PART I.

THE doctrine of ‘Nullum Tempus occurrit Regi,’ if admitted in an unlimited and general ſenſe, is capable of being wreſted to the moſt arbitrary purpoſes, and may ſeem to au⯑thorize the moſt dangerous and oppreſ⯑ſive pretenſions and claims on the pro⯑perty of the ſubject.

As a general doctrine, therefore, it is unreaſonable; and, conſequently, incon⯑ſiſtent with the fundamental principles [2] of the common law; for which reaſon I never could eſteem the Nullum Tempus doctrine as a maxim of the common law; and I have ſince found that my opinion of it was in ſome degree right, and that the doctrine is ſo far from being a general maxim, that it ought never to be menti⯑oned without its peculiar exceptions, leſt it ſhould do injury, by being applied to improper caſes, and be miſtaken for a maxim, to the perverſion of juſtice: for the true and proper maxims of the com⯑mon law demand the utmoſt deference when they are cited, their authority be⯑ing unqueſtionable; becauſe ‘Contra negantem principia (vel maxima) non eſt diſputandum.’ (Co. Lit. 343. Doc⯑tor & Student, &c. c. 8. p. 27.)

This maxim may indeed ſeem appli⯑cable to myſelf, for denying that the authority and weight of a maxim is due to the doctrine of Nullum Tempus, &c. But I hope to be able, in the courſe of [3] this work, to obviate any ſuch imputa⯑tion, and to prove that it really is not a general maxim. In order to ſet this point in a clear light, it will be neceſſary firſt of all to take a ſhort view of thoſe par⯑ticular rights of the crown, which, in law, are juſtly eſteemed unalienable, and which I apprehend to be as follows.

The king is inveſted, by his office, with a kind of limited property in the per⯑ſons of all his free ſubjects, by which he is enabled, and, indeed, bound in duty to claim, and free them whenever their perſons are unlawfully ſeized, impriſon⯑ed, or otherwiſe detained at home or a⯑broad, under pretence of right of ſer⯑vice, whereby their perſons are claimed as private property, acquired by purchaſe, cuſtom, or any other mode of acquiſi⯑tion ^* whatſoever. For no claims of this [4] kind, upon a freeman, are to be favour⯑ed in law, or can poſſibly be accounted valid, becauſe the maxim aſſures us that "Liber homo" is "res quaſi ſacra," "which may not be ſold:" ^† ſo that there can be no juſt claim of property in the perſon of a freeman, except the official right and claim of property veſted in the king; and, as this is limited by the laws for the benefit and freedom of the ſubject, it is, for that very reaſon, unalienable from the crown.

[5]Other unalienable rights of the Crown are thoſe which form the public revenue, and belong to the king's exchequer, all which are included by this author in the term "Res fiſcalis," ^* and which he alſo eſteems "res quaſi ſacra." ^‡

There are alſo ſeveral other rights, which are inherent in the Crown, for the public good, and cannot therefore be diſ⯑poſed of, or alienated, viz. ſuch as Peace, Juſtice, &c. — ‘et quae faciunt ipſam coronam, et communem utilitatem re⯑ſpiciunt, ſicut eſt Pax et Juſtitia, &c.’

To all ſuch things we may ſafely apply the doctrine of ‘Nullum tempus occurrit regi.’— The ſame is likewiſe applica⯑ble to a few other things, even of an inferior or ſecond claſs; I mean ſuch as [6] are nevertheleſs ſo far alienable, that they may lawfully, without damage to the king or his ſubjects, be transferred, for a time, to other perſons. — ‘Sunt et aliae res quae pertinent ad coronam propter privile⯑gium regis, et ita communem non re⯑ſpiciunt utilitatem, quin dari poſſunt et ad alium transferri, quia, ſi transfe⯑rantur, tranſlatio nulli erit damnoſa, nec ipſi regi ſive principi, &c.’—The things, ranked in this claſs of Royal Pro⯑perty, are, ſea-wrecks, treaſures found, great fiſh, as whales, ſturgeons, and other royal fiſh. And whoſoever pretends to have a right to enjoy the profits ariſing from theſe particular things, muſt be a⯑ble to produce a ſpecial warrant for that purpoſe; becauſe preſcription, even of a very long time, is not ſufficient to juſtify the pretenſion: ‘Diuturnitas enim tem⯑poris, in hoc caſu, injuriam non minuit, ſed auget, nec in primo caſu, NEC IN ISTO, CURRIT TEMPUS CONTRA REGEM, [7] nec incumbit ei probatio quia ad ip⯑ſum pertineant, cum conſtare debeat ſingulis, quod hujuſmodi de jure gen⯑tium pertineant ad coronam.’

