oufly aiding to pollute it, instead of manfully oppofing the facrilege. Till the time of this prince the doctrine of difpenfation was received with very important qualifications, of which the principal were thefe.-1. It was faid, that the King could not difpenfe with the common law; though Lord Chief Juftice Vaughan feems to deny this pofition, Dav. 75. 3. Inft. 154. Vaugh. 334.-2. It appears to have been generally agreed, that the King could not difpenfe with a ftatute, which prohibited what was malum in fe-3. Malum probibitum was not deemed univerfally dipentable with; for fome held, the King could not difpenfe with a flatute, if the probibition was abfolute, and not fab modo, as under a penalty to the King, or as others exprefs it, where the ftatute was made for the general good, and not with a view merely to the King's profit and intereft.-4. None. contended, that the royal difpenfation could diminish or prejudice the property or private right of the fubject.-5. It was understood, that the King could difpenfe, not generally, but only in favour of particular perfons, and, according to fome, for thefe only in particular infancer. But fome of thefe diftinctions had great uncertainty and fubtlety in them, and were to open to controverfy, that they only tended to create embarrailment; and though the othe's greatly restricted the largeness of the claimed prerogative, yet they were far from obviating the chief objection to fo formidable a pretenfion. Had the boundary of the difpenfing power been ever fo clearly marked, fall it was wife and prudent to annihilate it. So far as it refembled the power of repe Jing laws, it was an intolerable corruption, wholly irreconcileable with the fint praciple of our exftitution, by which the power of legiflation cannot be exercifed by the King without the two houfes of parlia. ment. So far as it did not fail within this idea it was unnece:lary; for, thefe acts, which were the fruits of it, might have derived their force from other acknowledged powers of the crown, fuch as the right of waiving penalties and forfeitures belong to icfelf, and the prerogative of pardoning.—It is worthy notice, that the declaration of rights, which the Lords and Comrens mace on tendering the Crown to William and Mary, difting thes between laws by legal authority, and 4 with them. The former, be ag a gen ra, ond de Kate abrogation for a time, is condemned without any exce; ton; but the latter, being only a special exemption of certain individuals, is merely declared Segal, as it bad bun exerUnd of late. And the bill of rigies, though it declares age us the fatart exercise of a difpenfing power in ary care, except where the

King is fpecially authorised by act of parliament, yet contains a provifo faving from prejudice all prior charters grants and pardons. 1. W. & M. feff. 2. chap. 2. fect. 12. & 13. If the condemnation of the difpenfing power for the time past had been unqualified, it might have deftroyed the titles under numberless fubfifting grants from the crown, the validity of which it was deemed most equitable to leave to the decifion of the courts of justice in the ordinary way.-Such as wish to go more deeply into the controverfy about the difpenfing power, may find the following references useful.-For the hiftory of difpenfations, fee Dav. 69. b. Pryn, on 4. Inft. 128 to 133. Atkyns on power of difpenf, with pen. ftat.-For the cafes on the subject, fee the cafe of the merchants of Waterford in 2. R. 3. 11. 1. H. 7. 2. the theriff's cafe in 2. H. 7. 6. b. the doctrine in 11. H. 7. 11. b. 12. a. Grendon and the Bifhop of Lincoln. Plowd. 502. Cafe of the aulnager, Dy. 303. Calvin's cafe, 7. Co. 15. the Prince's cafe, 8 Co. 29. b. Cafe of the taylors of Ipswich, 11 Co. 53. Cafe of monopolies, ibid. 84. Irish Cafe of commendam, Dav. 68. Cafe of cuftorns, 12 Co. 18. the cafes cited ante note 3. Colt and Glover v. the Bishop of Litchfield, or Englith cafe of commendam, Mo. 898. 1 Rol. Rep. 151. Hob. 146. Evans and Kiffins v. Afkwith, W. Jo. 158. Palm. 457. Latch 31. 233. Noy 93. 2 Rol. Rep. 450. Cafe of the clerk of the court of Wards, Hob. 214. Needler and the Bishop of Winchester, Hob 230. Lord Wentworth's cafe, Mo. 713Cafe of difpenfation with 3. Jam. 1. c. 5. against a recufant's holding an office, Hardr. 110. Cafes of difpenfation with ftatutes against retailing wine without licence; namely, Young and Wright, 1. Syd. 6. Thomas and Waters, Hardr. 443 2. Keb. 425. Thomas and Boys, Harde. 454. Thomas and Sorrell, Vaugh. 330. 1. Lev. 217. 1. Freem. 85. 115. 128. 137. 2. Keb. 245. 280. 322. 372. 415. 790. 3. Keb. 76. 119. 143. 155. 184 223. 233-264. Sir Edward Hales' cafe on the test act of 25. Ch. 2. in 2. Show. 475. Comberb. 21. Sta e Tri, v. 7. p. 612. 4. Bac. Abr. 170. and cafe of the feven Bishops in the reiga of Jam. 2. State Tri. 4th ed. v. 5. p. 303. Of thefe cafes, Thomas and Sorrell and Sır Edward Hales' are the principal. The former was argued with the greatest folemnity in the Exchequer-chamber, the delivery of the opinion of the judges, of whom the majonty was for the difpenfation, taking up a day ja four feveral terms. The latter was treated with leis form; but gave occafion to fome confiderable publications on the fubject; particularly Lord Chief Juftice Herbert's account of the authorities on which the judgment was given in Sir Edward Hales' cafe,

