fallen into disuse. In some of the more northern counties these hundreds are
called wapentakes.59

The subdivision of hundreds into tithings seems to be most peculiarly the invention of Alfred: the
institution of hundreds themselves he rather introduced than invented. For they seem to have
obtained in Denmark:60 and we find that in France a regulation of this sort was made above two
hundred years before; set on foot by Clotharius and Childebert, with a view of obliging each district
to answer for the robberies committed in its own division. These divisions were, in that country, as
well military as civil: and each contained a hundred freemen, who were subject to an officer called
the centenarius [head of a hundred]; a number of which centenarii were themselves subject to a
superior officer called the count or comes.61 And indeed something like this institution of hundreds
may be traced back as far as the ancient Germans, from whom were derived both the Franks who
became masters of Gaul, and the Saxons who settled in England: for both the thing and the name,
as a territorial assemblage of persons, from which afterwards the territory itself might probably
receive its denomination, were well known to that warlike people. “Centeni ex singulis pagis sunt,
idque ipsum inter suos vocantur; et quod primo numerus suit, jam nomen et honor est.”62 [“Each
village is divided into hundreds, and are so called by their inhabitants; and that which first was a
mere number has now become both a name and an honor.”]

An indefinite number of these hundreds make up a county or shire. Shire is a Saxon word signifying
a division; but a county, comitatus, is plainly derived from comes, the count of the Franks; that is,
the earl, or alderman (as the Saxons called him) of the shire, to whom the government of it was
entrusted. This he usually exercised by his deputy, still called in Latin vice-comes, and in English,
the sheriff, shrieve, or shire-reeve, signifying the officer of the shire; upon whom by process of time
the civil administration of it is now totally devolved. In some counties there is an intermediate
division, between, the shire and the hundreds, as lathes in Kent, and rapes in Sussex, each of them
containing about three or four hundreds apiece. ) These had formerly their lathe-reeves and
rape-reeves, acting in subordination to the shire-reeve. Where a county is divided into three of these
intermediate jurisdictions, they are called trithings,63 which were anciently governed by a
trithing-reeve. ) These trithings still subsist in the large county of York, where by an easy corruption
they are denominated ridings; the north, the east, and the west-riding. The number of counties in
England and Wales have been different at different times: at present they are forty in England, and
twelve in Wales.

Three of these counties, Chester, Durham, and Lancaster, are called counties palatine. The two
former are such by prescription, or immemorial custom; or, at least as old as the Norman conquest:64

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the latter was created by king Edward III, in favor of Henry Plantagenet, first earl and then duke of
Lancaster;65 whose heiress being married to John of Gant the king's son, the franchise was greatly
enlarged and confirmed in parliament,66 to honor John of Gant himself, whom, on the death of his
father-in-law, the king had also created duke of Lancaster.67 Counties palatine are so called a palatio
[of royal court]; because the owners thereof, the earl of Chester, the bishop of Durham, and the duke
of Lancaster, had in those counties jura regalia [by regal right], as fully as the king has in his palace;
regalem potestatem in omnibus [regal power in all things], as Bracton expresses it.68 They might
pardon treasons, murders, and felonies; they appointed all judges and justices of the peace; all writs
and indictments ran in their names, as in other counties in the king's; and all offenses were said to
be done against their peace, and not, as in other places, contra pacem domini regis69 [against the
peace of our lord the King]. And indeed by the ancient law, in all peculiar jurisdictions, offenses
were said to be done against his peace in whose court they were tried: in a court-leet, contra pacem
domini [against the peace of the King]; in the court of a corporation, contre pacem ballivorum
[against the peace of the bailiffs]; in the sheriff's court or tourn, contra pacem vice-comitis70 [against
the peace of the sheriff]. These palatine privileges (so similar to the regal independent jurisdictions
usurped by the great barons on the continent, during the weak and infant state of the first feudal
kingdoms in Europe71) were in all probability originally granted to the counties of Chester and
Durham, because they bordered upon inimical countries, Wales and Scotland; in order that the
inhabitants, having justice administered at home, might not be obliged to go out of the country, and
leave it open to the enemy's incursions; and that the owners, being encouraged by so large an
authority, might be the more watchful in its defense. And upon this account also there were formerly
two other counties palatine, Pembrokeshire and Hexhamshire; the latter now united with
Northumberland: but these were abolished by parliament, the former in 27 Hen. VIII, the latter in
14 Eliz. And in 27 Hen. VIII, likewise, the powers before mentioned of owners of counties palatine
were abridged; the reason for their continuance in a manner ceasing: though still all writs are
witnessed in their names, and all forfeitures for treason by the common law accrue to them.72

Of these three, the county of Durham is now the only one remaining in the hands of a subject. For
the earldom of Chester, as Camden testifies, was united to the crown by Henry III, and has ever
since given title to the king's eldest son. And the county palatine, or duchy, of Lancaster, was the
property of Henry of Bolingbroke, the son of John of Gant, at the time when he wrested the crown
from king Richard II, and assumed the stile of king Henry IV. But he was too prudent to suffer this
to be united to the crown; lest if he lost one, he should lose the other also. For, as Plowden73 and sir
Edward Coke74 observe, “he knew he had the duchy of Lancaster by sure and indefeasible title, but
that his title to the crown was not so assured: for that after the decease of Richard II, the right of the
crown was in the heir of Lionel duke of Clarence, second son of Edward III; John of Gant, father
to this Henry IV, being but the fourth son.” And therefore he procured an act of parliament, in the
first year of his reign, ordaining that the duchy of Lancaster, and all other his hereditary estates, with
all their royalties and franchises, should remain to him and his heirs for ever; and should remain,
descend, be administered, and governed, in like manner, as if he never had attained the regal dignity:
and thus they descended to his son and grandson, Henry V and Henry VI; many new territories and
privileges being annexed to the duchy by the former.75 Henry VI. being attainted in 1 Edw. IV, this
duchy was declared in parliament to have become forfeited to the crown,76 and at the same time an
act was made to incorporate the duchy of Lancaster, to continue the county palatine (which might
otherwise have determined by the attainder77) and to make the same parcel of the duchy: and, farther,

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William Blackstone: Vol. 1, Commentaries on the Laws of England (1765) Page 70

to vest the whole in king Edward IV and his heirs, kings of England, for ever; but under a separate
guiding and governance from the other inheritances of the crown. And in 1 Hen. VII another act was
made, to resume such part of the duchy lands as had been dismembered from it in the reign of
Edward IV, and to vest the inheritance of the whole in the king and his heirs for ever, as amply and
largely, and in like manner, form, and condition, separate from the crown of England and possession
of the same, as the three Henries and Edward IV, or any of them, had and held the same.78

The isle of Ely is not a county palatine, though sometimes erroneously called so, but only a royal
franchise: the bishop having, by grant of king Henry the first, jura regalia within the isle of Ely;
whereby he exercises a jurisdiction over all causes, as well criminal as civil.79

There are also counties corporate: which are certain cities and towns, some with more, some with
less territory annexed to them; to which out of special grace and favor the kings of England have
granted the privilege to be counties of themselves, and not to be comprised in any other county; but
to be governed by their own sheriffs and other magistrates, so that no officers of the county at large
have any power to intermeddle therein. Such are London, York, Bristol, Norwich, Coventry, and
many others. And thus much of the countries subject to the laws of England.

NOTES

1. Vaugh. 400.
2. 10 Edw. I.
3. 12 Edw. I
4. 4 Inst. 345
5. It may justly be doubted, whether even such an infringement (though a manifest breach of good faith, unless done upon
the most pressing necessity) would of itself dissolve the union: for the bare idea of a state, without a power somewhere vested
to alter every part of its laws, is the height of political absurdity. The truth seems to be, that in such an incorporate union
(which is well distinguished by a very learned prelate from a foederate alliance, where such an infringement would certainly
rescind the compact) the two contracting states are totally annihilated, without any power of a revival; and a third arises from
their conjunction, in which all the rights of sovereignty, and particularly that of legislation, must of necessity reside. (See
Warburton's alliance, 195.) But the wanton or imprudent exertion of this right would probably raise a very alarming ferment
in the minds of individuals; and therefore it is hinted above that such an attempt might endanger (though by no means destroy)
the union.
To illustrate this matter a little farther: an act of parliament to repeal or alter the act of uniformity in England, or to
establish episcopacy in Scotland, would doubtless in point of authority be sufficiently valid and binding; and, notwithstanding
such an act, the union would continue unbroken. Nay, each of these measures might be safely and honorably pursued, if
respectively agreeable to the sentiments of the English church, or the kirk in Scotland. But it should seem neither prudent,
nor perhaps consistent with good faith, to venture upon either of those steps, by a spontaneous exertion of the inherent powers
of parliament, or at the instance of mere individuals. ) So sacred indeed are the laws abovementioned (for protecting each
church and the English liturgy) esteemed, that in the regency acts both of 1751 and 1765 the regents are expressly disabled
from assenting to the repeal or alteration of either these, or the act of settlement.
6. Hale Hist. C. L. 183.1 Sid. 382. 462. 2 Show. 365.
7. Cro. Jac. 543. 2 Roll. abr. 292. Stat. 11 Geo. I. c. 4. 4 Burr. 834.
8. Stat. Hiberniae. 14 Hen. III.
9. Pryn. on 4 inst. 249.

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William Blackstone: Vol. 1, Commentaries on the Laws of England (1765) Page 71

10. 4 Inst. 358. Edm. Spenser's state of Ireland. p. 1513. edit. Hughes.
11. Vaugh. 294. 2. Pryn. Rec. 85. 7 Rep. 23.
12. 1 Inst. 141.
13. A. R. 30. 1 Rym. Feod. 443.
14. A. R. 5. — pro eo quod leges quibus utuntur Hybernici Deo detestabiles existunt, et omni juri dissonant, adeo, quod
leges censeri non debeant; nobis et consilio nostro satis videtur expediens, eisdem utendas concedere leges Anglicanas.
[Inasmuch as the laws by which the Irish are governed, are hateful to God and incompatible with justice, and therefore ought
not to be considered as laws; it seems highly expedient to us and to our council, to give them the laws of England for their
government.] 3 Pryn. Rec. 1218.
15. Edm. Spenser, ibid.
16. 20 Hen. VI. 8. 2 Ric. III. 12.
17. Yearbook 1 Hen. VII. 3. 7. Rep. 22 Calvin's case.
18. Irish Stat. 11 Eliz. st. 3. c. S.
19. Ibid. 10 Hen. VII. c. 22.
20. Cap. 4. expounded by 3 & 4 Ph. and M. c. 4.
21. 4 Inst. 353.
22. Irish Stat. 11 Eliz. st. 3. c. 38.
23. cap. 23.
24. 4 Inst. 351.
25. 12 Rep. 112.
26. Puf. L. of N. viii. 6. 24.
27. This was law in the time of Hen. VIII; as appears by the ancient book, entitled, diversity of courts, c. bank le roy.
28. Vaugh. 402.
29. 4 Inst. 284. 2 And 116.
30. Selden tit. hon 13.
31. Camden. Eliz A. D 1594.
32. 1 P. Wms. 329.
33. The bishopric of Man, or Sodor, or Sodor and Man, was formerly within the province of Canterbury, but annexed to that
of York by statute 33 Hen. VIII. c. 31.
34. 4 Inst. 286.
35. Salk. 411. 666.
36. 2 P. Wms. 75.
37. 7 Rep. 17. Calvin's case. Show. Parl. C. 31. See also in the case of Campbell v. Hall. Cowp. Rep. 204. a great and
elaborate argument of Lord Mansfield, in delivering the judgment of the court of king's bench.
38. Stat. 12 & 13 Will. III. c. 3.
39. Co. Litt. 260.

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William Blackstone: Vol. 1, Commentaries on the Laws of England (1765) Page 72

40. Finch. L. 78.

41. Co. Litt. 94.
42. Gibson's Britain.
43. Seld. of tith. 9. 4. 2 Inst. 643. Hob. 296.
44. in his Britannia.
45. Hob. 29.
46. of tithes, c 9.
47. c. 1.
48. Ibid c. 2. See also the laws of king Canute, c. II. about the year 1030.
49. 3 Inst. 647. 2 Rep. 44. Cro. Eliz. 512.
50. Flet. 1. 47. This the laws of king Edward the confessor, c. 20. very justly entitled, “summa et maxima securitas, per
quam omnes statu firmissimo sustinentur; quae hoc modo fiebat, quod sub decennali fidejussione debebant esse universi”
[“the best and greatest security by which all persons are kept in the safest state; which was effected in this manner, that every
ten should be sureties for each other”].
51. Mirr. c. 1. §. 3.
52. Finch. L. 8.
53. 1 Inst. 115.
54. Co. Litt. 109.
55. Litt. §. 164.
56. 1 Inst. 116.
57. 14 Edw. I.
58. Gloss. 274.
59. Seld. in Fortesc. c. 24.
60. Seld. tit. of honor. 2. 5. 3.
61. Montesq. Sp. L. 30. 17.
62. Tacit. de morib. German. 6.
63. LL. Edw. c. 34.
64. Seld. tit. hon. 2. 5. 8.
65. Pat. 25 Edw. III. p. 1. m. 18 Seld. ibid. Sandford's gen. hist. 112. 4. 204.
66. Cart. 36 Edw. 111. n. 9.
67. Pat. 31 Edw. III. m. 33 Plowd. 215. 7. Rym. 138.
68. l. 3. c. 8. §. 4.
69. 4 Inst. 204.
70. Seld. in Heng. magn. c. 2.
71. Robertson. Cha. V. i. 60.

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William Blackstone: Vol. 1, Commentaries on the Laws of England (1765) Page 73

72. 4 Inst. 205.

73. 215.
74. 4 Inst. 205.
75. Parl. 2 Hen. V. n. 30. 3 Hen. V. n. 15.
76. 1 Ventr. 155.
77. 1 Ventr. 157.
78. Some have entertained an opinion (Plowd. 320, 1, 2. Lamb. Archeion. 233. 4 Inst. 206.) that by this act the right of the
duchy vested only in the natural, and not in the political person of king Henry VII, as formerly in that of Henry IV; and was
descendible to his natural heirs, independent of the succession to the crown. And, if this notion were well founded, it might
have become a very curious question at the time of the revolution in 1688, in whom the right of the duchy remained after king
James's abdication, and previous to the attainder of the pretended prince of Wales. But it is observable, that in the same act
the duchy of Cornwall is also vested in king Henry VII and his heirs; which could never be intended in any event to be
separated from the inheritance of the crown. And indeed it seems to have been understood very early after the statute of Henry
VII, that the duchy of Lancaster was by no means thereby made a separate inheritance from the rest of the royal patrimony;
since it descended, with the crown, to the half-blood in the instances of queen Mary and queen Elizabeth: which it could not
have done, as the estate of a mere duke of Lancaster, in the common course of legal descent. The better opinion therefore
seems to be that of those judges, who held (Plowd. 221) that notwithstanding the statute of Hen. VII (which was only an act
of resumption) the duchy still remained as established by the act of Edward IV; separate from the other possessions of the
crown in order and government, but united in point of inheritance.
79. 4 Inst 220.

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 Book 1:
Rights Of Persons
William Blackstone: Vol. 1, Commentaries on the Laws of England (1765) Page 75

CHAPTER 1
Of the Absolute Rights of Individuals

The objects of the laws of England are so very numerous and extensive, that, in order to consider
them with any tolerable ease and perspicuity, it will be necessary to distribute them methodically,
under proper and distinct heads; avoiding as much as possible divisions too large and comprehensive
on the one hand, and too trifling and minute on the other; both of which are equally productive of
confusion.

Now, as municipal law is a rule of civil conduct, commanding what is right, and prohibiting what
is wrong; or, as Cicero,1 and after him our Bracton,2 has expressed it, sanctio justa, jubens honesta
et prohibens contraria; it follows, that the primary and principal objects of the law are rights, and
wrongs. In the prosecution therefore of these commentaries, I shall follow this very simple and
obvious division; and shall in the first place consider the rights that are commanded, and secondly
the wrongs that are forbidden by the laws of England.

Rights are however liable to another subdivision; being either, first, those which concern, and are
annexed to the persons of men, and are then called jura personarum or the rights of persons; or they
are, secondly, such as a man may acquire over external objects, or things unconnected with his
person, which are styled jura rerum or the rights of things. Wrongs also are a divisible into, first,
private wrongs, which, being a infringement merely of particular rights, concern individuals only,
and are called civil injuries; and secondly, public wrongs, which, being a breach of general and
public rights, affect the whole community, and are called crimes and misdemeanors.

The objects of the laws of England falling into this fourfold division, the present commentaries will
therefore consist of the four following parts: 1. The rights of persons; with the means whereby such
rights may be either acquired or lost. 2. The rights of things; with the means also of acquiring and
losing them. 3. Private wrongs, or civil injuries; with the means of redressing them by law. 4. Public
wrongs, or crimes and misdemeanors; with the means of prevention and punishment.

We are now, first, to consider the rights of persons; with the means of acquiring and losing them.

Now the rights of persons that are commanded to be observed by the municipal law are to two sorts;
first, such as are due from every citizen, which are usually called civil duties; and, secondly, such
as belong to him, which is the more popular acceptation of rights or jura. Both may indeed be
comprised in this latter division; for as all social duties are of a relative nature, at the same duties
are of a relative nature, at the same time that they are due from one man, or set of men, they must
also be due to another. But I apprehend it will be more clear and easy, to consider many of them as
duties required from, rather than as rights belonging to, particular persons. Thus, for instance,
allegiance is usually, and therefore most easily, considered as the duty of the people, and protection
as the duty of the magistrate; and yet they are, reciprocally, the rights as well as duties of each other.
Allegiance is the right of the magistrate, and protection the right of the people.

Persons also are divided by the law into either natural persons, or artificial. Natural persons are such
as the God of nature formed us: artificial are such as created and devised by human laws for the

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William Blackstone: Vol. 1, Commentaries on the Laws of England (1765) Page 76

purposed of society and government; which are called corporations or bodies politic.

The rights of persons considered in their natural capacities are also of two sorts, absolute, and
relative. Absolute, which are such as appertain and belong to particular men, merely as individuals
or single persons: relative, which are indigent to them as members of society, and standing in
various relations to each other. The first, that is, absolute rights, will be the subject of the present
chapter.

By the absolute rights of individuals we mean those which are so in their primary and strictest sense;
such as would belong to their persons merely in a state of nature, and which every man is entitled
to enjoy whether out of society or in it. But with regard to the absolute duties, which man is bound
to perform considered as a mere individual, it is not to be expected that any human municipal laws
should at all explain or enforce them. For the end and intent of such laws being only to regulate the
behavior of mankind, as they are members of society, and stand in various relations to each other,
they have consequently no business or concern with any but social or relative duties. Let a man
therefore be ever so abandoned in his principles, or vicious in his practice, provided he keeps his
wickedness to himself, and does not offend against the rules of public decency, he is out of the reach
of human laws. But if he makes his vices public, though they be such as seem principally to affect
himself, (as drunkenness, or the like) they then become, by the bad example they set, of pernicious
effects to society; and therefore it is then the business of human laws to correct them. Here the
circumstance of publication is what alters the nature of the case. Public sobriety is a relative duty,
and therefore enjoined by our laws: private sobriety is an absolute duty, which, whether it be
performed or not, human tribunals can never know; and therefore they can never enforce it by any
civil sanction. But, with respect to rights, the case is different. Human laws define and enforce as
well those rights which belong to a man considered as an individual, as those which belong to him
considered as related to others.

For the principal aim of society is to protect individuals in the enjoyment of those absolute rights,
which were vested in them by the immutable laws of nature; but which could no be preserved in
peace without that mutual assistance and intercourse, which is gained by the institution of friendly
and social communities. Hence it follows, that the first and primary end of human laws is to
maintain and regulate these absolute rights of individuals. Such rights as are social and relative result
from, and are posterior to, the formation of states and societies: so that to maintain and regulate
these, is clearly a subsequent consideration. And therefore the principal view of human laws is, or
ought always to be, to explain, protect, and enforce such rights as are absolute, which in themselves
are few and simple; and, then, such rights as are relative, which arising from a variety of
connections, will be far more numerous and more complicated. These will take up a greater space
in any code of laws, and hence may appear to be more attended to, though in reality they are not,
than the rights of the former kind. Let us therefore proceed to examine how far all laws ought, and
how far the laws of England actually do, take notice of these absolute rights, and provide for their
lasting security.

The absolute rights of man, considered as a free agent, endowed with discernment to know good
from evil, and with power of choosing those measures which appear to him to be most desirable, are
usually summed up in one general appellation, and denominated the natural liberty of mankind. This

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William Blackstone: Vol. 1, Commentaries on the Laws of England (1765) Page 77

natural liberty consists properly in a power of acting as one thinks fit, without any restraint or
control, unless by the law of nature: being a right inherent in us by birth, and one of the gifts of God
to man at his creation, when he endued him with the faculty of free will. But every man, when he
enters into society, gives up a part of his natural liberty, as the price of so valuable a purchase; and,
in consideration of receiving the advantages of mutual commerce, obliges himself to conform to
those laws, which the community has thought proper to establish. And this species of legal
obedience and conformity is infinitely more desirable, than that wild and savage liberty which is
sacrificed to obtain it. For no man, that considers a moment, would wish to retain the absolute and
uncontrolled power of doing whatever he pleases; the consequence of which is, that every other man
would also have the same power; and then there would be no security to individuals in any of
enjoyments of life. Political therefore, or civil, liberty, which is that of a member of society, is no
other than natural liberty so far restrained by human laws (and not farther) as is necessary and
expedient for the general advantage of the public.3 Hence we may collect that the law, which
restrains a man from doing mischief to his fellow citizens, though it diminishes the natural, increases
the civil liberty of mankind: but every wanton and causeless restraint of the will to the subject,
whether practiced by a monarch, a nobility, or a popular assembly, is a degree to tyranny. Nay, that
even laws themselves, whether made with or without our consent, if they regulate and constrain our
conduct in matters of mere indifference, without any good end in view, are laws destructive of
liberty: whereas if any public advantage can arise from observing such precepts, the control of our
private inclinations, in one or two particular points, will conduce to preserve our general freedom
in others of more importance; by supporting that state, of society, which alone can secure our
independence. Thus the statute of king Edward IV,4 which forbad the fine gentlemen of those times
(under the degree of a lord) to wear pikes upon their shoes or boots of more than two inches in
length, was law that favored of oppression; because, however ridiculous the fashion than in use
might appear, the restraining it by pecuniary penalties could serve no purpose of common utility.
But the statute of king Charles II,5 which prescribes a thing seemingly as indifferent; viz. a dress for
the dead, who are all ordered to be buried in woolen; is a law consistent with public liberty, for it
encourages the staple trade, on which in great measure depends the universal good of the nation. So
that laws, when prudently framed, are by no means subversive but rather introductive of liberty; for
(as Mr. Locke has well observed6) where there is no law, there is no freedom. But then, on the other
hand, that constitution or frame of government, that system of laws, is alone calculated to maintain
civil liberty, which leaves the subject entire master of his own conduct, except, in those points
wherein the public good requires some direction or restraint.

The idea and practice of this political or civil liberty flourish in their highest vigor in these
kingdoms, where it falls little short of perfection, and can only be lost or destroyed by the folly or
demerits of its owner: the legislature, and of course the laws of England, being peculiarly adapted
to the preservation of this inestimable blessing even in the meanest subject. Very different from the
modern constitutions of other states, on the continent of Europe, and from the genius of the imperial
law; which in general are calculated to vest an arbitrary and despotic power of controlling the
actions of the subject in the prince, or in a few grandees. And this spirit of liberty is so deeply
implanted in our constitution, and rooted even in our very soil, that a slave or a Negro, the moment
he lands in England, falls under the protection of the laws, and with regard to all natural rights
becomes eo instanti [instantly] a freeman.7

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William Blackstone: Vol. 1, Commentaries on the Laws of England (1765) Page 78

The absolute rights of every Englishman (which, taken in a political and extensive sense, are usually
called their liberties) as they are founded on nature and reason, so they are coeval with our form of
government; though subject at times to fluctuate and change: their establishment (excellent as it is)
being still human. At some times we have seen them depressed by overbearing and tyrannical
princes; at others so luxuriant as even to tend to anarchy, a worse state than tyranny itself, as any
government is better than none at all. But the vigor of our free constitution has always delivered the
nation from these embarrassments, and, as soon as the convulsions consequent on the struggle have
been over, the balance of our rights and liberties has settled to its proper level; and their fundamental
articles have been from time to time asserted in parliament, as often as they were thought to be in
danger.

First, by the great charter of liberties, which was obtained, sword in hand, form king John; and
afterwards, with some alterations, confirmed in parliament by king Henry the third, his son. Which
charter contained very few new grants; but, as sir Edward Coke8 observes, was for the most part
declaratory of the principal grounds of the fundamental laws of England. Afterwards by the statute
called confirmatio cartarum9 [confirming charter], whereby the great charter is directed to be
allowed as the common law; all judgments contrary to it are declared void; copies of it are ordered
to be sent to all cathedral churches, and read twice a year to the people; and sentence of
excommunication is directed to be as constantly denounced against all those that by word, deed, or
counsel act contrary thereto, or in any degree infringe it. Next by a multitude of subsequent
corroborating statutes, (sir Edward Coke, I think, reckons thirty-two,10) from the first Edward to
Henry the fourth. Then, after a long interval, by the Petition of Right; which was a parliamentary
declaration of the liberties of the people, assented to by king Charles the first in the beginning of his
reign. Which was closely followed by the still more ample concessions made by that unhappy prince
to his parliament, before the fatal rupture between them; and by the many salutary laws, particularly
the habeas corpus act, passed under Charles the second. To these succeeded the Bill of Rights, or
declaration delivered by the lords and commons to the prince and princess of Orange 13 February
1688; and afterwards enacted in parliament, when they became king and queen: which declaration
concludes in these remarkable words; “and they do claim, demand, and insist upon all and singular
the premises, as their undoubted rights and liberties.” And the act of parliament itself11 recognizes
“all and singular the rights and liberties asserted and claimed in the said declaration to be the true,
ancient, and indubitable rights of the people of this kingdom.” Lastly, these liberties were again
asserted at the commencement of the present century, in the Act of Settlement,12 where by the crown
is limited to his present majesty's illustrious house, and some new provisions were added at the same
fortunate area for better securing our religion, laws, and liberties; which the statute declares to be
“the birthright of the people of England;” according to the ancient doctrine of the common law.13

Thus much for the declaration of our rights and liberties. The rights themselves thus defined by these
several statutes, consist in a number of private immunities; which will appear, from what has been
premised, to be indeed no other, than either that residuum [remainder] of natural liberty, which is
not required by laws of society to be sacrificed to public convenience; or else those civil privileges,
which society has engaged to provide, in lieu of the natural liberties so given up by individuals.
These therefore were formerly, either by inheritance or purchase, the rights of al mankind; but, in
most other countries of the world being now more or less debased and destroyed, they at present
may be said to remain, in a peculiar and emphatic manner, the rights of the people of England. And

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William Blackstone: Vol. 1, Commentaries on the Laws of England (1765) Page 79

these may be reduced to three principal or primary articles; the right of personal security, the right
of personal liberty; and the right of private property: Because as there is no other known method of
compulsion, or of abridging man's natural free will, but by an infringement or diminution of one or
other of these important rights, the preservation of these, inviolate, may justly be said to include the
preservation of our civil immunities in their largest and most extensive sense.

I. The right of personal security consists in a person's legal and uninterrupted enjoyment of his life,
his limbs, his body, his health, and his reputation.

1. Life is the immediate gift of God, a right inherent by nature in every individual; and it begins in
contemplation of law as soon as an infant is able to stir in the mother's womb. For if a woman is
quick with child, and by a potion, or otherwise kills it in her womb; or if any one beat her, whereby
the child dies in her body, and she is delivered of a dead child; this, though not murder, was by the
ancient law homicide or manslaughter.14 But at present it is not looked upon in quite so atrocious
a light, though it remains a very heinous misdemeanor.15

An infant in ventre sa mere, or in the mother's womb, is supposed in law to be born for many
purposes. It is capable of having a legacy, or a surrender of a copyhold estate made to it. It may have
a guardian assigned to it;16 and it is enabled to have an estate limited to its use, and to take
afterwards by such limitation, as if it were then actually born.17 And in this point the civil law agrees
with ours.18

2. A man's limbs, (by which for the present we only understand those members which may be useful
to him in fight, and the loss of which only amounts to mayhem by the common law) are also the gift
of the wise creator; to enable man to protect himself from external injuries in a state of nature. To
these therefore he has a natural inherent right; and they cannot be wantonly destroyed or disabled
without a manifest breach of civil liberty.

BOTH the life and limbs of a man are of such high value, in the estimation of the law of England,
that it pardons even homicide if committed se defendendo [in self-defense], or in order to preserve
them. For whatever is done by a man, to save either life or member, is looked upon as done upon
the highest necessity and compulsion. Therefore if a man through fear of death or mayhem is
prevailed upon to execute a deed, or do any other legal act; these, though accompanied with all other
the requisite solemnities, may be afterwards avoided, if forced upon him by a well-grounded
apprehension of losing his life, or even his limbs, in case of his non-compliance.19 And the same is
also a sufficient excuse for the commission of many misdemeanors, as will appear in the fourth
book. The constraint a man is under in these circumstances is called in law duress, from the Latin
durities, of which there are two sorts; duress of imprisonment, where a man actually loses his liberty,
of which we shall presently speak; and duress per minas [by threat], where the hardship is only
threatened and impending, which is that we are now discoursing of. Duress per minas is either for
fear of loss of life, or else for fear of mayhem, or loss of limb. And this fear must be upon sufficient
reason; “non,” as Bracton expresses it, “suspicio cujuslibet vani et meticulosi hominis, sed talis qui
possit cadere in virum constantem; talis enim debet esse metus, qui in se contineat vitae periculum,
aut corporis cruciatum.”20 [It must not be the apprehensionn of a foolish and fearful man, but such
as a courageous man may be susceptible of; it should be, for instance, such a fear as consists in an

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apprehension of bodily pain, or danger to life.] A fear of battery, or being beaten, though never so
well grounded, is no duress; neither is the fear of having one's house burnt, or one's goods taken
away and destroyed; because in these cases, should the threat be performed, a man may have
satisfaction by recovering equivalent damages:21 but no suitable atonement can be made for the loss
of life, or limb. And the indulgence shown to a man under this, the principal, sort of duress, the fear
of losing his life or limbs, agrees also with that maxim of the civil law; ignoscitur ei qui sanguinem
suum qualiter qualiter redemptum voluit22 [He is justified who has acted in pure defense of his own
life or limb].

The law not only regards life and member, and protects every man in the enjoyment of them, but
also furnishes him with everything necessary for their support. For there is no man so indigent or
wretched, but he may demand a supply sufficient for all the necessities of life, from the more opulent
part of the community, by means of several statutes enacted for the relief of the poor, of which in
their proper places. A humane provision; yet, though dictated by the principles of society,
discountenanced by the Roman laws. For the edicts of the emperor Constantine, commanding the
public to maintain the children of those who were unable to provide for them, in order to prevent
the murder and exposure of infants, and institution founded on the same principle as our foundling
hospitals, though comprised in the Theodosian code23 were rejected in Justinian's collection.

These rights, of life and member, can only be determined by the death of the person; which is either
a civil or natural death. The civil death commences if any man be banished the realm24 by the
process of the common law, or enters into religion; that is, goes into a monastery, and becomes there
a monk professed: in which cases he is absolutely dead in law, and his next heir shall have his estate.
For, such banished man is entirely cut off form society; and such a monk, upon his profession,
renounces solemnly all secular concerns: and besides, as the popish clergy exclaimed an exemption
from the duties of civil life, and the commands of the temporal magistrate, the genius of the English
law would not suffer those persons to enjoy the benefits of society, who secluded themselves from
it, and refused to submit to its regulations.25 A monk is therefore accounted civiliter mortuus [legally
dead], and when he enters into religion may, like other dying men, make his testament and
executors; or, if he makes none, the ordinary may grant administration to his next of kin, as if he
were actually dead intestate. And such executors and administrators shall have the same power, and
may bring the same actions for the debts due to the religious, and are liable to the same actions for
those due from him, as if he were naturally deceased.26 Nay, so far has this principle been carried,
that when one was bound in a bond to an abbot and his successors, and afterwards made his
executors and professed himself a monk of the same abbey, and in process of time was himself made
abbot thereof; here the law gave him, in the capacity of abbot, an action of debt against his own
executors to recover the money due.27 In short, a monk or religious is so effectually dead in law, that
a lease made even to a third person, during the life (generally) of one who afterwards becomes a
monk, determines by such his entry into religion: for which reason leases, and other conveyances,
for life, are usually made to have and to hold for the term of one's natural life.28 But, even in the
times of popery, the law of England took no cognizance of profession in any foreign country,
because the fact could not be tried in our courts;29 and therefore, since the reformation, the disability
is held to be abolished.30

This natural life being, as was before observed, the immediate donation of the great creator, cannot

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William Blackstone: Vol. 1, Commentaries on the Laws of England (1765) Page 81

legally be dispose of or destroyed by any individual, neither by the person himself nor by any other
of his fellow creatures, merely upon their own authority. Yet nevertheless it may, by the divine
permission, be frequently forfeited for the breach of those laws of society, which are enforced by
the sanction of capital punishments; of the nature restrictions, expedience, and legality of which, we
may hereafter more conveniently inquire in the concluding book of these commentaries. At present,
I shall only observe, that whenever the constitution of a state vests in any man, or body of men, a
power of destroying at pleasure, without the direction of laws, the lives of members of the subject,
such constitution is in the highest degree tyrannical: and that whenever any laws direct such
destruction for light and trivial causes, such laws are likewise tyrannical, though in an inferior
degree; because here the subject is aware of the danger he is exposed to, and may by prudent caution
provide against it. The statute law of England does therefore very seldom, and the common law does
never, inflict any punishment extending to life or limb, unless upon the highest necessity: and the
constitution is an utter stranger to any arbitrary power of killing or maiming the subject without the
express warrant of law. “Nullus liber homo” says the great charters, “aliquo modo destruatur, nisi
per legale judicium parium suorum aut per legem terrae.”31 [“No freeman shall be deprived of life
but by the lawful judgment of his peers, or by the law of the land.”] Which words, “aliquo modo
destruatur,” according to sir Edward Coke,32 include a prohibition not only of killing, and maiming,
but also of torturing (to which our laws are strangers) and of every oppression by color of an illegal
authority. And it is enacted by the statute 5 Edw. III. c. 9. that no man shall be forejudged of life of
limb, contrary to the great charter and the law of the land: and again, by statute 28 Ed. III. c. 3. that
no man shall be put the death, without being brought to answer by due process of law.

3. Besides those limbs and members that may be necessary to man, in order to defend himself or
annoy his enemy, the rest of his person or body is also entitled by the same natural right to security
from the corporal insults of menaces, assaults, beating, and wounding; though such insults amount
not to destruction of life or member.

4. The preservation of a man' health from such practices as may prejudice or annoy it, and

5. The security of his reputation or good name from the arts of detraction and slander, are rights to
which every man is entitled, by reason and natural justice; since without these it is impossible to
have the prefect enjoyment of any other advantage or right. But these three last articles (being of
much less importance that those which have gone before, and those which are yet to come) it will
suffice to have barely mentioned among the rights of persons; referring the more minute discussion
of their several branches, to those parts of our commentaries which treat of the infringement of these
rights, under the head of personal wrongs.

II. Next to personal security, the law of England regards, asserts, and preserves the personal liberty
of individuals. This personal liberty consists in the power of locomotion, of changing situation, or
removing one's person to whatsoever place one's own inclination may direct; without imprisonment
or restraint, unless by due course of law. Concerning which we may make the same observations as
upon the preceding article; that it is a right strictly natural; that the laws of England have never
abridged it without sufficient cause; and, that in this kingdom it cannot ever be abridged at the mere
discretion of the magistrate, without the explicit permission of the laws. Here again the language of
the great charter33 is, that no freeman shall be taken or imprisoned, but by lawful judgment of his

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William Blackstone: Vol. 1, Commentaries on the Laws of England (1765) Page 82

equals, or by the law of the land. And many subsequent old statures34 expressly direct, that no man
shall be taken or imprisoned by suggestion or petition to the king, or his council, unless it be by legal
indictment, or the process of the common law. By the petition of right, 3 Car. I, it is enacted, that
no freeman shall be imprisoned or detained without cause shown, to which he may make answer
according to the law. By 17 Car.I. c. 10. if any person be restrained of his liberty by order of decree
of any illegal court, or by command of the king's majesty in person, or by warrant of the council
board, or of any of the privy council; he shall, upon demand of his counsel, have a writ of habeas
corpus, to bring his body before the court of king's bench or common pleas; who shall determine
whether the cause of his commitment be just, and thereupon do as to justice shall appertain. And by
31 Car. III. c. 2. commonly called the habeas corpus act, the methods of obtaining this writ are so
plainly pointed out and enforced, that, so long as this statute remains unimpeached, no subject of
England can be long detained in prison, except in those cases in which the law requires and justifies
such detainer. And, lest this act should be evaded by demanding unreasonable bail, or sureties for
the prisoner's appearance, it is declared by 1 W. & M. St. 2. c. 2. that excessive bail ought not to be
required.

Of great importance to the public is the preservation of this personal liberty: for if once it were left
in the power of any, the highest, magistrate to imprison arbitrarily whomever he or his officers
thought proper, (as in France it is daily practiced by the crown) there would soon be an end of all
other rights and immunities. Some have thought, that unjust attacks, even upon life, or property, at
the arbitrary will of the magistrate, are less dangerous to the commonwealth, than such as are made
upon the personal liberty of the subject. To bereave a man of life, or by violence to confiscate his
estate, without accusation or trial, would be so gross and notorious and act of despotism, as must at
once convey the alarm of tyranny throughout the whole kingdom. But confinement of the person,
by secretly hurrying him to jail, where his sufferings are unknown or forgotten; is a less public, a
less striking, and therefore a more dangerous engine of arbitrary government. And yet sometimes,
when the state is in real danger, even this may be a necessary measure. But the happiness of our
constitution is, that it is not left to the executive power to determine when the danger of the state is
so great, as to render this measure expedient. For the parliament only, or legislative power, whenever
it sees proper, can authorize the crown, by suspending the habeas corpus act for a short and limited
time, to imprison suspected persons without giving any reason for so doing. As the senate of Roam
was wont to have recourse to a dictator, a magistrate of absolute authority, when they judged the
republic in any imminent danger. The decree of the senate, which usually preceded the nomination
of this magistrate, “dent operam consules, ne quid respublica detrimenti capiat” [“let the consuls
take care that the commonwealth receive no injury”] was called the senatus consultum ultimae
necessitatis [Senate decrees in special emergency]. In like manner this experiment ought only to be
tried in cases of extreme emergency; and in these that nation parts with its liberty for a while, in
order to preserve it for ever.

The confinement of the person, in any wise, is an imprisonment. So that the keeping a man against
his will in a private house, putting him in the stocks, arresting or forcibly detaining him in the street,
is an imprisonment.35 And the law so much discourages unlawful confinement, that if a man is under
duress of imprisonment, which we before explained to mean a compulsion by an illegal restraint of
liberty, until he seals a bond or the like; he may allege this duress, and avoid the extorted bond. But
if a man be lawfully imprisoned, and either to procure his discharge, or on any other fair account,

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seals a bond or a deed, this is not by duress of imprisonment, and he is not at liberty to avoid it.36
To make imprisonment lawful, it must either be, by process from the courts of judicature, or by
warrant from some legal officer, having authority to commit to prison; which warrant must be in
writing, under the hand and seal of the magistrate, and express the causes of the commitment, in
order to be examined into (if necessary) upon a habeas corpus. If there be no cause expressed, the
jailer is not bound to detain the prisoner.37 For the law judges in this respect, says sir Edward Coke,
like Festus the Roman governor; that it is unreasonable to send a prisoner, and not to signify withal
the crimes alleged against him.

A natural and regular consequence of this personal liberty, is, that every Englishman may claim a
right to abide in his own country so long as he pleases; and not to be driven form it unless by the
sentence of the law. The king indeed, by his royal prerogative, may issue out his writ ne exeat
regnum [not leave the kingdom], and prohibit any of his subjects from going into foreign parts
without license.38 This may be necessary for the public service, and safeguard of the commonwealth.
But no power on earth, except the authority of parliament, can send any subject of England out of
the land against his will; no not even a criminal. For exile, or transportation, is a punishment
unknown to the common law; and, wherever it is now inflicted, it is either by choice of the criminal
himself, to escape a capital punishment, or else by the express direction of some modern act of
parliament. To this purpose the great charter39 declares that no freeman shall be banished, unless by
the judgment of his peers, or by the law of the land. And by the habeas corpus act, 31 Car. II. c. 2.
(that second magna carta, and stable bulwark of our liberties) it is enacted, that no subject of this
realm, who is an inhabitant of England, Wales, or Berwick, shall be sent prisoner into Scotland,
Ireland, Jersey, Guernsey, or places beyond the seas; (where they cannot have the benefit and
protection of the common law) but that all such imprisonment's shall be illegal; that the person, who
shall dare to commit another contrary to this law, shall be disabled from bearing any office, shall
incur the penalty of a praemunire [forewarning], and be incapable of receiving the king's pardon:
and the party suffering shall also have his private action against the person committing, and all his
aiders, advisers and abettors, and shall recover treble costs; besides his damages, which no jury shall
assess at less than five hundred pounds.

The law is in this respect so benignly and liberally construed for the benefit of the subject, that,
though within the realm the king may command the attendance and service of all his liegemen, yet
he cannot send any man out of the realm, even upon the public service, excepting sailors and
soldiers, the nature of whose employment necessarily implies an exception: he cannot even
constitute a man lord deputy of lieutenant of Ireland against his will, nor make him a foreign
ambassador.40 For this might in reality be no more than an honorable exile.

III. The third absolute right, inherent in every Englishman, is that of property: which consists in the
free use, enjoyment, and disposal of all his acquisitions, without any control or diminution, save only
by the laws of the land. The original of private property is probably founded in nature, as will be
more fully explained in the second book of the ensuing commentaries: but certainly the
modifications under which we at present find in, the method of conserving in the present owner, and
of translating it from man to man, are entirely derived for society; and are some of those civil
advantages, in exchange for which every individual has resigned a part of his natural liberty. The
laws of England are therefore, in point of honor and justice, extremely watchful in ascertaining and

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William Blackstone: Vol. 1, Commentaries on the Laws of England (1765) Page 84

protecting this right. Upon this principle the great charter41 has declared That no freeman shall be
disseized, or divested, of his freehold, or of his liberties, or free customs, but by the judgment of his
peers, or by the law of the land. And by a variety of ancient statutes42 it is enacted, that no man's
lands or goods shall be seized into the king's hands, against the great charter, and the law of the land;
and that no man shall be disinherited, nor put out of his franchises or freehold, unless he be duly
brought to answer, and be forejudged by course of law; and if anything be done to the contrary, it
shall be redressed, and held for none.

So great moreover is the regard of the law for private property, that it will not authorize the least
violation of it; no, not even for the general good of the whole community. If a new road, for
instance, were to be made through the grounds of a private person, it might perhaps be extensively
beneficial to the public; but the law permits no man, or set of men to do this without consent of the
owner of the land. In vain may it be urged, that the good of the individual ought to yield to that of
the community; for it would be dangerous to allow any private man, or even any public tribunal, to
be the judge of this common good, and to decide whether it be expedient or no. Besides, the public
good is in nothing more essentially interested, than in the protection of every individual's private
rights, as modeled by the municipal law. In this, and similar cases the legislature alone can, and
indeed frequently does, interpose, and compel the individual to acquiesce. But how does it interpose
and compel? Not by absolutely stripping the subject of his property in an arbitrary manner; but by
giving him a full indemnification and equivalent for the injury thereby sustained. The public is now
considered as an individual, treating with an individual for an exchange. All that the legislature does
is to oblige the owner to alienate his possessions for a reasonable price; and even this is an exertion
of power, which the legislature indulges with caution, and which nothing but the legislature can
perform.

Nor is this the only instance in which the law of the land has postponed even public necessity to the
sacred and inviolable rights of private property. For no subject of England can be constrained to pay
any aids or taxes, even for the defense of the realm or the support of government, but such as are
imposed by his own consent, or that of his representatives in parliament. By the statute 25 Edw. I.
c. 5. and 6. it is provided, that the king shall not take any aids or tasks, but by the common assent
of the realm. And what that common assent is, is more fully explained by 34 Edw. I. st. 4. cap. I.
which enacts, that no talliage or aid shall be taken without assent of the arch-bishops, bishops, earls,
baron, knights, burgesses, and other freemen of the land;43 and again by 14 Edw. III. st. 2. c. I. the
prelates, earls, barons, and commons, citizens, burgesses, and merchants shall not be charged to
make any aid, it be not by the common assent of the great men and commons in parliament. And,
lastly, by the statute I W. & M. st. 2. c. 2. it is declared, that levying money for or to the use of the
crown, by pretense of prerogative, without grant of parliament; or for longer time, or in other
manner, than the same is or shall be granted, is illegal.

In the three preceding articles we have taken a short view of the principal absolute rights which
appertain to very Englishman. But in vain would these rights be declared, ascertained, and protected
by the dead letter of the laws, if the constitution had provided no other method to secure their actual
enjoyment. It has therefore established certain other auxiliary subordinate rights of the subject,
which serve principally as barriers to protect and maintain inviolate the three great and primary
rights, of personal security, personal liberty, and private property. These are,

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1. The constitution, powers, and privileges of parliament, of which I shall treat at large in the
ensuing chapter.

2. The limitation of the king's prerogative, by bounds so certain and notorious, that it is impossible
he should exceed them without the consent of the people. Of this also I shall treat in its proper place.
The former of these keeps the legislative power in due health and vigor, so as to make it improbable
that laws should be enacted destructive of general liberty: the latter is a guard upon the executive
power, by restraining it from acting either beyond or in contradiction to the laws, that are framed
and established by the other.

3. A third subordinate right of every Englishman is that of applying to the courts of justice for
redress of injuries. Since the law is in England the supreme arbiter of every man's life, liberty, and
property, courts of justice must at all times be open to the subject, and the law be duly administered
therein. The emphatic words of Magna Carta,44 spoken in the person of the king, who in judgment
of law (says sir Edward Coke45) is ever present and repeating them in all his courts, are these; “nulli
vendemus, nulli negabimus, aut differemus rectum vel justitiam [to none will we sell, to none deny,
to none delay either right or justice]: and therefore every subject,” continues the same learned
author, “for injury done to him in bonis, in terris, vel persona [in his goods, lands, or person], by
any other subject, be he ecclesiastical or temporal without any exception, may take his remedy by
the course of the law, and have justice and right for the injury done to him, freely without sale, fully
without any denial, and speedily without delay.” It were endless to enumerate all the affirmative acts
of parliament wherein justice is directed to be done according to the law of the land: and what that
law is, every subject knows; or may know if he pleases: for it depends not upon the arbitrary will
of any judge; but is permanent, fixed, and unchangeable, unless by authority of parliament. I shall
however just mention a few negative statutes, whereby abuses, perversions, or delays of justice,
especially by the prerogative, are restrained. It is ordained by Magna Carta,46 that no freeman shall
be outlawed, that is, put out of the protection and benefit of the laws, but according to the law of the
land. By 2 Edw. III. c. 8. and II Ric. II. c. 10. it is enacted, that no commands or letters shall be sent
under the great seal, or the little seal the signet, or privy seal, in disturbance of the law; or to disturb
or delay common right: and, though such commandments should come, the judges shall not cease
to do right. And by I W. & M. st. 2. c. 2. it is declared, that the pretended power of suspending, or
dispensing with laws, or the execution of laws, by regal authority without consent of parliament, is
illegal.

Not only the substantial part, or judicial decisions, of the law, but also the formal part, or method
of proceeding, cannot be altered but by parliament: for if once those outworks were demolished,
there would be an inlet to all manner of innovation in the body of the law itself. The king, it is true,
may erect new courts of justice; but then they must proceed according to the old established forms
of the common law. For which reason it is declared in the statute 16 Car. I. c. 10. upon the
dissolution of the court of starchamber, that neither his majesty, nor his privy council have any
jurisdiction, power, or authority by English bill, petition, articles, libel (which were the course of
proceeding in the starchamber, borrowed from the civil law) or by any other arbitrary way
whatsoever, to examine, or draw into question, determine or dispose of the lands or goods of any
subjects of this kingdom; but that the same ought to be tried and determined in the ordinary courts
of justice, and by course of law.

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4. If there should happen any uncommon injury, or infringement of the rights beforementioned,
which the ordinary course of law is too defective to reach, there still remains a fourth subordinate
right appertaining to every individual, namely, the right of petitioning the king, or either house of
parliament, for the redress of grievances. In Russia we are told47 that the czar Peter established a law,
that no subject might petition the throne, till he had first petitioned two different ministers of state.
In case he obtained justice from neither, he might then present a third petition to the prince; but upon
pain of death, if found to be in the wrong. The consequence of which was, that no one dared to offer
such third petition; and grievances seldom falling under the notice of the sovereign, he had little
opportunity to redress them. The restrictions, for some there are, which are laid upon petitioning in
England, are of a nature extremely different; and while they promote the spirit of peace, they are no
check upon that of liberty. Care only must be taken, lest, under the pretense of petitioning, the
subject be guilty of any riot or tumult; as happened in the opening of the memorable parliament in
1640: and, to prevent this, it is provided by the statute 13 Car. II. st. 1. c. 5. that no petition to the
king, or either house of parliament, for any alterations in church or state, shall be signed by above
twenty persons, unless the matter thereof be approved by three justices of the peace or the major part
of the grand jury, in the country; and in London by the lord mayor, aldermen, and common council;
nor shall any petition be presented by more than two persons at a time. But under these regulations,
it is declared by the statute I W. & M. st. 2. c. 2. that the subject has a right to petition; and that all
commitments and prosecutions for such petitioning are illegal.

5. The fifth and last auxiliary right of the subject, that I shall at present mention, is that of having
arms for their defense, suitable to their condition and degree, and such as are allowed by law. Which
is also declared by the same statute I W. & M. st.2. c. 2. and is indeed a public allowance, under due
restrictions, of the natural right of resistance and self-preservation, when the sanctions of society and
laws are found insufficient to restrain the violence of oppression.

In these several articles consist the rights, or, as they are frequently termed, the liberties of
Englishmen: liberties more generally talked of, than thoroughly understood; and yet highly
necessary to be perfectly known and considered by every man of rank or property, lest his ignorance
of the points whereon it is founded should hurry him into faction and licentiousness on the one hand,
or a pusillanimous indifference and criminal submission on the other. And we have seen that these
rights consist, primarily, in the free enjoyment of personal security, of personal liberty, and of
private property. so long as these remain inviolate, the subject is perfectly free; for every species of
compulsive tyranny and oppression must act in opposition to one or other of these rights, having no
other object upon which it can possibly be employed. To preserve these from violation, it is
necessary that the constitution of parliaments be supported in its full vigor; and limits certainly
known, be set to the royal prerogative. And, lastly, to vindicate these rights, when actually violated
or attacked, the subjects of England are entitled, in the first place, to the regular administration and
free course of justice in the courts and law; next to the right of petitioning the king and parliament
for redress of grievances; and lastly to the right of having and using arms for self-preservation and
defense. And all these rights and liberties it is our birthright to enjoy entire; unless where the laws
of our country have laid them under necessary restraints. Restraints in themselves so gentle and
moderate, as will appear upon farther inquiry, that no man of sense or probity would wish to see
them slackened. For all of us have it in our choice to do everything that a good man would desire
to do; and are restrained from nothing, but what would be pernicious either to ourselves or our

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fellow citizens. So that this review of our situation may fully justify the observation of a learned
French author, who indeed generally both thought and wrote in the spirit of genuine freedom;48 and
who has not scrupled to profess, even in the very bosom of his native country, that the English is the
only nation in the world, where political or civil liberty is direct end of its constitution.
Recommending therefore to the student in our laws a farther and more accurate search into this
extensive and important title, I shall close my remarks upon it with the expiring wish of the famous
father Paul to his country, “ESTO PERPETUA!” [“ENDURE FOREVER!”]

NOTES

1. 11 Phillip. 12.
2. L. 1. c. 3.
3. Facultas ejus, quod cuique facere libet, nisi quid jure prohibetur. [Its essence is the power of doing whatsoever we please,
unless where authority or law forbids.] Inst. 1.3.1.
4. 3 Edw IV. c. 5.
5. 30 Car, II. st.1.c.3.
6. on Gov, p.2., 57.
7. Salk. 666.
8. Inst. proem.
9. 25 Edw. I.
10. 2 Inst. proem.
11. 1W. and M. st.2. c.2.
12. 12 & 13 W. III. c.2.
13. Plowd. 55.
14. Si aliquis mulierem pregnantem percusserit, vel ei venenum dederit, per quod fecerit abortivam; si puerperium jam
formatum fuerit, et maxime si fuerit animatum, facit homicidium. [If any one strike a woman when pregnant, or administer
poison to her, by which abortion shall ensue, if the child should be already formed, and particularly if it be alive, that person
is guilty of manslaughter.] Bracton. l.3. c.21.
15. 3 Inst. 90
16. Stat. 12 Car II. c.24
17. Stat. 10 & 11 W. III. c. 16
18. Qui in utero sunt, in jure civili intelliguntur in rerum natura esse, cum de eorum commodo agatur. [Those who are in
the womb, are considered by the civil law to be in the nature of things, as they are capable of being benefited] Ff. 1. 5. 26.
19. 2 Inst. 483
20. L. 2. c. 5.
21. 2 Inst. 483
22. Ff. 48. 21. 1.
23. l. 11. t.27

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24. Co. Litt. 133.

25. This was also a rule in the feudal law, l.2. t.21. desiit esse miles seculi, qui factus est miles Christi; nec beneficium
pertinet ad eum qui non debet gerere officium [he who becomes a soldier of Christ has ceased to be a soldier of the world,
nor is he entitled to any reward who acknowledges no duty].
26. Litt. 200.
27. Co. Litt. 133 b.
28. 2 Rep. 48 Co. Litt. 132
29. Co. Litt. 132.
30. Salk. 162.
31. c. 29.
32. 2 Inst. 48
33. c.29.
34. 5 Edw. III. c.9. 25 Edw. III. st. 5. c.4. and 28 Edw. III. 4.3.
35. 2 Inst. 589.
36. 2 Inst. 482.
37. 2 Inst. 52, 53.
38. F. N. B. 85.
39. cap. 29.
40. 2 Inst. 47.
41. c. 29.
42. 5 Edw. III. c.9. 25 Edw. III. st. 5. c.4. 28 Edw. III. c.3.
43. See the historical introduction to the great charter, etc, sub anno 1297; wherein it is shown that this statue de talliagio
non concedendo [concerning the not granting talliage], supposed to have been made in 34 Edw. I, is in reality nothing more
than a sort of translation into Latin of the confirmatio cartarum, 25 Edw. I, which was originally published in the Norman
language.
44. c. 29.
45. 2 Inst. 55.
46. c.29.
47. Montesq. Sp. L. 12. 26.
48. Montesq. Sp. L. 11. 5.

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William Blackstone: Vol. 1, Commentaries on the Laws of England (1765) Page 89

CHAPTER 2
Of The Parliament

WE are next to treat of the rights and duties of persons, as they are members of society, and stand
in various relations to each other. These relations are either public or private: and we will first
consider those that are public.

THE most universal public relation, by which men are connected together, is that of government;
namely, as governors and governed, or in other words, as magistrates and people. Of magistrates
also some are supreme, in whom the sovereign power of the state resides; others are subordinate,
deriving all their authority from the supreme magistrate, accountable to him for their conduct, and
acting in an inferior secondary sphere.

IN all tyrannical governments the supreme magistracy, or the right both of making and of enforcing
the laws, is vested in one and the same man, or one and the same body of men; and wherever these
two powers are united together, there can be no public liberty. The magistrate may enact tyrannical
laws, and execute them in a tyrannical manner, since he is possessed, in quality of dispenser of
justice, with all the power which he as legislator thinks proper to give himself. But, where the
legislative and executive authority are in distinct hands, the former will take care not to entrust the
latter with so large a power, as may tend to the subversion of its own independence, and therewith
of the liberty of the subject. With us therefore in England this supreme power is divided into two
branches; the one legislative, to wit, the parliament, consisting of king, lords, and commons; the
other executive, consisting of the king alone. It will be the business of this chapter to consider the
British parliament; in which the legislative power, and (of course) the supreme and absolute
authority of the state, is vested by our constitution.

THE original or first institution of parliaments is one of those matters that lie so far hidden in the
dark ages of antiquity, that the tracing of it out is a thing equally difficult and uncertain. The word,
parliament, itself (or colloquium, as some of our historians translate it) is comparatively of modern
date, derived from the French, and signifying the place where they met and conferred together. It
was first applied to general assemblies of the states under Louis VII in France, about the middle of
the twelfth century.1 But it is certain that, long before the introduction of the Norman language into
England, all matters of importance were debated and settled in the great councils of the realm. A
practice, which seems to have been universal among the northern nations, particularly the Germans;2
and carried by them into all the countries of Europe, which they overran at the dissolution of the
Roman empire. Relics of which constitution, under various modifications and changes, are still to
be met with in the diets of Poland, Germany, and Sweden, and the assembly of the estates in France;3
for what is there now called the parliament is only the supreme court of justice, composed of judges
and advocates; which neither is in practice, nor is supposed to be in theory, a general council of the
realm.

WITH us in England this general council has been held immemorially, under the several names of
michel-synoth, or great council, michel-gemote or great meeting, and more frequently
wittena-gemote or the meeting of wise men. It was also styled in Latin, commune concilium regni,
magnum concilium regis, curia magna, conventus magnatum vel procerum, assisa generalis [the

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common council of the kingdom, the great council of the king, the high court, the assembly of the
nobles, and the general assize], and sometimes communitas regni Angliae4 [community of the
kingdom of England]. We have instances of its meeting to order the affairs of the kingdom, to make
new laws, and to amend the old, or, as Fleta5 expresses it, “novis injuriis emersis nova constituere
remedia” [“new injuries having arisen, to appoint new remedies for them”], so early as the reign of
Ina king of the west Saxons, Offa king of the Mercians, and Ethelbert king of Kent, in the several
realms of the heptarchy. And, after their union, the mirrour6 informs us, that king Alfred ordained
for a perpetual usage, that these councils should meet twice in the year, or oftener, if need be, to treat
of the government of God's people; how they should keep themselves from sin, should live in quiet,
and should receive right. Our succeeding Saxon and Danish monarchs held frequent councils of this
sort, as appears form their respective codes of laws; the titles whereof usually speak them to be
enacted, either by the king with the advice of his wittena-gemote, or wise men, as, “haec sunt
instituta, quae Edgarus Rex consilio sapientum suorum instituit” [laws which King Edgar has
instituted in an assembly of the wise men of his realm]; or to be enacted by those sages with the
advice of the king, as, “haec sunt judicia, qua sapientes consilio regis Ethelstani instituerunt”
[“decrees which the wise men, with the advice of King Ethelstane, have appointed”]; or lastly, to
be enacted by them both together, as, “haec sunt institutiones, quas Rex Edmundus et episcopi sui
cum sapientibus suis instituerunt” [“the institutions which King Edmund and his bishops and his
wise men have decreed”].

THERE is also no doubt but these great councils were held regularly under the first princes of the
Norman line. Glanvil, who wrote in the reign of Henry the second, speaking of the particular amount
of an amercement in the sheriff's court, says, it had never yet been ascertained by the general assize,
or assembly, but was left to the custom of particular counties.7 Here the general assize is spoken of
as a meeting well known, and its statutes or decisions are put in a manifest contradistinction to
customs, or the common law. And in Edward the third's time an act of parliament, made in the reign
of William the conqueror, was pleaded in the case of the abbey of St Edmund's-bury, and judicially
allowed by the court.8

HENCE it indisputably appears, that parliaments, or general councils, are coeval with the kingdom
itself. How those parliaments were constituted and composed, is another question, which has been
matter of great dispute among our leaned antiquarians; and, particularly, whether the commons, were
summoned at all; or, if summoned, at what period they began to form a distinct assembly. But it is
not my intention here to enter into controversies of this sort. I hold it sufficient that it is generally
agreed, that in the main the constitution of parliament, as it now stands, was marked out so long ago
as the seventeenth year of king John, A. D. 1215, in the great charter granted by that prince; wherein
he promises to summon all arch-bishops, bishops, abbots, earls, and greater barons, personally; and
all other tenants in chief under the crown, by the sheriff and bailiffs; to meet at a certain place, with
forty days notice, to assess aids and scutages when necessary. And this constitution has subsisted
in fact at least from the year 1266, 49 Hen. III: there being still extant writs of that date, to summon
knights, citizens, and burgesses to parliament. I proceed therefore to inquire wherein consists this
constitution of parliament, as it now stands, and has stood for the space of five hundred years. And
in the prosecution of this inquiry, I shall consider, first, the manner and time of its assembling:
secondly, its constituent parts: thirdly, the laws and customs relating to parliament, considered as
one aggregate body: fourthly and fifthly, the laws and customs relating to each house, separately and

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distinctly taken: sixthly, the methods of proceeding, and of making statutes, in both houses: and
lastly, the manner of the parliament's adjournment, prorogation, and dissolution.

I. AS to the manner and time of assembling. The parliament is regularly to be summoned by the
king's writ or letter, issued out of chancery by advice of the privy council, at least forty days before
it begins to sit. It is a branch of the royal prerogative, that no parliament can be convened by its own
authority, or by the authority of any, except the king alone. And this prerogative is founded upon
very good reason. For, supposing it had a right to meet spontaneously, without being called together,
it is impossible to conceive that all the members, and each of the houses, would agree unanimously
upon the proper time and place of meeting: and if half of the members met, and half absented
themselves, who shall determine which is really the legislative body, the part assembled, or that
which stays away? It is therefore necessary that the parliament should be called together at a
determinate time and place; and highly becoming its dignity and independence, that it should be
called together by none but one of its own constituent parts; and, of the three constituent parts, this
office can only appertain to the king; as he is a single person, whose will may be uniform and
steady; the first person in the nation, being superior to both houses in dignity; and the only branch
of the legislature that has a separate existence, and is capable of performing any act at a time when
no parliament is in being.9 Nor is it an exception to this rule that, by some modern statutes, on the
demise of a king or queen, if there be then no parliament in being, the last parliament revives, and
is to sit again for six months, unless dissolved by the successor: for this revived parliament must
have been originally summoned by the crown.

IT is true, that by a statute, 16 Car. I. c. 1. it was enacted, that if the king neglected to call a
parliament for three years, the peers might assemble and issue out writs for the choosing one; and,
in case of neglect of the peers, the constituents might meet and elect one themselves. But this, if ever
put in practice, would have been liable to all the inconveniences I have just now stated; and the act
itself was esteemed so highly detrimental and injurious to the royal prerogative, that it was repealed
by statute 16 Car. II. c. 1. From thence therefore no precedent can be drawn.

IT is also true, that the convention-parliament, which restored king Charles the second, met above
a month before his return; the lords by their own authority, and the commons in pursuance of writs
issued in the name of the keepers of the liberty of England by authority of parliament: and that the
said parliament sat till the twenty ninth of December, full seven months after the restoration; and
enacted many laws, several of which are still in force. But this was for the necessity of the thing,
which supersedes all law; for if they had not so met, it was morally impossible that the kingdom
should have been settled in peace. And the first thing done after the king's return, was to pass an act
declaring this to be a good parliament, notwithstanding the defect of the king's writs.10 So that, as
the royal prerogative was chiefly wounded by their so meeting, and as the king himself, who alone
had a right to object, consented to wave the objection, this cannot be drawn into an example in
prejudice of the rights of the crown. Besides we should also remember, that it was at that time a
great doubt among the lawyers,11 whether even this healing act made it a good parliament; and held
by very many in the negative: though it seems to have been too nice a scruple. And yet, out of
abundant caution, it was thought necessary to confirm its acts in the next parliament, by stat. 13 Car.
II. c. 7. & c. 14.

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IT is likewise true, that at time of the revolution, A. D. 1688, the lords and commons by their own
authority, and upon the summons of the prince of Orange, (afterwards king William) met in a
convention and therein disposed of the crown and kingdom. But it must be remembered, that this
assembling was upon a like principle of necessity as at the restoration; that is, upon an apprehension
that king James the second had abdicated the government, and that the throne was thereby vacant:
which apprehension of theirs was confirmed by their concurrent resolution, when they actually came
together. And in such a case as the palpable vacancy of a throne, it follows ex necessitate rei, that
the form of the royal writs must be laid aside, otherwise no parliament can ever meet again. For, let
us put another possible case, and suppose, for the sake of argument, that the whole royal line should
at any time fail, and become extinct, which would indisputably vacate the throne: in this situation
it seems reasonable to presume, that the body of the nation, consisting of lords and commons, would
have a right to meet and settle the government, otherwise there must be no government at all. And
upon this and no other principle did the convention in 1688 assemble. The vacancy of the throne was
precedent to their meeting without any royal summons, not a consequence of it. They did not
assemble without writ, and then make the throne vacant; but the throne being previously vacant by
the king's abdication, they assembled without writ, as they must do if they assembled at all. Had the
throne been full, their meeting would not have been regular; but, as it was really empty, such
meeting became absolutely necessary. And accordingly it is declared by statute 1 W. & M. St. 1. c.
1. that this convention was really the two houses of parliament, notwithstanding the want of writs
or other defects of form. So that, notwithstanding these two capital exceptions, which were
justifiable only on a principle of necessity, (and each of which, by the way, induced a revolution in
the government) the rule laid down is in general certain, that the king, only, can convoke a
parliament.

AND this by the ancient statutes of the realm,12 he is bound to do every year, or oftener, if need be.
Not that he is, or ever was, obliged by these statutes to call a new parliament every year; but only
to permit a parliament to sit annually for the redress of grievances, and dispatch of business, if need
de. These last words are so loose and vague, that such of our monarchs as were inclined to govern
without parliaments, neglected the convoking them, sometimes for a very considerable period, under
pretense that there was no need of them. But, to remedy this, by the statute 16 Car. II. c. 1. it is
enacted, that the sitting and holding of parliaments shall not be intermitted above three years at the
most. And by the statute 1. W. & M. St. 2. c. 2. it is declared to be one of the rights of the people,
that for redress of all grievances, and for the amending, strengthening, and preserving the laws,
parliaments ought to be held frequently. And this indefinite frequency is again reduced to a certainty
by statute 6 W. & M. c. 2. which enacts, as the statute of Charles the second had done before, that
a new parliament shall be called within three years13 after the determination of the former.

II. THE constituent parts of a parliament are the next objects of our inquiry. And these are, the king's
majesty, sitting there in his royal political capacity, and the three estates of the realm; the lords
spiritual, the lords temporal, (who sit, together with the king, in one house) and the commons, who
sit by themselves in another.14 And the king and these three estates, together, form the great
corporation or body politic of the kingdom, of which the king is said to be caput, principium, et finis
[the head, beginning, and end]. For upon their coming together the king meets them, either in person
or by representation; without which there can be no beginning of a parliament;15 and he also has
alone the power of dissolving them.

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IT is highly necessary for preserving the balance of the constitution, that the executive power should
be a branch, though not be whole, of the legislature. The total union of them, we have seen, would
be productive of tyranny; the total disjunction of them for the present, would in the end produce the
same effects, by causing that union, against which it seems to provide. The legislature would soon
become tyrannical, by making continual encroachments, and gradually assuming to itself the rights
of the executive power. Thus the long parliament of Charles the first, while it acted in a
constitutional manner, with the royal concurrence, redressed many heavy grievances and established
many salutary laws. But when the two houses assumed the power of legislation, in exclusion of the
royal authority, they soon after assumed likewise the reins of administration; and, in consequence
of these united powers, overturned both church and state, and established a worse oppressions than
any they pretended to remedy. To hinder therefore any such encroachments, the king is himself a
part of the parliament: and, as this is the reason of his being so, very properly therefore the share of
legislation, which the constitution has placed in the crown, consists in the power of rejecting, rather
than resolving; this being sufficient to answer the end proposed. For we may apply to the royal
negative, in this instance, what Cicero observes of the negative of the Roman tribunes, that the
crown has not any power of doing wrong, but merely of preventing wrong from being done.16 The
crown cannot begin of itself any alterations in the present established law; but it may approve or
disapprove of the alterations suggested and consented to by the two houses. The legislative therefore
cannot abridge the executive power of any rights which it now has by law, without its own consent;
since the law must perpetually stand as it now does, unless all the powers will agree to alter it. And
herein indeed consists the true excellence of the English government, that all the parts of it form a
mutual check upon each other. In the legislature, the people are a check upon the nobility, and the
nobility a check upon the people; by the mutual privilege of rejecting what the other has resolved:
while the king is a check upon both, which preserves the executive power from encroachments. And
this every executive power is again checked, and kept within due bounds by the two houses, through
the privilege they have of inquiring into, impeaching, and punishing the conduct (not indeed of the
king, which would destroy his constitutional independence; but, which is more beneficial to the
public) of his evil and pernicious counselors. Thus every branch of our civil polity supports and is
supported, regulates and is regulated, by the rest; for the two houses naturally drawing in two
directions of opposite interest, and the prerogative in another still different from them both, they
mutually keep each other from exceeding their proper limits; while the whole is prevented from
separation, and artificially connected together by the mixed nature of the crown, which is a part of
the legislative, and the sole executive magistrate. Like three distinct powers in mechanics, they
jointly impel the machine of government in a direction different from what either, acting by
themselves, would have done; but at the same time in a direction partaking of each, and formed out
of all; a direction which constitutes the true line of the liberty and happiness of the community.

LET us now consider these constituent parts of the sovereign power, or parliament, each in a
separate view. The king's majesty will be the subject of the next, and many subsequent chapters, to
which we must a present refer.

THE next in order are the spiritual lords. These consist of two arch-bishops, and twenty four
bishops; and, at the dissolutions of monasteries by Henry VIII., consisted likewise of twenty six
mitred abbots, and two priors:17 a very considerable body, and in those times equal in number to the
temporal nobility.18 All these hold, or are supposed to hold, certain ancient baronies under the king:

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for William the conqueror thought proper to change the spiritual tenure, of frankalmoign or free
alms, under which the bishops held their lands during the Saxon government, into the feudal or
Norman tenure by barony; which subjected their estates to all civil charges and assessments, from
which they were before exempt:19 and, in right of succession to those baronies, the bishops obtained
their seat in the house of lords.20 But though these lords spiritual are in the eye of the law a distinct
estate from the lords temporal, and are so distinguished in all our acts of parliament, yet in practice
they are usually blended together under the one name of the lords; they intermix in their votes; and
the majority of such intermixture binds both estates. And, from this want of a separate Assembly and
separate negative of the prelates, some writers have argued21 very cogently, that the lords spiritual
and temporal are now in reality only one estate:22 which is unquestionably true in every effectual
sense, though the ancient distinction between them still nominally continues. For if a bill should pass
their house, there is no doubt of its being effectual, though every lord spiritual should vote against
it; of which Selden,23 and Sir Edward Coke,24 give many instances: as, on the other hand, I presume
it would be equally good, if the lords temporal present were inferior to the bishops in number, and
every one of those temporal lords gave his vote to reject the bill; though this Sir Edward Coke seems
to doubt of.25

THE lords temporal consist of all the peers of the realm (the bishops not being in strictness held to
be such, but merely lords of parliament26) by whatever title of nobility distinguished; dukes,
marquises, earls, viscounts, or barons; of which dignities we shall speak more hereafter. Some of
these sit by descent, as do all ancient peers; some by creation, as do all new-made ones; others, since
the union with Scotland, by election, which is the case of the sixteen peers, who represent the body
of the Scots nobility. Their number is indefinite, and may be increased at will by the power of the
crown: and once, in the reign of queen Anne, there was an instance of creating no less than twelve
together; in contemplation of which, in the reign of king George the first, a bill passed the house of
lords, and was countenanced by the then ministry, for limiting the number of the peerage. This was
thought by some to promise a great acquisition to the constitution, by restraining the prerogative
from gaining the ascendant in that august assembly, by pouring in at pleasure an unlimited number
of new created lords. But the bill was ill-relished and miscarried in the house of commons, whose
leading members were then desirous to keep the avenues to the other house as open and easy as
possible.

THE distinction of rank and honors is necessary in every well-governed state; in order to reward
such as are eminent for their services to the public, in a manner the most desirable to individuals,
and yet without burden to the community; exciting thereby an ambitious yet laudable ardor, and
generous emulation in others. And emulation, or virtuous ambition, is a spring of action which,
however dangerous or invidious in a mere republic or under a despotic sway, will certainly be
attended with good effects under a free monarchy; where, without destroying its existence, its
excesses may be continually restrained by that superior power, from which all honor is derived. Such
a spirit, when nationally diffused gives life and vigor to the community; it sets all the wheels of
government in motion, which under a wise regulator, may be directed to any beneficial purpose; and
thereby every individual may be made subservient to the public good, while he principally means
to promote his own particular views. A body of nobility is also more peculiarly necessary in our
mixed and compounded constitution, in order to support the rights of both the crown and the people,
by forming a barrier to withstand the encroachments of both. It creates and preserves that gradual

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scale of dignity, which proceeds from the peasant to the prince; rising like a pyramid from a broad
foundation, and diminishing to a point as it rises. It is this ascending and contracting proportion that
adds stability to any government; for when the departure is sudden from one extreme to another, we
may pronounce that state to be precarious. The nobility therefore are the pillars, which are reared
from among the people, more immediately to support the throne; and if that falls, they must also be
buried under its ruins. Accordingly, when in the last century the commons had determined to
extirpate monarchy, they also voted the house of lords to be useless and dangerous. And since titles
of nobility are thus expedient in the state, it is also expedient that their owners should form an
independent and separate branch of the legislature. If they were confounded with the mass of the
people, and like them had only a vote in electing representatives, their privileges would soon be
borne down and overwhelmed by the popular torrent, which would effectually level all distinctions.
It is therefore highly necessary that the body of nobles should have a distinct assembly, distinct
deliberations, and distinct powers from the commons.

THE commons consist of all such men of any property in the kingdom as have not seats in the house
of lords; every one of which as a voice in parliament, either personally, or by his representatives.
In a free state, every man, who is supposed a free agent, ought to be, in some measure, his own
governor; and therefore a branch at least of the legislative power should reside in the whole body
of the people. And this power, when the territories of the state are small and its citizens easily
known, should be exercised by the people in their aggregate or collective capacity, as was wisely
ordained in the petty republics of Greece, and the first rudiments of the Roman state. But this will
be highly inconvenient, when the public territory is extended to any considerable degree, and the
number of citizens is increased. Thus when, after the social war, all the burghers of Italy were
admitted free citizens of Rome, and each had a vote in the public assemblies, it became impossible
to distinguish the spurious from the real voter, and from that time all elections and popular
deliberations grew tumultuous and disorderly; which paved the way for Marius and Sylla, Pompey
and Caesar, to trample on the liberties of their country, and at last to dissolved the commonwealth.
In so large a state as ours it is therefore every wisely contrived, that the people should do that by
their representatives, which it is impracticable to perform in person: representatives, chosen by a
number of minute and separate districts, wherein all the voters are, or easily may be, distinguished.
The counties are therefore represented by knights, elected by the proprietors of lands; the cities and
boroughs are represented by citizens and burgesses, chosen by the mercantile part or supposed
trading interest of the nation; much in the same manner as the burghers in the diet of Sweden are
chosen by the corporate towns, Stockholm sending four, as London does with us, other cities two,
and some only one.27 The number of English representatives is 513, and of Scots 45; in all 558. And
every member, though chosen by one particular district, when elected and returned serves for the
whole realm. For the end of his coming thither is not particular, but general; not barely to advantage
his constituents, but the common wealth; to advise his majesty (as appears from the writ of
summons28) “de communi consilio super negotiis quibusdam arduis et urgentibus, regem, statum,
et defensionem regni Angliae et ecclesiae Anglicanae concernentibus” [concerning the common
council upon certain difficult and urgent affairs relating to the king, the state, and defense of the
kingdom of England and of the English church]. And therefore he is not bound, like a deputy in the
united provinces, to consult with, or take the advice, of his constituents upon any particular point,
unless he himself thinks it proper or prudent so to do.

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THESE are the constituent parts of a parliament, the king, the lords spiritual and temporal, and the
commons. Parts, of which each is so necessary, that the consent of all three is required to make any
new law that shall bind the subject. Whatever is enacted for law by one, or by two only, of the three
is no statute; and to it no regard is due, unless in matters relating to their own privileges. For though,
in the times of madness and anarchy, the commons once passed a vote,29 “that whatever is enacted
or declared for law by the commons in parliament assembled has the thereby, although the consent
and concurrence of the king or house of peers be not had thereto;” yet, when the constitution was
restored in all its forms, it was particularly enacted by statute 13 Car. II. c. 1. that if any person shall
maliciously or advisedly affirm, that both or either of the houses of parliament have any legislative
authority without the king, such person shall incur all the penalties of a praemunire [forewarning].

III. WE are next to examine the laws and customs relating to parliament, thus united together and
considered as one aggregate body.

THE power and jurisdiction of parliament, says Sir Edward Coke,30 is so transcendent and absolute,
that it cannot be confined, either for causes or persons, within any bounds. And of this high court
he adds, it may be truly said “si antiquitatem spectes, est vetustissima; si dignitatem, est
honoratissima; si jurisdictionem, est capacissima” [“if you consider its antiquity, it is most ancient;
if its dignity, it is most honorable; if its jurisdiction, it is most extensive”]. It has sovereign and
uncontrollable authority in making, confirming, enlarging, restraining, abrogating, repealing,
reviving, and expounding of laws, concerning matters of all possible denominations, ecclesiastical,
or temporal, civil, military, maritime, or criminal: the being the place where that absolute despotic
power, which must in all governments reside somewhere, is entrusted by the constitution of these
kingdoms. All mischiefs and grievances, operations and remedies, that transcend the ordinary course
of the laws, are within the reach of this extraordinary tribunal. It can regulate or new model the
succession to the crown; as was done in the reign of Henry VIII. and William III. It can alter the
established religion of the land; as was done in a variety of instances, in the reigns of king Henry
VIII. and his three children. It can change and create afresh even the constitution of the kingdom and
of parliaments themselves; as was done by the act of union, and the several statutes for triennial and
septennial elections. It can, in short, do everything that is not naturally impossible; and therefore
some have not scrupled to call its power, by a figure rather too bold, the omnipotence of parliament.
True it is, that what they do, no authority upon earth can undo. So that it is a matter most essential
to the liberties of this kingdom, that such members be delegated to this important trust, as are most
eminent for their probity, their fortitude, and their knowledge; for it was a known apothegm of the
great lord treasurer Burleigh, “that England could never be ruined but by a parliament:” and, as Sir
Matthew Hale observes,31 this being the highest and greatest court, over which none other an have
jurisdiction in the kingdom, if by any means a misgovernment should any way fall upon it, the
subjects of this kingdom are left without all manner of remedy. To the same purpose the president
Montesquieu, though I trust too hastily, presages;32 that as Rome, Sparta, and Carthage have lost
their liberty and perished, so the constitution of England will in time lose its liberty, will perish: it
will perish, whenever the legislative power shall become more corrupt that the executive.

IT must be owned that Mr. Locke,33 and other theoretical writers, have held, that “there remains still
inherent in the people 'a supreme power to remove or alter the legislative, when they find the
legislative act contrary to the trust reposed in them: for when such trust is abused; it is thereby

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forfeited, and devolves to those who gave it.” But however just this conclusion may be in theory,
we cannot adopt it, nor argue from it, under any dispensation of government at present actually
existing. For this devolution of power, to the people at large, includes in it a dissolutions of the
power, to the people at large, includes in it a dissolutions of the whole form of government
established by that people, reduces all the members of their original state of equality, and by
annihilating the sovereign power repeals all positive laws whatsoever before enacted. No human
laws will therefore supposed a case, which at once must destroy all law, and compel men to build
afresh upon a new foundation; nor will they make provision for so desperate an event, as must
render all legal provisions ineffectual. So long therefore as the English constitution lasts, we may
venture to affirm, that the power of parliament is absolute and without control.

