leiii- WwMi'i mmmi A N HISTORICAL VIEW ENGLISH GOVERNMENT, FROM THE SETTLEMENT OF THE SAXONS Ix\ BRITAIN T O T H E ACCESSION OF THE HOUSE OF STEWART, By JOHN MILLAR, Eso^ Professor of Ldtr in the University of Glassott. DUBLIN: Printed by Zachariah Jackson, FoK CRUbBtR axdM'Allister, No. 59, Daml-s7rcit. M.DCC.LXXXIX', ^ TO THE RIGHT HONOURABLE CHARLES JAMES FOX. S I R, X SHALL, perhaps, be thought guilty of prc- famption, in wilhing to draw your attention to the following publication. The truth is, it ap- pears to me fcarcely poffible for aiiy man to write a conftitutional hillory of England, with- out having Ah% Fox almoft conilantly in his thoughts. In delineating the progrefs of the Englifli government, I have endeavoured to avoid thole fond prcpolTeilions which Engliihmen are apt to entertain upon the fubje6l, as well as the prejudices peculiar to the two great parties, which the nature of our limited monarchy has ]n-oduced. How f^u* I have fucceedcd in this, mull; be left to tlie judgment of the public— But, whatever indulgence may be Ihewn to this Work, the ambition of its author will not be gratiiied ; unlefs he can procure, in fome degree, the approbation of a mind fuperior to prejudice ; equally capable of fpeculation, and C;f adivc exertion j no lefs converfant in elegant A 3 literature, vi DEDICATION. literature, than accuflomed to animate tlie great fcenes of national bufinefs ; poiTeffed of the pe- netration to difcover the genuine principles of the conftitution, and of the virtue to make them an invariable rule of conducl. ImpreiTed with the higheft eflceni for fuch a charadler, permit me to declare the iatisfadlion I feel from your flcady perfeverance in a fyftem, which by tending to lecure the natural rights of mankind, has led to a reputation the mofl ex- alted, and tiie moft grateful to a generous mind, I have the honour to be, SIR, Your moH obedient Humble lervant, College, Gb.fynv.','f /,th Dec. 17^6. S TORN MILLAR. CONTENTS. CONTENTS. Introduction. Page i BOOK I. OF THE ENGLISH GOVERNMENT, FROM THE SET- TLEMENT O? THE SAXONS IN BRITAIN TO THK REIGN OF WILLIAM THE CONQUEROR. CHAP. I. Preliminary Accowit of the State of Britain wider the Dominion of the Romans. . - i CHAP. II. CharaSfer and Manners of the Saxons. - 19 CHAP. III. Settlement of the Saxo?2s in Britain. - 33 CHAP. IV. Si?nilarity in the Situation of the Anglo-Saxons^ and of the other Barbarians ivho fettled in the Provinces of the Wcjicrn Empire. — How far the State of all thofe Na- tions differed from that cf every other People^ anciertt or modern. - - . 46 CHAP. V. The State of Property y and the different Ranks and Or- ders of ?nen, produced by the Settlement of the Saxons in Britain, . - - 73 Sect. CONTENTS. Sect. I. Of ihe chief Regulations attending the Efta- blijhmcnt ofChriJiianity in the Roman Empire^ and in the modern Kingdoms of Europe. Page 8 1 Sect. 2. The Ejlahlipment of Chriflianii) in Britain, under the Roman Dominion, and in the early Co' vernjnent of the Anglo-Saxons, - 93 CHAP. VI. hiftituticn of Ty things. Hundreds, and Counties, 99 CHAP. VII. Of the Wittenage?note. - - 117 CHAP. VIII. State of the Sovereign in ihe primitive Anglo-Saxon Go- vern?nent. - - - 135 CHAP. IX. Of the principal Events from ihe Reign of Egbert to the Norman Conqitefi, - - 15*^ CHAP. X. Variations in the State of Tythings, hundreds, and Shires. - - - - i?^ CHAP. XI. Changes produced in the Condition of the Vaffals, and of ihe Peaf ants. - - - I77 CHAP. XIL The Influence of thefe Changes upon the Jurifdidion and Authority of the feudal Lords. » 192 CHAP. CONTENTS. CHAP. XIIL Of Ecclefiajikal Courts. - Page 201 CHAP. XIV. Alterations in the State of the Wittenagemote. 209 Conchfion of the Saxon Period. - 219 BOOK n. OF THE ENGLISH GOVERNMENT FROM THj: REIGN OF WILLIAM THE CONQUEROR TO THE ACCiiS- 5I0N OF THE HOUSE OF STEWART. CHAP. I. 1 HE "Norman Co7iqueJh.-—Progrefs of the feudal fyfl em, — Vieiv of thefevercl Reigns before that of Edward I. — The Great Charter^ and Charter of the Forejl. Page 222 CHAP. II. In what Manner the Changes produced in the Rei^n of William the Conqueror, offered the State of the national Council, «• - * 269 CHAP. CONTENTS. CHAP. III. Of the ordinary Courts of Juflice after the Norman Con- quefi. - - - Page 282 CHAP. IV. JProgrgfs of Ecclefiaflkal Jurifdid'wn and Authority, 295 CHAP. V. General Viezu of the kingly Power, from the Reign ofEd- ivard the L to that of Henry VII. 306 C H A P. VI. Hifiory of Parliafjient in the fame Period. - 327 Sect. i. The Introdu6lion of the Reprefentatives of Counties and Boroughs into Parliament. 328 Sect. 2. The Divijion of Parliame?it into two Hotfes, and the peculiar Privileges acquired by each Houfe. 348 Sect. 3. Concerning the jnanner of eleding the national Reprefentatives, and the forms of Procedure in Par- liament. - - - - 3^' CHAP. VII. Alterations in the State of the ordinary Courts of "juflice. Sect. i. Efiablifhment of the Courts of Common Law ^ atWeJhninfier. - - ibid. Sect, 2. Of the Petty Jury-^and the Grand Jury 389 Sect, CONTENTS. Sect. 3. Clrciimjlances which prevented the Civil Law from being fo much incorporated in the Syjiem DfEnglifl:) 'JiirifprudcncCy as in that of other Euro- pean Countries. - - - 406 Sect. 4. The Rife of the Court of Chancery, 420 CHAP. vni. Of the Circumflances which promoted Commerce^ Manu- factures, and the Arts, in modern Europe, and part i- ctdarly in England. - - - 434 CHAP. IX. Of Henry the Seventh. — Circumfiances which, in his Reign, contributed to the Exaltation of the Crown. — Revieiu of the Government cfthis Period. - 450 CHAP. X. Of Henry the Eighth. — The Reformation. — Its Caifes. — The Effeds of it tipon the influence of the Crown. 47 1 CHAP. XI. Of Edward the Sixth — Mary — and Elizabeth. — General Review of the Government. — Conchifion of the Period from the Nor?nan Conquefi to the Accejicn of the Houfe of Stewart. - - - 481 Conclufion of the Period* - - 497 INTRODUCTION. INTRODUCTION. THE great feries of events in the hlftory of Eng- land may be divided into three parts : the fuTt, extending -from the fettlement of the Saxons in Britain to the Norman conqueft ; the fecond, from the reign of William the Conqueror to the accefTion of the houfe of Stewart; the third, from the reign of James the Firft to the prcfent time. The important changes exhibited in the ftate of the country, and in the fituation of its inhabitants, appear, like a fort of natural boundaries, to mark out thefe different periods, and to recommend them as objects of diftintfland feparate examination. The firft period contains the conqueft of England by the northern barbarians, the divifion of the coun- try under the different chiefs by whom that people v/ere conducted, the fubfequent union of thofe prin- cipalities under one fovereign, and the courfe of public tranfaclions under the Saxon and Danifli mo- narchs. The reign of V\'illiam the Conqueror, while it put an end to the ancieat lines of kings, introduced into England a multitude of foreigners, who ob- tained extenfive landed poffcffions, and fprcad with great rapidity the manners and cuftoms of a nation more civilized and improved than the Englifh. The inhabitants were thus excited to a quicker ad\'unce- ment in the common arts of life, at the fame time that the nation, by acquiring continental connec- tions, was involved in more extcnhve military operations. Bv 2 I N T R O D U C r I O N. By the union of the crowns of England and Scot- land, upon the acceilion of the houfe of Stewart, the animofities and dilTenfions, with all their trouble- iome confcqucnccs, which had fo long fubfifted be- tween the two countries, were effeclually fupprelTed* By the improvement of manufactures, and the Introducrion of a confiderable foreign trade, England began, in a fliort time, to eftablifli her maritime power, and to affume a higher rank in the fcale of Europe. The fiime periods are alfo diftinguiflied by re- markable variations in the form of government. Upon the fettlement of the Saxons in Britain, we behold a number of rude families or tribes feebly united together, and little accuftomed either to fub- ordination among themfelves, or to the authority of a monarch. During the reigns of the Anglo- Saxon princes, we difcover the effc(5ts produced by the gradual acquifition of property ; in confcquence of which fome individuals were advanced to the pofTeflion of great eftates, and others, who had been lefs fortunate, were obliged to fhelter themfelves under the protection of their more opulent neigh- bours. Political power, the ufual attendant of pro- perty, was thus gradually accum.ulated in the hands of a few o-reat leaders, or nobles ; and the 2;overn- ment became more and more ariitocratical. When the advances of the country in improve- ment had opened a wider intercourfe, and produced a more intimate union between the different parts of the kingdom, the accumulated property in the hands of the king became the fource of greater in- fluence than the divided property poifeil'ed by the nobles. The prerogatives of the former, in a courfe of time, were therefore gradually augmented; and the privileges of the latter fuffered a proportionable diminution. From the reign of William the Con- queror in England, we may date the lirft exaltation of the crown, which, under his fuccciTors of the Plantaganct I N 1 R O D U C T I O N. 3 Phmtasfenet and Tudor fiimllies, continued to rife in fplendor and autliority. About tlie commencement of the reign of James the Firft, great alterations began to appear in the political ftate of the nation. Commerce and manu- factures, by difiufmg a Ipirit of liberty among the great body of the people, by clianging thcTyftem of national defence, and by encrcafmg the necelliiry cxpences of government, gave rife to thofe difputes, v.]\ich, after various turns of fortune, were at Lift happily terminated by the cftabliflimcnt of a popular trovernment. With reference to tliat diHribution of property, in tlic early part of our hiftory, which goes under the name of the feudal fyftem, the conditution efta- bliihed in the firft of thefe periods, may be called the feudal ar'tjlocracy ; that in the fecond, the feudal mo- narchy ; and that which took place in the third, may be called the commercial government. Similar periods to thofe which have now been pointed out in the Engiifli hiftory, may alfo be dif- tinguifiied in the hiftory of all thofe kingdoms on the continent of Europe, which were eftabliflicd upon the ruins of the Roman Em.pirc, and in Vv^hich the people have iince become opulent and polifhed. Thus the reign of Hugh Capet in France, and of Otho the Great in Germany, corrcfpond to that of William the Conqueror in England; as thofe of Lewis Xlil. and Ferdinand 11. in the two former countries, were analagous to that of James the Firft in tlie latter. In the following trcatifc, it is propofed to take a fcparate view of thefe periods of the Englilh hiftory, and to examine the cliief differences of the political fyftem in each of them. As the government which SVC enjoy at prcfent has not been formed at once, but has grown to maturity in a courfe of ao-cs, it is nccefl'ary, in order to have a full view of the circum- ftanccs from which it has proceeded, that we ftiould I'urvcy 4 I N T R O D U C T I O N. furvey with attention the fucceilive changes througK ivhich it has paffed. In a difquifition of this nature, it is hoped that, by conlidering events in the order in which they happened, the caufes of every change will be more eafily unfolded, and may be pointed out with greater fimplicity. As the fubject, however, is of great extent, I Ihall endeavour to avoid pro- lixity, either from quoting authorities and adducing proofs in matters fufficiently evident, or from inter- mixing any detail of facts not intimately connected with the hiflory of our conftitution. With refpect to the Saxon period, which comes firft in order, many writers appear to have looked upon it as too remote, and as aftording a profpecl too barren and rude, to deferve any particular examina- tion. But it ought to be confidered, that the foun- dations of our prefent conftitution wTre laid in that early period : and that, without examining the prin- ciples upon which it is founded, we cannot form a juft opinion concerning the nature of the fuperftruc- ture. To trace the origin of a fyftem fo lingular in its nature may, at the fame time, be regarded as an objecl of rational curioiity. The Britilh govern- ment is the only one in the annals of mankind that has aimed at the diffufion of liberty through a miul- titude of people, fpreadovera wide extent of terri- tory. The ancient republics of Greece and Rome comprehended little more than the police of a hngle city, and in thefe a great proportion of the people, fo far from being admitted to a fhare in the govern- ment, were, by the infiitution of domeftic llavery, excluded from the common rights of men. Tlie modern republics of Italy, not to mention the very unequal privileges which they beftow upon different individuals, are inconliderable in their extent. The lame obfervation is applicable to the government of the Swifs cantons, in the Seven United Provinces of the Netherlands, the government can hardly be confidered as more extenfive 3 for, notwithftanding the INTRODUCTION. 5 the confederacy by which they are connected, every particular province, and even every fingle town of any confequence, belonging to each, having the exclufive power of making or confenting to its own regulations, forms in reality an independent poli- tical fyftem. By what fortunate concurrence of events has a more extenfive plan of civil freedom been eftabliflied in this illand ? Was it by accident, or by dcfign, or from the influence of peculiar fitu- ation, that our Saxon forefathers, originally diftin- guifhed as the moft ferocious of all thofe barbarians who invaded the Roman provinces, have been enabled to embrace more comprehcnlive notions of liberty, and to fow the feeds of thofe political infti- tutions which have been produftive of fuch profpe- rity and happinefs to a great and populous empire ? To thefe queftions it is hoped that, in the fequel, a fatisfaclory anfwer will be given. A N HISTORICAL VIEW OF THE ENGLISH GOVERNMENT. BOOK I. OF THE ENGLISH GOVERNMENT, FROM THE SETTLE- MENT OF THE SAXONS IN BRITAIN TO THE REIGN OF WILLIAM THE CONQUEROR. CHAP. I. Preliminary Account of the State of Britain under the Dominion of the Romans, Ti H E downfal of the Roman flate, and the for- mation of thofe kingdoms which were built upon the ruins of it, may be regarded as one of the greateft revolutions in the hiftory of mankind. A vaft unwieldy empire, which had for ages lan- guifhed under a gloomy defpotifm, was then broken into a number of independent ftates, animated with all the vigour, but fubjed:ed to all the violence and diforder, natural to a riling and unfettled conftitu- tion. The arts and literature which had grown up in the ancient world were, in a great meafure, overthrown ; and a new fyftem of political inftitu- tions, together with a total change of manners, cuftoms, and ways of thinking, fpread itfelf over the greateft part of Europe, B The 2 HISTORICAL VIEW OF THJ! The plan of government which tlie Romans adopt- ed throughout the greateft part of their dominions, was uniform and fmiple. After that people hsd en- larged their city as far as was convenient by incor- porating fome of the neighbouring tribes, and had joined to it the polIefTion of a conliderable adjacent territory, they divided their future acquifitions into diftincl provinces ; in each of which they placed a governor, invefted with ahnofl unlimited autho- rity. It cannot efcape obfervation, that the Ro- man patriotifm, even in the boafted tim.es of the commonwealth, was far from being directed by a liberal fpirit ; it proceeded from narrow and partial confiderations : and the fame people who difcover- ed fo much fortitude and zeal in eftablifliing and maintaining the freedom of their capital, made no fcruple in iubjecling the reft of their dominions to an arbitrary and defpotical government. The go- vernor of every province had ufuaily the com.mand of the forces, and was invefted with the fupreme executive and judicial powers, together with the privilege of appointing the greateft part of the in- ferior officers, to whom the diftribution of juftice, or the. care of the police, was intrufted. The op- prefiive taxes to which the inhabitants of the pro- vinces were fubjecbed, and the ftill greater oppref- fion which they fufFcred from the arbitrary and il- Ie2:al exactions of their different masfiftrates, are fufficiently known. The tribunals of Rome were at too great a diftance to take a ftricl account of her provincial officers ; and the leading men in the Republic, who expected, in their turns, to enrich themfelves by the plunder of ihe provinces, were feldom difpofed to enter very heartily into mea- fures for reftrainins: fuch enormities. The riches amalTed by the offender afforded him, at the flmie timxc, the mxcans of preventing any troublefome en- quiry into his behaviour ; and in proportion to the extent of his guilt, was commonly the degree oi fecurity ENGLISH GOVERN INI E NT. 3 fecurity which he aftenvards enjoyed. Cicero af- firms, that in the fniall government of Cllicia, r;fter faving to the public the amount of a full million fterling, which the former governors had applied to their private ufe, he had, at the end of the year, about twenty thoufmd pounds of clear gain. But while Rom.e was thus extending conqueft and llavery over the world, fhe communicated to the conquered nations her knowledge, and her re- finement in the arts of life. The great miHtary eftablilliment maintained in every province, in or- der to keep the inhabitants in fubjedion ; the laro-e body of civil officers necelTary in the various de- partments of public adminiflration ; the numerous colonies, compofed of Roman citizens, v/ho fettled in every part of the empire, and carried along \\-ith them the Roman inllitutions and cuftoms^ and,^ above all, the frequent refort of the chief pro- vincial inhabitants to the capital of the empire, a natural confequence of their dependence ; thefe circumTtances produced an univerfal imitation of Rom.an manners, and throughout the dominions of Rome contributed to fpread her language, arts, and literature. Thefe advantages compenfated in fome meafure, and were fometimes more than fuf- ficient to counterbalance, the lofs of independence. Wherever the Roman dominion was eftablifhed, the ruder parts of the world were civilized. Among all the countries fubdued by the Romans, none was in a more uncultivated ftate than Britain; and it is probable that no country derived greater advantages from her fubjedion. A great part of the inhabitants, before they were incorporated in the empire, fecm to have been ftrangers to agri- culture, and to have been maintained chiefly by their herds of cattle. They were divided into fmall independent tribes, under their feveral chiefs, as commonly happens in that early ftate of mankind ; and thefe iittle focieties being much addicfled to ^ 2 plunder. 4 HISTORICAL VIEW OF THE plunder, and for that reafon frequently engaged lit lioftiiities, a regard to mutual defence had occajfi- onally produced alliances among fome of them, from which a variety of petty princes, or kings, had arifen in different parts of the country. The Roman adminiftration of Britain does not appear to have been diftinguilhed from that of the other provinces at a diftance from the feat of go- vernment. After the reduction of all that part of the ifland accounted worth the trouble of acquir- ing, the firft great object was, to afcertain and pre- ferve the conqueft by a permanent military force. For this purpofe the inhabitants were completely difarmed ; and a Handing army, compofed, accord- ing to the loweft account, of three legions, amount^ ing to upwards of thirty-fix thoufand foot and fix thoufand horfe, was introduced, and regularly maintained*. Thefe troops were diftributed over the province, and placed in ftations where their fer-- vice could be moft ufeful, either by over-awing the natives, or by repelling the invalions of the uncon- quered tribes in the North. When not engaged in war, they were employed, according to the ufual practice of the Romans, in public works ; in build- ing and repairing thefe two northern walls, v/hic:h at different times were intended as the boundary of the province ; in conftrucling forts ; in clearing the country of its forefts and marfhcs ; and fn opening a communication between the different parts of it, by an uninterrupted chain of high roads. There are faid to have been, in the whole pro- vince, about a hundred and fifty Roman ftations ; which v/ere connected with inferior fortreffes, erec- ted at convenient diftances, and garrifoned with regular troops f. Each of thefe garrifons dccafioned * Horfely Brit. Rom. — Whitaker Hift. Manchefler, v. I. b. i. ch. 6. f Whiwkcr Hift. Manchefter, v. 1. b. i. ch. 8. a refort ENGLISPI GOVERNMENT. S 2 refort of the neighbouring inhabitants, and prob- ably gave rife to a fort of village or town, in which a promifcuous fettlement was formed by Roman families, and thofe of the natives : the effect of fuch an intercourfe, in the communication of man- ners and cuftoms, may eafily be conceived. In par- ticular, as the military people were often rewarded by the public with landed pofTefllons, their example could not fail to fpread the knowledge and practice of agriculture, while their induftry in the manage- ment of their eftates contributed to beautify and improve the face of the country. The connexion with Britain which the foldiers of the Britifh army acquired by living in the coun- try, was even feldom broke off when they were difmilTed from the fervice. Though drawn originally from different parts of the empire, yet, having formed an attachment to the place in which they had fo long refided, they were commonly difpofed, in their old age, and when they had merited their difmilhon, to pafs the remainder of their days in the province. The offspring of thefe people be- came natural inhabitants ; and Britain, in this manner, was continually receiving frelh fupplies of Romans, who compenfated for fuch of the natives as, in the courfe of recruiting the armies, were naturalized into other provinces. After eftablifliing a fuffiicient military force to maintain her authority, the attention of Rome was directed to the fuppreilion of internal diforder among her fubjects, by the regular diftribution of juftice. The jealoufy entertained by the firfl em- j:erors had fuggefted an important regulation for limiting the dangerous power of their provincial governors. From the tim.e of Auguftus, the pro- vinces near the feat of the empire, as they enjoyed the profpecl of tranquillity, were diilinguifhed from fuch as were fituatcd at a diftance, and on that account more expofed to difturbance. In thQ former. 6 HISTORICAL VIEW OF THE former, the governor was merely a civil officer, and had no direction of the forces ; but in the lat- ter it was thought neceffary 4hat his authority fhould be rendered more effeclual, by raifmg him to the head of the military, as well as the civil de- partment*. The prefidcnt or governor of Britain was in the latter iituation ; having the command of the army, together with the fuprem.e jurifdiclion, and the appointment of inferior magiftrates. In the courts held by all thefe officers, the laws of Rome were coniidered as the ftandard of every deciiion. Wher- ever the Romans extended dominion, it was their conftant aim to introduce their own jurifprudencc ; a fyftem which was calculated to eftablifh good order and tranquillity among the conquered people, as well as to promote the intereft of the conquerors. The introduction of that fyftem into Britain was more immediately neceffary, to prevent thofe pri- vate wars, and to reftrain thofe acts of violence and injuftice, to which the inhabitants were fo much addicted : it is not likely, however, that an inno- vation of fuch importance was accomplifhed all at once. In the public adminiftration of the province, the Roman magiftrates affumed an abfolute autho- rity ; but, in matters of private property, the Britifli chiefs and petty princes appear, for fome time after the conqucft, to have retained their ancient jurifdiclion, and to have determined the differences of their own tenants and dependants. But this jurifdiction became gradually more circumfcribed, and feems at laft to have been entirely annihilated. The continual migration of foreigners into the pro- vince, brought along with them the failiions ac- quired in other parts of the empire ; while the multiplication and enlargement of the Eritifti towns, whicl), for the mcft part, were governed accord- * Dio. Caff. 53.— Kein. ad lib. i. dig. tit. 16. 18. ins: ENGLISH GOVERNMENT. 7 ino- to the policy of Rome, extended the influence of"the Roman judges. The province of Britain is faid to have contained about an hundred and forty towns, nine of which were of the rank of colo- nics ; and the cuftoms, as well as the notions of order and juftice, which prevailed in thofe places of common refort, were eafily propagated over the furrounding country. The long continuance of the provincial government, and the progrefs of the na- tives in civilization, difpofed them more and more to neglecb their original magiftrates, and to court the favour of the ruling powers, by an immediate appeal to their protection. To procure a revenue not only fufFicient for de- fraying the expences of the civil and military eftab- iifliments, but alfo capable of affording annual re- mittances to the emperor, was a third, and per- haps the principal object of his adminiftration. The Britons w^re fubjecled to taxes of the fame nature with thofe which were levied from the other pro- vinces* ; the proprietors of arable land paid an annual quit-rent, fuppofed to be equal to a tenth part of the fruits ; and the polTcflbrs of pafture ground were alfo loaded with a duty, proportioned to the number of their cattle |. The cuftoms and excife, in this part of the Roman dominions, are faid to have been remarkably heavy { ; but the im- pofitions which excited moft complaint were, a poll- tax, and a duty upon funerals : thefe, being levied at a fixed rate, without any regard to the poverty or riches of the people, and having no immediate dcpendance on the profperity of trade and manu- factures, were moft eafily increafed at pleafure, and tiierefore fccm to liave been the ufual expedients * Set an account of the taxes througliout the Roman daininions, in Buri jn^n. de Vt-cft. Rom. t This tuX upon cattle was called S,:/'J>iiiia, ^ Stfi-Liu, lib. 4. for 8 HISTORICAL VIEW OF THE^ for raifing fupplies, when every other taxation had been found ineffectual *. The charge of coUeding the revenue was com- mitted to an imperial procurator^ who had the fuper- intendance of all the inferior oiEcers employed in this branch of adminiftration ; and in Britain, as well as in the other provinces, the principal taxes were let to farmers for the payment of a yearly rent. From this mode of colle6lion, fo liable to abufe, and from the nature of the government in other refpeds, it may feem unneceffary to remark, that the Britons were expofed to grievous extor- tions. If the countries near the feat of the empire, and within the obfervation of the fovereign, were abandoned to the arbitrary meafures of the pro- vincial officers, it cannot be fuppofed that thofe at a diftance were in a better fituation. Tacitus men- tions, in terms of the higheft indignation, the un- feeling rapacity of the Roman officers in Britain ; which, at an early period, excited a general revolt of the inhabitants!. It is well known, that the cities and provinces under the Roman dominion were often reduced, by the demands of government, to fuch diftrefs, as obliged them to borrow money at exorbitant in- tereft ; and that, by taking advantage of their ne- ceffities, the monied men of thofe times were en- abled to employ their fortunes in a very profitable manner. In this trade, though prohibited by law, and however infamous in its own nature, the beft citizens of Rome (fuch is the force of example) were not aihamed to engage. Seneca the philofo- pher, whofe philofophy, it feems, was not incom- patible with the love of money, lent the Britons, » See the terms in -which Boadicea is made to complain of the -two laft- mentioned taxes. Xiphiiinus in Neroue. t Tacit. Agric. ch. IJ. ' at ENGLISH GOVERNMENT. 9 at one time, above three hundred and twenty-two thoufand pounds *. Were it poiTiblc to afcertain the extent of the revenue drawn from the province of Britain, we might thence be enabled to form a notion of the opulence and improvement attained by the inhabi- tants. Dr. Henry, who has made very full collec- tion of the facts mentioned by ancient autliors con- cerning the provincial government of this ifland, fuppofes that its annual revenue amounted to no kfs than two millions fterlingf. But this is a mere conjecture, unfupported by any authority ; and h fhould feem that no accounts have been tranfmit- ted by hiftorians, froin which the point can be de- termined. The improvements made by the Britons in agri- culture were fuch, as to produce a regular exporta- tion of corn, for fupplying the armies in other parts of the empire. Their houfes were built in the fame ftyle of architecture ; and many of them were adorned with flatues and public ftruclures, in the fame tafte of magnificence v/hich prevailed in Italy. In this branch of labour, their mechanics were even fo numerous, and had fuch reputation, as to be employed upon the neighbouring conti- nent. In weaving cloth they appear alfo to have made confiderable proficiency. We are informed, XiXix?- f^v^tccSuT, quadringenties feftertium; viz. ^T. 312,916. 13. 4, Xiphilinui in Nerone. f This fuppofition is built upon a calculation of Lipfius, who makes the revenue of Gaul amount to ;r. 2^21,875. This calculation is only fupported by a paflaj^e of Cicero, quotcJ by Strabo, \vhich mentions the revenue of ^-gyP'> 'f^ 'fi*-' time of Auletes, the father of Cleopatra, as amounting to that fum ; and by a paflage in Velleius Patcrculus, aliening that Egypt in taxes yielded nearly as much as Gaul. But the evidence arifing from this is too flight, when oppofed to the authority of Suetonius, and that of Eutropius ; who fay, that Caefar drew from Oaul only quadringenties, £.2,2z,()l6. 13. 4. Suppofing, however, the faeT: to be afcertained, that the revenue of Gaul was about twu millions and a half, is there futTicient ground to infer from this that the re- venue of Britain was, at ici^ft, two millions I Lipfius deMaeu.Rom. — Henry's Hift. v. I. in lo HISTOP.ICAL VIEV/ OF THE in particular, that linen and Vv^ooilen manufliclures were euabiifhecl at Winchefter *. The foreiscn trade of Britain, ariUns; from her valuable tin mines, and for which the Ifiand was, at a remote period, frequented by the Phcnicians, and other com.mercial nations of antiquity, is uni- verfaliy known. When this branch of commerce, together with thofe of lead, wool, hides, and fome other native productions, came to be fecured of a regular market, under the eye and protection of the Roman m.agiftrate, they were undoubtedly pudi- cd to a confiderable extent. In tafte and literature, the advances made by the Britons were no lefs confpicuous than in the com.- mon improvements of life. Even in the tim.e of ^gricoia, " the youth of diftinguiilied families," according to the great hiftorian of that age, " v/era *' inftrucled in the liberal arts : infomuch that <^' thofe who but lately were ignorant of the lan- " guag;e, began to acquire a relifh for the eloquence *' of Rome. They became fond of appearing in *•' the drefs of the Romans, and by degrees were led ^' to imitate their vices, their luxury, and eiTemi- " nacv, as well as their elcs;ancG and miaQ-nih^ " cencef." The fafnion of travellinfr for education, and of reiiding in Rome, and in other learned and polite cities of the empire, was early introduced among the Britons ; who, in a noted paffage of Juvenal, are mentioned as beino: indebted to the Gauls for their eminent proliciency in pleading at the bar "j. In Britain, as well as in other provinces, the utmoft attention was given by government, to propagate the knowledc-e not onlv of the Latin and Greek languages, but of all tliQfe branches of fcience that enjoyed any rejputation j and for this purpofe, aca- * Henry's Hifl. v. I. 'f Tacit. Agric. c. 21. I Gctliia v'tiulidicos docult facunda Britannos. Tuv. Sat. 15. demies ENGLISH G O V E R N ISI E N T. 1 1 demies and fchools, with public encouragement, are faid to have been erecled in the principal towns. From thefe different fources the Roman learning", in all its parts, was communicated to this liland ; where it flourillied for fome time, and was after- ward fubjeclcd to a fim.ilar decay as in all ether pro- vinces of the empire. The fucceflive' changes which happened in the political fituation of the Roman Empire produced alterations in the adm.iniftration of all the provinces, as well as of Britain in particular. The defpotical government of Rome, as it had been at firft eflab- iiihed, fo it was afterwards entirely fupported by a military force ; in its original, therefore, it con- tained the feeds of its deftruclion. As, by his ty- rannical behaviour, the reigning emperor became naturally the objed of deteftation and rcfentment to his fubjects, he was expofed to the continual hazard of infurreclion, from the difguft or caprice of that army which he kept on foot for maintain- ing his authority. It was, at the fame time, im- polnble that he fhould command in perfon the dif- ferent armies neceffary for the defence of the whole empire, or that he fliould prevent the general of every feparate armiy from acquiring influence and popularity with the troops under his direction. The greateft and moft veteran of thofe armies were un- avoidably employed on the frontiers, w^here their fervice was moft needed, and where their courage and activity were moft exercifed ; and their leaders being too far removed from the chief magiftrate to rneet with any difturbance in forming their am- bitious plans, were frequently in a condition to render themfclves independent, or to open a direct paffage to the throne. But the independence of the opulent and lead- ing men in the diftant provinces was increafed by another circumftance of ftill greater importance. The firil emperors, who poircffcd the cxtcntcnhve and 12 HISTORICAL VIEW OF THE and rich countries lately fubdued by the Roman arms, enjoyed an immenfe revenue, and their influence muft have been proportionably great ; but the op- preiTive nature of their government, and the un- bounded licence which they gave to the plunder of their fubjects, could not fail to difcourage induftry, and of courfe to reduce the people to poverty and beggary. The extent of the R.oman Empire had, in the mean time, becom.e fo great that the expence of maintaining forces on a diftant frontier, with a view of making any farther conqueft, feem- ed to overbalance the advantages which it might be fuppofed to produce. Adrian, a prince no lefs diftinguilhed for activity than wifdom, was indu- ced to contract his dominions, and to abandon a part of what had been already acquired, that he might be able to preferye the remainder in greater fecurity. Thus, Mdiile the old channels of public revenue were drained, no new fources could be provided to fuppiy the deficiency. In this fitua- tion the emperor felt a gradual decline of his autho- rity ; and as he became lefs able to protect thq inhabitants of the provinces, or to punifli their difo- bedience, they were more difpofed to fliake off their allegiance, and emboldened to follov/ the fortunes of any adventurer who found himfelf in a condi- tion to difturb the public tranquillity. For preventing thefe diforders, it was thought a prudent meafure to affociate different leaders in the fupreme power. The firft traces of this practice may be difcovered about the time of Trajan and the Antonines, who partly, as it fhould feem, from affection, and partly from political motives, adopt- ed in their own life-time a Ccefar^ or a fuccelTor to the crown. The fame plan v/as farther extended by Diocleftan, who divided the fovereignty between two emperors and two Casfars ; and who feems to Iiave thought that, to preferve the empire from fa,lling in pieces, it was requifite to fubmit to the in:;nife,il ENGLISH GOVERNMENT. 13 manlfeft inconveniences arifing from the jealouly and bad agreement of fo many independent heads. The emperor Conftantine rendered this divifion more permanent, by erecting a great Eaftern capi- tal, which became the rival, and even fuperior, in opulence and dignity, to that of the v/eft. In conformity to fuch viev/s of dividing the fo- vereiarntv amons: thofe leaders who mig-ht other- wife be difpofed to tear the empire afunder, fub- divifions were made in thofe territories which had formerly com.pofed a fmgle province ; and in each fubdivifion a chief officer was appointed, whofe au- thority might ferve to limit and circumcribe that of him who had the government of the whole. Thus the fame prince who founded Ccndantinoplc, having difbanded the old praetorian guards, whofe power had long been fo formidable, diftributed the empire into four great prafe^fitres, correfponding to the four joint fovereigns already eftabliflied. Each prefecture he divided into certain large territo- ries, czWtd JKrifdi^lions, under their fevcral gover- nors ; and each jurifdiction he parcelled out into fmaller diftricts, under the denomination of pro- vinces, which were commited to the care of deputy- governors. Britain, which originally formed a fmgle pro* vince, but v/hich, by the emperor Severus, had been divided into two, was, according to this arrange- ment, multiplied into five provinces ; and the vicar, or governor of the whole, enjoyed a paramount authority to that of its five deputy-governors. The direction of the civil, and that of the mili- tary cftabliflimcnt, were, for the fame reafon, fe- parated, and placed in different hands. After the difmiiTion of the praetorian guard, and of its com- mander, two military oflicers were appointed, the one of which had the comm.and of the infantry, and the other of the cavalry, throughout the em- pire 5 and under them the number of generals, in particular 74 HISTORICAL VIEW OF THE particular diftrlcls, appears to liave been confider- ably encreafed. The Roman forces in this Ifiand came, in the later periods of its provincial govern- ment, to be under the direction of three indepen- dent oHicers ; the duke of Britain^ who command- ed on the northern frontier ; the count of Britain, who conducted the troops in the interior parts of the country ; and the cou?it of the Saxon fjore^ em- ployed in fuperintending the defence of the fouthern and eallern coafts, which, from about the begin- ning of the third century, had been expofed to fre- quent incurlions from the Saxons. AH thefe precautions, however, by which the Roman emperors endeavoured to maintain fubor- dination and dependence in the different parts of their dominions, were ineffectual in oppofition to the prevailing current of the times. The fame un- happy fyftem which tended to loofen the bands of government, contributed alfo to render the mili- tary eftablifliment unfit for defence againft a foreign enemy. As ail power and diftinclion were ultim.ately derived from the army, it was the intereft of every general to court the favour of the troops un- der his command, not only by enriching them with donations and emoluments, but by treating them with every kind of indulgence. The natural con- fequence of fuch a fituation was the procuring to the foldiers an exemption from the laborious du- ties of their profeffion. Feeling their own confe- r.ucnce, the military people fet no bounds to their licentious demands, and ^vere rendered inactive and effeminate, in the fame proportion as they be- came haughty and infolent. The Iieavy armour, which in former times had been ufed with fo much advantage, was therefore laid afide, as too cumber- fome and fatiguing ; and the ancient military dif- cipline, the great caufe of all their victories, was at len2:th intirely neQ-lected. It was thus that the Romans, being deprived of that fupenority which they ENGLISH GOVERNMENT. 15 they had formerly pofTefred in their encounters with rude and ignorant nations, found themfelvcs un- able to refiil the fierce coura:crt 16 HISTORICAL VIEW OF THE exert themfelves in their own defence ; and culti- vating thofe arts which tend to foften the manners, while they infpire an averfion from the dangers and hardfhips of a m.artial life. Thus the Britons, in their advances towards civility, loft the courage and ferocity of barbarians, without acquiring the ikill and addrefs of a polilhed nation ; and they ceafed to be warriors by nature, without being rendered foldiers by difcipline and education. But the departure of the Romans from Britain was no lefs fatal to all the inftitutions of civil 2:0- vernment. The governors and other officers, who direfted the adminiftration of public affairs, the farmers engaged in the different departments of the revenue, the magiftrates of Roman appointment, who determined both civil and criminal caufes, and who had now acquired a complete jurifdiclion over the whole province, had no longer occafion to re- main in a country which was totally abandoned by its mafter, and in which, by the removal of the anny, they had loft the means of maintaining their authority. The courts of juftice, therefore, were dilTolved ; the taxes were abolifhed ; and all order and fubordination were deftroyed. Even private individuals, of Roman extraction, who had acquir- ed eftates in Britain, endeavoured to difpofe of their fortunes, and by leaving the Ifland, avoided the ftorm that appeared to be gathering around them. The difafters which followed were of fuch a na- ture as might be expected from the anarchy and confufion which prevailed in the country. The Scots and Pifts, who, in the northern part of the Ifland, had remained unconquered, and retained their primitive barbarous manners, took ad/antage of this favourable opportunity, to invade and plun- der their more opulent neighbours. They met with little refiftance from the Britons, who, giving way to their fears, and confcious of their inferio- rity. ENGLISH GOVERNMENT. 17 rity, feemed to plac€ their only refuge in the pro- teclion of their ancient rulers. The abjecl manner in which they, at different times, folicited that pro- tection ; the behaviour of their ambafladors, who in the prefence of the emperor rent their garments, and putting afhes upon their heads, endeavoured to excite commiferation by tears and lamentations ; the letter which they wrote to ^tius, the prcefed of Gaul, infcribed the groans of the Brito?2s, and in M'hich they fay, the barbarians drive us into the fca, the fea throzcs us back upon the barbarians^ and %ue have only the hard choice left us^ of pcrijimig by the/word^ or b-4 the leaves ; thefe particulars, which arc handed down by hiftorians, exhibit the fhocking picture of a people totally deftitute of fpirit, and unable to collect refolution even from defpair. Upon two occafions they obtained from Rome the aid of a militnry force, by which their enemies were fur- prifed, and repulfed with great flaughter ; but the relief which this afforded was merely temporary, and they received a peremptory declaration, that, from the embarraffed condition of the empire, no future fupplies of this kind could be fpared *. The confternation of the Britons, in this help- Icfs condition, may eafily be conceived, though in the rude annals of that period it is, perhaps, painted with fome degree of exaggeration. Time and ne- ceffity, however, fuggefted the means of guarding againft the evils to which they were expofed. The proprietors of land poffeffed a natural influence over the people whom they maintained upon their effates ; and this was the fource of a jurifdiction, which, during the fubfiftence of the Roman domi- nion, had been in great mcafure extinguifhed ; but which, upon the diffolution of the Roman courts, was of courfe revived and rendered independent. The fame influence enabled thefe perfons to call ^ CUdjc ma.— Bedx Hlft. Ecclcf. C out i8 HISTORICAL VIEW OF T 11 E out their tenants to war, and to alTume the direc- tion of their conduct during a military enterprize. By thefc two branches of authority, a very iimple form of government was gradually introduced. The whole country was broken into feparatc diftrid-s,- according to the extent of territory in the pofleC fion of individuals, and fell under the civil and military power of fo many chiefs, the moft opu- lent of \Vhom appear to have been dignified with the title of princes. By the efforts of thefe leaders, it is likely that private robbery and violence were, in fome degree, reftraincd, and the people were encouraged to return to their tillage and ordinary employments ; from the neglecl of which, it is faid, a famine had been produced. But therr great ob- ject was to oppofe the northern invaders ; for this purpofe they elected a general of their united forces, upon whom, after the example of the Romans, they beftowed the appellation of the duke ef Britain. The fame perfon preiided in the alTemblies held by the chiefs, in which the great affaii*s of the nation ap- pear to have been determined. After the government had remained for fome time in this channel, Volti^em, one of the m.oft opulent of their princes, was promoted to that high dignity ; and upon a nev/ alarm of an inva- fion from the Scots and Picts, he is faid to have called a national council, in which it was asfreed to folicit the alliftance of the Saxons. As this mea- fure was fatal in its confequences^ it has been uni- verfally decried, and ftigmatifed as the height of imprudence ; but we ought to conlider that it pro- ceeded from the fame fyftem of policy vv'hich has been practifed and approved in all ages, that of courting the alliance of one nation, in order to form a balance againft the fonnidable power of another ; and the cenfures Vvhich, in this inftance, have been fo liberally bellowed upon the Britons, are a plain proof hovv' ready we are to judge of actions ENGLISH GOVERNMENT. 19 aclions from the good or bad fuccefs which attends them ; or how difficult it is to eftablifli any general rules of condud, that will not appear grofsly de- fective in a multitude of the particular cafes to which they may be applied. CHAP. II. Character and Manners cf the Saxons, \J F thofe barbarians who pafled under the deno- mination of Saxons, and who, at the time when they were invited to affift the Britons, inhabited the Northern parts of Germany, it is of little mo- ment to afcertain the origin, or to trace the feveral places in which they had previoufly refided. The Germans, who fubdued the Weftern provinces of the Roman empire, have been fuppofed to poiTefs a fmgular character among the rude inhabitants of the world, and to be diftinguifhed by their emi- nent qualities and virtues ; in particular by their love of liberty. Such an opinion may be afcribed to the elegant defcription of that people by the mafterly pen of Tacitus ; to the great revolutions which they atchieved in Europe ; and, above all, to that national vanity which is more extravagant than the vanity of individuals, becaufe the multitude of perfons who are influenced by the lame weaknefs keep one another in countenance. But there is rea- fon to believe that the ancient inhabitants of Ger- many exhibited the fame difpofitions and manners, and adopted fimilar inftitutions and cuftoms, to thofe which may be difcovered in fuu; barbarians, C 3 of 20 HISTORICAL VIEW OF THE of every age or country, as have been placed in iimilar circumilances. Deriving their chief fitbfiftcncc from the paftur- inp- of cattle, they generally poiieffed confidcrable wealth in herds and flocks ; but as they were little acquainted with tillage they feem to have had no idea of property in land. Like the early nations defcribed m the Sacred lliftory, they were accuf- tomcd frequently to change their abode. Regard- ing chiefly the intcrcfl: of their cattle, they often found it convenient to wander from one place to another, according as they were invited by the prof- ped of new pafl:ures ; and in their migrations, they vvTre under no rcfl:raint, either from the cares of huihandry, or from the nature of their pofleflions. But while the management of their cattle conili- tuted the ordinary employment of thefe people, they were alfo frequently engaged in war. In com- mon with all other barbarous nations, they were- much addifted to theft and rapine. The right of property mufl; be long eftabliflied, before the viola- tions of it can be regarded as heinous ofiences ; and it is neceflary that men fliould be habituated to an cxtenfive intercourfe of fociety, before they arc prcfented with fufiicient inducements to facrifice the immediate profits of fraud and violence to the dif- tant but fuperlor advantages derived from their jiving together upon good terms, and maintaining an amicable correfpondence. The ancient Germans, inhabiting a country alrnofl: entirely over-grown \\'ith wmid, or covered with m.arflies, were often reduced to great fcarcity of proviflons, and were therefore ftrongly inftigated, by hunger and mifery, to prey upon one another. Exam.ple, in fuch a cafe, found no diiiiculty to excufe or vindicate what cuf- tom had rendered univerfal. The rude inliabitants of the earth appear, in ail a7C3 and coantrics, to have been divided into fepa- rate ENGLISH G O V E R N M E N T. 21 rate tribes and villages ; a confequence of their Harrow communication, and of their hoftile difpo- fitions. '\Vhen, from accidental circumflances, a family of inch people had been planted, at fo great a diftance from their friends and acquaintance as to j'jrcvcnt all corrcfponelence \vithtlicm, its members, irom inclination, as well a3 from a rer^^ard to mutual defence, were ufually difpofed to live together, and to avoid much intercourlc with neighbours by whom they were likely to be treated as enemies. If their multiplication rendered them too numerous to be all maintained under the fame roof, they naturally fubdividcd themfelves into different families, who erected their huts belide one another ; and if at length their village had been fo enlarged as to pro- duce a dlfiiculty in finding fubfiftence, they were led, by degrees, to remove that inconvenience, by fending out little colonies, with which, notwith- ftanding their dillance, they frequently pre- ferved an alliance and connection. The German tribes became larger and more extenlive, according as, by the encreafe of their cattle, they were enabled to live in greater affluence. In that part of Ger- many which v/as known to the Romans, there have been enumerated about forty different tribes or na- tions, many of which appear to have enjoyed con- fiderable opulence and power. But concerning the number or extent of the villa'ies belonmno; to each of thefe, little or no account can be given. The political regulations eftabliflied among the ancient Germans were few and fimple, and fuch as their fituation could hardly fail to fuggeft. Every fociety, v/h ether great or fmall, tliat had occafion to aci in a feparate military capacity, required a fcparatc leader : for v/hich rcafon, as every fami- ly was under the direction of the father, fo every village had its own chief; and at the head of the whole tribe or nation there was a great chief, or king. How lar the king, or the inferior chiefs, en- joyed 22 HISTORICAL VIEW OF THE joyed their dignity by election, or by hereditary de- scent, it may be difficult to determine, but their au- thority was far from being abfolute. It was the bu- finefs of every chief to compofe the differences, and, probably, to command the forces, of that village over which he prefided. The king too feems to have acted with their advice in the ordinary admxi- niftration of public affairs ; but in matters of great moment, iuch as the making of laws, or the trial of capital offences, he was obliged to procure the concurrence of a great council, compofed of all the heads of families*. The general characffer of thefe barbarians was fuch as might be expected from their manner of life ; it conlifted not of many features, but they were dif- tinftly and ftrongly marked. As in the carnivorous brute animals, obliged very often to fight for their food, and expofed to continual ftrife and contention in the purfuit of mere necefTaries, their paffions, though excited by few objects, were ftrong and vio- lent. Their fituation, at the fame time, occafioned a wonderful fimilarity in the difpofitions and habits of individuals. In every polifhed nation the labour and application of the people is ufually fo divided, as to * " In pace, nullus eft communis mr.giftratus ; fed principes regionum " atque pagorum inter fuos jus dicunt, controverfiafque minuunt. Ubi " quis ex principibus in concilio dixit fc ducem fore — qui fequi velint profi- " teantur ; confurgunt ii qui et caufam et hominem probant, fuumque " auxilium poUicentur, atquc ab muititudine conlaudantur : qui ex iis feculi " non funt, in dcfertorum ac proditorum namero ducuntur, omniumque iis " reruni pollea fides derogatur." Ca:far de Bel. Gal. 6. § 23. " Reges ex " nobilitate, duces ex virtute fumunt. Nee regibus infinita aut libera potef- " tas ; et duces exemplo potius quam imperio, fi prompti, h confpicui, fi " ante acicm agunt, admiratione prafunt." " De miuoribus rebus prin- " c'pes confultant, de majoribus omnes : ita tamen, ut ea quoque, quorum " penes plebem arbitrium eft, apud principes pertradtentur." " Ut " turbae placuit, confidant armati. Silentium per facerdotes, quibus turn et " coercendi jus eft, imperatur. Mox rex, vel principes, prout stas caique, " prout nobilitas, prout decus bellorum, prout facundia eft, audiuntur, " auctoritate fuadendi magis quam jubendi poteftate." Licet apud conci- " Hum accufare quoque, et difcrimen capitis intendere." " Eiiguntur in " iifdem ccnciliis et principes, qui jura per pagos vicofque reddunt." Tacit, de Mor. German, c. 7. Ii. 12. produce ENGLISH GOVERNMENT. 23 produce an endlefs variety of characlers in thofe who iollow different trades and profefiions. The foldicr, the clergyman, the lawyer, the phylician, the tay- ]r>v, the farmer, the fmith, the (hopkeeper ; all thofe who earn a livelihood by the exercife of fcpa- rate employments, whether liberal or mechanical, are led, by the different objects in which they are converfant, to contract fomething peculiar in their behaviour and turn of thinkincr. But the ancient o inhabitants of Germany had made too little pro- grefs in arts to require that a fmgle perfon fliould beftow his v.hole attention upon any one branch of labour, in order to acquire the ufual degree of Ikill and proficiency in it. Every man therefore M'as accuftomcd to exercife indifcriminately the few em- ployments with which they were acquainted. F.very family built its own cottage, fafliioncd its own tools and utenfils, managed its own cattle, and took precautions for its own fupport and defence. Thus the whole people, being employed nearly in the fame manner, and liaving no purfuits but fuch as were fuggefted by their moll immediate wants, were trained up in an uniform fort of difcipline, and acquired that uniformity of manners and cuf- toms, which is commonly obferved in perfons of the fame trade or profeffion. Even the nations in- habiting the moil dillant regions of that extenfivc country appear to have been no otherwife difcrimi- nated than by the different fhades of barbarifm and ferocity which the climate or iituation, more or lefs favourable to improvement, might eafily be fup- pofed to produce. Among people who are conftantly expofed to the attacks of their neighbours, and who are almofl continually employed in war, courage and other military qualities are naturally intitlcd to hold the firft rank. There is an aclivc and a pajfivc courage which mav be diftin2:ui{hcd from each other, as they feer;> to depend upon different principles, and arc 24 HISTORICAL VIEW OF THE are not always to be found in the fame pevfons. The former is difplayed in the voluntary encounter- ing of danger, the latter in bearing pain and diftrefs with firmnefs and conftancy. Valour, which de- mands a fudden and violent effort of refolution,- may be regarded as a mafculine quality ; while fortitude, which, in many cafes, is the fruit of calmer but more continued exertion, is often con- fpicuous in the weaker fex. In order that, with our eyes open, we may expofe our lives to immi- nent danger, we muft be excited by a ftrong defirc of procuring efteem and applaufe, either from others, or from the reflection of our own minds. Efforts of this kind, it is evident are moft likely to be made in thofe countries where, from long prac- tice, and frequent emulation in fighting, martial exploits have come to be univerfally admired, and looked upon by every one as the infallible road to honour and diftinction. Fortitude under pain and diftrefs may, on the contrary, be promoted by the oppofite circumftances, by the want of fenfibility, or by a convidion that our fufferings are beheld with unconcern and indifference. To complain or repine, in the midft of affliction, is an attem.pt to procure relief, or at leaft compaffion from others ; and when we find that our complaints are difre- garded, or treated with fcorn and derifion, we are led to exert our utmoft refolution in order to fmo- ther and reftrain them. The favages, who live by hunting and fifhing, are placed in a fituation more favourable to forti- tude than to valour. Expofcd by their manner of life to innumerable hardihips and calamities, they are too much loaded by the prcffure of their own wants and fufferings, to feel very fenfibly thofe of their neighbours. They difdain, therefore, to foli- cit that fympathy, which they know by experience will not be affor'ded them ; and having, from their daily occurrences, been long enured to pain, they learn ENGLISH GOVERNMENT. 25 learn to bear it with aftcnlfliinf^ firmnefs, and even to endure every fpecies of torture without com- plaining. As, on the other hand, they live in very fmall focieties, and, in order to find fubfiftence, ^re obliged to remove their different villages to a great dillancc from one another, they are not apt to be engaged in frequent or extenfive military enterprizes, nor to attain any degree of rennem.ent in the methods of conducting their hoftilities. The puncliiios of military honour are unknown to them. They fcruple not to take any unfair advan- tage in fighting, and can feldom be'brought to ex- pofe themfelve.s in the open field. The unrelenting and blood-thirfly Indian of America is accullomcd to lie concealed for weeks ; that he may have a con- venient opportunity of lliooting his enemv, and may then with fafety enter his cabbin, to rob and murder the family. Nations who fubfiiT: by pafturing cattle, as they live in larger focieties, and are fupplied with food in greater abundance, are more at lelfure, and have greater incitements to cultivate their focial difpofi- tions. But their magnanimity, in bearing pain and affliction with apparent unconcern, is naturally di- minifhed by their advancement in humanity ; an^i according as individuals difcover that their diftreffes meet with greater attention from their companions and acquaintance, they are more encouraged to difplay their fufferings, and to feek the tender con- folation of pity, by giving way to the expreihon of forrow and uneafinefs : they arc alfo likely to ac- quire a much higher degree of the military fpirit. Ike wandering life of fliepherds is the occafion of bringing frequently into the fame neighbourhood a variety of ftranger tribes ; among wliom any acci- dental jealoufy, or interference of intercft, is apt to kindle animofity, and to produce quarrels and hoftilities. In the frequent M'ars that arife from fuch a lituation, and which arc carried on with the ardour 26 HISTORICAL VIEW OF THE ardour and ferocity natural to barbarians, the vic- tors, having no fixed reiidence, are at full liberty to profecute their fuccefs without interruption ; and as, in every migration, fuch Deople are obliged to carry along with theiTi their v»-iveA and children, and fervants, together v»-ith their herds and flocks, and even their furniture and utcnfiis, a deci- ilve battle never fails to reduce one tribe completely under the power of another. With the fame eafe %vith which the conquerors may puriue their vic- tory, th-ey can incorporate with thcmfelves the van- quiflied party, and make ufe of llieir afiiftance in any future cnterprize. Thus by repeated fuccefles, and hv a s-radual accumulation of forces, a fino'le tribe may, in a fhort time, become fo powerful, as to meet v/ith no enemy in a condition to cope with them, and be excited with great rapidity to over- run and fubdue a vaft extent of country. Kiilory is accordingly filled with the rapid and extenfive conquefts made by nations in this early ftate of fo- ciety ; of which, in particular, there occur m.any celebrated examcles amoncr the Arabs and Tar- tars. Such was the condition of the ancient Germans ; of whom it is rem^arked by the hiftorian, that they were lefs diftinguiilied by their patience of labour, or by their capacity to bear the extremities of heat and cold, of hunger and of thirft, than by their active courage, and their ardent love of military reputation *. " They are more ealily perfuaded,'' fays Tacitus, " to march againft an enemy, and to - expofe themfeives in the field, than to plough <-he *' earth, and to w-ait the returns of the feafon. ^' They account it unmanly to acquire with fweat ^' what may be procured with blood. When they " eno-ao-e in battle, it is a difc;race for the chief to * Laboris atque operum non eadem paticntia; naininieque fittm aedumque tolerare, frigora atque ipcdiam cceio Iblove aliueverunt. Tacit, dc Mor. German, c. 4. <' be ENGLISH G O V E R N Tvl E N T. 27 " be furpalTed in valour ; it is a difgracc for his " followers not to equal the bravery of their chief ; " it is perpetual infamy to efcape with fafety, after " the fall of their leader. To defend and proted " his perfon, to devolve upon him the glory of " all their brave actions, is the principal point c^ " honour. The chiefs fight for vidory, their fol- " lowers for the reputation and dignity cf the " chief f." The lame circumftances which gave rife to fre- quent hoflilities between the members of different tribes, produced a ftrong attachment between the individuals belon^ins: to each of thofe little focie- ties. United by a fenfe of their common danger, and by their common animofity, againll all their neighbours, they were frequently required by their fituation to defend and relieve one anotlicr, and even to hazard their lives for their mutual fafety. Living in a fmall circle of acquaintance, and hav- ing fcarcely any intercourfe with the reft of man- kind, they naturally contracfed fucli prejudices and prepoffeflions as tended to flatter their own vanity, and to increafe their partial regard for that village or tribe of which they were members. But how- ever warmly attached to their kindred and friend:', it could not be expefted that, in their ordinary be- haviour, they would exhibit much delicacy or re- fmement of manners. They were too little ac- quainted with the dictates of prudence and fober reflection, to be capable of reftraining the irregular fallies of palhon ; and too little converfant in the arts of poliflied fociety, to acquire a facility of yielding up their own opinions, and of facrificing their own inclinations and humours, to thofe of their companions. The head of every family, unac- cuftomcd to bear oppofition or controul, demanded an implicit fubmiflion and obedience from ail its f Ibid. c. 14. members. 28 HISTORICAL VIEW OF THE jnembers. When he met with great provocation, it was not unumal for him to take away the life of a fervant ; and this \vas regarded as an exercife of domeftic authority, for which he could not be fub- jecled to any punifhrnent *. Even the feelings of natural affeciion did not prevent the cliiMren from being, in like manner, fubjected to the arbitrary power of the fatiier, and from feeling, on many occafions, the unhappy effects of his cafual difplea- fure. Neither does the condition of the mother appear to have been fuperior to that of her chil- dren : the little attention which, in a rude age, is uiualiy beftowed upon the pleafure of fex, and the jnteriority of the women in ftrength, courage, and military accomplifliments, deprived them of that rank and confequence which they enjoyed in a civi- lized nation. There is great reafon to believe that the hufband commonly bought his wife from her father, or other male relations, and that he conli- dered her in the lisfht of a fervant or flave. If fhe v/as guiity of adultery (a crime which, from the general fmnplicity of manners, was probably not very frequent, but which, by introducing a con-- neclion with a ftranger, was highly prejudicial to the intereft of the family) the puniiliment inflicled by the huiband, was that of ftripping her naked, turning her out of doors, and whipping her through the villao'ef. In the intcrcourfe of different families, and in tiieir comm.on amufements, their behaviour was fuited to the fpirit and difpofition of a martial, but rude and ignorant people. Their military life, which was incompatible with their induflry, pre- vented the growth of avarice, the ufual attendant * " Occidcre folent, non difciplina et feveritate, fed impetu et ira, ut inimicum, niii quod impunc." Tacit, de Mor. German, c 25. f Tacit, de Mof. German, c. 18. 19. The conformity of the German manners withthoieof other barbarous nations, in relation to the condition of women and children, I have endeavoured to illuftr^te, iji a trcatjle en- titled, All Enquiry inta the Or/^'ii of Rai:h, of ENGLISH GOVERNMENT. 29 of confiant labour and application in every lucra- tive profeflion. Their employments were fucli as united them by a common tie, inftead of fuggeft- ing the idea of a feparate intercft, or engaging them in a ftruggle for riches, by which the pur- fuits of every man are, i.i fome meafurc, oppofed to thofe of his neighbour. Their herds and flocks in v^'llich their wealth principally confifted, being under the management and direction of a whole village or tribe, were confidered, in fome fort, as the joint pro- perty of all ; fo far at leaft, as to render individuals Milling on all occafions, to relieve their mutual \\'ants, by iliaring their goods with one another. Hence that hofpitality and generolity which is fo confpicuous among fiiepherd nations in all parts of the vv'orld. " No nation," fays the author above quoted*, " is more hofpitable than the Germans. " They make no difference, in this refpecb, be- " tween a flranger and an acquaintance. When " a perfon has been liberally entertained in one " houfe, he is conducted to another, where he is " received with the fame hearty welcome. If a " gucfl, at his departure, lliould afk a prefent from " his entertainers, it is feldom refufed ; and they " will alk any thing of him with the fame free- " dom. They are fond of making prefents, which " are fcarcely underftood to lay the receiver under '' any obligation." Their military operations, no doubt, required a violent, though an irregular and tranfient exertion ; l)ut upon tlie conclufion of an expedition they were completely at liberty to indulge thcmfelves in reft and idlencfs. From thefe oppofite fituations, they contracted oppofite habits, and became equally reft- lefs and flothful. Wlien not engaged in the field, the warriors difdained to afTift in domeftic onices, they even feldom excrcifed themfelves in Jiunting ; ' Tacit, dc Mor. Germ. 5 2i- but 30 HISTORICAL VIEW OF THE but, leaving the care of their cattle, and of tlieir hoiifhold, to the women and children, or to the old and infirm, they were accuftomed to pafs their time ill liftlefs indolence, having little other enjoy- ment but what they derived from food or from lleep*. That from fuch difpohtions they fouiid creat deliofht in convivial entertainments, and were given to great excelTes in eating and drinking, may eafily be fuppofed. By the pleafures of intoxica- tion, they fought to dillipate the gloom of that languor and w^earinefi with which they were op- preU'ed, and to enliven the barren profpecl which the ordinary courfe of their thoughts and fenti- ments was capable of prcfenting to them. For the fam.e reafon they were addicted to games of hazard ; infomuch that perfons who had loft their whole fortune at play would afterwards, it is faid, ven- ture to ftake their liberty ; and having ftill been unlucky, would voluntarily become the Haves of the winnerf. The praclife of gaming muft have been carried to a high pitch, when faftiion, even among fuch barbarians, had made it a point of Iionour to clifcharge a game-debt of that extraor- dinary nature. It is obfervable, that in countries where men have exhaufted the enjoyments ariling from the pofTeflion of great riches, they are apt to feel the fame want of exercife and occupation, as in that fimple age when they have not yet con- traded thofc habits of induftry by which wealth is * " Quoties brlla non incunr, non iiiultmn vejiationihus, plus per otlura " tranfigunt, dediti fomno, cihoquc. ForiiiRmus iiuil'quc ac bellicofilVunus " nihil agens, deligata domiis ct pcnatium et agronim cura fceminis fenibiifqur , " ci infirminimo ciiique ex familla, ipll hebent : mira diverfitate naturiE, cuHi " iidem honiiiies fic anient incrtiam tt oderint quictem." Tacit, de Mor. Germ. c. J 5. '' Diem noilcniquc continuarc potaudo nulli probrum." Ibid. c. 22. \ Aleam fqiiod mirere) fobrii inter feria cxerccnt, tanta liicrandi peidcn- diqiic tcmeritate, lit cum omnia dcfccerunt, cxtrcmo ac novilbmo jac'lu de libertate et de corpore conttndant. Vidliis voluntariam ftrvitutem adit. f^amvis junior, qu.^mvis roiiuflior, adligari fe ac venire patitur. Ea eft in reprava pcrvicircia : ipli f.dcm vocant. Tac. dc Mor. Germ, c, 24. ac(|u ir cd > ENGLISH GOVERNMENT. 37 acquired ; and they are forced to make life of the fame expedient to deliver them from that iczd'iuni i-itic, M'hich is the moft oppreiTive of all misfor- tunes. The oppofite extremes of fociety appear in this refpecb to coincide; and exceflive gaming is therefore the vice, not only of the moft opulent and luxurious nations, but of the moft rude and barbarous. Among all the German nations, tiie Saxons, who appear to have been fcattered over the peninfula of Jutland, and along the neighbouring fhores of the Baltick Sea, were the moft fierce and barbarous, as they were moft completely removed from that civility and improvement which every \A-here at- tended the progrefs of the Roman arms. Their maritime fituation, at the fame time, had produced an early acquaintance with navigation, and had even qualified them to undertake piratical expedi- tions to feveral countries at a diftance. They had, accordingly, long infefted the coafts of Britain and Gaul ; infomuch that in the former country it was found neceifary, as has been already obferved, to appoint a military officer, with a regular force, to guard againft their depredations. Making allowance, however, for fuch differences as might arife from this peculiarity of fituation, their character and manners were fimilar to thofe of other inhabitants of Germany, and, in general., to thofe of the wandering tribes of fliepherds in every age or country. Upon the whole, when we examine the accounts delivered by the beft hiftorians, concerninp- the an- dent inhabitants of Germany, as well as the Saxons in particular, we find nothing, either in their pub- lic or private inftitutions, or in their habits and ways of thinking, wJiich we can reafonably fuppofe to have occafioned any peculiarity in the govern- ment cftabliflied by the latter in Britain. What- ever peculiarity therefore is obfcrvablc in the Anglo- Saxon 32 HISTORICAL VIEW OFTHE Saxon government, it mull have arifcn from caufes poflerior to the migration of that people into Bri- tain ; from the nature of the country in which they fettled ; from the manner in which their fettle- ments were formed ; or from other more recent events or circumftances. Some writers fondly imagine, that they can dif- cover, in the political ftate of the Saxons, while they remained in their native forefts, the feeds of that conftitution which grew up in England during the government of the Anglo-Saxon princes. With rcfpecf to thofe innate principles of liberty which have been afcribed to this people, it muft be ob- ferved, that in proportion as mankind recede from civilized manners, and approach to the infancy of fociety, they are lefs accuilomed to authority, and difcover greater averlion to every fort of reftraint or controul. In this fenfe the Saxons may be faid to have poffefled a ilronger relifli for freedom than many of the other German tribes ; as the prefent Indians of America, v/ho are mere hunters and fifhers, difcover a ftill freer fpirit than appeared among the Saxons. But as this love of liberty proceeds from the mere want of the common means of improvement, and from no original pe- culiarity of character, it is not likely to be retained by fuch barbarians, after they have opportunities of improving their condition, by acquiring pro- perty, and by extending the connexions of fociety. When the Saxons in Britain became as opulent as the German or Scythian tribes, who fettled in other provinces of the Roman empire^ there is no reafon to believe, that in confequence of their pri- mitive poverty and barbarifm^' they were with more difficulty reduced into a ftate of ilibordina- tion, and fubmiffion to civil authority. The ancef- tors of almoft every civilized people may be traced back to the moil: rude and favage ftate, in which they ENGLISH GOVERNMENT. 33 they have an equal title to be diftinguiflied, as men impatient of aU reftraint, and unacquainted wiili the commands of a fuperior. CHAP. III. Settlenmit of the Saxons in Britain, T H E Saxons accepted with joy and alacrity the propofals made to them by the Britons ; and it appears to have been ftipulated, that they fliould imm.ediately fend a body of ttoops into Britain, to be employed in the defence of the country, and to receive a ftated hire during the continuance of their fervices*. In confequence of this agreement Hengiit and Horfa, two brothers, and perfons of diftinclion among the Saxons, with about fixteen hundred followers, landed in the ifle of Thanet, in the year 449 ; and having defeated the Picls and Scots, confined them, in a Ihort time, within their ancient boundaries. The Saxon troops immedi- ately after were flationed by Voltigern partly upon the confines of the Northern wall, and partly upon the Kentifli coall, the two places that had been ui'ually fecured with garrifons under the late do- minion of the Romans. In fuch a fituation thefe auxiliaries, who formed the principal ftrength of the country, could hardly fail to perceive their own importance, and to entertain the defign of extorting a permanent fettlemcnt from the inha- * Stiillngflcct Ori;». Brit. — — Bcde fay?, that the Saxons firft took occafion to quarrel witli the Britons, by demanding an incrcafc of their al!o~,vaa:cy to *v',hich he gives the name of annona. Hift. Ecclcf. lib, i. c. 15. D bitants. 34 HISTORICAL VIEW OF THE bitants. \Vith this view, Hengift is fliid to have pcrluaded the Britons to hire an additional number of his countrymen, as the only efieclual means for fecurins: themfelves from the future incurlions of the enemy ; and, upon an appHcation for that pur- pofe, was joined by a new body of Saxons, amount- ing to five thoufand men. By this reinforcement he found himfelf fuperior to the disjointed and unM^arHke forces of the country. Having there- fore fecretly concluded a treaty of peace with the Picls and Scots, and pretending that the articles of the orlgnal agreement, with relation to the pay of his troops, had not been obferved, he ventured to throw off the mafk, and openly to make war upon the Britons. His example was followed by other adventurers, among the fame people, who, at the head of different parties, allured by the hope of plunder, and of a new fettlement, invaded the coafts of Britain, and endeavoured toj^enetrate into the country : their attempts were crowned with fuccefs, and the moft valuable part of the Ifland was at length reduced under their dominion. This great event, however, was not accompliflicd without a violent flruggle, nor in lefs than an hun- dred and feventy years ; during which time many battles were fought with various fortune. It is re- markable that, notwithftanding their fears andpufil- lanimity, when firft abandoned by the Romans, the Britons in the courfe of their long-continued conteft with the Saxons, defended themfelves with more ob- ftinate refolution, than, upon the downfal of the Roman empire, was difcovered by any of the other provinces, though fupported by the armies of Rome. The want of any foreign affiftance was, in all probability, the caufe of this vigorous and fpirited behaviour ; as it called forth the excrtiort of their powers, and produced in them a degree of courage and difcipline, which the provinces en- joying ENGLISH GOVERNMENT. 3; joying the protection of the Roman government were not under the fame neceflity of acquiring. We have no full account of the circumftances attending the fettlement of the Saxons in Britain ; but we may form an idea of the manner in which it was completed, from the general fituation of the people, from the imperfect relations of this event by our early hiftorians, and from the more diftinct information that has been tranfmitted concern- ing the fettlement of other German nations, in fome of the Roman provinces upon the continent of Europe. The followers of any particular leader having gained a victory, became the mafters of a certain territory, and enriched themfelves with the fpoil of their enemies. Willing to fecure what they had obtained, they were led afterwards to offer terms of accommodation to the vanquifhed ; with whom they appear, on fome occalions, to have made a formal divifion of their land and other pofleiTions. But even in thofe cafes, where no exprefs treaty of this nature had been formed, the fame effects were produced, from the mere fituation of the comba- tants ; and upon the conclufion of a war, the par- ties were underftood to have the property of the refpective diftricts which they had been able to occupy or retain. Such of the Britons as had been made captives in war were doubtlefs, in confor- mity to the general practice of the ancient Ger- mans, reduced into a flate of fervitude ; but thofe who had efcaped this misfortune refided in the neighbourhood of the Saxons, and often main- tained a friendly intercourfe with them. The ambition, however, and avidity of thefe barbarians, incited them, in a following period, to renew their former holtilities, and thefe were "-ene- rally followed by new victories, and by a farther extention of conqueft. In this manner, after a long courfc of time, the country was completely D 2 fubdued 36 HISTORICAL VIEW OF THE fubducd by thcfe invaders ; and the itncicnt inli.i- bitants were, according to accidental circum- ftances, partly degraded into a ftate of flavery, and partly, by particular treaties, and by long habits of communication, incorporated with the con- querors. From the declamatory rcprefentations of fome early annalifts, the greater part of hiltorians have been led to fappofe, that fuch of the Britons as efcapcd captivity were either put to death by their barbarous enemie^i, or, difdaining fubmifiion, and expecting no mercy, retireci into Wales, or with- drew into the country of Armorica m France, to \\'hich, from them, the name of Breiagne has been given. An acute and induftrious antiquai*)"-, Mr. Whitaker, has lately fliown, I think in a fatisfac- tory manner, that this extraordinary fuppoiition is without any foiid foundation. That many of the Britons were at that period fubjected to great hard- fliips, and, in order to fave themfelves from the fury of their enemies, were even obliged to quit their native country, may be eaiily believed ; but that the Saxons were animated with fuch uncom- mon barbarity, as would lead them, in direct oppolltion to their own intereft, to root out the ancient inhabitants, muft appear highly improba- ble. Of the total extirpation of any people, by the moft furious conquerors, the records of well- authenticated hiftory afford not many examples. It is known, at the fame time, that no fuch cruelty was exhibited by any of the German nations who conquered the other provinces of the Roman em- pire ; and it muft be admitted, that the fituation of all tiiofe nations was very much the fame with that of the Saxons, as alfo that they were a people in all refpecls of fimilar manners and cuftoms* There is even complete evidence that, in fome parts -^f the Iiland, the Britons were fo far from being extirpated, that they were permitted to retain a certain E N G L.I S H GOVERNMENT. 37 certain proportion of the landed property ; and it is remarkable, that this proportion, being a third part of the whole, was the fame with that re- tained by the ancient inhabitants, in fome of thofe provinces, upon the continent of Europe, which were conquered by the otlier German tribes. Tho' in other cafes, the velfiges of fuch early tranfac- tions have not been prcfcrvcd, it is highly proba- ble that a fmiilar divihon of the land was made, either by exprels contracT:, or by tacit agreement. There can be no reafon to believe that the fame Saxons would, in one part of the Kland, exhibit fuch moderation and humanity to the vanquiflied people, and in another, fuch unprecedented fero- city and barbarity. It is further to be obferved, that the language which grew up in Britain after the fettlement of the Saxons, in which a large proportion of the BritiJ]} and the Latin tongues were incorporated with the Saxon, affords a fufficient proof that the inhabitants were compounded of the different na- tions by whom thefe languages were fpoken. When the Saxons invaded Britain, they were entirely a paftoral people ; but as they came into a country which had been long cultivated, they could fcarcely fail to acquire, very rapidly, a confidera- ble knov/ledge of agriculture. Having obtained" a quantity of land that was formerly employed in tillage, and having procured a proportionable num- ber of fervants, already acquainted with the vari- ous branches of hufbandry, it may eafily be ima- gined that they would avail themfeives of this favourable fituation, for the profecution of an em- r>loyment fo conducive to their comfortable fub- liftence- In confequence of a general attention to agricul- ture, tiicyrnuft have been induced to quit the wander- ing life ; lince, i;i order to practice the employment of a farmer with any advantage, a continued refi- dencc 38 HISTORICAL VIEW OFTHE dence upon the fame fpot is neccffary. In the occupancy and appropriation of landed eftates, thofe peribns who had been moft connecTied in war were moft likely to becom^e neighbours ; and every little knot of kindred and friends were commonly led to build their houfes together, that they might be in readinefs to ailift one another in their labour, and to unite in defending their poiTelTions. The villages of German fhepherds were thus converted into villages of hufbandmen, which, in propor- tion to the progrefs of their arms, and to their advances in improvement, were gradually enlarged and fprcad over the country. It fhould feem that, upon the firft fettlement of the Saxons, the whole people were diftributed into little focieties of this kind ; and no individual was fo opulent, that he could expecl to live in fecurity, without maintain- ing an alliance and intimate communication with others. This cuftom of reforting to villages, in- troduced by neceflity, in times of extreme barba- rii'ni and diforder, is even at prefcnt retained by many of the farmers in England ; although from a total change of manners and circumftances, it is evident that a feparate relidence, upon their dif- feient farms, would often be much more con- venient. While the Saxons, by their intercourfe with a more civilized people, were thus excited to a con- fiderable Improvement of their circum.ftances, the Britons were, from an oppofite fituation, degraded in the fame proportion, and continued to hnk in iofnorance and br-rbarifm. Engaged in a defperate coniiid:, in which every thing dear to them was at ftake, and having to cope with an enemy little praclifcd in the refinements of humanity, they were obliged, in their own defence to retaliate thofe injuries which they were daily receivmg ; and by the frequent exercife of depredation, they became inured to rapine and injuitice. The deftruclive v;ars. ENGLISH GOVERNMENT. 39 -u-ars, in the mean time, which were inceflantly kindled, and which raged with fo much violence in every quarter of the country, were fatal to the o-reater part of its improvements. The numerous towns which had been raifed under the proteclion and fecurity of the Roman government, and which now became the ulual refuge of the weaker party, were often facked by the viclorious enemy, and after being gradually depopulated, were at length either laid in ruins, or left in the ftate of infignifi- cant villages. In thefe times of univerfal terror and confufion, the ancient fchools and feminaries of learning were abandoned, and every perfon who cultivated the arts fubfcrvient to luxury and refine- ment was forced to defert thefe ufelefs occu- pations, and betake himfelf to employments more immediately requifite for prefervation and fubfift- ence. In the courfe of two centuries, within which the conqueft of the more accefTiable and va- luable parts of Britain was completed, the monu- ments of Roman opulence and grandeur were en- tirely erazed ; and the Britons who remained in the country, and who retained their liberty, adopted the fame manner of life with their Saxon neigh- bours, from whom they were no longer diftinguifli- able, either by the places of their refidence, or by their ufages and political inftitutions. Thofe conquerors of Britain who received the general appellation of Saxons had ilTued from dif- ferent parts of the German coall, at fome diftance from one another, and belonged to differe';*- tribes or nations : they have been divided, by hiltori- ans, into three great branches, the Angles, the Jutes, and the Saxons, properly fo called. As the leaders of the feveral parties belonging to any of thefe divifions pofTelTed a feparate influence over their own adherents, and profecuted their enterprifes in dilicrent parts of the country, fo they natura,!/ rejected all ideas of fubordination, and endeavoured to 40 HISTORICAL VIEW OF THE to acquire a regal authority; the refult of which was, that, after various turns of fortune, no lefs than feven independent flates, each under its own particular monarch, were at length eftablifhcd. The followers of Henglit and Horfa, compofed of Jutes, acquired a fettlement in the Eaft corner of the liland, and eftabliilicd their dominion in what is now the county of Kent. Different par- ties of the proper Saxons occupied a much larger territory, and laid the foundations of three differ- ent kingdoms. Thofe who, from their fituation, were called the Southern Saxons, eftabliflied them- felves in the counties of Suifex and Surrey ; the Weft-Saxons extended their authority over the counties to the Weftward, along the Southern coaft ; and the Eaft-Saxons took pofleffion of Effex, Middlefex, and a confiderable part of Hertford- fliire. The Anorles were ftill more numerous, and the territories which they occupied were much more exteniive ; by them were formed the king- dom of the Eaft-Angles, in the counties of Cam- bridge, Norfolk, and Suffolk ; that of Northum- berland, extending over all the country which thefe barbarians had fubdued, from the Humber to the Frith of Forth ; and that of Mercia, compre- hending the inland counties, which were in a man- ner included by the other kingdoms of the Hep^ tarchy. In the Weftern part of the Iff and, from the Land's End to the Frith of Clyde, the ancient inhabi- tants * . :re ftiil able to maintain their indepen- dence ; and in this large trad of country were erected four Britifli principalities or kingdoms ; thofe of Cornwall, of South- Wales, of North- Wales, and of Cumberland. To the North of the Friths of Forth and Clyde the Pids and Scots re- tained their ancient poffeflions. The clianges produced in the manners and cuf- toms of the Saxons, by their fett,Iement in Britain, were ENGLISH GOVERNMENT. 41 were fucli as might be expeded, from the grca? change of fitiiation which the people experienced, in paiTing from the flate of fliepherds to th;^t of hufhandmen. As in following the employ- ment of the latter, they neceffarily quitted the wandering life, and took up a fixed refidcjice, they were enabled to acquire property in land ; with Avhich it is probable they were formerly unac- quainted. The introducLion of landed property among mankind has uniformly proceeded from the advancement of agriculture, by which they were led to cultivate the fame ground for many years fucceffively ; and upon the principle that every man has a right to enjoy the fruit of his own labour, became entitled, firft, to the immediate crops they had raifed, and afterwards to the future polleilion of the ground itfelf, in order that they might ob- tain the benefit of the improvement which their long cultivation had produced. In this appropri- ation, of fo great importance to fociety, the Sax- ons in Britain were undoubtedly flimulated, and inftrucled, from the cultivated ftate of the coun- try, as well as from the example of the people whom they had fubdued. This alteration in their circumftances had neccf- farily a mighty influence upon the conducl of their military operations. As a great part of their pro- perty was now incapable of being tranfported, the inhabitants of each village were induced to fortify, in fome degree tlic place of tlieir abode, for the prefervation of their moft valuable effects ; and therefore, in rroincr out to meet an enemv, inftead of carrying alo)ig with them their cattle, an.d otner moveables, and being accompanied by their wives and children, as well as by the aged and infirm (the ufual practice in the paftoral life) none but the ac- tual warriors had occaiion to take the field. The immediate plunder, therefore, aiifing from a vic- tory, was rendered more inconliderable ; and even thii 42 HISTORICAL VIEW OF THE tills the vklors were commonly obliged to fecure at home, before they could conveniently undertake a new enterprize. Thus, after the fcttlement of the Saxons in Britain, they were lefs in a condi- tion to carry on wars at a great diftance ; and they appear to have laid alide, for the moft part, their foreign piratical expeditions. The permanent refidence of the people tended iikewife to open a regular communication between different villages ; the inhabitants of which, by re- maining conftantly in the fame neighbourhood, were led by degrees to contract a more intimate acquaintance. From the acquilition of landed pof- feilions, which by their nature are lefs capable than moveables of being defended by the vigilance and perfonal prowefs of the poffeffor, the neceility of the public interpofition, and of public regulations for the fecurity of property, mull have been more univerfally felt. From thefe caufes, it is natural to fuppofe that the connecT:ions of fociety were gra- dually multiplied, and that the ideas ofjuftice, as well as of policy and government, which had been entertained by the primitive Saxons, were confix dw'ably extended and improved. The introduction of landed property contri- buted, on tlie other hand, to encreafe the influ- ence and authority of individuals, by enabling them to maintain upon their eftates a greater num- ber of dependents than can be fupported by per- i'ons whofe poffefiions are merely moveable. The heads or leaders of particular families were thus raifed to greater confideration ; and, in the refpec- tive communities of which they were members, obtained more completely the exclufive direction and management of public affairs. The influence of the great leader, or prince, by whom they were conducted in their common expeditions, was pro- portioned in like manner, to his private efl:ate, and extended little farther than to his own tenants ; for ENGLISH GOVERNMENT. 43 for which reafon, in the fcveral kingdoms of tlie Heptarchy, the fovereign polTelled a very limited authority, and the principal powers of governnuMit were lodged in a IViltcnagctnotc, or national council, compofed of the independent proprietors, or lead- ing men in the ftate. xUthough the monarchs of thefe different kinp;- doms claimed an independent fovereignty, yet, in their ftruggles with the Britons, they often pro- cured afiiftance from one another, and were com- bined againft the ancient inhabitants of the coun- try, their common enemies. The direction of their forces was, on thofe occafions, committed to fome particular monarch, who, in conducT:ing their joint meafures, was frequently under the neceflity of calling a wittenagemote, or great council, from all the confederated kingdoms. Thus the idea of a permanent union among all the kingdoms of the Heptarchy, and of a leader, or chief magiftrate, at the head of that large community, together with a fet of regulations extending to all its members, was gradually fuggefted : according to the t)pu- lence or abilities of the different Saxon princes, they were, by turn promoted to that fupreme dignity ; which became of courfe, the great objed of their am- bition, and the fource of thofe violent aniniofities which, for a period of about two hundred years, continually fublifted among them. The moft' pow- erful of the ftates belonging to this confederacy were thofe of Weffcx, Mercia, and Northumber- land, to which the reft were gradually reduced into a kind of fubordination ; till at length, about the year 827, the feveral kingdoms of the Heptarchy v/ere fubdued by Egbert, the king of the Weft- Saxons, who tranfmitted to his pofterity the fove- reignty of thefe extenfive dominions. The fame prince extended liis authority over all the Britons on the South lide of the Brillol channel, and be- came mafler of a confiderabic part of Wales, and of 44 HISTORICAL VIEW OF THE of the Cumbrian kingdom. From this time the diitindions among the different Saxon flates v^^ere in a great meafure aboliihed, and the fcveral terri- tories, united under Egbert, received the general name of England ; as the people, from the union of the two principal nations, ruid in contradiftinc- tion to their countrymen in Germany, were called the Anglo-Saxons. Several circumftances appear to have contributed to the accomplifhment of this great rc\'olution. With the bravery and military accomplifhments ufuai among the chiefs and princes of that age, Egbert, who had been educated in the court of Charles the Great, is faid to have united an un- comm.on degree of political knowledge and abili- ties ; his own kingdom, fituated along the Southern coaft of Britain, was probably the moft improved, if not the moft extenfive, of thofe which had been erected by the Anglo-Saxons. In almoft ail the other kingdoms of the Heptarchy, a failure of the lineal heirs of the crown hadgi\^en rife, among the principal nobility, to aconteft about the fucceiTion : Northumberland, in particular, was weakened by inteftine diforders, and in no condition to refift a foreign power ; fo that by the conqueft of Mercia, the only other in4ependcnt ft ate, the king of Wef- fex was left without a competitor, and found no difficulty in eftablilliing an univerfal fove- reignty*. TheVe can be no doubt that the reduction of all thefe different kingdoms into one monarchy con- tributed to improve the police of the country, anci to civilize the maimers of the people. The fcene of * It mufl not however be fiippofed that the power of all the kings of the Heptarchv was at this period entirely deflroycd ; they retained a fubordi- nate authority, founded upon their great property. The Princes cf Nor- thumberland and Mercia frill retained the title of' khig ; and in the reign of Alfred we find them aill claiming independence— See William of Malmf- Uurv. anarchy ENGLISH GOVERNMENT. 