been held by base services; however, at the period when Fortescue wrote his treatise, it is probable the tenure by pure villenage, was nowhere to be met with in England. (See on this Subject, Reeves's History of the Law, Rich. II. Edw. IV. Hallam's Middle Ages, Vol. II. p. 134, 381, 385. Blackstone on Copyholders. Barrington on 1 Rich. II.) To Wickliff and his followers, is to be ascribed the merit of propagating the doctrine, that the Christian Religion is repugnant to slavery: Sir T. Smith, mentions that the lower orders of the Clergy, were very zealous in procuring the manumission of villeins: a preamble to a manumission by Henry VIII, recites that the act is pious and meritorious with God, who created all men free: a commission is preserved in Rymer, which was issued by Queen Elizabeth, for giving their freedom to such of her villeins, as chose to pay a composition; whereas Glanville states it to be the law when he wrote, that a villein was incapable of purchasing his own manumission: Sir T. Smith says, that in all his time, he never knew any instance of a villein in gross. Mr Hargrave, in his argument for Somersett the negro, has detailed a multitude of devices and fictions, by which the law of England assisted a man in liberating himself from bondage: and he has collected the rules, which have been adopted in his favour, for the purpose of securing him an impartial trial, when his liberty is at stake. In the same spirit, Lord Bacon and Sir E. Coke enumerate three things, to which the law of England extends its extraordinary protection, and these are, life, dower, and liberty. (On Charters of Manumission, see Hickes's Diss. Epist. Madox's Formulare Anglicanum. Robertson's Charles V. Vol. I. n. 20: On Villeirs being included in 29th Art. of Magna Charta. Hallam, Vol. II. p. 382: On the Court for the Misdemeanors of Villeins, 4 Inst. p. 166. On the Use of the Term Slave, St. 1 Edw. VI. c. 3. On the Point, whether the King can confer Knighthood on a Villein Petyt. Manuscript, Vol. XXXIX. p. 119 b. Petition of the Barons, that no Villein should send his Son to School, Brady, Vol. III. p. 393. On the Protection of the King's Presence to a Villein. Plowden, 323. Questions of Law and Concience respecting Villeins: Doctor and Student, Dial. I. c. 43. Dial. II. c. 18, and 19. On the latest Testimonies to the Existence of Villenage in England. Hallam, Vol. II. p. 393.)

CHAP. XLIII.

Prince. THERE is no pretence in reason to doubt but that in this case the Laws of England excel the Roman Imperial Laws: and, for my own part, I always think that law most eligible, which shews more favour than severity to the parties concerned in it, and who are to be judged by it. For I remember an excellent rule, which says, "that matters of hardship are odious, and ought as much as possible to be restrained, but favours are to be amplified, and extended to their full extent."

Chancellor. With good reason. I will propound one case more, wherein the two laws differ, and then conclude; lest I prove tedious, whilst I expatiate upon the variety of more cases, and the difference each law observes in its decision; and so my discourse would be drawn out into such a length, as instead of entertaining, to disgust you.

L

CHAP. XLIV.

THE Civil Laws commit the guardianship of orphans to the next in blood, whether the relation be by the father's or mother's side, that is, to every one as he stands next in degree and order, to take by inheritance, in case the orphan die. The reason of this law is, "no one is presumed to take more care of, or to have a greater regard for the orphan, than he who is next in blood." The Laws of England determine quite contrary in the case. If an inheritance which is held in socage descend to an orphan from any relation by the father's side, such orphan shall not be in guardianship to any of his father's relations; but he shall be taken care of by the relations of his mother's side. Again, if an inheritance descend to him from any relation by the mother's side: the orphan and such his estate shall be under the care and direction of the next akin by the father's side, and not otherwise, until he come of age. The law says, "to commit the care of a minor to him who is the next heir at law, is the same, as delivering up a lamb to the care of a wolf, that is, to be made a prey of." inheritance be held by knight's-service, in socage, then, by the laws of the minor and his estate shall not be under the management of his relations of either side; but both shall be under the care and direction of the lord of the fee, until he arrive to his complete

