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Rogerus de Mortuomari, Comes de March. constab. castr. Dovoriæ, et custos 5 portuum. Willielmus de Thorpe,* 46 Radulphus de Spigornel, Willielmus de Norton, Stephanus de Valoigns, Thomas de Lodelow, Willielmus Warner. [Pat. 31 Edw. III, 2da. pars. memb. 11. in dorso.]

Sir Robert Herle, Lord Warden of the five Ports and Constable of Dover Castle, John de Cobham, Roger de Northwood, of Northwood, Ralph de Fremingham, of Fremingham, Robert de Lodelow, Robert Vinter, of Vinters in Boxley, John Barrie, of Sevington, and Thomas Hartridge, of Hartridge in Cranbrook (appointed in the commission next after act 34 Edw. III).

*

De justiciariis ad pacem conservandam assignatis, Edmundus, comes Cantab., constab. castri Dovoria, Johannes de Cobham, Robertus Belknap,* Stephanus de Valoigns, Henricus de Estrie, Willielmus Horne, Thomas de Shardelow, Willielmus Topcliff, Thomas Garwinton de Wells, Nicholas Hering, Willielmus Tilcombe, Willielmus Makenade, Johannes Francis, Thomas Hartridge, John Bird de Smeeth, justiciarii ad pacem conservandam assignati, in lastis de Sheringhope, Shepwey, St. Augustine's, et 7 hundredis in com. Kantii. [Pat. 1 Ric. II, 1m. pars. memb. 20. in dorso.]

Idem Edmundus, comes supradictus, Johannes Cobham, Robertus Belknap, Thomas Colepeper, Henry de Estrie, Johannes Fremingham, Jacobus de Peckham, Thomas de Shardelow, Willielmus Topclive, Nicholas Hering, Willielmus Makenade, justiciarii ad pacem conservandam assignati in lastis de Ailesford, Sutton, et Leucata de Tunbridge, in com. Kantii. [Pat. 1 Ric. II, 1' pars. memb. 20. in dors.]

ma.

In the reign of Queen Elizabeth, A.D. 1596, there were no less than sixty-four of the nobility and gentry of this county in the commission of the peace, then residing in it, besides many others who resided in other parts of the kingdom. (Lambard, Peramb. Kent, 31-35.)

From the two records of 1 Ric. II, we learn that two separate commissions of the peace were then granted for East and West Kent, that for East Kent comprising the lathes of Sheringhope (now Scraye), Shepwey, Saint Augustine, and the Seven Hundreds, whilst that for West Kent comprised

46 Those marked thus* were judges.

the remaining lathes of Ailesford, Sutton, and the Lowey of Tunbridge.

Thus this venerable and important institution of justice of the peace has had an uninterrupted existence of nearly five centuries; and when we consider to what a tremendous extent its powers have superseded the trial by jury-the proudest birthright of an Englishman, it affords the most unequivocal testimony that those powers have been exercised with a laudable and conscientious regard to the public welfare; and so long as the people continue to place their confidence in the prudence and discretion, in the impartiality and incorruptible integrity of the justices, and in the learning, ability, and diligence of their legal officers, so long will the institution continue to flourish, notwithstanding the unconstitutional character of its origin.47

Having laid before the reader a succinct account of the origin and authority of the Kentish Custumal, of the etymology of Gavelkind,' and of the antiquity of its customs, of the civil and ecclesiastical subdivisions of the county, and of the antient conservators and modern justices of the peace, we now proceed to an Analytical Commentary on the Custumal of Kent.

47 The extent to which this institution has superseded the trial by jury may be, in some degree, estimated from the fact, that in no less than 1300 criminal cases the justices exercise in a summary manner the functions both of judge and jury. (Oke's Magisterial Synopsis.) It may, therefore, be said that the office carries in its bosom the seeds of its own dissolution. It exists only quamdiu se bene gesserit.

AN ANALYTICAL COMMENTARY

ON

THE CUSTUMAL OF KENT.