IN order to prevent the mischiefs that might arise, by placing this extensive authority in hands that
are either incapable, or else improper, to manage it, it is provided that no one shall sit or vote in
either house of parliament, unless he be twenty one years of age. This is expressly declared by
statute 7 & 8 W. III. c. 25. with regard to the house of commons; though a minor was incapacitated
before from sitting in either house, by the law and custom of parliament.34 To prevent crude
innovations in religion and government, it is enacted by statute 30 Car. II. St. 2. and 1 Geo. I. c. 13.
that no member shall vote or sit in either house, till he has in the presence of the house taken the
oaths of allegiance, supremacy, and abjuration, and subscribed and repeated the declaration against
transubstantiation, and invocation of saints, and the sacrifice of the mass. To prevent dangers that
may arise to the kingdom from foreign attachments, connections, or dependencies, it is enacted by
the 12 & 13 W. III. c. 2. that no alien, born out of the dominions of the crown of Great Britain, even
though he be naturalized, shall be capable of being a member of either house of parliament.

FARTHER: as every court of justice has laws and customs for its direction, some the civil and
canon, some the common law, others their own peculiar laws and customs, so the high court of
parliament has also its own peculiar law, called the lex et consuetudo parliamenti [law and custom
of parliament]; a law which Sir Edward Coke35 observes, is “ab omnibus quaerenda, a multis
ignorata, a paucis cognita” [“to be sought by all, unknown to many, known by few”]. It will not
therefore be expected that we should enter into the examination of this law, with any degree of
minuteness; since, as the same learned author assures us,36 it is much better to be learned out of the
rolls of parliament, and other records, and by precedents, and continual experience, than can be
expressed by any one man. It will be sufficient to observe, that the whole of the law and custom of
parliament has its original from this one maxim; “that whatever matter arises concerning either
house of parliament, ought to be examined, discussed, and adjudged in that house to which it relates,
and not elsewhere.”

THE privileges of parliament are likewise very large and indefinite; which has occasioned an
observation, that the principal privilege of parliament consisted in this, that its privileges were not
certainly known to any but the parliament itself. And therefore when in 31 Hen. VI the house of
lords propounded a question to the judges touching the privilege of parliament, the chief justice, in
the name of his brethren, declared, “that they ought not to make answer to that question; for it has
not been used aforetime that the justices should in any wise determine the privileges of the high
court of parliament; for it is so high and mighty in his nature, that it may make law; and that which
is law, it may make no law; and the determination and knowledge of that privilege belongs to the

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lords of parliament, and not to the justices.”37 Privilege of parliament was principally established,
in order to protect its members not only from being molested by their fellow-subjects, but also more
especially from being oppressed by the power of the crown. It therefore all the privileges of
parliament were once to be set down and ascertained, and no privilege to be allowed but what was
so defined and determined, it were easy for the executive power to devise some new case, not within
the line of privilege, and under pretense thereof to harass any refractory member and violate the
freedom of parliament. The dignity and independence of the two houses are therefore in great
measure preserved by keeping their privileges indefinite. Some however of the more notorious
privileges of the members of either house are, privilege of speech, of person, of their domestics, and
of their lands and goods. As to the first, privilege of speech, it is declared by the statute 1 W. & M.
St. 2. c. 2. as one of the liberties of the people, “that the freedom of speech, and debates, and
proceedings in parliament, ought not to be impeached or questioned in any court or place out of
parliament.” And this freedom of speech is particularly demanded of the king in person, by the
speaker of the house of commons, at the opening of every new parliament. So likewise are the other
privileges, of person, servants, lands and good; which are immunities as ancient as Edward the
confessor, in whose laws38 we find this precept, “ad synodus venientibus, sive summoniti sint, sive
per se quid agendum habuerint, sit summa pax” [“Let there be perfect security to those coming to
the synods; whether summoned, or coming on their own busines”]: and so too, in the old Gothic
constitutions, “extenditur haec pax et securitas ad quatuordecim dies, convocato regni senatu.”39
[“This freedom from molestation is extended to fourteen days from the assembling of the senate of
the kingdom.”] This includes not only privilege from illegal violence, but also from legal arrests,
and seizures by process from the courts of law. To assault by violence a member of either house, or
his menial servants, is a high contempt of parliament, and there punished with the utmost severity.
It has likewise peculiar penalties annexed to it in the courts of law, by the statutes 5 Hen. IV. c. 6.
and 11 Hen. VI. c. 11. Neither can any members of either house be arrested and taken into custody,
nor served with any process of the courts of law; nor can his menial servants be arrested; nor can
any entry be made on his lands; nor can his goods be distrained or seized; without a breach of the
privilege of parliament. These privileges however, which derogate from the common law, being only
indulged to prevent the member's being diverted from the public business, endure no longer than the
session of parliament, save only as to the freedom of his person: which in a peer is for ever sacred
and inviolable; and in a commoner for forty days after every prorogation, and forty days before the
next appointed meeting;40 which is now in effect as long as the parliament subsists, it seldom being
prorogued for more than fourscore days at a time. As to all other privileges which obstruct the
ordinary course of justice, they cease by the statutes 12 W. III. c. 3. and 11 Geo. II. c. 24.
immediately after the dissolutions or prorogation of the parliament, or adjournment of the houses
for above a fortnight; and during these recesses a peer, or member of the house of commons, may
be sued like an ordinary subject, and in consequence of such suits may be dispossessed of his lands
and goods. In these cases the king has also his prerogative: he may sue for his debts, though not
arrest the person of a member, during the sitting of parliament; and by statute 2 & 3 Ann. c. 18. a
member may be sued during the sitting of parliament for any misdemeanor or breach of trust in a
public office. Likewise, for the benefit of commerce, it is provided by statute 4 Geo. III. c. 33, that
any trader, having privilege of parliament, may be served with legal process for any just debt, (to
the amount of 100£) and unless he makes satisfaction within two months, it shall be deemed an act
of bankruptcy; and that commissions of bankrupt may be issued against such privileged traders, in
like manner as against any other.

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The only way by which courts of justice could anciently take cognizance of privilege of parliament
was by writ of privilege, in the nature of a supersedeas [a forbearance], to deliver the party out of
custody when arrested in a civil suit.41 For when a letter was written by the speaker to the judges,
to stay proceedings against a privileged person, they rejected it as contrary to their oath of office.42
But since the statute 12 W. III. c. 3. which enacts, that no privileged person shall be subject to arrest
or imprisonment, it has been held that such arrest is irregular ab initio, and that the party may be
discharged upon motion.43 It is to be observed, that there is no precedent of any such writ of
privilege, but only in civil suits; and that the statute of 1 Jac. I. c. 13. and that of king William
(which remedy some inconveniences arising from privilege of parliament) speak only of civil
actions. And therefore the claim of privilege has been usually guarded with an exception as to the
case of indictable crimes;44 or, as it has been frequently expressed, of treason, felony, and breach (or
surety) of the peace.45 Whereby it seems to have been understood that no privilege was allowable
to the members, their families, or servants in any crime whatsoever; for all crimes are treated by the
law as being contra pacem domini regis [against the peace of our lord the king]. And instances have
not been wanting, wherein privileged persons have been convicted of misdemeanors, and committed,
or prosecuted to outlawry, even in the middle of a session;46 which proceeding has afterwards
received the sanction and approbation of parliament.47 To which may be added, that, a few years ago,
the case of writing and publishing seditious libels was resolved by both houses 48 not to be entitled
to privilege, and that the reasons, upon which that case proceeded,49 extended equally to every
indictable offense. So that the chief, if not the only, privilege of parliament, in such cases, seems to
be the right of receiving immediate information of the imprisonment or detention of any member,
with the reason for which he is detained: a practice that is daily used upon the slightest military
accusations, preparatory to a trial by a court martial;50 and which is recognized by the several
temporary statutes for suspending the habeas corpus act,51 whereby it is provided, that no member
of either house shall be detained, till the matter of which he stands suspected, be first communicated
to the house of which he is a member, and the consent of the said house obtained for his commitment
or detaining. But yet the usage has uniformly been, ever since the revolution, that the
communication has been subsequent to the arrest.

THESE are the general heads of the laws and customs relating to parliament, considered as one
aggregate body. We will next proceed to:

IV. THE laws and customs relating to the house of lords in particular. These, if we exclude their
judicial capacity, which will be more properly treated of in the third and fourth books of these
commentaries, will take up but little of our time.

ONE very ancient privilege is that declared by the charter of the forest,52 confirmed in parliament
9 Hen. III.; viz, that every lord spiritual or temporal summoned to parliament, and passing through
the king's forests, may both in going and returning, kill one or two of the king's deer without
warrant; in view of the forester, if he be present; or on blowing a horn if he be absent, that he may
not seem to take the king's venison by stealth.

IN the next place they have a right to be attended, and constantly are, by the judges of the court of
king's bench and common pleas, and such of the barons of the exchequer as are of the degree of the
coif, or have been made sergeants at law; as likewise by the masters of the court of chancery; for

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their advice in point of law, and for the greater dignity of their proceedings. The secretaries of state,
the attorney and solicitor general, and the rest of the king's learned counsel being sergeants, were
also used to attend the house of peers, and have to this day their regular writs of summons issued
out at the beginning of every parliament:53 but, as many of them have of late years been members
of the house so commons, their attendance is fallen into disuse.

ANOTHER privilege is, that every peer, by license obtained from the king, may make another lord
of parliament his proxy, to vote for him in his absence.54 A privilege which a member of the other
house can by no means have, as he is himself but a proxy for a multitude of people.55

EACH peer has also a right, by leave of the house, when a vote passes contrary to his sentiments,
to enter his dissent on the journals of the house, with the reasons for such dissent on the journals of
the house, with the reasons for such dissent; which is usually styled his protest.

ALL bills likewise, that may in their consequences any way affect the rights of the peerage, are by
the custom of parliament to have their first rise and beginning in the house of peers, and to suffer
no changes or amendments in the house of commons.

THERE is also one statute peculiarly relative to the house of lords; 6 Ann. c. 23. which regulates
the election of the sixteen representative peers of North Britain, in consequence of the twenty second
and twenty third articles of the union: and for that purpose prescribes the oaths, etc, to be taken by
the electors; directs the mode of balloting; prohibits the peers electing from being attended in an
unusual manner; and expressly provides, that no other matter shall be treated of in that assembly,
save only the election, on pain of incurring a praemunire.

V. THE peculiar laws and customs of the house of commons relate principally to the raising of taxes,
and the elections of members to serve in parliament.

FIRST, with regard to taxes: it is the ancient indisputable privilege and right of the house of
commons, that all grants of subsidies or parliamentary aids do begin in their house, and are first
bestowed by them;56 although their grants are not effectual to all intents and purposes, until they
have the assent of the other two branches of the legislature. The general reason, given for this
exclusive privilege of the house of commons, is, that the supplies are raised upon the body of the
people, and therefore it is proper that they alone should have the right of taxing themselves. This
reason would be unanswerable, if the commons taxed none but themselves: but it is notorious, that
a very large share of property is in the possession of the house of lords; that this property is equally
taxable, and taxed, as the property of the commons; and therefore the commons not being the sole
persons taxed, this cannot be the reason of their having the sole right of raising and modeling the
supply. The true reason, arising from the spirit of our constitution, seems to be this. The lords being
a permanent hereditary body, created at pleasure by the king, are supposed more liable to be
influenced by the crown, and when once influenced to continue so, than the commons, who are a
temporary elective body, freely nominated by the people. It would therefore be extremely dangerous,
to give them any power of framing new taxes for the subject; it is sufficient, that they have a power
of rejecting, if they think the commons too lavish or improvident in their grants. But so reasonably
jealous are the commons of this valuable privilege, that herein they will not suffer the other house

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to exert any power but that of rejecting; they will not permit the least alteration or amendment to be
made by the lords to the mode of taxing the people by a money bill; under which appellation are
included all bills, by which money is directed to be raised upon the subject, for any purpose or in
any shape whatsoever; either for the exigencies of government, and collected from the kingdom in
general, as the land tax; on for private benefit, and collected in any particular district; as by
turnpikes, parish rates, and the like. Yet Sir Matthew Hale57 mentions one case, founded on the
practice of parliament in the reign of Henry VI,58 wherein he thinks the lords may alter a money bill;
and that is, if the commons grant a tax, as that of tonnage and poundage, for four years; and the lords
alter it to a less time, as for two years; here, he says, the bill need not be sent back to the commons
for their concurrence, but may receive the royal assent without farther ceremony; for the alteration
of the lords is consistent with the grant of the commons. But such an experiment will hardly be
repeated by the lords, under the present improved idea of the privilege of the house of commons:
and, in any case where a money bill is remanded to the commons, all amendments in the mode of
taxation are sure to be rejected.

NEXT, with regard to the elections of knights, citizens, and burgesses; we may observe that herein
consists the exercise of the democratical part of our constitution: for in a democracy there can be
no exercise of sovereignty but by suffrage, which is the declaration of the people's will. In all
democracies therefore it is of the utmost importance to regulate by whom, and in what manner, the
suffrages are to be given. And the Athenians were so justly jealous of this prerogative, that a
stranger, who interfered in the assemblies of the people, was punished by their laws with death:
because such a man was esteemed guilt of high treason, by usurping those rights of sovereignty, to
which he had no title. In England, where the people do not debate in a collective body buy by
representation, the exercise of this sovereignty consists in the choice of representatives. The laws
have therefore very strictly guarded against usurpation or abuse of this power, by many salutary
provisions; which may be reduced to these three points, 1. The qualifications of the electors. 2. The
qualifications of the elected. 3. The proceedings at elections.

1. AS to the qualifications of the electors. The true reason of requiring any qualification, with regard
to property, in voters, is to exclude such persons as are in so mean a situation that they are esteemed
to have no will of their own. If these persons had votes, they would be tempted to dispose of them
under some undue influence or other. This would give a great, an artful, or a wealthy man, a larger
share in elections than is consistent with general liberty. If it were probable that every man would
give his vote freely, and without influence of any kind, then, upon the true theory and genuine
principles of liberty, every member of the community, however poor, should have a vote in electing
those delegates, to whose charge is committed the disposal of his property, his liberty, and his life.
But, since that can hardly be expected in persons of indigent fortunes, or such as are under the
immediate dominion of others, all popular states have been obliged to establish certain
qualifications; whereby some, who are suspected to have no will of their own, are excluded from
voting, in order to set other individuals, whose wills may be supposed independent, more thoroughly
upon a level with each other.

AND this constitution of suffrages is framed upon a wiser principle than either of the methods of
voting, by centuries, or by tribes, among the Romans. In the method by centuries, instituted by
Servius Tullius, it was principally property, and not numbers that turned the scale: in the method by

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tribes, gradually introduced by the tribunes of the people, numbers only were regarded and property
entirely overlooked. Hence the laws passed by the former method had usually too great a tendency
to aggrandize the patricians or rich nobles; and those by the latter had too much of a leveling
principle. Our constitution steers between the two extremes. Only such as are entirely excluded, as
can have no will of their own: there is hardly a free agent to be found, but what is entitled to a vote
in some place or other in the kingdom. Nor is comparative wealth, or property, entirely disregarded
in elections; for though the richest man has only one vote at one place, yet if his property be at all
diffused, he has probably a right to vote at more places than one, and therefore has many
representatives. This is the spirit of our constitution: not that I assert it is in fact quite so perfect as
I have here endeavored to describe it; for, if any alteration might be wished or suggested in the
present frame of parliaments, it should de in favor of a more complete representation of the people.

BUT to return to our qualifications; and first those of electors for knights of the shire. 1. By statute
8 Hen. VI. c. 7. and 10 Hen. VI. c. 2. The knights of the shires shall be chosen of people dwelling
in the same counties; whereof every man shall have freehold to the value of forty shillings by the
year within the county; which by subsequent statutes is to be clear of all charges and deductions,
except parliamentary and parochial taxes. The knights of shires are the representatives of the
landholders, or landed interest, of the kingdom: their electors must therefore have estates in lands
or tenements, within the county represented: these estates must be freehold, that is, for term of life
at least; because beneficial leases for long terms of years were not in use at the making of these
statutes, and copyholders were then little better than villains, absolutely dependent upon their lord:
this freehold must be of forty shillings annual value; because that sum would then, with proper
industry, furnish all the necessaries of life, and render the freeholder, if he pleased, an independent
man. For bishop Fleetwood, in his chronicon preciosum written about sixty years since, has fully
proved forty shillings in the reign of Henry IV to have been equal to twelve pounds per annum in
the reign of queen Anne; and, as the value of money is every considerably lowered since the bishop
wrote, I think we may fairly conclude, from this and other circumstances, that what was equivalent
to twelve pounds in his days is equivalent to twenty at present. The other less important
qualifications of the electors for counties in England and Wales may be collected from the statutes
cited in the margin;59 which direct, 2. That no person under twenty one years of age shall be capable
of voting for any member. This extends to all sorts of members, as well for boroughs as counties;
as does also the next, viz. 3. That no person convicted of perjury, or subornation of perjury, shall be
capable of voting in any election. 4. That no person shall vote in right of any freehold, granted to
him fraudulently to qualify him to vote. Fraudulent grants are such as contain an agreement to
reconvey, or to defeat the estate granted; which agreements are made void, and the estate is
absolutely vested in the person to whom it is so granted. And, to guard the better against such frauds,
it is farther provided, 5. That every voter shall have been in the actual possession, or receipt of the
profits, of his freehold to his own use for twelve calendar months before; except it came to him by
descent, marriage, marriage settlement, will, or promotion to a benefice or office. 6. That no person
shall vote in respect of an annuity or rentcharge, unless registered with the clerk of the peace twelve
calendar months before. 7. That in mortgaged or trust-estates, the person in possession, under the
abovementioned restrictions, shall have the vote. 8. That only one person shall be admitted to vote
for any one house or tenement, to prevent the splitting of freeholds. 9. That no estate shall qualify
a voter, unless the estate has been assessed to some land tax aid, at least twelve months before the
election. 10. That no tenant by copy of court roll shall be permitted to vote as a freeholder. Thus

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much for the electors in countries.

AS for the electors of citizens and burgesses, these are supposed to be that mercantile part or trading
interest of this kingdom. But as trade is of a fluctuating nature, and seldom long fixed in a place, it
was formerly left to the crown to summon, pro re nata [for the occasion], the most flourishing towns
to send representatives to parliament. So that as towns increased in trade, and grew populous, they
were admitted to a share in the legislature. But the misfortune is, that the deserted boroughs
continued to be summoned, as well as those to whom their trade and inhabitants were transferred;
except a few which petitioned to be eased of the expense, then usual, of maintaining their members:
four shillings a day being allowed for a knight of the shire, and two shillings for a citizen or burgess;
which was the rate of wages established in the reign of Edward III.60 Hence the members for
boroughs now bear above a quadruple proportion to those for counties, and the number of parliament
men is increased since Fortescue's time, in the reign of Henry the sixth, from 300 to upwards of 500,
exclusive of those for Scotland. The universities were in general not empowered to send burgesses
to parliament; though once, in 28 Edw. I. when a parliament was summoned to consider of the king's
right to Scotland, there were issued writs, required the university of Oxford to send up four or five,
and that of Cambridge two or three, of their most discreet and learned lawyers for that purpose.61 But
it was king James the first, who indulged them with the permanent privilege to send constantly two
of their own body; to serve for those students who, though useful members of the community, were
neither concerned in the landed nor the trading interest; and to protect in the legislature the rights
of the republic of letters. The right of election in boroughs is various, depending entirely on the
several charters, customs, and constitutions of the respective places, which has occasioned infinite
disputes; though now by statute 2 Geo. II. c. 24. the right of voting for the future shall be allowed
according to the last determination of the house of commons concerning it. And by statute 3 Geo.
III. c. 15. no freeman of any city or borough (other than such as claim by birth, marriage, or
servitude) shall be entitled to vote therein unless he has been admitted to his freedom twelve
calendar months before.

2. OUR second point is the qualification of persons to be elected members of the house of commons.
This depends upon the law and custom of parliaments,62 and the statutes referred to in the margin.63
And from these it appears, 1. That they must not be aliens born, or minors. 2. That they must not be
any of the twelve judges, because they sit in the lords house; nor of the clergy, for they sit in the
convocation; nor persons attainted of treason or felony, for they are unfit to sit any where.64 3. That
sheriffs of counties, and mayors and bailiffs of boroughs, are not eligible in their respective
jurisdictions, as being returning officers;65 but that sheriffs of one county are eligible to be knights
of another.66 4. That, in strictness, all members ought to be inhabitants of the places for which they
are chosen: but this is entirely disregarded. 5. That no persons concerned in the management of any
duties or taxes created since 1692, except the commissioners of the treasury, nor any of the officers
following, (viz. commissioners of prizes, transports, sick and wounded, wine licenses, navy, and
victualing; secretaries or receivers of prizes; comptrollers of the army accounts; agents for
regiments; governors of plantations and their deputies; officers of Minorca or Gibraltar; officers of
the excise and customs; clerks or deputies in the several offices of the treasury, exchequer, navy,
victualing, admiralty, pay of the army or navy, secretaries of state, salt, stamps, appeals, wine
licenses, hackney coaches, hawkers and peddlers) nor any persons that hold any new office under
the crown created since 1705, are capable of being elected members. 6. That no person having a

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pension under the crown during pleasure, or for any term of years, is capable of being elected. 7.
That if any member accepts an office under the crown, except an officer in the army or navy
accepting a new commission, his seat is void; but such member is capable of being re-elected. 8.
That all knights of the shire shall be actual knights, or such notable esquires and gentlemen, as have
states sufficient to be knights, and by no means of the degree of yeomen. This is reduced to a still
greater certainty, by ordaining, 9. That every knight of a shire shall have a clear estate of freehold
or copyhold to the value of six hundred pounds per annum, and every citizen and burgess to the
value of three hundred pounds; except the eldest sons of peers, and of persons qualified to be knights
of shires, and except the members for the two universities: which somewhat balances the ascendant
which the boroughs have gained over the counties, by obliging the trading interest to make choice
of landed men: and of this qualification the member must make oath, and give in the particulars in
writing, at the time of his taking his seat. But, subject to these restrictions and disqualifications,
every subject of the realm is eligible of common right. It was therefore an unconstitutional
prohibition, which was inserted in the king's writs, for the parliament held at Coventry, 6 Hen. IV,
that no apprentice or other man of the law should be elected a knight of the shire therein:67 in return
for which, our law books and historians68 have branded this parliament with the name of
parliamentum indoctum, or the lack-learning parliament; and Sir Edward Coke observes with some
spleen,69 that there was never a good law made thereat.

3. THE third point regarding elections, is the method of proceeding therein. This is also regulated
by the law of parliament, and the several statutes referred to in the margin;70 all which I shall
endeavor to blend together, and extract out of them a summary account of the method of proceeding
to elections.

AS soon as the parliament is summoned, the lord chancellor, (or if a vacancy happens during
parliament, the speaker, by order of the house) sends his warrant to the clerk of the crown in
chancery; who thereupon issues out writs to the sheriff of every county, for the election of all the
members to serve for that county, and every city and borough therein. Within three days after the
receipt of this writ, the sheriff is to send his precept, under his seal, to the proper returning officers
of the cities and boroughs, commanding them to elect their members; and the said returning officers
are to proceed to election within eight days from the receipt of the precept, giving four days notice
of the same; and to return the persons chosen, together with the precept, to the sheriff.

BUT elections of knights of the shire must be proceeded to by the sheriffs themselves in person, at
the next county court that shall happen after the delivery of the writ. The county is a court held every
month or oftener by the sheriff, intended to try little causes not exceeding the value of forty shillings,
in what part of the county he pleases to appoint for that purpose: but for the election of knights of
the shire, it must be held at the most usual place. If the county court falls upon the day of delivering
the writ, or within six days after, the sheriff may adjourn the court and election to some other
convenient time, not longer than sixteen days, nor shorter than ten; but he cannot alter the place,
without the consent of all the candidates; and in all such cases ten days public notice must be given
of the time and place of the election.

AND as it is essential to the very being of parliament that elections should be absolutely free,
therefore all undue influences upon the electors are illegal, and strongly prohibited. For Mr. Locke71

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William Blackstone: Vol. 1, Commentaries on the Laws of England (1765) Page 105

ranks it among those breaches of trust in the executive magistrate, which according to his notions
amount to a dissolution of the government, “if he employs the force, treasure, and offices of the
society to corrupt the representatives, or openly to preengage the electors, and prescribe what
manner of persons shall be chosen. For thus to regulate candidates and electors, and new model the
ways of election, what is it, says he, but to cut up the government by the roots, and poison the very
fountain of public security?” As soon therefore as the time and place of election, either in counties
or boroughs, are fixed, all soldiers quartered in the place are to remove, at least one day before the
election, to the distance of two miles or more; and not return till one day after the poll is ended.
Riots likewise have been frequently determined to make an election void. By vote also of the house
of commons, to whom alone belongs the power of determining contested elections, no lord of
parliament, or lord lieutenant of a county, has any right to interfere in the election of commoners;
and, by statute, the lord warden of the cinque ports shall not recommend any members there. If any
officer of the excise, customs, stamps, or certain other branches of the revenue, presumes to
intermeddle in elections, by persuading any voter or dissuading him, he forfeits 100£, and is disabled
to hold any office.

THUS are the electors of one branch of the legislature secured from any undue influence from either
of the other two, and from all external violence and compulsion. But the greatest danger is that in
which themselves co-operate, by the infamous practice of bribery and corruption. To prevent which
it is enacted that no candidate shall, after the date (usually called the teste [witness]) of the writs,
or after the vacancy, give any money or entertainment to his electors, or promise to give any, either
to particular persons, or to the place in general, in order to his being elected; on pain of being
incapable to serve for that place in parliament. And if any money, gift, office, employment, or
reward be given or promised to be given to any voter, at any time, in order to influence him to give
or withhold his vote, both he that takes and he that offers such bribe forfeits 500 l, and is for ever
disabled from voting and holding any office in any corporation; unless, before conviction, he will
discover some-other offender of the same kind, and then he is indemnified for his own offense.72 The
first instance that occurs of election bribery, was so early as 13 Eliz. when one Thomas Longe (
being a simple man and of small capacity to serve in parliament) acknowledged that he had given
the returning officer and other of the borough of Westbury four pounds to be returned member, and
was for that premium elected. But for this offense the borough was amerced, the member was
removed, and the officer fined and imprisoned.73 But, as this practice has since taken much deeper
and more universal root, it has occasioned the making of these wholesome statutes; to complete the
efficacy of which, there is nothing wanting but resolution and integrity to put them in strict
execution.

UNDUE influence being thus (I wish the depravity of mankind would permit me to say, effectually)
guarded against, the election is to be proceeded to on the day appointed; the sheriff or other
returning officer first taking an oath against bribery, and for the due execution of his office. The
candidates likewise, if required, must swear to their qualification; and the electors in counties to
theirs; and the electors both in counties and boroughs are also compellable to take the oath of
abjuration and that against bribery and corruption. And it might not be amiss, if the members elected
were bound to take the latter oath, as well as the former; which in all probability would be much
more effectual, than administering it only to the electors.

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William Blackstone: Vol. 1, Commentaries on the Laws of England (1765) Page 106

THE election being closed, the returning officer in boroughs returns his precept to the sheriff, with
the persons elected by the majority: and the sheriff returns the whole, together with the writ for the
county and the knights elected thereupon, to the clerk of the crown in chancery; before the day of
meeting, if it be a new parliament, or within fourteen days after the election, if it be an occasional
vacancy; and this under penalty of 500£ If the sheriff does not return such knights only as are duly
elected, he forfeits, by the old statutes of Henry VI, 100£; and the returning officer in borough for
a like false return 40 l; and they are besides liable to an action, in which double damages shall be
recovered, by the later statutes of king William: and any person bribing the returning officer shall
also forfeit 300£ But the members returned by him are the sitting members, until the house of
commons, upon petition, shall adjudge the return to be false and illegal. And this abstract of the
proceedings at elections of knights, citizens, and burgesses, concludes our inquiries into the laws
and customs more peculiarly relative to the house of commons.

VI. I PROCEED now, sixthly, to the method of making laws; which is much the same in both
houses: and I shall touch it very briefly, beginning in the house of commons. But first I must
premise, that for dispatch of business each house of parliament has its speaker. The speaker of the
house of lords is the lord chancellor, or keeper of the king's great seal, or any other appointed by the
king's commission: and, if none be so appointed, the house of lords (it is said) may elect; whose
office it is to preside there, and manage the formality of business. The speaker of the house of
commons is chosen by the house; but must be approved by the king. And herein the usage of the two
houses differs, that the speaker of the house of commons cannot give his opinion or argue any
question in the house; but the speaker of the house of lords may. In each house the act of the
majority binds the whole; and this majority is declared by votes openly and publicly given: not as
at Venice, and many other senatorial assemblies, privately or by ballot. This latter method may be
serviceable, to prevent intrigues and unconstitutional combinations: but is impossible to be practiced
with us; at least in the house of commons, where every member's conduct is subject to the future
censure of his constituents, and therefore should be openly submitted to their inspection.

TO bring a bill into the house, if the relief sought by it is of a private nature, it is first necessary to
prefer a petition; which must be presented by member, and usually sets forth the grievance desired
to be remedied. This petition (when founded on facts that may be in their nature disputed) is referred
to a committee of members, who examine the matter alleged, and accordingly report it to the house;
and then (or, otherwise, upon the mere petition) leave is given to bring in the bill. In public matters
the bill is brought in upon motion made to the house, without any petition at all. formerly, all bills
were drawn in the form of petitions, which were entered upon the parliament rolls, with the king's
answer thereunto subjoined; not in any settled form of words, but as the circumstances of the case
required:74 and at the end of each parliament the judges drew them into the form of a statute, which
was entered on the statute-rolls. In the reign of Henry V, to prevent mistakes and abuses, the statutes
were drawn up by the judges before the end of the parliament; and, in the reign of Henry VI, bills
in the form of acts, according to the modern custom, were first introduced.

THE persons, directed to bring in the bill, present it in a competent time to the house, drawn out on
paper, with a multitude of blanks, or void spaces, where anything occurs that is dubious, or
necessary to be settled by the parliament itself; (such, especially, as the precise date of times, the
nature and quantity of penalties, or of any sums of money to be raised) being indeed only the

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William Blackstone: Vol. 1, Commentaries on the Laws of England (1765) Page 107

skeleton of the bill. In the house of lords, if the bill begins there, it is (when of a private nature)
perused by two of the judges, who settle all points of legal propriety. This is read a first time, and
at a convenient distance a second time; and after each reading the speaker opens to the house the
substance of the bill, and puts the question, whether it shall proceed any farther. The introduction
of the bill may be originally opposed, as the bill itself may at either of the readings; and, if the
opposition succeeds, the bill must be dropped for that sessions; as it must also, if opposed with
success in any of the subsequent stages.

AFTER the second reading it is committed, that is, referred to a committee; which is either selected
by the house in matters of final importance, or else, upon a bill of consequence, the house resolves
itself into a committee of the whole house. A committee of the whole house is composed of every
member; and, to form it, the speaker quits the chair, (another member being appointed chairman)
and may sit and debate as a private member. In these committees the bill is debated clause by clause,
amendments made, the blanks filled up, the sometimes the bill entirely new modeled. After it has
gone through the committee, the chairman reports it to be house with such amendments as the
committee have made; and then the house reconsider the whole bill again, and the question is
repeatedly put upon every clause and amendment. When the house have agreed or disagreed to the
amendments of the committee, and sometimes added new amendments of their own, the bill is then
ordered to be engrossed, or written in a strong gross hand, on one or more long rolls of parchment
sewed together. When this is finished, it is read a third time, and amendments are sometimes then
made to it; and, if a new clause be added, it is done by tacking a separate piece of parchment on the
bill, which is called a rider. The speaker then again opens the contents; and, holding it up in his
hands, pus the question, whether the bill shall pass. If this is agreed to, the title to it is then settled;
which used to be a general one for all the acts passed in the session, till in the fifth year of Henry
VIII distinct titles were introduced for each chapter.75 After this, one of the members is directed to
carry it to the lords, and desire their concurrence; who, attended by several more, carries it to the bar
of the house of peers, and there delivers it to their speaker, who comes down from his woolsack to
receive it.

IT there passes through the same forms as in the other house, (except engrossing, which is already
done) and, if rejected, no more notice is taken, but it passes sub silentio [in silence], to prevent
unbecoming altercations. But if it is agreed to, the lords send a message by two masters in chancery
(or sometimes two of the judges) that they have agreed to the same: and the bill remains with the
lords, if they have made no amendment to it. But if any amendments are made, such amendments
are sent down with the bill to receive the concurrence of the commons. If the commons disagree to
the amendments, a conference usually follows between members deputed from each house; who for
the most part settle and adjust the difference: but, if both houses remain inflexible, the bill is
dropped. If the commons agree to the amendments, the bill is sent back of the lords by one of the
members, with a message to acquaint them therewith. The same forms are observed, mutates
mutandis, when the bill begins in the house of lords. But, when an act of grace or pardon is passed,
it is first signed by his majesty, and then read once only in each of the houses, without any new
engrossing or amendment.76 And when both houses have done with the bill, it always is deposited
in the house of peers, to wait the royal assent.77

THIS may be given two ways: 1. In person; when the king comes to the house of peers, in his crown

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William Blackstone: Vol. 1, Commentaries on the Laws of England (1765) Page 108

and royal robes, and sending for the commons to the bar, the titles of all bills that have passed both
houses are read; and the king's answer is declared by the clerk of the parliament in Norman-French:
a badge, it must be owned, (now the only one remaining) of conquest; and which one could wish to
see fall into total oblivion; unless it be reserved as a solemn memento to remind us that our liberties
are mortal, having once been destroyed by a foreign force. If the king consents to a public bill, the
clerk usually declares, “le roy le veut, the king wills it so to be;” if to a private bill. “soit fait come
il est desirè, be it as it is desired.” If the king refuses his assent, it is in the gentle language of “le roy
s'avisera, the king will advise upon it.” When a money bill is passed, it is carried up and presented
to the king by the speaker of the house of commons;78 and the royal assent is thus expressed, “le roy
remercie ses loyal subjects, accepte lour benevolence, et aussi le vent, the king thanks his loyal
subjects, accepts their benevolence, and wills it so to be.” In case of an act of grace, which originally
proceeds from the crown and has the royal assent in the first stage of it, the clerk of the parliament
thus pronounces the gratitude of the subject; “les prelates, seigneurs, et commons, en ce present
parliament assemblies, au nom de touts vous autres subjects, remercient tres humblement votre
majeste, et prient a Diex vous donner en sante bone vie et longue; the prelates, lords, and commons,
in this present parliament assembled, in the name of all your other subjects, most humbly thank your
majesty, and pray to God to grant you in health and wealth long to live.”79 2. By statute 33 Hen.
VIII. c. 21 the king may give his assent by letters patent under his great seal, signed with his hand,
and notified, in his absence, to both houses assembled together in the high house. And, when the bill
has received the royal assent in either of these ways, it is then, and not before, a statute or act of
parliament.

THIS statute or act is placed among the records of the kingdom; there needing no formal
promulgation to give it the force of a law, as was necessary by the civil law with regard to the
emperors edicts: because every man in England is, in judgment of law, party to the making of an act
of parliament, being present thereat by his representatives. However, a copy thereof is usually
printed at the king's press, for the information of the whole land. And formerly, before the invention
of printing, it was used to be published by the sheriff of every county; the king's writ being sent to
him at the end of every session, together with a transcript of all the acts made at that session,
commanding him “ut statuta illa, et omnes articulos in eisdem contentos, in singulis locis ubi
expedire viderit, publice proclamari, et firmiter teneri et observari faciat.” [“That he cause those
statutes, and all articles therein contained, to be publicly proclaimed and strictly observed and kept
in every place where it shall seem expedient.”] And the usage was to proclaim them at his county
court, and there to keep them, that whoever would might read or take copies thereof; which custom
continued till the reign of Henry the seventh.80

AN act of parliament, thus made, is the exercise of the highest authority that this kingdom
acknowledges upon earth. It has power to bind every subject in the land, and the dominions
thereunto belonging; nay, even the king himself, if particularly named therein. And it cannot be
altered, amended, dispensed with, suspended, or repealed, but in the same forms and by the same
authority of parliament: for it is a maxim in law, that it requires the same strength to dissolved, as
to create an obligation. It is true it was formerly held, that the king might in many cases dispense
with penal statutes:81 but now by statute 1 W. & M. St. 2. c. 2. it is declared, that the suspending or
dispensing with laws by regal authority, without consent of parliament, is illegal.

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William Blackstone: Vol. 1, Commentaries on the Laws of England (1765) Page 109

VII. THERE remains only, in the seventh and last place, to add a word or two concerning the
manner in which parliaments may be adjourned, prorogued, or dissolved.

AN adjournment is no more than a continuance of the session from one day to another, as the word
itself signifies: and this is done by the authority of each house separately every day; and sometimes
for a fortnight or a month together, as at Christmas or Easter, or upon other particular occasions. But
the adjournment of one house is no adjournment of the other.82 It has also been usual, when his
majesty has signified his pleasure that both or either of the houses should adjourn themselves to a
certain day, to obey the king's pleasure so signified, and to adjourn accordingly.83 Otherwise, besides
the indecorum of a refusal, a prorogation would assuredly follow; which would often be very
inconvenient to both public and private business. For prorogation puts an end to the session; and
then such bills, as are only begun and not perfected, must be resumed de novo (if at all) in a
subsequent session: whereas, after an adjournment, all things continue in the same state as at the
time of the adjournment made, and may be proceeded on without any fresh commencement.

A PROROGATION is the continuance of the parliament from one session to another, as an

adjournment is a continuation of the session from day to day. This is done by the royal authority,
expressed either by the lord chancellor in his majesty's presence, or by commission from the crown,
or frequently by proclamation. Both houses are necessarily prorogued at the same time; it not being
a prorogation of the house of lords, or commons, but of the parliament. The session is never
understood to be at an end, until a prorogation: though, unless some act be passed or some judgment
given in parliament, it is in truth no session at all. And formerly the usage was, for the king to give
the royal assent to all such bills as he approved, at the end of every session, and then to prorogue the
parliament;84 though sometimes only for a day or two:85 after which all business then depending in
the houses was to be begun again. Which custom obtained so strongly, that it once became a
question,86 whether giving the royal assent to a single bill did not of course put an end to the session.
And, though it was then resolved in the negative, yet the notion was so deeply rooted, that the statute
1 Car. I. c. 7. was passed to declare, that the king's assent to that and some other acts should not put
an end to the session; and even so late as the restoration of Charles II, we find a proviso tacked to
the first bill then enacted,87 that his majesty's assent thereto should not determine the session of
parliament. But it now seems to be allowed, that a prorogation must be expressly made, in order to
determine the session. And, if at the time of an actual rebellion, or imminent danger of invasion, the
parliament shall be separated by adjournment or prorogation, the king is empowered88 to call them
together by proclamation, with fourteen days notice of the time appointed for their reassembling.

A DISSOLUTION is the civil death of the parliament; and this may be effected three ways: 1. By
the king's will, expressed either in person or by representation. For, as the king has the sole right of
convening the parliament, so also it is a branch of the royal prerogative, that he may (whenever he
pleases) prorogue the parliament for a time, or put a final period to its existence. If nothing had a
right to prorogue or dissolve a parliament but itself, it might happen to become perpetual. And this
would be extremely dangerous, if at any time it should attempt to encroach upon the executive
power: as was fatally experienced by the unfortunate king Charles the first; who, having unadvisedly
passed an act to continue the parliament then in being till such time as it should please to dissolved
itself, at last fell a sacrifice to that inordinate power, which he himself had consented to give them.
It is therefore extremely necessary that the crown should be empowered to regulate the duration of

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William Blackstone: Vol. 1, Commentaries on the Laws of England (1765) Page 110

these assemblies, under the limitations which the English constitution has prescribed: so that, on the
one hand, they may frequently and regularly come together, for the dispatch of business and redress
of grievances; and may not, on the other, even with the consent of the crown, be continued to an
inconvenient or unconstitutional length.

2. A PARLIAMENT may be dissolved by the demise of the crown. This dissolution formerly
happened immediately upon the death of the reigning sovereign, for the being considered in law as
the head of the parliament, (caput, principium, et finis [the head, beginning, and end]) that failing,
the whole body was held to be extinct. But, the calling a new parliament immediately on the
inauguration of the successor being found inconvenient, and dangers being apprehended from having
no parliament in being in case of a disputed succession, it was enacted by the statutes 7 & 8 W. III.
c. 15, and 6 Ann. c. 7. that the parliament in being shall continue for six months after the death of
any king or queen, unless sooner prorogued or dissolved by the successor: that, if the parliament be,
at the time of the king's death, separated by adjournment or prorogation, it shall notwithstanding
assemble immediately: and that, if no parliament is then in being, the members of the last parliament
shall assemble, and be again a parliament.

3. LASTLY, a parliament may be dissolved or expire by length of time. For if either the legislative
body were perpetual; or might last for the life of the prince who convened them, as formerly; and
were so to be supplied, by occasionally filling the vacancies with new representatives; in these cases,
if it were once corrupted, the evil would be past all remedy: but when different bodies succeed each
other, if the people see cause to disapprove of the present, they may rectify its faults in the next. A
legislative assembly also, which is sure to be separated again, (whereby its members will themselves
become private men, and subject to the full extent of the laws which they have enacted for others)
will think themselves bound, in interest as well as duty, to make only such laws as are good. The
utmost extent of time that the same parliament was allowed to sit, by the statute 6 W. & M. c. 2. was
three years; after the expiration of which, reckoning from the return of the first summons, the
parliament was to have no longer continuance. But by the statute 1 Geo. I. St. 2. c. 38. (in order,
professedly, to prevent the great and continued expenses of frequent elections, and the violent heats
and animosities consequent thereupon, and for the peace and security of the government then just
recovering from the late rebellion) this term was prolonged to seven years; and, what alone is an
instance of the vast authority of parliament, the very same house, that was chosen for three years,
enacted its own continuance for seven. So that, as our constitution now stands, the parliament must
expire, or die a natural death, at the end of every seventh year; if not sooner dissolved by the royal
prerogative.

NOTES

1. Mod. Un. hist. xxiii. 307; The first mention of it in our statute law is in the preamble to the statute of Westm. 1. 3. Edw.
I. A. D. 1272.
2. De minoribus rebus principes consultant, de majoribus omnes. [Princes consult in small matters, in greater matters the
whole nation.] Tac, de mor, Germ. c. 11.
3. These were assembled for the last time, A. D. 1561. See Whitelocke of Parl. c. 72.
4. Glanvil. L. 13. c. 32. l. 9. c. 10. – Pref. 9 Rep. – 2 Inst. 526.

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William Blackstone: Vol. 1, Commentaries on the Laws of England (1765) Page 111

5. l. 2. c. 2.
6. c. 1. §. 3.
7. Quanta esse debeat per nullam assissam generalem determinatum est, sed pro consuetudire su galorum comitatuum
debetum. [It had never yet been ascertained by the general assize, or assembly, but was left to the custom of particular
counties.] L. 9. c. 10.
8. Year book, 21 Edw. III. 60.
9. By motives somewhat similar to these the republic of Venice was actuated, when towards the end of the seventh century
it abolished the tribunes of the people, who were annually chosen by the several districts of the Venetian territory, and
constituted a doge in their stead; in whom the executive power of the state at present resides. For which their historians have
assigned these, as the principal reasons. 1. The propriety of having the executive power a part of the legislative, or senate;
to which the former annual magistrates were not admitted. 2. The necessity of having a single person to convoke the great
council when separated. Mod. Un. hist. xxvii. 15.
10. Stat, 12 Car. II. C. 1.
11. 1 Sid. 1. See Stat. 13 Car. II. c. 7.
12. 4 Edw. III. c. 14. and 36 Edw. III. c. 10.
13. This is same period, that is allowed in Sweden for intermitting their general diets, or parliamentary assemblies. Mod.
Un. hist. xxxiii. 15.
14. 4 Inst. 1.
15. 4 Inst. 6.
16. Sulla .. tribunis plebis sua lege injuriae faciendae potestatem ademit, auxilii ferendi reliquit. [Sylla, by his law, deprived
the tribunes of the people of the power of doing injury, but left them that of protection.] de LL. 3. 9.
17. Seld. tit. hon. 2. 5. 27.
18. Co. Litt. 97.
19. Gilb. hist. Exch 55. Spelm. W. I. 291.
20. Glanv. 7. 1. Co. Litt. 97. Seld. tit. hon. 2. 5. 19.
21. Whitelocke on Par. c. 72. Warburt. Alliance. b. 2. c. 3.
22. Dyer. 60.
23. Baronage. p. 1. c. 6. The act of uniformity, 1 Eliz. c. 2. was passed with the dissent of all the bishops; (Gibs. Cod. 268.)
and therefore the style of lords spiritual is omitted throughout the whole.
24. 2 Inst. 585, 6, 7. See Keilw. 184; where it is held by the judges, 7 Hen. VIII, that the king may hold a parliament without
any spiritual lords. This was also exemplified in fact in the two first parliaments of Charles II; wherein no bishops were
summoned, till after the repeal of the stat. 16 Car. I. c. 27. by stat. 13 Car. II. St. 1. c. 2.
25. 4 Inst. 25.
26. Staunford. P. C. 153.
27. Mod. Un. hist. xxxiii. 18.
28. 4 Inst. 14.
29. 4 Jan. 1648.
30. 4 Inst. 36.

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William Blackstone: Vol. 1, Commentaries on the Laws of England (1765) Page 112

31. of parliaments. 49.

32. Sp. L. 11. 6.
33. on Gov. p. 2. §. 149, 227.
34. 4 Inst. 47.
35. 1 Inst. 11.
36. 4 Inst. 50.
37. Seld. Baronage. part. 1. c. 4.
38. cap. 3.
39. Stiernh. de jure Goth. l. 3. c. 3.
40. 2 Lev. 72.
41. Dyer. 59. 4. Pryn. Brev. Parl. 757.
42. Latch. 48. Noy. 83.
43. Stra. 989.
44. Com. Journ. 17 Aug. 1641.
45. 4 Inst. 25. Com. Journ. 20. May. 1675.
46. Mich. 16 Edw. IV. In Soacob. )))- Lord Raym. 146.
47. Com. Journ. 16 May. 1726.
48. Com. Journ. 24 Nov. Lord's Journ. 29 Nov. 1763.
49. Lords Protest. Ibid.
50. Com, Jour. 20 Apr. 1762.
51. particularly 17 Geo. II. c. 6.
52. cap. 11.
53. Stat. 3. Hen. VIII. c. 10. Smith's common w. b. 2. c. 3. Moor. 551. 4 Inst. 4. Hale of parl. 140.
54. Seld. baronage. p. 1. c. 1.
55. 4 Inst. 12.
56. 4 Inst. 29.
57. on parliaments, 65, 66.
58. Year book, 33 Hen. VI. 17. See the answer to this case by Sir Heneage Finch, Com. Journ. 22 Apr. 1671.
59. 7 & 8 W. III. c. 25. 10 Ann. c. 23. 2 Geo. II. c. 21. 18 Geo. II. c. 18. 31 Geo. II. c. 14. 3 Geo. III. c. 24.
60. 4 Inst. 16.
61. Prynne parl. writs. I. 345.
62. 4 Inst. 47.
63. 1. Hen. V. c. 1. 23 Hen. IV. c. 15. 1 W. & M. St. 2. c. 2. 5 & 6 W. & M. c. 7. 11 & 12 W. III. c. 2. 12 & 13 W. III. c.
10. 6 Ann c. 7. 7. 9 Ann. c. 5. 1 Geo. I. c. 56. 15 Geo. II. c. 22. 33. Geo. II. c. 20.

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William Blackstone: Vol. 1, Commentaries on the Laws of England (1765) Page 113

64. 4 Inst. 47.

65. Hale of parl. 114.
66. 4 Inst. 48.
67. Pryn. on 4 Inst. 13.
68. Walfingh. A. D. 1405.
69. 4 Inst. 48.
70. 7 Hen. IV. c. 15. 8 Hen. VI. c. 7. 13 W. III. c. 10. 6 Ann. c. 23. 9 Ann. 23 Hen. VI. c. 15. 1 W. & M. St. 1. c. 2. c. 5. 10
Ann. c. 19. and c. 23. 2. Geo. II. 2 W. & M. St. 1. c. 7. 5 & 6 W. & M. c. 24. 8 Geo. II. c. 30. 18 Geo. II. c. 18. c. 20. 7 W.
III. c. 4. 7 & 8 W. III. c. 7. 19 Geo. II. c. 28. and c. 25. 10 & 11 W. III. c. 7. 12 &
71. on Gov. part 2. §. 222.
72. In like manner the Julian law de ambitu inflicts fines and infamy upon all who were guilty of corruption at elections;
but, if the person guilty convicted another offender, he was restored to his credit again. Ff. 48. 14. 1.
73. 4 Inst. 23. Hale of parl. 112. Com. Journ. 10 & 11 may 1571.
74. See, among numberless other instances, the articuli cleri, 9 Edw. II.
75. Lord Bacon on uses. 80. 326.
76. D'ewes journ. 20. 73. Com. journ. 17 June. 1747.
77. Com. journ. 24 Jul. 1660.
78. Rot. Parl. 9 Hen. IV. in Pryn. 4 Inst. 30, 31.
79. D'ewes journ. 35.
80. 3 Inst. 41. 4 Inst. 26.
81. Finch L. 81. 234.
82. 4 Inst. 28.
83. Com. Journ. passim: e. g. 11 11 Jun. 1572. 5 Par. 1604. 4. Jun. 14 Nov. 18 Dec. 1621. 11 Jul. 1625. 13 Sept. 1660. 25
Jul. 1667. 4 Aug. 1685. 24 Febr. 1691. 21 Jun. 1712. 16 Apr. 1717. 3 . 1741. 10 Dec. 1745.
84. 4 Inst. 28. Hale of parl. 38.
85. Com. Journ. 21 Oct. 1553.
86. Ibid. 21 Nov. 1554.
87. Stat. 12 Car. II. c. 1.
88. Stat. 30 Geo. II. c. 25.

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William Blackstone: Vol. 1, Commentaries on the Laws of England (1765) Page 114

CHAPTER 3
Of The King, and His Title

THE supreme executive power of these kingdoms is vested by our laws in a single person, the king
or queen: for it matters not to which sex the crown defends; but the person entitled to it, whether
male or female, is immediately invested with all the ensigns, rights, and prerogatives of sovereign
power; as is declared by statute 1 Mar. St. 3. c. 1.

IN discoursing of the royal rights and authority, I shall consider the king under six distinct views:
1. With regard to his title. 2. His royal family. 3. His councils. 4. His duties, 5. His prerogative. 6.
His revenue. And, first, with regard to his title.

THE executive power of the English nation being vested in a single person, by the general consent
of the people, the evidence of which general consent is long and immemorial usage, it became
necessary to the freedom and peace of the state, that a rule should be laid down, uniform, universal,
and permanent; in order to mark out with precision, who is that single person, to whom are
committed (in subservience to the law of the land) the care and protection of the community; and
to whom, in return, the duty and allegiance of every individual are due. It is of the highest
importance to the public tranquility, and to the consciences of private men, that this rule should be
clear and indisputable: and our constitution has not left us in the dark upon this material occasion.
It will therefore be the endeavor of this chapter to trace out the constitutional doctrine of the royal
succession, with that freedom and regard to truth, yet mixed with that reverence and respect, which
the principles of liberty and the dignity of the subject require.

THE grand fundamental maxim upon which the jus coronae, or right of succession to the throne of
these kingdoms, depends, I take to be this: “that the crown is, by common law and constitutional
custom, hereditary; and this in a manner peculiar to itself: but that the right of inheritance may from
time to time be changed or limited by act of parliament; under which limitations the crown still
continues hereditary.” And this proposition it will be the business of this chapter to prove, in all its
branches: first, that the crown is hereditary; secondly, that it is hereditary in a manner peculiar to
itself; thirdly, that this inheritance is subject to limitation by parliament; lastly, that when it is so
limited, it is hereditary in the new proprietor.

1. FIRST, it is in general hereditary, or descendible to the next heir, on the death or demise of the
last proprietor. All regal governments must be either hereditary or elective: and, as I believe there
is no instance wherein the crown of England has ever been asserted to be elective, except by the
regicides at the infamous and unparalleled trial of king Charles I, it must of consequence be
hereditary. Yet while I assert an hereditary, I by no means intend a jure divino [divine right], title
to the throne. Such a title may be allowed to have subsisted under the theocratic establishments of
the children of Israel in Palestine: but is never yet subsisted in any other country; save only so far
as kingdoms, like other human fabrics, are subject to the general and ordinary dispensations of
providence. Nor indeed have a jure divino and an hereditary right any necessary connection with
each other; as some have very weakly imagined. The titles of David and Jehu were equally jure
divino, as those of either Solomon or Ahab; and yet David slew the sons of his predecessor, and Jehu
his predecessor himself. And when our kings have the same warrant as they had, whether it be to

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William Blackstone: Vol. 1, Commentaries on the Laws of England (1765) Page 115

sit upon the throne of their fathers, or to destroy the house of the preceding sovereign, they will then,
and not before, possess the crown of England by a right like theirs, immediately derived from
heaven. The hereditary right, which the laws of England acknowledge, owes its origin to the
founders of our constitution, and to them only. It has no relation to, nor depends upon, the civil laws
of the Jews, the Greeks, the Romans, or any other nation upon earth: the municipal laws of one
society having no connection with, or influence upon, the fundamental polity of another. The
founders of our English monarchy might perhaps, if they had though proper, have made it an elective
monarchy but they rather chose, and upon good reason, to establish originally a succession by
inheritance. This has been acquiesced in by general consent; and ripened by degrees into common
law: the very same title that every private man has to his own estate. Lands are not naturally
descendible any more than thrones: but the law has thought proper, for the benefit and peace of the
public, to establish hereditary succession in one as well as the other.

IT must be owned, an elective monarchy seems to be the most obvious, and best suited of any to the
rational principles of government, and the freedom of human nature: and accordingly we find from
history that, in the infancy and first rudiments of almost every state, the leader, chief magistrate, or
prince, has usually been elective. And, if the individuals who compose that state could always
continue true to first principles, uninfluenced by passion or prejudice, unassailed by corruption, and
unawed by violence, elective succession were as much to be desired in a kingdom, as in other
inferior communities. The best, the wisest, and the bravest man would then be sure of receiving that
crown, which his endowments have merited; and the sense of an unbiased majority would be
dutifully acquiesced in by the few who were of different opinions. But history and observation will
inform us, that elections of every kind (in the present state of human nature) are too frequently
brought about by influence, partiality, and artifice: and, even where the case is otherwise, these
practices will be often suspected, and as constantly charged upon the successful, by a splenetic
disappointed minority. This is an evil, to which all societies are liable; as well those of a private and
domestic kind, as the great community of the public, which regulates and includes the rest. But in
the former there is this advantage; that such suspicions, if false, proceed no farther than jealousies
and murmurs, which time will effectually suppress; and, if true, the injustice may be remedied by
legal means, by an appeal to those tribunals to which every member of society has (by becoming
such) virtually engaged to submit. Whereas, in the great and independent society, which every nation
composes, there is no superior to resort to but the law of nature; no method to redress the
infringements of that law, but the actual exertion of private force. As therefore between two nations,
complaining of mutual injuries, the quarrel can only be decided by the law of arms; so in one and
the same nation, when the fundamental principles of their common union are supposed to be
invaded, and more especially when the appointment of their chief magistrate is alleged to be unduly
made, the only tribunal to which the complainants can appeal is that of the God of battles, the only
process by which the appeal can be carried on is that of a civil and intestine war. An hereditary
succession to the crown is therefore now established, in this and most other countries, in order to
prevent that periodical bloodshed and misery, which the history of ancient imperial Rome, and the
more modern experience of Poland and Germany, may show us are the consequences of elective
kingdoms.

2. BUT, secondly, as to the particular mode of inheritance, it in general corresponds with the feudal
path of descents, chalked out by the common law in the succession to landed estates; yet with one

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or two material exceptions. Like them, the crown will descend lineally to the issue of the reigning
monarch; as it did from king John to Richard II, through a regular pedigree of six lineal descents.
As in them, the preference of males to females, and the right of primogeniture among the males, are
strictly adhered to. Thus Edward V succeeded to the crown, in preference to Richard his younger
brother and Elizabeth his elder sister. Like them, on failure of the male line, it descends to the issue
female; according to the ancient British custom remarked by Tacitus,1 “solent foeminarum ductu
bellare, et sexum in imperiis non discernere.” [“They are accustomed to wage war under the conduct
of women, and not to consider sex in the government of their empire.”] Thus Mary I succeeded to
Edward VI; and the line of Margaret queen of Scots, the daughter of Henry VII, succeeded on failure
of the line of Henry VIII, his son. But, among the females, the crown descends by right of
primogeniture to the eldest daughter only and her issue; and not, as in common inheritances, to all
the daughters at once; the evident necessity of a sole succession to the throne having occasioned the
royal law of descents to depart from the common law in this respect: and therefore queen Mary on
the death of her brother succeeded to the crown alone, and not in partnership with her sister
Elizabeth. Again: the doctrine of representation prevails in the descent of the crown, as it does in
other inheritances; whereby the lineal descendants of any person deceased stand in the same place
as their ancestor, if living, would have done. Thus Richard II. succeeded his grandfather Edward III,
in right of his father the black prince; to the exclusion of all his uncles, his grandfather's younger
children. Lastly, on failure of lineal descendants, the crown goes to the next collateral relations of
the late king; provided they are lineally descended from the blood royal, that is, from that royal stock
which originally acquired the crown. Thus Henry I succeeded to William II, John to Richard I, and
James I to Elizabeth; being all derived from the conqueror, who was then the only regal stock. But
herein there is no objection (as in the case of common descents) to the succession of a brother, an
uncle, or other collateral relation, of the half blood; that is, where the relationship proceeds not from
the same couple of ancestors (which constitutes a kinsman of the whole blood) but from a single
ancestor only; as when two persons are derived from the same father, and not from the same mother,
or vice versa: provided only, that the one ancestor, from whom both are descended, be he from
whose veins the blood royal is communicated to each. Thus Mary I inherited to Edward VI, and
Elizabeth inherited to Mary; all born of the same father, king Henry VIII, but all by different mother.
The reason of which diversity, between royal and common descents, will be better understood
hereafter, when we examine the nature of inheritances in general.

3. THE doctrine of hereditary right does by no means imply an indefeasible right to the throne. No
man will, I think, assert this, that has considered our laws, constitution, and history, without
prejudice, and with any degree of attention. It is unquestionably in the breast of the supreme
legislative authority of this kingdom, the king and both houses of parliament, to defeat his hereditary
right; and, by particular entails, limitations, and provisions, to exclude the immediate heir, and vest
the inheritance in any one else. This is strictly consonant to our laws and constitution; as may be
gathered from the expression so frequently used in our statute book, of “the king's majesty, his heirs,
and successors.” In which we may observe, that as the word, “heirs,” necessarily implies an
inheritance or hereditary right, generally subsisting in the royal person; so the word, “successors,”
distinctly taken, must imply that this inheritance may sometimes be broke through; or, that there may
be a successor, without being the heir, of the king. And this is so extremely reasonable, that without
such a power, lodged somewhere, our polity would be very defective. For, let us barely suppose so
melancholy a case, as that the heir apparent should be a lunatic, an idiot, or otherwise incapable of

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William Blackstone: Vol. 1, Commentaries on the Laws of England (1765) Page 117

reigning: how miserable would the condition of the nation be, if he were also incapable of being set
aside! ) It is therefore necessary that this power should be lodged somewhere: and yet the
inheritance, and regal dignity, would be very precarious indeed, if this power were expressly and
avowedly lodged in the hands of the subject only, to be exerted whenever prejudice, caprice, or
discontent should happen to take the lead. Consequently it can no where be so properly lodged as
in the two houses of parliament, by and with the consent of the reigning king; who, it is not to be
supposed, will agree to anything improperly prejudicial to the rights of his own descendants. And
therefore in the king, lords, and commons, in parliament assembled, our laws have expressly lodged
it.

4. BUT, fourthly; however the crown may be limited or transferred, it still retains its descendible
quality, and becomes hereditary in the wearer of it: and hence in our laws the king is said never to
die, in his political capacity; though, in common with other men, he is subject to mortality in his
natural: because immediately upon the natural death of Henry, William, or Edward, the king
survives in his successor; and the right of the crown vests, eo instanti [instantly], upon his heir;
either the haeres natus [natural heir], if the course of descent remains unimpeached, or the haeres
factus [appointed heir], if the inheritance be under any particular settlement. So that there can be no
interregnum [interruption]; but as Sir Matthew Hale2 observes, the right of sovereignty is fully
invested in the successor by the very descent of the crown. And therefore, however acquired, it
becomes in him absolutely hereditary, unless by the rules of the limitation it is otherwise ordered
and determined. In the same manner as landed estates, to continue our former comparison, are by
the law hereditary, or descendible to the heirs of the owner; but still there exists a power, by which
the property of those lands may be transferred to another person. If this transfer be made simply and
absolutely, and lands will be hereditary in the new owner, and descend to his heirs at law: but if the
transfer be clogged with any limitations, conditions, or entails, the lands must descend in that
channel, so limited and prescribed, and no other.

IN these four points consists, as I take it, the constitutional notion of hereditary right to the throne:
which will be still farther elucidated, and made clear beyond all dispute, from a short historical view
of the successions to the crown of England, the doctrines of our ancient lawyers, and the several acts
of parliament that have from time to time been made, to create, to declare, to confirm, to limit, or
to bar, the hereditary title to the throne. And in the pursuit of this inquiry we shall find, that from
the days of Egbert, the first sole monarch of this kingdom, even to the present, the four cardinal
maxims above mentioned have ever been held the constitutional canons of succession. It is true, this
succession, through fraud, or force, or sometimes through necessity, when in hostile times the crown
descended on a minor or the like, has been very frequently suspended; but has always at last returned
back into the old hereditary channel, though sometimes a very considerable period has intervened.
And, even in those instances where the succession has been violated, the crown has ever been looked
upon as hereditary in the wearer of it. Of which the usurpers themselves were so sensible, that they
for the most part endeavored to vamp up some feeble show of a title by descent, in order to amuse
the people, while they gained the possession of the kingdom. And, when possession was once
gained, they considered it as the purchase or acquisition of a new estate of inheritance, and
transmitted or endeavored to transmit it to their own posterity, by a king of hereditary right of
usurpation.

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William Blackstone: Vol. 1, Commentaries on the Laws of England (1765) Page 118

KING Egbert about the year 800, found himself in possession of the throne of the west Saxons, by
a long and undisturbed descent from his ancestors of above three hundred years. How his ancestors
acquired their title, whether by force, by fraud, by contract, or by election, it matters not much to
inquire; and is indeed a point of such high antiquity, as must render all inquiries at best but plausible
guesses. His right must be supposed indisputably good, because we know no better. The other
kingdoms of the heptarchy he acquired, some by consent, but most by a voluntary submission. And
it is an established maxim in civil polity, and the law of nations, that when one country is united to
another in such a manner, as that one keeps its government and states, and the other loses them; the
latter entirely assimilates or is melted down in the former, and must adopt its laws and customs.3
And in pursuance of this maxim there has ever been, since the union of the heptarchy in king Egbert,
a general acquiescence under the hereditary monarchy of the west Saxons, through all the united
kingdoms.

FROM Egbert to the death of Edmund Ironside, a period of above two hundred years, the crown
descended regularly, through a succession of fifteen princes, without any deviation or interruption;
save only that king Edred, the uncle of Edwy, mounted the throne for about nine years, in the right
of his nephew a minor, the times being very troublesome and dangerous. But this was with a view
to preserve, and not to destroy, and succession; and accordingly Edwy succeeded him.

KING Edmund Ironside was obliged, by the hostile irruption of the Danes, at first to divide his
kingdom with Canute, king of Denmark; and Canute, after his death, seized the whole of it,
Edmund's sons being driven into foreign countries. Here the succession was suspended by actual
force, and a new family introduced upon the throne: in whom however this new acquired throne
continued hereditary for three reigns; when, upon the death of Hardiknute, the ancient Saxon line
was restored in the person of Edward the confessor.

HE was not indeed the true heir to the crown, being the younger brother of king Edmund Ironside,
who has a son Edward, surnamed (from his exile) the outlaw, still living. But this son was then in
Hungary; and, the English having just shaken off the Danish yoke, it was necessary that somebody
on the spot should mount the throne; and the confessor was the next of the royal line then in
England. On his decease without issue, Harold II usurped the throne, and almost at the same instant
came on the Norman invasion: the right to the crown being all the time in Edgar, surnamed Atheling,
(which signifies in the Saxon language the first of the blood royal) who was the son of Edward the
outlaw, and grandson of Edmund Ironside; or, as Matthew Paris4 well expresses the sense of our old
constitution, “Edmundus autem latus ferreum, rex naturalis de stirpe regum, genuit Edwardum; et
Edwardus genuit Edgarum, cui de jure debebatur regnum Anglorum.” [“But Edmund Ironside, who
was natural king by descent from the race of kings, begat Edward, and Edward begat Edgar, to
whom of right the kingdom of England belonged.”]

WILLIAM the Norman claimed the crown by virtue of a pretended grant from king Edward the
confessor; a grant which, if real, was in itself utterly invalid: because it was made, as Harold well
observed in his reply to William's demand,5 “absque generali, senatûs et populi, conventu et edicto;”
[“without the general assembly and edict of the senate and people”] which also very plainly implies,
that it then was generally understood that the king, with consent of the general council, might
dispose of the crown and change the line of succession. William's title however was altogether as

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William Blackstone: Vol. 1, Commentaries on the Laws of England (1765) Page 119

good as Harold's, he being a mere private subject, and an utter stranger to the royal blood. Edgar
Atheling's undoubted right was overwhelmed by the violence of the times; though frequently
asserted by the English nobility after the conquest, till such time as he died without issue: but all
their attempts proved unsuccessful, and only served the more firmly to establish the crown in the
family which had newly acquired it.

THIS conquest then by William of Normandy was, like that of Canute before, a forcible transfer of
the crown of England into a new family: but, the crown being so transferred, all the inherent
properties of the crown were with it transferred also. For, the victory obtained at Hastings not being6
a victory over the nation collectively, but only over the person of Harold, the only right that the
conqueror could pretend to acquire thereby, was the right to possess the crown of England, not to
alter the nature of the government. And therefore, as the English laws still remained in force, he
must necessarily take the crown subject to those laws, and with all its inherent properties; the first
and principal of which was its descendibility. Here then we must drop our race of Saxon kings, at
least for a while, and derive our descents from William the conqueror as from a new stock, who
acquired by right of war (such as it is, yet still the dernier resort [last resort] of kings) a strong and
undisputed title to the inheritable crown of England.

ACCORDINGLY it descended from him to his sons William II and Henry I. Robert, it must be
owned, his eldest son, was kept out of possession by the arts and violence of his brethren; who
proceeded upon a notion, which prevailed for some time in the law of descents, that when the eldest
son was already provided for (as Robert was constituted duke of Normandy by his father's will) in
such a case the next brother was entitled to enjoy the rest of their father's inheritance. But, as he died
without issue, Henry at last had a good title to the throne, whatever he might have at first.

STEPHEN of Blois, who succeeded him, was indeed the grandson of the conqueror, by Adelicia his
daughter, and claimed the throne by a feeble kind of hereditary right; not as being the nearest of the
male line, but as the nearest male of the blood royal, excepting his elder brother Theobald, who (as
earl of Blois) was already provided for. The real right was in the empress Matilda or Maud, the
daughter of Henry I; the rule of succession being (where women are admitted at all) that the
daughter of a son shall be preferred to the son of a daughter. So that Stephen was little better than
a mere usurper; and therefore he rather chose to rely on a title by election,7 and the empress Maud
did not fail to assert her right by the sword: which dispute was attended with various success, and
ended at last in a compromise, that Stephen should keep the crown, but that Henry the son of Maud
should succeed him; as he afterwards accordingly did.

HENRY, the second of that name, was the undoubted heir of William the conqueror; but he had also
another connection in blood, which endeared him still farther to English. He was lineally descended
from Edmund Ironside, the last of the Saxon race of hereditary kings. For Edward the outlaw, the
son of Edmund Ironside, had (besides Edgar Atheling, who died without issue) a daughter Margaret,
who was married to Malcolm king of Scotland; and in her the Saxon hereditary right resided. By
Malcolm she had several children, and among the rest Matilda the wife of Henry I, who by him had
the empress Maud, the mother of Henry II. Upon which account the Saxon line is in our histories
frequently said to have been restored in his person: though in reality that right subsisted in the sons
of Malcolm by queen Margaret; king Henry's best title being as heir to the conqueror.

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FROM Henry II the crown descended to his eldest son Richard I, who dying childless, the right
vested in his nephew Arthur, the son of Geoffrey his next brother; but John, the youngest son of king
Henry, seized the throne; claiming, as appears from his charters, the crown by hereditary right:8 that
is to say, he was next of kin to the deceased king, being his surviving brother; whereas Arthur was
removed one degree farther, being his brother's son, though by right of representation he stood in
the place of his father Geoffrey. And however flimsy this title, and those of William Rufus and
Stephen of Blois, may appear at this distance to us, after the law of descents has now been settled
for so many centuries, they were sufficient to puzzle the understandings of our brave, but unlettered,
ancestors. Nor indeed can we wonder at the number of partisans, who espoused the pretensions of
king John in particular; since even in the reign of his father, king Henry II, it was a point
undetermined,9 whether, even in common inheritances, the child of an elder brother should succeed
to the land in right of representation, or the younger surviving brother in right of proximity of blood.
Nor is it to this day decided in the collateral succession to the fiefs of the empire, whether the order
of the stocks, or the proximity of degree shall take place.10 However, on the death of Arthur and his
sister Eleanor without issue, a clear and indisputable title vested in Henry III the son of John: and
from him to Richard the second, a succession of six generations, the crown descended in the true
hereditary line. Under one of which race of princes,11 we find it declared in parliament, “that the law
of the crown of England is, and always has been, that the children of the king of England, whether
born in England, or elsewhere, ought to bear the inheritance after the death of their ancestors. Which
law, our sovereign lord the king, the prelates, earls, and barons, and other great men, together with
all the commons, in parliament assembled, do approve and affirm for ever.”

UPON Richard the second's resignation of the crown, he having no children, the right resulted to the
issue of his grandfather Edward III. That king had many children, besides his eldest, Edward the
black prince of Wales, the father or Richard II: but to avoid confusion I shall only mention three;
William his second son, who died without issue; Lionel duke of Clarence, his third son; and John
of Gant duke of Lancaster, his fourth. By the rules of succession therefore the posterity of Lionel
duke of Clarence were entitled to the throne, upon the resignation of king Richard; and had
accordingly been declared by the king, many years before, the presumptive heirs of the crown;
which declaration was also confirmed in parliament.12 But Henry duke of Lancaster, the son of John
of Gant, having then a large army in the kingdom, the pretense of raising which was to recover his
patrimony from the king, and to redress the grievances of the subject, it was impossible for any other
title to be asserted with any safety; and he became king under the title of Henry IV. But, as Sir
Matthew Hale remarks,13 though the people unjustly assisted Henry IV in his usurpation of the
crown, yet he was not admitted thereto, until he had declared that he claimed, not as a conqueror,
(which he very much inclined to do14) but as a successor, descended by right line of the blood royal;
as appears from the rolls of parliament in those times. And in order to this he set up a show of two
titled: the one upon the pretense of being the first of the blood royal in the entire male line, whereas
the duke of Clarence left only one daughter Philippa; from which female branch, by a marriage with
Edmond Mortimer earl of March, the house of York descended: the other, by reviving an exploded
rumor, first propagated by John of Gant, that Edmond earl of Lancaster (to whom Henry's mother
was heiress) was in reality the elder brother of king Edward I; though his parents, on account of his
personal deformity, had imposed him on the world for the younger: and therefore Henry would be
entitled to the crown, either as successor to Richard II, in case the entire male line was allowed a
preference to the female; or, even prior to that unfortunate prince, if the crown could descend

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William Blackstone: Vol. 1, Commentaries on the Laws of England (1765) Page 121

through a female, while an entire male line was existing.

HOWEVER, as in Edward the third's time we find the parliament approving and affirming the law
of the crown, as before stated, so in the reign of Henry IV they actually exerted their right of
new-settling the succession to the crown. And this was done by the statute 7 Hen. IV. c. 2. whereby
it is enacted, that the inheritance of the crown and realms of England and France, and all other the
king's dominions, shall be set and remain15 in the person of our sovereign lord the king, and in the
heirs of his body issuing;” and prince Henry is declared heir apparent to the crown, to hold to him
and the heirs of his body issuing, with remainder to lord Thomas, lord John, and lord Humphry, the
king's sons, and the heirs of their bodies respectively. Which is indeed nothing more than the law
would have done before, provided Henry the fourth had been a rightful king. It however serves to
show that it was then generally understood, that the king and parliament had a right to new-model
and regulate the succession to the crown. And we may observe, with what caution and delicacy the
parliament then avoided declaring any sentiment of Henry's original title. However Sir Edward Coke
more than once expressly declares,16 that at the time of passing this act the right of the crown was
in the descent from Philippa, daughter and heir of Lionel duke of Clarence.

NEVERTHELESS the crown descended regularly from Henry IV to his son and grandson Henry
V and VI; in the latter of whose reigns the house of York asserted their dormant title; and, after
imbruing the kingdom in blood and confusion for seven years together, at last established it in the
person of Edward IV. At his accession to the throne, after a breach of the succession that continued
for three descents, and above threescore years, the distinction of a king de jure [by right], and a king
de facto [in fact] began to be first taken; in order to indemnify such as had submitted to the late
establishment, and to provide for the peace of the kingdom by confirming all honors conferred, and
all acts done, by those who were now called the usurpers, not tending to the disherison of the rightful
heir. In statute 1 Edw. IV. c. 1. the three Henrys are styled, “late kings of England successively in
dede, and not of ryght.” And, in all the charters which I have met with of king Edward, wherever
he has occasion to speak of any of the line of Lancaster, he calls them “nuper de facto, et non de
jure, reges Angliae” [“late kings of England in fact and not of right”].

EDWARD IV left two sons and a daughter; the eldest of which sons, king Edward V, enjoyed the
regal dignity for a very short time, and was then deposed by Richard his unnatural uncle; who
immediately usurped the royal dignity, having previously insinuated to the populace a suspicion of
bastardy in the children of Edward IV, to make a show of some hereditary title: after which he is
generally believed to have murdered his two nephews; upon whose death the right of the crown
devolved to their sister Elizabeth.

THE tyrannical reign of king Richard III gave occasion to Henry earl of Richmond to assert his title
to the crown. A title the most remote and unaccountable that was ever set up, and which nothing
could have given success to, but the universal detestation of the then usurper Richard. For, besides
that he claimed under a descent from John of Gant, whose title was now exploded, the claim (such
at it was) was through John earl of Somerset, a bastard son, begotten by John of Gant upon
Catherine Swinford. It is true, that, by an act of parliament 20 Ric. II, this son was, with others,
legitimated and made inheritable to all lands, offices, and dignities, as if he had been born in
wedlock: but still, with an express reservation of the crown, “excepta dignitate regali”17 [royal

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dignity excepted].

NOTWITHSTANDING all this, immediately after the battle of Bosworth field, he assumed the regal
dignity; the right of the crown then being, as Sir Edward Coke expressly declares,18 in Elizabeth,
eldest daughter of Edward IV: and his possession was established by parliament, held the first year
of his reign. In the act for which purpose, the parliament seems to have copied the caution of their
predecessors in the reign of Henry IV; and therefore (as lord Bacon the historian of this reign
observes) carefully avoided any recognition of Henry VII's right, which indeed was none at all; and
the king would not have it by way of new law or ordinance, whereby a right might seem to be
created and conferred upon him; and therefore a middle way was rather chosen, by way (as the noble
historian expresses it) of establishment, and that under covert and indifferent words, “that the
inheritance of the crown should rest, remain, and abide in king Henry VII and the heirs of his body:”
thereby providing for the future, and at the same time acknowledging his present possession; but not
determining either way, whether that possession was de jure or de facto merely. However he soon
after married Elizabeth of York, the undoubted heiress of the conqueror, and thereby gained (as Sir
Edward Coke19 declares) by much his best title to the crown. Whereupon the act made in his favor
was so much disregarded, that it never was printed in our statute books.

HENRY the eighth, the issue of this marriage, succeeded to the crown by clear indisputable
hereditary right, and transmitted it to his three children in successive order. But in his reign we at
several times find the parliament busy in regulating the succession to the kingdom. And, first, by
statute 25 Hen. VIII. c. 12. which recites the mischiefs, which have and may ensue by disputed titles,
because no perfect and substantial provision has been made by law concerning the succession; and
then enacts, that the crown shall be entailed to his majesty, and the sons or heirs males of his body;
and in default of such sons to the lady Elizabeth (who is declared to be the king's eldest issue female,
in exclusion of the lady Mary, on account of her supposed illegitimacy by the divorce of her mother
queen Catherine) and to the lady Elizabeth's heirs of her body; and so on from issue female to issue
female, and the heirs of their bodies, by course of inheritance according to their ages, as the crown
of England has been accustomed and ought to go, in case where there be heirs female of the same:
and in default of issue female, then to the king's right heirs for ever. This single statute is an ample
proof of all the four positions we at first set out with.

BUT, upon the king's divorce from Ann Boleyn, this statute was, with regard to the settlement of
the crown, repealed by statute 28 Hen. VIII. c. 7. wherein the lady Elizabeth is also, as well as the
lady Mary, bastardized, and the crown settled on the king's children by queen Jane Seymour, and
his future wives; and, in defect of such children, then with this remarkable remainder, to such
persons as the king by letters patent, or last will and testament, should limit and appoint the same.
A vast power; but, notwithstanding, as it was regularly vested in him by the supreme legislative
authority, it was therefore indisputably valid. But this power was never carried into execution; for
by statute 35 Hen. VIII. c. 1. the king's two daughters are legitimated again, and the crown is limited
to prince Edward by name after that to the lady Mary, and then to the lady Elizabeth, and the heirs
of their respective bodies; which succession took effect accordingly, being indeed no other than the
usual course of the law, with regard to the descent of the crown.

BUT lest there should remain any doubt in the minds of the people, through this jumble of acts for

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limiting the succession, by statute 1 Mar. p. 2. c. 1. queen Mary's hereditary right to the throne is
acknowledged and recognized in these words: “the crown of these realms is most lawfully, justly,
and rightly descended and come to the queen's highness that now is, being the very, true, and
undoubted heir and inheritrix thereof.” And again, upon the queen's marriage with Philip of Spain,
in the statute which settles the preliminaries of that match,20 the hereditary right to the crown is thus
asserted and declared: “as touching the right of the queen's inheritance in the realm and dominions
of England, the children, whether male or female, shall succeed in them, according to the known
laws, statutes, and customs of the same.” Which determination of the parliament, that the succession
shall continue in the usual course, seems tacitly to imply a power of new-modeling and altering it,
in case the legislature had thought proper.

ON queen Elizabeth's accession, her right is recognized in still stronger terms than her sister's; the
parliament acknowledging,21 that the queen's highness is, and in very deed and of most mere right
ought to be, by the laws of God, and the laws and statutes of this realm, our most lawful and rightful
sovereign liege lady and queen; and that her highness is rightly, lineally, and lawfully descended and
come of the blood royal of this realm of England; in and to whose princely person, and to the heirs
of the body lawfully to be begotten, after her, the imperial crown and dignity of this realm does
belong.” And in the same reign, by statute 13 Eliz. c. 1. we find the right of parliament to direct the
succession of the crown asserted in the most explicit words. “If any person shall hold, affirm, or
maintain that the common laws of this realm, not altered by parliament, ought not to direct the right
of the crown of England; or that the queen's majesty, with and by the authority of parliament, is not
able to make laws and statutes of sufficient force and validity, to limit and bind the crown of this
realm, and the descent, limitation, inheritance, and government thereof; ) such person, so holding,
affirming, or maintaining, shall during the life of the queen be guilty of high treason; and after her
decease shall be guilty of a misdemeanor, and forfeit his goods and chattels.”

