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 A N 
 
 HISTORICAL VIEW 
 
 OF THE* 
 
 ENGLISH GOVERNMENT,
 
 A N 
 
 HISTORICAL VIEW 
 
 OF THE 
 
 ENGLISH GOVERNMENT, 
 
 from 
 
 THE SETTLEMENT OF THE SAXONS IN BRITAIN 
 
 T O 
 
 THE ACCESSION, OF THE HOUSE OF STEWART. 
 
 By JOHN MILLAR, Escl. 
 
 PROFESSOR OF LAW IN THE UNIVERSITY OF GLASGOW, 
 
 THE SECOND EDITION. 
 
 LONDON: 
 
 PRINTED FOR A. STRAHAM, AND T. CADELL, IN THE STRAND} 
 AND J. MURRAY, N° 32, FLEET-STREET. 
 M.DCC.XC.

 
 TO THE 
 
 -~ 
 
 ae 
 
 33 
 
 RIGHT HONOURABLE 
 
 CHARLES JAMES FOX. 
 
 SIR, 
 
 1 SHALL, perhaps, be thought guilty of 
 prefumption, in wifhing to draw your 
 attention to the following publication. The 
 truth is, it appears to me fcarcely poffible 
 for any man to write a conftitutional hiftory 
 of England, without having Mr. Fox almofl 
 conftantly in his thoughts. 
 
 In delineating the progrefs of the Englifli 
 
 government, I have endeavoured to avoid 
 
 | thofe fond prepoffeffions which Englishmen 
 
 are apt to entertain upon the fubje£t, as well 
 
 as 

 
 VI DEDICATION/ 
 
 as the prejudices peculiar to the two great 
 .hich the nature of our limited 
 monarchy has produced. How far I have 
 fuc led in this, muft be left to the judg- 
 ment of the public. But, whatever indul- 
 gence may be {hewn to this Work, the 
 ambition of its author will not be gratified j 
 unlefs he can procure, in fome degree, the 
 approbation of a mind fuperior to prejudice ; 
 equally capable of {peculation, and of a£Hve 
 exertion :• no lefs converfant in elep-ant lite- 
 raturc, than accuftomed to animate the great 
 fcenes of national bufinefs j poiiefled of the 
 penetration to difcover the genuine principles 
 of the conftitution, and of the virtue to 
 make them an invariable rule of condudfc. 
 
 Impreflcd with the higheft efteem for 
 
 fuch a character, permit me to declare the 
 
 o fatisfa&ion
 
 DEDICATIO N. Vll 
 
 fatisfa£Hon I feel from your fteady perfe- 
 verance in a fyftem, which, by tending to 
 fecure the natural rights of mankind, 1 
 led to a reoutation the moil exalted, a 
 the moft grateful to a generous mind. 
 
 I have the honour to be, 
 
 S I R, 
 
 Your moft obedient 
 Humble fervant, 
 
 College, Glafgow, 
 4th Dec r , 1786. 
 
 JOHN M I L L A R.
 
 CONTENTS. 
 
 J NTRODUCTION. Page i 
 
 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, J 
 
 CHAP. II. 
 
 Characler and Manners of the Saxons,. 17 
 
 CHAP. III. 
 
 Settlement of the Saxons in Britain, 4? 
 
 b J H A P..
 
 CONTENTS. 
 
 C II A P. IV, 
 
 S'u... the Situation of the Anglo-Saxons, and of the 
 
 .• : fettled in the Provinces of the WeJ* 
 
 tern Empire. How far the State of all tbofe Nations 
 
 differed from that of every other People, ancient or 
 
 Page 56 
 
 CHAP. V. 
 
 Toe State of Property, and the different Ranks and Orders 
 of Men, produced by the Settlement of the Saxons in 
 Bi • 84 
 
 Sect. i. Of the chief Regulations attending the EJla- 
 
 ■ of Cbri/fianitv in the Roman Empire, and 
 
 in the modern Kingdoms of Europe. 93 
 
 Sect. 2. The Ejtabli [foment of Chriflianity in Britain, 
 under the Roman Dominion, and in the early Govern- 
 ment of the Ai.gio-Saxons. 105 
 
 CHAP. VI. 
 Infutution of Ty things, Hundreds ', and Counties, 112 
 
 CHAP. VII. 
 Of the Wittenagemote. 132 
 
 C II A P. VIII. 
 
 ate f the Sovereign in the primitive Anglo-Saxon Go- 
 
 vernnent. 151 
 
 3 CHAP.
 
 CONTENTS. 
 
 CHAP. IX. 
 
 Of the principal 'Events from the Reign of Egbert to the 
 Norman Conquefl. Page 168 
 
 CHAP. X. 
 
 Variations in the State of Tythings, Hundreds, and 
 Shires. 19° 
 
 CHAP. XL 
 
 Changes produced in the Condition of the Vaffals, and of the 
 Peafants. 19^ 
 
 CHAP. XII. 
 
 The Influence of thefe Changes upon the Jurifdiffion and 
 Authority of the feudal Lords. 214 
 
 CHAP. XIII. 
 
 Of Ecclefiaftical Courts. 224 
 
 CHAP. XIV. 
 
 Alterations in the State of the Wittenagemote. 234 
 
 Conclufwn of the Saxon Period. 244 
 
 b 2 BOOK II,
 
 CONTENTS. 
 
 BOOK II. 
 
 OF THE ENGLISH GOVERNMENT FROM THE REIGN OF 
 
 WILLIAM THE CONQUEROR, TO THE ACCESSION 
 
 OF THE HOUSE OF STEWART. 
 
 CHAP. I. 
 