But if the

and not land, the

age of one and twenty: who can be supposed better qualified to instruct him in deeds of arms, which, in virtue of his tenure, he is obliged to perform for the lord of the fee, than the lord himself, to whom such service is due from his minor; and who is supposed to have a superior interest to advance his ward in the world, in this and other parts of education, than any of his own relations or friends. The lord, in order to have the better service from his tenant, will use his utmost care, and may well be thought better qualified to instruct him in this way, than his own relations, who, probably, in this respect are presumed, for the most part, wholly ignorant and unpractised; especially, if his estate be but a small one: what is or can be of greater use to a minor, who, in consequence of his tenure is obliged to venture his life and fortune, if required, in the service of the lord, than to be trained up in military discipline, whilst he is yet a minor. When he comes of full age, he cannot decline the nature of his tenure, but is obliged to do suit and service to his lord of whom he holds. Indeed, it will be of no small advantage to the kingdom, that the inhabitants be expert in arms; for the philosopher says, "every one behaves boldly in that way in which he knows himself to excel." Is not this law then, in your judgment, my Prince, to be preferred to the other already describeda?

a The comparison instituted in this chapter between the provisions of the Civil Law and of the Common Law, in respect of the appointment of guardians, is cited with approbation by Coke in his Institutes, (Co. Litt. 88 b.) the expression 66 agnum committere lupo ad devorandum" is similarly applied in the Assizes de Jérusalem and in the Statutum Hiberniæ, 14 Henry III: and the same jealousy of committing the care of the orphan, to a person who can derive any benefit from his death, is found in the laws of other countries. (Assizes de Jerusalem, c. 178. Barr. on 14th Henry III; and see Glanville, lib. vii. c. 11. Bracton, lib. ii.

lib. ii. c. 37. and further concerning this Rule, Craig. Jus Feud. L. 2. D. 20. s. 6. Sullivan's Lect. 127. 2 P. Wms. 262) The reader will probably think that the reasons advanced in favor of the English Law of guardianship, upon this particular point, had, it is to be presumed, considerable weight in less civilized times, but are not applicable to the present state of society; and that a person who may eventually become entitled to an estate, will be more likely to preserve it than one who has no prospect of possessing it. In the Civil Law, after Justinian had abolished the distinction of the "agnati" and "cognati" in respect of the right of inheriting, there could be no proximity in blood, without proximity of succession. The regulations of the Civil Law for the protection of minors, were far more perfect than any which existed in this Country, in the time of Fortescue. It had its testamentary guardians, and guardians by the assignment of the magistrate: whereas our testamentary guardianship is of no earlier date than the reign of Charles II; and the jurisdiction of our Chancellors, in the case of wards, has not been traced higher than the year 1696. (Hargr. Co. Litt. 88 b.) The Civil Law abounds with judicious provisions for the proper execution of the office of the Tutor and the Curator: and the discharge of these important trusts was a compulsory duty. Our guardianship in socage is a very defective institution: originating wholly from the tenure of lands, it does not arise unless the infant is seized of real property, holden by socage, and descended upon him. The minor has no guardian in socage, if he be possessed merely of lands obtained by purchase, in the technical sense of the term, or if he have only rent charges or other hereditaments not lying in tenure, equitable estates, personal property or copyholds: in cases where the guardianship in socage exists, it seems doubtful whether it embraces personal property: and there is reason to believe, that the guardianship in socage was anciently the subject of lease and transfer: lastly, it was not until the reign of Anne, that the action of account was given against the executors of guardians in socage: whilst before the expiration of the guardian's trust, the only remedy for his misconduct is in Chancery. As to the guardianship in chivalry, the Law of Wardship, was, at the time Fortescue wrote, principally regulated by the Statutes of Merton and Westminster the first: However plain the title to the ward might have been, when the lord and tenant held in fee simple, yet it became a matter of great perplexity, when there were reversions and remainders; and when questions of prerogative, of collusion, and the rights of priority, and posteriority were intermingled with the doctrines of estates, discontinuances, disseisins and remitters. The wardship was considered an interest in the guardian, rather than a trust for the minor: it was saleable; it passed to the Lord's representatives;