45 anarchy and violence which was conftantly cxlii- bited during the conqueft of Britain by the Saxon> was incompatible with any attention to the arts oi' civil lite, and in a great meaiure extinguiilied the remains of Roman improvement. The beginning of the fevcnth century, which falls about the con- clufion of that period, may, therefore, be regarded as the 3era of greateft darknefs and barbarifm in the modern hiftory of Britain. The advances, how- ever, that were made, even after this period had elapfed, were very flow and gradual. So long as the country was divided into a number of petty Hates, independent of each other, and therefore often engaged in mutual hoftilities, the perfons and property of individuals were not fecured in fuch a manner as to encourage the exercife of ufeful employments. It appears, indeed, that the monarchs In feveral of thofc kingdoms were anxious to prevent difor- ders among their fubje<5ls, and, with the afllftance of their national councils, made a variety of fta- tutes, by which the punifliment of particular crimes was defmed with great exaftnefs. Such were tlie laws of Ethclbert, and fome of his fucceffors, in the kinp-dom of Kent ; thofe of Ina, the kino: of the Wefl-Saxons ; and OfTa, of the Mercians*. Thefe regulations, however, were probably of little avail, from the numerous independent ftates into which the country was divided, becaufe an offen- der might eafily cfcape from julHce, by taking fanc- tuary in the territories of a rival or hoftile nation ; but when the different kingdoms of the Heptarchy were united under one fovereign, private wars were more effeclually difcou raged ; juftice was fomewhat be'.t-er adminiftcred ; and the laws eftab- lifhed throughout the Anglo-Saxon dominions were * See the Concf^ibos of fhe two former, in WiJkinj Leg. Anglo-Sax. — The laws of king OlTa'liayc riot been prefer vcd. reduced 45 HISTORICAL VIEW OF THE reduced to greater uniformity. We are not, how- ever, to imagine that, from this period, the fame regulations in all rcfpecls were extended over the whole Englifli monarchy. The fyftem of private law, being formed in good meafure by long ufage, was nccelTarily different in different diftricls ; and the cuftoms which prevailed in the more coniidera- ble had obtained a currency in the fmaller ftates of the Heptarchy. Thus we find that the law of the Weft Saxons was extended over all the ftatcs on the South fide of the Thames*, while the law of the Mercians was introduced into feveral territories adjacent to that kingdom f. In a fubfequent period a third fet of regulations, probably a good deal dif- ferent from the two former, was adopted in the Northern and Eaftern parts of the country. CHAP. IV. Similarity in the Situation of the Anglo-Saxons, and of the other Barbarians who fettled in the Provinces of the Weflern Empire. — How far the State of all thofe Nations differed from that of e-very other People, ancient or modern. URING the fame century in which the Anglo- Saxons began their fettlements in England, the other provinces of the Vv^'eftern empire were in- vaded by a multitude of rude nations, from Ger- * Called Weftfaxenlaga. •)• Called Mercenlaga. The inhabitants were denominated, from the kind of law which they obferved. See Ran. Higdan Polychron. — In France the Pais de Droit ccrit, and the Pais des Coutumes, were diftinguillitd from a fimilar circumftance. many ENGLISH GOVERNMENT. 47 iTtany and the more Eaftcrly parts of the world. Allured by the profpeft of booty, thefe barbarians had long made accidental incurfions upon the fron- tier provinces ; and having, by repeated fuccciTes, difcovered the weaknefs of the Roman ftate, they at len^-th endeavoured to 2:ain more folid advan- tagcs, by fettling in the countries Avhich they had fubducd. The Roman emperors were not only obliged to fubmit to thefe encroachments, but were even forced, in many cafes, to enter into an alliance with thofe invaders, to employ them as auxiUaries in the armies of Rome, and to beftow upon them landed pofl'efiions, upon condition of their defending the country. But thefe were merely temporary expedients, which in the end contributed to increafe the power of the barba- rians. Different fwarms of thefe people advancing in fuccellion, and pufliing each other forward in (Jueft of new polfeffions, continued to penetrate into the Roman dominions, and at laft entirely over-ran and difmembered tlie Weftern provinces. The Franks, the Burgundians, and the Wifigoths fettled in Gaul. Another branch of the Wifigoths eftablifhed their dominion in Spain. Africa became a prey to the Vandals. Italy, for a long time the center of Roman wealth, and of Roman luxury, invited, in a particular manner, the attacks of poverty and barbarifm ; and after it had fuffered from the fuc- ceflive inroads of many different nations, a great part of the country was fubjected to the Oftrogoths, and in a fubfcquent period, to the Lombards. As the original manners and cuftoms of all thefe nations were extremely analogous to tliofe of the Saxons in England, and as their conqueft and fetle- ment in the Weftern empire were completed nearly in the fame manner, it was to be cxpefted that they would fall under a fimilar government. It has happened, accordingly, that their political in- ftitutions are manifeftly formed upon the flime plan, and prefent, to the moft carclcfs obfcrver, the fame afpect 48 HISTORICAL VIEW OF THE afpecl and leading features, from which, as in the children of a family, their common origin may clearly be difcovered. They differ, no lefs remark- al^ly, from all the other fyliems of policy that have been recorded in ancient or modern hiftory. It may be wortli while, therefore, to examine the caufes of the uniformity, fo obfervable among all thofe nations, and of the peculiarities, by which they are fo much diiiinguiflied from the other in- habitants of the world. In this view, there occur five different circumftances, that feem to merit at- tention. I. The fettlement of the barbarous nations, upon the Weftern continent of Europe, as well as in England, was effecied by the gradual fubjeclion of a more civilized people, w^ith whom the conque- rors were at length completely incorporated. The rude and ignorant tribes who fubdued the Roman provinces, were too little connected with cue another, and too little accuftomed to fubordi- nation, to unite in profecuting any regular plan of conqueii ; but, according as they were excited by provocation, or met with any encouragement, they made occafional inroads, with different de- grees of fuccefs ; and when they had over-run a particular diftricl, they commonly chofe to remain in the country, and frequently concluded a treaty of peace with the ancient inhabitants. Having, on thofe occafions, become mafters of 2. large territory, which had been long occupied in tillage, and having, by repeated victories, obtained 3. number of captives, whom they reduced into ilaveiy, they found it an eafy matter to employ their flaves in cultivating the land which they had procured. In this lituation they foon made fuch progrefs in agriculture, as determined them more and more to relinquifh their wandering life, and apply themfelves to the acquilition of feparate landed effates. By their intercourfe, at the fame time, with ENGLISH GOVERNMENT. 49 with filch of the old inhabitants as retained their freedom, they neceffarily acquired a variety of knowledge, and became acquainted with many of the common arts of life to which they had formerly been ftrangers. It was not to be expected, however, that thcfc barbarians would long remain at reft ; or that they would have any difficulty in finding pretences for quarrelling with a people whom they meant to ftrip of their poiTeffions. In a courfe of time, therefore, new animolities broke out, which were followed by repeated military enterprizes, attended with limilar circumftances ; till at laft, by fuccef- iive extenfions of territory, and after feveral cen- turies had elapfed, the whole of the Weftern em- pire was difmembered, and reduced under the power of thefe invaders. The events by which this great revolution was accomplifhed, could not fail to produce very oppo- fite effects upon the ancient inhabitants of the country, and upon the new fettlers. The former, while, in confequence of the violence and diforder which prevailed, and of their intercourfe with the barbarians, they funk very rapidly into poverty and barbarifm, communicated, in their turn, to the latter, a few great lines of that cultivation, w^hich had not been entirely effaced among them- felves. In the end, thofe two fets of people were entirely blended together ; and their union pro- duced fuch a compound fyftem of manners and cuftoms, as might be expected to refult, from the declining ftate of the one, and the rifing ftate of the other. The deftruction of the Roman provinces ftruck out, in this manner, a fudden fpark of improve- ment, which animated their victorious enemies, and quickly pervaded the new ftates that were founded upon the ruins of the Weftern empire. In the earlieft accounts of the modern kingdoms E of so HISTORICAL VI EY/ OF THE of Europe, we find the people, thcugh evidently retaining very deep marks of their primitive rude- nefs, yet certainly much advanced beyond the fnnple ftate of the ancient Germans. Their huf- bandry, no doubt, continued for ages in a very lov/ and imperfect condition, infomuch that exten- iive territories were often permitted to lie v*-afte and defolate ; yet fach as it was, it procured the neceffaries of life in greater plenty, and produced of courfe, a more univerfal attention to its conveni- encies. Their permanent reiidence in one place gave room and encouragement to the exercife of different employments, from which, during their former migrations, they were in a great meafure excluded. Their houfes were built of more lailins; materials, and rendered more commodious, than the moveable huts in which they formerly fliel- tered themfelves. Particular perfons, having ac- quired very great landed eftates, were enabled, by the remaining Ikill of Roman artificers, to erecl' fuch fortreffes as Vv^ere fufHcient to defend them from the fudden incurfions of an enemy ; and lived, in fuitable magnificence, at the head of their tenants and domeftics. The numerous, and opu- lent towns, which had been fcattered over the do- minions of Rom^c, though they fuffered greatly in the general wreck of the empire, were not, how- ever, univerfally deilroyed or deferted ; and fuch of them as remained, were frequently occupied and inhabited by the leaders of the conquering tribes. In thefe, and even throughout the whole of the country, that policy, which had become fa- miliar to the old inhabitants was, in many relpecls, continued ; and in the early codes of laws, col- lected by the princes of the barbarous nations who fettled in the Weflern empire, we often difcover a clofe im.itation of the Roman jurifprudence. In thefe particulars, the fituation of the modern ftates of Europe appears to have been a good deal difilTent ENGLISH GOVERNMENT. 51 different from that of every other nation, of whom any accounts have been tranfmitted to us. In many parts of the world, the rude inhabitants have continued unconnected with any other people more improved than themfelves ; and have therefore ad- vanced very flovN'ly in the knowledii^e of arts, as well as in the progrefs of the focial life. From the remoteft period of antiquity, the Arabs and Tartars have remained for the moft part, in a paftorai ftatc ; and are ftill almoft entirely ignorant of hufbandry. The Indians of America ftill derive their principal fubfiftence from hunting and fifhing ; and are in a great meafure ftrangers to the invention of taming and rearing cattle. In early ages men are deftitute of fagacity and refleclion, to make ufe of thofe difcoveries which fortune may throw in their way ; and their improvemient is much retarded by thofc habits of floth which, being foftered by the primi- tive manner of life, are not to be overcome with- out extraordinary incitements to labour and appli- cation. Among the inftances, preferved in hiftory, of nations who have acquired a connection \\'ith others, by means of a conqueft, we meet with none that are fimilar to thofe exhibited in Europe, during the period which we are now confidering. The conqueft in Afia, by Alexander and his fuc- cefTors, was that of one opulent and civilized people over another ; and produced no farther alteration in the Greek ftatcs, but that of infpiring them with a tatte of Aiiatic luxury and extravagance. The firft military efforts of the Romans were employed in fubduing the fmall neiglibouring ftates of Italy, whom they found in the fame bar- barous condition with themfelves ; and they had become a great nation, firmly eftabliflied in their manners and political fyftcm, before they directed their forces againft the refined and cultivated parts of the world. Befides tlic Roman virtue dijfdained, E 2 for 52 HISTORICAL VIEW OF THE for a long time, to imitate the talents and accom- plilliments of the people they had fubdued. China, and fome other of the great Afiatic king- doms, have been frequently over-run and con- quered by feveral hords of Tartars, accidentally combined under a great leader ; but the conqueft, in thefe cafes, was not carried on flowly and gra- dually, as in the provinces of the Weftern empire : it was completed by one or two great and rapid victories ; fo as, on the one hand, to prevent the learning and civilization of the vanquiflied people from being deftroyed by a long-continued courfe of war and devaftation ; and, on the other, to prevent the conquerors, by long neighbourhood and acquaintance, from being incorporated with the former inhabitants, in one comm.on fyftem of manners, cuftoms, and inftitutions. Thefinal fuccefs, therefore, of the victorious army, produced no farther revolution, than by fuddenly advancing their General, together, perhaps, with fome of his principal officers, to the head of a great and civi- lized empire ; of which the native country of the conquerors became only a tributary province. The fame obfervation is applicable to the domi- nion acquired by Mahomed, and fome of his im- mediate fucccflbrs ; which was not eftabliihed by a gradual fettlement of Arabian tribes, in the rich countries of Afia ; but by a rapid conqueft, that gave rife to no intimate coalition of the viciors w^ith thofe who fubmitted to the Mahometan yoke. No other change, therefore, was produced in the ftate of conquered nations, than what arofe from fubjccting them to a new religion, and a new fet of monarchs ; while the wandering Arabs, the origi- nal followers of Mahomed, remained, for the moft part, in their primitive ftate of barbarifm. The conqueft of the Saracens, and of the Eaftern em- pire, by the Turks, had a greater refemblance to the progreffive inroads of thofe who conquered the Weftern ENGLISH GOVERNMENT. 53 Weftern provinces ; but it was for from proving equally deftruclive to the former civilization of the conquered people, or from reducing them to the level of their barbarous conquerors. 2. The German or Gothic nations, who fettled in the V/eftcrn part of Europe, were enabled, in a ihort time, to form kingdoms of greater extent, than are ufually to be found among people equally rude and barbarous. Of all the arts vv'hich contribute to improve or embelliHi fociety, that of government requires the inoft ■ enlarged experience and obfervation ; for which reafon, its progrefs towards perfection is nroportionably gradual and flov/. In that fim.ple age, in v*'hich labour is not yet divided among fe- parate artificers, and in which the exchange of commodities is in a great meafure unknovvm, indi- viduals, who refide at a diftance from one another, have no occafion to maintain an intimate corref- pondencc, and are not apt to entertain the idea of eftablifhing a political connection. The inhabitants of a large country are then ufually parcelled out into feparatc families or tribes, the members of which have been led, by necefiity to contract habits of living together, and been reduced under the authority of that leader who is capable of protccT:- ing them. Thefc little communities are naturally independent, as v/ell as jealous of one another ; and though, from the dread of a common enemy, they are Ibmctimes obliged to combine in a league for mutual defence, yet fuch combinations are ge- nerally too cafual and fluctuating to be the founda- tion of a comprehendve and permanent union. But thofe barbarians who conquered the Weftern empire were quickly induced, and enabled, to form extenijve aifociations ; partly from the circumftan- ces attending their conqueft ; and partly, from the ftate of the country in which they formed their iettlcmcnts, With 54 HISTORICAL VIEW OF THE With refpect to the circumftances attending their conqueft, it is to be obferved, that their tribes were far from being large or numerous, and that they over-ran and fubdued a very large tract of coun- try ; in confequence of which, the members of the fame tribe were enabled to occupy great landed eftates, and came to be fettled at a proportionable diftance from one another. Individuals who had belonged to a fmall community, and who had been accufiomed to fio:ht under the fame leader, Vv^ere thus difperfed over an extenlive territory ; and notwithftanding this change in their fituaticn, were naturally difuoled to retain their former connec- tions and habits. The notion of uniting under a lino-le chief, which had been eftablifhed among: the members of a wandering tribe of fliepherds, con- tinued, therefore, to operate upon the fame people, after they had acquired ample poifeilions, and had reduced multitudes under their dominion. The extent of the kingdom.s, erected by thofe barbarous nations, was likewife affected by the ftate of each Roman province, in v/hich their fettlements w^ere made. As every Roman province conftituted a part of the whole empire ; fo it form.ed a diflinct fociety, influenced by national views, and direfted by a fe- parate intereft. Among the inhabitants of the fame province, united by their local fituation, by the ties of friendihip and acquaintance, and even by that com.m.on fyftem of oppreffion to v/hich they were fubje6l, a regular intercourfe Vvas conilantly maintained. Thofe Vv^ho lived in villages, or in the open country, carried en a variety of tranf- aclions with the feveral towns in the neighbour- hood, where they found a market for their goods, and VvTre fupplied with thofe conveniencies which they required. The inhabitants of thefe towns, and of the whole province, were, at the fame time, clofely conneded with the capital, where the go- vernor ENGLISH GOVERNMENT. 55 vernor relided in a kind of regal pomp and magni- Ticence, and directed the various wheels and fprings of adminiftration. Here the public money, accu- mulated from different parts, was again diftributcd through the various channels of government ; and hither men of all defcriptions, the poor and the rich, the idle and the induUrious, were attracted from every quarter, by the views of profit, of plea- fure, or of ambition. The changes which at different periods were made in the political conftitution of Rome, pro- duced no great alteration, as has been already ob- ferved, either in the extent or condition of her provincial governments. The ancient boundaries of the pro\'inces appear to have been generally retained under the later emperors ; though, in order to fecure the public tranquillity, they were often fubdivided into particular diftricls, which were put under the direclion of fubordinate offi- cers. The connections, therefore, between the fe- veral parts of the fame province, were gradually ftrengthened from the length of time during which they had fubfifted. As, by the conqueft of thofe countries, the an- cient inhabitants were not extirpated, it is natural to fuppofe that their former habjts of intercourfe were not obliterated and forgotten ; but, on the contrary, were in fome degree communicated to the conquerors. They who had lived under the fame government were ftill difpofed to admit the authority of a fmgle perfon, and to remain in that ftatc of union and fubordination to v/hich they had- becn accuftomed. Particular chiefs having occu- pied the remaining towns belonging to a Roman province, were of courfe rendered mafters of the adjacent territory ; and he who had fet him/elf at the head of the moft powerful diftrict, v/as in a fair way of becoming fovereign of the whole. It ^6 HISTORICAL VIEW OF THE It may alfo be worthy of notice, that as the con- quering tribes adopted a number of the Roman inftitutions, their principal conductor was fre- quently in a condition to avail himfelf of that au- thority, however declining, which the Roman go- vernment continued to maintain ; and by affum- ing, or maintaining, the dignity which had be- longed to the chief m.agiilrate of a province, was enabled with greater facility to extend his domi- nion over the territories which had formerly ac- kowledged the jurifdiclion of that officer. Thus we find that Clovis, vv^ho conquered a great part of Gaul, was, near the end of his reign, invefted with the title of confid, and probably with that of pro-conful, by the emperor Anaftafms ; and that the pOilerity of Clovis were at the pains to procure, from the emperor Juftinian, a reiignation of all the rights of the empire over that nominal branch of his dominions *. In like manner Theodoric, the king of the Oilro- goths, who had been invefted, in the Eaftern em- pire, v/ith the title of patrician and confute and who had obtained for himfelf and his followers a fettle- ment in Thrace, was afterwards commillioned by the emperor Zeno to conquer Italy, and to take polTcmon of the country-}-. From thefe caufes, countries at a great diftance from one another were forced into a fort of poli- tical union : and the boundaries of a modern king- dom came, in moft cafes, to be nearly of the fame extent with thofe of an ancient Roman province. As Italy, which comprehended the numberlefs villas, and highly-cultivated pleafure grounds, be- longing to the opulent citizens of Rome, was the obi eel: of more attention than thofe parts of the empire which lay at a greater diftance, it was early » Hifl. de I'Etablifi'emcnt de la Alon. Fran, par I'Abbe Du Bos. liv. 4. ch. 18. liv. 5. ch. 7. •j- Ibid. liv. 4. ch. 3. fubjecled ENGLISH G O V E R N M E N T. 57 fubjecled to a more accurate police, and divided into fmaller diftricls. It was diftributcd, by Au- guftus, into eleven regions ; and in the time of the emperor Adrian that country, together with Sicily, Sardinia, and Corfica, included no lefs than feven- teen divifions. The fmallnefs of the diftricls into which it was thus broken by the Roman govern- ment had, no doubt, an influence upon the new arrangements which it underwent from the inva- iion of the barbarians ; and made it fall more eafily into a number of petty ftates, under the feveral dukes, or nobles, who alTumed an independent authority. In England, though the moft part of the territo- ries which had compofed the ancient Roman pro- vince were at laft united in one kingdom, yet this union was effected more flowly, and with greater difficulty, than in m.any of the other European countries. The fettlcment of the Ansflo-Saxons O was produced in a different manner from that of the other German nations who fettled upon the continent of Europe. As the expeditions of the latter were carried on, for the mofl: part, by land, it was ufual for the whole of a tribe or nation to advance in a body, and after they had defeated the Roman armies, to fpread themfelves over the ex- tenfive territory which fell under their dominion. The original connections, therefore, among the in- dividuals of the conquering nation, co-operated with the circumftance of their fettling in the fame province, to facilitate their reduction, either by conqueft or confederacy, under one fupremc leader. The naval incurfions of the Anglo-Saxons were, on the other hand, made by fmall detached parties, collected occafionally by any fmgle adventurer, who, for the fake of a precarious fettlemcnt, was willing to relinquifli his kindred and acquaintance. The followers of every feparate leader were there- fore too inconfidcrabic to occupy great landed pof- feilions ; 58 HISTORICAL VIEW OF THE fefiions ; and as they invaded England at different times, and in different places, with fcarce any pre- vious concert, and with little attachment to one another, they difcovered fo much the ftronger dif- pofition to remain in feparate ftates, and to pre- lerve their primitive independence. From thefe circumftances, we may account for the diviiion ct England into fo many independent kingdoms ; which were not* reduced under one monarch till between three and four centuries after the hril fet- tlement of thofe invaders. 3. The great extent of the kingdoms that were formed upon the ruins of the Weftern empire, to- gether with the rudenefs of the people by whom they were eftabliflied, appears to have occalioned that fyftem of feudal tenures, which is commonly regarded as the moft diftinguilhing peculiarity in the policy of modern Europe. The difpofition to theft and rapine, fo prevalent afnong rude nations, makes it neceffary that the members of every family fliould have a v/atchful eye upon the conducl of all their neighbours, and Ihould be conftantly upon their guard to preferve their perfons from outrage, and their property from depredation. The firft efforts of civil govern- ment are intended to fuperfede this neceffity, by punilhing fuch offences, and enabling the indivi- duals of the fame community to live together in peace and tranquillity. But thefe efforts, it is evi- dent, are likely to be more effectual in a fmall ftate than in a large one ; and the public magiftrate finds it much more difficult to extend and fuppbrt his authority over a multitude of individuals, dif- perfed through a wide country, than over a fniall number, confined to a narrow difi:ricl:. It is for this reafon that government has commonly been fooner eftabliilied, as well as better modelled, in commu- nities of a moderate fize, than in thofe which com- prehend the inhabitants of an extenfive region. In ENGLISH GOVERNMENT. 59 In proportion to the great number of people, and the great extent of territory, in each of the modern European kingdoms, the advances of au- thority in the public were flow, and its capacity of redraininir violence and diforder was limited. The different families of a kingdom, though they ac- knov/iedged the fame fovereign, and were direciied by him in their foreign military enterprizes, were not, upon ordinary occafions, in a fituation to feel much dependence upon him. Acquiring great landed poiTeffions, and reliding at a diftance from the capital, as well as in places of difficult accefs, they v>ere often in a condition to fet the whole power of the crown at defiance ; and difdaining to fubmit their quarrels to the determination of the civil magilirate, they affumed a privilege of re- venging with their own hands the injuries or in- dignities which they pretended to have fuffered. When not employed therefore, in expeditions again if a public enemy, they were commonly engaged in private hoftilities among themfelves ; ancl from the frequent repetition of which there arofe animofities and feuds, that were only to be extinguiflied with the life of the combatants, and that, in many cafes, were even rendered here- ditary. In fuch a ftate of anarchy and confufion, the ftrong were permitted to opprcfs the weak ; and thofe who had mioft power of hurting their neighbours, Vv'ere the moft completely fecured from the puniliiment due to their oflences. As the individuals of a nation were thus defti- tute of protection from government, they were imdcr the necefiity of defending themfelves, or of feeking protection from one another ; and the little focicties com.pofed of near relations, or formed ac- cidentally by neighbourhood and acquaintance, were obliged to unite in the moft intimate manner, to repel the attacks of their numerous enemies. The poor were forced to llicUer themfelves under the influence 6o HISTORICAL VIEW OF THE influence and power of the rich ; and the latter found it convenient to employ a great part of their wealth, in order to obtain the conftant aid and fupport of the former. The head of every family was commonly furrounded by as great a number of kindred and dependents as he was capable of maintaining; thefe Vv'ere accuftomed to follow him in war, and in time of peace to fliare in the rural fports to which he was addicced ; it was their duty to efpoufe his quarrel on every occafion, as it v/as incumbent on him to defend them from injuries. In a family fo fmall, that all its members could be maintained about the fame houfe, a mutual obliga- tion of this kind was naturally underftood from the fituation of the parties ; but in larger focieties it was rendered more clear and definite by an ex- prefs agreement. A man of great opulence diftri- buted part of his demefne among his retainers, upon condition of their performing military fer- vices ; as, on the other hand, the fmall proprietors in his neighbourhood, being incapable of maintain- ing their independence, were glad to purchafe his protection, by agreeing to hold their land upon the fame terms. Hence the oriQ:in of vairalao:e in Europe, the nature of which will be more parti- ticularly explained hereafter. Every confiderable proprietor of land had thus a number of miiitaiy fervants, who, inftead of pay, enjoyed a part of his eftate, as the reward of their fervices. By this diftribution and arrangement of landed pofTefiions, the moft natural remedy was provided for the evils arifing from the weaknefs of government. Men of inferior ftation, who lingly were incapable of de- fending their perfons or their property, obtained more fecurity, as well as confideration, under their refoective fuperiors ; and the inhabitants of a large territory, being combined in focieties, who had each of them a common intereft, were in a better condition ENGLISH C O V E R N M E N T. 6i condition to refift the general tide of violence and oppreflion. From thefe obfervations we may difcover how far the connections between the fuperior and the vailal, and the various parts of what is called the feudal fyllem, are peculiar to the modern ftates of Europe, or beloncr to them in common with • other na- tions. In Greece and Rome, or in any of the fmall ftates of antiquity, there are few or no traces to be dif- covered of the feudal inilitutions. From the in- confiderable number of people collecled in each of thofe ancient ftates, and from the narrownefs of the territory which they inhabited, the govern- ment was enabled, at an early period, to extend its protection to all the citizens, fo as to free them from the neccffity of providing for their own fafety, by aflbciating themfelves under particular military leaders. If any fort of vafTalage, therefore, had been introduced in the infancy of thofe nations, it appears to have been abolillied before they were poffefled of hiftorical records. In many rude nations of greater extent, both in ancient and modern times, we may difcern, on the contrary, the outlines of the feudal policy. This, if we can truft the relations given by travellers, is particularly the cafe at prefent in feveral of the kingdoms in Afia, and upon the Southern coaft of Africa. In thefe kingdoms, the number of barba- rians, collected under one fovercign has probably rendered the government fo feeble, as to require a number of fubordinate alTociations, for the pro- tection of individuals ; but the coalition of diffe- rent families being neither fo extenfivc, nor pro- duced in the fame rapid manner, as in the modern ftates of Europe, the regulations to which it has given occafion are neither fo numerous and accu- rate, nor have they been reduced into fo regular a fyftem. 4. The ()2 HISTORICAL VIEW OF THE 4. The cullom of duelling, and the peculiar no- tions of honour, which have fo long prevailed in the modern nations of Europe, appear to have arifen from the fame circumftances that produced the feudal inftitutions. The political eftablifliment, in all thofe nations, was, for a long time, incapable of preventing the unlimited exercife of private hoililities ; and every family, being expofed to invalion from all its neigh- bours, was obliged to be conftantly in a pofture of defence. In thefe circuiliftances, the military fpirit of the people was not only raifed to a high pitch, but it received a peculiar direction, and was at- tended with peculiar habits and opinions. In a war between two t;ci°eat nations, when Iar2:e and well-difciplined armies are brought into the iield, there is little room for individuals to acquire diftinftion by their exploits ; and it is only expected of them, that, like the parts of a complex m.a- chine, they ihould perform with fbeadinefs and regularity, the feveral movements for which they ^re deftined ; neither are thofe udio belong to the cppofite armies likely to entertain much perfonal animofity, the national quarrel being loft in that promifcuous multitude among whom it is divided. But in the private wars that took place between the feveral families of modern Europe the cafe v/as very difierent : for the number engaged upon either fide was commonly fo fmall, and they had fo little of military difcipline, that every fmgle perfon misfht act a diftinouifhed part, and in the time of action was left in fome meafure to purfue the dic- tates of his own bravery or prudence ; fo that a battle confifted of little more than the random combats of fuch particular warriors as vv^ere led by inclination or accident to oppofe one another. The natural confequence of fuch a iituation was to pro- duce a keen emulation between the individuals of the fame party, as well as a ftated oppoiition, and often ENGLISH GOVERNMENT. 63 often a violent animofity, between thofe of different parties. In a long courfe of hoftilities, the lame perfons were often led to encounter each other ; and having fought (perhaps on diflcrent occafions) with various fuccefs, vrerc at length excited by a mutual challenge to a com^parative trial of their ftrength, courage, or Ikill. By repeated ftruggles of this nature a continual jealoufy was kept up be- tween the members of different families, v»^ho in prcfecuting their quarrels became no lefs eager to iupport their military character, and to avenge any infult or indignity, than to defend their pollef- lions. The private wars between different families, which gave rife to mutual emulation and jealoufy, as well as to violent animofity and refentm.ent, continued in Europe for many centuries, notvvdthftanding that fome improvements v/ere made by the people in the common arts and modes of living. To afTaiiinatc thofe from whom great provocation had been received was, among the primitive con- querors of the Roman empire, a method of re- venge purfued u-ithout fcruple, and beheld with- out cenfure. By degrees hov/ever the love of mi- litary glory prevailed over the gratification of re- fentment, and thofe who aimed at maintainin?- the rank of gentlemen became afhamed of taking an unfair advantage of an enemy, which might imply a confeffion of inferiority in prowefs ; but thought it incumbent upon them, whatever was the quarrel, to invite him to an open conteft, in which the fu- periority might be decided upon equal terms. Thus the practice of duellings the moft refined fpecies of private vengeance, was rendered more and more fafliionable ; and in every country of Europe, ac- cording to its progrefs from barbarifm, allaflina- lion became lefs frequent, and was held in greater detcfi:ation. In Spain and Portugal, the ieaft im- proved of thofe countries, it never has been com- pletely 6'4 HISTORICAL VIEW OF THE pletely extirpated ; and the inhabitants have not yet attained that refinement of the feudal manners, v/hich the reft of Europe, from a ftiil higher pitch of improvement, are nov/ feeking to lay afide. So far was the government from reftraining the cuftom of duelling, that the efforts of the civil magiftrate tended rather to encourage it. Thofe who had fuftained an affront thought it difhonour- able to apply for redrefs to a court of juftice ; but when a difpute had arifen in matters of property, and had become the fubjecf of a law-fuit, it fre- quently happened, that in the courfe of the debate the parties, by their proud and infolent behaviour, affronted each other ; which made thetn withdraw their caufe from the court, in order to determine it by the fword ; the judge was unable to prevent this determination, but he endeavoured to diminifh the bad confequences that might arife from it. By regulating the forms of the encounter, and fuperin- tendino^ the ceremonies with w^hich it was con- dueled, he availed himfelf of the punctilios of ho- nour which fafhion had eftablifhed, and reftrained the friends of either party from interfering in the quarrel. Hence the judicial combat^ which has been erroneoufly confidered by fome as the origin of duelling, but which undoubtedly tended to fupport and extend the practice, by giving it the fandion of public authority. It has, accordingly, been ob- lerved, that as, in a judicial controverfy, the mofl common provocation conlifted in the parties con- tradicting each other in point of fact ; fo giving the lye has become that fort of offence, on account of which cuftom has rendered it moft indifpenfably neceffary to require fatisfaclion by fighting. The inftitutions of chivalry, and the joujis and tournaments, were the natural appendages of the cuftom of duelling, or rather of that Hate of man- ners which 2:ave rife to it. In E N G L I S H GOVERNMENT. 65 In the battles of the feudal ages, men of opu- lence and rank enjoyed many advantages over the common people, by their fighting on horfebackj by the luperior weapons and armour which they made ufe of, and above all, by that fkill and dexte- rity which they had leifure to acquire. To im- prove thefe advantages was the great object of the gentry, who from their early years devoted them- Iclves to the profelTion of arms, and generally be- came attached to fome perfon of experience and reputation, by whom they were trained up and in- ftrucled, not only in the feveral branches of the m.ilitary exercife, but in all thofe qualifications that were thought fuitable to their condition. To en- courage thefe laudable purfuits, a mark of diftinc- tion was beftowed upon fuch as had gone through a complete courfe of military education, and they were admitted, with peculiar ceremonies, to the honour of knighthood : from which their proficiency in the art of war, and in the virtues and accompiifh- ments connected with that employment, were un- derftood to be publickly afccrtained and acknow- ledged. Among the multitude of knights belonging to every country, who became profelTed candidates for fame, and upon that account rivals to OJie ano- ther, military fports, that afforded an opportunity of difpiaying thofe talents upon which the charac- ter of every gentlem.an chiefly depended, were of courfe the favourite entertainments. All thefe be- came the ordinary paftime among private perfons, fo they were exhibited, on particular occalions, by princes and men of high rank, with great pomp and folemnity. The tournaments were the greater and more public exhibitions, the joujis were thofe of an inferior and private nature ; to both of which all who enjoyed the dignity of knighthood were made welcome : they were alfo invited to that round table, at which the mafter of the ceremony enter- F tained 66 II I S T O R I C A L V ! E W O F T II E tained his company, and of which the figure is faid to have been contrived on pufpofe to avoid any difpute concerning; the precedence of his guefts. Thefe public fpeclacles were begun in France under the kings of the fecond race ; and v^ere thence, by imitation, introduced into the other countries of Europe. They are faid to Iiave been firft: known in Encirland, durinu; the reio-n of Ste- phen, and to have been rendered common in that of Richard the Eirft. There can be no doubt that thefe inilitutions and practices, by M^hich badges of diftinction were given to military eminence, and by which numbers cf individuals were brought to contend for the prize of ikill and valour, would contribute to fwell and diffufe the idea of perfonal dignity by which they were already elated, and to inflamxc that mutual iealoufy by which they were fct in oppoiition to one another. The fame opinions and fentimcnts acquired additional force from thofe extraordinary enterprifes in which the people of different Euro- pean countries Vvxre accidentally combined againit a common enemy ; as in the wars between the Moors and Cliriftians, and in the exneditions un- dertaken by the latter for the purpofe of refcuing the holy fepulchre from the hands of infidels. The competition ariiing on thofe occafions among the numerous warriors collected in the lame army, was daily productive of nev/ refinements upon the mili- tary fpirit of the times, and contributed to multi- ply and eftabliili the forms and ceremonies which, in every difpute of honour, were held indifpenfably nccelTary. From thefe caufes the cuftom of duelling has become fo deeply rooted as, notwithftanding a total chancce of manners and circumftances, to maintain its ground in moll of the countries of Europe ; and the eflecl: of later improvem.ents has only been to foften and render more harmlefs a relict of an- cient ENGLISH GOVERNMENT. 67 clent barbarity, which they could not deftroy. In Knorland, where the lower ranks of men enjoy a degree of conlideration little known in other coun- tries, the military fpirit of the gentry has even de- fcended to the com.mon people, as appears from the cuftom of boxing peculiar to the Engliih ; by which they decide their quarrels according to fuch puncli- iios of honour as are dictated by the pure and genuine principles of chivalry. In other ages and countries there is perhaps no inftance of any people whofe iituation could lead them to entertain the fame notions of military dig- nity which have been difplayed by the modern in- habitants of Europe. The independent families or tribes of fliepherds, in Tartary or in other parts of the world, have feldom occafion to relide fo long in the fame nei2;hbourhood as to create a ftated oppofition and jealoufy between their different members. The nations of hufbandmen, upon the Southern coall of Africa, and in feveral parts of Afia, who have in fome degree adopted the feudal policy, are too little advanced in civilization to ad- mit of any refinement in their methods of cxecuf- ins: revensfe. In thole ancient ftates that were mofl addicted to war, as in Rome and Sparta, the peo- ple were early brought under the authority of go- vernment, fo as effectually to prevent the exercife of private hoftilities. A Roman or a Spartan, therefore, was never under the neceflity of fup- porting his military dignity, in oppofition to his own countrymen ; but was conflantly employed in maintaining the glory of his country, in oppofi- tion to that of its enemies. The prejudices and habits acquired in fuch a fituation were all of a patriotic nature. The pride or vanity of indivi- duals was exerted in afts of public fpirit, not in private animolities and difputes. M. Voltaire imagines that the practice of duel- ling, in modern Europe, has arifen from the cuf« E 3 torn. 68 H I S T O R I C A L V I E W O F T H E torn, among the inhabitants, of v/earing a fword, as an ordinary part of drefs ; but the ancient Greeks, as we learn from Thucidides, were, at an early period, accuftomed to go armed ; and there is ground to believe that the flime cuflom has pre- vailed in all barbarous countries, where the people found themfelves continually expofed to danger. The continuance of this practice in Europe longer than in other countries appears to be the efFecl, not the caufe of duelling ; or rather it is the effcd: of that peculiar direction given to the military fpirit, of which duelling is the natural attendant. 5. The fame lituation produced the romantic love and g^illantry by which the age of chivalry was no lefs diftinguifhed than by its peculiar notions of nulitary honour. The appetite of the fexes, which, in the greater part of animals, nature has, for wife purpofes, con- necled with exquifite plcafure, is in the human fpe- cies productive of fentiments and affections, which are of great confequence to the general intercourfe of fociety, as vv^ell as to the happinefs of individu- als. Thefe two fources of enjoyment,' though in reality infeparable, and though the latter is ulti- mately derived from the former, are not always increafcd and refined by the fame circumftances. The mere animal inftinci feems to be ftrengthened by every circumftance that gives occalion to ha.bits of indulgence; but the peculiar paiTions that na- ture has grafted on this enjoyment appear on the contrary to be raifed to the higheft pitch, by the diiiiculty attending their gratification ; which, as it fixes the imagination upon the fame object, ha3 a tendency to exalt its value, and to debafe that of every other in proportion. In the ages of poverty and barbarifm, mankind are commonly too much occupied in purfuit of •mere necef-'aries, to pa}' much regard to the inter- •courfe of the fexes; and their iimple defires with relaiion ENGLISH GOVERNMENT. 69 relation to this point being eafily gratified as foon as they arife, are not lilcely to fettle with much predilection or preference upon any particular perfon. The firft great improvements that are made m any country, v/ith refpecT: to the means of fubfift- ence, being calculated to multiply the comforts and conveniencies of life, enable the inhabitants^ to extend the circle of their pleafures, and to refine upon every enjoyment which their fituation affords ; the pleafures of fex become therefore an object of greater attention, and being carried to a higher degree of refinement, are produftive of more variety in the tafte and inclination of different per- fons ; by which they are often difappointed in the attainment of their wiilies, and their paffions are proportionably inflamed. The introduction of pro- perty, which, being accumulated in different pro- portions, becomes the foundation of correfponding diftinclions of rank, is at the fame time the fource of additional reftraints upon the free commerce of thefexes. By the innumerable pretenfions to dig- nity and importance, derived from the vanity of opulence, or the pride of family, individuals have often to furmount a variety of obftacles in order to gratify their paffions ; and in contracling what is ac- counted an unfuitable alliance, they are commonly checked and controuled, not only by the watchful interpofition of their relations, but ftill more by tlie rules of propriety and decorum, which cuftom, in conformity to the ftate of fociety, has univerfally eflablifhed. I'he cfle.^ of great wealth and luxury, in a poliflied nation, is on the other hand to create an immoderate purfuit of fenfual plcafurc, and to pro- duce habits of exceffive indulsrcnce in fuch jrratifi- o o cations. In fuch a fituation particular attachments are apt to be loft in the general propcnfity ; nnd the correipondencc of the fcxcs becomes in a great mca- fure 70 HISTORICAL VIEW OF THE fure fubfervient to voluptuoufnefs, or to the pur- pofes merely of elegant amufement. The pallion of love, therefore, is likely to attain the higheft degree of refinement in a ftate of fo- ciety equally removed from the extremes of barba- rifm and of luxury. The nations formed in the Weftern part of Fai- ropc, upon the downfall of the Roman empire ap- pear to have continued for many centuries in that condition. They were poffelled of fuch opulence, and of fuch improvements in fociety, as to ftamp fome value upon the plcafurcs of fex, without cre- atin^^ much incitement to debauchery. Their dif- tinrlions of rank, arifmg from the very unequal diftribution of property, and the mutual apprehen- fion and jealoufy which a long courfe of private hoftilities had introduced among different families, occafioned, at the fame time, in their whole cor- refpondence, a degree of caution and diliruft un- known in other asfcs and countries. The women of every family, as \vell as the men, were taught to over-rate their own dignity, and to look upon it as difgraceful to give any encouragement to a lover, whofe rank and worth did not entitle him to a preference in the opinion of the world, and in that of her own prejudiced relations. As no man in that acre was allowed to claim any merit, uniefs he had acquired a military reputation, the warrior who had been infpired with a youthful inclination could net expect any marks oi regard, far lefs a return of afteclion, without fignalizing his fortitude and prowefs, by encountering a variety of hardihips and dangers. Before he had in -this manner deferved the favour of his miftrefs, it was held inconfiftent with "her characTer to divulge any impreilion fhe had received to his advantage ; and the laws of delicacy required that Ihe fhouid behave to him on all occafions with diftance and referve, if not with infolence and fcorn. By the delays, the ENGLISH GOVERNMENT. 71 the difappointments, the uncertainty of fuccefs, to which he was thus expofed, his thouglits were lonp; engrofled by that favourite objecT: ; and the ardours of a natural appetite were at length exalted into a violent paffion. The romantic love, peculiar to the ages of chi- valry, was readily united with the high fentiments of military honour, and they feem to have mutually promoted each other. An accompliihcd character in thofe times required not only the moil un- daunted courage and refolution, fupported by great generofity, and a contempt of every fordid inte- reli, but alfo the moil relpec1:ful regard and reve- rence ur the ladies, together with a fmcere and faithful patlion for feme individual. Perfons pof- feifed of thefe accompliiliments, or who defired the reputation of poflefling them, devoted themfelves to the particular profeilion of protecting the feeble, of relieving the diftrefled, of humbling and ref- training the infolent oppreflbr. Not content with ordinary occafions of acquiring diilinclion, there were fom.e who thought It neceifary to travel from place to place, with the avowed purpofe of redrefs- ing grievances, and of punillilng the injuries to which, from the diforderly ftate of the country, the unwarlike and clefencelefs, but efpeclally the female fex, were daily fubjected. It happened In thofe times, as It naturally hap- pens wherever mankind have been direcled by faililon to admire any particular fort of excellence, that the deiire of Imitating the great and gallant actions of heroes and lovers, was often disligured and rendered ridiculous by afieclatlon, and became pioduclive of artificial and fantalHc manners. The knight-errant, v/ho found no real abufes to com- bat, endeavoured to procure diftincllon by adven- tures of no utility, and which had no other merit but the danger attending them, as he who had never felt a rial pafUon, tortured his mind with one merely 72 HISTORICAL VIEW OF THE merely imaginary, complained of rigours that he had never met with, and entered the lift, to main- tain that fuperior beauty and merit which he had never beheld. It is unnecefTary to remark, that thefe inftitu- tions and cuftoms, and the circumftances from which they proceeded, were peculiarly unfavour- able to trade and manufactures. The Saxons in England, as well as the other nations vv^ho fettled about the fame time upon the Weftern continent of Europe, though immediately after their fettlement they had been excited to a confiderable improve- ment in agriculture, and in fome of the common arts of life, remained afterwards for ages in that hoftile and turbulent ftate which gave little room or encouragement for the exercife of peaceable occupa- tions. The manners introduced into thofe coun- tries in early times being thus confirmed by long ufage, have become proportionably permanent, and notvv^ithftanding the changes of a fubfequent pe- riod, have left innumerable traces of their former exiftence. CHAP: ENGLISH GOVERNMENT. CHAP. V. The State of Property, and the different Ranks and Orders of Men, p'oduecd by the Settlement of the Saxons in Britain. T H E diftribution of property among any peo- ple is the principal circumftance that contributes to reduce them under civil government, and to de- termine the form of their political conftitution. The poor are naturally dependent upon the rich, from whom they derive fubiiftence ; and, accord- ing to the accidental differences of wealth poffeffed by individuals, a fubordination of ranks is gra- dually introduced, and different degrees of power and authority are affumed without oppofition, by particular perfons, or beftowed upon them by the general voice of the fociety. The progrefs of the Saxon arms In Britain pro- duced an appropriation of land and moveables, by all the free members of the community. Every war- rior conftdered himfelf as entitled to a fhare of the fpoil acquired by the conquefl ; and obtained a number of captives, and a landed territory, pro- portioned to his valour and activity, or to the fcr- vices which he had ptcrformed. It is probable that the feveral conquering parties were feldom at the trouble of making a formal divifion of their acqui- iltions, but commonly permitted each individual to enjoy the booty which he had feized in war, and to become mailer of fuch a quantity of land, as by means of his captives, and the other mem- bers of his family, he was enabled to occupy and to manage. Such of the ancient inhabitants, on the other hand, as remained in the country, and had 74 HISTORICAL V I E W O F THE had preferved tlieir liberty, were in all probability underftood to retain the property of thefe eftates of which they had been able to maintain the poffeffion. There is good reafon to believe that, for fome time after the fettlement of thofe barbarians in England, the landed eftates acquired by individuals "svere generally of fmall extent. The Saxons were among the pooreft and the rudefl; of the German nations who invaded the Roman empire ; and Bri- tain was, on the other hand, one of the leaft culti- vated of all its provinces ; at the fame time that the progrefs of the conquerors in the appropriation of land (which from, thefe caufes muil have been proportionably flow and gradual) was further ob- ftructed by the vigorous oppofition of the natives, who feem to have difputed every inch of ground ■with their enemies. We accordingly find that, from the beginning of the Anglo-Saxon government, the land was divided into hides, each comprehending what could be cultivated by a fingle plough. This, among a iimple people, becomes a natural boundary to the polTeflion of thofe who live in the fame houfe, and are jointly at the expence of procuring that ufeful but complicated inftrument of hufbandry. Ihe Sfcneral eftimation of the Anfrlo-Saxon lands, ac- cording to this inaccurate meafure, points out fuf- licientlv the original circumflance which recrulated the extent of the greater part of eftates. When, by the progrefs of cultivation, and by future fuc- cefTes in war, the landed property of individuals was increafed, the ancient ftandard of computation remained ; and the largeft eftates, by comparing them with the fmalleft, were rated according to the rtomber of bides which they contained* * See Spelm. GlolT. v. Tfj/a. While ENGLISH GOVERNMENT. 75 While the eitates polTelTed by the Anglo-Saxons T.vere fmall, they were cultivated under the imme- diate infpeclion of the owner, his kindred or ier- vants, who lived in his own houfe, and \\'ere fed at his table. But when the territory acquired by any perfon became too extenfive, and the mem- bers of his family became too numerous, to render this mode of living any longer convenient, a part of his land was parcelled out into diflercnt farms, and committed to the management of particular bond- men, from whom, at the end of the year, he re- quired an account of the produce. Apart of any great ellate came likewife to be occupied by the kindred and free retainers of the proprietor, to whom, in return for that military fervice which they under- took to perform, he aligned portions of land for a maintenance. Hence the dlflinccion between what the Saxons called in-Jand, and out-land : the former was what lay next the manfion-houfe of the owner, and was retained in his own hands ; the latter, which lay at a greater diftance, was in the pofTeflion and management either of his retainers or fervants *. The out-land of every opulent perfon came thus to be poffefTed by two different forts of people ; the bond-men, who laboured their farms for ihe bene- fit of their mailer, and thofe freemen (moft com- monly his kindred) who had become bound to fol- low him in war, and upon that condition were entitled to draw the full produce of their pofl'ef- fions. The former have been called v: Ileitis, the latter valTals. C'onlidering the right of the latter to the lands which they poifeifed, in contradiiUnclion to that of the perfon from whom they derived their pof- fcfiion, the landed eftatcs of the Anglo-Saxons have been divided into allodial and feudal. The allodial cftates were thofe of every independent proprietor; ' Sec Spdman on Feuds and Tenures l>y Kiii^ht-lcrvicc, ch. 5. o\Tr j6 HISTORICAL VIEW OF THE over thefe the owner enjoyed a full dominion, and be had a right to alienate or difpofe of them at pleafure ; upon the death of a proprietor, they de- fcended to his heirs, according to certain rules of fucceffion which cuftom had introduced, and they were not burdened with fervice of any kind in fa- vour of a fuperior. The feudal eiiates were thofe poffelTed by vafials upon condition of military or other fervices ; thefe were held originally during the pleafure of the fu- perior, though it appears that cuftom had early iecured the poiTeflion of the vafial for a lim.ited time. When he had ploughed and fowed his ground, it was thought equitable that he fhould be allowed to reap the crop arifmg from his labour and expence. Thus a year came lOon to be ac- knowledged as the fhorteft period, upon the con- cluiion of which he might be deprived of his pof- feiEon. Even after this period it was not likely that a fuperior would think of putting away his relations and ancient retainers, v^'ith whofe perfonal attachment he was well acquainted, and of whofe valour and fidelity he had probably been a Vv'itnefs. The poil'eflions, therefore, of the greater part of the vafials, though not confirmed by any politive bargain, with refpecl to the term of their continu- ance, were in fact ufually retained for life ; and even upon the death of the poffeilbr VvTre fre- quently enjoyed by his pofterity, whom, out of affcclion to the ancellor, the fuperior commonly preferred to a ftranger, or to any diftant relation. When the lands of a vaffal had, by a politive bar- gain, been only fecurcd to him for life, or for a limited period, they were called benefices *. The differences which I have mentioned in the condition of eftates, gave rife, moft probably, to the celebrated dillinclion of hucAcind and folc-iand. * V. Feud. Confuet. lib, i. tit. j, >^ i. 3. The ENGLISH GOVERNMENT. 77 The former, comprehending the eftates of the no- bler fort, was allodial, and being held in abfolutc property, was conveyed by a deed in writing ; the latter was the land poiTcffed by people of inferior cendition, who having no right of property, but holding their poffeilions merely as tenants, for pay- ment of rents or fervices, did not obtain any writ- ten title for afcertaining their rights *. It may be remarked that boc-land m.ight belong either to the king or to a fubjecl ; and that it im- plied no obligation to feudal fervices, in the latter cafe, mere than in the former. It is true that fub- jecls who enjoyed boc-land were bound to defend the kingdom from enemies by fea or land, and to build or reoair bridges and caftles f ; but thefc fervices they owed to the public as citizens, not to the king as vaiTals. Thefe were duties impofed by a general law of the kingdom, and which were laid upon the poffcflbrs of folc-land as well as boc- land, upon the clergy as well as the laity, in fiiort, upon all the free members of the community +. Such was the original ftate of property in the Anglo-Saxon government ; from the confideration of which, together with the early circumftances and manners "of the nation, the inhabitants, ex- clufive of the fovereign, may be diftinguiilied into three different ranks or orders. I. The firft and moft confpicuous was that of the military ^-iople. It is probable that for fomc time after tiic fettlement of the Saxons in Eng- land, this comprehended all the free men of the nation. The gt-neral character of thofe adven- turers, and the views with which they invaded Britain, were fuch as difpofed every man, who had the direfti on of his own conduct, to become a foldier, and to engage in every enterprizc by which ♦ Spelm. on Feutis and Ter-ares by Knight-fcrvice, chap. 5. ■j- Eypeditioi,, Burghootc, and Bri)sboU. \ See bpeJ'-.'ian on Tcudj and Ttaures by Kniglu-fervicc, ch. 8. 9- to. tt. cither -8 HISTORICAL VIEW OF THE either plunder or reputation might be procured. Thefe warriors, who in general were denominated thanes^ came loon to be arranged in two clalTes ; the one coniifting of thofe heads of families who had acquired allodial property ; the other of fuch retainers as held lands, by a military tenure, either of the king, or of any other allodial proprietor. Both thefe dalles of people were accounted gentle- men, and were underftood to be of the fame rank, in as much as they exercifed the honourable pro- feflion of arms ; though in point of influence and power there was the greateft difparity, the vaiTals being almoft intircly dependent upon their fuperior. The'foldiers of this lower clafs appear to have re- ceived the appellation of lefs or inferior thanes *. 1. The peafants compofed a fecond order, greatly inferior in rank to the thanes of either clafs. They appear to have confifted chiefly of fuch perfons as had been reduced into captivity during the long wars between the Britons and the Saxons, and had afterwards been entrufted by their mailers with the management of particular farms ; they were called ceorb, carles, or churles. Some of them, no doubt, were kept in the houfe of their mailer, and employed in cultivating the land in his own pof- lellion ; but the greater number were ufually fent to a diilance, and placed, as it happened to be con- venient, upon different parts of his eftate. The for- mer being under his eye, and acting on all occafions from his orders, remained for a long time in their primitive fervile condition ; the latter, en the con- trary, being withdrawn from his immediate in- fpecTion, had neceilarily more truil and confidence repofed in them, and were thence enabled, with fome dep^ree of rapidity, to improve their circum- ftances. From their diilance, the mafter was obliged to relinquiih all thoughts of compelling * Spclman, in the Treatifc above quoted. them ENGLISH G O V E R N M E N T. 79 them to labour, by ir-crinsof pcribnal chaftiicmcnt ; and as, from the nature of their employment, he could hardly judge of their diligcrc?, othcrwifc than by their fuccefs, he foon found it expedient to bribe their induftry, by giving them a reward in proportion to the crop Avhich they produced. They were thus allowed to acquire property ; and their condition became iimilar, in every refpecl, to that of the aJfcripti g!cba among the ancient Romans, to that of the prcfent colliers and falter.j in Scotland, or of the bondmen employed in x\\t mines in feveral parts of Europe. In this fituation fome of them, by induftry and frupjality, found means to accumulate fo much wealth, as enabled them to ftock their own farms, and become bound to pay a certain yearly rent to the mafter. It muft be acknowledged, the writers upon Saxon antiquities have generally fuppofed that the ccorls vrere never in a fervile condition ; that from the beginning they were free tenants, forming a dl- ftinct clafs of people, and holding an intermediate rank between tlic villeins or bondmen, and thofe who followed the military prof;filon. But this fuppoiiiion, fo far as I knov/, is made without any fliadow cn proof: it probably took its rife from obferving that the free tenants, to\tards the end ot the Anglo-Saxon governm,cnt, v.cre very nu- merous, without attending to the circumftances from which they obtained their freedom. It is not likely, however, that in fo rude and warlike an age any fct of men, vvho had been debafcd by fervitude, and reftraincd by their condition, would attach tlicmfelves wholly to agriculture, and be either unfit for-war, or unv/iiling to engage in it. Il the ccorls had not been originally in fome degree of b(mdage, they vvould undoubtedly have been warriors ; and we accordingly find that when, from the circumftances above mentioned, they had after- wards So HISTORICAL VIEW OF THE wards acquired confiderabic privileges, they were advanced to the rank and enipioyment of thanes. Though the peafants were chiefly employed in agriculture, they were fometimes engaged in other branches of labour, as a collateral profcfiion. From the poverty and rudenefs of the country, for fome time after the fettlement of the Saxons in Britain, it may eafdy be imagined that little encouragement was s^iven to mechanical arts, and that artificers and tradefmen were not of fumcient confequence to become a feparate order in the community. Some mechanics, even in that fimple age, were doubtlefs neceffary to procure the ordinary accom- modations of life, but the demand for their work •was too narrow to occupy the folc attention of any individual. Such of the bondmen as had attained a peculiar dexterity in performing any branch of manual labour, were naturally employed by the mafter in the exercife of it, and thus were led, by degrees to make fome proficiency in particular occupations. But they were not hindered by tliefe employments from cultivating the ground ; and they obtained a maintenance in the flime m.an- ner with the other peafants, either by living in the houfe of their m.afier, or by the poffefiion of fepa- rate farms upon his eftate. As thefe mechanical employments v/ere accounted more unwarlike and contem-plible than the exercife of hufbandry, there v/as yet lefs probability that any freeman would be willing to engage in them. 3. A third order of men, who in this period of the Englifii hiftory became more and more diflin- guiilied, was that of the clergy. The numerous body of church-men introduced by the Chriftian rclip ion, efpecially in the Weftern part of Europe, the extenfive povv'er and authority which they gra- dually acquired, together with the peculiar views and motives by w^hich they were actuated, amidfi: the diforder and barbarifni of the feudal times, are circumftances ENGLISH GOVERNMENT. Si circumftances of fo much magnitude, as to deferve particular attention in tracing any modern fyfteni of European policy. A few remarks, however, concerning tlie nature and origin of ecclefiaftical jurifdiction, and the primitive government of the Chrillian church, will be fufficient, upon a fubject that has been fo often and fo fully examined. Sect. i. Of the chief Regulations attending the Ejlahli foment of Chrijlianity in the Roman Empire^ and in the modern Kingdoms of Europe. After the Chriftian religion had been extended over a great part of the Roman dominions, it was at laft, in the reign of Conftantine, taken under the protection of government, and obtained the fanclion of public authority. The uniformity of circumftances attending the introduction of this new religion, produced throughout the whole em- pire an uniform fet of ecclefiaftical regulations. In every province, religious teachers had taken up their refidence wherever they met with encou- ragement ; and the country was, by degrees, di- vided into fmall diftricls, or pariflies, in each of which a particular clergyman had gained an eftab- liihment. As the inhabitants of a parifti were accuftomed to alfemble at ftated times for public worfliip, and were by that means united in a religious fociety, fo the zeal with which they were animated in fup- port of their religion difpofed them to infpect the conduct and theological opinions of all their mem- bers. For the regulation of thefe, and of all their common affairs, the heads of families, belonging to every congregation, frequently held meetings, G in 82 HISTORICAL VIEW OF THE in which their paftor was naturally allowed to prc- fide, and gradually obtained the chief direction of their meafures. Even in fecular matters, the peo- ple were difpofed to be guided by his judgment ; and when a controverfy had a?ifen between indi- viduals, he was efteemed the mofl proper perfon to compofe the difference; which was therefore moft commonly referred by the parties to his deter- mination. The advancement of Chrillianity opened a com- munication between the profeffors of this religion belonging to different pariflies, who in like man- ner were accufcomed to deliberate upon their coni- mon religious concerns. Some particular clergy- man became the ordinary prefidcnt in thofe cafes ; and upon that account acquiring fuperior confidera- tion and rank, was at length exalted to be fuper- intendant, or bilhop, of a large diftrift or diocefe. When thefc diocefan meetings were greatly multi- plied, the attendance of the laity being found in- convenient, and appearing to them of lefs confe- quence, was gradually neglected, fo that the buli- nefs came to remain entirely in the hands of the clergy. The minifler of every parifh was at firft main- tained by the occafional bounty of thofe who reaped the benefit of his inftruclions ; and fuch was the attachment of the primitive Chriilians to their teachers, and to one another, that they chear- fully made contributions not only for that pur- pofe, but alfo for the maintenance of their poor. In the delining ftate of Rome, when the decay of knowledge, by infuiing a ftrong leaven of fuper- flition, had corrupted the purity of the Chriftian religion, the clergy found means to obtain a more independent revenue, by perfaading pcrfons upon their cieath-bed to make donations to the church, in order to atone for their offences. In the reign of the emperor Conftantine, when Chriftiaiiity be- came ENGLISH GOVERNMENT. 83 came the eftabliflied religion of the empire, tefta- mentary bequefts in favour of focieties, which had formerly been prohibited by the Roman law, came to be permitted without controul ; and from this time the fafhion of leaving legacies to the church for pious ufes became fo univerfal, that the clergy were enabled to accumulate large eftates, both in moveables and land. The management of thefe eftates, as of all other matters concerning religion, was naturally devolved upon the clergy of every diocefe, who aflumed a difcretionary power of diftributing the produce in fuch a manner as they thought moft expedient, or moft conformable to the purpofe of the donors. As the bifliop, however, acquired more influence in ecclefiaftical meetings, he was in a capacity of appropriating to his own ufe a greater fliare o£ that rev^enue which fell under their difpofal. His dignity became more confpicuous ; and for fup- porting it a fuitable eftate was deemed neceflary. His cathedral was enlarged and rendered more magnificent, a more pompous form of worfhip was introduced into it, and a number of clergymen were appointed to afiift in the religious fervices, or other branches of duty, that were fuppofed to be-^ long to his department. The rife of a bifliop over the clergy of his diocefe may be compared to that of a rude chief over the members of his tribe ; as in both cafes a fuperio- rity of ftation, derived from perfonal qualities, put it in the power of a Angle perfon to acquire lupcrior wealth, and thence to become the perma- nent head or leader of a fociety : but the original pre-eminence of the chief arofe from his military talents, that of the bifliop, from the veneration paid to the fanclity of his charadler and profefllon. This makes the only difference in the nature of their advancement. G z While 84 HISTORICAL VIEW OF THE While thofe who had the direftion of relis:ious matters were thus advancing in opulence and power, there arofe a new fet of fanatics, who divided the cfteem and admiration of the people, and were at length admitted into the clerical profellion. The eroneous notions entertained in the dark ages, concerning the Supreme Being ; the fuppofi- tion that he is actuated by anger and refentment, in a literal fenfe, againft thofe who tranfgrefs his laws, and that thefe paffions are to be gratified by the mere fuffering of his creatures ; fuggefted to per- fons impreffed with a ftrong feeling of their own guilt, and tortured upon that account with forrow and remorfe, the idea of fubmitting to voluntary pennances, in order to appeafe an offended Deity, and to avert that future punifliment which they ^vere confcious of having deferved. From views of this kind, particular perfons became difpofed to retire from the world, and to deny themfelves almoft all the comforts and enjoyments of life ; focieties were afterwards formed, who exprefsly bound themfelves not only to fubmit to actual punifliments, but to renounce all thofe pleafures and gratifications to which mankind have the greateft propenfity ; and who for this purpofe came under the vows of poverty, of chaftity, and of obedience to the rules of their community. As Chriftianity took a firmer hold of the mind than any of the religions v/hich had been formerly eftab- liflied, this perverfion of its doctrines was attended with confequences proportionably more extenfive. Thefe mifguided votaries to mortification being originally poor, were fupported either by alms or by their nianual labour; but their exemplary lives, and the aufterities which they pra«51:ifed, having excited univerfal admiration, enabled them to follow the example of the fecular clergy, by procuring dona- tions from the people ; and hence, notwithftand- ing the poverty ftill profcffed by individuals, their focieties ENGLISH GOVERNMENT. 85 focieties acquired the pofleflion of great riches. The members of thefe communities were by degrees admitted into holy orders ; and became no lefs in- ftrumental in promoting the influence of the church, than in communicating religious inftruction. As the affairs of a diocefe had fallen under the chief direcTion of a bifliop, thofc of a monaftery were conducted by an abbot, who prefided in the meetings of the fociety ; and who, by obtaining authority in confequence of that difl:inclion, was at length permitted to afTume the diftribution and difpofal of their property. Although the authority and jurifdicfion of the church in this early period of Chriflianity, and the fubordination among different ranks of churchmen, proceeded in good meafure from the nature of the buhnefs committed to their care, and the influ- ence derived from their profefTion, yet the general fabric of ecclefiaftical government was likewife a good deal affected by the political circumftances of the Roman empire. The perfon exalted to the head of a diocefe was very often the minifter of the moft confiderable town of that diflrid, who from the greater weight and importance of his flock enjoyed a proportionable confideration among Ills brethren of the clergy. As by the civil policy of the empire many of thefe diffricls were united in what, according to the later divifion of the country, v/as called a prov'nice, the clergy of this larger territory were led frequently to hold pro- vincial fynods, in which the bifliop of the capital city, acquiring refpecl from his refidcnce near the feat of government, became the regular prefident, and was thence exalted to the dignity and title of a metropolitan or archbijhop. In the yet more ex- tcnfive divifions of the empire, which were called jiirifdiclioiis, the clergy were induced, upon fome occalions, to deliberate j and in thofe greater meet- jnes 86 HISTORICAL VIEW OF THE ings the right of prefiding was claimed by the bifhop, who reiided in the fame city with the go- vernor of each i'cipeS:ive j urifclidion. Hence there arofe a ftill fuperior rank in the church, that of an exarch or patriarch, who obtained certain preroga- tives over the clergy of that great divifion. Of all the patriarchs in Chriftendom thofp of Rome and Conftantinople, the two great capitals of the em- pire, became foon the moft diflinguiflied, the for- mer of which enjoyed a pre-eminence over all the clergy in the Wellern, the latter over thofe in the Eaftern provinces. Upon the conqueft of the Weftern empire by the barbarous nations, the ancient inhabitants, who had for a lono: time been declinino; in arts and knowledge, experienced at once a violent change of fituation, and were fuddenly plunged into the darknefs and barbarifm of their conquerors. As thofe conquerors, however, embraced the Chriftian religion, they fubmitted implicitly to the difcip- line of the church, and to all the forms of ecclefi- aftical government which they had found eftab- liftied. The Roman clergy, therefore, remained upon their former footing, and were far from lof- ing any of their former privileges ; they even endeavoured, amidft the general deftruction of fcience, to preferve a degree of that literature which, in order to propagate and defend the tenets of their religion, they had been under the neceiTity of acquiring, and which was the great fupport of their influence and popularity. With this view, and for the inftruclion of the people, more efpe- cially of thofe that were to be admitted into holy orders, they erected fchools in their cathedrals and monafteries, and thence laid the foundation of thofe communities poiTefled of ecclefraftical powers and privileges which have received the exclufive appellation of colleges. From ENGLISH GOVERNMENT. 8; From thefe two circumftances, from^ the grofs lo-norance and the conlcquent fupcrftition of the people, and from the comparative knowledge and abilities of the clerp;Y, the latter were enabled to reap the utmoft advantage from their fituation, and to acquire an almoft unlimited afcendcncy over the former. Hence the dodrines of the church concerning her influence in the remiuion of iins, and concerning the diftribution of rewards and punifliments in a future flate, came to be modelled in fuch a manner as was plainly calculated to pro- mote her temporal intereft. From this period, therefore, the donations of land to the church Vv'ere greatly encreafed, and the bifliops, abbots, and odior dignified clergymen, who reaped the chief advantage from thefe benefaclions, became poifelTcd of eitatcs, which enabled them in fome degree to rival the greater thanes of the country. From the fame caufes the contributions made by every congregation for the fupport of their minif- ter, v/ere gradually augmented : to augment thefe contributions, and to render them permanent, the church employed the utmoft addrefs and influence of all her members. AVhat was at firft a voluntary offering came afterwards, by the force of cuftom, to be regarded as a duty. Having gradually raifed this taxation higher and higher, the clergy, after the example of the Jewifh prielts, demanded at length a tenth part of the annual produce of land, as due to them by divine appointment. Not contented with this, they in fome places iniiftcd upon the fame pro- portion of the annual induftry ; and it came to be maintained, that they had even a right to the tenth part of the alms given to beggars, as well as of the iiire earned by common proftitutes in the excrcife of their profeflion'^. To inforce the obligation of submitting to thefe monilrous exaclions, v/as for a * F. ruuKs HiAo-y of Benefices, Ion"" 88 HISTORICAL VIEW OF THE long time, it is faid, the great aim of tliofe dif- courfes which refounded from every pulpit, and of the pious exhortations delivered by each ghoftly father in private. The right of levying tytbes^ which was firft eftabiifhed in France, and which after- wards made its way through all the Weftern parts of Chriftendom, created to the church a revenue of no lefs value than what fhe derived from her landed poffeffions*. The tythes of every parifh were collected by its own minifter, but a large pro- portion of thofe duties came to be demanded from the inferior clergy by the bifhop of the diocefe. When the provinces of the Weftern empire were broken into a number of independent kingdoms, it might have been expecfed that the church eftablifh- ment in thofe countries would experience a fimilar revolution, and that the clergy of every feparate kingdom, being detached from thofe of every other, would form a feparate eccleliaftical fyftem. It is not difficult, however, to difcover the circum- flanccs which prevented fuch a feparation : and which, notwithftanding the various oppofitions of civil government, united the churches of all the Weftern countries of Europe in one great eccleli- aftical monarchy. The patriarchs of Rome and Conftantinople, of whom the one, as has been already obferved, be- came the head of the Weftern, and the other of the Eaftern part of Chriftendom, were in a different fttuation with refpeft to the eftablifhment of their power and dignity. The patriarch of Conftantino- ple, from his conneclion with the principal feat of government, appears for fome time to have been exalted above his Weftern rival, and to have en- joyed fuperior authority. But after he had attained a certain pitch of exaltation, the very circum- * The council of Mafcon, in jSj, excommunicated al] thofe v.'ho re- fulcd to pay tythes. Ibid. ftance ENGLISH GOVERNMENT. ^ ftance which had hitherto promoted his advance- ment, tended immediately to Hop the progrefs of it ; for no fooner did he become an object of jealoiify to the civil power, than the vicinity of the imperial refidence contributed the more effectually to thwart and controul every project for the extenfion of his privileges. The Roman pontiff, on the other hand, when he had rifen to fuch opulence arid dignity as might have excited the envy and difguft of the civil magiftrate, was by the diffolution of the weftcrn em- pire freed from the troublefome infpeclion of mo- narchs, who probably would have checked the growth of his power ; and being placed in the fitu- ation of an independent prince, was at full liberty to put in practice every politic meaiure Vv-hich might either enlarge his temporal dominions, or extend his authority over that numerous body of clergy who already owned his fupremacy. It may further explain the hiftory of the Weilern church to obferve, that while the bifhop of Rome was thus in a condition to avail himfelf of that fu- periority which he had acquired, the circumftance> of the clergy were fuch as made it their intereft to unite in one body, and to court his protection. The character of churchmen was, from the nature of their profeffion, a good deal different from that of the laity, and incited them to very oppoiite pur- fuits. The former in a military and rude age, were c:enerallv drawn from the inferior ranks of life ; at the fame time that, from the prevalence of fuper- ftition, they poffeffed great influence over the minds of the people, and were daily advancing their claims to power and emoluments. By the ancient nobi- lity, therefore, or leading men of every country, and ftill more by the fovereign, the haughtineis, the infolence, and the rapacity of thefc upilarts, was often beheld with indignation and refentment, and produced continual jeah)ulies and difputes be- tween thofe of different orders ; the latter endea- vouring to maintain and to extend a fet of immu- nities 90 HISTORICAL VIEW OF THE 11 i ties and privileges which the former were no lefs eager to reftrain. In fuch a conteft the eccleli- aftics of any particular kingdom were as much in- ferior to their adverfaries in direct force, as they were ufually fuperior in fkill and dexterity ; and their fituation naturally pointed out the expedient of foliciting afiiftance from their brethren in the neighbouring kingdoms : that affiftance they very feldom failed to procure. The controverfy of every individual was reafarded as the common caufe of the whole order. By adhering to one another, however disjoined in point of civil government, they became fufficiently powerful, not only to avoid oppreflion, but even to defend their ufurpations ; and by combining, like the foldiers of an army, under one leader, their forces were directed to the beft advantage. The opportunities which this great leader en- joyed, of augmenting his revenue, and of increaf- ing his power, may eafily be conceived. In the multitude of difputes which occurred between the clergy and laity in the different nations of Europe, the former, in order to obtain his protection, were obliged to fubmit to various taxes, and to the ex- tenfion of his prerogatives. Hence the payment of the ^r/i fruits, and fuch other impofitlons upon the livino;s of churchmen, were eilabliflied in favour of the holy fee. In like manner, during the wars that were car- ried on between the different potentates of Europe, the contending parties, finding that the counte- nance and approbation of the Roman pontiff" would give great weight and popularity to their caufe, were fometinies uiuler the neceflity of purchaling his favour, by ratifying his titles, and permitting the exercife of his claims over their fubjects. From the fame circumftances, the temporal dominions of the pope in Italy were greatly enlarged, and his au- t'nority, as an independent fovereign, was recog- nized. ENGLISH GOVERNMENT. 91 nized. Upon the conqueft of Lombardy by the kinj^ of France, his holinefs, who had thrown his wliole influence into the fcale of the latter, was rewarded with a great proportion of the conquered territory ; and, at the fame time, was enabled to alfume the privilege of conferring the imperial dignity upon the conqueror. The difputes among the clergy thcmfelves, more efpecially between the fecular and regular clergy, were another fource of the papal aggrandizement. Every fociety of monks was fubj eel originally to thebifliop within whofe diocefe their monaftery was lituated, but as they advanced in riches and popularity, they were led to all'ert their independence ; and in fup- porting their pretenfions, having to flruggle with the whole body of fecular clergy, they were in- duced to court the head of the church, by fuch obedience and compliances as were likely to gain him over to their intereft. In the Eaftern church, where thefe caufes did not operate in the fame degree, neither the authority of the clergy, nor that of the patriarch of Conftanti- nople, roie to the fame height. The payment of tythes, though it was there warmly all'erted by churchmen, as well as in the Weft, was never in- forced by public authority ; nor was the head of the church in that part of the world in a condition to cftablifli fuch an extenfive revenue as had been ac- quired by the Roman pontiff. It may be obferved, on the other hand, that the fame circumftances which produced an independent ecclefiaftical jurifdiclion in Chriftendom, have been productive of fimilar effects in other religions, and in different parts of the world. Among illiterate nations, maintaining an intercourfe with one ano- ther, and profeffmg a common religion, the clergv, who have been raifcd to importance either by the explanation of theological opinions, or by the di- rection of myftcrious ritcb and ceremonies, appear naturally 92 HISTORICAL VIEW OF THE naturally to form a feparate clafs of the people ; and, by extending their ideas of a common intereft be- yond the bounds of a fmgle kingdom, are eafily reduced under one great eccleiiaftical leader. This was formerly the fituation of the Celtic nations, vv'ho inhabited a great part of Europe : they were under the influence of a common religion, the mi- nifters of which are faid to have poiTeiTed a jurif- didion fuperior to that of the civil magiftrate. Thefe druids v/ere, at the fame time, united in one fociety, independent of the different political Hates to which they belonged ; and were under the direc- tion of a chief dridd, who refided in Britain, and whofe authority extended over the laity as well as the clergy, in all the nations of Celtic original. The authority of the grand Lama or high-priejl of the Tartars, which is acknowledged by mxany tribes or nations totally independent of one ano- ther, has, in all probability, the fame foundation. This eccleiiaftical monarch, who refides in the coun- try called Little Thibet, is alfo a temporal prince. The numerous clergy, in the different parts of Tartary, who acknov/ledge his fupremacy, are faid to be diftinguilhed into different ranks or orders, ibmewhat analogous to tliofe which take place in Chriftendom ; and the ordinary priefts, or lamas, are fubieclcd to the authority of bifhops, whofe jurifdidion is fubordinate to that of the fovereign pontiff. Without pretending to afcertain. with any degree of accuracy, the church-hiftory either of the Celtic or Tartar nations, we cannot avoid remark- ing the general analogy that appears in the ori- gin and "ccnftitution of all thefe different Hierar- chies. Sect ENGLISH GOVERNMENT. 93 Sect. 1. The Efrahhjhmcnt of Chrijliamty in Bti- tain, under the Roman Domhiicn, and in the early Government of the Anglo-Saxons. Chriftianity made its way into Britain, in the fame gradual manner as into all the other parts of the Roman empire. It is fuppofed to have ob- tained a permanent footing in the country, under the government of Marcus Aurelius, at which time a bifhop of Rome is faid, upon the application of Lucius, a Britifh king, to have fent over, to this ifland, feveral learned men, to preach and propa- gate the gofpel. But whatever degree of credit may be due to this account, it is certain that, in the reign of the emperor Confcantine, this religion was taken under the protection of government, in Britain, as well as in all the other provinces of Rome ; and that it continued in this iituation until the ifland was abandoned by the Romans. During this period the Chriftian Church had received the fame form as in all the other parts of the empire. Par- ticular clergymen had obtained a fettlement in fmall diftricls or parilhes, according to the number and fituation of the inhabitants*. Many of thefe dif- tricts were united under the infpcftion of a bifhop, the minifter of a cathedral church ; and a metropo- litan, or archbifhop, was exalted over the whole clergy of a province. But though it is probable that this ecclefiaftical eftablifhment was modelled according to the fituation of the great towns, and the chief divifions introduced by the civil govern- ment of the country ; yet neither the number of the Britifli prelates, nor the churches in which they were fettled, appear to be known with any degree of certainty f. Mention is made of three archbifliops, * Gildas.— Alfo Wliitakcr, Hift. of Manchcftcr, ■\ According to the nioukifli tradition, there were twenty-eight bifliops 94 HISTORICAL VIEW OF THE archbilhops, who, it fhould feem, correfponded to three of the provinces, in the late arrangement \vhich the Romans made of their Britifli territo- ries. The lirft refided in London ; the fecond in York ; and the third, whofe jurifdiftion extended over Wales, appears, at different times, to have had a different place of refidence*. That the Hie- rachy had early acquired a fettled condition in Bri- tain, and that its bifhops held fome rank among thofe of other churches, is evident from their fend- ing reprefentatives to the council of Aries, called in the year 314, and to other remarkable councils, that were afterwards convened in different parts of Chriftendomf. The arrival of the Saxons in this ifland was pro- dudive of great diforder in the religious, as well as in the civil eftablifhment. In thofe parts of the country which fell under the dominion of the Saxons, the chriftian churches were frequently demolifhed ; the public worfliip was interrupted ; and the clergy, in many cafes, could neither be provided with a maintenance from the public, iior continue the regular exercife of their jurif- diclion. The altars of Thor, and Woden, were often fubftituted for thofe of Jefus Chrift ; and the life and immortality which had been brought to Ihjlit by the gofpel, were obfcured and eclipfed by the fictions of Hela's dreary abode, and Valhalla's happy manfions, where heroes drink ale and mead from the fcuUs of enemies whom they have flain in battle. Wherever the ancient inhabitants were able to prefcrve their independence, their ecclefiaftical po- licy remained without any alteration. This was in Britain, during the Roma/i government of that ifland. Thefe corref- ponded to the twenty-eight confiderable cities in the province. See Ra- nulph. Higdcn. lib. i. — I'his number of Britifli cities is mentioned by Gil» da^, Bedc, and others ; and their names are tranfmitted by Nonoius. * Ranulph. Hidden. Hb. i. •J- Stillingflcet, Orig. Biitan. particularly ENGLISH GOVERNMENT. 95 particularly the cafe in the whole Weftcrn part of the ifland, from the Southmoft point of Cornwall to the Frith of Clyde ; not to mention the coun- try to the Northward, which the arms of the Sax- ons had not penetrated. In the territories where that people had formed their fettlements, there is ground to believe that, after the tumult and vio- lence attending the conqueft had fubfided, the two nations frequently maintained an amicable corrcf- pondence, were in fomiC meafure united in one fo- ciety, and enjoyed the free exercife of their reli- gion*. As their long neighbourhood produced, by degrees, a communication of civil inllitutions and culloms, it was likewife, in all probability, at- tended with fome approximation of religious opi- nions and obfervances ; and in this particular, it can hardly be doubted that the regular and well- eftabliflied fyftem of Chriftianity, to fay nothing of its genuine merit in other relpecis, would have great advantage over the unformed and loofeiy connected fuperftition of the barbarians. In the ardour of making profclytes, and in the capacity of propagating their tenets, the profelfors of the former muft have greatly furpafled thofe of the latter ; and it was natural to expect that the Saxons, in England, would at length follow the example of all the rude nations, who had fettled in the pro- vinces upon the continent, by adopting the reli- gion of the conquered people. What laid the foundation for a general and rapid converfion of the Saxons, was an event, which happened about an hundred and fifty years after * Thi» was fo much the cafe, that among the Eaft-Anglcs, according to the tt-ftimony of licdc, the Chrlftij>n worfliip, and the .Saxon idoLitrouj rites, were performed in one and the fame church ; fuch good neighbour- hood was maintained between tlie two rcHgions. " Atque in cudem fano et altare haberat ad facrificiiim Chrifti et Aruiam ad viiftimas diemoniorum. Quod videlicit fanum, ex cjufdcm provincix Alduulf, qui noftra :etate fuit, ul'que ad fuiim ti^mpus perduraflc, ct fc in putiitia vcUillc tcftabatur." Bed. Hift. £cch hb. a. eh. i;. their g6 HISTORICAL VIEAV OF THE their fettlement in Britain. Ethelbert, the fove- reign of Kent, having married Bertha, the daugh- ter of a king of the Franks ; this princefs, already a Chriftian, made open profeffion of her religion, snd brought over a French biihop to refide at the Kentifh court. This incident fuggefted to the Ro- man pontiff, Gregory the Great, a man of un- bounded ambition, the idea of converting the Anglo-Saxons to Chriftianity, and at the fame time, of eftablifliing his authority over the Britifh clergy, who had hitherto neither acknowledged the papal jurifdiclion, nor yielded an exact conformity to the tenets and obfervances of the Romian church. For thefe two purpofes, he gave a com- miffion to Auguftine, one of the monks of a con- vent at Rome, with about forty afiiftants, to preach and propagate the gofpel in Britain*. By the in- duftry of thefe, and of fucceeding miffionaries, the Chriftian religion was, in the courfe of about half a century, eftablifhed univerfally in all the king- doms of the Heptarchy. The authority of the church of Rome went hand in hand with Chriftia- nity ; and though the Britifh clergy ftruggled for a confiderable time to maintain their independence, 2.T.d their peculiar doclrines, they were at length borne down by the prevailing fyftem, and reduced into a fubordinate branch of the Roman Hier- archy-}-. The converlion of the Anglo-Saxons has been commonly regarded as an entirely new plantation of the gofpel, in the territories which fell under the dominion of that people ; and it feems to be ima- gined, that when Auguftine entered upon his mif- iion, there was no traces of Chriftianity remaining in thofe parts of the country. This opinion ap- pears to have arifen, partly from the fuppoiition, * Bed, Hift. Ecclefiaft. lib. i. c. 23. 25- f Bed. HIrt. Ecclef. lib. ii. feij. — Stiiiingfleet, Origin. Brit.—Henry's Kifl. of Great Britain. that ENGLISH GOVERNMENT. 97 tint the fettlement of the Anglo-Saxons was ac- companied with a total expulfion of the ancient in- habitants, and partly from a difpofition in fubfe- quent ecclefiaftical writers to undervalue that fyf- tem of church-difcipline and faith which had ob- tained in Britain, before it was fully lubjecled to the papal jurilciicbion. With refpecl: to the general extirpation of the Britons, it feems to be a perfect chimera. Neither is there any reafon to believe that they underwent any perfecution from the Saxons upon account of their religion. The rude polytheifm, profelTed by thofe conquerors, does not feem to have taken a firm hold of their minds, or to have infpired much animofity againft foreign deities or modes of wor- fliip ; and if, during the immediate corlqueft of the country, the Britifh clergy were fometimes plun- dered or maflacred, this, in all probability, pro- ceeded from no peculiar enmity to their religion, but from the ferocity natural to barbarians, who, in the heat of a military enterprize, could not be expelled to fhew much regard to the diftinclion of characters or profeflions. The effect of thefe difor- ders, however, was only partial and temporary. It appears that, even in thofe parts of the country where the Saxons had remained the longeft, the ancient church buildings were far from being en- tirely deftroyed ; for we learn from Bede, that, upon the arrival of Auguftine in Kent, he firft preached in a church, which had been erected by the Romans in honour of St. Martin, and that foon after, when the monarch of that kingdom had been baptized, orders were given to l)uild or repair churches, for the accommodation of the Chrillian mifllonaries*. Upon the full reftoration of Chriftianity in thefe parts of the country, which had been corrupted by * Hia. F.cclef. 