A short tract concerning the doctrine of "Nullum tempus occurrit regi:": shewing the particular cases to which it is applicable; and that it cannot, according to law, be effectual for the recovery of manors, lands, or tenements, alienated from the crown.

A SHORT TRACT CONCERNING THE Doctrine of

Nullum Tempus occurrit Regi,

&c.

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

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

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 * 1.1 whatsoever. For no claims of this

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:" † 1.2 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.

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," * 1.3 and which he also esteems "res quasi sacra."‡ 1.4

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

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,

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, * 1.5 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

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,

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);* 1.6 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

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.

c. 24.* 1.7 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

readers will acknowledge and hold fast this my opinion, until they see more au∣thentic vouchers produced in support of the contrary doctrine.

(Signed) GRANVILLE SHARP.

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.

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

12 Cha. II. to make a grant on any other tenure than that of free and common soc∣cage. * 1.8 — 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

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,

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

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

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.* 1.9) from letting or granting the

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

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,

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

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.

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

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

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, * 1.10 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

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

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. ‖ 1.11

If he ever has yielded to such fallacious and dangerous doctrines, (for no doctrines are so productive of violence and iniquity,

and consequently so productive of certain ruin* 1.12 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 ‖ 1.13

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

be established in righteousness.

Prov. xxv. 5.

(Signed) GRANVILLE SHARP.

THE END.

Notes

• * 1.1

  Query. How far may this hold good since the ma∣king of the Habeas Corpus act, which supposes that a man may be transported against his will if he has sign∣ed a written contract? Sect. 13. This section, howe∣ver, gives no authority for such a forcible transporta∣tion; it only informs us, that the act does NOT "extend to give benefit" in such case; but the common law, we may presume, will or ought to "give benefit" in this, as in every other case, of violence and wrong, because "Lex semper dabit remedium:" and I have al∣ready shewn that the right of the Crown is unalienable in this kind of property, for the maintainance of freedom.
• † 1.2

  Item quasi res sacra ut liber homo qui vendi non potest, cùm libertas non recipiat aestimationem,

  &c. Bracton, lib. 2, p. 14.
• * 1.3

  Et est res quasi sacra, Res fiscalis, quae dari non potest, nec vendi, nec ad alium transferri a principe vel a rege regnante—
• ‡ 1.4

  To this rule, about Res fiscalis, there are some ne∣cessary exceptions which will hereafter be mentioned.
• * 1.5

  When common law and statute law concur, the common law shall be preferred.

  4. Co. 71.
• * 1.6

  Item pro maximo habetur in legibus Angliae, quod nullus potest dominum regem disseisire, NEC DOMI∣NUS REX ALIQUEM DISSEISIRE POTERIT, ita quod liberum tenementum per talem disseisinam transfere∣tur de rege ad alium, NEC E CONTRA.

  Chap. 8.
• * 1.7

  See sect. 1, 5, and 6, particularly the latter.—

  Provided always and be it enacted, that any thing herein contained shall not take away, nor be con∣strued to take away, any fines for alienation, due by particular customs of particular manors and places, other than fines for alienations of lands or tenements holden immediately of the king in capite.
• * 1.8

  Sect. 4.

  And be it farther enacted, &c. That all tenures hereafter to be created by the king's ma∣jesty, his heirs, or successors, upon any gifts or grants of any manors, lands, tenements, or hereditaments, of any estate of inheritance, at the common law, shall be in free and common socage, and shall be ad∣judged to be in free and common socage only, and not by knights service, or in capite, and shall be discharged of all wardship, &c. any law, statute, or reser∣vation to the contrary thereof in any wise notwith∣standing.
• * 1.9

  8 Hen. VI. c. xvi.

  To eschew the dolours, grievances, and disherisons, which daily do happen to many of the king's liege-people, by the escheators, for that they take enquests, to inquire before them, as well by virtue of the king's writs, as of their offi∣ces, favourably and not duly, by people not impan∣nelled, nor returned to them by the sheriffs of the counties, and more often for their private gain, and for the disherison of the king's liege-people, than for the profit of the same our lord the king, and also, for that the lands and tenements of many of the king's liege-people be seized into the king's hands upon such enquests, or let to ferm by the chancellor or treasurer before such enquests be returned in the chancery: our lord the king hath ordained, &c. that no escheator or com∣missioner take in any wise any enquest to enquire, but of people returned and impanelled by the sheriff▪ in the county, within which he is escheator or commissioner. And if any escheator or commissioner take enquests of people which be not impanelled, &c. that he incur the penalty of 40 l. &c. And that no lands nor tenements, seised into the hand of our lord the king, upon such enquests taken before the escheators or commissioners, be not in any wise let nor granted to ferm by the chancel∣lor or treasurer of England, or any other the king's offi∣cer, until the same enquests and verdicts be fully return∣ed in the chancery, or in the exchequer, but all such lands, &c. shall intirely and continually remain in the hands of our lord the king until the said enquests and verdicts be returned, &c.

  — See also 36 Ed. III. c. 13. to which this act refers for the form of letting.
• * 1.10

  Also discretion, as it is well described, is

  scire per legem quid sit justum.

  10 Co. 140.
• ‖ 1.11

  The NECESSITY of doing evil to avoid a greater evil is a doctrine too generally adopted by worldly poli∣ticians, and perfectly accords with the ancient iniquitous proposition, "Let us do EVIL, that GOOD may come." But the unhappy state of those wretched politicians, who give such pernicious counsel, is immediately ad∣ded, — whose damnation is just! Rom. iii. 8.
• * 1.12

  Our INIQUITIES, like the wind, have taken us away.

  Isaiah lxiv. 6.

  Woe unto them that de∣cree unrighteous decrees.

  Isaiah x. 1.
• ‖ 1.13

  N. B. This tract is dated in May, 1771.