ON the death of queen Elizabeth, without issue, the line of Henry VIII became extinct. It therefore
became necessary to recur to the other issue of Henry VII, by Elizabeth of York his queen: whose
eldest daughter Margaret having married James IV king of Scotland, king James the sixth of
Scotland, and of England the first, was the lineal descendant from that alliance. So that is his person,
as clearly as in Henry VIII, centered all the claims of different competitors from the conquest
downwards, he being indisputably the lineal heir of the conqueror. And, what is still more
remarkable, in his person also centered the right of the Saxon monarchs, which had been suspended
from the conquest till his accession. For, as was formerly observed, Margaret the sister of Edgar
Atheling, the daughter of Edward the outlaw, and granddaughter of king Edmund Ironside, was the
person in whom the hereditary right of the Saxon kings, supposing it not abolished by the conquest,
resided. She married Malcolm king of Scotland; and Henry II, by a descent from Matilda their
daughter, is generally called the restorer of the Saxon line. But it must be remembered, that Malcolm
by his Saxon queen had sons as well as daughters; and that the royal family of Scotland from that
time downwards were the offspring of Malcolm and Margaret. Of this royal family king James the
first was the direct lineal heir, and therefore united in his person every possible claim by hereditary
right to the English, as well as Scottish throne, being the heir both of Egbert and William the
conqueror.

AND it is no wonder that a prince of more learning that wisdom, who could deduce an hereditary

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title for more than eight hundred years, should easily be taught by the flatterers of the times to
believe there was something divine in this right, and that the finger of providence was visible in its
preservation. Whereas, though a wise institution, it was clearly a human institution; and the right
inherent in him no natural, but a positive right. And in this and no other light was it taken by the
English parliament; who by statute 1 Jac. I. c. 1. did “recognize and acknowledge, that immediately
upon the dissolution and decease of Elizabeth late queen of England, the imperial crown thereof did
by inherent birthright, and lawful and undoubted succession, descend and come to his most excellent
majesty, as being lineally, justly, and lawfully, next and sole heir of the blood royal of this realm.”
Not a word here of any right immediately derived from heaven: which, if it existed any where, must
be sought for among the aborigines of the island, the ancient Britons; among whose princes indeed
some have gone to search it for him.22

BUT, wild and absurd as the doctrine of divine right most undoubtedly is, it is still more astonishing,
that when so many human hereditary rights had centered in this king, his son and heir king Charles
the first should be told by those infamous judges, who pronounced his unparalleled sentence, that
he was an elective prince; elected by his people, and therefore accountable to them, in his own
proper person, for his conduct. The confusion, instability, and madness, which followed the fatal
catastrophe of that pious and unfortunate prince, will be a standing argument in favor of hereditary
monarchy to all future ages; as they proved at last to the then deluded people: who, in order to
recover that peace and happiness which for twenty years together they had lost, in a solemn
parliamentary convention of the states restored the right heir of the crown. And in the proclamation
for that purpose, which was drawn up and attended by both houses,23 they declared, “that, according
to their duty and allegiance, they did heartily, joyfully, and unanimously acknowledge and proclaim,
that immediately upon the decease of our late sovereign lord king Charles, the imperial crown of
these realms did by inherent birthright and lawful and undoubted succession descend and come to
his most excellent majesty Charles the second, as being lineally, justly, and lawfully, next heir of
the blood royal of this realm: and thereunto they most humbly and faithfully did submit and oblige
themselves, their heirs and posterity for ever.”

THUS I think it clearly appears, from the highest authority this nation is acquainted with, that the
crown of England has been ever an hereditary crown; though subject to limitations by parliament.
The remainder of this chapter will consist principally of those instances, wherein the parliament has
asserted or exercised this right of altering and limiting the succession; a right which, we have seen,
was before exercised and asserted in the reigns of Henry IV, Henry VII, Henry VIII, queen Mary,
and queen Elizabeth.

THE first instance, in point of time, is the famous bill of exclusion, which raised such a ferment in
the latter end of the reign of king Charles the second. It is well know, that the purport of this bill was
to have set aside the king's brother and presumptive heir, the duke of York, from the succession, on
the score of his being a papist; that it passed the house of commons, but was rejected by the lords;
the king having also declared beforehand, that he never would be brought to consent to it. And from
this transaction we may collect two things: 1. That the crown was universally acknowledged to be
hereditary; and the inheritance indefeasible unless by parliament: else it has been needless to prefer
such a bill. 2. That the parliament had a power to have defeated the inheritance: else such a bill had
been ineffectual. The common acknowledged the hereditary right then subsisting; and the lords did

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not dispute the power, but merely the propriety, of an exclusion. However, as the bill took no effect,
king James the second succeeded to the throne of his ancestors; and might have enjoyed it during
the remainder of his life, but for his own infatuated conduct, which (with other concurring
circumstances) brought on the revolution in 1688.

THE true ground and principle, upon which that memorable event proceeded, was an entirely new
case in politics, which had never before happened in our history; the abdication of the reigning
monarch, and the vacancy of the throne thereupon. It was not a defeasance of the right of succession,
and a new limitation of the crown, by the king and both houses of parliament: it was the act of the
nation alone, upon an apprehension that there was no king in being. For in a full assembly of the
lords and commons, met in convention upon this apprehended vacancy, both houses24 came to this
resolution; “that king James the second, having endeavored to subvert the constitution of the
kingdom, by breaking the original contract between king and people; and, by the advice of jesuits
and other wicked persons, having violated the fundamental laws; and having withdrawn himself out
of this kingdom; has abdicated the government, and that the throne is thereby vacant.” Thus ended
at once, by this sudden and unexpected vacancy of the throne, the old line of succession; which from
the conquest had lasted above six hundred years, and from the union of the heptarchy in king Egbert
almost nine hundred. The facts themselves thus appealed to, the king's endeavors to subvert the
constitution by breaking the original contract, his violation of the fundamental laws, and his
withdrawing himself out of the kingdom, were evident and notorious: and the consequences drawn
from these facts (namely, that they amounted to an abdication of the government; which abdication
did not affect only the person of the king himself, but also all his heirs, and rendered the throne
absolutely and completely vacant) it belonged to our ancestors to determine. For, whenever a
question arises between the society at large and any magistrate vested with powers originally
delegated by that society, it must be decided by the voice of the society itself: there is not upon earth
any other tribunal to resort to. And that these consequences were fairly deduced from these facts,
our ancestors have solemnly determined, in a full parliamentary convention representing the whole
society. The reasons upon which they decided may be found at large in the parliamentary
proceedings of the times; and may be matter of instructive amusement for us to contemplate, as a
speculative point of history. But care must be taken not to carry this inquiry farther, than merely for
instruction or amusement. The idea, that the consciences of posterity were concerned in the rectitude
of their ancestors' decisions, gave birth to those dangerous political heresies, which so long
distracted the state, but at length are all happily extinguished. I therefore rather cause to consider
this great political measure, upon the solid footing of authority, than to reason in its favor from its
justice, moderation, and expedience: because that might imply a right of dissenting or revolting from
it, in case we should think it unjust, oppressive, or inexpedient. Whereas, our ancestors having most
indisputably a competent jurisdiction to decide this great and important question, and having in fact
decided it, it is now become our duty at this distance of time to acquiesce in their determination;
being born under that establishment which was built upon this foundation, and obliged by every tie,
religious as well as civil, to maintain it.

BUT, while we rest this fundamental transaction, in point of authority, upon grounds the least liable
to cavil, we are bound both in justice and gratitude to add, that it was conducted with a temper and
moderation which naturally arose from its equity; that, however it might in some respects go beyond
the letter of our ancient laws, (the reason of which will more fully appear hereafter25) it was

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agreeable to the spirit of our constitution, and the rights of human nature; and that though in other
points (owing to the peculiar circumstances of things and persons) it was not altogether so perfect
as might have been withed, yet from thence a new era commenced, in which the bounds of
prerogative and liberty have been better defined, the principles of government more thoroughly
examined and understood, and the rights of the subject more explicitly guarded by legal provisions,
than in any other period of the English history. In particular, it is worthy observation that the
convention, in this their judgment, avoided with great wisdom the wild extremes into which the
visionary theories of some zealous republicans would have led them. They held that this misconduct
of king James amounted to an endeavor to subvert the constitution, and not to an actual subversion,
or total dissolution of the government, according to the principles of Mr. Locke:26 which would have
reduced the society almost to a state of nature; would have leveled all distinctions of honor, rank,
offices, and property; would have annihilated the sovereign power, and in consequence have
repealed all positive laws; and would have left the people at liberty to have erected a new system
of state upon a new foundation of polity. They therefore very prudently voted it to amount to no
more than an abdication of the government, and a consequent vacancy of the throne; whereby the
government was allowed to subsist, though the executive magistrate was gone, and the kingly office
to remain, though king James was no longer kung. And thus the constitution was kept entire; which
upon every found principle of government must otherwise have fallen to pieces, had so principal and
constituent a part as the royal authority been abolished, or even suspended.

THIS single postulatum, the vacancy of the throne, being once established, the rest that was then
done followed almost of course. For, if the throne be at any time vacant (which may happen by other
means besides that of abdication; as if all the bloodroyal should said, without any successor
appointed by parliament;) if, I say, a vacancy by any means whatsoever should happen, the right of
disposing of this vacancy seems naturally to result to the lords and commons, the trustees and
representatives of the nation. For there are no other hands in which it can so properly be entrusted;
and there is a necessity of its being entrusted somewhere, else the whole frame of government must
be dissolved and perish. The lords and commons having therefore determined this main fundamental
article, that there was a vacancy of the throne, they proceeded to fill up that vacancy in such manner
as they judged the most proper. And this was done by their declaration of 12 February 1688,27 in the
following manner: “that William and Mary, prince and princess of Orange, be, and be declared king
and queen, to hold the crown and royal dignity during their lives, and the life of the survivor of
them; and that the sole and full exercise of the regal power be only in, and executed by, the said
prince of Orange, in the names of the said prince and princess, during their joint lives; and after their
deceases the said crown and royal dignity to be to the heirs of the body of the said princess; and for
default of such issue to the princess Anne of Denmark and the heirs of her body; and for default of
such issue to the heirs of the body of the said prince of Orange.”

PERHAPS, upon the principles before established, the convention might (if they pleased) have
vested the regal dignity in a family entirely new, and strangers to the royal blood: but they were too
well acquainted with the benefits of hereditary succession, and the influence which it has by custom
over the minds of the people, to depart any farther from the ancient line than temporary necessity
and self-preservation required. They therefore settled the crown, first on king William and queen
Mary, king James's eldest daughter, for their joint lives; then on the survivor of them; and then on
the issue of queen Mary: upon failure of such issue, it was limited to princess Anne, king James's

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second daughter, and her issue; and lastly, on failure of that, to the issue of king William, who was
the grandson of Charles the first, and nephew as well as son in law of king James the second, being
the son of Mary his eldest sister. This settlement included all the protestant posterity of king Charles
I, except such other issue as king James might at any time have, which was totally omitted through
fear of a popish succession. And this order of succession took effect accordingly.

THESE three princes therefore, king William, queen Mary, and queen Anne, did not take the crown
by the crown by hereditary right or descent, but by way of donation or purchase, as the lawyers call
it; by which they mean any method of acquiring an estate otherwise than by descent. The new
settlement did not merely consist in excluding king James, and the person pretended to be prince of
Wales, and then suffering the crown to descend in the old hereditary channel: for the usual course
of descent was in some instances broken through; and yet the convention still kept it in their eye,
and paid a great, though not total, regard to it. Let us see how the succession would have stood, if
no abdication had happened, and king James had left no other issue than his two daughters queen
Mary and queen Anne. It would have stood thus: queen Mary and her issue; queen Anne and her
issue; king William and his issue. But we may remember, that queen Mary was only nominally
queen, jointly with her husband king William, who alone had the regal power; and king William was
absolutely preferred to queen Anne, though his issue was postponed to hers. Clearly therefore these
princes were successively in possession of the crown by a title different from the usual course of
descent.

IT was towards the end of king William's reign, when all hopes of any surviving issue from any of
these princes died with the duke of Gloucester, that the king and parliament thought it necessary
again to exert their power of limiting and appointing the succession, in order to prevent another
vacancy of the throne; which must have ensued upon their deaths, as no farther provision was made
at the revolution, than for the issue of king William, queen Mary, and queen Anne. The parliament
had previously by the statute of 1 W. & M. St. 2. c. 2. enacted, that every person who should be
reconciled to, or hold communion with, the see of Rome, should profess the popish religion, or
should marry a papist, should be excluded and for ever incapable to inherit, possess, or enjoy, the
crown; and that in such case the people should be absolved from their allegiance, and the crown
should descend to such persons, being protestants, as would have inherited the same, in case the
person so reconciled, holding communion, professing, or marrying, were naturally dead. To act
therefore consistently with themselves, and at the same time pay as much regard to the old hereditary
line as their former resolutions would admit, they turned their eyes on the princess Sophia, electress
and duchess dowager of Hanover, the most accomplished princes of her age.28 For, upon the
impending extinction of the protestant posterity of Charles the first, the old law of regal descent
directed them to recur to the descendants of James the first; and the princess Sophia, being the
daughter of Elizabeth queen of Bohemia, who was the youngest daughter of James the first, was the
nearest of the ancient blood royal, who was not incapacitated by professing the popish religion. On
her therefore, and the heirs of her body, being protestants, the remainder of the crown, expectant on
the death of king William and queen Anne without issue, and settled by statute 12 & 13 W. III. c.
2. And at the same time it was enacted, that whosoever should hereafter come to the possession of
the crown, should join in the communion of the church of England as by law established.

THIS is the last limitation of the crown that has been made by parliament: and these several actual

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limitations, from the time of Henry IV to the present, do clearly prove the power of the king and
parliament to new-model or alter the succession. And indeed it is now again made highly penal to
dispute it: for by the statute 6 Ann. c. 7. it is enacted, that if any person maliciously, advisedly, and
directly, shall maintain by writing or printing, that the kings of this realm with the authority of
parliament are not able to make laws to bind the crown and the descent thereof, he shall be guilty
of high treason; or if he maintains the same by only preaching, teaching, or advised speaking, he
shall incur the penalties of a praemunire [forewarning].

THE princess Sophia dying before queen Anne, the inheritance thus limited descended on her son
and heir king George the first; and, having on the death of the queen taken effect in his person, from
him it descended to his late majesty king George the second; and from him to his grandson and heir,
our present gracious sovereign, king George the third.

HENCE it is easy to collect, that the title to the crown is at present hereditary, though not quite so
absolutely hereditary as formerly; and the common stock or ancestor, from whom the descent must
be derived, is also different. Formerly the common stock was king Egbert; then William the
conqueror; afterwards in James the first's time the two common stocks united, and so continued till
the vacancy of the throne in 1688: now it is the princess Sophia, in whom the inheritance was vested
by the new king and parliament. Formerly the descent was absolute, and the crown went to the next
heir without any restriction: but now upon the new settlement, the inheritance is conditional, being
limited to such heirs only, of the body of the princess Sophia, a are protestant members of the church
of England, and are married to none but protestants.

AND in this due medium consists, I apprehend, the true constitutional notion of the right of
succession to the imperial crown of these kingdoms. The extremes, between which it steers, are each
of them equally destructive of those ends for which societies were formed and are kept on foot.
Where the magistrate, upon every succession, is elected by the people, and may by the express
provision of the laws be deposed (if not punished) by his subjects, this may found like the perfection
of liberty, and look well enough when delineated on paper; but in practice will be ever productive
of tumult, contention, and anarchy. And, on the other hand, divine indefeasible hereditary right,
when coupled with the doctrine of unlimited passive obedience, is surely of all constitutions the
most thoroughly slavish and dreadful. But when such an hereditary right, as our laws have created
and vested in the royal stock, is closely interwoven with those liberties, which, we have seen in a
former chapter, are equally the inheritance of the subject; this union will form a constitution, in
theory the most beautiful of any, in practice the most approved, and, I trust, in duration the most
permanent. It was the duty of an expounder of our laws to lay this constitution before the student
in its true and genuine light: it is the duty of every good Englishman to understand, to revere, to
defend it.

NOTES

1. in vit. Agricolae.
2. 1 hist. P. C. 61.
3. Puf. L. of N. and N. b. 8. c. 12. §. 6.

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4. A. D. 1066.
5. William of Malmfb. l. 3.
6. Hale, hist. C. L. c. 5. Seld. review of tithes, c. 8.
7. “Ego Stephanus Dei gratia assensu cleri et populi in regem Anglorum electus, etc.” [“I, Stephen, elected King of England,
by the grace of God, and the assent of the clergy and people.”] (Cart. A. D. 1136. Ric. de Hagustald 314. Hearne ed guil.
Neubr. 711.)
8. “... Regni Angliae; quod nobis jure competit haereditario.” [“Of the kingdom of England; which falls to us by hereditary
right.”] Spelm. hist. R. Foh. apud Wilkins. 354.
9. Glanv. l. 7. c. 3.
10. Mod. Un. hist. xxx. 512.
11. Stat. 25. Edw. III. St. 2.
12. Sandford's geneal. hist. 246.
13. hist. C. L. c. 5.
14. Seld. tit. hon. 1. 3.
15. soit mys et demoerge [shall be set and remain].
16. 4 Inst. 37, 205.
17. 4 Inst. 36.
18. 4 Inst. 37.
19. Ibid.
20. 1 Mar. p. 2. c. 2.
21. Stat. 1 Eliz. c. 3.
22. Elizabeth of York, the mother of queen Margaret of Scotland, was heiress of the house of Mortimer. And Mr. Carte
observes, that the house of Mortimer, in virtue of its descent from Gladys only sister of Lewellin ap Jorweth the great, had
the true right to the principality of Wales, iii, 705.
23. Com. Journ. 8 May, 1660.
24. Com. Journ. 7 Feb. 1688.
25. See chapter 7.
26. on Gov. p. 2. c. 19.
27. Com. Journ. 12 Feb. 1688.
28. Sandford, in his genealogical history, published A. D. 1677, speaking (page 535) of the princesses Elizabeth, Louisa,
and Sophia, daughters of the queen of Bohemia, says, the first was reputed the most learned, the second the greatest artist,
and the last one of the most accomplished ladies in Europe.

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CHAPTER 4
Of the King's Royal Family

THE first and most considerable branch of the king's royal family, regarded by the laws of England,
is the queen.

THE queen of England is either queen regent, queen consort, or queen dowager. The queen regent,
regnant, or sovereign, is she who holds the crown in her own right; as the first (and perhaps the
second) queen Mary, queen Elizabeth, and queen Anne; and such a one has the same powers,
prerogatives, rights, dignities, and duties, as if she had been a king. This was observed in the
entrance of the last chapter, and is expressly declared by statute 1 Mar. I. St. 3. c. 1. But the queen
consort is the wife of the reigning king; and she by virtue of her marriage is participant of diverse
prerogatives above other women.1

AND, first, she is a public person, exempt and distinct from the king; and not, like other married
women, so closely connected as to have lost all legal or separate existence so long as the marriage
continues. For the queen is of ability to purchase lands, and to convey them, to make leases, to grant
copyholds, and do others acts of ownership, without the concurrence of her lord; which no other
married woman can do:2 a privilege as old as the Saxon era.3 She is also capable of taking a grant
from the king, which no other wife is from her husband; and in this particular she agrees with the
Augusta, or piissima regina conjux divi imperatoris [the most pious Queen Consort of the sacred
Emperor] of the Roman laws; who, according to Justinian,4 was equally capable of making a grant
to, and receiving one from, the emperor. The queen of England has separate courts and officers
distinct from the king's, not only in matters of ceremony, but even of law; and her attorney and
solicitor general are entitled to a place within the bar of his majesty's courts, together with the king's
counsel.5 She may also sue and be sued alone, without joining her husband. She may also have a
separate property in goods as well as lands, and has a right to dispose of them by will. In short, she
is in all legal proceedings looked upon as a feme sole, and not as a feme covert; as a single, not as
a married woman.6 For which the reason given by Sir Edward Coke is this: because the wisdom of
the common law would not have the king (whose continual care and study is for the public, and
circa ardua regni [arduous affairs of the kingdom]) to be troubled and disquieted on account of his
wife's domestic affairs; and therefore it vests in the queen a power of transacting her own concerns,
without the intervention of the king, as if she was an unmarried woman.

THE queen has also many exemptions, and minute prerogatives. For instance: the pays no toll;7 nor
is the liable to any amercement in any court.8 But in general, unless where the law has expressly
declared her exempted, she is upon the same footing with other subjects; being to all intents and
purposes the king's subject, and not his equal: in like manner as, in the imperial law, “Augusta
legibus soluta non est.”9 [“The Queen is not exempt from the laws.”]

THE queen has also some pecuniary advantages, which form her a distinct revenue: as, in the first
place, she is entitled to an ancient perquisite called queen-gold or aurum reginae; which is a royal
revenue, belonging to every queen consort during her marriage with king, and due from every person
who has made a voluntary offering or fine to the king, amounting to ten marks or upwards, for and
in consideration of any privileges, grants, licenses, pardons, or other matter of royal favor conferred

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William Blackstone: Vol. 1, Commentaries on the Laws of England (1765) Page 131

upon him by the king: and it is due in the proportion of one tenth part more, over and above the
entire offering or fine made to the king; and becomes an actual debt of record to the queen's majesty
by the mere recording the fine.10 As, if an hundred marks of silver be given to the king for liberty
to take in mortmain, or to have a fair, market, park, chase, or free warren; there the queen is entitled
to ten marks in silver, or (what was formerly an equivalent denomination) to one mark in gold, by
the name of queen-gold, or aurum reginae.11 But no such payment is due for any aids or subsidies
granted to the king in parliament or convocation; nor for fines imposed by courts on offenders,
against their will; nor for voluntary presents to the king, without any consideration moving from him
to the subject; nor for any sale or contract whereby the present revenues or possessions of the crown
are granted away or diminished.12

THE revenue of our ancient queens, before and soon after the conquest, seems to have consisted in
certain reservations or rents out of the demesne lands of the crown, which were expressly
appropriated to her majesty, distinct from the king. It is frequent in domesday-book, after specifying
the rent due to the crown, to add likewise the quantity of gold or other renders reserved to the
queen.13 These were frequently appropriated to particular purposes; to buy wool for her majesty's
use,14 to purchase oil for her lamps,15 or to furnish her attire from head to foot,16 which was
frequently very costly, as one single robe in the fifth year of Henry II stood the city of London in
upwards of fourscore pounds.17 A practice somewhat similar to that of the eastern countries, where
whole cities and provinces were specifically assigned to purchase particular parts of the queen's
apparel.18 And, for a farther addition to her income, this duty to queen-gold is supposed to have been
originally granted; those matters of grace and favor, out of which it arose, being frequently obtained
from the crown by the powerful intercession of the queen. There are traces of its payment, though
obscure ones, in the book of domesday and in the great pipe-roll of Henry the first.19 In the reign of
Henry the second the manner of collecting in appears to have been well understood, and it forms a
distinct head in the ancient dialogue of the exchequer20 written in the time of that prince, and usually
attributed to Gervase of Tilbury. From that time downwards it was regularly claimed and enjoyed
by all the queen consorts of England till the death of Henry VIII; though after the accession of the
Tudor family the collecting of it seems to have been much neglected: and, there being no queen
consort afterwards till the accession of James I, a period of near sixty years, its very nature and
quantity became then a matter of doubt: and, being referred by the king to his then chief justices and
chief baron, their report of it was so very unfavorable,21 that queen Anne (though she claimed it) yet
never thought proper to exact it. In 1635, 11 Car. I, a time fertile of expedients for raising money
upon dormant precedents in our old records (of which ship-money was a fatal instance) the king, at
the petition of his queen Henrietta Maria, issued out his writ for levying it; but afterwards purchased
it of his consort at the price of ten thousand pounds; finding it, perhaps, too trifling and troublesome
to levy. And when afterwards, at the restoration, by the abolition of the military tenures, and the
fines that were consequent upon them, the little that legally remained of this revenue was reduced
to almost nothing at all, in vain did Mr. Prynne, by a treatise which does honor to his abilities as a
painful and judicious antiquarian, endeavor to excite queen Catherine to revive this antiquated claim.

ANOTHER ancient perquisite belonging to the queen consort, mentioned by all our old writers,22
and, therefore only, worthy notice, is this: that on the taking of a whale on the coasts, which is a
royal fish, it shall be divided between the king and queen; the head only being the king's property,
and the tail of it the queen's. “De sturgione observetur, quod rex illum habebit integrum: de balena

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William Blackstone: Vol. 1, Commentaries on the Laws of England (1765) Page 132

vero sufficit, si rex habeat caput, et regina caudam.” [“Of the sturgeon be it known that the king
shall have the whole: but with respect to a whale it is sufficient if the king have the head and the
queen the tail.”] The reason of this whimsical division, as assigned by our ancient records,23 was,
to furnish the queen's wardrobe with whalebone.

BUT farther: though the queen is in all respect a subject, yet, in point of the security of her life and
person, she is put on the same footing with the king. It is equally treason (by the statute 25 Edw. III.)
to compass or imagine the death of our lady the king's companion, as of the king himself: and to
violate, or defile, the queen consort, amounts to the same high crime; as well in the person
committing the fact, as in the queen herself, in consenting. A law of Henry the eighth24 made it
treason also for any woman, who was not a virgin, to marry the king without informing him thereof.
But this law was soon after repealed; it trespassing too strongly, as well on natural justice, as female
modesty. If however the queen be accused of any species of treason, she shall (whether consort or
dowager) be tried by the house of peers, as queen Ann Boleyn was in 28 Hen. VIII.

THE husband of a queen regnant, as prince George of Denmark was to queen Anne, is her subject;
and may be guilty of high treason against her: but, in the instance of conjugal fidelity, he is not
subjected to the same penal restrictions. For which the reason seems to be, that, if a queen consort
is unfaithful to the royal bed, this may debase or bastardize the heirs to the crown; but no such
danger can be consequent on the infidelity of the husband to a queen regnant.

A QUEEN dowager is the widow of the king, and as such enjoys most of the privileges belonging
to her as queen consort. But it is not high treason to conspire her death; or to violate her chastity,
for the same reason as was before alleged, because the succession to the crown is not thereby
endangered. Yet still, pro dignitate regali [for the royal dignity], no man can marry a queen dowager
without special license from the king, on pain of forfeiting his lands and goods. This Sir Edward
Coke25 tells us was enacted in parliament in 6 Hen. VI, though the statute be not in print. But she,
though an alien born, shall still be entitled to dower after the king's demise, which no other alien is.26
A queen dowager, when married again to a subject, does not lose her regal dignity, as peeresses
dowager do their peerage when they marry commoners. For Katherine, queen dowager of Henry V,
though she married a private gentleman, Owen ap Meredith ap Theodore, commonly called Owen
Tudor; yet, by the name of Katherine queen of England, maintained an action against the bishop of
Carlisle. And so the queen of Navarre marrying with Edmond, brother to king Edward the first,
maintained an action of dower by the name of queen of Navarre.27

THE prince of Wales, or heir apparent to the crown, and also his royal consort, and the princess
royal, or eldest daughter of the king, are likewise peculiarly regarded by the laws. For, by statute 25
Edw. III, to compass or conspire the death of the former, or to violate the chastity of either of the
latter, are as much high treason, as to conspire the death of the king, or violate the chastity of the
queen. And this upon the same reason, as was before given; because the prince of Wales is next in
succession to the crown, and to violate his wife might taint the blood royal with bastardy: and the
eldest daughter of the king is also alone inheritable to the crown, in failure of issue male, and
therefore more respected by the laws than any of her younger sisters; insomuch that upon this, united
with other (feudal) principles, while our military tenures were in force, the king might levy an aid
for marrying his eldest daughter, and her only. The heir apparent to the crown is usually made prince

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William Blackstone: Vol. 1, Commentaries on the Laws of England (1765) Page 133

of Wales and earl of Chester, by special creation, and investiture; but, being the king's eldest son,
he is by inheritance duke of Cornwall, without any new creation.28

THE younger sons and daughter of the king, who are not in the immediate line of succession, are
little farther regarded by the laws, than to give them precedence before all peers and public officers
as well ecclesiastical as temporal. This is done by the statute 31 Hen. VIII. c. 10. which enacts that
no person, except the king's children, shall presume to sit or have place at the side of the cloth of
estate in the parliament chamber; and that certain great officers therein named shall have precedence
above all dukes, except only such as shall happen to be the king's son, brother, uncle, nephew (which
Sir Edward Coke29 explains to signify grandson or nepos) or brother's or sister's son. But under the
description of the king's children his grandsons are held to be included, without having recourse to
Sir Edward Coke's interpretation of nephew: and therefore when his late majesty created his
grandson, the second son of Frederick prince of Wales deceased, duke of York, and referred it to the
house of lords to settle his place and precedence, they certified30 that he ought to have place next to
the duke of Cumberland, the king's youngest son; and that he might have a seat on the left hand of
the cloth of estate. But when, on the Accession of his present majesty, those royal personages ceased
to take place as the children, and ranked only as the brother and uncle, of the king, they also left
their seats on the side of the cloth of estate: so that when the duke of Gloucester, his majesty's
second brother, took his seat in the house of peers,31 he was placed on the upper end of the earl's
bench (on which the dukes usually sit) next to his royal highness the duke of York. And in 1718,
upon a question referred to all the judges by king George I, it was resolved by the opinion of ten
against the other two, that the education and care of all the king's grandchildren while minors, and
the care and approbation of their marriages, when grown up, did belong of right to his majesty as
king of this realm, during their father's life.32 And this may suffice for the notice, taken by law, of
his majesty's royal family.

NOTES

1. Finch. L. 86.
2. 4 Rep. 23.
3. Seld. Fan. Angl. 1. 42.
4. Cod. 5. 16. 26.
5. Selden tit. hon. 1. 6. 7.
6. Finch. L. 86. Co. Litt. 133.
7. Co. Litt. 133.
8. Finch. L. 185.
9. Ff. 1. 3. 31.
10. Pryn. Aur. Reg. 2.
11. 12 Rep. 21. 4 Inst. 358.
12. Ibid. Pryn 6. Madox. hist exch. 242.
13. Bedefordscire. Maner. Lestone redd. per annum xxii lib. &c.; ad opus reginae ii uncias auri. — Herefordscire. In Lene,

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William Blackstone: Vol. 1, Commentaries on the Laws of England (1765) Page 134

&c. consuetud. ut praepositus manerii veniente domina sua (regina) in maner. praesentaret ei xviii oras denar. ut esset ipsa
laeto animo. [Bedfordshire: The manor of Leighton pays twenty-two pounds per annum, &c.; two ounces of gold for the
Queen's use. Herefordshire: In Lene, &c. it is the custom for the steward of the manor, on the arrival of his lady (the Queen)
at the manor to congratulate her with a present of eighteen oras denarii.] Pryn. Append. To Aur. Reg. 2, 3.
14. Causa coadunandi ianam reginae. [To buy wool for her majesty's use.] Domesd. ibid.
15. Civitas Lundon. Pro oleo ad lampad. reginae. [To purchase oil for her majesty's lamps] Mag. rot. Pip. temp. Hen. II.
ibid.
16. Vicecomes Berkescire, xvi l. pro cappa reginae. [To furnish her attire from head to foot.] (Mag. rot. pip. 19––22 Hen.
II. ibid.) Civitas Lund. cordubanario reginae xx s. Mag. Rot. 2 Hen. II. Madox hist. exch. 419.
17. Pro roba ad opus reginae, quater xx l. & vi s. viii. d. (Mag. rot. 5 Hen. II. ibid. 250.
18. Solere aiunt barbaros reges Persarum ac Syrorum — uxoribus civitates attribuere, hoc modo; haec civitas mulieri
redimiculum praebeat, haec in collum, haec in crines, etc. [They say that the barbarian kings of Persia and Syria were
accustomed to assess cities for their wives in this manner; one city was to provide her head-dress, another the ornaments for
her neck, and the third those for her hair, &c.] Cie. In Verrem. lib. 3. c. 33.
19. See Madox Disceptat. epistolar. 74. Pryn. Aur. Regin. Append. 5.
20. lib. 2. c. 26.
21. Mr Prynne, with some appearance of reason, insinuates, that their researches were very superficial. Aur. Reg. 125.
22. Bracton, l. 3. c. 3. Britton, c. 17. Fleta, l. 1. c. 45 & 46.
23. Pryn. Aur. Reg. 127.
24. Stat. 33 Hen. VIII. c. 21.
25. 2 Inst. 18.
26. Co. Litt. 31 b.
27. 2 Inst. 50.
28. 8 Rep. 1. Seld. titl. of hon. 2. 5.
29. 4 Inst. 362.
30. Lords journ. 24 Apr. 1760
31. Ibid. 10 Jan. 1765.
32. Fortesc. Al. 401–440.

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William Blackstone: Vol. 1, Commentaries on the Laws of England (1765) Page 135

CHAPTER 5
Of the Councils Belonging to the King

THE third point of view, in which we are to consider the king, is with regard to his councils. For,
in order to assist him in the discharge of his duties, the maintenance of his dignity, and the exertion
of his prerogative, the law has assigned him a diversity of councils to advise with.

1. THE first of these is the high court of parliament, whereof we have already treated at large.

2. SECONDLY, the peers of the realm are by their birth hereditary counselors of the crown, and may
be called together by the king to impart their advice in all matters of importance to the realm, either
in time of parliament, or, which has been their principal use, when there is no parliament in being.1
Accordingly Bracton,2 speaking of the nobility of his time, says they might properly be called
consules, a consulendo; reges enim tales sibi associant ad consulendum.” [“Counsellors, from
consulting; for kings assemble such for consultation.”] And in our law books3 it is laid down, that
peers are created for two reasons; 1. Ad consulendum, 2. Ad defendendum, regem [for advising and
defending the king]: for which reasons the law gives them certain great and high privileges; such
as freedom from arrests, etc, even when no parliament is sitting: because the law intends, that they
are always assisting the king with their counsel for the commonwealth; for keeping the realm in
safety by their prowess and valor.

INSTANCES of conventions of the peers, to advise the king, have been in former times very
frequent; though now fallen into disuse, by reason of the more regular meetings of parliament. Sir
Edward Coke4 gives us an extract of a record, 5 Hen. IV, concerning an exchange of lands between
the king and the earl of Northumberland, wherein the value of each was agreed to be settled by
advice of parliament (if any should be called before the feast of St Lucia) or otherwise by advice of
the grand council (of peers) which the king promises to assemble before the said feast, in case no
parliament shall be called. Many other instances of this king of meeting are to be found under our
ancient kings: though the formal method of convoking them had been so long left off, that when king
Charles I in 1640 issued out writs under the great seal to call a great council of all the peers of
England to meet and attend his majesty at York, previous to the meeting of the long parliament, the
earl of Clarendon5 mentions it as a new invention, not before heard of; that is, as he explains himself,
so old, that it had not been practiced in some hundreds of years. But, though there had not so long
before been an instance, nor has there been any since, of assembling them in so solemn a manner,
yet, in cases of emergency, our princes have at several times thought proper to call for and consult
as many of the nobility as could easily be got together: as was particularly the case with king James
the second, after the landing of the prince of Orange; and with the prince of Orange himself, before
he called that convention parliament, which afterwards called him to the throne.

BESIDES this general meeting, it is usually looked upon to be the right of each particular peer of
the realm, to demand an audience of the king, and to lay before him, with decency and respect, such
matters as he shall judge of importance to the public weal. And therefore, in the reign of Edward II,
it was made an article of impeachment in parliament against the two Hugh Spencers, father and son,
for which they were banished the kingdom, “that they by their evil covin [deceit] would not suffer
the great men of the realm, the king's good counselors, to speak with the king, or to come near him;

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William Blackstone: Vol. 1, Commentaries on the Laws of England (1765) Page 136

but only in the presence and hearing of the said Hugh the father and Hugh the son, or one of them,
and at their will, and according to such things as pleased them.”6

3. A THIRD council belonging the king, are, according to Sir Edward Coke,7 his judges of the courts
of law, for law matters. And this appears frequently in our statutes, particularly 14 Ed. III. c. 5. and
in other books of law. So that when the king's council is mentioned generally, it must be defined,
particularized, and understood, secundum subjectam materiam [according to the subject matter];
and, if the subject be of a legal nature, then by the king's council is understood his council for
matters of law; namely, his judges. Therefore when by statute 16 Ric. II. c. 5. it was made a high
offense to import into this kingdom any papal bulls, or other processes from Rome; and it was
enacted, that the offenders should be attached by their bodies, and brought before the king and his
council to answer for such offense; here, by the expression of king's council, were understood the
king's judges of his courts of justice, the subject matter being legal: this being the general way of
interpreting the word, council.8

4. BUT the principal council belonging to the king is his privy council, which is generally called,
by way of eminence, the council. And this, according to Sir Edward Coke's description of it,9 is a
noble, honorable, and reverend assembly, of the king and such as he wills to be of his privy council,
in the king's court or place. The king's will is the sole constituent of a privy counselor; and this also
regulates their number, which of ancient time was twelve or thereabouts. Afterwards it increased to
so large a number, that it was found inconvenient for secrecy and dispatch; and therefore king
Charles the second in 1679 limited it to thirty: whereof fifteen were to be the principal officers of
state, and those to be counselors, virtute officii [by virtue of office]; and the other fifteen were
composed of ten lords and five commoners of the king's choosing.10 But since that time the number
has been much augmented, and now continues indefinite. At the same time also, the ancient office
of lord president of the council was revived in the person of Anthony earl of Shaftsbury; an officer,
that by the statute of 31 Hen. VIII. c. 10. has precedence next after the lord chancellor and lord
treasurer.

PRIVY counselors are made by the king's nomination, without either patent or grant; and, on taking
the necessary oaths, they become immediately privy counselors during the life of the king that
chooses them, but subject to removal at his discretion.

THE duty of a privy counselor appears from the oath of office,11 which consists of seven articles:
1. To advise the king according to the best of his cunning and discretion. 2. To advise for the king's
honor and good of the public, without partiality through affection, love, need, doubt, or dread. 3. To
keep the king's counsel secret. 4. To avoid corruption. 5. To help and strengthen the execution of
what shall be there resolved. 6. To withstand all persons who would attempt the contrary. And,
lastly, in general, 7. To observe, keep, and do all that a good and true counselor ought to do to his
sovereign lord.

THE power of the privy council is to inquire into all offenses against the government, and to commit
the offenders into custody, in order to take their trial in some of the courts of law. But their
jurisdiction is only to inquire, and not to punish: and the persons committed by them are entitled to
their habeas corpus by statute 16 Car. I. c. 10. as much as if committed by an ordinary justice of the

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William Blackstone: Vol. 1, Commentaries on the Laws of England (1765) Page 137

peace. And, by the same statute, the court of starchamber, and the court of requests, both of which
consisted of privy counselors, were dissolved; and it was declared illegal for them to take
cognizance of any matter of property, belonging to the subjects of this kingdom. But, in plantation
or admiralty causes, which arise out of the jurisdiction of this kingdom, and in matters of lunacy and
idiocy (being a special flower of the prerogative) with regard to these, although they may eventually
involve questions of extensive property, the privy council continues to have cognizance, being the
court of appeal in such causes: or, rather, the appeal lies to the king's majesty himself, assisted by
his privy council.

Whenever also a question arises between two provinces in America or elsewhere, as concerning the
extent of their charters and the like, the king in his council exercises original jurisdiction therein,
upon the principles of feudal sovereignty. And so likewise when any person claims an island or a
province, in the nature of a feudal principality, by grant from the king or his ancestors, the
determination of that right belongs to his majesty in council: as was the case of the earl of Derby
with regard to the isle of Man in the reign of queen Elizabeth, and of the earl of Cardigan and others,
as representatives of the duke of Montague, with relation to the island of St. Vincent in 1764. But
from all the dominions of the crown, excepting Great Britain and Ireland, an appellate jurisdiction
(in the last resort) is vested in the same tribunal; which usually exercises its judicial authority in a
committee of the whole privy council, who hear the allegations and proofs, and make their report
to his majesty in council, by whom the judgment is finally given.

AS to the qualifications of members to sit at this board: any natural born subject of England is
capable of being a member of the privy council; taking the proper oaths for security of the
government, and the test for security of the church. But, in order to prevent any persons under
foreign attachments from insinuating themselves into this important trust, as happened in the reign
of king William in many instances, it is enacted by the act of settlement,12 that no person born out
of the dominions of the crown of England, unless born of English parents, even though naturalized
by parliament, shall be capable of being of the privy council.

THE privileges of privy counselors, as such, consist principally in the security which the law has
given them against attempts and conspiracies to destroy their lives. For, by statute 3 Hen. VII. c. 14.
if any of the king's servants, of his household, conspire or imagine to take away the life of a privy
counselor, it is felony, though nothing be done upon it. And the reason of making this statute, Sir
Edward Coke13 tells us, was because such servants have greater and readier means, either by night
or by day, to destroy such as be of great authority, and near about the king: and such a conspiracy
was, just before this parliament, made by some of king Henry the seventh's household servants, and
great mischief was like to have ensued thereupon. This extends only to the king's menial servants.
But the statute 9 Ann. c. 16. goes farther, and enacts, that any persons that shall unlawfully attempt
to kill, or shall unlawfully assault, and strike, or wound, any privy counselor in the execution of his
office, shall be felons, and suffer death as such. This statute was made upon the daring attempt of
the sieur Guiscard, who stabbed Mr. Harley, afterwards earl of Oxford, with a penknife, when under
examination for high crimes in a committee of the privy council.

THE dissolution of the privy council depends upon the king's pleasure; and he may, whenever he
thinks proper, discharge any particular member, or the whole of it, and appoint another. By the

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William Blackstone: Vol. 1, Commentaries on the Laws of England (1765) Page 138

common law also it was dissolved ipso facto [by that fact] by the king's demise; as deriving all its
authority from him. But now, to prevent the inconveniences of having no council in being at the
accession of a new prince, it is enacted by statute 6 Ann. c. 7. that the privy council shall continue
for six months after the demise of the crown, unless sooner determined by the successor.

NOTES

1. Co. Litt. 110.

2. l. 1. c. 8.
3. 7 Rep. 34. 9 Rep. 49. 12 Rep. 96.
4. 1 Inst. 110.
5. hist. b. 2.
6. 4 Inst. 53.
7. 1 Inst. 110.
8. 3 Inst. 125.
9. 4 Inst. 53.
10. Temple's Mem. part 3.
11. 4 Inst. 54.
12. Stat. 12 & 13 W. III. c. 2.
13. 3 Inst. 38.

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William Blackstone: Vol. 1, Commentaries on the Laws of England (1765) Page 139

CHAPTER 6
Of the King's Duties

I PROCEED next to the duties, incumbent on the king by our constitution; in consideration of which
duties his dignity and prerogative are established by the laws of the land: it being a maxim in the
law, that protection and subjection are reciprocal.1 And these reciprocal duties are what, I apprehend,
were meant by the convention in 1688, when they declared that king James had broken the original
contract between king and people. But however, as the terms of that original contract were in some
measure disputed, being alleged to exist principally in theory, and to be only deducible by reason
and the rules of natural law; in which deduction different understandings might very considerably
differ; it was, after the revolution, judged proper to declare these duties expressly; and to reduce that
contract to a plain certainty. So that, whatever doubts might be formerly raised by weak and
scrupulous minds about the existence of such an original contract, they must now entirely cease;
especially with regard to every prince, who has reigned since the year 1688.

THE principal duty of the king is, to govern his people according to law. Nec regibus infinita aut
libera potestas [kingly power is neither free nor unlimited], was the constitution of our German
ancestors on the continent.2 And this is not only consonant to the principles of nature, of liberty, of
reason, and of society, but has always been esteemed an express part of the common law of England,
even when prerogative was at the highest. “The king,” says Bracton,3 who wrote under Henry III,
“ought not to be subject to man, but to God, and to the law; for the law makes the king. Let the king
therefore render to the law, what the law has invested in him with regard to others; dominion, and
power: for he is not truly king, where will and pleasure rules, and not the law.” And again;4 “the king
also has a superior, namely God, and also the law, by which he was made a king.” Thus Bracton:
and Fortescue also,5 having first well distinguished between a monarchy absolutely and despotically
regal, which is introduced by conquest and violence, and a political or civil monarchy, which arises
from mutual consent; (of which last species he asserts the government of England to be)
immediately lays it down as a principle, that “the king of England must rule his people according
to the decrees of the laws thereof: insomuch that he is bound by an oath at his coronation to the
observance and keeping of his own laws.” But, to obviate all doubts and difficulties concerning this
matter, it is expressly declared by statute 12 & 13 W. III. c. 2. that “the laws of England are the
birthright of the people thereof; and all the kings and queens who shall ascend the throne of this
realm ought to administer the government of the same according to the said laws; and all their
officers and ministers ought to serve them respectively according to the same: and therefore all the
laws and statutes of this realm, for securing the established religion, and the rights and liberties of
the people thereof, and all other laws and statutes of the same now in force, are by his majesty, by
and with the advice and consent of the lords spiritual and temporal and commons, and by authority
of the same, ratified and confirmed accordingly.”

AND, as to the terms of the original contract between king and people, there I apprehend to be now
couched in the coronation oath, which by the statute 1 W. & M. St. 1. c. 6. is to be administered to
every king and queen, who shall succeed to the imperial crown of these realms, by one of the
archbishops or bishops of the realm, in the presence of all the people; who on their parts do
reciprocally take the oath of allegiance to the crown. This coronation oath is conceived in the
following terms:

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“The archbishop or bishop shall say, Will you solemnly promise and swear to govern the people of
this kingdom of England, and the dominions thereto belonging, according to the statutes in
parliament agreed on, and the laws and customs of the same? ) The king or queen shall say, I
solemnly promise so to do.

“Archbishop or bishop. Will you to your power cause law and justice, in mercy, to be executed in
all your judgments? ) King or queen. I will.

“Archbishop of bishop. Will you to the utmost of your power maintain the laws of God, the true
profession of the gospel, and the protestant reformed religion established by the law? And will you
preserve unto the bishops and clergy of this realm, and to the churches committed to their charge,
all such rights and privileges as by law do or shall appertain unto them, or any of them? ) King or
queen. All this I promise to do.

“After this the king or queen, laying his or her hand upon the holy gospels, shall say, The things
which I have here before promised I will perform and keep: so help me God. And then shall kiss the
book.”

THIS is the form so the coronation oath, as it is now prescribed by our laws: the principal articles
of which appear to be at least as ancient as the mirror of justices,6 and even as the time of Bracton:7
but the wording of it was changed at the revolution, because (as the statute alleges) the oath itself
had been framed in doubtful words and expressions, with relation to ancient laws and constitutions
at this time unknown.8 However, in what form soever it be conceived, this is most indisputably a
fundamental and original express contract; though doubtless the duty of protection is impliedly as
much incumbent on the sovereign before coronation as after: in the same manner as allegiance to
the king becomes the duty of the subject immediately on the descent of the crown, before he has
taken the oath of allegiance, or whether he ever takes it at all. This reciprocal duty of the subject will
be considered in its proper place. At present we are only to observe, that in the king's part of this
original contract are expressed all the duties that a monarch can owe to his people; viz. to govern
according to law: to execute judgment in mercy: and to maintain the established religion.

And, with respect to the latter of these three branches, we may farther remark, that by the act of
union, 5 Ann. c. 8. two preceding statutes are recited and confirmed; the one of the parliament of
Scotland, the other of the parliament of England: which enact; the former, that every king at his
Accession shall take and subscribe an oath, to preserve the protestant religion and presbyterian
church government in Scotland: the latter, that at his coronation he shall take and subscribe a similar
oath, to preserve the settlement of the church of England within England, Ireland, Wales, and
Berwick, and the territories thereunto belonging.

NOTES

1. 7 Rep. 5.
2. Tac. de M. G. c. 7.
3. l. 1. c. 8.

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4. l. 2. c. 16. §. 3.
5. c. 9. & 34.
6. cap. 1. §. 2.
7. l. 3. tr. 1. c. 9.
8. In the old folio abridgment of the statutes, printed by Lettou and Machlinia in the reign of Edward IV, (penes me [in my
possession]) there is preserved a copy of the old coronation oath; which, as the book is extremely scarce, I will here transcribe.
Ceo est le serement que le roy jurre a soun coronement: que il gardera et meintenera lez droitez et lez franchisez de seynt
esglise grauntez auncienment dez droitez roys Christiens d'Engletere, et quil gardera toutez sez terrez honoures et dignitees
droiturelx et franks del coron du roialme d'Engletere en tout maner dentierte sanz null maner damenusement, et lez droitez
dispergez dilapidez ou perduz de la corone a soun poiair reappeller en launcien estate, et quil gardera le peas de seynt esglise
et al clergie et al people de bon accorde, et quit face faire en toutez sez jugementez owel et droit justice oue discrecion et
misericorde, et quil grauntera a tenure lez leyes et custumez du roialme, et a soun poiair lez face garder et affermer que lez
gentez du people avont faitez et esliez, et les malveys leyz et custumes de tout ousiera, et ferme peas et establie al people de
soun roialme en ceo garde esgardera a soun poiair: come Dieu luy aide. [This is the oath which the king swears at his
coronation; that he will keep and maintain the rights and franchises of holy church granted anciently by the rightful Christian
kings of England, and that he will keep all the lands, honors and dignities, rights and privileges, of the crown of the kingdom
of England in all respects entire, without any kind of injury, and that he will recall to their ancient state, as far as in him lies,
all the scattered, injured, or lost rights of the crown, and that he will keep the peace of holy church, and concord between the
clergy and people; and that he will cause equal and true justice to be administered in all his judgments with discretion and
mercy, and that he will cause to be maintained the laws and customs of the kingdom, and as far as in him lies will make those
be confirmed and kept which the people have made and chosen, and will abolish entirely all bad laws and customs, and will,
in all respects, as far as he can, maintain a firm and established peace for the people of his kingdom: So help him God.] (Tit.
sacramentum regis. fol. m. ij.) Prynne has also given us a copy of the coronation-oaths of Richard II, (Signal Loyalty. II. 246.)
Edward IV, (ibid. 251.) James I, and Charles I, (ibid. 269.)

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CHAPTER 7
Of the King's Prerogative

IT was observed in a former chapter,1 that one of the principal bulwarks of civil liberty, or (in other
words) of the British constitution, was the limitation of the king's prerogative by bounds so certain
and notorious, that it is impossible he should ever exceed them, without the consent of the people,
on the one hand; or without, on the other, a violation of that original contract, which in all states
impliedly, and in ours most expressly, subsists between the prince and the subject. It will now be
our business to consider this prerogative minutely; to demonstrate its necessity in general; and to
mark out in the most important instances its particular extent and restrictions: from which
considerations this conclusion will evidently follow, that the powers which are vested in the crown
by the laws of England, are necessary for the support of society; and do not entrench any farther on
our natural liberties, than is expedient for the maintenance of our civil.

THERE cannot be a stronger proof of that genuine freedom, which is the boast of this age and
country, than the power of discussing and examining, with decency and respect, the limits of the
king's prerogative. A topic, that in some former ages was thought too delicate and sacred to be
profaned by the pen of a subject. It was ranked among the arcana imperii [imperial secrets]; and,
like the mysteries of the bona dea [good goddess], was not suffered to be pried into by any but such
as were initiated in its service; because perhaps the exertion of the one, like the solemnities of the
other, would not bear the inspection of rational and sober inquiry. The glorious queen Elizabeth
herself made no scruple to direct her parliaments to abstain from discoursing of matters of state;2 and
it was the constant language of this favorite princess and her ministers, that even that august
assembly “ought not to deal, to judge, or to meddle, with her majesty's prerogative royal.”3 And her
successor, king James the first, who had imbibed high notions of the divinity of regal sway, more
than once laid it down in his speeches, that “as it is atheism and blasphemy in a creature to dispute
what the deity may do, so it is presumption and sedition in a subject to dispute what a king may do
in the height of his power: good Christians, he adds, will be content with God's will, revealed in his
word; and good subjects will rest in the king's will, revealed in his law.”4

BUT, whatever might be the sentiments of some of our princes, this was never the language of our
ancient constitution and laws. The limitation of the regal authority was a first and essential principle
in all the Gothic systems of government established in Europe; though gradually driven out and
overborne, by violence and chicane, in most of the kingdoms on the continent. We have seen, in the
preceding chapter, the sentiments of Bracton and Fortescue, at the distance of two centuries from
each other. And Sir Henry Finch, under Charles the first, after the lapse of two centuries more,
though he lays down the law of prerogative in very strong and emphatic terms, yet qualifies it with
a general restriction, in regard to the liberties of the people. “The king has a prerogative in all things,
that are not injurious to the subject; for in them all it must be remembered, that the king's prerogative
stretches not to the doing of any wrong,”5 Nihil enim aliud potest rex, nisi id solum quod de jure
potest.6 [For the king can only act according to law.] And here it may be some satisfaction to
remark, how widely the civil law differs from our own, with regard to the authority of the laws over
the prince, or (as a civilian would rather have expressed it) the authority of the prince over the laws.
It is a maxim of the English law, as we have seen from Bracton, that “rex debet esse sub lege, quia
lex facit regem” [“the king is subject to the law, because law makes the king”]: the imperial law will

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tell us, that “in omnibus imperatoris excipitur fortuna; cui ipsas leges Deus subjecit.”7 [“The
emperor’s interest in all things is reserved; to whom God has made the laws themselves subject.”]
We shall not long hesitate to which of them to give the preference, as most conducive to those ends
for which societies were framed, and are kept together; especially as the Roman lawyers themselves
seem to be sensible of the unreasonableness of their own constitution. “Decet tamen principem,”
says Paulus, “servare leges, quibus ipse solutus est.”8 [“Nevertheless it becomes a prince to protect
those laws from which he is himself exempt.”] This is at once laying down the principle of despotic
power, and at the same time acknowledging its absurdity.

By the word prerogative we usually understand that special pre-eminence, which the king has, over
and above all other persons, and out of the ordinary course of the common law, in right of his regal
dignity. It signifies, in its etymology, (from prae [before] and rogo [to ask]) something that is
required or demanded before, or in preference to, all others. And hence it follows, that it must be in
its nature singular and eccentric; that it can only be applied to those rights and capacities which the
king enjoys alone, in contradistinction to others, and not to those which he enjoys in common with
any of his subjects: for if once any one prerogative of the crown could be held in common with the
subject, it would cease to be prerogative any longer. And therefore Finch9 lays it down as a maxim,
that the prerogative it that law in case of the king, which is law in no case of the subject.

PREROGATIVES are either direct or incidental. The direct are such positive substantial parts of the
royal character and authority, as are rooted in and spring from the king's political person, considered
merely by itself, without reference to any other extrinsic circumstance; as, the right of sending
ambassadors, of creating peers, and of making war or peace. But such prerogatives as are incidental
bear always a relation to something else, distinct from the king's person; and are indeed only
exceptions, in favor of the crown, to those general rules that are established for the rest of the
community: such as, that no costs shall be recovered against the king; that the king can never be a
joint-tenant; and that his debt shall be preferred before a debt to any of his subjects. These, and an
infinite number of other instances, will better be understood, when we come regularly to consider
the rules themselves, to which these incidental prerogatives are exceptions. And therefore we will
at present only dwell upon the king's substantive or direct prerogatives.

THESE substantive or direct prerogatives may again be divided into three kings: being such as
regard, first, the king's royal character; secondly, his royal authority; and, lastly, his royal income.
These are necessary, to secure reverence to his person, obedience to his commands, and an affluent
supply for the ordinary expenses of government; without all of which it is impossible to maintain
the executive power in due independence and vigor. Yet, in every branch of this large and extensive
dominion, our free constitution has interposed such seasonable checks and restrictions, as may curb
it from trampling on those liberties, which it was meant to secure and establish. The enormous
weight of prerogative (if left to itself, as in arbitrary government it is) spreads havoc and destruction
among all the inferior movements: but, when balanced and bridled (as with us) by its proper
counterpoise, timely and judiciously applied, its operations are then equable and regular, it
invigorates the whole machine, and enables every part to answer the end of its construction.

IN the present chapter we shall only consider the two first of these divisions, which relate to the
king's political character and authority; or, in other words, his dignity and regal power; to which last

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the name of prerogative is frequently narrowed and confined. The other division, which forms the
royal revenue, will require a distinct examination; according to the know distribution of the feudal
writers, who distinguish the royal prerogatives into the majora and minora regalia [greater and
lesser regalia], in the latter of which classes the rights of the revenue are ranked. For, to use their
own words, “majora regalia imperii prae-eminentiam spectant; minora vero ad commodum
pecuniarium immediate attinent; et haec proprie fiscalia sunt, et ad jus fisci pertinent.”10 [“The
greater royalties of the kingdom appertain to dignity of station; but the inferior immediately concern
the acquisition of money; these are properly fiscal, and relate to the rights of the king's revenue.”]

FIRST, then, of the royal dignity. Under every monarchical establishment, it is necessary to
distinguish the prince from his subjects, not only by the outward pomp and decorations of majesty,
but also by ascribing to him certain qualities, as inherent in his royal capacity, distinct from and
superior to those of any other individual in the nation. For, though a philosophical mind will
consider the royal person merely as one man appointed by mutual consent to preside over many
others, and will pay him that reverence and duty which the principles of society demand, yet the
mass of mankind will be apt to grown insolent and refractory, if taught to consider their prince as
a man of no greater perfection than themselves. The law therefore ascribes to the king, in his high
political character, not only large powers and emoluments which form his prerogative and revenue,
but likewise certain attributes of a great and transcendent nature; by which the people are led to
consider him in the light of a superior being, and to pay him that awful respect, which may enable
him with greater ease to carry on the business of government. This is that I understand by the royal
dignity, the several branches of which we will now proceed to examine.

I. AND, first, the law ascribes to the king the attribute of sovereignty, or pre-eminence.11 “Rex est
vicarius,” says Bracton, “et minister Dei in terra: omnis quidem sub eo est, et ipse sub nullo, nisi
tantum sub Deo.” [“The King is the vicegerent and minister of God on earth: all are subject to him;
and he is subject to none but to God alone.”] He is said to have imperial dignity, and in charters
before the conquest is frequently styled basileus and imperator, the titles respectively assumed by
the emperors of the east and west.12 His realm is declared to be an empire, and his crown imperial,
by many acts of parliament, particularly the statutes 24 Hen. VIII. c. 12. and 25 Hen. VIII. c. 28;
which at the same time declare the king to be the supreme head of the realm in matters both civil and
ecclesiastical, and of consequence inferior to no man upon earth, dependent no on man, accountable
to no man. Formerly there prevailed a ridiculous notion, propagated by the German and Italian
civilians, than an emperor could do many things which a king could not, (as the creation of notaries
and the like) and that all kings were in some degree subordinate and subject to the emperor of
Germany or Rome. The meaning therefore of the legislature, when it uses these terms of empire and
imperial, and applies them to the realm of England, is only to assert that our king is equally
sovereign and independent within these his dominions, as any emperor is in his empire;13 and owes
no king of subjection to any other potentate upon earth. Hence it is, that no suit or action can be
brought against the king, even in civil matters, because no court can have jurisdiction over him. For
all jurisdiction implies superiority of power: authority to try would be vain and idle, without an
authority to redress; and the sentence of a court would be contemptible, unless that court had power
to command the execution of it; but who, says Finch,14 shall command the king? Hence it is likewise,
that by law the person of the king is sacred, even though the measures pursued in his reign be
completely tyrannical and arbitrary: for no jurisdiction had this power, as was formerly claimed by

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the pope, the independence of the kingdom would be no more: and, if such a power were vested in
any domestic tribunal, there would soon be an end of the constitution, by destroying the free agency
of one of the constituent parts of the sovereign legislative power.

ARE then, it may be asked, the subject of England totally destitute of remedy, in case the crown
should invade their rights, either by private injuries, or public oppressions? To this we may answer,
that the law has provided a remedy in both cases.

AND, first, as to private injuries; if any person has, in point of property, a just demand upon the
king, he must petition him in his court of chancery, where his chancellor will administer right as a
matter of grace, though not upon compulsion.15 And this is entirely consonant to what is laid down
by the writers on natural law. “A subject, says Pufendorf,16 so long as he continues a subject, has no
way to oblige his prince to gave him his due, when he refuses it; though no wise prince will ever
refuse to stand to a lawful contract. And, if the prince gives the subject leave to enter an action
against him, upon such contract, in his own courts, the action itself proceeds rather upon natural
equity, then upon the municipal laws.” For the end of such action is not to compel the prince to
observe the contract, but to persuade him. And, as to personal wrongs; it is well observed by Mr.
Locke,17 “the harm which the sovereign can do in his own person not being likely to happen often,
nor to extend itself far; nor being able by his single strength to subvert the laws, nor oppress the
body of the people, (should any prince have so much weakness and ill nature as to endeavor to do
it) ) the inconvenience therefore of some particular mischiefs, that may happen sometimes, when
a heady prince comes to the throne, are well recompensed by the peace of the public and security
of the government, in the person of the chief magistrate being thus set out of the reach of danger.”

NEXT, as to cases of ordinary public oppression, where the vitals of the constitution are not
attacked, the law has also assigned a remedy. For, as a king cannot misuse his power, without the
advice of evil counselors, and the assistance of wicked ministers, these men may be examined and
punished. The constitution has therefore provided, by means of indictments, and parliamentary
impeachments, that no man shall dare to assist the crown in contradiction to the laws of the land. But
it is at the same time a maxim in those laws, that the king himself can do no wrong; since it would
be a great weakness and absurdity in any system of positive law, to define any possible wrong,
without any possible redress.

FOR, as to such public oppressions as tend to dissolve the constitution, and subvert the fundamentals
of government, they are cases which the law will not, out of decency, suppose; being incapable of
distrusting those, whom it has invested with any part of the supreme power; since such distrust
would render the exercise of that power precarious and impracticable. For, wherever the law
expresses its distrust of abuse of power, it always vests of superior coercive authority in some other
hand to correct it; the very notion of which destroys the idea of sovereignty. If therefore (for
example) the two houses of parliament, or either of them, had avowedly a right to animadvert on the
king, or each other, or if the king had a right to animadvert on the king, or each other, or if the king
had a right to animadvert on either of the houses, that branch of the legislature, so subject to
animadversion, would instantly cease to be part of the supreme power; the balance of the
constitution would be overturned; and that branch or branches, in which this jurisdiction resided,
would be completely sovereign. The supposition of law therefore is, that neither the king nor either

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house of parliament (collectively taken) is capable of doing any wrong; since in such cases the law
feels itself incapable of furnishing any adequate remedy. For which reason all oppressions, which
may happen to spring from any branch of the sovereign power, must necessarily be out of the reach
of any stated rule, or express legal provision: but, if ever they unfortunately happen, the prudence
of the times must provide new remedies upon new emergencies.

INDEED, it is found by experience, that whenever the unconstitutional oppressions, even of the
sovereign power, advance with gigantic strides and threaten desolation to a state, mankind will not
be reasoned out of the feelings of humanity; nor will sacrifice their liberty by a scrupulous adherence
to those political maxims, which were originally established to preserve it. And therefore, though
the positive laws are silent, experience will furnish us with a very remarkable case, wherein nature
and reason prevailed. When king James the second invaded the fundamental constitution of the
realm, the convention declared an abdication, whereby the throne was rendered vacant, which
induced a new settlement of the crown. And so far as this precedent leads, and no farther, we may
now be allowed to lay down the law of redress against public oppression. If therefore any future
prince should endeavor to subvert the constitution by breaking the original contract between king
and people, should violate the fundamental laws, and should withdraw himself out of the kingdom;
we are now authorized to declare that this conjunction of circumstance would amount to an
abdication, and the throne would be thereby vacant. But it is not for us to say, that any one, or two,
of these ingredients would amount to such a situation; for other circumstances which a fertile
imagination may furnish, since both law and history are silent, it becomes us to be silent too; leaving
to future generations, whenever necessity and the safety of the whole shall require it, the exertion
of those inherent (though latent) powers of society, which no climate, no time, no constitution, no
contract, can ever destroy or diminish.

II. BESIDES the attribute of sovereignty, the law also ascribes to the king, in his political capacity,
absolute perfection. The king can do no wrong. Which ancient and fundamental maxim is not to be
understood, as if everything transacted by the government was of course just and lawful, but means
only two things. First, that whatever is exceptionable in the conduct of public affairs is not to be
imputed to the king, nor is he answerable for it personally to his people: for this doctrine would
totally destroy that constitutional independence of the crown, which is necessary for the balance of
power, in our free and active, and therefore compounded, constitution. And, secondly, it means that
the prerogative of the crown extends not to do any injury: it is created for the benefit of the people,
and therefore cannot be exerted to their prejudice.18

THE king, moreover, is not only incapable of doing wrong, but ever of thinking wrong: he can never
mean to do an improper thing: in him is no folly or weakness. And therefore, if the crown should
be induced to grant any franchise or privilege to a subject contrary to reason, or in any wise
prejudicial to the commonwealth, or a private person, the law will not suppose the king to have
meant either an unwise or an injurious action, but declares that the king was deceived in his grant;
and thereupon such grant is rendered void, merely upon the foundation of fraud and deception, either
by or upon those agents, whom the crown has thought proper to employ. For the law will not cast
an imputation on that magistrate whom it entrusts with the executive power, as if he was capable of
intentionally disregarding his trust: but attributes to mere imposition (to which the most perfect of
sublunary beings must still continue liable) those little inadvertencies, which, if charged on the will

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of the prince, might lessen him in the eyes of his subjects.

YET still, notwithstanding this personal perfection, which the law attributes to the sovereign, the
constitution has allowed a latitude of supposing the contrary, in respect to both houses of parliament;
each of which, in its turn, has exerted the right of remonstrating and complaining to the king even
of those acts of royalty, which are most properly and personally his own; such as messages signed
by himself, and speeches delivered from the throne. And yet, such is the reverence which is paid to
the royal person, that though the two houses have an undoubted right to consider these acts of state
in any light whatever, and accordingly treat them in their addresses as personally proceeding from
the prince, yet, among themselves, (to preserve the more perfect decency, and for the greater
freedom of debate) they usually suppose them to flow from the advice of the administration. But the
privilege of canvassing thus freely the personal acts of the sovereign (either directly, or even through
the medium of his reputed advisers) belongs to no individual, but is confined to those august
assemblies; and there too the objections must be proposed with the utmost respect and deference.
One member was sent to the tower,19 for suggesting that his majesty's answer to the address of the
commons contained “high words, to fright the members out of their duty;” and another,20 for saying
that a part of the king's speech “seemed rather to be calculated for the meridian of Germany than
Great Britain,” and that the “king was a stranger to our language and constitution.”

IN farther pursuance of this principle, the law also determines that in the king can be no negligence,
or laches, and therefore no delay will bar his right. Nullum tempus occurrit regi [No time runs
against the king] is the standing maxim upon all occasions: for the law intents that the king is always
busied for the public good, and therefore has not leisure to assert his right within the times limited
to subjects.21 In the king also can be no stain or corruption of blood: for if the heir to the crown were
attainted of treason or felony, and afterwards the crown should descend to him, this would purge the
attainder ipso facto [by that fact].22 And therefore when Henry VII, who as earl of Richmond stood
attainted, came to the crown, it was not thought necessary to pass an act of parliament to reverse this
attainder; because, as lord Bacon in his history of that prince informs us, it was agreed that the
assumption of the crown had at once purged all attainders. Neither can the king in judgment of law,
as king, ever be a minor or under age; and therefore his royal grants and assents to acts of parliament
are good, tough he has not in his natural capacity attained the legal age of twenty one.23 By a statute
indeed, 28 Hen. VIII. c. 17. power was given to future kings to rescind and revoke all acts of
parliament that should be made while they were under the age of twenty four: but this was repealed
by the statute 1 Edw. VI. C. 11. so far as related to that prince; and both statutes are declared to be
determined by 24 Geo. II. c. 24. It has also been usually thought prudent, when the heir apparent has
been very young, to appoint a protector, guardian, or regent, for a limited time: but the very
necessity of such extraordinary provision is sufficient to demonstrate the truth of that maxim of the
common law, that in the king is no minority; and therefore he has no legal guardian.24

III. A THIRD attribute of the king's majesty is his perpetuity. The law ascribes to him, in his
political capacity, an absolute immortality. The king never dies. Henry, Edward, or George may die;
but the king survives them all. For immediately upon the decease of the reigning prince in his natural
capacity, his kingship or imperial dignity, by act of law, without any interregnum or interval, is
vested at once in his heir; who, is, eo instanti [instantly], king to all intents and purposes. And so
tender is the law of supposing even a possibility of his death, that his natural dissolution is generally

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called his demise; demissio regis, vel coronae [demise of the king or crown]: an expression which
signifies merely a transfer of property; for, as is observed in Plowden,25 when we say the demise of
the crown, we mean only that in consequence of the disunion of the king's body natural from his
body politic, the kingdom is transferred or demised to his successor; and so the royal dignity remains
perpetual. Thus too, when Edward the fourth, in the tenth year of his reign, was driven from his
throne for a few months by the house of Lancaster, this temporary transfer of his dignity was
denominated his demise; and all process was held to be discontinued, as upon a natural death of the
king.26

WE are next to consider those branches of the royal prerogative, which invest this our sovereign
lord, thus all-perfect and immortal in his kingly capacity, with a number of authorities and powers;
in the exertion whereof consists the executive part of government. This is wisely placed in a single
hand by the British constitution, for the sake of unanimity, strength and dispatch. Were it placed in
many hands, it would be subject to may wills: many wills, if disunited and drawing different ways,
create weakness in a government: and to unite those several wills, and reduce them to one, is a work
of more time and delay than the exigencies of state will afford. The king of England is therefore not
only the chief, but properly the sole, magistrate of the nation; all others acting by commission from,
and in due subordination to him: in like manner as, upon the great revolution in the Roman state, all
the powers of the ancient magistracy of the commonwealth were concentrated in the new emperor;
so that, as Gravina27 expresses it, “in ejus unius persona veteris reipublicae vis atque majestas per
cumulatas magistratuum potestates exprimebatur.” [“All the power and majesty of the old
commonwealth were concentrated in the person of that one man by the united powers of the
magistrates.”]

AFTER what has been premised in this chapter, I shall not (I trust) be considered as an advocate for
arbitrary power, when I lay it down as a principle, that in the exertion of lawful prerogative, the king
is and ought to be absolute; that is, so far absolute, that there is no legal authority that can either
delay or resist him. He may reject what bills, may make what treaties, may coin what money, may
create what peers, may pardon what offenses he pleases: unless where the constitution has expressly,
or by evident consequence, laid down some exception or boundary; declaring, that thus far the
prerogative shall go and no farther. For otherwise the power of the crown would indeed be but a
name and a shadow, insufficient for the ends of government, if, where its jurisdiction is clearly
established and allowed, any man or body of men were permitted to disobey it, in the ordinary
course of law: I say, in the ordinary course of law; for I do not now speak of those extraordinary
recourses to first principles, which are necessary when the contracts or society are in danger of
dissolution, and the law proves too weak a defense against the violence of fraud or oppression. And
yet the want of attending to this obvious distinction has occasioned these doctrines, of absolute
power in the price and of national resistance by the people, to be much misunderstood and perverted
by the advocates for slavery on the one hand, and the demagogues of faction on the other. The
former, observing the absolute sovereignty and transcendent dominion of the crown laid down (as
it certainly is) most strongly and emphatically in our lawbooks, as well as our homilies, have denied
that any case can be excepted from so general and positive a rule; forgetting how impossible it is,
in any practical system of laws, to pint out beforehand those eccentric remedies, which the sudden
emergence of national distress may dictate, and which that alone can justify. On the other hand,
over-zealous republicans, feeling the absurdity of unlimited passive obedience, have fancifully (or

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sometimes factiously) gone over to the other extreme: and, because resistance is justifiable to the
person of the prince when the being of the state is endangered, and the public voice proclaims such
resistance necessary, they have therefore allowed to every individual the right of determining this
expedience, and of employing private force to resist even private oppression. A doctrine productive
of anarchy, and (in consequence) equally that to civil liberty as tyranny itself. For civil liberty,
rightly understood, consists in protecting the rights of individuals by the united force of society:
society cannot be maintained, and of course can exert no protection, without obedience to some
sovereign power: and obedience is an empty name, it every individual has a right to decide how far
he himself shall obey.

IN the exertion therefore of those prerogatives, which the law has given him, the king is irresistible
and absolute, according to the forms of the constitution. And yet, if the consequence of that exertion
be manifestly to the grievance or dishonor of the kingdom, the parliament will call his advisers to
a just and severe account. For prerogative consisting (as Mr. Locke28 has well defined it) in the
discretionary power of acting for the public good, where the positive laws are silent, if that
discretionary power be abused to the public detriment, such prerogative is exerted in an
unconstitutional manner. Thus the king may make a treaty with a foreign state, which shall
irrevocably bind the nation; and yet, when such treaties have been judged pernicious, impeachments
have pursued those ministers, by whose agency or advice they were concluded.

THE prerogatives of the crown (in the sense under which we are now considering them) respect
either this nation's intercourse with foreign nations, or its own domestic government and civil polity.

WITH regard to foreign concerns, the king is the delegate or representative of his people. It is
impossible that the individuals of a state, in their collective capacity, can transact the affairs of that
state with another community equally numerous as themselves. Unanimity must be wanting to their
measures, and strength to the execution of their counsels. In the king therefore, as in a center, all the
rays of his people are united, and form by that union a consistency, splendor, and power, that make
him feared and respected by foreign potentates; who would scruple to enter into any engagements,
that must afterwards be revised and ratified by a popular assembly. What is done by the royal
authority, with regard to foreign powers, is the act of the whole nation: what is done without the
king's concurrence is the act only of private men. And so far is this point carried by our law, that it
has been held,29 that should all the subjects of England make war with a king in league with the king
of England, without the royal assent, such war is no breach of the league. And, by the statute 2 Hen.
V. c. 6. any subject committing acts of hostility upon any nation in league with the king, was
declared to be guilty of high treason: and, though that act was repealed by the statute 20 Hen. VI.
c. 11. so far as relates to the making this offense high treason, yet still it remains a very great offense
against the law of nations, and punishable by our laws, either capitally or otherwise, according to
the circumstances of the case.

I. THE king therefore, considered as the representative of his people, has the sole power of sending
ambassadors to foreign states, and receiving ambassadors at home. This may lead us into a short
inquiry, how far the municipal laws of England intermeddle with or protect the rights of these
messengers from one potentate to another, whom we call ambassadors.

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THE rights, the powers, the duties, and the privileges of ambassadors are determined by the law of
nature and nations, and not by any municipal constitutions. For, as they represent the persons of their
respective masters, who owe no subjection to any laws but those of their own country, their actions
are not subject to the control of the private law of that state, wherein they are appointed to reside.
He that is subject to the coercion of laws is necessarily dependent on that power by whom those laws
were made: but an ambassador ought to be independent of every power, except that by which he is
sent; and of consequence ought not to be subject to the mere municipal laws of that nation, wherein
he is to exercise his functions. If he gruffly offends, or makes an ill use of his character, he may be
sent home and accused before his master;30 who is bound either to do justice upon him, or avow
himself the accomplice of his crimes.31 But there is great dispute among the writers on the laws of
nations, whether this exemption of ambassadors extends to all crimes, as well nature as positive; or
whether it only extends to such as are mala prohibita, as coining, and not to those that are mala in
se, as murder.32 Our law seems to have formerly taken in the restriction, as well as the general
exemption. For it has been held, both by our common lawyers and civilians,33 that an ambassador
is privileged by the law of nature and nations; and yet, if he commits any offense against the law of
reason and nature, he shall lose his privilege:34 and that therefore, if an ambassador conspires the
death of the king in whose land he is, he may be condemned and executed for treason; but if he
commits any other species of treason, it is otherwise, and he must be sent to his own kingdom.35 And
these positions seem to be built upon good appearance of reason. For since, as we have formerly
shown, all municipal laws act in subordination to the primary law of nature, and, where thy annex
a punishment to natural crimes, are only declaratory of and auxiliary to that law; therefore to this
natural, universal rule of justice ambassadors, as well as other men, are subject in all countries; and
of consequence it is reasonable that wherever they transgress it, there they shall be liable to make
atonement.36 But, however these principles might formerly obtain, the general practice of this
country, as well as of the rest of Europe seems now to have adopted the sentiments of the learned
Grotius, that the security of ambassadors is of more importance than the punishment of a particular
crime.37 And therefore few, if any, examples have happened within a century past, where an
ambassador has been punished for any offense, however atrocious in its nature.

IN respect to civil suits, all the foreign jurists agree, that neither an ambassador, nor any of his train
or comites [attendants], can be prosecuted for any debt or contract in the courts of the kingdom
wherein he is sent to reside. Yet Sir Edward Coke maintains, that, if an ambassador make a contract
which is good jure gentium [law of nations], he shall answer for it here.38 But the truth is, so few
cases (if any) had arisen, wherein the privilege was either claimed or disputed, even with regard to
civil suits, that our law books are silent upon it, previous to the reign of queen Anne; when an
ambassador from Peter the great, czar of Muscovy, was actually arrested, and taken out of his coach
in London,39 for a debt of 50œ which he had there contracted. Instead of applying to be discharged
upon his privilege, he gave bail to the action, and the next day complained to the queen. The persons
who were concerned in the arrest were examined before the privy council (of which the lord chief
justice Holt was at the same time sworn a member)40 and seventeen were committed to prison:41
most of whom were prosecuted by information in the court of queen's bench, at the suit of the
attorney general,42 and at their trial before the lord chief justice were convicted of the facts by the
jury;43 reserving the question of law, how far those facts were criminal, to be afterwards argued
before the judges; which question was never determined. In the mean time the czar resented this
affront very highly, and demanded that the sheriff of Middlesex and all others concerned in the arrest

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should be punished with instant death.44 But the queen (to the amazement of that despotic court
directed her secretary to inform him, “that she could inflict no punishment upon any, the meanest
of the subjects unless warranted by the law of the land, and therefore was persuaded that he would
not insist upon impossibilities.”45 To satisfy however the clamors of the foreign ministers, (who
made it a common cause) as well as to appease the wrath of Peter, a bill was brought into
parliament,46 and afterwards passed into a law,47 to prevent and to punish such outrageous insolence
for the future. And with a copy of his act, elegantly engrossed and illuminated, accompanied by a
letter from the queen, an ambassadors extraordinary48 was commissioned to appear at Moscow,49
who declared “that though her majesty could not inflict such a punishment as was required, because
of the defect in that particular of the former established constitutions of her kingdom, yet, with the
unanimous consent of the parliament, she had caused a new act to be passed, to serve as a law for
the future.” This humiliating step was accepted as a full satisfaction by the czar; and the offenders,
at his request, were discharged from all farther prosecution.

This statute50 recites the arrest which had been made, “in contempt of the protection granted by her
majesty, contrary to the law of nations, and in prejudice of the rights and privileges, which
ambassadors and other public ministers have at all times been thereby possessed of, and ought to
be kept sacred and inviolable:” wherefore it enacts, that for the future all process whereby the person
of any ambassador, or of his domestic or domestic servant, may be arrested, or his goods distrained
or seized, shall be utterly null and void; and the persons prosecuting, soliciting, or executing such
process shall be deemed violators of the law of nations, and disturbers of the public repose; and shall
suffer such penalties and corporal punishment as the lord chancellor and the two chief justices, or
any two of them, shall think fit. But it is expressly provided, that no trader, within the description
of the bankrupt laws, who shall be in the service of any ambassador, shall be privileged or protected
by this act; nor shall any one be punished for arresting an ambassador's servant, unless his name be
registered with the secretary of state, and by him transmitted to the sheriffs of London and
Middlesex. Exceptions, that are strictly conformable to the rights of ambassadors,51 as observed in
the most civilized countries. And, in consequence of this statute, thus enforcing the law of nations,
these privileges are now held to be part of the law of the land, and are usually allowed in the court
of common law.52

II. IT is also the king's prerogative to make treaties, leagues, and alliances with foreign states and
princes. For it is by the law of nations essential to the goodness of a league, that it be made by the
sovereign power;53 and then it is binding upon the whole community: and in England the sovereign
power, quoad hoc [as to this], is vested in the person of the king. Whatever contracts therefore he
engages in, no other power in the kingdom can legally delay, resist, or annul. And yet, lest this
plenitude of authority should be abused to the detriment of the public, the constitution (as was hinted
before) has here interposed a check, by the means of parliamentary impeachment, for the punishment
of such ministers as advise or conclude any treaty, which shall afterwards be judged to derogate
from the honor and interest of the nation.