1. i. c. a6. H the j;8 HISTORICAL VIEW OF THE the mixture of Saxon fiiperftition, the religions cftabhfliments, which had been introduced under tlic dominion of the Romans, and which had always been preferved in the unconquered parts of the ifiand, were completely revived ; with this dif- ference, that the Britifli churches, in the degree of their fubmiflion to the papal authority, were brought into a greater conformity with the churches upon the continent. It is probable that the ancient paro- chial divifions had not been entirely loft; more efpeclally in thofe diftrife, which the Anglo-Saxons had but recently fubdued when they embraced the religion of the former inhabitants*. The number of billiops, it is natural to fuppofe, and the extent of their jurifdiclion, were likewife dirccl:ed in fome meafure by the antecedent arrange- ments in the provincial government of Britain ; tho' from the changes produced in the ftate of the coun- try, many variations were, doubtlefs, become necef- fary. Of the three archbijhops who had formerly acquired a pre-eminence over the whole of the Bri- tilh clergy, one appears to have been funk by the disjunction of Wales from the Englifli monarchy ; fo that there came to be only two metropolitans under the Saxon eftablifhment. The archbifhop of the Northern department refided, as formerly, at York ; but the feat of the other, from the refi- dence of Auguftine, who obtained the chief ecclefi- aftical dignity, was transferred from London to Canterbury!. The revenue for maintaining the clergy was the fame in Britain as in all the churches acknowledging the jurifdiclion of the Roman pontiff. It confifted, partly of contributions levied in every parifh ; and partly of landed eilatcs, which the fuperftition of the people had led them to bequeath for pious ufes : • Whitaker, Hifl. of M:inchefler ; and the authorities quoted by him. I Ranulph. Higden. lib. i. but ENGLISH GOVERNMENT. 99 but the former of thefe funds remained longer than in the more Southern parts of Europe, before it was converted into a regular tax, and exalted to a tenth of the whole yearly produce. CHAP. Yl. Injlitution of Tythlngs^ Hundreds, and Counties. I N every nation it muft be a great object to pro- vide for defence ao:ainft the invafion of neisfhbour- ing ftates ; but in a rude age, the provifions re- quifite for this purpofe are few and limple. The great body of the people are foldiers, willing and ready to take the field whenever their fervice is necefTary, From the mutual depredations frequent among a rude people, they become inured to hard- fliips, and familiar with danger ; and having little employment at home, they are glad to embrace every opportunity of acquiring military reputa- tion, or of enriching themfelves with the fpoil of their enemies. Every perfon is therefore accuf- tomed to arms as foon as he is capable of ufmg them, and acquainted with the fimple manner of- fighting praclifed among his countrymen ; fo that, as the chief magiftrate finds no difficulty in raifing troops upon any occafion, he is put to little or no trouble in training and preparing them for thole military operations in which they are to be en- gaged. The apponitment of certain leaders in particular diftricT:s, to collecT: the forces upon any emergency, and to command them in time of battle, feems to H 2 be TOO HISTORICAL VIEW OF THE be all that Is wanted, in fucli a fituation, for put-, tino- a whole kingdom in a complete pofture of de- fence. A few regulations of this nature, arifmg obvioufly from the circumftances of a barbarous people, were, at an early period, eftablilhed among the Saxons in England, ^ as well as among their neighbours upon the continent. Every feudal fupcrior was the military leader of Lis own dependents ; but upon the fettlement of the Saxons in Britain the landed eftates acquired by the greater part of individuals were at lirft fo fmall as to render the number of their valTals inconlider- able; and the allodial or independent proprietors Avere therefore under the neceffity, amidft the dif- order that prevailed in thofe times, of alTociating for mutual protection and fecurity. Different fa- milies, connected by the ties of confanguinity or otherwife, found it expedient as \^'ell as agreeable to fettle in the fame neighbourhood, that they might on all occalions be in a condition to affift one another. Thus the inhabitants came to- be diftributed into villages of greater or lefs extent, according to circumftances ; and the members of every village, accuftomed from their infancy to live together, and finding themfelves united by a com- mon intereft, were led to acquire the ftrongeft ha- bits of intimacy and attachment. Thefe little fo- cieties received the appellation of vills, toivns, or free-bourgs. As thefe villages were formed upon the plan of defence, and were frequently employed in the exer- cife of hoftilities, there naturally arofe in each of them a leader, who by having the privilege of con- ducting their military enterprizes, obtained alfo a degree of authority in the management of civil aftairs. To this pcrfon the name of bead-borough or horJl^Jder (a word fuppofed by fome to be con- tracted from borough's elder) was commonly given. According ENGLISH GOVERNMENT. loi According to the early policy of the Anglo- Saxons, each of their villages was divided into ten wards, or petty diftrids ; and hence they were called tythings or decennaries^ as their leader was denominated a decaniis or tphing-man. This regu- lation appears to have been extended over all the kingdoms upon the neigbouring continent ; and in all probability it originated from the influence of ecclefiaftical inftitutions *. As, upon the firft eftablifliment of Chriftianity, under the Roman dominion, the form of church government was in fome refpecls modelled by the political conftitution of the empire, fo the civil go- vernment, in the modern Hates of Europe, was afterwards regulated in many particulars accord- ing to the fyftem of ecclefiaftical policy. When the Weftern provinces of the Roman empire were conquered by the barbarous nations, and creeled into feparate kingdoms, the conquerors, who fooii embraced the Chriftian religion, and felt the highefl refpect for its teachers, were difpofed in many cafes to improve their own political inftitutions, by an imitation of that regularity and fubordination which was obferved in the order and difcipline of the church. In the diftribution of perfons or of things, which fell under the regulation of the Chriftian clergy, it appears that, in conformity to the cuftoms of the Jewifh nation, a decimal arrangement was more frequently employed than any other. By the Mo- faic inftitution the people were placed under rulers of thoufands, of hundreds, of fifties, and of tens. A Jewifh fynagogue, correfponding to a modern parilh, appears at a fubfequent period to have been * The tcxvi\frce-burv\i fometimcs applied not to the whole tythingor village, but ti) tfich of thofc wards into which it was divided. [Sec the laws afcribed lo Wiiliaiu the Conqueror. Wilkias, c. ;?2.] But more frequently a fnt- burg and tything are underftood to bo fynoiiymou^. Sec the Gloir.triea of Spclman aiid Du Cange, v. FrWorga. put 102 HISTORICAL VIEW OF THE put muler the direaion of ten elders, of whom one became the chief ruler of that ecclefiaftical divi- fioii*. A tenth part of the annual produce was appropriated for the fupport of the Levites, as the lanic proportion of ecclefiaftical livings was claimed bv the high-prieft. Hence we find that, in modern Kiirope, 'the members of a cathedral church, as well as thofe of a monaftery, were divided into ten branches, each of which was put under a di- reclor, and the tenth of thefe perfons, or decanus, was intrufted with a fuperintendance of all the refi: f , Hence too the modern inftitution of tythes, and the pretenfions of the Roman pontiff, the Chriftian high-prieft, to the tenth of all the reve- nues of the clergy |.. When the Weftern part of Europe, upon the difiblutlon of the Roman government, had been reduced into a ftate of barbarifm, by which the inhabitants were neceflarily divided into feparate villages or fmall towns, each of thofe little com- munities was naturally formed into one congrega- tion, and annexed to a fingle church. The fame people who joined in public worfhip were alfo combined in their military expeditions ; and the fame arrangement, under different rulers, that had been adopted in the former capacity, was eafily communicated to them in the latter. This divifion * Dr. Lighsfool's Harmony of the Four Evangelifls, part .■5. on lAike ch. 4. vuhtion, as it would frequently feparate near re- btions, and place them under the command of dif- ferent omcer:;, inftead of uniting them under one common leader, with whom they had acquired a natural connection ; for as the accidental collections of kindred and acquaintance, who lived in the fame village or neighbourhood, could not be re- gularly compofed of ten families, nor of any given number, they muft of neceility have been fplit and tumbled with Grangers, in order to make up the icveral tvthings into which the people were thus artificially divided. If fuch a regulation ever had place in England, we muft fuppofe that it was in- trculuced by a political projecfor, neglecting to avail himfelf of the ufuai fources of authority in a rude nation, for the fake of introducing a finical regu- larity, and by a legillator inverted with fuch abfo- lute power, as might render him capable of enforcing meafures diametrically oppofite to the natural courfc of things ; a fuppofition which is neither ap- plicable to the characT:er nor the condition of the early monarchs of Britain. As the inftitution of tythings, together with that of hundreds, and of fliires or counties, was not limited to England, but had place in moft if not all of the feudal countries, there is good reafon to believe that it was not derived from artificial or diftant views of policy, fuggefted to any particular prince ; but that it proceeded from a concurrence of circumftanccs in the European kingdoms, by vi'hich it was recommended- to the 2;reat bodv of the people. That a tything was originally the fame thing with a village, and that it did not comprehend any pre- cifc number of perfons or families, may be con- cluded from this, that in the ancient law-language at England the words villy town, decennary, and tytbivg. ENGLISH G O V L R N iM E N T. ic- ty flung, have all the fame iignificatinn*. If a tything have the fame meaning with a vili or town, it is furely impoiliblc that it can lignify a collection of ten families only, without relation to the place of their refidence. Should we, on the other hand, fuppofe that a tything was regularly compofed of fo many families, the members of the fame tything muft frequently have relided in different to\\ns or viilasfes : in which cafe it would fometimes be ne- cefTary, in defcribing or pomting out thofe perfons, to mention the town which they inhabited, as dif- tincl from the tything to which they belonged, and thefe two terms therefore, fo far from being fyno- nymous, would come, upon fuch occafions, to be ufcd in direcl; oppofition to each other. But what puts this matter in a yet more confpi- cuous point of view, is an early regulation menti- oned by the Englifh lawyers, that e^'ery tything fhould have a church, with celebration of divine fervice, facraments, and burials f. If the limits of a tything, and of a town or village, were the fame, a regulat^'on of this fort would naturally be eftab- lifhed. It affords complete evidence that a parifli and tything were of the fame extent ; but how is it poiliblc to conceive that a parilh comprehended only ten families ? According to this doctrine every eleventh houfe muft have been a church, and the clergy muft have compofed the eleventh part of the whole people. To obviate this objeclion, it is held by fome au- thors that a family is not to be underftood in a lite- ral fenfe, but as comprehending all the vaflals and tenants of a proprietor, wJio in fome rafes were pretty numerous. Admitting, however, this ex- planation in its fulleft extent, it will only vary, in- ftead of removing the difliculty. It would ftill be * Blackftone's Comment, vol. I.Entrod. § 4. f Blackitone's Comment, vol. I. Introd- { 4. in io8 HISTORICAL VIEW OF THE in vain to expect that a village or town fnould always contain exactly ten of thefe enlarged families, or even any number of tens ; fo that it would often be requifr.e to patch up a tything from the rem- nants of different towns or villages ; and it would follow that thefe outcafts did not belong to the church in their neighbourhood, but, however dif- perfed over the country, and intermixed with other parilhcs, were united in one congregation, and were provided with a feparate church and miniiler of their own. The eftabliiliment of tythings, hundreds, and fhires, was primarily intended for the mutual de- fence of the inhabitants, but it was likewife ren- dered fubfervient to other very falutary purpofes. When the people had been alTembled in thofe meet- ings to engage in a military enterprize, or upon the conclufion of it to divide their booty, they had occafion to hear complaints of the injuries and dif- orders committed among themfelves. Every feudal fuperior was the natural judge of his own tenants and vaCTals ; but when a difpute had arifen between different allodial proprietors of the fame tything, there was no fmgle perfon poffeffed of fufficient au- thority to terminate the difference. The parties be- ing independent of each other in point of property, and therefore mailers of their own conduct, v/ere •under no neceffity, in a matter of that kind, of fubmitting to the orders of any individual. They aclcd in the fame manner with rcfpecl to the exer- cii'e of their civil rights, as with relation to peace -and war. In both cafes they coniidered themfelves as freemen, fubjecT to no reftraints, but fuch as arofe from the nature of their confederacy, or were impofed by their common confent. The fame motives, however, which induced a village or tything to enter into joint meafurcs for their defence againft a foreign enemy, determined I'lem alio to take precautions for compofing animo- fities ENGLISH GOVERNMENT. 109 fitles and differences among their own members. Roufed by the danger of a quarrel which might be fatal to their union, and which might render them an eafy prey to their neighbours, they readily intcr- pofed with all their influence to reconcile the par- ties, and to enforce their obfervance of the rules of juftice. A judicial power was thus gradually alTumed by every tything over the allodial or inde- pendent proprietors of which it was compofed. The hundred, in like manner, came to exercife a power of determining the differences between the members of the fevcral tythings, within the bounds of that larger diftricl ; as the meetings of the fliirc eftablifhed a fimilar jurifdiclion over the different hundreds comprehended in that extenlive territory. Thefe courts took cognizance of every caufe, whe- ther civil or criminal ; and as they enjoyed the fole jurifdiclion, in the firfl inftance, within the ref- peclive boundaries of each, they became naturally fubordinate one to another ; fo that from the deci- lion of the tything there lay an appeal to the hun- dred, and the fentences of this latter tribunal were reviewed in the greater meetings of the fliire. Thefe courts were held originally by all the allo- dial proprietors of each particular diftricl ; and the fame perfons had the fame right of preliding in their judicial procedure, as when their meetings v/crc called to deliberate upon military affairs. It is probable that every kind of law-fuit was at firft determined in full aflcmbly, and by a plurality of voices ; but in the larger meetings of the hun- dred, and of the fliire, it fhould feem that when the authority of thofe tribunals had been confirmed by cvilom, and their duty had become fomewhat burdtnfomc by the increafc of bufmcfs, conveni- ence introduced a practice of felccling a certain number of their members, to aflid their prcfidcnt in the determination of each particular caufe. Hence the origin oi juries, the precifc date of whofe eflab- lilliment I lO HISTORICAL VIEW OF THE liflimcnt is uncertain, bccaufe it probably arofe from no general or public regulation, but from the gradual and almoft imperceptible changes, autho- rized by common uiage in the leveral diftricts of the kingdom. The number of jurymen was for fomc time different upon diflerent occafions ; till the ad- vantages of an uniform pradice produced a general rule, which determined that no leis than twelve perions ihould be called in all ordinary caufes*. Concerning the inftitution of tythings, there is one regulation, connected with the adminiilration of juftice, that has been much taken notice of by hiftorians, and has excited the admiration of all political writers : the members of every tything are faid to have been refponfible for the conduct of one another; and the fociety, or their leader, might • The cnftom of choofing twelve men for diftributing juftice, is fre- quently nicntioned in the Anglo-Saxon laws. Thus, in a law of King fcthelrcd, it is faid, " Et ut habeantur conventus in quolibet wapentachio, " et exeunt feniores duodecim thani, et prefetftus cum iis, et jurent fuper " fanifluarium quod iis in manus datur, quod nolent ullum innoccntcm ac- " ciifare, ncc aliijuem noxium celare." — [Wilkins, p. I17.] In another law, afcribed to the fame king, commonly called th.e. funatus-confultum de imntLulis Wallid-, it is enacted, for the mutual benefit of the Englifli and M'elch, that controvcrlies between tlicm fliall be determined by twelve law-men, tlic Iialf of whom fliall be Engliflimen, the other half Welchmen. [Wilkins, '.'• 125.] Theie twelve pcrfons correfpond, it fliould feem, to tlie Radmhurgi and the Rcnhini, win) under the firft and fecond races of the kings in France aflifltd in the decifionof the court and of the centenarius. It has been fuppofcd by fome authors that both were not upon the footing of modern jurvmen, chofen out of the free men of a diftriifl for each caufe, but that they were permanent afl'eflors of the magiflrate and members of the court. See Brady's complete Hift. of Eng. — Hickes's DilT. Epiflol. But that either tliefe tweh'c men, or the Racimburgi, or Scabini, were permanent members of the court, appears improl-able, for the followng reafoiis : I. B'.'caufe thefc twelve men were chofen among the //tiiAvr ; and it is not likely that the fame perfons, of that rank, would fubjeiil tliem- tcK'es. to the drudgery of being conftant alTeflors to the magiftrate. 2. The number of Radmbingi or ScaLhii appears to have been varied, according to the importance of the caufes which they decided. This fuppofes a new tkilinn in each caufe. t,. If there was a regular bench of afi'clTors to the rhief niagiflrateof a county, it is wonderful that no traces of that inftitution lliould be foimd at prefent, more cfpeciaily in Scotland, where the county C04irts have been continued upon the ancient footing. Accordingly Horn, an author who lived in the time of Edward I. fays cxoKf-Iy, in his Mhroir de J^jTues that king Alfred put to death a number of his judges for deciding caufes without a jury. be ENGLISH GOVERNMENT. i m be profecuted, and compelled to make reparation for an injury committed by any individual. If we look upon a tything as regularly compofed of ten families, this branch of its police will appear in the higheft degree artificial and fmgular ; but if we confider that Ibciety as of the fame extent with a town or village, we fhall fmd that fuch a regula- tion is conformable to the general ufage of barba- rous nations, and is founded upon their common notions of juftice. Among barbarians in all parts of the world, per- fons who belong to the fam.e family are underftood to enjoy a community of goods, and to be all jointly fubjecled to the fame obligations. In thofe early ages when men are in a great meafure ftrangers to commerce, or the alienation of commodities, the right of property is hardly diftinguifhed from the privilege of ufin^ or pojfejhi^ ; and thofe perfons who have acquired thejoint poireiTion of any fubjecl are apt to be regarded as the joint proprietors of it. At the fame time, when a debt is contracted by one of feveral perfons who have a perfect community of goods, it muft of neceflity be difcharged from the common funds ; and the obligation of every individual becomes therefore a burden upon the the whole fociety. After a family has been enlarged, and fubdivided into different branches, their pofTeflions are not upon this account entirely feparated, nor their notions of common property altogether effaced. Though the different families, who are thus formed into a tribe or village, refide in different houfcs, their neighbourhood allows them ftiil to maintain a promifcuous intercourfe ; and their fituation dif- pofes them to acl: in concert witli each other in all their important employments and purluiis. As, in their expeditions of war and hunting, they go out in a body, fo, according to the primitive ftate of agriculture, they labour in the field, and gather in the TI2 HISTORICAL VIEW OF THE the harveft in common ; and what has^ been ac- quired by their united exertions, before it is divided amoni^ them by confent, is naturally conceived to be the joint property of all It is no hardfliip, that perfons conneclied in fo intimate a manner fliould be liable for the obliga- tions of one another ; and when an individual has become bound to a ftranger, who cannot eafily know for whofe benefit the debt was incurred, it fccms reafonable that the creditors fliould be allowed to demand payment from the community, who alone have accefs to diftinguilli the rights of their particular members. But the greater part of the debts contracfbed in a barbarous age arife from injuries and hoftilities ; for which it is ufual to make atonement by pecu- niary compofitions : and as in fuch cafes it com- monly happens, either that the offence was origi- nally committed by a v/hole village, or, if it arofe from a fingle individual, that the quarrel was after- Avards adopted and profccuted by the other mem- bers of the community, this appears a fufficient reafon for fubjecting them to a fhare of the puniili- mcnt. Tims, by the general cuftom of rude nations, the vengeance of the injured party for murder and other attrocious crimes is not confined to the guilty perfon, but is extended to his family, and even to the whole village or tribe of which he is a member. The profecution of claims, founded upon this gene- ral cuftom, makes a confiderable part of the hiftory of mankind in the early periods of fociety. Traces of this primitive law of nations may be difcovered even in fome civilized countries ; where, upon ac- count of enormous offences, the criminal, together with his innocent children, and other relations, have been condenmed to the fame common punifh- mcnt*. * See inftaaces of this quofd bv the acute author of The Hiflorical Law Trafts. Among ENGLISH^ GOVERNMENT. 113 Among the Jews, when a perfon was found mur- dered in the neighbourhood of a city, and the murderer was unknown, it feems to have been thought that the punilhment might with juftice be extended to all the inhabitants ; who are, upon that account, directed to perform an expiatory fa- crifice. " And all the ciders of the city that i^ " next to the flain man, fliall wafli their hands " over the heifer that is beheaded in the valley. " And they Ihall anfwer and fay. Our hands have " not fhed this blood, neither have our eyes feen *' it. Be merciful, O Lord, unto thy people Ifracl, " whom thou haft redeemed, and lay not innocent " blood unto thy people Ifrael's charge. And the " blood fhall be forgiven them." * When it is cuftomary to demand fatisfaclion from a whole village for the higheft perfonal injuries committed by an individual, it cannot appear fur- prizing that the fune privilege fhould be claimed upon acount of the ordinary violations of pro- perty. I am affured, from the moft refpeclablc autho- rity, that, in the villages belonging to the High- lands of Scotland, a rule of tliis kind has been immemorially eftabliflied. The ftealing of cattle was formerly the only fpecies of theft from which the inhabitants of that country could fuffcr any great prejudice ; and when ftolen cattle could be traced within the diftricl of any particular village, the in- iiabitants were liable to repair the damage, unlefs they could point out the track of the cattle, paffing again without their territories. This law, which was founded merely upon long ufage, remained in force at leaft as far down as the beginning of the prefent centuryj. * Deutcjon. chap. xxi. f It dots not feem to be fiippofcd l>y hiflorinns, that the Saxon regula- tions conccrnin;T tythings were extended to a country lb inaccellible as the Highland"; of Scotland. I It 114 HISTORICAL VIEW OF THE It was a cuftoin, we are told, among the ancient Iridi, " that the head of every fcpt^ and the chief " of every kindred, or flimily, fliould be anfwer- " able and bound to bring forth every one of that " fept, and kindred under it, at all times, to be " juftilicd, when he ftiould be required, or charged " with any treafon, felony, or other heinous " crime*." It is probable that this Iriih regula- tion was analogous to that of the other Celtic na- tions. From the code of Gentoo laws publifhed in 1776, it appears that a fimilar regulation has been intro- duced among the ancient inhabitants of Indoftan. If the foot-fteps of a thief have been traced, or if flolen goods are founci, within a certain diftance from any town, the thief is prefumed to be con- cealed in it. — And whenever a robbery or theft is committed in the neighbourhood of any town or city, the head-pcrfon of that town or city is bound to make up the lofs f . , Upon fome parts of the coaft of Guinea, the vil- lages or towns, it fhould feem, are liable for the obligations of every fort contracled by any of their members ; for we are informed,* that when a per- fon in that country neglects to pay a debt the cre- ditor is under no necefiity of arrefting the real debtor, but, in the deftricl where he refides, has the liberty of feizing, at pleafure, fuch a quantity of goods as will fatisfy the demand, leaving the fufferers to indemnify then elves in the beft man- ner they can+. About the middle of the thirteenth century, it appears that the ftates of Germany had very gene- rally adopted a fimilar practice j which is men- ' Spencer's View of the State of Ireland. f Code uf OcMtoo Liavs, ch. 17. feiA. 4. 6. \ Hift. Gen. des Voyages. Mod. Univ. Hid. tioned ENGLISH GOVERNMENT. 115 tloned by hiftorians as a proof of uncommon rude- nefs and barbarifm*. The inhabitants of the fame foreign country hap- pening, at any one time, to refide in London, were formerly viewed in the fame light, and any one of them might be profecuted for the debt's contracted by his countrymen. In a treaty be- tween Edward the Second and Alphonfo king of the two Caftiles, it is agreed, that the merchants of Bilboa, and the other towns of Bifcay, Ihall not for the future be arrefled, nor have their goods diftrained, for the debts of any Spaniard, for whom they have not become perfonally bound f. It is probable that the fmall number of Spanifh mer- chants refiding in London, and the diftance of their native country, made them appear as much con- nected as if they had been members of a fmgle rude village or tribe. This noted regulation concerning the Saxon tythings is therefore to be regarded as the remains of extreme fimplicity and barbarifm, rather than the effect of uncommon refinement or policy ; and in this view, it may be obferved that, in confe- quence.of fome improvement in the manners of tlic people, the originaf obligation impofed upon every tything, to repair the injuries committed by any of its members, was, in a period fubfcquent to that which we arc at prefent examining, fubjeclcd * TJie following paflage is quoted from Plefel's Abregc Chron. dc I'Hiftoire d'Allemagne. " Je ne puis paffcrfous filcnce une autre iiovcautc qui prouvc, oi) ne peut pas mieux, et le malheur dc ces tcms, et la barbarie des mecur* du fu'cle. C'eft le droit d'Otage. [Jus obflagioruni] Rien dc plus bizarre que ce droit. Un fouabe, un Bourgeois d'Ulm, lefe par un I.icgeois, ne fc don- noit pas Ja peine de pourfuivre fa partie, devant fa juftice ordinaire; il fc contentoit de mcttre la main fur le premier l^iegi'ois qu'il pouvoit rencontrcr, et le conflituoit prifonnicr a Uim, c'efl la qu'il faloit juger fa caufe, et i'U/Iy, ibid. fovcrci^n. 122 HISTORICAL VIEW OFTHE f )vereii;n, were led to affcrt that the original mem- bers of the Wittcnagemote were perfons under the king's immediate influence and direction ; from which it was concluded, that, fo far from being intended to controul the exercifc of his power, this council was called of his own free choice, for the purpofe merely of giving advice, and might of confequencc be laid afide at pleafure. Hence it was contended, that befide the bifhops and abbots, and the aldermen, both of which were fuppofed to be in the nomination of the crown, the other mem- bers of the Wittcnagemote, who received the ap- pellation of zuites or wife men^ were the lawyers or judges of the kingdom, who fat in the privy-coun- cil, and were likewifc in the appointment of the fovcreign *. Thole writers, on the contrary, who defended the rights of the people, appear, from their eager- nefs in combating this opinion, to have been be- trayed into the oppofite extreme. In their endea- vours to prove the independent authority of the ancient national council, they were induced to be- lieve, that, from the beginning, it had been mo- delled upon the fame plan as at prefent ; and that it v/as originally compofed of the nobility, the knights of fliires, and the reprefentatives of bo- roughs |. It requires no great fagacity or attention, at this day, to difcover that both of thefe opinions are equally without foundation. They may be re- garded as the delufions of prepoileffion and preju- dice, propagated by political zeal, and nouriflied with the fondnefs and credulity of party attach- ment. Nothing can be more improbable, or even Hume's Hift. of England, Appendix to Anglo-Saxon period. f Sir Robert Atkyns' Power, Jurifdiiftion, and Privileocs of Parliament. — Pftyt, Rights of the Commons aflerted. — Jani Angloruui facies nova. — Ar(!,.imtntum Antinormaaicum. — Tyrrcl's Bibliothec^ Politica. Lyttle- ton's I lift. ridiculous. ENGLISH GOVERNMENT. 123 ridiculous, than to fuppofe that the lamxrs or iudo-es of England were, immediately after the fettlement of tlie Anglo-Saxons, a body of men fo confiderable as to compofe the principal part of the Wittenagemote, and, from a title peculiar to them- felves, to fix the general denomination of that great aflembly. In a very rude age, the bufmefs of pleading caufes is never the object of a feparate profeilion ; and the deciding of law-fuits does not form a characteriftical diflincfion in the chiefs or leading men, who are occafionally employed in that manner. We may as well fuppofe that, in the pe- riod of Englifli hiftory now under conhderation, the Anglo-Saxon 'w'ltes or ivife men, were the phy- ficians,"the furgeons, and apothecaries, or the ma- thematicians, the chymifts, and aftronomcrs of the country, as that they were the retainers of the law. We have furely no reafon to believe that the laUer were, by their employment, more diltin- guiflied from the reft of the community than the former. Befides, if the ivites are underftood to be judges and lawyers, it will follow, that the ancient na- tional ilfembly was often compofed of that clafs of men exclufu^e of all others; for, in ancient re- cords, it is frequently faid, that laws were made, or public bufmefs was tranfacted, in a council of all the witcs of the kingdom. But it is univerfally ad- mitted, that the bifhops and abbots, as well as the aldermen or governors of ililres, were members of the Wittenagemote ; from Vv-hich it is a natural in- ference, that thefe two fets of people were compre- hended under the general appellation of wites. This may eafily be explained. The term wife fignifies, primarily, a man of valour, or military prowcfs ; and hence a man of high rank, a noble- man*. It has been ufcd, in a fecgndary fcnfe, to ♦ Somnci's Sax.Ditfl. V. JVUa. denote 124 HISTORICAL VIEW OF THE denote a iv'ifc man, from the ufual conneclion, efpe- cially in a rude age, between military fkill and -ex- perience or knowledge ; in the fame manner as an eld man, or grcy-hcadai man, is, according to the idiom of many languages, employed to fignify a ruler or governor. 'As tar as any conclufion, there- fore, can be drawn from the appellation of Wit- tcnagemote, or council of the wites, it is likely that'this national allembly comprehended neither judges nor lawyers, confidered in that capacity, but' that it was compofed of all the leading men, or ])roprictors of landed eftates ; in which number the dignified clergy, and the governors of Ihires, if not particularly diftinguifhed, were alv/ays under- Hood to be included *. The other opinion is not more confillent with the ftate of the country, and the condition of its in- habitants. It fuppoies that in England, foon after the fettlement of the Anglo-Saxons, the lov/er ranks of men were fo independent of their fuperi- ors, as to form a feparate branch of the commu- nity, inverted with extenfive political privileges. This opinion fuppofes, in particular, that the mer- cantile part of the inhabitants were become a dif- tin<51; order of the people, and had rifen to fuch opulence and authority as entitled them to claim a fliare in the conduct of national meafures. There is not, however, the leaft fliadow of probability in this fuppofition. Whatever improvements in trade and manufactures had been made in Britain, while it remained under the provincial government of Rome, thefe were almoft entirely cieltroyed, by the convulfions which attended the Saxon conqueft, and the fubjeclion of a great part of the ifland to the dominion of a barbarous people. The arts which remained in the country after this great revolution, * By a law of king Ina, it is enacled, that if any perfon fought in the boufcof the alderman, or of any other illiifrioiis ivite, he'lLotild pay a fine of jixty lliillings, Ste WUkins' Anglc-SaJicnicn, Leges Ina?, <;. 6. were ENGLISH GOVERNMENT. 125 were reduced to fuch as procure the mere neceflli- ries, or a few of the more fimple conveniencies of life ; and thefe arts, as has been ah'eady obfcrved, were hardly the objects of a feparate profeffion ; but were praccifed occafionally by the inferior and fervile part of the inhabitants. How is it pofTiblc to conceive, in fuch a ftatc of manufaftures, that the trading: intereft would be enabled to alTume the privilege of fending reprefentatives to the great council of the nation ? Even in thofe European ftates, vv'hofe advancement in arts was much earlier than that of the Anglo-Saxons, it was long pofterior to the period we are now examining, before the trad- ing towns were formed into corporations ; an event v\'hich muft have preceded their acling in a political capacity, and, confequently, their being repre- fcnted in the national ailbmbly. But, independent of this conlideration, which can hardly fail to produce conviction in fuch as are well acquainted with the early hiftory of modern Europe ; the fact in queftion may be determined in a manner ftill more deciiive and fatisfa\gium i.h'iro''raphum Icinda-veiuiit, digititates ■vera fna nom'ina Jubjcrlpfcrunt. Canute, in the fifth year of his reign, is faid to have held a great council, of his archbifliops, dukes, carls, abbots, cum quamplitrlmiu grcgarils ?it:Utibus, ac turn pupul't mult'ttiid'int: copiofa. In fome other inftances, exprefHons of a llmilar n.ihire occur ; fuch as vulgi confciifis, and piypiil'j ai.d'ienU d "v'ldcntc. [See the authors above quoted — as alfo Gurdon's Hidoryof the Parliament.] In many of thefk; cxprcliions a didinc- tion is clearly pointed out between the members of the ni-ctiiig and the inferior people that v/ere merely fpectators. It ought alfo to be remembered, that the greateft number of thole general phrafes, quoted for proving that the commons were reprefented in the Wittenagemotc, are ufcd only by rvritcrs after the Norman conqucit; who, in tranflatiiig .Saron laws, or in fpeaking of Saxon ufagcs, may be fuppofed to accommodate ihcir language to the ideai pre valcnt in their own times. fame 128 HISTORICAL VIEW OF THE f.imc time, good rcafon to believe, that the multi^ tude, faid to have been prefent at fome of thole meetincis, was partly compoied of mere fpeclators, who m!i;ht poilibly, by their acclamations, teftify their approbation of the meafures propofed. There is produced an inftance of a Wittenage- mote, held by one of the kings of Mercia, in the year 8 1 1 , in which a royal charter is faid to have been figned before " the Mercian chiefs, bifhops, " leaders, aldermen, procurators and relations of " the fovereign, together with Cuthred, the king of " Kent, and Suthred the king of the Eaft Saxons, " and all thofe who were prefent in the national " council*." As the members of the Wittenage- mote had immemorially the privilege of appoint- inn- any pcrfon to acl for them in their abfence, it has been fuppofed, with great probability, that the procurators here mentioned were the proxies of ab- fent nobles. In fupport of this conjecture, it is ob> ferved, that they are placed next in order to the nobles, and immediately before the king's rela- tionsf. But although there is no ground for believing that the rcprefentatives of the commons were ever admitted into the Wittenagemote, there can be as little room to doubt that, when the different Anglo- Saxon kingdoms v/ere firft united under one mon- arch, it compofed a very numerous aifembly. As, upon the fettlement of the Saxons in Britain, few perfons were in a condition to occupy large eftates, the number of allodial proprietors Avas proportion- ably encreafed. It is probable that the eftates of the greater part of individuals extended to no * Merciorum Opt'tmaff^, Epifiopas, Priiicipes, ComiUs, Procuratores, Treofquc propinquos, ncc non CiitbnHiim rcgcm Cantuariorum, atque Sutbrcaum rcacm Orient. Saxon, iiim omnibus qui t^'jlcs nnjiris fynodalihiis conciliabidis aderant. [Annals of Win- chelcomb.'J f Gurdon's Hiftory of the Parliament — In a charter of Athelftan, the prccurniors are alfo mentioned. But tliis charter was not granted in the Wit- tenagemote. [Ibid.j more ENGLISH GOVERNMENT. 129 more than a hide of land, or what could be culti- vated by a fingle plough, and that this property conftituted the primitive qualification for voting in the feveral Wittenagemotes of the Heptarchy. We hear of no partictular limitation in this refpecr, either in the reign of Egbert, or in any preceding period. It has been imagined by fome authors, that the privilege of fitting in the Wittenagemote was origi- nally confined to fuch as pofl'elled forty hides of land ; a property of great extent, which few indi- viduals, it is natural to fuppofe, could have an op- portunity of acquiring ; whence it feems to be in- ferred, that a fmall part only of the landed gentry were admitted into the councils of the fovereign*. This opinion is founded upon a paffage in the re- gifter of Ely, which mentions a diflinclion in point of rank, enjoyed by fuch of the nobles as poffefTed efcates amounting to forty hides of land. But this paffage refers to the ftate of the kingdom in the reign of Edward the confeffor ; when property had been fabjecled to the moft important revolu- tions ; and government had widely deviated from its original inflitution. No inference can thence be drawn, concerning the primitive conftitution of the national council ; which muft have arifen from the ftate of the inhabitants at the time when it was framed. How far the authority ^bove mentioned is fufiicient to juftify that conclufion, v\dth refpect to the later periods of the Anglo-Saxon govern- ment, will fall to be afterwards examined., It is therefore highly probable that the Wittenagemote of the Anglo-Saxons was originally fo conftituted, as to admit a great proportion of the people into a fliare of its deliberations ; and it merits attention, that even fuch of the inhabitants as were excluded * Dugd^le's preface to his Baronage. Hums'* Hlft. of Eogbnd, appendix tfl Anglo-Saxon pctiod. K from i-io HISTORICAL VIEW OF THE from this aflembly, were either the flaves, or the tenants and vaflals of thofe who fat in it.^ The former were thus placed under the protection of the latter. Men of inferior rank, though not for- mally reprefented in the national council, enjoyed, therefore, a degree of fecurity from the influence of their mailer or fuperior, who had an intereft to defend them, from every injuflice but his own ; and whofe jealoufy was ever watchful to guard them from any opprellion of the fovereign. The powers exercifed by the Saxon Wittenage- mote, were fuch as might be expected from the independent fituation, and the opulence, of its members. It poflefTed a fimilar authority over the whole kingdom, to that of any tything, hundred or fliire, over its own fubordinate divilion. In general, the Wittenagemote feems to have taken under its cognizance all thofe branches of govern- ment, which were of fufficient importance to merit its attention, and which, at the fame time, could be directed, in confiftency with the delays arifmg from the deliberations of a numerous aflembly. I. It exercifed, firft of all, the power of pro^ viding for the defence of the kingdom, and of de- termining the public military operations*. This was, in all probability, the primary object in call- ing that aflembly ; and for which, according to the moft ancient cuflom, it was regularly held twice in the year : in the fpring when the feed-time was over, to refolve upon fuch expeditio-ns as were thought expedient ; and, in the autumn^ before the harvcfl: began, to divide the plunder. A people fo rude, as the early Saxons, had little other bufl- nefs of importance but what confifted in the fow- ing and reaping of their grain ; and were generally dilpofed to employ the greatefl; part of the fum- .Seldon's Notes on Gov. of England, coUeded by Nath. Bacon, pai^t i. cLap. 20. and rhe authorities referred to. mer. ENGLISH GOVERNMENT. 131 mer, either in private rapine, or in hoftilities againft a foreign enemy. The fame feafons were obferved, for the meetings of the national council, in the other kingdoms of Europe. We are in- formed that, in France, the vernal meetings were originally in the beginning of March ; but that afterwards, from greater attention, it lliould feem, to the cares of hufbandry, they were delayed till the firft of May*. It may here be worth while to remark, that the power of declaring peace and war, which belonged indifputably to the Saxon Wittenagemote, affords complete evidence that its members were allodial proprietors of land ; for, upon the fuppofition of their being the vafTals of the crown, they mull have been bound, when called upon, to at- tend the fovereign in v.'ar, and confequently their confent would not have been requifite in under- taking any military enterprize. The fame authority, by which military enter- prizes were determined, make likewife a proviiion for carrying them into execution. As from the circumftances of a rude nation, every man was in a condition to furnifh a number of foldiers pro- portioned to the extent of his property ; it was a general law in the Saxon government, that the proprietors of land fliould be rated, for military fervice, according to the number of Ijidcs which they pofleffed ; and if any perfon refufed to con- tribute his proportion, he was liable to forfeit his polTefiions, and to be deprived of the public pro- tection. The creeling and repairing forts and caftles, as a defence againll the fudden incurfions of an enemy, and the maintaining a free communication, by roads and bridges, between the different parts of * This change is faiii ta Kave been made about the bcginixing of the fc- cond race of tlic trt-nth kings. K 2 the 132 HISTORICAL VIEW OF THE tlic kinn;dom, were objecls of police, which, in the lame view, attracted the notice of the Wittenage- mote, and for which individuals were ailcflcd in proportion to their wealth. The magnificent works of tliis nat^jre, which were executed by the Ro- mans, in all the provinces of their empire, contri- buted much to facilitate the progrefs of their arms, and to eftablilh their dominion over the conquered people. From their example, it is likely that the Saxons, in Britain, as v^^ell as the o^her nations, who fettled upon the continent of Europe, were incited to improvements of this nature which they would not otherwife have thought of. 2. When the members of the Wittenagemote had been aficmbled, and when they had fettled every point relating to their martial operations, their attention was frequently turned to other ob- jefts of national concern. Whatever inconveni- encies had been felt from the manner of conduct- ing public bufinefs, whatever abufes had been com- mitted in the adminiftration of government ; thefe were canvaffed ; and regulations were made for preventing the like evils for the future. It is not difputed that the Wittenagemote exercifed a legif- lative power over the whole kingdom ; and, of confequence, the power of repealing and altering the regulations introduced by the meetings of any particular tything, hundred or fhire*. The impo- fition of taxes, the moft important appendage of legillation, v/as likewife undoubtedly ailumed by this great affembly, fo hr as taxes exifted in that early period ; but thefe were, in a great meafure unknown ; the ordinary expence of government being defrayed out of the private eilate of the king, and &om the various emoluments annexeci to the regal dignity. • The preface to mofl of the colledious of Saxon laws publiflied by Wilkins. 3. To ENGLISH GOVERNMENT. 133 3. To this Icgillative power was added that of directing and controliing the exercife of the royal prerogative. Thus the demefnes of the cro\vn were confidered as not entirely the private eftate of the king ; but in fome me.iiure the property of: the public, which fell to be managed ajid difpofed of under the public infpeclion. The alienation, therefore, of crown-lands, though proceeding in the name of the king, was not effectual without the concurrence of the witcs ; and hence royal charters were frequently granted in the Witten- agemote, and fubfcribed by a number of its mem- bers*. The coining of money, in order to favc the trouble of weighing and affaying the metals which paf> in exchange, was a privilege early affumed by the king in the refpedive kingdoms of Europe ; and even by the nobles or great proprietors of land in the territories under their jurifdiclion. In the exercife of this privilege, great frauds had been committee! on many occallons, by debafing the coin below its ufual ftandard ; for preventing which abufes, the Wittenagemote, in England, appears to have fuperintcnded the behaviour both of the king and of the nobles, and to have regulated the coinasre throu2:hout the whole king-dom f. The members of this great council had no lefs authority in the government of the church than in that of the ftate. That they were early accuftomed to take cognizance of the eftablifhcd religion, ap- pears from Vv'hat is related of Edwin king of Nor- thumberland, who being foHcited to embrace Chrif- tianity, is faid to have anfwered, that in a matter of fuch importance he would be determined by the advice of his vv'ites and princes. In the Wit- tenagemote, all ccclefiafcical laws were made ; the * Of this privilege of the Whtenagcmotc tlicre occurs a rcmar'ic;ih!c iu- ftancc in the reign of Kifhert, in 836. Spclni. coiicil. t. i. p. 340. I Vv'jlkiu^ legc'Ti AlliclOuai. king's 134 HISTORICAL VIEW QF THE king's nomination of billiops and other dignified clergy was confirmed ; and their number, as well as the extent of their livings, was regulated. The fame national council gave fanclion to the eftablifhment of monafteries, and of the revenues with which they were endowed *. Not contented with directing the exercife of the executive power, the nobles and wites affumed, in extraordinary cafes, the privilege of calling the fo- vereign to account for the abufes of his adminiftra- tion. Of this a remarkable inftance occurs in the reign of Segebert, a king of the Weftern Saxons ; who, for his tyrannical behaviour, and after he had treated with contempt the remonftrances of his people, was, by a general afi'embly of the nation expelled the kingdom ; and another prince of the royal blood was elefted in his place. This event is faid to have happened in the year 755 f. Lafdy, when the members of the Wittenage- mote, had met to deliberate upon public bufinefs, they were accufiomed alfo to hear complaints concerning fuch great quarrels and afts of in- juftice, as could not be effedually redreffed by inferior judicatories, and to endeavour, by their fupcrior authority, either to reconcile the parties, or to decide their differences. By frequent inter- pofitions of this nature, that great council was at length formed into a regular court of juftice ; and became the fupreme tribunal of the kingdom ; in which appeals from the courts of each particular fhire, as well as original adions between the inha- bitants of different fhires, were finally determined. * Sclden's Notes collefled by N. Bacon, part i. ch. 20. and the authorities to which this author refers. I Saxes chronicle. CHAP, ENGLISH GOVERNMENT. 135 CHAP. VIII. State of the So'vere'ig^i ifi the primitive A7iglo-Saxo?i Go-vernnmit. T H E different parties of the Saxons, who in- vaded Britain, were each of them under the con- duct of fome adventurer, whofe fortunes they had followed, either from perfonal attachment, or from a confidence of his abilities. After they had fet- tled in the country, the fame perfon continued to have command of the forces, and became alfo the chief civil officer of the community. The longer he had remained in that high flation, his pofTeffion of it was rendered more fecure by the continuance of the fame circurnftances which had originally pro- duced his elevation. His military talents deriving luftre and importance from the diftinguifhed point of view in which they were beheld, excited the admiration and refpecl of his followers ; while the dangers with w^hich they were furrounded, and a fenie of their common interefl, united them in fighting under his banner. By every new expedi- tion they became more accuftomed to fubmit to his direction ; and the oftener they had found it neceffary to folicit his protection and affiftance, un- der thefe calamities to which they were expofed, they felt more fenfibly the advantages derived from his favour, as wtU as the inconveniences arifing from his difpleafure. In the early hiftory of the Anglo-Saxons, the leader of every feparate tribe or party, is accord-' ingly reprefented as pofTefling a permanent oflice, with the title of herotoch or duke, in place of which that of king was afterwards alfumed. 136 HISTORICAL VIEW OF THE The king was in polTcillon of a landed eftate, acquired in the fame manner with that of every inferior leader, by M'hofe affiftance the conqueil had been made. As the booty, arifing from any fuc- cefsful enterprize, was divided among the free peo- ple or heads of families concerned in the adven- ture, and, as on thofe occafions, each individual ob- tained a portion, both of land and - moveables, fuited to his rank and abilities ; it may eaiily be conceived that the property accumulated, in a courfe of time, by the fovereign, would be much greater than that of any one of his fubjects. His eftate was naturally diftributed among his dependents, according to the fame plan which was adopted by every other landed proprietor. A part of it was beftowed upon his kindred or free retainers, un- der the condition of military fervice ; and the re- mainder v/as cultivated by his villains, or bond- men, for fupporting the expence of his houfchold. Over thefe two claiTes of people, he exercifed the rights of a fuperior, and of a mafter. Throughout the reft of the kingdom, exclufive of his own par- ticular eftate, his authority was much more li- mited. Every allodial proprietor, unaccuftomecl to lubjcclion, and fupported by his own retainers, was more or lefs in a condition to maintain his independence ; and thofe who had acquired con- fiderable property, beholding with jealoufy the fu- perior dignity and pretenfions of the king, were commonly ready to combine againft him, either in refcnting or oppoflng, whatever they deemed an infringement of their liberties. The powers with which the fovereign came to be inverted, either in the different ftates of the hep- tarchy, or in the fubfequent monarchy which arofe from the union of thofe kingdoms, were fuch as, in order to prevent confufion and prom^ote the dif- patch of public bufmefs, were tacitly devolved upon liim, or as, from the nature of his fituation, he ha4 ENGLISH GOVERNMENT. I :'T had found encouragement to aflume, and had^ without oppolition, been permitted to exercire. The dignity and oiSce of the king, though higher in degree, were perfectly fimilar to thofe of the tythingman, the hundreder, and the earl ; and he polTeffed nearly the fam.e powers over the whole kingdom, which thofe inferior oilicers enjoyed in their own particular diftricls. I. By having the com.mand of the forces in the time of battle, the original fource of his greatnefs, he was led to direct their movements on other occa- fions ; to take preparatory fteps for bringing them into the field ; to fuggeil particular entei*prizes, to plan the meafures for condu cling them, to execute treaties with foreign flatcs, and in general to fuper- intend the defence of the kingdom, and the whole courfe of its military operations. 1. In confequence of his being at the head of the military department, the king was led alfo to exert his authority in fupprefling internal diforders, in quelling tumults and infurreclions, in retraining private rapine and violence ; in feizing offenders, and preventing their efcape from juftice ; in a word, he obtained the province of maintaining the ordi- nary police of the country, and the fecurity of its inhabitants. 3. As, from thefe two branches of power, he became the prime mover, and propofer of public meafures, and as, in matters of great moment, the concurrence of the Wittenagemote was neceflary ; he acquired, of courfe, the exclufive privilege of calling that afTcmbly, and of prefiding in all its de- liberations. The influence which he thence ob- tained, with regard to its determinations, may eafily be imagined. The prefidcnt of every nume- rous aflembly has many opportunities of moulding the bufmefs that comes before it, in fuch a fliapc as will promote his own defigns ; more efpecially, if \iy the permanent enjoyment of that oihce, he has kifure 138 HISTORICAL VIEW OF THE leifure to form a regular plan of management; and if, by having a difcretionary power of calling the particular meetings, he may regulate his moti- ons according as the aflembly happens, in different conjunclures, to be attended by different members. But while, by thefe favourable circumftances, the fovereign was capable of advancing his political in- tereft, he enjoyed the additional advantage of fupe- rior opulence and dignity ; which put him in a con- dition to intimidate, as well as to over-reach oppo- fition. To a prince, therefore, poffeffed of much prudence, and of popular talents, it was not diffi- cult, in ordinary cafes, to procure the corifent of the Wittenagemote to thofe meafures which he thought proper to fuggeft ; and the refolutions of that affembly, while they appeared to limit and controul the power of the crown, were at bottom, very often directed by the monarch, and rendered fubfervient to his will. 4. As the Wittenagemote enacted laws, diftri- buted juftice in the laft refort, and regulated the adminiftration of public affairs ; fo the duty of en- forcing the decrees and regulations of that affem- bly, and, in general, the executive part of the go- vernment, were naturally devolved upon the king. That great officer, who conducted the military force of the kingdom, could hardly fail to affume the province of cauling the punifhment decreed againft offenders to be regularly inflicted, and of compelling every individual to fulfil the decifions of the law. The fame perfon was led to procure information with refpecl to the commiflion of hei- nous crimes, and to dired that they fhould be pro- fccuted before the proper tribunals. In thefe em*- ployments, the fovereign acted as the head and re- prefentative of the community. In the fame capa- city, he obtained the nomination of many inferior ofBcers in church and flate ; the privilege of coin- ing money, and of fupcrintending weights and meafures ; ENGLISH GOVERNMENT. 139 meafures ; together with the exercife of all thofe powers which, from their nature, could not be con- veniently devolved upon a popular afTembly. Thefe prerogatives, which, from the natural courfe of things, and probably without any formal or exprefs regulation, were gradually annexed to the crown, became the fource of fuch perquintes and emoluments, as more than compenfated the trouble with which they were attended. The chief executive ofiicer, who profecuted a crime in the name of the public, had a plaufible pretence, upon the fame account, for levying the fine or forfeiture arifmg from the conviclion of the criminal. Befide::, in government, as well as in religion, the bulk of men are commonly fo engroffed by the image or picture, as to forget the original, and to beftow upon the reprefentative th-e fentiments due to the objeci it reprefcnts. Thus the fovercign, who ap- peared to direct, and to put in motion, all the wheels and fprings of government, who enforced the laws, who vindicated offences, and took upon himfeif the whole burden of providing for the public fafety, was apt to be confidered as exercifing, in his own right, thofe powers with which the community had invefted him. Thofe laws which he enforced Vv^ere conceived to be more immediately calculated for his own benefit : thofe oflicers whom he appointed were looked upon as the fervants of the crown ; and thofe crimes, which he profecuted and punifhed, were regarded as crimes committed againlt him in particular, for which he was, there- fore, entitled, of himielf, to demand reparation. The public revenue of the Anglo-Saxons, there- fore, by which the rank of the fovereign was maintained, and out of which the various expenccs of government were defrayed, confifted almoft en- tirely of two branches : the original demefnes of the king, acquired in the fame manner with the private eftatc of each allodial proprietor ; and the A'arious rjo HISTORICAL VIEW OF THE. raiious forfeitures and fines, whether of land or uiovcables, v/hich, from time to time accrued, or were tranfmitted to him, as the head of the com- munity. From this latter fourcc he derived a con- tinual accumulation of M^ealth. The diforder and violence, that prevailed fo univerfaily, gave occa- fion to the forfeiture of many rich individuals; and the king was commonly difpofed to negleft no opr portunity of feizing and improving fuch favours- hie conjunctures. In the greater part of crimes, as it frequently happens in the infancy of government, the criminal was not punilhed in a manner ade- quate to thepurpofes of public jufiice, but was ad- mitted to atone for his offence, by making a pecu- niary compofition with the fufferer. In thofe cafes, the king exaded a compofition as well as the pri- vate party ; and the profits ariling to the crown, from the innumerable fines and amerciaments, to w^hich this gave occafion, were one great caufe of the long continuance of that imiperfecl mode of punifliing offences. In this early flage of the conflitution, the reve- nue above mentioned was fufficient for ail the charges of public admdniftration ; which were then inconfiderable. Tiiere was no mercenary army to be paid by the king. The judges were either wil- ling to determ.ine differences among individuals, and to take cognizance of crim.es, without any con- fideration for their trouble; or they obtained a compenfation, by exacting fees from the parties who came before them. Taxes therefore were almoft entirely unknown. Their introduclion be- longs to the hiflory of a more advanced period of fociety. ^ But even this primitive revenue of the crown appears to have laid a found;:ition for the Witten- agcmote to interfere in the difpofld of it ; flnce the elkte, acquired by the king, in the character of the chief executive oliiccr, and as reprefenting the com- munitv. ENGLISH GOVERNMENT. 141 fiiunity, was, in a proper fenfe, the eftate of the public. This conclufion was not, indeed, applica- ble to the whole, though it undoubtedly was, to a conliderable part of the royal demefnes. But it was not the genius of that age to make nice dif- tinclions ; and the interpofition of the national council, in the management of fome branches of the crown revenue, might eafily be e'xtended to others that were placed in different circumftan- ces. We find that, not only in England, but in the other ftates upon the continent of Europe, the ar- rangements which took place in the management of the king's houfehold, and private eftate, had necef- farily great influence upon the government of the kino;dom. According; as the fovereigjn advanced in opulence and dignity, he was led to employ a greater number of fervants in the feveral branches of his domeftic ceconomy ; and the fame perfons, who enjoyed the chief confidence of their mailer in. that private capacity, became, in courfe of time, his minifters in conducting the bufmcfs of the na- tion. In all the European feudal kingdoms, the management of the king's houfe-hold was anciently divided into five principal departments ; and fell under the infj>ecfion of fo many great ofiicers. I . The firft of thefe v/as the Jleward^ or mailer of the houfliold, called upon the continent, the major donio^ the mayor of the palace^ or fenefchall ; who had originally the care of the king's table. Upon him was naturally devolved the bufinefs of gathering in the rents of the crown lands : for, as thofe rents were all payable in kind, and vvere in- tended for immediate confumption, it was moil convenient, that they fhould be delivered into the hands of that perfon by whom they were afterwards to be laid out for the fupport of the king's fa- mily. We 142 HISTORICAL VIEW OF THE Wc may cafily believe that, from the nature of his oilice, the mailer of the houftiold was in a con- dition to acquire much influence over all the tenants and vaflals of the crown. He was the perfon with whom they were obliged to fettle their accounts ; and who, from his minute acquaintance with their circumftances, was the moil: capable of giving his mailer information concerning them. He was, therefore, the perfon moil likely to be employed in adjufting their diiferences with one another ; and in confequence of his being the deputy judge upon the royal demefne, he came, at a fubfequent period, to be intruiled by the crown, with a fimilar power over the whole kingdom *. 2. As the colleclion and management of the vic- tuals, with v.'hich the king's table was fupplied, fell under the dired:ion of the fteward ; fo the care of the liquors was committed to a feparate officer, the a(p-bearer, or butler. In all the Gothic nations, per- fons of wealth and diilinftion lived in great fplen- dor, and were much addicted to drinking ; for which reafon, it is not furpriiing that the accom- modation of the fovereign, in this refpecl, was ex- alted into a feparate employment, and became an object of fuitable importance. 3. The care of the chambers was committed to a third OiHcer, the chamberlain ; whofe buiinefs it was to fuperintend the lodging of his mailer's family* As this officer was entruiled with whatever required to be locked up in the houfe, for the future fer- * Spelman v. major domo. This author fuppofes three different orders of major domo in the houiliold of the Gothic monarchs. The firft, who had the care of the king's table : the fecond, who prefided over the whole houfe- hold : and the third, who was employed under the king as chief executive officer of the kingdom. It feems evident, however, that thefe officers were originally derived from one, who, as he became great, appointed deputies to difcharge the inferior branches of duty incumbent upon him. In England the fteward, in the king's houfiiold, is mentioned under the name of Oecommus as early as the year 749. [See difcourfe on this office by Mr. Thynn in Hearne's Coll. of Antiquities.] But he does not feem to have acquired great power, as a minifter of the ciown, till the Norman conqueft. [See fame collevStion.] vice ENGLISH GOVERNMENT. 143 vice of the houfhold, he feems, upon this account, to have become the keeper of the wardrobe, and, at a mbP^q uent period, when the crown rents were paid in money, the king's treafurer or fuperintend- ant of the finances *. 4. Another of the king's principal fervants ob- tained the infpeclion of the ftable ; and was deno- minated the comes Jiabuli, or conjlable. When, by the keeping of many horfes, this department was rendered extenfive, it appears to have been divided into two branches ; the one belonging to the chief groom, or conftable ; and the other to the marefcha}^ or fmith. It is difficult to mark the period when this divifion was completed : nor is it an eafy matter to afcertain the relative degrees of importance and rank which might then be annexed to thefe two kindred employments. When the ufe of cavalry in war became frequent, we may eafily fuppofe, that the perfons, who had been accuftomed to rear and manage the king's horfes, would ftand forth, as claiming fuperior dif- tindion, and as having a peculiar title to be con- fulted. They were thus employed, under the fove- reign, in conducing that important part of the troops; and, by an eafy tranfitlon, acquired aju- rifdiclion in fuch controverfies, as were either of a mihtary nature, or had arifen in the army while it remained in the field f . 5. The writing of the king's letters, and the executing of the charters, or other deeds, that ifl'ued from the crown, became alfo the fubjed of a difi;inft occupation, that of tht fecretary. In thofe times, when the clergy had acquired great influ- ence, and when a proficiency in the art of writing * It is probable that the butler [pincerna] was, for along time, not ff- parated from the ftcward ; and in the early hiftory of England neither he nor the chamberlain feem to have been much diftinguinicd. f This officer v/as known to the Anglo-Saxons under the name of Stalh' rius. Spelm. Glofl". v. Conftabularius. The martffhal fccms to have been conftdcied aj thcdtp'jty of the conflablc. fuppofcd 144 HISTORICAL VIEW OF THE fuppofcd an uncommon degree of literary educa- tion, the only perfon likely to be quaiificd for this employment was the chaplain ; who might be confi- dercdas, in fome degree, the keeper of the king's confcicnce ; and who, from the nature of thofe religious ofTices which he performed, could feldom fail'to acquire the confidence of his niafter. When fignatures were introduced, for afcertain- ing the authenticity of writings, the office of keep- ing the king's feal, and of appending it to his deeds, was committed to the fame perfon who had been employed in writing them. As in determining law-fuits, it was found expe- dient, in many cafes, to take down the fentence Of the judge in writing, the fecretary was naturally employed for this purpofc ; and became keeper of the records of the king's court. From this branch of his duty, he got the appellation of chancellor ; which is fliid to have originally denoted %fcribe^ or notary ; being derived from cancella^ the place un- der the Roman government, allotted to perfons of that profefiion for carrying on their bufmefs *. As this arrangement in the domeftic adminiftra- tion of the fovereign, fuppofes confiderable wealth and magnificence ; it was probably of a later ori- gin in England than in feveral of the kingdoms upon the continent. It is reafonable to fuppofe that the whole of the king's houfliold was at firft committed to one principal fcrvant ; whofe bufinefs having been, by little and little, augmented and rendered more burdenfome, was at lenpth divided into thefe five ditierent departments. A fimilar plan of ad- miniilration, in a more limited fphere, vt/as adopted by every great landed proprietor ; who naturally multiplied his chief domeftics in proportion to the extent of his wealth \ and often followed the exam- • This officer is clearly diftinguifliabk in the Anglo-Saxon government. Spclm. V. Canc'jliari'js, pie ENGLISH GOVERNMENT. 145 ple of the king, by dividing the affairs of his houfc- hold into the lame number of branches *. The longer thefe great officers bad been eftab- 4ifhed, they rofe to higher degrees of confidera- tion ; and their authority was farther extended, from the fuperintendence of the king's houfliold, to the direction and management of the kingdom. As, for the moft part, they were originally chofen by the fovereign, upon account of their fuperior wealth, or abilities, which rendered them capable of fupporting his dignity in the execution of the bulinefs committed to them ; fo the truil and con- fidence which he repofed in them, together with the fliare of public adminiflration which they en- joyed, afforded them numberlefs opportunities of augmenting their private fortunes, and of increaf- ing their influence. In proportion to their advan- ces in wealth and power, they were in a condition to render their offices more permanent. They were originally nominated by the king during pleafure ; but that fuperiority, which had been the induce- ment to their firft promotion, became commonly more and more confpicuous during the continu- ance of their employments. It was, therefore, feldom found convenient to difplace them : and, even after their deceafe, the heir of that eflate which they had acquired was naturally regarded as the perfon bell qualified, and who had a preferable claim to inherit their dignity. By long ufage, thefe offices were thus rendered hereditary in particular families. To this obfervation, however, the office of chancellor, in moll European countries, is an * Pafquier in fpeaking of thefe great officers of the houfliold obfcrves, that they were gradually eflabliflied in the families of the great lords and gentle- men. " Parquoy efloient defl'us tous, cinq cftats plus eflimcz, le chancelier, " grand chamhellan, grand maiftre, grand efchanjon, que nos anciens apeU " loient grand boiitecller, et, conncflable. Nous cll.mt par cccy monftrec " une grand oeccuomie : car aulfi n'y a ii maifon qui vucille tant Ibit pcu '• paroitre, en laqucUe ces cinq eftats ne I'c trouvcnt cAre neccflaircs, cncoic " que cc ne foit avtc liltres dc telle fplendeur." Rcclicrchcs do la France, iiv, ii. chap. iz. L exception. T/,(5 HISTORICAL VIEW OF THE exception. As the chancellor was unavoidably a clergyman, who held his rank in the church, and the oftate connefted with it, only during life, he would commonly have neither any opportunity of iccuring the office to his family, nor any defire of annexing it to his ecclefiaftical dignity. Of the influence ellablifhed by the great oficer.s of the king's houHiold, the political conftitution of Germany affords a remjirkable inftance. When the dominions of that empire, by the conqueft of large territories in Italy, and in the Southern part of France, had been fo enlarged as to comprehend three diftincl kingdoms, the enr.peror was induced, in that fituation, to appoint three different fecreta- ries *. The officers of his houihold v/cre, upon this account, increafed to the number of feven. In the progrefs of the German government, the power of thefe great officers advanced, as that of the em- peror declined ; and after the imperial dignity had become intirely elective, they alTumed the privilege of propofing, to the national afiembly, the fucceflbr to the crown ; from which they at length pro- ceeded to claim the fole right of electing him.. Hence the origin of that precife number of perions whocompofed the primitive GtvYnin eledors. The fteward was originally the officer of greateft importance in the king's houffiold ; becaufe the fup- plying of his majefty's table with proviiions was regarded as the chief concern of the family. We accordingly find that, in fevcral countries of Eu- rope, the perfon who enjoyed this hereditary of- fice, attained a degree of rank and opulence which rendered him formidable to the fovereign. In France, the mayors of the palace, after having for a long time polieiTed the real power and authority * The firft was the fecretary for Germany, properly fo called; the fe- cond for Italy, and the third for Aries. It is remarkable that thefe chancel- lors, having become fee ular princes, their olSccs have been attached to their ecclcfiaftlcal dignity. of ENGLISH GOVERNMENT. 117 of the crown, were at length emboldened to throw olF the maik, and openly to mount the throne. When the life of cavalry In war had become very exteniive, and when that part of the feudal armies had the principal fliare in deciding the fate of bat- tles, the conilable, or mariflial, was frequently in a condition to difpute the fuperiority with the fcew- ard or mayor of the palace. Thus, in Germany, v/hen the throne happened to be vacant, the Elec- tor Palatine, the mayor of the palace, was anci- ently appointed, for preventing the bad confc- quences of an inter-regnum, to be the -virar of the empire. But in a fubfequcnt period, this high dig- nity was claimed by the elector of Saxony, the'con- ftable ; and, after, violent difputes, and various determinations of the diet, was at lad; divided be- tween thofe powerful competitors. In the ages of greater civility and improvement, when, from the complicated conneclions of fo- ciety, its laws became numerous and of difficult in- terpretation, and when, from the anxiety of indi- viduals to afcertain their rights, the charters and writings proceeding from the crovv'n were multi- plied in proportion, the fecretary, or chancellor, to \vhom the king committed that branch of bufincf;, was inverted with powers of the greateft confc- quence, and therefore was exalted to the higheil rank. In thofe opulent and poliftied nations which have long been reduced under an equal and regular go- vernment ; in v/hich the impartial diftribution of juftice is looked upon as almoft a matter of courfe ; and in which the Ibvereign is accuftomed to govern by influence, more than by the exertion of his pre- rogative ; in fuch nations, the perfon who prefides over the public treafury, who may be regarded as the fubftitute of the chamberlain, becom.cs the great channel through which the revenue of the ftate is L z conveyed, 148 HISTORICAL VIEW OF THE conveyed, and by which the authority of the crown is maintained. It is hardly neccffary to remark, that this diftri- bution of the bufmcfs in the king's houfliold, into five departments, reaches far below the fimple pe- riod of the Anglo-Saxon government which we are now confidering. But, on the other hand, it me- rits attention, that when the exaltation of the fo- vereign had m»ultiplied the occupations belonging to thefe' different branches, it became expedient, in fome of them, to appoint a variety of deputies ; many of whom, in particular kingdoms, rofe by degrees to fuch confidcration and rank, as to ap- pear no longer in a fubordinate ftation, and even to make the origin of their appointment be forgot- ten. This circumftance muft not be overlooked in perufing the enumeration, given by m.any hiftori- ans, of the principal officers in the court, or houfe- hold of particular princes. From the foregoing imperfect fketch of the pow- ers of the fovereign, as well as of the conftitution and privileges of the Wittenagemote, we may be enabled, notwithftanding the darknefs of our anci- ent hiftory, to form an idea of the original Englifli conftitution. How remote this was from an ahfo- lute monarchy, muft be apparent to every one, who confiders that the privilege of legillation, together with that of determining peace and war, and even that of controuling the executive power, was lodged in the national aflembly. Neither can this govern- ment be deemed in a high degree, ariftocratical ; fmce the national council was compofed not of a fmall junto of nobles, but of all the landed pro- prietors, comprehending a great proportion of the whole people. It feems, in fa«5l, to be that fort of political fyftem v/hich is likely to be eftablifhed in all rude and exteniive countries ; before a few in- dividuals have accumulated fo much wealth as ena- bles them to domineer over their inferiors ; and before ENGLISH GOVERNMENT. 149 before the king, in confequence of his high fta- tion and prerogatives, has had leifure to acquire a revenue fuflicient to overthrow and bear down any oppoxition that can be apprehended from the moft opulent of his fubjecls. It cannot, however, efcape obfervation, that, although the powers committed to the monarch by the early Saxon conftitution, were fmall, they were not accurately defined ; and that in the exercife of them he enjoyed, upon this account, a good deal of latitude. Accurate limi- tations of power, and a regular fyftem of fubordi- nation, the fruit of experience and forefight, can- not be expecled to characlerize the inftitutions of a limple people ; who are ufually guided by their feelings more than by refleclion, and who attend more to the immediate ei^eds of any meafure, than to its remote confequences. As the Anglo-Saxon princes v/ere entruiled \vith every branch of pubHc adminiftration, in which the Wittenagemote did not think proper to interfere ; their conducl was directed in a great meafure, by particular conjunc- tures, and by the different unforefeen events which accidentally required their interpofition. "We need not be furprifed, therefore, if in perufmg the hiftory of that period, while we difcover ll:rong marks of the weaknefs of the crown \vc (liould alfo meet with fome extraordinary exertions of the prerogative ; and fliould at the fame time obferve, that thefe v.'cre fuffcred to pafs without cenfure, or even with- out notice. It is a common fource of miifake, among political writers, to confider thefe extraor- dinary exertions as proofs of the ordinary ftate of the government ; and to adduce as an illuftration of the general practice, what is only the random and cafual exercife of a po\\'er, not yet brought to a regular frandard. We Ihall now examine the changes produced in the Englilh conilitution from the reign <;>f Egbert to the Norman conquelc. CHAP. uo HISTORICAL VIEW OF THE CHAP. IX. 0/ the principal Events from the Reign of Egbert to the Norman Conqiieft. V\ H I L E England, by the union of the dif- ferent dates of tlie heptarchy, was emerging from barbarifm, and laying the foundation of a great and powerful kingdom, a new enemy involved her in a feries of frelli calamities ; and contributed to re- tard the progrefs of her improvements. The inha- bitants of the Northern part of Germany, who retained their ancient manners, and were IHU much addicled to piracy, continued to infeft the coalls of Britain and France, and of fuch other European countries as, by fome advancement in cultivation, prefented an inviting profpeft of plun- dcr. About the reign of Egbert, feveral bands of thofe pirates, knovv^n by the general name of Danes, landed in England ; and, after committing great ravages, were generally fuccefsful in carrying off their booty. Upon the death of that prince, whofe vigour had kept them vmder fome reftraint, their incurfions became bolder and more frequent ; they made their attacks in larger parties ; and, having been often victorious over the forces that could be afiembled againil them, they were at length en- couraged to form fettlements in diiTerent parts of the country. From tke time when the kingdoms of the heptarchy were united, to that of the Nor- man conqueft ; a period extending to about two hundred and fifty years, and comprehending a fe- ries of nineteen monarchs ; the Englilh were, with little interruption, engaged in a courfe of hoftilities with thofe invaders ; and fubjecled to perpetual inquietude and difordcr. In the reign of Alfred, the ^randfon of E2;berL, the Danifh arms had been fo ENGLISH GOVERNMENT. i; i fo fuccefsful, and their acquifitions had become fo extenfive, as to threaten an entire conqueft of the kingdom. The hiftory of that prince exhibits a pattern of the hero and ftatefman, equal to whatever is re- corded of ancient patriotifrn, and even to what- ever correct nclion has been able to fuggeft, in order to excite admiration and efteem. During the reign of Ethered, his elder brother, by whom he Vv'as unjuftly deprived of the patrimony left him by his father, he difcovered neither any marks of retentment for the private injury he had fuitained, nor of what prevailed fo univerfally among the princes of that age, an ambition to poflefs the crown ; but with uniform alacrity feconded all the public meafures of the king ; and, vv'hile yet at an early period of lif?, difplayed uncommon valour and talents, in oppofmg the enemies of his country. When he afterwards fucceeded to the throne, his magnanimity and hrm.nefs v/ere put to a fevere trial in the fchool of adverfity. Though he had been vidorious over the Danes in many conflicts, yet the fv/arms of thofe invaders multiplied fo fail, and from every quarter puflied their depredations with fuch rapidity, that the Englifh, throughout the greater part of the kingdom, became quite dif- heartened, and fubmitted to the conqueroi's. His ancient fubjecls, the Weftern Saxons, alone retain- ed their fidelity, and fupported the intereft of their monarch : but thefe were incapable of re- filling the torrent which broke in upon them, from the accumulated force of thcii- enemies. Af- ter many fruitlefs efforts, and upon a fuddcn re- port of a new invallon by a powerful body of Danes, that fpread univerfal conftcrnation, the king found himfelf almoil entirely abandoned ; and, be- ing able no longer to keep the field, was obliged to difl^and his remaining adherents, and to pro- vide for his prefcnt fafety j he was even under the necelHty 152 HISTORICAL VIEW OF THE necefiity of concealing himfelf by various artifices, and in mean difguifes. The diftreffes to which he was expofed, and the private adventures which he met with, in that fituation, appear not unworthy of notice ; as they relate to a perfon of fuch emi- nence ; and as the fate of England depended upon his furmounting the difficulties in which he was involved. In the garb of a common foldier he re- mained for fome time unknown, in the houfe of one of his own herdfmen : upon which occafion, hiftorians have mentioned a little incident, which exhibits a ludicrous picTiure of royalty placed in awkward circumftances without being degraded by them. While the king was one day fitting by the fire-fide, and trimming his bow and arrows, the woman of the houfe, who had no fufpicion of the quality of her gueft, happened to be toafting bread; and having occafion to go about fome other affairs, fne found, at her return, that the cakes were burned ; with which being greatly provoked, flie heartily fcolded his majeily, telling him, that though he neglected to turn her cakes, he was always very ready to eat them. Meanwhile the royal demefnes became a prey to the Danifh forces ; who being no longer retrained by the apprehenfion of an enemy, gave a loofe to their cruelty and rapacity. Alfred reduced in this manner, to the condition of an outlaw in his own dominions, and having collected a few faithful fol- lowers, v/andered for fome time from place to place, finding fhelter from the woods and marlhes, which covered a great part of the country, and which were of difficult accefs even to the natives themfelves. But his principal retreat was in the middle of an extenfive morafs, formed by the ri- vers Thone and Parret in Somerfetfhire ; which was almofi; entirely furrounded with water ; and which afforded great plenty of fallow deer, and other wild animals fit for fubfifi:€nce. In this place the ENGLISH GOVERNMENT. 153 the king took up his refidence, and creeling fomc fortifications, remained for near the fpace of a twelvemonth. Here he had leifure to reflect upon the uncertainty of human grandeur ; to weigh the real value of all human enjoyments ; and to re- volve in his mind thofe benevolent and patriotic plans, by the execution of which he came after- wards to be revered by his countrymen, and has excited the admiration of mankind. From this retreat he made many fecret excurfions, in order to procure information or plunder, and to revive the drooping courage and fpirits of his companions. At length the earl of Devonfhire, having fud- denly attacked and routed a large body of the Danes, prefented to Alfred a favourable opportu- nity of appearing once more in the open field, and of animating his fubjecls to hazard another at- tempt for the recovery of the kingdom. Amid all the difficulties and dangers to which this jno- narch was expofed, he appears to have uniformly difcovered a mind cool and deliberate, refolute v/ith caution, fruitful in expedients, and dexter- ous in executino; fuch mxafures as the finsfuiar and defperate pofiiure of his affliirs made it advifeable to adoDt. On this occafion he is faid to have em- ployed a ftratagem, fuited to the ftate of difcipline in the armies cf that age, and which recals the memory of thofe military adventures related in the early periods of antiquity. In the difguifc of a minfiircl and fortune-teller, attended only by one companion, he vifited the Danifh carnp ; and fup- portcd the charadler with fo much addrefs, as to afford univerfal entertainment, and to pafs through every quarter, not excepting even the general's tent, without incurring the Icafl fufpicion. Having thus procured every pofilblc information, and hav- ing, by means of a previous intercourfe with his nobles, fuddenly collected a great body of his fub- jecT:s, he found himfelf at the head of a powerful army, 1-4 HISTORICAL VIEW OF THE army, exulting at the recovery of their monarch, and eager to be revenged of their opprelTors. With this force he fell unexpectedly upon the enemy ; and entirely defeated them. His vittory was fo complete, that the Danes were incapable of any further oppohtion ; and in a little time after were entirely fubdued. Some part of them were driven out of the kingdom ; the reft were under the ne- reiTity of fubmitting to fuch terms as he thought proper to impofe. The moderation and clemency of this prince, 5nd the prudence which he difplayed in the im- provement ot thefe advantages, were no lefs con- foicuous, than the vigour and abilities by which they v/ere obtained. The Danes who fubmitted to him were fent to refide in Eaft Anglia, Northum- berland, and fome of the neighbouring parts of the kingdom, where many of their countrymen had long been fettled ; and they were adm.itted to the enjoyment of the fam.e privileges with his other fubjecls. By the zealous interpolition of Alfred, they were alfo happily perfuaded to embrace the Chriftian religion ; a circumftance neceflary to re- move their prejudices againft the ancient inhabi- tants, and to unite thofe different tribes cf people in one community. Upon the reftoration of peace, the lirft attention of the monarch was employed in providing a fleet, fafficient to cppofe any new invafion of the Daniili pirates ; in creeling fortifications upon the coafts more immediately expofed to their depredations ; in makino; re2:ulations for aflemblins: the inhabi- tants upon any fudden emergency ; in rebuilding the towns that had been deftroyed ; and in repair- ing the wafte and defolation which the country had fuffered from a long courfe of rapine and vio- lence. To compile and publifli a code of ftatutes, is, in a rude nation, a meafure of the higheft utility, for inftrufting ENGLISH GOVERNMENT. 155 inftrucling an ignorant people in tliofe rules by which they are to be governed ; and accordingly we find that this has been tJie great obje6l of al- moft all the diluinguiflied princes of an early pe- riod. It appears that Alfred bellowed much la- bour and time upon a work of this nature ; of which the greatcil part is now loft. It is probable, that, from the various feudal inftitutions and cuf- toms, which had prevailed either in England or upon the neighbouring continent, he feietted fuch as v/ere accounted the moft beneficial, and moft adapted to the peculiar circumftances of his time and country ; and that, having eftabliflied thefe regulations by the authority of his great council, he endeavoured, in the moft effeclual manner, to produce a degree of uniformity in law and govern- ment, throusfhout the whole of the kinn-dom. We are not, however, to imagine, that all dif- ferences in the cuftoms of different parts of the country were thus entirely aboliftied. On the con- trary, we find that, in confequence of the nev/ fettlements in the Northern part of the kingdom, a multitude of Danifh cuftoms had been intro- duced ; and that the people v/cre now diftinguifhed into three great branches, according to the varie- ties in the fyftem of pr'/ate lav/, eftabliflied among the Weftern Saxons, the Mercians, and the Danes. But the promiulgation of good laws is, for the moft part, and efpcciaily in a country remote from civilization, a matter of Icfs diHiculty and impor- tance than the vigorous and impartial execution cf them. When a regulation is made, the bene- ficial objecls, which it is intended to promote, are commonly furveyed in that diftant and difpallion- ate view which admits the full exertion of patrio- tic affections ; but when it comes to be enforced by the punifliment of tranfgreffors, it then fre- quently alfumes a different afpe6f ; and the intereft of the public is likely to be obfcured and counter- adcd 156 HISTORICAL VIEW OF THE acled by the private connexions, and by the parti- ality and prejudice of individuals : not to mention that the fplendor and eclat, which accompany the temporary interpofitions of the legillator, do not de- fcend to the unremitting and laborious attention, to the painful and invidious talk, of thofe inferior magi- i>rates who render the law effectual. It v^'as here that the genuine virtue of Alfred appeared moil: confnicuous. From the loner courfe of depredation to which England had been expofed, that country was become a fcene of the utmoft licence and dif- order ; exhibiting, on the one hand, a people fierce and barbarous in their manners, accuftomed to live by robbery and violence ; and on the other, a fet of nobles, in reality the leaders of different pillag- ing parties, abufmg that authority and jurifdiclion with which they were invefted, by protecting their adherents from puniihment, and by opprelling diofe who had fallen under their difpleafurc. Yet fuch was the attention of this monarch to the in- terior departments of government, fo great waf, his vigilance in examining the condu<5l of judges and his rigour in punifhing them for malverfation in ofiice, that, in a fliort time, thefe evils Vv^ere in a great meafure removed, and an equal and regu- lar adminiftration of juftice was introduced. In one year of his reign no fev.'-er than forty-four magi- ftrates, it is faid, were put to death, for mifbeha*. viour in their judicial capacity ; a proof that cor- ruption and licentioufnefs had rifen to an amazing pitch. There can be little doubt, that in the ac- counts tranfmitted by hiftorians, the accuracy and regularity of the police, ellabliflied by Alfred, has been greatly exaggerated ; but even thefe exagge- rations, the ufual effects of wonder and admira- tion, may ferve to convince us, that he made great improvements upon the former fyftem. V/e are informed that, in order to try the fuccefs of his inftitutions, he caufed golden bracelets to be hung up near the highway j and that no perfon, fuch was ENGLISH GOVERNINIENT. i-^-j was the terror of the magiftrate, adventured to touch them. By the eftablifhment of good order and tran- quillity, the people were encouraged to follow thofe peaceable occupations which had been totally interrupted by the preceding diforders. The king was indefatigable in his efforts to promote manu- factures, and to excite the induftry of his fubjecls ; by employing artificers in great public works ; by inviting foreigners to fettle in the country ; and by rewarding the inventors of new arts. He con- tributed, in a particular manner, to the extenfion of foreign commerce, by protecling it with his fleet, and by bellowing marks of his favour upon fuch as became eminent for their Ikill in navi- gation. He was no lefs attentive to the encouragement of literature, not only by his patronage, but alfo by his example. His ardour, in this Vefped, was the more remarkable, as it furmounted the dilad- vantages he lay under from the negled of his early education ; for, among the anecdotes v/hich have come down to us concerning the private life of Alfred, it is related, that he was twelve years of age before he had been taught to read ; and that he firft felt a defire of being inftrucled, in this par- ticular, from the recital of certain pieces of poetry, with which the queen his mother was much de- lighted. Prompted, however, by a ftrong incllna* tion for literary purfuits, he foon became, not only a proficient in the Latin language, and in fuch branches of learning as were rcfpecled in that age but even a writer of eminence, both in profe and in verfe. As a poet, he feems to have employed himfelf chiefly in tranflating, or compofing, fables, or apologues. Thefe compofitions are ufually the firft attempts, in a rude nation, to illuftrate, by limple and familiar examples, the proverbs, or maxims for the condud of life, which obfervatioa and 15S HISTORICAL VIEW OF TH^ and experience have fuggefted, and which, as con* taining important information to an illiterate peo- ple, are frequenrly repeated, and appealed to, in ordinary converfation. The labours of this emi- nent ftatefman appear, in that particular, to have coincided with thofe of the firft great teacher of morality among the Greeks. It is probable that thofe two celebrated perfonages were directed in the choice of their fubjed: by a fimilarity of cha- racter ; and it may perhaps be fufpectcd, that both of them were more remarkable for their philo- fopliy and public fpirit, than for their poetry. Hillorians have mentioned the bodily accomplifli- ments of Alfred, as correfponding to the extraor- dinary endowments of his mind. He was diftin- guiilied by the ftrength and aftivity, as well as by the dignity and gracefulnefs of his perfon ; and while his dexterity and addrefs, in martial exercifes, excited univerfai applaufe, he gained the hearts of his fub- jecls by an afiable and engaging deportment. After all, though the hiftory of this monarch may be accounted fufficiently authentic, to afford r^ foiid conviction of his exalted merit ; fome al- lowance, no doubt, muft be made for the colour- ing produced by that admiration which was due to his character, and which has been heightened by the remotenefs of the period in which he lived. We need not be furprized, therefore, to meet with errors and prejudices, concerning his public tranfactions ; and in particular, to fmd that he was fuppofed to be the author of feveral regulations, which he only revived, or brought to greater per- fection than they had formerly attained. The great changes v/hich he produced in the flate of his country, by bringing it from anarchy and con- fuiion into a degree of order and regularity, led his countrymen, in fubfequent ages, to fix their attention upon him, as the perfon from whom they had derived the entire model of their conftitution. He ENGLISH GOVERNMENT. 155 He is thus held, by many hlftorians, to have f,r9: divided the kingdom into tythings, hundreds, and fhires, and to have introduced a peculiar fyilem of policy connecled with thofc divilions ; tliouijh it feems now to be clearly proved, that thefe regula- tions exilled in England before his time, and that they extended to other European kingdoms. The inftitution of Juries has, in like manner, been af- cribed to this monarch ; though there is good rea- fon to believe that it arofe from the general litua- tion of the Gothic nations ; and that it had a very early eftablifhment in all of them. Alfred, in a word, has become the Englifli Lycurgus ; and his interpofition is the great engine which politicians have employed for explaining the origin of fuch particulars, in the Engliih government, as have excited uncommon attention, and are too remote, in their beginnings, to fall within the limits of au- thentic hiftory. For near eighty years after the death of that prince, England appears to have been fuccefsfully defended againft every foreign invafion ; though file experienced a variety of difturbances, occaii- oned by the domeftic quarrels and infurredions of the Danes and other inhabitants of the country. During this period we may diftinguilli the reigns of Edward the elder, the fon of Alfred, of Athelllan, and of Edgar, as remarkably vigorous ; and as filled with exploits, which, if they make no fplen- did figure in the general fcale of hiftorical events, were, however, of confiderable confequence to the peace and internal tranquility of the kingdom. Thofe princes are faid to have adopted a meafure, which appears extremely fmgular, in the hiflory of that early age. They are faid to have kept in pay a regular body of troops, collefted from their Danilli fubjecfs ; whofe military chara(!