 <J~ % HE Norman Conquefl. — Progrefs of the feudal SyJIem.— 
 View of the feveral Reigns before that of Edward I. — 
 The Great Charter, and Charter of the For eft. Page 248 
 
 CHAP. II. 
 
 In what Manner the Changes produced in the Reign of 
 William the Conqueror affecled the State of the national 
 Council. 3°° 
 
 CHAP. III. 
 
 Of the ordinary Courts of Jujiice after the Norman Con- 
 quefl. 3 T 5 
 
 CHAP.
 
 CONTENTS. 
 
 CHAP. IV. 
 
 Progrefs of ' Ecclefaflical ' JurifdicJion and Authority. Page 330 
 
 CHAP. V. 
 
 General View of the kingly Power, from the Reign of Edward I. 
 to that of Henry VII. 343 
 
 C H A"P. VI. 1 . 
 
 Hi/lory of the Parliament in the fame Period. 367 
 
 Sect. i. The Introduclion of the Representatives of 
 Counties and Boroughs into Parliament. ibid. 
 
 Sect. 2. The Divifion of Parliament into two Houfes, 
 and the peculiar Privileges acquired by each Houfe. 
 
 39<5 
 
 Sect. 3. Concerning the Manner of ele cling the national 
 Reprefentatives, and the Forms of Procedure in Par- 
 liament. 4°4 
 
 CHAP. VII. 
 
 Alterations in the State of the ordinary Courts f Juflice. 
 
 420 
 
 Sect, i EJlablifhment of the Courts of Common Law, 
 at Weflminfter. ikid. 
 
 Sect.
 
 CONTENTS. 
 
 Sect. 2. Of the Petty Jury— and the Grand Jury, 
 
 Page 435 
 
 ect. 3. CircumJIances which prevented the Civil Law 
 from being Jo much incorporated in the Syflem of 
 Engli/b Jurifprudence 9 as in that of other European 
 Countries. 453 
 
 Sect. 4. The Rife of the Court of Chancery. 469 
 
 CHAP. VIII. 
 
 Of the CircumJIances which promoted Commerce, Manufac- 
 
 es, and the Arts, in modern Europe, and particularly in 
 
 England. 485 
 
 CHAP. IX. 
 
 OfHnry the Seventh. — CircumJIances which, in his Reign, 
 contributed to /he Exaltation of the Crown. — Review of the 
 Government of this Period. 503 
 
 C H A P. X. 
 
 Of Hen rv the Eighth.— The Reformation. — Its Caufes. — The 
 J J eels oj a ufon the Influence of the Crown. 526 
 
 CHAP.
 
 CONTENTS. 
 
 CHAP. XI. 
 
 Of Edward the Sixth— Mary—and Elizabeth.— General Re- 
 view of the Government.— Conclufion of the Period from 
 the Norman Conquejl to the Accejfion of the Houfe of 
 Stewart. Page 538 
 
 Conclufion of the Period, 555 
 
 INTRO-
 
 [ I 1 
 
 INTRODU CTION. 
 
 THE great feries of events in the hiftory of England 
 may be divided into three parts : the firft, extend- 
 ing from the fettlement of the Saxons in Britain 
 to the Norman conqueft ; the fecond, from the reign of 
 William the Conqueror to the acceffion of the houfe of 
 Stewart ; the third, from the reign of James the Firit to 
 the prefent time. The important changes exhibited in the 
 ftate of the country, and in the iituation of its inhabitants, 
 appear, like a fort of natural boundaries, to mark out thefe 
 different periods, and to recommend them as objects of 
 diftinct and feparate examination. 
 
 The firft period contains the conqueft of England by the 
 northern barbarians, the divifion of the country under the 
 different chiefs by whom that people were conducted, the 
 fubfequent union of thofe principalities under one fove- 
 reign, and the courfe of public tranfactions under the Saxon 
 and Danifli monarchs. 
 
 The reign of William the Conqueror, while it put an 
 end to the ancient line of kings, introduced into England 
 a multitude of foreigners, who obtained extenfive landed 
 poifefTions, and fpread 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 
 advancement in the common arts of life, at the fame time 
 that the nation, by acquiring continental connections, was 
 involved in more extenfive rmlitary operations. 
 
 B Bv
 
 a INTRODUCTION. 
 
 By the union of the crowns of England and Scotland, 
 upon the acceffion of the hoiife of Stewart, the animofities 
 and diffenilons, with all their troublefomc confequences, 
 which had fo long fubflfted between the two countries, 
 were effectually fuppreffed. By the improvement of ma- 
 nufactures, and the introduction of a confiderable foreign 
 trade, England began, in a fhort time, to eftablifh her 
 maritime power, and to afTume a higher rank in the fcale 
 of Europe. 
 
 The fame periods are alfo diflinguifhed by remarkable 
 variations in the form of government. 
 
 Upon the fettlement of the Saxons in Britain, we be- 
 hold a number of rude families or tribes feebly united to- 
 gether, and little accuftomed either to fubordination among 
 themfelves, or to the authority of a monarch. During 
 the reigns of the Anglo-Saxon princes, we difcover the 
 effects produced by the gradual acquifition of property ; 
 in confequence of which fome individuals were advanced 
 to the poffemon of great eflates, and others, who had 
 been lefs fortunate, were obliged to fhelter themfelves un- 
 der the protection of their more opulent neighbours. Po- 
 litical power, the ufual attendant of property, was thus 
 gradually accumulated in the hands of a few great leaders, 
 or nobles ; and the government became more and more 
 ariftocratical. 
 