III. UPON the same principle the king has also the sole prerogative of making war and peace. For
it is held by all the writers on the law of nature and nations, that the right of making war, which by
nature subsisted in every individual, is given up by all private persons that enter into society, and
is vested in the sovereign power:54 and this right is given up not only by individuals, but even by the

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entire body of people, that are under the dominion of a sovereign. It would indeed be extremely
improper, that any number of subjects should have the power of binding the supreme magistrate, and
putting him against his will in a state of war. Whatever hostilities therefore may be committed by
private citizens, the state ought not to be affected thereby; unless that should justify their
proceedings, and thereby become partner in the guilt. Such unauthorized volunteers in violence are
not ranked among open enemies, but are treated like pirates and robbers: according to that rule of
the civil law;55 hostes hi sunt qui nobis, aut quibis nos, publice bellum decrevimus: caeteri latrones
aut praedones sunt. [Those are enemies who have publicly declared war against us, or against whom
we have publicly declared war; all others are thieves or robbers.] And the reason which is given by
Grotius,56 why according to the law of nations a denunciation of war ought always to precede the
actual commencement of hostilities, is not so much that the enemy may be put upon his guard,
(which is matter rather of magnanimity that right) but that it may be certainly clear that the war is
not undertaken by private persons, but by the will of the whole community; whose right of willing
is in this case transferred to the supreme magistrate by the fundamental laws of society. So that, in
order to make a war completely effectual, it is necessary with us in England that it be publicly
declared and duly proclaimed by the king's authority; and, then, all parts of both the contending
nations, from the highest to the lowest, are bound by it. And, wherever the right resides of beginning
a national war, there also must reside the right of ending it, or the power of making peace. And the
same check of parliamentary impeachment, for improper or inglorious conduct, in beginning,
conducting, or concluding a national war, is in general sufficient to restrain the ministers of the
crown from a wanton or injurious exertion of this great prerogative.

IV. BUT, as the delay of making war may sometimes be detrimental to individuals who have
suffered by depredations from foreign potentates, our laws have in some respect armed the subject
with powers to impel the prerogative; by directing the ministers of the crown to issue letters of
marque and reprisal upon due demand: the prerogative of granting which is nearly related to, and
plainly derived from, that other of making war; this being indeed only an incomplete state of
hostilities, and generally ending in a formal denunciation of war. These letters are grantable by the
law of nations,57 whenever the subject of one state are oppressed and injured by those of another;
and justice is denied by that state to which the oppressor belongs. In this case letters or marque and
reprisal (words in themselves synonymous and signifying a taking in return) may be obtained, in
order to seize the bodies or goods of the subjects of the offending state, until satisfaction be made,
wherever they happen to be found. Indeed this custom of reprisals seems dictated by nature herself;
and accordingly we find in the most ancient times very notable instances of it.58 But here the
necessity is obvious of calling in the sovereign power, to determine when reprisals may be made;
else every private sufferer would be a judge in his own cause. And, in pursuance of this principle,
it is with us declared by the statute 4 Hen. V. c. 7. that, it any subjects of the realm are oppressed
in time of truce by any foreigners, the king will grant marque in due form, to all that feel themselves
grieved. Which form is thus directed to be observed: the sufferer must first apply to the lord
privy-seal, and he shall make out letters of request under the privy seal; and, if, after such request
of satisfaction made, the party required do not within convenient time make due satisfaction or
restitution to the party grieved, the lord chancellor shall make him out letters of marque under the
great seal; and by virtue of these he may attack and seize the property of the aggressor nation,
without hazard of being condemned as a robber or pirate.

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V. UPON exactly the same reason stands the prerogative of granting safe-conducts, without which
by the law of nations no member of one society has a right to intrude into another. And therefore
Pufendorf very justly resolves,59 that it is left in the power of all states, to take such measures about
the admissions of strangers, as they think convenient; those being ever excepted who are driven on
the coasts by necessity, or by any cause that deserves pity or compassion. Great tenderness is shown
by our laws, not only to foreigners in distress (as will appear when we come to speak of shipwrecks)
but with regard also to the admissions of strangers who come spontaneously. For so long as their
nation continues at peace with ours, and they themselves behave peaceably, they are under the king's
protection; though liable to be sent home whenever the king sees occasion. But no subject of a
nation at war with us can, by the law of nations, come into the realm, nor can travel himself upon
the high seas, or send his goods and merchandise from one place to another, without danger of being
seized by our subject, unless he had letters of safe-conduct; which by diverse ancient statutes60 must
be granted under the king's great seal and enrolled in chancery, or else are of no effect: the king
being supposed the best judge of such emergencies, as may deserve exception from the general law
of arms. But passports under the king's sign manual, or licenses from his ambassadors abroad, are
now more usually obtained, and are allowed to be of equal validity.

INDEED the law of England, as a commercial country, pays a very particular regard to foreign
merchants in innumerable instances. One I cannot omit to mention: that by magna carta61 it is
provided, that all merchants (unless publicly prohibited beforehand) shall have safe conduct to
depart from, to come into, to tarry in, and to go through England, for the exercise of merchandise,
without any unreasonable imposts, except in time of war: and, if a war breaks out between us and
their country, they shall be attached (if in England) without harm of body or goods, till the king or
his chief justiciary be informed how our merchants are treated in the land with which we are at war;
and, if ours be secure in that land, they shall be secure in ours. This seems to have been a common
rule of equity among all the northern nations; for we learn from Stiernhook,62 that it was a maxim
among the Goths and Swedes, “quam legem exteri nobis posuere, eandem illis ponemus.” [“We
impose the same law on foreign merchants that they impose on us.”] But it is somewhat
extraordinary, that it should have found a place in magna carta, a mere interior treaty between the
king and his natural-born subjects; which occasions the learned Montesquieu to remark with a
degree of admiration, “that the English have made the protection of foreign merchants one of the
articles of their national liberty.”63 But indeed it well justifies another observation which he has
made,64 “that the English know better than any other people upon earth, how to value at the same
time these three great advantages, religion, liberty, and commerce.” Very different from the genius
of the Roman people; who in their manners, their constitution, and even in their laws, treated
commerce as a dishonorable employment, and prohibited the exercise thereof to persons of birth,
or rank, or fortune:65 and equally different from the bigotry of the canonists, who looked on trade
as inconsistent with Christianity,66 and determined at the council of Melfi, under pope Urban II, A.
D. 1090, that it was impossible with a safe conscience to exercise any traffic, or follow the
profession of the law.67

THESE are the principal prerogatives of the king, respecting this nation's intercourse with foreign
nations; in all of which he is considered as the delegate or representative of his people. But in
domestic affairs he is considered in a great variety of characters, and from thence there arises an
abundant number of other prerogatives.

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I. FIRST, he is a constituent part of the supreme legislative power; and, as such, has the prerogative
of rejecting such provisions in parliament, is he judges improper to be passed. The expediency of
which constitution has before been evinced at large.68 I shall only farther remark, that the king is not
bound by any act of parliament, unless he be named therein by special and particular words. The
most general words that can be devised (“any person or persons, bodies politic, or corporate, etc.”)
affect not him in the least, if they may tend to restrain or diminish any of his rights or interests.69 For
it would be of most mischievous consequence to the public, if the strength of the executive power
were liable to be curtailed without its own express consent, by constructions and implications of the
subject. Yet where an act of parliament is expressly made for the preservation of public rights and
the suppression of public wrongs, and does not interfere with the established rights or the crown, it
is said to be binding as well upon the king as upon the subject:70 and, likewise, the king may take
the benefit on any particular act, though he be not especially named.71

II. THE king is considered, in the next place, as the generalissimo, or the first in military command,
within the kingdom. The great end of society is to protect the weakness of individuals by the united
strength of the community: and the principal use of government is to direct that united strength in
the best and most effectual manner, to answer the end proposed. Monarchical government is allowed
to be the fittest of any for this purpose: it follows therefore, from the very end of its institution, that
in a monarchy the military power must be trusted in the hands of the prince.

IN this capacity therefore, of general of the kingdom, the king has the sole power of raising and
regulating fleets and armies. Of the manner in which they are raised and regulated I shall speak
more, when I come to consider the military state. We are now only to consider the prerogative of
enlisting and of governing them: which indeed was disputed and claimed, contrary to all reason and
precedent, by the long parliament of king Charles I; but, upon the restoration of his son, was
solemnly declared by the statute 13 Car. II. c. 6. to be in the king alone: for that the sole supreme
government and command of the militia within all his majesty's realms and dominions, and of all
forces by sea and land, and of all sorts and places of strength, ever was and is the undoubted right
of his majesty, and his royal predecessors, kings and queens of England; and that both or either
house of parliament cannot, nor ought to, pretend to the same.

THIS statute, it is obvious to observe, extends not only to fleets and armies, but also to forts, and
other places of strength, within the realm; the sole prerogative as well of erecting, as manning and
governing of which, belongs to the king is his capacity of general of the kingdom:72 and all lands
were formerly subject to a tax, for building of castles wherever the king thought proper. This was
one of the three things, from contributing to the performance of which no lands were exempted; and
therefore called by our Saxon ancestors the trinoda necessitas: scopontis reparatio, arcis
constructio, et expeditio contra hostem.73 [The threefold obligation: to repair bridges, build towers,
and serve against the enemy.] And this they were called upon to do so often, that, as Sir Edward
Coke from M. Paris assures us,74 there were in the time of Henry II 1115 castles subsisting in
England. The inconvenience of which, when granted out to private subjects, the lordly barons of
those times, was severely felt by the whole kingdom; for, as William of Newbury remarks in the
reign of king Stephen, “erant in Anglia quodammodo tot reges vel potius tyranni quot domini
castellorum” [“there were in England, in effect, as many kings, or rather tyrants, as lords of
castles”]: but it was felt by none more sensibly than by two succeeding princes, king John and king

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Henry III. And therefore, the greatest part of them being demolished in the barons' wars, the kings
of after times have been very cautious of suffering them to be rebuilt in a fortified manner: and Sir
Edward Coke lays it down,75 that no subject can build a castle, or house of strength embattled, or
other fortress defensible, without the license of the king; for the danger which might ensue, if every
man at his pleasure might do it.

It is partly upon the same, and partly upon a fiscal foundation, to secure his marine revenue, that the
king has the prerogative of appointing ports and havens, or such places only, for persons and
merchandise to pass into and out of the realm, as he in his wisdom sees proper. By the feudal law
all navigable rivers and havens were computed among the regalia,76 and were subject to the
sovereign of the state. And in England it has always been held, that the king is lord of the whole
shore,77 and particularly is the guardian of the ports and havens, which are the inlets and gates of the
realm:78 and therefore, so early as the reign of king John, we find ships seized by the king's officers
for putting in at a place that was not a legal port.79 These legal ports were undoubtedly at first
assigned by the crown; since to each of them a court of portmore is incident,80 the jurisdiction of
which must flow from the royal authority: the great ports of the sea are also referred to, as well
known and established, by statute 4 Hen. IV. c. 20. which prohibits the landing elsewhere under pain
of Confiscation: and the statute 1 Eliz. c. 11. recites that the franchise of lading and discharging had
been frequently granted by the crown.

But though the king had a power of granting the franchise of havens and ports, yet he had not the
power of resumption, or of narrowing and confining their limits when once established; but any
person had a right to load or discharge his merchandise in any part of the haven: whereby the
revenue of the customs was much impaired and diminished, by fraudulent landings in obscure and
private corners. This occasioned the statutes of 1 Eliz. c. 11. and 13 & 14 Car. II. c. 11. . 14. which
enable the crown by commission to ascertain the limits of all ports, and to assign proper wharfs and
quays in each port, for the exclusive landing and loading of merchandise.

The erection of beacons, light-houses, and sea-marks, is also a branch of the royal prerogative:
whereof the first were anciently used in order to alarm the country, in case of the approach of an
enemy; and all of them are signally useful in guiding and preserving vessels at sea by night as well
as by day. For this purpose the king has the exclusive power, by commission under his great seal,81
to cause them to be erected in fit and convenient places,82 as well upon the lands of the subject as
upon the demesnes of the crown: which power is usually vested by letters patent in the office of lord
high admiral.83 And by statute 8 Eliz. c. 13. the corporation of the trinity-house are empowered to
set up any beacons or sea-marks wherever they shall think them necessary; and if the owner of the
land or any other person shall destroy them, or shall take down any steeple, tree, or other known
sea-mark, he shall forfeit 100œ or, in case of inability to pay it, shall be ipso facto outlawed.

To this branch of the prerogative may be referred the power vested in his majesty, by statutes 12
Car. II. c. 4. and 29 Geo. II. c. 16. of prohibiting the exportation of arms of ammunition out of this
kingdom, under severe penalties: and likewise the right which the king has, whenever he sees
proper, of confining his subjects to stay within the realm, or of recalling them when beyond the seas.
By the common law,84 every man may go out of the realm for whatever cause he pleases, without
obtaining the king's leave; provided he is under no injunction of staying at home: (which liberty was

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expressly declared in king John's great charter, though left out in that of Henry III) but, because that
every man ought of right to defend the king and his realm, therefore the king at his pleasure may
command him by his writ that he go not beyond the seas, or out of the realm without license; and
if he do the contrary, he shall be punished for disobeying the king's command. Some persons were
anciently were, that, by reason of their stations, were under a perpetual prohibition of going abroad
without license obtained; among which were reckoned all peers, on account of their being counselors
of the crown; all knights, who were bound to defend the kingdom from invasions; all ecclesiastics,
who were expressly confined by cap. 4. of the constitutions of Clarendon, on account of their
attachment in the times of popery to the see of Rome; all archers and other artificers, lest they should
instruct foreigners to rival us in their several trades and manufactures. This was law in the times of
Britton,85 who wrote in the reign of Edward I: and Sir Edward Coke86 gives us many instances to this
effect in the time of Edward III. In the succeeding reign the affair of traveling were a very different
aspect: as act of parliament being made,87 forbidding all persons whatever to go abroad without
license; except only the lords and other great men of the realm; and true and notable merchants; and
the king's soldiers. But this act was repealed by the statute 4 Jac. I. c. 1. And at present every body
has, or at least assumes, the liberty of going abroad when he pleases. Yet undoubtedly if the king,
by writ of ne exeat regnum, under his great seal or privy seal, thinks proper to prohibit him from so
doing; or if the king sends a writ to any man, when abroad, commanding his return; and in either
case the subject disobeys; it is a high contempt of the king's prerogative, for which the offender's
lands shall be seized till he return; and then he is liable to fine and imprisonment.88

III. ANOTHER capacity, in which the king is considered in domestic affairs, is as the fountain of
justice and general conservator of the peace of the kingdom. By the fountain of justice the law does
not mean the author or original, but only the distributor. Justice is not derived from the king, as from
his free gift; but he is the steward of the public, of dispense it to whom it is due.89 He is not the
spring, but the reservoir; from whence right and equity are conducted, by a thousand channels, to
every individual. The original power of judicature, by the fundamental principles of society, is
lodged in the society at large: but as it would be impracticable to render complete justice to every
individual, by the people in their collective capacity, therefore every nation has committed that
power to certain select magistrates, who with more case and expedition can hear and determine
complaints; and in England this authority has immemorially been exercised by the king of his
substitutes. He therefore has alone the right of erecting courts of judicature: for, though the
constitution of the kingdom has entrusted him with the whole executive power of the laws, it is
impossible, as well as improper, that he should personally carry into execution this great and
extensive trust: it is consequently necessary, that courts should be erected, to assist him in executing
this power; and equally necessary, that, if erected, they should be erected by his authority. And
hence it is, that all jurisdictions of courts are either mediately or immediately derived from the
crown, their proceedings run generally in the king's name, they pass under his seal, and are executed
by his officers.

IT is probable, and almost certain, that in very early times, before our constitution arrived at its full
perfection, our kings in person often heard and determined causes between and party. But at present,
by the long and uniform usage of many ages, our kings have delegated their whole judicial power
to the judges of their several courts; which are the grand depositary of the fundamental laws of the
kingdom, and have gained a known and stated jurisdiction, regulated by certain and established

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rules, which the crown itself cannot now alter but by act of parliament.90 And, in order to maintain
both the dignity and independence of the judges in the superior courts, it is enacted by the statute
13 W. III. c. 2. that their commissions shall be made (not, as formerly, durante bene placito [during
pleasure], but) quamdiu bene se gesserint [so long as they act uprightly], and their salaries
ascertained and established; but that it may be lawful to remove them on the address of both houses
of parliament. And now, by the noble improvements of that law in the statute of 1 Geo. III. c. 23.
enacted at the earnest recommendation of the king himself from the throne, the judges are continued
in their offices during their good behavior, notwithstanding any demise of the crown (which was
formerly held91 immediately to vacate their seats) and their full salaries are absolutely secured to
them during the continuance of their commissions: his majesty having been pleased to declare, that
“he looked upon the independence and uprightness of the judges, as essential to the impartial
administration of justice; as one of the best securities of the rights and liberties of his subjects; and
as most conducive to the honor of the crown.”92

IN criminal proceedings, or prosecutions for offenses, it would still be a higher absurdity, if the king
personally sat in judgment; because in regard to these he appears in another capacity, that of
prosecutor. All offenses are either against the king's peace, or his crown and dignity; and are so laid
in every indictment. For, though in their consequences they generally seem (except in the case of
treason and a very few others) to be rather offenses against the kingdom than the king; yet, as the
public, which is an invisible body, has delegated all its power and rights, with regard to the
execution of the laws, to one visible magistrate, all affronts to that power, and breaches of those
rights, are immediately offenses against him, to whom they are so delegated by the public. He is
therefore the proper person to prosecute for all public offenses and breaches of the peace, being the
person injured in the eye of the law. And this notion was carried for far in the old Gothic
constitution, (wherein the king was bound by his coronation oath to conserve the peace that in case
of any forcible injury offered to the person of a fellow subject, the offender was accused of a kind
of perjury, in having violated the king's coronation oath; dicebatur fregisse juramentum regis
juratum.93 [He was said to have broken the sworn oath of the king.] And hence also arises another
branch of the prerogative, that of pardoning offenses; for it is reasonable that he only who is injured
should have the power of forgiving. Of prosecutions and pardons I shall treat more at large
hereafter; and only mention them here, in this cursory manner, to show the constitutional grounds
of this power of the crown, and how regularly connected all the links are in this vast chain of
prerogative.

IN this distinct and separate existence of the judicial power, in a peculiar body of men, nominated
indeed, but not removable at pleasure, by the crown, consists one main preservative of the public
liberty; which cannot subsist long in any state, unless the administration of common justice be in
some degree separated both from the legislative and also from the executive power. Were it joined
with the legislative, the life, liberty, and property, of the subject would be in the hands of arbitrary
judges, whose decisions would be then regulated only by their own opinions, and not by any
fundamental principles of law; which, though legislators may depart from, yet judges are bound to
observe. Were it joined with the executive, this union might soon be an overbalance for the
legislative. For which reason, by the statute of 16 Car. I. c. 10. which abolished the court of star
chamber. Effectual care is taken to remove all judicial power out of the hands of the king's privy
council; who, as then was evident from recent instances, might soon be inclined to pronounce that

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for law, which was most agreeable to the prince or his officers. Nothing therefore is more to be
avoided, in a free constitution, than uniting the provinces of a judge and minister of state. And
indeed, that the absolute power, claimed and exercised n a neighboring nation, is more tolerable than
that of the eastern empires, is in great measure owing to their having vested the judicial power in
their parliaments, a body separate and distinct from both the legislative and executive: and, if ever
that nation recovers its former liberty, it will owe it to the efforts of those assemblies. In Turkey,
where everything is centered in the sultan or his ministers, despotic power is in its meridian, and
wears a more dreadful aspect.

A CONSEQUENCE of this prerogative is the legal ubiquity of the king. His majesty, in the eye of
the law, is always present in all his courts, though he cannot personally distribute justice.94 His
judges are the mirror by which the king's image is reflected. It is the regal office, and not the royal
person, that is always present in court, always ready to undertake prosecutions, or pronounce
judgment, for the benefit and protection of the subject. And from this ubiquity it follows, that the
king can never be nonsuit;95 for a nonsuit is the desertion of the suit or action by the non-appearance
of the plaintiff in court. For the same reason also, in the forms of legal proceedings, the king is not
said to appear by his attorney, as other men do; for he always appears in contemplation of law in his
own proper person.96

FROM the same original, of the king's being the fountain of justice, we may also deduce the
prerogative of issuing proclamations, which is vested in the king alone. These proclamations have
then a binding force, when (as Sir Edward Coke observes97) they are grounded upon and enforce the
laws of the realm. For, though the making of laws is entirely the work of a distinct part, the
legislative branch, of the sovereign power, yet the manner, time, and circumstances of putting those
laws in execution must frequently be left to the discretion of the executive magistrate. And therefore
his constitutions or edicts, concerning these points, which we call proclamations, are binding upon
the subject, where they do not either contradict the old laws, or tend to establish new ones; but only
enforce the execution of such laws as are already in being, in such manner as the king shall judge
necessary. Thus the established law is, that the king may prohibit any of his subjects from leaving
the realm: a proclamation therefore forbidding this in general for three weeks, by laying an embargo
upon all shipping in time of war,98 will be equally binding as an act of parliament, because founded
upon a prior law. A proclamation for disarming papists99 is also binding, being only in execution of
what the legislature has first ordained: but a proclamation for allowing arms to papists, or for
disarming any protestant subject, will not bind; because the first would be to assume a dispensing
power, the latter a legislative one; to the vesting of either of which in any single person the laws of
England are absolutely strangers. Indeed by the statute 31 Hen. VIII. c. 8. it was enacted, that the
king's proclamations should have the force of acts of parliament: a statute, which was calculated to
introduce the most despotic tyranny; and which must have proved fatal to the liberties of this
kingdom, had it not been luckily repealed in the minority of his successor, about five years after.

IV. THE king is likewise the fountain of honor, of office, and of privilege: and this in a different
sense from that wherein he is styled the fountain of justice; for here he is really the parent of them.
It is impossible that government can be maintained without a due subordination of rank; that the
people may know and distinguish such as are set over them, in order to yield them their due respect
and obedience; and also that the officers themselves, being encouraged by emulation and the hopes

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of superiority, may the better discharge their functions: and the law supposes, that no one can be so
good a judge of their several merits and services, as the king himself who employs them. It has
therefore entrusted with him the sole power of conferring dignities and honors, in confidence that
he will bestow them upon none, but such as deserve them. And therefore all degrees of nobility, of
knighthood, and other titles, are received by immediate grant from the crown: either expressed in
writing, by writs or letters patent, as in the creations of peers and baronets; or by corporeal
investiture, as in the creation of a simple knight.

FROM the same principle also arises the prerogative of erecting and disposing of offices: for honors
and offices are in their nature convertible and synonymous. All offices under the crown carry in the
eye of the law an honor along with them; because they imply a superiority of parts and abilities,
being supposed to be always filled with those that are most able to execute them. And, on the other
hand, all honors in their original had duties or offices annexed to them: an earl, comes, was the
conservator or governor of a county; and a knight, miles, was bound to attend the king in his wars.
For the same reason therefore that honors are in the disposal of the king, offices ought to be so
likewise; and as the king may create new titles, so may he create new offices: but with this
restriction, that he cannot create new offices with new fees annexed to them, nor annex new fees to
old offices; for this would be a tax upon the subject, which cannot be imposed but by act of
parliament.100 Wherefore, in 13 Hen. IV, a new office being created by the king's letters patent for
measuring cloths, with a new fee for the same, the letters patent were, on account of the new fee,
revoked and declared void in parliament.

UPON the same, or a like reason, the king has also the prerogative of conferring privileges upon
private persons. Such as granting place or precedence to any of his subjects, as shall seem good to
his royal wisdom:101 or such as converting aliens, or persons born out of the king's dominions, into
denizens; whereby some very considerable privileges of natural-born subjects are conferred upon
them. Such also is the prerogative of erecting corporations; whereby a number of private persons
are united and knit together, and enjoy many liberties, powers, and immunities in their politic
capacity, which they were utterly incapable of in their natural. Of aliens, denizens, natural-born, and
naturalized subjects, I shall speak more largely in a subsequent chapter; as also of corporations at
the close of this book of our commentaries. I now only mention them incidentally, in order to remark
the king's prerogative of making them; which is grounded upon this foundation, that the king, having
the sole administration of the government in his hands, in the best and the only judge, in what
capacities, with what qualified to serve, and to act under what distinctions, his people are the best
qualified to serve, and to act under him. A principle, which was carried so far by the imperial law,
that it was determined to be the crime of sacrilege, even to doubt whether the prince and appointed
proper officers in the state.102

V. ANOTHER light in which the laws of England consider the king with regard to domestic
concerns, is as the arbiter of commerce. By commerce, I at present mean domestic commerce only.
It would lead me into too large a field, if I were to attempt to enter upon the nature of foreign trade,
its privileges, regulations, and restrictions; and would be also quite beside the purpose of these
commentaries, which are confined to the laws of England. Whereas no municipal laws can be
sufficient to order and determine the very extensive and complicated affairs of traffic and
merchandise; neither can they have a proper authority for this purpose. For as these are transactions

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carried on between the subjects of independent states, the municipal laws of one will not be regarded
by the other. For which reason the affairs of commerce are regulated by a law of their own, called
the law merchant or lex mercatoria, which all nations agree in and take notice of. And in particular
the law of England does in many cases refer itself to it, and leaves the causes of merchants to be
tried by their own peculiar customs; and that often even in matters relating to inland trade, as for
instance with regard to the drawing, the acceptance, and the transfer, of bills of exchange.103

WITH us in England, the king's prerogative, for far as it relates to mere domestic commerce, will
fall principally under the following articles:

FIRST, the establishment of public marts, or places of buying and selling, such as markets and fairs,
with the tolls thereunto belonging. These can only be set up by virtue of the king's grant, or by long
and immemorial usage and prescription, which presupposes such a grant.104 The limitation of these
public resorts, to such time and such place as may be most convenient for the neighborhood, forms
a part of economics, or domestic polity; which, considering the kingdom as a large family, and the
king as the master of it, he clearly has a right to disposed and order as he pleases.

SECONDLY, the regulation of weights and measures. These for the advantage of the public, ought
to be universally the same duce all things to the same or an equivalent value. But, as weight and
measure are things in their nature arbitrary and uncertain, it is therefore expedient that they be
reduced to some fixed rule or standard: which standard it is impossible to fix by any written law or
oral proclamation; for no man can, by words only, give another an adequate idea of a foot-rule, or
a pound-weight. It is therefore necessary to have recourse to some visible, palpable, material
standard; by forming a comparison with which, all weights and measures may be reduced to one
uniform size: and the prerogative of fixing this standard, our ancient law vested in the crown; as in
Normandy it belonged to the duke.105 This standard was originally kept at Winchester: and we find
in the laws of king Edgar,106 near a century before the conquest, an injunction that the one measure,
which was kept at Winchester, should be observed throughout the realm. Most nations have
regulated the standard of measures of length by comparison with the parts of the human body; as the
palm, the hand, the span, the foot, the cubit, the ell (ulna, or arm) the pace, and the fathom. But, as
these are of different dimensions in men of different proportions, our ancient historians107 inform us,
that a new standard of longitudinal measure was ascertained by king Henry the first; who
commanded that the ulna or ancient ell, which answers to the modern year, should be made of the
exact length of his own arm. And, one standard of measures of length being gained, all others are
easily derived from thence; those of greater length by multiplying, those of less by subdividing, that
original standard. Thus, by the statute called compositio ulnarum et perticarum [the composition of
yards and perches], five years and an half make a perch; and the yard is subdivided into three feet,
and each foot into twelve inches; which inches will be each of the length of three gains of barley.
Superficial measures are derived by squaring those of length; and measures of capacity by cubing
them. The standard of weights was originally taken from corns of wheat, whence the lowest
denomination of weights we have is still called a grain; thirty two of which are directed, by the
statute called compositio mensurarum [the composition of measures], to compose a penny weight,
whereof twenty make an ounce, twelve ounces a pound, and so upwards. And upon these principles
the first standards were made; which, being originally so fixed by the crown, their subsequent
regulations have been generally made by the king in parliament. Thus, under king Richard I, in his

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parliament held at Westminster, A. D. 1197, it was ordained that there shall be only one weight and
one measure throughout the kingdom, and that the custody of the assize or standard of weights and
measures shall be committed to certain persons in every city and borough;108 from whence the
ancient office of the king's aulnager seems to have been derived, whose duty it was, for a certain fee,
to measure all cloths made for sale, till the office was abolished by the statute II & 12 W. III. c. 20.
In king John's time this ordinance of king Richard was frequently dispensed with for money;109
which occasioned a provision to be made for enforcing it, in the great charters of king John and his
son.110 These original standards were called pondus regis [the king's weight],111 and mensura domini
regis [the king's measure];112 and are directed by a variety of subsequent statutes to be kept in the
exchequer, and all weights and measures to be made conformable thereto.113 But, as Sir Edward
Coke observes,114 though this has so often by authority of parliament been enacted, yet it could never
be effected; for forcible is custom with the multitude, when it has gotten an head.

THIRDLY, as money is the medium of commerce, it is the king's prerogative, as the arbiter of
domestic commerce, to give it authority or make it current. Money is an universal medium, or
common standard, by comparison with which the value of all merchandise may be ascertained: or
it is a sign, which represents the respective values of all commodities. Metals are well calculated for
this sign, because they are durable and are capable of many subdivisions: and a precious metal is still
better calculated for this purpose, because it is the most portable. A metal is also the most proper for
a common measure, because it can easily be reduced to the same standard in all nations; and every
particular nation fixed on its own impression, that the weight and standard (wherein consists the
intrinsic value) may both be known by inspection only.

AS the quantity of precious metals increases, that is, the more of them there is extracted from the
mine, this universal medium or common sign will sink in value, and grow less precious. Above a
thousand millions of bullion are calculated to have been imported into Europe from America within
less than three centuries; and the quantity is daily increasing. The consequence is, that more money
must be given now for the same commodity than was given an hundred years ago. And, if any
accident was to diminish the quantity of gold and silver, their value would proportionally rise. A
horse, that was formerly worth ten pounds, is now perhaps worth twenty; and, by any failure of
current specie, the price may be reduced to what it was. Yet is the horse in reality neither dearer nor
cheaper at one time than another: for, if the metal which constitutes the coin was formerly twice as
scarce as at present, the commodity was then as dear at half the price, as now it is at the whole.

THE coining of money is in all states the act of the sovereign power; for the reason just mentioned,
that its value may be known on inspection. And with respect to coinage in general, there are three
things to be considered therein; the materials, the impression, and the denomination.

WITH regard to the materials, Sir Edward Coke lays it down,115 that the money of England must
either be of gold or silver; and none other was ever issued by the royal authority till 1672, when
copper farthings and half-pence were coined by king Charles the second, and ordered by
proclamation to be current in all payments, under the value of six-pence, and not otherwise. But this
copper coin is not upon the same footing with the other in many respects, particularly with regard
to the offense of counterfeiting it. As to the impression, the stamping thereof is the unquestionable
prerogative of the crown: for, though diverse bishops and monasteries had formerly the privilege

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of coining money, yet, as Sir Matthew Hale observes,116 this was usually done by special grant from
the king, or by prescription which supposes one; and therefore was derived from, and not in
derogation of, the royal prerogative. Besides that they had only the profit of the coinage, and not the
power of instituting either the impression or denomination; but had usually the stamp sent them from
the exchequer.

THE denomination, or the value for which the coin is to pass current, is likewise in the breast of the
king; and, if any unusual pieces are coined, that value must be ascertained by proclamation. In order
to fix the value, the weight, and the fineness of the metal are to be taken into consideration together.
When a given weight of gold or silver is of a given fineness, it is then of the true standard, and called
sterling metal; a name for which there are various reasons given,117 but none of them entirely
satisfactory. And of this sterling metal all the coin of the kingdom must be made by the statute 25
Edw. III. c. 13. So that the king's prerogative seems not to extend to the debasing or enhancing the
value of the coin, below or above the sterling value:118 though Sir Matthew Hale appears to be of
another opinion.119 The king may also, by his proclamation, legitimate foreign coin, and make it
current here: declaring at what value it shall be taken in payments.120 But this, I apprehend, ought
to be by comparison with the standard of our own coin; otherwise the consent of parliament will be
necessary. There is at present no such legitimated money; Portugal coin being only current by
private consent, so that any one who pleases may refuse to take it in payment. The king may also
at any time decry, or cry down, any coin of the kingdom, and make it no longer current.121

VI. THE king is, lastly, considered by the laws of England as the head and supreme governor of the
national church.

TO enter into the reasons upon which this prerogative is founded is matter rather of divinity than
of law. I shall therefore only observe that by statute 26 Hen. VIII. c. 1. (reciting that the king's
majesty justly and rightfully is and ought to be the supreme head of the church of England; and so
had been recognized by the clergy of this kingdom in their convocation) it is enacted, that the king
shall be reputed the only supreme head in earth of the church of England, and shall have, annexed
to the imperial crown of this realm, as well the titles and stile thereof, as all jurisdictions, authorities,
and commodities, to the said dignity of supreme head of the church appertaining. And another
statute to the same purport was made, 1 Eliz. c. 1.

IN virtue of this authority the king convenes, prorogues, restrains, regulates, and dissolves all
ecclesiastical synods or convocations. This was an inherent prerogative of the crown, long before
the time of Henry VIII, as appears by the statute 8 Hen. VI. c. 1. and the many authors, both lawyers
and historians, vouched by Sir Edward Coke.122 So that the statute 25 Hen. VIII. c. 19. which
restrains the convocation from making or putting in execution any canons repugnant to the king's
prerogative, or the laws, customs, and statutes of the realm, was merely declaratory of the old
common law: that part of it only being new, which makes the king's royal assent actually necessary
to the validity of every canon. The convocation or ecclesiastical synod, in England, differs
considerably in its constitution from the synods of other Christian kingdoms: those consisting wholly
of bishops; whereas with us the convocation is the miniature of a parliament, wherein the archbishop
presides with regal state; the upper house of bishops represents the house of lords; and the lower
house, composed of representative of the several dioceses at large, and of each particular chapter

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therein, resembles the house of commons with its knights of the shire and burgesses.123 This
constitution is said to be owing to the policy of Edward I; who thereby at one and the same time let
in the inferior clergy to the privilege of forming ecclesiastical canons, (which before they had not)
and also introduced a method of taxing ecclesiastical benefices, by consent of convocation.124

FROM this prerogative also of being the head of the church arises the king's right of nomination to
vacant bishoprics, and certain other ecclesiastical preferments; which will better be considered when
we come to treat of the clergy. I shall only here observe, that this is now done in consequence of the
statute 25 Hen. VIII. c. 20.

AS head of the church, the king is likewise the dernier resort in all ecclesiastical causes; an appeal
lying ultimately to him in chancery from the sentence of every ecclesiastical judge: which right was
restored to the crown by statute 25 Hen. VIII. c. 19. as will more fully be shown hereafter.

NOTES

1. chap. 1. page 137.

2. Dewes. 479.
3. Ibid. 645.
4. King James's works. 557, 531.
5. Finch. L. 84, 85.
6. Bract. l. 3. tr. 1. c. 9.
7. Nov. 105 §. 2.
8. Ff. 32. 1. 23.
9. Finch. L. 85.
10. Peregrix. de jure fisc. l. 1. c. 1. num. 9.
11. l. 1. c. 8.
12. Seld. tit. of hon. 1. 2.
13. Rex allegavit, quod ipse omnes libertates haberet in regno suo, quas imperator vindicabat in imperio. [The king alleged
that he should possess the same privileges in his kingdom as an emperor claimed in his empire.] (M. Paris, A. D. 1095.)
14. Finch. L. 83.
15. Finch. L. 255.
16. Law of N. and N. 1. 8. c. 10.
17. on Gov. p. 2. §. 205.
18. Plowd. 487.
19. Com. Journ. 18 Nov. 1685.
20. Com. Journ. 4 Dec. 1717.
21. Finch. L. 82. Co. Litt. 90 b.

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22. Finch. L. 82.

23. Co. Litt. 43.
24. The methods of appointing this guardian or regent have been so various, and the duration of his power so uncertain, that
from thence alone it may be collected that his office is unknown to the common law; and therefore (as Sir Edward Coke says,
4 Inst. 58.) the surest way is to have him made by authority of the great council in parliament. The earl of Pembroke by his
own authority assumed, in very troublesome times, the regency of Henry III, who was then only nine years old; but was
declared of full age by the pope at seventeen, confirmed the great charter at eighteen, and took upon him the administration
of the government at twenty. A guardian and council of regency were named for Edward III, by the parliament which deposed
his father; the young king being them fifteen, and not assuming the government till three years after. When Richard II
succeeded at the age of eleven, the duke of Lancaster took upon him the management of the kingdom, till the parliament met,
which appointed a nominal council to assist him. Henry V on his death-bed named a regent and a guardian for his infant son
Henry VI, then nine months old: but the parliament altered his disposition, and appointed a protector and council, with a
special limited authority. Both these princes remained in a state of pupilage till the age of twenty three. Edward V, at the age
of thirteen, was recommended by his father to the care of the duke of Gloucester; who was declared protector by the privy
council. The statutes 25 Hen. VIII. c. 12. and 28 Hen. VIII. c. 7. provided, that the successor, if a male and under eighteen,
or if a female and under sixteen, should be till such age in the governance of his or her natural mother, (if approved by the
king) and such other counselors as his majesty should by will or otherwise appoint: and he accordingly appointed his sixteen
executors to have the government of is son, Edward VI, and the kingdom; which executors elected the earl of Hertford
protector. The statute 24 Geo. II. c. 24. in case the crown should descend to any of the children of Frederick late prince of
Wales under the age of eighteen, appoints the princess dowager; –– and that of 5 Geo. III. c. 27. in case of a like descent to
any of his present majesty's children, empowers the king to name either the queen, the princess dowager, or any descendant
of king George II residing in this kingdom; –– to be guardian and regent, till the successor attains such age, assisted by a
council of regency: the powers of them all being expressly defined and set down in the several acts.
25. Plowd. 177. 234.
26. M. 49 Hen. VI. pl. 1–8.
27. Orig. 1. §. 105.
28. on Gov. 2. §. 166.
29. 4 Inst. 152.
30. As was done with count Gyllenberg the Swedish minister to Great Britain, A. D. 1716.
31. Sp. L. 26. 21.
32. Van Leeuwen in Ff. 50. 7. 17. Barbeyrac's Puf. 1. 8. c. 9. & 17. Van Bynkershoek de foro legator. c. 17, 18, 19.
33. 1 Roll. Rep. 175. 3 Bulstr. 27.
34. 4 Inst. 153.
35. 1 Roll. Rep. 185.
36. Foster's reports. 188.
37. Securitas legatorum utilitati quae ex poena est praeponderat. [The security of ambassadors is of more importance than
the punishment of a particular crime.] De jur. b. & p. 2. 18. 4. 4.
38. 4 Inst, 153.
39. 21 July. 1708. Boyer's annals of queen Anne.
40. 25 July. 1708. ibid.
41. 25, 29 Jul. 1708. ibid.
42. 23 Oct. 1708. ibid.

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William Blackstone: Vol. 1, Commentaries on the Laws of England (1765) Page 165

43. 14 Feb. 1708. ibid.

44. 17 Sept. 1708. ibid.45. 11 Jan. 1708. ibid. Mod. Un. Hist. xxxv. 454.
46. Com. journ. 1708.
47. 21 Apr. 1709. Boyer, ibid.
48. Mr. Whitworth.
49. 8 Jan. 1709. Boyer, ibid.
50. 7 Ann. c. 12.
51. Saepe quaesitum est an comitum numero et jure habendi sunt, qui legatum comitantur, non ut instructior fiat legatio,
sed unicè ut lucro suo consulant, institores forte et mercatores. Et quamvis hos saepe defenderint et comitum loco habere
voluerint legati, apparet tamen satis eo non pertinere, qui in legati legationisve officio non sunt. Quum autem ea res
nonnunquam turban dederit, optimo exemplo in quibusdam aulis olim receptum fuit, ut legatus teneretur exhibere
nomenclaturam comitum suorum. [It was often a question whether they who accompanied the ambassador, not that the
embassy might be better appointed, but merely to consult their own advantage, perhaps as hucksters and merchants, should
be reckoned in the number and enjoy the rights of his train. And although the ambassadors often protected them, and wished
to reckon them in the number of their suite, yet it is evident that they who are neither in the office of ambassador, nor
employed in the embassy, do not belong to it. But as this frequently caused disturbances, it was formerly adjudged in some
courts the best mode of proceeding, that the ambassador should be bound to shew a list of the names of his attendants.] Van
Bynkersh. c. 15. propc finem.
52. Fitzg. 200. Stra. 797.
53. Puf. L. of N. b. 8. c. 9. §. 6.
54. Puf. l. 8. c. 6. §. 8. and Barbeyr. in loc.
55. Ff. 50. 16. 118.
56. de jur. b. & p. l. 3. c. 3. §. 11.
57. Grot. de jur. b. & p. l. 3. c. 2. §. 4 & 5.
58. See the account given by Nestor, in the eleventh book of the Iliad, of the reprisals made by himself on the Epeian nation;
from whom he took a multitude of cattle, as a satisfaction for a prize won at the Elian games by his father Neleus, and for
debts due to many private subjects of the Pylian kingdom: our of which booty the king took three hundred head of cattle for
his own demand, and the rest were equitably divided among the other creditors.
59. Law of N. and N. b. 3. c. 3. §. 9.
60. 15 Hen. VI. c. 3. 18 Hen. VI. c. 8. 30 Hen. VI. c. 1.
61. c. 30.
62. de jure Suton. l. 2. c. 4.
63. Sp. L. 20. 13.
64. Sp. L. 20. 6.
65. Nobiliores natalibus, et honorum luce conspicuos, et patrimonio ditiores, perniciosum urbibus mercimonium exercere
prohibemus. [We forbid those who are noble by birth, conspicuous from the splendor of their honors, and wealthy in their
patrimony, to exercise traffic, so pernicious to cities.] C. 4. 63. 3.
66. Homo mercator vix aut nunquam potest Deo placere: et ideo nullus Christianus debet esse mercator; aut si voluerit esse,
projiciatur de ecclesia Dei. [A trader can seldom or never please God; therefore, no Christian ought to be a trader; or, if he
will be one, he should be cast out from the church of God.] Decret. 1. 88. 11.

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William Blackstone: Vol. 1, Commentaries on the Laws of England (1765) Page 166

67. Falsa fit poenitentia [laici] cum penitus ab officio curiali vel negotiali non recedit, quae sine peccatis agi ulla ratione
non praevalet. [The repentance (of a layman) becomes fallacious if he quit not entirely the professions of law and traffic,
which it is impossible to exercise in any manner without sin.] Act. Concil. Apud Baron. c. 16.
68. ch. 2. pag. 149.
69. 11 Rep. 74 b.
70. 11 Rep. 71.
71. 7 Rep. 32.
72. 2 Inst. 30.
73. Cowel's interpr. tit, casteilorum operatio. Seld. Fan. Angl. 1. 42.
74. 2 Inst. 31.
75. 1 Inst. 5.
76. 2 Feud. t. 56. Crag. 1. 15. 15.
77. F. N. B. 113.
78. Dav. 9. 56.
79. Madox hist. exch. 530.
80. 4 Inst. 148.
81. 3 Inst. 204. 4. Inst. 148.
82. Rot. Clauf. 1 Ric. II. m. 42. Pryn. on. 4 Inst. 136.
83. 1 Sid. 158. r. Inst. 149.
84. F. N. B. 85.
85. c. 123.
86. 3 Inst. 175.
87. 5 Ric. II. c. 2.
88. 1 Hawk. P. C. 22.
89. Ad hoc autem creatus est et electus, ut justitiam faciat universis. [But he is created and chosen for the purpose of
dispensing justice to all.] Bract. l. 3. tr. 1. c. 9.
90. 2 Hawk. P. C. 2.
91. Ld Raym. 747.
92. Com. Journ. 3 Mar. 1761.
93. Stiernh. de jure Goth. l. 3. c. 3. A notion somewhat similar to this may be found in the mirrour. c. 1. §. 5.
94. Fortesc. c. 8. 2 Inst. 186.
95. Co. Litt. 139.
96. Finch. L. 81.
97. 3 Inst. 162.
98. 4 Mod. 177, 179.

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William Blackstone: Vol. 1, Commentaries on the Laws of England (1765) Page 167

99. Stat. 1 Edw. VI. c. 12.

100. 2 Inst. 533.
101. 4 Inst. 361.
102. Disputare de principali judicio non oportet; sacrilegii enim instar est, dubitare an is dignus sit quem eligerit
imperator. [It is not fit to dispute the judgment of the prince; for it is a kind of sacrilege to doubt the eligibility of him whom
the emperor has chosen.] C. 9. 29. 3.
103. Co. Litt. 172. Ld Raym. 181. 1542.
104. 2 Inst. 220.
105. Gr. Coustum. C. 16.
106. cap. 8.
107. William of Malmfb. in vita hen. I. Spelm. Hen. I. ap. Wilkins. 299.
108. Hoved. Matth. Paris.
109. Hoved. A. d. 1201.
110. 9 Hen. III. c. 25.
111. Plac. 35 Edw. I. apud Cowel's Interpr. tit. pondus regis.
112. Flet. 2. 12.
113. 14 Edw. III. St. 1. c. 12. 25 Edw. III. St. 5. c. 10. 16 Rip. II. c. 3. 8 Hen. VI. c. 5. 11 Hen. VI. c. 8. 21 Hen. VII. c. 4.
33 Car. II. c. 8.
114. 2 Inst. 41.
115. 2 Inst. 577.
116. 1 hist. P. C. 191.
117. Spelm. Gloss. 203.
118. 2 Inst. 277.
119. 1 H. P. C. 194.
120. Ibid. 197.
121. Ibid.
122. 4 Inst. 322, 323.
123. In the diet of Sweden, where the ecclesiastics form one of the branches of the legislature, the chamber of the clergy
resembles the convocation of England. It is composed of the bishops and superintendents; and also of deputies, one of which
is chosen by every ten parishes or rural deanery. Mod. Un. hist. xxxiii. 18.
124. Gilb. hist. of exch. c. 4.

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William Blackstone: Vol. 1, Commentaries on the Laws of England (1765) Page 168

CHAPTER 8
Of the King's Revenue

HAVING, in the preceding chapter, considered at large those branches of the king's prerogative,
which contribute to his royal dignity, and constitute the executive power of the government, we
proceed now to examine the king's fiscal prerogatives, or such as regard his revenue; which the
British constitution has vested in the royal person, in order to support his dignity and maintain his
power: being a portion which each subject contributes of his property, in order to secure the
remainder.

THIS revenues is either ordinary, or extraordinary. The king's ordinary revenue is such, as has either
subsisted time out of mind in the crown; or else has been granted by parliament, by way of purchase
or exchange for such of the king's inherent hereditary revenues, as were found inconvenient to the
subject.

WHEN I say that it has subsisted time out of mind in the crown, I do not mean that the king is at
present in the actual possession of the whole of this revenue. Much (nay, the greatest part) of it is
at this day in the hands of subjects; to whom it has been granted out from time to time by the kings
of England: which has rendered the crown in some measure dependent on the people for its ordinary
support and subsistence. So that I must be obliged to recount, as part of the royal revenue, what lords
of manors and other subjects frequently look upon to be their own absolute rights, because they are
and have been vested in them and their ancestors for ages, though in reality originally derived from
the grants of our ancient princes.

I. THE first of the king's ordinary revenues, which I shall take notice of, is of an ecclesiastical king;
(as are also the three succeeding ones) viz. the custody of the temporalties of bishops; by which are
meant all the lay revenues, lands, and tenements (in which is included his barony) which belong to
an archbishop's or bishop's fee. And these upon the vacancy of the bishopric are immediately the
right of the king, as a consequence of his prerogative in church matters; whereby he is considered
as the founder of all archbishoprics and bishoprics, to whom during the vacancy they revert. And
for the same reason, before the dissolution of abbeys, the king had the custody of the temporalties
of all such abbeys and priories as were of royal foundation (but not of those founded by subjects)
on the death of the abbot or prior.1 Another reason may also be given, why the policy of the law has
vested this custody in the king; because, as the successor is not known, the lands and possessions
of the fee would be liable to spoil and devastation, if no one had a property therein. Therefore the
law has given the king, not the temporalties themselves, but the custody of the temporalties, till such
time as a successor is appointed; with power of taking to himself all the intermediate profits, without
any account to the successor; and with the right of presenting (which the crown very frequently
exercises) to such benefices and other preferments as fall within the time of vacation.2 This revenue
is of so high a nature, that it could not be granted out to a subject, before, or even after, it accrued:
but now by the statute 14 Edw. III. St. 4. c. 4 & 5. the king may, after the vacancy, lease the
temporalties to the dean and chapter; saving to himself all advowsons, escheats, and the like. Our
ancient kings, and particularly William Rufus, were not only remarkable for keeping the bishoprics
a long time vacant, for the sake of enjoying the temporalties, but also committed horrible waste on
the woods and other parts of the estate; and, to crown all, would never, when the fee was filled up,

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William Blackstone: Vol. 1, Commentaries on the Laws of England (1765) Page 169

restore to the bishop his temporalties again, unless he purchased them at an exorbitant price. To
remedy which, king Henry the first3 granted a charter at the beginning of his reign, promising neither
to sell, nor let to farm, nor take anything from, the domains of the church, till the successor was
installed. And it was made one of the articles of the great charter,4 that no waste should be
committed in the temporalties of bishoprics, neither should the custody of them be sold. The same
is ordained by the statute of Westminster the first;5 and the statute 14 Edw. III. St. 4. c. 4. (which
permits, as we have seen, a lease to the dean and chapter) is still more explicit in prohibiting the
other exactions. It was also a frequent abuse, that the king would for trifling, or no causes, seize the
temporalties of bishops, even during their lives, into his own hands: but this is guarded against by
statute 1 Edw. III. St. 2. c. 2.

THIS revenue of the king, which was formerly very considerable, is now by a customary indulgence
almost reduced to nothing: for, at present, as soon as the new bishop is consecrated and confirmed,
he usually receives the restitution of his temporalties quite entire, and untouched, from the king; and
then, and not sooner, he has a fee simple in his bishopric, and may maintain an action for the same.6

II. THE king is entitled to a corody, as the law calls it, out of every bishopric: that is, to send one
of his chaplains to be maintained by the bishop, or to have a pension allowed him till the bishop
promotes him to a benefice.7 This is also in the nature of an acknowledgment to the king, as founder
of the see; since he had formerly the same corody or pension from every abbey or priory of royal
foundation. It is, I apprehend, now fallen into total disuse; though Sir Matthew Hale says,8 that it is
due of common right, and that no prescription will discharge it.

III. THE king also (as was formerly observed9) is entitled to all the tithes arising in extraparochial
places:10 though perhaps it may be doubted how far this article, as well as the last, can be properly
reckoned a part of the king's own royal revenue; since a corody supports only his chaplains, and
these extraparochial tithes are held under an implied trust, that the king will distribute them for the
good of the clergy in general.

IV. THE next branch consists in the first-fruits, and tenths, of all spiritual preferments in the
kingdom; both of which I shall consider together.

THESE were originally a part of the papal usurpations over the clergy of this kingdom; first
introduced by Pandulph the pope's legate, during the reigns of king John and Henry the third, in the
see of Norwich; and afterwards attempted to be made universal by the popes Clement V and John
XXII, about the beginning of the fourteenth century. The first-fruits, primitiae, or annates, were the
first year's whole profits of the spiritual preferment, according to a rate or valor made under the
direction of pope Innocent IV by Walter bishop of Norwich in 38 Hen. III, and afterwards advanced
in the value by commission from pope Nicholas and third, A. D. 1292, 20 Edw. I;11 which valuation
of pope Nicholas is still preserved in the exchequer.12 The tenths, or decimae, were the tenth part of
the annual profit of each living by the same valuation; which was also claimed by the holy see, under
no better pretense than a strange misapplication of that precept of the Levitical law, which directs,13
“that the Levites should offer the tenth part of their tithe as a heave-offering to the Lord, and give
it to Aaron the high priest.” But this claim of the pope met with vigorous resistance from the English
parliament; and a variety of acts were passed to prevent and restrain it, particularly the statute 6 Hen.

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William Blackstone: Vol. 1, Commentaries on the Laws of England (1765) Page 170

IV. c. 1. which calls in a horrible mischief and damnable custom. But the popish clergy, blindly
devoted to the will of a foreign master, still kept it on foot; sometimes more secretly, sometimes
more openly and avowedly: so that, in the reign of Henry VIII, it was computed, that in the compass
of fifty years 800,000 ducats had been sent to Rome for first-fruits only. And, as the clergy
expressed this willingness to contribute so much of their income to the head of the church, it was
thought proper (when in the same reign the papal power was abolished, and the king was declared
the head of the church of England) to annex this revenue to the crown; which was done by statute
26 Hen. VIII. c. 3. (confirmed by statute 1 Eliz. c. 4.) and a new valor beneficiorum [value of
benefices] was then made, by which the clergy are at present rated.

BY these last mentioned statutes all vicarages under ten pounds a year, and all rectories under ten
marks, are discharged from the payment of first-fruits: and if, in such livings as continue chargeable
with this payment, the incumbent lives but half a year, he shall pay only one quarter of his
first-fruits; if but one whole year, then half of them; if a year and half, three quarters; and if two
years, then the whole; and not otherwise. Likewise by the statute 27 Hen. VIII. c. 8. no tenths are
to be paid for the first year, for then the first-fruits are due: and by other statutes of queen Anne, in
the fifth and sixth years of her reign, if a benefice be under fifty pounds per annum clear yearly
value, it shall be discharged of the payment of first-fruits and tenths.

THUS the richer clergy, being, by the criminal bigotry of their popish predecessors, subjected at first
to a foreign exaction, were afterwards, when that yoke was shaken off, liable to a like misapplication
of their revenues, through the rapacious disposition of the then reigning monarch: till at length the
piety of queen Anne restored to the church what had been thus indirectly taken from it. This she did,
not by remitting the tenths and first-fruits entirely; but, in a spirit of the truest equity, by applying
these superfluities of the larger benefices to make up the deficiencies of the smaller. And to this end
the granted her royal charter, which was confirmed by the statute 2 Ann. c. 11. whereby all the
revenue of first-fruits and tenths is vested in trustees for ever, to form a perpetual fund for the
augmentation of poor livings. This is usually called queen Anne's bounty; which has been still
farther regulated by subsequent statutes, too numerous here to recite.

V. THE next branch of the king's ordinary revenue (which, is well as the subsequent branches, is of
a lay or temporal nature) consists in the rents and profits of the demesne lands of the crown. these
demesne lands, terrae dominicales regis [the king's demesne lands], being either the share reserved
to the crown at the original distribution of landed property, of such as came to it afterwards by
forfeitures or other means, were anciently very large and extensive; comprising diverse manors,
honors, and lordships; the tenants of which had very peculiar privileges, as will be shown in the
second book of these commentaries, when we speak of the tenure in ancient demesne. At present
they are contracted within a very narrow compass, having been almost entirely granted away to
private subjects. This has occasioned the parliament frequently to interpose; and, particularly, after
king William III had greatly impoverished the crown, an act passed,14 whereby all future grants or
leases from the crown for any longer term than thirty one years or three lives are declared to be void;
except with regard to houses, which may be granted for fifty years. And no reversionary lease can
be made, so as to exceed, together with the estate in being, the same term of three lives or thirty one
years: that is, where there is a subsisting lease, of which there are twenty years still to come, the king
cannot grant a future interest, to commence after the expiration of the former, for any longer term

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William Blackstone: Vol. 1, Commentaries on the Laws of England (1765) Page 171

than eleven years. The tenant must also be made liable to be punished for committing waste; and the
usual rent must be reserved, or, where there has usually been no rent, one third of the clear yearly
value.15 The misfortune is, that this act was made too late, after almost every valuable possession
of the crown had been granted away for ever, or else upon very long leases; but may be of benefit
to posterity, when those leases come to expire.

VI. HITHER might have been referred the advantages which were uses to arise to the king from the
profits of his military tenures, to which most lands in the kingdom were subject, till the statute 12
Car. II. c. 24. which is great measure abolished them all: the explication of the nature of which
tenures, must be referred to the second book of these commentaries. Hither also might have been
referred the profitable prerogative of purveyance and preemption: which was a right enjoyed by the
crown of buying up provisions and other necessaries, by the intervention of the king's purveyors,
for the use of his royal household, at an appraised valuation, in preference to all others, and even
without consent of the owner; and also of forcibly impressing the carriages and horses of the subject,
to do the king's business on the public roads, in the conveyance of timber, baggage, and the like,
however inconvenient to the proprietor, upon paying him a settled price. A prerogative, which
prevailed pretty generally throughout Europe, during the scarcity of gold and silver, and the high
valuation of money consequential thereupon. In those early times the king's household (as well as
those of inferior lords) were supported by specific renders of corn, and other victuals, from the
tenants of the respective demesnes; and there was also a continual market kept at the palace gate to
furnish viands for the royal use.16 And this answered all purposes, in those ages of simplicity, so
long as the king's court continued in any certain place. But when it removed from one part of
kingdom to another (as was formerly very frequently done) it was found necessary to send purveyors
beforehand, to get together a sufficient quantity of provisions and other necessaries for the
household: and, lest the unusual demand should raise them to an exorbitant price, the powers
beforementioned were vested in these purveyors; who in process of time very greatly abused their
authority, and became a great oppression to the subject though of little advantage to the crown;
ready money in open market (when the royal residence was more permanent, and specie began to
be plenty) being found upon experience to be the best proveditor of any. Wherefore by degrees the
powers of purveyance have declined, in foreign countries as well as our own; and particularly were
abolished in Sweden by Gustavus Adolphus, towards the beginning of the last century.17 And, with
us in England, having fallen into disuse during the suspension of monarchy, king Charles at his
restoration consented, by the same statute, to resign entirely these branches of his revenue and
power, for the case and convenience of his subjects: and the parliament, in part of recompense,
settled on him, his heirs, and successors, for ever, the hereditary excise of fifteen pence per barrel
on all beer and ale sold in the kingdom, and a proportional sum for certain other liquors. So that this
hereditary excise, the nature of which shall be farther explained in the subsequent part of this
chapter, now forms the sixth branch of his majesty's ordinary revenue.

VII. A SEVENTH branch might also be computed to have arisen from wine licenses; or the rents
payable to the crown by such persons as are licensed to sell wine by retail throughout England,
except in a few privileged places. These were first settled on the crown by the statute 12 Car. II. c.
25. and, together with the hereditary excise, made up the equivalent in value for the loss sustained
by the prerogative in the abolition of the military tenures, and the right of preemption and
purveyance: but this revenue was abolished by the statute 30 Geo. II. c. 19, and an annual sum of

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William Blackstone: Vol. 1, Commentaries on the Laws of England (1765) Page 172

upwards £ 7000 per annum, issuing out of the new stamp duties imposed on wine licenses, was
settled on the crown in its stead.

VIII. AN eighth branch of the king's ordinary revenue is usually reckoned to consist in the profits
arising from his forests. Forests are waste grounds belonging to the king, replenished with all
manner of beasts of chase or venary; which are under the king's protection, for the sake of his royal
recreation and delight: and, to that end, and for preservation of the king's game, there are particular
laws, privileges, courts and officers belonging to the king's forests; all which will be, in their turns,
explained in the subsequent books of these commentaries. What we are now to consider are only the
profits arising to the king from hence; which consist principally in amercements or fines levied for
offenses against the forest-laws. But as few, if any courts of this king for levying amercements18
have been held since 1632, 8 Car. I. and as, from the accounts given of the proceedings in that court
by our histories and law books,19 nobody would now wish to see them again revived, it is needless
(at least in this place) to pursue this inquiry any farther.

IX. THE profits arisen from the king's ordinary courts of justice make a ninth branch of his revenue.
And these consist not only in fines imposed upon offenders, forfeitures of recognizances, and
amercements levied upon defaulters; but also in certain fees due to the crown in a variety of legal
matters, as, for setting the great seal to charters, original writs, and other legal proceedings, and for
permitting fines to be levied of lands in order to bar entails, or otherwise to insure their title. As none
of these can be done without the immediate intervention of the king, by himself or his officers, the
law allows him certain perquisites and profits, as a recompense for the trouble he undertakes for the
public. These, in process of time, have been almost all granted out to private persons, or else
appropriated to certain particular uses: so that, though our law-proceedings are still loaded with their
payment, very little of them is now returned into the king's exchequer; for a part of whose royal
maintenance they were originally intended. All future grants of them however, by the statute 1 Ann.
St. 2. c. 7. are to endure for no longer time than the prince's life who grants them.

X. A TENTH branch of the king's ordinary revenue, said to be grounded on the consideration of his
guarding and protecting the seas from pirates and robbers, is the right to royal fish, which are whale
and sturgeon: and these, when either thrown ashore, or caught near the coasts, are the property of
the king, on account20 of their superior excellence. Indeed our ancestors seem to have entertained
a very high notion of the importance of this right; it being the prerogative of the kings of Denmark
and the dukes of Normandy;21 and from one of these it was probably derived to our princes. It is
expressly claimed and allowed in the statute de praerogativa regis22 [of the king's prerogative]: and
the most ancient treatises of law now extant make mention if it;23 though they seem to have made
distinction between whale and sturgeon, as was incidentally observed in a former chapter.24

XI. ANOTHER maritime revenue, and founded partly upon the same reason, is that of shipwrecks;
which are also declared to be the king's property by the same prerogative statute 17 Edw. II. C. II.
and were so, long before, at the common law. It is worthy observation, how greatly the law of
wrecks has been altered, and the rigor of it gradually softened, in favor of the distressed proprietors.
Wreck, by the ancient common law, was where any ship was lost at sea, and the goods or cargo were
thrown upon the land; in which case these goods, so wrecked, were adjudged to belong to the king:
for it was held, that, by the loss of the ship, all property was gone out of the original owner.25 But

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William Blackstone: Vol. 1, Commentaries on the Laws of England (1765) Page 173

this was undoubtedly adding sorrow to sorrow, and was consonant neither to reason nor humanity.
Wherefore it was first ordained by king Henry I, that if any person escaped alive out of the ship it
should be no wreck;26 and afterwards king Henry II, by his charter,27 declared, that if on the coasts
of either England, Poictou, Oleron, or Gascony, any ship should be distressed, and either man or
beast should escape or be found therein alive, the goods should remain to the owners, if they claimed
them within three months; but otherwise should be esteemed a wreck, and should belong to the king,
or other lord of the franchise. This was again confirmed with improvements by king Richard the
first, who, in the second year of his reign,28 not only established these concessions, by ordaining that
the owner, if he was shipwrecked and escaped, “omnes res suas liberas et quietas haberet” [“he
should retain his property free and undisputed”], but also, that, if he perished, his children, or in
default of them his brethren and sisters, should retain the property; and, in default of brother of
sister, then the goods should remain to the king.29 And the law, so long after as the reign of Henry
III, seems still to have been guided by the same equitable provisions. For then if a dog (for instance)
escaped, by which the owner might be discovered, or if any certain mark were set on the goods, by
which they might be known again, it was held to be no wreck.30 And this is certainly most agreeable
to reason; the rational claim of the king being only founded upon this, that the true owner cannot be
ascertained. But afterwards, in the statute of Westminster the first,31 the law is laid down more
agreeable to the charter of king Henry the second: and upon that statute has stood the legal doctrine
of wrecks to the present time. It enacts, that if any live thing escape ( a man, a cat, or a dog; which,
as in Bracton, are only put for examples32) in this case, and, as it seems, in this case only, it is clearly
not a legal wreck: but the sheriff of the county is bound to keep the goods a year and a day (as in
France for one year, agreeably to the maritime laws of Oleron,33 and in Holland for a year and an
half) that if any man can prove a property in them, either in his own right or by right of
representation,34 they shall be restored to him without delay; but, if no such property be proved
within that time, they then shall be the king's. If the goods are of a perishable nature, the sheriff may
sell them, and the money shall be liable in their stead.35 This revenue of wrecks is frequently granted
out to lords of manors, as a royal franchise; and if any one be thus entitled to wrecks in his own land,
and the king's goods are wrecked thereon, the king may claim them at any time, even after the year
and day.36

IT is to be observed, that in order to constitute a legal wreck, the goods must come to land. If they
continue at sea, the law distinguishes them by the barbarous and uncouth appellations of jetsam,
flotsam, and ligan. Jetsam is where goods are cast into the sea, and there sink and remain under
water: flotsam is where they continue swimming on the surface of the waves: ligan is where they
are sunk in the sea, but tied to a cork or buoy, in order to be found again.37 These are also the king's
if no owner appears to claim them; but, if any owner appears, he is entitled to recover the possession.
For even if they be cast overboard, without any mark or buoy, in order to lighten the ship, the owner
is not by this act of necessity construed to have renounced his property:38 much less can things ligan
be supposed to be abandoned, since the owner has done all in his power, to assert and retain his
property. These three are therefore accounted so far a distinct thing from the former, that by the
king's grant to a man of wrecks, things jetsam, flotsam, and ligan will not pass.39

WRECKS, in their legal acceptation, are at present not very frequent: it rarely happening that every
living creature on board perishes; and if any should survive, it is a very great chance, since the
improvement of commerce, navigation, and correspondence, but the owner will be able to assert his

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property within the year and day limited by law. And in order to preserve this property entire for
him, and if possible to prevent wrecks at all, our laws have made many very humane regulations;
in a spirit quite opposite to those savage laws, which formerly prevailed in all the northern regions
of Europe, and a few years ago were still said to subsist on the coasts of the Baltic sea, permitting
the inhabitants to seize on whatever they could get as lawful prize; or, as an author of their own
expresses it, “in naufragorum miseria et calamitate tanquam vultures ad praedam currere.”40 [“To
run like vultures to their prey, amidst the misery and calamity of shipwrecked sufferers.”] For by
the statute 2 Edw. III. c. 13. if any ship be lost on the shore, and the goods come to land (so as it be
not legal wreck) they shall be presently delivered to the merchants, they paying only a reasonable
reward to those that saved and preserved them, which is entitled salvage. Also by the common law,
if any persons (other than the sheriff) take any goods so cast on shore, which are not legal wreck,
the owners might have a commission to inquire and find them out, and compel them to make
restitution.41 And by statute 12 Ann. St. 2. c. 18. confirmed by 4 Geo. I. c. 12. in order to assist the
distressed, and prevent the scandalous illegal practices on some of our sea coasts, (too similar to
those on the Baltic) it is enacted, that all head-officers and others of towns near the sea shall, upon
application made to them, summon as many hands as are necessary, and send them to the relief of
any ship in distress, on forfeiture of 100£ and, in case of assistance given, salvage shall be paid by
the owners, to be assessed by three neighboring justices. All persons that secrete any goods shall
forfeit their treble value: and if they wilfully do any act whereby the ship is lost or destroyed, by
making holes in her, stealing her pumps, or otherwise, they are guilty of felony, without benefit of
clergy. Lastly, by the statute 26 Geo. II. c. 19. plundering any vessel either in distress, or wrecked,
and whether any living creature be on board or not, (for, whether wreck or otherwise, it is clearly
not the property of the populace) such plundering, I say, or preventing the escape of any person that
endeavors to save his life, or wounding him with intent to destroy him, or putting out false lights in
order to bring any vessel into danger, are all declared to be capital felonies; in like manner as the
destroying trees, steeples, or other stated seamarks, is punished by the statute 8 Eliz. c. 13. with a
forfeiture of 200£ Moreover, by the statute of George II, pilfering any goods cast ashore is declared
to be petty larceny; and many other salutary regulations are made, for the more effectually
preserving ships of any nation in distress.42

XII. A TWELFTH branch of the royal revenue, the right to mines, has its original from the king's
prerogative of coinage, in order to supply him with materials: and therefore those mines, which are
properly royal, and to which the king is entitled when found, are only those of silver and gold.43 By
the old common law, if gold or silver be found in mines of base metal, according to the opinion of
some the whole was a royal mine, and belonged to the king; though others held that it only did so,
if the quantity of gold or silver was of greater value than the quantity of base metal.44 But now by
the statutes I W, & M. St. I. c. 30. and 5 W. & M. c. 6. this difference is made immaterial; it being
enacted, that no mines of copper, tin, iron, or lead, shall be looked upon as royal mines,
notwithstanding gold or silver may be extracted from them in any quantities: but that the king, or
persons claiming royal mines under his authority, may have the ore, (other than tin-ore in the
counties of Devon and Cornwall) paying for the same a price stated in the act. This was an extremely
reasonable law: for now private owners are not discouraged from working mines, through a fear that
they may be claimed as royal ones; neither does the king depart from the just rights of his revenue,
since he may have all the precious metal contained in the ore, paying no more for it than the value
of the base metal which it is supposed to be; to which base metal the land-owner is by reason and

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law entitled.

XIII. To the same original may in part be referred the revenue of treasure-trove (derived from the
French word, trover, to find) called in Latin thesaurus inventus, which is where any money or coin,
gold, silver, plate, or bullion, is found hidden in the earth, or coin, gold, silver, plate, or bullion, is
found hidden in the earth, or other private place, the owner thereof being unknown; in which case
the treasure belongs to the king: but if he that hid it be known, or afterwards found out, the owner
and not the king is entitled to it.45 Also if it be found in the sea, or upon the earth, it does not belong
to the king, but the finder, if no owner appears.46 So that it seems it is the biding, not the abandoning
of it, that gives the king a property: Bracton47 defining it, in the words of the civilians, to be “vetus
depositio pecuniae” [“prior concealment of money”]. This difference clearly arises from the
different intentions, which the law implies in the owner. A man, that hides his treasure in a secret
place, evidently does not mean to relinquish his property; but reserves a right of claiming it again,
when he sees occasion; and, if he dies and the secret also dies with him, the law gives it the king,
in part of his royal revenue. But a man that scatters his treasure into the sea, or upon the public
surface of the earth, is construed to have absolutely abandoned his property, and returned it into the
common stock, without any intention of reclaiming it; and therefore it belongs, as in a state of
nature, to the first occupant, or finder; unless the owner appear and assert his right, which then
proves that the loss was by accident, and not with an intent to renounce his property.

FORMERLY all treasure-trove belonged to the finder;48 as was also the rule of the civil law.49
Afterwards it was judged expedient for the purposes of the state, and particularly for the coinage,
to allow part of what was so found to the king; which part was assigned to be all hidden treasure;
such as is casually lost and unclaimed, and also such as is designedly abandoned, still remaining the
right of the fortunate finder. And that the prince shall be entitled to this hidden treasure is now
grown to be, according to Grotius,50 “jus commune, et quasi gentium” [“the common law, and as it
were the law of nations”]: for it is not only observed, he adds, in England, but in Germany, France,
Spain, and Denmark. The finding of deposited treasure was much more frequent, and the treasures
themselves more considerable, in the infancy of our constitution than at present. When the Romans,
and other inhabitants of the respective countries which composed their empire, were driven out by
the northern nations, they concealed their money under-ground; with a view of resorting to it again
when the heat of the irruption should be over, and the invaders driven back to their deserts. But as
this never happened, the treasures were never claimed; and on the death of the owners the secret also
died along with them. The conquering generals, being aware of the value of these hidden mines,
made it highly penal to secrete them from the public service. In England therefore, as among the
feudists,51 the punishment of such as concealed from the king the finding of hidden treasure was
formerly no less than death; but now it is only fine and imprisonment.52

XIV. WAIFS, bona waviata [unclaimed goods], are goods stolen, and waived or thrown away by
the thief in his flight, for fear of being apprehended. These are given to the king by the law, as a
punishment upon the owner, for not himself pursuing the felon, and taking away his goods from
him.53 And therefore if the party robbed do his diligence immediately to follow and apprehend the
thief (which is called making fresh suit) or do convict him afterwards, or procure evidence to convict
him, he shall have his goods again.54 Waived goods do also not belong to the king, till seized by
somebody for his use; for if the party robbed can seize them first, though at the distance of twenty

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years, the king shall never have them.55 If the goods are hid by the thief, or last any where by him,
so that he had them not about him when he fled, and therefore did not throw them away in his flight;
these also are not bona waviata, but the owner may have them again when he pleases.56 The goods
of a foreign merchant, though stolen and thrown away in flight, shall never be waifs:57 the reason
whereof may be, not only for the encouragement of trade, but also because there is no wilful default
in the foreign merchant's not pursuing the thief, he being generally a stranger to our laws, our
usages, and our language.

XV. ESTRAYS are such valuable animals as are found wandering in any manor or lordship, and no
man knows the owner of them; in which case the law gives them to the king as the general owner
and lord paramount of the soil, in recompense for the damage which they may have done therein;
and they now most commonly belong to the lord of the manor, by special grant from the crown. But
in order to vest an absolute property in the king or his grantees, they must be proclaimed in the
church and two market towns next adjoining to the place where they are found; and then, if no man
claims them, after proclamation and a year and a day passed, they belong to the king or his substitute
without redemption;58 even though the owner were a minor, or under any other legal incapacity.59
A provision similar to which obtained in the old Gothic constitution, with regard to all things that
were found, which were to be thrice proclaimed, primum coram comitibus et viatoribus obviis,
deinde in proxima villa vel pago, postremo coram ecclesia vel judicio [first before the inhabitants
of the place and passing travelers, then in the next town or village, lastly before the church, or
judgment-court.]: and the space of a year was allowed for the owner to reclaim his property.60 If the
owner claims them within the year and day, he must pay the charges of finding, keeping, and
proclaiming them.61 The king or lord has no property till the year and day passed: for if a lord keeps
an estray three quarters of a year, and within the year it strays again, and another lord gets it, the first
lord cannot take it again.62 Any beast may be an estray, that is by nature tame or reclaimable, and
in which there is a valuable property, as sheep, oxen, swine, and horses, which we in general call
cattle; and so Fleta63 defines it, pecus vagans, quod nullus petit, sequitur vel advocat [wandering
cattle, which no one seeks, follows, or calls to]. For animals upon which the law sets no value, as
a dog or cat, and animals ferae naturae [wild by nature], as a bear or wolf, cannot be considered as
estrays. So swans may be estrays, but not any other fowl;64 whence they are said to be royal fowl.
The reason of which distinction seems to be, that, cattle and swans being of a reclaimed nature, the
owner's property in them is not lost merely by their temporary escape; and they also, from their
intrinsic value, are a sufficient pledge for the expense of the lord of the franchise in keeping them
the year and day. For he that takes an estray is bound, so long as he keeps it, to find it in provisions
and keep it from damage;65 and may not use it by way of labor, but is liable to an action for so
doing.66 Yet he may milk a cow, or the like, for that tends to the preservation, and is for the benefit,
of the animal.67

BESIDES the particular reasons before given why the king should have the several revenues of royal
fish, shipwrecks, treasure-trove, waifs, and estrays, there is also one general reason which holds for
them all; and that is, because they are bona vacantia, or goods in which no one else can claim a
property. And therefore by the law of nature they belonged to the first occupant or finder; and so
continued under the imperial law. But, in settling the modern constitutions of most of the
governments in Europe, it was thought proper (to prevent that strife and contention, which the mere
title of occupancy is apt to create and continue, and to provide for the support of public authority

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in a manner the least burdensome to individuals) that these rights should be annexed to the supreme
power by the positive laws of the state. And so it came to pass that, as Bracton expresses it,68 haec
quae nullius in bonis sunt, et olim fuerunt inventoris de jure naturali jam efficiuntur principis de
jure gentium. [Those things which are no man's property and formerly belonged to the finder as by
natural right, become now the property of the king by the law of nations.]

XVI. THE next branch of the king's ordinary revenue consists in forfeitures of lands and goods for
offenses; bona confiscata [confiscated goods], as they are called by the civilians, because they
belonged to the fiscus or imperial treasury; or, as our lawyers term them, forisfacta, that is, such
whereof the property is gone away or departed from the owner. The true reason and only substantial
ground of any forfeiture for crimes consist in this; that all property is derived from society, being
one of those civil rights which are conferred upon individuals, in exchange for that degree of natural
freedom, which every man must sacrifice when he enters into social communities. If therefore a
member of any national community violates the fundamental contract of his association, by
transgressing the municipal law, he forfeits his right to such privileges as he claims by that contract;
and the state may very justly resume that portion of property, or any part of it, which the laws have
before assigned him. Hence, in every offense of an atrocious kind, the laws of England have exacted
a total confiscation of the movables or personal estate; and in many cases a perpetual, in others only
a temporary, loss of the offender's immovables or landed property; and have vested them both in the
king, who is the person supposed to be offended, being the one visible magistrate in whom the
majesty of the public resides. The particulars of these forfeitures will be more properly recited when
we treat of crimes and misdemeanors. I therefore only mention them here, for the sake of regularity,
as a part of the census regalis [royal revenue]; and shall postpone for the present the farther
consideration of all forfeitures, excepting one species only, which arises from the misfortune rather
than the crime of the owner, and is called a deodand.

BY this is meant whatever personal chattel is the immediate occasion of the death of any reasonable
creature; which is forfeited to the king, to be applied to pious uses, and distributed in alms by his
high almoner;69 though formerly destined to more superstitious purpose. It seems to have been
originally designed, in the blind days of popery, as an expiation for the souls of such as were
snatched away by sudden death; and for that purpose ought properly to have been given to holy
church;70 in the same manner, as the apparel of a stranger who was found dead was applied to
purchase masses for the good of his soul. And this may account for that rule of law, that no deodand
is due where an infant under the years of discretion is killed by a fall from a cart, or horse, or the
like, not being in motion;71 whereas, if an adult person falls from thence and is killed, the thing is
certainly forfeited. For the reason given by Sir Matthew Hale seems to be very inadequate, viz.
because an infant is not able to take care of himself: for why should the owner save his forfeiture,
on account of the imbecility of the child, which ought rather to have made him more cautious to
prevent any accident of mischief? The true ground if this rule seems rather to be, that the child, by
reason of its want of discretion, is presumed incapable of actual sin, and therefore needed no
deodand to purchase propitiatory masses: but every adult, who dies in actual sin, stood in need of
such atonement, according to the humane superstition of the founders of the English law.

THUS stands the law, if a person be killed by a fall from a thing standing still. But if a horse, or ox,
or other animal, of is own motion, kill as well an infant as an adult, or if a cart run over him, they

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shall in either case be forfeited as deodands;72 which is grounded upon this additional reason, that
such misfortunes are in part owning to negligence of the owner, and therefore he is properly
punished by such forfeiture. A like punishment is in like cases inflicted by the Mosaic law:73 “if an
ox gore a man that he die, the ox shall be stoned, and his flesh shall not be eaten.” And among the
Athenians,74 whatever was the cause of a man's death, by falling upon him, was exterminated or cast
out of the dominions of the republic. Where a thing, not in motion, is the occasion of a man's death,
that part only which is the immediate cause is forfeited; as if a man be climbing up a wheel, and is
killed by falling from it, the wheel alone is a deodand:75 but, wherever the thing is in motion, not
only that part which immediately gives the wound, (as the wheel, which runs over his body) but all
things which move with it and help to make the wound more dangerous (as the cart and loading,
which increase the pressure of the wheel) are forfeited.76 It matters not whether the owner were
concerned in the killing or not; for if a man kills another with my sword, the sword is forfeited77 as
an accursed thing.78 And therefore, in all indictments for homicide, the instrument of death and the
value are presented and found by the grand jury (as, that the stroke was given with a certain
penknife, value sixpence) that the king or his grantee may claim the deodand: for it is no deodand,
unless it be presented as such by a jury of twelve men.79 No deodands are due for accidents
happening upon the high sea, that being out of the jurisdiction of the common law: but if a man falls
from a boat or ship in fresh water, and is drowned, the vessel and cargo are in strictness a deodand.80
But juries have of late very frequently taken upon themselves to mitigate these forfeitures, by
finding only some trifling thing, or part of an entire thing, to have been the occasion of the death.
And in such cases, although the finding of the jury be hardly warrantable by law, the court of king's
bench has generally refused to interfere on behalf of the lord of the franchise, to assist so odious a
claim.81

DEODANDS, and forfeitures in general, as well as wrecks, treasure trove, royal fish, mines, waifs,
and estrays, may be granted by the king to particular subjects, as a royal franchise: and indeed they
are for the most part granted out to the lords of manors, or other liberties; to the perversion of their
original design.

XVII. ANOTHER branch of the king's ordinary revenue arises from escheats of lands, which happen
upon the defect of heirs to succeed to the inheritance; whereupon they in general revert to and vest
in the king, who is esteemed, in the eye of the law, the original proprietor of all the lands in the
kingdom. But the discussion of this topic more properly belongs to the second book of these
commentaries, wherein we shall particularly consider the manner in which lands may be acquired
or lost by escheat.

XVIII. I PROCEED therefore to the eighteenth and last branch of the king's ordinary revenue; which
consists in the custody of idiots, from whence we shall be naturally led to consider also the custody
of lunatics.