^er, it feems, was fuperior to that of the other inhabitants. Though the bulk of the people were not unlit for v/ar, and, by their i6o HISTORICAL VIEW OF THE their ordinary employments, were not hindered from taking the field upon very ihort preparation ; yet the numerous piratical invafions to which they were expofed, and by which they were held in con- tinual warfare, fuggeftcd the fame fort of military cftablilhment that has been found convenient in alt civilized nations. The Danifli families were em- ployed, in preference to the Englifli, from the fame policy, which, in later times, made the inhabitants of Switzerland be engaged in the fervice of many European princes. As thofe mercenaries, however, were quartered about the country, and were pro- bably not much under the controul of the civil magiftrate, they were guilty of many irregulari- ties ; and rendered themfelves univerially odious. They pofTcfTed all the power, and difcovered, we may fuppofc, all the infolence of a {landing army ; unreftrained by the watchfulnefs of a regular go- vernment, or by the influence of civilized man- ners. Hence the appellation of a hirdane^ or lord- dane^ v.'hich was beftowed upon them, came to be ufcd as a term of reproach ; and lignified an idler and opprelTor. Their fituation led them, at the fame time, to feek diftinftion, by the fuperior ele- gance of their drefs and behaviour ; and we are toldj that they were accuftomed frequently to change their cioaths, to comb their hair once a day, and to bathe or wafli themfelves every Sunday. By thefe effeminate arts they became the favourites of the women ; and were fo fuccefsful in their gallantries, as to debauch the wives and daughters of many noble families *. In the reign of Ethelred, a v/eak and pufillani- mous prince, England was again infelled by more numerous fwarms of the Northern pirates ; and at * " Kabebant ctiam ex confuetudine patriae unoquoque die comam pec- " tere, fabbatis balneare, fsepe etiam veRituram mutare, et formam corpor " ris muhis talibus frivoHs adjuvare ; unde et matronarum caftitati infidea- «' bantur, et filias etiam nobilium concubinarum nomine detiuebant." — Chron. Jo«ta. Wallingford, length ENGLISH GOVERNMENT. i<$-r length was invaded by a formidable army under Sweyn, the king of Denmark, and Olave the King of Norway. Ethelred, unable to refift thefe united forces, had recourfe to the ineffectual and ruinous expedient of purchafmg peace by the offer of a pe- cuniary compofition ; and when thofe princes had returned to their own country, he excited his Eng- liih fubjecls, to gratify their refentment againfl the Danes, by taking advantage of their fecurity, and putting them to death in cold blood. The extent of this maffacre, fo difgraceful to the monarch, and to the nation, cannot eafily be afcertained. The greater part of the hiilorians confider it as ex- tendinci: to the whole of the Danifh race, at that time to be found in England ; but the improbabi- lity of this, together with the authority of one an<:ient author, makes it reaH)nable to fuppofe, Vv'ith Mr. Hume, that the fluughter was, for the mofl part, limited to thofe mercenaries againfl whom the rage of the populace was more imme- diately directed. To revenge an act of fo much perfidy and cru- elty, Sweyn, without lofs of time, made another defcent into Britain ; and after deftroying many of the towns, and defolating a great part of the coun- try, feems to have meditated an entire conqueft of the kingdom. He did not live to complete his de- figns ; but thefe were profecuted by his Ion Canute ; who met with little oppofition ; and in a Ihort time added the Englifh monarchy to that of Denmark, which hepolT'eiTed by inheritance. This prince, by his abilities, by the prudence and lenity of his admi- niftration, and by the extent of his dominions, was juftly entitled to the appellation of great ; which he has received from pofterity. In England, after the firll effects of the conqueft were over, he endea- voured to procure the good-will of his fubjccts, by reducing the Enghhh and Danilli inhabitants under the fame laws, and by abolifhing all diftinctions bc- M twccn i62 HISTORICAL VIEW OF THE tween them. He pubiimed a colleclion of l.uvs, which has been prefcrved. After this monarch, two of his fons reigned fucceffively in England ; but, as they died without ilfue, the crown was ref- torcd to a prince of the Saxon line, known by the name of Ed\A'ard the confeilor. The conqueft of England by the Daties appears to have been produclive of no other political confc- quences, befide the interruption given to improve- ments, by the bloody and deflruclive wars with which it was attended. When Britain was deferted by the Pvomans, and fell under the Anglo-Saxon government, the country, which had made confi- derable progrefs in arts and civilization, was, of a fudden, reduced into a ftate of barbarifm, and un- derwent a total revolution of its political fyftem. By the r'anlTn conqueft, one fet of barbarians ts^as fubjecled to another, of kindred origin and man- ners ; fo that the fceptre was placed in different hands, without any alteration in the maxims by which it was Iwayed, or the authority by which it was maintained. From the beginning to the end of the period, which is the immediate fubjecl of this review, the circumftances of the kingdom were fuch, as con- tributed to render the government more and more ariftocraticaL It has been already obferved, that the landed eftates, originally occupied by the Saxon conquerors of England, were of moderate extent ; for which reafon there came to be a great number of allodial or independent proprietors. This was what might be expected, from the very limited power and opu- lence of the feveral heads of families who fettled in the country, and from their want of the know- ledge and experience requifite for the management of extenfive poiTeffions. During the continuance of their fettlement, however, and the confequent improvement of their circumftances, the induftry and ENGLISH GOVERNMENT. 163 and abililics, or the good fortune, of individuals, were attended with gradual accumulations of wealth, and with proportional differences in the diftribu- tion of landed property. From the reiG:n of Esrbert, when Ensfland became an extenfive kingdom, the fovereign was neceffa- rily removed to a diftance from a great part of his fubjecls ; who, for that reafon, were equally be- yond the reach cf his protection, and of his autho- rity, For putting a flop to thofe predatory incurii- ons, by which the inhabitants of different diftrifts were frequently haraffing and injuring one another, the forces employed by the crown could feldom be brought to act, either with fufficient quicknefs to relieve the fufferer, or with fufficient perfeverance to chaftife the offender. It was neceffary, there- fore, when the property of any perfon was invaded, or threatened with invafion, by a fupcrior power, that the owner fliould not, in many cafes, depend upon the interpofition of the fovereign or public magiftrate, but Ihould endeavour to procure the immediate affiftance of fome of his neighbours. As the reciprocal acts of hoftility, which were fre- quently committed, gave rife to hereditary feuds among particular families ; fo they occafioned, among other families in the fame neighbourhood, a variety of combinations and alliances for mutual defence and fecurity. When the parties, who thus formed a defenfive alliance, had been expofed to the fame difficulties, and expected to derive an equal benefit from their agreement, they were led to unite upon equal terms, and remained in a ftate of independence. Of the focieties formed in this manner, we have many inftances, both in England, and in the other countries of Europe *. But it happened more frequently that fmall pro- prietors, being expofed to continual oppreffion, • They have been called fJaHtia, fraternltaUs. Dr. Hickes, DilT. Epift. p. ai. Jvl 2 and i64 HISTORICAL VIEW OF THE and to every fort of injuftice, from perfons of greater opulence, were obliged to folicit the aid of one powerful neighbour, in order to flielter them from the attacks of another. In fuch a fituation they could not pretend to form an alliance upon the footing of equality ; but were commonly reduced to the necclTity of purchafmg protection by the ofler of fubmiffion and fervices. As they were to obtain, from their protector, the fame advantages which he beftowed upon his ancient military fervants, it vyas rcafonable that they Ihould, in like manner, acknowledge his jurifdiclion, and contribute to the advancement of his power and authority. Thus, in fome cafes, by a formal agreement, in others, perhaps, by a long and uniform fubm.ifTion to the feudal fervices, many renounced that allodial pro- perty which they were no longer able to maintain ; and, from the profpect of living in greater fecii- rity, allowed themfelves to be degraded into the ftate of military retainers or valTals. From a fimilarity of circumftances, thefe tranf- aclions were often repeated in different parts of the country : and were gradually extended over the whole kingdom. The more the demefnes of par- ticular barons had been increafed by fuch voluntary refignations : the remaining proprietors of fmall eftates were the lefs able to retain their indepen- dence ; and found it the more expedient to provide for their own fafety by incorporating themfelves in fome great feudal dependency. The allodial pro- prietors, v/ere, in this manner, continually dimi- niiliing ; the landed property of England was daily accumxulated in fewer hands ; and the diftricls pof- fefied by particular barons, who profited by the re- duclion of their neighbours into a ftate of fubordi- nation, were proportionably enlarged. By thefe changes, the nobility, it is evident, mufl have obtained more weight in the fcale of govern- ment. While the landed eftates of individuals were fo ENGLISH GOVERNMENT. 165 fo fmall as barely to fupply the neceffaries of life, the owners were too inconfiderablc to procure influence / over others, and too numerous to profecute an uniform plan for the advancement of their com- mon intereft. But in proportion as particular pcr- fons had acquired extenfive pofielTions, they were enabled to maintain a train of dependants and fol- lowers, direcled on all occafions by the will of their feudal faperior, and inured, by lonpj habits, to fcruple at notliing, in order to gratify his ambition or to exalt his dignity. From the fmallnefs of their number, thefe great proprietors might, at the fame time, be combined with more facility, in oppofmg the exertions of the prerogative. The fovereign, we may fuppole, was not an idle fpeclator of thefe alterations in the condition of his fubjects. As every opulent baron obliged his poorer neighbours to become his vaffals, the king alfo ex- erted himfelf in the protection of fuch as refided near the royal demefnes ; and acquired over them the rights of a feudal fuperior. But the acceffions acquired in this manner, to the revenue of the crov/n, and to the number of crown vaffals, were probably not fuiTicient to counterbalance the vaft accumulation of landed property under the lords of particular diftricls. We find accordingly, that about the reis:n of Edward the confeifor, a God- win, earl of Weffex, a Leofric, duke of Mercia, a Siward, duke of Northumberland, v^'ith a few more barons, had become fo powerful, as to be the objecls of conftant alarm and jealoufy to the crown, and in a great meaiure mtafters of the govern- ment. The authority of the Anglo-Saxon princes was, on the other hand, weakened, in many cafes, and prevented from acquiring ftability, by tlie dcfecl:s of their title to the fovereign ty. The rules of fucceffion to the crown appear, in all countries, to have been founded upon the fame principles i66 HISTORICAL VIEW OF THE principles which govern the inheritance of private eftates. It feems to have been thought reasonable, according to the primitive notions of mankind, that, upon the death of any perfon, his eftate fhould belong to his neareft relations, who, by be- inp- members of the flune famJly, appeared to have the moft intimate connection v/ith the family goods, of which they had formerly been a fort of joint poflellbrs with the deceafcd. But in that ftate of the world, in which every family required a mili- tary leader to provide for their defence, the perfon invefted v/ith this office was by degrees permitted to aifume the management, and at length to acquire the property, of that family-eftate which was committed to his protection. Hence the right of primogeniture in fucccfilon ; Vv^hich, in oppofition to the feelings of natural juflice, has been introduced from confi- derations of expediency. The eldeft of the fons, being commonly the firlf who acquired experience and reputation in war, was, upon the death of the parent, admitted to be the leader and heir of the family ; and when a general practice in his favour had once been cftablifhed from the ordinary courfe of things, it v/as maintained by the force of cuf- tom, even in ilnguiar cafes, where he had not the fame fuperiority. In the fucceflion to a monarchy there occurred a double rcalbn for introducinq; this right or primogeniture ; as the monarch was not only the leader and reprefentative of the nation, bui alfo the heir of that private ellatc, which had been the original fource, and was the principal fupport of his dignity. But in kingdoms of great extent, and which had made but fmall progrefs in the arts of government, the indivifible fucceffion of the crown was, in reality, often maintained with greater difficulty than occurred in the tranfmiffion of private eftates ; becaufe the feveral diftricts of an extenfive monarchy, being at a great diftance, and feebly united, were apt, upon the death of a mo- narchj ENGLISH GOVERNMENT. 167 narcli, to fall afunder, and to embrace the party of tliofe diiTerent members of the Royal faiTiily, wlio might be tempted to dm at the fovereignty. Ihe rules of fucceflion to the crown of England appear, in the period now under examination, to have been gradually advancing towards a regular ftandard ; but were far from having yet attained a perfect uniformity. Among tlie nineteen princes who reigned from the union of the Heptarchy to the Norman conqucil, we meet with no fewer than eight, who, according to the notions of the prefent age, muft be regarded as ui3jrpers ; and I'cveral of thefe obtained the crown by titles, which, though confidered as in forne degree irregular, had not, in that rude age, been entirely exploded. Inftead of the eldeft fon inheriting the eftate of a family, it is common, in early ages, that the chil- dren {hould be altogether iupplanted by the bro- thers and other collateral relations ; who by having arrived at greater maturity, and poiTelling fuperior prowefs, are enabled to put themfclves at the head of their kindred. Thus in many of the hordes, or petty nations upon the coaft of Guinea, the chil- dren arc faid to inherit nothing from their father but his arms ; his other effects are carried off by the older relations of the family. In the fiiccejlion of the ^nciqnt kings of Numidia, though a country far advanced beyond the flatc of primitive barba- rifm, the brother, as we are informed by Livy, was preferred to the children of the preceding mo- narch. A hmilar practice may be difcovcrcd in fe- veral parts of the Eaftern world. It obtains at prefent in the Ladrone iflands ; as it formerly re- gulated the tranfmiffion of the crown in the king- dom of Siam, and in fome dyn^iftics of the Chinefe empire. Of this preference of the brothers, or other relations, to the cUrecl defcendants, there are piany traces in the early hiflory of modern Europe ; eriff ; upon whom was devolved the real bufinefs con- nected with the office. This officer was originally chofen by the free inhabitants, or allodial proprie- tors of the ftiire ; though the extenfive department committed to his care, and the great privileges with which he was invefted, had the fame ten- dency, as in the cafe of the chief governors, to vary the mode of his appointment, and in the courfe of time, to bcftow upon him an indepen- dent authority. It was in this manner that allodial was generally converted into feudal property, and that an enlarged fyftem of military dependencies was at length cftab- lilhcd. The neceffity of defence produced the pri- mitive aflociations of tythings, hundreds, and fhires, cc;npofcd of allodial proprietors, with their refpcclivc l^6 HISTORICAL VIEW OF THE rcfpcclive bondmen or vallals. But, from the dif- orders of the fociety, thefe combinations were too loofe and feeble, to'anfwer the purpofes for which they were intended. To protccT and refcue the individuals in each of thefe communities, it vras requifitc that their leader fliould be invefted v/ith greater authority than had originally been bellowed upon him ; and that his aflbciates or followers ihould become his permanent military fervants. Tythings, hundreds, and even a confiderable part of fliires, were thus changed into fiefs ; and the tythingman, the hundrcder, and the earl, became the feudal fuperiors over fuch diftricls as found it expedient to court their protection. A fubordina- tion, too, was introduced among the leaders of thofe diftricls ; and the tythingmen of a hundred became frequently the vaiTais of the hundreder ; as many of the hundreders belonging to a fhire be- came valTals of that great baron, the earl. As thefe changes were produced very flowly and gradually, it is not furprizing that they fliould be overlooked by cotemporary annalifts. The meetings of the tything, the hundred, and the lliire, appear to have retained the fame names, and to have tranfacted the fame fort of bufi- nefs, long after the two former were entirely, and the laft, in a great meafure, converted into the courts of a barony. The alteration, in reality, confifted merely in a different fliade of authority acquired by the leader or chief magiftrate of thofe diviiions. It feems u'orthy of notice, that this converfion of allodial ailociations into feudal dependencies, while it promoted the ariftocracy, was calculated to improve the police of the country. When the tythingm.an, the hundreder, and the earl were ex- alted to the rank of hereditary barons, they were more capable than formerly of maintaining good order in their feveral diftricts j and, as every'feu- dai ENGLISH GOVERNMENT. 177 dal fuperior was refponfible to the public for the condudl of his valTals and retainers, he had an in- tereft to exert his authority in preventing rapine and violence. Unhappily, indeed, they were often too powerful to fubmit to this part of their duty ; and, inftead of repairing the injuries done by their dependants, were frequently difpofed to fcreen them from the punilliment due to their offences. CHAP. XI. Changes produced in the Condition of the Vajfals ajid of the Peafants. X H E members of every feudal dependency con- fifted of the military retainers or vaflals, and of the peafants, or churles ; both of whom, in the latter part of the Anglo-Saxon government, experienced a great alteration in their circumftances. In that ftate of fociety which determined allodial proprietors to flicker themfelves under the pro- tection of a feudal fuperior, and by which the number of military retainers was gradually aug- mented, the privileges belonging to this order of men were naturally increafed ; and their condi- tion was rendered more fecure and comfortable. The original valTals of any perfon were the mem- bers of his own family, who, from natural affec- tion, and from ancient habits, were flrongly at- tached to his intereft, and upon whom, from a re- ciprocal regard, as well as from the confideration of expediency, when they became too numerous to live in his own houfe, he voluntarily bellowed the polTefiion of lands for their maintenance. As the fuperior had no reafon to fufpecf that thefe men would ever be deficient in fidelity, or feek to withdraw their allegiance ; fo they entertained no N apprehenfion 173 HISTORICAL VIEW OF THE apprehenfion that, while they were willing to fulfil their duty, they fhould ever be difpoffeffed of their lands. The intimate connexion between the par- ties, and the hmplicity of their manners, made them place a mutual confidence in each other, and prevented their being apprehenfive of any future difputes : fo that neither the fuperior required any fpecification of the fervices to be performed, nor the vaflal, any exprefs ftipulation, with refpecl to the duration or terms of his poffefiion. Thus the original vaflals, though, in fad, their land was commonly permitted to remain with them and their pofterity, were properly no more than tenants at ivill, and therefore entirely dependent upon the fupeirior. But when perfons originally independent, had, with a view to certain advantages, allowed them- felves to fall into a feudal fubordination, or had agreed to exalt an equal or a ftranger to the rank of a fuperior, it could hardly be expelled that thefe new vaflals would be willing to hold their lands in fo precarious a manner. Cautious of yielding any irreater fubmiflion than their circumftances re- quired, or fufpicious of neglect or oppreilion from the perfon whom they had chofen for their protec- tor, they naturally infifted, that the precife condi- tions of their tenure fhould be exprefsly afcer- tained ; while the fuperior, diftrufting the fidelity and attachment of men over whom he had no na- tural authority, and who fubmitted to him, per- haps with reluctance, and from the mere preflure of temporary difliculties, was no lefs anxious to fpecify the nature of their fervice, and to fecure the performance of it, by fubjecling them, in cafe of negligence or difobedience, to fevere penalties and forfeitures. From a variety of conjundures, indi- viduals might be laid under the neceffity of fubmit- tingto harder conditions, upon fome occafions than upon others J but, in general, when a feudal te- nure ENGLISH GOVERNMENT. 1 79 iiure was conftituted by the confent of any allodial proprietor, it feems to have been exprefsly pro- vided, that the fief fliould not only remain with the vaiTal during life, but Ihould defcend, either to his heirs male, or to fuch of his heirs as were fpe- cified in the grant. By the eftabliihment of thofe hereditary fiefs, the vaffal, inftead of being a precarious tenant, became, in effe(5t, the proprietor of the feudal eftate, and the intereft of the fuperior was reduced to a rcvcr- Jion in default of the vaflal's heirs, together with a right of levying certain perquifites or cafual emo- luments in particular cafes. Of thefe cafual emo- luments or incidents, as they are called, which might ftill accrue tD the fuperior from the ertate of his vaffal, after it was made tranfmiffible to heirs, the feudal M^iters have commonly enumerated feven different forts. 1. Though fiefs had been rendered hereditary, yet, as every perfon who enjoyed them was liable for the feudal fervices, it was neceffary that an heir, before he obtained the inveftiture, fhould folemnly undertake the performance of them, and come under an oath of fidelity to the fuperior. Upon the death of any vaffal, therefore, the fuperior laid hold of the lands, and detained them in his pof- feflion, until the heir fhould appear in order to re- new the feudal engagement. This privilege gave rife to what is called the incident of non-entry. 2. Even when the feudal tenures were precari- ous, it was ufual for the fons of the vaffals to en- deavour, by a prefent, to procure the favour of the fuperior, and to obtain the continuance of their anceflor's poffefffon. When fiefs became heredi- tary, it v/as found expedient to fecurc, by means of a bribe, what, though a matter of right, was not eafily extorted by force ; and tlie original arbi- trary donation was converted into a regular duty, under the name of rt'lief. N 2 3. If i8o HISTORICAL VIEW OF THE 3. If the heir of a former vallal was incapable of performing the feudal fervice, he had no right to claim the poiTeflion of the fief. While he \vas un- der age, tlicrefore, the lands were poffeffed by the fuperior ; who, at the fame time, from a regard to his own intereil, if not from affection to the family of liis old vaffal, was induced to ailume the guar- dian^iip and protedion of the minor, his future •military fervant. Hence the complex burthen, and privilege, which went under the name of 1^'ardjhip. 4. During the difordcrs which prevailed under the feudal eovernments, it was of sjreat confe- quence that the military vanals fliould not contract an alliance with the enemy of their liege lord ; which might have a tendency to corrupt their fide- lity. When fiefs therefore were fecured upon a permanent footing, a provilion was made againft an event of this dangerous nature ; and the vaffals who married without the fuperior's confent, or who even refufed to marry according to his defire, became liable to a pecuniary compolition or penalty. Such was the incident of marriage ; a perquiiite fuited to the barbarous manners of that age which occafioned its eilablifhment. - 5. Befide the ordinary revenue which the fupe- rior drew from his eftate, he was accuftomed, upon extraordinary emergencies, to apply to his vaffals, and to requeft from them a contribution in order to relieve him from^ his immediate embarraffment. While they held their lands precarioufly, a requeft of this nature was equal to a command ; fmce the fuperior might at pleafure feize upon the whole eftate of his tenants. But v/hen the vaffals had ob- tained a more permanent right, it became neceffary to fettle the particular occalions upon which thofe contributions were to be made, as well as the ex- tent of the fum that might be demanded ; and in this manner, aids or be/uz-olcncei came to be enume- rated ENGLISH GOVERNMENT. i8r rated among the duties payable to a fuperior. Three cafes are mentioned, in which, over all the feudal kingdoms, thcfc contributions mi.^ht be exacled ; to redeem the fuperior from captivity ; to portion his eldeft: daughter, at her marriage ; and to defray the expence of making his eldert fon a knight. 6. Though .1 fief had been rendered hereditary; yet, upon the total h.[l\.re of heirs, it necelfarily returned to the fuperior. The vailal might alfo forfeit his right to the lands, by his neglect to per- form the feudal fervice, or by any violation of his duty. This forfeiture, or termination of the fief, was called an cfcheat. 7. From the primitive ftate of the feudal tenures, the vaffal had no title to alienate his fief, which he polfelTed as the wages merely of his military fer- vice. But when iiefs, by being tranfmiffible to heirs, began to alfume the appearance of property ; M'hen the general advancement of arts had rendered land more frequently an objecf of commerce ; and when, upon the fuppreflion of the former difor- ders, the military fervice of the vaifal was ren- dered of lefs importance, it became cuftomary, by the payment of a fum of money, to compound with the fuperior for the privilege of felling the feudal eftate. This produced the perquifite of fu- periority called \\\zfine of alienation. Thefe feudal incidents may be confidered as the remains of that abfolute property of the fief, which the fuperior had formerly enjoyed ; but which, with refervation of fuch cafual emoluments, was now conveyed to the vafliil. After this new fpecies of military retainers had become numerous, and had fpread themfelves over the country, it is natural to fupjofc that their pri- vileges Vv-ould, by the force of example, be com- municated to the ancient vafliils. 'Hie ancient feu- dal tenants, v/ho from the more extended connec- tions of the fuperior, had probably become lef^ the objects 182 HISTORICAL VIEW OF THE objed:s of his peculiar attention, and were not al- ways treated with thofe marks of diftinclion to which they fuppofed themfelves entitled, beheld, with envy and jealoufy, the liability and fecurity enjoyed by his new vafl'als ; and were folicitous to hold their lands under the fame permanent tenure. A conccflion of this nature, by which the old and faithful 'followers of a chief were placed upon a footing of equality with (Irangers, could feldom be decently withheld from them ; and in cafes where he ftood in immediate need of their affiftance, was likely to be eafily obtained. As thefe privileges were llowly and gradually introduced, and as they were often accelerated or retarded by the lituation of particular baronies, not to mention a variety of :iccidcntal circumftances, it is imipoflible to mark the precife period at which their eftablilhment was compleated ; though it is probable that, before the Norman conqueft, they were extended to ' the greater part, if not the whole, of the ancient valials. That the duration of the military fervice, for each year, Ihould be exactly determined, was equally neceflary, to fecure the intereft of the vaf- fal. In Britain, and probably in feveral kingdoms upon the continent, it was limited accordingly to forty days ; a period that might appear fully fuffi- cient for thofe dcfultory enterprizes which the fu- perior had occafion to undertake. If ever he chofe, after the expiration of this period, to retain his vaflals in the field, he was obliged to bear the charges of their miaintenance. The effecl of thefe changes in the ftate of the military tenures could not fail to be difcernible in the adminiftration and government of every feudal dependency. Though it ftill was, no doubt, the intereft of the vaffals to avoid all contention with tlie fuperior, and to merit his favour by their fide- lity and alacrity in the difcharge of their duty, yet the|- ENGLISH GOVERNMENT. 183 they were not under the fame neccflity of paying an implicit obedience to his commands. To what- ever inconveniencies they might be fubjccled from the manner of levying the feudal nicideuts^ yet, while they punctually performed their fcrvices, they could not, without grofs injuftice, be de- prived of their poffellions ; and they had a right to follow their own inclination in the management of their private concerns. Senlible of this alteration in their circum.llances, the fuperior was induced to be more cautious of difobliging them, to pay more deference to their opinions, to liften ilnd give way to their remonllrances, and, in public meafures of importance, to act with their advice and concur- rence. Thus, while the influence and power of the great lords was gradually extended by the multi- plication of their vaflals, their authority over each particular vafl'al was necellarily reduced ; and they were obliged to cxercife it with greater modera- tion ; as well as to endeavour, by the arts of popu- larity, and even, fometimes, by pecuniary rewards and advantages, to gain the effectual fupport of their followers. • The improvements made in agriculture, pro- duced alterations, of no lefs importance, in the ftate of the peafants or cJmrlcs. The peafants, as has been formerly obferved, were originally bond- men or flaves. But as from the nature of their employment, and from their living at fuch a dif- tance as to be beyond the reach of the mafter's in- fpeclion, it was found expedient to excite their in- duftry by beftowing upon them fucceflive gratuities and privileges ; many of them were enabled, at an early period, to acquire conhdcrablc property ; and fome of them were advanced to the condition of tenants, intrufl;ed by the m^iter with a dilcrctionary management of their farms, for the payment of a yearly rent. In the natural courfe of things, thefe tenants were afterwards raifcd to a Hill better fitua- tiun 384 HISTORICAL VIEW OF THE tion. When, in confequence of fome degree of Ikill and experience in hufbandry, they were about to undertake an expenfive melioration of their farms, common prudence required that they fliould be fecure of the poffeffion, for fuch a period as might afford tliem a reafonable profpecl of a return for their labour and expence. By offering an ad- vanced rent to the maflcr, they fometimes pre- vailed upon him to make an agreement of that na- ture ; and to grant them a Icafe for a certain num- ber of years. By raifmg the rent ftill higher, in confequence of a greater affluence, the tenant, in fome cafes, obtained not only a right of holding the eftate for life, but of tranfmitting it to heirs ; and there appear to have been fome occafions, though it is probable thefe were not very common, on which, by the payment of a full price, he was enabled to make an entire purchafe of the lands. Thofe churles who had acquired a landed eflate tranfmiilible to heirs, to be held for payment of a yearly rent, were denominatedycr^r^^^" •vajfah. From their employment and character, they were of an inferior rank to the military vaffals ; but they had the fame perma'nent right to their eflates. They were alfo liable to the lame incidents of fuperiority ; excepting thofe of wardfoip and fuarriage ; the for- mer, becaufe the fuperior was difpofed to pay no attention to the education of fuch of his depend- ants as were employed merely in agriculture ; the latter, becaufe the alliances which they contracted were deemed of little confequence to him. The churles who made a full purchafe of a landed eftate fhould have become allodial proprietors, and have acquired the rank and privileges of nobility ; but were influenced, in thofe cafes, by a regard to the ancient ufage ; and as the proprietor, who fold his lands, was unvvilling entirely to reiign his dig- nity, fo the purchafer had not the prefumption to deprive him of it. To retain a faint liiadow of the ancient ENGLISH GOVERNMENT. I8s ancient conneclion, the latter became bound, as an acknowledgment of the fuperiority, to pay to the former an elufory annual duty, if ever it fhould be demanded *. We find that, by a ftatute in the reign of king Athelftan, a churle who had pur- chafed an eftate confifting of five hides of land, with certain appendages, ufually pofleiTed by gen- tlemen of that fortune, was declared to have a right to all the privileges of a thane ; by which thofe of a le/Jer thane, or military vall'al, were probably underllood f . From this law, which demonftrates that the en- couragement of agriculture was become an objeft of public attention, it maybe inferred, that though in fome cafes the churles were enabled to acquire landed property, they had not been underftood, upon that account, to obtain of courfe the privi- leges of the military people ; fince thefe were not conferred upon them without a fpecial interpofition of the legiflature ; nor even by that ftatute, except upon fuch as had accumulated a very confiderable eftate. Such was the original inferiority of the peafants, and fo ftrong were the habits connected with their primitive condition, that though they had been raifed to independent circumftances, it was v/ith fome difficulty they were permitted to hold the rank of gentlemen, and procured the treatment fuitable to men of that fuperior clafs. The freedom acquired by a great proportion of the peafants, together with the advances in huf- bandry from which it proceeded, gave rife to an immediate improvement in arts and manufactures. The firft artificers were villeins, or fcrvants of the greater thanes ; who happening to difcovcr fome ingenuity in the common mechanical arts, were employed by the mafter in thofe branches of ma- * This tenure hai; been frequently confounikd with tlic ordiiiary foccage^ but fomctimes is diRinguiilied by thcnamc of llund\ I Judicia civitatis Luiidoniw. Wiikins, Leg. Sax. p. 70. nufaclure. i86 HISTORICAL VIEW OF THE nufachure, which he found requifite for his accom- modation. The poiTeffion of their farms, accord- in^ to the rude manner in which agriculture was then pniclifed, did not hinder them from exer- cifmf^ this collateral employment. When thefe people began to be emancipated from their ancient bondage, "they were at liberty to work, not only for their former mafter, but for every perfon who chofe to em.ploy them ; and by working for hire, they drew a regular profit for their labour. A competition was thence introduced among differ- ent workmen, which contributed to promote their induftry and ikili ; at the fiime time that the im- provements which have been mentioned in the condition of the lower clafs of people, by increaf- in"- their opulence produced an increafe of demand for the ordinary conveniencies of life ; and there- fore afforded greater encouragement to the occu- pations by \^'hich thofe conveniencies were fupplied. Particular branches of manufacture, or of labour, coming in this manner to be more in requeft, oc- cafioned more conftant employment to individuals ; who, at length, found it their intereft to abandon every other occupation, and to depend, for their livelihood, upon that fmgle branch in which they had attained a peculiar proficiency. A variety of trades and mechanical profeflions were thus introduced ; and the artificers and la- bourers compofed a feparate order of men in the community. As thefe grev/ up and were multi- plied, they became the chief part of the inhabi- tants in thofe villages where they refided ; which were gradually enlargeci into towns, of more or leis extent accordina: as their fituation, or other circumflances, proved more favourable to manu- faclures. It is unneceffary to obferve, that the feparation of trades and profefiion^, among the different inhabi- tants, occafioned, of courfc, a degree of trailick or ENGLISH GOVERNMENT. 187 or exchange of commodities. When the artlfans, as well as the farmers, confined themfelves to a fmgle employment, they were able, by their owii labour, to produce only one fort of commodity ; and if they wanted any thing of a diiierent fort, they had commonly no other method of procurinp; it, than by an exchange with the perfon who had produced it. This exchange was at firft limited, we may fuppofe, to the inhabitants of the fame town or village ; but, according as different places began to excel in manufacturing goods of different kinds, was extended to neighbouring towns, or to the more diftant parts of the country. Upon the opening of fuch intercourfe between places at a diftance, the inhabitants found it, in fome cafes, inconve- nient to go themfelves to purchafe the goods which they wanted, and had occafion therefore to em- ploy fome of their neighbours for that purpofe ; from which there arofe, by degrees, a common carrier, upon whom this branch of bufmefs was frequently devolved. As this perfon acquired a little ftock, he adventured fometimcs, at his own rifk, to buy commodities in one place, with a view of felling them in another ; and his employment was at length improved into that of a pedlar or travelling merchant. Although thefe tradefmen and mechanics were no longer in a fervile condition, they had flill much dependence upon the original mafter, or feu- dal fuperior, of that village or town in which they refided. He defended tfiem from the attacks of the military people around them ; to which, from the turbulence and diforder of the times, they were greatly expofed, and which, from their un- warlike difpofitions, they were of themfelves but ill qualified to refill:, fie alfo encouraged and pro- moted their trade, by permitting them to hold fairs and markets, or dated fcafuns of rendezvous, between 188 HISTORICAL VIEW OF THE between the merchants and ciiftomers of different places ; by fupplying them with warehoufes, and M^th meafures and weights, for the fale of their o-Qods ; and by fuch other kind of alliftance as, from the rude (late of the country, and in the in- fancy of commerce, their circumftances made them Hand in need of. In return for thefe advantages, he levied from them fuch tolls and duties as they were able to bear ; and of confequence augmented his revenue in proportion to the increafe of their wealth. According as the patron and prote<51:or of thefe manufacturing and trading towns was poffefTed of greater influence and power, their trade was likely to be more profperous and flourifliing. Some of thofe towns, having fprung from the peafantry o£ the crown-demefnes, were under the immediate patronage of the fovereign ; others, being fituated upon the eftates of the greater thanes, were under the protection of thofe nobles. The former, it is evident, enjoyed a great fuperiority over the latter. The protection of no particular nobleman could reach beyond the limits of his own eftate ; but that of the fovereign extended, in fome m.eafure, over the whole of the kingdom : not to mention that the king, by refiding occafionally in the towns of which he was the immediate protector, and which he was naturally delirous of encouraging, produced a refort of the nobility and gentry to thofe places ; and, by the cxpenfive living incident to a court, created an additional confumption of their commodities. The extent of the trade of England, before the Norman conqueft, cannot, at this diftance of time, be afcertained with any degree of precifion ; but there is reafon to believe that it was not very con- liderable. Of this we need require no farther evi- dence than the fmall fize of the principal towns in the ENGLISH GOVERNMENT. i8^ tlie reign of William the conqueror*. It appears however, that, for more than a century before that period, the commerce and manufoclurcs of the country had been making advances which attracted the notice of the legiflature. By a law of king Athenian it is enacled, that a merchant who, upon his own account, had made three trading voyages to a foreign country, Ihould acquire the privilec;e of a thane f. Such extenfive trade, it was probably thought at that time, could be attempted only bv a perfon of uncommon fpirit, and in alHuent cir- cumftances ; whofe elevation, while it ferved as an incitement to commercial enterprize, might be re- garded as no difparagement to the military people. In other ilatutes which have been preferved, of the fame, and of fubfequent princes, we meet with fome of thofe fundamental regulations, v/hich com- monly have place in every country, upon the fnTt efforts to introduce a regular commerce ; fuch as the eftablifliment of certain formalities in complet- ing mercantile tranfactions | ; and the appointment of a mint in the principal town || ; together with that of a common ftandard of money, and of weights or meafures§. By the addition of artificers and tradefmen to the different orders formerly mentioned, the v^^holc people of England came now to be diftinguifhed into four great claffes ; which, from their differences in rank or employment, in characters and liabits of living, were fcparated and kept at a diftance from one another. Thofe who exercifed the honourable profeilion of arms, whether in the ilaticn of greater * With regard to this point, fee Doomfday-book — and Dr. Brady on Bo- rouglis. f Et fi mercator tamcn fit, qui ter trans altiim mare " per f,iciiltrtt< =; pro- " prias abcat, iiie poftea jure tliaai lit diguus." — [Judicia civltatis Lundor.ix. Wilkins, 1-eg. Sax. p. 71.] I Wilkins, Leg. Sax. p. 80, 81. II Ibid. p. 59. § Ibid. p. 78. or t^o HISTORICx\L VIEW OF THE or lejjer thanes, of fuperiors or vaiTals, thought it incorififtent with their dignity to engage in any- lucrative occupation ; and difdained to contract ■alliances with farmers or manufaclurers*. The two latter orders of men, though nearly of the fiimc rank, were by their fituation prevented from liv- ing together, and led to acquire very different manners, and ways of thinking. The folitary and robuft employment of the farmer was not apt^ to form a fimilar flyle of behaviour and accomplifli- ments to that which was produced by the feden- tary town-life of the manufacT:urer ; and in a coun- try where improvements had not been carried io far as to create an intimate correfpondence among all the members of fociety, thefe two fets of men were not likely to exchange their profefTions. The children of the farmers, as well as thofe of the tradefmen and mechanics, were commonly difpofed to follow that way of life with which they had been early acquainted. They were even bred up^ in moft cafes, to their father's employment, before they could well have an opportunity of comparing it with any other. Thefe tv/o orders of men were not only confined, in general, to their refpeclive profelTions, but the mechanics, employed in the i(;veral branches of manufacture often tranfmitted their occupations to their pofterity ; and continued them, for many generations, in the fame families* The clergy, who formed a numerous and power- ful body, were no iefs diftinguifhed from the other three dalles, by their peculiar education, by their feparatc views of intereft, and by their profeflional character and manners. The celibacy, indeed, of the clergy, which, however, was introduced in Eng- land after the period we are examining, prevented * After the Norman conqucft, we find that the fupcrior lord was prohi- bited by tlatutc to marry his female ward tC a rjilla'rn or a largtfs. It is prob- able that the rank of the two lafl-mtiitioned orders of men had rifen con- Cderahly. before this prohibition was thought neccflary. this ENGLISH GOVERNMENT. 591 this order of men from being fo entirely fcparatcd from the reft of the inhabitants, as mi2;ht other- wife have been expected. When churchmen wore prohibited from having poftcrity of their own, it was necelTary that their profejfion llioukl be fup- plied from the other ranks of the fociety. From the natural courfe of things, it fliould fecm, that in every country where religion has had fo much influence as to introduce a great body of ecclefiaftics, the people, upon the lirft advances made in agriculture, and in manufactures, are ufually diftributed into the fame number of clafles or orders. This diftribution is, accordingly, to be found, not only in all the European nations, formed upon the ruins of the Roman empire but in other ages, and in very diftant parts of the globe. The ancient inhabitants of Egypt are faid to have been divided into the clergy, the military people, the hufbandmen, and the artificers ; and thefe four defcriptions of men were, by a public regulation, or more probably by the influence of cuftom, derived from the early fituation of the country, kept invariably diftincl from one another. The cftablilhment of the four great cajles, in the country of Indoftan, is precifely of the fame nature. This diviiion of the people, which goes back into the remoteft antiquity, has been afcribed, by hiflorians and political writers, to the pofitive inftitution of Brama, the early, and perhaps fabulous legiHator of that country ; but, in all probability, it arofe from the natural feparation of the principal profefTions or employments in the ftate ; as it has been fincc re- tained by that excellive indolence, to which the inha- bitants of thofe warm and fertile regions are addicted, and which has hitherto checked their improve- ments, by producing an averlion to every Ipecics of innovation. CHAP. :92 HISTORICAL VIEW OF THE C II A V, XII. Tbe Influence of thefe Changes upon the Jurifdidion and Authority of the feudal Lords. X HE advancement of the Anglo-Saxon vaffals and peafants to greater fecurity and freedom, and the feparation of the trading people from the clafs of huibandmen, could not fail to limit the autho- rity of the fuperior, and more efpecially to^ affect the ftate of his jurifdiclion. When his military retainers held their benefices precarioufly, and when the other members of his barony were either bond- men, or merely tenants at will, he found himfelf under no reftraint, in deciding their differences, and in punifhing their offences ; but after the for- mer had obtained hereditary fiefs, and a great pro- portion of the latter had been exalted to the rank of foccage-vaffals, he was obliged to relax his claim to their obedience, and to diftribute juftice among them with greater moderation and circumfpe6tion. The retainers of every feudal fuperior were bound, not only to the performance of military or other fervices, but alfo to aflift him in maintain- ing good order and tranquillity within his barony ; and therefore, when any of them complained of injuftice from another, or was accufed of a crime, the baron found it expedient, inftead of deciding by virtue of his own authority to call a number of his other vaffals, and to proceed with their advice and concurrence in trying the caufe. This expe- dient was the mofl equitable for the perfon con- cerned in the trial, as well as the beft calculated for giving weight to the deciiion. The afTeffors of the judges were the pares curia, men of the fame rank vv-ith one another, and with the parties ; they M'ere chofen occafionally, and varied in each caufe, to ENGLISH GOVERNMENT. 193 to avoid burdening any individual more than his jull: proportion ; and they were commonly fclccled from the neighbourhood of the place where the ac- cufation or difpute had taken its rife, that, from their own private knowledge, they might be ena- bled to form a better judgment c)f the facls in cjucftion. Thus the trial by an inqucji, or Jury, which had formerly taken place in the tribunals of the ibire, and of the hundred, was introduced into thofe of a feudal barony. The caufes, hov/ever, of this in- llitution, in the former and in the latter, were fomewhat different. A jury was found conveni- ent, in the courts of the fliire, and of the hun- dred, to fuperfede the attendance of all their mem- bers ; and mi reduce 198 HISTORICAL VIEW OF THE produce a more equal and impartial diftribution of juftice ; and this circumflance, together with the general advancement of civil fociety, contributed to increafe the bufmefs of thofe tribunals. From the greater diiT'afion of property among the people of inferior condition, law-fuits became fomcwhat more numerous ; and from their being frequently decided by men of the fame rank with the parties, were likely to procure a fuller and more deliberate hearing. As the exercife of jurifdiction was thus ren- dered more tedious and burdenfome, the great lords, as well as the king, who had been accuftomed to pre- iide in the trial both of civil and criminal caufes, within their feveral baronies, were lefs difpofed to give the necefiary attendance ; and, by appointing deputy judges, endeavoured to relieve themfelves from a great part of the labour. The fame cir- cumftances which gave rife to thefe inferior offi- cers, contributed afterwards to enlarge their pow- ers ; and from the negligence of their conftituents, who feldom interfered in controuling their de- ciiions, and at lafl: intirely abandoned the employ- ment of judging, they became tJie ordinary magi- ftrates in the feveral demefnes or territories com- mitted to their direction. The transference of jurifdiclon, from the primi- tive judges to their deputies, laid a foundation for one of the moil: important alterations in the fyftem of judicial policy. The executive d.nd judiciary pow- ers, with which every feudal baron was originally invefted, came thus to be feparated from each other ; and the exercife of the latter became the iole occupation of particular perfons ; who, upoii that account, were likely to give greater applica- tion, as well as to acquire more experience and knov/ledsre in the determination of law-fuits. The judoes of a barony, though nominated by the baron, had neceffarily their own views of right and wrong J and having a character to fupport, might be ENGLISH GOVERNMENT. 1 99 be fuppofed, in fome cafes, to conduct themfelvcs without regard to the intcrcft of their conftitu- ents. It happened likcwifc from the natural courfc of things, that, as the mou opulent vafiais were found the beft qualified for maintaining the dignity of a judge, tlie fame perfons were frequently en- abled to fecurc the oifice during life, and even fomctimcs to render it hereditary. In cither cafe the judge became in a great mcafure independent of the feudal lord from whom his authority had been derived. It muft be acknowledged, however, that long after the period which we are now ex- amining, the king's judges continued under a pre- carious appointment. A diilinguiflied political author has pointed out the feparation of the judicial power from the king's prerogative, as one of the great fources of the liberty enjoyed by the fubjecls of Britain. To thofe who fpeculate upon the conduct of human affairs, it is amufmg to difcover, that this impor- tant regulation was neither introduced from any forefight of its beneficial confequences, nor ex- torted from the monarch by any party that were jealous of his power ; but was merely the fug- geflion of liis indolence ; and was adopted by the king, in common with other feudal fuperiors, to relieve them from a degree of labour and attention whicii they did not chufe to beftow, It was, in reality, a confcquence of the general progrcfs {)f fociety, by which employments of every fort, both liberal and mechanical, have been difiributcd among different individuals, and have become the object \)ii^ feparate profeilions and trades. As fpon as the bufuiefs of a judge became the fole employment of particular perfons, it w^^s ne- cefl'ary that they fliould obtain a maintenance in return for their labour. This was acquired with- .■)ut any difficulty, from the very excrcife of their profeflion j 4^ the fupcrior by whom they were ap- pointed. 200 HISTORICAL VIEW OF THE pointed, empowered them to exacl a fee or per- quifite from every party whofe caufe they had occa- fion to determine. Thefe exactions, which came to be fixed, in every ftep of judicial procedure, ac- cording to the degree of trouble it was underftood to produce, v/cre not only fuihcient for maintain- ing the judge, but afforded alio an emolument to the fuperior, who demanded from his deputy a ftricl account of the fees he had levied. To pre- vent any embezzlement in this refpecl, a clerk was appointed, to fit in the court along with the judge, and to keep a record of judicial proceedings. Such was probably the firft intention, not only in Tng- h.i.nd, but in all the feudal countries, of recording the deciiions of a judge ; though the practice was afterwards made fubfervient to other purpofes of the highell utility. Of the fees, or perquifites, drawn by the judges under the appointment of the crown, the fovereign acquired a confiderable proportion, which formed an additional branch of the public revenue. From this method of maintaining judges, they had obviouily an intereft to increafe their perqui- iitcs by encouraging law-fuits, and multiplying the forms of judicial procedure. Hence there occurred a new reafon for the interpofition of juries in the court of a barony ; that they might prevent the unreafonable delay of juftice. It may, at the fame time, perhaps be admitted, that the interefted acti- vity and vigilance of the magiftrate was, in that early and rude age, more beneficial in preventing diforder and violence, than it was hurtful, either by promoting litigioufnefs, or by introducing tedi- ous and abfurd formalities into the fyftem of judi- cial difcuffion. C H A F. ENGLISH G O V E R N jNI E N T. 201 C H A P. XIII. Of Ecclcfiajlical Courts, W^ HILE the nobles were gradually extending their power, and reducing that of the fovcrcign, the eccieiiailical order was advancing, with hafty iirides, to the eftablilhment of an authority inde- pendent of either. The barbarifm and luperftition that fucceeded the downfal of the Roman empire, and the fyftem of ecclefialHcal government erecled in the Weftern part of Europe, had a uniform ten- dency, as has been already obi'erved, to increafe the wealth and influence of the church. Were mx to confider merely the former circumflance, we lliould expecl that the ufurpations of the clergy would be moft rapid in thofe European countries, which were at the g-reateft diftance from the incitements to cub tivation, and in which the ignorance and fimplicity of the inhabitants difpofed them to follow more implicitly the direction of their fpiritual guides. — But the fact was otherM'ife. The kingdom.s in tlie neiglibourhood of the pope's rcfidcnce, and of his temporal dominions, were nearer the center of that artful policy, which by taking advantage of con- junctures, exalted no lefs the power and privileges of the church than the dignity and authority of her leader. Thus the right of levying the tylhcs^ that enormous impofition for the fupport of the clergy, and which marks the prodigious extent of cccleli- altical influence, was introduced in France, and over a great part of Italy, as early at leaff as the time of Charlemagne ; which corrcfponds to that of Egbert among the Anglo-Saxons ; and the fame tax was afterwards extended, by degrees, to the other countries of Europe. It appears to have been finally citablilhed 202 HISTORICAL VIEW OF THE ly eftablifhed in England, during the reigns of Alfred and of Athelrtan ; patriotic princes, who, doubtlels, found themlelvcs under the necefiity of giving way to the current of the times, by fubmitting to fuch an opprefllve exaction. The increahng opulence of the clergy, as it was an effect: of the blind zeal, and the general debafe- ment of, the people, fo it was accompanied by a corrcfponding perveriion of religious opinions, and by an increafe of fuperftitious obfervances. The real virtues of fociety, whofe intrinfic value reconir mends them to our obfervance, and which fre- quently appear to coft us notliing, came to be lit- tle efteemed, in comparifon of penances and morti- fications ; from which nature is difpofed to fhrink ; and which are fabmitted to, for no other purpofe, but that of appealing the wrath of an offended deity. Thefe laft were accounted highly meritorious in perfons of every defcription ; but were thought more efpecially fuitable to the profeffion and charac- ter of churchmen ; upon whom it was incumbent to fet an example to others. The monks, in parti- cular, who, by their original inftitution, had no other m.eans of diftinclion, were incited to procure admiration by the aufterity of their lives, and by the fevere and painful difcipline which they under- went. As they advanced in reputation and popur Jarity, they acquired more numerous and wealthy eifablifhments ; their influence in religious matters became proportionably exteniive ; and they not only rofe to great conlideration in the government of the church, but frequently, too, interfered in that of the Hate. From the continent of Europe, tlie fime practices, and ways of thinking, were com- municated to Britain ; where, about the middle of of the tenth century, we find St. Dunftan, at the head of the regular clergy, poffeffed of fuch power and credit, as enabled him to controul the admi- niftration ofgovernm.cn!:, and even to difpofe of the crown. Amons: ENGLISH GOVERNMENT. 203 Among the feveral branches of mortification im- pofcd by the monaftic rules, that of celibacy, or a total abilinence from the intercourfe of the fexcs, was deemed the moft important ; whether on ac- count of the difficulty attending the obfervance of it, as it counteracts the moft violent propenii- ties of nature, or on account of that variation of temperature in the human frame, which makes the indulgence of thofe propenlities, however irrefiftablc at certain feafons, yet become, on other occalions, the object of averfion and difguft. This, therefore, became now the ufual topic of declamation to the Englilh monks ; who, finding the fccular clergy to be their great rivals in the public efteem, and being impatient of that fuperior authority which theypof- fefl'ed, inveighed againfl their married life, as in- confiftent with the purity of a Chriftian pallor ; re- prefenting their wives in the light of concubines or proftitutes, and their children as baftards. — Though the doctrine inculcated by thefe fanatical zealots was not carried into execution until a fubfe- quent period, it appears, even at this time, to have been approved and fupported by the general voice pf the people. From the fituation of the Chriftian clergy, and from the influence and authority which they enjoy- ed, they were led early to aflume the cognizance of judicial bufmefs, and to form a number of tribunals for the exercife of their jurifdiction. Kvcn before the time of Conftantine, when they received no protection or countenance from the civil govern- ment, they were accuftomed to enquire into the faith and manners of Chrillians ; and, after repeat- ed admonitions, to excommunicate thofe individuals who perfifted in opinions, or practices, which th<' church had condemned. 'J'his jurifdiclion was at firft exercifed by the clergyman, together with the moft refpeclable among the laity, of each particular church j but when the zeal of the latter, from the greater 204 HISTORICAL VIEW O F T H E grciitcr cxteniion of the gofpel, had begun to ilcickcn, they became weary of interfering in fuch matters ; and as they gradually loft their privilege by difufe, the bulinefs remained entirely in the hands for the former. When a number of churches were afterwards united in one diocefe, the clergy (3f that larger diftrict, under the authority of the bifliop, cxercifed a jurifdiction of alike nature over the whole of the inhabitants. In the meetings that were called, however, for this purpofe, after the iiUrodudlion of wealth had produced very different degrees of rank among churchmen, the parochial, or inferior clergy, were by degrees overlooked, or endeavoured to ^xcufe themfelves from attendance ; and the care of maintaining ecclefiaftical difcipline, thoughout the diocefe, was appropriated to the bifhop and clergy of his cathedral church. This diocefan court, which, from a perfect uniformity of circumftances, v/as formed upon the fame plan in every diocefe of the kingdom, was every where liable to the review of a fmiilar court, in a (till more extenfive diftrici, convened by the archbifhop ; and from the decrees of this laft, at a period when the papal authority had arrived at its height, there lay an appeal to the Roman pontiff. Together with this judicial authority, which was properly of a fpiritual nature, the Chriflian clergy came alio to be invefled with a temporal jurifdic- tion. After the Chriflian religion was taken under the protection of the Roman government, and after the fafliion of making donations to the church, for pious ufes, had become prevalent, the dignified clerg)^ both fecular and regular, as has been former- ly mentioned, were enabled to acquire great landed effates. Thefe, upon the fettlement of the Gothic nations in the V\reftern part of Europe, were gra- dually reduced under the fame feudal policy that obr taincd in the landed property of the lay-barons ; and a great proportion of the lands of every bifhop, ur abbot, was commonly diflributed among his vib lei OS ENGLISH G O V E R N INI E N T. :os ielns or vaflals ; over v/hom lie exerciied the jiirif- didion and authority of a temporal lord and fupc- rior. The eftatc, or benefice, which from the piety of well-difpofed perfons, or from whatever caufc, had been mortified to the church, and had conu: into the hands of fomc particular churchman, was afterwards, in like manner as happened to the other fiefs of the kingdom, increafed by the voluntary fubmiflion of neighbouring Imall proprietors ; who, in order to purchafe his protection, refigncd their allodial property, and became his vaffals. As the dignified eccleliailics were not only poffelTed of a degree of influence correfponding to the extent of their benefices, but were fupported by the fpiritual arm of the church, they were often better qualified than many of the nobles, to fecure their dependants from oppreflion ; and of confequence, the opportu- nities of augmenting their wealth, by an artful in- terpofition in behalf of the inferior people, were proportionably more frequent. In thofe circumllances, a billiop came to be inveft- cd with a civil as well as an ecclefiaftical jurifdiclion ; the one extending to the people who lived upon his own eftate ; the other to all the inhabitants of his diocefe. By virtue of the former, he punifhed the crimes, and determined the pecuniary differences of his tenants and vall'als. In confequence of the latter, he enquired into the opinions and behaviour of fuch as were under his direction in religious mat- ters ;' and cenfured them, either for hercfy or for immorality. It required no great penetration to difcover, that this temporal jurifdiclion of the bifliop might be extended, under cover of the fpiritual jurifdic- tion. Every crime ; every tranfgreflion of a rule of jufhce ; whether of a public or private nature, might be confidered as a fin, or as an offence in the light of God ; and in that view, it might, confid- ently with the fyflcm of church-difciplinc, become aii object of ecclefiaftical ccnfurc. Whatever there* fore 2o6 HISTORICAL VIEW OF THE fore could l)c the crround of an action before the civil mao-iilratc. mi^-ht be broLi^ht at the fime time under the cognizance of the fpiritual judge. The pro- fefl'cd purpofe of the hitter wab, indeed, very different from that of the former ; as he pretended to acl merely with a view of pron-Oting the good of the party in a future world. But when the church had acquired great authority over the people, it was not diilicult for the ecclefiaflical judge to frame his fen- tenccs in fuch a manner as to effect alfo the interell of men in the prefent life. In making atonement for a iin, the offender misiht be ordained to indemnifv the injured pcrfon, or even to fubmit to a public pu- niflimcnt. This cxtcnflon of ecclefiaflical jurifdiclion was made with greater orlefs rapidity, indifferent parts of Chriftendom, and with regard to perfons or caufes of different defcriptions. It began with re- gard to the clergy themfelves. To maintain the dignity and credit of the church it was neceffary that fiie fliould pay the utmoft at- tention to the behaviour of her own members ; and be careful to avoid fcandal, by cenfuring their of- fences with Impartiality and rigour. She found, at the fame time, the leaft difficulty in compelling churchmen to obey her decrees ; for, as foon as the Chi iftian church had come to be eftablilhed by law, the excommunication of a clergyman muff have in- ferred a forfeiture of his benefice ; fince a perfon, who had been call out of the fociety of Chrllians, could not confiftently be permitted to hold any ccclefiaftical dignity or employment. From the fcvere difcipiine, therefore, which the church exer- cifed ever her own members, it became cuftomary lo exhibit complaints againft them before the eccle- liaftical, rather than before the civil judge ; and to profecute them in the church court, either for pri- vate debts, or of public offences. After this pradice had become general, it was re- garded by churchmen as a matter of privilege. The peculiar ENGLISH GOVERNiMENT. 207 peculiar functions and character of a clergyman required a peculiar delicacy, it was pretended, in judging of his conduct, which could not with pro- priety fall under the cognizance of the civil magi- itrate, and of which the clergy themfelvcs were the only competent judges. In the progrcfs of church power, this exemption from the jurifdic- tion of temporal courts was gradually eftabliflicd throughout the greater part of Chriftendom. It was introduced in the diocefe of Rome by a law of Alaric, which provided that the clergy of that dif- tricl fliould only be profecuted, in the firft inftancc, before their own bifhop ; but from his decifion an appeal was admitted to the civil magiltrate. In the Eailern empire, the inferior clergy obtained a fimi- lar privilege, in civil aclions, by a law of the em- peror Juiiinian ; though, in criminal caufes, not properly ecclefiaftical, they miglit ftill be profecuted either in the fpiritual or temporal court. 'i1)C higher orders of churchmen, however, together with nuns, were, by the regulation of this em- peror, permitted, in all oafes, to decline thejurif- diclion of laic judges*. When the exemption of the clergy from the jurifdiclion of the civil magiftrate, which, with the exception of a few caufes, became univerfal, in the Weftern part of Europe, had been com- pletely eftablifhed, the church was, in reality, in- dependent of the ftate ; fmce, whatever regula- tions were enacted by the legiflature of any coun- try, they might, with fafety, be difregardcd by churchman, who could not be punifhcd for the violation of any law, unlefs they thought proper to enforce it by their own courts f. The power of the church, in the adminiftralion of juftice to her own members, was followed by a fimilar jurifdiclion over the laity, in thofe law- • V.Nov. 8?. — I2.V — 79. Alfo Gianoiic, Hift. <>f Naples, f There were certain great crimes, lucli as hi^li trc:il'yn, to wlil.li tlas exemption did aot extend. ^ fuiis 2o8 HISTORICAL VIEW OF THE fuits by whicli her own intcrefls might, in any de- gree, be aflecled, or which appeared, hou^ever in^ direaiy, to have an influence upon any eccleliafl tical matter. But, in England, this encroachment upon the province of the 'civil magiftrate was poi- tcrior to the Norman conqueft : and therefore does not fall under our prcfent confideraticn.^ During the government of the Anglo-Saxon princes, the clern-V did not claim a feparate cognizance in the tenifjoral caufes of the laity ; but they laid the foundation of fuch a claim, in a future period, by affuming a privilege of aflifting the ordinary mao-iftrates ' in the determination of fuch caufes. The extent of a diocefe being the fame with that of a ihire, the bifliop iat along with the earl or Hieriff, as a judge, in the county courts ; and the rural dean, whofe ecclefiaftical diftricT; coincided with the hundred, appears, in like manner, to have been afibciated with the centenarius^ in the deter- mination of fuch differences as arofe among the people of that divifion. It is not improbable that the union of the civil and ecclefiaftical powers was carried ftill lower, and that the parfon of a parifh was accuftomicd to judge along with the tything- man, in the court of the decennary : this is what might be expected from the correfpondence be- tween the limits of a pariili and a ty thing, and from the analogous practice in the fuperior courts ; - though the accounts tranfmitted by early hiftorians are too vague and general to afford any pofitive evidence of the facl. This arrangement of the Saxon tribunals was a natural confequence of the influence poffefled by the fpiritual and the temporal governors, in the ter- ritories over which they prefided. It feems, at the iame time, to have been efteemed a wife regula- tion ; in as much as by uniting the opinion of thcle two officers, in the diftribution of juftice, it was likely that the decifions would be tempered in fuch ENGLISH G O V E R N ISr E N T. 209 fuch a manner, as might correfpond to tl^c Intereft, and the views, of every fet of men in the com- munity. The experience and forcfi^^ht of that age was too limited to difcover the inconveniency of confounding the plain and accurate rules of ^uftice, with the intricate fubtleties of cafuiftry, which na- turally introduce themfelves into the judgment of a fpiritual director : not to mention the danger of committing a ihare of the judicial power, in thofe times of ignorance, to a fet of men who, by their fuperior education, were likely to be an over- match for the civil magiftrate, and v/ho, by tli.'ir iituation, had acquired a feparate intereft, and were led to feek their own aggrandizem.ent at the ex- pence of the great body of the people. CHAP. XIV. Aheratlons in the State of the Wittenagernote. X HE progrefTive changes in the ftate of pro- perty, and in the conftitution and circun^.ftances of the people.^ of v.'^hich ar account has been given, muft have contributed, in many particulars, to alter the conftitution and proceduic of the \Vit- tenagemote. As this national council was com- pofed of all the allodial proprietors of land, whofe eft ites, according to the primitive diftribution of property, were generally of fmall extent, there -an be no doubt that, upon the union of the different kingdoms of the Heptarch-y, it formed a very nu- merous, and, in fome degree, a tumultuary meet-- ing. The mcafures which came under its delibcr- P ation ;io HISTORICAL VIEW OF THE atiou were propofcd, it fliould fccm, by iuch of its members as were diftinguiilied by their influ- ence or abilities ; and its determinations were ligni- tied, not by collecting exactly the number of fuf- fra>^es, but by a promifcuous acclamation, in which the by-ftanders, it is not unlikely, were accuftomed frequently tv"> join with thofe who had the right of voting. This, in all probability, is what is meant by the early hiflorians, when they fpeak of the ■people being prcfcnt in the ancient Wittenagemotc, and of their ajf^fting^ ar.d giving ihcir confent^ in forming the refoludons of that aflembly. It cannot efcape obfervation, that this early con- ftitution of the national council, while it contained a mixture of democracy and ariftocracy, was, in fome refpects, favourable to the interefts of the crown. In fo numerous and dlforderly an aflem- bly, there was great room for addrefs, in manag- ing parties, and in ccnclucling the fubje^ls of pub- lic deliberation ; £b that the king, the chief execu- tive cfiicer, hsd many opportunities of promoting the fucceis of a favourite plan, as well as of par- rying, and removing out of fight, thofe m^eafures which were difa2:reeable to him. o The frequent reflgnations of land which, during the progrefs of the Saxon government, were made by the fmall allodial proprietors, in order to flicker themfeives under the protection of a feudal fupc- rior, nccefi'ariiy withdrew thofe individuals from the Wittenagemote ; and reduced them under the jurifdiclion and authority of that particular thane v/hom they had chofen for their protector. As they became hi.s military fervants, they were bound, on every occafion, to efpoufe his quarrel, and to follow his banner. They were bound, at the fanie time, to attend his baron-court, and to affrft in deciding caufes, as well as in making regulations, with re- g;ird to his valTals. In confiftency with that fubor- dlnate ftation, they could not be permitted to fit in the ENGLISH GOVERNMENT. 211 tne fame council with their liege lord, to deliberate with him upon public afiliirs ; but, on the contrary, were underliood to be reprefented in the \Vittenagc- mote by the perfon who had undertaken to protect them, and to whom they owed lubmillion and obe- dience. Thus, according as the vaflals of the nobility, throughout the kingdom, were multiplied, the con- ftituent members of the Wittenagemote became lefs numerous ; and the rio-ht of fittini:^ in that aifem.- biy was more and more limited, to a few opulent barons, who had acquired the property of exten- fivc diftricls, and reduced the inhabitants under their dominion. This change of circumftances was no lefs unfa- vourable to the king, on the one hand, than it was, on the other, to the great body of the people. For although the vaflals of the crown were, by the gra- dual refignations of allodial property, increafed in the lame, or even in a greater proportion than thofe of particular noblemen, the fovereign was not thence enabled to preferve his former weight in the determination of pubHc meafures. The more the national council had been reduced to a fmall junto of nobles, it was the more difficult to impofe upon them, or by any ftratagem to divert them from profccuting their own views of intereit or ambition. By the accidental combination of different leaders, they fometimes collected a force which nothing could refill ; and were in a condi- tion, not only to defend their own privileges, but even to invade the prerogative. It was often vain for the fovereign, in fuch a fituation, to appeal to the fword from the decifions of the Wittenage- mote. Thofe haughty and ambitious fubjefts were generally prepared for fuch a determination ; and, as they came into the airembly, fupported by their vaflals, armed and ready to take the field, they got frcc[ucntly the ftart of liis majeCiy. To give way, P 2 therefore, 212 HISTORICAL VIEW OF THE therefore, to their demands, and to wait for fome future opportunity of recovering what had been yielded, was in many cafes unavoidable. In that early period of the Anglo-Saxon ftate, when the allodial proprietors were numerous, and when their cftates were generally fmall, they were underftood to be all of the fame rank and condi- tion. Although fome perfons might be diftin- guiihcd above others, by their abilities, or military reputation ; the fuperiority derived from thence, being accidental and temporary, was not produc- tive of any permanent authority or privileges. But when, from the caufes which have been mentioned, a few great lords had become mailers of an exten- fivc landed property, their exaltation in pov/er and dignity was a neceffary confequence. Thofe indivi- duals, on the contrary, who remained in the pof- feflion of fmall eftates, though by any fortunate concurrence of events they had been enabled to re- tain their independence, were degraded in propor- tion to their poverty. They could maintain but few retainers to fupport their influence. Hardly in a condition to defend themfelves, and afraid of every conteft which might endanger their property, and their perfonal fafety, they were deterred from claiming political confideration, and from interfer- ing in public bufmefs. It was their intereft to live upon good terms with their neighbours ; and, by their peaceable and inofFeniive behaviour, to fliun every ground of jealcitify and rcfentment. If they came into the Wittenagemote, their voice was but little heard ; or if they ventured to differ from others, of greater opulence, it was likely to be treated with neglecl, or with derilion. They had but fmall encouragement, therefore, to attenci the meetings of that affembly ; where, at the flime time that they incurred an expcnce not fuited to their fortunes, they were fubjected to continual mortification, and were incapable of procuring ref- pecl. ENGLISH GOVERNMENT. 213 peel. In thefe circumftances, it is prob:iblo that the allodiiil proprietors, whofe efuites were inconfidc- rable, appeared but feldom in the Wittenagemotc ; and that, iinlefs upon extraordinary occafions, when great unanimity wa^ of the higheft impor- tance, their abfence was either dilpcnied with, or in a great meaiure overlooked. It was to be expected that this very unequal dif- tribution of property, as it produced a real differ- ence in the conlideration and importance of indivi- duals, would come at length to be accompanied with corrcfponding marks of diftinclion ; and that fo much wealth as enabled the poflefibr to live ac- cording to a certain ftandard of magnificence, might become the foundation of fuitablc dignity. Thus, in the latter part of the Anglo-Saxon government, fuch of the nobles as enjoyed an eftatc, extending to forty hides of land, were diftinfruiflied in rank and condition from thofe who poflelfed an inferior property. This appears from a pafllige in the rc- 2;irter of Ely, in which mention is made of a pcr- fon who, " though he was a nobleman^ could not be " numbered aniong the proccrcs, becaufe his eftate " did not amount to forty hides of land *." From this paflage, political writers have been led to advance two conjectures ; to which it gives no countenance whatever. They coniider the rank or privileges, attached to the poffeflion of forty hides of hmd, as having exiftcd from the original fettlc- ment of the Anglo-Saxons ; although the writer of that pali'agc fpcaks only, and that by the by, of what was eftablifhcd in the reign of Edward the C^onfelTor. They alfo maintain, that perfons whofe cftates were below forty hides of land, were en- * H:-.!)uit cr.im (fpcaking of tl.c abbot of Ely) fiMticm CJmundum voca- Iwilo, cui filiam pra-potcntis viii in matriinoniuni conjiingi paiavt-rat. Stil , and that th.^y were ftrictiy entitled to a voic^ in the Wittenagemote; yet, about the time when this privilege was l)e- ftowed, a much greater property than five hides of land, the quantity fpecified in the law of king Athelftan, was required for giving the proprietor any weic^ht or confideration in that af.embly, or for making his attendance upon it a dehrable ob- iecT:. This v\'as a privilege, therefore, which they would be more apt to decline from its inconvenien- <;:ies, than to exercife, or to boaft of on account of its advantages. It may alfo be a queftion, whether thofe mer- chants \vho performed three voyages into a foreign country, and who, by another law of the fame prince, are f;iid to have obtained the rights of a thane, were admitted into the "Wittenagemote. But, as thefe mercantile adventurers were not re- quired to poflefs any eftate, real or perfonal, it is not rcafonable to fuppofe that they could be al- lowed to participate, with the ancient nolnlity, in the deliberations of the fupreme national council. It has .already been obferved, that by the privileges of ^ a thane, beftowed as an encouragement to a certain degree of enterprize in trade, were probably un- derftood thofe of a leJfcr thant\ or vaflal ; who, though not a member' of the Wittenagemote, was of a condition greatly fuperior to that of the ori- ginal peafants and mechanics. As it does not appear that individuals among the merchants had, independent of any landed eibte, the privilege of fitting in the Wittenagemote ;fo there is no evidence that, collcclivcly, the tniding intereft were, even in the latter i)arl of the Anglo- Saxon hidorv, entitled to fend reprefentativcs to that afTembly. Of .his we may 1-e iatidied from the particulars, relative to the conllitution of the national 1x6 HISTORICAL VIEW OF THE national council, which have been formerly menti- oned. The facls which were then adduced, in order to iliew that in the Saxon Wittenagemote there were no reprefentatives, either from tov/ns, or from the fmall proprietors of land, appear con- clufive with regard to the whole period of the Eng- lifli government before the Norman conqueft. If the orifrinal conftitution of that afiembly admitted of no reprefentatives from either of thefe two clalTes of men, it mufc be fuppofed, that the lubfe- quent introduction of them, more efpecially if it had happened near the end of the Saxon period, when hiiforical events are bqtter afcertained, would have excited the attention of fome hiftorian or other, and have been thought worthy of tranfmif- lion to future ages. But upon this point, of fo much importance in the political fyilem,' and fo unlikely to pafs without notice, the later as well as the early Saxon hiftorians are entirely filent. The advancement of arts and manufaclures, towards the end of the Saxon line, was, indeed, fo confiderable, as to have enlarged particular towns, and to have exempted the inhabitants from thofe precarious duties and fervices to which they had anciently been fubjecled. They were permitted to form foc'teties or gilds, for the benefit of their trade ; which appear to have at length fuggeiled the prac- tice of incorporating the whole of a tov» n, with particular privileges and regulations*. By a feries of progrefi^ve improvements, the trading people were thus gradually prepared and qualified for that political confideration which they afterwards ac- quired by the eftablifliment of reprefentatives in the national council. But the acquifition of this impor- tant [rivilege was the work of a later period, when they rufe to a higher pitch of opulence and inde- pendence. The ENGLISH GOVERNMENT. 217 The original meetings of the Wittcnagemote in England, as well as thofe of the national council, in moft of the kingdoms upon the neighbourin?; continent, appear, as was formerly obfcrvcd, to have been held regularly at two feafons of the year ; at the end of fpring, for deliberating upon the mi- litary operations of the fummcr, and at the begin- ning of autumn, for dividing the fruit of thofc depredations. The fame times of meeting were, for fim.ilar reafons, obferved, in the courts belong- ing- to the feveral fliires and baronies of the kinc- dom. But as, in England, from her infular fitu- ation, military enterprizes againft a foreign enemy were lefs regular than upon the continent of Eu- rope, thofe meetings fell foon into difufe ; and as, on certain great feftivals, the king was accuftomed to appear, with great pomp and folemnity, among his nobles ; it was found convenient, on thofe occa- lions, to call the Wittenagemote. Hence the meet- ings of that council came to be held uniformly at three diflerent feafons ; atChriflmas, at Eafter, and at AVhitfuntidc. The increafe of the national bufmefs, particu- larly with refpccf to the diftribution of jullice, a confequence of the gradual progrefs of autliority in the public, made it necefTary that the Witten- agemote fhould be held more frequently than in former times ; and therefore, in any extraordinary exigence, which arofe between the diilcrcnt feRl- vals above-mentioned, a particular meeting of that council was called by the king. Thus there c:tmc to be two forts of Wittenagemote ; the one hckl b) cuftom ; and at three Itated periods ; tlic other called occalionally, by a fpecial fummons from the king \ Both were compofed of the fame pcrfons, if they chofe to attend ; but conmic^nly a much lefs regular attendance was given in the latter tlian in the former. At the occafional meetings of the * The forraci- were ca'Jtd (oarU d: more, bti].,;^' founded upr/;i inimciv.oi i.il great 2i8 HISTORICAL VIEW OF THE frrcat council, fuch of the nobility as lived at a dif- uncc were feldom at the trouble of appearing; •and the bufmcfs, of courfe, devolved upon thofe members who happened to be in the king's retinue, and who might be faid to compofe his privy-council. For this Vcafon, the occafional meetings of the AVittena-'-cmotc ufualiy confined themfelves to mat- ters of lefs importance than were difcuffed in the old cuftomary meetings. The chief employment of the former was the hearing of appeals from infe- ior courts : but legiflation, and other weighty tranf- adions, were generally refcrved to the latter. If, however, it was found necelTary, in the interval between the three great feflivals, to deliberate upon public bufmefs of importance, the king iffued an extraordinary fummons to his nobles ; in which he cxprefsly required their attendance, and fpecified the caufe of their meeting*. It may here be proper to remark, that the fmaller occafional meetings of the Wittenagemote appear to have fuggefted the idea of the aula ?rgis ; a fepa- rate court, which, after the Norman conqueft, was formed out of parliament for the fole purpofe of deciding lavv-fuits. As the occurrences v*'hich demanded the immC' diate interpofition of the Wittenagemote could not be forefeen, the king was led to determine the par- ticular cafes in which the deliberation of that af- fem.by v/as requifite ; and in the exercife of this, prerogative, he v/as originally under no reiiraint. The powers exercifed by the crown feem, at firft, to have been all difcretionary ; and to have re- mained without limitation, until experience had' Ihewn the dan2:er of their being^ abufed. We fliall afterwards have occafion to obferve, that, under the princes of the Norman and Plan- tagenet race, the ancient and regular meetings of tlie national council were more and more difregard- ed, and at length entirely difufed ; in confequence ■ Gurdon's Hiftory of the high court of Paiiianieut. of ENGLISH GOVERNMENT. 21^ of which the whole parliamentary bufinefs came to be tranfacled in extraordinary meetings, whicli were called at the pleafure of the fovereign. The attempts to limit this important branch of the royal prerogative will be thefubjecl of future difcullion. Conclufwn of the Saxon Period. Such appear to be the outlines of the Engliih go- vernment under the adminiftration of the Anglo- Saxon princes. To the fubjecls of Britain, who con- lider the nature of their prefent conftitution, and compare it with that of moft of the nations upon the neighbouring continent, it feems natural to indulge a prepofleflion, that circumftances peculiarly fortu- nate muft have concurred in laying the foundation of fo excellent a fabric. It feems natural to imagine, that the government of the Anglo-Saxons muil have contained a proportion of liberty, as much greater than that of the neighbouring nations, as our conftitution is at prefent more free than the other European governments. When we examine, at the fame time, the ftate of our country, in that remote age ; the uniform jurifdiction and authority poffeffed by every allodial proprietor ; the divifion of the country in various diftricls, fubordinate one to another ; the perfect correfpondence between the civil and ecclefiaftical divifions ; the fimilarity in the powers exercifed by the meetings of the tything, the hundred, and the fhire, in their refpeclive territories, and thofe of the Wittenaocemote over the whole kincrdom ; the ana- logy between the office of the tythingman, tlic hun- drcder, ;..nd the earl, in their inferior departments, and that of the fovereign in his more exalted llation : when, I fay, we examine thefe, and other particu- lars relating to the Anglo-Saxon government, in which we may difcover fo much order and regula- rity, fuch a variety of regulations, nicely adjuiled to one another, and calculated for the moft benefi- cial 220 HISTORICAL VIEW OF THE cial purpofes ; It Is natural to fuppofe, that the whole has originated in much contrivance and fbrefight ; and is the refult of deep laid fchemes of policy. In both of thefe concluHons, however, we fhould undoubtedly be miilaken. When we look round and examine the ftate of the other European king- doms about the fame period ; and when we obferve, in each of them, the clofe and minute refemblance of its political fyftem to that of England, how little focver the apparent intercourfe of the inhabitants ; we feel ourfclves under the necellity of abandoning our former fuppofition, and of acknowledging that the regulations eitabliflied in all of thefe countries proceeded from no artificial or complicated plans of legi flat ion ; but were fuch as occurred fucceilively to the people, for the fupply of their immediate wants, and the removal of Incidental inconvenlen- cies ; in a word, that the feudal conftitution M^as, every where, a kind of natural growth, produced by the peculiar fituation and circumtftances of the Ibciety Neither was the Anglo-Saxon government calcu- lated, in any peculiar manner, to fecure the liberty and the natural rights of mankind ; though, in the long period during which it fubfifted, it underwent conliderable variations. The fovereign, indeed, was at no time invefted with abfolute power. The fupreme authority in the ftate was originally poffefT- cd by a num.erous body of landed proprietors ; but the reft of the community were either flaves, or tenants at the will of their mafter. The number of thofe who enjoyed a ihare in the government was afterwards greatly diminiflied ; at the fame time that, upon, the advancement of the ariftocracy, the lower part of the inhabitants became fomewhat more free and independent. The reflridion of political power In nien of a fuperior clafs was thus compen- lated by lome little extenfion of privileges in the great body of the people. J^ o o K ENGLISH G O V E R N i\I E N T. 2:1 BOOK II. OF THE ENGLISH GOVERNMENT FROM THE REI.(;N OF WILLIAM THE CONQIJEROR, TO THE ACCES SION OF THE HOUSE OF STE\VAR.T. X HE political liiftory of ihis extcnfive period may be fubdivided into three parts ; the firft ex- tending from the Norman conqucft to the end of the reiscn of Henry the third : the fecond, from the be- jrinning of the reign of Edward the firft, to the accef- fion of Henry the feventh ; and the third, compre- hending the reigns of the Tudor family. In each of thefe parts we fhall meet with progrefiive changes in the Englifh conftitution, which appear to demand a feparate examination, and which, being analogous to fuch as were introduced, about the fame time, in the other European governments, may be regarded as the natural growth and developement of the origi- nal fyftem, produced by the peculiar circumftanccs of modern Europe. C II A P. 222 HISTORICAL VIEW OF THE CHAP. I. The Norman conquejl. — Progrcfs of the feudal Syjlem.—^ View of the feveral Reigns before that of Edward L — The great Charter, and Charter of the Forefi. VV I L L I A M the conqueror afcended the throne of England, partly by force of arms, and partly by the voluntary fubmilTion of the people. The great landed eftates, acquired by a few individuals, to- wards the end of the Saxon government, had exalt- ed particular nobles to fuch power and Iplendor, as rendered them, in fome degree, rivals to the fove- reiejn ; and even encouraged them, upon any fa- vourable emergency, to afpire to the crown. — Among thefe, under the feeble reign of Edward the confeitor, we may diftinguiih Godwin earlof Wef- iex, who had become formidable to the monarch ; and, after the death of that carl, his fon Harold, who, at the fame time that his poffelTions were not lefs extenlive than thofe of his father, being endow- ed with fuperior abilities, and much more amiable difpofitions, appears to have attained a degree of influence and authority which no Englifh fubject had ever enjoyed. He became, of courfe, an object ofjealoufy to Edward ; who, in the decline of life, and having no children, was anxious to exclude this nobleman from the throne, by fecuring the fuc- ccilion to one of his own kindred. Edward him- fclf was properly an ufurper, having feized the crov/n to the prejudice of his elder brother's fon, the undoubted lineal heir. This prince being now dead, the right of inheritance devolved upon his fon Edgar Atheling, whofe tender age, and flender abilities, appeared to difqualify him in fuch a criti- cal ENGLISH GOVERNMENT. zz^ cal conjunclure, for wielding the fceptrc over a fierce and turbulent people. In thofe diforderly times, the line of hereditary fucceflion, though not intircly dif- regarded, was frequently broken from particular ac- cidents : perfons incapable of defending the fovc- reignty, were commonly deemed unworthy to ob- tain it ; and the recommendation, or zcill, of the reigning prince was always held to be a ftrong cir- cumftance in favour of any future competitor for the fucceflion. Edward the confeflbr had refided four and twenty years in the court of Richard the fecond, duke of Normandy, his maternal uncle ; by whom, in the fhort reign of his brother Edmund Ironfide, and during the ufurpation of the Danifh monarchs, he was generoufly educated and protected. By re- maining, for fo long a period, in a foreign coun- try, where he was carefled, and treated with every mark of diftinclion, the Englifh prince was led to form an attachm.ent to the people, whofe progrefs in arts, government, and manners, furpafled that of his own countrymen ; and he ever retained a grateful remembrance of the hofpitality and kind- nefs which he had experienced in the family of hi5> kinfman. When he mounted the throne of Eng- land, a communication was opened between the two countries ; and an intimate connexion fubfifled between the refpecfive fovereigns. Multitudes of Normans reforted to the Englifli court, in expec- tation of preferment ; many individuals of thai country obtained landed pofleflions in England ; and many were promoted to offices of great dig- nity, both in church and ftatc. Thefc foreigner:;, who ftood fo high in the favour of the fovereign, were imitated by the Englilli in their drefs, their amufements, their manners, and cuftoins. I'hey imported alfo the Erencli language ; which had for IJDme time been adopted by the Normans; and which, being regarded as a more improved and elegant -24 HISTORtCAL VIEW OF THE elc2;ant diakcl than the Saxon, became fafliionable in ^En^land, and was even employed, it is MCi, m the writings and pleadings of lawyers. The dutcliy of Normandy having dcfccnded to William, the natural fon of Robert, and nephew of Ivichard II. the alTeclions, as well as the policy of Edward, made him caft his eyes upon that prince, his nearefc relation by the mother, and the moft able and accompliflied warrior of his time, as the moft proper perfon to fucceed him in the throne. His illegitimate birth was, in that age, an ob^eclion of little moment ; fmce it had not pre- vented him from inheriting the dukedom of Nor- mandy ; and lince a fimilar ftain is obfervable in the line of our Saxon kings. Some hiilorians have afferted, that the Engliili monarch actually made a zuill, by which he bequeathed his crown to the duke of Normandy ; and that this deed was even ratified by the ftates of the kingdom. But whe- ther fucli a tranfaclion was really executed, appears extremely doubtful. It is certain, however, that Edward had publickly declared his intentions to this purpofe ; that AViliiam, in confequence of fuch declaration, had openly avowed his pretenfions to tiic crown of England; and that Harold himfelf, being upon a viht to the Norman court, and hav- ing received a promife of the duke's daughter in marriage, had taken a folemn oath to fupport his title. An artifice which vras put in practice, with relation to that oath, in a contract between two of the moft confpicuous perfonages of the age, is wor- thy of attention, as it exhibits a ludicrous piclure of the fuperftition to v/hich the minds of men were then univerfally fubjecled. William fecretly con- veyed under the altar upon which Harold was to fwear, the bones of lome of the m.oft revered mar- tyrs ; and after the oath was taken, fhevv^ed the relics to the aft'righted nobleman ; who difcovered, with equal concern and indignation, that he was enfnared ENGLISH GOVERNMENT. 