But, with reſpect to things of a third claſs, as crown-manors, lands, tenements, &c. the caſe is widely different, for the doctrine of Nullum tempus, &c. affects them not at all! And I am aſtoniſhed that ſo many gentlemen, learned in the law, whoſe attention has lately been em⯑ployed upon this point, ſhould have thought it neceſſary to provide, by a ſpe⯑cial act of parliament, againſt this doc⯑trine, when the common law of England, that ought always to be preferred, ^* has already ſufficiently guarded us againſt the tyrannical conſtruction of the phraſe, which, like a mere bug-bear, is formi⯑dable only whilſt miſunderſtood, though it has raiſed an epidemical panic, of which [8] the late act is a proof. — ‘Sunt etiam aliae res quae pertinent ad coronam, quae non ſunt ita ſacrae, quin transfer⯑ri poſſunt, ſicut ſunt, FUNDI, TERRAE, et TENEMENTA, et HUJUSMODI per quos corona regis roboratur, et in qui⯑bus CURRIT TEMPUS CONTRA RE⯑GEM, ſicut contra quamlibet privatam perſonam.’

Thus we are aſſured, by the authority of an ancient and unexceptionable writer, that crown-lands are exactly upon the ſame footing as private freeholds, with reſpect to time or preſcription, which is the ve⯑ry reverſe of the Nullum tempus doctrine, lately adopted by the Treaſury.

Now, it is a maxim in law, that a quiet and uninterrupted poſſeſſion for ſixty years creates a proper title. ‘Poſſeſſio pacifica POUR ANNS 60 facit jus.’ (Prin. Leg. et Aeq. p. 81. See alſo Jenk. cent. 26.) And, therefore, as we have be⯑fore ſhewn, that Crown manors, lands, [9] and tenements, are exactly upon the ſame footing with reſpect to time or preſcription as private freeholds, we muſt neceſſa⯑rily conclude that the king entirely loſes his title to alienated lands, if there are better proofs of ſuch a peaceable poſſeſſion, on the one ſide, than of a continued claim on the other; in which caſe the lands muſt become wholly and entirely the property of the poſſeſſor. And, even when alien⯑ated crown lands are claimed within any ſhorter term than ſixty years, the king may not ſeize, for it is a maxim, ‘That the king can diſſeize no man, nor be diſſeized;’ (Doctor & Student);^* and, even though the king cannot be diſſeized, yet this is not to be conſtrued ſo as to annul that intereſt, which private perſons acquire, by time, in the poſſeſſion of alie⯑nated [10] lands, for that is ſufficiently eſta⯑bliſhed by an act of 1 Edw. III. c. 12. which ordains, with reſpect to ‘lands and tenements holden of the king in chief, and ALIENED WITHOUT LICENCE’— that the ‘king ſhall NOT HOLD THEM AS FORFEIT in ſuch caſe, but’—‘there ſhall be a reaſonable fine taken in Chancery by DUE PROCESS.’ Here is no limited time for poſſeſſion, ſo that the act is as ef⯑ficacious for thoſe who have been in poſ⯑ſeſſion only 3 years, as for thoſe who have held 20 times 3 years as above. See alſo 9 Edw. III. c. 2. 21 Jac. c. 25. 8. Hen. VI. c. 9. § 7. and 31 Eliz. c. 11.