AN idiot, or natural fool, is one that has had no understanding from his nativity; and therefore is by
law presumed never likely to attain any. For which reason the custody of him and of his lands was
formerly vested in the lord of the fee;82 (and therefore still, by special custom, in some manors the
lord shall have the ordering of idiot and lunatic copyholders83) but, by reason of the manifold abuses
of this power by subjects, it was at last provided by common consent, that it should be given to the

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king, as the general conservator of his people, in order to prevent the idiot from wasting his estate,
and reducing himself and his heirs to poverty and distress:84 This fiscal prerogative of the king is
declared in parliament by statute 17 Edw. II. c. 9. which directs (in affirmance of the common law,85)
that the king shall have ward of the lands of natural fools, taking the profits without waste or
destruction, and shall find them necessaries; and after the death of such idiots he shall render the
estate to the heirs; in order to prevent such idiots from alienating their lands, and their heirs from
being disinherited.

BY the old common law there is a writ de idiota inquirendo, to inquire whether a man be an idiot
or not:86 which must be tried by a jury of twelve men; and if they find him purus idiota [an absolute
idiot], the profits of his lands, and the custody of his person may be granted by the king to some
subject, who has interest enough to obtain them.87 This branch of the revenue has been long
considered as a hardship upon private families; and so long ago as in the 8 Jac. I. it was under the
consideration of parliament, to vest this custody in the relations of the party, and to settle an
equivalent on the crown in lieu of it; it being then proposed to share the same fate with the slavery
of the feudal tenures, which has been since abolished.88 Yet few instances can be given of the
oppressive exertion of it, since it seldom happens that a jury finds a man an idiot a nativitate [from
birth], but only non compos mentis [of unsound mind] from some particular time; which has an
operation very different in point of law.

A MAN is not an idiot,89 if he has any glimmering of reason, so that he can tell his parents, his age,
or the like common matters. But a man who is born deaf, dumb, and blind, is looked upon by the law
as in the same state with an idiot;90 he being supposed incapable of understanding, as wanting those
senses which furnish the human mind with ideas.

A LUNATIC, or non compos mentis, is one who has had understanding, but by disease, grief, or
other accident has lost the use of his reason. A lunatic is indeed properly one that has lucid intervals;
sometimes enjoying his senses, and sometimes not, and that frequently depending upon the change
of the moon. But under the general name of non compos mentis (which Sir Edward Coke says is the
most legal name91) are comprised not only lunatics, but persons under frenzies; or who lose their
intellects by disease; those that grow deaf, dumb, and blind, not being born so; or such, in short, as
are by any means rendered incapable of conducting their own affairs. To these also, as well as idiots,
the king is guardian, but to a very different purpose. For the law always imagines, that these
accidental misfortunes may be removed; and therefore only constitutes the crown a trustee for the
unfortunate persons, to protect their property, and to account to them for all profits received, if they
recover, or after their decease to their representatives. And therefore it is declared by the statute 17
Edw. II. c. 10. that the king shall provide for the custody and sustentation of lunatics, and preserve
their lands and the profits of them, for their use, when they come to their right mind: and the king
shall take nothing to his own use; and if the parties die in such estate, the residue shall be distributed
for their souls by the advice of the ordinary, and of course (by the subsequent amendments of the
law of administrations) shall now go to their executors or administrators.

THE method of proving a person non compos is very similar to that of proving him an idiot. The lord
chancellor, to whom, by special authority from the king, the custody of idiots and lunatics is
entrusted,92 upon petition or information, grants a commission in nature of the writ de idiota

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inquirendo [inquiry of idiocy], to inquire into the party's state of mind; and if he be found non
compos, he usually commits the care of his person, with a suitable allowance for his maintenance,
to some friend, who is then called his committee. However, to prevent sinister practices, the next
heir is never permitted to be this committee of the person; because it is his interest that the party
should die. But, it has been said, there lies not the same objection against his next of kin, provided
he be not his heir, for it is his interest to preserve the lunatic's life, in order to increase the personal
estate by savings, which he or his family may hereafter be entitled to enjoy.93 The heir is generally
made the manager or committee of the estate, it being clearly his interest by good management to
keep it in condition; accountable however to the court of chancery, and to the non compos himself,
if he recovers; or otherwise, to his administrators.

IN this care of idiots and lunatics the civil law agrees with ours; by assigning them tutors to protect
their persons, and curators to manage their estates. But in another instance the Roman law goes
much beyond the English. For, if a man by notorious prodigality was in danger of wasting his estate,
he was looked upon as non compos and committed to the care of curators or tutors by the praetor.94
And by the laws of Solon such prodigals were branded with perpetual infamy.95 But with us, when
a man on an inquest of idiocy has been returned an unthrift and not an idiot,96 no farther proceedings
have been had. And the propriety of the practice itself seems to be very questionable. It was
doubtless an excellent method of benefitting the individual and of preserving estates in families; but
it hardly seems calculated for the genius of a free nation, who claim and exercise the liberty of using
their own property as they please. “Sic utere tuo, ut alienum non laedas” [“Use your property so as
to not injure another”], is the only restriction our laws have given with regard to economical
prudence. And the frequent circulation and transfer of lands and other property, which cannot be
effected without extravagance somewhere, are perhaps not a little conducive towards keeping our
mixed constitution in its due health and vigor.

THIS may suffice for a short view of the king's ordinary revenue, or the proper patrimony of the
crown; which was very large formerly, and capable of being increased to a magnitude truly
formidable: for there are very few estates in the kingdom, that have not, at some period or other
since the Norman conquest, been vested in the hands of the king by forfeiture, escheat, or otherwise.
But, fortunately for the liberty of the subject, this hereditary landed revenue, by a series of
improvident management, is sunk almost to nothing; and the casual profits, arising from the other
branches of the census regalis, are likewise almost all of them alienated from the crown. In order
to supply the deficiencies of which, we are now obliged to have recourse to new methods of raising
money, unknown to our early ancestors; which methods constitute the king's extraordinary revenue.
For, the public patrimony being got into the hands of private subjects, it is but reasonable that
private contributions should supply the public service. Which, though it may perhaps fall harder
upon some individuals, whose ancestors have had no share in the general plunder, than upon others,
yet, taking the nation throughout, it amounts to nearly the same; provided the gain by the
extraordinary, should appear to be no greater than the loss by the ordinary, revenue. And perhaps,
if every gentleman in the kingdom was to be stripped of such of his lands as were formerly the
property of the crown; was to be again subject to the inconveniences of purveyance and preemption,
the oppression of forest laws, and the slavery of feudal tenures; and was to resign into the king's
hands all his royal franchises of waifs, wrecks, estrays, treasure-trove, mines, deodands, forfeitures,
and the like; he would find himself a greater loser, than by paying his quota to such taxes, as are

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William Blackstone: Vol. 1, Commentaries on the Laws of England (1765) Page 181

necessary to the support of government. The thing therefore to be wished and aimed at in a land of
liberty, is by no means the total abolition of taxes, which would draw after it very pernicious
consequences, and the very supposition of which is the height of political absurdity. For as the true
idea of government and magistracy will be found to consist in this, that some few men are deputed
by many others to preside over public affairs, so that individuals may the better be enabled to attend
to their private concerns; it is necessary that those individuals should be bound to contribute a
portion of their private gains, in order to support that government, and reward that magistracy, which
protects them in the enjoyment of their respective properties. But the things to be aimed at are
wisdom and moderation, not only in granting, but also in the method of raising, the necessary
supplies; by contriving to do both in such a manner as may be most conducive to the national
welfare and at the same time most consistent with economy and the liberty of the subject; who, when
properly taxed, economy and the liberty of the subject; who, when properly taxed, contributes only,
as was before observed,97 some part of his property, in order to enjoy the rest.

THESE extraordinary grants are usually called by the synonymous names of aids, subsidies, and
supplies; and are granted, we have formerly seen,98 by the commons of Great Britain, in parliament
assembled: who, when they have voted a supply to his majesty, and settled the quantum of that
supply, usually resolve themselves into what is called a committee of ways and means, to consider
of the ways and means of raising the supply so voted. And in this committee every member (though
it is looked upon as the peculiar province of the chancellor of the exchequer) may propose such
scheme of taxation as he thinks will be least detrimental to the public. The resolutions of this
committee (when approved by a vote of the house) are in general esteemed to be (as it were) final
and conclusive. For, through the supply cannot be actually raised upon the subject till directed by
an act of the whole parliament, yet no monied man will scruple to advance to the government any
quantity of ready cash, on the credit of a bare vote of the house of commons, though no law be yet
passed to establish it.

THE taxes, which are raised upon the subject, are either annual or perpetual. The usual annual taxes
are those upon land and malt.

I. THE land tax, in its modern shape, has superseded all the former methods of rating either property,
or persons in respect of their property, whether by tenths or fifteenths, subsidies on land, hydages,
scutages, or talliages; a short explication of which will greatly assist us in understanding our ancient
laws and history.

TENTHS, and fifteenths,99 were temporary aids issuing out of personal property, and granted to the
king by parliament. They were formerly the real tenth or fifteenth part of all the movables belonging
to the subject; when such movables, or personal estates, were a very different and a much less
considerable thing than what they usually are at this day. Tenths are said to have been first granted
under Henry the second, who took advantage of the fashionable zeal for crusades to introduce this
new taxation, in order to defray the expense of a pious expedition to Palestine, which he really or
seemingly had projected against Saladine emperor of the Saracens; whence it was originally
denominated the Saladine tenth.100 But afterwards fifteenths were more usually granted than tenths.
Originally the amount of these taxes was uncertain, being levied by assessments new made at every
fresh grant of the commons, a commission for which is preserved by Matthew paris:101 but it was

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at length reduced to a certainty in the eighth of Edw. III. when, by virtue of the king's commission,
new taxations were made of every township, borough, and city in the kingdom, and recorded in the
exchequer; which rate was, at the time, the fifteenth part of the value of every township, the whole
amounting to about 29000£ and therefore it still kept up the name of a fifteenth, when, by the
alteration of the value of money and the increase of personal property, things came to be in a very
different situation. So that when, of later years, the commons granted the king a fifteenth, every
parish in England immediately knew their proportion of it; that is, the same identical sum that was
assessed by the same aid in the eighth of Edw. III; and then raised it by a rate among themselves,
and returned it into the royal exchequer.

THE other ancient levies were in the nature of a modern land tax; for we may trace up the original
of that charge as high as to the introduction of our military tenures;102 when every tenant of a knight's
fee was bound, if called upon, to attend the king in his army for forty days in every year. But this
personal attendance growing troublesome in many respects, the tenants found means of
compounding for it, by first sending others in their stead, and in process of time by making a
pecuniary satisfaction to the crown in lieu of it. This pecuniary satisfaction at last came to be levied
by assessments, at so much for every knight's fee, under the name of scutages; which appear to have
been levied for the first time in the fifth year of Henry the second, on account of his expedition to
Toulouse, and were then (I apprehend) mere arbitrary compositions, as the king and the subject
could agree. But this precedent being afterwards abused into a means of oppression, (by levying
scutages on the landholders by the royal authority only, whenever our kings went to war, in order
to hire mercenary troops and pay their contingent expenses) it became thereupon a matter of national
complaint; and king John was obliged to promise in his magna carta,103 that no scutage should be
imposed without the consent of the common council of the realm. This clause was indeed omitted
in the charters of Henry III, where104 we only find it stipulated, that scutages should be taken as they
were used to be in the time of king Henry the second. Yet afterwards, by a variety of statutes under
Edward I and his grandson,105 it was provided, that the king shall not take any aids or tasks, any
talliage or tax, but by the common assent of the great men and commons in parliament.

OF the same nature with scutages upon knights-fees were the assessments of hydage upon all other
lands, and of talliage upon cities and burghs.106 But they all gradually fell into disuse, upon the
introduction of subsidies, about the time of king Richard II and king Henry IV. These were a tax,
not immediately imposed upon property, but upon persons in respect of their reputed estates, after
the nominal rate of 4 s. in the pound for lands, and 2s. 6d. for goods; and for those of aliens in a
double proportion. But this assessment was also made according to an ancient valuation; wherein
the computation was so very moderate, and the rental of the kingdom was supposed to be so
exceeding low, that one subsidy of this sort did not, according to Sir Edward coke,107 amount to
more than 70,000£ whereas a modern land tax at the same rate produces two millions. It was
anciently the rule never to grant more than one subsidy, and two fifteenths at a time; but this rule
was broke through for the first time on a very pressing occasion, the Spanish invasion in 1588; when
the parliament gave queen Elizabeth two subsidies and four fifteenths. Afterwards, as money sunk
in value, more subsidies were given; and we have an instance in the first parliament of 1640, of the
king's desiring twelve subsidies of the commons, to be levied in three years; which was looked upon
as a startling proposal: though lord Clarendon tells us,108 that the speaker, sergeant Glanvile, made
it manifest to the house, how very inconsiderable a sum twelve subsidies amounted to, by telling

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them he had computed what he was to pay for them; and, when he named the sum, he being known
to be possessed of a great estate, it seemed not worth any farther deliberation. And indeed, upon
calculation, we shall find that the total amount of these twelve subsidies, to be raised in three years,
is less than what is now raised in one year, by a land tax of two shillings in the pound.

THE grant of scutages, talliages, or subsidies by the commons did not extend to spiritual
preferments; those being usually taxed at the same time by the clergy themselves in convocation;
which grants of the clergy were confirmed in parliament, otherwise they were illegal, and not
binding; as the same noble writer observes of the subsidies granted by the convocation, who
continued sitting after the dissolution of the first parliament in 1640. A subsidy granted by the clergy
was after the rate of 4s. in the pound according to the valuation of their livings in the king's books;
and amounted, Sir Edward Coke tells us,109 to about 20,000£ While this custom continued,
convocations were wont to sit as frequently as parliaments: but the last subsidies, thus given by the
clergy, were those confirmed by statute 15 Car. II. cap. 10. since which another method of taxation
has generally prevailed, which takes in the clergy as well as the laity; in recompense for which the
beneficed clergy have from that period been allowed to vote at the elections of knights of the
shire;110 and thenceforward also the practice of giving ecclesiastical subsidies has fallen into total
disuse.

THE lay subsidy was usually raised by commissioners appointed by the crown, or the great officers
of state: and therefore in the beginning of the civil wars between Charles I and his parliament, the
latter, having no other sufficient revenue to support themselves and their measures, introduced the
practice of laying weekly and monthly assessments111 of a specific sum upon the several counties
of the kingdom; to be levied by a pound rate on lands and personal estates: which were occasionally
continued during the whole usurpation, sometimes at the rate 120,000£ a month; sometimes at
inferior rates.112 After the restoration the ancient method of granting subsidies, instead of such
monthly assessments, was twice, and twice only, renewed; viz. in 1663, when four subsidies were
granted by the temporalty, and four by the clergy; and in 1670, when 800,000£ was raised by way
of subsidy, which was the last time of raising supplies in that manner. For, the monthly assessments
being now established by custom, being raised by commissioners named by parliament, and
producing a more certain revenue; from that time forwards we hear no more of subsidies; but
occasional assessments were granted as the national emergencies required. These periodical
assessments, the subsidies which preceded them, and the more ancient scutage, hydage, and talliage,
were to all intents and purposes a land tax; and the assessments were sometimes expressly called
so.113 Yet a popular opinion has prevailed, that the land tax was first introduced in the reign of king
William III; because in the year 1692 a new assessment or valuation of estates was made throughout
the kingdom; which, though by no means a perfect one, had this effect, that a supply of 500,000£
was equal to 1 s. in the pound of the value of the estates given in. And, according to this enhanced
valuation, from the year 1693 to the present, a period of above seventy years, the land tax has
continued an annual charge upon the subject; above half the time at 4 s. in the pound, sometimes at
3 s, sometimes at 2 s, twice114 at 1 s, but without any total intermission. The medium has been 3 s.
3 d. in the pound, being equivalent to twenty three ancient subsidies, and amounting annually to
more than a million and an half of money. The method of raising it is by charging a particular sum
upon each county, according to the valuation given in, A. D. 1692: and this sum is assessed and
raised upon individuals (their personal estates, as well as real, being liable thereto) by

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commissioners appointed in the act, being the principal landholders of the county, and their officers.

II. THE other annual tax is the malt tax; which is a sum of 750,000£, raised every year by
parliament, ever since 1697, by a duty of 6d. in the bushel on malt, and a proportional sum on certain
liquors, such as cider and perry, which might otherwise prevent the consumption of malt. This is
under the management of the commissioners of the excise; and is indeed itself no other than an
annual excise, the nature of which species of taxation I shall presently explain: only premising at
present, that in the year 1760 an additional perpetual excise of 3 d. per bushel was laid upon malt;
and in 1763 a proportional excise was laid upon cider and perry.

THE perpetual taxes are,

I. THE customs; or the duties, toll, tribute, or tariff, payable upon merchandise exported and
imported. The considerations upon which this revenue (or the more ancient part of it, which arose
only from exports) was invested in the king, were said to be two;115 I. Because he gave the subject
leave to depart the kingdom, and to carry his goods along with him. 2. Because the king was bound
of common right to maintain and keep up the ports and havens, and to protect the merchant from
pirates. Some have imagined they are called with us customs, because they were the inheritance of
the king by immemorial usage and the common law, and not granted him by any statute:116 but Sir
Edward Coke has clearly shown,117 that the king's first claim to them was by grant of parliament 3
Edw. I. though the record thereof is not now extant. And indeed this is in express words confessed
by statute 25 Edw. I. c. 7. wherein the king promises to take no customs from merchants, without
the common assent of the realm, “saving to us and our heirs, the customs on wools, skins, and
leather, formerly granted to us by the commonalty aforesaid.” These were formerly called the
hereditary customs of the crown; and were due on the exportation only of the said three
commodities, and of none other: which were styled the staple commodities of the kingdom, because
they were obliged to be brought to those ports where the king's staple was established, in order to
be there first rated, and then exported.118 They were denominated in the barbarous Latin of our
ancient records, custuma119 [customs] not consuetudines [customs], which is the language of our law
whenever it means merely usages. The duties on wool, sheep-skins, or woolsells, and leather,
exported, were called custuma antiqua sive magna [ancient or great customs]; and were payable by
every merchant, as well native as stranger; with this difference, that merchant-strangers paid an
additional toll, viz. half as much again as was paid by natives. The custuma parva et nova [new and
small customs] were an impost of 3d. in the pound due from merchant-strangers only, for all
commodities as well imported as exported; which was usually called the alien's duty, and was first
granted in 31 Edw. I.120 But these ancient hereditary customs, especially those on wool and
woolsells, came to be of little account when the nation became sensible of the advantages of a home
manufacture, and prohibited the exportation of wool by statute II Edw. III. c. I.

THERE is also another ancient hereditary duty belonging to the crown, called the prisage or
butlerage of wines, which is considerably older than the customs, being taken notice of in the great
roll of the exchequer, 8 Ric. I. still extant.121 Prisage was a right of taking two tons of wine from
every ship importing into England twenty tons or more; which by Edward I was exchanged into a
duty of 2 s. for every ton imported by merchant-strangers; which is called butlerage, because paid
to the king's butler.122

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OTHER customs payable upon exports and imports are distinguished into subsidies, tonnage,
poundage, and other imposts. Subsidies are such as were imposed by parliament upon any of the
staple commodities before mentioned, over and above the custuma antiqua et magna: tonnage was
a duty upon all wines imported, over and above the prisage and butlerage aforesaid: poundage was
a duty imposed ad valorem, at the rate of 12d. in the pound, on all other merchandise whatsoever:
and the other imposts were such as were occasionally laid on by parliament, as circumstances and
times required.123 These distinctions are now in a manner forgotten, except by the officers
immediately concerned in this department; their produce being in effect all blended together, under
the one denomination of the customs.

BY these we understand, at present, a duty or subsidy paid by the merchant, at the quay, upon all
imported as well as exported commodities, by authority of parliament; unless where, for particular
national reasons, certain rewards, bounties, or drawbacks, are allowed for particular exports or
imports. Those of tonnage and poundage, in particular, were at first granted, as the old statutes, and
particularly I Eliz. c. 19. express it, for the defense of the realm, and the keeping and safeguard of
the seas, and for the intercourse of merchandise safely to come into and pass out of the same. They
were at first usually granted only for a stated term of years, as, for two years in 5 Ric. II;124 but in
Henry the fifth's time, they were granted him for life by a statute in the third year of his reign; and
again to Edward IV for the term of his life also: since which time they were regularly granted to all
his successors, for life, sometimes at their first, sometimes at other subsequent parliaments, till the
reign of Charles the first; when, as had before happened in the reign of Henry VIII125 and other
princes, they were neglected to be asked. And yet they were imprudently and unconstitutionally
levied and taken without consent of parliament, (though more than one had been assembled) for
fifteen years together; which was one of the causes of those unhappy discontents, justifiable at first
in too many instances, but which degenerated at last into causeless rebellion and murder. For, as in
every other, so in this particular case, the king (previous to the commencement of hostilities) gave
the nation ample satisfaction for the errors of his former conduct, by passing an act,126 whereby he
renounced all power in the crown of levying the duty of tonnage and poundage, without the express
consent of parliament; and also all power of imposition upon any merchandises whatever. Upon the
restoration this duty was granted to king Charles the second for life, and so it was to his two
immediate successors; but now by three several statutes, 9 Ann. c. 6. I Geo. I. c. 12. and 3 Geo. I.
c. 7. it is made perpetual and mortgaged for the debt of the public. The customs, thus imposed by
parliament, are chiefly contained in two books of rates, set forth by parliamentary authority;127 one
signed by Sir Harbottle Grimston, speaker of the house of commons in Charles the second's time;
and the other an additional one signed by Sir Spenser Compton, speaker in the reign of George the
first; to which also subsequent additions have been made. Aliens pay a larger proportion than natural
subjects, which is what is now generally understood by the aliens' duty; to be exempted from which
is one principal cause of the frequent applications to parliament for acts of naturalization.

THESE customs are then, we see, a tax immediately paid by the merchant, although ultimately by
the consumer. And yet these are the duties felt least by the people; and, if prudently managed, the
people hardly consider that they pay them at all. For the merchant is easy, being sensible he does
not pay them for himself; and the consumer, who really pays them, confounds them with the price
of the commodity: in the same manner as Tacitus observes, that the emperor Nero gained the
reputation of abolishing the tax on the sale of slaves, though he only transferred it from the buyer

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to the seller; so that it was, as he expresses it, “remissum magis specie, quam vi: quia, cum venditor
pendere jubereter, in partem pretii emptoribus accrescebat.”128 [“Remitted rather in appearance than
reality,. for when the seller was ordered to pay it, he raised the price to buyers accordingly.”] But
this inconvenience attends it on the other hand, that these imposts, if too heavy, are a check and
cramp upon trade; and especially when the value of the commodity bears little or no proportion to
the quantity of the duty imposed. This in consequence gives rise also to smuggling, which then
becomes a very lucrative employment: and its natural and most reasonable punishment, viz.
confiscation of the commodity, is in such cases quite ineffectual; the intrinsic value of the goods,
which is all that the smuggler has paid, and therefore all that he can lose, being very inconsiderable
when compared with his prospect of advantage in evading the duty. Recourse must therefore be had
to extraordinary punishments to prevent it; perhaps even to capital ones: which destroys all
proportion of punishment,129 and puts murderers upon an equal footing with such as are really guilty
of no natural, but merely a positive offense.

THERE is also another ill consequence attending high imposts on merchandise, not frequently
considered, but indisputably certain; that the earlier any tax is laid on a commodity, the heavier it
falls upon the consumer in the end: for every trader, through whose hands it passes, must have a
profit, not only upon the raw material and his own labor and time in preparing it, but also upon the
very tax itself, which he advances to the government; otherwise he loses the use and interest of the
money which he so advances. To instance in the article of foreign paper. The merchant pays a duty
upon importation, which he does not receive again till he sells the commodity, perhaps at the end
of three months. He is therefore equally entitled to a profit upon that duty which he pays at the
customhouse, as to a profit upon the original price which he pays to the manufacturer abroad; and
considers it accordingly in the price he demands of the stationer. When the stationer sells it again,
he requires a profit of the printer or bookseller upon the whole sum advanced by him to the
merchant: and the bookseller does not forget to charge the full proportion to the student or ultimate
consumer; who therefore does not only pay the original duty, but the profits of these three
intermediate traders, who have successively advanced it for him. This might be carried much farther
in any mechanical, or more complicated, branch of trade.

II. DIRECTLY opposite in its nature to this is the excise duty; which is an inland imposition, paid
sometimes upon the consumption of the commodity, or frequently upon the retail sale, which is the
last stage before the consumption. This is doubtless, impartially speaking, the most economical way
of taxing the subject: the charges of levying, collecting, and managing the excise duties being
considerably less in proportion, than in any other branch of the revenue. It also renders the
commodity cheaper to the consumer, than charging it with customs to the same amount would do;
for the reason just now given, because generally paid in a much later stage of it. But, at the same
time, the rigor and arbitrary proceedings of excise-laws seem hardly compatible with the temper of
a free nation. For the frauds that might be committed in this branch of the revenue, unless a strict
watch is kept, make it necessary, wherever it is established, to give the officers a power of entering
and searching the houses of such as deal in excisable commodities, at any hour of the day, and, in
many cases, of the night likewise. And the proceedings in case of transgressions are so summary and
sudden, that a man may be convicted in two days time in the penalty of many thousand pounds by
two commissioners or justices of the peace; to the total exclusion of the trial by jury, and disregard
of the common law. For which reason, though lord Clarendon tells us,130 that to his knowledge the

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earl of Bedford (who was made lord treasurer by king Charles the first, to oblige his parliament)
intended to have set up the excise in England, yet it never made a part of that unfortunate prince's
revenue; being first introduced, on the model of the Dutch prototype, by the parliament itself after
its rupture with the crown. Yet such was the opinion of its general unpopularity, that when in 1642
“aspersions were cast by malignant persons upon the house of commons, that they intended to
introduce excises, the house for its vindication therein did declare, that these rumors were false and
scandalous; and that their authors should be apprehended and brought to condign punishment.”131
its original establishment was in 1643, and its progress was gradual;132 being at first laid upon those
persons and commodities, where it was supposed the hardship would be least perceivable, viz. the
makers and venders of beer, ale, cider, and perry;133 and the royalists at Oxford soon followed the
example of their brethren at Westminster by imposing a similar duty; both sides protesting that it
should be continued no longer than to the end of the war, and then be utterly abolished.134 But the
parliament at Westminster soon after imposed it on flesh, wine, tobacco, sugar, and such a multitude
of other commodities that it might fairly be denominated general; in pursuance of the plan laid down
by Mr. Pymme (who seems to have been the father of the excise) in his letter to Sir John Hotham,135
signifying, “that they had proceeded in the excise to many particulars, and intended to go on farther;
but that it would be necessary to use the people to it by little and little.” And afterwards, when the
people had been accustomed to it for a series of years, the succeeding champions of liberty boldly
and openly declared, “the impost of excise to be the most easy and indifferent levy that could be laid
upon the people:”136 and accordingly continued it during the whole usurpation. Upon king Charles's
return, it having then been long established and it 3 produce well known, some part of it was given
to the crown, in the 12 Car. II, by way of purchase (as was before observed) for the feudal tenures
and other oppressive parts of the hereditary revenue. But, from its first original to the present time,
its very name has been odious to the people of England. It has nevertheless been imposed on
abundance of other commodities in the reigns of king William III, and every succeeding prince, to
support the enormous expenses occasioned by our wars on the continent. Thus brandies and other
spirits are now excised at the distillery; printed silks and linens, at the printers; starch and hair
powder, at the maker's; gold and silver wire, at the wiredrawer's; all plate whatsoever, first in the
hands of the vendor, who pays yearly for a license to sell it, and afterwards in the hands of the
occupier, who also pays an annual duty for having it in his custody; and coaches and other wheel
carriages, for which the occupier is excised; though not with the same circumstances of arbitrary
strictness with regard to plate and coaches, as in the other instances. To these we may add coffee and
tea, chocolate, and cocoa paste, for which the duty is paid by the retailer; all artificial wines,
commonly called sweets; paper and pasteboard, first when made, and again if stained or printed;
malt as beforementioned; vinegars; and the manufacture of glass; for all which the duty is paid by
the manufacturer; hops, for which the person that gathers them is answerable; candles and soap,
which are paid for at the maker's; malt liquors brewed for sale, which are excised at the brewery;
cider and perry, at the mill; and leather and skins, at the tanner's. A list, which no friend to his
country would wish to see farther increased.

III. I PROCEED therefore to a third duty, namely that upon salt; which is another distinct branch
of his majesty's extraordinary revenue, and consists in an excise of 3s. 4d. per bushel imposed upon
all salt, by several statutes of king William and other subsequent reigns. This is not generally called
an excise, because under the management of different commissioners: but the commissioners of the
salt duties have by statute I Ann. c. 21. the same powers, and must observe the same regulations, as

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those of other excises. This tax had usually been only temporary; but by statute 26 Geo. II. c. 3. was
made perpetual.

IV. ANOTHER very considerable branch of the revenue is levied with greater cheerfulness, as,
instead of being a burden, it is a manifest advantage to the public. I mean the post-office, or duty for
the carriage of letters. As we have traced the original of the excise to the parliament of 1643, so it
is but justice to observe that this useful invention owes its birth to the same assembly. It is true, there
existed postmasters in much earlier times: but I apprehend their business was confined to the
furnishing of posthorses to who were desirous to travel expeditiously, and to the dispatching
extraordinary packets upon special occasions. The outline of the present plan seems to have been
originally conceived by Mr. Edmond Prideful, who was appointed attorney general to the
commonwealth after the murder of king Charles. He was a chairman of a committee in 1642 for
considering what rates should be set upon inland letters;137 and afterwards appointed postmaster by
an ordinance of both the houses,138 in the execution of which office he first established a weekly
conveyance of letters into all parts of the nation:139 thereby saving to the public the charge of
maintaining postmasters, to the amount of 7000£ per annum. And, his own emoluments being
probably considerable, the common council of London endeavored to erect another post-office in
opposition to his, till checked by a resolution of the commons,140 declaring, that the office of
postmaster is and ought to be in the sole power and disposal of the parliament. This office was
afterwards farmed by one Manley in 1654.141 But, in 1657, a regular post-office was erected by the
authority of the protector and his parliament, upon nearly the same model as has been ever since
adopted, with the same rates of postage as were continued till the reign of queen Anne.142 After the
restoration a similar office, with some improvements, was established by statute 12 Car. II. c. 35.
but the rates of letters were altered, and some farther regulations added, by the statutes 9 Ann. c. 10.
6 Geo. I. c. 21. 26 Geo. II. c. 12. and 5 Geo. III. c. 25. and penalties were enacted, in order to confine
the carriage of letters to the public office only, except in some few cases: a provision, which is
absolutely necessary; for nothing but an exclusive right can support an office of this sort: many rival
independent offices would only serve to ruin one another. The privilege of letters coming free of
postage, to and from members of parliament, was claimed by the house of commons in 1660, when
the first legal settlement of the present post-office was made;143 but afterwards dropped144 upon a
private assurance from the crown, that this privilege should be allowed the members.145 And
accordingly a warrant was constantly issued to the postmaster-general,146 directing the allowance
thereof, to the extent of two ounces in weight: till at length it was expressly confirmed by statute 4
Geo. III. c. 24; which adds many new regulations, rendered necessary by the great abuses crept into
the practice of franking; whereby the annual amount of franked letters had gradually increased, from
23600£ in the year 1715, to 170700£ in the year 1763.147 There cannot be devised a more eligible
method, than this, of raising money upon the subject: for therein both the government and the people
find a mutual benefit. The government acquires a large revenue; and the people do their business
with greater ease, expedition, and cheapness, than they would be able to do is no such tax (and of
course no such office) existed,

V. A FIFTH branch of the perpetual revenue consists in the stamp duties, which are a tax imposed
upon all parchment and paper whereon any legal proceedings, or private instruments of almost any
nature whatsoever, are written; and also upon licenses for retailing wines, of all denominations; upon
all almanacs, newspapers, advertisements, cards, dice, and pamphlets containing less than six sheets

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of paper. These imposts are very various, according to the nature of the thing stamped, rising
gradually from a penny to ten pounds. This is also a tax, which though in some instances it may be
heavily felt, by greatly increasing the expense of all mercantile as well as legal proceedings, yet (if
moderately imposed) is of service to the public in general, by authenticating instruments, and
rendering it much more difficult than formerly to forge deeds of any standing; since, as the officers
of this branch of the revenue vary their stamps frequently, by marks perceptible to none but
themselves, a man that would forge a deed of king William's time, must know and be able to
counterfeit the stamp of that date also. In France and some other countries the duty is laid on the
contract itself, not on the instrument in which it is contained: but this draws the subject into a
thousand nice disquisitions and disputes concerning the nature of his contract, and whether taxable
or not; in which the farmers of the revenue are sure to have the advantage. Our method answers the
purposes of the state as well, and consults the ease of the subject much better. The first institution
of the stamp duties was by statute 5 & 6 W. & M. c. 21. and they have since in many instances been
increased to five times their original amount.

VI. A SIXTH branch is the duty upon houses and windows. As early as the conquest mention is
made in domesday book of fumage or fuage, vulgarly called smoke farthings; which were paid by
custom to the king for every chimney in the house. And we read that Edward the black prince (soon
after his successes in France) in imitation of the English custom, imposed a tax of a florin upon
every hearth in his French dominions.148 But the first parliamentary establishment of it in England
was by statute 13 & 14 Car. II. c. 10. whereby an hereditary revenue of 2s. for every hearth, in all
houses paying to church and poor, was granted to the king for ever. And, by subsequent statutes, for
the more regular assessment of this tax, the constable and two other substantial inhabitants of the
parish, to be appointed yearly, were, once in every year, empowered to view the inside of every
house in the parish. But, upon the revolution, by statute I W. & M. St. I. c. 10. hearth-money was
declared to be “not only a great oppression to the poorer sort, but a badge of slavery upon the whole
people, exposing every man's house to be entered into, and searched at pleasure, by persons
unknown to him; and therefore, to erect a lasting monument of their majesties' goodness in every
house in the kingdom, the duty of hearth-money was taken away and abolished.” This monument
of goodness remains among us to this day: but the prospect of it was somewhat darkened when, in
six years afterwards, by statute 7W. III. c. 18. a tax was laid upon all houses (except cottages) of 2s.
now advanced to 3s. per house, and a tax also upon all windows, if they exceed nine, in such house.
Which rates have been from time to time varied, (particularly by statutes 20 Geo. II. c. 3. and 31
Geo. II. c. 22.) and power is given to surveyors, appointed by the crown, to inspect the outside of
houses, and also to pass through any house two days in the year, into any court or yard to inspect
the windows there.

VII. THE seventh branch of the extraordinary perpetual revenue is the duty arising from licenses to
hackney coaches and chairs in London, and the parts adjacent. In 1654 two hundred hackney
coaches were allowed within London, Westminster, and six miles round, under the direction of the
court of aldermen.149 By statute 13 & 14 Car. II. c. 2. four hundred were licensed; and the money
arising thereby was applied to repairing the streets.150 This number was increased to seven hundred
by statute 5 W. & M. c. 22. and the duties vested in the crown: and by the statute 9 Ann. c. 23. and
other subsequent statutes,151 there are now eight hundred licensed coaches and four hundred chairs.
This revenue is governed by commissioners of its own, and is, in truth, a benefit to the subject; as

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the expense of it is felt by no individual, and its necessary regulations have established a competent
jurisdiction, whereby a very refractory race of men may be kept in some tolerable order.

VIII. THE eighth and last branch of the king's extraordinary perpetual revenue is the duty upon
offices and pensions; consisting in a payment of I s. in the pound ( over and above all other duties)
out of all salaries, fees, and perquisites, of offices and pensions payable by the crown. This highly
popular taxation was imposed by statute 31 Geo. II. c. 22. and is under the direction of the
commissioners of the land tax.

THE clear neat produce of these several branches of the revenue, after all charges of collection and
management paid, amounts annually to about seven millions and three quarters sterling; besides two
millions and a quarter raised annually, at an average, by the land and malt tax. How these immense
sums are appropriated, is next to be considered. And this is, first and principally, to the payment of
the interest of the national debt.

IN order to take a clear and comprehensive view of the nature of this national debt, it must first be
premised, that after the revolution, when our new connections with Europe introduced a new system
of foreign politics, the expenses of the nation, not only in settling the new establishment, but in
maintaining long wars, as principals, on the continent, for the security of the Dutch barrier, reducing
the French monarchy, settling the Spanish succession, supporting the house of Austria, maintaining
the liberties of the Germanic body, and other purposes, increased to an unusual degree: insomuch
that it was not thought advisable to raise all the expenses of any one year by taxes to be levied within
that year, lest the unaccustomed weight of them should create murmurs among the people. It was
therefore the policy of the times, to anticipate the revenues of their posterity, by borrowing immense
sums for the current service of the state, and to lay no more taxes upon the subject than would
suffice to pay the annual interest of the sums so borrowed: by this means converting the principal
debt into a new species of property, transferrable from one man to another at any time and in any
quantity. A system which seems to have had its original in the state of Florence, A. D. 1344: which
government then owed about 60,000£ sterling; and, being unable to pay it, formed the principal into
an aggregate sum, called metaphorically a mount or bank, the shares whereof were transferrable like
our stocks, with interest at 5 per cent. the prices varying according to the exigencies of the state.152
This laid the foundation of what is called the national debt: for a few long annuities created in the
reign of Charles II will hardly deserve that name. And the example then set has been so closely
followed during the long wars in the reign of queen Anne, and since, that the capital of the national
debt, (funded and unfunded) amounted in January 1765 to upwards of 145,000,000£ to pay the
interest of which, and the charges for management, amounting to about four millions and three
quarters, the revenues just enumerated are in the first place mortgaged, and made perpetual by
parliament. Perpetual, I say; but still redeemable by the same authority that imposed them: which,
if it at any time can pay off the capital, will abolish those taxes which are raised to discharge the
interest.

BY this means the quantity of property in the kingdom is greatly increased in idea, compared with
former times; yet, if we coolly consider it, not at all increased in reality. We may boast of large
fortunes, and quantities of money in the funds. But where does this money exist? It exists only in
name, in paper, in public faith, in parliamentary security: and that is undoubtedly sufficient for the

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creditors of the public to rely on. But then what is the pledge which the public faith has pawned for
the security of these debts? The land, the trade, and the personal industry of the subject; from which
the money must arise that supplies the several taxes. In these therefore, and these only, the property
of the public creditors does really and intrinsically exist: and of course the land, the trade, and the
personal industry of individuals, are diminished in their true value just so much as they are pledged
to answer. If A's income amounts to 100£ per annum; and he is so far indebted to B, that he pays him
50£ per annum for his interest; one half of the value of A's property is transferred to B the creditor.
The creditor's property exists in the demand which he has upon the debtor, and no where else; and
the debtor is only a trustee to his creditor for one half of the value of his income. In short, the
property of a creditor of the public, consists in a certain portion of the national taxes: by how much
therefore he is the richer, by so much the nation, which pays these taxes, is the poorer.

THE only advantage, that can result to a nation from public debts, is the increase of circulation by
multiplying the cash of the kingdom, and creating a new species of money, always ready to be
employed in any beneficial undertaking, by means of its transferrable quality; and yet productive
of some profit, even when it lies idle and unemployed. A certain proportion of debt seems therefore
to be highly useful to a trading people; but what that proportion is, it is not for me to determine.
Thus much is indisputably certain, that the present magnitude of our national encumbrances very
far exceeds all calculations of commercial benefit, and is productive of the greatest inconveniences.
For, first, the enormous taxes, that are raised upon the necessaries of life for the payment of the
interest of this debt, are a hurt both to trade and manufactures, by raising the price as well of the
artificer's subsistence, as of the raw material, and of course, in a much greater proportion, the price
of the commodity itself. Secondly, if part of this debt be owing to foreigners, either they draw out
of the kingdom annually a considerable quantity of specie for the interest; or else it is made an
argument to grant them unreasonable privileges in order to induce them to reside here. Thirdly, if
the whole be owing to subjects only, it is then charging the active and industrious subject, who pays
his share of the taxes, to maintain the indolent and idle creditor who receives them

Lastly, and principally, it weakens the internal strength of a state, by anticipating those resources
which should be reserved to defend it in case of necessity. The interest we now pay for our debts
would be nearly sufficient to maintain any war, that any national motives could require. And if our
ancestors in king William's time had annually paid, so long as their exigencies lasted, even a less
sum than we now annually raise upon their accounts, they would in the time of war have borne no
greater burdens, than they have bequeathed to and settled upon their posterity in time of peace; and
might have been eased the instant the exigence was over.

THE produce of the several taxes beforementioned were originally separate and distinct funds; being
securities for the sums advanced on each several tax, and for them only. But at last it became
necessary, in order to avoid confusion, as they multiplied yearly, to reduce the number of these
separate funds, by uniting and blending them together; superadding the faith of parliament for the
general security of the whole. So that there are now only three capital funds of any account, the
aggregate fund, and the general fund, so called from such union and addition; and the south sea fund,
being the produce of the taxes appropriated to pay the interest of such part of the national debt as
was advanced by that company and its annuitants. Whereby the separate funds, which were thus
united, are become mutual securities for each other; and the whole produce of them, thus aggregated,

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is liable to pay such interest or annuities as were formerly charged upon each distinct fund; the faith
of the legislature being moreover engaged to supply any casual deficiencies.

THE customs, excises, and other taxes, which are to support these funds, depending on
contingencies, upon exports, imports, and consumptions, must necessarily be of a very uncertain
amount; but they have always been considerably more than was sufficient to answer the charge upon
them. The surpluses therefore of the three great national funds, the aggregate, general, and south sea
funds, over and above the interest and annuities charged upon them, are directed by statute 3 Geo.
I. c. 7. to be carried together, and to attend the disposition of parliament; and are usually
denominated the sinking fund, because originally destined to sink and lower the national debt. To
this have been since added many other entire duties, granted in subsequent years; and the annual
interest of the sums borrowed on their respective credits is charged on and payable out of the
produce of the sinking fund. However the neat surpluses and savings, after all deductions paid,
amount annually to a very considerable sum; particularly in the year ending at Christmas 1764, to
about two millions and a quarter. For, as the interest on the national debt has been at several times
reduced, (by the consent of the proprietors, who had their option either to lower their interest of be
paid their principal) the savings from the appropriated revenues must needs be extremely large. This
sinking fund is the last resort of the nation; on which alone depend all the hopes we can entertain
of ever discharging or moderating our encumbrances. And therefore the prudent application of the
large sums, now arising from this fund, is a point of the utmost importance, and well worthy the
serious attention of parliament; which has thereby been enabled, in this present year 1765, to reduce
above two millions sterling of the public debt.

BUT, before any part of the aggregate fund (the surpluses whereof are one of the chief ingredients
that form the sinking fund) can be applied to diminish the principal of the public debt, it stands
mortgaged by parliament to raise an annual sum for the maintenance of the king's household and the
civil list. For this purpose, in the late reigns, the produce of certain branches of the excise and
customs, the post-office, the duty on wine licenses, the revenues of the remaining crown lands, the
profits arising from courts of justice, (which articles include all the hereditary revenues of the
crown) and also a clear annuity of 120,000£ in money, were settled on the king for life, for the
support of his majesty's household, and the honor and dignity of the crown. And, as the amount of
these several branches was uncertain, (though in the last reign they were generally computed to raise
almost a million) if they did not arise annually to 800,000£ the parliament engaged to make up the
deficiency. But his present majesty having, soon after his accession, spontaneously signified his
consent, that his own hereditary revenues might be so disposed of as might best conduce to the
utility and satisfaction of the public, and having graciously accepted the limited sum of 800,000£
per annum for the support of his civil list (and that also charged with three life annuities, to the
princess of Wales, the duke of Cumberland, and the princess Amalie, to the amount of 77000£) the
said hereditary and other revenues are now carried into and made a part of the aggregate fund, and
the aggregate fund is charged with the payment of the whole annuity to the crown of 800,000£ per
annum.153 Hereby the revenues themselves, being put under the same care and management as the
other branches of the public patrimony, will produce more and be better collected than heretofore;
and the public is a gainer of upwards of 100,000£ per annum by this disinterested bounty of his
majesty. The civil list, thus liquidated, together with the four millions and three quarters, interest of
the national debt, and the two millions and a quarter produced from the sinking fund, make up the

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seven millions and three quarters per annum, neat money, which were before stated to be the annual
produce of our perpetual taxes; besides the immense, though uncertain, sums arising from the annual
taxes on land and malt, but, which, at an average, may be calculated at more than two millions and
a quarter; and, added to the preceding sum, make the clear produce of the taxes, exclusive of the
charge of collecting, which are raised yearly on the people of this country, and returned into the
king's exchequer, amount to upwards of ten millions sterling.

THE expenses defrayed by the civil list are those that in any shape relate to civil government; as,
the expenses of the household; all salaries to officers of state, to the judges, and every of the king's
servants; the appointments to foreign ambassadors; the maintenance of the royal family; the king's
private expenses, or privy purse; and other very numerous outgoings, as secret service money,
pensions, and other bounties: which sometimes have so far exceeded the revenues appointed for that
purpose, that application has been made to parliament to discharge the debts contracted on the civil
list; as particularly in 1724, when one million was granted for that purpose by the statute II Geo. I.
c. 17.

THE civil list is indeed properly the whole of the king's revenue in his own distinct capacity; the rest
being rather the revenue of the public, or its creditors, though collected, and distributed again, in the
name and by the officers of the crown: it now standing in the same place, as the hereditary income
did formerly; and, as that has gradually diminished, the parliamentary appointments have increased.
The whole revenue of queen Elizabeth did not amount to more than 600,000£ a year:154 that of king
Charles II was155 800,000£ and the revenue voted for king Charles II was156 1,200,000£ though
complaints were made (in the first years at least) that it did not amount to so much.157 But it must
be observed, that under these sums were included all manner of public expenses, among which lord
Clarendon in his speech to the parliament computed that the charge of the navy and land forces
amounted annually to 800,000£ which was ten times more than before the former troubles.158 The
same revenue, subject to the same charges, was settled in on king James II:159 but by the increase of
trade, and more frugal management, it amounted on an average to a million and half per annum,
(besides other additional customs, granted by parliament,160 which produced an annual revenue of
400,000£) out of which his fleet and army were maintained at the yearly expense of1611,100,000£
After the revolution, when the parliament took into it's own hands the annual support of the forces,
both maritime and military, a civil list revenue was settled on the new king and queen, amounting,
with the hereditary duties, to 700,000£ pe. Annum;162 and the same was continued to queen Anne
and king George I.163 That of king George II, we have seen, was nominally augmented to164 800,000£
and in fact was considerably more. But that of his present majesty is expressly limited to that sum;
and, by reason of the charges upon it, amounts at present to little more than 700,000£ And upon the
whole it is doubtless much better for the crown, and also for the people, to have the revenue settled
upon the modern footing rather than the ancient. For the crown; because it is more certain, and
collected with greater ease: for the people; because they are now delivered from the feudal
hardships, and other odious branches of the prerogative. And though complaints have sometimes
been made of the increase of the civil list, yet if we consider the sums that have been formerly
granted, the limited extent under which it is now established, the revenues and prerogatives given
up in lieu of it by the crown, and (above all) the diminution of the value of money compared with
what it was worth in the last century, we must acknowledge these complaints to be void of any
rational foundation; and that it is impossible to support that dignity, which a king of Great Britain

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should maintain, with an income in any degree less than what is now established by parliament.

THIS finishes our inquiries into the fiscal prerogatives of the king; or his revenue, both ordinary and
extraordinary. We have therefore now chalked out all the principal outlines of this vast title of the
law, the supreme executive magistrate, or the king's majesty, considered in his several capacities and
points of view. But, before we entirely dismiss this subject, it may not be improper to take a short
comparative review of the power of the executive magistrate, or prerogative of the crown, as it stood
in former days, and as it stands at present. And we cannot but observe, that most of the laws for
ascertaining, limiting, and restraining this prerogative have been made within the compass of little
more than a century past; from the petition of right in 3 Car. I. to the present time. So that the powers
of the crown are now to all appearance greatly curtailed and diminished since the reign of king
James the first: particularly, by the abolition of the star chamber and high commission courts in the
reign of Charles the first, and by the disclaiming of martial law, and the power of levying taxes on
the subject, by the same prince: by the disuse of forest laws for a century past: and by the many
excellent provisions enacted under Charles the second; especially, the abolition of military tenures,
purveyance, and preemption; the habeas corpus act; and the act to prevent the discontinuance of
parliaments for above three years: and, since the revolution, by the strong and emphatic words in
which our liberties are asserted in the bill of rights, and act of settlement; by the act for triennial,
since turned into septennial, elections; by the exclusion of certain officers from the house of
commons; by rendering the seats of the judges permanent, and their salaries independent; and by
restraining the king's pardon from being pleaded to parliamentary impeachments. Besides all this,
if we consider how the crown is impoverished and stripped of all its ancient revenues, so that it
greatly depends on the liberality of parliament for its necessary support and maintenance, we may
perhaps be led to think, that the balance is inclined pretty strongly to the popular scale, and that the
executive magistrate has neither independence nor power enough left, to from that check upon the
lords and commons, which the founders of our constitution intended.

BUT, on the other hand, it is to be considered, that every prince, in the first parliament after his
accession, has by long usage a truly royal addition to his hereditary revenue settled upon him for his
life; and has never any occasion to apply to parliament for supplies, but upon some public necessity
of the whole realm. This restores to him that constitutional independence, which at his first accession
seems, it must be owned, to be wanting. And then, with regard to power, we may find perhaps that
the hands of government are at least sufficiently strengthened; and that an English monarch is now
in no danger of being overborne by either the mobility or the people. The instruments of power are
not perhaps so open and avowed as they formerly were, and therefore are the less liable to jealous
and invidious reflections; but they are not the weaker upon that account. In short, our national debt
and taxes (besides the inconveniences before-mentioned) have also in their natural consequences
thrown such a weight of power into the executive scale of government, as we cannot think was
intended by our patriot ancestors; who gloriously struggled for the abolition of the then formidable
parts of the prerogative, and by an unaccountable want of foresight established this system in their
stead. The entire collection and management of so vast a revenue, being placed in the hands of the
crown, have given rise to such a multitude of new officers, created by and removable at the royal
pleasure, that they have extended the influence of government to every corner of the nation. Witness
the commissioners, and the kingdom; the commissioners of excise, and their numerous subalterns,
in every inland district; the postmasters, and their servants, planted in every town, and upon every

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public road; the commissioners of the stamps, and their distributors, which are full as scattered and
full as numerous; the officers of the salt duty, which, though a species of excise and conducted in
the same manner, are yet made a distinct corps from the ordinary managers of that revenue; the
surveyors of houses and windows; the receivers of the land tax; the managers of lotteries; and the
commissioners of hackney coaches; all which are either mediately or immediately appointed by the
crown, and removable at pleasure without any reason assigned: these, it requires but little
penetration to see, must give that power, on which they depend for subsistence, an influence most
amazingly extensive. To this may be added the frequent opportunities of conferring particular
obligations, by preference in loans, subscriptions, tickets, remittances, and other money-transactions,
which will greatly increase this influence; and that over those persons whose attachment, on account
of their wealth, is frequently the most desirable. All this is the natural, though perhaps the
unforeseen, consequence of erecting our funds of credit, and to support them establishing our present
perpetual taxes: the whole of which is entirely new since the restoration in 1660; and by far the
greatest part since the revolution in 1688. And the same may be said with regard to the officers in
our numerous army, and the places which the army has created. All which put together gives the
executive power so persuasive an energy with respect to the persons themselves, and so prevailing
an interest with their friends and families, as will amply make amends for the loss of external
prerogative.

BUT, though this profusion of offices should have no effect on individuals, there is still another
newly acquired branch of power; and that is, not the influence only, but the force of a disciplined
army: paid indeed ultimately by the people, but immediately by the crown; raised by the crown,
officered by the crown, commanded by the crown. They are kept on foot it is true only from year
to year, and that by the power of parliament: but during that year they must, by the nature of our
constitution, if raised at all, be at the absolute disposal of the crown. And there need but few words
to demonstrate how great a trust is thereby reposed in the prince by his people. A trust, that is more
than equivalent to a thousand little troublesome prerogatives.

ADD to all this, that, besides the civil list, the immense revenue of seven millions sterling, which
is annually paid to the creditors of the public, or carried to the sinking fund, is first deposited in the
royal exchequer, and thence issued out to the respective offices of payment. This revenue the people
can never refuse to raise, because it is made perpetual by act of parliament: which also, when well
considered, will appear to be a trust of great delicacy and high importance.

UPON the whole therefore I think it is clear, that, whatever may have become of the nominal, the
real power of the crown has not been too far weakened by any transactions in the last century. Much
is indeed given up; but much is also acquired. The stern commands of prerogative have yielded to
the milder voice of influence; the slavish and exploded doctrine of non-resistance has given way to
a military establishment by law; and to the disuse of parliaments has succeeded a parliamentary trust
of an immense perpetual revenue. When, indeed, by the free operation of the sinking fund, our
national debts shall be lessened, when the posture of foreign affairs, and the universal introduction
of a well planned and national militia, will suffer our formidable army to be thinned and regulated;
and when (in consequence of all) our taxes shall be gradually reduced; this adventitious power of
the crown will slowly and imperceptibly diminish, as it slowly and imperceptibly rose. But, till that
shall happen, it will be our especial duty, as good subjects and good Englishmen, to reverence the

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crown, and yet guard against corrupt and servile influence from those who are entrusted with its
authority; to be loyal, yet free; obedient, and yet independent: and, above everything, to hope that
we may long, very long, continue to be governed by a sovereign, who, in all those public acts that
have personally proceeded from himself, has manifested the highest veneration for the free
constitution of Britain; has already in more than one instance remarkably strengthened its outworks;
and will therefore never harbor a thought, or adopt a persuasion, in any the remotest degree
detrimental to public liberty.

NOTES

1. 2 Inst. 15.
2. Stat. 17 Edw. II. c. 14. F. N. B. 32.
3. Matth. Paris.
4. 9 Hen. III. c. 5.
5. 3 Edw. I. c. 21.
6. Co. Litt. 67. 341.
7. F. N. B. 230.
8. Notes on F. N. B. above cited.
9. page 110.
10. 2 Inst. 647.
11. F. N. B. 176.
12. 3 Inst. 154.
13. Numb. 18. 26.
14. 1 Ann. St. 1. c. 7.
15. In like manner, by the civil law, the inheritances or fundi patrimoniales [lands of inheritance] of the imperial crown could
not be alienated, but only let to farm. Cod. l. 11. t. 61.
16. 4 Inst. 273.
17. Mod. Un. hist. xxxiii. 220.
18. Roger North, in his life of lord keeper North, (43. 44) mentions an eyre, or iter, to have been held south of Trent soon
after the restoration: but I have met with no report of its proceedings.
19. 1 Jones. 267–298.
20. Plowd. 315.
21. Stiernh. de jure Sueonum. L. 2. c. 8. Gr. Coustum. cap. 17.
22. 17 Edw. II. c. II.
23. Bracton, L. 3. c. 3. Britton. c. 17. Fleta. L. I. c. 45 & 46.
24. ch. 4. pag. 216.
25. Dr. & St. d. 2. c. 51.

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William Blackstone: Vol. 1, Commentaries on the Laws of England (1765) Page 197

26. Spelm. Cod. apud Wilkins. 305.

27. 26 May, A. D. 1174. I Rym. Foed. 36.
28. Rog. Hoved. in Ric. I.
29. In like manner Constantine the great, finding that by the imperial law the revenue of wrecks was give to the prince's
treasury or fiscus, restrained it by an edict (Cod. II. 5. I.) and ordercd, them to remain to the owners; adding this humane
expostulation, “Quod enim jus habet fiscus in aliena calamitate ut re tam luctuosa compendium sectetur?” [“For what right
has the exchequer in other men's misfortunes, that it should seek gain from so lamentable a source?.”]
30. Bract. l. 3. c. 3.
31. 3 Edw. I. c. 4.
32. Flet. I. c. 44. 2 Inst. 167.
33. §. 28.
34. 2 Inst. 168.
35. Plowd. 166.
36. 2 Inst. 168. Bro. Abr. tit. Wreck.
37. 5 Rep. 106.
38. Quae enim res in tempestate, levandae navis causa, ejiciuntur, hae dominorum permanent. Quia palam est, eas non eo
animo ejici, quod quis habere noluit. [Those things which are cast overboard for the sake of lightening the ship still belong
to the owners. For it is clear that they were not thrown away as relinquished on any other account.] Inst. 2. I. §. 48.
39. 5 Rep. 108.
40. Stiernh. de jure Sueon. l. 3. c. 5.
41. F. N. B. 112.
42. By the civil law, to destroy persons shipwrecked, or prevent their saving the ship, is capital. And to steal even a plank
from a vessel in distress, or wrecked, makes the party liable to answer for the whole ship and cargo.( St. 47. 9. 3.) The laws
also of the Visigoths, and the most early Neapolitan constitutions, punished with the utmost severity all those who neglected
to assist any ship in distress, or plundered any goods cast on shore. (Lindenbrog. Cod. LL. antiq. 146. 715.)
43. 2 Inst. 577.
44. Plowd. 366.
45. 3 Inst. 132. Dalt. Shatiffs. c. 16.
46. Britt. c. 17. Finch. L. 177.
47. l. 3. c. 3. §. 4.
48. Bracton. l. 3.c. 3. . Inst. 133.
49. Ff. 41. I. 31.
50. de jur. b. & p. l. 2. c. 8. §. 7.
51. Glanv. l. I. c. 2. Crag. I. 16. 40.
52. 3 Inst. 133.
53. Cro. Eliz. 694.
54. Finch. L. 212.

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William Blackstone: Vol. 1, Commentaries on the Laws of England (1765) Page 198

55. Ibid.
56. 5 Rep. 109.
57. Fitzh. Abr. tit. Estray. I. 3 Bulstr. 19.
58. Mirr. c. 3. §. 19.
59. 5 Rep. 108. Bro. Abr. tit. Estray. Cro. Eliz. 716.
60. Stiernh. de jur. Gotbor. l. 3. c. 5.
61. Dalt. Sh. 79.
62. Finch. L. 177.
63. l. I. c. 43.
64. 7 Rep 17.
65. I Roll. Abr. 889.
66. Cro. Jac. 147.
67. Cro. Jac. 148. Noy. 119.
68. l. I. c. 12.
69. I Hal. P. C. 419. Fleta. l. I. c. 25.
70. Fitzh. Abr. tit. Enditement. Pl. 27. Stannr. P. C. 20, 21.
71. 3 Inst. 57. I Hal. P. C. 422.
72. Omnia, quae movent ad mortem, sunt Deo danda. [What moves to death we understand.] Bracton. l. 3. c. 5.
73. Exed. 21. 28.
74. Aeschin. contr. Ctrfiph.
75. I Hal. P. C. 422.
76. I Hawk. P. C. c. 26.
77. A similar rule obtained among the ancient Goths. Si quis, me nesciente, quocunque meo telovel instrumento in perniciem
suam abutatur; vel ex aedibus meis cadat, vel incidat in puteum meum, quantumvis tectum vel munitum, vel in cataractum,et
sub molendino meo confrigatur, ipse aliqua mulcta plectar; ut in parte infelicitatis meae numeratur habuisse vel aedificasse
aliquod quo homo periret. [If any one, without my knowledge, use any weapon or instrument of mine for his own destruction;
or fall from my house, or into my well, however securely coveed or fenced, or into my mill-stream, or be crushed in my mill,
let me suffer by some fine; as the misfortune may be reckoned in part mine, to have built or possessed anything by which a
man should perish.] Stiernhook de jure Goth. l. 3. c. 4.
78. Dr. & St. d. 2. c. 51.
79. 3 Inst. 57.
80. 3 Inst. 58. I Hal. P. C. 423. Molloy de jur. maritim. 2. 225.
81. Foster of homicide, 266.
82. Flet. l. I. c. II. §. 10.
83. Dyer. 302. Hutt. 17. Noy 27.
84. F. N. B. 232.

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William Blackstone: Vol. 1, Commentaries on the Laws of England (1765) Page 199

85. 4 Rep. 126.

86. F. N. B. 232.
87. This power, though of late very rarely exerted, is still alluded to in common speech, by that usual expression of begging
a man for a fool.
88. 4 Inst. 203. Com. Journ. 1610.
89. F. N. B. 233.
90. Co. Litt. 42. Fleta. l. 6. c. 40.
91. Inst. 246.
92. 3 p. Wms. 108.
93. 2 p. Wms. 638.
94. Solent praetores, si talem hominem invenerent, qui neque tempus neque finem expensarum habet, sed bono sua
dilacerando et dissipando profundit, curatorem ei dare, exemplo furiosi: et tamdiu erunt ambo in curatione, quamdiu vel
furiosus sanitatem, vel ille bonos mores, receperit. [The praetors are accustomed, when they find a man who sets no bounds
to his expenses, but lavishes his fortune in acts of dissipation, to appoint him a guardian as though he were a madman; and
as the madman so the spendthrift shall be in wardship until the one be restored unto a sanity of mind and the other to reformed
manners.] Ff. 27. 10. I.
95. potter. Antiqu. b. I. c. 26.
96. Bro. Abr. tit. idiot. 4.
97. pag. 271.
98. pag. 163.
99. 2 Inst. 77. 4 Inst. 34.
100. Hoved. A. D. 1188. Carte. I. 719. Hume. I. 329.
101. A. D. 1232.
102. See the second book of these commentaries.
103. cap. 14.
104. 9 Hen. III. c. 37.
105. 25 Edw. I. c. 5. & 6. 34 Edw. I. St. 4. c. I. 14 Edw. III. St. 2. c. I.
106. Madox. hist, exch. 480.
107. 4 Inst. 33.
108. hist. b. 2.
109. 4 Inst 33.
110. Dalt. of sheriffs, 418. Gilb. hist. of exch. c. 4.
111. 29 Nov. 4 Mar. 1642.
112. One of these bills of assessment, in 1656, is preserved in Scobell's collection, 400.
113. Com. Journ. 26 Jun. 9 Dec. 1678.
114. in the years 1732 and 1733.

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William Blackstone: Vol. 1, Commentaries on the Laws of England (1765) Page 200

115. Dyer. 165.

116. Dyer. 43. pl. 24.
117. 2 Inst. 58, 59
118. Dav. 9.
119. This appellation seems to be derived from the French word coustum, or coutum which signifies toll or tribute, and owes
its own etymology to the word coust, which signifies price, charge, or, as we have adopted it in English, cost.
120. 4 Inst. 29.
121. Madox hist exch. 526, 532.
122. Dav. 8. b. 2 Bulstr. 254.
123. Dav. II, 12.
124. Dav. 12.
125. Stat. 6 Hen. VIII. c. 14.
126. 16 Car. I. c. 8.
127. Stat. 12 Car. II. c. 4. II Geo. I. c. 7.
128. hist. I. 13.
129. Montesqu. Sp.£ b. 13. c. 8.
130. hist. b. 3.
131. Com. Journ. 8 Oct. 1642.
132. The translator and continuator of Petavius's chronological history (Lond. 1659.) informs us, that it was first moved for,
28 Mar. 1643, by Mr. Prynne. And it appears from the journals of the commons that on that day the house resolved itself into
a committee to consider of raising money, in consequence of which the excise was afterwards voted. But Mr. Prynne was not
a member of parliament till 7 Nov. 1648; and published in 1654 “A protestation against the illegal, detestable, and oft
condemned tax and extortion of excise in general.” It is probably therefore a mistake of the printer for Mr. Pymme, who was
intended for chancellor of the exchequer under the earl of Bedford. (Lord Clar. b. 7.)
133. Com. Journ. 17 May 1643.
134. Lord Clar. b. 7.
135. 30 May 1643. Dugdale of the troubles 120.
136. Ord. 14 Aug. 1649. c. 50. Scobell. 72. Stat. 1656. c. 19. Scobell. 453.
137. Com. Journ. 28 Mar. 1642.
138. Ibid. 7. Sept. 1644.
139. Ibid. 21 Mar. 1649.
140. Ibid.
141. Scobell. 358.
142. Com. Journ. 9 Jun. 1657. Scobell. 511.
143. Com. Journ. 17 Dec. 1660.
144. Ibid. 22 Dec. 1660.

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William Blackstone: Vol. 1, Commentaries on the Laws of England (1765) Page 201

145. Ibid. 16 Apr. 1735.

146. Ibid. 26 Feb. 1734.
147. Ibid. 28 Mar. 1764.
148. Mod. Un. hist. xxiii. 463. Spelm. Gloss. tit. Fuage.
149. Scobell. 313.
150. Com. Journ. 14 Feb. 1661.
151. 10 Ann. c. 19. §. 158. 12 Geo. I. c. 15. 33 Geo. II. c. 25.
152. Pro tempore, pro spe, pro commodo, minuitur eorum pretium atque augescit. [Their price was lessened and increased
according to time, expectation, or advantage.] Aretin. See Mod. Un. hist. xxxvi. 116.
153. Stat. I. Geo. III. c. I.
154. Lord Clar. continuation. 163.
155. Com. Journ. 4 Sept. 1660.
156. Ibid.
157. Ibid. 4 Jun. 1663. Lord Clar. ibid.
158. Ibid. 165.
159. Stat. I Jac. II. c. I.
160. Stat. I Jac. II. c. 3 & 4.
161. Com. Journ. I Mar. 20 Mar. 1688.
162. Ibid. 14 Mar. 1701.
163. Ibid. 17 Mar. 1701. II Aug. 1714.
164. Stat. I Geo. II. c. I.

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William Blackstone: Vol. 1, Commentaries on the Laws of England (1765) Page 202

CHAPTER 9
Of Subordinate Magistrates

IN a former chapter of these commentaries1 we distinguished magistrates into two kinds; supreme,
or those in whom the sovereign power of the state resides; and subordinate, or those who act in an
inferior secondary sphere. We have hitherto considered the former kind only, namely, the supreme
legislative power or parliament, and the supreme executive power, which is the king: and are now
to inquire into the rights and duties of the principal subordinate magistrates.

AND herein we are not to investigate the powers and duties of his majesty's great officers of state,
the lord treasurer, lord chamberlain, the principal secretaries, or the like; because I do not know that
they are in that capacity in any considerable degree the objects of our laws, or have any very
important share of magistracy conferred upon them: except that the secretaries of state are allowed
the power of commitment, in order to bring offenders to trial.2 Neither shall I here treat of the office
and authority of the lord chancellor, or the other judges of the superior courts of justice; because
they will find a more proper place in the third part of these commentaries. Nor shall I enter into any
minute disquisitions, with regard to the rights and dignities of mayors and aldermen, or other
magistrates of particular corporations; because these are mere private and strictly municipal rights,
depending entirely upon the domestic constitution of their respective franchises. But the magistrates
and officers, whose rights and duties it will be proper in this chapter to consider, are such as are
generally in use and have a jurisdiction and authority dispersedly throughout the kingdom: which
are, principally, sheriffs; coroners; justices of the peace; constables; surveyors of highways; and
overseers of the poor. In treating of all which I shall inquire into, first, their antiquity and original;
next, the manner in which they are appointed and may be removed; and, lastly, their rights and
duties. And first of sheriffs.

I. THE sheriff is an officer of very great antiquity in this kingdom, his name being derived from two
Saxon words, shire reeve, the bailiff or officer of the shire. He is called in Latin vice-comes, as being
the deputy of the earl or comes; to whom the custody of the shire is said to have been committed at
the first division of this kingdom into counties. But the earls in process of time, by reason of their
high employments and attendance on the king's person, not being able to transact the business of the
county, were delivered of that burden;3 reserving to themselves the honor, but the labor was laid on
the sheriff. So that now the sheriff does all the king's business in the county; and though he be still
called vice-comes, yet he is entirely independent of, and not subject to the earl; the king by his
letters patent committing custodiam comitatus [custody of the county] to the sheriff, and him alone.

SHERIFFS were formerly chosen by the inhabitants of the several counties. In confirmation of
which it was ordained by statute 28 Edw. I. c. 8. that the people should have election of sheriffs in
every shire, where the shrievalty is not of inheritance. For anciently in some counties, particularly
on the borders, the sheriffs were hereditary; as I apprehend they are in Scotland, and in the county
of Westmorland, to this day: and the city of London has also the inheritance of the shrievalty of
Middlesex vested in their body by charter.4 The reason of these popular elections is assigned in the
same statute, c. 13. “that the commons might choose such as would not be a burden to them.” And
herein appears plainly a strong trace of the democratical part of our constitution; in which form of
government it is an indispensable requisite, that the people should choose their own magistrates.5

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William Blackstone: Vol. 1, Commentaries on the Laws of England (1765) Page 203

This election was in all probability not absolutely vested in the commons, but required the royal
approbation. For in the Gothic constitution, the judges of their county courts (which office is
executed by our sheriff) were elected by the people, but confirmed by the king: and the form of their
election was thus managed; the people, or incolae territorii [territorial inhabitants], chose twelve
electors, and they nominated three persons, ex quibus rex unum confirmabat6 [of whom the king
confirmed one]. But, with us in England, these popular elections, growing tumultuous, were put an
end to by the statute 9 Edw. II. St. 2. which enacted, that the sheriffs should from thenceforth be
assigned by the lord chancellor, treasurer, and the judges; as being persons in whom the same trust
might with confidence be reposed. By statutes 14 Edw. III. c. 7. and 23 Hen. VI. c. 8. the chancellor,
treasurer, chief justices, and chief baron, are to make this election; and that on the morrow of All
Souls in the exchequer; and the king's letters patent, appointing the new sheriffs, used commonly
to bear date the sixth day of November.7 The statute of Cambridge, 12 Ric. II. c. 2. ordains, that the
chancellor, Treasurer, keeper of the privy seal, steward of the king's house, the king's chamberlain,
clerk of the rolls, the justices of the exchequer, and all other that shall be called to ordain, name, or
make justices of the peace, sheriffs, and other officers of the king, shall be sworn to act indifferently,
and to name no man that sues to be put in office, but such only as they shall judge to be the best and
most sufficient. And the custom now is (and has been at least ever since the time of Fortescue,8 who
was chief justice and chancellor to Henry the sixth) that all the judges, and certain other great
officers, meet in the exchequer chamber on the morrow of All Souls yearly, (which day is now
altered to the morrow of St. Martin by the act for abbreviating Michaelmas term) and then and there
nominate three persons to the king, who afterwards appoints one of them to be sheriff. This custom,
of the twelve judges nominating three persons, seems borrowed form the Gothic constitution
beforementioned; with this difference, that among the Goths the twelve nominors were first elected
by the people themselves. And this usage of ours at its first introduction, I am apt to believe, was
founded upon some statute, though not now to be found among our printed laws: first, because it is
materially different from the directions of all the statutes beforementioned; which it is hard to
conceive that the judges would have countenanced by their concurrence, or that Fortescue would
have inserted in his book, unless by the authority of some statute: and also, because a statute is
expressly referred to in the record, which Sir Edward Coke tells us9 he transcribed from the council
book of 3 Mar. 34 Hen. VI. and which is in substance as follows. The king had of his own authority
appointed a man sheriff of Lincolnshire, which office he refused to take upon him: whereupon the
opinions of the judges were taken, what should be done in this behalf. And the two chief justices,
Sir John Fortescue and Sir John Prisot, delivered the unanimous opinion of them all; “that the king
did an error when he made a person sheriff, that was not chosen and presented to him according to
the statute; that the person refusing was liable to no fine for disobedience, as if he had been one of
the three persons chosen according to the tenor of the statute; that they would advise the king to have
recourse to the statute, or that some other thrifty man be entreated to occupy the office for this year;
and that, the next year, to eschew such inconveniences, the order of the statute in this behalf made
be observed.” But, notwithstanding this unanimous resolution of all the judges of England, thus
entered in the council book, and the statute 34 & 35 Hen. VIII. c. 26. § 61. which expressly
recognizes this to be the law of the land, some of our writers10 have affirmed, that the king, by his
prerogative, may name whom he pleases to be sheriff, whether chosen by the judges or no. This is
grounded on a very particular case in the fifth year of queen Elizabeth, when, by reason of the
plague, there was no Michaelmas term kept at Westminster; so that the judges could not meet there
in crastino animarum [on the morrow of All Souls] to nominate the sheriffs: whereupon the queen

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named them herself, without such previous assembly, appointing for the most part one of the two
remaining in the last year's list.11 And this case, thus circumstanced, is the only precedent in our
books for the making these extraordinary sheriffs. It is true, the reporter adds, that it was held that
the queen by her prerogative might make a sheriff without the election of the judges, non obstante
aliquo statuto in contrarium [notwithstanding any statute to the contrary]: but the doctrine of non
obstante's, which sets the prerogative above the laws, was effectually demolished by the bill of
rights at the revolution, and abdicated Westminster-hall when king James abdicated the kingdom.
So that sheriffs cannot now be legally appointed, otherwise than according to the known and
established law. However, it must be acknowledged, that the practice of occasionally naming what
are called pocket sheriffs, by the sole authority of the crown, has been uniformly continued to this
day.

SHERIFFS, by virtue of several old statutes, are to continue in their office no longer than one year;
and yet it has been said12 that a sheriff may be appointed durante bene placito, or during the king's
pleasure; and so is the form of the royal writ.13 Therefore, till a new sheriff be named, his office
cannot be determined, unless by his own death, or the demise of the king; in which last case it was
usual for the successor to send a new writ to the old sheriff:14 but now by statute I Ann. St. c. 8. all
officers appointed by the preceding king may hold their officers for six months after the king's
demise, unless sooner displaced by the successor. We may farther observe, that by statute I Ric. II.
c. II. no man, that has served the office of sheriff for one year, can be compelled to serve the same
again within three years after.

WE shall find it is of the utmost importance to have the sheriff appointed according to law, when
we consider his power and duty. These are either as a judge, as the keeper of the king's peace, as a
ministerial officer of the superior courts of justice, or as the king's bailiff.

IN his judicial capacity he is to hear and determine all causes of forty shillings value and under, in
his county court, of which more in its proper place: and he has also judicial power in diverse other
civil cases.15 He is likewise to decide the elections of knights of the shire, (subject to the house of
commons) of coroners, and of verderors; to judge of the qualification of voters, and to return such
as he shall determine to be duly elected.

As the keeper of the king's peace, both by common law and special commission, he is the first man
in the county, and superior in rank to any nobleman therein, during his office.16 He may apprehend,
and commit to prison, all persons who break the peace, or attempt to break it: and may bind any one
in a recognizance to keep the king's peace. He may, and is bound ex officio [officially] to, pursue
and take all traitors, murderers, felons, and other misdoers, and commit them to jail for safe custody.
He is also to defend his county against any of the king's enemies when they come into the land: and
for this purpose, as well as for keeping the peace and pursuing felons, he may command all the
people of his county to attend him; which is called the posse comitatus, or power of the county:17
which summons every person above fifteen years old, and under the degree of a peer, is bound to
attend upon warning,18 under pain of fine and imprisonment.19 But though the sheriff is thus the
principal conservator of the peace in his county, yet, by the express directions of the great charter,20
he, together with the constable, coroner, and certain other officers of the king, are forbidden to hold
any pleas of the crown, or, in other words, to try any criminal offense. For it would be highly

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William Blackstone: Vol. 1, Commentaries on the Laws of England (1765) Page 205

unbecoming, that the executioners of justice should be also the judges; should impose, as well as
levy, fines and amercements; should one day condemn a man to death, and personally execute him
the next. Neither may he act as an ordinary justice of the peace during the time of his office:21 for
this would be equally inconsistent; he being in many respects the servant of the justices.

IN his ministerial capacity the sheriff is bound to execute all process issuing from the king's courts
of justice. In the commencement of civil causes, he is to serve the writ, to arrest, and to take bail;
when the cause comes to trial, he must summon and return the jury; when it is determined, he must
see the judgment of the court carried into execution. In criminal matters, he also arrests and
imprisons, he returns the jury, he has the custody of the delinquent, and he executes the sentence of
the court, though it extend to death itself.

As the king's bailiff, it is his business to preserve the rights of the king within his bailiwick; for so
his county is frequently called in the writs: a word introduced by the princes of the Norman line; in
imitation of the French, whose territory is divided into bailiwicks, as that of England into counties.22
He must seize to the king's use all lands devolved to the crown by attainder or escheat; must levy
all fines and forfeitures; must seize and keep all waifs, wrecks, estrays, and the like, unless they be
granted to some subject; and must also collect the king's rents within his bailiwick, if commanded
by process from the exchequer.23

To execute these various offices, the sheriff has under him many inferior officers; an under-sheriff,
bailiffs, and jailers; who must neither buy, sell, nor farm their offices, on forfeiture of 5000£24

THE under-sheriff usually performs all the duties of the office; a very few only excepted, where the
personal presence of the high-sheriff is necessary. But no under-sheriff shall abide in his office
above one year;25 and if he does, by statute 23 Hen. VI. c. 8. he forfeits 200£ a very large penalty
in those early days. And no under-sheriff or sheriff's officer shall practice as an attorney, during the
time he continues in such office:26 for this would be a great inlet to partiality and oppression. But
these salutary regulations are shamefully evaded, by practicing in the names of other attorneys, and
putting in sham deputies by way of nominal under-sheriffs: by reason of which, says Dalton,27 the
under-sheriffs and bailiffs do grow so cunning in their several places, that they are able to deceive,
and it may be well feared that many of them do deceive, both the king, the high-sheriff, and the
county.

BAILIFFS, or sheriff's officers, are either bailiffs of hundreds, or special bailiffs. Bailiffs of
hundreds are officers appointed over those respective districts by the sheriffs, to collect fines therein;
to summon juries; to attend the judges and justices at the assizes, and quarter sessions; and also to
execute writs and process in the several hundreds. But, as these are generally plain men, and not
thoroughly skillful in this latter part of their office, that of serving writs, and making arrests and
executions, it is now usual to join special bailiffs with them; who are generally mean persons
employed by the sheriffs on account only of their adroitness and dexterity in hunting and seizing
their prey. The sheriff being answerable for the misdemeanors of these bailiffs, they are therefore
usually bound in a bond for the due execution of their office, and thence are called bound-bailiffs;
which the common people have corrupted into a much more homely appellation.

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William Blackstone: Vol. 1, Commentaries on the Laws of England (1765) Page 206

Jailers are also the servants of the sheriff, and he must be responsible for their conduct. Their
business is to keep safely all such persons as are committed to them by lawful warrant: and, if they
suffer any such to escape, the sheriff shall answer it to the king, if it be a criminal matter; or, in a
civil case, to the party injured.28 And to this end the sheriff must29 have lands sufficient within the
county to answer the king and his people. The abuses of jailers and sheriff's officers toward the
unfortunate persons in their custody are well restrained and guarded against by statute 32 Geo. II.
c. 28.

THE vast expense, which custom had introduced in serving the office of high-sheriff, was grown
such a burden to the subject, that it was enacted, by statute 13 & 14 Car. II. c. 21. that no sheriff
should keep any table at the assizes, except for his own family, or give any presents to the judges
or their servants, or have more than forty men in livery; yet, for the sake of safety and decence, he
may not have less than twenty men in England and twelve in Wales; upon forfeiture, in any of these
cases, of 200£

II. THE coroner's is also a very ancient office at the common law. He is called coroner, coronator,
because he has principally to do with pleas of the crown, or such wherein the king is more
immediately concerned.30 And in this light the lord chief justice of the king's bench is the principal
coroner in the kingdom, and may (if he pleases) exercise the jurisdiction of a coroner in any part of
the realm.31 But there are also particular coroners for every county of England; usually four, but
sometimes six, and sometimes fewer.32 This officer33 is of equal antiquity with the sheriff; and was
ordained together with him to keep the peace, when the earls gave up the wardship of the county.