Mr.

In

Mr. Atwood's anfwer to it, and a tract by Lord Chief Baron Atkins against the King's power of difpenfing with penal statutes. a manufcript report of Sir Edward Hales' cafe, Sir Bartholomew Shower is mentioned to have replied to Lord Chief Baron Atkyns. But we have not yet met with any fuch piece. Mr. Hume's state of the arguments for and against the difpenfing power, though written with an evident bias in favour of the Crown's, prerogative, is worth confulting. Hume's Hift 8vo. ed. v. 8. p. 242. 254. Tyrr. Bibliothec. Politic. 589. to 597.-For the proceedings in parliament after the Revolution, in respect to Sir Edward Hales' cafe and the dfpenfing power, fee Gray's Deb. v. 9. p. 297. to 307. 314. to 332. 336. to 344. 396. Chandl. Deb. of the Lords, v. 1. P 394.

See alfo

The very intricate and important Doctrine of Fines is handled with great perfpicuity, ability, and legal information, in the following Note.

ances.

This, though a just description of fines, confidered according to their original and ftill apparent import, yet gives a very inadequate idea of them in their modern application. In Glanville's time they were really amicable compofitions of actual fuits. But for feveral centuries paft, fines have been only fo in name, being in fact fictitious proceedings, in order to transfer or fecure real property, by a mode more efficacious than ordinary conveyWhat the fuperiority of a fine in this respect confifts of will best appear, by stating the chief uses to which it is applied.-One ufe of a fine is extinguijbing dormant titles, by shortening the ufual time of limitation. Fines, being agreements concerning lands or tenements folemnly made in the King's courts, were deemed to be of equal notoriety with judgments in writs of right; and therefore the common law allowed them to have the fame quality of barring all, who should not claim within a year and a day. See Plowd. 357. Hence we probably date the origin and frequent ufe of fines as feigned proceedings. But this puiffance of a fine was taken away by the 24. E. 3. and this ftatute continued in force till the 1. R. 3. and 4. H. 7. which revived the ancient law, though with fome change, proclamations being required to make fines more notorious, and the time for claiming being enlarged from a year and a day to five years. See 24. E. 3. c. 16. 1. R. 3. c. 7. 4. H. 7. c. 24. The force of fines on the rights of ftrangers being thus regulated, it has been ever fince a common practice to levy them merely for better guarding a title against claims, which, under the common ftatutes of limitation, might fubfift, with

R.

a right of entry for twenty years, and with a right of action for a much longer time. Another ufe or effect of fines is barring eftates tail, where the more extenfively operative mode by common recovery is either unneceffary or impracticable. The former may be the cafe when one is tenant in tail with an immediate reverfion or remainder in fee; for then none can derive a title to the eftate except as his privies or beirs, in which character his fine is an immediate bar to them. The latter occurs, when one has only a remainder in tail, and the perfon, having the freehold in poffeffion, refufes to make a tenant to the præcipe for a common recovery, which would bar all remainders and rever. fions; for, under fuch circumstances, all which the party can do is to bar those claiming under himself by a fine. How this power