 When the advances of the country in improvement 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 influence than the divided property 
 poffeffed by the nobles. The prerogatives of the former, 
 in a courfe of time, were therefore gradually augmented ; 
 
 x and
 
 INTRODUCTION. 3 
 
 and the privileges of the latter fuffered a proportionable 
 diminution. From the reign of William the Conqueror 
 in England, we may date the firft exaltation of the crown, 
 which, under his fuccefTors of the Plantagenet and Tudor 
 families, continued to rife in fplendor and authority. 
 
 About the commencement of the reign of James the 
 Firft, great alterations began to appear in the political ftate 
 of the nation. Commerce and manufactures, by diffufing 
 a fpirit of liberty among the great body of the people, by 
 changing the fyftem of national defence, and by encreaf- 
 ing the neceflary expences of government, gave rife to 
 thofe difputes, which, after various turns of fortune, were 
 at lafb happily terminated by the eftablifhment of a popular 
 government. 
 
 With reference to that diftribution of property, in the 
 early part of our hiftory, which goes under the name of 
 the feudal fyftem, the conftitution eftablifhed in the firft 
 of thefe periods, may be called the feudal ariflocracy ; that 
 in the fecond, the feudal monarchy ; and that which took 
 place in the third, may be called the commercial go- 
 vernment. 
 
 Similar periods to thofe which have now been pointed 
 out in the Englifh hiftory, may alfo be diftinguifhed in the 
 hiftory of all thofe kingdoms on the continent of Europe, 
 which were eftablifhed upon the ruins of the Roman Empire, 
 and in which the people have fince become opulent and 
 polifhed. Thus the reign of Hugh Capet in France, and of 
 Otho the Great in Germany, correfpond to that of William 
 the Conqueror in England; as thofe of Lewis XIII. and 
 Ferdinand II. in the two former countries, were analogous 
 to that of James the Firft, in the latter. 
 
 B 2 In
 
 4 INTRODUCTION. 
 
 In the following treatifc, it is propofcd to take a ieparate 
 :\v of thefe periods of the Engliih hiltory, and to examine 
 : chief differences of the political fy item in each of them. 
 >vernment which we enjoy at prelent has not been 
 formed at once, hut has grown to maturity in a courfe of 
 r.eceflary, in order to have a full view of the cir- 
 cmnftances from which it has proceeded, that we fliould 
 furvey with attention the fucceffive changes through which 
 it has paiFed. In a difquifition of this nature, it is hoped 
 that, by confidering events in the order in which they hap- 
 pened, the caufes of every change will be more ealily un- 
 folded, and may be pointed out with greater fimplicity. 
 As the iubject, however, is of great extent, I mall endea- 
 vour to avoid prolixity, either from quoting authorities and 
 adducing proofs in matters fufficiently evident, or from 
 intermixing any detail of facts not intimately connected 
 with the hiltory of our conftitution. 
 
 With refpect to the Saxon period, which comes firfl 
 in order, many writers appear to have looked upon it as 
 too remote, and as affording a profpect too barren and 
 rude, to deferve any particular examination. But it ought 
 to be coniidered, that the foundations of our prefent con- 
 ftitution were laid in that early period ; and that, with- 
 out examining the principles upon which it is founded, 
 we cannot form a jure opinion concerning the nature 
 of the fuperftructure. To trace the origin of a fyftem 
 fo fingular in its nature may, at the fame time, be re- 
 garded as an object of rational curiofity. The Britifli 
 government is the only one in the annals of mankind 
 that has aimed at the diffulion of liberty through a mul- 
 titude of people, fpread over a wide extent of territory. 
 
 The
 
 1 N T R O D U C T ION. 5 
 
 The ancient republics of Greece and Rome compre- 
 hended little more than the police of a fingle city; and 
 in thefe a great proportion of the people, fo far from 
 being admitted to a fhare in the government, were, by 
 the inftitution of domeftic llavery, excluded from the 
 common rights of men. The modern republics of Italy, 
 not to mention the very unequal privileges which they 
 beftow upon different individuals, are inconfiderable in 
 their extent. The fame obfervation is applicable to the 
 government of the Swifs cantons. In the Seven United 
 Provinces of the Netherlands, the government can hardly 
 be conlidered as more extenfive ; for, notwithstanding the 
 confederacy by which they are connected, every particular 
 province, and even every Iingle town of any confequence, 
 belonging to each, having the exclufive power of making 
 or confenting to its own regulations, forms in reality an 
 independent political fyftem. By what fortunate concur- 
 rence of events has a more extenfive plan of civil freedom 
 been eftablifhed in this ifland ? Was it by accident, or by 
 defign, or from the influence of peculiar fituation, that 
 our Saxon forefathers, originally diftinguifhed as the molt 
 ferocious of all thofe barbarians who invaded the Roman 
 provinces, have been enabled to embrace more compre- 
 henfive notions of liberty, and to fow the feeds of thofe 
 political inftitutions which have been productive of fuch 
 profperity and happinefs to a great and populous empire : 
 To thefe queftions it is hoped that, in the fequel, a fatis fac- 
 tory anfwer will be given.
 
 C 7 ] 
 
 BOOK I. 
 
 OF THE ENGLISH GOVERNMENT, FROM THE SETTLEMENT 
 OF THE SAXONS IN BRITAIN TO THE REIGN OF WILLI \M 
 THE CONQUEROR. 
 
 C H A P. 1. 
 
 Preliminary Account of the State of Britain under the Domi- 
 nion of the Romans. 
 