HE is still chosen by all the freeholders in the county court, as by the policy of our ancient laws the
sheriffs, and conservators of the peace, and all other officers were, who were concerned in matters
that affected the liberty of the people;34 and as verderors or the forests still are, whose business it is
to stand between the prerogative and the subject in the execution of the forest laws. For this purpose
there is a writ at common law de coronatore eligendo35 [of choosing a coroner] in which it is
expressly commanded the sheriff, “quod talem eligi faciat, qui melius et sciat, et velit, et possit
officio illi intendere.” [“To cause one to be chosen who is best informed, and most willing and able
to hold office.”] And, in order to effect this the more surely, it was enacted by the statute of Westm.
I,36 that none but lawful and discreet knights should be chosen. But it seems it is now sufficient if
a man have lands enough to be made a knight, whether he be really knighted or not:37 and there was
an instance in the 5 Edw. III. of a man being removed from this office, because he was only a
merchant.38 The coroner ought also to have estate sufficient to maintain the dignity of his office, and
answer any fines that may be set upon him for his misbehavior:39 and if he have not enough to
answer, his fine shall be levied on the county, as a punishment for electing an insufficient officer.40
Now indeed, through the culpable neglect of gentlemen of property, this office has been suffered to
fall into disrepute, and get into low and indigent hands: so that, although formerly no coroner would
condescend to be paid for serving his country, and they were by the aforesaid statute of Westm. I.
expressly forbidden to take a reward, under pain of great forfeiture to the king; yet for many years
past they have only desired to be chosen for the sake of their perquisites; being allowed fees for their
attendance by the statute 3 Hen. VII. c. I. which Sir Edward Coke complains of heavily;41 though
they have since his time been much enlarged.42

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William Blackstone: Vol. 1, Commentaries on the Laws of England (1765) Page 207

THE coroner is chosen for life: but may be removed, either by being made sheriff, or chosen
verderor, which are offices incompatible with the other; or by the king's writ de coronatore
exonerando [discharging the coroner], for a cause to be therein assigned, as that he is engaged in
other business, is incapacitated by years or sickness, has not a sufficient estate in the county, or lives
in an inconvenient part of it.43 And by the statute 25 Geo. II. c. 29. extortion, neglect, or
misbehavior, are also made causes of removal.

THE office and power of a coroner are also, like those of a sheriff, either judicial or ministerial; but
principally judicial. This is in great measure ascertained by statute 4 Edw. I. de officio coronatoris
[the office of coroner]; and consists, first, in inquiring (when any person is slain or dies suddenly
or in prison) concerning the manner of his death. And this must be “super visum corporis”44 [“in
view of the body”] for, if the body be not found, the coroner cannot sit.45 He must also sit at the very
place where the death happened; and his inquiry is made by a jury from four, five or six of the
neighboring towns, over whom he is to preside. If any be found guilty by this inquest of murder, he
is to commit to prison for further trial, and is also to inquire concerning their lands, goods and
chattels, which are forfeited thereby: but, whether it be murder or not, he must inquire whether any
deodand has accrued to the king, or the lord of the franchise, by this death: and must certify the
whole of this inquisition to the court of king's bench, or the next assizes. Another branch of his
office is to inquire concerning shipwrecks; and certify whether wreck or not, and who is in
possession of the goods. Concerning treasure trove, he is also to inquire who were the finders, and
where it is, and whether any one be suspected of having found and concealed a treasure; “and that
may be well perceived (says the old statute of Edw. I.) where one lives riotously, haunting taverns,
and has done so of long time:” whereupon he might be attached, and held so bail, upon this
suspicion only.

THE ministerial office of the coroner is only as the sheriff's substitute. For when just exception can
be taken to the sheriff, for suspicion of partiality, (as that he is interested in the suit, or of kindred
to either plaintiff or defendant) the process must then be awarded to the coroner, instead of the
sheriff, for execution of the king's writs.46

III. THE next species of subordinate magistrates, whom I am to consider, are justices of the peace;
the principal of whom is the custos rotulorum, or keeper of the records of the county. The common
law has ever had a special care and regard for the conservation of the peace; for peace is the very
end and foundation of civil society. And therefore, before the present constitution of justices was
invented, there were peculiar officers appointed by the common law for the maintenance of the
public peace. Of these some had, and still have, this power annexed to other offices which they hold;
others had it merely by itself, and were thence named custodes [keepers] or conservatores pacis
[keepers of the peace]. Those that were so virtute officii still continue; but the latter sort are
superseded by the modern justices.

THE kings majesty47 is, by his office and dignity royal, the principal conservator of the peace within
all his dominions; and may give authority to any other to see the peace kept, and to punish such as
break it: hence it is usually called the king's peace. The lord chancellor or keeper, the lord treasurer,
the lord high steward of England, the lord marshal, and lord high constable of England (when any
such officers are in being) and all the justices of the court if king's bench (by virtue of their offices)
and the master of the rolls (by prescription) are general conservators of the peace throughout the

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whole kingdom, and may commit all breakers of it, or bind them in recognizances to keep it:48 the
other judges are only so in their own courts. The coroner is also a conservator of the peace within
his own county;49 as is also the sheriff;50 and both of them may take a recognizance or security for
the peace. Constables, tithing-men, and the like, are also conservators of the peace within their own
jurisdictions; and may apprehend all breakers of the peace, and commit them till they find sureties
for their keeping it.51

THOSE that were, without any office, simply and merely conservators of the peace, either claim that
power by prescription;52 or were bound to exercise it by the tenure of their lands;53 or, lastly, were
chosen by the freeholders in full county court before the sheriff; the writ for their election directing
them to be chosen “de probioribus et potentioribus comitatus sui in custodes pacis.”54 [“From the
most upright and powerful of their county as keepers of the peace.”] But when queen Isabel, the
wife of Edward II, had contrived to depose her husband by a forced resignation of the crown, and
had set up his son Edward III in his place; this, being a thing then without example in England, it
was feared would much alarm the people; especially as the old king was living, though hurried about
from castle to castle; till at last he met with an untimely death. To prevent therefore any risings, or
other disturbance of the peace, the new king sent writs to all the sheriffs in England, the form of
which is preserved by Thomas Walfingham,55 giving a plausible account of the manner of his
obtaining the crown; to wit, that it was done ipsius patris beneplacito [by his father’s good
pleasure]: and withal commanding each sheriff that the peace be kept throughout his bailiwick, on
pain and peril of disinheritance and loss of life and limb. And in a few weeks after the date of these
writs, it was ordained in parliament,56 that, for the better maintaining and keeping of the peace in
every county, good men and lawful, which were no maintainers of evil, or barretors in the country,
should be assigned to keep the peace. And in this manner, and upon this occasion, was the election
of the conservators of the peace taken from the people, and given to the king;57 this assignment being
construed to be by the king's commission.58 But still they were called only conservators, wardens,
or keepers of the peace, till the statute 34 Edw. III. c. I. gave them the power of trying felonies; and
then they acquired the more honorable appellation of justices.59

THESE justices are appointed by the king's special commission under the great seal, the form of
which was settled by all the judges, A. D. 1590.60 This appoints them all,61 jointly and severally, to
keep the peace, and any two or more of them to inquire of and determine felonies, and other
misdemeanors: in which number some particular justices, or one of them, are directed to be always
included, and no business to be done without their presence; the words of the commission running
thus, “quorum aliquem vestrum, A. B. C. D. &c. unum esse volumus” [“of whom we will that some
one of you, A, B, C, D, etc, be one”]; whence the persons so named are usually called justices of the
quorum. And formerly it was customary to appoint only a select number of justices, eminent for their
skill and discretion, to be of the quorum; but now the practice is to advance almost all of them to that
dignity, naming them all over again in the quorum clause, except perhaps only some one
inconsiderable person for the sake of propriety: and no exception is now allowable, for not
expressing in the form of warrants, etc, that the justice who issued them is of the quorum.62

TOUCHING the number and qualifications of these justices; it was ordained by statute 18 Edw. III.
c. 2. that two, or these, of the best reputation in each county shall be assigned to be keepers of the
peace. But these being found rather too few for that purpose, it was provided by statute 34 Edw. III.
c. I. that one lord, and three, or four, of the most worthy men in the county, with some learned in the

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law, shall be made justices in every county. But afterwards the number of justices, though the
ambition of private persons, became so large, that it was thought necessary by statute 12 Rec. II. c.
10. and 14 Rec. II. c. 11. to restrain them at first to six, and afterwards to eight only. But this rule
is now disregarded, and the cause seems to be (as Lambard observed long ago63) that the growing
number of statute laws, committed from time to time to the charge of justices of the peace, have
occasioned also (and very reasonably) their increase to a larger number. And, as to their
qualifications, the statutes just cited direct them to be of the best reputation, and most worthy men
in the county: and the statute 13 Ric. II. c. 10. orders them to be of the most sufficient knights,
esquires, and gentlemen of the law. Also by statute 2 Hen. V. St. I. c. 4. and St. 2. c. I. they must be
resident in their several counties. And because, contrary to these statutes, men of small substance
had crept into the commission, whose poverty made them both covetous and contemptible, it was
enacted by statute 18 Hen. VI. c. 11. that no justice should be put in commission, if he had not lands
to the value of 20£ per annum. And, the rate of money being greatly altered since that time, it is now
enacted by statute 5 Geo. II. c. II. that every justice, except as is therein excepted, shall have 100£
per annum clear of all deductions; and, if he acts without such qualification, he shall forfeit 100£
which64 is almost an equivalent to the 20£ per annum required in Henry the sixth's time: and of this
qualification65 the justice must now make oath. Also it is provided by the act 5 Geo. II. that no
practicing attorney, solicitor, or proctor, shall be capable of acting as a justice of the peace.

As the office of these justices is conferred by the king, so it subsists only during his pleasure; and
is determinable, I. By the demise of the crown; that is, in six months after.66 2. By express writ under
the great seal,67 discharging any particular person from being any longer justice. 3. By superseding
the commission by writ of supersedeas, which suspends the power of all the justices, but does not
totally destroy it; seeing it may be revived again by another writ, called a procedendo [proceeding].
4. By a new commission, which virtually, though silently, discharges all the former justices that are
not included therein; for two commissions cannot subsist at once. 5. By accession of the office of
sheriff or coroner.68 Formerly it was thought, that if a man was named in any commission of the
peace, and had afterwards a new dignity conferred upon him, that this determined his office; he no
longer answering the description of the commission: but now69 it is provided, that notwithstanding
a new title of dignity, the justice on whom it is conferred shall still continue a justice.

THE power, office, and duty of a justice of the peace depend on his commission, and on the several
statutes, which have created objects of his jurisdiction. His commission, first, empowers him singly
to conserve the peace; and thereby gives him all the power of the ancient conservators at the
common law, in suppressing riots and affrays, in taking securities for the peace, and in apprehending
and committing felons and other inferior criminals. It also empowers any two or more of them to
hear and determine all felonies and other offenses; which is the ground of their jurisdiction at
sessions, of which more will be said in its proper place. And as to the powers given to one, two, or
more justices by the several statutes, that from time to time have heaped upon them such an infinite
variety of business, that few care to undertake, and fewer understand, the office; they are such and
of so great importance to the public, that the country is greatly obliged to any worthy magistrate, that
without sinister views of his own will engage in this troublesome service. And therefore, if a well
meaning justice makes any undesigned slip in his practice, great lenity and indulgence is shown to
him in the courts of law; and there are many statutes made to protect him in the upright discharge
of his office:70 which, among other privileges, prohibit such justices from being sued for any
oversights without notice beforehand; and stop all suits begun, on tender made of sufficient amends.

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But, on the other hand, any malicious or tyrannical abuse of their office is sure to be severely
punished; and all persons who recover a verdict against a justice, for any wilful or malicious injury,
are entitled to double costs.

IT is impossible upon our present plan to enter minutely into the particulars of the accumulated
authority, thus committed to the charge of these magistrates. I must therefore refer myself at present
to such subsequent parts of these commentaries, as will in their turns comprise almost every object
of the justices' jurisdiction: and in the mean time recommend to the student the perusal of Mr.
Lambard's Eirenarcha, and Dr Burn's Justice of the Peace; wherein he will find everything relative
to this subject, both in ancient and modern practice, collected with great care and accuracy, and
disposed in a most clear and judicious method.

I SHALL next consider some officers of lower rank than those which have gone before, and of more
confined jurisdiction; but still such as are universally in use through every part of the kingdom.

IV. FOURTHLY, then, of the constable. The word constable is frequently said to be derived from
the Saxon, koning-staple, and to signify the support of the king. But, as we borrowed the name as
well as the office of constable from the french, I am rather inclined to deduce it, with Sir H. Spelman
and Dr Cowel, from that language, wherein it is plainly derived from the Latin comes stabuli, an
officer well known in the empire; so called because, like the great constable of France, as well as
the lord high constable of England, he was to regulate all matters of chivalry, tilts, tournaments, and
feats of arms, which were performed on horseback. This great office of lord high constable has been
disused in England, except only upon great and solemn occasions, as the king's coronation and the
like, ever since the attainder of Stafford duke of Buckingham under king Henry VIII; as in France
it was suppressed about a century after by an edict of Louis XIII:71 but from his office, says
Lambard,72 this lower constableship was at first drawn and fetched, and is as it were a very finger
of that hand. For the statute of Winchester,73 which first appoints them, for the better keeping of the
peace, two constables in every hundred and franchise shall inspect all matters relating to arms and
armor.

CONSTABLES are of two sorts, high constables, and petty constables. The former were first
ordained by the statute of Winchester, as before-mentioned; and are appointed at the court leets of
the franchise or hundred over which they preside, or, in default of that, by the justices at their quarter
sessions; and are removable by the same authority that appoints them.74 The petty constables are
inferior officers in every town and parish, subordinate to the high constable of the hundred, first
instituted about the reign of Edward III.75 These petty constables have two offices united in them;
the one ancient, the other modern. Their ancient office is that of headborough, tithing-man, or
borsholder; of whom we formerly spoke,76 and who are as ancient as the time of the king Alfred:
their more modern office is that of constable merely; which was appointed (as was observed) so
lately as the reign of Edward III, in order to assist the high constable.77 And in general the ancient
headboroughs, tithing-men, and borsholders, were made use of to serve as petty constables; though
not so generally, but that in many places they still continue distinct officers from the constable. They
are all chosen by the jury at the court leet; or, if no court leet be held, are appointed by two justices
of the peace.78

THE general duty of all constables, both high and petty, as well as of the other officers, is to keep

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the king's peace in their several districts; and to that purpose they are armed with very large powers,
of arresting, and imprisoning, of breaking open houses, and the like: of the extent of which powers,
considering what manner of men are for the most part put upon these offices, it is perhaps very well
that they are generally kept in ignorance. One of their principal duties, arising from the statute of
Winchester, which appoints them, is to keep watch and ward in their respective jurisdictions. Ward,
guard, or custodia, is chiefly intended of the day time, in order to apprehend rioters, and robbers on
the highways; the manner of doing which is left to the discretion of the justices of the peace and the
constable,79 the hundred being however answerable for all robberies committed therein, by day light,
for having kept negligent guard. Watch is properly applicable to the night only, (being called among
our Teutonic ancestors wacht or wacta80) and it begins at the time when ward ends, and ends when
that begins; for, by the statute of Winchester, in walled towns the gates shall be closed from
sunsetting to sunrising, and watch shall be kept in every borough and town, especially in the summer
season, to apprehend all rogues, vagabonds, and night-walkers, and make them give an account of
themselves. The constable may appoint watchmen at his discretion, regulated by the custom of the
place; and these, being his deputies, have for the time being the authority of their principal. But, with
regard to the infinite number of other minute duties, that are laid upon constables by a diversity of
statutes, I must again refer to Mr. Lambard and Dr Burn; in whose compilations may be also seen,
what duties belong to the constable or tithing-man indifferently, and what to the constable only: for
the constable may do whatever the tithing-man may; but it does not hold e converso; for the
tithing-man has not an equal power with the constable.

V. WE are next to consider the surveyors of the highways. Every parish is bound of common right
to keep the high roads, that go through it, in good and sufficient repair; unless by reason of the
tenure of lands, or otherwise, this care is consigned to some particular private person. From this
burden no man was exempt by our ancient laws, whatever other immunities he might enjoy: this
being part of the trinoda necessitas [the threefold obligation], to which every man's estate was
subject; viz. expeditio contra hostem, arcium constructio, et pontium reparatio [going against the
enemy, construction of towers and reparation of bridges]: for, though the reparation of bridges only
is expressed, yet that of roads also must be understood; as in the Roman law, ad instructiones
reparationesque itinerum et pontium, nullum genus hominum, nulliusque dignitatis ac venerationis
mentis, cessare oportet.81 [With respect to the construction and repairing of ways and bridges no
class of men of whatever rank or dignity should be exempted.] And indeed now, for the most part,
the care of the roads only seems to be left to parishes; that of bridges being in great measure
devolved upon the county at large, by statute 22 Hen. VIII. c. 5. If the parish neglected these repairs,
they might formerly, as they may still, be indicted for such their neglect: but it was not then
incumbent on any particular office to call the parish together, and set them upon this work; for which
reason by the statute 2 & 3 ph. & M. c. 8. surveyors of the highways were ordered to be chosen in
every parish.82

THESE surveyors were originally, according to the statute of Philip and Mary, to be appointed by
the constable and churchwardens of the parish; but now83 they are constituted by two neighboring
justices, out of such substantial inhabitants as have either 10£ per annum of their own, or rent 30£
a year, or are worth in personal estate 100£.

THESE office and duty consists in putting in execution a variety of statutes for the repairs of the
highways; that is, of ways leading from one town to another: by which it is enacted, 1. That they

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may remove all annoyances in the highways, or give notice to the owner to remove them; who is
liable to penalties on noncompliance. 2. They are to call together all the inhabitants of the parish,
six days in every year, to labor in repairing the highways; all persons keeping drafts, or occupying
lands, being obliged to send a team for every draft, and for every 50£ a year, which they keep or
occupy; and all other persons to work or find a laborer. The work must be completed before harvest;
as well for providing a good road for carrying in the corn, as also because all hands are then
supposed to be employed in harvest work. And every cartway must be made eight feet wide at the
least;84 and may be increased by the quarter sessions to the breadth of four and twenty feet. 3. The
surveyors may lay out their own money in purchasing materials for repairs, where there is not
sufficient within the parish, and shall be reimbursed by a rate, to be allowed at a special sessions.
4. In case the personal labor of the parish be not sufficient, the surveyors, with the consent of the
quarter sessions, may levy a rate (not exceeding 6 d. in the pound) on the parish, in aid of the
personal duty; for the due application of which they are to account upon oath. As for turnpikes,
which are now universally introduced in aid of such rates, and the law relating to them, depend
entirely on the particular powers granted in the several road acts, and therefore have nothing to do
with this compendium of general law.

VI. I PROCEED therefore, lastly, to consider the overseers of the poor; their original, appointment,
and duty.

THE poor of England, till the time of Henry VIII, subsisted entirely upon private benevolence, and
the charity of well disposed Christians. For, though it appears by the mirrour,85 that by the common
law the poor were to be “sustained by parsons, rectors of the church, and the parishioners; so that
none of them dye for default of sustenance;” and though by the statutes 12 Ric. II. c. 7. and 19 Hen.
VII. c. 12. the poor are directed to be sustained in the cities or towns wherein they were born, or
such wherein they had dwelt for three years (which seem to be the first rudiments of parish
settlements) yet till the statute 27 Hen. VIII. c. 26. I find no compulsory method chalked out for this
purpose: but the poor seem to have been left to such relief as the humanity of their neighbors would
afford them. The monasteries were, in particular, their principal resource; and, among other bad
effects which attended the monastic institutions, it was not perhaps one of the least (though
frequently esteemed quite otherwise) that they supported and fed a very numerous and very idle
poor, whose sustenance depended upon what was daily distributed in alms at the gates of the
religious houses. But, upon the total dissolution of these, the inconvenience of thus encouraging the
poor in habits of indolence and beggary was quickly felt throughout the kingdom: and abundance
of statutes were made in the reign of king Henry the eighth, for providing for the poor and impotent;
which, the preambles to some of them recite, had of late years strangely increased. These poor were
principally of two sorts: sick and impotent, and therefore unable to work; idle and sturdy, and
therefore able, but not willing, to exercise any honest employment. To provide in some measure for
both of these, in and about the metropolis, his son Edward the sixth founded three royal hospitals;
Christ's, and St. Thomas's, for the relief of the impotent through infancy or sickness; and Bridewell
for the punishment and employment of the vigorous and idle. But these were far from being
sufficient for the care of the poor throughout the kingdom at large; and therefore, after many other
fruitless experiments, by statute 43 Eliz. c. 2. overseers of the poor were appointed in every parish.

BY virtue of the statute last mentioned, these overseers are to be nominated yearly in Easter-week,
or within one month after (though a subsequent nomination will be valid),86 by two justices dwelling

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near the parish. They must be substantial householders, and so expressed to be in the appointment
of the justices.87

THEIR office and duty, according to the same statute, are principally these: first, to raise competent
sums for the necessary relief of the poor, impotent, old, blind, and such other, being poor and not
able to work: and, secondly, to provide work for such as are able and cannot otherwise get
employment: but this latter part of their duty, which, according to the wise regulations of that
salutary statute, should go hand in hand with the other, is now most shamefully neglected. However,
for these joint purposes, they are empowered to make and levy rates upon the several inhabitants of
the parish, by the same act of parliament; which has been farther explained and enforced by several
subsequent statutes.

THE two great objects of this statute seem to have been, 1. To relieve the impotent poor, and them
only. 2. To find employment for such as are able to work: and this principally by providing stocks
to be worked up at home, which perhaps might be more beneficial than accumulating all the poor
in one common work-house; a practice which tends to destroy all domestic connections (the only
felicity of the honest and industrious laborer) and to put the sober and diligent upon a level, in point
of their earnings, with those who are dissolute and idle. Whereas, if none were to be relieved but
those who are incapable to get their livings, and that in proportion to their parents, but such as are
brought up in rags and idleness; and if every poor man and his family were employed whenever they
requested it, and were allowed the whole profits of their labor; ) a spirit of cheerful industry would
soon disuse itself through every cottage; work would become easy and habitual, when absolutely
necessary to their daily subsistence; and the most indigent peasant would go through his task without
a murmur, if assured that he and his children (when incapable of work through infancy, age, or
infirmity) would then, and then only, be entitled to support form his opulent neighbors.

THIS appears to have been the plan of the statute of queen Elizabeth; in which the only defect was
confining the management of the poor to small, parochial, districts; which are frequently incapable
of furnishing proper work, or providing an able director. However, the laborious poor were then at
liberty to seek employment wherever it was to be had; none being obliged to reside in the places of
their settlement, but such as were unable or unwilling to work; and those places of settlement being
only such where they were born, or had made their abode, originally for three years,88 and afterwards
(in the case of vagabonds) for one year only.89

AFTER the restoration, a very different plan was adopted, which has rendered the employment of
the poor more difficult, by authorizing the subdivision of parishes; has greatly increased their
number, by confining them all to their respective districts; has given birth to the intricacy of our
poor-laws, by multiplying and rendering more easy the methods of gaining settlements; and, in
consequence, has created an infinity of expensive lawsuits between contending neighborhoods,
concerning those settlements and removals. By the statute 13 & 14 Car. II. c. 12. a legal settlement
was declared to be gained by birth, inhabitancy, apprenticeship, or service for forty days; within
which period all intruders were made removable from any parish by two justices of the peace, unless
they settled in a tenement of the annual value of 10£. The frauds, naturally consequent upon this
provision, which gave a settlement by so short a residence, produced the statute I Jac. II. c. 17.
which directed notice in writing to be delivered to the parish officers, before a settlement could be
gained by such residence. Subsequent provisions allowed other circumstances of notoriety to be

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equivalent to such notice given; and those circumstances have from time to time been altered,
enlarged, or restrained, whenever the experience of new inconveniences, arising daily from new
regulations, suggested the necessity of a remedy. And the doctrine of certificates was invented, by
way of counterpoise, to restrain a man and his family from acquiring a new settlement by any length
of residence whatever, unless in two particular excepted cases; which makes parishes very cautious
of giving such certificates, and of course confines the poor at home, where frequently employment
can be had.

THE law of settlements may be therefore now reduced to the following general heads; or, a
settlement in a parish may be acquired, 1. By birth; which is always prima facie the place of
settlement, until some other can be shown.90 This is also always the place of settlement of a bastard
child; for a bastard, having in the eye of the law no father, cannot be referred to his settlement, as
other children may.91 But, in legitimate children, though the place of birth be prima facie the
settlement, yet it is not conclusively so; for there are, 2. Settlements by parentage, being the
settlement of one's father or mother: all children being really settled in the parish where their parents
are settled, until they get a new settlement for themselves.92 A new settlement may be acquired
several ways; as 3. By marriage. For a woman, marrying a man that is settled in another parish,
changes her own: the law not permitting the separation of husband and wife.93 But if the man be a
foreigner, and has no settlement, her's is suspended during his life, if he remains in England, and be
able to maintain her; but in his absence, or during (perhaps) his inability, or after his death she may
return again to her old settlement.94 The other methods of acquiring settlements in any parish are all
reducible to this one, of forty days residence therein: but this forty days residence (which is
construed to be lodging or lying there) must not be by fraud, or stealth, or in any clandestine manner;
but accompanied with one or other of the following concomitant circumstances. The next method
therefore of gaining a settlement, is, 4. By forty days residence, and notice. For if a stranger comes
into a parish, and delivers notice in writing of his place of abode, and number of his family, to one
of the overseers ( which must be read in the church and registered) and resides there unmolested for
forty days after such notice, he is legally settled thereby.95 For the law presumes that such a one at
the time of notice is not likely to become chargeable, else he would not venture to give it; or that,
in such case, the parish would take care to remove him. But there are also other circumstances
equivalent to such notice: therefore, 5. Renting for a year tenement of the yearly value of ten pounds,
and residing forty days in the parish, gains a settlement without notice;96 upon the principle of
having substance enough to gain credit for such a house. 6. Being charged to and paying the public
taxes and levies of the parish; and, 7. Executing any public parochial office for a whole year in the
parish, as churchwarden, etc; are both of them equivalent to notice, and gain a settlement,97 when
coupled with a residence of forty days. 8. Being hired for a year, when unmarried, and childless, and
serving a year in the same service; and 9. Being bound an apprentice for seven years; give the
servant and apprentice a settlement, without notice,98 in that place wherein they serve the last forty
days. This is meant to encourage application to trades, and going out to reputable services. 10.
Lastly, the having an estate of one's own, and residing thereon forty days, however small the value
may be, in case it be acquired by act of law or of a third person, as by descent, gift, devise, etc, is
a sufficient settlement:99 but if a man acquire it by his own act, as by purchase, (in its popular sense,
in consideration of money paid) then100 unless the consideration advanced, bona fide, be 30£ it is no
settlement for any longer time, than the person shall inhabit thereon. He is in no case removable
from his own property; but he shall not, by any trifling or fraudulent purchase of his own, acquire
a permanent and lasting settlement.

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ALL persons, not so settled, may be removed to their own parishes, on complaint of the overseers,
by two justices of the peace, if they shall adjudge them likely to become chargeable to the parish,
into which they have intruded: unless they are in a way of getting a legal-settlement, as by having
hired a house of 10£ per annum, or living in an annual service; for then they are not removable.101
And in all other cases, if the parish to which they belong, will grant them a certificate,
acknowledging them to be their parishioners, they cannot be removed merely because likely to
become chargeable, but only when they become actually chargeable.102 But such certificated persons
can gain no settlement by any of the means above-mentioned; unless by renting a tenement of 10£
per annum, or by serving an annual office in the parish, being legally placed therein: neither can an
apprentice or servant to such certificated person gain a settlement by such their service.103

THESE are the general heads of the laws relating to the poor which, by the resolutions of the courts
of justice thereon within a century past, are branched into a great variety. And yet, notwithstanding
the pains that has been taken about them, they still remain very imperfect, and inadequate to the
purposes they are designed for: a fate, that has generally attended most of our statute laws, where
they have not the foundation of the common law to build on. When the shires, the hundreds, and the
tithings, were kept in the same admirable order that they were disposed in by the great Alfred, there
were no persons idle, consequently none but the impotent that needed relief: and the statute of 43
Eliz. seems entirely founded on the same principle. But when this excellent scheme was neglected
and departed from, we cannot but observe with concern, what miserable shifts and lame expedients
have from time to time been adopted, in order to patch up the flaws occasioned by this neglect.
There is not a more necessary or more certain maxim in the frame and constitution of society, than
that every individual must contribute his share, in order to the well-being of the community: and
surely they must be very deficient in found policy, who suffer one half of a parish to continue idle,
dissolute, and unemployed; and then form visionary schemes, and at length are amazed to find, that
the industry of the other half is not able to maintain the whole.

NOTES

1. ch. 2. pag. 142.

2. 1 I. con. 70. 2 Leon. 175. Comb. 343. 5 Mod. 84. Salk. 347.
3. Dalton of sheriffs, c. I.
4. 3 Rep. 72.
5. Montesq. Sp. L. b. 2. c. 2.
6. Stiernhook de jure Gorb. l. I. c. 3.
7. Stat. 12. Edw. IV. c. 1.
8. de L. L. c. 24.
9. 2 Inst. 559.
10. Jenkins. 229.
11. Dyer 225.
12. 4 Rep. 32.

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William Blackstone: Vol. 1, Commentaries on the Laws of England (1765) Page 216

13. Dalt. of sheriffs. 8.

14. Dalt. 7.
15. Dalt. c. 4.
16. I Roll. Rep. 237.
17. Dalt. c. 95.
18. Lamb. Eiren. 315.
19. Stat. 2 Hen V. c. 8.
20. cap. 17.
21. Stat. I Mar. St. 2. c. 8.
22. Fortesc. de L. L. c. 24.
23. Dalt. c. 9.
24. Stat. 3. Geo. I. c. 15.
25. Stat. 42 Edw. III. c. 9.
26. Stat. I Hen. V. c. 4.
27. of sheriffs, c. 115.
28. Dalt. c. 118. 4 Rep. 34.
29. Stat. 13 & 14 Car. II. c. 21.
30. 2 Inst. 31. 4 Inst. 271.
31. 4 Rep. 57.
32. F. N. B. 163.
33. Mirror, c. I. §. 3.
34. 2 Inst. 558.
35. F. N. B. 163.
36. 3Edw. I. c. 10.
37. F. N. B. 163, 164.
38. 2 Inst. 32.
39. F. N. B. 163, 164.
40. Mirr. c. I. §. 3. 2 Inst. 175.
41. 2 Inst. 210.
42. Stat. 25 Geo. II. c. 29.
43. F. N. B. 163, 164.
44. 4 Inst. 271.
45. Thus, in the Gothic constitution, before any fine was payable by the neighborhood, for the slaughter of a man therein,
“de corpore delicti constare oportebat; i.e. non tam fuisse aliquem in territorio isto mortuum inventum quam vulneratum et

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William Blackstone: Vol. 1, Commentaries on the Laws of England (1765) Page 217

caesum: Potest enim homo etiam ex alia causa subito mori.” [“It was necessary that the crime should be evident; that is, not
merely that a person was found dead in that district, but that he was wounded and slain. For a man may die suddenly from
other causes.”] Stiernhook de jure Gothor, l.3.c.4.
46. 4 Inst. 271.
47. Lambard. Eirenarch. 12.
48. Lamb. 12.
49. Britton. 3.
50. F. N. B. 81.
51. Lamb. 14.
52. Lamb. 15.
53. Ibid. 17.
54. Lamb. 16.
55. Hist. A. D. 1327.
56. Stat. I Edw. III. c. 16.
57. Lamb. 20.
58. Stat. 4 Edw. III. c. 2. and 18 Edw. III. St. 2. c. 2.
59. Lamb. 23.
60. Lamb. 43.
61. See the form itself, Lamb. 35. Burn. tit. Juffices, §. 2.
62. Stat. 26 Geo. II. c. 27.
63. Lamb. 34.
64. See bishop Fleetwood's calculations in his chronicon pretiosum.
65. Stat. 18 Geo. II. c. 20.
66. Stat. I Ann. c. 8.
67. Lamb. 67.
68. Stat. I Mar. St. I. c. 8.
69. Stat. I Edw. VI. c. 7.
70. Stat. 7 Jac. I. c. 5. 21 Jac. I. c. 12. 24 Geo. II. c. 44.
71. philips's life of pole. ii. III.
72. of constables, 5.
73. 13 Edw. I. c. 6.
74. Salk. 150.
75. Spelm. Gloss. 148.
76. pag. 110.

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William Blackstone: Vol. 1, Commentaries on the Laws of England (1765) Page 218

77. Lamb. 9.
78. Stat. 14 & 15 Car. II. c. 12.
79. Dalt. just. c. 104.
80. Excubias et explorationes quas wactas vocant. [Watches and searches which they call wactas.] Capitular. Hludovic. pii.
cap. I. A. D. 815.
81. C. II. 74. 4.
82. This office, Mr. Dalton ( just. cap. 50.) says, exactly answers that of the curatores viarum [keepers of the ways] of the
Romans: but, I should guess that theirs was an office of rather more dignity and authority than ours, not only from comparing
the method of making and mending the Roman ways with those of our country parishes; but also because one Thermus, who
was the curator of the Flaminian way, was candidate for the consulship with Julius Caesar. (Cic. ad Attic. l. I. cp. I.)
83. Stat. 3 W. & M. c. 12.
84. This, by the laws of the twelve tables at Rome, was the standard for roads that were straight; but, in winding ways, the
breadth was directed to be sixteen feet. Ff. 8. 3. 8.
85. c. I. §. 3.
86. Stra. 1123.
87. 2 Lord Raym. 1394.
88. Stat. 19 Hen. VII. c. 12. I Edw. VI. c. 3. 3 Edw. VI. c. 16. 14 Eliz. c. 5.
89. Stat. 39 Eliz. c. 4.
90. I Lord Raym. 567.
91. Salk. 427.
92. Salk. 528. 2 Iord Raym, 1473.
93. Stra. 544.
94. Soley. 249.
95. Stat. 13 & 14 Car. II. c. 12. I Jac. II. c. 17. 3 & 4 W. & M. c. II.
96. Stat. 13 & 14 Car. II. c. 12.
97. Stat. 3 & 4 W. & M. c. 11.
98. Stat. 3 & 4 W. & M. c. 11. 8 & 9 W. III. c. 10. and 31 Geo. II. c. II.
99. Salk. 524.
100. Stat. 9 Geo. I. c. 7.
101. Salk. 472.
102. Stat. 8 & 9 W. III. c. 30.
103. Stat. 12 Ann. c. 18.

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William Blackstone: Vol. 1, Commentaries on the Laws of England (1765) Page 219

CHAPTER 10
Of the People, Whether Aliens, Denizens, or Natives

HAVING, in the eight preceding chapters, treated of persons as they stand in the public relations of
magistrates, I now proceed to consider such persons as fall under the denomination of the people.
And herein all the inferior and subordinate magistrates, treated of in the last chapter, are included.

THE first and most obvious division of the people is into aliens and natural-born subjects.
Natural-born subjects are such as are born within the dominions of the crown of England, that is,
within the ligeance, or as it is generally called, the allegiance of the king; and aliens, such as are
born out of it. Allegiance is the tie, or ligamen, which binds the subject to the king, in return for that
protection which the king affords the subject. The thing itself, or substantial part of it, is founded
in reason and the nature of government; the name and the form are derived to us from our Gothic
ancestors. Under the feudal system, every owner of lands held them in subjection to some superior
or lord, from whom or whose ancestors the tenant or vassal had received them: and there was mutual
trust or confidence subsisting between the lord and vassal, that the lord should protect the vassal in
the enjoyment of the territory he had granted him, and, on the other hand, that the vassal should be
faithful to the lord and defend him against all his enemies. This obligation on the part of the vassal
was called his fidelitas or fealty; and an oath of fealty was required, by the feudal law, to be taken
by all tenants to their landlord, which is couched in almost the same terms as our ancient oath of
allegiance:1 except that in the usual oath of fealty there was frequently a saving or exception of the
faith due to a superior lord by name, under whom the landlord himself was perhaps only a tenant or
vassal. But when the acknowledgment was made to the absolute superior himself, who was vassal
to no man, it was no longer called the oath of fealty, but the oath of allegiance; and therein the tenant
swore to bear faith to his sovereign lord, in opposition to all men, without any saving or exception:
“contra omnes homines fidelitatem fecit.”2 Land held by this exalted species of fealty was called
feudum ligium, a liege fee; the vassals bomines ligii, or liege men; and the sovereign their dominus
ligius, or liege lord. And when sovereign princes did homage to each other, for lands held under
their respective sovereignties, a distinction was always made between simple homage, which was
only an acknowledgment of tenure;3 and liege homage, which included the fealty before-mentioned,
and the services consequent upon it. Thus when Edward III, in 1329, did homage to Philip VI of
France, for his ducal dominions on that continent, it was warmly disputed of what species the
homage was to be, whether liege or simple homage.4

With us in England, it becoming a settled principle of tenure, that all lands in the kingdom are held
of the king as their sovereign and lord paramount, no oath but that of fealty could ever be taken to
inferior lords, and the oath of allegiance was necessarily confined to the person of the king alone.
By an easy analogy the term of allegiance was soon brought to signify all other engagements, which
are due from subjects to their prince, as well as those duties which were simply and merely
territorial. And the oath of allegiance, as administered for upwards of six hundred years,5 contained
a promise “to be true and faithful to the king and his heirs, and truth and faith to bear of life and limb
and terrene honor, and not to know or hear of any ill or damage intended him, without defending him
therefrom.” Upon which Sir Matthew Hale6 makes this remark; that it was short and plain, not
entangled with long or intricate clauses or declarations, and yet is comprehensive of the whole duty
from the subject to his sovereign. But, at the revolution, the terms of this oath being thought perhaps

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William Blackstone: Vol. 1, Commentaries on the Laws of England (1765) Page 220

to favor too much the notion of non-resistance, the present form was introduced by the convention
parliament, which is more general and indeterminate than the former; the subject only promising
“that he will be faithful and bear true allegiance to the king,” without mentioning “his heirs,” or
specifying in the least wherein that allegiance consists. The oath of supremacy is principally
calculated as a renunciation of the pope's pretended authority: and the oath abjuration, introduced
in the reign of king William,7 very amply supplies the loose and general texture of the oath of
allegiance; it recognizing the right of his majesty, derived under the act of settlement; engaging to
support him to the utmost of the juror's power; promising to disclose all traitorous conspiracies
against him; and expressly renouncing any claim of the pretender, by name, in as clear and explicit
terms as the English language can furnish. This oath must be taken by all persons in any office, trust,
or employment; and may be tendered by two justices of the peace to any person, whom they shall
suspect of disaffection.8 But the oath of allegiance may be tendered9 to all persons above the age of
twelve years, whether natives, denizens, or aliens, either in the court-leet of the manor, or in the
sheriff's tourn, which is the court-leet of the count.

BUT, besides these express engagements, the law also holds that there is an implied, original, and
virtual allegiance, owing from every subject to his sovereign, antecedently to any express promise;
and although the subject never swore any faith or allegiance in form. For as the king, by the very
descent of the crown, is fully invested with all the rights and bound to all the duties of sovereignty,
before his coronation; so the subject is bound to his prince by an intrinsic allegiance, before the
superinduction of those outward bonds of oath, homage, and fealty; which were only instituted to
remind the subject of this his previous duty, and for the better securing its performance.10 The formal
profession therefore, or oath of subjection, is nothing more than a declaration in words of what was
before implied in law. Which occasions Sir Edward Coke very justly to observe,11 that “all subjects
are equally bounden to their allegiance, as if they had taken the oath; because it is written by the
finger of the law in their hearts, and the taking of the corporal oath is but an outward declaration of
the same.” The sanction of an oath, it is true, in case of violation of duty, makes the guilt still more
accumulated, by superadding perjury to treason; but it does not increase the civil obligation to
loyalty; it only strengthens the social tie by uniting it with that of religion.

ALLEGIANCE, both express and implied, is however distinguished by the law into sorts or species,
the one natural, the other local; the former being also perpetual, the latter temporary. Natural
allegiance is such as is due from all men born within the king's dominions immediately upon their
birth.12 For, immediately upon their birth, they are under the king's protection; at a time too, when
(during their infancy) they are incapable of protecting themselves. Natural allegiance is therefore
a debt of gratitude; which cannot be forfeited, canceled, or altered, by any change of time, place, or
circumstance, nor by anything but the united concurrence of the legislature.13 An Englishman who
removes to France, or to China, owes the same allegiance to the king to England there as at home,
and twenty years hence as well as now. For it is a principle of universal law,14 that the natural-born
subject of one prince cannot by any act of his own, no, not by swearing allegiance to another, put
off or discharge his natural allegiance to the former: for this natural allegiance was intrinsic, and
primitive, and antecedent to the other; and cannot be divested without the concurrent act of that
prince to whom it was first due. Indeed the natural-born subject of one prince, to whom he owes
allegiance, may be entangled by subjecting himself absolutely to another; but it is his own act that
brings him into these straits and difficulties, of owing service to two masters; and it is unreasonable

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William Blackstone: Vol. 1, Commentaries on the Laws of England (1765) Page 221

that, by such voluntary act of his own, he should be able at pleasure to unloose those bands, by
which he is connected to his natural prince.

LOCAL allegiance is such as is due from an alien, or stranger born, for so long time as he continues
within the king's dominion and protection:15 and it ceases, the instant such stranger transfers himself
from this kingdom to another. Natural allegiance is therefore perpetual, and local temporary only:
and that for this reason, evidently founded upon the nature of government; that allegiance is a debt
due from the subject, upon an implied contract with the prince, that so long as the one affords
protection, so long the other will demean himself faithfully. As therefore the prince is always under
a constant tie to protect his natural-born subjects, at all times and in all countries, for this reason
their allegiance due to him is equally universal and permanent. But, on the other hand, as the prince
affords his protection to an alien, only during his residence in this realm, the allegiance of an alien
is confined (in point of time) to the duration of such his residence, and (in point of locality) to the
dominions of the British empire. From which considerations Sir Matthew Hale16 deduces this
consequence, that, though there be an usurper of the crown, yet it is treason for any subject, while
the usurper is in full possession of the sovereignty, to practice anything against his crown and
dignity: wherefore, although the true prince regain the sovereignty, yet such attempts against the
usurper (unless in defense or aid of the rightful king) have been afterwards punished with death;
because of the breach of that temporary allegiance, which was due to him as king de facto. And upon
this footing, after Edward IV recovered the crown, which had been long detained from his house by
the line of Lancaster, treasons committed against Henry VI were capitally punished, though Henry
had been declared an usurper by parliament.

THIS oath of allegiance, or rather the allegiance itself, is held to be applicable not only to the
political capacity of the king, or regal office, but to his natural person, and blood-royal: and for the
misapplication of their allegiance, viz. to the regal capacity or crown, exclusive of the person of the
king, were the Spencers banished in the reign of Edward II.17 And from hence arose that principle
of personal attachment, and affectionate loyalty, which induced our forefathers (and, if occasion
required, would doubtless induce their sons) to hazard all that was dear to them, life, fortune, and
family, in defense and support of their liege lord and sovereign.

THIS allegiance then, both express and implied, is the duty of all the king's subjects, under the
distinctions here laid down, of local and temporary, or universal and perpetual. Their rights are also
distinguishable by the same criterions of time and locality; natural-born subjects having a great
variety of rights, which they acquire by being born within the king's ligeance, and can never forfeit
by any distance of place or time, but only by their own misbehavior: the explanation of which rights
is the principal subject of the two first books of these commentaries. The same is also in some
degree the case of aliens; though their rights are much more circumscribed, being acquired only by
residence here, and lost whenever they remove. I shall however here endeavor to chalk out some of
the principal lines, whereby they are distinguished from natives, descending to farther particulars
when they come in course.

AN alien born may purchase lands, or other estates: but not for his own use; for the king is
thereupon entitled to them.18 If an alien could acquire a permanent property in lands, he must own
an allegiance, equally permanent with that property, to the king of England; which would probably

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William Blackstone: Vol. 1, Commentaries on the Laws of England (1765) Page 222

be inconsistent with that, which he owes the his own natural liege lord: besides that thereby the
nation might in time be subject to foreign influence, and feel many other inconveniences. Wherefore
by the civil law such contracts were also made void:19 but the prince had no such advantage of
escheat thereby, as with us in England. Among other reasons, which might be given for our
constitution, it seems to be intended by way of punishment for the alien's presumption, in attempting
to acquire any landed property: for the vendor is not affected by it, he having resigned his right, and
received an equivalent in exchange. Yet an alien may acquire a property in goods, money, and other
personal estate, or may hire a house for his habitation:20 for personal estate is of a transitory and
movable nature; and besides, this indulgence to strangers is necessary for the advancement of trade.
Aliens also may trade as freely as other people; only they are subject to certain higher duties at the
custom-house: and there are also some obsolete statutes of Henry VIII, prohibiting alien artificers
to work for themselves in this kingdom; but it is generally held they were virtually repealed by
statute 5 Eliz. c. 7. Also an alien may bring an action concerning personal property, and may make
a will, and dispose of his personal estate:21 not as it is in France, where the king at the death of an
alien is entitled to all he is worth, by the droit d'aubaine [right to inherit from an alien] or jus
albinatus [alien law],22 unless he has a peculiar exemption. When I mention these rights of an alien,
I must be understood of alien friends only, or such whose countries are in peace with ours; for
alien-enemies have no rights, no privileges, unless by the king's special favor, during the time of
war.

WHEN I say, that an alien is one who is born out of the king's dominions, or allegiance, this also
must be understood with some restrictions. The common law indeed stood absolutely so; with only
a very few exceptions: so that a particular act of parliament became necessary after the restoration,23
for the naturalization of children of his majesty's English subjects, born in foreign countries during
the late troubles. And this maxim of the law proceeded upon a general principle, that every man
owes natural allegiance where he is born, and cannot owe two such allegiances, or serve two
masters, at once. Yet the children of the king's ambassadors born abroad were always held to be
natural subjects:24 for as the father, though in a foreign country, owes not even a local allegiance to
the prince to whom he is sent; so, with regard to the son also, he was held (by a kind of postliminium
[a restoration of rights upon return to one’s country]) to be born under the king of England's
allegiance, represented by his father, the ambassador. To encourage also foreign commerce, it was
enacted by statute 25 Edw. III. St. 2. that all children born abroad, provided both their parents were
at the time of the birth in allegiance to the king, and the mother had passed the seas by her husband's
consent, might inherit as if born in England: and accordingly it has been so adjudged in behalf of
merchants.25 But by several more modern statutes26 these restrictions are still farther taken off: so
that all children, born out of the king's ligeance, whose fathers were natural-born subjects, are now
natural-born subjects themselves, to all intents and purposes, without any exception; unless their said
fathers were attainted, or banished beyond sea, for high treason; or were then in the service of a
prince at enmity with Great Britain.

THE children of aliens, born here in England, are, generally speaking, natural-born subjects, and
entitled to all the privileges of such. In which the constitution of France differs from ours; for there,
by their jus albinatus, if a child be born of foreign parents, it is an alien.27

A DENIZEN is an alien born, but who has obtained ex donatione regis [by royal gift] letters patent

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to make him an English subject: a high and incommunicable branch of the royal prerogative.28 A
denizen is in a kind of middle state between an alien, and natural-born subject, and partakes of both
of them. He may take lands by purchase or devise, which an alien may not; but cannot take by
inheritance:29 for his parent, through whom he must claim, being an alien had no inheritable blood,
and therefore could convey none to the son. And, upon a like defect of hereditary blood, the issue
of a denizen, born before denization, cannot inherit to him; but his issue born after, may.30 A denizen
is not excused31 from paying the alien's duty, and some other mercantile burdens. And no denizen
can be of the privy council, or either house of parliament, or have any office of trust, civil or
military, or be capable of any grant from the crown.32

NATURALIZATION cannot be performed but by act of parliament: for by this an alien is put in
exactly the same state as if he had been born in the king's ligeance; except only that he is incapable,
as well as a denizen, of being a member of the privy council, or parliament, etc.33 No bill for
naturalization can be received in either house of parliament, without such disabling clause in it.34
Neither can any person be naturalized or restored in blood, unless he has received the sacrament of
the Lord's supper within one month before the bringing in of the bill; and unless the also takes the
oaths of allegiance and supremacy in the presence of the parliament.35

THESE are the principal distinctions between aliens, denizens, and natives: distinctions, which
endeavors have been frequently unfed since the commencement of this century to lay almost totally
aside, by one general naturalization-act for all foreign protestants. An attempt which was once
carried into execution by the statute 7 Ann. c. 5. but this, after three years experience of it, was
repealed by the statute 10 Ann. c. 5. except one clause, which was just now mentioned, for
naturalizing the children of English parents born abroad. However, every foreign seaman who in
time of war serves two years on board an English ship is ipso facto [by that fact] naturalized;36 and
all foreign protestants, and Jews, upon their residing seven years in any of the American colonies,
without being absent above two months at a time, are upon taking the oaths naturalized to all intents
and purposes, as if they had been born in this kingdom;37 and therefore are admissible to all such
privileges, and no other, as protestants or Jews born in this kingdom are entitled to. What those
privileges are,38 was the subject of very high debates about the time of the famous Jew-bill;39 which
enabled all Jews to prefer bills of naturalization in parliament, without receiving the sacrament, as
ordained by statute 7 Jac. I. It is not my intention to revive this controversy again; for the act lived
only a few months, and was then repealed:40 therefore peace be now to its manes.

NOTES

1. 2 Feud. 5, 6, 7.
2. 2 Feud. 99.
3. 7 Rep. Calvin's case. 7.
4. 2 Carte. 401. Mod. Un. Hist. xxiii. 420.
5. Mirror. c. 3. §. 35. Fleta. 3. 16. Britton. C. 29. 7 Rep. Calvin's case. 6.
6. I Hal. P. C. 63.
7. Stat. 13 W. III. c. 6.

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William Blackstone: Vol. 1, Commentaries on the Laws of England (1765) Page 224

8. Stat. I Geo. I. c. 13.

9. 2 Inst. 121. I Hal. P. C. 64.
10. I Hal. P. C. 61.
11. 2 Inst. 121.
12. 7 Rep. 7.
13. 2 p. Wms. 124.
14. I Hal. P. C. 68.
15. 7 Rep. 6.
16. I Hal. P. C. 60.
17. I Hal. P. C. 67.
18. Co. Litt. 2.
19. Cod. l. II. tit. 55.
20. 7 Rep. 17.
21. Lutw. 34.
22. The word is derived from alibi natus; Spelm. Cl. 24
23. Stat. 29 Car. II. c. 6.
24. 7 Rep. 18.
25. Cro. Car. 601. Mar. 91. Jenk. Cent. 3.
26. 7 Ann. c. 5. and 4 Geo. II. c. 21.
27. Jenk. Cent. 3. cites treasure francois, 312.
28. 7 Rep. Calvin's case. 25.
29. II Rep 67.
30. Co. Litt. 8. Vaugh. 285.
31. Stat. 22 Hen. VIII. c. 8.
32. Stat. 12 W. III. c. 2.
33. Ibid.
34. Stat. I Geo. I. c. 4.
35. Stat. 7 Jac. I. c. 2.
36. Stat. 13 Geo. II. c. 3.
37. Stat. 13 Geo. II. c. 7. 20 Geo. II. c. 24. 2 Geo. III. c. 25.
38. A pretty accurate account of the Jews, till their banishment in 8 Edw. I. may be found in Molloy de jure maritime, b.
3. c. 6.
39. Stat. 26 Geo. II. c. 26.
40. Stat. 27 Geo. II. c. I.

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William Blackstone: Vol. 1, Commentaries on the Laws of England (1765) Page 225

CHAPTER 11
Of the Clergy

THE people, whether aliens, denizens, or natural-born subjects, are divisible into two kinds; the
clergy and laity: the clergy, comprehending all persons in holy orders, and in ecclesiastical offices,
will be the subject of the following chapter.

THIS venerable body of men, being separate and set apart from the rest of the people, in order to
attend the more closely to the service of almighty God, have thereupon large privileges allowed
them by our municipal laws: and had formerly much greater, which were abridged at the time of the
reformation, on account of the ill use which the popish clergy had endeavored to make of them. For,
the laws having exempted them from almost every personal duty, they attempted a total exemption
from every secular tie. But it is observed by Sir Edward Coke,1 that, as the overslowing of waters
does many times make the river to lose its proper channel, so in times past ecclesiastical persons,
seeking to extend their liberties beyond their true bounds, either lost or enjoyed not those which of
right belonged to them. The personal exemptions do indeed for the most part continue. A clergyman
cannot be compelled to serve on a jury, nor to appear at a court-leet or view of frank pledge; which
almost every other person is obliged to do:2 but, if a layman is summoned on a jury, and before the
trial takes orders, he shall notwithstanding appear and be sworn.3 Neither can he be chosen to any
temporal office; as bailiff, reeve, constable, or the like: in regard of his own continual attendance
on the sacred function.4 During his attendance on divine service he is privileged from arrests in civil
suits.5 In cases also of felony, a clerk in orders shall have the benefit of his clergy, without being
branded in the hand; and may likewise have it more than once: in both which particulars he is
distinguished from a layman.6 But as they have their privileges, so also they have their disabilities,
on account of their spiritual avocations. Clergymen, we have seen,7 are incapable of sitting in the
house of commons; and by statute 21 Hen. VIII. c. 13. are not allowed to take any lands or
tenements to farm, upon pain of 10£ per month, and total avoidance of the lease; nor shall engage
in any manner of trade, nor sell any merchandise, under forfeiture of the treble value. Which
prohibition is consonant to the canon law.

IN the frame and constitution of ecclesiastical polity there are diverse ranks and degrees: which I
shall consider in their respective order, merely as they are taken notice of by the secular laws of
England; without intermeddling with the canons and constitutions, by which they have bound
themselves. And under each division I shall consider, 1. The method of their appointment; 2. Their
rights and duties; and 3. The manner wherein their character or office may cease.

I. AN arch-bishop or bishop is elected by the chapter of his cathedral church, by virtue of a license
from the crown. Election was, in very early times, the usual mode of elevation to the episcopal chair
throughout all Christendom; and this was promiscuously performed by the laity as well as the
clergy:8 till at length, it becoming tumultuous, the emperors and other sovereigns of the respective
kingdoms of Europe took the election in some degree into their own hands; by reserving to
themselves the right of confirming these elections, and of granting investiture of the temporalties,
which now began almost universally to be annexed to this spiritual dignity; without which
confirmation and investiture, the elected bishop could neither be consecrated, nor receive any
secular profits. This right was acknowledged in the emperor Charlemagne, A. D. 773, by pope

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Hadrian I, and the council of Lateran,9 and universally exercised by other Christian princes: but the
policy of the court of Rome at the same time began by degrees to exclude the laity from any share
in these elections, and to confine them wholly to the clergy, which at length was completely
effected; the mere form of election appearing to the people to be a thing of little consequence, which
the crown was in possession of an absolute negative, which was almost equivalent to a direct right
of nomination. Hence the right of appointing to bishoprics is said to have been in the crown of
England10 (as well as other kingdoms in Europe) even in the Saxon times, because the rights of
confirmation and investiture were in effect (though not in form) a right of complete donation.11 But
when, by length of time, the custom of making elections by the clergy only was fully established,
the popes began to except to the usual method of granting these investitures, which was per annulum
et baculum [by the ring and staff], by the prince's delivering to the prelate a ring, and a pastoral staff
or crosier; pretending, that this was an encroachment on the church's authority, and an attempt by
these symbols to confer a spiritual jurisdiction: and pope Gregory VII, towards the close of the
eleventh century, published a bull of excommunication against all princes who should dare to confer
investitures, and all prelates who should venture to receive them.12 This was a bold step towards
effecting the plan then adopted by the Roman see, of rendering the clergy entirely independent of
the civil authority: and long and eager were the contests occasioned by this dispute. But at length
when the emperor Henry V agreed to remove all suspicion of encroachment on the spiritual
character, by conferring investitures for the future per sceptrum [by the scepter] and not per
annulum et baculum; and when the kings of England and France consented also to alter the form in
their kingdoms, and receive only homage from the bishops for their temporalties, instead of
investing them by the ring and crosier; the court of Rome found it prudent to suspend for a while its
other pretensions.13

THIS concession was obtained from king Henry the first in England, by means of that obstinate and
arrogant prelate, archishop Anselm:14 but king John (about a century afterwards) in order to obtain
the protection of the pope against his discontented barons, was prevailed upon to give up by a
charter, to all the monasteries and cathedrals in the kingdom, the free right of electing their prelates,
whether abbots or bishops: reserving only to the crown the custody of the temporalties during the
vacancy; the form of granting a license to elect, (which is the original of our conge d' eslire
[permission to elect]) on refusal whereof the electors might proceed without it; and the right of
approbation afterwards, which was not to be denied without a reasonable and lawful cause.15 This
grant was expressly recognized and confirmed in king John's magna carta16 and was again
established by statute 25 Edw. III. St. 6. § 3.

BUT by statute 25 Hen. VIII. c. 20. the ancient right of nomination was, in effect, restored to the
crown: it being enacted that, at every future avoidance of a bishopric, the king may send the dean
and chapter his usual license to proceed to election; which is always to be accompanied with a letter
missive from the king, containing the name of the person whom he would have them elect: and, if
the dean and chapter delay their election above twelve days, the nomination shall d evolve to the
king, who may by letters patent appoint such person as he pleases. This election or nomination, if
it be of a bishop, must be signified by the king's letters patent to the arch-bishop of the province; if
it be of an arch-bishop, to the other arch-bishop and two bishops, or to four bishops; requiring them
to confirm, invest, and consecrate the person so elected: which they are bound to perform
immediately, without any application to the see of Rome. After which the bishop elect shall sue to

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the king for his temporalties, shall make oath to the king and none other, and shall take restitution
of his secular possessions out of the king's hands only. And if such dean and chapter do not elect in
the manner by this act appointed, or if such arch-bishop or bishop do refuse to confirm, invest, and
consecrate such bishop elect, they shall incur all the penalties of a praemunire [forewarning].

AN arch-bishop is the chief of the clergy in a whole province; and has the inspection of the bishops
of that province, as well as of the inferior clergy, and may deprive them on notorious cause.17 The
arch-bishop has also his own diocese, wherein he exercises episcopal jurisdiction; as in his province
he exercises archiepiscopal. As arch-bishop, he, upon receipt of the king's writ, calls the bishops and
clergy of his province to meet in convocation: but without the king's writ he cannot assemble them.18
To him all appeals are made from inferior jurisdictions within his province; and, as an appeal lies
from the bishops in person to him in person, so it also lies from the consistory courts of each diocese
to his archiepiscopal court. During the vacancy of any see in his province, he is guardian of the
spiritualties thereof, as the king is of the temporalties; and he executes all ecclesiastical jurisdiction
therein. If an archiepiscopal see be vacant, the dean and chapter are the spiritual guardians, ever
since the office of prior of Canterbury was abolished at the reformation.19 The arch-bishop is entitled
to present by lapse to all the ecclesiastical livings in the disposal of his diocesan bishops, if not filled
within six months. And the arch-bishop has a customary prerogative, when a bishop is consecrated
by him, to name a clerk or chaplain of his won to be provided for by such suffragan bishop; in lieu
of which it is now usual for the bishop to make over by deed to the arch-bishop, his executors and
assigns, the next presentation of such dignity or benefice in the bishop's disposal within that see, as
the arch-bishop himself shall choose; which is therefore called his option:20 which options are only
binding on the bishop himself who grants them, and not his successors. The prerogative itself seems
to be derived from the legatine power formerly annexed by the popes to the metropolitan of
Canterbury.21 And we may add, that the papal claim itself (like most others of that encroaching see)
was probably set up on imitation of the imperial prerogative called primae or primarie preces [first
prayers, or suits]; whereby the emperor exercises, and has immemorially exercised,22 a right of
naming to the first prebend that becomes vacant after his accession in every church of the empire.23
A right, that was also exercised by the crown of England in the reign of Edward I;24 and which
probably gave rise to the royal corodies, which were mentioned in a former chapter.25 It is also the
privilege, by custom, of the arch-bishop of Canterbury, to crown the kings and queens of this
kingdom. And he has also by the statute 25 Hen. VIII. c. 21. the power of granting dispensations in
any case, not contrary to the holy scriptures and the law of God, where the pope used formerly to
grant them: which is the foundation of his granting special licenses, to marry at any place or time,
to hold two livings, and the like: and on this also is founded the right he exercises of conferring
degrees, in prejudice of the two universities.26

THE power and authority of a bishop, besides the administration of certain holy ordinances peculiar
to that sacred order, consists principally in inspecting the manners of the people and clergy, and
punishing them, in order to reformation, by ecclesiastical censures. To this purpose he has several
courts under him, and may visit at pleasure every part of his diocese. His chancellor is appointed to
hold his courts for him, and to assist him in matters of ecclesiastical law; who, as well as all other
ecclesiastical officers, if lay or married, must be a doctor of the civil law, so created in some
university.27 It is also the business of a bishop to institute and to direct induction to all ecclesiastical
livings in his diocese.

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ARCHBISHOPRICS and bishoprics may become void by death, deprivation for any very gross and
notorious crime, and also by resignation. All resignations must be made to some superior.28
Therefore a bishop must resign to his metropolitan; but the arch-bishop can resign to none but the
king himself.

II. A DEAN and chapter are the council of the bishop, to assist him with their advice in affairs of
religion, and also in the temporal concerns of his see.29 When the rest of the clergy were settled in
the several parishes of each diocese (as has formerly30 been mentioned) these were reserved for the
celebration of divine service in the bishop's own cathedral; and the chief of them, who presided over
the rest, obtained the name of decanus or dean, being probably at first appointed to superintend ten
canons or prebendaries.

ALL ancient deans are elected by the chapter, by conge d'eslire from the king, and letters missive
of recommendation; in the same manner as bishops: but in those chapters, that were founded by
Henry VIII out of the spoils of the dissolved monasteries, the deanery is donative, and the
installation merely by the king's Letters patent.31 The chapter, consisting of canons or prebendaries,
are sometimes appointed by the king, sometimes by the bishop, and sometimes elected by each
other.

THE dean and chapter are, as was before observed, the nominal electors of a bishop. The bishop is
their ordinary and immediate superior; and has, generally speaking, the power of visiting them, and
correcting their excesses and enormities. They had also a check on the bishop at common law: for
till the statute 32 Hen. VIII. C. 28. his grant or lease would not have bound his successors, unless
confirmed by the dean and chapter.32 DEANERIES and prebends may become void, like a bishopric,
by death, by deprivation, or by resignation to either the king or the bishop.33 Also I may here
mention, once for all, that if a dean, prebendary, or other spiritual person be made a bishop all the
preferments he was before possessed of are void; and the king may present to them in right of his
prerogative royal. But they are not void by the election, but only by the consecration.34

III. AN arch-deacon has an ecclesiastical jurisdiction, immediately subordinate to the bishop,

throughout the whole of his diocese, or in some particular part of it. He is usually appointed by the
bishop himself; and has a kind of episcopal authority, originally derived from the bishop, but now
independent and distinct from his.35 He therefore visits the clergy; and has his separate court for
punishment of offenders by spiritual censures, and for hearing all other causes of ecclesiastical
cognizance.

IV. THE rural deans are very ancient officers of the church,36 but almost grown out of use; though
their deaneries still subsist as an ecclesiastical division of the diocese, or archdeaconry. They seem
to have been deputies of the bishop, planted all round his diocese, the better to inspect the conduct
of the parochial clergy, and therefore armed with an inferior degree of judicial and coercive
authority.37

V. THE next, and indeed the most numerous order of men in the system of ecclesiastical polity, are
the parsons and vicars of parishes: in treating of whom I shall first mark out the distinction between
them; shall next observe the method by which one may become a parson or vicar; shall then briefly

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touch upon their rights and duties; and shall, lastly, show how one may cease to be either.

A PARSON, persona ecclesiae, is one that has full possession of all the rights of a parochial church.
He is called parson, persona, because by his person the church, which is an invisible body, is
represented; and he is in himself a body corporate, in order to protect and defend the rights of the
church (which he personates) by a perpetual succession.38 He is sometimes called the rector, or
governor, of the church: but the appellation of parson, (however it may be depreciated by familia,
clownish, and indiscriminate use) is the most legal, most beneficial, and most honorable title that
a parish priest can enjoy; because such a one, (Sir Edward Coke observes) and he only, is said vicem
seu personam ecclesiae gerere [to represent the church]. A parson has, during his life, the freehold
in himself of the parsonage house, the glebe, the tithes, and other dues. But these are sometimes
appropriated; that is to say, the benefice is perpetually annexed to some spiritual corporation, either
sole or aggregate, being the patron of the living; whom the law esteems equally capable of providing
for the service of the church, as any single private clergyman. This contrivance seems to have sprung
from the policy of the monastic orders, who have never been deficient in subtle inventions for the
increase of their own power and emoluments. At the first establishment of parochial clergy, the
tithes of the parish were distributed in a fourfold division; one for the use of the bishop, another for
maintaining the fabric of the church, a third for the poor, and the fourth to provide for the incumbent.
When the sees of the bishops became otherwise amply endowed, they were prohibited from
demanding their usual share of these tithes, and the division was into three parts only. And hence
it was inferred by the monasteries, that a small part was sufficient for the officiating priest, and that
the remainder might well be applied to the use of their own fraternities, (the endowment of which
was construed to be a work of the most exalted piety) subject to the burden of repairing the church
and providing for its constant supply. And therefore they begged and bought, for mastes and obits,
and sometimes even for money, all the advowsons within their reach, and then appropriated the
benefices to the use of their own corporation. But, in order to complete such appropriation
effectually, the king's license, and consent of the bishop, must first be obtained; because both the
king and the bishop may sometime or other have an interest, by lapse, in the presentation to the
benefice; which can never happen if it be appropriated to the use of a corporation, which never dies:
and also because the law reposes a confidence in them, that they will not consent to anything that
shall be to the prejudice of the church. The consent of the patron also is necessarily implied, because
(as was before observed) the appropriation can be originally made to none, but to such spiritual
corporation, as is also the patron of the church; the whole being indeed nothing else, but an
allowance for the patrons to retain the tithes and glebe in their own hands, without presenting any
clerk, they themselves undertaking to provide for the service of the church.39 When the appropriation
is thus made, the appropriators and their successors are perpetual parsons of the church; and must
sue and be sued, in all matters concerning the rights of the church, by the name of parsons.40

THIS appropriation may be severed, and the church become disappropriate, two ways: as, first, if
the patron or appropriator presents a clerk, who is instituted and inducted to the parsonage: for the
incumbent so instituted and inducted is to all intents and purposes complete parson; and the
appropriation, being once severed, can never be re-united again, unless by a repetition of the same
solemnities.41 And when the clerk so presented is distinct from the vicar, the rectory thus vested in
him becomes what is called a sine-cure; because he has no cure of souls, having a vicar under him
to whom that cure is committed.42 Also, if the corporation which has the appropriation is dissolved,

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the parsonage becomes disappropriate at common law; because the perpetuity of person is gone,
which is necessary to support the appropriation.

IN this manner, and subject to these conditions, may appropriations be made at this day: and thus
were most, if not all, of the appropriations at present existing originally made; being annexed to
bishoprics, prebends, religious houses, nay, even to nunneries, and certain military orders, all of
which were spiritual corporations. At the dissolution of monasteries by statutes 27 Hen. VIII. c. 28.
and 31 Hen. VIII. c. 13. the appropriations of the several parsonages, which belonged to those
respective religious houses, (amounting to more than one third of all the parishes in England43)
would have been by the rules of the common law disappropriated; had not a clause in those statutes
intervened, to give them to the king in as ample a manner as the abbots, etc, formerly held the same,
at the time of their dissolution. This, though perhaps scarcely defensible, was not without example;
for the same was done in former reigns, when the alien priories, (that is, such as were filled by
foreigners only) were dissolved and given to the crown.44 And from these two roots have sprung all
the lay appropriations or secular parsonages, which we now see in the kingdom; they having been
afterwards granted out from time to time by the crown.45

These appropriating corporations, or religious houses, were wont to depute one of their own body
to perform divine service, and administer the sacraments, in those parishes of which the society was
thus the parson. This officiating minister was in reality no more than a curate, deputy, or vicegerent
of the appropriator, and therefore called vicarius, or vicar. His stipend was at the discretion of the
appropriator, who was however bound of common right to find somebody, qui illi de temporalibus,
episcopo de spiritualibus, debeat respondere [who should answer to him concerning temporal, to
the bishop concerning spiritual, affairs].46 But this was done in so scandalous a manner, and the
parishes suffered so much by the neglect of the appropriators, that the legislature was forced to
interpose: and accordingly it is enacted by statute 15 Ric. II. c. 6. that in all appropriations of
churches, the diocesan bishop shall ordain (in proportion to the value of the church) a competent
sum to be distributed among the poor parishioners annually; and that the vicarage shall be
sufficiently endowed. It seems the parish were frequently sufferers, not only by the want of divine
service, but also by withholding those alms, for which, among other purposes, the payment of tithes
was originally imposed: and therefore in this act a pension is directed to be distributed among the
poor parochians, as well as a sufficient stipend to the vicar. But he, being liable to be removed at the
pleasure of the appropriator, was not likely to insist too rigidly on the legal sufficiency of the
stipend: and therefore by statute 4 Hen. IV. c. 12. it is ordained, that the vicar shall be a secular
person, not a member of any religious house; that he shall be vicar perpetual, not removable at the
caprice of the monastery; and that he shall be canonically instituted and inducted, and be sufficiently
endowed, at the discretion of the ordinary, for these three express purposes, to do divine service, to
inform the people, and to keep hospitality. The endowments in consequence of these statutes have
usually been by a portion of the glebe, or land, belonging to the parsonage, and a particular share
of the tithes, which the appropriators found it most troublesome to collect, and which are therefore
generally called privy, small, or vicarial, tithes; the greater, or predial, tithes being still reserved to
their own use. But one and the same rule was not observed in the endowment of all vicarages. Hence
some are more liberally, and some more scantily, endowed; and hence many things, as wood in
particular, is in some countries a rectorial, and in some a vicarial tithe.

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THE distinction therefore of a parson and vicar is this; that the parson has for the most part the
whole right to all the ecclesiastical dues in his parish; but a vicar has generally an appropriator over
him, entitled to the best part of the profits, to whom he is in effect perpetual curate, with a standing
salary. Though in some places the vicarage has been considerably augmented by a large share of the
great tithes; which augmentations were greatly assisted by the statute 29 Car. II. c. 8. enacted in
favor of poor vicars and curates, which rendered such temporary augmentations (when made by the
appropriators) perpetual.

THE method of becoming a parson or vicar is much the same. To both there are four requisites
necessary: holy orders; presentation; institution; and induction. The method of conferring the holy
orders of deacon and priest, according to the liturgy and canons,47 is foreign to the purpose of these
commentaries; any farther than as they are necessary requisites to make a complete parson or vicar.
By common law a deacon, of any age, might be instituted and inducted to a parsonage or vicarage:
but it was ordained by statute 13 Eliz. c. 12. that no person under twenty three years of age, and in
deacon's orders, should be presented to any benefice with cure; and if he were not ordained priest
within one year after his induction, he should be ipso facto [by that fact] deprived: and now, by
statute 13 & 14 Car. II. c. 4. no person is capable to be admitted to any benefic, unless he has been
first ordained a priest; and then he is, in the language of the law, a clerk in orders. But if he obtains
orders, or a license to preach, by money or corrupt practices (which seems to be the true, though not
the common notion of simony) the person giving such orders forfeits48 40£ and the person receiving
10£ and is incapable of any ecclesiastical preferment for seven years afterwards.

ANY clerk may be presented49 to a parsonage or vicarage; that is, the patron, to whom the advowson
of the church belongs, may offer his clerk to the bishop of the diocese to be instituted. Of
advowsons, or the right of presentation, being a species of private property, we shall find a more
convenient place to treat in the second part of these commentaries. But when a clerk is presented,
the bishop may refuse him upon many accounts. As, 1. If the patron is excommunicated, and remains
in contempt forty days.50 Or, 2. If the clerk be unfit:51 which unfitness is of several kinds. First, with
regard to his person; as if he be a bastard, an outlaw, an excommunicate, an alien, under age, or the
like.52 Next, with regard to his faith or morals; as for any particular heresy, or vice that is malum in
se [wrong in itself]: but if the bishop alleges only in generals, as that he is schismaticus inveteratus
[an inveterate schismatic], or objects a fault that is malum probibitum [wrong because prohibited]
merely, as haunting taverns, playing at unlawful games, or the like; it is not good cause of refusal.53
Or, lastly, the clerk may be unfit to discharge the pastoral office for want of learning. In any of
which cases the bishop may refuse the clerk. In case the refusal is for heresy, schism, inability of
learning, or other matter of ecclesiastical cognizance, there the bishop must give notice to the patron
of such his cause of refusal, who, being usually a layman, is not supposed to have knowledge of it;
else he cannot present by lapse: but if the cause be temporal, there he is not bound to give notice.54

IF an action at law be brought by the patron against the bishop, for refusing his clerk, the bishop
must assign the cause. If the cause be of a temporal nature and the fact admitted, (as, for instance,
outlawry) the judges of the king's courts must determine its validity, or, whether it be sufficient
cause of refusal: but if the fact be denied, it must be determined by a jury. If the cause be of a
spiritual nature, (as, heresy, particularly alleged) the fact if denied shall also be determined by a jury;
and if the fact be admitted or found, the court upon consultation and advice of learned divines shall

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decide its sufficiency.55 If the cause be want of learning, the bishop need not specify in what points
the clerk is deficient, but only allege that he is deficient:56 for the statute 9 Edw. II. St. 1. c. 13. is
express, that the examination of the fitness of a person presented to a benefice belongs to the
ecclesiastical judge. But because it would be nugatory in this case to demand the reason of refusal
from the ordinary, if the patron were bound to abide by his determination, who has already
pronounced his clerk unfit; therefore if the bishop returns the clerk to be minus sufficiens in
literatura [deficient in learning], the court shall write to the metropolitan, to reexamine him, and
certify his qualifications; which certificate of the arch-bishop is final.57

IF the bishop has no objections, but admits the patron's presentation, the clerk so admitted is next
to be instituted by him; which is a kind of investiture of the spiritual part of the benefice: for by
institution the care of the souls of the parish is committed to the charge of the clerk. When a vicar
is instituted, he (beside the usual forms) takes, if required by the bishop, an oath of perpetual
residence; for the maxim of law is, that vicarius non habet vicarium [a vicar has no deputy]: and as
the non-residence of the appropriators was the cause of the perpetual establishment of vicarages, the
law judges it very improper for them to defeat the end of their constitution, and by absence to create
the very mischiefs which they were appointed to remedy: especially as, if any profits are to arise
from putting in a curate and living at a distance from the parish, the appropriator, who is the real
parson, has undoubtedly the elder tile to them. When the ordinary is also the patron, and confers the
living, the presentation and institution are one and the same act, and are called a collation to a
benefice. By institution or collation the church is full, so that there can be no fresh presentation till
another vacancy, at least in the case of a common patron; but the church is not full against the king,
till induction: nay, even if a clerk is instituted upon the king's presentation, the crown may revoke
it before induction, and present another clerk.58 Upon institution also the clerk may enter on the
parsonage house and glebe, and take the tithes; but he cannot grant or let them, or bring any action
for them, till induction.

INDUCTION is performed by a mandate from the bishop to the arch-deacon, who usually issues out
a precept to other clergymen to perform it for him. It is done by giving the clerk corporal possession
of the church, as by holding the ring of the door, tolling a bell, or the like; and is a form required by
law, with intent to give all the parishioners due notice, and sufficient certainty of their new minister,
to whom their tithes are to be paid. This therefore is the investiture of the temporal part of the
benefice, as institution is of the spiritual. And when a clerk is thus presented, instituted, and inducted
into a rectory, he is then, and not before, in full and complete possession, and is called in law
persona impersonata, or parson imparsonee.59

THE rights of a parson or vicar, in his tithes and ecclesiastical dues, fall more properly under the
second book of these commentaries: and as to his duties, they are principally of ecclesiastical
cognizance; those only excepted which are laid upon him by statute. And those are indeed so
numerous that it is impracticable to recite them here with any tolerable conciseness or accuracy.
Some of them we may remark, as they arise in the progress of our inquiries, but for the rest I must
refer myself to such authors as have compiled treatises expressly upon this subject.60 I shall only just
mention the article of residence, upon the supposition of which the law does stile every parochial
minister an incumbent. By statute 21 Hen. VIII. c. 13. persons wilfully absenting themselves from
their benefices, for one month together, or two months. in the year, incur a penalty of 5£ to the king,

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and 5£ to any person that will sue for the same: except chaplains to the king, or others therein
mentioned,61during their attendance in the household of such as retain them: and also except62 all
heads of houses magistrates, and professors in the universities, and all students under forty years of
age residing there, bona fide, for study. Legal residence is not only in the parish, but also in the
parsonage house: for it has been resolved,63 that the statute intended residence, not only for serving
the cure, and for hospitality; but also for maintaining the house, that the successor also may keep
hospitality there.

WE have seen that there is but one way, whereby one may become a parson or vicar: there are many
ways, by which one may cease to be so. 1 By death. 2. By cession, in taking another benefice. For
by statute 21 Hen. VIII. c. 13. if. any one having a benefice of 8£ per annum, or upwards, in the
king's books, (according to the present valuation,64) accepts any other, the first shall be adjudged
void; unless he obtains a dispensation; which no one is entitled to have, but the chaplains of the king
and others therein mentioned, the brethren and sons of lords and knights, and doctors and bachelors
of divinity and law, admitted by the universities of this realm. And a vacancy thus made, for want
of a dispensation, is called cession. 3. By conferation; for, as was mentioned before, when a clerk
is promoted to a bishopric, all his other preferments are void the instant that he is consecrated. But
there is a method, by the favor of the crown, of holding such livings in commendam [in trust].
Commenda, or ecclesia commendata [a living in trust], is a living commended by the crown to the
care of a clerk, to hold till a proper pastor is provided for it. This may be temporary, for one, two
or three years, or perpetual; being a king of dispensation to avoid the vacancy of the living, and is
called a commenda retinere [to retain a trust living]. There is also a commenda recipere [to receive
a trust living], which is to take a benefice de novo [anew], in the bishop's own gift, or the gift of
some other patron consenting to the same; and this is the same to him as institution and induction
are to another clerk.65 4. By resignation. But this is of no avail, till accepted by the ordinary; into
whose hands the resignation must be made.66 5 By deprivation, either by canonical censures, of
which I am not to speak; or in pursuance of diverse penal statutes, which declare the benefice void,
for some nonfeasance or neglect, or else some malfeasance or crime. As, for simony;67 for
maintaining any doctrine in derogation of the king's supremacy, or of the thirty nine articles, or of
the book of common-prayer;68 for neglecting after institution to read the articles in the church, or
make the declarations against popery, or take the abjuration oath;69 for using any other form of
prayer than the liturgy of the church of England;70 or for absenting himself sixty days in one year
from a benefice belonging to a popish patron, to which the clerk was presented by either of the
universities;71 in all which and similar cases72 the benefice is ipso facto void, without any formal
sentence of deprivation.

VI. A CURATE is the lowest degree in the church; being in the same state that a vicar was formerly,
an officiating temporary minister, instead of the real incumbent. Though there are what are called
perpetual curacies, where all the tithes are appropriated, and no vicarage endowed, (being for some
particular reasons73exempted from the statute of Hen. IV) but, instead thereof, such perpetual curate
is appointed by the appropriator. With regard to the other species of curates, they are the objects of
some particular statutes, which ordain, that such as serve a church during its vacancy shall be paid
such stipend as the ordinary thinks reasonable, out of the profits of the vacancy; or, if that be not
sufficient, by the successor within fourteen days after he takes possession:74 and that, if any rector
or vicar nominates a curate to the ordinary to be licensed, the ordinary shall settle his stipend under

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William Blackstone: Vol. 1, Commentaries on the Laws of England (1765) Page 234

his hand and seal, not exceeding 50£ per annum, nor less than 20£ and on failure of payment may
sequester the profit of the benefice.75

THUS much of the clergy, properly so called. There are also certain inferior ecclesiastical officers
of whom the common law takes notice; and that principally, to assist the ecclesiastical jurisdiction,
where it is deficient in powers. On which officers I shall make a few cursory remarks.

