PREFACE

TO THE

SECOND EDITION.

I

HOPE, that this edition of Sir Michael Foster's Report, and Discourses on the Crown-Law, will be found to be very correct. I have used great diligence for that purpose; and have been considerably assisted by the printed copy which the learned author used, and which he hath very carefully corrected. His corrections indeed relate principally to the punctuation, and to slight inaccuracies in the stile; but these matters deserve to be regarded in so valuable a work. In pages 295 and 363 the reader will find some few words inclosed between hooks, which were added by the author. Some additional notes and references I have made in the margin, which will, I hope, be found to be an improvement to the work. However, that no injury may thereby be done

to

X1

to the author, the additions are constantly distinguished as such, unless they are merely designed to complete references which were before made.

It was a defect in the former edition of the argument in defence of the practice of pressing mariners for the publick service, that most of the precedents cited from Rymer's Foedera were cited only by the years of the respective Kings, and not, as they ought also to have been, by the pages of the respective volumes. This defect is in this edition supplied, and references are also made to many authorities in Rymer, which are omitted by the learned author. In referring to Rymer, I use, as he did, the second edition.

Mr. Barrington, in his Observations on the more ancient statutes, p. 335, 336, seems to blame the author for not printing, together with his argument, the records cited by him from Rymer; " as, saith he, an abridgment often mistates or misleads, and few will take the trouble to examine the original." If those records had remained in the Tower unpublished, such a method of proceeding would certainly have been very proper; but as they have been long in print, and copies of them are in many hands, I see no necessity for printing at length all the records which it was proper to cite: and I believe, that, as in this case the abridgment was made by a person of so much learning

and

and integrity, few readers would be under any apprehension of finding the records mistated in such a manner as to mislead. "In the first order, saith Mr. Barrington, which is cited, the most material part perhaps to prove the power of pressing is not stated." And after stating the abridgment of the commission to William Barret in the 29th of Edw. III., he adds, "That upon examining the original in Rymer after this follows; Et ad omnes quos in hac parte contrarios invenerit seu rebelles capiendum et in prisonis nostris mancipandum, in eisdem moraturos quousque de eisdem aliter duxerimus demandandum." This is certainly a material part of the commission: but I cannot agree with this Gentleman in thinking, that it is the most material part to prove the power of pressing; for if the commission had been originally drawn without these words, it would have been almost as strong a proof of the point for which it was cited, that is, the usage. However it is a circumstance proper to be known; and I can add, that the like power is given by many other commissions in Rymer.

Mr. Barrington hath made objections to some other passages in this very learned and accurate work; and as they appear to me not to be well founded, I think it right to take this opportunity of making some remarks upon them. I will take them in the order in which they lye in the fourth edition of his book.

In

s. 10.

In p. 32. Note (k) he is pleased to say, "That it seems to be a very extraordinary construction of the statute of William III, which

is rather insinuated than contended for by Mr. See Disc. I. c. 3. Justice Foster in his Treatise on Treason, that the Spiritual Lords need not be summoned under the words, All who have a right to sit and vote in Parliament; which I apprehend, saith he, to have meant only the making it unnecessary to summon Peers who were minors or professed papists." If Mr. Justice Foster had contended or insinuated, that the Spiritual Lords are not included under the words, "All who have a right to sit and vote in Parliament," he would deserve Mr. Barrington's censure but it happens, that he hath neither contended for nor insinuated any such thing; for Mr. Barrington, by omitting in one part of his note, and changing in another, a word which hath great influence in the construction of the statute, and by his total silence in respect to the provisoe hereafter cited, hath been guilty, in a remarkable manner, of MISTATING; but whether his design in so doing was to MISLEAD, I leave to the judgment of others. The statute doth not direct, as he asserts, all the Lords to be summoned, but all the PEERS, who have a right to sit and vote in Parliament; and Mr. Justice Foster thought, that the Spiritual Lords are not included under

this description, being of opinion that they are not Peers, though they are Lords of Parliament. He likewise thought, that as the Lords Kilmarnock, Cromartie and Balmerino were tried in the court of the Lord the King in Parliament, and not in the court of the Lord High-Steward; and as the statute of 7 W. III. c. 3. s. 12. provides,

That neither that act, nor any thing therein contained shall any way extend, or be construed to extend to any impeachment, OR OTHER PROCEEDINGS IN PARLIAMENT IN ANY KIND WHATSOEVER," it was as unnecessary to summon the Peers as the Spiritual Lords. This opinion he hath strongly intimated, not only in the passage to which Mr. Barrington refers, but also in his report of Lord Ferrers's case, p. 148-150: and I believe, that all who will carefully examine the subject will be convinced, that, in point of law, those Lords were no more intitled to the benefit of the statute of K. William, than Lord Lovat, who was tried upon an impeachment, was.

When Mr. Barrington shall have re-considered the subject, Mr. Justice Foster's construction of the statute will not perhaps appear extraordinary to him: perhaps indeed it may appear to him more extraordinary, that a very different construction was put upon it by the three learned judges (Sir William Lee, Sir John Willes and Sir Thomas Parker) who attended the committee

31. 4 Black.

c. 19.