 "^HE downfal of the Roman flate, and the" formation of 
 thofe kingdoms which were built upon the ruins of 
 it, may be regarded as one of the greatefl revolutions in 
 the hiftory of mankind. A vafl un wieldly empire, which 
 had for ages languifhed under a gloomy defpotifm, was 
 then broken into a number of independent Hates, ani- 
 mated with all the vigour, but fubjecr.ed to all the violence 
 and diforder, natural to a rifing and unfettled conflitution. 
 The arts and literature which had grown up in the ancient 
 world were, in a great meafure, overthrown ; and a new 
 fyflem of political inflitutions, together with a total change 
 of manners, cufloms, and ways of thinking, fpread itfelf 
 over the greatefl part of Europe. 
 
 The plan of government, which the Romans adopted 
 throughout the greatefl part of their dominions, was uni- 
 form and flmple. After that people had enlarged their city, 
 as far as was convenient, by incorporating fome of the 
 neighbouring tribes, and had joined to it the poilefiion of a 
 confiderable adjacent territory, they divided their future 
 
 acquiiitions
 
 8 STATE OF BRITAIN Book I. 
 
 acqtiifitions into distinct provinces ; in each of which they 
 placed a governor, inverted with almoft unlimited autho- 
 ritv. It cannot efcape obfervation, that the Roman patri- 
 otifm, even in the boafted times of the commonwealth, 
 was far from being directed by a liberal Spirit : it proceeded 
 from narrow and partial considerations ; and the fame peo- 
 ple who difcovered fo much fortitude and zeal in eStabliSh- 
 ing and maintaining the freedom of their capital, made no 
 lcruple in fubjecting the reft of their dominions to an arbi- 
 trary and defpotical government. The governor of every 
 province had ufually the command of the forces ; and was 
 invefted with the fupreme executive and judicial powers, 
 together with the privilege of appointing the greatest 
 part of the inferior officers, to whom the diftribution of 
 juftice, or the care of the police, was intruded. The 
 oppreflive taxes to which the inhabitants of the provinces 
 were fubjected, and the ftill greater oppreflion which 
 they fuffered from the arbitrary and illegal exactions of 
 their magistrates, are fufficiently known. The tribunals of 
 Rome were at too great a diftance to take a Strict account 
 of her provincial officers; and the leading men in the 
 Republic, who expected, in their turns, to enrich them- 
 felves by the plunder of the provinces, were Seldom dil- 
 pofcd to enter very heartily into meaiures for reftraining 
 iuch enormities. The riches amaffed by the offender af- 
 forded him, at the fame time, the means of preventing 
 any troublefome enquiry into his behaviour; and in pro- 
 rtion to the extent of his guilt, was commonly the degree 
 of Security which he afterwards enjoyed. Cicero affirms, 
 that in the imall government of Cilicia, after faving to the 
 public the amount of a full million fterling, which the 
 former governors had applied to their private ufe, he had,. 
 
 at
 
 Chat. I. UNDER THE ROMANS. 9 
 
 at the end of the year, about twenty thoufand pounds of 
 clear gain. 
 
 But while Rome was thus extending conqueft and fla- 
 very over the world, Ihe communicated to the conquered 
 nations her knowledge, and her refinement in the arts 
 of life. The great military eftablifhment maintained in 
 every province, in order to keep the inhabitants in fub- 
 jedtion; the large body of civil officers necefTary in the 
 various departments of public adminiftration ; the nume- 
 rous colonies, compofed of Roman citizens, who fettled in 
 every part of the empire, and carried along with them 
 the Roman inftitutions and cuftoms ; and, above all, the 
 frequent refort of the chief provincial inhabitants to the 
 capital of the empire, a natural confequence of their de- 
 pendence ; thefe circumftances produced an univerfal imi- 
 tation of Roman manners, and throughout the dominions 
 of Rome contributed to fpread her language, arts, and 
 literature. Thefe advantages compenfated in fome mea- 
 fure, and were fometimes more than fufficient to coun- 
 terbalance, the lofs of independence. Wherever the Ro- 
 man 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 fcate than Britain ; and it is 
 probable that no country derived greater advantages from 
 her fubjeclion. A great part of the inhabitants, before 
 they w r ere incorporated in the Roman empire, ieem to 
 have been ftrangers to agriculture, 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 itate of man- 
 kind ; and thefe little focieties being much addidted to 
 
 G plund -
 
 IO STATE OF BRITAIN Book I. 
 
 plunder, and for that reafon frequently engaged in hofti- 
 lities, a regard to mutual defence had occafionally 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 diftinguifhed from that of the other pro- 
 vinces at a diftance from the feat of government. After 
 the reduction of all that part of the ifland accounted worth 
 the trouble of acquiring, the firft great object was, to afcer- 
 tain and preferve the conqueft by a permanent military 
 force. For this purpofe the inhabitants were completely 
 difarmed ; and a Handing army, compofed, according to the 
 loweft account, of three legions, amounting to upwards of 
 thirty-fix thoufand foot and fix thoufand horfe, was in- 
 troduced, and regularly maintained-. Thefe troops were 
 diftributed over the province, and placed in ftations where 
 their fervice could be moil ufeful, either by over-awing the 
 natives, or by repelling the invafions of the unconquered 
 tribes in the North. When not engaged in war, they were 
 employed, according to the ufual practice of the Romans, 
 in public works ; in building and repairing thefe two nor- 
 thern walls, which at different times were intended as the 
 boundary of the province; in conilructing forts; in clearing 
 tie country of its forefts and marines ; and in opening a 
 mmunication between different parts of it, by- an unin- 
 terrupted chain of high roads. 
 