By the two laſt mentioned acts a peace⯑able and quiet poſſeſſion for 3 years creates a right that will juſtify "keeping poſſeſſion WITH FORCE:" but as the king is not ex⯑preſſly named, I conceive that ſo ſhort a time doth not bar his title to any reaſon⯑able fines, not prohibited by 12 Char. II. [11] c. 24.^* becauſe it is a maxim that ‘the king is not bound by ſtatute law, unleſs expreſſly named.’

What hath hitherto been advanced, I hope, will be thought ſufficient to eſta⯑bliſh the abſolute property of all perſons, who ſhall be able to prove a peaceable poſ⯑ſeſſion of alienated crown-lands, unclaimed for 60 years, and alſo that thoſe perſons who have held alienated crown-lands for more than three years unclaimed, have a right to continue in poſſeſſion, on paying a reaſon⯑able fine; and conſequently that the doc⯑trine of Nullum tempus, &c. is by no means effectual for the recovery of ma⯑nors, lands, or tenements, alienated from the crown. And I truſt that my candid [12] readers will acknowledge and hold faſt this my opinion, until they ſee more au⯑thentic vouchers produced in ſupport of the contrary doctrine.

PART II. Concerning ſome Precautions and Conditions neceſſary to be ob⯑ſerved in the granting of Crown Lands, Tenements, &c.

THE crown is limited, as well in the mode of granting, as in the con⯑ditions to be granted; inſomuch that when any grant or leaſe is made contrary to the rules preſcribed by law, the ſame is there⯑by rendered null and void. I ſhall not pretend to ſpeak of all the particular pre⯑cautions and conditions neceſſary to be obſerved on theſe occaſions, but only ſome few of the moſt eſſential, which, I apprehend, have not been ſo much re⯑garded of late as they ought.

[14]The legiſlature hath agreed, and laid it down as a rule, that all the ancient and military tenures of lands, and ‘even SOCCAGE IN CAPITE, of the king, and the conſequents upon the ſame, have been much more burthenſome, grievous, and PREJUDICIAL, to the kingdom, than they have been BENEFICIAL to the king.’ (See Preamble to 12 Cha. II. cap. 24.) For this juſt reaſon, founded on experi⯑ence, the king hath ever ſince been re⯑ſtrained by the law from granting any part of his dominions upon ſuch conditions.

I have, indeed, heard of a foreign iſland being granted to a noble lord upon ſome ſuch antiquated conditions, whereby he is ſaid to be eſtabliſhed as lord para⯑mount, with a peculiar unconſtitutional authority; but this, I am willing to pre⯑ſume, is merely report; and, even if it were true, the grant would be innocent enough, becauſe it is null and void in it⯑ſelf, as the king has had no right ſince [15] 12 Cha. II. to make a grant on any other tenure than that of free and common ſoc⯑cage. ^* — The king is alſo bound to have reſpect to former grants, becauſe, even in caſes when the king hath grant⯑ed during pleaſure, a ſecond grant, not mentioning the former, ſhall be void. ( [...] Hen. VIII. c. 15).

Now, in order to ſet forth more clear⯑ly ſome other circumſtances wherein the crown is limited in the mode of grant⯑ing, and in the conditions to be granted, I ſhall beg leave to ſuppoſe a caſe. — Suppoſe a crafty and litigious perſon makes intereſt with the lord-treaſurer, or [16] the commiſſioners of the treaſury, for a grant of alienated crown-lands, on condition that he ſhall, at his own expence, prove and eſtabliſh the right of the crown, and recover the lands from the preſent poſſeſſor.

Let us alſo ſuppoſe a lord-treaſurer, or commiſſioners of the treaſury, ſo regard⯑leſs of the neceſſary and legal precautions againſt abuſes in granting crown-lands, that they approve the clandeſtine offer, and procure a grant from their royal maſ⯑ter agreeable to the wiſhes of the pro⯑poſer.