of a fine over eftates tail commenced, has been vexata quaeftio. The ftatute de donis, after converting fees conditional into eftates tail, concludes with protecting them from fines, there being exprefs words for that purpofe. But the doubt is, when this protection was withdrawn, whether by the 4. H. 7. or the 32. H. 8. It is a common notion, into which fome of our most respectable historians have fallen, that the 4. H. 7. was the ftatute which firft loosened entails; and thus opening the door for a free alienation of land. ed property has been attributed to the deep policy of the prince then on the throne. See Hume's Hiftory, 8vo. ed. v. 3. p. 420. But this is an error proceeding from a strange inattention to the real history of the subject. Common recoveries had been fanctified by a judicial opinion in Taltarum's cafe, as early as the 12th of Edward the IVth; and from them it was, that intails received their death wound; for, by this fiction of common recoveries, into the origin of which we mean to fcrutinize in fome other place, every tenant in tail in poffeffion was enabled to bar intails in the most perfect and absolute manner; whereas fines, even now, being only a partial bar of the iffue of the perfons who levy them, must in general be an inefficacious mode. In refpect to the 4. H. 7. it was fcarce more than a repetition of the 1. R. 3. the only object of which indifputably was to repeal the statute made the 34. E. 3. in favour of non claims, and against them to revive the ancient force of fines, but with fome abatement of the rigor in point of time and other improvements, as we have already hinted; a provifion of the atmoft confequence to the fecurity of titles. Accordingly Lord Bacon, whofe difcernment none will question, in his life of Henry the VIIth, commends the ftatute of the 4th of his reign, merely as if aimed at non claims.

fufly invefts the husband with a right over the whole of the wife's perfonalty, and entitles him to the rents and profits of her real estate during the coverture. It further gives him an eftate for his own life in her inheritance, if the hufband is actually in poffeffion, and there is born any iffue of the marriage capable of inheriting. But the fame law, which confers fo much on the husband, will not allow her, whilft a feme covert, to enlarge the provifion for him out of her property, or to ftrip herself of any claims which the law gives her on his. On the contrary, jealous of his great authority over her, and fearful of his ufing compulfion, it creates a difability in her to give her confent to any thing, which may affect her right or claims after the coverture, and makes all acts of fuch a tendency abfolute nullities. By the rigour of the ancient law, we take this rule to have been fo universally applicable, that a married woman could in no case bind herself or her heirs by any direct mode of alienation, But accident gave birth to two indirect modes, namely, by fines and common recoveries. Though it might be proper to incapacitate the wife from being influenced by the hufband to prejudice herself by any conveyances or agreements during the coverture, yet juftice to others required, that fuch as might have any claim on the wife's freehold or inheritance, fhould not be forced to poftpone their fuits till the marriage was determined; for if they should, then, to use the words of Bracton, in explaining why the husband's infancy would not warrant the parole to demur in a fuit for the wife's land, mulier implacitata de jure fuo fi propter minorem cetatem viri poffet differre judicium, ita poffet quaelibet mulier in fraudem nubere. Bract. lib. 5. tract. 5. c. 21. fo. 423. a. Probably it was on this principle, the common law allowed a judgment against husband and wife in a fait for her land to be as conclufive, as if given against a feme fole; which was carried fo far, that, till the ftatute of Weftminster the fecond, even judgment against them, on a fault in a pofleflory action for the wife's freehold, drove the wife after the husband's death to a writ of right to recover her land. 2. Inft. 242. From enabling the husband and wife to defend her title, and making the judgment on fuch defence conclufive, permitting them to compound the fuit by a final agreement of record, in the fame manner as other fuitors, was no great or difficult tranfition; more especially when it is confidered, that in the cafe of femes covert fines are never allowed to pafs, without the court's fecret examination of them apart from their hufbands, to know, whether their confent is the refult of a free choice, or of