 There are laid to have been, in the whole province, 
 about a hundred and fifty Roman llations ; which were 
 < iinected with inferior fortreffes, erected at convenient 
 
 • Horfely Brit. Rom.— Whitaker Hift. Manchcfter, v. I. b. i. ch, 6. 
 
 diitances,
 
 Chap. I. UNDER THE ROMANS. i, 
 
 diftances, and garrifoned with regular troops*. Each of 
 thefe garrifons occaiioned a relbrt of tiie neighbouring 
 inhabitants, and probably gave rile 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 manners and 
 cuftoms, may eafily be conceived. In particular, as the mili- 
 tary people were often rewarded by the public with landed 
 poffeffions, their example could not fail to fpread the know- 
 ledge and practice of agriculture, while their induftry in 
 the management 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 country, was 
 even feldom broke off when they were difmifled 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 
 difmiffion, to pafs the remainder of their days in the pro- 
 vince. The offspring of thefe people became natural in- 
 habitants ; and Britain, in this manner, was continually 
 receiving frefh fupplies of Romans, who compenfated for 
 fuch of the natives as, in the courfe of recruiting the ar- 
 mies, were naturalized into other provinces. 
 
 After eftablifhing a fufheient military force to maintain 
 her authority, the attention of Rome was directed to the 
 fuppreffton of internal diforder among her fubjects, by the 
 regular diftribution of juftice. The jealoufy entertained 
 by the firft emperors had iuggefted an important regula- 
 
 • WTiittker Hift, Manchefter, v. I. b. i, ch. 8. 
 
 G 2 tion
 
 ia STATE OF BRITAIN* Book I. 
 
 tion for limiting the dangerous power of their provincial 
 governors. From the time of Auguftus, the provinces 
 near the feat of the empire, as they enjoyed the profpect 
 of tranquillity, were diftinguiihed from fuch as were litu- 
 ated at a diftance, and on that account more expofed to 
 dilturbance. In the former, the governor was merely a 
 civil officer, and had no direction of the forces ; but in 
 the latter, it was thought necefTary that his authority mould 
 be rendered more effectual, by railing him to the head of 
 the military, as well as the civil department *.. 
 
 The prefident or governor of Britain was in the latter 
 lituation; having the command of the army, together with 
 the iupreme jurisdiction, and the appointment of inferior 
 magiftrates. In the courts held by all thefe officers, the 
 laws of Rome were confidered as the ftandard of every 
 decifion. Wherever the Romans extended their dominion, 
 it was their conftant aim to introduce their own juris- 
 prudence ;. a fyftein which was calculated to eftablifh good 
 order and tranquillity among the conquered people, as w r ell 
 as to promote the intereft of the conquerors. The intro- 
 duction of that fyftem into Britain was more immediately 
 necefTary, to prevent thofe private wars, and to reftrain 
 thole acts of violence and injuftice, to which the inhabi- 
 tants were lb much addicted. It is not likely, however, 
 that an innovation of. fuch importance was accomplifhed 
 all at once, In the public administration of the province, 
 the Roman magiftrates affirmed an abfolute authority; but,. 
 matters of private property, the Britifh chiefs and petty 
 inces appear, for fome time after the conqueft, to have 
 tained their ancient jurifdiction, and to have determined 
 
 • Dio. Caff. 53.— Hcin. ad. lib. i. dig. tit. 16. i£ 
 
 the
 
 Chap. I. UNDER THE ROMANS. 13 
 
 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 province, 
 brought along with them the fafhions acquired in other 
 parts of the empire ; while the multiplication and enlarge- 
 ment of the Britifh towns, which, for the moft part, were 
 governed according 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 colonies ; and the cuf- 
 toms, as well as the notions of order and jufiice, which 
 prevailed in thofe places of common refort, were eafily 
 propagated over the furrounding country. The long 
 continuance of the provincial government, and the pro- 
 grefs of the natives in civilization, difpofed them to ne- 
 glect 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 fufflcient for defraying 
 the expences of the civil and military eftablimments, but 
 alfo capable of affording annual remittances to the emperor, 
 was a third, and perhaps the principal object of his aclmi- 
 niftration. The Britons were fiibjected 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 pofTefTors of pafture ground were alfo loaded with 
 a duty, proportioned to the number of their cattle t. The 
 
 * See an account of the taxes throughout the Roman dominions, in Burmnn. dc 
 Vecl. Rom. 
 
 f This tax upon cattle was called Striptura, ■ 
 
 mitoms
 
 i 4 STATE OF BRITAIN Book I. 
 
 cuftoms and excife, in this part of the Roman dominions, 
 are faid to have been remarkably heavy * ; but the im- 
 poiitions which cxeited 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 dependance on the pro- 
 sperity of trade and manufactures, were moft eafily in- 
 creafed at pleafure, and therefore feem to have been the 
 ulual expedients for raffing Supplies, when every other taxa- 
 tion had been found ineffectual t. 
 
 The charge of collecting the revenue was committed to 
 an imperial procurator, who had the fuperintendance of all 
 the inferior officers employed in this branch of adminiftra- 
 tion ; 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 collection, fo liable to 
 abufe, and from the nature of the government in other 
 refpects, it may feem unneceffary to remark, that the Bri- 
 tons were expofed to grievous extortions. If the countries 
 near the feat of the empire, and within the obfervation of 
 the Sovereign, w r ere abandoned to the arbitrary meafures 
 of the provincial officers, it cannot be SuppoSed that thoSe 
 at a diflance were in a better Situation. Tacitus mentions, 
 in terms of the higheft indignation, the unfeeling rapacity 
 of the Roman officers in Britain ; which, at an early pe- 
 riod, excited a general revolt of the inhabitants J. 
 