22; enfnared into a much ftronger obligation than he had intended ; and that his future breach of pro- inife would be productive of more fatal confc- quences than he had been aware of. By what fpecies of cafuiftry Harold afterwards endeavoured to fatisfy his confcience with refpecl to the violation of this oath, which had, indeed, been in fome degree extorted from him, wc have no information ; but, in fa * ScTeral hiftorians, who write near that period, confidcr William's ad- vancement to the Enghlli throne as the cfre<5l of a formal election. WilHam of Poicloii, this king's chaplain, gives the following account of it : " Die " ordinationi dccreto locutus ad Anglos concedenti fennonc liboraci Archi- " epifcopus, fapiens, bonus, eloqiiens, an confentirent eum libi domuium " coronari inquiiivit ; proteftari font Jnlarem confenfum univerli niinime " hxfitantes, ac ii coelitus una mente data, unique voce, Anglorum, quam. " iacilimc Nornianni confonuerunt fermocinatt) apud eos, ac fententiam " prscuniflatorium Conflantini Prxfule, lie cUSiim confecravit Archiepifco- '• pus, &C."' Odericus Vitalis, who lived in the reign of William Rufus, fpeaks of the fame event as follows : " Dum Aldredus Praful allquoeretur Anglos, ct " Godofredns Conftantinielius Normannos, an confederent Guilielnium reg- " nare fuper f , ct univcrii confenfum hilarum proteftarentur una voce non " uuius lingua; locutione." Oul. Gemeticcnfis, in his hiftory of the dukes of Normandy, agrees with " the two authors above quoted : " Ab omnibus," fays he " turn Norman- " norum, quam Anglorivin proceribus rex tjl eLiius," &c. Ty''''^^'^ Bibli- " otlKca Polit, dial. ?o. and ENGLISH G O V E R N ISI E N T. 2:9 2.nd thofc intermediate pollcflbrs, v/honi they had jormerly been emphiyeJ in liibciuing, were now diihibutecl uponeitiicr fide, and ready to alhit their refpedive funeiiors in their mutual depredations. Thole hereditary feuds, Avhich had been Haltered over a muUitnde of individu.ds, were now concen- tered in a few great leaders ; who felt a ftrongcr in- citement to tlie exercife <->f reciprocal hoUiliries, as M-eil as the capacity oi' profec\iting them v/ith greater vigour and perfeverance, according as their power, together with their pride and their ambi- tion, had been augmented. The public magiilrritc was often unwilling to interfere in reconciliiig their differences ; and was even ple^fed to fee their force \\-ailed and broken by their mutual ravages. Ilic greater nobles were thus permitted to injure and opprefs one another at their own difcrelion ; and, being expofed to fuch difficulties and diifreffes as had tbrmerly been fufcained by the proprietors of Imall eftates, were obliged to extricate themfelves by fimilar expedients. They endeavoured to pro- vide againO; the dangers which threatened them, from the invafion of fome of their neighbours, by forming an alliance witl) others ; or, if this re- faurce had proved inetfeclual, by courting the fa- vour and foliciting the protection of the king. Nothing lefs than the power of tlie crown was ca- pable, in many cafes, of delivering tliem from their embarrailment ; and, in order to procure that re- lief which tlieir lituation required, it was necelfary that they fhould promife, upon their part, a re- turn of good offices. If they were anxious to enjoy tiiat fecurity which he bellowed upon his in) medi- ate retainers, they could not decently withold from him the fame homage and fealty, or refufe to perform the fame fervices. They found, in a word, ♦I\at it was expediei^t for them to rcfign their allo- dial property, and to hold their eilates by 4 feudal tenure us viilliUj of the crown, Tlic 230 HISTORICAL VIEW OF THE The political theatre, at that time, exhibited a frequent repetition of the fame parts by different aclors. Thofe opulent individuals, who had for- merly been in a condition to opprefs their neigh- bours, and force them into a ftate of dependence upon the fovereign, were, by a different com.bina- tion of rival powers, or by an alteration of cir- cum.ffances, rendered, on other occafions, incapa- ble of maintaining their own independence ; and being, in their turn, induced to fupplicate the in- terpofition of the crown in their favour, were obliged to purchafe it by the fame terms of fubmif- fion. As thefe refignations of land w^ere in the highefl degree advantageous to the fovereign, we can have no doubt, that the influence of the court would be uniformly exerted, and that every poffible artifice would be employed, in promoting them. The great nobles were thus rendered fubordinate to the crown, in the fame manner as the inferior free people had become fubordinate to the nobility ; the whole kingdom was united in one extenfive barony, of which the king became the fuperior, and in fome meafure the ultimate proprietor ; and the feudal fyftem, as it is called, of which the foun- dations had been laid feveral centuries before, was at length entirely completed. From the ftate of England, about the accefllon of the Nornran race of kings, a change of this na- ture was likely to have happened : though it was, undoubtedly, promoted and accelerated by the pe- culiar circumftances of William the Conqueror. From the great abilities of that prince, as well as from the manner in which he afcended the throne, he became poffeffed of uncomm.cn perfonal influ- ence ; and, by his uniting the dutchy of Normandy to the crown of England, the royal demefnes, and the public revenue,, were greatly extended. But above all, the numerous forfeitures, incurred by the pTtrtifans of Harold, and by fuch as were in- cited ENGLISH GOVERNMENT. 231 cited to acls of rebellion, during tiie courfe of William's reign, enabled the fovereign to acquire a prodigious landed territory in England; part of which he retained in the polTeiTion of the crown ; and the reft he bellowed upon his favourites, under condition of their performing the feudal fervices. It mud not be overlooked, that this feudal policy was extended to the greater ecclefiaitical l>enefices, as well as the eftate of Ihe laity. The biiliops and abbots became immediate vaiTals of the crown ; and, though not bound to the king for perfonal fervice in \var, were obliged to fupply him with a number of military tenants proportioned to the extent of their polTcflions. Notwithftanding the ^rcat influence of the clergy, fupported by the Ro- man pontiff, who ftrongly remonllrated againfc this innovation, yet, as ecclefiailical benefices were enjoyed only for life, thofe churchmen who ex- pected preferment from the crown were, without much diiliculty, prevailed upon to accept of a be- nefice, under iucli general conditions as now began to be impofcd upon all the great proprietors of land. The change, which was thus effected in the ftatc of the great nobles, was far from being peculiar to Kn^i-land. It was extended, nearly about the flimc time, over all the kingdoms in the Weftern parr of Europe ; and in moil of them, was the refult of no conqueft, or violent effort of the fovereign ; but appears to have proceeded from the natural courfe of the feudal governments. In France the great barons appear to have become the immediate vaffds of the crown, in the time of Hugh Capet ; whofe reign began about eighty years before the Norman conqueil ; and who obtained the rectal dignity, without any appearance of dif- ordcr or violence, by the free cleclion of the nati- onal affembly. The feudal inftitutions having been completed in that kingdom., of which Normandy conilitutcil 232 HISTORICAL V I E ^V CF THE coirPatuted one of the principal baronies ; it is lil-ely that William, when he came into England with a train of Norman vaffals, found it the more eafy to cftablifh that fyilem, becaufe his followers had al- ready been acquainted with it in, their own country. In the German empire many powerful barons be- came valTals of the emperor, as early as the reign of Otho the Great ; who had likewife been advanced to the fovereignty, not by force of arms, but by the ' voice of the diet. From particular caufes, however, the feudal fubordinatinn of the nobility was not ren- dered foiiniverfal in Germxanyas in other European countries*. By this alteration in the ftate of landed property, the powers of the crown was undoubtedly increafed, * Concerning the time whcii the feudal fvRem was introduced into Eng- land, authors of great note have entertained very different opinions. Lord Cake, the judges of Ireland who gave their decifion upon the cafe of defec- tive titles, Mr. Selden, the author of the Merroir des Ji'f'ccs, and many others, fuppofethat it was eftablilhed under the Anglo-Saxon government. — Lord Hale, Mr. Somner, Cambden, Dugdale, Mathew Paris, Eracton, maintain that it was unknown before the Norman ccnqueft. — Sir Henry Spelman, in his Gloffary, fcems to hold this laft: opinion ; but in his poft- humous treatife he£xplains his meaning to be only that fiefs did act beccune hereditary, fo as to yield feudal incidents, before the reign of William the Con- queror. The opinion which I have dehvered above teems to account for thefe oppoiitexonjectures. It feems impofUble to deny that there were fiefs among the Anglo-Saxons ; on the other hand, It appears equally clear that there were many allodial eftates principally in hands of the great nobility. — Nothing therefore reniained for William, towards completing ihe feudal lyf- lem, but the redu(Stion of thefe laft into a ftate of vaffalage. We find accordingly, that, in the twentieth year of his reign, this mo- narch, having finiilied a furvey of all the lands in the kingdom (except thole of Northumberland, Cumberland, and Weflmoreland) fummoned all the ereat men and land-holders, to do homage, and fwear fealty to him. The cxprefiiou ufed in the Saxon Chronicle, in mentioning this facl:, is Proccres, d cmr.es prud'ia tenentes, fe illi fiibucikre, ejufquL' fiiii fiiiit 'vaJfalU. Having become vaflals of the croAvn, at that time, itmay be inferred they were not in that condition foiTnerly. It is further probable, that the twenty years which had clapfed, fmce the accefucn of William, were occupied in bringing about this great revolution ; for if the great men had been crown vafials during tlis .Saxon government, it was the intereit of this prince not to delay their renewal of the feudal engagement, by theirfwcaring fealty to him as foonas he came to the throne. From doomfday-book, which is now happily laid open to the infpeclion of all the world, this faiSl is made flill more certain, as innumerable inflances occur of land-holders, who are faid to have held their lands - but it was not increafcd, in fo great a proportion a^^ at the lirft view may perhaps be iniagincd. Wlicn tJic allodial eftates of the great lords were conwirted into fiefs, they were invariably fecurcd to the vallal and his heirs. The power and influence of thofc opulent proprietors were therefore but little impair- ed by this change of their circumftanccs. By their tenures they were fubjecl to the jurifdiction of the king's courts, as well as bound to fcrve him in war ; and they were liable for various 'mciJcnts, by which his revenue was confiderably augmented ; but they were not in other rcfpecls dependent upon his will ; and, while they fulfilled the duties which their con- dition required they could not Vv'ith any colour of juftice be deprived of their poifeflions. Neither was the fovereign capable, at all times, of enforcing the performance of the feudal obligations; but from the power of his great vafhils, or the exigence of his own fituation, he found it necefl'ary, in many cafes, to connive at the omillions, and even to cverlook their offences. The reign of William the Firfl was filled with difquietude and uneafmefs, both to the monarch, and to the nation. About fix months after the bat- tle of Haftings, he found the kingdom in fuch a ftate of apparent tranquillity, that he ventured to make a vilit to Normandy ; in order, as it fliould feem, to receive the congratulations of his ancient fubjecls. He probably intended to furvey his late elevation from the moft intcreiling point of view, by placing himfelf in the fituation in which he had planned his undertaking, and by thence comparing his former anxious anticipations with his prefent agreeable reflections. WilHam i:;, on this occalion, accufed by fome authors of having formed a refo- lution to fcize the property of all his i^nglifli lli!)jccTs, and to reduce them into the moll abject Ihu'ery. Ik- is even fuppofed to have gone fo foon into Norman- dy, for the purpofc of giving them an opportunity to 234 HISTORICAL VIEV/ OF THE to commit arts of rebellion, by which a pretence might be afforded for the fevcritics which he had pu?pofcd to execute*. But as this has been advanc- ed without any proof, fo it appears in itfelfhighly improbable. It is altogether inconfittent with the prudence and found policy afcribed to this mo- narch, not to mention the feelings of generofity of juftice, of which he does not feem to have been v\^]iolly deftitutc, that he lliould, in the begin- nino- of his reign, have determined to crulli and deftroy the Englifli nobility, merely for the £ike of pratifying his Norman barons ; fmce, by doing fo, "he muft have expecTicd to draw upon himfelf the hatred and refentment of the whole kingdom, and to incur the evident hazard of lofing that crown which he had been at fo much trouble and expcnce in acquiring. Although Wilham was, doubtlefs^ under the necelTity of bellowing ample rewards upon many of his countrym.en, it w^as not his in- tereft that they fiiould be enriched, or exalted be- yond meafure. Neither vx^as he of a character to be guided by favourites, or to facrifice his authority to the weaknefs of private affection. When he found himfelf feated upon the Englifli throne, it is natural to fuppofe that he would look upon the dutchy of Normandy as a diftant province, or as a mere dependency of the crown of England ; and that he would be more interefted in the profperity of the latter country than of the former, as being more immediately connected with his own dignity and reputation. Upon his return from Normandy, William, accordingly, exerted himfelf in putting a ilop to thofe quarrels which, in his abfence, had br({ke out between his Englifli and his Norman fub- jects, and in giving redrefs to the former, for thofe injuries which they had fuflained from the latter. — In particular, he endeavoured, everywhere, to re- store the Englifh to thofe pofTefTions from which they '" Hume's Kift. of Eji^laud. had ENGLISH GOVERNMENT. 2^,5 had been expelled, through the partiality, or want of authority of thofe perfons with whom he li.iJ left the adminiftration of government. Several circumftances contributed to render this monarch unpopular, and have fubjeclcd his conduct to greater clamour and cenfure than it appears to have merited. I. The iealoufv with which the Enn;lifli beheld the Normans, whom they looked upon as intruders, and who became the ruling party, gave rife to number- lefs difputes, and produced a rooted animofity be- tween them. The partiality M^hich, in fuch cafes, might frequently be difcovered, and perhaps was cftener fufpecled, in the fovereign, or in thoie to whom he committed the inferior branches of exe- cutive power, inflamed the pafllons of men who conceived themfelves loaded with injuries, and ex- cited them to frequent infurrections. By the punifli- ment which fell unavoidably upon the delinquents, and which could not fail to be regarded by their countrymen as rigorous, new difcontcnts were oc- caiioned, and frelh commotions w^ere produced. To the averfion which the Englifli conceived againft William, as a Norman, and as the friend and protector of Normans, they joined a llrong prejudice againft thofe foreign cuftoms which he and his followers had imported. Devoted, like every rUde nation, to tiieir ancient ufagcs, they v/ere difgufted with thofe innovations which they could not prevent ; and felt the utmoft reluctance to adopt the peculiar manners and policy of a peo- ple by whom they were opprefTcd. The clamours propagated againft particular laws of AVilliam tlic Conqueror, which were confidered as the moft op- prellive, may ferve to demonftrate, that his fub- jects had more dif]|)orition to complain than there was any reafon to juftify. It appears that the ori- gin and nature of fomc of theib laws have been grofsly mifundcrftood and mifrepvcfentcd. Tlie jc- gulation, 236 HISTORICAL VIEW OF THE gulation, for Inftancc, that lights fliould be extln- guiilied in every houfc by eight in the evening ; for the execution of which, intimation was given to the public by the ringing of a bell, thence known by the name of the curfew, has been regarded as the moft violent exertion of tyranny ; and the moll incon- teflible evidence, not only that William was deter- mined entirely to break and fubdue the fpirit of the Ilngliih, but that he was held in continual terror of their fecret confpiracies. It is now generally un- dcrftood and admitted, that this was a rule of po- lice eftabliflied in the greater part of the feudal na-, tions ; as by the extreme fobriety which it enforced, it Vv^as peculiarly adapted to the circumftances of a iimplc people. Another law, the fource of much complaint, and deemed an intolerable grievance, was, that when a Norman was robbed or llain, the hundred, Vvuthin whofe territory the crime had been committed, fhould bp refponfible. and fubjecl to a pecuniary punifhment. This regulation, which, in all probability had become necefiary, from the multitude of Normans that were daily aiTafiinated, was originally of Saxon inftitution, and was only accommodated in this reign to the exigence of the times. 2. The cxlenfion of the prerogative, by reduc- ing the allodial proprietors of land into a ftate of valfalage under the crown, was likewife, we may fuppofe, the ground of diilatisfaclion and murmur- ing to thofe great barons, who found them.felves deprived of their ancient independence, and were expofed to much vexation from thofe various inci- dents, the fruit of the feudal tenures, that were nov/ claimed by the fovereign. The difcontenu ariling from this caufe, and the defire of recovering that condition which they had held under the An- glo-Saxon princes, was not limited to the Englifli nobility ; but was readily communicated to thofe Norm.an chiefs who had obtained eftates in Eng- lancjj ENGLISH GOVERNMENT. 2^^7 land, and were naturally animated with the ambi- tion ot flipporting the privileges of their own order in oppoiition to the claims of the fovcrcign. One of the moft formidable infurreclions, during the reign of William the Firft, appears to Iiave been excited and conduc1:cd by fome of the principal Norman barons ; and to have proceeded from the impatience of thofe individuals under that recent authority which the crown pretended to exercife. 3. Another circumftance wiiich contributed, no lefs than either of thofe which have been menti- oned, to render William unpopular, was the re- ientment of the clergy, whom he greatly otTended by his exactions from them, and by his oppofition to the progrefs of ecclefiaftical authority. As the clergy poffefTed great influence over the people, fo they were the only hiftorians of thofe times ; and in eftimating the characT:er of any particular prince, they fcem to have no other criterion but the libera- lity and favour which he difplayed to the church. According to his difpofitions in this refpccl: they appear to have extolled or depreciated his virtues, to have aggravated or extenuated his vices, and to have given a favourable or malignant turn to the whole of his behaviour. From thefc impure fountains the ftrcam of ancient hiftory contrafted a pollution, which has adhered to it even in the courfe of later ages, and by which it is prevented from reflecting a true pidure of the pafl occurrences. After all, it cannot be controverted, that tjus monarch was of a fevere and inflexible temper ; and that he puniflied with rigour every attempt to fubvert or to diilurb his government. 'I'hat he was rapacious of money, as the great inftrunient for fupporting his authority, muft likewife, perhaps, be admitted. Among other exactions, he revived a tax, no lefs hateful than Angular, known to the Englifli by tlie name of Danc-^clf, v/hich had been abolidied by EdvNard the Confcflor. It appears to iiave 238 HISTORICAL VIEW OF THE have ariien from an extraordinary contribution, which the Anglo-Saxon kings were under the necef- iity of levying, in order to oppofe the inroads of the Danes, or to make a compofition with thofe in- vaders. According to the maxims of prudence, common to the princes of that age, William was not content with providing a revenue fufficient to defray his annual expence ; but accumulated a large treafure for the fupply of any fudden or extraordi- nary demand. That he exterminated, however, the whole Englifli nobility, or confiderable pro- prietors of land, or that he ftripped them of their poil'effions, as has been aflertedby Dr. Brady and by fome later writers, from the authority of fome de- clamatory and vague exprefilons in one or two an- cient annaliils, there feems no good reafon to be- lieve *. When, * This point has been the fubjeA of much difquifition and controverfy ?ee Petit's Rights of the Commons aflerteu — Atwood's Janus Anglorum ab Antique — Cook's Argumcntum Antinormanicum — Tyrrell's Hiftory — and Bibliotheca Politica, dial. lo. On the other fide of the queftion, Dr. Era- fiy's Hiftory, and his various political treatifcs, From an Infpeclion of Doomfday-book, it cannot be denied that William the Firft, before the end of his reign, had made prodigious changes in the landed property of England, and that very large eftates were conferred upon Lis Norman barons, who had the principal fliare of his confidence. — But^ on the other hand, it feems equally clear, that a great part of the landed property remained in the hands of the ancient poffeflors. Whatever bur- dens were impofed upon the church, it is not alledged that the clcrgj% or that any religious focieties, which had been eftabliflied under the Anglo- Saxon government, were deprived of their property. Thefe ecclefiaftical tftates were of great extent, and the tenants, or knights, who held of tlic cluirtrh were numerous and powerful. Of 60,215 knights' fees, computed to have been ifl England not long after the conqueft, no fewer than 20,015 .ire faid to have belonged to churchmen. It muft be owned, however, that wlicn vacancies occurred in the church livings, they were moft com- monly beftowed upon Normans. With refpedl to the laity, there are great numbers mentioned in Doomf- day-book, as having held eftates in the reign of Edward the ConfelTor. This is fo palpable, that even Dr. Brady himfclf, in his anfwer to the Argumen- Uiui Antinormanicum, feems to abandon his aflertion, that the EngUlli were deprived of their poireftiona, and contents himfelf with maintaining, that the nature of their property was changed, by their being reduced into a fubordinate ftate of vafialage. But even here the fact feems to be mifreprefented, and in the Uft of crown vafials recorded in Doomfday, we may difcover great proprietors, who held lands JQ England before the conquclt : fuch - three miles barefooted, to the tomb of Saint Bcckct] proftrating himfelf before that fhrine, and lying all night upon the cold pavement of the cathe- ilral, in prayer, and with demonllrations of the 4eepeft penitence, for having oifcndcd a man from whom i4S HISTORICAL VIEW OF THE whom he had received tlie higheft provocation ; and, after all, fubmitting to be fcourged by the prior and monks of the neighbouring convent ; befides yield- ino- up implicitly aU thofe points which had been the orTginal caufe of the conteft : fuch an unufual and humiliating fpeclacle cannot fail to excite fmgular emotions ; and it is believed that few readers can perufe this part of our hiftory without vifible marks of indignation. That ecclefiaftical tyranny is more extenfively mifchicvous than ci\^il, is indifputable ; and _ that the former Ihould therefore raife greater indigna- tion than the latter, is reafonabie. There may be ground for fufpecTing, however, that our feelings, in tlie prcfent inftance, proceed from a natural bias or prejudice, more than from any fuch rational or liberal views. The ambition of St. Becket, though accompanied with fuperior fteadinefs and intrepi- dity ; and though it may be confidered as a purer principle of action, by puriuing the aggrandifement of his own order more than of himfelf ; yet is lefs calculated to dazzle the imagination, and to feize our admiration, than that of a C^efar or an Alexan- der, who makes his own v»^ill the law of his conduct, and who fcruples not to tread upon the necks of his people. Befide the feudal incidents formerly mentioned, which were a fort of rights referved by the fuperior, upon his granting tiers in perpetuity, there \vas ano- ther pecuniary payment, which grew up in courfe of time, from the regular duty of military fervice. As, in many cafes, the performance of this duty became inconvenient for the vaffal, he was led to offer a fum of money in place of his perfonal attend- ance in the field ; and fuch a compofition was ge- nerally acceptable to the fovereign ; who, by means of it, v/as enabled to hire a foldier more perfectly fubjecl to his direcTiion. The fum payable by the vaf- fal in place of military fervices, the extent of which was ENGLISH G O V E R X ]M K N T. isi, was at firft determined by an agreement wiih the king in each cafe, was denominated 2. fcutngc. In Kngland, the practice of levying Icutages became very general in the time of Henry the Second ; when the connexions of the fovereign with France gave rife to more expenlive enterprizes than had for- merly been cuftomary ; and confequently induced the crown-valTals more frequently to decline their perfonal attendance. In this reign the conquefl: of Ireland, as it is called, was begun and compleated. As that illand had never been conquered, or ever invaded, by the Romans, it retained, with its independence, a total ignorance of thofe arts, and of that civiliza- tion, which every where accompanied the Roman yoke. It feems, on the other hand, to have ef- caped, in a great meafure, the fury of the Saxons, Danes, and other Northern invaders ; who never penetrated into that country, but only committed occafional depredations upon the coafts, where they formed fome fmall fettlements, and built feveral towns. Thus, while the greateft part of Europe was, for feveral centuries, thrown into convulfions by the repeated irruption, of the German or Scythian nations, Ireland was, by reafon of its iituation, ex- pofed to little dillurbance or commotion from any foreign enemy ; and the inhabitants were feldom engaged in any military enterprizes, but iuch as arofefrom their own private quarrels and depreda- tions. It is therefore highly prob;ible, that, for fome time after that country was firft inhabited, and while the feveral families or petty tribes, to whom by its fertility it aubrdcd an caly fubliftencc, wfrc not much crowded together, they enjoyed more tranquility than the other barbarians of Eu- rope, and, of confcquence, were lefs counteracled and retrained in thofe exertions of gencrofity and friendfliip, to which, among people who live in fmal) ibcietics, and are iU-anc;ers to induftry, and to^ the concern) t a rg 250 HISTORICAL VIEW OF THE concomitant habits of avarice, there are peculiar in- citements. That they might, upon this account, acquire a confiderable fliare of that refinement which is attainable in the paftoral ages, it is natural to fuppofe ; and that they actually did fo, the fpe- cimcns of Celtic poetry, lately publiflied, which have been claimed refpeclivcly by the Irilh and by the inhabitants of the Weftern Highlands of Scot- land, both of whom may, in this cafe, be confidered as one people, appear inconteftible evidence. The authenticity of thefe publications has, indeed, been called in queition ; but it would require an equal degree of fcepticifm to doubt, that the ground-work of them is genuine, as it would of credulity to be- lieve that they are the original production of any- modern publilher. According as Ireland became gradually more po- pulous, a greater number of families came to be united in particular principalities ; the leaders of which being actuated by larger views of ambition, found more frequent pretences for quarrelling with each other ; and their fubjecls or followers, being thus involved in more numerous acts of hoftility, or in fuch as were produ»5tive of greater violence and outrage, the manners of the people in general vv^ere, of courfe, rendered more ferocious. The whole ifland came at length to be reduced into four or five cxtenfive diftricfs, under fo many dif- ferent fovereigns ; one of which frequently claimed a fort of authority or pre-eminence over all the refl. After the Engiiih monarchy had come to be con- nected with the continent of Europe, and to inter- fere in its tranfacfions, it was natural for the king of England to entertain the ambition of adding to his dominions a country fo commodioufly fituated as Ireland, and which appeared to be fo little in a capacity of making refiftance. Henry the Second is accordingly faid to have taken fome fleps for ex- ecuting a project of this nature, when application ENGLISH G O V E R N INI E N T. 25 1 was made to him for proteftion, "by Dermot the kino- ofLeinfter, who had been driven out of his domi- nions. In virtue of a bare pcrmiflion from the king of England, two needy adventurers, Fitzfte- phen and Fitzgerald, and afterwards, Richard fur- named Strongbow, likewife a man of defperatc for- tune ; to whom the two former acted in a kind of fubordination ; landed with a few followers in Lcinf- ter, defeated any force that was brought in oppofi- tion to them, befieged and took feveral towns, and formed a fettlement in the province. Upon receiv- ing information of their progrefs, Henry, inflamed, as it fliould feem, with jealoufy of their fuccefs, haftened immediately to take polTefiion of the ter- ritory which they had fubdued ; and coming over to Ireland, received the fubmiffion of feveral chiefs or princes of the country, who dreading the effects of his power, were anxious to avoid any contefl with him. Neither Henry himfelf, nor his fucceffors for fe- veral centuries, appear to have derived any fub- ilantial benefit from this acquifition. Their autho- rity was confined to that narrow diil:ricl inhabited by the Englifh ; and even f/jere was more nominal than real; for the Englilh inhabitants, harralled by continual inroads from their neighbours, and re- ceiving a very uncertain and cafual fupport from England, were, on many occalions, tempted to throw off their allegiance, and were feduccd to imitate the barbarous manners and practice of the natives. Henry, in the latter part of his life, was rendered unhappy by domeflic misfortunes. A confpiracy was formed againft him, by his queen and Ions, which became the fource of repeated infurrcctions, accompanied with feveral very formidable invaii- ons from the neighbouring powers. Though the king was fuccefsful in reprcHing thcfe dilbrdcrs, and in defeating all his enemies ; yet 252 HISTORICAL VIEW OF THE yet the obftinacy with which his children perfifted in their unnatural attempts, appears to have ini- prcfled liis mind with deep fentiments of melancho- ly and dcjeclion. From the difficulties, at the fame lime, M ith which he was furrounded, he found it hic^hly expedient to court the good-will of his fub- jecis, not only by a careful attention to the police of tlie kingdom, and by an equal diftribution of juilice, but by granting a new charter in the fame 'terms with that of Henry the Firfl *. Richard the Firft, who fucceeded his father, was entirely ingrofled by the love of military glory ; and the fhort period, during which he held the reins of government, was, for the moft part, employed, either in preparations for a magnificent crufade, the taihionable atchievement of that age, or in oppref- five exacl:ions, to relieve him from the burdens which he had incurred by that unfortunate enter- prize. The character of John, his brother and fuccefibr, is univerfilly known, as a compound of cowardice, tyranny, floth, and imprudence. This infatuated king was involved in three great ftruggles, from which it would have required the abilities of his father, or of his great grandfather, to extricate him- felf with honour ; but which, under his manage- ment, could hardly fail to terminate in ruin and dilgrace. It is obferved by Mr. Hume, with his ufual acute- nefs, that the extenlive territories which the kings of England, at this period, pofiefled in France, were thefource of much lefs real than apparent ftrength ; and that, from their fituation, they were filled with the feeds of revolt and difobedience. In the ordi- nary ftate of the feudal tenants, the vafials of the nobility were much more attached to their imme- ■* Blackftonc, Hiftory of the Great Charter. diiUe ENGLISH GOVERNMENT. 253 diate fupcrior, by Avhom they \vcre moft commonl)- protected, and with whom they maintained an intimate correfpondence, than with the iove- reign, who lived at a diftance from them, and with whom they had Uttlc connexion. Tiic power of the king, therefore, depended, for the moft part, upon the extent of his own demefncs ; and in every quarrel with his nobles, it was to be expected that all their vailals would take part afTainlt him. But in the dominions which the king of Eng- land held in France, thcfe circumftances were com- pletely reverfed ; and his immediate valTals, by their lituation, were lefs capable, on any emergence, of receiving protection from him, than from the French monarch, their paramont fuperior : not to mention, that they regarded the king of England as a foreign prince, whofe intereft was commonly very dilferent, and fometimes, diametrically oppofite to that of their native country. Their aifecf ions therefore were gradually alienated from their immediate fupc- rior ; and transferred to their fovereign ; who, it was natural to fuppofe, might, fome time or other, availing himfelf of his advantageous fituation, be enabled to wrcft thofc dominions from his rival. — This accordingly happened in the beginning of the prefent reign : as John was advanced to the throne in preference to Arthur, the fon of his elder brother, and confequently the lineal heir ; and as he had in- curred great odium in a war with that prince, whom he defeated, and was afterwards believed to have nmrdered ; Philip Auguftus, at that time king of France, feized the opportunity of interfering in a difpute, which afforded fo fair a profpect of ac- quiring popularity, as well as of promoting his in- tereft. Having called a national council, he pro- cured a declaration, that the king of England, by his behaviour, had forfeited Normandy, and the other territories v>,-hich he held in France ; and in the 1KA HISTORICAL VIEW OF THE the o-reater pLirt of thofe territories, this decree, from the concurrence of the inhabitants, co-operat- injv with the power of the French crown, was eafily carried into execution. This difafrer was followed by a conteft with the Roman pontiff, concerning the right of elecT:ing the archbifnop of Canterbery ; in which John was, if poiTible, itill more unfuccefsful. In order to remove the papal excommunication which had been inflicted upon him, he was laid under the neccffity, not only of abandoning the points in difpute, but of furrendering his kingdom to the pope, and fubmit- tino- to hold it as a feudatory of the church of Rome. The contempt which this abjecl fubmiffion of their fovereign could not fail to excite in the breaft of his fubjecis, together with the indignation raifed by various acts of tyranny and opprelTion of which he was guilty, produced at length a combination of his barons, who demanded a redrefs of grievances, and the reftoration of their ancient laws. As this appeared the moft favourable conjuncture whvch had occured, fmce the Norman conqueft, for limiting the encroachments of prerogative ; the nobility and principal gentry w^re defirous of improving it to the utmoft ; and their meafures w^re planned and conduced with equal moderation and lirmnefs. — The king attempted, by every artifice in his power, to fruftrate their deilgns. He endeavoured by menaces to intimidate them ; and, by delufive pro- mifes, to lull them aiieep, in order to gain time for breaking their cQnfederacy. Allien all other ex- pedients proved ineffectual, he made application to the pope as his liege-lord ; and called upon his holi- ntk to protect the rights of his vaffal. The barons were neither to be deluded nor terrified from the profecution of their purpofe. Finding that their petitions were difregarded, they rofe up in arms, and proceeded to actual hoffilities. Ihe number (jf their adherents was daily increafed ; and the king, ENGLISH GOVERNMENT. 2ss king, who retired before them, was deiertcd by idmoft all his followers; till at lait there were only ie- ven lords who remained in his retinue. All further oppofition therefore, became impracticable. At Run- nemede, a large meadow between Windfor and Staines ; a place which has been rendered immortal in the page of the hiftorian and in the fong of the poet was held that famous conference, when the barons prefented, in writing, the articles of agree- ment upon which they infifted; and the king gave an explicit confent to their demands *. The articles were then reduced into the form of a charter ; to which the king aflixed his great fcal ; and which, though it was of the fame nature with the charters obtained from the preceding monarchs, yet, as it was obtained with difficulties which created more attention, and as it is extended to a greater variety of particulars, has been called, by way of diftinclion, ibe great charter of our liberties. As the feudal fuperiority of the crown, over the nobles, together with the various cafual emolu- ments, or incidents, arifing from that fuperiority, had now been eftablifhed, with little or no inter- ruption, ever fmce the reign of William the Con- queror ; it would probably have been a vain pro- jecT: to attempt the abolition of it. The chief aim of the nobility, therefore, in the prefent charter, was to prevent the fovereign from harraffing and -" Hail Runny mead ! " llltiflrious field ! like Marathon renowned ! " Or Salamis, where freedom on the hofls " Of Perfia, from her radiant fword fliook fear " And dire difcfimfiture ! Even now I tread " Where Albion's ancient barons won the pledge " Of independence. — — " O gallant chiefs! whether ye ride the wind?, •' Bound on fomc high commiilion to confound «' The pride of guilty kings; or, to alarm " Tluir coward fpirits, though the realms of niglit " Hurl the tremendous comet, or in bowers " Of blooming paradife enjoy repofc ; " 1 ween the memory of your patriot-zeal " Exalts your glory, and lublimes your joys." opprcflhig 256 HISTORICAL VIEW OF THE oppreffing them by the undue exercife of thofe powers, the effects of their feudal fubordination, with which he v/as underftood to be fully invefted. The incidents of wardiliip, relief, and marriage, notwithftanding the proviiions in the charter of rienry the Firft, Iiad continued the fubject of much controverfy ; for the removal of which, the na- ture and extent of thofe feudal perquifites were more particularly defined and explained. With re- gard to the practice of levying aids andfcutages, it was provided that the former fliould not be de- manded, unlefs in the three cafes eftabliflied in the feudal cuftoms, to redeem the fovereign from cap- tivity, to portion his eldeft daughter, or to make his eldeft fon a knight ; and that the latter Ihould not be impofed in any cafe without the authority of parliament *. The jurifdiclion exercifed by the Idng, as a feudal fuperior, Vv'-as another fource of opprefiion, for which a remedy was thought requifite ; and feveral regulations were introduced, in order to facilitate the diftribution of juftice, to prevent the negli- gence, as well as to reftrain the corruption, of fudges : In particular, it was declared, that no count or baron fhculd be fined unlefs by thcjudg- went of his peers ^ and according to the quality of the offence f. While the barons were thus labouring to fe- cure themfelves -againft the ufurpations of the prerogative, they could not decently refufe a fimi- iar fecurity to their own vaiTals ; and It was no lefs the intereft of the king to infift upon limit- ing the arbitrary power of the nobles, than it was their intereft to infift upon liiniting that of the crown. The privileges inferted in this * Elackftone's edition of king John's Magna Charta, § ^, 3, A, 6, li, &c. t Ibid, 5 11, great ENGLISH GOVERNMENT. 257 great tranfaclion were, upon this account, ren- dered more extenlive, and communicated to perfons of a lower rank, than might otherwiie have been cxpecled. Thus it was provided that iuftice Ihould not he fold, nor unrcafonably dchiycd, to any perfon*. That no freeman fliould be impri- foned, nor his goods be diftrained, unlefs by the judgment of his peers, or by the law of the landf; and that even a villein fliould not, by any fine, be deprived of his carts and implements of huf- bandry \. It is worthy of notice, however, that though this great charter was procured by the power and influence of the nobility and dignified clergy, who, it is natural to fuppofe, would be chiefly attentive to their own privileges ; the intereft of another clafs of people, much inferior in rank, was not en- tirely overlooked : I mean the inhabitants of the trading towns. It was declared, that no aid fliould be impofed upon the city of London, unlefs witli confent of the national council ; and that the liber- tics and immunities of this, and of all the other cities and boroughs of the kingdom, fliould be maintained §. To the fame clafs we may refer a regulation concerning the uniformity of weights and meafures, and the fecurity given to foreign merchants, for carrying on their trade without moleflation. The Lnfertion of luch claufes muil be confidered as a proof that the mercantile people were beginning to have fome attention paid to them ; while the fliortnefs of thefe articles, and the vague manner in which they are conceived, af- ford an evidence equally fatisfaclcry, that this or- der of men had not yet rifcn to great importance. In order to diffufe the knowledge of the charter over the kingdom, and to enfure the execution ot it, a number of originals was made, and one of * BJackHonc'B edition of king Jolin's Magna Charta, 5 81. * Ibid, i: >lo i Ibid. -", ^v- G Ibid. § ;o. S thcfc 258 HISTORICAL VIEW OF THE thefc was lodged In every county, or at leaft In every diocefe ; twenty-five barons were chofen, as guardians of the public liberties, and invcfted with power fuitable to the difcharge of fo important a trufi ; and the nobks farther required, that, in the mean time, the city of London fliould remain in their hands, and that the tower fliould be put in their pofiTejllon. The^king confented to thefe mea- fures ; though nothing could be farther from his intentions, than to fulfil the conditions of the char- ter. No fooner had he obtained a bull from the pope annulling that deed, and prohibiting both the king and his fubjecls from paying any regard to it, than, having fecretly procured a powerful fupply of foreign troops, he took the field, and began with- out mercy to kill and deftroy, and to carry devaf- tation throughout the eftates of all thofe who had any fliare in the confederacy. The barons, truft- ing to the promifes of the king, had raflily dif- banded their followers ; and being in no condition to oppofe the royal army, were driven to the def- perate meafure of applying to Lewis, the fon of the French monarch, and making him an offer of the crown. The death of John, in a fhort time after, happened opportunely to quiet thefe diforders, by tranfmitting the fovereignty to his fon Henry the Third, who was then only nine years of age. Under the prudent adminiftration of the Earl of Pembroke, the regent, the young king. In the firfl year of his reign, granted a new charter of liber- ties ; at the fame time that the confederated barons were promifed a perpetual oblivion for the paft, in cafe they ihould now return to their allegiance. It Is obfervable, that a copy of this deed, with fome variations, was alfo tranfmitted to Ireland, for the benefit of the Englifli Inhabitants of that Ifland ; Vv'lio, it was jufdy thought, had an equal right to all the privileges enjoyed by their f ell ow-fubj eels in Britain. The ENGLISH GOVERNMENT. 259 The following year, when peace was concluded with Lewis, and the public tranquillity was re- flored, this charter was renewed, with additions and improvements ; and, as the charter of king John contained one or two claufes relating to the foreft laws, thefe were now extended, and made the fubjecl: of a feparate inftrument, called the Charter of the Foreji. The two deeds, into which the original great charter came thus to be divided, v.'ere again renev/ed, with fome variations, and con- firmed, in the ninth year of Henry Third, when the king was, by a papal bull, declared of age, and be2;an to hold the reins of o:overnment. The charter of the foreft, how infignificant fo- ever the fubjecl of it may be thought in the pre- fent age, was then accounted a matter of the highcft importance. The Gothic nations, who fettled in the Roman empire, were, all of them, immode- rately addicted to the diverfion of hunting ; info- much that this may be regarded as a peculiarity in their manners, by which they are diftinguiihed from every other people ancient or modern *. It arofe, in all probability, from their having acquired very extenfive landed eftates, a great part of which they were not able to cultivate ; and from their continu- ing, for many centuries, in that rude and military ftate, which difpofed them to bodily exercife ; while it produced fuch a contempt of induftry, and pro- found ig:norance of the arts, as were the fources of much leifure and idlencfs. The free people, or gentry, commonly allotted to hunting the moft part of the time in whicli they were not engaged in war ; and the valTals of every chieftain, or feu- dal fuperior, were ufually his companions in the former occupation as well as in the latter. Every independent proprietor, however, endeavoured to * Muratori, Antiq. Med. ^v. torn. ii. difl". 13. — The Romans generally €inpIoyean:o, et ep'fcopis, ahbatibiis, comitlbus, cl primaiibits,totius Anglia. Dr. Brady's Tratls. — Another parliament is mentioned in 1084, for changing the canons of Durham into Monks — Fta:- fi-ntil'i/s ot/!!iibus fpifcop'is et haroiubus me'is. Ibid. — See alfo, in the author, the iu- ftances of national councils convened by William Rufus. The whole territory of England not having been umted as the feudal ba- rony of the king, till near the end of the Conqueror's reign, his Parliament or baron-court could not, before this period, be properly invefled with an au- thority over the whole kingdom. It is pro'oable, however, that this circum- flance was overlooked ; and thr.t, as a great part of the nobility, foon after the conque(l,v.'ere become viilTais of the crown, they were called, in that ca- pacity, to the national council; while others, who ftili retained their allodial property, might be willing perhaps, without regarding the diflerence of their iitu;tciou, to lOLix in the dciihtrutioas. uf that auembly. vided ENGLISH GOVERNMENT. 273 v'lded their attendance was not more burdenfome than their duty required, it was underftood to be a matter of indifference to them, againft what enemy they fhould happen to be employed. The difcreti- onary power, which came thus to be affumed by tlic king, as the great feudal fuperior of the kingdom, was, at the fame time fupported by the conlidera- tion of its expediency. During the numerous inva- fions cuftomary in the feudal times, it was neceffary, upon the fudden emergency, that the leader of a barony fhould take his meafures upon the fpot ; and that, without confulting his vaffals, he fliould pro- ceed to repel the enemy by force of arms. To call a council, in fuch a cafe, would be to lofe the critical moment ; to wafte, in deliberation, the proper fea- fon for aclion ; and, for the fake of a punctilio, to involve the whole community in utter deftruction. This may be accounted the chief difference be- tv/een the Anglo-Saxon and the Anglo-Norman go- vernment. In the former, the power of making peace and war was invariably poffeffed by the Wit- tenagemote ; and was regarded as infeparable from the allodial condition of its members. In the latter, it was transferred to the fovereign : and this branch of the feudal fyftem, which was accommodated, perhaps, to the depredations and internal commo- tions prevalent in that rude period, has remained in after ages, when, from a total change of manners, the circumftances, by which it was recommended, have no longer any exiftence. The Icgiflative power was viewed in a different light. New regulations generally took their origin from a complaint of grievances, made to the fove- reign, the great executor of the law, and accompa- nied with a requeft, that in the future adminiftra- tion of government, they might be redreffed. The privilege of preferring fuch petitions, or at Icaft that of demanding a pofitive anlwer to them from the fovereign, was anciently appropriated to the Wit- T tenagemote ; 574 HISTORICAL VIEW OF THE tenagcmotc ; and, upon the diffoliition of that afl Icnibly was devolved upon the Anglo-Norman parlia- ment. In every fubordinate barony into which the kingdom was divided, the vaffals exercifed a fimilar privilege with refpecl to the aditiiniftration of their own fuperior. A public llatute was, according to this practice, a fort of paclion or agreement between the king and his vaffiils ; by which, at their defire, he promifed to obferve a certain rule of condud ; and in which, therefore, the confent of both was clearly implied. No fuch rule was ever thought of without the previous requeft of parliament, nor was it ever effeftual to bind the parties, unlefs the fove- reign acceded to the propofal. The fupreme diftribution of juftice was likewife a matter of fuch confequence as to require the in- terpolition of the crown-valTals ; and therefore con- flituted another privilege of the Anglo-Norman par- liament. How this branch of bulinefs came, in or- dinary cafes, to be devolved upon an inferior court, with refervation of an ultimate controuling power in the parliament, will be the fubjecl of a feparatc enquiry. Taxation is properly a branch of the legiflative power ; fmce every rule that is made, with refpecV to the payment of taxes, is a law which directs and limits the future adminiftration of government. — This branch of legiflation is in itfelf of greater im- portance, and it is m.ore likely to be abufed, than any other ; becaufe every member in the community has an intereft to avoid all public burdens, and to roll them over upon his neighbours ; while the chief executive oflicer, or whoever has the manage- ment and difpofld of the revenue, is interefhed to f'queeze as much as he can from the people. We may eafily fuppofe, therefore, that as the vafials of the crown, after the Norman conqueft, alTumed the ordinary exercife of the legiflative power, they would not be difpofed to relinquifh that peculiar brancli ENGLISH GOVERNMENT. 275 branch of it, which confifted in the impofition of taxes ; and there is, accordingly, no reafon to doubt, that, as flir is it could exill: in that period, it was immediately transferred, from the Witten- agemote of the Saxons to the Anglo-Norman par- liament. But in that age, there was little occafion for ex- crciling this power ; few taxes being then, direc1:ly at leaft avowedly, impofed upon the nation. The chief fupport of the crown was derived from a re- venue independent of the people ; and when addi- tional fupplies became requifite, they were obtained either by means of a private bargain, for a valuable coniideration ; or under the malk of a gift or vo- luntary contribution. At a period when mercenary armies were un- known, and when the adminiftration of juftice, in- ftead of being a burden upon the crown, was the fource of emolument, the royal demefnes, which, after the accelTion of William the Firft, became pro- digioufly extenlive, together with the profits of amerciaments and fines, and the common feudal rents and incidents arifing from the eftates of crown- vaflals, were fully fufficient to maintain the dignity of the fovereign, and to defray the ordinary ex- pence of government. This ancient revenue, how- ever, was gradually improved, according to the in- creafing charges of government, by the addition o£ fcutages, bydages^ and talliages. The firft, of which an account was formerly given, were pecuniary compofitions paid by the crown-vafTals, in place of their military fcrvice ; and, being fettled, in each cafe, by a ftipulation betweca the parties, had no refemblance to what is properly called a tax. It was always in the power of the vaf- fal to infift upon fuch terms, with rcfpecT to this compofition, as he judged expedient, or to avoid the payment of it altogether, by performing the fervice for which he was originally bound. The fum paid was a voluntary commutation ) and therefore it T 2 muft i-]6 HISTORICAL VIEW OF THE muft be underftood that he who paid it thought lilmlclf a gainer by the bargain. Hydages Mere due by the foccage vaffals of the crown ; who, befide their conftant yearly rent to their fupcrior, were bound to fupply him with car- riages, and to perform various kinds of work. — => As thefe were, by their nature, fomewhat indefi- nite, they came to be frequently exacted by the crown-oflicers in an opprelfive manner ; and, when tlie vaflal rofe to a degree of wealth and indepen- dence, he was wilHng to exchange them for a pecu- niary payment, which might, at the fame time, yield more profit to the crown. Of this payment the extent was originally fixed, like that of the fcutage, by an agreement in each cafe between the parties. Talliages were paid, in like mannef, by the inha- bitants of towns in the king's demefne. As the king protected his boroughs, and beftowed upon them various privileges, with refpect: to their manu- faclures, fo he levied from them fuch tolls and duties as they were able to bear. According as thofe com- munities became opulent afid flouriftiing, their duties were multiplied, and rendered more troublefome and vexatious ; from which it was at length found convenient that they Ihould be converted into a re- gular pecuniary aflieirmefit*. The trade of the country, however inconfidera-" ble, became alfo the means of procuring fome re- venue to the fovereign. Perfons engaged in his em- ployment, Handing in need of the protection of go- vernment, and being alfo frequently deftitute of conveniencies for tranfporting and vending their goods, were not only protected, but even fome- times provided with warehoufes, and with meafures and weights, by the king ; who, in return, de- * The name of talliage is frequently extended fo every pecuniarj' contri- bution levied by the i'upcrior from his vaffals. ma nded ENGLISH GOVERNMENT. 277 mandcd from them, cither a part of their commo- dity, or fomc other payment fuitcd to the nature ut the benefit which they had received. A fimilar payment was demanded by the king upon the paf- fage of goods from one port of the kingdom to another. To the duties which came thus to be eftabHlhed by long ufage, was given the appellation of cujloms. Having arifen from the demands of one party, and the acquiefcence of the other, they were in reality founded upon a fort of ftipulation or mu- tual agreements. When all thcfe branches of revenue proved infufli- cient, the king, upon any extraordinary exigence, applied for an aid, or general contribution, from his valTals. Wo find that aids are enumerated among the feudal incidents ; but, exclufive of the three cafes formerly mentioned, whatever was con- tributed in this manner, appears to have been regarded in the light of a free gift ; and, according to this view, came afterwards to be denominated a benevolence. Though none of thofe duties, which were levied by the exprefs or implied confent of parties, could with propriety be confidered as taxes, they became in reality the fource of much oppreflion and injuf- tice. It was dangerous to refufe the fovcreign, even when he demanded a thing to which he had no right. It was difficult to make an equal bargain with a perfon fo greatly fuperior in power and influence. By adhering ftrictly to their privileges, and by incurring the refentment of the king, the people fubjecled to thofe impofitions might be ut- terly ruined ; and were, on every occalion, likely to lofe much more than the value of what was de- manded from them. When the abufes, however, of which the crown was guilty in relation to thcfe exactions, had rifen to a certain height, they became the fubjccl of general complaint, and attracT:ed the \\OX\CC 278 HISTORICAL VIEW OF THE notice of the legiflatiire. Scutages, payable by the military vaffals of the crown, came to be fixed by parliament, of which thofe vaflals were members. After the foccage tenants and the burgciles had ac- quired a degree of opulence, the fame rule Avas extended to the hydages, and talliages, levied from, thofe two orders of men. The aids, demanded pro- mifcuoufly from all the different forts of crown vaflals, came to be regulated by the fame authority*. The cufloms, originally of Httle importance, were, by the gradual extenfion of trade, and the increafmg demands of the crown, brought likewife into public view, and acquired fuch magnitude as to' occalion the interpofition of parliament. By a flatute in the reign of Edward the Firft, it is provided that thofe duties fhall not be levied without the " common *' aflent of the realm -f." With refpecf to the manner of convening the na- tional council, it was not immediately varied by the Norman conqueil. The pariiamient, from the ac- cefiion of V/illiam the Firll, was held, like the Wit- tenagemote in the Saxon times, either according to ancient ufage, at the three itated feftivals of Chrift- mas, Eafter, and Whitfuntide, or, upon particular exig-encies, by virtue of a fummons from the king. By degrees, however, the occaiional meetings ex- tended the fubjects of their deliberation; while on the other hand, the regular cuftomary aflemblies v/ere frequently prevented by the diforderly ftate of the country. In the war between the Emprefs Matilda and king Stephen, they met with great interruptions, and from the beginning of the con- vulfions in the reign of king John, were entirely difcontinued. The power of calling parliaments, * "With regard to aids, and fcutages, this provifion is made in the charter of king Jolm, § 12. I'he ftatutes 25 Edward I. c. 5, 6. and 34 Edw. I. con- titiu the fame regulation with refpedl to aids and talliages. ■\ 2j Edw. I. c. 7. ENGLISH GOVERNMENT. 279 and confequently of putting a negative upon its meetings, was thus in all calbs devolved upon the fovereign*. From thefe particulars, it is evident, that the Engiilli monarchs, after the Norman conqueft, were far from pofTefTing an abfolutc authority ; and that the conftitution, notwithilanding the recent exal- tation of the crown, ftill retained a confiderable pro- portion of the preceding ariftocracy. As the nati- onal council, compofed of the nobility or great pro- prietors of land, was invefted with the legiflativc power, including that of impofing taxes, and with the povv'cr of diftributing juftice in the laft refort, it enjoyed, of courfe, the right of controling and directing the fovereign in the moft important parts of adminiftration. From the ftate of the revenue, indeed, in that period, the executive power was under lels reftraint from the legiilature than it has become in later ages. As the king had feldom occafion to folicit a fupply from parliament, he was the lefs liable to be quelH- oned about the difpofal of his income. The people, who gave nothing to the public magillrate for de- fraying the expence of government, had but little incitement or pretence either to find fault with his ceconoiny, or to require a ftrict account of his ma- na"-ement. He manag^ed the revenue of the kin*"-- dom^ as other individuals were accuftomed to ma- nage their ov/n eftatcs ; and the idea of a public oflicer, or magiftratc, Vv'as apt to be funk in that of an ordinary proprietor, to whom the crown, and the revenues connected with it, have been tianfmit- ted like a private inheritance. It muft at the fame time be admitted, that abufcs in the exercife of the executive power were tlicn ex- tremely frequent, and were often fuilered to pals •without animadverfion or notice. The Icgiflaturc • Gurdon's Iliflory of I'ailianiciit, '2$Q HISTORICAL VIEW OF THE had too little experience, to provide regulations for preventing the numerous inflances of malverfation in office that were likely to occur ; judicial eftablifh- ments had not yet attained fuch perfection as might enable them with quicknefs to punifh the feveral vio- lations of juftice ; nor had long ufage eftabliflied thofe equitable maxims of government, which are the common effects of polifhed manners, and which often fupply the place of pofitive inftitutions. The conduct of the fovereign, therefore, and even that of inferior officers, in the ordinary courfe of admi- niftration, was in a great meafure difcretionary ; and was no otherwife reftrain^d, than by the fear of exciting the general clamour and difturbance. But individuals might fuftain much oppreffion before their complaints were likely to excite attention, and might be difpofed, from prudential confiderations, to fubmit to many injuries and inconveniencies, ra- ther than contend againft the whole force of the crown. In this diforderly ftate of fociety, perfons who preferred any requeft to the king, or who ha4 even any claim of right, in which his intereft was concerned, were commonly induced to fecure his favour by a prefent, or, if you will, by a bribe. A numerous lift of thofe prefents, which were made tq the fovereign, in order to procure what was barely juftice, has been collected by different authors, with a view of demonftrating the defpotical nature of the Anglo-Norman government. But thefe inftances tend only to prove the frequency of abufes, from the want of a regular polity, extending to all the de- partments of adminiftration. They fhew that the government was rude and imperfed, and therefore in many cafes arbitrary ; not that it was an abfo- lute monarchy : that the national council was negligent and unikilful in reftraining diforders ; not that it was deftitute of authority to limit the prerogative. This is what happens in the infancy ENGLISH GOVERNMENT. li: infancy of every political fyftem, whatever be the peculiar plan upon which it is formed. The ftrong find themfelves often at liberty to opprefs the weak ; perfons of inferior ftation are therefore ob- liged to fhelter themfelves under the wings of a fu- p^ior ; and are glad to obtain, by follicitation or bribery, the quiet exercife of thofe rights which they are unable to maintain by any other means. What puts this obfervation in a clear light is, that the abufes of the executive power, which were fo frequent in the early periods of the Englifh confti- tution, have fmce been removed by the gradual im- provement of arts, and the correspondent progrefs of manners, without any confiderable change in the diftribution of the great powers of govern- ment. The outlines of the Englifh confiitution are not very different, at this day, from what they were in the reign of William the Conqueror ; but the powers which were then univerfdly acknow- ledged, liave been fmce more minutely applied to the detail of admlniflration ; and the variations that have occured in the modes of living, and in the condition of individuals, have been gradually ac- commodated to the fpirit of the old inflitutions. — The experience of the nation has led them to fill up the picture, of which a rude Iketch was delineated in that early pcriocjj CHAP. •252 HISTORICAL VIEW OF THE CHAP. III. Of the ordinaij Courts of Jufl'ice after the ]>ior?nan Conqutji. i H E diftribution of juftice, in the laft refort, was not the moft brilliant or confpicuous, though it was, undoubtedly, one of the moft ufeful depart- ments belonging to the national council. During the latter part of the Anglo-Saxon government, this branch of bufinefs, as has been already obferved, was commonly devolved upon occalional meetings of the Wittenagcmote ; which being called for dicuiling matters of inferior concern, were feldom attended by any other members than fuch as happened, at the time, to be retained about the king's perfon. But, after the Norman conqueft, the changes which have been mentioned in the ftate of the country, contri- buted to produce farther alterations in the judicial eftablifhments ; and particularly to diveft more entirely the public alTembly of the ordinary cogni- 7u;nce of law-fuits. By the completion of the feudal iyftem in France, the adminiftration of juftice in that country attained a degree of regularity which was formerly unknown ; and upon the acceftion of Wil- liam the Firft, to the Engliih throne, the improve- ments in this branch of policy, which had been extended to Normandy, at that time a part of the '^>ench dominions, were gradually introduced into Britain. As the fever al diftricls of the kingdom, vshich Iiad formerly been diftracled by the feuds of their independent leaders, came now to be united under the feudal fuperiority of the crown, the de- clnon of private quarrels by the fword was more eiiectually reftrained ; while the vigor and influence, polTcired by the two firft princes of the Norman race, co-operateci ENGLISH GOVERNMENT. 28-, co-operated witli the natural progrefs of focicty in bringing the difierences among all the inhabitants under the determination of the maoiftratc. From the confequent multiplication of a])peals to parlia- jnent, the members of that allembly became daily Jefs difpofed to execute this part of their duty ; at the fame time that, from the increafmg authority of the crown, their attendance was rendered propor- tionably lefs necefiary. The number of crown-vaf- fals, convened on luch occalions, was therefore gradually diminillied ; the abfcnce of others was more and more overlooked ; and at length there was formed, out of parliament, a regular tribunal, for the fole purpofe of deciding law-fuits, and compofed of an arbitrarv number of thofe perfons who fat in the s:reater allemblv. The ereat oflicers f)f the crown, being always upon the fpot, whenever a meeting of this kind wiis called, became its ordi- nary conflituent members ; and to thcfc were added by the king particular perfons, who from their knowledge of law, or experience in buhnefs, were thought qualified to aiilll in the inferior depart- pients of oflice*. This * Account of this tribunal in M;idox's Hifbory of Exchequer. The j;rcnt cfTicers of tlic king's court arc made ty this author to he I'evcn in number. I. Thechief juRicier. 2. 'rhe couftable. .■;. 'I'he marefchai!. 4. The fcncf-r chall or dapifcr. 5. The chamberlain. 6. The chancellor. 7. The trca- I'urer. Of thcfc the chief jufticier was originally the fenefchall or hi;;h- ttcward. But when the primitive high-fleward who had been tlic chief o'Jicer of the family, came to be polTcfred of great minifterial powers over the whole kingdoin, a deputy was appointed to mauai;e the aflairi of the- houfliold, who acquiring high rank and authority, received the appellation of fenefchall, or fuzvardnfthc houfioU, as the other was called t\\cf.-.v.i>doftr.( ii'ni'rJam. The fu'hordinatc appointment of a Reward of the houlhold, or co.wi ^alalii, is alfo to be found in Trance, Germany, and other feudal countries. 'J"hc oHicc of couflable, or chief groom, had come in l.ugland, a; well upon the continent, to be divided into two branches, that of the toiiftablt and marflial ; or of the groom and the fmitli, or farrier. The fenefchall and dapifcr ought, in all probability, to liavc been diflin- puiflied ; as in I'rance, and of courfc in Normandy, the oifices of fltv.aid, ^nd butler, or cup-brrarer, had been long feparated. The trcafurer is fuppofed to have been originally the deputy of the high- fteward. — But in later times was more jirobabiy that of the chamberlain who fan^c to havg the principal charge of llie rtveuae. 284 HISTORICAL VIEW OF THE This court, from the place in which it was com- monly held, received the appellation of the aula regis. In its conftitution and origin, it correfponded ex- adlly with the cour de roy, which, after the acceilion of Hiif'-h Capet, was gradually formed out of the ancient parliament of France ; and with the aidic council, which, after the time of Otho the Great, arofe, in like manner, out of the diet of the Ger- man empire. In Scotland we met with a court of the fame nature ; and there is reafon to believe that, in every European kingdom of confiderable extent, the progrefs of the feudal fyftcrn gave rife to a fimi- lar inftitution. In all thefe couiuries, as well as in England, it appears probable, that this tribunal was detached from the national council by connivance rather than by any pofitive appointmicnt ; from a difpofition in the people to conlult their own eafc and conveniency, more than from any defign upon the part of the crown to limit their privileges ; in fhort, from no pre-conceived plaji of altering the conftitution, but from a natural and obvious accom- modation to the circumftances of the community ; and from an immediate profped of advantage, by facilitating the diftribution of juftice. As this tri- bunal, therefore, has been formed in a flow and gradual manner, it feems difficult, in any of the countries above-mentioned, to afcertain the precife date of its formation. In England, the inftitution of the aula regis is commonly afcribed to William the Conqueror ; but this muft be underftood, it fhould feem, with relation to the firft appearance of that court, as diftind from the greater meeting of par- liament, and not with refped to the fubfequent variations and improvements which preceded its complete eftablifhment. See an account of the rank and employment of thefe officers, in that branch of the king's court w'iiich had the management of the revenue, in the Dijlogus df Si.-.isrio, publi&ed by Msdox, from the U.i.i and t^e re: ENGLISH GOVERNMENT. 2S5 This court was held by the Englifli monarchs, not only in their moft ufual place of relidence, but wherever they happened to be, when there was found occafion for its intcrpofition. It had the fame extent of jurifdidion v/ith parliament, out of which it had grown ; and therefore obtained the cognizance of all ordinary law fuits, whether civil, criminal, or fifcal. The king himfelf prefided in the aula regis, when- ever he thought proper to fit there as a judge ; but the ordinary prefident of this court was the lord Iiigh fteward, the principal officer of the crown ; who in rank and authority, had rifen to be the fe- cond perfon in the kingdom ; and upon whom the king, when abfent from parliament, had likcwifc devolved the right of prefiding in that affembly *. For fome time after this tribunal had been fepa- rated from the meetings of Parliament, it Hill con- fifted of all the great officers of the crown ; but ac- cording as, by the gradual extenfion of its authority, it had occafion to fit more frequently, the atten- dance even of the greater part of thefe members was rendered more ufelefs, as well as inconvenient ; and therefore became the lefs regular. The king at the fame time, acquiring higher notions of his own dig- nity, or finding himfelf more engaged in the other departments of government, ceafed alfo to exercife the ordinary functions of a judge ; fo that the high fteward became in a manner the fole magiftrate of the aula regis ; and, from this moft confpicuous branch of power annexed to his office, was denomi- nated the grand jnjiiciary\. While * When the members of this court tranfacftcd civil and crimin:il pleas they fat in the hail of the king : when they atitcd a;, a court of rcvcnui , they fat in the Exchequer. Diah dc Scacariu. Baron Gilbert's liilt. of Chancery. f That the grand jufticlary of England was originally the high fl'.-ward appears indifpiitable. r. That the high fteward, or mcnc of the fi.ila.c, \n Jrancc, was anciently the olficer of the crown v. ho acquired the highcit dig- nity iS6 HISTORICAL VIEW OF THE While the judical authority of parliament was thus delegated to another court, the king exercifed the chiei- parts of the executive power, by the aflif- tance of a privy-council^ conipofcd of fuch barons as enjoyed his particular favour and confidence. Some inftitution of this nature had probably exifted, at leaft occafionaliy, during the reigns of the latter Saxon princes; but, after the Norman conqueft, when the prerogative was confiderably exalted, the privy-council, of confequence, rofe in dignity, and its interpofitions became proportionably more ex- tenfive. The members of this meeting, it is proba- ble, were nearly the lame perfons, who from their emiployment about the king's perfon, had ufually been called to fit in the aula ?-egis, after it came to be feparated from the greater meeting of parliament ; and even v/hen the king and his privy-counfeiiors had devolved the ordinary bufinefs of that court upon a fingle m.agiftrate, they ftill retained the cog- nizance of fuch extraordinary caufes both civil nity and authority over the kingdom, is univcrfally admitted. 2. !n Nor- mandy a fimilar officer, appointed by tlie duke, appears to have been chief iufticiar throughout the dutchy. See Couflumier du Normandie. 3. From die black and red books of Excheouer, t!iere is diftincH: evidence that Robert carl of Leicefter, who in the reign of Henry the Second, was the high flew- ard, had ahb the office oi graml ji:Jl!ciary. Non folum ad fcacarium iicrem per tini- ik-rfum rt:^iui!)z VKr.siUENTis dlgititatem ohtiiwlt. The author of this account was a cotemporary, who fays he faw the great officer whom he fpeaiis of. 4. That the high fleward had by his office the right of preliding over the king's privy founfcllors, and over all the officers and minifters of juflice in the kingdom, appears alfo from an old manufcript, intitkd, ^us fit Sevefchalhs AngUce, et quid ejus ojficium, quoted bv Sir Robert Cotton and other antiquaries whofe re- fearches upon this fubjedt are prtfei-ved in Hearne's CoUecftion. — See the facts coiiecled by thofe authors — alfo Spehn. Gloff. v. Jufticiarius Capitalis. It is true, that among the Englifli hiflorians and antiquaries there is fome coufufion in the accounts given of the perfons who held the office of high fteward and of jufticiary. This feems to have arifen partly from the diffi- culty of diflinguifliing the old high fteward from his original deputy the fteward of tlie houlh.old ; and partly from the occafional appointments made W the fovereign of perfons to preiide in particular trials, who have bc\;n miftaken for permanent jufliciarics. This laft feems to be the great fourct of error in Madox. 5, That the high fleward was anciently the prefident over the king's judges, and even of the high court of parliament, is further confirmed t i the privilege of that ofiicer, when created, in latter times, to prcfidc in the houfe of lord*. and ENGLISH GOVERNMENT. 287 and criminal, as more immediately excited their at- tention. Of the caufes which came, in this man- ner, to be determined by the king and his privy- council, and were at length, by cuuom, appropriated to that court, there were three ditfercnt forts. I. When a crime was committed, for the punifli- ment of which the common law had made no pro- per provifion, it was thought expedient, tliat the criminal Ihould not be permitted to efcapc from juftice ; but that he fhould be called before this extraordinary tribunal, and puniflied according to the nature of his offence. From the meetings of the privy-council to determine, in fuch uncommon and lingular cafes, there was formed, in after times, a regular jurifdiclion, known by the name of the Jlar-chambef* . From the nature of things, it was to be expected, that this jurifdiclion would foon degenerate into ty- ranny and oppreilion. The procedure of the court, as it related to matters in which no rule had been cf- tabliflied, was, of courfe, difcretionary and fluctu- ating : at the fame time that the caufes which might come before it, under pretence of not being pro- perly regulated by common law, were capable of being multiplied without end : not to mention, that, as the members of this court were created and removed at pleafure by the king, fo the decifions, whenever he chofe to interfere, depended entirely upon his will. Thefe objections, however, to the jurifdiclion of the ftar-chamber, which appear fo well founded, and which, in a future period, occa- fioned the abolition of that court, were not likely to be fuggefted upon its firft ellablifhment, when its interpolitions, we may fuppofe, were few, and * Concerning; the origin of the name of ftar-rhamlicr, and the origin:il nature of that court, fee Sir Thomas Smith de Rt[nih. Augl — Lamb. Arcli. — Blackflone's Comment. — I'he nature of the jurifdiclion anciently pof- feficd by the flar-ciiainber may lie conceived from the I'oit of ofl(.ncc'n of England at this early period ; for the fettlement which was elTec1:ed in Ireland, by Henry the Second, and which hiftorians have been pleafed to dignify with the fplendid appellation of a conqueft, was producT:ive neither of wealth nor of authority to the Englifh monarch ; nor does it ap- * Ft appt;'.rs, that one of ihc cliartcis grantcil l»y Henry 111. was ful>f(.ril>cj ty his fv;i prince EJward. Uiackflonc, Iliflory of the Great Charters. pear 312 HISTORICAL VIEW OF THE pear, for feveral centuries, to have yielded any ad- vantage whatever. 3. The infular fituation of Britain may be confi- dered as a general caufe of the flower advancement of the royal prerogative in England, than is to be found in the greateV part of the modern kingdoms upon the continent of Europe. As, in the infancy of the government, the kingly oilice arofe from the neceflity of having a general to com.mand the united forces of the ftate, it was to be expected, that the oftencr any fovereign had occafion to act in this capacity, his authority and dignity would fooner arrive at maturity. During the time of a military enterprize, when the national forces, the great bociy of the people, were placed under the immediate di- rection of the king, they acquired habits of fubmit- ting to his orders ; their admiration was excited by his eminent ftation or diftinguifhed prowefs ; and they were taught by experience to look up to him as the principal fource of honours and preferment. In times of peace, on the contrary, when the mem- bers of different baronies, or tribes, ha,d retired to their feveral places of abode, they were, in a great meafure, withdrawn from the influence of the king ; and were accuftomed to no other jurifdiclion, or authority, but that of the baron or chief by whom they were protected. Even after the feudal govern- ments had attained fome degree of regularity, and v.hen the fovereign had acquired numerous branches of civil power, it ftill was in the field that his pre- eminence attracted fuperior attention, and that he had the bed means of procuring popularity. It feems reafonable to conclude, therefore, that, upon the continent of Europe, where every fovereigr^ found his dominions furrounded by bordering na- tions, whom he was frequently tempted to invade, and againft whom he was obliged to be conftantly upon his guard, the moll ample fcope was afforded him for difplaying thofe talents, a,nd for availing himfelf ENGLISH GOVERNMEKT. 313 Kimfelf of thofe lituations, which were belt calcu- lated for extending his authority. In England, on the other hand ; a country in which there were fewer inducements to undertake a national war, and in which the military operations of the fovereign were chiefly employed in quellinp; the difturbances excited by his rebellious barons, or in repelling the inroads of the Scots, which were not of much more impor- tance than the infurreclion of particular barons ; he had fewer opportunities of exciting a national fpirit in his favour ; and confequently found it more dif- ficult to reduce the nobility into a ftate of depen- dence. The profperous reign of Edward the Firfi:, hatl undoubtedly a confiderable effect in confirming and exalting the prerogative. This prince was equally diftinguifhed by his policy in the cabinet, and by his acl:ivity, courage, and conduct, in the field ; at the fame time that he does not appear, by any fcru- pulous regard to the principles of honour orjuftice, to have been, on any occaiion, prevented from di- recting thofe talents to the purfuit of his own gran- deur or emolument. By the conquefi: of Wales he not only gained an enlargement of dominion, but freed himfelf from the vexatious depredations, of a troublcfome neighbour. Had he lived fomc\\-hat longer, it is more than probable that he would alio have compleated the entire conqueft of Scotland ; in which cafe, there is good ground to believe, that the reduction of the Northern and Southern parts of the ifland into one monarchy, would have been pro- ductive of fuch advantages, to both countries, as might in fome meafure have atoned for tlie pcrlldy and injuftice by which it was accomplifhed. The reign of Edward the Second was no Icfs ad- verfeto the influence of the crown, than that of his father had been favourable to it. By the total defi- ciency of that prince, in vigour and military cai)a- <;ity, he foou lull aU the acquilitions which iiis f.i- tluT 314 HISTORICAL VIEW OF THE ther had made in Scotland ; and faw the indepen- dence of that kingdom completely re-eftabliflied. — For the internal adminiftration of government he was equally difquaUfied. The nobility of that age were, with difliculty, reconciled to the dignity and pre-eminence of the fovereign ; but they could not endure that any perfon of inferior condition Ihould, by the favour of the monarch, be exalted over them, ind be invefted with ti)e exercife of the prerogative. The extreme faciUty of Edward fubjecledhim, how- ever to the conftant dominion of favourites, in fup- porting whom he excited the indignation of the no- bles ; and the queen, whofe affedions had been fe- duced by Mortimer, and who feems to have thought herfelf better entitled than any other perfon to go- vern her hufband, having joined the malcontents, the king was formally depofed by a meeting of par- liament ; was kept for fome time in confinement ; and at length barbaroufly murdered. The fate of this unhappy prince cannot fail to m.ove compaffion, as it proceeded from the weaknefs of his underftand- ing, and even from the gentlenefs of his difpofition, more than from ambition, or any pafiion for arbi- trary power : while it afforded a faiutary lefibn to his fucceffors, by exhibiting a ftriking example of the authority of parliament, to controul, and even to punilli, the fovereign. The fame power of the nobles, which had depof- ed Edward the Second, advanced to the throne his £on Edward the Third, while yet a minor. The early indications of geniu;?, and of a m.artial difpolition, difcovered by this prince, difpelled very quickly the iC'ioom which had for fome time hung over the na- tion ; and gave a total change to the afpeft of pub- lic affairs. Ele foon freed himfelf from the direction of the queen his mother ; and put to death her favourite Mortimer, with little ceremony, and with- out much regard to the forms of juftice. His firft military enterrrize was dire^Sed to the Recovery of Vv'hac ENGLISH GOVERNMENT. 315 what Ms father had loft in Scotland ; in which, from the weak and diforderly ftate of that country, he met with little obftruction ; but he was prevent- ed from the execution of this plan, by another oli- jecl, which was thought of much greater importance, and which, during the remainder of his reign, in- grofTed his whole attention. This was his preten- fion, in right of his mother, to the crown of France ; a claim which, though founded neither in jufiice nor expediency, was yet fufiiciently plaufil)le to pal- liate that love of extenfive dominion, with \\hich not only princes, but even the people, in all ages and countries, have been almoft conftantly intoxi- cated. The conduct of Edward, in afierting this claim, was probably fuch as every monarch of fpirit, in that age, muft have held, and in fo doing was fure of meeting with the general approbation of his fubjecls. As the undertaking, therefore, was crown- ed with unexpected and amazing fuccefs, it is no wonder that the fplendid victories obtained by this king, and by his fon the Black Prince, who acted fo confpicuous a part in thofe fcenes, procured them the admiration as well as the afl'cctions of the wholt Engliih nation. While thcfe two princes flattered the national vanity, by the profpect of conquering io great a kingdom as France, they difplayed all the talents and virtues which, in thofe times, M'cre fup- pofed to enter into the compofition of the moft com- plete military character. Even at this day, \yhen we contemplate the gallantry of the Black Prince, and the humanity and generofity with which he treated the king of F'rance, his prifoner, we muft acknowledge that they are furpafled by nothing either in ancient or modern ftory. Without de- tracting from, the merit of this diftinguilhcd pcr- fonage, we are led at the fame to conceive an exalted idea of the inftitutions and manners of chivalry, which, in fo rude a ftate of focicty, were capable, among people of the better fort, ol promoting 3i6 HISTORICAL VIEW OF THE promoting fo much delicacy of fentimcnt, and of encouraging any individual to form fuch a perfecl model of propriety and refinement. In the courfe of his long war againfi: France, the king obtained, more and more, an afcendant over thofe nobles who followed his banner, and were fmitten by an univerfal enthufiafm to diftinguiili themfelves in that iiluftrious field of national glory. His adminiftration at home was equally prudent and vigorous, and calculated to reftrain injuftice, as well as to command refpecl. Though not dif- pofed to relinquifh any part of his prerogative, he appears to have had a real regard for the ancient conftitution ; and though he acquired greater au- thority than was polTeiied by the former kings of England, he confirmed, on many occafions, the great charters of his predeceflbrs. He was under the neceflity of making large and frequent demands of money from his fubjecfs ; but, as he endea- voured in moft cafes, to procure it by the concur- rence of parliament, and as the nation entered heartily into the views which gave occafi.on to fo much expence, the fupplies which he required were commonly furniflied without any complaint. His numerous applications to the national afl'embly con- tributecibefides, to afcertain its powers and privileges, as well as to efi:ablifli and reduce into order the forms and method of its procedure. It merits attention, that, notwithftanding the alacrity with which the Englifh nation fupported the claim of their fovereign to the crown of France, the parliament feem to have been alarmed at the idea of failing under the government eftabliflied in that country ; and, to remove this apprehenfion, a ftatute was made, in which the king exprefsly cie- clares, that the realm and people of England " fhail not, in any time to come, be put in fubjoc- " tion nor in obeifance of us, nor of our heirs nor *' fuccellors, as kings of France, nor be fubjecl nor *' obedient ENGLISH GOVERNMENT. 317 " obedient, but (liall be free and cjuit oF nil man- " ner of fubjeclion and obeiilincc aforcfiid, as they *' were wont to be in the time of our progenitors, *' kings of England, for ever *." From this pre- caution, it may be inferred, that the parliament underftood the French monarchy, at this time, to be more abfolute than the Englilh ; and were afraid that their monarcli, if he came to the poiTefllon of that kinG:dom, miu-ht be led to cxercifc over them a power inconfiftent with the conftitution of Eng- land. The reign of Richard the Second is, in many ref- pecls, a repetition of the fame difgufting and me- lancholy fccnes, which that of his great grandfi- ther, Edward the Second had exhibited. In cacli of them we behold a young prince afcending the throne Avith great advantages ; regarded by the nation with a partiality and affcclion derived from paternal connections ; incurring the general con- tempt and indignation, by his folly and mifconducf ; o-overned, through the whole courfe of his adminif- tration, by favourites ; dethroned at length by par- liament, imprifoned, and brought to a tragical end. But the occurrences, in the time of Richard, were accompanied with circumftances which, in a review of theEnglifli government, are more parti- cularly worthy of obfervation. This reign affords a memorable example of the interference of parliament for the removal of the king's minifters. To the addrcfs which was pre- fented for this purpofc, Richard is faid to have an- fwcred, that, at the dcfire of parliament^ he ivould fict remove the meancji fculllon of his kitchen. Having oc- cafion for a fubfidy, however, which could not otherwife be obtained, he was obliged to comply with their demand: the earl of Suflblk, the chan- cellor, was not only removed from his oflice, but. • 14 Edw. 111. Impeaclicd. 3i8 HISTORICAL VIEW OF THE impeached, and found guilty of mifdemeanours ; an inquiry was ordered into the difpofal of the public revenue ; and a commiflion was granted by parliament, to fourteen perfons, for the fpace of a twelvemonth, to concur with the king in the admi- niftration of government. To thefe regulations Richard fubmitted no longer than till he thought himfclf in a condition to op- pofe them ; and it foon became evident, that he had formed a refolution of extending his preroga- tive beyond its ancient limits. For this purpofe he confulted with the principal judges and lawyers of the kingdom ; from whom he found no difficulty in procuring an unanimous opinion agreeable to his wiihes. Whatever may be the virtue of individu- als, it is not to be expelled that a body of men, fprung very frequently from a low origin ; bred up in the habits of a gainful profeffion ; whofe views muft be continually direcJ:ed towards preferment, and the emoluments of office; foldiers of fortune and whofe fortune depends chiefly upon the favour of the crov/n ; will be difpofed to ftand forth in critical tim.es, and expofe themfelves to much ha- zard in maintaining the rights of the people. This deiign was fruftrated by the vigour and activity of the nobles, who levied a great army, and defeated that of the crown. The king's minif- ters made their efcape ; but in their abfence were impeached, and their eftates confifcated. Two per- fons of note, one of whom was the famous Trefi- lian, chief juftice of the king's bench, who hap- pened to be caught, were tried and executed. The reft of the judges, who had concurred in the opini- ons above-mentioned, were banifhed to Ireland. The behaviour of the king, in this fituation, was abjecl and m.ean, in proportion to his former haugh- tineis. At an interview with the nobles, he is faid to have anfwered their reproaches with a flood of tears. But Richard was pofTsfTed of a high degree of ENGLISH GOVERNMENT. 3 1.^ of obftinacy ; a quality which is frequently con- nected with inferiority of underltanding : whether it be that the fame ftupidity, which leads men into error, puts them out of tlie reach of con\iction by reafoning ; or that, in proportion as they are inca- pable of examining objccTis on every fide, they arc commonly fell-conceited and opinionative. The parliament being then compofed of two houfes, as will be mentioned more fully hereafter, it was perceived, by the advifers of this infatuated prince, that the eafieft method of carrying his views into execution, was by dividing that alTernbly, and in particular, by procuring a majority in the houfe of commons. We accordingly find, that, by ad- hering invariably to the fame plan ; by directing the nomination of fheriifs, and of the principal magi- ftrates of boroughs ; and by employing the intereft and addrefs of all thofe different oflicers in the elec- tion and return of reprefentatives, this object was, in a few years, entirely accompliihed. The king now ventured to avow his pretenfions to abfolute power ; and in a meeting of parliament, in the year 1397, the opinions of the judges, which had been formerly condemned, were approved of and ratified ; the chief heads of the ariftocracy were put to death, or banifhed ; the duke of Gloceficr, the king's uncle, was privately murdered ; and to fuperledc the neceffity of calling the national afTcmbly^ for the future, a committee was appointed, confilling ot twelve peers, and fix commoners, upon v^-hom tht: authority of both houfes was devolved. This expedient of the crown, to pack the houfe of comm.ons, is the firft of the kind that occurs in our hiftory ; and it muft be confidcred as forming a remarkable a:ra in the Britilh conftitution. It ihows, in the hril place, the limited nature of our ancient government ; fince, notwithftanding the late ad- vances of the regal authority, the king, in order to carry hi.^ meaiurcs, was obliged to employ futh indirect ^23 HISTORICAL VIEW OF THE Indirecl means for procuring the concurrence of pLirliiunent. It proves alfo, that political confideration was not, at this period, confined to the greater nobility ; but that men of fmali property, and of inferior condi- tion, the reprefentatives of counties and boroughs, were poffeiled of fo much intereft as enabled them, bv throwing their weight into the fcale of the fove- reio-n, to bellow upon him an entire afcendant over the national council. From the confequences which followed this undue influence, acquired by the king over the houfe of commons, we may plainly perceive that a fpirit of liberty, or, if you will, of oppofilion to the tyranny of the crown, was even then diffufed, in fome mea- fure, over the nation. Finding that he was now mafter of the refolutions of parliament, Richard fuppofed the difpute was at an end ; was therefore lulled in perfect fecurity ; and abandoned himfelf to the dictates of his own arbitrary will. But the people faw, with concern, that they had been be- trayed by their own reprefentatives ; their indig- nation and refentment were excited, and they be- came ripe for a general infurreclion. The leaders of the malcontents call their eyes upon the duke of Hereford, the eldell fon of the duke of Lancafter ; vrho, by the injullice of the king, had been fent into exile, and afterwards excluded from the inhe- ritance of his father's large pofleflions. This noble- man, the moll diilinguiflied by his rank and accom- pliiliments, was invited to put himfelf at the head of the confpiracy, for the purpofe of redrefling his own private injuries, no lefs than of delivering the nation from tyranny and oppreilion. Richard, mean while, went over to Ireland, in order to quell the difturbances of that country ; and thus gave to his enemies the opportunity which they wanted of executing" their defii^ns. The Gjencral fentiments of o o o the prople were made abundantly evident by the events ENGLISH GOVERNMENT. 3:1 events which followed. The duke of Hereford land- ed at Ravenfpur, in Yorkfhire, with no more than eighty attendants ; but in a fliort time found himfclf at the head of an army amounting to lixty thoufand. The duke of York on the other hand, who had been left regent of the kingdom, aflembled a body of troops to the number of forty thouland ; but thefe, from difl'affection, were unwilling to fight ; and being therefore difoanded, they immediately joined the enemy. Another army having been tranfported by the king from Ireland, were infected with the fiime fpirit ; and the greater part of them deferted the royal ftandard. Richard, abandoned by the whole nation, was forced to fubfcribe an inftrument of rcfigjiation, in which he acknowledged himfelf unworthy to govern the kingdom. An accufation for miibehaviour, confiiHng of no lefs than thirty-five articles, was preferred againfi: him to parlianient, and univcrfidly approved of: after which, this prince was folemnly depofed by the fuffrages of both houfes ; and the crown was conferred on the duke of Hereford. It is remarkable, according to the obfcrvation of an eminent writer, " that thefe extremities fell upon " Richard the Second, at a time when every thing " feemed to contribute to his fupport in the exercifc " of that arbitrary power which he had aifumed. " Thofe whom he had moft reafon to fear, were *' removed, either by violent death or banifliment ; " and others were fecured in his interell by places, " or favours at court. The great offices of the " crown, and the magiftracy of the whole king- " dom, were put into fuch hands as were fit for his " defigns ; befides which he had a parliament en- '• tircly at his devotion ; but all tlicfe advantageous " circumftances ferved only to prove, that a prince " can have no real fecurity againft the juft relent- " ments of an injured and exafpcrated nation ; for, ** in fuch governments as that of England, all en- Y " deavours 322 HISTORICAL VIEW OF THE " deavours ufed by the king to make himfelf abfo- " lute, are but fo many fteps towards his own " dawnfal*/' The right of Henry the Fourth to the crown oi England was derived from the authority of parlia- ment, confirmed by the voice of the whole king- dom. No tranfaclion of the kind was ever com- pleated v.4th greater unanimity. But although, in that age, the people gave way to their natural feel- ings in dethroning an arbitrary and tyrannical prince, they v/ere probably little accuftomed to reafon upon thofe philofophical principles, by which^ in cafes of extreme neceflity, the right of doing fo may be vindicated. Even fo late as the revolution, in the year 1688, when the neceflity and propriety of the fettlement, which then took place, was uni- verllilly underftood, the parliament were unwilling to avow, in exprefs terms, that power which they were determined to exercife ; they had recourfe to childifli evalions, and fiftitious fuppofitions ; and the abfurci pretext of an abdication was employed to cover the real depofition of the fovereign. It is not furpriling, therefore, that, in the days of Richard the Second, the fpeculative opinions of men, con- cerning points of this nature, were loofe and fluctu- ating. Henry appears to have been fenfible of this ; and founds his claim to the throne upon three diffe- rent circumflances ; upon the mal-adminiftration of Richard ; upon the right of conquefl: ; and upon a popular, though probably a groundlefs tradition, that, by his mother, he was defcended from Henry th€ Third, by an elder brother of Edw^ard the Firft, who, on account of his perfonal deformity,, Irad been excluded from the fuccellion to the crown. ''Jliefe particulars, however, are jumbled together, in a manner calculated to avoid a minute inveftisra- tion. " In tlie name of Fadher, Son, and Holy ' RcDiarks upon tlie liiAory of England by H. Oldcafllc. " Ghoft,'' ENGLISH GOVERNMENT." 