the hufband's compulfive influence. Such, we conceive is the true fource, whence may be derived the prefent force of fines and common recoveries as against the wife, who joins in them; for, whatever in point of bar and conclufion was their effect, when in fuits really adverfe, of courfe attended them, when they were fagned, and in that form gradually rofe into modes of alienation, or, as the more ufual phrafe is, common offerances. The conjecture we have thus hazarded to illuftrate, how it happens, that a married woman may alienate her real rights by fine, though not by an inftrument or act ftrictly and nominally a conveyance, leads to proving, that the common notion of a fine's binding femes covert merely by reafon of the fecret examination of them by the judges is incorrect. If the fecret examination of itself was fo operative, the law would provide the means of effectually adding that form to ordinary conveyances, and fo make them conclufive to femes covert equally with a fine. But it is clearly otherwife; and, except in the cafe of conveyances by cuflom, there must be a fuit depending for the freehold or inheritance, or the examination being extrajudicial is ineffectual. In the fecond Inftitute Lord Coke reprefents this to be the general law, and, amongst many authorities cited to prove it, refers to a cafe of Hen. 7. reported by Keilway, in which, whether the examination of a feme covert, on the inrollment of a bar gain and fale to the King, fufficed to bind; her, was largely debated. 2. Inft. 673. Keilw 4. a. to 20. a. The juft explanation therefore of the fubject is, that the pendency of real action for the freehold of the land, in confequence of previously taking out an original writ, without which preliminary even at this day a fine is a nuility, fhould be deemed the primary cause of the fine's binding a feme covert; and that the fecret examination of her, on taking the acknowledgment of the fine, is only a fecondary caufe of this operation.

a

Such are the three chief effects, by reafon of which, fines, no longer ufed, according to their original, as recorded agreements for conclufion of actual fuits, have been changed into, and are still retained as feigned proceed. ings; and being thus accommodated to anfwer purposes, to which the ordinary conveyances cannot be applied, it is no wonder, that they fhould not only be confidered as a fpecies of conveyance, but also be deemed a principal guard to the titles to real property, and as fuch be ranked amongst the most valuable of the common aflurances of the realm.

In this digreffion on the properties of a fine.

'we

we have purpofely omitted to confider its operation, either as an efoppel, except fo far as it may be faid to be one to the iffue in tail by force of the 4. H. 7. and 32 H. 8. or as a difcontinuance, or laftly in respect of the conufor's warranty, which is always inferted in it. The virtues of a fine, in the three points of view we have examined it, namely, to extinguifh dormant titles, to bar the iffue in tail, and to país the interests of femes co

vert; these constitute the more peculiar qualities, on account of which it is most usually, if not always, reforted to. As to the three other effects, it may be enough to obferve here, that they are equally incident to feoffments, or any other deeds having warranties annexed. The diftinct confideration of them is referved for another occafion. [To be continued. ]

THERE can be but few of our read

ers who are strangers to the various excellencies which Mr. De Lolme has repeatedly difplayed to the world both as a philofopher and a politician; and cer tain it is, that while a fingle veftige remains of the conflitution of England, his admirable work upon the fubject will be confidered as a ftupendous monument of the author's uncommon turn for hiftorical refearch.-That picture, which Montefquieu did but sketch, De Lolme, with fuperior industry, and certainly with at least equal genius, has, in our own days, nobly finished.-He might hold a pencil different in fome refpccts from his brother-artift; but in delineating the grand features of the conftitution of our country, we find no diverfity of object between the monarchical Frenchman and the republican Genevan.

M. De Lolme begins his prefent performance with this fundamental pofition, that the tax upon window lights is the most remarkable tax that has been devifed by the ingenuity of ftatefmen, and fubmitted to by the patience of modern times."

The tax, he fays-and, in our opinion, fays juftly- -was originally meant as a tax upon houses; and the reckoning of the number of windows was confidered as a convenient method of rating the value of the houfe. This method might ferve the intended purpose tolerably well when the tax was but small, and individuals felt no great temptation

to attempt evading the payment of it,. either in order to fave their money, or by way of fhewing their ingenuity. But the tax having been gradually encreased, and additional acts of parliament paffed, both for encreafing the fame, and enforcing payment, the original loose idea of taxing the value of the house, estimated from the number of windows, has been gradually given up; and the tax upon window lights has at length been made in good earnest, and avowedly, A TAX UPON THE LIGHT OF HEAVEN.

In reafoning upon these circumstances, of which, we believe, there are few who will doubt the reality, M. de Lolme, in a fmall compafs, exerts much argument, blended with a confiderable degree of wit and humour.-" Be pleased to obferve, fays he, that government claims the duty upon light, whether fuch light exifts, or not-whether it be day or night. The tax goes on, uninterrupted,and unabated the whole twelvemonth round. No deduction is made on account of darkness and nights.”

66

This, which our author ftyles an inflexible method of laying the tax upon light, ufed by the British Exchequer and Financiers," puts him in mind of a ftory, the recital of which has more than once commanded his most serious attention, when he was a boy, and feems indeed to have no fmall tendency to make others laugh who are men.

The story is really apropos; and as fuch, we give it with pleasure in the author's own words:

"A