 It is well known, that the cities and provinces under the 
 Roman dominion were often reduced, by the demands of 
 
 • Strabo, lib. 4. 
 
 t See the terms in which Eoadicea is made to complain of the two laft-mentioned 
 taxes. Xiphilinus in Nerone. 
 X Tacit. Agric. ch. 15. 
 
 govern-
 
 Chap. I. UNDER THE ROMANS. 15 
 
 government, to fucn diftrefs, as obliged them to borrow 
 money at exorbitant intereft; and that, by taking advantage 
 of their neceflities, the monied men of thofe times were 
 enabled to employ their fortunes in a very profitable man- 
 ner. In this trade, though prohibited by law, and how- 
 ever infamous in its own nature, the bell citizens of Rome 
 (fuch is the force of example) were not afhamed to engage. 
 Seneca the philofopher, whofe philofophy, it feems, was 
 not incompatible with the love of money, lent the Britons, 
 at one time, above three hundred and twenty-two thoufand 
 jxrunds *. 
 
 Were it poflible 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 inhabitants. Dr. Henry, who has made a 
 very full collection of the facts mentioned by ancient au- 
 thors concerning the provincial government of this Ifland, 
 fuppofes that its annual revenue amounted to no lefs than 
 two millions fterlingt. But this is a mere conjecture, un- 
 fupported by any authority ; and it mould feem that no 
 
 * XiHas ^vfiaJaj, quadringenties feftertium ; viz. £.322,916. 13. 4. Xiphilinus in 
 Nerone. 
 
 f This fuppofltion is built upon a calculation of Lipfius, who makes the revenue 
 of Gaul amount to £. 2,421,875. This calculation is only fupported by a paflagc of 
 Cicero, quoted by Strabo, which mentions the revenue of Egypt, in the time of Au- 
 letes, the father of Cleopatra, as amounting to that fum ; and by a pafTage in Velleius 
 Paterculus, aflerting 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 Gaul only quadringentieSy 
 £. 322,916. 13. 4. Suppofing, however, the fact to be afcertained, that the revenue 
 of Gaul was about two millions and a half, is there fufRcient ground to infer from 
 this that the revenue of Britain was, at kail, two millions? — Lipfius de 
 Rom. — Henry's Hifl. v. I. 
 
 n accounts
 
 16 STATE OF BRITAIN Book I. 
 
 accounts have been tranfmitted by hiftorians, from which 
 the point can be determined. 
 
 The improvements made by the Britons in agriculture 
 were inch, as to produce a regular exportation 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 Itatues and public ftruc- 
 tures, in the fame talte of magnificence which prevailed 
 in Italy. In this branch of labour, their mechanics were 
 even fo numerous, and had fuch reputation, as to be em- 
 ployed upon the neighbouring continent. In weaving 
 cloth they appear alfo to have made confiderable profi- 
 ciency. We are informed, in particular, that linen and 
 woollen manufactures were eftablifhed at Winchefter *. 
 
 The foreign trade of Britain, arifing from her valuable 
 tin mines, and for which the ifland was, at a very remote 
 period, frequented by the Phenicians, and other commer- 
 cial nations of antiquity, is univerfally known. When this 
 branch of commerce, together with thofe of lead, wool, 
 hides, and fome other native productions, came to be fe- 
 cured of a regular market, under the eye and protection 
 of the Roman magiftrate, they were undoubtedly pufhed 
 to a confiderable extent. 
 
 In tafte and literature, the advances made by the Britons 
 were no lefs confpicuous than in the common improve- 
 ments of life. Even in the time of Agricola, " the youth 
 " of diftinguifhed families," according to the great hiftorian 
 of that age, " were inftructed in the liberal arts : infomuch 
 " that thofe who but lately were ignorant of the language, 
 " began to acquire a reliih for the eloquence of Rome. 
 " They became fond of appearing in the drefs of the 
 
 • Henry's Hift. v. I. 
 
 " Romans,
 
 Chap. I. UNDER THE ROMANS. i 7 
 
 " Romans, and by degrees were led to imitate their 
 " vices, their luxury, and effeminacy, as well as their 
 " elegance and magnificence*." 
 
 The fafhion of travelling for education, and of refiding 
 in Rome, and in other learned and polite cities of the em- 
 pire, was early introduced among the Britons ; who, in a 
 noted pafTage of Juvenal, are mentioned as being indebted 
 to the Gauls for their eminent proficiency in pleading at 
 the bart. In Britain, as well as in other provinces, the 
 utmoft attention was given by government, to propagate 
 the knowledge not only of the Latin and Greek langua- 
 ges, but of all thofe branches of fcience that enjoyed any 
 reputation ; and for this purpofe, academies and fchools, 
 with public encouragement, are faid to have been erected 
 in the principal towns. From thefe different fources the 
 Roman learning, in all its parts, was communicated to this 
 Illand ; where it flourifhed for fome time, and was after- 
 ward fubjected to a fimilar decay as in all the other pro- 
 vinces of the empire. 
 
 The fucceflive changes which happened in the political 
 fituation of the Roman empire produced alterations in the 
 administration of all the provinces, as well as of Britain in 
 particular. The defpotical government of Rome, as it had 
 been at firft eftablifhed, fo it was afterwards entirely fup- 
 ported by a military force. In its original, therefore, it 
 contained the feeds of its deftruction. As, by his tyranni- 
 cal behaviour, the reigning emperor became naturally the 
 object of deteftation and refentment to his fubjects, he was 
 expofed to the continual hazard of infurrection, from the 
 difguft or caprice of that army which he kept on foot for 
 
 • Tacit. Agric. c. 21. 
 
 t Gallia caufidicos docuit facunda Britannos.— Juv. Sat. 15. 
 