SEC. I. "Ces sount les vsages e les custumes, les ques le comunautè de Kent cleiment auer en tenementz de Gauylekende, e en gentz de Gauilekendeys." 48

IN

N order that the reader may the more readily comprehend some apparently nice and somewhat subtle distinctions which, in the course of the ensuing Commentary, may come under his notice, we must premise that, in legal phraseology, the terms "usage" and "custom" have a precise and definite signification, which we will endeavour to explain.

Every legal custom must have existed (according to the quaint language of the law) " from time whereof the memory of man runneth not to the contrary;" and this again is not confined to living memory, but extends to a period of no inconsiderable antiquity—to the reign of King Richard the First (A.D. 1189). "If any one, therefore, can shew the beginning of a custom within legal memory, that is, within any time since the first year of the reign of Richard the First, it is not a good custom." (1 Blackst. Com., p. 77, note 10, and 2 Blackst. Com., p. 31.) And, according to Littleton (s. 170)—

48 The English translation of this and the following sections will be found in the Custumal at the commencement of the volume.

"Nul custome est alowable, mes

que
tiel custome, que ad este use per
title de prescription, scil. de temps
dont memorie ne curt. Mes divers
opinions ont este de temps dont
memory, &c., et de title per pre-
scription, que est tout un en ley.
Car ascuns ont dit, que temps de
memory serra dit de temps de limi-
tation en un brief de droit; scilicet,
de temps le roy R. le 1, puis le
Conquest." (Co. 1, Inst. 113 a.)

"No custome is to be allowed, but such custome as hath been used by title of prescription, that is to say, from time out of minde. But divers opinions have beene of time out of minde, &c., and of title of prescription, which is all one in the law. For some have said that time out of minde should bee said from time of limitation in a writ of right; that is to say, from the time of King Richard the First, after the Conquest."

And these "usages and custumes" are claimed by the whole body of the Kentish people, "le comunautè de Kent," in their Gavelkind lands, and in their persons, "en tenementz de Gauylekende, e en gentz de Gauilekendeys."

SEC. II. "Allowes in Eire John de Berewike, e ses compagnions, Justices en Eire en Kent, le 21 an le roy Ed. fitz le roy Henrie."

The text of the Custumal, as well as the English translation, we have adopted from Lambard (Perambulation of Kent, ed. 1596, pp. 570-585), a book of such high authority, that from it the Custumal has been admitted in evidence to a jury (Launder v. Brooks, Cro. Car. 562), so that we think it unnecessary to add to what we have already advanced (ante, p. 51.)

The words of Sec. II were not in the "auncient roll" which Lambard adopted, but were taken by him "out of another olde copie."

The allowance of the Kentish customs by the justices itinerant, in their eyre, shows that those "usages e custumes" had all the necessary qualifications of a legal custom, such as

antiquity, uninterrupted continuance, peaceable enjoyment, reasonableness, certainty, compulsory obligation, and consistency. (1 Blackst. Com. 76-78.)

SEC. III. "Cestascauoir que toutes les cors de Kenteys soient fracz auxi come les autres frauz cors Dengleterre."

This is the first and most important of the liberties in the Kentish Custumal.

We can scarcely present to the imagination a subject of greater interest than that of Teutonic liberty. In order to acquire a correct notion of its importance, we must contemplate the admirable system of Divine Providence in the moral government of the world.

The All-wise Creator directs and governs all human affairs with infinite wisdom and justice, and by his providence raises up nations, as well as individuals, from time to time, to be the instruments of his justice, and the regenerators of our fallen

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This is true Philosophy-the only trust-worthy interpreter of all History.

From the sacred historians we learn that God selected Abraham and his posterity, the children of Israel, as the living depositaries of true religion. From them also we learn that the empire of the world was, by the same Divine appointment, intrusted to four great nations, who successively ruled with despotic power over all "nations, languages, kindreds,

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