But what will ſuch an adventurer gain by his parchments, whilſt the king's courts are worthy to be eſteemed courts of juſtice and law? Be pleaſed to obſerve that my ſuppoſitions are now at a ſtand. They extend no farther than the imagi⯑nary caſe already laid down. For I am not to ſuppoſe, or conceive, that any learn⯑ed perſons, who preſide in the king's courts, are ſubject to venal time-ſerving, [17] or the factious ſpirit of party influence, which is the ſource of the moſt dange⯑rous partiality; becauſe partiality is en⯑tirely inconſiſtent with the high character of judges, and muſt neceſſarily make ſhipwreck of their ſouls!

For a partial judge cannot truly be ſaid to "have the fear of God before his eyes:" and, as this is the firſt principle which the common law of England requires, and deems abſolutely neceſſary in all ranks of the community, but more particularly in judges, I am bound in Chriſtian cha⯑rity not to ſuſpect ſuch a legal incapacity in any of them, until I am convinced, by experience, to the contrary.

For this reaſon I have not attempted, by declamation and far-fetched argu⯑ments, to eſtabliſh my opinion; nor do I rely on the intereſt and number of my friends to make it paſs current; neither do I demand favour of my readers, as being a friend to adminiſtration; but [18] I have founded my opinion merely on the authority of law; and, whilſt our judges as well as juries are ſuſceptible of that juſt and indiſpenſible fear before mentioned, and are in the leaſt ‘mindful of the ſolemn account which they themſelves muſt one day give,’ ſo long ſhall I preſume that our courts are impartial; and that they will carefully and conſcientiouſly weigh and determine every caſe that is laid be⯑fore them according to the known laws of the land; and, conſequently, that they would reject, with diſdain, the claim of my ſuppoſed adventurer, if his pretenſions to the alienated lands in queſtion had no better foundation than ſuch a grant as I have ſuppoſed. The Courts would in⯑form the litigious adventurer that his grant is of no ſignification, and cannot convey to him the leaſt right in the alie⯑nated lands, becauſe the Crown is bound to prove and eſtabliſh its own right in all manors, lands, &c. before it can grant [19] them to any perſon whatever; for both the lord-chancellor and the lord-treaſurer (and conſequently the commiſſioners of the treaſury) are abſolutely reſtrained, by an act of parliament, (8 Hen. VI. c. 16.^*) from letting or granting the [20] king's lands to farm, until lawful enqueſts and verdicts (that is from good towns, and of good people, 36 Ed. III. c. 13; or a jury of twelve ſufficient men, 1 Hen. VIII. c. 8.) have been taken thereupon, and ‘be fully returned in the Chancery, or in the Exchequer, but all ſuch lands and tenements ſhall entirely and continu⯑ally remain in the hands of our lord the king, until the ſaid enqueſts and ver⯑dicts be returned,’ &c. — And, when the perſons ‘grieved by the ſame en⯑queſts, or putting out of their lands and tenements, come into the Chancery, and proffer themſelves to traverſe the ſaid enqueſts, and then offer to take the ſame lands or tenements to ferm. And, if they ſo do, that then the ſame lands, &c. be committed to them if they ſhew good evidence, &c.’ So that there is [21] no poſſibility for the crown to make a valid grant upon the conditions before de⯑ſcribed, viz. ‘the eſtabliſhing of the Crown's right at the expence of the grantee.’

And another act was made in the eighteenth year of the ſame reign, (cap. 6.) expreſſly as a remedy to prevent ſuch ſubtle and deſigning perſons from ſuing ‘to obtain ſuch gifts, and grants, and ferms, by the king's letters patents, before any inquiſition (as above) or title found for the king of the ſame, pretending ſuch gifts and grants not compriſed and remedied by the ſaid ſtatute, &c. And, if any letters patents be made to the contrary, they ſhall BE VOID AND HOLDEN FOR NONE.’ — So that our adventu⯑rer's claim, founded on a grant made pre⯑vious to theſe neceſſary ſteps, is abſolutely null and void of itſelf. And the very conditions of it (viz. that of eſtabliſhing the right of the crown at the grantee's own expence) would afford ſubſtantial proof, without any farther examination, [22] that the crown had neglected all theſe legal precautions, which are abſolutely neceſſary for the foundation and exiſtence of every grant: and, conſequently, ſuch a condition is, of itſelf, ſufficient to ren⯑der any grant a mere nullity.