 D main-
 
 i8 STATE OF BRITAIN Book I. 
 
 maintaining his authority. It was, at the fame time, im- 
 poflible that he lliould command in perfon the different 
 armies necefiary for the defence of the whole empire, or 
 that he mould prevent the general of every feparate army 
 from acquiring influence and popularity with the troops 
 under his direction. The greater! and moft veteran of 
 thofe armies were unavoidably employed on the frontiers, 
 where their fervice was moft needed, and where their cou- 
 rage and activity were moft exercifed ; and their leaders 
 being too far removed from the chief magiflrate to meet 
 with any disturbance in forming their ambitious plans, 
 were frequently in a condition to render themfelves inde- 
 pendent, or to open a direct paffage to the throne. 
 
 But the independence of the opulent and leading men, 
 in the diftant provinces, was increafed by another circum- 
 ftance of ftill greater importance. The firft emperors, 
 who pofTefTed the extenlive and rich countries lately fub- 
 dued by the Roman arms, enjoyed an immenfe revenue, 
 and their influence muft have been proportionably great ; 
 but the oppreflive nature of their government, and the 
 unbounded 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 Roman empire had, in the mean time, become fo 
 great, that the expence of maintaining forces on a diftant 
 frontier, with a view of making any farther conqueft, 
 teemed to overbalance the advantages which it might be 
 fuppofed to produce. Adrian, a prince no lefs diftin- 
 guifhed for activity than wifdom, was induced to contract 
 his dominions, and to abandon a part of what had been 
 already acquired, that he might be able to preferve the 
 remainder in greater fecurity. Thus, while the old chan- 
 x neli
 
 Chap. I. UNDER THE ROMANS. i 9 
 
 nels of public revenue were drained, no new fourccs could 
 be provided to fupply the deficiency. In this fituation the 
 emperor felt a gradual decline of his authority ; and as he 
 became lefs able to protect the inhabitants of the provinces, 
 or to punifh their dilbbedience, they were more difpofed 
 to make off their allegiance, and emboldened to follow 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 pru- 
 dent meafure to aflbciate 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 mould feem, from affection, and partly from political 
 motives, adopted in their own life-time a C<?far y or fuc- 
 ceffor to the crown. The fame plan was farther extended 
 by Dioclefian ; who divided the fovereignty between two 
 emperors and two Ccefars ; and who feems to have thought 
 that, to preferve the empire from falling in pieces, it was 
 requifite to fubmit to the manifeit inconveniences arifing 
 from the jealoufy and bad agreement of fo many indepen- 
 dent heads. The emperor Conftantine rendered this divi- 
 fion more permanent, by erecting a great Eaftern capital, 
 which became the rival, and even fuperior, in opulence 
 and dignity, to that of the weft. 
 
 In conformity to fuch views of dividing the fovereignty 
 among thole leaders who might otherwife be difpofed to 
 tear the empire afunder, fubdivifions were made in thofe 
 territories which had formerly compofed a fingle pro- 
 vince ; and in each fubdivifion a chief officer was appoint- 
 ed, whofe authority might ferve to limit and circumfcribe 
 that of him who had the government of the whole. Thus 
 the fame prince who founded Conftantinople, having dif- 
 
 D a banded
 
 no STATE OF BRITAIN Book I. 
 
 banded the old praetorian guards, whofe power had long 
 been ib formidable, distributed the whole empire into four 
 great prafe&ures^ correfponding to the four joint fove- 
 reigns already eitabliihed. Each prefecture he divided 
 into certain large territories, caSte&jurifdiSlions, under their 
 feveral governors ; and each jurifdiction he parcelled out 
 into i mailer districts, under the denomination of provinces, 
 which were committed to the care of deputy-governors. 
 
 Britain, which originally formed a lingle province, but 
 which, by the emperor Severus, had been divided into 
 two, was, according to this arrangement, 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 military 
 eftablifhment, were, for the fame reafon, feparated, and 
 placed in different hands. After the difmiffion of the prae- 
 torian guard, and of its commander, two military officers 
 were appointed, the one of which had the command of the 
 infantry, and the other of the cavalry, throughout the 
 empire ; and under them the number of generals, in par- 
 ticular diftricts, appears to have been confiderably in- 
 creafed. The Roman forces in this Illand came, in the 
 later periods of its provincial government, to be under 
 the direction of three independent officers; the duke of 
 Britain, who commanded on the northern frontier; the 
 count of Britain, who conducted the troops in the interior 
 parts of the country ; and the count of the Saxon JJjore, 
 employed in fuperintending the defence of the fouthern 
 and caltern coalts, which, from about the beginning of 
 the third century, had been expo fed to frequent incur- 
 fions from the Saxons. 
 
 All
 
 Chap. I. U N D E R T H E R O M A N S. 21 
 
 All thefe precautions, however, by which the Roman 
 emperors endeavoured to maintain fubordination and de- 
 pendence in the different parts of their dominions, were in- 
 effectual in oppofition to the prevailing current of the times. 
 The fame unhappy fyftem which tended to loofen the 
 bands of government, contributed alfo to render the mili- 
 tary eftablimment unfit for defence againft a foreign enemy. 
 As all power and diftinction were ultimately derived from 
 the army, it was the intereft of every general to court the 
 favour of the troops under his command, not only by en- 
 riching them with donations and emoluments, but by 
 treating them with every kind of indulgence. The natural 
 confequence of luch a fituation was the procuring to the 
 foldiers an exemption from the laborious duties of their 
 profeffion. Feeling their own confequence, the military 
 people fet no bounds to their licentious demands, and 
 were rendered inactive and effeminate, in the fame pro- 
 portion as they became haughty and infolent. The heavy 
 armour, which in former times had been ufed with fo much 
 advantage, was therefore laid afide, as too cumberfome and 
 fatiguing; and the ancient military difcipline, the great 
 caufe of all their victories, was at length intirely neglected. 
 It was thus that the Romans, being deprived of that fupe- 
 riority which they had formerly poffeffed, in their encoun- 
 ters with rude and ignorant nations, found themfelves un- 
 able to refill the fierce courage of thofe neighbouring bar- 
 barians, who, about the fifth century, were invited to 
 attack them by the profpect of plunder and of new fettle- 
 ments. 
 