323 *' Ghoft," fays he, I Henry of Lancaflcr challenc;c *' this rewme of Ynglande, and the crown, with *' all membres and appurtenances ; als I that am " defcendit bv ris-ht line of the blode, comins: fro " the gude king Henry therde, and throge that " right that God of his grace hath lent mc, with *' helpe of kyn, and of my friends, to recover it ; " the which rewme was in poynt to be ondone by *' defaiit of governance, and ondoying of the " Sfudelawes." As no credit fcems due to this connection with Henry the Third ; fo it muft be admitted, that, fup- pofmg it neceifary to fet afide Richard the Second, for dcfaut of governance, Henry the Fourth was not, accordinc: to the ellabliflied rules of fucccflion, the next heir of the crown. He was the grandfon of Edward the Third, by the duke of Lancafter, third fon of that monarch. But the duke of Clarence, Edward's fecond fon, had left a daughter, who was married into the houfe of Mortimer, and whofe grandfon, the earl of Marche, now a boy of feven years of age, was the reprefentative of that family. In examining this point, however, it ought to be remembered, that by the rules of fucceflion eftablilli- ed among rude and warlike nations, what is called the right of rcprcfentation is unknown, and the nearer defcendants of a family are frequently pre- ferred to the more diftant ; as alfo, that, upon fimi- lar principles, female relations are ufually excluded by the males. According to the early laws of al- moft all Europe, the title^of Henry the Fourth to the crown was therefore preferable, from both of thefe confiderations, to that of the earl of Marche. A contrary cuftom, indeed, in confequence of more improved manners, had undoubtedly been gaining ground, before this competition became an objecT: of attention ; but we-muft not fuppofe that it had yet become univerfal, or had acquired fuch a degree of ftability, as the peaceful fituation, and the fcicntlhc y 2 views 324 HISTORICAL VIEW OF THE views of a poliflied age, have fmce beftowed up- on it. But ^^'hatever might be the opinions of parlia- ment, or of the people, upon this point, the prefe- rence of Henry to any other competitor was at this time, a matter of the higheft expediency, if not of abfoltite ncccHity. To dethrone a prince, who had for years been eftabliiliing a fyftem of abfolute power, and who had given proofs of his violent and fanguinary difpofition, was a meafure nolefs danger- ous than it was diliicult ; and the fuccefsful execu- tion of it could only be expected under a leader of great popularity, w^eight, and abilities. Henry ap- pears to have been the only perfon in the kingdom qualified for conducting fuch an enterprife, and like- ly to fecure the public tranquillity under the new eftablifhment. To depofe Richard, and at the fame time to commit the reins of government to a perfon w^ho, in that extraordinary exigence, was manifeft- ly incapable of holding them, would have been to attempt the abolition of dcfpotifm by fubftituting anarchy in its place ; and wantonly to introduce a revolution, at the hazard of much bloodfhed and injuftice, but with no reafonablc profpect that it could be producTiive of any lafting advantages. Henry the Fourth enjoyed, however, but little tranquility in the poflellion of that fovereign power which was thus conferred upon him. The great lords, who had taken a diftinguiflied part in placing him on the throne, and who probably over-rated their ferviccs, became difi'atisfied with that fliare of the royal favour and confidence which he thought proper to beftow upon them ; and Vv^ere difpofed to believe they might eafily pull down that fabric which they themfelves had erected. The perfeve- ring activity, the deliberate valour, and found policy, difplayed by this monarch through the whole of his conduct, enabled him to crufh thofe frequent confpiracies which were formed againft him j ENGLISH GOVERNMENT. 3:5 him ; although it mufl: be admitted, that his un- common talents, which Mere uniformly exerted for this purpofe, during a reign of thirteen years, were hardly fullicient to recover tiie prerogative froui tlie {hock which it had receiv^ed by the depolition of his predecelfor. The fplendid character of Henry the Fifth ; his courage and magnanimity ; his clemency, modera- tion, and humanity ; his engaging appearance and deportment ; his afllibiiity, addrcl's, and popular manners ; together with his renewal of the claim to the kingdom of France, and his invafion of that country, accompanied with moft aftonifliing fuc- cefs ; thefe circumftances revived the flattering and delufive profpecbs entertained by the Englifh in the days of Edward the Third ; and, by ieizing the na- tional enthufiafm, reinftated the crown in that au- thority and dignity which it had formerly main- tained. But the death of that monarch produced a fad reverfe in the fcate of the kingdom. By the long minority of Henry the Sixth, and his total incapa- city, after he came to be of age ; by the dififlers which befel the Englifh in profecuting the war with France ; and by their entire expulfion from that country, without the leaft hope of recovering ir ; the people were filled with difcontent ; were ini'i)lr. ed with contempt of their fovcreign ; and of courfe were difpofcd to liften to any objections againli: ihc title by which his family had obtained the crown. — In the preceding reign thofe objeclions were held to be of fo little moment, that Henry the Fifth difco- vered no jealoufy or apprelienfion of tlie earl of Marche, the lineal heir of Richard ; and tlierc even fubfifted between tliem an intercourfe of mutual confidence and friendfliip ; a circumftance whicli reflects great honour both upon the king and upon that nobleman, As the right of tlu; governing •iamily had been confirmed by a pofl'eflion of three fucceflivc ^26 HISTORICAL VIEW OF THE fucceflive reigns, it would not, in all probability have now been called in queftion, had not the weak- nefs and misfortunes of the prefent adminiftration deftroyedall refpect to the government, and excited uncommon diflatisfaclion. Upon the death of the earl of Marche without heirs male, the duke of York, in right of his mo- ther, was now become the reprefentative of that family ; and from the extenfive property poffefled by this nobleman, together with his powerful con- nections, in confequence of various alliances among the principal nobility, he found himfelf in a condi- tion to ailert that claim to the crown, which had been over-ruled by the prevailing afcendant of the houfe of Lancafter. It is needlefs to enter into par- ticulars of the famous contention between thofe two branches of the royal family ; which was continued through the reigns of Henry the Sixth, of Edward the Fourth, and of Richard the Third ; and which, during a period of about five-and-thirty years, filled the kingdom wdth diforder and with blood. That this long-continued civil war in which different princes were alternately fet up and dethroned by the different factions, and in which all public authority w,as trampled under foot, was extremely unfavour- able to the prerogative, will readily be admitted. It cannot however efcape obfervation, that in the courfe of this violent contention, the nobles were not, as in fome former dilputes, leagued together in oppofition to the king ; but, by efpoufing the intercit of different candidates, were led to employ their whole force againft one another. Though the crown, therefore, was undoubtedly weal^ened, the jiobility did not receive proportional ftrength and the tendency of this melancholy fituation was not fo much to increafe the ariftocracy, as to exhaufl and impoverifh the nation, and to deftroy the effecl of all fubordination and government. When ENGLISH GOVERNMENT. 3:7 When we confidcr, In gcnci m1, tl\c ftatc ot the EngUfh conlHtution, from the acceilion of Edward the Firft, to that of Henry the Seventh, we mull iind fome difllculty to afcertain the alterations pro- duced in the extent of the regal autliority. I'hat the powers of the monarch were, upon the wliolc, making advances during this period, it fhould fecm unrcafonable to doubt ; but this progrefs appears to have been flow, and frequently interrupted. If, in the vigorous and fuccefsful reigns of Edward the Firft, of Edward the Third, and of Henry the Fifth, the fceptre was remarkably exalted, it was at Icaft equally deprefled by the feeble and unfortunate ad- miniftration of Edward the Second, of Richard tlic Second, and of Henry the Sixth. By w^hat circum- ftances the prerogative acquired additional ftrength under the princes of the Tudor family, we fluill afterwards have occafion to examine. CHAP. VU Ilijiory of the Parliament in the fame Period. x\.MONG the Important fubjecTs of inquiry, which diftinguifli the period of Englifli hiftory, from the acceflioifof Edward the Firft to that of Henry the Seventh, our firft attention is naturally directed to the changes w^hich affecTed the legiflative power ; by the introducTion of reprefentatives into parlia- ment ; by the divifion of that alTembly into two lioufes, attended with the appropriation of peculiar powers to each of them ; and laftiy, by the lublc- qucnt regulations, with rcfpccT to the riglu of clecT- 328 HISTORICAL VIEW OF THE ing members of the national council. Thefe parti- culars appear to be of fuch magnitude, as to deferve a feparate examination. Sect. I. The Introdi/&i&n of the Reprefentaiives of Counties and Boroughs into Parliament. THE parliament of England, from the time of William the Conqueror, was compofed, as I for- merly took notice, of all the immediate vaflals of the crown, the only part of the inhabitants that, according to the feudal conftitution, could be ad- mitted into the legiflative affembly. As the Englifh nobility had accumulated extenfivc landed property, towards the latter part of the Anglo-Saxon govern- ment ; as yet larger territories were acquired by many of thofe Norman barons who fettled in Eng- land at the time of the conqueft ; and as the conver* lion of allodial into feudal eftates, under the crown, occafioned no diminution in the poflellions of indi- viduals ; the original members of parliament mull have been, for the moft part, men of great power, and in very opulent circumftances. Of this we can have no doubt, when it is confidered that, in the reign of William the Firft, the vafTals of the crown, as I formerly had occafion to obferve, did not amount to more than fix hundred, and that, exclu- live of the royal demefne, tlie whole land of the kingdom, in property or fuperiority, was divided among fo fmail a number of perfons. To thefe opulent barons, attendance in parliament was a duty which they were feldom unwilling to perform ; as it gave them an opportunity of afl'erting their pri- vileges, of courting preferment, or of difplaying their influence and magnificence. But in a long courfe of time, the members of that affembly were fubjeded to great revolutions ; their property was frequently difmembered, and fplit into fmaller divilior^s ; their number was thus greatly increafed j while ENGLISH GOVERNMENT. ^^9 ^vhile the confideration :u\d rank of indivi duals vcrc proportionably impaired ; and many of thofc who had appeared in eminent ftations were reduced to poverty and obfcurity. 'fhcfe chajipjes proceeded from the concurrence chiefly ot three difl'erent caufes. 1. During that continual jealoufy between the king and the nobles, and that unremitting ftruggle for power, which arofe from the nature of the Eng- lifli conftitution, it was the conftant aim of tlic crown, from a confcioufnefs of inferiority in force, to employ every artifice or ftratagem for undermin- ing the influence of the arillocracy. But no mea- fure could be more effecl:ual for this purpofe, than to divide and difmember the overgrown ellates of the nobles ; for the fame wealth, it is evident, which became formidable in the hands of one man, would be of no fignificance when fcattered among twenty. As the frequent infurreclions and difor- ders, which prevailed in the country, were produc- tive of numberlefs forfeitures, they afibrded the king opportunities of feizing the property of thofc barons v/ho had become obnoxious to him, and of either annexing it to the crown or difpofing of it at pleafure. In this manner a confiderablc part of the land in the kingdom, during thecourfc of a century or two, palled through the hands of the fovcreign, and, being diftribute'd in fuch parcels as coincided with his views of poUcy, gave rife to a muhiplicity of petty proprietors, from whofe exertions he had no reason to fear much oppofition to the progrefs ot his authority. 2. -Another circumftance, which contributed itill more -effectually, though perhaps more flowly and gradually, to diminifh the cftates of the crown- vafTals, was the advancement of arts and manu- factures. The irruption of the Gothic nations into the Ro- jiian empire j the flrugglcs which took place during their v.o HISTORICAL VIEW OF THE oj> their conquefl of the different provinces ; the fub- fequent invahons carried on by new fwarms of the fame people, againft the flates erected by their pre- deceffors ; the violent convuliions, which, in a great part of Europe, were thus continued through the courfe of many centuries, could not fail to deftroy all induftry, and to extinguilh the mechanical as well as the liberal profcflions. The rude and bar- barous manners of the conquerors were, at the fame time, communicated to thofe countries which fell under their dominion ; and, the fruits of their former culture and civilization being gradually loft, the inhabitants were at length funk in univerfal ig- norance and barbarifm. When thefe diforders had rifen to a certain pitch, the countries which had fo long poured out their inhabitants, to difturb the peace of Europe, put a ftop to their depredations. The Northern hive, it has been faid, was then exhaufted. Thofe countries, however, were in reality fo far from being drained of inhabitants, that they had increafed in popula- tion. But they had become a little more civilized ; and confequently, had lefs inclination to roam in queft of diftant fettlements, or to procure fubfiftence by the plunder of nations who were now in a bet- ter condition to withftand them. The greater tranquility which was thenceforward enjoyed by theftates that had been formed upon the ruins of the Roman empire, gave the people more leifure and encouragement to introduce regulations for fecuring property, for preventing mutual injuries and for promoting their internal profperity. That original difpofition to better their circumftances, implanted by nature in mankind, excited them to profecute thofe different employments which pro- cure the comforts of life, and gave rife to various and fucceffive improvements. This progrefs was more or lefs accelerated, in different countries, ac- cording as their fituation was more favourable to navigation ENGLISH GOVERNMENT. - 1 navigation and commerce ; the firft attcniion of every people being ufually turned to the arts molt effential to fubfiftencc, and in proportion to the ad- vancement of thefe, being folloNved by fuch as ;irc fubfervient to convenicncy, or to luxury and amule- ment. The eleventh and twelfth centuries have been marked by hiftorians as prefenting, in modern times, the lirft dawn of knowledge and literature to the Weftern part of Europe ; and from this pe- riod we begin to trace the rude footiteps of manu- factures, in Italy, in France, and in the Netherlands. The communication of the Normans with Eng- land, in the reign of Edward the ConfeiTor, which began in 1041, and ftill more from that of William the Conqueror, contributed to fpread, in this ifland, the improvements which had made a quicker pro- grefs upon the continent ; the common arts of life were now more and more cultivated ; tradefmen and mercantile people were gradually multiplied ; foreign artificers, who had made proficiency in va- rious branches of manufacTure, came and lettled in England ; and particular towns, upon the coafts of the fea, or of navigable rivers, or which happened to be otherwife advantageouily fituated, began to extend their commerce. This alteration in the circumflances of focicty, v/hich became more and more confpicuous through the reigns of the fevcral princes of the Norman and Plantagenet race, was productive, as we may eafily fuppofe, of a correfpondent variation of man- ners. The proprietors of land, for whofe benefit the new improvements were chiefly intended, en- deavoured to render their lituation more comfi)rta- ble, by purchafing thofe conveniencies whicli were now introduced ; their ancient plainnefs and fimplicity, with refpecT to the accommodations ot life, were more and more deferted ; a mode ot liv. ing more expenfive, and fomewhat more elegant, began to take place j and even men of fmaller for- tunes 352 HISTORICAL VIEW OF THE tunes were tempted, in this, as well as in moft other particulars, to follow the example of their fuperiors. By an increafe of their annual expencc, without any addition to their annual revenue, many individuals, therefore, were laid under difficulties ; found it neceffary to contract debts ; and, being fubje(5led to incumbrances, were at laft obliged to difmember and alienate their eftates. To this general caufe of alienation, we may add the epidemical madnefs of the crufades, by which many perfons were induced to fell or mortgage their poffeffions, that they might put themfelves in a con- dition for bearing a part in thofe unprofperous and cxpenfive expeditions. It may accordingly be remarked, that as, about this time, the commerce of land was rendered more frequent, it was gradually freed from thofe legal reftraints to which it had anciently been fubjefted. According to the fnnplicity of manners which had prevailed among the rude inhabitants of Europe, and which had kept eftates invariably in the fame families, no perfon was underftood to have a right of fquandering his fortune to the prejudice of his neareft relations*. The eftablifhment of the feudal fyftem produced an additional bar to allienation, from the circumftance that every valTal, being a mi- litary fervant, and having obtained his land as a confideration for fervices to be performed, could not transfer the property without the confent of his maftcr. In England, upon the dawnings of im- provement after the Norman conqueft, perfons who had acquired an eftate by purchafe, were permitted to difpofe of it at pleafure ; and in towns, the inha^ bitants of which became familiar with commerce, the fame privilege was probably foon extended to every tenement, however acquired. When the difr pofition to alienate became fomewhat more general Vide L. L, Aclfrcd, c, 37, over ENGLISH GOVERNMENT. 333 over the country, the conveyance, even of cftatcs defcending by inheritance, was executed, in a man- ner confiftent with feudal principles, hy fubi7rfcud,7- tion ; the purchafer became the vailal of the perfon who fold the lands, and who ftill continued liable to the chief lord for all the feudal obligations. But in the reign of Edward the Firft a llatutc was made, by which an unbounded liberty was given to tlic alienation of landed property ; and when any per- fon fold an eftate, the fuperior was bound to re- ceive the purchafer as his immediate vaflal*. 3. By the courfe of legal fucceffion, the property of the crown vafTals, or members of parliament, was alfo frequently broken and difmembered. The right of primogeniture, indeed, which, among the feudal nations, was introduced in order to Ihelter the individuals of every family under the protection of their own chief or leader, prevented, fo far as it went, the divifion of eftates by inheritance. But primogeniture had no place in female fucceflion. Befides, the improvements of fociety, by enlarging the ideas of mankind, with relation to property, contributed to extend and to multiply dcvifes^ by which even landed poiTeflions were bequeathed at pleafure ; and according to the fituation or caprice of the owner, were liable to be fplit and diftributcd among different perfons. When the alienation of eftates, together with thofe divifions of landed property which arofe from female fucceffion, or from devife, had proceeded lo far as to threaten the deftruclion of great families, the nobility took the alarm, and had recourfc to the artifice of entails for prcferving their opulence and dignity. In the reign of Edward the Firft, they are faid to have extorted from the king a remarka- ble ftatute, by which the privilege of entailing was * The famous flatute f,ui, cwptnrn, pafTicl in the l8th of I'dward 1. Till, law was farther extcmicd, or at Kuft rccdvcd a more liberal iiitcrprctatioi). in the rcijjn of Hdward HI. , ^ greatly 334 HISTORICAL VIEW OF THE greatly extended ; from which it may be inferred that there had appeared, about this time, a ftrong difpofition to alienate and difmember eftates ; fmce, in order to check the progrefs of the evil, this ex- traordinary remedy was thought requifite*. Thefe changes in the ftate of landed property had neceilarily an extenlive influence upon the govern- ment, and more efpecially upon the intereft and po- litical views of thofe perfons who compofed the na- tional council. Many of the crown-vaffals were now, from the fmallnefs of their fortune, unable to bear the expence of a regular attendance in parliament : at the fame time that they were difcouraged from appearing in that affembly ; where, inftead of gra- tifying their ambition, they were more Hkely to meet with iituations to mortify their vanity, by ex-; pofmg the infignificance into which they had fallen. They were no longer in a condition to view the ex- tenfions of the royal prerogative with an eye of jea- lous apprehenfion ; but had commonly more caufe of complaint againft the great barons, who lived in their neighbourhood, and by whom they were fre- quently oppreiied, than againft the fovereign, whofe power, being more diftant, and operating in a higher iphere, gave them lefs difturbance. But while, from thefe confiderations, the fmall barons were difpofed, in many cafes, to withdraw themfelves from the meetings of parliament, the king had commonly an intereft in requiring their punctual attendance ; becaufe he found it no difficult ma.tter to attach them to his party, and by their affiftancc vv-as enabled to counterbalance the weight of the ariftocracy. On every occafion, therefore, where any meafure of public importance was to be agitatedj the king was ufually folicitous that many * This was the ftatutc of Weftminfler de doms conditlonaUbus. 13 Edward I. c. I. By which it was provided, that an eftate left to a perfon, and tht bars of his b-jdy, iliould in all cafes go to the iflue, if there v.'u* any ; if not, fliould revert t*^ the donor. of ENGLISH GOVERNMENT. 3^- of the poorer members of parliament fliould be prc- fent ; and a great part of thefe, on the other hand, were continually excufmg themfclves from fo bur- denfome a fervice. The longer the caufes M'hich I have mentioned had continued to operate, in divid- ing and difmembering landed eftates, the number of crown-vaillils, defirous of procuring an exemp- tion from this dutv, became fo much the ijreater. Comparing the condition of the different land- holders of the kingdom, towards the latter part of the Anglo-Saxon government, and for fome time after the Norman conqueft, we may obferve a fimilar diftinclion among them, proceeding from oppofitc caufes. In the former period, when people of fmall fortune were unable to fubiift without the protecf ion of their fuperiors, the property of many allodial proprietors was gradually accumulated in the hands of a few, and thofe who pofleiTcd a landed territory of a certain extent, acquiring fuitable confideration and rank, were diftinguiflied by the title oi proccres^ or chief nobility. Under the firfl Norman princes, when the dependence of the lower ranks had pro- duced its full effect in the completion of the feudal fyftem, the owners of fmall eftates were almoft en- tirely annihilated ; and in the condition of thofc opulent barons among whom the kingdom came to be divided, no difference was probably acknowledg- ed. But when the revival of arts, and the progrels of the people towards independence, had begun to difmember effiates, and to multiply the vaffals of the crown, the difproportion between the property oi individuals became, once more, confpicuous ; and the former diftinclion between the great and fmall barons excited the attention of the legiffature. The prior accumulation, and the fubfcquent diffi- pation, of wealth, had in this refpcct a liniilar cflcc't. In amafling great fortunes Ibme of the barons were neceffarily more fuccefsful than others, which ren- dered eftates extremely unequal. In that ftate ot focictv 33^ HISTORICAL VIEW OF THE fociety which tempted men to fpend, or promoted the divifion of their eftates, ibme proprietors pro- ceeded iikewile in this career with greater rapidity, by which the fame inequahty v/as produced. In the great charter of king John it is ordained, that the archbifhops, bifhops, earls, and greater barons, fhall be fummoned to the meetings of parliament, by particular letters from the king ; and that all other perfons, holding immediately of the crown, fhall receive a general citation from the king's bai- liffs or fheriffs. But, although the more opulent vaffals of the crown are thus clearly exalted above thofe of inferior vv^ealth, and dignified with particu- lar marks of refpecl, it is difficult to afcertain the ex- tent of property by which thofe two orders of men were fcparated from each other. That the ftatute has a reference to fome known boundary between them, can hardly be doubted ; but whether, in or- der to obtain the rank and title of a great baron, an eftate amounting to forty hides of land was requi- fite, agreeable to the diftinclion of the chief nobility in the reign of Edward the Confeffor ; or whether the qualification in point of property had been vari- ed according to the alteration of times and circum- ftances, no account can be given. The effeft of a regulation for fummoning the fmall barons to parliament, by a general citation only, was to place them in greater obfcurity, and to encourage their defertion, by giving them reafon to hope that it would pafs without obfervation. In fuch a fitua- tion, however, where a complete and regular at- tendance Vy'as not to be expected, and where each individual was endeavouring to excufe him.felf, and to throw as much as poffibie of the burden upon his neighbours, an agreement would naturally be fuggeft- ed to the inhabita.nts of particular diflricts, that they lliould relieve and fucceed each other by turns, in the performance of this duty ; and thus contribute to their natural cafe and advantage, by fliaring ENGLISH GOVERNMENT. 337 among them an inconvenience wliith tliey could not entirely avoid. Of thefe joint niealures, it was .111 obvious improvement, that, infteid of a ^•ague and uncertain rotation, particular pcrlbns, who appear- ed the beft qualified for the talk, and were moft willing to undertake it, fliouldbe regularly elected, and fent, at the common expence, to reprefent their conftituents in parliament. Nor can it be doubt- ed that the king would be highly plcafed with fuch an expedient, by which he fecured a proportion of the fmall barons in the ordinary meetings of the na- tional council, and which did not hinder him from convening a greater number on extraordinary oc- cafions. In this manner the knights of fliires appear to have been iirft introduced into parliament. The date of this remarkable event cannot be fixed with preci- fion ; but it w^as undoubtedly as early as the reign of Henry the Third*. The divifion of counties pro- duced a feparate aflbciation among the crown vaf- fals, in each of thofe diftricfs, for electing their own reprefentatives. I'he number of thci'e appears to have been originally precarious, and probably was varied in different emergencies. On different oc- cafions we meet with four knights called from eacli county ; but they were gradually reduced to two, the fmalleft number capable of confulting together for the intercft of their conftituents |. * The records of parliament, for fcvcral reigns afier the Norman con- queft, are in a great mcafure loft, having prohaMy, during the barons wars, been deftroyed ahernately by each prevailing i):irty, who lound tlicm unfa- vourable to their intereft. [l^rynne's preface to Cotton's Abridj;. of Record* in the 'lower.] This circumftance accounts for the great obfcurity in which, after ail the labour of antiquaries, the origin of fo great a change in tlie conftitution of that alTembly flill remains. The Iirft introduaion of rc[)re- fentatives of counties may,' with fomc probubiiity, be traced as lar back at the reign of king John. .Sec Carte's Hilt. Reign of Idw. I. f In the eleventh year of Edward I. four knights were fummoncd for each county. ["Brady's Il'ift. of England-] In thj reign of John, there had been a writ ifTued to the llierifi" of Oxfordfhire, to r.tuia four knij^hts for that county. Carte, in the reign of Edward 1. Z TIic 338 HISTORICAL VIEW OF TU^ The fame chani^es in the ftate of the nation, which contributed principally to the rife of the knights of lliires, introduced likewife the burgefles into parlia- ment. By the advancement of agriculture, the peafants, in many parts of Europe, had been gradually eman- cipated from flavery, and been exalted fucceflively to the condition of farmers, of tenants for life, and of hereditary proprietors. In confequcnce of the freedom attained by this inferior clafs of men, a great proportion of them had engaged in mechanical em- ployments ; and, being collected in towns, where the arts were moll: conveniently cultivated, had, in many cafes, become manufacturers and merchants. The lituation of thefe manufacturing and trading people enabled them, after the diforders which pre- vailed in Europe had in fome meafure fubfided, to m.ake a rapid progrefs in improving their circum- ftances, and in acquiring various immunities and privileges. By mutual emulation, and by the in- fluence of example, the inhabitants of the fame town were excited to greater induftry, and to the con- tinued exertion of their talents ; at the fame time that they were in a capacity of uniting readily for mutual defence, and in fupporting their common in- tereft. Being originally the tenants or dependants, either of the king or of fome particular nobleman, upon whofe dcmefne they reiidcd, the fuperior ex- acted from them, not only a rent for the lands whicli they poffeffeci, but various tolls and duties for the goods which they exchanged with their neighbours. Thefe exactions, w^hich had been at firft precarious, were gradually afcertained and fixed, either by long cuilom, or by exprefs regulations. But, as many artifices had, no doubt, been frequently praftifed, in order to elude the payment of thofe dutiesi, ami as, on the other hand, the perfons, employed in levying them were often guilty of oppreflion ; tlie inhabitants of particular towns, upon their increaf- ins: ENGLISH G O V E R N M E N T. 139 ing In wealth, were induced to make a bargain with the fuperior, by which they undertot)k. to pay a cer- tain yearly rent, in the room of all his occafumal demands : and thefe pecuniary compolltions, being found expedient for both narties, were gradually extended to a longer period, and at lall rendered perpetual. An agreement of this kind appears to have fug- gefted the firft idea of a bGroirrh, confidered as a cor- poration. Some of the principal inhabitants of the town undertook to pay the fuperior's yearly rent ; in confideration Qf which, they were permitted to levy the old duties, and became rcfponhble for the funds committed to their care. As managers for the community, therefore, they were bound to ful- fil its obligations to the fuperior ; and, by a natural extenfion of the fame principle, it came to be un- derftood that they might be profecuted for all its debts ; as, on the other hand, they obtained, of courfe, a right of profecuting all its debtors. The Ibciety was thus viewed in the light of a body poli- tick, or fictitious perfon, capable of legal deeds, and executing every fort of tranfaclion by means of cer- tain truftees or guardians. Tliis alteration in the ftate of towns was accompa- nied with many other improvements. They were now generally in a condition to diipenfe with the protedion of their fuperior ; and took upon them- felves the burden of keeping a guard, to defend them againft a foreign enemy, and to fecure their inter- nal tranquillity. Upon this account, bchdc the ap- pointment of' their own adminiftrators, they ob- tained the privilege of electing magillratcs, for dif- tributing juftice among them. They became, m a word, afpecies o^foccage tenants^ with this remark- able peculiarity in their favour, that by remaining in the Rate of a corporation irom one generation to iinotlier, tliev were not liable to the incidents be- Z 2 itJiigi^g 340 HISTORICAL VIEW OF THE lonc^ingto afuperior, upon the tranfmiffion of lands to the heirs of a vaiTal. The precifc period of the firft incorporation of boroughs, in the difi'erent kingdoms of Europe, is not ealily determined ; becaufe the privileges ari- ling from the payment of a fixed rent to the fupc- rior, in the room of his cafual emoluments, and the confequences which refulted from placing the revenue of a town under permanent adminiftrators, were ilowly and gradually unfolded and brought into the view of the public. In the eleventh and twelfth centuries we may trace the progrefs, if not the firft formation, of thofe communities, in Italy and in Germany, which correfponds with the ad- vancement of trade and manufactures In thofe coun- tries*. The towns in France are faid by Father Daniel to have been firft incorporated in the reign ot Lev'is the Grofs ; but it appears that they hid then acquired confiderable privileges, wxre intrufi:ed with their own government, and the inhabitants were formed into a militia for tTie fervice of the crown -f-. In the reign of Henry the Firfi: of England, the cotemporary of Lewis the Grofs, the inhabitants of London had begun to farm their tolls and duties, and obtained a royal charter for that purpofe |* Their example was followed by the other trading- towns, and from this time forward the exiftence of Englifli boroughs becomes more and more con- fpicuous. When the towns, under the immediate protection of the king, had been incorporated, and, of courfe * * With refpecft to the rife of the cities of Italv, fee Muratori Antiq. Ital. Med. ^vi, torn. iv. The advancement of the Genman free cities appears to have been rather pofterior to that of the Italian ; their chief privileges having been acquired under the princes of the Swabian family. They attained their highefl pitch of grandeur in confequence of the famous Hanfeatick confede- racy, which began in the year 1241. See Abrege de Fhiilejire et du droit public d'Allemagne, par. M, Pletfcl. f M. Pleffel's Hiftory of the reign of Lc^vis VII. f Hume's Hiilory of England. exalted ENGLISH GOVERNMENT. 341 exalted into the rank of crown-vailals, it was agree- able to the general fyftem of the feudal policy, that they fhould have a voice in the national council •, and, more cfpccially, when extraordinary aids, befide their conrtant yearly rent, were demanded from them, as well as from the other tenants in capife, that they Ihould have an opportunity of re- fufmg or confenting to thefe demands. Their at- tendance in that ailembly was, at the lame time, of advantage to the fovereign, and even more fo than that of the fmall barons ; for the trading people, of all the inferior part of the nation, were the mod liable to be infulted and opprelfed by the nobles, and were of confequence proportionably attached to the monarch, who had found his account in protecting and fupporting them. It was impoflible, however, tliat all the members of every royal borough fliould allbmble in order to deliberate upon the bufmefs of the nation ; and in this, as well as in the fcparate concerns of each re- fpecfive community, it was natural for them to commit the adminiftration to particular commit- fioners or reprefentatives. In England, accordingly, it appears, that, after the boroughs had been incor- porated, and had been raifed, by their trade, to a degree of confideration and independence, they began to fend reprefentatives into parliament. The records of parliament, as has been before remarked, during feveral reigns after the Norman con([ueft, liave not been prefer ved ; fo that it is no lefs uncer- tain at what precife time the burgefles, than at what time the knights of fliires, made their firll appear- ance in that ailembly ; but as thofe two events pro-^ ceededfrom the fame caufe, the advancement of commerce and manufactures, it is probable that they were nearly coeval*. * Sir Henry Sptlman dcxiarcs that, from the mofl f;irefiil r xamin.iiion, he could find no traits of the reprefentatives of hori)iii;I»s in parhanieiit, ht- furc the latter nun of the r^'/n uf Heiirv HI. Glollar v. rarliamculuiii. In 342 HISTORICAL VIEW OF THE In the great charter of king John, It Is exprefsly ordained, that aids fhall not be impofed upon the boroughs without the confcnt of parliament ; from which it may be inferred, that thofe communities had then acquired the rank of foccage tenants, and that matters were at leaft ripened and prepared for their introduction into the councils of the nation. The firfi inftance, upon record, of the burgelTes at- tending in parliament, occurs in the forty-ninth year of the reign of Henry the Third ; when they are find to have been called by the famous earl of Leicefter, in order to fupport his ambitious views : but this is not mentioned by any hiftorian as a late innovation ; neither is it probable that this noble- man, at the very time when he was endeavouring to fcreen himfelf from the refcntment of the nation, would have ventured to open a new^ fource of dif- content, by making a fudden and violent change in the conlHtution. It is likely that fome of the bur- reifes had been prefent in former parliaments ; as we find that they afterv/ards were, upon two diffe- rent occafions, in the early part of the reign of Ed- ward the Firft : but the number of them was not fixed ; nor were they accuftomed to give a regular attendance. The policy of Edward the FIrfl led him to take hold of the circumftances, which have been menti- oned, for promoting the intereft of the crown. In the twenty-third year of his reign, direclions were given tofummon regularly the knights ot the fliircs, together with the burgeffes ; of which, after the example of the former, two were generally fcnt by each borough ; and from that period, both thcfe claffes of rcprefentatives continued to be conftant members of the leo-iflature. The fame circumftances, according as theyexifted more orlefs completely, in the other countries of Europe, were productive of fur.ilar changes in the conftitution of theiF national councils. In ENGLISH GOVERNMENT. 343 In ScotLmd, a country whole government and laws bore a great analogy to thole of England, not only from the common circumltances which ope- rated upon all the feudal nations, but alfo from tliat vicinity which produced an intercourfe and imita- tion between the tv/o countries, the parliament, as far back as we can trace the records of Scottilh hiflo- rv, appears to have been compofed of the greater thanes, or independent proprietors of land. The reprefentatives of boroughs are fuppofed by liifto- rians to have been firft introduced into its n.ectings during the reign of Robert Bruce ; which corref- ponds^to that of Edward the Second ; but fatisfac- tory evidence has lately been produced, that this event muft have happened at an earlier period*. From the flow progrefs, however, of trade in Scot- land, the number of burgefles in her national coun- cil was for a long time inVonfiderable ; and tlieir ap- pearance was limited to a few extraordinary cafes. The reprefentatives of counties became conftitu- cnt members of the Scottifli parliament, by the au- thoritv of a ftatute, which, being ftill prefcrved, afTords creat light with refpecT to the origin of this cftablifliment both in Scotland and in England. By that ftatute it is provided, that the fmaller vaflals of the crov/n ihould be excufed from perfonal atten- dance in parliament, upon condition of their fciul- imr reprefentatives, and maintaining them at the common expencc. This regulation was introduced bv James the Firft ; who, as he had refided lor many vears in England, and M'as a prince of learning and difcernment, Iiad probably been induced to copy this branch of policy from the inftitutions ot a peo- ple, among whom the monarchy had mailc greater advances than in his own country. But the- Scot- tifli barons, whofe poverty had given occafion to • this regulation, laid hold of the difpcnfation winch - Src Dr. Stuart's acute rr(V- nchc. into the ancient govcrnm. ntof Scothuul. 344 HISTORICAL VIEW OF THE it beftowed upon tliem, without fulfilling the con- ditions which it required ; and it was not until the reign of James the Sixth, that their obligation to fend reprefentatives into parliament was regularly- enforced*. In France, the reprefentatives of boroughs, ac- cording to the moft probable account, were firft in- troduced into the national afl'embly in the reign of Philip the Fair ; by whom they are faid to have been called for the purpofe chiefly of confenting to taxes f . It is remarkable, however that in the French convention of ejiatcs, no fet of men, corref- ponding to the knights of fliires in England, was ever admitted. The improvement of arts, in France as well as in England, contributed not only to raife the trading people, but alfo to difmember the ef- tates of many proprietors of land ; but the king does not feem to have availed himfelf of that litua- tion for obliging the fmall barons to fend repre- fentatives into the national, council. The greater authority poffciTed, about this period, by the French monarch, was probably the caufe of his not reforting to the lame fhifts, that were praclifed in England, to counterbalance the power of the ariftocracy. That a fovereign fliould court the lower part of his fub- jects, and raife them to confidcration, with a view of deriving fupport from them, is none of the moft agreeable expedients ; as nothing, we may fup- * In the rciirn of James the Firfl:, ive meet •vvjth two ftatutes upon this fubjf ct. By acl 1425, c. 52. it is required, that all the freeholders fliall give peifonal attendance in parliament, and nox-hy 2. procurator \ unlefs they can prove a lawful caufe of their abfence. Afterwards, by a ftatute 1427, c. 102. it is cnacled, " that the fmall barons and free tenants need rot " come to parliaments, provided that, at the head court of every " flieriffdom, two or more wife men be chofen according to the extent of " the fliire, who fliall have power to hear, treat, and finally to determine all " caufes laid before parliament ; and to c\M.{t Afpeaker, who fliall jftro/'c/.v all " p.nd fundrv needs and caufes pertaining to the commons in parliament." Fromthefe two acts of parliament, it is evident the king had firft endea- Tourcd to enforce the attendance of ail the fmall barons ; and, upon finding this impraAicable, had reforted to the expedient of introducing reprefen- tatives. f Tliis happened about the year 1300. See Pafqiiier I. 287.] In proof of this affertion, he refers to 5 Richard II. c. 4. But that UHtute proves the diretft contrarv. It declares, " That if any flicriff leaves ■• Gilt of hit returns any cities or boroughs which be bound, and of old time " were wont to come to the parliament, he Jball be puiv.pedm the manner as iciu '• a::^Jl^7niid tc Li di/K in thefuid cofein times pajl.'' Statutes at Large. Dcers, E N G L I S II G OVER N M E N T. p ; i peers. Although the fmall b:irons were, in gcner.il, excufed from perfonal attendance, yet, ..s crown- vailids, they had ftill a title to vote in parliament ; andfuch of them as attended, even in confequencc of an election, were at firft confidered in the fame liglit with the greater nobility. By appearing fre- quently, however, in the capacity of mere reprc- fentatives, not only elected, but having their charges borne by their conftituents, their prl\'i!ege of attcnd- incr ill their own ri2;Iit was scravluallv loft and for- gotten. In confequence. of the progrelTive alienation and divifion of landed property, tJieir perfonal in- fluence was continually linking, while that of mer- cantile people was liling in the fame proportion ; and, as thofe two claffes were thus brought nearer to a level, the landed gentry were often indifcrimi- nately chofen to reprefent either the one or the other. In fuch a fituation, it became at length an obvious improvement, that the deputies of the counties and boroughs, as by the circumftance oi their being reprefentatives, and refponfible to thofe who had appointed them, they were led into a fimi- larity of procedure, fliould meet in the fame houfe, and carry on their deliberations in common. It is conjectured by Carte the hiftorian, that this change •was not effecled before the latter part of the reign of Edward the Third ; but with refpcct to the precile time v/hen it happened, there feems to be no evi- dence whatever. The coalition of thefe two orders of deputies may perhaps be regarded as the great caufe of the autlio- rity acquired by the Engliili houfe of commons. — The members of that houfe were by this mealure exalted to higher conlideration and refpecl, from the increafc of their numbers as well as from ihc augmentations of tlicir property. They now repre- ieiued the mercantile people and tlie landed gentry ; who, exclufivc of thofe vvho n-mained iti a IKife ol fervitude, comprjfed the gre it 1)'h!\ nt tli.; pcopl.-, .inJ 352 HISTORICAL VIEW OF THE and who polTeflbd a great proportion of the national wealth. Of thoib two clafles of the free inhabitants, the landed gentry, for a longtime, enjoyed the firft rank ; and the deputies of boroughs were therefore frequently chofen among the neighbouring gentle- men, who, by reafon of their independence, were more capable than their own burgefies of protecting their conftituents. By joining together and con- founding thefe different orders of reprefentatives, the importance of either was in fome degree com- municated to both ; at the fame time that the peo- ple, under fo many leaders, became attentive to their common privileges, and were taught to unite in defending them. Had all the conftituents been to appear in the national council, they would have been a diforderly multitude, without aim or direc- tion : by choofing deputies to manage their parlia- mentary intereft, they became an army, reduced into regular fubordination, and conducted by intel- ligent officers. AVe accordingly find, that, even fo early as the reign of Richard the Second, the commons, when they had been induced to take party with the crown, were able to defeat the defigns of the nobility, and to raife the fovereign from the loweft extremity to the height of abfolute power. The fudden revolu- tion, produced at that time by the national repre- fentatives, was a prelude to thofe greater exertions, which at a fubfequent period they difplayedin a bet- ter caufe. In the principal kingdoms upon the continent of Europe, the /Z)/r(i. £/?^7,'6' was differently conftituted. It comprehended, as I formerly obferved, no other deputies but thofe of the trading towns ; a fet of mei], who, in comparifon even of the fmall barons, or inferior gentry, were long obfcure and infigni- ficant. In fupporting their privileges, the boroughs were not aided by the joint efforts of tlie counties; and ENGLISH GOVERNMENT. 3,-3 and the family intereft of the reprcfentative was not fuperadded to the weight of his perfonal wealth. In fome of thofe kingdoms, therefore, as in France and in Spain, the monarcli was enabled to break the ariftocracy, and to annihilate the national council, before the third cjlaie^ in confequence of the advancement of comm.erce, was in a condition to eftablifh its authority : In others, as in the German empire, the great nobles, before the deputies of towns had acquired much influence in the J/V/, re- duced the power both of that afi'embly and of the emperor to a mere fhadow. After the members of parliament had been accuf- tomcd to meet regularly in two feparate places, the three eftates were gradually melted down and lofr, in the divifion of the two houfes. The ecclefiarLical and lay barons, who fat in the upper houfe, were led, moft frequently, into a promifcuous delibera- tion ; and did not think it worth while to demand a feparate voice except in determining any nice or important queftion, by which the intereft of either was particularly aifected. But as government came to be more eftabliflied upon a regular plan, thofe ex- traordinary queftions occurred lefs frequently ; at the fame time that the progrefs of knowledge, and of the arts, diminifiied the influence of the clergy, and rendered them lefs willing to hazard a dirccl and avowed conteft with the nobles. The cuftom of deliberating promifcuoufly, was tlius more and more confirmed, and the exertions of a feparate negative, being coniidered as indications of obftinacy or a fac- tious difpofltion, were marked with difapprobation and cenfure, and at length entirely exploded. It appears that, in the time of Richard the Second, this innovation was not entirely completed. The two houfes, on the other hand, having occa- fion always to deliberate apart, acquired an inde- pendent authority, and were naturally regarded as diftinct branches of the legiflature. The refolutions of each houfe conftituted a feparate voice, the con- A a currcncc 354 tl I S T O R r C A L VIEW OF T H E currencc of which was neccflary in all the determi- nations of parliament. After the formation of the two houfes of parlia- ment, in the m^anner juft mentioned, each of them came to be poflefled of certain peculiar privileges ; which, although probably the objects of little atten* tion in the beginning, have fmce rifen to great po- litical importance. I. The houfe of commons, from the nature of its original eftabliflimient, obtained the fole power of bringing in money-bills. I'hi.s was not, at hrft, regarded as a privilege ; but was introduced merely for the lake of difpatcli. The primitive houfe of com- mons was compofed of burgelTes only, empowered to grant the king a fupply, by one general agree- ment, in place of the feparate bargains, which had formerly been made with each borough. In con- ducing this bufmefs, each borough feems to have directed its reprefentatives with refpecl to the rate of aileffment to which they fliould confent ; and by colle«51:ing thefe particular direftions, the fum total to be granted by the whole trading intereft was eaiily alcertained. In a matter fo fimple as that of determining the extent of the contribution which, oil any particular occaiion, they were willing to make, the conftituents found no difficulty either in preparing their deputies, by exprefling a previous opinion upoti the fubjeft, or by lending them clear and pointed inftruclions, in cafe, from any new exigence, after the ineeting of parliament, an unex- pe^ed demand was made by the fovereign. According to this conftitution of parliament, the impolition of taxes produced no intercourfe between the two houfes ; but each houfe confented to the exactions laid upon that order of men with which it was connected. This method of procedure was continued fo long as the houfe of commons confifted only of burgeilcs ; but when the deputies from counties came to lit and to deliberate along with them. ENGLISH GOVERNMENT/ 3,-- them, a variation was necefTary. The deputies of tlie counties having, by this change, alTumcd en- tirely the character ot reprcicntativcs, came natu- rally to be limited, in the lame manner as the bur- geffes, by the inftruclions of their conititucnts*. But thefe two orders of men, who now formed the cumulative body of the commons, were connecled with different parts of the nation ; and, while the burgeffes were interefted in the taxes laid upon the boroughs, the county members had an equal con- cern in fuch as were paid by the landed gentry. In their promifcuous dehberations, therefore, upon the fubject of taxation, it was found convenient, that each of them fhould not confine their views to that part of the community which they reprefented, but fliould agree in the duties to be paid in common by the whole of their conftituents ; and, as the taxes paid by landed gentry or fmall barons were of the fame nature with thofe which were laid upon the great barons or peers, this naturally fuggeftcd the idea of a general aireflment upon the na- tion at large, to be impofed by the concur- rence of both houfes of parliament. Hence the introduclion of tenths, fifteenths, and fubfidies ; the two former of which were taxes upon perfonal pro- perty ; the laft, upon eftates real and perfonal. In the impofition of fuch taxes, both houfes of parlia- ment were equally concerned ; and the concurrent i of both was therefore held requifite. The houfe of commons, however, if the precife fum to be granted by them had not been prcvioufly Ipecified, were accuftomed, in cafes of this nature, to confult their conftituents, and to regulate their conduct by the inftrudions which they received. They could have no debate, therefore, on any occafion, upon the fu])jec1: of taxation ; as their pro- vince extended no farther than merely to declare * In a parliament held in the year IJ39, that is about the middle of the reign of Edward the Third, wc find the knij^hts of ([\ncs pleading that they durft not j^rant a tax without the confem ol their coullitueiit>. Carit. A H a the 356 HISTORICAL VIEW OF THE the determination of their ccnftituents. Upon this account, it was to no purpofe that any particular tax fliould firil become the fubjecl of deliberation among the peers, and aftervv^ards be fubmitted to the conhderation of the commons ; lince, after the fulleft and moft laborious difcuffion of the qucftion by the former, no other point could be confidered by the latter, but whether the intended fupply was ■agreeable to their inftruclions. The moft expedient courfc in order to fave time and ufciefs difputation, was evidently, that the commons fliould begin with ftatinp" the exaft fum which they had been empow- ered to grant ; and that the tax propofed by them ihould afterwards be examined and canvafl'ed in the houfe of peers, whofe conduct, in this as well as in other particulars, was not fubjecl to any direction or control. From the fame circumiftance which introduced the practice, that every propofal for a tax ihould originate in the houle of commons ; it became cuf- tomary that every fuch propofal or bill, when pre- fented to the houfe of peers, fhould receive their fimple aflent, or negative, without variation or amendment. It could anfwer no purpofe, to re- turn the bill, with amendments, to the houfe of com.mons ; beca'^ the members of that houfe had no power of deliberating upon fuch matters, and, having once declared the opinion of their conilitu- ents, could not venture to deviate from it in any fubfequent ftage of the buhnefs. It is probable, at the fame time, that this mode of conducting the bufmefs of taxation was promoted by the king; who, finding the people of inferior condition moft ready to acquiefce in his demands, was willing that, by taking the lead in the impoli- tion of taxes, they might incite the nobility to fol- low their example, and m.ake them aftiamed of de- clining a burden v/hich they were much more able to. bear. Such ENGLISH C O V E R K M E N r. 357 Such appears to Imvc been tlic origin of this important privilege, which is now juilly regarded by Engliihmen as one of the greatcit pillars or" their free conititution. Like many other parts of tlie Britiih government, it arofe from views of inniie- diate conveniency ; and its dilfant confequences were neither forefeen nor intencied : but, after it had re- ceived the fanclion of immemorial cuil:om, it was prefcrved inviolable, without any confideration of the circum.ftances from which it had taken its rife. As the commons interfered by degrees in legiflation, and in various other branches of 1)ufinefs, their intcr- politions became too cxtenllve and complicated, to permit that they fhould be regulated by the opinion of conftitueats living at a diilance. In confequencc of more liberal view^s, itcame alfo to be conlidered as the of duty each reprefentativc, to promote the gof^l of the nation at large, even in oppofition to thein- terelt of that particular community which he repre- fented. The inftruclions, therefore, of conilituents w^ere laid aiide, or regarded as producing no obliga- tion, upon any fet of deputies, to depart from the niclates of their own confciencc. The expediency of this important privilege, with which the houfe of commons came thus accidentally to be inveiled, will fall more properly to be examined hereafter. 2. Upon the eftablifliment of the tv/o houfes of parliament, the fupreme judiciary power was, on the other hand, appropriated to the houfe of peers. The iurifdicHon belonging to the Saxon Wittenage- mote v/as exercifed promifcuouily by all the mem- bers of that allembly ; and in the Nornian })arlia- ments, both before and after the formation of the aula regis, the fame rule was obferved. It leems, however, to be a principle of natural law, tliat wlicn a magiftratc of any fort is invefted wilh jurikiiaion, he is bound to a perfonal difchargc of the duties ot his oflice, andhas no power tocommitthccxercifeof them to adclegatc. The public by whom he is appointed, has a ri'A'ht :53' HISTORICAL VIEW OF THE a right to the fruit of that capacity or diligence, upon account of which he was felecled to the office ; and as, in the deciiion of law-fuits, no fecurity can be given that different individuals will aft precifely in the fame manner, the appointment of a delegate for the difcharge of this employment, would be to im- pofe upon the public a different rate or meafure of fervice from that which was due. Upon this prin- ciple, the members of the houfe of commons, having only a delegated power, were excluded from the exercife of that jurifdiclion with which the members of parliament, in general, had been anciently inveft- ed. Their difqualilication, at the fame time, was ren^ dered ftill more apparent, by their acting in confe- quence of inftruftions from their conftituents. The counties and boroughs might be in a condition, from their general information, to inftrucl their deputies concerning the taxes to be impofed, or even con- cerning any law to be enacted ; but were altogether incapable of directing them how to proceed in the determination of law-fuits. The deciiion given in any caufe muff depend upon a complex view of the proofs and arguments produced in court ; and therefore no perfon who is abfent, efpecially in cafes where the chief part of the bulinefs is tranfacleci viva voce^ can form any proper judgment concerning it. Upon this account, the only members of parlia- ment, qualified to act as judges, came to be thofe who fat in their own right, who had the liberty to form their opinions upon the fpot, and, by an im- mediate inveftigation of the circumftances, were capable of deciding from the impreflion made upon their own minds. From the fame caufe, therefore, which beftowed upon the commons the right of fuggefting taxes, the houfe of peers became the ultimate tribunal of the nation, and obtained the power of determining, in the iail refort, both civil and criminal actions. Thus, ENGLISH G O V E R N M E N T. 359 Thus, while one of thcfe branches of the Icgifl.uure enjoyed an immediate accefs to the purfes of the people for the pubHc fervice, the other was intrulU cd with the guardianfliip of th.eir Hvcs and fortunes. What was acquired by the commons, in one depart- ment, was fully compenl-ited by wlut fell to the fhare of the peers in another ; fo that the confti- tution remained upon its ancient balis, and was kept in equilibrio by an equal dillribuiion of privi. leges. It ma7 farther dcferve to be remarked, that, by the excluiion of the commons from the judicial power, the fupreme tribunal of the nation came to be compofed of a moderate number of perlbns ; a circumftance highly conducive to the uniformity of their deciljons, as well as to the expedition and re- gularity of their procedure. When law-fuits, before the Norman parliament, had become frequent, it was found inconvenient to determine them in a full meeting, and they were brought, in the firll inftance, betorc the aula rfgis. But even as a court of review, the parliament, after the deputies of boroughs -and counties were obliged to give conftant attendance, was perhaps too nume- rous ; while by the divifion of its members into two houfcs, they were prevented, at leaft according to their ufual forms, from co-operating witii one another in the diftribution of juftice. 'I'he fame re- gulation, therefore, which was introduced from the peculiar lituation of the lords and of the comnu)ns, was afterwards recommended, no doubt, and fup- ported by general conliderations of ulilit)'. 3, The fupreme judiciary power being" limited to the houfe of peers, the right of iwpeachmcr.t was of courfe devolved upon the commons. When perfons intrufted with great ofliccs under the crown, or enjoying any fliare in the public ad- miniftration, were guilty of malverfation in ollicc, or of what arc cailal high rnifdemeanors, it was frequently 36o HISTORICAL VIEW OF THE frequently thought necelTary, that they fhould be tried before the higheft court in the nation, whofe weight alone was adequate to the tafk of bringing fuch powerful offenders to juftice. In the earlier periods of the Englilh government, the national council was accuftomed to enquire into the conduct of the different executive officers, and to punifh them for their offences. The king himfclf was not exempted from fuch inquiry and puniihment, more than perfons of inferior rank. On fuch great occa- fions, the profecution, inftead of being committed, as in ordinary crimes, to the management of an individual, was ufually ccnduc3;ed by the aifembly, who aded both in the capacity of accufers and judges. This was, doubtlefs, a praftice ill calculat- ed for fecuring a fair trial to the delinquent ; but it was no more than what happened in criminal trials before the ordinary courts of juftice, where the king was both judge and profecutor. Upon the eftabliihment of the two houfes of parli- ament, it became a natural and obvious improve- ment, that, as the power of trying thofe offences was reftricled to the houfe of peers, the privilege of conducting the accufation fliould belong to the com- mons ; that branch of the legiflative affembly, which had no fliare in the judicial department, though it was no lefs concerned than the other to prevent the abufes of admin iftration. In this mianner the two characters of a judge and a profecutor, which, in the ordinary courts, had been placed in different hands by the cuftom of appointing deputies to officiate in the name of the crown, canie likewife to be feparated in the trial of thofe extraordinary crimes, where, from the danger of arbitrary meafures, an amend- ment of the ancient method of proceeding v/as mofl efpecially requifite. 4. Be'fide the foregoing privileges, which, from the influence of peculiar circumftances, were acquir- ed by the different branches of parliament, either houfe ENGLISH GOVERNMENT. 361 houfe was led to afl'ume the power of afccrt?/ininpj the perfons of whom it was compofcd, a jiirildiction and authority over them, and the cognizance of the feveral risihts and immunities bclona-inc: to their own ordor. Hence it came to be cftabliflicd, that the houfe of commons iliould determine qucflions concerninGT tlie election of its own members ; and that every bill affecting the rights ot the peerage {hould take its origin in the houfe of peers. 'Jhe privileges, arifing from this principle, which have been acquired by the houfe of commons, were after- wards greatly multiplied, and varioully fubdividcd, in confcquence of the attention given to the forms of procedure, and to the rules and maxims ncccflary for fecuring its independence. Sect. III. Concerning the Manner of clewing the niiti- onal Reprefentaiivcs, and the Forms of Froadurc in Parliament. THE eftablifhment of a houfe of commons, con- fifting entirely of reprefentatives, required a fct of regulations for the election of its members. From the different fituation of the counties and boroughs, the depuiies of thofe two claflcs of men came to be chofo'.; in a very different manner. I. l/T)on the firft incorporation of a borough, the nomination of particular perfons, for dilhibutiiig juftice, for managing the funds, and for executing the other bufinefs of the communit)', would fccm naturally to belong to all its members, who have a common concern in thofe branches of adminiftration. In thofe towns, accordingly, where commerce had introduced a degree of wealth and independence among the bulk of the inhabitants, fuch a popular plan of [government appears to have been generally adcptedf But in many of the borouglis, M-hole track- was more in its infancy, the people of inferior rank were ftili too poor, and in too Icrvilc a condition. 302 HISTORICAL VIEW OF THE to cliilm the privilege of clecllng their, own admini- ftrators ; and by their neglecting to intermeddle in public bufincfs, the care of every thing relating to the community was devolved upon particular citi- zens, diflinguilhed by their opulence. When the boroughs were afterwards permitted to have a voice in parliament, the differences in their condition occaiioned the fame, or even a greater diveriity in the mode of choofmg their reprefentatives ; and, in a long courfe of time, many other varieties were added from the operation of accidental circumfian- ces. In fome towns, therefore, the reprefentatives were chofen by a confiderable part, in others, by a very fmall proportion, of the inhabitants ; in many, by a few individuals, and thefe, in particular cafes, directed, perhaps, or influenced, by a iingle perfon. Two forts of inequality were thus produced in tsie reprefentation of the mercantile and manufac- turing interefl : the one from the very different magnitude of the boroughs, vi^ho fent, for the moft part, an equal number of reprefentatives : the other, from the very different number of voters, by whom, in each borough, thofe reprefentatives were chofen. But this inequality, whatever bad confequenccs may have flowed from it in a later period, was ori- ginally an object of little attention ; and excited no jealoufy or complaint. The primitive burgeffes were fent into parliament for the purpofe chiefly of making a bargain with the crown, concerning the taxes to be impofed upon their own conilituents ; and the reprefentatives of each borough had merely the power of confenting to the fum paid by that community which they reprefentcd, without inter- fering in what was paid by any other. It v/as of no confequence, therefore, to any one borough, that another, of inferior fize or opulence, fliould have 7i3 many reprefentatives in the national affembly ; fincc thofe reprefentatives, as far as taxes were con- cerned, could only protect their own corporation, but ENGLISH GOYILR N M ]L N T. ^,6^^ but were incapable of injuring or Imrting tlicir neighbours. So far were the boroughs fron\ cntcr- taining^ajealoufy of one another upon this account, that fome of them found it more clii;iblc to acqui- efce in whatever aids the king thought proper to demand, than to be at the cxpcncc'of fupporting their deputies in parliament ; and were willing to renounce the privilege, in order to be free of the burden attending it. Many inftances of this occur in the Englifh hiftory, from tlie reign of PMward the Firft. Mr. Browne Willis has produced a large lill of boroughs, which had early fcnt rcprcfentatives into parliament, but which lo'ff that privilege by difufe ; and there is no doubt that fevcral towns, which had been incorporated, and which obtained the denomination of boroughs, exerted themfclvcs from the beginning, and fuccefsfully, in avoiding any parliamentary reprefentation. Neither was it originally of much Importance to any parliamentary borough, in what manner its deputies were chofen ; for thefe, being inllruclcd by the corporation, with refpect to the prccife amount of the fupply to be granted, were only the melTengers, who declared the will of their confti- tuents ; and as they were not entruftcd with dif- cretionary powers, their behaviour occafioned no apprehenfion or anxiety. The honour of being the reprefentative of a borough was, in thofe times, little coveted ; and the privilege of voting in his clcclion was vet lefs. The rank which the burGfclTes held in parliament was too low to become the objecT: of' much intereft or folicitation ; and thofe who voted for a burgefs, were fo far from gaining any thing by it, that they had fcarcely an opportunity of oblig- ing their friends. 2. The knights of thefliircs were at firft elcclcd, in each county, by a meeting compared of thclinall barons, or valTals of the crown. Of this, from tlu' nature of the thing, it fccms hardly pofliblc to doubt. The 364 HISTORICAL VIEW OF THE The fmall barons had been originally members of parliament, but were excufed from perfonal attend- ance, upon condition of their fending reprefenta- tives. Who could have a right to choofe thofe repre- fentatives, but the perfons whom they reprefented, the perfons by whom they were fent, and who bore the charges of their attendance ? But although the vaffiils of the crown only had, in the beginning, a right to interfere in the appoint- ment of the knights of lliires ; the rear-vaffcils^ or fuch as held their lands of a fubjecl-fuperior, were afterwards admitted to a ihare in the election. This, although an important change in the conftitution of parliament, has paffed, like many others, without any notice of cotemporary hiftorians. Of the cir- cumilances from wliich it proceeded, a probable conjeclure fccms to be the utmoft that can be at- tained. The fmall barons or vaffals, who, exclufive of the nobility, held their lands of the cro\vn, and thofe Avho held of a fubjcct-fuperior, were fcparate orders of men, who originally, by their fituation, were removed to a great diftance from each other. As members of the community, they appeared to be diftinguiflied moft remarkably in two refpecls. The valTals of the crown fat in parliament: thofe of a fubjecf-fuperior were members of his baron-court. The former were liable for aids, and for the other feudal incidents, to the king : the latter were bound, for limilar duties, to their inferior lieTC lord. But tiiefe diftinclions, arifmg from the feudal policy, continued no longer than while that fyftem remained in its vigour. After the reign of Edward the Firft, the fmall barons, having ceafed to attend in parliament, otherwife than by reprefentatives, were at length underftooci, unlefs when particularly called by the king, to have no more a feat in that affemblv than the vailais of a fubjecl-fupcrior. With ENGLISH GOVERNMENT. 365 With refpecl to the feudal incidents, great altera- tions, in the courfe of time, were alfo produced. The demefnes of the crown, together with the ex- traordinary aids, and other incidents, drawn from the crown-vaflals, were the only original funds for fupporting the expence of government. But when the charges of the public, in confequence of the gradual advancement of focicty, had from time to time been encreafed, thefe funds became at Icngtli infufficient ; new fupplics were demanded by the king ; and, after ftretching as far as poiTible the ancient duties of the crown-vafTals, it was found neceffary to levy an alTelTment upon all the proprie- tors of land, without confidering whether they held immediately of the king, or of a fubje<5l. The greater part of the public burdens came thus to be impofed upon the nation at large 5 and the cafual emoluments, which the crown derived from its immediate vafials, became, in proportion, of little importance. In this lituation, there was no longer any eflential difference between the fmall proprietors of land, who held immediately of the crown, and thofe who held of a fubjecl. Neither of them had any right, in their own perfons, to fit in the houfe of com- mons. Both of them, according to the later noti- ons of property, had the fiime full power over tlic refpecTive eftates which they polfcired ; and the eftates of both^ were equally fubjecl to the taxes im- pofed upon the counties. Both of them, therefore, were equally beholden to the knights of the fliires, by whofe confent thofe taxes were impofed, and who had it in their power to fecure eitlicr the one or the other from oppreffion. As thofe two dalles of men thus reaped an equal benefit from the fcr- vice of the knights of (lures, it became reafonablc that they fliould contribute jointly to the expence with which that fervice was attended ; and if they joined in maintaining the county-reprcfcntailvcs, it %\'as 366 HISTORICAL VIEW OF THE was no lefs equitable, that they fliould have a A'^olce in their election. If they fubmitted to the burden, they could not decently be excluded from the pri- vilege. By this relaxation of the feudal fyftem, the foun- dation of the houfe of commons was enlarged ; and its eilabiifhment was rendered more extenfiveiy ufeful. The knights of the Iliires became properly the reprefentatives, not of one clafs, but of the whole gentry of every rank and defcription. All the in- dependent property in the kingdom was, according to this conftitution reprefented in parliam.ent : the lords appeared in behalf of their own poffeflions ; the inferior landed interefl fell under the care of the county-members ; and the burgelTes were entrufted with the protection of that wealth which was em- ployed in trade. Such, in all probability, were the circumftances, from which the rear-vaflals obtained a fhare in the election of county-members ; but at what time this change was produced is very uncertain. Mr. Hume has concluded, that it took place in confequence of an act of parliament in the reign of Henry the Fourth. But when we examine that itatute, it does not appear to have introduced any fuch regulation : on the contrary, it fuppofes that proprietors of land, not holding directly of the crown had been formerly entitled to vote for the county-members ; and makes a general provifion for fecuring the freedom of their election, as well as for preventing undue returns by the fheriff*. A late refpectable hiftorlan, notwithftanding all the light which has been thrown upon the fubject in the prefent age, declares it ftill to be his opinion, not only that the knights of counties were coeval with the exiitence of the Englifh parliament j but * 7 Henry IV. c. 15.. See a farther pcovinon to the fame purpoftv, ir that, ENGLISH GOVERNMENT. 367 that, from the beginning, they were chofen, as at prefent, in a joint meeting of the rcar-vaflMs, and thofe who held immediately of the crown*. The former part of this opinion h.as been already exa- mined. With regard to the latter, it is totally in* conliftent with the original plan of the feudal go- vernment. But what puts the matter beyond all poiiibility of doubt, is, that in Scotland, whofe con- llitution, from a fimilarity of circumftanccs, as well as from imitation, is extremely analogous to that of England, but who, from the flow progrcfs of arts, has retained a number of her primitive regulations ; in Scotland, the original praclice has been invari- ably continued ; and, from the iirft introduction oi county-reprefentatives to the prefent day, no perfon who does not hold his lands immediately of the crown, whatever be the extent of his property, has ever been permitted to vote in a county eleclion |. When a number of the crown-vallals had been excufed from perfonal attendance in parliament, on account of the fmailnefs of their fortunes, it might have been expected that fome rule would be eftablilh- ed, concerning the precife extent of property which gave a title to this conceffion ; and that an exact line of partition would thus be formed between the fmall barons, or gentry, and the great barons, or nobiUty. It appears, however, that no fuch rcgu- lation was ever made. The liberty of abfence enjoy- ed by particular members of parliament, fcems to have depended, at firft, upon the mere will of the fovereign, who never thought of reftraining him- felf with regard to the terms upon which he granted this indulgence. To procure this liberty was the ^im of by 'tar the greater part of the crown-yaflals ; as to prevent the unreafonablc extcnfion of it, waS the great objecT of the king ; and the exemption * See I.oid Lyttclton's Hinorv c>( Ilcni y 11. , • . r t Holdin- of the prince of Waks '^ 'U ScoUaud Viewed Ui the fame lielu V, 1th hoIaijiL' oi tlit king. 568 HISTORICAL VIEW OF THE was, by cuftom, eftabliihed in favour of Individuals, before any precautions had been fuggefled for af- certaining its boundaries *. The want of a general rule to define the limits, in point of property, between ihefmall and the great barons, appears to have produced an irregularity in this part of the conftitution. Thofe crown-vafl'als whofe attendance in parliament had been difpenfed with, continued ever after to be excluded from that sifembly, and their pofterity remained in the fame iituation, however great the fortune which they might happen to acquire. On the other hand, thofe opulent barons who continued, in their own right, to fit in parliament, after the time of Edward the Firft, retained for the future their feat in the houfe of peers, notwithftanding all the viciflitudes of their fortune, and whatever might be the degree of po- verty to which they were afterwards reduced. Pro- perty^ the natural fource of influence and authority, was, in this manner, detached from political power ; while indigence, the parent of ferviiity and depend- ence, was often inveiled with privileges which he was not qualified to exercife. The form.er incon- venience might, in particular cafes, be removed by the interpofition of the fovereign ; who could, at pleafure, create any commoner a member of the houfe of peers : but the latter admitted of no reme- dy ; iince a peer, v/ho had fquandered his eflate, could not, unlefs he committed a crime, be deprived of his rank; and fmce by that rank he was excluded from the ufual means of repairing his fortunef. * It feems at one time to have been intended by Edward I. that perfonal attendance in parliament fli.ould be required from every landed proprietor, whofe vearly rent was above 2cl. This was the rule prefcribed to the iberifis of couritics, in fummoning the crown-valTah to an afTembly held in the eleventh of that king's reign. This was alfo the extent of property in Scot- land, which diftir.guiflied the j;-ii.'/:? barons, or thofe who were ^'- cotijlrenz'ud to come to the parliament or general council." Pari. 1457, c. 75. f There occurs, in the reign of Edward IV. anacfl of parUament, declaring, jn the cafe of George Nevil, duke of Bedford, that his title of honour, as a fluke, was void and extinguifiied, in refpcdt of his poverty, by which he was iiicapsblc of fupporting his dignity. As ENGLISH GOVERNMENT. 369 As there was no regulation concerning ihc gtrnfc/} extent of property, from M'hich a baron might be cxcufed from attending in parliament, fo there was originally none with refpect to the L'jji which enti- tled him to vote for a county-member. All the crown-vaffals whatever, whofe perfonal attendance was difpenfed with, had ofcourfe a title to choofc reprefentatives, and were bound by their joint contribution to defray the expence of maintaining them*. But when landed property had undergone fo much divifion, that the poil'eihons of many indi- viduals were become extremely infignificant ; more efpecially after the rear-valTals had been joined with thofe who held immediately of the crown, in vot- ing for the county-members ; the poorer fort of pro- prietors endeavoured to excufe themfelves from con- tributing to the fupport of national reprefentatives ; ;ind, upon being relieved from that burden, had no longer a pretence for interfering in their elecT:ion. By an acl of parliament, in the reign of Henry tlic Sixth, it is provided, that the knights of fliires (hall be chofcn by perfons reliding within the fame county, and poflefled of lands or tene- ments, of which the yearly rent, free from all charges, amounts to forty fliillings f. By another ftatute, in the fame reign, it is declared, that tlie voter fliail have this eftate within the county where the election is made j. Mr. Hume is of opinion, that forty fnillings, at that time, making allowance for the alteration in the weight of the coin, and in the price of commodities, was equivalent to near t\\ en- ty pounds of the prefent money. According as parliament had occafion to deter- mine a greater variety of queftions, and aitaineil * With rcfpcc9; to the contribution laid upon the counties for maintaiiv- ing the mrmbcis, lie Madox Firmd-hur'ri. It was at firit Uvicil by the Wm;;'* Wiii; and afterwards by aifl of parliament, from the time ol Kiclurd II. St.-- 19. Ricii. I!, c. 12. I 8 Henry VI. c. 7. t -- H-i!yVI. c. s. B b more 370 HISTORICAL VIEW OF THE more experience in difcuffing the bulinefs which came before it, the forms of parliamentary proce- dure became an objecl of greater attention, and re- ceived, 3l'S we may eafily imagine, a variety of im- provements. The appointment of a preiident, in order to prevent confufion in delivering opinions, to declare the refult of a debate, and even, in fome meafure, to direcl the method of handling any queftion, was a ftep fo neceflary in a nume- rous meeting, that we meet with it as far back as there are any records of the Englifh nati- onal council. The lord high fteward, as I for- merly took notice, was anciently the perfon who, in abfence of the king, prefided in that afl'embly ; and when that officer no longer exifted, the chan- cellor, who then rofe to the chief confideration in the king's houfehold, was commonly entrufted with this department. After the divifion of parliament into two houfcs, this officer continued in moft cafes to prefide in the houfe of peers ; but in that of the commons, whofe deliberations were totally feparate, another prefident became neceiTary. From the primitive fituation of the commons, who, in all cafes, were inftruc'led how to acT:, they had no opportunity of debating upon any fubjecl ; but they required a perfon to intimate their deter- minations to the king ; and for this purpofe they, at firft, elecTcd Tifpcakcr. The farther tlie bufmefs of that houfe was extended the more they ventur- ed to form refolutions without the advice of their conftituents ; the power and privileges of their fpeaker were enlarged in proportion ; and he at length obtained the province of an ordinary prefi- dent. The firil election of this officer, w^iich is upon record, occurs in the firft parliament of Rich- ard the Second. From the influence and dignity acquired, in that reign, by the commons, their fpeaker was exalted to an eminent ftation ; and the perfons who enjoyed the office became fo confpicu- ous, as to attract the attention of the public. One ENGLISH GOVERNMENT. -i One of the principal branches of bufincfs wliicli fell under the confideration of parliament was Icgif- lation. The firft method of conducling a meaiure of this kind was by a petition from parliament atl- drefl'ed to the king, fetting forth fome particular grievance or inconvenience, and requefting that it fliould be removed. To the king belonged the di- rection both of the executive ancl judicial powers ; and, agreeably to the fpirit of a rude age, he was originally uncier no reilraint in the excrcife of his prerogative, farther than what might arife from his apprehenfion of incurring the public difpleafure. By a ftatute it was propofed to limit the fcn-mcr difcretionary pow^r of the king, and, out of refpccf to his dignity, any propofal to this effect was made in the form of a requeft, that he would confent to the intended regulation. As every new la\\' was, in facl, an innovation of the ancient eflablifhment, it required the agreement of all parties concerned ; that is, of the national alTembly, including virtual- ly the whole people, and of the king, whole power was to undergo a limitation. When the petition, therefore, had pafled the tw^o houfes, and had obtain- ed the confent of the king, it became an act of the legiflaturc. The petitions which had thus been granted, dur- ing the courfe of a parliament, were afterwards digefted into the form of a ftatute; and, as the exe- cution of this tafk required a degree of legal know- ledge, it was devolved upon the principal judges of the kingdom. From the obfervation, it is faid, that miftakcs and abufes were committed in a matter of fuch importance, it w^as provided, in tlic reign of Henry the Fifth, that the ftatutes fliouKl be dr.iun up by the judges before the end of each parlia- ment ; and, in tlie reign of Henry the Sixth, the prefent mode of prefenting bills to parliament, al- ready digefted in the form of a ftatute, was firft in- troduced*. ♦ Sec Blackftonc's Cymmcutarici. B b 2 r'ur 372 HISTORICAL VIEW OF THE For fome time after the introduclion of the com- mons into parliament, no notice was taken of them in the characler of lesfiflators. The burG;efres who compofed the iirft houfe of commons, were not re- garded as the advifers of the crown ; and if on any occasion they obtained a redrefs of grievances, it was merely from this conlideration, that the fupply expected from the boroughs could not otherwife be proc'-^red. In the beginning of the reign of Edward the Third, the commons are mentioned in the cha- racter of petitioners ; and the ftatutes are faid, in the preamble, to have been ordained " at the re- " quefl: of the commonalty of the realm, by their " petition made before the king and his council in " the parliament, by the ailent of the prelates, earls, " barons, and other great men aflembied at the faid " parliament." The union of the knights of fhires, in the fame houfe with the burgeffes, contributed quickly to beftovv- a deliberative voice upon the ag- gregate body of the commons ; and in the reign of Richard the Second, we find them interfering in public regulations of the higheft importance*. In digefting the ftatutes, however, the old ftile was continued, until the reign of Edward the Fourth ; when laws are faid to be eftabliffied by the ad-vice and co7ifcut of the lords^ at the rcquc/i of the commons^ and by the authonty of the fame parliament |. From the primitive method of conducling bills for a new law, in the form of a petition to the king, ■was derived the cuftom that they fliould take their origin from parliament, and that the king fiiould give no opinion concerning them, till they had been approved of in that affembly. As the king had no inclination to limit his own difcretionary powers, it was never fuppofed that a bill for that purpofe would be fuggefted by the crown. All that could be expecl:ed from the fovereign, in a matter of this nature, was,, that he would be gracioufly * See Gurdon's J-tiltory of Parliament. f Sec the Preamble to tliofe Statutes. pleafed ENGLISH GOVERNMENT. 373 pleafed to comply with the dcfires of his people, communicated to him by the national council : and when a bill had come to be agitated in parliament, it Vv'as not yet confidered as the requelt ot the nation, and could not, therefore, be regularly preiented to the king, for the royal aiTent, before the two houfes had given their authority for tliat meafure. Such was the original foundation of a maxim, which is now regarded as one of the main pillars of theBritilh conftitution; that the king's negative upou bills ihall not be interpofed, until they have under- gone the final difcuflion of the two houfes of parlia- ment ; and, as a confequence of this, tha the fliall not take notice of any bill depending in parliament, until it fliall be communicated to him in the ufual and parliamentary manner. The eiTect of this' maxim, in fupporting the democratical part of the govern- ment, is now univerfally admitted ; but that it was dictated by a regard to the interell of the people, or from the view of encrealing their weight in the exertions of the legiflature, there is no reafon lo believe. It is probable, on the contrary, that the form of procedure above mentioned was thought advantageous, or at leaft refpeclful, to the ibvereign ; as it prevented his being troubled with folicitations to limit his power, until there was an immediate ne- ceflity for it. But, in reality, this method of con- ducting the dehberations of the legillature, was not the fruit of any preconceived fyflcm of policy, nor the refult of any claim of right, either upon tlie part of the king or parliament ; it arofe merely from the nature of the bufir.efs under confidcralicui, which was mod conveniently brought to an illue in that manner ; and, as this gave rife to a practice, which was obfervedwith fome degree ot unitormily, ,fo, in the revolution of ages, the ancient uiage, whofe utility became daily more oblervable, was invefted with complete lc,^al authority. It merits attention, however, that what has been QblcvYQd, concerning the mctJiud of ordinary legil- lation, 374 HISTORICAL VIEW OF THE lation, is not applicable to the impolition of taxes. As the effecl of a ftatute was to afcertain and determine the behaviour of the king, and con- fequently implied a privilege gained by the people ; that of taxation was to beftow fome emolument upon the crown, and to lay a correfpondent burden upon the nation. An oppofite courfe, therefore was fol- lowed in thofe two branches of government. The people were underftood to be the prime movers in the former ; the king, in the latter. The propofal for a new law proceeded upon a petition from parlia- ment to the crown. The propofal for a new tax pro- ceeded upon a requeft or folicitation of the crown to parliament. Each of thefe parties having fomething to beftow which the other wanted, they both be- came coy and referved in their turn, and, by their addrefs and perfeverancc, were enabled to extort re- ciprocal advantages. When the king was in want of money, he oftered his confent to beneficial regu- lations, upon condition that certain taxes were im- pofed. When parliament were about to grant fupplies to the crown, they took advantage of its neceffities, and, as a preliminary article, ftipulated the redrefs of grievances. Upon this principle, that taxes are granted by parliament, at the defire of the king, is founded a rule, at prefent, " that the houfe of com.mons fhall " receive no petition for any fum of money relating" " to the public fervice, but what is recommended " from the crovv^n." And when a money bill is offered to that houfe, it is neceffary, that the chan- cellor of the exchequer, or fome other officer of the crovv'n, fhould declare, " that his majefty, hav- " ingbeen informed of the contents of the faid bill, *'' recommends the fame to the confideration of the " houfe*." After this preliminary ftep, a bill for the impolition of taxes is conducted in the fame * See Ilatfell's Proceedings in the Ploure c^f Commons. covrfe. ENGLISH GOVERNMENT. J . y courfc, and paiTes throuj^h limilar fta'^cs, with cvcrv other matter which comes under the determinauon of the len^iihiture. CHAP. VII. j4 Iterations in the State cf the ordinary Courts of Ji/Jiiic. T -L HE rcign of Edward the Eirft is no lefs diftin- guiihed by inftitutions of grecU importance relatin^^ to the diftrihution of juftice, than by thofe which have been mentioned with regard to the legiflativc authority ; and in both thefe particulars we may trace back to this period, the introduction of that regular fyftem which we at prefent enjoy. The chief of thofe inftitutions refpecling the excrcife of the judicial power, and fome of the moft remarkable confequences with which they were attended, wc fliall proceed to examine. Sect. I. EJtahlijlwient of the Courts of Common Law at Wefhninfler. THE aula regis, which, after the Norman con- queft, had rifen by degrees out of the high court of parliament, was producliive of great advantages, by facilitating the diflribution of juftice. A full meeting of parliament could not be obtained, unlefi. upon lingular occafions ; but this tribunal, confin- ing of a fmall number of judges, and thefe com- monly attending the king's perfon, could eallly be- licld upon any emergency, and was ready to t ikc cognizance of every complaint. Although 376 HISTORICAL VIEW OF THE Although the inftitution of the aula regis, how- ever, was, at the time of its introduction, accom- modated to the infant ftate of improvements in the country, yet, in a fubfequent period, when thofe improvemefits v/ere advanced to greater matu- rity, and when the authority of government v/as better eilabUfhed, its interpofitions became not only defeclive, but liable to many inconveniencies. For fome time after the Norman conqueft, the invefti- gation of iaw-fuits, although requiring a degree of attention unknown to the preceding ages, was not fo tedious as to prevent their being commonly decided in the neighbourhood of the place in which they had been commenced. But when the advancement of law and government had farther multiplied the legal difputes among the m.embers of fociety, as well as the forms of judicial procedure, fuch a quick dif- patch of the bufmefs was no longer practicable ; and, as the court had no fixed refidcnce, but followed the*king, wherever the political ftate of the kingdom required his prefence, it was frequently neceiTary that caufes lliould be decided in a part of the coun- try very remote from that in which they had arifen. The circumilances of this ambulatory court, became thus inconiiftent with the Icifure arid deliberation requiilte for ludges in forming their decifions ; and ftiii more incompatible with the intereft of parties, Avho, in many cafes, were obliged to attend the court from place to place, and fometimes, before they would obtain a final fentence, to travel over a great part of the kingdom. This attendance was rendered more expenfive and burdenfome, from the eradual advancement of law, as a fcience ; which tended to promote the employment of lav/yers, as Vv^ell as other retainers of judicial controverfy ; and which, by contributing to encourage the fulled and moft ample difcuflion of every plea, laid parties frequently under the neceflity of calling a number of witneffes infupport of their feveral averments. It EN G LIS H GOVERNMENT. 377 It was to be expected, therefore, that, accordinn- to the general improvements of the country, the attention of government would be directed to tlic removal of thefe inconveniencies ; by rendering the aula regis a ftationary court, or at Icaft by appoint- ing);, that it Ihould hold re2;uiar mcetinirs at oarti- cuhir places. While the natural progrefs of improvement in tlic kingdom appeared to require this alteration in the ftate of the principal tribunal, the increafe of judi- cial bufmefs had likewife a tendency to diftinguiih different branches of jurifdiction, and to place them in the hands of dill'erent judges. The profecutions carried on againft atrocious ofl'en- ders, to fatisfy public juftice, and to prevent the future commillion of crimes, came to be vie\\-ed in a different light from private controverfies concern- inp" property, and the various rights and obligations Vv-hich occur amonoc individuals. Law-fuits of the former fort, or criminal ncfions, are ufually much lefs numerous than thofe of the latter, which have received the appellation of civii ncfions. The trial of a crime is apt to be terminated in a more expeditious manner, than a civil procefs. Thofe heinous of- fences, which are fuppofcd to require a profecutiou at the inftance of tlie public, excite, for the moil part, a general indignation in the minds of men, who arc' therefore difpofed to call for a fpccdy venge- ance upon the criminal. In many of thole ofien- ces, bcfides, it is neceffary, that, before a prolecu- tion is commenced, the perfon fufpecled of the crime fhould be arreted and impriioned, in order that, if guilty, he may be prevented from eicaping a trial ; and the hardfliips to which he is thus ur;a\oidably fubjecled, together with the difliculty of fecuring his perfon, afford additional reafons, from expedi- ency, as well as from juftice, for bringing the ac- tion againft him to a fpeetly conclufion. To all thefc peculiar circumftanccs, wc may add, that tlic la\\-. 