I muſt, likewiſe, obſerve that the crown, or its miniſters, have no right to grant lands on any other terms or condi⯑tions whatſoever, beſides thoſe which are preſcribed by law ‘utterly void and of none effect,’ (ſays the 1ſt Stat. of queen Anne, ſect. 5.) ‘unleſs ſuch GRANT, LEASE, &c. be made for ſome term or eſ⯑tate, not exceeding one and thirty years, or three lives, or for ſome term of years deter⯑minable upon one, two, or three, lives; and, unleſs ſuch grant, &c. be made to com⯑mence from the date or making thereof;’ which is impoſſible in the caſe that I have ſuppoſed, where the right is afterwards to be eſtabliſhed by a conteſt at law.—There are alſo other conditions which are abſolutely neceſſary: a reſervation muſt be made of [23] the ancient and moſt uſual rent, or more, or ſuch rent as hath been reſerved, yield⯑ed, and paid, for the greater part of twenty years, before the making of the grant; or a reſerved rent, not under the third part of the clear yearly value. And whatever grant is made ſince the firſt of queen Anne, otherwiſe than according to the tenure and meaning of the ſaid act, is abſolutely null and void. It would be in vain for a Treaſury-board to alledge, in ſuch a caſe, that they abated their le⯑gal conditions in conſideration of the grantee being bound to proſecute and eſtabliſh, at his own expence, the right of the crown: an impartial court (ſuch as I have deſcribed) would freely declare that the crown is not empowered to change the above preſcribed conditions, on any pretence whatſoever, being abſolute⯑ly limited and bound by this Statute of 1ſt Anne, which declares (ſect. 7.) ‘that all gifts, grants, &c. of manors, &c. [24] or any part thereof, contrary to the pro⯑viſions of this act, or any of them, ſhall BE NULL AND VOID, without any inqui⯑ſition, ſcire facias, or other proceeding, to determine or make void the ſame.’

But the moſt material thing to be con⯑ſidered by a lord chancellor, a lord trea⯑ſurer, or a treaſury-board, before they preſume to reclaim alienated lands, &c. is, what I firſt of all touched upon, viz. whether the preſent poſſeſſors of lands, &c. have enjoyed a quiet poſſeſſion of ſixty years? becauſe that creates a good title; "FACIT JUS," as I have already proved; and ſuch great officers ought to be aware that ‘Reſcriptum principis contra JUS non valet;’ ſo that they would betray the honour of their royal maſter, if they were to endeavour to pro⯑cure his aſſent to grants of land, &c. which, by time and poſſeſſion, are thus to⯑tally and irrecoverably alienated; for ‘Do⯑natio principis intelligitur SINE PREJU⯑DICIO [25] TERTII.’ (Davis, 75.6.) And ‘One ſhould be JUST before he is GENE⯑ROUS.’