VII. CHURCH WARDENS are the guardians or keepers of the church, and representatives of the
body of the parish.76 They are sometimes appointed by the minister, sometimes by the parish,
sometimes by both together, as custom directs. They are taken, in favor of the church, to be for some
purposes a kind of corporation at the common law; that is, they are enabled by that name to have a
property in goods and chattels, and to bring actions for them, for the use and profit of the parish. Yet
they may not waste the church goods, but may be removed by the parish, and then called to account
by action at the common law: but there is no method of calling them to account, but by first
removing them; for none can legally do it, but those who are put in their place. As to lands, or other
real property, as the church, church-yard, etc, they have no sort of interest therein; but if any damage
is done thereto, the parson only or vicar shall have the action. Their office also is to repair the
church, and make rates and levies for that purpose: but these are recoverable only in the
ecclesiastical court. They are also joined with the overseers in the care and maintenance of the poor.
They are to levy77 a shilling forfeiture on all such as do not repair to church on Sundays and
holidays, and are empowered to keep all persons orderly while there; to which end it has been held
that a churchwarden may justify the pulling off a man's hat, without being guilty of either an assault
or trespass.78 There are also a multitude of other petty parochial powers committed to their charge
by diverse acts of parliament.79

VIII. PARISH clerks and sextons are also regarded by the common law, as persons who have
freeholds in their offices; and therefore though they may be punished, yet they cannot be deprived,
by ecclesiastical censures.80 The parish clerk was formerly always in holy orders; and some are so
to this day. He is generally appointed by the incumbent, but by custom may be chosen by the
inhabitants; and if such custom appears, the court of king's bench will grant a mandamus to the
arch-deacon to swear him in, for the establishment of the custom turns it into a temporal or civil
right.81

NOTES

1. 2 Inst. 4.
2. F. N. B. 160. 2 Inst. 4.
3. 4 Leon. 190.
4. Finch. L. 88.
5. Stat. 50 Edw. III. c. 5. I Ric. II. c. 16.
6. 2 Inst. 637. Stat. 4 Hen. VII. c. 13. & I Edw. VI. c. 12.
7. page 169.
8. Per clerum et populum. [By the clergy and people.] Palm. 25. 2 Roll. Rep. 102. M. Paris. A. D. 1095.

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William Blackstone: Vol. 1, Commentaries on the Laws of England (1765) Page 235

9. Decret. 1. dist. 63. c. 22.10. Palm. 28.

11. “Nulla electio praelatorum (sent verba Ingulphi) erat mere libera et canonica; sed omnes dignitates, tam episcoporum
quam abbatum, per annulum et baculum regis curia pro sua complacentia conferebat.” Penes clericos et monachos fuit
electio, sed electum a rege postulabant. “ There was no election of prelates, (says Ingulphus) purely free and canonical; but
the king's court granted all dignities at its pleasure, as well of bishops as abbots, by the ring and the staff.” The election was
in the power of the clergy and monks, but they requested election by the king. Selden. Tan. Angl. 1. I. §. 39.
12. Decret. 2. caus. 16. qu. 7. c. 12. & 13.
13. Mod. Un. Hist. xxv. 363. xxix. 115.
14. M. Paris. A. D. 1107.
15. M. Paris. A. D. 1214. 1 Rym. Foed. 198.
16. cap. 1. edit. Oxon. 1759.
17. Lord Raym. 541.
18. 4 Inst. 322, 323.
19. 2 Roll. Abr. 223.
20. Cowel's interpr. tit. Option.
21. Sherock of options 1.
22. Goldaft. Constit. imper. tom. 3. pag. 406.
23. Dufrefne. V. 806. Mod. Un. Hist. xxix. 5.
24. Rex, &c. salutem. Scribatis episcopo Karl. quod ) Roberto de Icard pensionem suam, quam ad preces regis praedicto
Roberto concessit, de caetero solvat: et de proxima ecclesia vacatura de collatione praedicti episcopi, quam ipse Robertus
acceptaverit, respiciat. [The king, etc. sends greeting. Write to the Bishop of Carlisle, that he henceforth pay to Robert de
Icard, the pension which he granted to the said Robert at the desire of the king: and that the aforesaid Bishop see that the said
Robert be appointed to the next church vacancy in his collation.] Breu. 11 Edw. I. 3. Pryn. 1264.
25. ch. 8. pag. 273.
26. See the bishop of Chester's case. Oxon. 1721.
27. Stat. 37. Hen. VIII. c. 17.
28. Gibf. cod. 822.
29. 3 Rep. 75. Co. 103, 300.
30. pag. 108, 109.
31. Gibf. cod. 173.
32. Co. Litt. 103.
33. Plowd. 498.
34. 2 Roll. Abr. 352. Salk. 137.
35. 1 Burn. Eccl. Law. 68, 69.
36. Kennet, par. antiq. 633.
37. Gibf. cod. 972.
38. Co. Litt. 300.

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William Blackstone: Vol. 1, Commentaries on the Laws of England (1765) Page 236

39. Plowd. 496-500.

40. Hob. 307.
41. Co. Litt. 46.
42. Sine-cures might also be created by other means. 2 Burn. Eccl. Law. 347.
43. Seld. Review of tith. c. 9. Spelm. Apology. 35.
44. 2 Inst. 584.
45. Sir H. Spelman (of tithes, c. 29.) says these are now called impropriations, as being improperly in the hands of laymen.
46. Seld. tith. c. 11. 1.
47. See 2 Burn. Eccl. Law. 103.
48. Stat. 31. Eliz. c. 6.
49. A layman may also be presented; but he must take priests orders before his admission. 1 Burn. 103.
50. 2 Roll. Abr. 355.
51. Glanv. l. 13. c. 20.
52. 2 Roll. Abr. 356. 2. Inst. 632. Stat. 3 Ric. II. c. 3. 7. Ric. II. c. 12.
53. 5 Rep. 58.
54. 2 Inst. 632.
55. 2 Inst. 632.
56. 5 Rep. 58. 3. Lev. 313.
57. 2 Inst. 632.
58. Co. Litt. 344.
59. Co. Litt. 300.
60. These are very numerous: but there are only two, which can be relied on with any degree of certainty; bishop Gibson's
codex, and Dr Burn's ecclesiastical law.
61. Stat. 25 Hen. VIII. c. 16. 33 Hen. VIII. c. 28.
62. Stat. 28 Hen. VIII. c. 13.
63. 6 Rep. 21.
64. Cro. Car. 456.
65. Hob. 144.
66. Cro. Jac. 198.
67. Stat. 31 Eliz. c. 6. and 12 Ann. c. 12.
68. Stat. 1 Eliz. c. 1. & 2. and 13 Eliz. c. 12.
69. Stat. 13 Eliz. c. 12. 14 Car. II. c. 4. and 1 Geo. I. c. 6.
70. Stat. 1 Eliz. c. 2.
71. Stat. 1 W. M. c. 26.

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William Blackstone: Vol. 1, Commentaries on the Laws of England (1765) Page 237

72. 6 Rep. 29, 30.

73. 1 Burn. eccl. Law. 427.
74. Stat. 28 Hen. VIII. c. 11.
75. Stat. 12 Ann. St. 2. c. 12.
76. In Sweden they have similar officers, whom they call kiorckowariandes. Stiernhook. 1. 3. c. 7.
77. Stat. 1 Eliz. c. 2.
78. 1 Lev. 196.
79. See Lambard of churchwardens, at the end of his cirenacha; and Dr Burn, tit. church, churchwardens, visitation.
80. 2 Roll. Abr. 234.
81. Cro. Car. 589.

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William Blackstone: Vol. 1, Commentaries on the Laws of England (1765) Page 238

CHAPTER 12
Of The Civil State

THE lay part of his majesty's subjects, or such of the people as are not comprehended under the
denomination of clergy, may be divided into three distinct states, the civil, the military, and the
maritime.

THAT part of the nation which falls under our first and most comprehensive division, the civil state,
includes all orders of men, from the highest nobleman to the meanest peasant; that are not included
under either our former division, or clergy, or under one of the two latter, the military and maritime
states: and it may sometimes include individuals of the other three orders; since a nobleman, a
knight, a gentleman, or a peasant, may become either a divine, a soldier, or a seaman.

THE civil state consists of the nobility and the commonalty. Of the nobility, the peerage of Great
Britain, or lords temporal, as forming (together with the bishops) one of the supreme branches of
the legislature, I have before sufficiently spoken: we are here to consider them according to their
several degrees, or titles of honor.

ALL degrees of nobility and honor are derived from the king as their fountain:1 and he may institute
what new titles he pleases. Hence it is that all degrees of honor are not of equal antiquity. those now
in use are dukes, marquesses, earls viscounts, and barons.2

1. A duke, though it be with us, as a mere title of nobility, inferior in point of antiquity to many
others, yet it is superior to all of them in rank; being the first title of dignity after the royal family.3
Among the Saxons the Latin name of dukes, duces, is very frequent, and signified, as among the
Romans, the commanders or leaders of their armies, whom in their own language they called
penetoza;4 and in the laws of Henry I (as translated by Lambard) we find them called heretochii. But
after the Norman conquest, which changed the military polity of the nation, the kings themselves
continuing for many generations dukes of Normandy, they would not honor any subjects with that
title, till the time of Edward III; who, claiming to be king of France, and thereby losing the ducal in
the royal dignity, in the eleventh year of his reign created his son, Edward the black prince, duke of
Cornwall: and many, of the royal family especially, were afterwards raised to the same honor.
However, in the reign of queen Elizabeth, A. D. 1572,5 the whole order became utterly extinct: but
it was revived about fifty years afterwards by her successor, who was remarkably prodigal of honors,
in the person of George Villiers duke of Buckingham.

2. A marquess, marchio, is the next degree of nobility. His office formerly was (for dignity and duty
were never separated by our ancestors) to guard the frontiers and limits of the kingdom; which were
called the marches, from the teutonic word, marche, a limit: as, in particular, were the marches of
Wales and Scotland, while they continued to be enemies countries. The persons who had command
there, were called lords marchers, or marquesses; whose authority was abolished by statute 27 Hen.
VIII. c. 27. though the title had long before been made a mere ensign of honor; Robert Vere, earl of
Oxford, being created marquess of Dublin, by Richard II in the eighth year of his reign.6

3. AN earl is a title of nobility so ancient, that its original cannot clearly be traced out. Thus much

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William Blackstone: Vol. 1, Commentaries on the Laws of England (1765) Page 239

seems tolerably certain: that among the Saxons they were called ealdormen, quasi elder men,
signifying the same as sen'or or senator among the Romans; and also schiremen, because they had
each of them the civil government of a several division or shire. On the irruption of the Danes, they
changed the name to eorles, which, according to Camden,7 signified the same in their language. In
Latin they are called comites [earls] (a title first used in the empire) from being the king's attendants;
“a societate nomen sumpserunt, reges enim tales sibi associant.”8 [“They received their name from
their society, because they were the king's companions.”] After the Norman conquest they were for
some time called counts, or countees, from the French; but they did not long retain that name
themselves, though their shires are from thence called counties to this day. It is now become a mere
title they having nothing to do with the government of the county; which, as has been more than
once observed, is now entirely devolved on the sheriff, the earl's deputy, or vice-comes. In all writs,
and commissions, and other formal instruments, the king, when he mentions any peer of the degree
of an earl, always stiles him “trusty and well beloved cousin:” an appellation as ancient as the reign
of Henry IV; who being either by his wife, his mother, or his sisters, actually related or allied to
every earl in the kingdom, artfully and constantly acknowledged that connection in all his letters and
other public acts; from whence the usage has descended to his successors, though the reason has
long ago failed.

4. THE name of vice-comes or viscount was afterwards made use of as an arbitrary title of honor,
without any shadow of office pertaining to it, by Henry the sixth; when in the eighteenth year of his
reign, he created John Beaumont a peer, by the name of viscount Beaumont, which was the first
instance of the kind.9

5. A baron's is the most general and universal title of nobility; for originally every one of the peers
of superior rank had also a barony annexed to his other titles.10 But it has sometimes happened that,
when an ancient baron has been raised to a new degree of peerage, in the course of a few generations
the two titles have descended differently; one perhaps to the male descendants, the other to the heirs
general; whereby the earldom or other superior title has subsisted without a barony: and there are
also modern instances where earls and viscounts have been crated without annexing a barony to their
other honors: so that now the rule does not hold universally, that all peers are barons. The original
and antiquity of baronies has occasioned great inquiries among our English antiquarians. The most
probable opinion seems to be, that they were the same with our present lords of manors; to which
the name of court baron, (which is the lord's court, and incident to every manor) gives some
countenance. It may be collected from king John's magna carta,11 that originally all lords of manors,
or barons, that held of the king in capite [in chief], had seats in the great council or parliament, till
about the reign of that prince the conflux of them became so large and troublesome, that the king
was obliged to divide them, and summon only the greater barons in person; leaving the small ones
to be summoned by the sheriff, and (as it is said) to sit by representation in another house; which
gave rise to the separation of the two houses of parliament.12 By degrees the title came to be
confined to the greater barons, or lords of parliament only; and there were no other barons among
the peerage but such as were summoned by writ, in respect of the tenure of their lands or baronies,
till Richard the second first made it a mere title of honor, by conferring it on diverse persons by his
letters patent.13

HAVING made this short inquiry into the original of our several degrees of nobility, I shall next

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William Blackstone: Vol. 1, Commentaries on the Laws of England (1765) Page 240

consider the manner in which they may be created. The right of peerage seems to have been
originally territorial; that is, annexed to lands honors, castles, manors, and the like the proprietors
and possessors of which were (in right of those estates) allowed to be peers of the realm, and were
summoned to parliament to do suit and service to their sovereign: and, when the land was alienated,
the dignity passed with it as appendant. Thus the bishops still sit in the house of lords in right of
succession to certain ancient baronies annexed, or supposed to be annexed, to their episcopal lands:14
and thus, in 11 Hen. VI, the possession of the castle of Arundel was adjudged to confer an earldom
on its possessor.15 But afterwards, when alienations grew to be frequent, the dignity of peerage was
confined to the lineage of the party ennobled, and instead of territorial became personal. Actual
proof of a tenure by barony became no longer necessary to constitute a lord of parliament; but the
record of the writ of summons to them or their ancestors was admitted as a sufficient evidence of
the tenure.

PEERS are now created either by writ, or by patent: for those who claim by prescription must
suppose either a writ or patent made to their ancestors; though by length of time it is lost. The
creation by writ, or the king's letter, is a summons to attend the house of peers, by the stile and title
of that barony, which the king is pleased to confer: that by patent is a royal grant to a subject of any
dignity and degree of peerage. The creation by writ is the more ancient way; but a man is not
ennobled thereby, unless he actually takes his seat in the house of lords: and some are of opinion that
there must be at least two writs of summons, and a sitting in two distinct parliaments, to evidence
an hereditary barony:16 and therefore the most usual, because the surest, way is to grant the dignity
by patent, which inures to a man and his heirs according to the limitations thereof, though he never
himself makes use of it.17 Yet it is frequent to call up the eldest son of a peer to the house of lords
by writ of summons, in the name of his father's barony: because in that case there is no danger of
his children's losing the nobility in case he never takes his seat; for they will succeed to their
grand-father. Creation by writ has also one advantage over that by patent: for a person crated by writ
holds the dignity to him and his heirs, without any words to that purport in the writ; but in letters
patent there must be words to direct the inheritance, else the dignity inures only to the grantee for
life.18 For a man or woman may be crated noble for their own lives, and the dignity not descend to
their heirs at all, or descend only to some particular heirs: as where a peerage is limited to a man,
and the heirs male of his body by Elizabeth his present lady, and not to such heirs by any former of
future wife.

LET us next take a view of a few of the principal incidents attending the nobility, exclusive of their
capacity as members of parliament, and as hereditary counselors of the crown; both of which we
have before considered. And first we must observe, that in criminal cases, a nobleman shall be tried
by his peers. The great are always obnoxious to popular envy: were they to be judged by the people,
they might be in danger from the prejudice of their judges; and would moreover be deprived of the
privilege of the meanest subjects, that of being tried by their equals, which is secured to all the realm
by Magna Carta, c. 29. It is said, that this does not extend to bishops; who, though they are lords
of parliament, and sit there by virtue of their baronies which they hold jure ecclesiae [by right of the
church], yet are not ennobled in blood, and consequently not peers with the nobility.19 As to
peeresses, no provision was made for their trail when accused of treason or felony, till after Eleanor
duchess of Gloucester, wife to the lord protector, had been accused of treason and found guilty of
witchcraft, in an ecclesiastical synod, through the intrigues of cardinal Beaufort. This very

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William Blackstone: Vol. 1, Commentaries on the Laws of England (1765) Page 241

extraordinary trial gave occasion to a special statute, 20 Hen. VI. c. 9. which enacts that peeresses
either in their own right, or by marriage, shall be tried before the same judicature as peers of the
realm. If a woman, noble in her own right, marries a commoner, she still remains noble, and shall
be tried by her peers: but if she be only noble by marriage, them by a second marriage, with a
commoner, she loses her dignity; for as by marriage it is gained, by marriage it is also lost. Yet if
a duchess dowager marries a baron, she continues a duchess still; for all the nobility are pares [peers
- equals], and therefore it is no degradation.20 A peer, or peeress (either in her own right or by
marriage) cannot be arrested in civil cases:21 and they have also many peculiar privileges annexed
to their peerage in the course of judicial proceedings. A peer, siting in judgment, gives not his
verdict upon oath, like an ordinary juryman, but upon his honor:22 he answers also to bills in
chancery upon honor, and not upon his oath;23 but, when he is examined as a witness either in civil
or criminal cases, he must be sworn:24 for the respect, which the law shows to the honor of a peer,
does not extend so far as to overturn a settled maxim, that in judicio non creditur nisi juratis [no one
is believed in court but upon his oath].25 The honor of peers is however so highly tendered by the
law, that it is much more penal to spread false reports of them, and certain other great officers of the
realm, than of other men: scandal against them being called by the peculiar name of scandalum
magnatum [scandal of the peer]; and subjected to peculiar punishment by diverse ancient statutes.26

A PEER cannot lose his nobility, but by death or attainder; though there was an instance, in the reign
of Edward the fourth, of the degradation of George Nevile duke of Bedford by act of parliament,27
on account of his poverty, which rendered him unable to support his dignity.28 But this is a singular
instance: which serves at the same time, by having happened, to show the power of parliament; and,
by having happened but once, to show how tender the parliament has been, in exerting so high a
power. It has been said indeed,29 that if a baron waste his estate, so that he is not able to support the
degree, the king may degrade him: but it is expressly held by later authorities,30 that a peer cannot
be degraded but by act of parliament.

THE commonalty, like the nobility, are divided into several degrees; and, as the lords, though
different in rank, yet all of them are peers in respect of their nobility, so the commoners though some
are greatly superior to others, yet all are in law peers, in respect of their want of nobility.31

THE first name of dignity, next beneath a peer, was anciently that of vidames, vice domini, or
valvasors:32 who are mentioned by our ancient lawyers33 as viri magnae dignitatis [men of great
dignity]; and Sir Edward Coke34 speaks highly of them. Yet they are now quite out of use; and our
legal antiquarians are not so much as agreed upon their original or ancient office.

NOW therefore the first dignity after the nobility, is a knight of the order of St. George, or of the
garter; first instituted by Edward III, A. D. 1344.35 Next follows a knight banneret; who indeed by
statutes 5 Ric. II. St. 2. c. 4. and 14 Ric. II. c. 11. is ranked next after barons: and that precedence
was confirmed to him by order of king James I, in the tenth year of his reign.36 But, in order to entitle
himself to this rank, he must have been created by the king in person, in the field, under the royal
banners, in time of open war.37 else he ranks after baronets; who are the next order: which title is
a dignity of inheritance, created by letters patent, and usually descendible to the issue male. It was
first instituted by king James the first, A. D. 1611. in order to raise a competent sum for the
reduction of the province of Ulster in Ireland; for which reason all baronets have the arms of Ulster

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William Blackstone: Vol. 1, Commentaries on the Laws of England (1765) Page 242

superadded to their family coat. Next follow knights of the bath; an order instituted by king Henry
IV, and revived by king George the first. They are so called from the ceremony of bathing, the night
before their creation. The last of these inferior nobility are knights bachelors; the most ancient,
though the lowest, order of knighthood amongst us: for we have an instance38 of king Alfred's
conferring this order on his son Athelstan. The custom of the ancient Germans was to give their
young men a shield and a lance in the great council: this was equivalent to the toga virilis [gown of
manhood] of the Romans: before this they were not permitted to bear arms, but were accounted as
part of the father's household; after it, as part of the public.39 Hence some derive the usage of
knighting, which has prevailed all over the western world, since its reduction by colonies from those
northern heroes. Knights are called in Latin equites aurati [knights]; aurati, from the gilt spurs they
wore; and equites, because they always served on horseback: for it is observable,40that almost all
nations call their knights by some appellation derived from an horse. They are also called in our law
milites, because they formed a part, or indeed the whole of the royal army, in virtue of their feudal
tenures; one condition of which was, that every one who held a knights fee (which in Henry the
second's time41 amounted to 20£ per annum) was obliged to be knighted, and attend the king in his
wars, or fine for his non-compliance. The exertion of this prerogative, as an expedient to raise
money in the reign of Charles the first, gave great offense; though warranted by law, and the recent
example of queen Elizabeth: but it was, at the restoration, together with all other military branches
of the feudal law, abolished; and this king of knighthood has, since that time, fallen into great
disregard.

THESE, Sir Edward Coke says,42 are all the names of dignity in this kingdom, esquires and
gentlemen being only names of worship. But before these last the heralds rank all colonels, sergeants
at law, and doctors in the three learned professions.

ESQUIRES and gentlemen are confounded together by Sir Edward Coke, who observes,43 that every
esquire is a gentleman, and a gentleman is defined to be one qui arma gerit, who bears coat armor,
the grant of which adds gentility to a man's family: in like manner as civil nobility, among the
Romans, was founded in the jus imaginum [right of images], or having the image of one ancestor
at least, who had borne some curule office. It is indeed a matter somewhat unsettled, what
constitutes, the distinction, or who is a real esquire: for it is not an estate, however large, that confers
this rank upon its owner. Camden, who was himself a herald, distinguishes them the most accurately;
and he reckons up four sorts of them:44 1. The eldest sons of knights, and their eldest sons, in
perpetual succession.45 2. The younger sons of peers, and their eldest sons, in like perpetual
succession: both which species of esquires Sir H. Spelman entitles armigeri natalitii [esquires by
birth].46 3. Esquires created by the king's letters patent, or other investiture; and their eldest sons. 4.
Esquires by virtue of their offices; as justices of the peace, and others who bear any office of trust
under the crown. To these may be added the esquires of knights of the bath, each of whom
constitutes three at his installation; and all foreign, nay, Irish peers; and the eldest sons of peers of
Great Britain, who, though generally titular lords, are only esquires in the law, and must so be named
in all legal proceedings.47 As for gentlemen, says Sir Thomas Smith,48 they be made good cheap in
this kingdom: for whosoever studies the laws of the realm, who studies in the universities, who
professes liberal sciences, and (to be short) who can live idly, and without manual labor, and will
bear the port, charge, and countenance of a gentleman, he shall be called master, and shall be taken
for a gentleman. A yeoman is he that has free land of forty shillings by the year; who is thereby

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qualified to serve on juries, vote for knights of the shire, and do any other act, where the law requires
one that is probus et legalis homo [a true and lawful man].49

THE rest of the commonalty are tradesmen, artificers, and laborers: who (as well as all others) must
in pursuance of the statute 1 Hen. V. c. 5. be styled by the name and addition of their estate, degree,
or mystery, in all actions and other legal proceedings.

NOTES

1. 4 inst. 363.
2. For the original of these titles on the continent of Europe, and their subsequent introduction into this island, see Mr.
Selden's titles of honor.
3. Camden. Brian. tit. ordines.

4. This is apparently derived from the same root as the German hertzogen, the ancient appellation of dukes in that country.
Seld. tit. hon. 2. 1. 22
5. Camden. Britan. tit. ordines. Spelman. Gloss. 191.
6. 2 inst. 5.
7. Ibid.
8. Bracton. l. 1. c. 8. Fleta. l. 1 c. 5.
9. 2 inst. 5.
10. 2 inst. 5, 6.
11. cap. 14.
12. Gilb. Hist. exch. c. 3. Seld. tit. of hon. 2. 5. 21.
13. 1 inst. 9. Seld. Tan. Angl. 2. §. 66.
14. Glanv. l. 7. c. 1.
15. Seld. tit. of hon. b. 2. c. 9. §. 5.
16. Whitelocke of parl. c. 114.
17. Co. Litt. 16.
18. Co. Litt. 9 16.
19. 3 inst. 30, 31.
20. 2 inst. 50.
21. Finch. L. 355. 1 Ventr. 298.
22. 2 inst. 49.
23. 1 P. Wms. 146.
24. Salk. 512.
25. Cro. Car. 64.

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William Blackstone: Vol. 1, Commentaries on the Laws of England (1765) Page 244

26. 3 Edw. I. c. 34. 2 Ric. II. St. 1. c. 5. 12 Ric. II. c. 11.

27. 4 inst. 355.
28. The preamble to the act is remarkable: “forasmuch as oftentimes it is seen, that when any lord is called to high estate,
and has not convenient livelihood to support the same dignity, it induces great poverty and indigence, and causes oftentimes
great extortion, embracery, and maintenance to be had; to the great trouble of all such counties where such estate shall happen
to be: therefore etc.”
29. By lord chancellor Ellesmere. Moor. 678.
30. 12 Rep. 107. 12 Mod. 56.
31. 2 inst. 29.
32. Camden. Ibid.
33. Bracton. l. 1. c. 8.
34. 2 inst. 667.
35. Seld. tit. of hon. 2. 5. 41.
36. Seld. tit. hon. 2. 11. 3.
37. 4 inst. 6.
38. Will. Malmfb. lib. 2.
39. Tac. De morib. Germ. 13.
40. Camden. ibid. Co. Litt. 74.
41. Glanvil. l. 9. c. 4.
42. 2 inst. 667.
43. 2 inst. 668.
44. Ibid.
45. inst. 667.
46. Gloss. 43.
47. 3 inst. 30. 2. inst. 667.
48. Common w. of Eng. Book 1. c. 20.
49. 2 inst. 668.

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William Blackstone: Vol. 1, Commentaries on the Laws of England (1765) Page 245

CHAPTER 13
Of the Military and Maritime States

THE military state includes the whole of the soldiery; or, such persons as are peculiarly appointed
among the rest of the people, for the safeguard and defense of the realm.

IN a land of liberty it is extremely dangerous to make a distinct order of the profession of arms. In
absolute monarchies this is necessary for the safety of the prince, and arises from the main principle
of their constitutions, which is that of governing by fear: but in free states the profession of a soldier,
taken singly and merely as a profession, is justly an object of jealousy. In these no man should take
up arms, but with a view to defend his country and its laws: he puts not off the citizen when he
enters the camp; but it is because he is a citizen, and would wish to continue so, that he makes
himself for a while a soldier. The laws therefore and constitution of these kingdoms know no such
state as that of a perpetual standing soldier, bred up to no other profession than that of war: and it
was not till the reign of Henry VII, that the kings of England had so much as a guard about their
persons.

IN the time of our Saxon ancestors, as appears from Edward the confessor's laws,1 the military force
of this kingdom was in the hands of the dukes or heretochs, who were constituted through every
province and county in the kingdom; being taken out of the principal nobility, and such as were most
remarkable for being “sapientes, fideles, et animosi” [“wise, faithful, and brave”]. Their duty was
to lead and regulate the English armies, with a very unlimited power; “prout eis visum fuerit, ad
honorem coronae et utilitatem regni.” [“As it should seem to them, for the honor of the crown and
the advantage of the kingdom.”] And because of this great power they were elected by the people
in their full assembly, or folkmote, in the same manner as sheriffs were elected: following still that
old fundamental maxim of the Saxon constitution, that where any officer was entrusted with such
power, as if abused might tend to the oppression of the people, that power was delegated to him by
the vote of the people them selves.2 So too, among the ancient Germans, the ancestors of our Saxon
forefathers, they had their dukes, as well as kings, with an independent power over the military, as
the kings had over the civil state. The dukes were elective, the kings hereditary: for so only can be
consistently understood that passage of Tacitus,3 “reges ex nobilitate, duces ex virtute sumunt”
[“they chose kings for nobility, their leaders for valor”]; in constituting their kings, the family, or
blood royal, was regarded, in choosing their dukes or leaders, warlike merit: just as Caesar relates
of their ancestors in his time, that whenever they went to war, by way either of attack or defense,
they elected leaders to command them.4 This large share of power, thus conferred by the people,
though intended to preserve the liberty of the subject, was perhaps unreasonably detrimental to the
prerogative of the crown: and accordingly we find a very ill use made of it by Edric duke of Mercia,
in the reign of king Edmond Ironside; who, by his office of duke or heretoch, was entitled to a large
command in the king's army, and his repeated treacheries at last transferred the crown to Canute the
Dane.

IT seems universally agreed by all historians, that king Alfred first settled a national militia in this
kingdom, and by his prudent discipline made all the subjects of his dominion soldiers: but we are
unfortunately left in the dark as to the particulars of this his so celebrated regulation; though, from
what was last observed, the dukes seem to have been left in possession of too large and independent

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a power: which enabled duke Harold on the death of Edward the confessor, though a stranger to the
royal blood, to mount for a short space the throne of this kingdom, in prejudice of Edgar Atheling,
the rightful heir.

UPON the Norman conquest the feudal law was introduced here in all its rigor, the whole of which
is built on a military plan. I shall not now enter into the particulars of that constitution, which
belongs more properly to the next part of our commentaries: but shall only observe, that, in
consequence thereof, all the lands in the kingdom were divided into what were called knight's fees,
in number above sixty thousand; and for every knight's fee a knight or soldier, miles, was found to
attend the king in his wars, for forty days in a year; in which space of time, before was reduced to
a science, the campaign was generally finished, and a kingdom either conquered or victorious.5 By
this means the king had, without any expense, an army of sixty thousand men always ready at his
command. And accordingly we find one, among the laws of William the conqueror,6 which in the
king's name commands and firmly enjoins the personal attendance of all knights and others; “quod
habeant et teneant se semper in armis et equis, ut decet et oportet; et quod semper sint prompti et
parati ad servitium suum integrum nobis explendum et peragendum, cum opus adsuerit, secundum
quod debent de feodis et tenementis suis de jure nobis facere.” [“To keep and hold themselves
always well furnished with arms and horses, as is suitable and proper: and be always ready and well
prepared for fulfilling and performing their entire service to us when need shall be; according to
what they are by law bound to do for us by reason of their fees and tenements.”] This personal
service in process of time degenerated into pecuniary commutations or aids, and at last the military
part of the feudal system was abolished at the restoration, by statute 12 Car. II. c. 24.

IN the mean time we are not to imagine that the kingdom was left wholly without defense, in case
of domestic insurrections, or the prospect of foreign invasions. besides those, who by their military
tenures were bound to perform forty days service in the field, the statute of Winchester7 obliged
every man, according to his estate and degree, to provide a determinate quantity of such arms as
were then in use, in order to keep the peace: and constables were appointed in all hundreds to see
that such arms were provided. these weapons were changed, by the stature 4 & 5 Ph. & M. c. 2. into
others of more modern service; but both this and the former provision were repealed in the reign of
James I.8 While these continued in force, it was usual from time to time for our princes to issue
commissioins of array, and send into every county officers in whom they could confide, to muster
and array (or set in military order) the inhabitants of every district: and the form of the commission
of array was settled in parliament in the 5 Hen. IV.9 But at the same time it was provided10 that no
man should be compelled to go out of the kingdom at any race, nor out of his shire but in cases of
urgent necessity; nor should provide soldiers unless by consent of parliament. About the reign of
king Henry the eighth, and his children, lord lieutenants began to be introduced, as standing
representatives of the crown, to keep the counties in military order; for we find them mentioned as
known officers in the statute 4 & 5 Ph. & M. c. 3. though they had not been then long in use, for
Camden speaks of them,11 in the time of queen Elizabeth, as extraordinary magistrates constituted
only in times of difficulty and danger.

IN this state things continued, till the repeal of the statutes of armor in the reign of king James the
first: after which, when king Charles the first had, during his northern expeditions, issued
commissions of lieutenancy and exerted some military powers which, having been long exercised,

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William Blackstone: Vol. 1, Commentaries on the Laws of England (1765) Page 247

were thought to belong to the crown, it became a question in the long parliament, how far the power
of the militia did inherently reside in the king; being now unsupported by any statute, and founded
only upon immemorial usage. This question, long agitated with great heat and resentment on both
sides, became at length the immediate cause of the fatal repture between the king and his parliament:
the two houses not only denying this prerogative of the crown, the legality of which right perhaps
might be somewhat doubtful; but also seizing into their won hands the entire power of the militia,
the illegality of which step could never be any doubt at all.

SOON after the restoration of king Charles the second, when the military tenures were abolished,
it was thought proper to ascertain the power of the militia, to recognize the sole right of the crown
to govern and command them, and to put the whole into a more regular method of military
subordination:12 and the order, in which the militia now stands by law, is principally built upon the
statutes which were then enacted. It is true the two last of them are apparently repealed; but many
of their provisions are re-enacted, with the addition of some new regulations, by the present militia
laws: the general scheme of which is to discipline a certain number of the inhabitants of every
county, chosen by lot for three years, and officered by the lord lieutenant, the deputy lieutenants, and
other principal landholders, under a commission from the crown. They are not compellable to march
out of their counties, unless in case of invasion or actual rebellion, nor in any case compellable to
march out of the kingdom. They are to be exercised at stated times: and their discipline in general
is liberal and easy; but, when drawn out into actual service, they are subject to the rigors of martial
law, as necessary to keep them in order. This is the constitutional security, which our laws have
provided for the public peace, and for protecting the realm against foreign or domestic violence; and
which the statutes13 declare is essentially necessary to the safety and prosperity of the kingdom.

WHEN the nation is engaged in a foreign war, more veteran troops and more regular discipline may
perhaps be necessary, than can be expected from a mere militia. And therefore at such times
particular provisions have been usually made for the raising of armies and the due regulation and
discipline of the soldiery: which are to be looked upon only as temporary excrescences bred out of
the distemper of the state, and not as any part of the permanent and perpetual laws of the kingdom.
For martial law, which is built upon no settled principles, but is entirely arbitrary in its decisions,
is, as Sir Matthew Hale observes,14 in truth and reality no law, but something indulged, rather than
allowed as a law: the necessity of order and discipline in an army is the only thing which can give
it countenance; and therefore it ought not to be permitted in time of peace, when the king's courts
are open for all persons to receive justice according to the laws of the land. Wherefore Thomas earl
of Lancaster being condemned at Pontefract, 15 Edw. II. and condemned by martial law, his
attainder was reversed 1 Edw. III. because it was done in time of peace. And it is laid down,15 that
if a lieutenant, or other, that has commission of martial authority, does in time of peace hang or
otherwise execute any man by color of martial law, this is murder; for it is against Magna Carta.16
And the petition of right17enacts, that no soldier shall be quartered on the subject without his own
consent;18 and that no commission shall issue to proceed within this land according to martial law.
And whereas, after the restoration, king Charles the second kept up about five thousand regular
troops, by his won authority, for guards and garrisons; which king James the second by degrees
increased to no less than thirty thousand, all paid from his own civil list; it was made one of the
articles of the bill of rights,19 that the raising or keeping a standing army within the kingdom in time
of peace, unless it be with consent of parliament, is against law.

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BUT, as the fashion of keeping standing armies has universally prevailed over all Europe of late
years (though some of its potentates, being unable themselves to maintain them, are obliged to have
recourse to richer powers, and receive subsidiary pensions for that purpose) it has also for many
years past been annually judged necessary by our legislature, for the safety of the kingdom, the
defense of the possessions of the crown of Great Britain, and the preservation of the balance of
power in Europe, to maintain even in time of peace a standing body of troops, under the command
of the crown; who are however ipso facto [by that fact] disbanded at the expiration of every year,
unless continued by parliament.

TO prevent the executive power from being able to oppress, says baron Montesquieu,20 it is requisite
that the armies with which it is entrusted should consist of the people, and have the same spirit with
the people; as was the case at Rome, till Marius new-modeled the legions by enlisting the rabble of
Italy, and laid the foundation of all the military tyranny that ensued. Nothing then, according to these
principles, ought to be more guarded against in a free state, than making the military power, when
such a one is necessary to be kept on foot, a body too distinct from the people. Like ours therefore,
it should wholly be composed of natural subjects; it ought only to be enlisted for a short and limited
time; the soldiers also should live intermixed with the people; no separate camp, no barracks, no
inland fortresses should be allowed. And perhaps it might be still better, if, by dismissing a stated
number and enlisting others at every renewal of their term, a circulation could be kept up between
the army and the people, and the citizen and the soldier be more intimately connected together.

TO keep this body of troops in order, an annual act of parliament likewise passes, “to punish mutiny
and desertion, and for the better payment of the army and their quarters.” This regulates the manner
in which they are to be dispersed among the several inn-keepers and victualers throughout the
kingdom; and establishes a law martial for their government. By this, among other things, it is
enacted, that if any officer and soldier shall excite, or join any mutiny, or, knowing of it, shall not
give notice to the commanding officer; or shall desert, or list in any other regiment, or sleep upon
his post, or leave it before he is relieved, or hold correspondence with a rebel or enemy, or strike or
use violence to his superior officer, or shall disobey his lawful commands; such offender shall suffer
such punishment as a court martial shall inflict, though it extend to death itself.

HOWEVER expedient the most strict regulations may be in time of actual war, yet, in times of
profound peace, a little relaxation of military rigor would not, one should hope, be productive of
much inconvenience. And, upon this principle, though by our standing laws21 (still remaining in
force, though not attended to) desertion in time of war is made felony, without benefit of clergy, and
the offense is triable by a jury and before the judges of the common law; yet, by our militia laws
beforementioned, a much lighter punishment is inflicted for desertion in time of peace. So, by the
Roman law also, desertion in time of war was punished with death, but more mildly in time of
tranquility.22 But our mutiny act makes no such distinction: for any of the faults therein mentioned
are, equally at all times, punishable with death itself, if a court martial shall think proper. This
discretionary power of the court martial is indeed to be guided by the directions of the crown; which,
with regard to military offenses, has almost an absolute legislative power. “His majesty, says the act,
may form articles of war, and constitute courts martial, with power to try any crime by such articles,
and inflict such penalties as the articles direct.” A vast and most important trust! An unlimited
power to create crimes, and annex to them any punishments, not extending to life or limb! these are

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indeed forbidden to be inflicted, except for crimes declared to be so punishable by this act; which
crimes we have just enumerated, and, among which, we may observe that any disobedience to lawful
commands is one. Perhaps on some future revision of this act, which is in many respects hastily
penned, it may be thought worthy the wisdom of parliament to ascertain the limits of military
subjection, and to enact express articles of war for the government of the army, as is done for the
government of the navy: especially as, by our present constitution, the nobility and gentry of the
kingdom, who serve their country as militia officers, are annually subjected to the same arbitrary
rule during their time of exercise.

ONE of the greatest advantages of our English law is, that not only the crimes themselves which it
punishes, but also the penalties which it inflicts, are ascertained and notorious: nothing is left to
arbitrary discretion: the king by his judges dispenses what the law has previously ordained; but is
not himself the legislator. How much therefore is it to be regretted that a set of men, whose bravery
has so often preserved the liberties of their country, should be reduced to a state of servitude in the
midst of a nation of freemen! for Sir Edward Coke will inform us,23 that it is one of the genuine
marks of servitude, to have the law, which is our rule of action, either concealed or precarious:
“misera est servitus, ubi jus est vagum aut incognitum” [“wretched is the thraldom where the law
is either uncertain or unknown”]. Nor is this state of servitude quite consistent with the maxims of
found policy observed by other free nations. For, the greater the general liberty is which any state
enjoys, the more cautious has it usually been of introducing slavery in any particular order or
profession. these men, as baron Montesquieu observes,24 seeing the liberty which others possess, and
which they themselves are excluded from, are apt (like eunuchs in the eastern seraglios) to live in
a state of perpetual envy and hatred towards the rest of the community; and indulge a malignant
pleasure in contributing to destroy those privileges, to which they can never be admitted. Hence
have many free states, by departing from this rule, been endangered by the revolt of their slaves:
while, in absolute and despotic governments where there no real liberty exists, and consequently no
invidious comparisons can be formed, such incidents are extremely rare. Two precautions are
therefore advised to be observed in all prudent and free governments; 1. To prevent the introduction
of slavery at all: or, 2. If it be already introduced, not to entrust those slaves with arms; who will
then find themselves an overmatch for the freemen. Much less ought the soldiery to be an exception
to the people in general, and the only state of servitude in the nation.

BUT as soldiers, by this annual act, are thus put in a worse condition than any other subjects, so, by
the humanity of our standing laws, they are in some cases put in a much better. By statute 43 Eliz.
c. 3. a. weekly allowance is to be raised in every county for the relief of soldiers that are sick, hurt,
and maimed: not forgetting the royal hospital at Chelsea for such as are worn out in their duty.
Officers and soldiers, that have been in the king's service, are by several statutes, enacted at the close
of several wars, at liberty to use any trade or occupation they are fit for, in any town in the kingdom
(except the two universities) notwithstanding any statute, custom, or charter to the contrary. And
soldiers in actual military service may make nuncupative wills, and dispose of their goods, wages,
and other personal chattels, without those forms, solemnities, and expenses, which the law requires
in other cases.25 Our law does not indeed extend this privilege so far as the civil law; which carried
it to an extreme that borders upon the ridiculous. For if a soldier, in the article of death, wrote
anything in bloody letters on his shield, or in the dust of the field with his sword, it was a very good
military testament.26 And thus much for the military state, as acknowledged by the laws of England.

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THE maritime state is nearly related to the former; though much more agreeable to the principles
of our free constitution. The royal navy of England has ever been its greatest defense and ornament:
it is its ancient and natural strength; the floating bulwark of the island; an army, from which,
however strong and powerful no danger can ever be apprehended to liberty; and accordingly it has
been assiduously cultivated, even from the earliest ages. To so much perfection was our naval
reputation arrived in the twelfth century, that the code of maritime laws which are called the laws
of Oleron, and are received by all nations in Europe as the ground and substruction of all their
marine constitutions, was confessedly compiled by our king Richard the first, at the isle of Oleron
on the coast of France, then part of the possessions of the crown of England.27 And yet, so vastly
inferior were our ancestors in this point to the present age, that even in the maritime reign of queen
Elizabeth, Sir Edward Coke28 thinks it matter of boast, that the royal navy of England then consisted
of three and thirty ships. The present condition of our marine is in great measure owing to the
salutary provisions of the statutes, called the navigation-acts; whereby the constant increase of
English shipping and seamen was not only encouraged, but rendered unavoidably necessary. By the
statute 5 Ric. II. c. 3. in order to augment the navy of England, then greatly diminished, it was
ordained, that none of the king's liege people should ship any merchandise out of or into the realm
but only in ships of the king's ligeance, on pain of forfeiture. In the next year, by statute 6 Ric. II.
c. 8. this wise provision was enervated, by only obliging the merchants to give English ships (if able
and sufficient) the preference. But the most beneficial statute for the trade and commerce of these
kingdoms if that navigation-act, the rudiments of which were first framed in 1650,29 with a narrow
partial view: being intended to mortify the sugar islands, which were disaffected to the parliament
and still held out for Charles II, by stopping the gainful trade which they then carried on with the
Dutch;30 and at the same time to clip the wings of those our opulent and aspiring neighbors. This
prohibited all ships of foreign nations from trading with any English plantations without license
from the council of state. In 165131the prohibition was extended also to the mother country; and no
goods were suffered to be imported into England, or any of its dependencies, in any other than
English bottoms; or in the ships of that European nation of which the merchandise imported was the
genuine growth or manufacture. At the restoration, the former provisions were continued, by statute
12 Car. II. c. 18. with this very material improvement, that the master and three fourths of the
mariners shall also be English subjects.

MANY laws have been made for the supply of the royal navy with seamen; for their regulation when
on board; and to confer privileges and rewards on them during and after their service.

1. FIRST, for their supply. The power of impressing men for the sea service by the king's
commission, has been a matter of some dispute, and submitted to with great reluctance; though it
has very clearly and learnedly been shown, by Sir Michael Foster,32 that the practice of impressing,
and granting powers to the admiralty for that purpose, is of very ancient date, and has been
uniformly continued by a regular series of precedents to the present time: whence he concludes it
to be part of the common law.33 The difficulty arises from hence, that no statute has expressly
declared this power to be in the crown, though many of them very strongly imply it. The statute 2
Ric. II. c. 4. speaks of mariners being arrested and retained for the king's service, as of a thing well
known, and practiced without dispute; and provides a remedy against their running away. By a later
statute,34 if any waterman, who uses the river Thames, shall hide himself during the execution of any
commission of pressing for the king's service, he is liable to heavy penalties. By another35 no

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fisherman shall be taken by the queen's commission to serve as a mariner; but the commission shall
be first brought to two justices of the peace, inhabiting near the sea coast where the mariners are to
be taken, to the intent that the justices may choose out and return such a number of able-bodied men,
as in the commission are contained, to serve her majesty. And, by other,36 especial protections are
allowed to seamen in particular circumstances, to prevent them from being impressed. All which do
most evidently imply a power of impressing to reside somewhere; and, if any where, it must from
the spirit of our constitution, as well as from the frequent mention of the king's commission, reside
in the crown alone.

BUT, besides this method of impressing, (which is only defensible from public necessity, to which
all private considerations must give way) there are other ways that tend to the increase of seamen,
and manning the royal navy. Parishes may bind out poor boys apprentices to masters of
merchantmen, who shall be protected from impressing for the first three years; and if they are
impressed afterwards, the masters shall be allowed their wages:37 great advantages in point of wages
are given to volunteer seamen in order to induce them to enter into his majesty's service:38 and every
foreign seaman, who during a war shall serve two years in any man of war, merchantman, or
privateer, is naturalized ipso facto.39 About the middle of king William's reign, a scheme was set on
foot40 for a register of seamen to the number of thirty thousand, for a constant and regular supply of
the king's fleet; with great privileges to the registered men, and, on the other hand, heavy penalties
in case of their non-appearance when called for: but this registry, being judged to be rather a badge
of slavery, was abolished by statute 9 Ann. c. 21.

2. THE method of ordering seamen in the royal fleet, and keeping up a regular discipline there, is
directed by certain express rules, articles and orders, first enacted by the authority of parliament
soon after the restoration;41 but since new-modeled and altered, after the peace of Aix la Chapelle,42
to remedy some defects which were of fatal consequence in conducting the preceding war. In these
articles of the navy almost every possible offense is set down, and the punishment thereof annexed:
in which respect the seamen have much the advantage over their brethren in the land service; whose
articles of war are not enacted by parliament, but framed from time to time at the pleasure of the
crown. Yet from whence this distinction arose, and why the executive power, which is limited so
properly with regard to the navy, should be so extensive with regard to the army, it is hard to assign
a reason: unless it proceeded from the perpetual establishment of the navy, which rendered a
permanent law for their regulation expedient; and the temporary duration of the army, which
subsisted only from year to year; and might therefore with less danger be subjected to discretionary
government. But, whatever was apprehended at the first formation of the mutiny act, the regular
renewal of our standing force at the entrance of every year has made this distinction idle. For, if
from experience past we may judge of future events, the army is now lastingly engrafted into the
British constitution; with this singularly fortunate circumstance, that any branch of the legislature
may annually put an end to its legal existence, by refusing to concur in its continuance.

3. WITH regard to the privileges conferred on sailors, they are pretty much the same with those
conferred on soldiers; with regard to relief, when maimed, or wounded, or superannuate, either by
county rates, or the royal hospital at Greenwich; with regard also to the exercise of trades, and the
power of making nuncupative testaments: and, farther,43 no seaman aboard his majesty's ships can
be arrested for any debt, unless the same be sworn to amount to at least twenty pounds; though, by

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William Blackstone: Vol. 1, Commentaries on the Laws of England (1765) Page 252

the annual mutiny acts, a soldier may be arrested for a debt which extends to half that value, but not
to a less amount.

NOTES

1. c. de beretochiis.
2. “Isti vero viri eliguntur per commune consilium, pro communi utilitate regni, per provincias et patrias universas, et per
singulos comitatus in pleno folkmote, sicut et vice-comites provinciarum et comitatuum eligi debent.” [“These men are chosen
for the general benefit of the kingdom, by the common council, by the provinces, the whole country, and by each county in
full assembly, as also the sheriffs of provinces and counties should be elected.”] LL. Edw. Confell. ibid. See also Bede, eccl.
hist. l.5. c. 10.
3. De morib. German. 7.
4. “Quum bellum civitas, ant illatum defendit aut infert, magistratus qui ei bello praesint deliguntur.” [“When a city is
engaged either in an offensive or defensive war, magistrates qualified to direct that war are chosen.”] De bell. Gall. l. 6. c.
22.
5. The Poles are, even at this day, so tenacious of their ancient constitution, that their pospolite, or militia, cannot be
compelled to serve above six weeks, or forty days, in a year. Mod. Univ. hist. xxxiv. 12.
6. c. 58. See Co. LItt. 75, 76.
7. 13 Edw. I. c. 6.
8. Stat. 1 Jac. I. c. 25. 21. Jac. I. c. 28.
9. Rushworth. part. 3. pag. 667.
10. Stat. 1 Edw. III. St. 2. c. 5. & &. 25 Edw. III. St. 5. c. 8.
11. Brit. 103. Edit. 1594.
12. 13 Car. II. c. 6. 14 Car. II. c. 3. 15 Car. II. c. 4.
13. 30 Geo. Ii. c. 25. etc.
14. hist. C. L. c. 2.
15. 3 inst. 52.
16. cap. 29.
17. 3 Car. I. See also stat. 31 Car. II. c. 1.
18. Thus, in Poland, no soldier can be quartered upon the gentry, the only freemen in that republic. Mod. Univ. hist xxxiv.
23.
19. Stat. 1 W. & M. St. 2. c. 2.
20. Sp. L. 11. 6.
21. Stat. 18 Hen. VI. c. 19. 2. & 3. Edw. VI. c. 2.
22. Ff. 49. 16. 5.
23. 4 inst. 332.
24. Sp. L. 15. 12.
25. Stat. 29. Car. II. c. 3. 5. W. III. c. 21. §. 6.

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William Blackstone: Vol. 1, Commentaries on the Laws of England (1765) Page 253

26. Si milites quid in clypeo literis sanguine suo rutilantibus adnotaverint, aut in pulvere inscripserint gladio suo, ipso
tempore quo, in praelio, vitae sortem derelinquunt, hujusmodi voluntatem stabilem esse oportet. [If a soldier, in the article
of death, wrote anything in bloody letters on his shield, or in the dust of the field with his sword, it was a very good military
testament.] Cod. 6. 21. 15.
27. 4 inst. 144. Coutumes de al mer. 2.
28. 4 inst. 50.
29. Scobell 132.
30. Mod. Un. hist. xli. 289.
31. Scobell. 176.
32. Rep. 154.
33. See also Comb. 245.
34. Stat. 2. & 3. Ph. & M. c. 16.
35. Stat. 5 Eliz. c. 5.
36. Stat. 7 & 8 W. III. c. 21. 2 Ann. c. 6. 4 & 5 Ann. C. 19. 13. Geo. II. c. 17 etc.
37. Stat. 2 Ann. c. 6.
38. Stat. 1 Geo. II. St. 2. c. 14.
39. Stat. 13 Geo. II. c. 3.
40. Stat. 7 & 8 W. III. c. 21.
41. Stat. 13 Car. II. St. 1. c. 9.
42. Stat. 22 Geo II. c. 23.
43. Stat. 1. Geo. II. St. 2. c. 14.

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William Blackstone: Vol. 1, Commentaries on the Laws of England (1765) Page 254

CHAPTER 14
Of Master and Servant

HAVING thus commented on the rights and duties of persons, as standing in the public relations of
magistrates and people; the method I have marked out now leads me to consider their rights and
duties in private economical relations.

THE three great relations in private life are, 1. That of master and servant; which is founded in
convenience, whereby a man is directed to call in the assistance of others, where his own skill and
labor will not be sufficient to answer the cares incumbent upon him. 2. That of husband and wife;
which is founded in nature, but modified by civil society: the one directing man to continue and
multiply his species, the other prescribing the manner in which that natural impulse must be
confined and regulated. 3. That of parent and child, which is consequential to that of marriage, being
its principal end and design: and it is by virtue of this relation that infants are protected, maintained,
and educated. But, since the parents, on whom this care is primarily incumbent, may be snatched
away by death or otherwise, before they have completed their duty, the law has therefore provided
a fourth relation; 4. That of guardian and ward, which is a kind of artificial parentage, in order to
supply the deficiency, whenever it happens, of the natural. Of all these relations in their order.

IN discussing the relation of master and servant, I shall, first, consider the several sorts of servants,
and how this relation is created and destroyed: secondly, the effects of this relation with regard to
the parties themselves: and, lastly, its effect with regard to other persons.

1. As to the several sorts of servants: I have formerly observed1 that pure and proper slavery does
not, nay cannot, subsist in England; such I mean, whereby an absolute and unlimited power is given
to the master over the life and fortune of the slave. And indeed it is repugnant to reason, and the
principles of natural law, that such a state should subsist any where. The three origins of the right
of slavery assigned by Justinian,2 are all of them built upon false foundation. As, first, slavery is held
to arise “jure gentium” [“by the law of nations”] from a state of captivity in war; whence slaves are
called mancipia, quasi manu capti [mancipia, as taken by hand]. The conqueror, say the civilians,
had a right to the life of his captive; and, having spared that, has a right to deal with him as he
pleases. But it is an untrue position, a man may kill his enemy: he has only a right to kill him, in
particular cases; in cases of absolute necessity, for self-defense; and it is plain this absolute necessity
did not subsist, since the victor did not actually kill him, but made him prisoner. War is itself
justifiable only on principles of self-preservation; and therefore it gives no other right over prisoners,
but merely to disable them from doing harm to us, by confining their persons: much less can it give
a right to kill, torture, abuse, plunder, or even to enslave, an enemy, when the war is over. Since
therefore the right of making slaves by captivity, depends on a supposed right of slaughter, that
foundation failing, the consequence drawn from it must fail likewise. But, secondly, it is said that
slavery may begin “jure civili” [“by civil law”]; when one man sells himself to another. This, if only
meant of contracts to serve or work for another, is very just: but when applied to strict slavery, in
the sense of the laws of old Rome or modern Barbary, is also impossible. Every sale implies a price,
a quid pro quo [value for value], an equivalent given to the seller in lieu of what he transfers to the
buyer: but what equivalent can be given for life, and liberty, both of which (in absolute slavery) are
held to be in the master's disposal? His property also, the very price he seems to receive, devolves

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ipso facto to his master, the instant he becomes his slave. In this case therefore the buyer gives
nothing, and the seller receives nothing: of what validity then can a sale be, which destroys the very
principles upon which all sales are founded? lastly, we are told, that besides these two ways by
which slaves “siunt,” or are acquired, they may also be hereditary: “servi nascuntur;” the children
of acquired slaves are, jure naturae [by the law of nature], by a negative king of birthright, slaves
also. But this being built on the two former rights must fall together with them. If neither captivity,
nor the sale of oneself, can by the law of nature and reason, reduce the parent to slavery, much less
can it reduce the offspring.

UPON these principles the law of England abhors, and will not endure the existence of, slavery
within this nation: so that when an attempt was made to introduce it, by statute 1 Edw. VI. c. 3.
which ordained, that all idle vagabonds should be made slaves, and fed upon bread, water, or small
drink, and refuse meat; should wear a ring of iron round their necks, arms, or legs; and should be
compelled by beating, chaining, or otherwise, to perform the work assigned them, were it never so
vile; the spirit of the nation could not brook this condition, even in the most abandoned rogues; and
therefore this statute was repealed in two years afterwards.3 And now it is laid down,4 that a slave
or negro, the instant he lands in England, becomes a freeman; that is, the law will protect him in the
enjoyment of his person, his liberty, and his property., Yet, with regard to any right which the master
may have acquired, by contract or the like, to the perpetual service of John or Thomas, this will
remain exactly in the same state as before: for this is no more than the same state of subjection for
life, which every apprentice submits so for the space of seven years, or sometimes for a longer term.
Hence too it follows, that the infamous and unchristian practice of withholding baptism from negro
servants, lest they should thereby gain their liberty, is totally without foundation, as well as without
excuse. The law of England acts upon general and extensive principles: it gives liberty, rightly
understood, that is, protection, to a Jew, a Turk, or a heathen, as well as to those who profess the true
religion of Christ; and it will not dissolve a civil contract, either express or implied, between master
and servant, on account of the alteration of faith in either of the contracting parties: but the slave is
entitled to the same liberty in England before, as after, baptism; and, whatever service the heathen
negro owed to his English master, the same is he bound to render when a Christian.

1. THE first sort of servants therefore, acknowledged by the laws of England, are menial servants;
so called from being intra moenia [within the walls], or domestics. The contract between them and
their masters arises upon the hiring. If the hiring be general without any particular time limited, the
law construes it to be a hiring for a year;5 upon a principle of natural equity, that the servant shall
serve, and the master maintain him, throughout all the revolutions of the respective seasons; as well
when there is work to be done, as when there is not:6 but the contract may be made for any larger
or smaller term. All single men between twelve years old and sixty, and married ones under thirty
years of age, and all single women between twelve and forty, not having any visible livelihood, are
compellable by two justices to go out to service, for the promotion of honest industry: and no master
can put away his servant, or servant leave his master, either before or at the end of his term, without
a quarter's warning; unless upon reasonable cause to be allowed by a justice of the peace:7 but they
may part by consent, or make a special bargain.

2. ANOTHER species of servants are called apprentices (from apprendre, to learn) and are usually
bound for a term of years, by deed indented or indentures, to serve their masters, and be maintained

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William Blackstone: Vol. 1, Commentaries on the Laws of England (1765) Page 256

and instructed by them: for which purpose our statute law8 has made minors capable of binding
themselves. This is usually done to persons of trade, in order to learn their art and mystery; and
sometimes very large sums are given with them, as a premium for such their instruction: but it may
be done to husbandmen, nay to gentlemen, and others. And9 children of poor persons may be
apprenticed out by the overseers, with consent of two justices, till twenty four years of age, to such
persons as are thought fitting; who are also compellable to take them: and it is held, that gentlemen
of fortune, and clergymen, are equally liable with others to such compulsion.10 Apprentices to trades
may be discharged on reasonable cause, either at request of themselves or masters, at the quarter
sessions, or by one justice, with appeal to the sessions:11 who may, by the equity of the stature, if
they think it reasonable, direct restitution of a ratable share of the money given with the apprentice.12
And parish apprentices may be discharged in the same manner, by two justices.13

3. A THIRD species of servants are laborers, who are only hired by the day or the week, and do not
live intra moenia, as part of the family; concerning whom the statute so often cited14 has made many
very good regulations; 1. Directing that all persons who have no visible effects may be compelled
to work: 2. Defining how long they must continue at work in summer and winter: 3. Punishing such
as leave or desert their work: 4. Empowering the justices at sessions, or the sheriff of the county, to
settle their wages: and 5. Inflicting penalties on such as either give, or exact, more wages than are
so settled.

4. THERE is yet a fourth species of servants, if they may be so called being rather in a superior, a
ministerial, capacity; such as stewards, factors, and bailiffs: whom however the law considers as
servants pro tempore, with regard to such of their acts, as affect their master's or employer's
property. Which leads me to consider,

II. THE manner in which this relation, of service, affects either the master or servant. And, first, by
hiring and service for a year, or apprenticeship under indentures, a person gains a settlement in that
parish wherein he last served forty days.15 In the next place persons serving as apprentices to any
trade have an exclusive right to exercise that trade in any part of England.16 This law, with regard
to the exclusive part of it, has by turns been looked upon as a hard law, or as a beneficial one,
according to the prevailing humor of the times: which has occasioned a great variety of resolutions
in the courts of law concerning it; and attempts have been frequently made for its repeal, though
hitherto without success. At common law every man might use what trade he pleased; but this statute
restrains that liberty to such as have served as apprentices: the adversaries to which provision say,
that all restrictions (which tend to introduce monopolies) are pernicious to trade; the advocates for
it allege, that unskillfulness in trades is equally detrimental to the public, as monopolies. This reason
indeed only extends to such trades, in the exercise whereof skill is required: but another of their
arguments goes much farther; viz. that apprenticeships are useful to the commonwealth, by
employing of youth, and learning them to be early industrious; but that no one would be induced to
undergo a seven years servitude, if others, though equally skillful, were allowed the same advantages
without having undergone the same discipline: and in this there seems to be much reason. However,
the resolutions of the courts have in general rather confined than extended the restriction. No trades
are held to be within the statute, but such as were in being at the making of it:17 for trading in a
country village, apprenticeships are not requisite:18 and following the trade seven years is sufficient
without any binding; for the statute only says the person must serve as an apprentice, and does not

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William Blackstone: Vol. 1, Commentaries on the Laws of England (1765) Page 257

require an actual apprenticeship to have existed.19

A MASTER may by law correct his apprentice or servant for negligence or other misbehavior, so
it be done with moderation:20 though, if the master's wife beats him, it is good cause of departure.21
But if any servant, workman, or laborer assaults his master or dame, he shall suffer one year's
imprisonment, and other open corporal punishment, not extending to life or limb.22

BY service all servants and laborers, except apprentices, become entitled to wages: according to
their agreement, if menial servants: or according to the appointment of the sheriff or sessions, if
laborers or servants in husbandry: for the statutes for regulation of wages extend to such servants
only;23 it being impossible for any magistrate to be a judge of the employment of menial servants,
or of course to assess their wages.

III. LET us, lastly, see how strangers may be affected by this relation of master and servant: or how
a master may behave towards others on behalf of his servant; and what a servant may do on behalf
of his master.

AND, first, the master may maintain, that is, abet and assist his servant in any action at law against
a stranger: whereas, in general, it is an offense against public justice to encourage suits and
animosities, by helping to bear the expense of them, and is called in law maintenance.24 A master
also may bring an action against any man for beating or maiming his servant; but in such case he
must assign, as a special reason for so doing, his own damage by the loss of his service; and this loss
must be proved upon the trial.25 A master likewise may justify an assault in defense of his servant,
and a servant in defense of his master:26 the master, because he has an interest in his servant, not to
be deprived of his service; the servant, because it is part of his duty, for which he receives his wages,
to stand by and defend his master.27 Also if any person do hire or retain my servant, being in my
service, for which the servant departs from me and goes to serve the other, I may have an action for
damages against both the new master and the servant, or either of them: but if the new master did
not know that he is may servant, no action lies; unless he afterwards refuse to restore him upon
information and demand.28 The reason and foundation upon which all this doctrine is built, seem to
be the property that every man has in the service of his domestics; acquired by the contract of hiring,
and purchased by giving them wages.

AS for those things which a servant may do on behalf of his master, they seem all to proceed upon
this principle, that the master is answerable for the act of his servant, if done by his command, either
expressly given, or implied: nam qui facit per alium, facit per se [he who acts by an agent, does it
himself].29 Therefore, if the servant commit a trespass by the command or encouragement of his
master, the master shall be guilty of it: not that the servant is excused, for he is only to obey his
master in matters that are honest and lawful. If an innkeeper's servants rob his guests, the master is
bound to restitutions:30 for as there is a confidence reposed in him, that he will take care to provide
honest servants, his negligence is a kind of implied consent to the robbery; nam, qui non prohibet,
cum prohibere possit, jubet [he who does not forbid a crime while he may, sanctions it]. So likewise
if the drawer at a tavern sells a man bad wine, whereby his health is injured, he may bring an action
against the master:31 for, although the master did not expressly order the servant to sell it to that
person in particular, yet his permitting him to draw and sell it at all is impliedly a general command.

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IN the same manner, whatever a servant is permitted to do in the usual course of his business, is
equivalent to a general command. If I pay money to a banker's servant, the banker is answerable for
it: if I pay it to a clergyman's or a physician's servant, whose usual business it is not to receive
money for his master, and he embezzles it, I must pay it over again. If a steward lets a lease of a
farm, without the owner's knowledge, the owner must stand to the bargain; for this is the steward's
business. A wife, a friend, a relation, that use to transact business for a man, are quoad hoc his
servants; and the principal must answer for their conduct: for the law implies, that they act under a
general command; and, without such a doctrine as this, no mutual intercourse between man and man
could subsist with any tolerable convenience. If I usually deal with a tradesman by myself, or
constantly pay him ready money, I am not answerable for what my servant takes up upon trust; for
here is no implied order to the tradesman to trust my servant: but if I usually send him upon trust,
or sometimes on trust, and sometimes with ready money, I am answerable for all he takes up; for the
tradesman cannot possibly distinguish when he comes by my order, and when upon his own
authority.32

IF a servant, lastly, by his negligence does any damage to a stranger, the master shall answer for his
neglect: if a smith's servant lames a horse while he is shoeing him, an action lies against the master,
and not against the servant. But in these cases the damage must be done, while he is actually
employed in the master's service; otherwise the servant shall answer for his own misbehavior. Upon
this principle, by the common law,33 if a servant kept his master's fire negligently, so that his
neighbor's house was burned down thereby, an action lay against the master; because this negligence
happened in his service: otherwise, if the servant, going along the street with a torch, by negligence
sets fire to a house; for there he is not in his master's immediate service, and must himself answer
the damage personally. But now the common law is, in the former case, altered by statute 6 Ann.
c. 3. which ordains that no action shall be maintained against any, in whose house or chamber any
fire shall accidentally being; for their own loss is sufficient punishment for their own or their
servants' carelessness. But if such fine happens through the negligence of any servant (whose loss
is commonly very little) such servant shall forfeit 100 £, to be distributed among the sufferers; and,
in default of payment, shall be committed to some workhouse and there kept to hard labor for
eighteen months.34 A master is, lastly, chargeable if any of his family lays or casts anything out of
his house into the street or common highway, to the damage of any individual, or the common
nuisance of his majesty's liege people:35 for the master has the superintendence and charge of all his
household. And this also agrees with the civil law;36 which holds, that the pater familias [family
father], in this and similar cases, “ob alterius culpam tenetur, sive servi, sive liberi” [“is held
accountable for the fault of another, whether his servant, or child”].

WE may observe, that in all the cases here put, the master may be frequently a loser by the trust
reposed in his servant, but never can be a gainer: he may frequently be answerable for his servant's
misbehavior, but never can shelter himself from punishment by laying the blame on his agent. The
reason of his is still uniform and the same; that the wrong done by the servant is looked upon in law
as the wrong of the master himself; and it is a standing maxim, that no man shall be allowed to make
any advantage of his own wrong.

NOTES

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William Blackstone: Vol. 1, Commentaries on the Laws of England (1765) Page 259

1. pag. 123.
2. Servi aut fiunt, aut nascuntur; fiunt jure gentium, aut jure civili: nascuntur ex ancillis nostris. [Slaves are either born or
made so; they are made slaves by the law of nations, or by the civil law; they are born slaves as the children of our female
captives.] inst. 1. 3. 4.
3. Stat. 3 & 4 Edw. VI. c. 16.
4. Salk. 666.
5. Co. Litt. 42.
6. F. N. B. 168.
7. Stat. 5 Eliz. c. 4.
8. Stat. Eliz. c. 4.
9. Stat. 5 Eliz. c. 4. 43 Eliz. c.2 1 Jac. I. c. 25. 7. Jac. I. c. 3. 8 & 9 W. & M. c. 30. 2 & 3 Ann. c. 6. 4. Ann. c. 19. 17 Geo.
II. c. 5.
10. Salk. 57. 491.
11. Stat. 5 Eliz. c. 4.
12. Salk. 67.
13. Stat. 20 Geo. II. c. 19.
14. Stat 5 Eliz. c. 4.
15. See page 352.
16. Stat. 5 Eliz. c. 4.
17. Lord Raym. 514.
18. 1 Ventr. 61. 2 Keb. 583.
19. Lord Raym. 1179.
20. 1 Hawk. P. C. 130. Lamb. Eiren. 127.
21. F. N. B. 168.
22. Stat. 5. Eliz. c. 4.
23. 2 Jones. 47.
24. 2 Roll. Abr. 115.
25. 9 Rep. 113.
26. 2 Roll. Abr. 546.
27. In like manner, by the laws of king Alfred, c. 38. a. servant was allowed to fight for his master, a parent for his child,
and a husband or father for the chastity of his wife or daughter.
28. F. N. B. 167, 168.
29. 4 inst. 109.
30. Noy's Max. c. 43.
31. 1 Roll. Abr. 95.

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William Blackstone: Vol. 1, Commentaries on the Laws of England (1765) Page 260

32. Dr & Stud. D. 2. c. 42. Noys max. c. 44.

33. Noy's max. c. 44.
34. Upon a similar principle, by the law of the twelve tables at Rome, a person by whose negligence any fire began was
bound to pay double to the sufferers; or if he was not able to pay, was to suffer a corporal punishment.
35. Noy's max. c. 44.
36. Ff. 9. 3. 1. inst. 4. 5. 1.

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William Blackstone: Vol. 1, Commentaries on the Laws of England (1765) Page 261

CHAPTER 15
Of Husband And Wife

THE second private relation of persons is that of marriage, which includes the reciprocal duties of
husband and wife; or, as most of our elder law books call them, of baron and feme. In the
consideration of which I shall in the first place inquire, how marriages may be contracted or made;
shall next point out the manner in which they may be dissolved; and shall, lastly, take a view of the
legal effects and consequence of marriage.

I. OUR law considers marriage in no other light than as a civil contract. The Holiness of the
matrimonial state is left entirely to the ecclesiastical law: the temporal courts not having jurisdiction
to consider unlawful marriages as a sin, but merely as a civil inconvenience. The punishment
therefore, or annulling, of incestuous or other unscriptural marriages, is the province of the spiritual
courts; which act pro salute animae [for the health of their souls].1 And, taking it in this civil light,
the law treats it as it does all other contracts; allowing it to be good and valid in all cases, where the
parties at the time of making it were, in the first place, willing to contract; secondly, able to contract;
and, lastly, actually did contract, in the proper forms and solemnities required by law.

FIRST, they must be willing to contract. “Consensus, non concubitus, facit nuptias” [“Consent, not
cohabitation, makes the marriage”], is the maxim of the civil law in this case:2 and it is adopted by
the common lawyers,3 who indeed have borrowed (especially in ancient times) almost all their
notions of the legitimacy of marriage from the canon and civil laws.

SECONDLY, they must be able to contract. In general, all persons are able to contract themselves
in marriage, unless they labor under some particular disabilities, and incapacities. What those are,
it will here be our business to inquire.

NOW these disabilities are of two sorts: first, such as are canonical, and therefore sufficient by the
ecclesiastical laws to avoid the marriage in the spiritual court; but these in our law only make the
marriage voidable, and not ipso facto [by that fact] void, until sentence of nullity be obtained. Of
this nature are pre-contract; consanguinity, or relation by blood; and affinity, or relation by marriage;
and some particular corporal infirmities. And these canonical disabilities are either grounded upon
the express words of the divine law, or are consequences plainly deducible from thence: it therefore
being sinful in the persons, who labor under them, to attempt to contract matrimony together, they
are properly the object of the ecclesiastical magistrate's coercion; in order to separate the offenders,
and inflict penance for the offense, pro salute animarum [for the health of their souls]. But such
marriages not being void ab initio [from the beginning], but voidable only by sentence of separation,
they are esteemed valid to all civil purposes, unless such separation is actually made during the life
of the parties. For, after the death of either of them, the courts of common law will not suffer the
spiritual court to declare such marriages to have been void; because such declaration cannot now
tend to the reformation of the parties.4 And therefore when a man had married his first wife's sister,
and after her death the bishop's court was proceeding to annul the marriage and bastardize the issue,
the court of king's bench granted a prohibition quoad hoc [as to this]; but permitted them to proceed
to punish the husband for incest.5 These canonical disabilities, being entirely the province of the
ecclesiastical courts, our books are perfectly silent concerning them. But there are a few statutes,

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William Blackstone: Vol. 1, Commentaries on the Laws of England (1765) Page 262

which serve as directories to those courts, of which it will be proper to take notice. By statute 32
Hen. VIII. c. 38. it is declared, that all persons may lawfully marry, but such as are prohibited by
God's law; and that all marriages contracted by lawful persons in the face of the church, and
consummate with bodily knowledge, and fruit of children, shall be indissoluble. And (because in the
times of popery a great variety of degrees of kindred were made impediments to marriage, which
impediments might however be bought off for money) it is declared by the same statute, that nothing
(God's law except) shall impeach any marriage, but within the Levitical degrees; the farthest of
which is that between uncle and niece.6 By the same statute all impediments, arising from
pre-contracts to other person, were abolished and declared of none effect, unless they had been
consummated with bodily knowledge: in which case the canon law holds such contract to be a
marriage de facto [in fact]. But this branch of the statute was repealed by statute 2 & 3 Edw. VI. c.
23. How far the act of 26 Geo. II. c. 33. (which prohibits all suits in ecclesiastical courts to compel
a marriage, in consequence of any contract) may collaterally extend to revive this clause of Henry
VIII's statute, and abolish the impediment of pre-contract, I leave to be considered by the canonists.

THE other sort of disabilities are those which are created, or at least enforced, by the municipal
laws. And, though some of them may be grounded on natural law, yet they are regarded by the laws
of the land, not so much in the light of any moral offense, as on account of the civil inconveniences
they draw after them. These civil disabilities make the contract void ab initio, and not merely
voidable: not that they dissolve a contract already formed, but they render the parties incapable of
forming any contract at all: they do not put asunder those who are joined together, but they
previously hinder the junction. And, if any persons under these legal incapacities come together, it
is a meretricious, and not a matrimonial, union.

1. THE first of these legal disabilities is a prior marriage, or having another husband or wife living;
in which case, besides the penalties consequent upon it as a felony, the second marriage is to all
intents and purposes void:7 polygamy being condemned both by the law of the new testament, and
the policy of all prudent states, especially in these northern climates. And Justinian, even in the
climate of modern Turkey, is express,8 that “duas uxores eodem tempore habere non licet.” [“It is
not lawful to have two wives at one time.”]

2. THE next legal disability is want of age. This is sufficient to avoid all other contracts, on account
of the imbecility of judgment in the parties contracting; a fortiori [it follows] therefore it ought to
avoid this, the most important contract of any. Therefore if a boy under fourteen, or a girl under
twelve years of age, marries, this marriage is only inchoate and imperfect; and, when either of them
comes to the age of consent aforesaid, they may disagree and declare the marriage void, without any
divorce or sentence in the spiritual court. This is founded on the civil law.9 But the canon law pays
a greater regard to the constitution, than the age, of the parties:10 for if they are habiles ad
matrimonium [fit for marriage], it is a good marriage, whatever their age may be. And in our law it
is so far a marriage, that, if at the age of consent they agree to continue together, they need not be
married again.11 If the husband be of years of discretion, and the wife under twelve, when she comes
to years of discretion he may disagree as well as she may: for in contracts the obligation must be
mutual; both must be bound, or neither: and so it is, vice versa, when the wife is of years of
discretion, and the husband under.12

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William Blackstone: Vol. 1, Commentaries on the Laws of England (1765) Page 263

3. ANOTHER incapacity arises from want of consent of parents or guardians. By the common law,
if the parties themselves were of the age of consent, there wanted no other concurrence to make the
marriage valid: and this was agreeable to the canon law. But, by several statutes,13 penalties of 100£
are laid on every clergyman who marries a couple either without publication of banns (which may
give notice to parents or guardians) or without a license, to obtain which the consent of parents or
guardians must be sworn to. And by the statute 4 & 5 Ph. & M. c. 8. whosoever marries any woman
child under the age of sixteen years, without consent of parents of guardians, shall be subject to fine,
or five years imprisonment: and her estate during the husband's life shall go to and be enjoyed by
the next heir. The civil law indeed required the consent of the parent or tutor at all ages; unless the
children were emancipated, or out of the parents power:14 and, if such consent from the father was
wanting, the marriage was null, and the children illegitimate;15 but the consent of the mother or
guardians, if unreasonably withheld, might be redressed and supplied by the judge, or the president
of the province16 and if the father was non compos, a similar remedy was given.17 These provisions
are adopted and imitated by the French and Hollanders, with this difference: that in France the sons
cannot marry without consent of parents till thirty years of age, nor the daughters till twenty five;18
and in Holland, the sons are at their own disposal at twenty five, and the daughters at twenty.19 Thus
has stood, and thus at present stands, the law in other neighboring countries. And it has been lately
thought proper to introduce somewhat of the same policy into our laws, by statute 26 Geo. II. c. 33.
whereby it is enacted, that all marriages celebrated by license (for banns suppose notice) where
either of the parties is under twenty one, (not being a widow or widower, who are supposed
emancipated) without the consent of the father, or, if he be not living, of the mother or guardians,
shall be absolutely void. A like provision is made as in the civil law, where the mother or guardian
is non compos [of unsound mind], beyond sea, or unreasonably froward, to dispense with such
consent at the discretion of the lord chancellor: but no provision is made, in case the father should
labor under any mental or other incapacity. Much may be, and much has been said both for and
against this innovation upon our ancient laws and constitution. On the one hand, it prevents the
clandestine marriages of minors, which are often a terrible inconvenience to those private families
wherein they happen. On the other hand, restraints upon marriage, especially among the lower class,
are evidently detrimental to the public, by hindering the increase of people; and to religion and
morality, by encouraging licentiousness and debauchery among the single of both sexes; and thereby
destroying one end of society and government, which is, concubitu prohibere vago [promiscuous
intercourse is forbidden]. And of this last inconvenience the Roman laws were so sensible, that at
the same time that they forbad marriage without the consent of parents or guardians, they were less
rigorous upon that very account with regard to other restraints: for, if a parent did not provide a
husband for his daughter, by the time she arrived at the age of twenty five, and she afterwards made
a slip in her conduct, he was not allowed to disinherit her upon that account; “quia non sua culpa,
sed parentum, id commisisse cognoscitur.”20 [“Because she was considered to have committed it,
not through her own fault, but that of her parents.”]

4. A FOURTH incapacity is want of reason; without a competent share of which, as no other, so

neither can the matrimonial contract, be valid. It was formerly adjudged, that the issue of an idiot
was legitimate, and consequently that his marriage was valid. A stranger determination! since
consent is absolutely requisite to matrimony, and neither idiots nor lunatics are capable of
consenting to anything. And therefore the civil law judged much more sensibly, when it made such
deprivation of reason a previous impediment, though not a cause of divorce, if they happened after

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marriage.21 And modern resolutions have adhered to the reason of the civil law, by determining22 that
the marriage of a lunatic, not being in a lucid interval, was absolutely void. But as it might be
difficult to prove the exact state of the party's mind at the actual celebration of the nuptials, upon this
account (concurring with some private family23 reasons) the stat. 15. Geo. II. c. 30. has provided,
that the marriage of lunatics and persons under frenzies (if found lunatics under a commission, or
committed to the care of trustees by any act of parliament) before they are declared of sound mind
by the lord chancellor or the majority of such trustees, shall be totally void.

LASTLY, the parties must not only be willing, and able, to contract, but actually must contract
themselves in due form of law, to make it a good civil marriage. Any contract made, per verba de
praesenti, or in words of the present tense, and in case of cohabitation per verba de futuro [by words
of the future tense] also, between persons able to contract, was before the late act deemed a valid
marriage to many purposes; and the parties might be compelled in the spiritual courts to celebrate
it in facie ecclesiae [in sight of the church]. But these verbal contracts are now of no force, to
compel a future marriage.24 Neither is any marriage at present valid, that is not celebrated in some
parish church or public chapel, unless by dispensation from the archbishop of Canterbury. It must
also be preceded by publication of banns, or by license from the spiritual judge. Many other
formalities are likewise prescribed by the act; the neglect of which, though penal, does not invalidate
the marriage. It is held to be also essential to a marriage, that it be performed by a person in orders;25
though the intervention of a priest to solemnize this contract is merely juris positivi [of civil law],
and not juris naturalis aut duvini [of natural or divine law]: it being said that pope Innocent the third
was the first who ordained the celebration of marriage in the church;26 before which it was totally
a civil contract. And, in the times of the grand rebellion, all marriages were performed by the
justices of the peace; and these marriages were declared valid, without any fresh solemnization, by
statute 12 Car. II. c. 33. But, as the law now stands, we may upon the whole collect, that no marriage
by the temporal law is ipso facto void, that is celebrated by a person in orders, ) in a parish church
or public chapel (or elsewhere, by special dispensation) ) in pursuance of banns or a license, )
between single persons, ) consenting, ) of sound mind, ) and of the age of twenty one years; ) or of
the age of fourteen in males and twelve in females, with consent of parents or guardians, or without
it, in case of widowhood. And no marriage is voidable by the ecclesiastical law, after the death of
either of the parties; nor during their lives, unless for the canonical impediments of pre-contract, if
that indeed still exists; of consaguinity; and of affinity, or corporal imbecility, subsisting previous
to the marriage.