378 HISTORICAL VIEW OF THE of a country, refpecling the punifhment of crimes, arc ufually plain and limple ; fo that, in profecu- tions of this nature, the iudge can feldom have any fiirther difficulty, than what arifes from the invef- tigation of the fact. Law-fuits about private property are in a dif- ferent iituation. A cool fpecfator feels himfelf but little interefted in fuch difputes ; and it feems reafonable that the parties Iliould be left, in a great meafure, to their own difcretion, in bringing: the bufmefs to an iffue. As in fuch dif- ferences there is no reafon to fufpecf that either party will endeavour to efcape from jullice, no im.prifcn- ment of either is necefl'ary. The laws, too, relat- ing to the civil rights of mankind, are apt to be- come fo numerous and intricate, as may occafion great hefitation and embarraflment in applying them to particular cafes. Thefe peculiarities, by multi- plying the pleadings of parties, as well as the delays of court, and by introducing peculiar forms of pro- cedure, have contributed to diftinguifh a civil from a criminal aclion. To thefe two fpecies of law-fuits may be fubjoined a third, arifmg from difputes between the king and the people, in matters of revenge. Such law-fuits arc calculated to intereft the public, at leaft the crown, like a criminal trial ; at the fame time that they are ftrictly of a mere pecuniary nature. Though the public revenue of a ftate is really the property of the community, yet, in a monarchical governm.ent, the fovereign, who has the immediate difpofal ot that revenue, and who reaps more benefit from it than any other individual, is likely to confider it as his own patrimony, and to become particularly attentive to the fupport and encouragement of thofe judges by whom it is made effeclual. Thus, in every kingdom which is advancing in improvement, the f^, had been aground of general ccnnplaint. Tlie new court of common pleas, whicli was thus creeled, and held by feparate judges, appears to have been deemed inferior in rank to the criminal court, held by the grand judiciary, and in which tlie king con- tinued fometimes to fit in pcrfon. For this realon, the latter court was permitted, in certain cafes, to review the dccifions of tlie former ;. Even at an earlier period, the ^///V/ /v;^/.S ^vlien acting as a court of revenue, had been lb far dlf- • « Communia placita nonfcqu.mtur curiam n-is fed ttncmtur ia aliiiuo " lococerto." f Sec Blackflonc'i C'ommcntariis, Cyvk 111. ^ .n i 38o HISTORICAL VIEW OF THE tingulfhed as to have a feparate prejidcnt ; that offi- cer who had the charge of the public treafury *, At laft, in the reign of Edward the Firft, thefe changes were completed : the court of the grand jufticiary was entirely aboliflied ; and three perma- nent courts were eilabliihed at Weftminller ; a court of king's bench, to have the cognizance of crimes ; a court of common pleas, to determine civil caufes ; and a court of exchequer, to decide in matters of revenue. As the jurifdiction committed to thefe three tribunals was totally different, they had, each of them, a feparate place of meeting, a different prefident, and were compofed of different j udges. There is ground to fuppofe, that the jealoufy, entertained by the king, of that great officer who prefided in the aula regis, co-operated with the na- tural courfe of things in abolifiiing this court, and in producing the inftitutions which came in its place. The oflice of the grand jufticiary Vv'as ori- ginally an appendage of that of the lord high ftew- ard ; who, in ail the feudal kingdoms, was the chief officer of the king's houfehold, and the perfon next in power and dignity to the fovereign. As an employment of fuch high importance was naturally claimed by one of the greateft of the nobility, fo his remaining in the polTeffion of it could not fail to augment his opulence and authority. It was the fame officer in France, who, at an early period, found himfclf in a condition to dethrone the Mero- vingian race of kings, and to effablifli the crown in his own fiimily. We need not wonder, therefore, that Edward, a prince of equal policy and activity, and who had been fuccefsfui in extending the regal authority, ihould be defirous, at the fame time that lie improved the judicial eftabliflmients, of putting .m end to the exiftence of a minifter, of whofe de- ligiis he might be apprehcnfive, and whom he * Baron Gilbci't'o Kircory of the High Court of Chancery. Dialogus de found ENGLISH GOVERNMENT. 3S1 found it difficult to retain in fubjcclion. 'llic chief juftice, who prefided in the new criminal court, was confidered merely in the liglit of a judi^e, w itiiout any fliare of public adminiltration. In this, as well as in other brandies of govern- ment, the hiftory of modern Europe exhibits a remarkable uniformity ; accompanied, however, Vv'ith certain varieties, the effect of accidental cir- cumftances. The cour de roy in France, which, like the EnQ;li{h aula rcsis, had G:rown out of tlie natio- nal council, and which was likcwifc an ambulatory court, was at length productive of fimilar inconve- niencies to thofe felt in England ; and it was thougiit proper to remove them., by giving a permanent reli- dence to this tribunal. By an ordinance, in the reign of Philip the Fair, a branch of the cour dc rcy was fixeil at Paris, and another at Thouloufe * ; to both of which the name of parliaments was given. Otlier courts of the fame nature were afterwards added in different diftricTs, or had rifen in provinces whicli came to be reduced under the French monarcliy ; fo that the whole kingdom, inftcad of being placed, like England, under one fct of great tribunals, re- maining in the capital, was divided into a number of feparate territories, in each of which there was a particular court, invefled with a fupreme and inde- pendent jurifdicTion. The multiplication of law- fuits in any of thofe courts occafioned a fubdivifion of its members into (Xi^cvcnt. chambers^ among which the different forts of judicial bufmefs were diftri- buted. The aulic councU in Germany, as I formerly ob- ferved, was in like manner, an ambulatory court, which had arifen from the diet of the empire ; but, from the flower improvements of tlrat country, ()r perhaps from the decline of the imperial tlignily, it was much later than in France, before any attempts • lu tlic year 1302. were 382 HISTORICAL VIEW OF THE were made to correct this inconvenient mode of dif- tributingjuftice. In the year 1495, and the reign of the emperor Maximilian, was formed the imperial chamber^ a new and ftationary court, with limilar powers to thofe of the aulic council. But, as this latter tribunal was not abolifhed, the German em- pire has come to be provided with two diftincl judi- catures, the one ambulatory., the other widi a fixed refidence ; which have, in the greater part of caules, a concurrent jurifdiclion. In Scotland, the aula regis, both in its original conftitution, and in its powers, was perfectly fimilar to the court of the fime name in England ; and, from fimilar motives of conveniency, it was after- wards broken into the different courts, of the feffion the exchequer, and the jufticiary ; correfponding to the diftinction of civil, fifcal, and crim.inal caufes ; andthefe tribunals came, at length, to have a regu- lar eftablifliment in the capital. In confidering the policy of the judicial infi:itu- tions, in modern Europe, thofe of England and France, the two mofl: powerful nations, appear to merit particular notice. In France, the eftablifliment of a number of par- liaments, or fjpreme tribunals, in different diftricts throughout the kingdom, has the manifeft advan- tage of dim.iniiliing the expence of litigation, by bringing the diftribution of juftice near the refidence of the different inhabitants : an advantage which is farther improved, by the appointment of fubordi- natc courts, held by the lieutenant ei-vil and criminel, within the diftricl: of every fuperior judicatory. The indcDcndencc of thefe srreat tribunals has, on the other hand, a tendency to produce inconfiftent and jarring decifions. The diftri*5ls belonging to the dilTerent parliaments may, fo far as the inter- pretation of law, and the opinion of the judges, are concerned, be confidered as in the ftate of feparate kingdoms : having, in l\\i ordinary operation of government ENGLISH G O V E R N M E N T. 383 government, no incaus for fccuring uniformity of conducl. This, no doubt, is one great caufe of the divcrfity ofhiws and culloms, which, notwithftand- ing the general influence of civiUzed manners, is to be found at prefent in ditlcrcnt parts of the French monarchy. To remove this inconvenience, an extraordinary meafure is, in fomc cafes, adopted. Tlic king, who is the fountain of juftice, nominates, at plcafure, any number of perfons, to receive an appeal from the decifion of any particular parliament ; and in tliis w^ay, the members of the one parliament are fome- times appointed to review the fentence of another. But this is a partial remedy, which cannot be ctfec- lual to prevent all difcordance in the judgment of thofe different courts. In a few inftaaces of grofs abfurdity, or flagrant injuftice, the interpofition of the fovereign maybe procured ; but it is impollililc that he fliould give attention to the ordinary courfe ofdecifions, through the whole extent of his domi- nions, and reftrain the numberlcfs varieties and in- confiftencies which are introduced into the common law of the country. The judicial eftablifliments of England are totally free from this inconveniency. As the principal courts have ajurifdiction over the whole kingdom, the principles of law, in every department, being determined by the fame fet of judges, are rcducecl to an uniform ftandard. As thefe courts have, be- fides, a fixed refidence in the neighbourhood of each other, it was eafy for them to communicate their opinions ; and hence, in order to fecure the pro- priety of their decifions, it became cufromary, in matters of great difliculty, depending before an) one court, to refer the decilion to a meeting com- pofed of the judges of all the three courts. With the fame view, it was provided, by a llatule in the reif^n of Edward the 'I'liird, that the decifions ofthe court of exchequer may be reviewed by a court coiififling 384 HISTORICAL VIEW OF THE confifting of the judges of the king's bewch, and common pleas, with the affiftance of certain officers of the crown ; and by another ftatutc, in the reign of Elizabeth, tliat certain proceedings of the king's bench may be reviewed in a joint meeting of the juftices of the common pleas and the barons of the exchequer. The fyftem of Englifli jurifprudence has become what might be expected from this general plan of the Engiilli tribunals. There feems to be no country in the world where the lawyers and judges are fo ftrongly imprelTed with a notion of the advantages derived from uniformity and {lability in the rules of law. That a certain rule fnould be eftablifhed, and invariably maintained, is juftly eftcemed of more confequence, than that the rule itfeif f[iould be the mod perfect imaginable. Almoft any regulation whatever is preferable to fluctuation and uncertainty. To fuch an extrem.e, it lliould feem, has this prin- ciple been carried in England, as to have produced a maxim, that when any point has once been decided in a judicial controverfy, or has even been fettled by the opinion of any lawyer of good authority, it iliail be regarded as not liable, on any future occafion, to be altered or difputed. But the Englilli tribunals, according to the plan above mentioned, were calculated to render litiga- tion expenfive and troublefome, by giving to the capital a monopoly in the diftribution of juftice. The inferior judicatories, thofe of the baron in his own demefne, and of the flieriff in each county, had, upon the advancement of the aula regis^ been fo far reduced as to retain only the cognizance of petty crimes, and the determination of civil actions below the value of forty fniiiings. Thefe, therefore, could be of little fervice in fettling difputes, and reftraininginjuftice, throughout the kingdom ; and, as no intermediate courts were provided, the moft part of lav/.fuits, both in civil and criminal matters. and ENGLISH GOVERNMENT. 38; and whether of fmall or of great importance, couKl only be decided by the courts of WclbiiinlU'r-hall. In a country fo extcniive as Enc^land, a jjjrc.it pro- portion of the inhabitants were thus removed to a great diftance from the feat of juftice, and laid under many difadvantages in making tlicir riglits effectual. Tofupply this deficiency in the ordinary eftablifli- ment, the king appointed certain extraordln:iry judges, as auxiliaries to thofe of the capital, for the purpofe of circulating the adminiflration of jullicc through every corner of the kingdom. Aithouoh the diftant refidence of individuals from the feat of juftice is in all cafes, inconvenient, it is more fo in criminal than in civil actions. It feldom happens that a crime can be proved in any other manner than by parole evidence; for a criminal does not ufually acl with fo little caution as to af- ford a written document of his guilt ; neither is it competent to demand his oath concerning tlie truth of the facts with which he is charged. But of all the methods of proof, that which requires the attendance of witnefies, more efpecially Mlien they muft be conveyed from diftant parts of a country, is necelTarily the moft expenfive and burthenfome. In the view of public utility, it is llkewife expedient, that every criminal trial fhould be conducted, and that the punifliment of the otlender fliould be in- flicted, as much as poflible, in the neighbourhood of the place where the crime has been commit- ted. The chief object in the punilhnient of crimes is to preferve the peace and good order of fociety, by deterring others from following the example of the criminal ; and this is moft eflcctually obtained, when the fame perfons who have beheld the violation of the law, are alfo fpcctators ot the terror, mortification, and mifery, with wlilch that violation is attended. C c trom 386 HISTORICAL VIEW OF THE From thefe confiderations, when the king's bench came to have its ufual rcndence at Weftminfter, the fovxrcign was induced to grant fpecial commiffions, for trying particular crimes, in fuch parts of the country as were found moft convenient ; and this practice was gradually modelled into a regular ap- pc-mtmcnt of certain commiiiioners, empowered, at ftated feafons, to perform circuits over the kingdom, and to hold courts in particular towns, for the trial of all forts of crimes. Thefe judges of the circuit, how- ever, never obtained an ordinary jurlfdiction ; but continued, on every occafion, to derive their au- thority from two fpecial commiffions ; that of oyer and terminer^ by which they were appointed to hear and determine all treafons, felonies, and mifdemea- nors, within certain diftricls ; and that of gaol de- liven, by which they were directed to try every pri- foner confined in the gaols of the feveral towns fall- ing under their infpection. Thus, by the addition of an ambulatory court, in fupplement of another which has a fixed reiidence, precautions are taken to prevent the various and oppofite inconveniencies incident to the diftribution of criminal juflice ; and, as far as human inftitutions are capable of attaining perfeclion, the moft complete eftablifhm.ent feems to be made for the trial and punifhment of crimes. The appointment of the circuit judges, in order to facilitate criminal trials, naturally fuggefted the idea, that the fame commiiiioners might afTift the courts at AVeftmiafter in another department, and be made fubfervient to the more expeditious decifion of civil caufes. With this view the commiilion of ajjlfe^ and that of nifi prius was granted to thefe {uci""es. By the former they were impowered to take the verdicT of a jury in the trial of landed dif- putes. The latter was intended to fhorten the pro- cedure in ordinary civil actions, by directing the judges ENGLISH GOVERNMENT. 387 judges in the circuits to invcftij^ate all fucli matters of facl as were then under dilputc bctorc any court of AVeftminfter-hall*. ^ What is commonly an article of the greatcft mag- nitude, even in a civil procefs, the proof of the dir"- ferent averments made by the parties, came thus to difcufled within the county, and frequently in the very neighbourhood of the place where the difpute had arifen ; while the mere matter of law was left to the confideration of the great court at a dillance ; a court, from its permanent fituation, as well as from its authority and dignity, the bcft qualified for deciding points of fuch dillicuky and importance. To thefe regulations, of fuch manifeft utility, thcr. was added a further provilion, for maintaining the general tranquility. When quarrels arofe among individuals, when outrage and violence were com- mitted, and thefe were likely to be followed by riots and infurreclions, it was in vain to expect, that by application to the ordinary courts of juftice, a timely interpofition could be procured for fupprefling fuch diforders. It was expedient, therefore, that men of rank and character, living in the ditVercnt parts of the country, and who might of coni'e- quence, be at hand upon any emergency, fliouhl be invefted with fufficient authority to feize dilorderly perfons, to put them under confinement, and, in general, to prevent violations of the public peace. We find accordingly, that, by the ancient law of England, confervators of the pccicc, with powers of that nature, were in the diflcrent counties, elected by the freeholders ; and the fame powers were alfo annexed to many of the higher oflices of government. It appears that thofe magiflrates had originally no cognizance of crimes, but merely an authority to fccure offenders, in order to their trial before the ordinary tribunals. We may eaiily conceive, how- • Sec Blackaonc'. Cijmmcntarics. Unwkiiu's Pica* of the Crown. C c 2 ever, 383 HISTORICAL VIEW OF THE ever, that fuch an employment would lead to a fpecies of jurifdiction. V'/hen a perfon has been {guilty of a breach of the peace, his conducl, although deferving aniir.adverfion, may often be unworthy of the trouble and expence which would attend a trial before the ordinary courts ; and if, in fuch a cafe, the masiftrate, v/ho has taken the offender into cuf- tody, and who muft , in fome meafure, have already examined the cafe, Ihould proceed of hiirifelf to in- flicl a moderate puniihment, the expediency of fuch a meafure would afford its juftification, or at leaft would induce the public to connive at fo fmall an ex- tenlion of authority. In the reign of Edward the Third, the appoint- ment of thofe magiflrates, as might be expelled from the riling flate of the prerogative, was transferred to the crown ; at the fame time that they were in- vefted with a power of trying all offences excepting thofe which inferred a capital punifliment *. From this period they acquired the appellation oi jiijiiccs of the peace. By fubfequent regulations they came to be entrufted with various branches of civil jurifdic- tion ; by which they w^ere enabled, in many quef- tions of importance, to fupcrfede the interpolition of the fuperior tribunal,!. Although in Scotland, tlie principal courts of law were eftabliflied in the capital, upon the fame plan as in England, the inhabitants were not fubjecled to the fame inconvenience by their diftance from the place where juftice was adminiftered. To fay no- thing of the narrownefs of the country, compared with England, the Scottiih nobles maintained their authority much longer than the Englifli ; and the courts of the baron, and of the Iheriff, were there- fore enabled topreferve a great part of their original * By 18 pnd by 34 Edward III. the Jufticcs of pegce are empowered to determine felonies and trefpafles but in praiftice their jurifdidtion is rc- ftridicd to fuch felonies are within the benefit of the clergy. See Haw- jurifdiction. ENGLISH GOVERN mi: NT. 339 jurifdicuion. As thefc tribunals hiiJ the power of determining both civil and criminal actions, in their feverai diftricis, there was no nccellity for bringing fuch matters, in the lirfl infiance, Letoro the fupcrior courts in the capital ; and upon this ac- count, although the judges of the court of judiciary were empowered to make circuits over the couiiiry, r.s in England, there was no occalion for be 11; owing upon tliem any civil juriidiclion, corrcfponding to what arifes from the Engl i(h commiiTion of //v.'/t/w. The appointment of jutlices of the peace, to fup- piy what is defective hi tiie jurifdiction of the or- dinary courts for fupprcfling riot and difordcr, was introduced into Scotland at a later period, but in a fmiilar manner, and upon the fame footjing, as in England. bECT. II. Of th: Pctly Jury-^and the Grand Jury. FROM the progreflive alterations, v/hich have been mentioned, in the Engiifh courts of jufticc, it is natural to conclude, that the judges were conti- nually advancing in experience and knowledge, and that the forms of jiidical procedure were daily at- tLiining higher degrees of perfection. Of ail^ the inftitutions relative to the management of judi- cial bufmefs, which may be confidercd as the ellecl: of that improvement, tiiofe of t\\c petty Jury, and the :^mnd jury, are moft defcrvedly the boaft of ICnglifli juHfprucience ; and as, in the period whicli we arc "now" examining, both of them appear to have ar- rived at tlieir complete e.fi;abliflimcnt, a review oi the circumftanccs fi-cmi which they proceeded, and ot itjps by whicli they were introduced, niay not be improper. I. i had formerly occafion to obferve, Uiat un- dcr the rrovernment of the Anglo-Saxon princes, tlie chief magiftrates of llie fevcral counties and hun- dreds of a county, or of a hu!idrcd, found it uni.e- celhirv. 390 HISTORICAL VIEW OF THE ceffary, in the determination of law-fuits, to call a full meeting of the courts over which they prefided ; and, for the greater difpatch of the bufmefs, as well as for the eafe and convenience of the people, were accuftorned to feledl a certain number of the freemen, or allodial proprietors, in each particular caufe, to alTift in giving a decifion. Hence the firft idea of the petty jury was probably fuggefted. In a fubfequent period, a limilar practice v»'as adopted in the courts of a barony. When the vafials cf a fuperior had acquired hereditary fiefs, they were no longer under the necefTity of fubmitting to his arbitrarv will ; and in reg-ulatina: their conduct, as well as in diftnbutmg juftice am.ong them, he found it expedient to acl with their advice and concur- rence. To have affembled the whole of his vaiTals, for the determination of every law-fuit, would have been too great a hardfliip upon them ; but a mode- rate number were convened, in order to fatisfy tJie parties, and to give weight and authority to the fentence. The calling, occafionally, a number of the valTals, In each cafe, to ailifl: the fuperior, was a more natural ex- pedient, than the appointment of certain permanent afleflbrs. It was attended with no trouble or ex- pence ; for every vafial Vv-as bound not only to j&ght for the fuperior, but alfo to perform fuch other fervices as might be requifite, in order to fup- port his authority and dignity. According to the limple notions of that age, thefe perfcns were fuiS- ciently qualified to determine the points referred to their decifion ; more efpecially as they might re- ceive advice and direction from the magiftrate. In foiPiC refpects they were held even preferable to every other fort of judges ; being men of the fame rank and condition with the parties ; and from their fituation, having frequently accefs to know the. ftate of the controverfy, as well as the circumftances of the facts in queftion. The ENGLISH GOVERNMEN r. ;,;, The introduction of juries in the courts of a ba- rony, arofe from the eftablilhrnent of hereditary fiefs ; for, fo long as vaflals held their land pre^a- rioufly, or even were not feture of tranlhrlttin;^ it to their pofterity, they had too much djpendenee\ip,)n their fuperior, to difputehis authority, citlier in fet- tling their dilicrences or puuilliing their oiiences. AVe may ealily fuppole, therefore," that, under the Anglo-Saxon government, this mode of procedure was not very common ; bccaufe the cuftom of fecur- ing landed eftates to the heirs of a vaflal was then far from being general. It is from the reign of William the Concjueror, that we may date the re- markable extenfion of jury-trials ; proceeding partly from the imitation of Norman or French cuhoms ; but ftill more from the completion of the feudal I'yf- tem, and the confcqueut multiplication of heredi- tary fiefs. It merits attention, that this inftitution had been hitherto limited to the hundred and county courts, and to* thofe of a feudal barony, but never had taken place in the judiciary proceedings of the national council. The caufes which came umler the cogni- zance of the Wittenagemote were not fo numer^)us, as to create much trouble to its members, or to llig- geft the meafure of devolving that branch of bufuiels upon any fort of Committee, or partial meeting, in place of the full aiTembly. Upon the eftablifliment of the Anglo-Norman parliament, its ordinary judicial bulinefs, was, in a liiort tim.e, committed to the z?////'^ rr^is ; a court v/hich at iirft conlifted of feveral members, but was afterwards held by a iingie magilfrate, the deputy judge of the fovcreign. This tribunal was properly the ordinary baron court of the king; and being in the fame circumftanccs with the baron courts of the nobility, it was under the fimc neceflity of trying caufes by the intervention of a jury. As the vaflals of the crown were ufuallv more i:,il -iK-iKient 392 HISTORICAL VIEW OF THE of the king, than the rear-vaflals were of their im- mediate fuperior ; it is not likely, that, while juilice was adniiniftercd by the pares cur:93 juftlce in the circuits ; and was thus rendered cflcn- tially neceflary in determining caules of cvcrv I'ort, whether civil, criminal, or lilcal. In the high court of parliament, however, this method of trial was never admitted ; being neither found requifite for the convenience of the members, nor conducive to the intereil of parties. It was not requifite for the convenience of the mcml>ers ; be- caufe the trials which came before parliament were few, and fpcedily brought to an illue. It was not conducive to the interelt of parties ; becaufe they were better fecured from partiality and oppreflion, by ajudgment of the whole houfe, conlifiing of all the crown vaflais, than they could expect to be from a decifion given by a limited number of thofe vaflkls, arbitrarily appointed by the prefident. It has been queftioned, whether an inftitution, fim.ilar to that of the petty jury in England, had place in any of the nations of antiquity. Among the Greeks and Romans, as far back as we can trace the hiftory of their judicial eftablilhments, it does not appear that the inhabitants of certain diilricts were ever invefted with jurifdiclion, or that a part of their number were, in each trial, felecled by the ordinary magiftrate to afiift him in giving a de- ciiion. The ordinary courts of Greece and Rome werecompofed of a chief magiftrate, and of certain afleflbrs ; but thefe laft were permanent oilicers, appointed, as it fhould feem, from year to year, or for the fame period with the magillrate himlelh The Ronmn J udexpcdaricus, indeed, was n<:-.'".atcd for each trial ; but he was originally no more than a commiffioner for taking a proof of the fa(T:s in quel- tion ; and, although he was afterwards empowered in many cafes, to determine the law, as well as the fact, the intention of his appointment was not to give weight and authority to tlic docilion, but inere- iy to relieve the magillrate and his allcUors from a part of their labour. Among 394 HISTORICAL VIEW OF THE Among the Gothic nations of modern Europe, the cuftom of deciding law-fuits by a jury feems to have prevailed univerfally ; firft in the allodial courts of the county^ or of the hundred^ and after- wards in the baron-courts of every feudal fuperior. Tlie fame cuftom, however, does not appear, in any European kingdom except England, to have been extended to thofe great courts, which, upon the advancement of civilized manners, arofe out of the national council, and were invefted with the principal branches of ordinary jurifdiclion. The cour de roy, in France, was not, like the court of the grand jufticiary in England, reduced under the direction of a fmccle mas^iftrate ; but con- iifted of an indefmite number of the fame perfons who fat in the national alTembly. The parliament of Paris, formed out of the cour de roy^ was likewife compofed of as many of the nobles as chofe to at- tend ; with the addition of a body of lawyers, who, it was underftood, were to direct the forms of pro- cedure, and to take upon them the drudgery of the bufmefs *. The parliament of Thouloufe, which was authorifed at the fame time, and the other par- liaments which were afterwards formed in particular diftricls, conducted themfelves upon the fame prin- ciples with the parliament of Paris ; and, as all of them were compofed of a numerous council of judges, the intervention of a jury, to prevent er- roneous judgments, or even to fecure the parties from oppreffion, was the lefs neceffary. This obfervation is applicable to the principal courts of the German empire. The aulic council vv'as compofed of an indefinite number of the fame perfons vv'ho had a right to fit in the diet. The im- * Soon after tlie eftablifliment of the parliament of Paris, the king dif- penfcd with the attendance of tlie dignified clergy. The ordinary lay barons afterwards abfented themfelves, without any exprefs difpenfation ; and there remained only the princes of the blood, and peers, who retained the privilege o'" attending th.^t court on foicmn occalions. periai ENGLISH GOVERNMENT. 395 pcrial chamber was a numerous council of judges. In both of ihefe tribunals, therefore, the afliftance of a jury was probably thought unncceffary. In Scotland, the court of t1ic grand jufticiary came to be eftabliflied upon the fame plan as in England ; and admitted, in like manner, the form of jury- trials. But upon the diviilon of the powers of that court into different branches, the civil tribunal, then introduced, was a committee of parliament ; that is, a committee of thofc crown-vaiTals of whom juries had been compofed. By one or two varia- tions of that model, was formed the prefcnt court of feiTion, which was made to confift of fifteen or- dinary judges, the ufual numibcr of jurymen in Scotland ; with a view, it fhould fcem, to fupcr- fcde the ufe of jury-trials : and, as this mode of judicial procedure was laid afidc in the principal civil "tribunal, the example appears to have been quickly followed in the inferior civil courts of the kingdom. In the court of judiciary, however, which coniiftcd of a fmaller number of judges, and confequently in the inferior criminal courts, the ancient praclicc of jury-trials was continued. Befide the circumftancc now mentioned, relating to the conftitution of the principal courts of juftice in feveral European kingdoms, the influence of the ancient Roman law, as delivered in the compila- tions of the emperor Juftinian, was another more general caufe, which contributed to the difufe of juries through the greater part of Europe. Upon "the revival of letters in Europe, that improved fyf- tem of jurifprudence was recommended and propa- gated l3y the clergy ; was taught, under their direction, in almoft all the univerfities ; and its decifions and forms of procedure were confidered by the civil magiftrate as models for imitation. — The Gothic inflitution of juries, which had been unknown to the Romans, was therefore brougljt mor^ 396 HISTORICAL VIEW OF THE more and more into difcrcdit ; and, that the whole cognizance of a law-fuit Ihould be committed to judges, who, by being fet apart for that purpofe, and by devoting themfelves to this employment, niig-ht becom.e peculiarly qualified for tlic cxercife of it, was regarded as an improvement in the ftate of judicial policy. In England, where, from circumftances that will be mentioned hereafter, the Roman lyitem was lefs incorporated with the common law than in other countries, the cuftom of jury-trials has, according- iv, been moft religioully maintained. But even in England, this cuftom has been totally excluded from eccfefiaftical tribuxials, from thoic of the^ two uni- vcditics, 'and from all other courts in which, from particular cauics, the maxims and principles of the civil law iia^e been adopted. Scotland was, in fome degree, under the influence o£ oppolite fyftems ; and feems, upon that account, to have held'a middle com'fe. Like the nations up- on the continent, flie was laid into a clofe imitation of the Roman decifiGns and forms of procedure ; while, by her vicinity to England, fhe was induced to borrow many regulations and cuftoras from that more cultivated and powerful country. Thus the Scottifh tribunals imitated the Engliih, by retain- ing a jury-trial in criminal profecutions ; but follow- eci^the pradice of the Romans, by neglecting that inftitution in the greater part of civil actions. In the former, it was natural to entertain a greater fuf- picion of the court than in the latter ; becaufe, in a criminal trial, the king, who nominates the judges, and to whom they muft look for proferment, is al- ways a party ; \\diereas in a civil action, or contro- 'v:erfy between private individuals, the crown ha^ no interell:; and there is commonly no circumilance to inliuence the magiftrate upon either fide, or lay i^im under ateniptatiou togroXs partiality. It ENGLISH COVER N jSI E N T. 397 It is not likely that the inftitution of juries vould, in any country, be very acceptable to the Tovcrcign ; fince it limited the power of thofc jud^^cs whtnn he appointed, and of \vhoni he had, in ionic nicaiurc, the direclion. We may eafily imagine, therefore, that, according as, among any people, the preroga- tive was exalted or dcprcfl'ed, its iniluence wcmld be exerted, more or lefs effeclually, in difcouraging this mode of trial ; and hence we may difcover an additional reafon for the continuance oi' juries in Encrland. As the Encrlifh were fuccefsful in rcduc- ing the power of the monarch witlnn moderate bounds, and acquired proportionably higher notions of liberty ; they became, of courfe, the more at- tached to that method of diftributing juliicc, by which the difpofal of their lives and fortunes was committed to their fellow citizens, rather than to oflicers in the nomination of the crown. 'I'licy be- came not only the m.ore pafilonately fond ot this privilege, which had been handed down to them from their anceftors, but at the 1'vmc time the more capable of maintaining it. There is no reafon, in- deed, to believe that this circumftance alone wouKl have been fufficient to retain, in England, the prac- tice of jury-trials ; for other European Hates have had alfo the good fortune to rcftrain the prerogative, and to eftaljlifli a popular government. But this circumftance undoubtedly co-operated, with tlie other caufes formerly mentioned, in rendering the people of England more tenacious of that ancient ap- pendage of the feudal policy, and more jealous ot every attempt, from whatever pretences, citlicr to limit the power of juries, or to exclude them Ironi the decifion of particular caufes. 2. In order to fccure the regular diftribution of juftice, it is not enough that courts are properly conftitutcd, and that judges are atlcnlivc to the de- termination of law-fuits. I'lic magiltralc muit all.. be informed of thofc cafes which rctiuirc las n.tcrpo- liiion ; 39' HISTORICAL VIEW OF THE fition ; and meafures muft be taken for bringing them under his examination. A diftinclion, how- ever, in this refpeci, may be obferved between that branch of iudicial buiineis which relates to civil, and that which relates to criminal caufes. In a con- troverfy between private individuals, each party is likely to prove fuiSciently attentive to his own inte- reft ; and may therefore be left to vindicate his own ri.^hts as he ihall think fit. But when a crime is com^miLted, which requires a puniiliment for the f;ike of a public example, there is danger that the int-:reil Oi"ihe connnunity will be negiecled; that no information o^the facl will be given to the judge ; and that no perfon will take upon him the trouble, the odium, \ad the expence, of bringing an accu- fation. It is here that iome regulation is necelTary, to prevent the diforders that might be apprehended, frcrn permitting criminals to pafrs with impunity. Amon-T die Romans, not only the perfon injured, but any one of the people, was allowed to profecute a )?L biic offence. As the crime was underftood to aifecl: the whole community, any one of its members, bein<>- in fome degree a fufferer, was entitled, upon that account, to come forward and claim redrefs. It requires but little fagacity to difcover, that this mode of proiecution was liable to great abufes. It was Ukcly, on the one hand, to produce negligence in profecuting crimes ; and, on the other, to encou- rage unjiift and groundiefs profecutions. Few peo- ple were found fo public-fpiri'ed, as to undertake the difa'^reeabie tafk of convicting criminals, from the view of prom.oiing the inttreft of fociety ; while many were tempted to become public accufers, from fecret motives of refentment or malice, or even for the purpofe of obtaining a pecuniary compofition from the perfon whom they had found an opportu- nity to profecute. . To prevent this latter enormity, fevere penalties Vv^re infiicled upon fuch as brought an unjull accufation of a public offence. In parti- cular. ENGLISH G O V E R N M n N T. 3*^ cular, it was enaclcd, that lie who failed in provinjr his accufation, flioukl llitier the fame puinlhment to which, if he had been fuccefsful, the defeiul.iiit would have been fubjected : a repjulation which, if ftriclly enforced, mull liave put an end to every capital profccution : For who is there tiiat will hazard, his own life, upon the uncertainty of pre- vailing in any criminal trial ? In the modern feudal nations, the judi^e hinifclt was originally the public profecutor. Kvery feudal lord, whether a fovereign prince or a fubjecl, was excited to punifli offences within his demefne ; not only from the defire of rcprcfling difordcrs, but alfo from that of procuring fines and amerciaments. As reprefenting the community, of which he was the leader and executive oflicer, he firll brought, an accufation againft thofe whom he fufpecled of crimes: as the chief magiftratc, he afterwards ex- amined the proof, and gave judgment in the caufe. The mifchief attending this praclicc muft have foon become notorious. It can hardly be fuppofcd that the fame pcrfon would acquit himfelf with pro- priety in the two-fold character of an accufer and a judge. Even in the courfe of a fpeculative debate, men ufually acquire a prejudice in favour of thofe tenets which they arc endeavouring to fupport ; and find it extremely dillicult to preferve a degree of candour in judging of fuch as are advanced upon the oppofiteTide. \Vhat ihall we fay then of a pcr- fon who is engaged in preparing a public accufation ; who fets out Vv-ith a flrong fufpicion, that tlie defi'ii- dant is guilty, who converfes with infornu^rs, likily to employ every artifice toftrengthen that opinion ; and who, to pafs over his pecuniary intereft, involv- ed in the iifue of the caule, has exerted himfelt in collecting and arranging all the facls and argununts in confirmation of his hypotliefis ? how is it pollible to avoid that blind zeal and prepolldlion, that eager- nefs to convicT; the defendant, acquired in ihec.ip.i- tit) 400 HISTORICAL VIEW OF THE city of a profecutor ; and to behave with that im- partiality, cooincfs, and moderation, which arc cilentially rcquiUte in the diftribution of juftice ? To prevent this dreadful enormity, and at the fame time to fecure a proper attention to the public intereft, the profecution of times was, in all the feu- dal countries, reduced into a fcparate employment, by the appointment of a procurator or factor to act in the name of the fovereign. Hence the attorney- general in England, and the king's advocate in Scot- land, were appointed to manage the judicial bufinefs of the crown, before the principal tribunals; and a iimilar inftitution, from the fame views of expedi- ency, was even extended to inferior courts. But, previous to the profecution of offences, there muil be information of their exiftence ; and fre- quently, too, the immediate interpofition of the magiftrate is neceffary, to apprehend and imprifon the offender. In a rude nation, however, efpecially if it is of confiderable extent, many crimes are likely to be hid from the public eye, and to cfcape the examination of any court. It appears, accordingly, that, in modern Europe, this branch of police had early become an object of general attention. To make inquiry concerning the commiiTion of public offences, and to tranfmit an account of them to the criminal court, was one great purpofe of the ap- pointmtent oi coroners ; a fet of officers who had place not onlv in Ena-land and Scotland, but in the srreater part, if not in all, of the feudal kingdoms upon the continent. The office of the coroners, in England, is of (o great antiquity, that the commencement of it is entirely loll in obfcurity. It feems to have been an immemorial cuftom of the Anglo-Saxons, that feve- ral perfons of diitinction fliould be named by the freeholders in each county, with power to fecure and imprifon criminals of all forts, to the end that they might be brought to a trial. From this em- ployment. ENGLISH GOVERNMENT. 401 ployment, thefe officers, as in after times the jufticcs of the peace, found the means of afl'uming a criminal jurifdiclion, which, from fmall beginnings, became gradually more and more extenfive. Another branch of bufinefs, devolved upon the coroner, and which may be regarded as an appendage or confequence of the former, was that of afcertaining and determin- ing the value of the fines, amerciaments, and for- feitures, or of any other emoluments, which ac- crued to the fovereign, either from the condemna- tion of public offenders, or from the righi; of the crovv-n to all the goods, of which no other proprietor could be found. When the coroner had occafion to enquire into the truth of any fact, either with a view to deter- mine thofe matters which fell under his own jurif- diction, or in order to tranfmit an account of it to fome other criminal court, he proceeded, in the lame manner that was cuftomary in the courts of the hundred, and of the county, by the afTiftancc of an injueji or jury -y and the number of jurymen, who, in thofe cafes, were called from the neighbouring town-fhips, was not lefs than was employed in other judicial invefiigations. After the Nomian conqueft, when the auia regis drew to itfelf the cognizance of the greater part of crimes, it became the duty of the coroner to certify to that court his inquiiition concerning thofe offen- ces which fell under its jurifdJction ; and upon this information, the moll: authentic that could well be procured, a trial before the grand jufticiary was commenced. Upon the eftablilhment of the king's bench, and of the commillions of oyer and terminer and gaol delivery, the like certification, and for the fame purpofe, was made by the coroner to thofe tribunals. But in proportion to the advancement of the prerogative, the authority of the coroner, an officer elected by the county, was diminiflicd 5 his jurii- D cj diction 402 HISTORICAL VIEW OF THE diction was daily fubjecled to greater limitations ; and his reports became gradually more narrow and defective : whether It be that, by having a feliow- feeling with the inhabitants, he endeavoured to fcreen thsm from juilice, or that, from the ruft and relaxation to which every old inftitution is liable, his operations became tardy acd inaccurate ; certain it is, that he came to overlook the greater part of the offences \\'hich require the interpofition of the magiftrate, and his incjuifition was at length conlined to a fev/ of thofe enormous crimes, which excite univerfal indignation and refentment. To fupply the deficiency of the coroner's inqueft, the flicriff, who had come, in a great meafure, under the appointment of the crown, was directed, upon the meeting of judges in the circuits, or of the other criminal courts, to call a jury, in order to procure information concerning the crimes committed in particular diftricts. Hence the origin of what is called the grand jiiry^ by whofe inquifition the judges were authorifed to proceed in the trial of public offenders. It is probable, that when the grand jury were firft called, they made an inquiry at large concerning every fact which ought to become the fubject of a criminal trial, and of their own proper motion de- lated the perfons whom they found to defer ve an accufation ; but, by degrees, when the agent for the crown had been led to fufpect any particular perfon, he was accuftomed to lay before them the immediate queftion, how far that fufpicion was well founded ? Hence the two methods of finding the fad ; hj prefentment and by indicfmcnt. It feems evident, from what has been obferved, that the original purpofe of the inquifition by the coroner, and of a prefentment by the grand jury, was to prevent offenders from being overlooked, and from efcaping a trial. When the cuitom of pre- ferring indidments to the grand jury was introduced, the ENGLISH GOVERNMENT. 403 the intention of that meafure was, probably, to avoid the trouble and expence of a fruitlefs prolecution. But, whatever was originally intended by this practice, the neceflity of procuring the previous ap- probation of a jury, by one or other of the forms above mentioned, was productive of the highcft ad- vantage to the people, that of fecuring them from G:roundlefs or frivolous acculations. If a pcrfon is known to have committed a crime, or lies under a ftrong fufpicion of guilt, the voice of the whole neighbourhood will probably call aloud for juftice, and demand an immediate trial of the offender. But if, on the contrary, an innocent man is attacked, if he is threatened with a profecution, from appa- rently malicious motives, or for the purpofe of ferving apolitical job, it is moftlikely that his fel- low citizens will view this proceeding with indig- nation ; that they will confidcr his misfortune as, in fome meafure, their own ; and that, from a princi- ple of humanity and juftice, as well as from a regard to their own intereft, they will be excited to (land forth as the protectors of innocence. This is a new inftance, perhaps more confpicuous than any that we have had occalion to obferve in the hiftory of the Englifli government, of a regulation whofe confequences were not forefeen at tlie time when it was introduced. The great benefit arifing to fociety from the interpofition of the grand jury is not only totally different, but even diametrically oppofite to that v/hich was originally intended by it. The original purpofe of that inftitution was to affift the crown in the difcovery of crimes, and by that means to encrcafe the number of profccutions. But when an accurate police had been eftabliflicd in the country, there was little danger that any crime of importance would be concealed from the public ; and it became the chief end of the grand jury to e;uard againft the abufes of the difcrctionary power ^d 2 with 4~4 HISTORICAL VIEW OF THE with which the officers of the crowii are invefted, that of profccuting public offences. The employment of the coroner in Scotland, was the flime as in England ; and he appears to have ufed the Hime forms in the exercife of liis jurifdic- tion. With the afiiftance of a jury, he enquired into the commafllon of crimes ; and either pn.niflied them by his own authority, or tranfmitted infor- mation concerning them to the com.petent court. The negligence of this officer feems, in that country, to have likewife produced the interpofition of tl^e ilieriff, or chief magiftrate of particular diftricls, by calling a jury for the fame purpofe. By a ffatute m the reign of Alexander the Second, it is enacled, that no profecution, at the inftance of the crown, iiiall proceed againft any perfon, unlefs by an accu- fation, upon the inquiiition of a jury, confifting of the chief magiftrate of the place and three rcfpeclablc perfons in the neighbourhood. This rule continued till near the end of the fixteenth century ; when, in confequence of the eftabliihment of the court of feffion, and from other caufes, the inveftigation of judicial matters, by a jury, came to be much more limited than it had formerly been. By an acl of the Scottiih parliament, in 1587, certain commiffioners, inftead of the inqueft formerly called, were ap- pointed in the feveral counties, for enquiring into public offences ; and indictments, framed upon the report of thefc commiffioners, were put into a lift, which got the name of the portcous roll *. The fame ftatute empowered the king's advocate to profecute crimes of his own proper motion f ; and, as he was the perfon employed to raife indicf- ments, upon the information tranfmitted by the commiffioners, he naturally affumed the privilege of determining whether the facts laid before him ought to be the ground of a profecution or not. Thus in * SeeAdtof Parliament, icg-. ch. 8s. f Ch. 77- Scotland ENGLISH GOVERNMENT. 40,' Scotland the ancient grand jury was aboliflicJ ; and criminal actions, at the inftancc of the public, csnic, in all caies, to be directed at the dilcretion oFa cr».)\v:i ofiicer. The attcrney-ejeneral, in England, and the maftcr of the crown-ollice, have acquired in lilce manner, a power of profecuting by information, without any previous authority of a grand jury ; but this mode of proiecution is confined to mifdemeanours tending to difturb the government, or the peace and goocl order of fociety, and is never extended to crimes ot a capital nature. How far the nations upon the continent were poiTelTed of a hmilar proviiion, to I'ecurc the people from unjuft and groundlefs profecutions, it is not eafy to determine. That in the greater part of them the coroner's inqueft was employed for bringing to light thofe diforders which required the interpohtion of a criminal court, there is no room to doubt. But when, from the circumftances which have al- ready been pointed out, the method of trial by the petty jury had fallen into difufe, it is not likely that a previous inqueft v/ould ftill be employed to judge of the necefiity or expediency of commencing a cri- minal accufation. From the rapid advancement of the prerogative in thefe nations, the fovercign was freed from any reftraint in this branch of adminiftra- tion, and an unbounded liberty of trying public oflences v/as committed to the ofilcers of the crov/n. I'o whatever caufes it may be afcribcd, the Englifli grand jury is now the only inftitution of the kind that remains in Europe ; and perhaps, as it is mo- delled at prefent, there cannot be found, in the an- nals of the world, a regulation fo well calculated for preventing abufes iii that part ot the executive power which'relatcs to the profccutiun of crimes. Sect. 4o6 HISTORICAL VIEW OF THE Sect. III. Circuwjlanc.es ivh'ich prevented the Civil Law from being fo much incorporated in the Svjlefu of Englijlj yurifprudence^ as in that of other European Countries, To thofe who furvev the common law of Encrland, 111 Its progreis towards m.atunty, there is one pecu- liarity which muit appear extremely remarkable ; the little afliftance it has borrowed from the ancient Roman jurifprudence ; that fyilem of equity, which has been fo highly efteemed, and which, in the other countries of Europe, has excited fuch univer- fal imitation. Why the Engliih have deviated, in this particular, from the practice of all the neigh- bouring nations, and have difdained to draw fup- plies from thofe plentiful fources of legal knowledge, by which many fyftems of modern law have been fo amply enriched, it feems a matter of curiofity to enquire : at the fame time that, by examining the caufes of a proceeding fo fingular, and apparently fo unreafonable, we fliall, perhaps, be enabled to difcover the advantages or difadvantages which have refulted from it ; and likewife to form an opi- nion, how far expediency may, in the prefent ftate of things, recommend the fame, or a different line of conduct. The Gothic nations who fubdued the provinces of the Roman empire, and fettled in the countries which they had over-run, were by degrees incorpo- rated with the ancient inliabitants ; and from the communication and mixture of thefe two races of men, there was formed a compnfition of laws, man- ners, and cuftoms, as well as of language ; in which, upon different occafions, and from a variety of cir- cumftances, the proportions contributed by the one people, or by the other, were accidentally more prevalent. Although the ancient inhabitants were, every where, the vanquiflied party, they pofl'elTed that ENGLISH GOVERNMENT. 407 that fuperiority which knowledge and civilization have ulually beiiowed over ignorance and biubarilin; and hence we find a multitude of Roman initltutions inferted in the codes of law, which at an early period, were pubiiflied by many kings or leaders of thofc barbarous nations. Soon after the fettlement of thofc barbarians, or rather before it was completed, they embraced Cihrif- tianity, and fell under the direcT:ion of the Chriuian clergy ; who, having been firmly eftabliflicd in the Roman empire, were enabled to preferve their footing in thofe new ftates that were formed. Thefe ecclefiaftics were attached to the Roman law, in op- poiition to the barbarous culloms of the new fet- tlers ; both as it was the fyftem with which they were acquainted, and as it \vas calculated to main- tain that peace and tranquillity, which tlicir profef- fion and manner of life difpofed them to promote. The doctrines of Chriflianity, unlike the fables which conftituted the mythology of the Greeks and Romans, contained philofophical truths, which the teachers of that religion were under the necefiity of knowing, and by the knowledge and propagation of which they fupported their credit among the peo- ple. Thofe teachers, therefore, became comerfant in feveral branches of literature ; and, as their theo- logical fyftem atTorded them great fcope for fpe- culation and reafoni ng, and conlequcntly for difle- rence of opinion ; they foon arranged themfelves in different feels ; difputed eagerly with one another ; and in proportion to their zeal in making prolclytes, acquiring a degree of acuteneCs and Ikill in delend- ing their feveral tenets. The learning and abilities which came, in this manner, to be poiTcfled by the clergy, together with the general ignorance and fupcrftition of the people, bellowed upon the former an influence and autho- rity over the latter, and produced, as I formerly took notice, an cxtcnfivc jnrifdictioii, both in eccle- lialUcal 4o8 HISTORICAL VIEW OF THE iiaflical and fecular matters. It is fufficient here to obfer.ve, that, in the exercife of this jurifdiclion, ec- clefiaftical judges were guided, as far as the difference of circumilances would pern.it, by the rules and principles of the Roman jurifprudence ; which had been tranfmitted from the ancient inhabitants of the provinces, and were delivered in the colleclions made by different Roman emperors, by Theodofms the younger, by Juftinian, and by many of his fuc- ceflbrs. The Rom;in fyftem became, in a great meafurc, the law of the church ; and was therefore propagated by her, with the fame zeal, and from the fame views and motives, by which flie was actuated in fupporting and extending her influence and au- thority. Tlie diforders which, for fome centuries, were continued by the fuccefiive invafions of new barbarous tribes, retarded, no doubt, the progrefs of every regular eftablifliment. But when Europe began to recover from thefe convulfions, and when the refloration of public tranquillity was followed, as there was reafon to expect, by the revival of let- ters, the efforts of the clergy, to extend the credit and authority of the Roman law, became highly confpicuous and fuccefsful. Innumxerable fchools were founded in cathedrals and monafteries, many of which, under the patronage of the church, ob- taining large endowments, and being invefted with jurifdiclion and various privileges, became what are now called univerfities. Both the canon law, which was the rule of decilion in ecclefiaftical courts, and the civil law^ properly fo called, the original fund from vv'hich a great part of the former had been ga- thered, vv-ere taught in thefe different feminaries, and thus rendered familiar, not only to thofe who had views of entering into holy orders, but to all who received the benefit of a liberal education. About the end of the eleventh century, Ivo de Cliartres publilhed a collection of canon-law, much more complete tlian any that had been formerly made \ ENGLISH GOVERNMENT. 409 made ; though it was much inferior to tlic fubfe- quent compilation of Gratian, a Benedicline monk, known by the title of the Dccretum. In the year 1137, thePifans, at the taking of the town of Amalphi, found a copy of Juftinian's Pan- decls ; and to this accident, the rapid cultivation of the civil law, from that period, has been commonly afcribed. But we may be allowed to entertain fome doubt, whether an event of that magnitude could have proceeded from a circumftance appa- rently fo frivolous. There is no reafon to believe that this book had been entirely loft in the Wcftern part of Europe, although, for a long time, it had been lefs in requeft than other compilations upon the fame fubjccl. Ivodc Chartres, in the preceding century, quotes the la\^'S of the Pandects ; and Irncrius, profcifor of law at Bologna, as early as the year 1128, prelected upon fome part at leaft of Juftinian's compohtions. Even fuppoling the Pandects to have been loft, there were many other writings upon the Roman law ftill remaining, from which the knowledge of it might, in fome degree, have been prcfcrvcd ; the the Inftitutes, the Codex; and the Novcllx of Jut- tinian ; the Theodofian code; and the compilations, publifhed after the time of Juftinian, by diifcrcnt emperors of Conftantinople. Neither is it likely that, if men had poflclfcd no previous difpofitioa to that ftudy, it would have been infpired by linding an old book upon the fubjcct. Few people will be at the pains to perufe a long book, upon any abftract fcicnce, unlefs they already feel a ftrong inclination to acquire the knowledge con- tained in it. But, in the twelfth century, when, from different circumftanccs, a fpirit of improve- ment began to diftufe itfelf in Italy and France, it is probable that men of learning were excited to the difcovcry of ancient books upon every fubjecT: ; and, as the civil law became then a principal objecT: of attention, the Pandects, containing thcfuUeft col- ic clicn 410 HISTORICAL VIEW OF THE lection of legal opinion and dccifions, was confidcred as the moil inftrudive work of thekind, and copies of it were greedily fought for. As Amalphi was, at this ^ time, the chief trading flate of Italy, an Amalphitan merchant, obferving the demand for books of that nature, is faid to have brouglit from Conftantinople this copy of the Pandecls, which was found by tlic Pifans. Some authors mention another copy of the fame book, that had been difcovered in the year 1128, at Ravenna*. However this be, the Roman law was, upon the revival of letters in Europe, univerfally held up, and admired, as the great fyftem, from an imitation of which the laws of each particulr country might re- ceive the higheft improvement. This the m^odern lawyers were, by their education, accuflomed to con- lider as the ftandard of reafon and equity ; and, wherever their own municipal cuftoms were defec- tive, they had recourfe to it, in order to fupply what was wanting, or to correct what was aniifs. Even fuch of the m.odern writers as endeavouredto deline- ate the principles of natural juftice, independent of all pofitive inftitutions, made ufe of the Roman fyftem, almoft exclufively of every other, in or- der to illuftrate their docTrines. Although the Roman law was, in this manner, generally incorporated in that of the modern Eu- ropean nations, it acquired more authority in fome of thefe nations than in others. The German em- perors appear to have confidered themfelves as the fucceffors to the Roman empire in the Weft, and their dominions as therefore fubjec^ to that fyftem of law by which the Romans were governed. Hence, in Germany, properly fo called, in the Southern part of France, or what are called the Pays de droit ecrlf, and in feveral parts of Italy, which, at the time when the German emperors enjoyed the higheft * Giannone, Hiftory of Naples. profperity , ENGLISH GOVERNMENT. 411 profperity, were included under their dominion, the Roman law is undcrftocKl to be the common law of the country, to which the inhabitants, upon the failure of their own municipal culloms and re- gulations, arc bound to fubmit. In other European countries it is vieweci in the liirht of a torciiin fvftcm : which, however, from its intrinfic merit, is entitled to great attention and regard; and of which many particulars have been, in a manner naturalized by long ufage, or adopted by the politive will of the le- gillature. This is the cafe in Spain, in Portugal, in the Northern parts, or what are called the Fays dcs coittumcs, in France, in Sweden, in Denmark, and in Scotland *. Upon the revival of letters, the fame regard to the Roman law was difcovered in England as in the other countries of Europe. It was propagated with equal zeal by the clergy, and, in tlie twelfth century, became the fubjecl of public lectures in both the uni- verfities. The decilions and principles delivered in the writings of Juftinian, were borrowed, and even the expreffion was frequently copied, by Braclon, by the author of Fleta, and by other Englifli lawyers of that period. The work attributed to Glanville, the grand jufticiary of Henry the Second, and a Scotch iaw-book, known by the name of R^ginni Ma^ijiaicm^ both fet out v/ith a palfagc which is almoft literally the fame ; whence, as well as for other reafons, it is concliicled, that the latter of thcfe productions has been copied from the former. Upon examination, however, the paffage in qucftion is found in the pre- face to the inititutes of Juftinian. The fettlement of the chief courts of common law in the neighbourhood of the capital, whidi was be- gun in confequence of the great charter of king John, and completed in the reign of Edward the EirH, * Duck Ac Auctoritate Jur. Civil.— It fliould ftcm, that, finer tl.c time v-hc-n this author wrote, tht itkas of the iiihaliitants, in fonv • ^f thole couiuiicft, have uadcrgonc a conlidtrablc chan^jc upon ihat ful)jt:'>. made 412 HISTORICAL VIEW OF THE made it neceHary that the lawyers, and other piac. titioners in thofe courts, fliould refide there alfo. Hence arofe the inns of courts and of chancery, which were lodging-places in the neighbourhood of Lon- don, intended for the accommodation of the retain- ers about the courts at Weftminfter. Seminaries of common law were foon form.ed in thofe places of refort ; and leclures upon that fubjccl: were given to the eldeft Undents, in the inns of court, and to the younger iludents, in the inns of chancery. The king gave encouragement to thefe inftltutions, by forming the members of each lodging-place into a fort of corporation, and by eftablifliing a fet of rules for their conducl. We find that Henry the Third beftowcd upon them an exclufive privilege, by pro- hibiting any other fchool for teaching law within the city of London. The univerlities of Oxford, and of Cambridge, were the only other inftitutions in the kingdom, in which law was taught v/ith public encourap-ement. But in thofe learned focieties, the only fyftems which had reputation, and which v/ere thought worthy of public lectures, were thofe of the civil and the canon law. The municipal law, from its tendency, in m.any particulars, to encourage violence and diforder, from the barbarous jargon in which it was involved, and from the want of literature among its prac- titioners, v/as treated with contempt. Thefe prac- titioners, v/e m.ay eafily imagine, were difpofed to retaliate thofe unfavourable fentiments. Upon this account, and from the diflance between the feats of initruclion, in civil and municipal law, the former contributed no affiRance to the latter. Thofe two branches of education were carried on apart, and became entirely diftinct, and feparate. The teachers of each, inftead of co-operating, in order to form a complete lawyer, were actuated by mutual jealoufy and oppolition ; and the one fcience being treated as dcfpicable in the univcrf^ties, the other was pra^ bably ENGLISH GOVERNMENT. 413 bably rcprefented as ufelefs by the practitioners of the common law. For fome time the civil law, under the patronage of the clergy, and of the univerlities, Mas in the higheft cueem throughout the nation ; and the ftudy ot the municipal law was confined to mere lawyers by profefiion ; but at length, from the natural courfe of things, the comparative value of thofe two branches of fcience was of neceflity altered. The latter, being that fyftem by which the property aiul the conduct of individuals were chiefly regulated, could not fail to rife in confideration and impor- tance : at the fame time that, by the progrefs of judges in experience and refinement, its defecis were gradually fupplied ; while the laws of Rome, \\hicli were unconnected with the ordinary courts of juf- tice, and therefore of no practical utility, became an object of little attention. We accordingly find, that, in the reign of .Ed- ward the Fourth, and even before that time, the inns of court and chancery had become the falhiona- ble places of education for men of rank and fortune, and were frequented by a great multitude of ftu- dents. There were four inns of court, and no lefs than ten of chancery : in each of the former, the number of ftudents amounted to about two hundred, in each of the latter, to about an hundred. Neitlier was the fyftem of education, in this great femiuary, confined entirely to law : it comprehended all exer- cifes, and every fort of accomplifhment, becoming a gentleman of the king's court ; fuch as dancing and mufic. Sir John Fortefcue informs us, that it Vv'as likewife cultomary to ftudy divinity on fcjtiviil days ; I fuppofe, by way of relaxation ^ Juftice Shallow is introduced by Shakci'peare,boafl- ing, that he had been a ftudent oi C/e//Ufil's Jnn, and * Fortefcue dc laudibus Leg. Ang — Alfo the difcourfc* on tliit fubjc*,^ prcfcrvid in Hearnc's coUciflicn of antiquitiet, that 4!4 HISTORICAL VIEW OF THE that he had often heard the chimes at midnight ; as a proof that he was a young' man of falhion and fpirit. — In the fame manner, as he boafted of his ac- quaintance with John of Gaunt. When thofc teachers of the common law had be- gun to feel their own confequence, they ailumed the privilege of beftowing rank upon their ftudents of a certain Handing ; and conferred the degrees of ferjeant^ and apprentice^ correfponding to thofe of dohor and bachelor in the univerfities. As the fcparation of the civil and the municipal law produced an averlion to the former in the inns of court and chancery, we may ealily conceive, that the fame prejudice would be commAinicated to their numerous pupils, and thus become prevalent among the nobility and gentry of the kingdom. Hence the jealoufy difcovered, on feveral occafions, by the l^nglifli parliament, left, by the influence of the clergy, the laws of ancient Rome fliould be intro- duced into England ; of which a remarkable in- flance is mentioned in the reign of Richard the Se- cond ; when the nobility, in parliament, declare, '' that the realm of England hath never been unto ** this hour, neither, by the confent of our lord the " kinsj, and the lords of parliament, fhall it ever be " ruled or governed by the civil law *." As the laws of ancient Rome had not been incorporated in the municipal fyftem, they feem to have been view- ed, by the partizans of the latter, in the fame light with the doclrines of a rival icci^ which has with difficulty been prevented from acquiring the fupe- riority in the national eftablifliment. It has been alleged by authors of note, that the oppofition of the Englidi nobility to the civil law, •arofe from its being the law of a defpotic govern- ment, and therefore inconfiilent with their notions of Englilh liberty. But whoever has examined tha, *• Blackflonc's Comnientarieii. compilations ENGLISH GOVERNMENT. 41 j compilations of Juftinian ^vilh any attention, muft be fenfible that there is no foundation for this re- mark. Thofe collections relate almoft entirely to the private, and touch very llightly upon the pub- lic law of the empire. But with refpecl to proper- ty, and the rights of private perfons, the opinions and decifions of the Roman law^'ers do not leem to have been at all perverted by the nature of their go- vernment. Perhaps it will be diilicult to point out any modern fyftem of law, in which the rules of juftice amiong individuals appear to be fo little warp- ed by the intereft of the crown, and in which the natural rights of m.ankind are inveftigated and en- forced with greater impartiality. In one or two cafes, you meet with an obfervation, *' that the " prince is above the laws." Thefe, however, are detached, and, as it v/ere, infulated expreflions, de- livered in general terms, and without any vihble effecl upon the body of the work ; which relates, not to difputes between the emperor and his fub- jecls, buttofuch as may arife among the people. After the free government of Rome was over- turned, the emperors found it expedient for a long time to conceal the extent of their ufurpation, and to leave the ordinary judges, in a great meafure, un- diilurbed in thje exercife of that jurifdiciion which had been founded in the more fortunate times of the republic. Auguftus firft fet the example of this prudent diffimulation, which was copied by a great number of his fucceflbrs. Befide the appre- henfion that the old republican fpirit was not en- tirely cxtingui{hed, and the circumftance that the throne contmued elective, the emperors were kept in. awe by thofe powerful armies, under particular officers of diftindlion, which were maintained in tlie provinces. Thefe were much fuperior to that prx- torian guard, which, for the immediate fupport of the imnerial dignity, was eilablillved in the neigh- bourhood of liume. In this manner a fort of ba- lance, 4i6 HISTORICAL VIEW OF THE lance, however precarious, was for fome time lielut, whatever be tlic caufes of it, the facf is certain, that, Spain excei)tcil, no other country can, in this particular, be broiiglit in competition with England. Particular mention ^44 HISTORICAL VIEW OF THE is made of the Englifli wool, even when Britain was a Roman province ; and, in the early periods of our liiilory, the exportation of that commodity was a conildcrable article of commerce. What is remark- iible, the Englifn wool of former times appears to I ave been of a finer quality than the prefcnt ; and there is even reafon to believe that it was held fupe- rior to the Spanifli*. Of this extraordinary fact it feems difficult to give any fatisfacfory account. I am credibly informed, that the im.provements, made of late years, in the paOure-grounds of England, have greatly debafed the quality of the wool ; though, by the increafe of the quantity, they have fufficiently indemnified the proprietors. • By poiTeffing the raw material in great plenty, the Englifli appear to have been incited, at an early pe- riod, to niake fome attempts toward the fabrication of it.- The woollen cloth of England is taken notice of while the country was under the dominion of the Romans. The diibrders which followed while the Saxons were fubduing the country, and during the fubfequent ravages of the Danes, gave great inter- ruption to manufaclures ; but, foon after the Nor- man conqueft, and particularly in the reigns of Henry the Third and Edward the Firft, that of Vv^ool- len cloth appears to have become an object of at- tentiono The fiourifhing reign of Edward the Third was extremely favourable to improvements ; and that enterpriung monarch, notwithilanding his ardour in the purfuit of military glory, was attentive to re- form, the internal policy of the kingdom, and gave particular encouragement to the v.^oollen manufac- tures. He invited and protected foreign manufac- turers ; and, in his reign, a number of Walloon vveavers, with their families, came and fettled in England. An acl of parliament was made, which * See Obfervation*. upon National Indullry, by James Andcrfon, and the autburitics to vsaiLth iie refers. prohibited ENGLISH GOVERNMENT. 445 prohibited the wearing of foreign cloth; and another, by which the exportation of wool was declared to be felony. Thefe regulati'^ns, hov/cvcr narrow the principles upon which they were built, were cer- tainly framed with the beft intentions : but they could have little or no cfl'ecl:, as the Kiiolifli, at that time, were neither capable of manufacturing the whole of their wool, nor even of fupplying their own demand for woollen cloth. The crown, therefore, in virtue of its difpenfmg power, was accuftomed to relieve the raifers of wool, by granting occafionally, to individuals, a licence for exportation ; and, as a difpenfation in this cafe was abiblutely neccllary to procure a market for the commodity, it becanie tlic Iburceofa revenue to the fovereign, v\'ho obtained a price for every licence which he beftowed. The woollen trade of England made confidcrablc advances in the reign of Henry the Seventh, when, after a long courfe of civil diflenfion, the people began to enjoy tranquillity under a prince who fa- voured and protected the arts of peace. About this time were fet on foot the coarfe woollen manufac- tures of Yorkfhire ; particularly at Wakefield, Eeeds, and Halifax ; places remarkably well adapted to that fpecies of work, from the plenty of coal, and the numerous fprings of water with which they are fup- plied. The extenfion of manufactures, about this period, became fo conliderable as to produce an alteration in the whole face of the country ; and in particular, gave rife to remarkable improvements in huft^andry, and in the difl'crent arts connected m ith it. The_ enlargement of towns and villages, compofed of tradefmen and merchants, could not fill to encreafe the demand for provilions in the neighbourhood, and, by enhancing the value of every article raifed by the farmers, to advance the profits of their em- ployment. From this improvement of their cir- cumftances, the tenants were foon enabled, by oficr- ins 446 HISTORICAL VIEW OF THE ing an additional rent, to procure leafes for a term of years : and the mafter, whofe daily expences were encreafed by the progrefs of trade and luxury, was content to receive a pecuniary compenfation, for the lofs of that authority over his dependants, which he was obliged to relinquifli. Thus the freedom and independence, which the mercantile and manufac- turing people derived from the nature of their em- ployment, was, in fome meafure, communicated to the peafantry ; who, inftead of remaining tenants at will, were fecured for a limited term in the pofleflion of their farms. In confequence of thefe changes, the number of villeins in England was greatly diminiflied, in the reign of Henry the Seventh ; and before the acceili- on of James theFirft, that clafs of men had entirely difappeared. Without any public law upon the fubjeft, their condition was gradually improved by particular bargains with their mafter ; and, accord- ing as their opulence enabled them to purchafe higher privileges, they acquired longer leafes, or were converted into copyholders^ qy freeholders. As, from this time, the Englifti continued, with unremitting ardour, to profecute their improve- ments, and were continually advancing in opulence, as well as in Ikill and dexterity, and in the habits ot induftry, it was to be expected that, in the long run, the pofTefilon of the rude material of the woollen ma- nufaclure would give them a manifeft fuperiority in that branch of buiinefs, and put in their power to underfell other nations who had not the fame ad- vantage. In the reign of queen Elizabeth, that fevere blow, which I formerly mentioned, was given to the trade of the Low Countries; by which every branch ot manufacture was greatly impaired, and that of wool- len cloth was totally deftroyed. Thus the deftruc- tion of the woollen trade of the Netherlands happen- ed at the very critical period, when the Englilii w^ere ENGLISH COVER N INI E N T. 447 \\ ere come to be in a condition of turning; that event to their own emolument. The manufacturers who had been driven from their native land lound a w el- come refuge from queen Elizabeth ; and tiie greater part of them took up their refidence in Kngland ; fo that the inhabitants of the former country became, in the highcft degree, inftrumental in promoting the trade of the latter ; inftead of retarding or de- prefling it, by that fuperiority of induftry and Ikill, and that uninterrupted pofTeflion of the market which they had long maintained. In Spain, the only other country of Europe enjoy- ing fimilar advantages to thofe of England, the im- provement of the woollen manufacture was pre- vented by a variety of concurring circumilanccs. The rooted animolity between the profelTors of the Chriftian and Mahometan religions, chcrifhed by the remembrance of many acts of cruelty and oppreflion, had excited Ferdinand of Arragon, when lie became mailer of the country, to perfecute the Moors, the only induftrious part of the inhabitants. In a fub- fequent reign, they were entirely extirpated. The fame imprudent and barbarous policy interrupted and difcouraged the trade of the Netherlands ; and, after thefe two flital events, the fudden importation of gold and filver into Spain, in confequence of tlie poffeffion of America, completed the deftruction of induftry among the people, by raifmg indiyiduais to fudden wealth, and making them defpife the flow and diftant returns of trade and manutaclures. Upon tlie ruin of the Spaniih Netherlands, were cftablilhed the line woollen manufac'lures oi' Wih- fiiire, and fome of the neighbouring counties ; thole parts of England which produced the greateft num- ber of flieep, and in which the luperior quality ot the wool was moft remarkable. The rapid Improve- ments in that great branch of manufacture, which bccam.e confpicuous in England, had a natural ten- dency to introduce other branches, more or leis conncilrd 443 HISTORICAL VIEW OF THE connecled with it ; and M'hen a great body of the people had acquired induftry and lldll in one fort of employment, it was not very difficult, as occafion required, to extend their application to other trades and profcffions. Vv hile thefe circumftances bcftowed upon England a fuperiority in manufaclures, flie began to enjoy advantages no lefs confpicuous, with regard to na- vigation and commerce. When the people of Eu- rope had become qualified for extenfive naval under- takings, the diftance of Britain from the continent, and her fituation as an iiland, afforded her a fupe- riority to moil: other countries in the numibcr of fuch harbours as have a free comm.unication with all parts of the globe. Her infular fituation was, at the iam.elime, not lefs advantageous with refpect to inland trade, from the numerous bays and rivers, Vv^hich by interfecling the country in different places, extended the benefit of water-carriage to the greater part of the inhabitants. As the bulk of the people became thus familiar with the dangers and viciffi- tudes incident to thofe who live upon water, they acquired habits which fitted them for a feafaring life, and rendered them, dextrous in thofe arts which are fubfervient to navigation, the great inftrument of commerce. In thefe circum.ftances, there has been fornied a numerous bociy of failors, equally prepared for commercial and for military enterprifes. As, in the early ftate of the feudal nations, the great body of the people were, v/ithout labour or expence, qualified for all the fervices of the field ; fo, in Bri- tain, a great proportion of the inhabitants, after the advancement of commerce, became a fort of naval militia, ready, upon ail occafions, for the equipment of her fleets, and, without the affiftance of 7m-vigation cBs, or other precautions of the legif- lature, fully fuilkient for the defence of the country. Thefe advantages, however, were rendered more ftable and permanent by the great extent of this iiland. ENGLISH GOVERNMENT. 4-19 illand, fupcrior to that of moft others upon tlic globe. This, as it united the inhabitants in one great ftate, made them capable ot exerting a force adequate to the proteclion of its commerce and ma- nufacTiures. To the extent of her dominions Great Britain is indebted for her long-continued profpc- rity. The commercial ftatcs, both in ancient and modern times, which were formed in illands of fmall extent, have been frequently overturned in a fliort time, either by the jealoufy of neighbours, or by an accidental collifion with more powerful nations. The prefent combination of European powers againft Great Britain, demonftrates the jealoufy which a national fuperiority in trade is likely to excite, and the force which is neceflary to maintain that dange- rous pre-eminence *. That the government of England, in that period, had alfo a peculiar tendency to promote her trade and manufactures, it is impoilible to doubt. As the inhabitants were better fccured in their property, and protected from oppreflive taxes, than in any other European kingdom, it is natural to fuppofc that their induftry was excited by the certain prof- pecT: of enjoying whatever they fliould acquire. Though the Englifh conftitution was then deftitute of many improvements which it has now happily received, yet, compared with the other extenfivc governments of Europe in that age, it may be re- garded as a fyftem of liberty. * This was written before the peace In 1781. G rr C: II A P. O 450 HISTORICAL VIEW OF THE C II A P. IX. Of Henry the Se-vcnth. — Clrcrmijlances icljieh, in bis reign, contributed to the exaltation of the Croiun. — Rc-viezu of the Government of this period. N the reign of Henry the Seventh, the power of the crown, which had been gradually advancing from the Norman conqueft, was exalted to a greater height than it had formerly attained. The circiim- ilances which produced this alteration, either arofe from the general ftate of the country, and the na- tural tendency of its government ; or were the confequence of lingular events, and occalional con- junctures. 1. The improvements in agriculture, and in trade and manufactures, which appeared fo confpicuoufly from the accellion of the Tudor family, contributed, more than any other circumftance, to increafe the influence and authority of the crown. By thefe im- provements, perfons of the lower clafs v\'ere led to the acquiiltion of different privileges and immu- nities : inftead of remaining in the idle fiate of re- tainers, they found employment either as farmers, who paying a fixed rent, were exem.ptcd from the arbitrary will of a mafter, or as tradefiTiCn and mer- chants, who, at a diftance from any fuperior, were enriched by the profits of their indultry. Thefe circumftances naturally produced thatfpirit of incie- pendence which is fo favourable to civil liberty, and which, in after times, exerted itfelf in oppofition to the power of the crown. But fuch was the fituation of the great body of the people, upon their iirft exaltation, that, inftead of attempting to deprefs, they were led to fupport the political influence of the monarch. His protection they had formerly experienced. ENGLISH GOVERNMENT. 451 experienced, in oppofition to thofe great proprietors of land in their neighbourhood, by whom they had been oppreilbd, and who ftill were ende.ivouring to retain them in lubjeclion. Notwithilanding the change of their condition, their power was not fo eftabiilhed as to enable them, alone and unprotected, to withftand thefe ancient oppreiVors ; and from tlieir former habits, as well as from the dangers and dilliculties which were not yet entirely removed, they ftill adhered to the fovereign as their natural proteclor. In this peculiar ftate of things, the in- terefl of the crown coincided with that of the great body of the people ; while the ambition of the no- bles appeared equally inconfiftent with both. To humble the ariftocracy was therefore the firft aim of the lower order of the inhabitants ; but, in their attempts to deftroy two or three hundred petty ty- rants, they incurred the hazard of raifing up a linglc one more pov/erful than them all. This union of the crown with the great body of the people, at the fame time that it primarily cn- creaied t^ e authority of the monarch, contributed indirectly to preferve the ancient privileges of par- liament. As the houfe of commons, which daily rofe to higher confideration, vv-as in the intereil of the king, and ufually fupported his meafures if not extremely odious and opprcllivc, he found it expe- dient to call frequent meetings of that ailcmbly.^ Thus the very power, which the interpofitions of parliament v.^ere calculated to reftraip, invited and prompted this national council to exercife its rights; because, in the exercife of them, it was difpoled to gratify the inclination or hum.our of the fovereign, who regarded prefent convenience more than the future e Heels of example. The fame views of intcreft, which led the king to call frequent meetings of parliament, induced him tobeftow additional weight upon the houfc of com- mons, by encrcafing the number of its member^. G g 2 For 452 HISTORICAL VIEW OF THE For this purpofe, many fmall towns, upon the demefne of the crown, were Incorporated, and in- vefted with ail the privileges of royal boroughs ; in confequcncc of which they became entitled to fend the ufual number of burgefl'es to parliament. In other towns, which had anciently been incorpo- rated- but which had long neglccled to fend repre- fentatives, that obligation was renewed and inforced. The poorer and more infignificant thefe boroughs were, they promoted more effeclually the defign with v/hich they were created ; being fo much the more dependent upon the fovereign, and the more likely to choofe rcprefentatives willing to follow his direction. During the reigns of the Tudor princes, after that of Henry the Seventh, and even upon the acceilion of the Stewart-family, this expedient was put in pradice to a great extent, and apparently with great liiccefs. Henry the Eighth reftored, or gave, to twelve counties, and to as many boroughs in Wales, the right of fending, each of them, one reprefen- tative. In other parts of his domain he alfa created eight new boroughs, requiring two delegates from each. Edward the Sixth created thirteen bo- roughs ; and reftored ten of thofe which had given up the right of reprefentation. Mary created ten, and renewed the ancient privilege in two. In the reign of Elizabeth, no fewer than tv/enty-four par- liamentary boroughs were created ; and feven were reftored. James the Firft created fix, and reftored eight. Charles the Firft reftored nine. From each of thefe boroughs two rcprefentatives appear to have been admitted*. The circumftances now mentioned will, in a great meafure, account for that very unequal reprefenta- tion in parliament, which has been fo often and fo juftly complained of. No view of national utility * See Notitla Paiiiamentaria, by Brown Wiiiis. could ENGLISH GOVERXMrXT. .y,^ could ever have produced lb grol's an abiurditv. But, as the king had an intcrcft in augmenting the houfe of commons, in order, with their aUiltancc, to counteract the influence of the peers ; fo by mul- tiplying the fmall and infignificant borouglis, he fecured a more numerous party in that lioule, and was enabled, with greater facility, to over-rule its determinations. 2. The occurrences which had preceded the acccf- fion of Henry the Seventh, and the general difpofi- tion which thefe had produced in the nation, were likewife highly favourable to the intercft of the mo- narch. During the long and bloody civil war be- tween the houies of York and Lancailer, every perfon of diftinclion had been engaged in fuppori- ing one or other of the competitors ; and, from tlie various turns of fortune exhibited in the progrefs of the conteft, had alternately filien under the power of the adverfe party. At the final termhia- tion of the difputc, many of the great families were totally ruined ; all of them were much cxhaufted and weakened. The dignity of the crown had, indeed, from the fame caufes, been alfo greatly impaired. But the royal demefnes were not fo liable to be dif- membered as thofe of the nobility ; and, upon tlic relloration of public tranquillity, the numerous refources of the monarch, which were all directed to the fame object, afibrded him great advantages, in extending his authority over a broken and disjointed arillocracy. During the alternate government of the two contending branches of the royal family, the partizans of both had probably occaiion to tliink their fervices undervalued ; and to be dilgultcd with the fyftcm of adminiftration which prevailed. Henry the Sixth, in whom the line of Lancaiter forfeited the crown, had, by his incapacity, excited univerfal contempt. The crimes of Richard the Third, the lad monarch of the houfe of York, had rendered him the objecl: of horror and dctcllation. 'iin e 454 HISTORICAL VIEW O F T II E Time and experience had gradually abated the zeal of party ; and the nation, tireCl in wafting its blood and trcaiiire in fo unprofitable a quarrcL, Mas become willing 'to adopt any fyilem that promifed a removal of the prefent diforders. Henry the Seventh, ac- cordingly, obtained the crown by a fort of compro- mife betvvxen the two parties ; being the acknow- ledged head of the houfe of La n caller ; and hn.ving come under a folem.n engagement to marry Eliza- beth, the daughter of Edward the Fourth, and now heirefs of the houfe of York. In that conjuncture a better bargain for the Yorkifts, or one m^ore likely to promote the general intereft of the nation, could hardly be expecled. lienry was the deliverer of his country from the tyranny of Richard ; and appears to have been the only perfon poil'efTed of fuch credit and influence, as v/ere necefiary to hold the fceptre with fteadioefs, and to create the expectation of a quite and permanent reign. The iam.e views and difpofitions which had eftablifhed this prince upon the throne, were likely to produce a general fubmiif- iion to his authority, and averiion to every meaiure which might occaf.on frefli difturbance, or threaten once more to plunge the nation into the former calamiities. 3. The perfonal character of Kenry was calculated for improving, to the utmoft, the advantages which he derived from his peculiar lituation. Lefs remark- able for the brilliancy of his talents, or the extent of his genius, than for the fblidity of his judgment, he difcovercd uncommon fagacity in difcerning his own iritereft, and unremitting affiduity and vigour in promotinrr it. Llis 9:reat obiecfs v»'ere, to maintain the poiicirion of the throne, to deprefs the nobility, and to exalt the prerogative ; and tliefe he appears to have invariably purfued, v/ithout being ever blinded by pafiion, relaxed by indolence, or milled by vanity. Cautious in forming no vilionary or diftant fchemes, he was refolute in executing his mcafures. ENGLISH GOVERNMENT. 45; nieafures, and dextrous in extricating himlclt' from di licauir:;-;. In war he dilplayed adivity, valour, and conduct, and was fortunate in all his undcrrak.inL;s ; but he fecms to have engaged in them from ncceili- -ty, or from the profpectot emolument, more than from the defire of procuring military reputation. Full of fufpicion, he admdttcti no perfon to his confi- dence ; but ailumed the entire direction of every public department ; and was even attentive to the moft minute and trivial concerns. His nnniilers were generally ecclehaftics, or men of low rank ; acd were employed as the mere inftruments of his srovernment. The jeaioufy which Henry difcovered of all tlie friends of the York family, and the fcverity with which he treated them, have been ufually cenfured as illiberal and impolitic. To the praile of liberal views and fentiments, this monarch had certainly no claim. But that this plan of conducl was con- trary to the maxims of found policy, may perhaps be doubted. When a political junto is fo much bro- ken and reduced as to be no longer formidable, pru- dence feems to require that its members Ihould not be pointed out by invidious diftinclions ; but that, by gentle treatment, they fnould be induced to lay afide their peculiar principles and opinions. But when the individuals of an unfuccefsful party are ilill podbfl^^d of fo much power, as to ailord the prof- perl of rlfing to fuperiority in the ftate, it is vain to expect that tiicir attachment will be fccured by marks of coiifi lencc and favour. Hopj co-operates with refentment, to keep alive the fpirit of oppofuion ; and the participation of honours and emoluments i-; only furniihing them with weapons for the deilruc- tion of their p'./litical enemies. iSuch was the litua- tion of the numerous adherents of the houfo of York. They had, indeed, yielded to the exigency of ihc times ; but they v/ere liiil puileffed of nuicli influence, and were fir fruui beiiig thoroughly re- conciled 456 HISTORICAL VIEW OF THE conclled to the advancement of a family M^hich they had fo long oppofed. From the imputation of avarice the character of Henry cannot fo eafily be vindicated. That vice, it fhould feem, was equally promoted by thofe ha- bits of minute attention for which he was noted, and by the circumftances of the crown during the period in which he lived. In the prefent age, when the chief fupport of government is derived from taxes, and when it is regarded as a duty upon the people to fupply all the deficiencies of the public revenue, the difpofition of the king to accumulate wealth would be a moft extrava2:ant and ridiculous propenfity. But in thofe times, when the private eftate of the fovereign was the principal fund for defraying his expences, and when every new exac- tion from his fubjects was deemed a general griev- ance, he had the fame intereft with every other in- dividual to praclife (xconomy ; and his love of mo- ney might be in reality the love of independence and of power. In all countries, accordingly, in v/hich commerce and the arts have made little progrefs, it becomes the aim of every wife prince, by frugality in time of peace, to prepare for war by amafiing a trealure. " Whereunto," fays miy Lord Bacon, in his character of Henry the Seventh, " I fhould " add, that having every day occalion to take no- " tice of the necellities and fliifts for money, of *' other great princes abroad, it did the better, by " comparifon, fet off to him the felicity of full " coffers." The ufe that mieht be made of the advancement of the commons, in raifmg the power of the croum, in oppofition to that of the nobility, feems not to have efcaped the penetration of Henry ; and in the Itatutes w^iich palled in his reign, we difcovcr the policy of the monarch, co-operating with the natu- ral improvem.ents of fociety, in diminifliing the in- fluence of t^iC ariftocracv. Th& ENGLISH GOVERNMENT. 