The points of law and opinions, which I have here laid down, may perhaps be capable of perverſion; for indeed the plaineſt truths may be wreſted and per⯑verted by long, ſophiſtical, and deceit⯑ful, arguments;—but, let my opponents ſubmit their objections to writing, as I have done, and collate them ſide by ſide with mine, and it will be impoſſible for the moſt ſubtle prevarication to ſet aſide ſo many plain and intelligible laws, which acquire a collective force by being thus produced together: and, even if we could ſuppoſe an inclination or partiality in any of the king's juſtices, to favour and confirm every act of adminiſtration whatſoever, be it right or wrong; and, among the reſt, ſuch AN ILLEGAL ACT OF THE TREA⯑SURY LORDS as I have here ſtated in this ſuppoſed grant; yet, even the moſt [26] partial of them would find themſelves expoſed to great difficulty, ſhame, and danger, by attempting to define away the true meaning of ſo many poſitive laws, in order to eſtabliſh ſuch an injuſtice: for the private opinions of the king's juſtices ought to have no weight, neither their will and inclination, except when clearly ſupported by law; becauſe they are not allowed an arbitrary or wilful diſcretion, ^* but merely a legal diſcretion, which is "diſcernere per legem quod ſit juſtum." — ‘For diſcretion is a ſcience, or underſtand⯑ing, to diſcern between falſity and truth, between right and wrong, between ſha⯑dows and ſubſtance, between equity and colourable gloſſes and pretences; and not to do according to their wills and private affections; for, as one faith, ‘Talis diſ⯑cretio diſcretionem confundit.’’ 5 Co. 345. — If theſe ſalutary laws and un⯑alterable [27] maxims have been infringed by any great officer of the preſent times, through miſinformation, or for want of duly conſidering the point in queſtion, let them but acknowledge their error, together with a ſincere intention to make what reparation may lie in their power, and they will eaſily regain that public confi⯑dence and eſteem which they have for⯑feited by their miſtakes; for, ſure I am, (with ſir Edw. Cook,) ‘that no wiſe or true-hearted Engliſhman, that hath been perſuaded before he was inſtructed, will refuſe to be inſtructed in the truth, (which he may ſee with his own eyes,) leſt he ſhould be diſſuaded from error, wherewith blindfold he hath been deceived; for miſerable is his caſe, and worthy of pity, that hath been PER⯑SUADED before he was INSTRUCTED, and now will refuſe to be INSTRUCTED becauſe he will not be PERSUADED.’ But, howſoever applicable the latter part [28] of this quotation may be to any of his majeſty's late or preſent miniſters, yet am I thoroughly perſuaded that it will never be juſtly ſaid of himſelf.

As a man, he is indeed liable to be im⯑poſed on, and may perhaps be perſuaded to give his aſſent to ſome improper things, through the inſinuation of mere worldly politicians; that the ſame are abſolutely NECESSARY; and that he muſt ſubmit to tread in the beaten tract of ſtate-policy (howſoever corrupt) to avoid the danger of greater evils. ^‖

If he ever has yielded to ſuch fallacious and dangerous doctrines, (for no doctrines are ſo productive of violence and iniquity, [29] and conſequently ſo productive of certain ruin ^* to ſtates and kingdoms, as thoſe which are built on pretended neceſſity,) I am perſuaded it was for want of convic⯑tion that he might ſafely and with pro⯑priety avoid it, but the rectitude of his in⯑tentions, I am convinced, will never juſtly be called in queſtion.

That he is a good chriſtian, and ſin⯑cerely wiſhes to promote the general good of his people, I have not the leaſt doubt; and therefore if any man hath been inju⯑red by ſuch an illegal grant as I have de⯑ſcribed, let him find ſome means of ſta⯑ting the merits of his caſe in a proper and reſpectful manner to our gracious ſove⯑reign, and I will FORFEIT MY LIFE, if he does not find redreſs. — MY CONFIDENCE ^‖ [30] is not without foundation! I had the honour to ſtand in his royal preſence, when he called God and man to witneſs, in the moſt ſolemn and affecting manner that can be deſcribed, that he would rule according to the laws.

From that time to this I have enter⯑tained the higheſt perſonal eſteem and reſpect for him, and have really more hopes of the re-eſtabliſhment of public peace and content, from the ſincerity and good heart (as I conceive) of that one man, than from the moſt earneſt endeavours of all the other honeſt and loyal people of England, who, of themſelves, without their royal maſter at their head, are by far too few and weak to reſiſt the immenſe tide of venality and corruption, which has almoſt totally overflowed this once happy iſland.— ‘Take away the wicked from before the king, and his throne ſhall [31] be eſtabliſhed in righteouſneſs.’ Prov. xxv. 5.