His the time. The words of the Judges' oath are, as we have seen, distinct; and these words were interpreted by the usage of centuries. There seems to be no instance on record* in which the Judges, although they have often declined to advise the House of Lords, have withheld their assistance from the Crown. The supposed refusal of Lord Coke to give an extra-judicial opinion in Peacham's case is one of those popular errors which, when they fall in with popular prejudice, are difficult to eradicate. The error, too, has become firmly established from the unfortunate sanction of Lord Macaulay, † and, what is still more strange, of Mr. Hallam. But Lord Coke never refused, either in Peacham's case or on any other occasion, to advise the Crown. On the contrary, his reports contain accounts of numerous conferences in which he took part. objection to the particular or auricular taking of opinions, as he called it, was something very different from that which is usually attributed to him. He did not choose that each of the Judges should be asked for an opinion separately, and so, without consultation and possibly on misrepresentation as to the views of his colleagues, be entrapped into some improvident expression. He insisted that the Judges should, according to their custom, meet together for the purposes of debate, and after proper consultation should deliver their joint opinion. The innovation, therefore, of which Coke complained was not the request for the Judges' opinion, but the mode in which that opinion was sought. So far from the consultation of the Judges in the usual manner being thought improper, it was by this method that many points of great importance were decided. Such was that "grave and safe opinion and advice mixed with law and convenience"§ which the † Essays, ii. 332. 6 Law Magazine and Review, 43. § Bacon, Works, vi. 37. Judges gave, on his accession, to Henry the Seventh, that the devolution of the Crown on an attainted person purges all the consequences of the attainder. Such was the denial of the legislative force of Royal proclamations. Such, too, was the denial of the power to take evidence by torture. It is true that in the present high development of our institutions the Judges have practically been relieved of this duty, and that this complete separation of functions is in itself a mark of an advanced political system. But we ought not to denounce as vicious that which was merely imperfectly developed, or to attribute baseness and corruption to the judges and the statesmen who lived under a system less perfect than our own, and who fairly administered that system as it then existed. 324 CHAPTER XII. THE LANDS OF THE CROWN AND THEIR TENURES. The varieties § 1. Our early history notices several classes of landed property which need to be carefully distinguished.* The first is the land which belonged to the Crown, of landed and was in its direct occupation. The second is property. the land which was the private inheritance of the King, and which did not merge in his crown. The third is the land which was the inheritance of other persons, whether corporate or individual. The fourth is the land which belonged to the community at large, not yet reduced into private property, and available only for commonage, or at most for a temporary occupation. Over the lands which belonged to his kingdom the King seems in early times to have exercised the same powers as a bishop or other corporate person could exercise over the lands of his see. He might use them as he pleased during his life, but he was bound to transmit them undiminished to his successor. Over his private lands the King exercised the same powers as those of any subject over his inheritance.+ The King's private estate passed to his heir and not to his successor, and might be transmitted at his pleasure by his Will. Of the land granted in private property, or Bocland, * Kemble's Saxons in England, ii. 30; Allen, On the Prerogative, 135, 151. + Allen, 143. I shall presently treat. The Folcland, or land of the people, could only be dealt with or alienated with the consent of the Witan. These distinctions, however, were gradually confused. It is difficult to separate in our early history the acts of the King as a private owner from his acts done in virtue of his royalty. There was a constant and natural tendency to confound, as the power of the Crown increased, the patrimony of the individual who then wore the crown, the property annexed to the Crown itself, and the public lands of which the King was the chief guardian and trustee. After the Conquest this tendency was greatly increased. It was the policy of the Conqueror that every acre in the kingdom should owe some duty to the Crown. The duty of the Bocland was represented by the services of men-atarms. The Folcland became Crown land. All the land in the country, indeed, might be included within the latter description. It was held either of the King or by the King. It either was in the hands of proprietors who were bound by their tenure to render certain services to the Crown, or was held in the himself and for his support. in his own hands 1,422 manors in different parts of the country, besides his lands in those counties which are not recorded in "Domesday Book." The classes, therefore, of land which I have above enumerated were thus reduced to two. One was the lands held by various tenures and owing to the King as Lord Paramount various duties or services. The other was the lands which, by whatever title, the Crown had acquired, and of which for its own support and advantage it retained the possession. Of each of these classes I propose in the present chapter to treat. direct possession of the King Thus the Conqueror retained * Kemble, i. 80. § 2. It was at one period customary to describe Feudalism as a source of unmixed evil, and its introduction into England as one of the worst consequences The free tenures. of the detestable tyranny of the Normans. Later writers regard this system, not as the cause of its contemporary troubles but as an attempt to remedy them -incomplete, indeed, and bringing with it many inconveniences and dangers of its own, but nevertheless not unsuccessful. To the men who lived under its operation Feudalism seemed the very vital principle of society. By it and by it alone, so far as their experience extended, could order be maintained and property secured. Feudal principles penetrated deeply into every form of thought and of speech and of action.* Upon them were modelled the ceremonies of the knightly degree and of the marriage rite. Upon them was founded the ideal of a future world: upon them the Church rested in part her claim to general jurisdiction. On their basis men constructed their political theories or framed the actual government of their new possessions. The same motives which induced the sons of the victors of Hastings to introduce Feudalism in its utmost rigour into their new kingdom of Jerusalem + had induced their fathers to adopt these principles in England. The Norman Knights who followed Godfrey of Bouillon were not less free born or less bold than those who followed Duke William. Yet they too were content to accept in Palestine, as their fathers had been content to accept in England, their portion of the conquered land as fiefs from their leader and subject to the whole long list of feudal burthens. It is indeed probable that the military services which William imposed were not materially different from those which every Norman vassal was * Mr. Pearson's Early Hist. of Eng., 429. + Spence's Eq. Jur., 91. |