learn from Bracton, Britton, and the author of Fleta; the first of which wrote in the latter end of this reign, and the other two in the reign following. Bracton says expressly, that "the king's power over the "lands of felons convicted, was because he had a right "to throw down the buildings, unroot the gardens, "and plow up the meadows; but because such things "turned to the great damage of the lords, it was "provided, for common utility, that such houses, gar"dens, and meadows, should remain, and that the

king for this should have the advantage of the "whole land for a year and a day, and so every thing "should return entire to the lord. Then he goes

<< on, but now both is demanded, namely, a fine for "the term, likewise for the waste, nor do I see the "reason why*." Thus far Bracton. Britton says, speaking in the person of the king, of felons, for in that manner his book is written, "Their moveables "are ours; their heirs are disinherited; and we "will have their tenements, of whatsoever holden, "for a year and a day, so that they shall remain in our hands that year and day, and that we shall not 66 cause to perish the tenements, nor hurt the woods, (6 nor plow the meadows, as hath been accustomed in time past." Fleta talks in the same strain, in commenting on this law of Magna Charta, which he expressly quotes, that, as a mark of brand on felony, it had been anciently provided that the houses should be thrown down, and so goes on to enumerate the other species of waste, which I need not here repeat,

* Lib. 3. p. 129. 137.

+ Chap. 5.

as I have mentioned them already'; and then he says "because by such doings great damage would accrue 46 to the lords of the fiefs; for common utility it was "provided, that such hardships and severities should cease; and that the king, in consideration thereof, 66 should, for a year and a day, enjoy the commodity "of the whole land; after which term it should re66 turn to the lords of the propriety entirely, without "waste or destructionf." The Mirror, another ancient law-book, joins with these; and this book, which was written in the same reign of Edward the First, or, at the latest, in that of his son, says, "the 66 point of felons lands being held for the year is dis"used; for by that, the king ought not to have but "the waste by right, or the year, in name (that is, in "nature) of a fine; to save the fief from estrepement "(that is, waste) the ministers of the king take both "the one and the other*." A melancholly consideration, that, under his name, and in pretence of his profit, though not really to his advantage, such a law should, for their own profit, be eluded by his ministers; as by these testimonies, one cotemporary, and the rest immediately subsequent, we are informed it was contrary to the intention of this chapter of Magna Charta; but the practice prevailed for a long time after. I shall conclude this lecture with the words of Lord Coke on this chapter of Magna Charta. "Out of these old books you may observe, that "when any thing is given to the king, in lieu or satis"faction of an ancient right of his crown,when once "he is in possession of the new recompence, and the "same in charge, his officers and ministers will ma† Lib. 1. cp. 28. * Cap 5.

"ny times demand the old also, which may turn to great prejudice, if it be not duly and discreetly preventedt."

+ 2 Inst. p. 37.

LECTURE XXXIX.

Continuation of the commentary on Magna Charta.

THE twenty-third chapter of Magna Charta prohibits fish weires in rivers, which are great annoyances to navigation, and the free liberty of fishing; and which have stood their ground in spite of all the laws that can be made against them. The next relates to the inferior courts of Lords of Manors, and to writs of Præcipe in capite; which having gone into disuse, with the feudal tenures, I shall pass them over. The twenty-fifth orders, that measures and weights should be one and the same through the whole kingdom; witness the difference between Troy weight and Averdupois; the wine gallon and ale gallon. Established customs, which of necessity must come into daily practice, are hard to be rooted out by positive laws; and indeed it is more prudent to let them continue. For the confusion that such an alteration of things in daily or hourly practice would occasion, would be more detrimental, for a considerable time at least, than the uniformity intended to be introduced would be attended with advantage †.

The twenty-sixth is concerning the writ De odio et atia, that is, of hatred and malice; which, though not abolished, hath long since been antiquated; but, as † 2 Inst. 38. 41. Barrington on the Statutes, p. 15. 16.

it was an ancient provision for restoring the liberty of the subject, I shall take some notice of it. It was a maxim of the common law, that no man imprisoned for any offence, which, if proved, would touch his life or members, could be bailed out but by the supreme criminal court, the King's Bench; which, upon danger of death, or such other special causes as appeared sufficient to them, had that power. Hence, in those unsettled and oppressive times, it became a practice for malicious persons to have a man clapped up in prison for a capital offence, without either indictment or appeal brought against him; and there he was of necessity to lie, until the justice in eyre came into the county to deliver the gaols, which regularly was but once in seven years; to avoid this hardship, the writ we are now speaking of was invented, and issued out from time to time, as occasion required, out of the Chancery. Besides, by this chapter of Magna Charta, it is ordered to be granted without any purchase or reward; whereas, before, all the original writs were purchased at the price the chancellor pleased to set on them, which was a grievous oppression. It ordered the sheriff to make inquisition in the county court, by the oath of a jury, whether the imprisonment proceeded from malice or not. If they found it did, upon its return, the person accused had a right to a writ, ordering the sheriff to bail him by twelve manucaptors, or securities. But this was only where there was no indictment, or appeal; for these were accusations of record, and therefore the finding the charge malicious in the county court, which was no court of record, could not avail against them. This writ has gone into disuse, since justices of gaol-delivery have