II. I AM next to consider the manner in which marriages may be dissolved; and this is either by
death, or divorce. There are two kinds of divorce, the one total, the other partial; the one a vinculo
matrimonii [from matrimonial bonds], the other merely a mensa et thoro [from bed and board]. The
total divorce, a vinculo matrimonii, must be for some of the canonical causes of impediment
before-mentioned; and those, existing before the marriage, as is always the case in consanguinity;
not supervenient [extraneous], or arising afterwards, as may be the case in affinity or corporal
imbecility. For in cases of total divorce, the marriage is declared null, as having been absolutely
unlawful ab initio; and the parties are therefore separated pro salute animarum: for which reason,
as was before observed, no divorce can be obtained, but during the life of the parties. The issue of
such marriage, as is thus entirely dissolved, are bastards.27

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DIVORCE a mensa et thoro is when the marriage is just and lawful ab initio, and therefore the law
is tender of dissolving it; but, for some supervenient cause, it becomes improper or impossible for
the parties to live together: as in the case of intolerable ill temper, or adultery, in either of the parties.
For the canon law, which the common law follows in this case, deems so highly and with such
mysterious reverence of the nuptial tie, that it will not allow it to be unloosed for any cause
whatsoever, that arises after the union is made. And this is said to be built on the divine revealed
law; though that expressly assigns incontinence as a cause, and indeed the only cause, why a man
may put away his wife and marry another.28 The civil law, which is partly of pagan original, allows
many causes of absolute divorce; and some of them pretty severe ones, (as if a wife goes to the
theater or the public games, without the knowledge and consent of the husband29) but among them
adultery is the principal, and with reason named the first.30 But with us in England adultery is only
a cause of separation from bed and board:31 for which the best reason that can be given, is, that if
divorces were allowed to depend upon a matter within the power of either the parties, they would
probably be extremely frequent; as was the case when divorces were allowed for canonical
disabilities, on the mere confession of the parties,32 which is now prohibited by the canons.33
However, divorces a vinculo matrimonii, for adultery, have of late years been frequently granted by
act of parliament.

IN case of divorce a mensa et thoro, the law allows alimony to the wife; which is that allowance,
which is made to a woman for her support out of the husband's estate; being settled at the discretion
of the ecclesiastical judge, on consideration of all the circumstances of the case. This is sometimes
called her estovers; for which, if he refuses payment, there is (besides the ordinary process of
excommunication) a writ at common law de estoveriis habendis [of recovering estovers], in order
to recover it.34 It is generally proportioned to the rank and quality of the parties. But in case of
elopement, and living with an adulterer, the law allows her no alimony.35

III. HAVING thus shown how marriages may be made, or dissolved, I come now, lastly, to speak
of the legal consequences of such making, or dissolution.

By marriage, the husband and wife are one person in law:36 that is, the very being or legal existence
of the woman is suspended during the marriage, or at least is incorporated and consolidated into that
of the husband: under whose wing, protection, and cover, she performs everything; and is therefore
called in our law-french a feme-covert [married woman]; is said to be covert-baron, or under the
protection and influence of her husband, her baron, or lord; and her condition during her marriage
is called her coverture. Upon this principle, of an union of person in husband and wife, depend
almost all the legal rights, duties, and disabilities, that either of them acquire by the marriage. I
speak not at present of the rights of property, but of such as are merely personal. For this reason, a
man cannot grant anything to his wife, or enter into covenant with her:37 for the grant would be to
suppose her separate existence; and to covenant with her, would be only to covenant with himself:
and therefore it is also generally true, that all compacts made between husband and wife, when
single, are voided by the intermarriage.38 A woman indeed may be attorney for her husband;39 for
that implies no separation from, but is rather a representation of, her lord. And a husband may also
bequeath anything to his wife by will; for that cannot take effect till the coverture is determined by
his death.40 The husband is bound to provide his wife with necessaries by law, as much as himself;
and if the contracts debts for them, he is obliged to pay them:41 but for anything besides necessaries,

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William Blackstone: Vol. 1, Commentaries on the Laws of England (1765) Page 266

he is not chargeable.42 Also if a wife elopes, and lives with another man, the husband is not
chargeable even for necessaries;43 at last if the person, who furnishes them, is sufficiently apprized
of her elopement.44 If the wife be indebted before marriage, the husband is bound afterwards to pay
the debt; for he has adopted her and her circumstances together.45 If the wife be injured in her person
or her property, she can bring no action for redress without her husband's concurrence, and in his
name, as well as her own:46 neither can she be sued, without making the husband a defendant.47
There is indeed one case where the wife shall sue and be sued as a feme sole [single woman], viz.
where the husband has abjured the realm, or is banished:48 for then he is dead in law; and, the
husband being thus disabled to sue for or defend the wife; it would be most unreasonable if she had
no remedy, or could make no defense at all. In criminal prosecutions, it is true, the wife may be
indicted and punished separately;49 for the union is only a civil union. But, in trials of any sort, they
are not allowed to be evidence for, or against, each other:50 partly because it is impossible their
testimony should be indifferent; but principally because of the union of person: and therefore, if they
were admitted to be witnesses for each other, they would contradict one maxim of law, “nemo in
propria causa testis esse debet” [no one ought to be witness in his own cause]; and if against each
other, they would contradict another maxim, “nemo tenetur seipsum accusare” [no one is bound to
accuse himself]. But where the offense is directly against the person of the wife, this rule has been
usually dispensed with:51 and therefore, by statute 3 Hen. VII. c. 2. in case a woman be forcibly
taken away, and married, she may be a witness against such her husband, in order to convict him of
felony. For in this case she can with no propriety be reckoned his wife; because a main ingredient,
her consent, was wanting to the contract: and also there is another maxim of law, that no man shall
take advantage of his own wrong; which the ravisher here would do, if by forcibly marrying a
woman, he could prevent her from being a witness, who is perhaps the only witness, to that very
fact.

IN the civil law the husband and wife are considered as two distinct persons; and may have separate
estates, contracts, debts, and injuries:52 and therefore, in our ecclesiastical courts, a woman may sue
and be sued without her husband.53

BUT, though our law in general considers man and wife as one person, yet there are some instances
in which she is separately considered; as inferior to him, and acting by his compulsion. And
therefore all deeds executed, and acts done, by her, during her coverture, are void, or at least
voidable; except it be a fine, or the like matter of record, in which case she must be solely and
secretly examined, to learn if her act be voluntary.54 She cannot by will devise lands to her husband,
unless under special circumstances; for at the time of making it she is supposed to be under his
coercion.55 And in some felonies, and other inferior crimes, committed by her, through constraint
of her husband, the law excuses her:56 but this extends not to treason or murder.

THE husband also (by the old law) might give his wife moderate correction.57 For, as he is to answer
for her misbehavior, the law thought it reasonable to entrust him with this power of restraining her,
by domestic chastisement, in the same moderation that a man is allowed to correct his servants or
children; for whom the master or parent is also liable in some cases to answer. But this power of
correction was confined within reasonable bounds;58 and the husband was prohibited to use any
violence to his wife, aliter quam ad virum, ex causa regiminis et castigationis uxoris suae, licite et
rationabiliter pertinet [other than lawfully and reasonably pertains to the husband for the rule and

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William Blackstone: Vol. 1, Commentaries on the Laws of England (1765) Page 267

correction of his wife].59 The civil law gave the husband the same, or a larger, authority over his
wife; allowing him, for some misdemeanors, flagellis et fustibus acriter verberare uxorem [To beat
his wife severely with whips and sticks], for others, only modicam castigationem adhibere [with
moderate punishment].60 But, with us, in the politer reign of Charles the second, this power of
correction began to be doubted:61 and a wife may now have security of the peace against her
husband;62 or, in return, a husband against his wife.63 Yet the lower rank of people, who were always
fond of the old common law, still claim and exert their ancient privilege: and the courts of law will
still permit a husband to restrain a wife of her liberty, in case of any gross misbehavior.64

THESE are the chief legal effects of marriage during the coverture; upon which we may observe,
that even the disabilities, which the wife lies under, are for the most part intended for her protection
and benefit. So great a favorite is the female sex of the laws of England.

NOTES

1. Salk. 121.
2. Ff. 50. 17. 30.
3. Co. Litt. 33.
4. Ibid.
5. Salk. 548.
6. Gilb. Rep. 158.
7. Bro. Abr. tit. bastardy. Pl. 8.
8. Inst. 1. 10. 7.
9. Leon. Constit. 109.
10. Decretal. l. 4. tit. 2. qu. 3.
11. Co. Litt. 79.
12. Ibid.
13. 6 & 7 W. III. c. 6. 7 & 8 W. III. c. 35. 10 Ann. c. 19.
14. Ff. 23. 2. 2. & 18.
15. Ff. 1. 5. 11.
16. Cod. 5. 4. 1, & 20.
17. inst. I. 10. 1.
18. Domat, of dowries §. 2. Montesq. Sp. L. 23. 7.
19. Vinnius in inst. l. t. 10.
20. Nov. 115. §. 11.
21. Ff. 23. tit. 1. l. 8. & tit. 2. l. 16.
22. Morrison's case, coram Delegat.

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23. See private acts 23 Geo. II. c. 6.

24. Stat. 26 Geo. II. c. 33.
25. Salk. 119.
26. Moor 170.
27. Co. Litt. 235.
28. Matt. xix. 9.
29. Nov. 117.
30. Cod. 5. 17. 8.
31. Moor 683.
32. 2 Mod. 314.
33. Can. 1603 c. 105.
34. 1 Lev. 6.
35. Cowel. tit. Alimony.
36. Co. Litt. 112.
37. Ibid.
38. Cro. Car. 551.
39. F. N. B. 27.
40. Co. Litt. 112.
41. Salk. 118.
42. 1 Sid. 120.
43. Stra. 647.
44. 1 Lev. 5.
45. 3 Mod. 186.
46. Salk. 119. 1 Roll. Abr. 347.
47. 1 Leon, 312. This was also the practice in the courts of Athens. (Pott. Antiqu. b. 1. c. 21.)
48. Co. Litt. 133.
49. 1 Hawk. P. C. 3.
50. 2 Haw. P. C. 431.
51. State trials, vol. 1. Lord Audley's case. Stra. 633.
52. Cod. 4. 12. 1.
53. 2 Roll. Abr. 298.
54. Litt. §. 669. 670.
55. Co. Litt. 112.

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56. 1 Hawk. P. C. 2.
57. Ibid. 130.
58. Moor. 874.
59. F. N. B. 80.
60. Nov. 117. c. 14. & Van Leeuwen in loc.
61. 1 Sid. 113. 3 Keb. 433.
62. 2 Lev. 128.
63. Stra. 1207.
64. Stra. 478. 875.

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William Blackstone: Vol. 1, Commentaries on the Laws of England (1765) Page 270

CHAPTER 16
Of Parent And Child

THE next, and the most universal relation in nature, is immediately derived from the preceding,
being that between parent and child.

CHILDREN are of two sorts; legitimate, and spurious, or bastards: each of which we shall consider
in their order; and first of legitimate children.

I. A LEGITIMATE child is he that is born in lawful wedlock, or within a competent time afterwards.
“Pater est quem nuptiae demonstrant” [“The nuptials show who is the father”], is the rule of the
civil law;1 and this holds with the civilians, whether the nuptials happen before, or after, the birth
of the child. With us in England the rule is narrowed, for the nuptials must be precedent to the birth;
of which more will be said when we come to consider the case of bastardy. At present let us inquire
into, 1. The legal duties of parents to their legitimate children. 2. Their power over them. 3. The
duties of such children to their parents.

1. AND, first, the duties of parents to legitimate children: which principally consist in three
particulars; their maintenance, their protection, and their education.

THE duty of parents to provide for the maintenance of their children is a principle of natural law;
an obligation, says Pufendorf,2 laid on them not only by nature herself, but by their own proper act,
in bringing them into the world: for they would be in the highest manner injurious to their issue, if
they only gave the children life, that they might afterwards see them perish. By begetting them
therefore they have entered into a voluntary obligation, to endeavor, as far as in them lies, that the
life which they have bestowed shall be supported and preserved. And thus the children will have a
perfect right of receiving maintenance from their parents. And the president Montesquieu3 has a very
just observation upon this head: that the establishment of marriage in all civilized states is built on
this natural obligation of the father to provide for his children; for that ascertains and makes known
the person who is bound to fulfil this obligation: whereas, in promiscuous and illicit conjunctions,
the father is unknown; and the mother finds a thousand obstacles in her way; ) shame, remorse, the
constraint of her sex, and the rigor of laws; ) that stifle her inclinations to perform this duty: and
besides, she generally wants ability.

THE municipal laws of all well-regulated states have taken care to enforce this duty: though
providence has done it more effectually than any laws, by implanting in the breast of every parent
that natural ςοργη, or insuperable degree of affection, which not even the deformity of person or
mind, not even the wickedness, ingratitude, and rebellion of children, can totally suppress or
extinguish.

THE civil law4 obliges the parent to provide maintenance for his child; and, if he refuses, “judex de
ea re cognoscet” [“the judge will take cognizance of it”]. Nay, it carries this matter so far, that it
will not suffer a parent at his death totally to disinherit his child, without expressly giving his reason
for so doing; and there are fourteen such reasons reckoned up,5 which may justify such disinherison
[disinheritance]. If the parent alleged no reason, or a bad, or false one, the child might set the will

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aside, tanquam testamentum inofficiosum [as an unkind will], a testament contrary to the natural
duty of the parent. And it is remarkable under what color the children were to move for relief in such
a case: by suggesting that the parent had lost the use of his reason, when he made the inofficious
testament. And this, as Pufendorf observes,6 was not to bring into dispute the testator's power of
disinheriting his own offspring; but to examine the motives upon which he did it: and, if they were
found defective in reason, then to set them aside. But perhaps this is going rather too far: every man
has, or ought to have, by the laws of society, a power over his own property: and, as Grotius very
well distinguishes,7 natural right obliges to give a necessary maintenance to children; but what is
more than that, they have no other right to, than as it is given them by the favor of their parents, or
the positive constitutions of the municipal law.

LET us next see what provision our own laws have made for this natural duty. It is a principle of
law,8 that there is an obligation on every man to provide for those descended from his loins: and the
manner, in which this obligation shall be performed, is thus pointed out.9 The father, and mother,
grandfather, and grandmother of poor impotent persons shall maintain them at their own charges,
if of sufficient ability, according as the quarter sessions shall direct: and10 if a parent runs away, and
leaves his children, the churchwardens and overseers of the parish shall seize his rents, goods, and
chattels, and dispose of them towards their relief. By the interpretations which the courts of law have
made upon these statutes, if a mother or grandmother marries again, and was before such second
marriage of sufficient ability to keep the child, the husband shall be charged to maintain it:11 for this
being a debt of hers, when single, shall like others extend to charge the husband. But at her death,
the relation being dissolved, the husband is under no farther obligation.

No person is bound to provide a maintenance for his issue, unless where the children are impotent
and unable to work, either through infancy, disease, or accident; and then is only obliged to find
them with necessaries, the penalty on refusal being no more than 20 s. a month. For the policy of
our laws, which are ever watchful to promote industry, did not mean to compel a father to maintain
his idle and lazy children in ease and indolence: but thought it unjust to oblige the parent, against
his will, to provide them with superfluities, and other indulgences of fortune; imagining they might
trust to the impulse of nature, if the children were deserving of such favors. Yet, as nothing is so apt
to stifle the calls of nature as religious bigotry, it is enacted,12 that if any popish parent shall refuse
to allow his protestant child a fitting maintenance, with a view to compel him to change his religion,
the lord chancellor shall by order of court constrain him to do what is just and reasonable. But this
did not extend to persons of another religion, of no less bitterness and bigotry than the popish: and
therefore in the very next year we find an instance of a Jew of immense riches, whose only daughter
having embraced Christianity, he turned her out of doors; and on her application for relief, it was
held she was entitled to none.13 But this gave occasion14 to another statute,15 which ordains, that if
Jewish parents refuse to allow their protestant children a fitting maintenance, suitable to the fortune
of the parent, the lord chancellor on complaint may make such order therein as he shall see proper.

OUR law has made no provision to prevent the disinheriting of children by will; leaving every man's
property in his own disposal, upon a principle of liberty in this, as well as every other, action: though
perhaps it had not been amiss, if the parent had been bound to leave them at the least a necessary
subsistence. By the custom of London indeed, (which was formerly universal throughout the
kingdom) the children of freemen are entitled to one third of their father's effects, to be equally

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William Blackstone: Vol. 1, Commentaries on the Laws of England (1765) Page 272

divided among them; of which he cannot deprive them. And, among persons of any rank or fortune,
a competence is generally provided for younger children, and the bulk of the estate settled upon the
eldest, by the marriage-articles. Heirs also, and children, are favorites of our courts of justice, and
cannot be disinherited by any dubious or ambiguous words; there being required the utmost certainty
of the testator's intentions to take away the right of an heir.16

FROM the duty of maintenance we may easily pass to that of protection; which is also a natural
duty, but rather permitted than enjoined by any municipal laws: nature, in this respect, working so
strongly as to need rather a check than a spur. A parent may, by our laws, maintain and uphold his
children in their lawsuits, without being guilty of the legal crime of maintaining quarrels.17 A parent
may also justify an assault and battery in defense of the persons of his children:18 nay, where a man's
son was beaten by another boy, and the father went near a mile to find him, and there revenged his
son's quarrel by beating the other boy, of which beating the afterwards, died; it was not held to be
murder, but manslaughter merely.19 Such indulgence does the law show to the frailty of human
nature, and the workings of parental affection.

THE last duty of parents to their children is that of giving them an education suitable to their station
in life: a duty pointed out by reason, and of far the greatest importance of any. For, as Pufendorf
very well observes,20 it is not easy to imagine or allow, that a parent has conferred any considerable
benefit upon his child, by bringing him into the world; if he afterwards entirely neglects his culture
and education, and suffers him to grow up like a mere beast, to lead a life useless to others, and
shameful to himself. Yet the municipal laws of most countries seem to be defective in this point, by
not constraining the parent to bestow a proper education upon his children. Perhaps they thought it
punishment enough to leave the parent, who neglects the instruction of his family, to labor under
those griefs and inconveniences, which his family, so uninstructed, will be sure to bring upon him.
Our laws, though their defects in this particular cannot be denied, have in one instance made a wise
provision for breeding up the rising generation; since the poor and laborious part of the community,
when past the age of nurture, are taken out of the hands of their parents, by the statutes for
apprenticing poor children;21 and are placed out by the public in such a manner, as may render their
abilities, in their several stations, of the greatest advantage to the commonwealth. The rich indeed
are left at their own option, whether they will breed up their children to be ornaments or disgraces
to their family. Yet in one case, that of religion, they are under peculiar restrictions: for22 it is
provided, that if any person sends any child under his government beyond the seas, either to prevent
its good education in England, or in order to enter into or reside in any popish college, or to be
instructed, persuaded, or strengthened in the popish religion; in such case, besides the disabilities
incurred by the child so sent, the parent or person sending shall forfeit 100£ which23 shall go to the
sole use and benefit of him that shall discover the offense. And24 if any parent, or other, shall send
or convey any person beyond sea, to enter into, or be resident in, or trained up in, any priory, abbey,
nunnery, popish university, college, or school, or house of jesuits, or priests, or in any private popish
family, in order to be instructed, persuaded, or confirmed in the popish religion; or shall contribute
anything towards their maintenance when abroad by any pretext whatever, the person both sending
and sent shall be disabled to sue in law or equity, or to be executor or administrator to any person,
or to enjoy any legacy or deed of gift, or to bear any office in the realm, and shall forfeit all his
goods and chattels, and likewise all his real estate for life.

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William Blackstone: Vol. 1, Commentaries on the Laws of England (1765) Page 273

2. THE power of parents over their children is derived from the former consideration, their duty; this
authority being given them, partly to enable the parent more effectually to perform his duty, and
partly as a recompense for his care and trouble in the faithful discharge of it. And upon this score
the municipal laws of some nations have given a much larger authority to the parents, than others.
The ancient Roman laws gave the father a power of life and death over his children; upon this
principle, that he who gave had also the power of taking away.25 But the rigor of these laws was
softened by subsequent constitutions; so that26 we find a father banished by the emperor Hadrian for
killing his son, though he had committed a very heinous crime, upon this maxim, that “patria
potestas in pietate debet, non in atrocitate, consistere.” [“Paternal power should consist in kindness,
not in cruelty.”] But still they maintained to the last a very large and absolute authority: for a son
could not acquire any property of his own during the life of his father; but all his acquisitions
belonged to the father, or at least the profits of them for his life.27

THE power of a parent by our English laws is much more moderate; but still sufficient to keep the
child in order and obedience. He may lawfully correct his child, being under age, in a reasonable
manner;28 for this is for the benefit of his education. The consent or concurrence of the parent to the
marriage of his child under age, was also directed by our ancient law to be obtained: but now it is
absolutely necessary; for without it the contract is void.29 And this also is another means, which the
law has put into the parent's hands, in order the better to discharge his duty; first, of protecting his
children from the snares of artful and designing persons; and, next, of settling them properly in life,
by preventing the ill consequences of too early and precipitate marriages. A father has no other
power over his sons estate, than as his trustee or guardian; for, though he may receive the profits
during the child's minority, yet he must account for them when he comes of age. He may indeed
have the benefit of his children's labor while they live with him, and are maintained by him: but this
is no more than he is entitled to from his apprentices or servants. The legal power of a father (for
a mother, as such, is entitled to no power, but only to reverence and respect) the power of a father,
I say, over the persons of his children ceases at the age of twenty one: for they are then enfranchised
by arriving at years of discretion, or that point which the law has established (as some must
necessarily be established) when the empire of the father, or other guardian, gives place to the
empire of reason. Yet, till that age arrives, this empire of the father continues even after his death;
for he may by his will appoint a guardian to his children. He may also delegate part of his parental
authority. during his life, to the tutor or schoolmaster of his child; who is then in loco parentis [in
place of a parent], and has such a portion of the power of the parent committed to his charge, viz.
that of restraint and correction, as may be necessary to answer the purposes for which he is
employed.

3. THE duties of children to their parents arise from a principle of natural justice and retribution. For
to those, who gave us existence, we naturally owe subjection and obedience during our minority,
and honor and reverence ever after; they, who protected the weakness of our infancy, are entitled
to our protection in the infirmity of their age; they who by sustenance and education have enabled
their offspring to prosper, ought in return to be supported by that offspring, in case they stand in
need of assistance. Upon this principle proceed all the duties of children to their parents, which are
enjoined by positive laws. And the Athenian laws30 carried this principle into practice with a
scrupulous kind of nicety: obliging all children to provide for their father, when fallen into poverty;
with an exception to spurious children, to those whose chastity had been prostituted by consent of

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the father, and to those whom he had not put in any way of gaining a livelihood. The legislature,
says baron Montesquieu,31 considered, that in the first case the father, being uncertain, had rendered
the natural obligation precarious; that, in the second case, he had sullied the life he had given, and
done his children the greatest of injuries, in depriving them of their reputation; and that, in the third
case, he had rendered their life (so far as in him lay) an insupportable burden, by furnishing them
with no means of subsistence.

OUR laws agree with those of Athens with regard to the first only of these particulars, the case of
spurious issue. In the other cases the law does not hold the tie of nature to be dissolved by any
misbehavior of the parent; and therefore a child is equally justifiable in defending the person, or
maintaining the cause or suit, of a bad parent, as a good one; and is equally compellable,32 if of
sufficient ability, to maintain and provide for a wicked and unnatural progenitor, as for one who has
shown the greatest tenderness and parental piety.

II. WE are next to consider the case of illegitimate children, or bastards; with regard to whom let us
inquire, 1. Who are bastards. 2. The legal duties of the parents towards a bastard child. 3. The rights
and incapacities attending such bastard children.

1. WHO are bastards. A bastard, by our English laws, is one that is not only begotten, but born, out
of lawful matrimony. The civil and canon laws do not allow a child to remain a bastard, if the
parents afterwards intermarry:33 and herein they differ most materially from our law; which, though
not so strict as to require that the child shall be begotten, yet makes it an indispensable condition that
it shall be born, after lawful wedlock. And the reason of our English law is surely much superior to
that of the Roman, if we consider the principal end and design of establishing the contract of
marriage, taken in a civil light; abstractedly from any religious view, which has nothing to do with
the legitimacy or illegitimacy of the children. The main end and design of marriage therefore being
to ascertain and fix upon some certain person, to whom the care, the protection, the maintenance,
and the education of the children should belong; this end is undoubtedly better answered by
legitimating all issue born after wedlock, than by legitimating all issue of the same parties, even born
before wedlock, so as wedlock afterwards ensues: 1. Because of the very great uncertainty there will
generally be, in the proof that the issue was really begotten by the same man; whereas, by confining
the proof to the birth, and not to the begetting, our law has rendered it perfectly certain, what child
is legitimate, and who is to take care of the child. 2. Because by the Roman laws a child may be
continued a bastard, or made legitimate, at the option of the father and mother, by a marriage ex post
facto; thereby opening a door to many frauds and partialities, which by our law are prevented. 3.
Because by those laws a man may remain a bastard till forty years of age, and then become
legitimate, by the subsequent marriage of his parents; whereby the main end of marriage, the
protection of infants, is totally frustrated. 4. Because this rule of the Roman laws admits of no
limitations as to the time, or number, of bastards so to be legitimated; but a dozen of them may,
twenty years after their birth, by the subsequent marriage of their parents, be admitted to all the
privileges of legitimate children. This is plainly a great discouragement to the matrimonial state; to
which one main inducement is usually not only the desire of having children, but also the desire of
procreating lawful heirs. Whereas our constitutions guard against this indecency, and at the same
time give sufficient allowance to the frailties of human nature. For, if a child be begotten while the
parents are single, and they will endeavor to make an early reparation for the offense, by marrying

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within a few months after, our law is so indulgent as not to bastardize the child, if it be born, though
not begotten, in lawful wedlock: for this is an incident that can happen but once; since all future
children will be begotten, as well as born, within the rules of honor and civil society. Upon reasons
like these we may suppose the peers to have acted at the parliament of Merton, when they refused
to enact that children born before marriage should be esteemed legitimate.34

FROM what has been said it appears, that all children born before matrimony are bastards by our
laws; and so it is of all children born so long after the death of the husband, that, by the usual course
of gestation, they could not be begotten by him. But, this being a matter of some uncertainty, the law
is not exact as to a few days.35 And this gives occasion to a proceeding at common law, where a
widow is suspected to feign herself with child, in order to produce a supposititious heir to the estate:
an attempt which the rigor of the Gothic constitutions esteemed equivalent to the most atrocious
theft, and therefore punished with death.36 In this case with us the heir presumptive may have a writ
de ventre inspiciendo [for inspecting pregnancy], to examine whether she be with child, or not;37
which is entirely conformable to the practice of the civil law:38 and, if the widow be upon due
examination found not pregnant, the presumptive heir shall be admitted to the inheritance; though
liable to lose it again, on the birth of a child within forty weeks from the death of the husband.39 But
if a man dies, and his widow soon after marries again, and a child is born within such a time, as that
by the course of nature it might have been the child of either husband; in this case he is said to be
more than ordinarily legitimate; for he may, when he arrives to years of discretion, choose which
of the fathers he pleases.40 To prevent this, among other inconveniences, the civil law ordained that
no widow should marry infra annum luctus;41 a rule which obtained so early as the reign of
Augustus,42 if not of Romulus: and the same constitution was probably handed down to our early
ancestors from the Romans, during their stay in this island; for we find it established under the
Saxon and Danish governments.43

As bastards may be born before the coverture, or marriage state, is begun, or after it is determined,
so also children born during wedlock may in some circumstances be bastards. As if the husband be
out of the kingdom of England (or, as the law somewhat loosely phrases it, extra quatuor maria
[beyond the four seas]) for above nine months, so that no access to his wife can be presumed, her
issue during that period shall be bastard.44 But, generally, during the coverture access of the husband
shall be presumed, unless the contrary can be shown;45 which is such a negative as can only be
proved by showing him to be elsewhere: for the general rule is, praesumitur pro legitimatione
[legitimacy is presumed].46 In a divorce a mensa et thoro, if the wife breeds children, they are
bastards; for the law will presume the husband and wife conformable to the sentence of separation,
unless access be proved: but, in a voluntary separation by agreement, the law will suppose access,
unless the negative be shown.47 So also if there is an apparent impossibility of procreation on the
part of the husband, as if he be only eight years old, or the like, there the issue of the wife shall be
bastard.48 Likewise, in case of divorce in the spiritual court a vinculo matrimonii, all the issue born
during the coverture are bastards;49 because such divorce is always upon some cause, that rendered
the marriage unlawful and null from the beginning.

2. LET us next see the duty of parents to their bastard children, by our law; which is principally that
of maintenance. For, though bastards are not looked upon as children to any civil purposes, yet the
ties of nature, of which maintenance is one, are not so easily dissolved: and they hold indeed as to

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William Blackstone: Vol. 1, Commentaries on the Laws of England (1765) Page 276

many other intentions; as, particularly, that a man shall not marry his bastard sister or daughter.50
The civil law therefore, when it denied maintenance to bastards begotten under certain atrocious
circumstances,51 was neither consonant to nature, nor reason, however profligate and wicked the
parents might justly be esteemed.

THE method in which the English law provides maintenance for them is as follows.52 When a
woman is delivered, or declares herself with child, of a bastard, and will by oath before a justice of
peace charge any person having got her with child, the justice shall cause such person to be
apprehended, and commit him till he gives security, either to maintain the child, or appear at the next
quarter sessions to dispute and try the fact. But if the woman dies, or is married before delivery, or
miscarries, or proves not to have been with child, the person shall be discharged: otherwise the
sessions, or two justices out of sessions, upon original application to them, may take order for the
keeping of the bastard, by charging the mother, or the reputed father with the payment of money or
other sustentation for that purpose. And if such putative father, or lewd mother, run away from the
parish, the oversees by direction of two justices may seize their rents, goods, and chattels, in order
to bring up the said bastard child. Yet such is the humanity of our laws, that no woman can be
compulsively questioned concerning the father of her child, till one month after her delivery: which
indulgence is however very frequently a hardship upon parishes, by suffering the parents to escape.

3. I PROCEED next to the rights and incapacities which appertain to a bastard. The rights are very
few, being only such as he can acquire; for he can inherit nothing, being looked upon as the son of
nobody, and sometimes called filius nullius [son of no one], sometimes filius populi [son of the
people].53 Yet he may gain a surname by reputation,54 though he has none by inheritance. All other
children have a settlement in their father's parish; but a bastard in the parish where born, for he has
no father.55 However, in case of fraud, as if a woman be sent either by order of justices, or comes
to beg as a vagrant, to a parish which she does not belong to, and drops her bastard there; the bastard
shall, in the first case, be settled in the parish from whence she was illegally removed;56 or, in the
latter case, in the mother's own parish, if the mother be apprehended for her vagrancy.57 The
incapacity of a bastard consists principally in this, that he cannot be heir to any one, neither can he
have heirs, but of his own body; for, being nullius filius, he is therefore of kin to nobody, and has
no ancestor from whom any inheritable blood can be derived. A bastard was also, in strictness,
incapable of holy orders; and, though that were dispensed with, yet he was utterly disqualified from
holding any dignity in the church:58 but this doctrine seems now obsolete; and in all other respects,
there is no distinction between a bastard and another man. And really any other distinction but that
of not inheriting, which civil policy renders necessary, would, with regard to the innocent offspring
of his parents crimes, be odious, unjust, and cruel to the last degree: and yet the civil law, so boasted
of for it's equitable decisions, made bastards in some cases incapable even of a gift from their
parents.59 A bastard may, lastly, be made legitimate, and capable of inheriting, by the transcendent
power of an act of parliament, and not otherwise:60 as was done in the case of John of Gant's bastard
children, by a statute of Richard the second.

NOTES

1. Ff. 2. 4. 5.
2. L. of N. l. 4. c. 11.

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3. Sp. l. l. 23. c. 2.
4. Ff. 25. 3. 5.
5. Nov. 115.
6. l. 4. c. 11. §. 7.
7. De j. b. & p. l. 2. c. 7. n. 3.
8. Raym. 500.
9. Stat. 43 Eliz. c. 2.
10. Stat. 5 Geo. I. c. 8.
11. Styles. 283. 2 Bulstr. 346.
12. Stat. 11 & 12 W. III. c. 4.
13. Lord Raym. 699.
14. Com. Journ. 18 Feb. 12 Mar. 1701.
15. 1 Ann. St. 1. c 30.
16. 1 Lev. 130.
17. 2 Inst. 564.
18. 1 Hawk. P. C. 131.
19. Cro. Jac. 296. 1 Hawk. P. C. 83.
20. L. of N. b. 6. c. 2. §. 12.
21. See page 414.
22. Stat. 1 Jac. I. c. 4. & 3 Jac. I. c. 5.
23. Stat. 11 & 12 W. III. c. 4.
24. Stat. 3 Car. I. c. 2.
25. Ff. 28. 2. 11. Cod. 8. 47. 10.
26. Ff. 48. 9. 5.
27. Inst. 2. 9. 1.
28. 1 Hawk. P. C. 130.
29. Stat. 26 Geo. II. c. 33.
30. Potter's Antiq. b. 4. c. 15.
31. Sp. L. l. 26. c. 5.
32. Stat. 43 Eliz. c. 2.
33. Inst. 1. 10. 13. Decretal. l. 4. t. 17. c. 1.
34. Rogaverunt omnes episcopi magnates, ut consentirent quod nati ante matrimonium essent legitimi, sicut ills qui nati
sunt post matrimonium, quia ecclesia tales habet pro legitimis. Et omnes comites et barones una voce responderunt quod
nolunt leges Angliae mutare, quae hucusque usitatae sunt et approbatae. [All the bishops requested the peers to consent that
children born before marriage should be legitimate, as those which are born after marriage, because the church esteems them

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William Blackstone: Vol. 1, Commentaries on the Laws of England (1765) Page 278

so. But all the earls and barons answered unanimously, that they would not change the laws of England which were hitherto
used and approved.] Stat. 20 Hen. III. c. 9. See the introduction to the great charter, edit. Oxon. 1759. sub anno 1253.
35. Cro. Jac. 541.
36. Stiernhook de jure Gothor. l. 3. c. 5.
37. Co. Litt. 8.
38. Ff. 25. tit. 4. per tot.
39. Britton. C. 66. page 166.
40. Co. Litt. 8.
41. Cod. 5. 9. 2.
42. But the year was then only ten months. Ovid. Fast. I. 27.
43. Sit omnis vidua sine marito duodecim menses. [“Let every widow remain unmarried twelve months.”] LL. Ethelr. A.
D. 1008. LL. Canut. c. 71.
44. Co. Litt. 244.
45. Salk. 123. 3 P. W. 276. Stra. 925.
46. 5 Rep. 98.
47. Salk. 123.
48. Co. Litt. 244.
49. Ibid. 235.
50. Lord Raym. 68. Comb. 356.
51. Nov. 89. c. 15.
52. Stat. 18 Eliz. c. 3. 7 Jac. I. c. 4. 3. Car. I. c. 4. 13 & 14 Car. II. c. 12. 6. Geo. II. c. 31.
53. Fort. de. LL. c. 40.
54. Co. Litt. 3.
55. Salk. 427.
56. Salk. 121.
57. Stat. 17 Geo. II. c. 5.
58. Fortesc. c. 40. 5. Rep. 58.
59. Cod. 6. 57. 5.
60. 4 Inst. 36.

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William Blackstone: Vol. 1, Commentaries on the Laws of England (1765) Page 279

CHAPTER 17
Of Guardian And Ward

THE only general private relation, now remaining to be discussed, is that of guardian and ward;
which bears a very near resemblance to the last, and is plainly derived out of it: the guardian being
only a temporary parent; that is, for so long time as the ward is an infant, or under age. In examining
this species of relationship, I shall first consider the different kinds of guardians, how they are
appointed, and their power and duty: next, the different ages of persons, as defined by the law: and,
lastly, the privileges and disabilities of an infant, or one under age and subject to guardianship.

1. THE guardian with us performs the office both of the tutor [teacher] and curator [guardian] of
the Roman laws; the former of which had the charge of the maintenance and education of the minor,
the latter the care of his fortune; or, according to the language of the court of chancery, the tutor was
the committee of the person, the curator the committee of the estate. But this office was frequently
united in the civil law;1 as it is always in our law with regard to minors, though as to lunatics and
idiots it is commonly kept distinct.

OF the several species of guardians, the first are guardians by nature: viz. the father and (in some
cases) the mother of the child. For, if an estate be left to an infant, the father is by common law the
guardian, and must account to his child for the profits.2 And, with regard to daughters, it seems by
construction of the statute 4 & 5 Ph. & Mar. c. 8. that the father might by deed or will assign a
guardian to any woman-child under the age of sixteen, and if none be so assigned, the mother shall
in this case be guardian.3 There are also guardians for nurture,4 which are, of course, the father or
mother, till the infant attains the age of fourteen years:5 and, in default of father or mother, the
ordinary usually assigns some discreet person to take care of the infant's personal estate, and to
provide for his maintenance and education.6 Next are guardians in socage, (an appellation which will
be fully explained in the second book of these commentaries) who are also called guardians by the
common law. These take place only when the minor is entitled to some estate in lands, and then by
the common law the guardianship devolves upon his next of kin, to whom the inheritance cannot
possibly descent; as, where the estate descended from his father, in this case his uncle by the
mother's side cannot possibly inherit this estate, and therefore shall be the guardian.7 For the law
judges it improper to trust the person of an infant in his hands, who may be possibility become heir
to him; that there may be no temptation, nor even suspicion of temptation, for him to abuse his trust.8
The Roman laws proceed on a quite contrary principle, committing the care of the minor to him who
is the next to succeed to the inheritance, presuming that the next heir would take the best care of an
estate, to which he has a prospect of succeeding: and this they boast to be “summa providentia” [the
greatest prudence].9 But in the mean time they forget, how much it is the guardian's interest to
remove the incumbrance of his pupil's life from that estate, for which he is supposed to have so great
a regard.10 And this affords Fortescue,11 and Sir Edward Coke,12 an ample opportunity for triumph;
they affirming, that to commit the custody of an infant to him that is next in succession, is “quasi
agnum committere lupo, ad devorandum.”13 [“Like committing the lamb to the wolf to be
devoured.”] These guardians in socage, like those for nurture, continue only till the minor is
fourteen years of age; for then, in both cases, he is presumed to have discretion, so far as to choose
his own guardian. This he may do, unless one be appointed by father, by virtue of the statute 12 Car.
II. c. 24. which, considering the imbecility of judgment in children of the age of fourteen, and the
abolition of guardianship in chivalry (which lasted till the age of twenty one, and of which we shall

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William Blackstone: Vol. 1, Commentaries on the Laws of England (1765) Page 280

speak hereafter) enacts, that any father, under age or of full age, may be deed or will dispose of he
custody of his child, either born or unborn, to any person, except a popish recusant, either in
possession or reversion, till such child attains the age of one and twenty years. These are called
guardians by statute, or testamentary guardians. There are also special guardians by custom of
London, and other places;14 but they are particular exceptions, and do not fall under the general law.

THE power and reciprocal duty of a guardian and ward are the same, pro tempore, as that of a father
and child; and therefore I shall not repeat them: but shall only add, that the guardian, when the ward
comes of age, is bound to give him an account of all that he has transacted on his behalf, and must
answer for all losses by his willful default or negligence. In order therefore to prevent disagreeable
contests with young gentlemen, it has become a practice for many guardians, of large estates
especially, to indemnify themselves by applying to the court of chancery, acting under its direction,
and accounting annually before the officers of that court. For the lord chancellor is, by right derived
from the crown, the general and supreme guardian of all infants, as well as idiots and lunatics; that
is, of all such persons as have not discretion enough to manage their own concerns. In case therefore
any guardian abuses his trust, the court will check and punish him; nay sometimes proceed to the
removal of him, and appoint another in his stead.15

2. LET us next consider the ward, or person within age, for whose assistance and support these
guardians are constituted by law; or who it is, that is said to be within age. The ages of male and
female are different for different purposes. A male at twelve years old may take the oath of
allegiance; at fourteen is at years old may take the oath of allegiance; at fourteen is at years of
discretion, and therefore may consent or disagree to marriage, may choose his guardian, and, if his
discretion be actually proved, may make his testament of his personal estate; at seventeen may be
an executor; and at twenty one is at his own disposal, and may aliene [transfer] his lands, goods, and
chattels. A female also at seven years of age may be betrothed or given in marriage; at nine is
entitled to dower; at twelve is at yeas of maturity, and therefore may consent or disagree to marriage,
and, if proved to have sufficient discretion, may bequeath her personal estate; at fourteen is at years
of legal discretion, and may choose a guardian; at seventeen may be executrix; and at twenty one
may dispose of herself and her lands. So that full age in male or female, is twenty one years, which
age is completed on the day preceding the anniversary of a person's birth;16 who till that time is an
infant, and so styled in law. Among the ancient Greeks and Romans women were never of age, but
subject to perpetual guardianship,17 unless when married, “nisi convenissent in manum viri” [“unless
under the care of a husband”]: and, when that perpetual tutelage wore away in process of time, we
find that, in females as well as males, full age was not till twenty five years.18 Thus, by the
constitutions of different kingdoms, this period, which is merely arbitrary, and juris positivi [positive
law], is fixed at different times. Scotland agrees with England in this point; (both probably copying
from the old Saxon constitutions on the continent, which extended the age of minority “ad annum
vigesimum primum; et eo usque juvenes sub tutelam reponunt”19 [to the twenty-first year; and they
place their youths under guardianship until then]) but in Naples they are of full age at eighteen; in
France, with regard to marriage, not till thirty; and in Holland at twenty five.

3. INFANTS have various privileges, and various disabilities: but their very disabilities are
privileges; in order to secure them from hurting themselves by their own improvident acts. An infant
cannot be sued but under the protection, and joining the name, of his guardian; for he is to defend
him against all attacks as well by law as otherwise:20 but he may sue either by his guardian, or

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prochein amy [next friend], his next friend who is not his guardian. This prochein amy may be any
person who will undertake the infant's cause; and it frequently happens, that an infant, by his
prochein amy, institutes a suit in equity against a fraudulent guardian. In criminal cases, an infant
of the age of fourteen years may be capitally punished for any capital offense:21 but under the age
of seven he cannot. The period between seven and fourteen is subject to much uncertainty: for the
infant shall, generally speaking, be judged prima facie [on its face] innocent; yet if he was doli
capax [capable of deceit], and could discern between good and evil at the time of the offense
committed, he may be convicted and undergo judgment and execution of death though he has not
attained to years of puberty or discretion.22 And Sir Matthew Hale gives us two instances, one of a
girl of thirteen, who was burned for killing her mistress; another of a boy still younger, that had
himself, who was hanged; for it appeared by his hiding that he knew he had done wrong, and could
discern between good and evil; and in such cases the maxim of law is, that malitia supplet aetatem
[malice equivalent to age]. So also, in much more modern times, a boy of ten years old, who was
guilty of a heinous murder, was held a proper subject for capital punishment, by the opinion of all
the judges.23

WITH regard to estates and civil property, an infant has many privileges, which will be better
understood when we come, to treat more particularly of those matters: but his may be said in
general, that an infant shall lose nothing by non-claim, or neglect of demanding his right; nor shall
any other laches or negligence be imputed to an infant, except in some very particular cases.

IT is generally true, that an infant can neither aliene his lands, nor do any legal act, nor make a deed,
nor indeed any manner of contract, that will bind him. But still to all these rules there are some
exceptions; part of which were just now mentioned in reckoning up the different capacities which
they assume at different ages: and there are others, a few of which it may not be improper to recite,
as a general specimen of the whole. And, first, it is true, that infants cannot aliene their estates: but24
infant trustees, or mortgagees, are enabled to convey, under the direction of the court of chancery
or exchequer, the estates they hold in trust or mortgage, to such person as the court shall appoint.
Also it is generally true, that an infant can do no legal act: yet an infant who has an advowson, may
present to the benefice when it becomes void.25 For the law in this case dispenses with one rule, in
order to maintain others of far greater consequence: it permits an infant to present a clerk (who, if
unfit, may be rejected by the bishop) rather than either suffer the church to be unserved till he comes
of age, or permit the infant to be debarred of his right by lapse to the bishop. An infant may also
purchase lands, but his purchase is incomplete: for, when he comes to age, he may either agree or
disagree to it, as he thinks prudent or proper, without alleging any reason; and so may his heirs after
him, if he dies without having completed his agreement.26 It is, farther, generally true, that an infant,
under twenty one, can make no deed that is of any force or effect: yet27 he may bind himself
apprentice by deed indented, or indentures, for seven years; and28 he may be deed or will appoint
a guardian to his children, if he has any. Lastly, it is generally true, that an infant can make no other
contract that will bind him: yet he may bind himself to pay for his necessary meat, drink, apparel,
physic, and such other necessaries; and likewise for his good teaching and instruction, whereby he
may profit himself afterwards.29 And thus much, at present, for the privileges and disabilities of
infants.

NOTES
1. Ff. 26. 4. 1.

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William Blackstone: Vol. 1, Commentaries on the Laws of England (1765) Page 282

2. Co. Litt. 88.

3. 3 Rep. 39.
4. Co. Litt. 88.
5. Moor. 738. 3 Rep. 38.
6. 2 Jones 90. 2. Lev. 163.
7. Litt. §. 123.
8. Nunquam custodia alicujus de jure alicui remanet, de quo habeatur suspicio, quod possit vel velit aliquod jus in ipsa
haereditate clamare. [The guardianship of no person shall of right continue in him, of whom a suspicion may be entertained
that he can or will claim any right in the inheritance.] Glanv. l. 7. c. 11.
9. Ff. 26. 4. 1.
10. The Roman satirist was fully aware of this danger, when he puts this private prayer into the mouth of a selfish guardian:
) pupillum O utinam, quem proximus haeres Impello, expungam. [O were my pupil fairly knocked of the head! I should
possess the estate if he were dead.] Perf. 1. 12.
11. c. 44.
12. 1 Inst. 88.
13. This policy of our English law is warranted by the wise institutions of Solon, who provided that no one should be
another's guardian, who was to enjoy the estate after his death. (Potter's Antiqu. l. 1. c. 26.) And Charondas, another of the
Grecian legislators, directed that the inheritance should go to the father's relations, but the education of the child to the
mother's; that the guardianship and right of succession might always be kept distinct. (Petit. Leg. Att. l. 6. t. 7.)
14. Co. Litt. 88.
15. 1 Sid. 424. 1 P. Will. 703.
16. Salk. 44. 625.
17. Pott. Antiq. l. 4. c. 11. Cic. pro Murez. 12.
18. Inst. 1. 23. 1.
19. Stiernhook de jure Suronum. l. 2. c. 2. This is also the period when the king, as well as the subject, arrives at full age
in modern Sweden. Mod. Un. Hist. xxxiii. 220.
20. Co. Litt. 135.
21. 1 Hal. P. C. 25.
22. 1 Hal. P. C. 26.
23. Foster. 72.
24. Stat. 7 Ann. c. 19.
25. Co. Litt. 172.
26. Co. Litt. 2.
27. Stat. 5 Eliz. c. 4.
28. Stat. 12 Car. II. c. 24.
29. Co. Litt. 172.

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William Blackstone: Vol. 1, Commentaries on the Laws of England (1765) Page 283

CHAPTER 18
Of Corporations

WE have hitherto considered persons in their natural capacities, and have treated of their rights and
duties. But, as all personal rights die with the person; and, as the necessary forms of investing a
series of individuals, one after another, with the same identical rights, would be very inconvenient,
if not impracticable; it has been found necessary, when it is for the advantage of the public to have
any particular rights kept on foot and continued, to constitute artificial persons, who may maintain
a perpetual succession, and enjoy a kind of legal immortality.

THESE artificial persons are called bodies politic, bodies corporate, (corpora corporata) or
corporations: of which there is a great variety subsisting, for the advancement of religion, of
learning, and of commerce; in order to preserve entire and for ever those rights and immunities,
which, if they were granted only to those individuals of which the body corporate is composed,
would upon their death be utterly lost and extinct. To show the advantages of these incorporations,
let us consider the case of a college in either of our universities, founded ad studendum et orandum
[for study and prayer], for the encouragement and support of religion and learning. If this was a mere
voluntary assembly, the individuals which compose it might indeed read, pray, study, and perform
scholastic exercises together, so long as they could agree to do so: but they could neither frame, nor
receive, any laws or rules of their conduct; none at least, which would have any binding force, for
want of a coercive power to create a sufficient obligation. Neither could they be capable so retaining
any privileges or immunities: for, if such privileges be attacked, which of all this unconnected
assembly has the right, or ability, to defend them? And, when they are dispersed by death or
otherwise, how shall they transfer these advantages to another set of students, equally unconnected
as themselves? So also, with regard to holding estates of other property, if land be granted for the
purposes of religion or learning to twenty individuals not incorporated, there is no legal way of
continuing the property to any other persons for the same purposes, but by endless conveyances
from one to the other, as often as the hands are changed. But, when they are consolidated and united
into a corporation, they and their successors are then considered as one person in law: as one person,
they have one will, which is collected from the sense of the majority of the individuals: this one will
may establish rules and orders for the regulation of the whole, which are a sort of municipal laws
of this little republic; or rules and statutes may be prescribed to it at its creation, which are then in
the place of natural laws: the privileges and immunities, the estates and possessions, of the
corporation, when once vested in them, will be for ever vested, without any new conveyance to new
successions; for all the individual members that have existed from the foundation to he present time,
or that shall ever hereafter exist, are but one person in law, a person that never dies: in like manner
as the river Thames is still the same river, though the parts which compose it are changing every
instant.

THE honor of originally inventing these political constitutions entirely belongs to the Romans. They
were introduced, as Plutarch says, by Numa; who finding, upon his accession, the city torn to pieces
by the two rival factions of Sabines, and Romans, thought it a prudent and politic measure, to
subdivide these two into many smaller ones, by instituting separate societies of every manual trade
and profession. They were afterwards much considered by the civil law,1 in which they were called
universitates [universities], as forming one whole out of many individuals; or collegia [colleges],

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from being gathered together: they were adopted also by the canon law, for the maintenance of
ecclesiastical discipline; and from them our spiritual corporations are derived. But our laws have
considerably refined and improved upon the invention, according to the usual genius of the English
nation: particularly with regard to sole corporations, consisting of one person only, of which the
Roman lawyers had no notion; their maxim being that “tres faciunt collegium.”2 [“Three make a
college.”] Though they held, that if a corporation, originally consisting of three persons, be reduced
to one, “si universitas ad unum redit” [“if the university be reduced to one”], it may still subsist as
a corporation, “et stet nomen universitatis”3 [“and retain the name university”].

BEFORE we proceed to treat of the several incidents of corporations, as regarded by the laws of
England, let us first take a view of the several sorts of them; and then we shall be better enabled to
apprehend their respective qualities.

THE first division of corporations is into aggregate and sole. Corporations aggregate consist of many
persons united together into one society, and are kept up by a perpetual succession of members, so
as to continue for ever: of which kind are the mayor and commonalty of a city, the head and fellows
of a college, the dean and chapter of a cathedral church. Corporations sole consist of one person only
and his successors, in some particular station, who are incorporated by law, in order to give them
some legal capacities and advantages, particularly that of perpetuity, which in their natural persons
they could not have had. In this sense the king is a sole corporation:4 so is a bishop: so are some
deans, and prebendaries, distinct from their several chapters: and so is every parson and vicar. And
the necessity, or at least use, of this institution will be very apparent, if we consider the case of
parson of a church. At the original endowment of parish churches, the freehold of the church, the
churchyard, the parsonage house, the glebe, and the tithes of the parish, were vested in the then
parson by the bounty of the donor, as a temporal recompense to him for his spiritual care of the
inhabitants, and with intent that the same emoluments should ever afterwards continue as a
recompense for the same care. But how was this to be effected? The freehold was vested in the
parson; and, if we supposed it vested in his natural capacity, on his death it might descend to his
heir, and would be liable to his debts and encumbrances: or, at best, the heir might be compellable,
at some trouble and expense, to convey these rights to the succeeding incumbent. The law therefore
has wisely ordained, that the parson quatenus [as] parson, shall never die, any more than the king;
by making him and his successors a corporation. By which means all the original rights of the
parsonage are preserved entire to the successor: for the present incumbent, and his predecessor who
lived seven centuries ago, are in law one and the same person; and what was given to the one was
given to the other also.

ANOTHER division of corporations, either sole or aggregate, is into ecclesiastical and lay.
Ecclesiastical corporations are where the members that compose it are entirely spiritual persons;
such as bishops; certain deans, and prebendaries; all archdeacons, parsons, and vicars; which are
sole corporations: deans and chapters at present, and formerly prior and convent, abbot and monks,
and the like, bodies aggregate. These are erected for the furtherance of religion, and the perpetuating
the rights of the church. Lay corporations are of two sorts, civil and eleemosynary. The civil are such
as are erected for a variety of temporal purposes. The king, for instance, is made a corporation to
prevent in general the possibility of an interregnum [interruption] or vacancy of the throne, and to
preserve the possessions of the crown entire; for, immediately upon the demise of one king, his

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successor is, as we have formerly seen, in full possession of the regal rights and dignity. Other lay
corporations are erected for the good government of a town or particular district, as a mayor and
commonalty, bailiff and burgesses, or the like: some for the advancement and regulation of
manufactures and commerce; as the trading companies of London, and other towns: and some for
the better carrying on of diverse special purposes; as churchwardens, for conservation of the goods
of the parish; the college of physicians and company of surgeons in London, for the improvement
of the medical science; the royal society, for the advancement of natural knowledge; and the society
of antiquarians, for promoting the study of antiquities. And among these I am inclined to think the
general corporate bodies of the universities of Oxford and Cambridge must be ranked: for it is clear
they are not spiritual or ecclesiastical corporations, being composed of more laymen than clergy:
neither are they eleemosynary foundations, though stipends are annexed to particular magistrates
and professors, any more than other corporations where the acting officers have standing salaries;
for these are rewards pro opera et labore [for work and labor], not charitable donations only, since
every stipend is preceded by service and duty: they seem therefore to be merely civil corporations.
The eleemosynary sort are such as are constituted for the perpetual distribution of the free alms, or
bounty, of the founder of them to such persons as he has directed. Of this kind are all hospitals for
the maintenance of the poor, sick, and impotent; and all colleges both in our universities and out5
of them: which colleges are founded for two purposes; 1. For the promotion of piety and learning
by proper regulations and ordinances. 2. For imparting assistance to the members of those bodies,
in order to enable them to prosecute their devotion and studies with greater ease and assiduity. And
all these eleemosynary corporations are, strictly speaking, lay and not ecclesiastical, even though
composed of ecclesiastical persons,6 and although they in some things partake of the nature,
privileges, and restrictions of ecclesiastical bodies.

HAVING thus marshaled the several species of corporations, let us next proceed to consider, 1. How
corporations, in general, may be created. 2. What are their powers, capacities, and incapacities. 3
How corporations are visited. And 4. How they may be dissolved.

I. CORPORATIONS, by the civil law, seem to have been created by the mere act, and voluntary
association of their members; provided such convention was not contrary to law, for then it was
illicitum collegium [unlawful college].7 It does not appear that the prince's consent was necessary
to be actually given to the foundation of them; but merely that the original founders of these
voluntary and friendly societies (for they were little more than such) should not establish any
meetings in opposition to the laws of the state.

BUT, with us in England, the king's consent is absolutely necessary to the erection of any
corporation, either impliedly or expressly given. The king's implied consent is to be found in
corporations which exist by force of the common law, to which our former kings are supposed to
have given their concurrence; common law being nothing else but custom, arising from the universal
agreement of the whole community. Of this sort are the king himself, all bishops, parsons, vicars,
churchwardens, and some others; who by common law have ever been held (as far as our books can
show us) to have been corporations, virtute officii [by virtue of office]: and this incorporation is so
inseparably annexed to their offices, that we cannot frame a complete legal idea of any of these
persons, but we must also have an idea of a corporation, capable to transmit his rights to his
successors, at the same time. Another method of implication, whereby the king's consent is

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presumed, is as to all corporations by prescription, such as the city of London, and many others,8
which have existed as corporations, time whereof the memory of man runs not to the contrary; and
therefore are looked upon in law to be well created. For though the members thereof can show no
legal charter of incorporation, yet in cases of such high antiquity the law presumes there once was
one; and that by the variety of accidents, which a length of time may produce, the charter is lost or
destroyed. The methods, by which the king's consent is expressly given, are either by act of
parliament of charter. By act of parliament, of which the royal assent is a necessary ingredient,
corporations may undoubtedly be created:9 but it is observable, that most of those statutes, which
are usually cited as having created corporations, do either confirm such as have been before created
by the king; as in the case of the college of physicians, erected by charter 10 Hen. VIII.,10 which
charter was afterwards confirmed in parliament;11 or, they permit the king to erect a corporation in
futuro [in the future] with such and such powers; as is the case of the bank of England,12 and the
society of the British fishery.13 So that the immediate creative act is usually performed by the king
alone, in virtue of his royal prerogative.14

ALL the other methods therefore whereby corporations exist, by common law, by prescription, and
by act of parliament, are for the most part reducible to this of the king's letters patent, or charter of
incorporation. The king's creation may be performed by the words “creamus, erigimus, fundamus,
incorporamus” [“we create, we erect, we found, we incorporate”], or the like. Nay it is held, that if
the king grants to a set of men to have gildam mercatoriam [a merchant guild], a mercantile meeting
or assembly,15 this is alone sufficient to incorporate and establish them for ever.16

THE parliament, we observed, by its absolute and transcendent authority, may perform this, or any
other act whatsoever: and actually did perform it to a great extent, by statute 39 Eliz. c. 5. which
incorporated all hospitals and houses of correction founded by charitable persons, without farther
trouble: and the same has been done in other cases of charitable foundations. But otherwise it is not
usual thus to entrench upon the prerogative of the crown, and the king may prevent it when he
pleases. And, in the particular instance before-mentioned, it was done, as Sir Edward Coke
observes,17 to avoid the charges of incorporation and licenses of mortmain in small benefactions;
which in his days were grown so great, that it discouraged many men to undertake these pious and
charitable works.

THE king may grant to a subject the power of erecting corporations,18 though the contrary was
formerly held:19 that is, he may permit the subject to name the persons and powers of the corporation
at his pleasure; but it is really the king that king that erects, and the subject is but the instrument: for
though none but the king can make a corporation, yet qui facit per alium, facit per se [he who acts
by an agent, acts himself].20 In this manner the chancellor of the university of Oxford has power by
charter to erect corporations; and has actually often exerted, it in the erection of several matriculated
companies, now subsisting, of tradesmen subservient to the students.

WHEN a corporation is erected, name must be given it; and by that name alone it must sue, and be
sued, and do all legal acts; though a very minute variation therein is not material.21 Such name is the
very being of its constitution; and, though it is the will of the king that erects the corporation, yet
the name is the knot of its combination, without which it could not perform its corporate functions.22
The name of incorporation, says Sir Edward Coke, is a proper name, or name of baptism; and

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therefore when a private founder gives his college or hospital a name, he does it only as godfather;
and by that same name the king baptizes the incorporation.23

II. AFTER a corporation is so formed and named, it acquires many powers, rights, capacities, and
incapacities, which we are next to consider. Some of these are necessarily and inseparably incident
to every corporation; which incidents, as soon as a corporation is duly erected, are tacitly annexed
of course.24 As, 1. To have perpetual succession. This is the very end of its incorporation: for there
cannot be a succession for ever without an incorporation;25 and therefore all aggregate corporations
have a power necessarily implied of electing members in the room of such as go off.26 2. To sue or
be sued, implead or be impleaded, grant or receive, by its corporate name, and do all other acts as
natural persons may. 3. To purchase lands, and hold them, for the benefit of themselves and their
successors: which two are consequential of the former. 4. To have a common seal. For a corporation,
being an invisible body, cannot manifest its intentions by any personal act or oral discourse: it
therefore acts and speaks only by its common seal. For, though the particular members may express
their private consents to any act, by words, or signing their names, yet this does not bind the
corporation: it is the fixing of the seal, and that only, which unites the several assents of the
individuals, who compose the community, and makes one joint assent of the whole.27 5. To make
by-laws or private statutes for the better government of the corporation; which are binding upon
themselves, unless contrary to the laws of the land, and then they are void. This is also included by
law in the very act of incorporation:28 for, as natural reason is given to the natural body for the
governing it, so by-laws or statutes are a sort of political reason to govern the body politic.

And this right of making by-laws for their own government, not contrary to the law of the land, was
allowed by the law of the twelve tables at Rome.29 But no trading company is, with us, allowed to
make by-laws, which may affect the king's prerogative, or the common profit of the people, unless
they be approved by the chancellor, treasurer, and chief justices, or the judges of assize in their
circuits.30 And, even though they be so approved, still if contrary to law they are void. These five
powers are inseparably incident to every corporation, at least to every corporation aggregate: for two
of them, though they may be practiced, yet are very unnecessary to a corporation sole; viz, to have
a corporate seal to testify his sole assent, and to make statutes for the regulation of his own conduct.

THERE are also certain privileges and disabilities that attend an aggregate corporation, and are not
applicable to such as are sole; the reason of them ceasing, and of course the law. It must always
appear by attorney; for it cannot appear in person, being, as Sir Edward Coke says,31 invisible, and
existing only in intendment and consideration of law. It can neither maintain, or be made defendant,
to, an action of battery or such like personal injuries; for a corporation can neither beat, nor be
beaten, in its body politic.32 A corporation cannot commit treason, or felony, or other crime, in its
corporate capacity:33 though its members may, in their distinct individual capacities. Neither is it
capable of suffering a traitor's, or felon's punishment, for it is not liable to corporal penalties, nor
to attainder, forfeiture, or corruption of blood.34 It cannot be executor or administrator, or perform
any personal duties; for it cannot take an oath for the due execution of the office. It cannot be seized
of lands to the use of another;35 for such kind of confidence is foreign to the ends of its institution:
neither can it be compelled to perform such trust, because it cannot be committed to prison;36 for its
existence being ideal, no man can apprehend or arrest it. And therefore also it cannot be outlawed;
for outlawry always supposes a precedent right of arresting, which has been defeated by the parties

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absconding, and that also a corporation cannot do: for which reasons the proceedings to compel a
corporation to appear to any suit by attorney are always by distress on their lands and goods.37
Neither can a corporation be excommunicated; for it has no soul, as is gravely observed by Sir
Edward Coke:38 and therefore also it is not liable to be summoned into the ecclesiastical courts upon
any account; for those courts act only pro salute animae [for the health of the soul], and their
sentences can only be enforced by spiritual censures: a consideration, which, carried to its full
extent, would alone demonstrate the impropriety of these courts interfering in any temporal rights
whatsoever.

THERE are also other incidents and powers, which belong to some sort of corporations, and not to
others. An aggregate corporation may take goods and chattels for the benefit of themselves and their
successors, but a sole corporation cannot:39 for such movable property is liable to be lost or
embezzled, and would raise a multitude of disputes between the successor and executor; which the
law is careful to avoid. In ecclesiastical and eleemosynary foundations, the king or the founder may
give them rules, laws, statutes. and ordinances, which they are bound to observe: but corporations
merely lay, constituted for civil purposes, are subject to no particular statutes; but to the common
law, and to their own by-laws, not contrary to the laws of the realm.40 Aggregate corporations also,
that have by their constitution a head, as a dean, warden, master or the like, cannot do any acts
during the vacancy of the headship, except only appointing another: neither are they then capable
of receiving a grant; for such corporation is incomplete without a head.41 But there may be a
corporation aggregate constituted without a head:42 as the collegiate church of Southwell in
Nottinghamshire; which consists only of prebendaries; and the governors of the Charter-house,
London, who have no president or superior, but are all of equal authority. In aggregate corporations
also, the act of the major part is esteemed the act of the whole:43 which perhaps may be one reason
why they required three at least to make a corporation. But, with us, any majority is sufficient to
determine the act of the whole body. And whereas, notwithstanding the law stood thus, some
founders of corporations had made statutes in derogation of the common law, making very
frequently the unanimous assent of the society to be necessary to any corporate act; which king
Henry VIII found to be a great obstruction to his projected scheme of obtaining a surrender of the
lands of ecclesiastical corporations) it was therefore enacted by statute 33 Hen. VIII. c. 27. that all
private statutes shall be utterly void, whereby any grant or election, made by the head, with the
concurrence of the major part of the body, is liable to be obstructed by any one or more, being the
minority: but this statute extends not to any negative or necessary voice, given by the founder to the
head of any such society.

WE before observed44 that it was incident to every corporation, to have a capacity to purchase lands
for themselves and successors: and this is regularly true at the common law.45 But they are excepted
out of the statute of wills;46 so that no devise of lands to a corporation by will is good: except for
charitable uses, by statute 43 Eliz. c. 4.47 And also, by a great variety of statute,48 their privilege even
of purchasing from any living grantor is greatly abridged; so that now a corporation, either
ecclesiastical or lay, must have a license from the king to purchase,49 before they can exert that
capacity which is vested in them by the common law: nor is even this in all cases sufficient. These
statutes are generally called the statutes of mortmain; all purchases made by corporate bodies being
said to be purchases in mortmain, in mortua manu [dead hand]: for the reason of which appellation
Sir Edward Coke50 offers many conjectures; but there is one which seems more probable than any

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that he has given us: viz. that these purchases being usually made by ecclesiastical bodies, the
members of which (being professed) were reckoned dead persons in law, land therefore, held by
them, might with great property be said to be held in mortua manu.

I SHALL defer the more particular exposition of these statutes of mortmain, till the next book of
these commentaries, when we shall consider the nature and tenures of estates; and also the
exposition of those disabling statutes of queen Elizabeth, which restrain spiritual and eleemosynary
corporations from aliening such lands as they are present in legal possession of: only mentioning
them in this place, for the sake of regularity, as statutable incapacities incident and relative to
corporations.

THE general duties of all bodies politic, considered in their corporate capacity, may, like those of
natural persons, be reduced to this single one; that of acting up to the end or design, whatever it be,
for which they were created by their founder.

III. I PROCEED therefore next to inquire, how these corporations may be visited. For corporations
being composed of individuals, subject to human frailties, are liable, as well as private persons, to
deviate from the end of their institution. And for that reason the law has provided proper persons to
visit, inquire into, and correct all irregularities that arise in such corporations, either sole or
aggregate, and whether ecclesiastical, civil, or eleemosynary. With regard to all ecclesiastical
corporations, the ordinary it their visitor, so constituted by the canon law, and from thence derived
to us. The pope formerly, and now the king, as supreme ordinary, it the visitor of the arch-bishop
or metropolitan; the metropolitan has the charge and coercion of all his suffragan bishops; and the
bishops in their several dioceses are the visitors of all deans and chapters, of all parsons and vicars,
and of all other spiritual corporations. With respect to all lay corporations, the founder, his heirs, or
assigns, are the visitors, whether the foundation de civil or eleemosynary; for in a lay incorporation
the ordinary neither can nor ought to visit.51

I KNOW it is generally said, that civil corporations are subject to no visitation, but merely to the
common law of land; and this shall be presently explained. But first, as I have laid it down as a rule
that the founder, his heirs, or assigns, are the visitors of al lay-corporations, let us inquire what is
meant by the founder. The founder of all corporations in the strictest and original sense is the king
alone, for he only can incorporate a society: and in civil incorporations, such as mayor and
commonalty, etc., where there are no possessions or endowments given to the body, there is no other
founder but the king: but in eleemosynary foundations, such as colleges and hospitals, where there
is an endowment of lands, the law distinguished, and makes two species of foundation; the one
fundatio incipiens [a foundation started], or the incorporation, in which sense the king is the general
founder of all colleges and hospitals; the other fundatio perficiens [a foundation endowed], or the
donation of it, in which sense the first gift of the revenues is the foundation, and he who gives them
is in law the founder: and it is in this last sense that we generally call a man the founder of a college
or hospital.52 But here the king has his prerogative: for, if the king and a private man join in
endowing an eleemosynary foundation, the king alone shall be the founder of it. And, in general, the
king being the sole founder of all civil corporations, and the endower the perficient founder of all
eleemosynary ones, the right of visitation of the former results, according to the rule laid down, to
the king; and of the latter, to the patron or endower.

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William Blackstone: Vol. 1, Commentaries on the Laws of England (1765) Page 290

THE king being thus constituted by law the visitor of all civil corporations, the law has also
appointed the place, wherein he shall exercise this jurisdiction: which is the court of king's bench;
where, and where only, all misbehaviors of this kind of corporations are inquired into and redressed,
and all their controversies decided. And this is what I understand to be the meaning of our lawyers,
when they say that these civil corporations are liable to no visitation; that is, that the law having by
immemorial usage appointed them to be visited and inspected by the king their founder, in his
majesty's court of king's bench, according to the rules of the common law, they ought not to be
visited elsewhere, or by any other authority.53 And this is so strictly true, that though the king by his
letters patent had subjected the college of physicians to the visitation of four very respectable
persons, the lord chancellor, the two chief justices, and the chief baron; though the college had
accepted this carter with all possible marks of acquiescence, and had acted under it for near a
century; yet, in 1753, the authority of this provision coming in dispute, on an appeal preferred to
these supposed visitors, they directed the legality of their own appointment to be argued: and, as this
college was a mere civil, and not an eleemosynary foundation, they at length determined, upon
several days solemn debate, that they had no jurisdiction as visitors; and remitted the appellant (if
aggrieved) to his regular remedy in his majesty's court of king's bench.

AS to eleemosynary corporations, by the dotation the founder and his heirs are of common right the
legal visitors, to see that that property is rightly employed, which would otherwise have descended
to the visitor himself: but, if the founder has appointed and assigned any other person to be visitor,
then his assignee so appointed is invested with all the founder's power, in exclusion of his heir.
Eleemosynary corporations are chiefly hospitals, or colleges in the university. These were all of
them considered by the popish clergy, as of mere ecclesiastical jurisdiction: however, the law of the
land judged otherwise; and, with regard to hospitals, it has long been held,54 that if the hospital be
spiritual, the bishop shall visit; but if lay, the patron. This right of lay patrons was indeed abridged
by statute 2 Hen. V. c. 1. which ordained, that the ordinary should visit all hospitals founded by
subjects; though the king's right was reserved, to visit by his commissioners such as were of royal
foundation. But the subject's right was in part restored by statute 14 Eliz. c. 5. which directs the
bishop to visit such hospitals only, where no visitor is appointed by the founders thereof: and all the
hospitals founded by virtue of the statute 39 Eliz. c. 5. are to be visited by such persons as shall be
nominated by the respective founders. But still, if the founder appoints nobody, the bishop of the
diocese must visit.55

COLLEGES in the universities (whatever the common law may now, or might formerly, judge) were
certainly considered by the popish clergy, under whose direction they were, as ecclesiastical, or at
least as clerical, corporations; and therefore the right of visitation was claimed by the ordinary of
the diocese. This is evident, because in many of our most ancient colleges, where the founder had
a mind to subject them to a visitor of his own nomination, he obtained for that purpose a papal bull
to exempt them from the jurisdiction of the ordinary; several of which are still preserved in the
archives of the respective societies. And I have reason to believe, that in one of our colleges,
(wherein the bishop of that diocese, in which Oxford was formerly comprised, has immemorially
exercised visitatorial authority) there is no special visitor appointed by the college statutes: so that
the bishop's interposition can be ascribed to nothing else, but his supposed title as ordinary to visit
this, among other ecclesiastical foundations. And it is not impossible, that the number of colleges
in Cambridge, which are visited by the bishop of Ely, may in part be derived from the same original.

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William Blackstone: Vol. 1, Commentaries on the Laws of England (1765) Page 291

BUT, whatever might be formerly the opinion of the clergy, it is now held as established common
law, that colleges are lay-corporations, though sometimes totally composed of ecclesiastical persons;
and that the right of visitation does not arise from any principles of the canon law, but of necessity
was created by the common law.56 And yet the power and jurisdiction of visitors in colleges was left
so much in the dark at common law, that the whole doctrine was very unsettled till king William's
time; in the sixth year of whose reign, the famous case of Phillips and Bury happened.57 In this the
main question was, whether the sentence of the bishop of Exeter, who (as visitor) had deprived
doctor Bury the rector of Exeter college, could be examined and redressed by the court of king's
bench. And the three puisne judges were of opinion, that it might be reviewed, for that the visitor's
jurisdiction could not exclude the common law; and accordingly judgment was given in that court.
But the lord chief justice. Holt, was of a contrary opinion; and held, that by the common law the
office of visitor is to judge according to the statutes of the college, and to expel and deprive upon
just occasions, and to hear all appeals of course; and that from him, and him only, the party grieved
ought to have redress; the founder having reposed in him so entire a confidence, that he will
administer justice impartially, that his determinations are final, and examinable in no other court
whatsoever. And upon this, a writ of error being brought in the house of lords, they reversed the
judgment of the court of king's bench, and concurred in Sir John Holt's opinion. And to this leading
case all subsequent determinations have been conformable. But, where the visitor is under a
temporary disability, there the court of king's bench will interpose, to prevent a defect of justice.
Thus the bishop of Chester is visitor of Manchester college: but, happening also to be warden, the
court held that his power was suspended during the union of those offices; and therefore issued a
peremptory mandamus to him, as warden, to admit a person entitled to a chaplainship.58 Also it is
said,59 that if a founder of an eleemosynary foundation appoints a visitor, and limits his jurisdiction
by rules and statutes, if the visitor in his sentence exceeds those rules, an action lies against him; but
it is otherwise, where he mistakes in a thing within his power.

IV. WE come now, in the last place, to consider how corporations may be dissolved. Any particular
member may be disfranchised, or lose his place in the corporation, by acting contrary to the laws
of the society, or the laws of the land; or he may resign it by his own voluntary act.60 But the body
politic may also itself be dissolved in several ways; which dissolution is the civil death of the
corporation: and in this case their lands and tenements shall revert to the person, or his heirs, who
granted them to the corporation; for the law does annex a condition to every such grant, that if the
corporation be dissolved, the grantor shall have the lands again, because the cause of the grant
fails.61 The grant is indeed only during the life of the corporation; which may endure for ever: but,
when that life is determined by the dissolution of the body politic, the grantor takes it back by
reversion, as in the case of every other grant for life. And hence it appears how injurious as well to
private as public rights, those statutes were, which vested in king Henry VIII, instead of the heirs
of the founder, the lands of the dissolved monasteries. The debts of a corporation, either to or from
it, are totally extinguished by its dissolution; so that the members thereof cannot recover, or be
charged with them, in their natural capacities:62 agreeable to that maxim of the civil law,63 “si quid
universitati debetur, singulis non debetur; nec, quod debet universitas, singuli debent.” [“Whatever
is owed to a university, is not due to each member; nor is each individually responsible for
university debts.”]

A CORPORATION may be dissolved, 1. By act of parliament, which is boundless in its operations;

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William Blackstone: Vol. 1, Commentaries on the Laws of England (1765) Page 292

2. By the natural death of all its members, in case of an aggregate corporation; 3. By surrender of
its franchises into the hands of the king, which is a kind of suicide; 4. By forfeiture of its charter,
through negligence or abuse of its franchises; in which case the law judges that the body politic has
broken the condition upon which it was incorporated, and thereupon the incorporation is void. And
the regular course is to bring an information in the nature of a writ of quo warranto [by what
warrant], to inquire by what warrant the members now exercise their corporate power, having
forfeited it by such and such proceedings. The exertion of this act of law, for the purposes of the
state, in the reigns of king Charles and king James the second, particularly by seizing the charter of
the city of London, gave great and just offense; though perhaps, in strictness of law, the proceedings
were in most of them sufficiently regular: but the judgment against that of London was reversed by
act of parliament64 after the revolution; and, by the same statute, it is enacted that the franchises of
the city of London shall never more be forfeited for any cause whatsoever. And, because by the
common law corporations were dissolved, in case the mayor or head officer was not duly elected
on the day appointed in the charter or established by prescription, it is now provided,65 that for the
future no corporation shall be dissolved upon that account; and ample directions are given for
appointing a new officer, in case there be no election, or a void one, made upon the charter or
prescriptive day.

THE END OF THE FIRST BOOK.

NOTES

1. Ff. l. 3. t. 4. per tot.

2. Ff. 50. 16. 85.
3. Ff. 3. 4. 7.
4. Co. Litt. 43.
5. Such as at Manchester, Eton, Winchester, etc.
6. 1 Lord Raym. 6.
7. Ff. 47. 22. 1. Neque societas, neque collegium, neque hujusmodi corpus passim omnibus habere conceditur; nam et
legibus, et senatus consultis, et principalibus constitutionibus ea res coercetur. [Neither to all and everywhere is it allowed
to have a society, college, or body of this kind; for the permission is controlled by laws, senate decrees, and the constitutions
of the prince.] Ff. 3. 4. 1.
8. 2 Inst. 330.
9. 10 Rep. 29. Roll. Abr. 512.
10. 8 Rep. 114.
11. 14 & 15 Hen. VIII. c. 5.
12. Stat. 5 & 6 W. & M. c. 20.
13. Stat. 23 Geo. II. c. 4.
14. See page 263.
15. Gild signified among the Saxons a fraternity, derived from the verb gildan to pay, because every man paid his share
towards the expenses of the community. And hence their place of meeting is frequently called the Gild-hall.

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William Blackstone: Vol. 1, Commentaries on the Laws of England (1765) Page 293

16. 10 Rep. 30. 1 Roll. Abr. 513.

17. 2 Inst. 722.
18. Bro. Abr. tit. Prerog. 53. Viner. Prerog. 88. pl. 16.
19. Yearbook, 2 Hen. VII. 13.
20. 10 Rep. 33.
21. 10 Rep. 122.
22. Gilb. Hist. C. P. 182.
23. 10 Rep. 28.
24. 10 Rep. 30. Hob. 211.
25. 10 Rep. 26.
26. 1 Roll. Abr. 514.
27. Dav. 44. 48.
28. Hob. 201.
29. Sodales legem quam volent, dum ne quid ex publica lege corrumpant, sibi ferunto. [Let societies prescribe any law they
please, provided it infringe not the public law.]
30. Stat. 19 Hen. VII. c. 7.
31. 10 Rep. 32.
32. Bro. Abr. tit. Corporation. 63.
33. 10 Rep. 32.
34. The civil law also ordains that, in any misbehavior of a body corporate, the directors only shall be answerable in their
personal capacity, and not the corporation. Ff. 4. 3. 15.
35. Bro. Abr. tit. Feofsm. Al uses. 40. Bacon of uses. 347.
36. Plowd. 538.
37. Bro. Abr. tit. Corporation. 11. Outlaw- &. 72.
38. 10 Rep. 32.
39. Co. Litt. 46.
40. Lord Raym. 8.
41. Co. Litt. 263, 264.
42. 10 Rep. 30.
43. Bro. Abr. tit. Corporation. 31, 34.
44. Ff. 3. 4. 3.
45. 10 Rep. 30.
46. 34 Hen. VIII. c. 5.
47. Hob. 136.

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William Blackstone: Vol. 1, Commentaries on the Laws of England (1765) Page 294

48. From magna carta, 9 Hen. III. c. 36. to 9 Geo. II. c. 36.
49. By the civil law a corporation was incapable of taking lands, unless by special privilege from the emperor: Collegium,
si nullo speciali privilegio subnixum sit, haereditatem capere non posse, dubium non est. [There is no doubt that a college
cannot take an inheritance unless by special privilege.] Cod. 6. 24 8.
50. 1 Inst. 2.
51. 10 Rep. 31.
52. 10 Rep. 33.
53. This notion is perhaps too refined. The court of king's bench, from its general superintendent authority where other
jurisdictions are deficient, has power to regulate all corporations where no special visitor is appointed. But, as its judgments
are liable to be reversed by writs of error, it wants one of the essential marks of visitatorial power.
54. Yearbook, 8 Edw. III. 28. 8 Aff. 29.
55. 2 Inst. 725.
56. Lord Raym. 8.
57. Lord Raym. 5. 4. Mod. ic6. Shower. 35. Skinn. 407. Salk. 403. Carthew. 180.
58. Stra. 797.
59. 2 Lutw. 1566.
60. 11 Rep. 98 .
61. Co. Litt. 13.
62. 1 Lev. 237.
63. Ff. 3. 3. 7.
64. Stat. 2 W. & M. c. 8.
65. Stat. 11 Geo. I. c. 4.

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