457 The artifice of entails, rendered effeclual by a ftatute, in the reign of Edward the Firft, had for a long time prevented the barons from difmcmbering their eftates. But the general propenfity to aliena- tion, ariiing from the advancement of commerce and manufactures, became at length fo ftrong, th^it it could no longer be withllood by fuch unnatural reftraints. When a law is ciireclly contrary to the bent of a whole people, it mufl cither be repealed or evaded. In the reign of Edward the Fourth, the device of a common recovery^ that is, a collufive judg- ment by a court of juftice, was accordingly held fufficient to defeat an entail. For the fame purpofe, the inscenuit y of lawyers had fucrcrefted tlic ex- pedient oi-\fine^ or collufive agreement, entered up- on the records of a court ; to which Henry the Se- venth, by an acl of parliament, in the fourth year of hib reign, procured the fanclion of the Icgiflature. Thus, by the dilTolution of entails, an unbounded liberty was given to the alienation of land ; and by the growing luxury of the times, a great part of the wealth, which had been artificially accumulated in the poflefiion of the nobility, was gradually diflipat- ed and transferred to tlic commons. Wluitevcr might be the ultimate confequenccs of this altera- tion, its imm.ediate effects were undoubtedly ad- vantageous to the monarch. The wealth of the barons being leflcncd, while their manner of living was becoming more expen- iive, they were laid under the neceiiity of reducing the number of their military fervants. This change in the lituation of the nobility, lb conducive to the good order of the kingdom, parliament had re- peatedly endeavoured to promote, by prohiinting thrlr keeping retainers in liveries, for tlie purpole of aiTifting them in their quarrels ; a regulation which Henry is faid to have exerted the uimoft vi- gilance and activity to enforce. Many 453 HISTORICAL VIEW OF THE Many other regulations were introduced in this reign, which, by tending to improve t]ie police, and to promote the induftry and the importance of the lower orders of the people, contributed more indireclly to the fame political changes. From thefe concurring circumltances, the prero- gative was, no doubt, confiderably advanced, after the acceffion of Henry the Seventh. Its advance- ment, however, appears not fo much in the aiTump- tion of nev/ powers by the monarch, as in the dif- ferent fpirit with which the ancient powers began to be exercifed. This will be evident from an exami- nation of thofe different branches of governmicnt which cullom had then appropriated to the king, and to the national aflembly. The legiflative power, in conformity to the an- cient conRitution, v/as, without all quellion, ex- clufively vefted in parliament ; as the executive power, that of declaring peace and war, of levying troops, of commanding the armies, and, in gene- ral, that of providing for the national defence, was committed to the king. There were two methods, however, by which, upon fome occafions, the king evaded or encroached upon this pov/er of parlia- i» ent. When a ftatute proliibited any aclion, or enjoin- ed any rule of conduct, the king, as reprefenting the comm.unity, might remit the penalties incurred by the tranfgreilion of it. From a ftep of this nature it was thouQ-ht no coniiderable ftretch, that he ihouid previoufly give to individuals a difpenfation from the obfervance of the law ; fince the latter feemecl to be nothinfj; more than a diflerent mode of cxerciiing a power which he was univerfally allowed to poffefs. To pardon a criminal, after he has been guilty, is indeed lefi dangerous to fociety than to give a previous indulgence to the commiffion of crimes ; but in a rude age, this difference was likely to be overlooked. lieace the origin of the dlfpen- ENGLISH COVER N U E N T. 4-9 fingpoiL-er ; \\\\\c\\ was early exercifcd by the (oxc- rcign ; and wliicli, as long as it was kept within a narrow compafs, appears to have excited little atten- tion. By degrees, however, theic cxtraordir.arv interpofitions of the crown were multiplied, and extended to things of greater importance; and in fome cafes, inftead of granting a mere exemption to particular perfons, were at length carried fo fir as at once, by a general difpcnfation, to fufpend all the effecls of a ft;'.tute. '^lliis lafl exertion of the regal power, which v/as of much greater magnitude, appears tp have been, in fome meafure, concealed under the mafk of the former ; and had never been avowed as a ciiftincl branch of the prerogative *. It was indeed impofiible that the parliament could admit fuch a claim of the fovereign, without lur- rendering to him its legiflative authority. The ge- neral fufpenfion of a lav/ is equal to a temporary abrogation ; and therefore can only proceed from the fame power by which the law was made. But the difpenfing pcv/er of the crown, even in favour of particular perfons, had been virtually ciif- ailowed and reprobated in parliament. In the reign of Richard the Second, a power v/as granted to llic king of making fuch fujf'crance, touching ihc Jlatu'.c of provifors^ as Jhouid fean io him rcapiiable and profi- table. But this fratute, at the fame time that it implies his having, of himfelf, no fach authority, allows till::: power only until the next parliamerit ; and contains a protellation, that it is a novclly, and that it fliall not be drawn into example fur the time to come |. As * See the trial of the BiHiops in the reign of Janes II. In the coiirfc of thit trial, ill wiiicli all the hiwyrs of cmiiicTice were en;y.^;d, and contended evtrv point with great eaireni.Is, it is averted hy the cminlcl for tiie hi(hii|)», and not confradidlcd on the oihcr fide, that from tiie Norman conciii' (^, un- til the acccflr)n of the houfe of Stev/irr, a general power of fiilptndinij; or difpenfing with the laws Iia.l never l)e';n dire(il!y el aimed by th^;crown. f The flatiite, which palled in the /iftti.iki;f,ich f.Jfcriincc; tuuc'jing tin Jald Jlatiite, as Jhall fcem Uj bbrz rcafonahU and proji- " tiibU, until the next parliament, fo as the faid flatute be uot repealed in no " article thereof: and th t all thofe who have any benefices by force " of the faid flatute, before this prefent parliament ; and ah'b that all *' thofe, to whom any aid, tranquillity, or advantage is accrued by virtue " of the faid ftatntc, of the benefices of holy church (of which they were " heretofore in pofiefTion) as well bv prefcntation or collation of our lord " the king, as of the ordinaries, or religious perfons whatfoever, or by '* any other manner or way whatfoever ; may freely have and enjoy " them, and peaceably continue their pollelTion thereof, without being ouft- ^' ed thereof, or anv ways challenged, hindered, rr.olefted, difqiiieted, or " grieved hereafter, bv anv provifors or others, againfl the form and eifcvft of " the flatute aforefaid, by reafon of the faid fufFerance, in any time to conie. " And moreover, that the fiiid commons mav dilagree, at the next pariia- '^ ment, to this fiifferance, and fully refort to the faid ftatute, if it iliall " fL-em good to them to do it : with protcjlation, this aflent which is a rovdty, " and has not been done before this time, be not draivn into cxampL or coitfiquence, <' for tiiiie to come. And they prayed our lord the king, that the protefta- *' tion might bs entered of record in the roll of parliament : and the king " granted and commanded to do it." The (latute of Pro'-jifors had prohibited, under fevere penalties, the pro- curing or accepting ecclefialiical benefices from the pope; and it is evident that bv the prefent al of parliament, it was intended that the king llicukl difpenfe with that ftatute in favour of particular perfons onlv, not that he iliould all at once fufpend the e'Ject of it. Even this difpcnfation to indivi- duals is tcrqied a /(sW/y. difpleafurQ ENGLISH GOVERNMENT. 461 dilpleafure by calling their validity in qucftion, the royal proclamations Avcre allowed to advance in au- thority, according to the increafing influence and dignity of the crown. In the reig'n of Henry the Seventh, they rofe to higher conlideraticn than'they had pollefied in any former period. But even in this reign, it is not pretended that they had the force of laws ; nor does it appear that they were made effectual by the ordinary courts of juftice. 2. Under the legillative power was included that of determining the rules by which the people fliould contribute to defray the expence of government. The right of impofing taxes had therefore been in- variably claimed and exercifed by parliament. But, in order to procure money, without the authority of that afl'embly, the king had recourfe to a variety of expedients. The lirft, and mod obvious, was that of folicitino- a benevol ence. This was originally a contril)ution made by the king's immediate vailals ; but, from a relaxation of the ancient feudal principles, had after- wards, in the reign, it Ihould feeni, of Edward \\\z Fourth, been extended over the whole kingdom*. It was always, except in three fmgular cafes, confi- dered as a free gift ; and could not be levied by force, from fuch as perfiftcd in refuhng it. But althou^-h the people were not bound, in law, to contribute; they had every inducement from expediency ; hncc a refufal was likely to be attended witli greater incon- veniency than the payment of the money whicii was demanded. From the difcretionary power of exe- cuting the law, the crown had many opportunities of haraffing thofe who ihewed ihemieKxs unwilling to relieve its necefTities ; and feldom could fail to make them heartily repent of their obllinacy. In • Tliis cxtciifion of a hetin>ole<:ci: \% probably what is meant by l.oril Kacori t»fhen he fays, " 1 liis tax was dcvifcd by £Jward tht louith, fur whiihhc " fuftaincd much envy." particular, a62 historical view OF THE particular, from the clireclion of the army, the kin^ had the power of quartering troops in any part of the idngdom ; by v/hich mean-; he was enabled, hoAvever unjuitly, to create expence and vexation to fuch of the inhabitants as had not complied with his demands. The very folicitation of a benevo- lence upon the part of the crown, was therefore juftly regarded in the light of hardiliip ; and in the preceding reign, appears to have been, in every fhape, condemned and prohibited by parliament : which provides, " that the king's fubjeds Ihall from '"' henceforth, in no wife, be charged by fuch charge, " exaction, or impoiition called a benevolence^ nor " by luch like charge ; and that fuch exacli- '* ons called benevolences, before this time taken, be " taken for no example, to make any fuch, or any " like charge of any of the king's fubjecls, hereaf- " ter, but ihall he damned and annulled for ever * ,'* Notwithilanding the violence with which the le- giflature had thus teftified its difapprobation of this practice, we lind that in the feventh year of Henry the Seventh, the parliament, upon occaiionof a war with France, exprefsly permitted the king to levy a benevolence. That this, however, was intended as a m.ere voluntary contribution, appears from the account of it given by Lord Bacon, who fays, it was to be Xdvicdfrojuthe more able fort, and mentions a tradition concerning the argumients which the commiiiioners for gathering the benevolence were inftrucled to employ ; ''• that, if they met M-ith " any that were Iparing, they ihould tell them, '• that they muil needs have, becaufe they laid up ; '' and if they were fpenders, they mull needs have, *•' becaufe it was feen in their port, and manner of " living : fo neither kind came amifs.'* This was called by fome blihop Morton's fork, by others his crutch +. * I Richard III. c. 2. \ Hjft. of the reii^u of Henrv the Seventh. In ENGLISH GOVERNMENT. 463 In a few years after, parliainent niaJe wliat nw Lord Bacon calls an underproppin;^ act of the benc-vG- Icnce, by ordaining that the fums, wliich any pcr- fon had agreed to pay, might be levied by the'ordin- rycourfeoflaw. This acl, however, lUllfuppofes that, independent of the confent of the party, no contri- bution of this nature could ever be made e/Ieclual. Befide the benevolence formerly mentioned, which was obtained by the permiJlion of the Ic^^if- lature, there was only one more levied by Henry the Seventh. On all other occafions, the general affeilments procured by this monarch were lupported by the authority of parliament, and impofed in the direct form of a tax. When the kings of England had rcafon to fufpecl that the benevolence of their fubjecls might be ex- haufted, they had fometimes recourfc to another expedient, that of requefting a loan. This mode of relief, as it ftrongly marked the neceflities of the crown, and its reluctance to burden the people, and required no more than the temporary ufe of their money, could with lefs decency be withheld. But, in reality, a loan, when granted to the fovcreign, came to be nearly of the fame amount with a bene- volence. From the condition of the debtor, he could never be compelled to do juftice to his creditors ; and his circumftances were fuch as always afforded plaufible pretences for delaying and evading repay- ment. Although the nature of a loan, implying a mutual tranfaction, appeared to exclude any idea of right in demanding it, yet the fame indirect methods might eafily be praclifed by the crown for procuring a fupply in this manner, as under the form of a bene- volence. We accordingly find, that in a j^arliamcnt, as early as the reign of Kdward the Third, the com- mons pray the king, " that the loans' which were " grantecl to the king by many of that body may *' be rclcafed ; and none compelled to make fuch " loans for the future againfl hii will, for that it " was 4^4 HISTORICAL VIEW OF THE " was agalnft reafon and the franchife of the land ; " and that reftitution might be given to thofe who " had made the loans." The king's anlwer was, " that it lliould be done *." It does not appear that Henry the Seventh ever praclifed this mode of exaction. Purveyance was another fpecies of exaction, by which the people were expofed to great vexation from the crovv-n. It was requifite that the king and his followers, who in early times were frequently moving over different parts of the country, iliould, wherever they came, be fpeedily fupplied with pro- viiions. Inftead of making, therefore, a previous barbain with the inhabitants, the officers of the crown were accuftomed to lay hold of fuch commo- dities as were wanted, leaving commonly the indem- nification of the proprietors to fome future occafion. It may eafily be fappofed, that this practice was lia- ble to much abufe, and that thofe Vv'hom the kins: employed m this department would endeavour to make profit at the expence of the people. The num- ber of ftatutes, that from the reign of Edward the Fird, were made for preventing the fraud and op- preffion of the king's purveyors, afford fufficient evi- dence of the great enormities with which that fet of people had been charged, and of which they proba- bly were guilty f. It muft not be overlooked, that, from the exclufive power of making laws, with which parliament was invefted, that aflembly had the privilege of refi:rain- ing thefe, and all other arbitrary proceedings of the crown. Its exertions for this purpofe, however, were frequently interrupted or prevented by the want of a fixed rule with refpecl to the times of its meeting. * 26th of Edward lU. See Parliamentary Hiflory in that year, f See 28 Edw. I. c. 2 — 4 Fdw. Hi. c.4. — 5 Edw. IH. c. 2. — 10 Edvv. III. flat. 4.-25 Edw. in. flat. 5— 36 Edw. III.— I Rich. II.C.3X.-— 6 Rich. II. ftat. a. c. 2. — 23 Henry VI. Upon ENGLISH GOVERNIVIENT. 465 Upon the diAife of the ancient praclice, by which padiaments had been regularly held at the three Hated feftivals of Fafter, Whitluntide, and Chrill:. mas, the power of convening thofe aileniblics tic- volved entirely upon the king. The magiilrate, entrufted with the fupremc execution of the laws already exifting, was the beft qualified to difcovcr, in what cafes thefe were defeclive, and upon what occafions a new interpofition of the Icgillaturc wa5 requifite. In that iimple age it was perhaps not ap- prehended that with a view of extending the pre- rogative, he would be difpofcd to avoid the meet- ings of parliament ; or rather, the barons trufted, that, whenever they had a mind, they could compel him to fummon thofe meetings. But when experi- ence had Ihewn the abufes in this particular, which were likely to arife, it was thought proper that the difcretionary power of the crown fliould be limited ; and accordingly, by a ftatute in the fourth year of Edward the Third, it Avas exprefsly provided, that " a parliament fliall be held every year once, and " oftner if need be." By another llatute, in the thirty- fixth year of the fame reign, this regulation is confirmed *. In a fubfequent period, when the houfe of commons had begun to throw confiderablc weight into the fcale of the crown, it became the intereft of the king to fummon frequent meetings of parliament ; and the nobility were of confe- quence, lefs anxious to enforce this branch of his duty. Henry the Seventh, during the reign of twenty-three years, had occafion to convene feven different parliaments. To diflblve a parliament was originally nothing more than to put an end to the attendance of it members ; vv^ith which, as it faved them from fartlicr exn onces, they were rommonly well fiti.-.fied. I'c- fore the introdudion of reprcfentativcs into that ♦ Statutes at Large. li h adembly. 4<56 HISTORICAL VIEW OF THE afiembly, every new meeting of the barons was pro- perly a new parliament; and there could no diftinclion between a diffolution of parliament and a prorogation. But after the eftablifhment of the houfe of com- mons, which confifted of members whofe election was attended with trouble and expence, it became conve- nient that the fame parliament lliould, in fome cafes bs? prolonged, and that there iiiould be intervals in its meeting. When the meetings of parliament came thus to be divided into different I'eilions, the power of pro- roguing a parliament from one feilion to another, like that of diilolving it, was devolved upon the crown ; and for along time, this branch of the prerogdtive was exercifed within fuch narrow limits as to excite no appreheniion oriealoufy. The danger of allowing too great an interval between one parliament and another, as well as that of permitting the king to reign entirely without a parliam.cnt, was always ma- nifeft \ but the mdfchiefs ariiing from the long con- tinuance of the fame parliament ; the reducing the members of the houfe of commons, more immedi- ately, under the influence of the crov/n, and render- ing them lefs dependent upon their conftituents ; in a word, the erection of the national afiembly into a ftanding fenate, and dcftroying, or at leaft greatly impairing, its reprefentative characler ; thefe evils had never been felt, and, in that early age, v/ere not likely to be forefeen. 3. With refpecl: to the judicial power, it muft be acknowledged, that the extent of the prerogative was, in feveral refpecfs, incompatible with an equal and proper diftribution of juilice. The nature and origin of the Jiar-chamber have been formerly confidered. This court confifled of the king and his privy-council, together with the iudges of the principal courts, and fuch other per- "ibns as, in each particular cafe, he thought pro- per to nominate ; and was intended for the de- termination of fuch criminal actions as were beyond the ENGLISH GOVERNMENT. 467 the jurifdiclion of the ordinary tribunals. Beinpj calculated to lupply the deficiency of the common rules of penal law like the chancery in thofe relating to civil rights, it was regarded, in early times, as an inftitution of great utility. But, as the limits of its jurifdiclion could not be afcertained with ac- curacy ; as the actions of which it took cognizance related principally to crimes afieding the llate, in v/hich the crown was immediately interefted ; and as the king, by fitting in this tribunal, was enabled to control and direct its decilions ; we have every reafon to believe that its proceedings were partial and arbitrary, and that it might eafily be employed as an engine of minifterial oppreilion. According as the crown rofe in authority, the jurifdiclion of this court was enlarged ; and being, in certain cafes, confirmed by acf of parliament, in the reign of Henry the Seventh, was, by the fubfequcnt princes of the Tudor line, rendered yet more inllrumental in promoting the incroachments of the monarch. When a military enterprizc had occafioned the levying of troops, it was necelfary that among thcfc a ftricler and more fevere difcipline fliould be en- forced, than among the reft of the people. Hence the oritiin of the martial la'-ji\ as diftin^uifhed from the common law of the kingdom. As, according to the policy of the feudal governments, the king had the power of calling out into the field all his military vaflals, with their followers, it feemed a natural confequence, that he might, at plcafure ex- tend to the whole of his fubjecTs that arbitrary fyf- temoflaw, which was held luitable to men living in camps. In that period of the Englilh hiftory, when family feuds and civil wars were frequent and univerfal, thi:^ extcnfion might often pr )\ e fain ry, as the means of quelling and pre', cnting diforders. It was, at the fame time, a measure from whicli great abufes might be experto^i : as it lupcrfcdcd, at once, that mild and equitable fyftcui of legula- H h 2 lions, 463 HISTORICAL VIEW OF THE tions, by which the rights and liberties of the na« tion were lecured. But the chief handle for the oppreffion of indi- viduals, arofe from the influence of the crown in the direftion and conducl of public profecutions. As every public profecution proceeded in the name of the king, and was carried on by an ofncer whom he appointed during pleafure, he poflefled, of courfe, a dilcretionary power in bringing the trial to an ilTue. Thus, by direfting the profecution of indi- viduals for any atrocious crime, it was in the power of the fovereign to deprive them of their liberty, and fubjecT them to an indefinite imprifonment. Early attempts had been made to prevent this abufe of the prerogative ; and in the great charter of king John, as well as in that of Henry the Third, it is provided, that there fhaU be no unrcafonable delay of juflice. This regulation was conceived in terms too vague and general, to be of much advantage ; although its meaning and fpirit Vv^as fufficiently ob- vious. Henry the Seventh carried the abufe to fuch a height, as, upon pretence of crimes, to make a trade of imprifoning pcrfons of great opulence, and of extorting from them funis of money as the price of their liberty. The names of Empfon and Dud- ley, as the common agents of the crown in that in- famous traffic, have been handed down to poflerity ; and it is remarkable that the houfe of commons, in- flead of difcovering a refentment of fuch notorious oppreffion, made choice of Dudley for their fpeaker. The houfe of commons v.'ere, at this period, attach- ed to the crown ; and probably took little concern in the fate of the great barons, againil whom, upon account of their opulence, and their oppofition to the king, this kind of extortion was moft likely to be committed. But although thefc minions, for fome time, efcaped the vengeance due to their ini- quitous practices, it overtook them in the beginning of the next reign ; when, in confequence both of the ENGLISH GOVERNMENT. 469 the fentence of a court and of a bill of attainder in parliament, they were condemned to death and exe- cuted. Upon the whole, it is a grofs error to ilippofe, that the Englifh government was rendered abfolute in the reign of fienry the Seventh, 'lliere is, on the contrary, no reafon to believe, that any mate- rial variation v/as produced in the former conliitu- tion. Although the influence of the crown was in- creafed, the prerogative remained upon its former bails. The king's authority was entirely fubordi- nate to that of the national aflembly ; and if, in fome cafes, precautions had not been taken to pre- vent his arb'trary and oppreflive meafures, this was owing to the want of experience, which prevented the le2:iflaturc from fucfsreftinir a remedv. Thofe abufes of prerogative, although they might have excited occaiional difcontent and clamour, had not yet attained fuch magnitude, or been fo long con- tinued, as to demonftrate that a general limitation was neceilary. The period of Henry the Seventh in England, correfponded, in fome meafure, to that of Lewis the Eleventh in France. Charles the Seventh, tlie father of this prince, had recovered the kingdom from the Englifh ; and, after long convulhons and diforders, had re-eftabliflied the public tranquillity. The nature of the ftruggle in which he was engaged, had excited a national fpirit in favour of tlie crown, wliile the fuccefs of his undertaking rendered liim highly popular, and difpofed his fubjecls to promote and fupport all his meafures. By the feizure of thofc lands which had been in the polfellion of the enemy, it is probable that the royal denjefnes were alfo aug- mejited. Lewis came to the tiironc at a time when thefe favourable circumftanccs had begun to operate, and by his abilities and political chararler Avas capable of im])roving them to the utmoiL 'i'he fuddcn annexation of many great liefs to the crown contribuled 470 HISTORICAL VIEW OF THE contributed likewife to extend its influence. Upon the deceafe of the duke of Burgundy, without male defcendants, the monarch found himfelf in a condi- tion to feize that dutchy, as not being tranfmiflible to females. He acquired Provence by a legacy ; and, in a little time after, his fon Charles the Long, by marrying the heirefs of Brittany, became the mafter of that territory. The authority of the fovereign, however, which had formerly been advancing with greater rapidity in France than in England, became now much more abfolute, and unlimited. Lewis the Eleventh new- modelled, and afterwards laid afide, the convention of eftates, having united in his own perfon the le- gillative and executive powers. The fame line of conduct was in general purfued by his fucceifors ; although, in one or two extraordinary cafes, the temporary exigence of the prince might induce him to fummon that ancient affembly. In feveral other go- vernments upon the continent, we may alfo obferve, that, nearly about the fame period, the circum- ftaiices of the monarch were fuch as produced a fimilar exaltation of the prerogative. CHAP, ENGLISH GOVERNMENT. 471 C H A P. X. Of Henry the Eighth. — The Rcformat'ion. — lis diufcs. — The E^f'cds of it upo7i the bifuencc of the Crcicn. ULeNRY the Eighth reaped the full benefit of thofe favounible circuniftances which bes^an to ope- rate, and of that uniform policy which had been exerted, in the reign of his father. By uniting, at the f;\me time, in the right of his father and mother, the titles of the two houfes of York and Lancafter, he put an end to the remains of that political aninio- fity which had fo long divided the nation ; and was univcrfally acknowledged by hisfubjecls as the law- ful heir of the kingdom. Thcperfonal character of this monarch was better fuited to the pofTenion and enjoyment of power, than to the employment of the flov/ and gradual means by which it \< to be ac- quired. Vain, arrogant, hcadftrong, and inllexi- ble, he fliowed little dexterity in the management of his afTairs ; was unable to brook oppofnion or control ; and, infteadof fhunning every appearance of ufurpation, was rather folicitous to let llif* no opportunity for the difplay of his authority. The moft remarkable event, in the reign of Ilenry the Eighth, was the fudden downfal of that great fyftem' of ecclefiaifical tyranny, which, during the courfe of many centuries, the policy ofthcRonian pontilT had been continually extending. To this religious reformation, the minds of men, in other European countries as well as in England, were prcdifpoicd and excited by the changes which had lately occurred in the general ilatc of fociety. I. The Chriftian religion, by teaching mankiiul to believe in the unity of the Deity, prefcnfed io their minds the contemplation of the allonifhing at- triljutcs 472 HISTORICAL VIEW OF THE tributes difplayed in the government of the univerfe. While the profeflbrs of Chriftianity thus agreed in the main article of their belief, other difpofition to fpeculate upon other points was promoted by their differences of opinion, by the controverfies with one another in which they were unavoidably engaged, and by the variety of feels into which they were at length divided. The church, however, aflumed the power of determining the orthodox faith ; and by degrees availed herfclf of the prevailing fuperfti- tion, in order to propagate fuch opinions as were moft fubfervient to her intereft. Hence the doc- trines relating to purgatory, to the impofition of penances, to auricular confeffion, to the power of granting a remiffion of fins, or a difpenfation from particular obfervances, with inch other tenets and practices as contributed to cncreafc the influence of the clergy, were introduced and eftablifhed. — Not contented with requiring an implicit belief in thofe particular opinions, the church proceeded fo far as to exclude entirely the exercife of private judgment in matters of religion ; and, in order to prevent all difpute or enquiry upon that fubject, even denied to the people the perufal of the facred fcrip- tures, which had been intended to direft the faith and manners of Chriflians. A fyftem of fuch unna- tural reftraint, which nothing but extreme igno- rance and fuperftition could have fupported, it was to be expected that the firft advances of literature , would be fufTicient to overturn. Upon the revival of letters, accordingly, in the fourteenth and fifteenth centuries, it was no longer poffible to prevent man- kin^ from indulging their natural propenfity in the purfuit of knowledge, and from examining thofe fundamental tenets of Chriftianity which had been fo anxioufiy withheld from their view. They were even prom.pted, fo much the more, to pry into the ipyflcries of religion, becaufe it was prohibited. To difcover ENGLISH GOVERNMENT. 473 difcover the abfurdity of many of thofc doctrines, to which an implicit affent had btcn rctjuircd, was not di'Jicult. But the mere examination of them was to rejccl the decrees of the church, and to merit tlic cenfure of contumacy. 2. While the advancement of knowledi^c difpofcd men to exert their own judgment in matters of re- ligion, the progrefs of arts, and of luxury, c( iinrclcrvLd convcrnuion ontl.c fame fubjcca.— ll.c great Monttlqincu i>^intcd out the road. He was the Lord Bucoii in thi. braacli of p.idolopby. Dr. ^qiith is the ^\^vtou. . , . <' dilcrjls. 474 H I S T O R I C A L V I E W O F T H E " diftrefs, and the relievers of their indicjerice. On " the contrary, they were provoked and difgiifted " by the vanity, luxury, and expence of the richer " clergy, who appeared to fpend upon their ou-n " pleaiiires what had alwavs before been reg^arded " as the patrimony of the poor." 3. The improvement of arts, which obliged the dignified clergy, as well as the great barons, to dif- mifs their retainers, enabled this inferior clafs of men to procure fubfiftence in a different manner, by the exercife of particular trades and profqflions. By this way of life they were placed in a condition which rendered them lefs dependent upon their fuperiors, and by which they M^ere difpofed to refift every fpecies of tyranny, whether ecclefiaftical or civil. That fpirit of liberty, hov/ever, which, from thefe circumiiances, was gradually infufed into the great body of the people, began former to appear in oppoling the ufurpations of the church, than in rcftraining the encroachments of the king's prero- gative. In pulling down the fabric of ecclefiaftical power, and in ft ripping the clergy of their wealth, all who had any profpect of iliaring in the fpoii might be expected to give their concurrence. But in limiting the power of the crown, the eilbrts of the people Vvxre counteracted by the whole weight of the civil authority. Thus, in England, the refor- mation was introduced more than a century ^before the commencment of the ftruggle between Charles the Firft and his parliament ; although the f\me principle which produced the latter of thefe events, was evidently the chief caufe of the former. But whence has it happened, that the circum- ftances above-mentioned have operated more efiec- tually in fbme parts of Europe than in others ? What has enabled the pope to retain in obedience one half of his dominions, v.hile the other has rejected his a.uthority? That this was owing, in fome meafure, to accident, it fecms impoftibic to deny. The exif- tcnce ENGLISH GOVERNMENT. -rs tcnceoffucha pcrfon as Luther in Germany, the difpute that arole in England between Henry the Eighth and his ^vife, the policy of particular princes, which led them to promote or to oppofe the intercft of his holinefs ; thele, and other fuch cafual occur- rences, during the courfe of this great religious controvcrfy, had undoubtedly a confiderable inllu- ence in determining its fate. We may take notice, however, of certain fixed caufes, m hich contributed more to the progrefs of the reformation in fomc of the European countries than in other>^. I. The Roman pontiff found it eaficr to maintain his authority in the neighbourhood of his capital than in countries at a greater diftance. The fupcr- Hition of the people was not, indeed, greater in the neighbourhood of Rome than in the diftant parts of Europe. The contrary is well known to have been the cafe. But Rome was the centre of ccclefialiical preferment, and the refidence, as well as the occa- lipnal refort, of great numbers of the moft opulent churchmen, vrhofe influence over the people was proportionably extenfive. Llere the pope was a temporal, as well as an ecclefiallical fovcreign ; and could employ the arm of flefli, as well as the arm of the fpirit. Befides, he had here a better opportu- nity, than in remoter countries, of obferving and managing the difpofitions and humours of tiic inha- bitants ; and, being at hand to difcover the feeds of any diforder, was enabled to crufli a rebellion in the bud. This circumftance tended to prevent, or to check, the reformation in Italy, or in France, more than in Sweden, in Denmark, in Germany, in Eng- land, or in Scotland. 2. Independent of accidental circumfiances, it was to be expected that thofc countries, wjiich made the quickcft progrefs in trade and manufactures, would be the firil to difpute and rcjecl: the pajial au- thority. The im.provement of arts, and the coniequent vUffulion of knowledge, contributed on the (»ne hand. 4-j6 HISTORICAL VIEW OF THE hand, to cUfpel tlie mid: of fuperftition, and, on the other, to place the bulk of a people in fituations which inipired them with fentiments of liberty. That principle, in Ihort, which is to be regarded as the general caufe of the reformation, produced the moil powerful effects in thofc countries where it exiiled the fooneft, and met with the greateft en- coura9;ement. This alone will account for the banimment of the Romiih religion from the independent towns of Germany, from the Dutch provinces, and from England ; thofe parts of Europe which were foon polTeffed of an extenlivc commerce. In the ten provinces of the Netherlands, the advancement of trade and manufaclures Vv^as productive of iimilar effects. The inhabitants acquired an attachmxcnt to the doctrines of the reformation ; and maintained them with a degree of courage and nrm.nefs which nothing lefs than the whole power of the Spanilli monarchy was able to fubdue. In France too the fame fpirit became early confpicuous, in that part of the inhabitants which had made the greateft im- provement in arts ; and, had it not been for the moft vigorous efforts of the crown, accompanied with the moil: infamous perfidy and barbarity, and aififtedby the celebrated league of the Catholic pow- ers, it is probable that Calvinifm would have ob- tained the dominion of the Galilean church. The tendency of mercantile improvements to introduce an abhorrence of the Catholic fuperftition, and of papal domination, is thus equally illuftrated from the hiftory of thofe kingdoms, where the reforma- tion prevailed, as of thofe where, by the concur- rence of cafual events, it was obftrudted and coun- teracted. 3. In thofe countries where the fmallnefs of a fcate had given rife to a republican conftitution, the fame notions of liberty were eaiily extended from civil to ccclcfiallical government. The people, in thofe ENGLISH GOVERNMENT. 477 thofe governments, were not only dlfpofcd to rcjccl: the authority of the pope, as they did that of a tem- poral fovereign ; but were even difguftcd with the hierarchy, no lefs than with that fubordination wliich is required in a monarchy. Hence that hij^h-toncd fpecics of reformation, which began in Geneva, and infome of the Swifs cantons; and which, from the weakncfs and imprudent cppofition of the crown, was introduced by the populace into Scotland. The fmall ftates of Italy, indeed, although tlicv fell vinder a republican government, and ibmc oV them were diftinguiflied by their early advancement in commerce, have remained in the Catholic church. In fome of the cantons of Switzerland, notwith- ftanding their very limited extent, and their popular government, the reformation Jias likewile been unfuccefsful. The vicinity of the pope's refidence, and of his temporal dominions, appear, in fpite of the circumftances which had fo plainly an oppofite tendency, to have retained them uncier his jurif- cliclion. It may deferve, however, to be remarked, that the Venetians, the principal traders of Italy, and who formed the rnoft eminent republic, though tlicy did not ellablifh the doctrines of any i'cct of the re- formers, effected what is perhaps more dillicult, and had more the appearance of moderation : they climiniflied the authority of the pope, without reject- ing it altogether ; and, though they did not attempt to root out the ancient fyflcm, they lopped offiucli parts of it as they deemed inconliilent with their civil conftitution. After the controverfy between the Calliolics and Proteftants had proceeded fo far, in England, as to divide the whole nation, Henry the Eighth becanu; poflcffcd of additional inQuence, by holding a fort of balance between the two parties. Allhougli tin' prince had quarrelled with tiie p:ip il authorit), :uul was wiUing to enrich himfelfb) tlie plunder dMIu- church, he adhered rcligioufly to many ot ihole te- nets 47S HISTORICAL VIEW OF THE nets which had given the greateft offence to the re- formers. While he took the lead in the reformation, he aflumed the power of direcfing and controlling its progrefs ; and as he ftili kept meafures with botk parties, he was at the fame time feared and courted by both. In the end, however, he ellabiifhed a fyf- tcm which was agreeable to neither. The reformation, as it was modelled in this reign, opened a new fource of influence and authority to the fovereign. The diilolution of the monafte'ries, whofe revenues were immediately annexed to the crov/n, beiiovv'ed upon him a large acceflion of riches. Thefe funds, indeed, in confequence of the improvements in trade and manufacTures, which tended to augment the expences of the king, as well as of the great barons, were afterwards diilipated, and, in the end, transferred to that lower order of people who by their induftry were enabled to accu- mulate wealth. As the pope was ilripped of all that authority v/hich he had poffelled in England, the king became the head of the church ; and as the Englifh hierar- chy was, without any variation, permuted to re- main, he acquired, by the difpofal of all the higher benefices, the entire direclion of the clergy, and con- ibquentlythe command of that influence which they ■ftill maintained over the people. By claiming, at thefime time, the fupremacy of the Roman pontiff, the fovereign was furnifiied with a new pretext for affuming the power to difpenfe with the law. But, notwitliftandingail the circumfiances which contributed to extend the influence of the crown, tiie prerogative, during the greateft part of this king's reign, appears to have remained upon this fame footing as in t^iat of his predeceffor. Through the wiiolc of it, the power of impoiing taxes was uniformly exercifed by parliament. Upon one oc- cafion, a loan v>''as demanded by the king ; but fo iituc money was raifed by it, that an immediate application ENGLISH GOVERNMENT. 479 application to parliament became necclTary for pro- curinc^ a fubfidy. Cardinal Wollby, in the plcniiudc of liis power, feemsto have projected an encroachment upon this branch of the conflitution. He be^^an by inlerferino- in the debates of the commons, in relation to a m(> ney-bill, and iniilled upon the liberty of reafonino- with them upon the fubjecl. But tills demand \\\is peremptorily refufed ; and he was uual>Ie to pro- cure the fupply, in the terms which lie had propofei!. Not long after, he attempted to levy a tux by the authority of the crown ; but this mcafure excited fuch univerfal commotion, and refentment, that Henry thought fit to difavow the wliole proceed- ing, and fcnt letters all over England, declarino-, that he would ajk nothing but by way of benevolence* . From this time no money was levied by the kln'>- without the confent of parliament ; except in tlic thirty-fifth year of his reign, when a benevolence was again folicited. It is further to be obferved, that the parliamentary grants of fuj>ply to the kin'^'-, Vv'ere fometimes preceded by an inquiry into the propriety of the w^irs which he had undertaken, or of the other meafurcs of government by which liis demand of money had been occafioned. The legillativc authority of tlie national council was no lefs regularly exerted. It was by acl of jxir- liainent that the monafteries were iujjprefled ; that the king became the head of the cliurch ; that tiie authority of the pope in England, toi^^ether with all the revenues which he drew from that kinf>-doin, was abolifhed ; in Iliort, that the ancient fyllem (>f ecclefiaftical government w^as overturned, in tiic numerous divorces procured by the l.iverei'j^if, in ihe regulations that were made concerning llie leo-i- timacy of the children by his different wives, in the • This attempt wai made JQ the vcar Iji6, aatl ilic 17th of tliis Jciiiv. Sec Pari. Hillory, vol. III. various 48o HISTORICAL VIEW OF THE various and contradictory fettlements of the crown, Henry never pretended to act by virtue of his own prerogative, but continually llieltered himfelf under the fanclion of parliamentary eftablifliment. Nothing, indeed, could exceed the fervility with which the parliaments, efpecially in the latter part of this reign, complied with the moft eccentric in- clinations of the monarch. Pleafed with the general tendency of his meafures, by which the nation was delivered from the yoke of papal dominion, they feem to have refolved not to quarrel with his ridi- culous humours, nor even with particular acls of tyranny and oppreilion. In a dangerous diftemper, they were unwilling to reject a violent medicine, on account of the uneafmefs and trouble with which its operation was attended. Their complaiflmce, how- ever, was at length carried fo far as to make them abandon their own privileges. In the thirty-firft year of Henry the Eighth, it was enafted, " That " the king, with the advice of his council, might " iffue proclamations, under fuch penalties as he " Ihould think neceilary, and that thefe fliould be " obferved, as though they were made by a(fl of " parliament," with this limitation, " that they " Ihould not be prejudicial to any perfon's inheri- *' tance, ofiices, liberties, goods, chattels, or life *."■ What are the particular fubjects of proclamation, which do not fail within the reftrictions mentroned in this aft, is not very clear. But there can be no doubt that it contains a delegation, from parliament,^, of its legiflative authority ; which, in pracftice, might foon have been extended beyond the original purpofe for which it was granted. By another fta- tute, about the fime time, the king was impow- ered, with the afliftance of a committee, or even by his own authority alone, to regulate the religious * 31 Henry VIIl. ch. 8. tenets. ENGLISH GOVERNMENT. 481 tenets, as well as the external obfcrvances, of the kingdom. If thefe powers had been afcertained, and con- firmed by ulage, the government of England would have become as abfolute as that of France was ren- dered by Lewis the Eleventh. Fortunately, the Englifli monarch, from the obfequiouliiei's of p.irlia- ment, had little occalion to exercii'e this new branch of prerogative ; and, as he did not live to reduce it into a fyftem, the conftitution, in the reign of his fuccelTor, returned into its former channel. The lall years of Henry the Eighth exhibited the greatell: elevation, which the crown ever attained, under the princes of the Tudor family. C li A P. XL Of Edward the Sixth — Mary — a7id Elizabeth. — General Review of the Government. — Conch fion of the Period from the Norman Conqiafl to the Acccffion of the Houfe of Stewart. x5y the minority of Edward the Sixth, the amlu- tlous deiigns of his father became entirely abortive. The adminiilration was committed to a ct)uncil of the nobles ; who, from want of authority, fr()ni difagreemcnt among themfelvcs, or from the defire of popularity, v/ere induced to retrench all the late cxtenfions of prerogative. The very firil year of this reiti-n produced a repeal of that ollenfivc ilatute, by which royal proclaniations had, in any cafe, ol)- tained the force of laws. Other innovations, which had proceeded from the extraordinary iidluence ot lienrvthc Ei'-^hth, were likcwifc aboliflicd j ami, in 1 i a Jliort ^82 li I S T O III C A L V 1 E W OF THE a fhort time, the former conflltution was completely reftored. The reformation, although it continued the direction which had been given to it by Henry the Eighth, was carried, in this reign, to an extent, and acquired a form, fomewhat more agreeable to the general fentinients of the party by whom it v/as euibraccd. The reign of Mary is chiefly diftinguifiied by the violent ftruggle which it produced, in order to re- eftablilh the Roman catholic fuperftition. Although the reform.ation was, at this time, acceptable to the majority of the nation, there ftill remained a nume- rous body, zcaloufiy attached to the ancient reli- gion, and highly exafperated by the late innovations. With this powerful fupport, and by the moil vigo- rous exertion of crown-influence upon the elections of the commons, Mary was able to procure a parlia- ment entirely devoted to her intereft, and willing to execute her defigns *. The reftitution of the reve- nues, of which the monafteries had been plundered, and in which a great part of the nobility and gentry had been fliarers, was the only meafure at which they feemed to feel any fcruple of confcience. But the reign of Mary, though it occafioned a violent fiiock to the reformation, was too fliort for extir- pating thole religious opinions, which had taken a deep root through the kingdom ; and which upon the acceflion of her fucceilor, were prudently culti- vated and brought to maturity. In the Englilh annals we meet with no reign fo uniformly fplendid and fortunate as that of Elizabeth. Never did any fovereign, lince the days of Alfred, enjoy fuch high and fuch de- ferved popularity, or procure fuch exteniive ad- vantages to the nation. To her the nation was indebted for the fecurity of religious, the great forerunner of civil liberty. Her own religion coin- * Burnet's Hidory of the Rcfcrmation. cided ENGLISH GOVERNMENT 483 cided with that of the greater part of her fubjeds ; who looked up to her as their deliverer from a in- perftition which they abhorred. Nor did flie ap- pear in this light to her own liibjecls only : fhe was the great fupport and protector of the Proteftant in- terell in Europe ; and, while this drew upon her the enmity of all the Catholic powers, flie was en- deared to her own people by the reflection, that her zeal in defending them from the tyranny of Rome was continually expofing her to machinations, which threatened to bereave her of her crown and her life. Her magnanimity and public fpirit, her penetration and dexterity, her activity and vigour of mind, her undaunted refolution, and command of a temper naturally violent and impetuous, were equally con- fpicuous in her domeflic and foreign tranfac4ions ; and in the whole courfe of her adminiftration, it will be hard to point out an inftance where fhe miftook herpoiitical intercft, or was guilty of any error or ne- glect in promoting it. Notwithllanding the number and power of her enemies, and in fpite of all the combinations that were formed againft her, (lie main- tained invariably the peace and tranquillity of her own dominions ; and her fubjecfs, during a reign of five and forty years, enjoyed a courfe of uninter- rupted profperity and happinefs. Whether Elizabeth entertained a juft idea of the Englifli conftitution, has been called in queftion. But fuch as her idea was, her behaviour feems to have been ftrictly conformable to it. Between the prerogative, and the privileges of parliament, flie appears to have drawn a fixed line ; and as in Iier greateft profperity flie never exceeded this i)oundary, fo in the utmoft diftrefs and perplexity (he never permitted the leaft encroachment upon it. With the legiflative power of parliament flie never interfered. The exclufive privilege of that alleuibly, in impoling taxes, was neither controverted by her, nor impaired. There i; no vcilige uf her eitiier at 1 i 2 tempting 484 HISTORICAL VIEW OF THE tempting, or defiriiig, to violate thefc important branches of parliamentary authority*. Mention is made of her having, in one or two cafes, obtained a loan from her fubjecls : but there is no appear- ance that any compulfion was employed in making it effectual ; and her conduct is, in this particular, illuftrioufly diftinguifhed from that of moft other princes, by her punctual repayment of the money. Inftead of alking a benevolence, flie even refufed it when offered by parliament. Such expedients, indeed, for procuring fupplies, v/ere in a great mea- fure fuperfluous. So rigid was her oeconomy, fo great and fo apparent were the occalions upon which Ihe ever demanded a fupply, fuch was the confidence rcpofed in her by parliament, and fo intimately did they conceive her interprizes to be connected with the public welfare, that they never difcovered any reluctance to grant whatever funis of money fhe thought proper to require. There was one point invariably maintained by Elizabeth, in which, to thofe who form their noti- ons of the Englifli government from what is at pre- fent eftablifhed, flie appears to have been guilty of an encroachment. An act of parliament originally proceeded upon a petition to the fovereign for the redrefs of a grievance, or the removal of forne incon- venience ; and when this petition had obtained the king's confent, it acquired the force of a law. Ac- cordincr to this method of conducting: the bufmefs of lesfiflation, the kins: had no occafion to declare his refolution concerning any bill, until it was difcuffed, and finally approved of, by both houfes of parlia- ment. Before this was done, it could not be confi- dered as a national requeft, to which an anfwer from the throne was demanded. From the nature of this tranfaction, and from the view of faving trouble to the fovereign, a regular * In tlie i;,th of Elizalictli, we find parliament ftrongly afi'crting its power to fettle and limit the fucccllion to the crown, by dccbriny it hi^h treafon ior any perfon to call this power iu queftion. courfe ENGLISH GOVERNMENT. ,48; courfe of procedure was thus introduccil, hv \vl\ii.[i any new law received the allent dt" the crown, alter the fanclion of the other two branches of the leoif. hrture had been given to its cnaclment. This prac- tice, cieriving authority from cuftoni, was at leni;th followed independent of the circuniftances from which it had been originally fuggefted ; anii was confirmed by the experience of a later age, which difcovered, that any deviation from it would be at- tended with dangerous confequences. When the propofal of a new lav.-, after being fully debated in parliament, has excited the public attention, antl its utility has become apparent to the nation, the crown is, in moft cafes, unwilling to counteract the incli- nations of the people, by refufing its confent to the meafure. But if the fovereign were permitted to fmother any bill, the moment it was propol'cd in parliament, there could fcarcely exill a polllbiliiy that any new law, difagreeable to the crown, or ad- verfe to the views of a miniftry, fliould ever be en- acted. It has therefore become a fundamental prin- ciple of the conftitution, that, with a few excepti- ons, the king (hall not take notice of any bill de- pending in parliament ; and that, before it has pafl"- ed the two houfes, the Royal alTcnt or negative (liall not be declared. But that this rule was completely and invariably eftabliilied in the reign oM'.lizabeth, there is no rea- fon to believe. The political expediency ot" fuch a regulation was, in that age, not likely to become an objecT: of general attention. Neither was it inconfil- tent with the nature ot the bufinefs, however con- trary to the ufual practice, that the king, u\nm the introduction of a bill into parliament, Ihould \)vi \ciit the labour of a fruitlcls difcuillon by .in immediate interpofition of his negative *. * Wt find, however, that cvtii fo early as the ftcoiul (»f H<-nry tlir Fourtli, the ciimnuins pctitiomd the kinjj, that he would not fuflir anv rc- ])')rt to he made to liim ot'iiiattei>i dthatcd amoni^f\ llitm, till ll.ty lliould he conclutitu ; to whiclx the kinjj afleiited. Of 485 HISTORICAL VIEW OF THE Of this interpolition Elizabeth exhibited fome re- markable iriitances. The fir ft improvement of arts, manufaclures, and commerce, by railing the lower clafs of the inhabitants to a better condition, difpofed them to free themfelves from the tyranny of the great barons, and, for that purpofe, to court the protection of the crown. But when this im- provement vv^as farther extended, the great body of the people became ftill m^ore independent, and found themfelves capable of defending their privi- leges, whether in oppofition to the crown or to the nobles. This gave rife to a new fpirit, which be- came confpicuous after the acceilion of James the Firft, but of which the dawn began to appear in the reign of his predecefiTor ; a fpirit of liberty in the commons, by which they were incited to regulate and to reftrain fuch branches of the prerogative as appeared the mofc liable to abufe, and moft inconfif- tent with the enjoyment of thofe rights which they M'erc difpofed to afi'ert. Whenever a bill of this tendency was brought into parliament ; fuch as that for limiting the crown as head of the church, or for the diminution of its power in granting monopolies ; the queen made no fcruple to declare immediately her oppofition to the meafure.and even to prohibit any farther debate upon the fubjecl:. In doing this, flie feems to have confider- ed herfelf as merely defending thofe riglits of the crown Avhlch had been tranfmitted by her anceftors. Is not thefovereign, faid the miniftry in thofe cafes, a branch of the legiilature ? Has Ihe not a voice in the pailing of lav/s ? When her negative has once been interpofed, all farther deliberation upon the fubjecl mull be entirely excluded ; and the bill muit be laid afide, in the famic manner as if it had been rejected by either houfe of parliament. This view of the prerogative fuggelled another exeriion of authority, v/hich in the prefcnt age, has been thought ftill more illegal and arbitrary than the former. If at any Itage of a bill in parliament, die ENGLISH G O V E R N M E N T. 487 the crown was entitled to interpofe its ne'^ative, it fecmed to be a confcqucnce, that, upon the cxcrcilc of this right, any farther del. ate or deliberation up- on the fabjecl was precluded. The attempt to pro- fecute the bill, after fuch intimation was given upon the part of the crown, was to rcjecl the determina- tion of the legillature, to contemn the authority of the fovcreign, and, by Miction and clamour, to llir up difordcr and difcontent. A behaviour of this kind was thought liable to punilhmcnt ; and Kliza- beth, upon Icveral occalions, adventured to impri- fon thoie niembers of parliament who perfifted in pufliing forward thofe bills which had been refufed by the crown. It is proper to remark, that thefe exertions of lier power were limited to cafes of that nature. She never prevented the difcuillon of any bill in parlia- ment, except in cafes where her ancient prerogative was invaded ; nor did fhe ever pretend to punifii the liberty of fpeech, unlef-> when indulged in con- tinuinq; to pufli thofe bills which flie had declared her final rcfolution torejecft. That fuch proceedings, however, by intimidat- ing members of parliament, are caleulatcvl to pre- vent the proper diicharge of their duty, \^ indil'put- able. The liberal ideas upon tliis point, whicli arc now happily reduced into practice, may be rcganled as one of the greateft miprovcments in the Britiih coniHtution. That a fenator may be encouraged to perform his duty to the public v/ith fteadinels and confidence, he ought to enjoy an unbounded lil>crty of fpeech, and to be guarded againft t)ic refenlment either of the fovcreign, or of any other perfons in power, whom that liberty may oiTend. from the control of that houfe, of wliich he is a meml)c-r, li'. is likely to be prevented from any great indecency and licentioufnefs in the cxercife of this privilege ; and his parliamentary conducl: ihould not be im- peached, or called in queftion, in any other court, OV 488 HISTORICAL VIEW OF THE or from any other quarter. This principle is now fufficiently undcrftood, and univerfally acknow- ledged. Its eftabliiliment, however, marks a degree of refinement, and of experience in political fpecu- lation, which, under the government of the Tudor princes, the nation could hardly be fuppofed to at- tain ; and the liberty of fpccch, then belonging to members of parliament, was probably limited to fub- jecls which that alTembly had a right to difcufs. The fituation of religious controverfy, in the reign of Elizabeth, gave rife to a new eccleliaftical tribunal, which, in after times, was likewife held inconfiftent with free government, the court of high commijfioyi. It muft be acknowledged, that the pri- mitive reformers, in any country of Europe, though they zealoufly oppofed the papal tyranny, were far from adopting the liberal principle of religious to- leration. Such a principle would, perhaps, have been unfuitable to their circumftances, which re- quired that they fliould combat the moll inveterate orejudices, and overturn a fyftem, which for ages had been advancing in refpecl and authority. As, in England, the king fucceeded to the fupremacy, which had been veiled in the Roman pontiff, he be- came the judge of orthodoxy in m.atters of religion ; and afiumed the power of direcring the modes and forms of religious woriliip. This authority was, by Tlenry the Eighth, delegated to a fingle perfon, with the title of Lord vicercgcnt. In the reign of Elizabeth, parliament, thinking it fafer that fucli jvirifdiclion fnould be entrufted to a numerous meet- inp-, empowered the queen to appoint a commiirion for the exercife pf it*. This alteration was a mani- left improvenient ; yet the court of high commiHion was fo little fettered by the rules of law, and was {o much calculated to indulge the rancour and anim.oiity infpired by theological difputes, that we may eafily * Burnet, Hift. Pvcfcrm. fuppofe ENGLISH GOVERNMENT. 485 fuppofe the complaints, wliicli it excited, \vcrc not without foundation. Its abolition, in :i Iviblcqucnt rei^n, was farther recommended from this confi- deration, that, after the full eftablifliment of the re- formation, the fame necefiity of inculcatin^jj unifor- mity of religious tenets could no longer be pre- tended. The great hiftorian oi' England, to whom the rea- der is indebted for the complete union ot liiitory with philofophy, appears very ftrongly imprefl'ed with a notion of the defpotical government in the reisrn of Elizabeth, and of the arbitrary and tyran- nical conduct difplayed by that princels. I. Heobferves, that " Ihe lufpcnded the laws, (o " far as to order a great part of the fervice, the li- ^^ tany, the Lord's prayer, the creed, and the gofpcls, " to be read in Englilh. And, having firfl: publifli- " ed injunctions, that all the churches Ihould con- " form themfelves to the pra<5lice of her own chapel, " fhe forbad the hofte to be any more elevated in " her prefence ; an innovation, which, however " frivolous it may appear, implied the moll matc- " rial confequences." But Vv-e muft not forget, that, in this cafe, the difpenfing power was exercifed under great limita- tions and in very Angular circumllances. Upon the accelTion of Elizabeth, the Proteftants, who now formed the grcateil part of her fubjecls, exafperat- ed by the late perfecution, and in full confidence of protection, began to make violent changes ; to re- vive the fervice autliorized by Edward the Sixth, to pulldown images, ai;d to afl'ront the priefts of the Roman catholic perfuafion. The queen had called a parhament to fettle the national religion ; but, in order to flop the progrefs of thefe diforders, an immediate interpofition of the crown was ncceflary. It was even pretended by fome, that the parlla- jnents, in the late reign, had not been legally iicid, and that of confequcHce the laws of Edward the bixlh. 490 HISTORICAL VIEY/ OF THE Sixth, relating to the government of the churcli, were flill in force *. But, whatever reocard mip-ht be due to this, a temporary indulgence to the Pro- teftants, with refpecl to the external forms of reli- gious worfliip, was highly expedient for quieting their minds, and for preventing the comm.lflion of greater enormities. This indulgence was followed by a proclamation prohibiting all innovations, until the matters in difpute Ihould be linally determined by parliament ; and, confidering the circumftances of the cafe, ouo;ht to be regfarded rather as a mea- fure calculated for the prefent fecurity of the efta- biiflied religion and its profeiTors, than as a violent exertion of the prerogative, in oppoiition to the laws of the land. 2. But this author, not contented with afcribing to the crown a power of fufpending the laws, has gone fo far as to aifert, that it was entitled, at plea- fure, to introduce new ftatutes. " In reality," fays he, " the crown poileiTed the full legiilative " power, by means of proclamations, which niight *' effect any matter, even of the greateft importance, " and which the ftar-chamber took care to fee more " rigoroufly executed than the lavvs themfelvesj." In anfwer to this, it will perhaps be thought fuf- ficient to obferve, that anciently the crown poffeiled no legiilative pov/er ; that royal proclamations were firft declared to have the force of laws, in the latter part of the reign of Henry the Eighth ; that even then, this force was given them under great reftric- tions, and in fmgular cafes ; and that in the begin- ning of the fubfequent reign, it was entirely abo- liilied by the fame authority from which it had pro- ceeded. If the ftar-cham.ber, therefore, fupported this power in the reign of Elizabeth, it muft have been * Burnet. f Mill, of Eiig. vol. v. Appendix 3, in ENGLISH GOVERNMENT. 49: in direct violation of the conftitution ; and it is not likely, that ftretches of this kind would oAcn be atteinpted. Bui let us confidcr what \\crc the pro- clamations iiTucd in this reign, which the ftar-chani- ber had an opportunity to enforce. In virtue of the papal fuprcixiacy, with which flic was invcfted, Klizabeth prohibited prophccyings^ or particular af- femblies inftituted for fanatical purpoles, and liot authorized by the church *. Having the regulation of trade and manufactures, flie alfo prohibited the culture ofziWiid, a plant ufed for the purpofe of dy- ing. And, as a direclor of ceremonies, prefcribing rules for the drefs of thofe who appeared at court, or in public places, ihe gave orders that the length of the iwords, and the height of the rufls then in fafliion, fliould be diminiihed. Ihefe are the im- portant inftances adduced in order to prove that Elizabeth fuperfeded the authority of acls of parlia- ment, and ailumed the legiflative power in her own perfon. 3. The fame hiftorian appears to conceive, that, among other branches of prerogative exercifed by Elizabeth, was that of impoling taxes. *' There " was," he remarks, " a fpecies oi' jhip-moncy impofcd '' at the time of the Spanifli invalion : tlie feveral " ports were required to equip a certain number of *' vefiels at their own charge ; and iuch wa>> tlic *' alacrity of the people for the public defence, *' that fome of the ports, particularly Lon- *' don, lent double the number demanded of " them j." And in a fubfequent period of the Eng- lilh hiftory, having mentionetl a recjuilliion made by Charles the Firft, that the maritime towns, ioge- * In the fifth of Elizabeth there v us paflcd ai) aift, cunforr: -.Lie to n pre- ceding one ill the reign of Jidwarcl the Six'Ji, ai^ainity-.y ..v./^' ..•/.'.-..' /r»- fluc-ci corcernini^the qiiau a:id Jk'frs ljn::o:ru-a//, fed ct poUticu, iple i'uo populo dominatur. Si " rfjo-^/f tan turn ipfc pr^eeflct iis, leges regni fui mntaie ille pofTet, tallat^'miT: " quoque etc-Etera oncra cisimpcerc ipfis iiicjnfiiitij." — Fcrt.faw, dc Laudltui " fame. ENGLISH GOVERNMENT. 501 " fame. For fuch a kinc; is made and ordained for " tlie defence of the law oF his fubjecls, and oF " their bodies, and p;oods, whereunto he receivelh " power of his people, fo that he cannot govern his *' people by any other power.*" — Then follows a more particular application of this doch-ine to the conftitution of Enj^land. " Now whether the fta- " tutcs of England be good or not, that only re- " maineth to be diCcuflcd. For they proceed' not " only from the prince's plcafure, as do the laws of " thofe kingdoms that arc ruled only by rc^nl g- «' pulo clilnxam ipfe lubtt, quo ci non Ijcct pottlhitc alia luo populu Uu- " miiiari."— Cap. 13. a i j f " Statuta tunc Anj^lorum. bona fint nccnc, fnlum rtllat c«plf.:hm {.,i,> i:u.,-vi ip'f". ip':» «i'ndunti;r. quo populi ta-)urani ilia *♦ cfliccre ncqucunt, vti \mu cuimu coniniodum pioturarc."— Cap. 18. 502 HISTORICAL VIEW OF THE therefore gone about to bring in the civil laws to the government of England, and to abolifh their own country laws. For what purpoie and intent they fo did I much marvel. — You would nothing marvel thereat, quoth the Chancellor, if you did deeply confider with yourfelf the caufe of this intent. For you have heard before, how that among the civil laws, that maxim or rule is a fentence moft notable, which thus fmgeth, The prince's pleafure ^ftandeth in force of a law ; quite contrary to the decrees of the laws of England, whereby the king thereof ruleth his people, not only by regal but alfo by political government ; infomuch that, at the time of his coronation, he is bound by an oath to the obfervance of his own law : which thing fome kings of England, not well brooking, as thinking that thereby they fhould not freely govern their fubjecis as other kings do, whofc rule is only regal, governing their people by the civil law, and chiefly by that forefaid maxim of the fame law, whereby, they, at their pleafure, change laws, make new laws, execute puniihments, burden their fubjecls with charges ; and alfo, when they lift, do determine contro- verfies of fuitors, as pleafeth them. Wherefore thefe your progenitors M^ent about to caft off the yoke political, that they alfo might rule, or rather rage over the people their fubjecls in regal wife only : not conlidering that the power of both kings is equal, as in the aforefaid treatife of the law of nature is declared, and that to rule the people by government political is no yoke, but liberty, and great fecurity, not only to the fub- jects, but alfo to the king himfelf, and further no fmall lightening or eafement to his char2:e. And that this may appear more evident unto you, ponder and weigh the experience of both regiments ; and begin with the king of France, perufing after what fort he ruleth his fubjefe, ^^by ENGLISH GOVERNMENT. 50^ " hj regal government alone : and then come to the *• effect of the joint governance, regiil ;uk1 p-JiticuU " examining by experience how and in what man- " ncr thekingof KngUindgoverneth his fubjecls •." After thefe obfcrvations, the author, in t\\'0 Veparatc chapters,contralls tliemifery produced by the abfolute government in France with the happinefs refulting from the limited monarchy in F.ngland. The whole treatife is well worth an attentive perufal ; as it contains thejudgm.ent of a celebrated law\'er, con- cerning the mixed form of the Englifli conllitution, at a period when fomc \\axq. conceived it to be no lefs arbitrarj^ and defpotical than that which was eflablifhcd in France or in any other kinq-dom of hurope. It will occur to the reader, that the opinion oi Sir John Fortefcuc, in the paffagcs above quoted, is widely different from that of Mr. Hume, v» ho nuin- • " Nonne vidcn jam, princeps, cbriflimc, leges Anglix tantp ningis •' clarefcerc, quanto tifdem tu amplius rcluiftaris ? Prhi^:pi, viieti, iiii]t!it, c: ♦' eai inter totius orbis jurafin cafu quo tu jam fudafti) prxfiilgcrc cnnrul'-To \ " tamen progtuitoram meorum Anglix regnuni c|uofdam aiidiviuiiis, in Icgi- " bus fuis riinime dck-cftatos, fatagentcs proiiide leges civiLs ad Angli.c rcgi- " men inducere, et patrias leges rcputiiarc conatos : horum rcvcr^i coulilium " vehemeoter admiror. Cancellurius. Noii aJmiraicria, I'riiiccp*, li ^aul.ini " hujus conaminis mente folicita pertraiflarcs. Aud.fli naiiiquc fupiiiii* " quomodo inter leges civiks prsfccip'ja feiiteiitia eft, maxima Ave ;'c£;ula iii.i " qua; lie C.init, quod pvinApi placuU U^s habet I'igoro/i : qutiircr lion idiu'itip.t " leges xVnglia;, dum ncdum r<-fj// /<;/•, fed et pd'itkf rex cjiifdcm di, i xordium fumito : Jundc •' a nyc//i ct/iJ;<;.; rcgiminis eirccUi, ipialitcr rcx Anglix dominatur in libi »' fubditos populys, txptrienliaiii q"'»:it ■' Vide cap. j2, JJ, ^. {Mm 504 HISTORICAL VIEW OF THE tains that the legiflatlve power of the Englifh parlia- ment was a vntrtfallary. The other Englilh writer, from whofe authority it appears that the government of England was, at this time, underftood to be a limited monarchy, is Sir Thomas Smith, a diftinguiOied lawyer, and principal fecretary both toEdv/ard the Sixth and to Elizabeth. InhA^s Commonwealth of En ;^:hi7id-, a work which unites liberality of fentiment with fome phi- lofophy ; this author, after explaining the origin and progrefs of government, has occafion to confider m.ore particularly the nature of theEnglifli confcitu- tion. " The moil: high and abfolute power," fays he, " of the realm of England, conlifteth in the *' parliament. — The parliament abrogateth old " laws, maketh nevv, giveth order for things paft, " and for things hereafter to be followed, changeth " rights and poffefiions of private men, legitim.ateth " baftards, eftabliilieth forms of religion, altereth " weights and meafures, giveth form of fucceliion " to the crown, defmeth of doubtful rights, Vv'here- " of no law is already made, appointeth fubfidies, '' tailles, taxes, and impoiitions, giveth moft free " pardons and abfolutions, reftoreth in blood and " name, as the highefl court, condemneth or ab- " folveth them whom the prince will put to " that trial. And, to be Ihort, all that ever " the people of Rome might do, either in " cenliiriatis comiiiis, or tribiifis, the fame may be " done by the parliament of England, vv^Iilch re- prefenteth, and hath the power of the whole realm, both the head and the body. For every Engliftiman is intended to be there prefent, either in perfon or by procuration and attorney, of what preheminence, ftate, dignity, or quality foever he be, from tiie prince, to the loweil perfon of England. And the confent of the parliament is taken to be eveiy man's confent *." — -Among the * Coninion'.veahh of Efig'and; b.ii.cli. 2. privileges ENGLISH G O V E R X .AI E N T. 50; privileges of parliament, nieiuionccl In- this well, informed writer, one is, that the members " mav " frankly and freely lay their minds, in difpuiiiiiV ^^ of fucli matters as may come in qiieliion, and tliit " without OiTence to his majefry*." — Me alio enu- merates the ieveral branehes of tl\e prerogalivv* ; fuch as, that of making peace and war, ofcoinin'^- money, of appointing the higher oillcers :iiul mngii- trates of the realm, of drawing the tenth> and lirlt fruits of ecclelialHcal benefices, of iiVuirig writs and executions, of levying the M-ardlhip, and firii niar- ria2:e, of all thole v/ho hold of the kin<»- in chieh — what he fays concerning the difpenfing power of tlic fovereign deferves particular notice, as he nuntions the foundation of that power, and the limitations under which it. was underftood to be cxereiied. " The Prince," he obferves, " ufeth alfo to dif- *' pcnfe with laws made, v»diercas equity recjuireth a " moderation to be had, and with pains for tranf- " grefilng of laws, where the pain of the law is ap- " plied only to the prince. But where tlie forfeit, " (as in popular actions it chanceth many tijncs) " is part to the prince, the other part to the decla- " rator, detector, or informer, there the princj " doth difpenfefor his own part only. Where the " criminal is intended by inquifition (that manner " is called with us at the prince's fuit) the j^rince " rrivcth abfolution or pardon, yet Avith a claule, " )nodoj}ct rectus in curia, that is to fay, tliat no uv\\\ " object agiinft the offender. Whereby, noiwith- *' ilanding that he hath the prince's pardon, if tiie " perfon oflended will take upon iiim the accufation *' (which in our language is called the apj)eal) in " cafes where it lieth, the prince's pardon doili " not ferve the ofi'ender |.'* In peruling thefe accounts of tiic Knghfh govern- fncnt, wc cannot fall to remark, that they are fo • I bid. ch. .:• + Ibid. cl». 4- lit lie ^o6 HISTORICAL VIEW, &c, little enforced by argument, and delivered with fiich plainnefs and fimplicity, as makes it probable that they contained the doctrines univerfally receiv- ed in that age, and which had never been the fub- jecl of any doubt or controverfy. The views of this important queilion, which have been fuggefted by other writers, it is not my intention to examine. But the opinions of this emi- nent hiftorian are entitled to fo much regard, and appear, in this cafe, to have fo little foundation, that I could not help thinking it improper to pafs them over in lilence. The improvements made in the Englilh government, from the acceffion of the houfe of Stewart to the prefer. t hate of the Britifh conftitution in all its principal branches, are intend- ed for the fubjccl of a future incjuiry. i x\ D E X, D E X. A. A BBCTS prcfide in the af- fairs of monaderics, page 85 Acl'totJSy criminal, in law, lels numerous tlian ci\ il, 377 Admittance of the commons to a i'eat in parliament, how brought about, 347 Adrian, the emperor, contracts the limits of the empire, 1 2 Adultery i itspunifhment among the ancient Germans, 28 Africa falls a prey to the Van- dals, - - 47 Ahiricy a law in favour of tlic clergy of that diftricl, 207 Alderman^ or earl, chief civil officer of the lliire, among the Anglo-Saxons, 1 04 Alienation of Iqndcd property, when firft authorifcd by fia- tute, - - 333 Alfredy his chara^cr and mif- fortunes, 151, 52. His de- mefncs felzcd, ib. He re- treats to a morafs formed by the rivers Thane and Parrot, in iSomerl'ctfliire, ib. Col- lects an army, 153. Vifits the Danifh camp in difguife, ib. Defeats them in battle, 154. Creates a ilcet, forti- fies the coaft, rebuilds the towns and improves the country. Compofes a new code of laws, 155. Elta- bli(hcs the regular admlnif- tration of juilice, if^'n \.\- citcs induftry among all (or- ders of men, and extends the intereffs of commerce, 157. His manly virtue*;, and literary talents, ib. His portly ligure, and dci^U-rit/ in athletic exercifes, 15^. Moll: accounts of him fabu- lous, - page 158 Allodial and feudal tlVate?, what, and how diftinguiih- ed, - - 75, 6. Allodial property renounced, 164. Etfects of that mcn- llire, - - ih. Alterations in the A ate of the courts of julticc, 375 Anglo-Saxons, the iicrccft and moll warlike of the German tribes, 32. The power of their princes weakened, 1 66. Their government how dif- tinguidied from tint of the Anglo-Saxon Normans, 273 An:alj>/:i, its maritime laws how refpecled, - 436 AjfaJfi:iaU:i, the pratflice of, aboliflied by duelling, 64 Archli/Jj'-jl)S,\\\t:\r functions, 85. Three of, originally in Eng- land, - J 04 Arijl'jcri-cy, feudal, what, 3 Army, Roman, in Britain, its numltcr, 4. Operations, ib. EfFecls on the manners of the people, - 5 AJT'fe, commiflion of, why givc!i, - - 380 Aihiifmn, in his ri.'ign, 159. Mounts the throne in prefe- rence to his father's legit i- mutc oilspring, 169. A (in gula; N D X. gular ftatute of 185. Ano- ther, - page 189 Attorney General^ office of, for what purpofe created, 399 Aula regis explained, 2 1 8. Its analogies, 284. Its date uncertain, 285. Ordinary and extraordinary prefi- dent, who, ib. Acquires the title of grand jufticiary, ib. A great improvement in judicial policy, 290. A deputation from the nation- al council, 29 1 . Limits the authority of inferior courts, 292. Encroaches on the jurifdiclion of the flieriifs and barons, ib. Its extenlive influence, ib. Its imperfecti- ons, 377, Itsreildence fixed, 379. Abolilhed, and from what caufes, 380. Subjecl- edj in Scotland, to iimilar vevolutions, - 382 Aidic council, in Germany, defcribed, 284. Diftinguilh- ed from the imperial cham- ber, - - 17 Augtijline and forty affiftants commifiloned by the pope to preach the gofpel in Great Britain, - - 96 Aiifpices of Henry II.'s afcen- iion to the throne, 247 Authority of the diftant pro- vincial Roman governors, 6. Of the feudal lords, by what means diminilhed, 92 B. Baldwin^ count of Flanders, inftitutes fairs and mar- kets, - - 439 Baronsy hereditary,f'kreen their and leiler, . diftinguiflied, 214. The leiler barons con- fider their attendance on parliament as a burden, 2 83. Weakened by their animo- fities, 307. Extort frequent conceflions from the crown, 308. Their conducl mate- rially different from thofe of France, 309, They de- feat Richarcl II. in battle, page 318 Baronies^ in feparate counties, amount of - 271 Beckety Thomas, promoted to the fee of Canterbury, 247, His inordinate ambition, 248. His alTaffination al- ludeci to, . - ^04 Benefices y ecclefiaftic, fubje &c. Civil law, its excellence and alterations, 415, 16, 17. Common laiv of England little indebted to Roman jurif- prudence, and why, 406 Comwerce^ origin and extent of, 434. Confined by the ancients to the coafts of the Mediterranean and the Red Sea, ib. EugrolTed in the northern ports of Europe by towns fituated on the Ihores of the Baltic, and in the fouthern by theltalians,434, 3 5. Its rapid progrefs in Eng- land, 443. By the woollen trade, 444. By improve- ments in agriculture, 446. And navigation, 448. En- couraged and facilitated by the nature of a free govern- ment, - 449 Confervators of the peace, their origin and employment, 387 Coroner, appointment of, and for what purpofe, 400. The bufmefs of that office, 401, 2. Superfeded by the in- ftitution of a grand jury, ib. Undergoes in Scotland a ffmilar change, 404 Cortes of Spain, when intro- duced, - 346} "• Compurgators explained, 248 Conjlantine erects an eaflcrn ca- pital, 13. Dilbands the Pretorian guards, ib. Dif- tributes the whole empire into four great prefeclures, ib. Conjlitution-, Engliffi, remote from abfolute monarchy, 148. Not ariftocratic, ib. Nor N D X. Nor veiy different, even at this day, from what it was under WiUiam the Conque- ror, 281. State of, from the accefTion of Edward I. to that of Henry VII, page 308 ConJIable, petty origin of, 172 County the derivation and meaning of that title, i -4 Courage diflinguilhed from fortitude, 23, 24 Court baron, and leet, diilin- guifhed, 197. Ecclefiaftic, explained, 201. Diocefan, how conllituted, 204. Its fentence, 206. Of chan- cery, its inftitution, 288. Ofrequefts aboiiflied, 289. Of king's bench, common pleas, exchequer, w^hen and by whom eftablilhed, 380. Coz/rr/t- roj', what, 284. Alte- rations in the form and fta- tion of, 381 Councils, national of France and England, how ditfe- rent, 345 Croiv/tf the prerogative ofj at firll: dilcretionary, 2 1 8 Crufades, commencement of, 241 CurfeiUy its inftitution, 236 CuJ'ioms, their origin, 277 D. Danes y their invafion of Eng- land, 150, I. Their abili- ties, 152. Subdued, 154 Decivml arrangement, how and why adopted, 101,2 Dean, Rural, his office, 103 DevonJJjin:, carl of, routs a large body of Danes, 153 Differences among the Anglo- Saxons, were decided, page loij Di'chfiiin divides the fiivc- reignty of the empire be- tween two Cxfars, 1 1 Dcmicty king of Lcinftcr, affiled by the Englilh, 251 D';fpenfitig power of the crou n, its origin, 458. Protcftcd againft in parliament lb early as the reign of Richard II. 459 Dcfpcficienry of the ancient Bri- tons, 1 7 Diclrines of the church pro- mote the power of the cler- gy> _ _ «7 Duelling, its origin, nature, and effeifts, 62 DunJJan, the faint of that name, his exccflive power, E. Enjl Indies, a paffage opened to, by the Cape of Good Hope, advantageoubto com- merce, 442 Eccleftajhiul government, how affected by the politics of the empire, 85 Edward the Elder, his reign, 159 Edivard the Confeffor, an ufurper, 222. Eilucatcd in the court of Normandy, 223. CoimctTtioiis l)ctwccn the Engliih and Normans, 224. Names the ilukc of Normandy his fucccffor, ib. His great ability and fuc- cefs, 313. Conlirms the great charter of liberty, 3 1 <^. Rclic\c I N D E X. Relieves his fubjccls from the apprehenfions of the French government, page 3 1 6, 17. Edward II. his dehciency in military capacity, 3 13. Ex- cites the indignation of the nobles, 314. Confined and murdered, ib. His charac- ter, lb. Edward YI. created thirteen boroughs, and reflored ten to the right of fending members to parhament, 4^2. Ke corrects, notwith- ftanding the fliortnefs of his reign, abufes introduced by his £\ther, 482 Edmimd, king, killed by a robber, 170 Ethdherty his laws defined with correcStneis the nature of crimes, 45 Ethelredf though a weak prince, deceives his ene- mies by a pecuniary offer, 161. Mafiacres the Danes, ib. EkHors of the Germanic em- pire, the number of, how rendered permanent, 146. For members of parliament, ia Scotland, Aill hold their lands of the crown, 357. Their qualifications in Eng- land ftatcd and exainined, 361 Egbert^ king, his abilities and addrefs, 44. Elizabeth, cpjeen, created twentv-fcur, and reftored feven, boroughs to the right of rcprefentation, 482. The fplendor of her reign, 439. Her princely clia- rasfler and demeanour, 48:^. Her deference to parlia- mentary authority, ib. •She punfVually repays her creditors, ib. Alierts the royal prerogative, 484, 5. Court of high commifilon, for trying religious opini- ons, infi:ituted in her reign, 488. Excrcifes the diipen- fing power of the crown under great limitations, 489. Prohibits propheiy- ing, 491. Lays an inhibi- tioii on ti\e dye ftuiF called woau, //;. Her mode of raifing money, Avhen me- naced by a Spanifit invafion, not fimilar to the iiiip- money under Charles L 491, 2. Apology for her in- terfering with the debates of parliament, and impri- foning its members, 493. Her government impro- perly compared to that of Turkey, by Mr. Hume, 494. The powers of par- liament extended under her aufpices, 49 5 > ^* England, when f»ic began to eftablifh a maritime power, and afiume her rank ia the fcale of Europe, Liir. page 2. Conflitution of, when and how founded, L/itr. 4. Has no equal, in point of excellence and libe- rality, in the annals of man- kind, Litr. ^. I'amous for the breed of flow-hound., 261. Antiquity of her v*'oollen nianufaehires, 445. Her jurifprudcnce, how fnperiyr to that of France, iiU*l N D X. antl the other nations on tlie continent, P'-^g'^ 3B4 England, when firft given as the name of South Britain, 44 ^ra of dnrknefs ani4 barba- rifm in the modern liiitory of Britain, 45 Entiiils, when and for what reafon intioduced, 333, 4 JEfiates, the three of parlia- ment, meked down by its meeting in two Separate houfes, 353 Equity, how diflinguilhed from ftriiSl law, 430 Europe, the weftern continent of, how fubdued, 47 Events from the reign of Eg- bert to the Norman con- queft, 150 Extirpation of the ancient Bri- tons, fabulous, 97 Extenfton of the royal prero- gative, 265 Field of march defcribed, i 2 I Fine of alienation explained, 181 Feudal fiflcm peculiar to the modern ftates of Europe, 61. The progrefs of, 222. Its mode of trying criminal caufes, 398. Its comple- tion, 230. Controverfy con- cerning the eitablifhment of, 232- Acquired autho- rity rather from accident than dcfign, 217 Firjl fruits, the impofition of, how occaiioncd, 90 Forty days the term of military iervice, during th'- preva- lence of the feudal f)-i^em, 9' Fchds, hereditary, their cf- tctfls, 229 Fortfuc, Sir John, quoted, 413. Quoted again, in op- polition to Mr. Hume, 499 Florence, its tafte formerly for elegance and relinemcnt, France derive-^ peculiar ativan- tages by its acqullition of Normandy, 311. Its jurif- prudence how iliverliHed, and in what refpeiSbi defec- tive, G. Gallantry, its origin and ef- fects, 68, 69, 70, 71. Gaul invaded by the Franks', the Burgundians, and the Wifigoths, 47 Qenioo code of laws quoted, Germans, ancient, defcribed, 20, r. Their employment, manners, political regula- tions, and pcrlbn.il quahties, 21,2. Account of them by Tacitus, the Rom.m hillorian, 26, 7. Thtir unity, their funplicity, and unpolhhed habits, 27, 8. Their military talents, com- mon interelt, and virtues of hofi)ilality, 28,9. Ad- dicted to li.ird drinking, indok-nce, and games of hazard, 30 Gi>//j/, their facility in forminf» kingdoms, 53 Godwin, earl of AN'cllex, for- L I ijudablc INDEX. midable to Edward the Confellbr, P^'ge 222 Gao! delivery, when and v/hy appointed, 383 Go/pel preached in England by St. Auguftine, 96 G 95» 96- Hundreds, the denomination of, whence, 103 Hu filing, a favourite exercife of our anceftors, 261 jFZj'^/'^^f J- explained, 274 I. James I. created fix, and re- rtored eight boroughs to the right of fending reprefen- tatives to parliament, 452 John, king, afcends the throne, 2 c; 2. Surrenders his kingdom to the pope, 254. Yields to the requi- fition of the barons, 255. Raifes an army to punilh thein, 258. Dies and leaves, the crown to a minor, ib. His conceffions in favour of liberty, obtained by the great charter, 257. The privileges fecured by that famous deed, the effects of neceffity, P^gc 3 ^ i Imperial procurator, his office, 8 /w/mfl/ chamber of Germany, how, and of whom confti- tuted, 382 Ina, his laws, 45 Inhabitants of the firft ages de- fcribed, 20, i Inland and Outland, the dif- tinftion of, 75 hidlclment before a grand jury, Invejliture to church livings claimed by the pope, in all the countries of Europe, 304 Injlitution of tythings, hun- dreds, and counties, 99 Incidents, feudal, 179. Of non-entry, ib. Of relief, ib. Ofwardlhip, 180. Of marriage, ib. Of aids and benevolence, ib. Of efcheat, 181. Of fines of alienation, ib. IfMis of court, and of chancery, their origin, 412. The number of tlie former four, of the latter ten, 413. Fafliionable feminaries of education, ib. Their de- clcnfion, its caufes, 417, 18 Injluence of the crown, how extenorted and augnienT if York and LancalUr, ::'> A." ■ INDEX. Kings Bench court, when and by whom eftabhlhed, page 380 King's advocate of Scotland ^ for what purpofe appomted, 400 Knights of Jlnrcs^ when iii'fl: introduced to parhament, 337. In what manner elefted, 364 Knight erranty his manners and purluits, 7 1 Landed property, how acquired by the Saxons, 41 I^egacics, how bequeathed to the church, 83 LegiJlatioN, the power of, when affumed by the Commons, 371 JLeoIffy a robber, his temerity, 109 LaiVy civil and canon, taught at both univerlities, 412 Livyy the Roman Hiftorian, quoted, 167 Linen mamfaffiirey its origin, Literature of the ancient Bri- tons, I o Loansy an expedient for rail- ing money, 463 Loi^e fuppofes a ftate of refine- ment not compatible v\'ith extreme barbarifm or hix- urv, 70 Lords of particular diflricts objc'fls ox jealoufy to the crown, 165 Lurdi'.ne., or Lord-dane, a term ' of reproach,. 160 Lycy the giving of which why fo generally relented, 64 Lyltelton's Hiltory of Henry II. quoted, page 367 M. MamfaBiires and m.echanical ai-ts introduced, 94. Their progrefs and improvement, 104, 5. Acquire peculiar advantage from the Nor- mans, 331. Accelerated by the convenience of wa- ter carriage, 437. An ef- feft of inland trade, 439. Linen and woollen, their origin, ib. The fuccefs of, produces improvement in agriculture, 445 Manufaclurcs of the ancient Britons, i o Mariners jcompafs difcovery of, advantageous to commerce, 441 Marriage, why conftitutcd a fiicrament, 29S. Regulat- ed by certain degrees oi: confanguinity, on what ac- count, 229 Mary, queen of England, created ten, and renewed the ancient privileges of two boroughs, 452. Her fliort reign, intolerant prin- ciples, and p-acked parlia- ment, 482 Mayors of the palace, in France, who, 146. Their ambition, 147 Alojrs, the ccnfequences of their extirpation in Spain, . : 44*7 Martial lanu, its origifi, 467 Morton,\i\s fork or crutch, 462 Mechanics Ox the ancient Bri- tons, I o MonafcrieSy N D X. Jilonajrcriij, their origin, 85. By whom and when efta- bUflied, 134. Abolilhcd in England, P^gc 4^2 Monuments of R.oman opu- lence and grandeur erafed, J^Ionarchy^ feudal, explained, 3 N. Ntiiicns in a ftate of barbarifm and migration, 25, 26 Naval tn:litia explained, 449 N if prills y the chief object of, 386 Normandy J the duchy of, mort- gaged for ten thoufand marks, 242. Barons of, their infurreclion, 240 Nuns, when and by whom per- mitted to decline thejurii- di^tion of laic judges, 207 O. Oal/j of purgation explained, Ohjlinacy defcrlbed, 3 1 9 Offa^ his laws, 45 Ojpccrs of the king's court, who, 283, n. Oyer and Terminer explained, 432 Pares cnri^y '9^ JPandecIs of Juftinian, whtn difcovercd, 409. Whether the rapid cultivation of the civil law, in the twelfth cen- tury, was owhig to that; event, 4 ' '^> > i Parking the Houfe of Com- mons, iirft inftancc of, 319 Pi7;-/.\rw/f7.'/,itscommencemeni, 270. Compt^fed of fuch aS' were members of the ancient AVittenngcmote, ib. Im- pofe taxes, 274. Interfere in regulating the curton.i and other duties, 277, 78. Formerly convened at the three Hate feUivals, Clirilt- mas, Eafter, and Whitruu- tide, 278. Allemble at the king's lummons, 279. Call- ing and difiolving of, the prerogative of the crown, ih. Prote6ls the lubjtct from the introdu 5' ^^ Poetryy Celtic, whether genu- ine, 250 Poll Taxy 7 Pope, his power of nominating all the dignified clergy abo- liflied, 305, 6. Loft his authority in countries moft diftant from Rome, 475. Where trade and manufac- tures made moft progiefs, ib. When notions of liber- ty were moft eaiily extend- ed, 476 Population of England, 7 Porteoiis Roll, in Scotch law, what, 404 Poivevy poUticaly its rife and progrefs, 2 Powers executivCy znd J udidaryy diftinguifhed, 198 Purvexnficey the nature of, de- fined, 464 ^lefiouy a party one, 122, What enabled the Rojiian PontitFto retain in obedi- ence one half of his domi^ nions, while he loft the other, 475 Peformation, N D E X. R. Riformation^ its cp.ufes, 471. Eltecls upon the influence of the crown, to. Richard I. his Ihort reign, 2^2 Richard II. his impotent go- vernment, 317. He is de- feated in battle, and his minifters are impeached, 3 1 8. He divides parlia- ment into lords and com- mons, and in both obtains a majority, 319. Caufes his uncle the duke of Glou- cefler to be murdered, ib. Is lulled into fecurity, 320. Subfcribes an inilrument of relignation, and is folemnly depofed by the fulFrage of both houfes, 321 Rife of the court of chancery, 420 Robert J eldeft fon of "William the Conqueror, fupplanted by his brother, 239. Suc- ceeds however by his fa- ther's will to the duchy of Normandy, ib. From thence he colletfts an army, and invades England, 240. En- gages in the crufades, and mortgages his duchy, 242. Makes war on Henry, 245. Lofes at once his dominions and liberty, ib. Remains twenty-eiglit years, and dies at laft, a prifoner in England, ib. Revenue of the crown creates its own increafc, 307. llciw , raifed, 275, 6, 7. in- dependent of the people, ib. Augmented by fcutngts, hydagcs, and t.iUiages, tb. Rzmc^ its downfal, i . Its fun- pie form of gcncrnnicnt, 2. Opprefllons by its provincial governors, //'. Its means of civilizing the nations, 3. Its attention to the diftribu- tion of jullice, 5. Dcclen- ilon of its military prowcfs, ib. Roiwd TableSy the origin and utility of, 56, 7 Ri/miymcde, the great charter o^'y 255 Saxon auxiliaries^ their in- trigues, treachery, and fuc- ceis againil the ancient Bri- tons, 33, 4. Their im- provements in the arts of peace and fociety, 38. Di- vided into Angles, Jutes, and Saxons, and fettled in various parts of England, 39. How tl.ey acqu'reil property in land, 41. For- tify their towns, and culti- vate the focial virtues, 42. Individually accumulate in- fluence, ib. Unite under Egbert, 44. Efleclsof this revolution on civilization, ib. Their converlion to Chrirtianity, ^6. Rated according to the extent of their lanth, 131 S.ixofijhcre, count of, 14 Savages poflL'f. i.iore fortitude than courage, 24, J Sciitage explained, 249, 276 Seeds of the HriMOi conlFitu- tinn not fuiuui in the woods of Germany, 3 a M m Sefuca, I N D E X. Beneca, the philpfoplicr, his avarice, pnge 8 Shaktfpeare c\\io\.cdy 41? Shires, their derivation, 104 Sheriffs olHce of, why infti- tuted, I-- Smut over-run by a branch of the Wifigolhs, ^y State of property under tJic fct~ tlement of the Saxons in Britain, ^^ Star-chamber, its origin and inftitntion, 287. More par- ticulars of, 465 Stephen^ grandfon to 'William I. aflumes the government, 246. Purchafed the crovm by conceflions to the barons, 310. Is driven from the throne by Henry fon of Matilda, 246 Stuart, Dr. quoted, 343 Siiuiby Sir Thomas, his opi- nion oppoled to that of •Hume, ^04 Sovereign, flate of, among the Anglo-Saxons, 141. Ori- ginally the heretoch, or duke, 135. Commanded the forces in battle, 137. Supprelled tumults, //;. Freiided in the national ail femblies, 138. Aillmied tlie executive parr, of go- vernment, 139. His vari- ous prerogatives, how ac- cumulated, 140. His re- venues, Mdience, ib. Ma- nagement 6f his houfhold, 141. Officers of, their re- fpeciive duties and depart- ments, ;/,^ S-zveyn, king qf Denmark, in- vad.es England, 161, Re- venges with much feverity the maffacre of his countrv- ";^cn, page 161 Suhwjeudatiou, a term in feudal law, explained, on T. Tacitus, the Roman hiflorian, quoted, 3 Tafe^ of the ancient Britvons, 9 Taliiages explained, 276 Taxation the prerogative of parliament, 274." Origi- nates in the Houfe of Com- mons, ^^5 Taxes impofed by the Romans, 7. Unknown among the ^Anglo-Saxons, 140 Tenths of landed property, hov/ acquired by the clerov, Tenures, feudal, how occa- fioned, 59. Of eflates changed from allodial to feudal, 228 Thanes, whence that applica- tion, and to whom It belong- ed, 78. Tlie greater, who, 121. The lefler, 215 Trade of the Britons dedroyed by the Saxon conqucfl:, 1 24. Extent of the Britifli, before the Norman conqueft, .188. Inland, what, and how car- ^J'iedon, 4-38,9. Irajan and the Antonines adopt a Cxfar, 1 2 Tournaments, Avhence, 6r To"Mns not reprefented in the Wittenagemote, 126 Tyihes, the right of levying, hrft efia.blij'hed in France, 80. How earlv introduced, 201. Efcabliiiied in Eng- land by Alfred and Athel- ftan, 202 cr..j.l.: N D X. Tyth'itigs defcrlbed, T04, 5, 6, 170. nies. Converted into bare- page V. Vajfalagc in Europe, its origin, 60. Defcribcd, '^Ti^'^ Vajfals of ihe croivn^ fix hun- dred in number, under William the Conqueror, 328 Variations in the ftate of tyth- ings, hundreds, and fliires, Vicar of the empire explained. View of feveral reigns prior to that of Edward I. 222 Villeins diftinguilhed from vaflals, 7 5 Voltaire quoted, 68 Voltizern folicits the afliftance of the Saxons, 33 Unanimity of Englifli juries explained, 196 W. JVager rflaio explained, 1 96 iratcJ.'Cs, art of making, de- rived from Italy, 437 Wealth of Nations approved, 473 Whitaker's Hiftory of Man- cheilcr quoted, 4 William the Conqueror, a law of his, 1 16. Invades Eng- land, 225. Is crowned at Weftminfter, ib. His co- ronation oath, and mode- ration, 227. His clemen- cy and impartiality, ib. Great revenue and terri- tory, 231. His reign lull of inquietude, 2:13. A ge- neral averiion to many of his laws, 235. Infiitutcs the curfew, 236. Clainis the feudal incidents, ib. His exactions oticnd the clergy, 237. His rigour and rapacity, ib. The no- tion of his exterminating the Englilh nobility rcfutcii, 238, n. His provocaticni l^ated, 239 William Rufus fucceeds to the government, 239. Is attacked by Robert, liis brother, 240. Retaliates the infult by an invalion of Nor- mandy, ib. Reconciliation of the two brothers, ib. A treaty formed between them, and guarantied by the barons, 241. He takes no part in the crufades, 242. His avarice and irre- ligion, ib. Accidentally fluin, ib. William of Malmfhury quoted, 44 Wites, or nvife mm, who, i 22 Witicnageimtt, what, and on what occafion alTembled, 43. Circumftances of, 117. Of whom chiefly compofed, 119, 120, I, 2, 3, 4. Its convention delcribed, ib. Analogous to the national aiTemblies in other parts of Europe, //•. Tlie various prerogatives it alTumcs, 130. The qualiii< ations of its members, ib. A remark- able one held by the king* of Mcrcia, 128. It pro- vided for the jH-Mcral de- fence, 130. Tiic lime of Mm 2 in N D X. Its meeting fpecified, 131. It arrogated the right of declaring peace and war, ib. It made laws, 132. It con- trailed the exercife of the royal prerogative, 133* Regulated the coiirage, ib. Governed the church, ib. Eftablilhed monafteries, 134. Took cognizance of the fovereign's adminiftra- tion, ib. Conftituted it- fslf into the fupreme tribu- nal of the kingdom, ib. Interfered in the manage- ment of the revenues, 140. When and how diflolved, 117, 18. Right of fitting in, limited, and to whom, 121. Confequenccs of its diflblution, 270. Its firength. while unbroken, ib. Aban- doned by the leficr barons, 213. On wdiat occaliou its time of meeting changed from twice to three times a year, 217. Two kinds of, mentioned, 218 TVriters, political, a mifiake of, 149 IVoollen manufaciures^ their origin, 440. Superiority of the Englifli, 447. De- ftroyed in the Netherlands, and Spain, ib. JVool^ Englilh, its fuperlative quality, ^ _ 443 j 4 TV^olfey, cardinal, his abortive interference in the debates of parliament, 479 FINIS. ERRATA. 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