 In this declining date of the Roman empire, the reve- 
 nue of the provinces, by fuffering a gradual diminution, 
 became at length inluflicient for the fupport of their civil 
 
 and
 
 STATE OF BRITAIN Book I. 
 
 and military eftablifhments ; and whenever any country 
 had been reduced to fuch a degree of poverty as to be no 
 longer able to repay the trouble and expence of maintain- 
 ing it, good policy feemed to require that it mould be aban- 
 doned. To fuch an unfruitful condition the diftant pro- 
 vinces, and Britain more efpecially, appear to have been 
 faft approaching, in the reign of Arcadius and Honorius, 
 when a deluge of barbarians, premng on all iides, threat- 
 ened the flate with fudden deftruc~tion, and made it ne- 
 cefTary to withdraw the forces from this Iiland, in order 
 to defend the richer and more important parts of the 
 empire. 
 
 The fituation of Britain, when thus deferted by the 
 Romans, was no lefs new and fingular, than it was alarm- 
 ing and unhappy. When mankind are formed into poli- 
 tical focieties, and have acquired property, they are ufually 
 provided with one fet of regulations for repelling the 
 attacks of their enemies, and with another for fecuring 
 internal tranquillity. But the Britons, upon this extraor- 
 dinary emergency, were left equally deftitute of both. 
 From the diitruftful jealoufy of Rome, they had been 
 removed from all concern in military transactions, at leaft 
 in their own country, and made to depend for their 
 fafety upon an army compofed entirely of foreigners. 
 In fuch a flate they had remained for more than three 
 centuries, enjoying the protection of their matters, with- 
 out any call to exert themfelves in their own defence, and 
 cultivating thofe arts which tend to foften the manners, 
 while they infpire an averfion from the dangers and hard- 
 fhips of a martial life. Thus the Britons, in their advances 
 towards civility, loft the courage and ferocity of barbarians, 
 without acquiring the fkill and addrefs of a poliflied nation; 
 
 and
 
 CHAP. I. UNDER THE ROMANS. M 
 
 and they ccafed to be warriors by nature, without being 
 rendered folders by difcipline and education. 
 
 But the departure of the Romans from Britain was no 
 lefs fatal to all the inflitutions of civil government. The 
 governors and other officers, who directed the adminiitra- 
 tion of public affairs, the farmers engaged in the different 
 departments of the revenue, the magistrates of Roman 
 appointment, who determined both civil and criminal 
 caufes, and who had now acquired a complete jurifdiction 
 over the whole province, had no longer occafion to remain 
 in a country which was totally abandoned by its mailer, 
 and in which, by the removal of the army, they had loft 
 the means of maintaining their authority. The courts of 
 juitice, therefore, were difTolved ; the taxes were aboliih- 
 ed ; and all order and fubordination were deftroyed. Even 
 private individuals, of Roman extraction, who had acquired 
 eltates in Britain, endeavoured to difpofe of their fortunes- 
 and by leaving the Iiland, avoided the ftorm that appeared 
 to be gathering around them. 
 
 The difafters which followed were of fuch a nature as 
 might be expected from the anarchy and confufion which 
 prevailed in the country. The Scots and Picts, who, in 
 the northern part of the Iiland, had remained unconquered, 
 and retained their primitive barbarous manners, took ad- 
 vantage of this favourable opportunity, to invade and plun- 
 der their more opulent neighbours. They met with little 
 refinance from the Britons, who, giving way to their fears, 
 and confcious of their inferiority, feemed to place their 
 only refuge in the protection of their ancient rulers. The 
 abject manner in which they, at different times, folicited 
 that protection; the behaviour of their ambaffadors, who in 
 the prefence of the emperor rent their garments, and put- 
 ting
 
 2 4 STATE OF BRITAIN Book I. 
 
 ting allies upon their heads, endeavoured to excite commi- 
 feration by tears and lamentations ; the letter which they 
 wrote to iEtius, the prefect of Gaul, infcribed the groans of 
 the Britons, and in which they fay, the barbarians drive us 
 into the fea, the fea throws us back upon the barbarians, and 
 we have only the hard choice left us, of perijhing by the fword, 
 or by the waves ; thefe particulars, which are handed down 
 by hiftorians, exhibit the fhocking picture of a people to- 
 tally deftitute of fpirit, and unable to collect refolution 
 even from defpair. Upon two occafions they obtained 
 from Rome the aid of a military force, by which their 
 enemies were furprifed, and repulfed with great (laughter ; 
 but the relief which this afforded was merely temporary, 
 and they received a peremptory declaration, that, from the 
 embarrafTed condition of the empire, no future fupplies of 
 this kind could be fpared *. 
 
 The confirmation of the Britons, in this helplefs condi- 
 tion, may eaiily be conceived, though in the rude annals 
 of that period it is, perhaps, painted with fome degree of 
 exaggeration. Time and neceflity, however, fuggefted the 
 means of guarding againif. the evils to which they were 
 expofed. The proprietors of land pofTefTed a natural in- 
 fluence over the people whom they maintained upon their 
 eftates ; and this was the fource of a jurifdiction, which, 
 during the fubfiftence of the Roman dominion, had been 
 in great meafure extinguifhed, but which, upon the difTo- 
 lution of the Roman courts, was of courfe revived and 
 rendered independent. The fame influence enabled thefe 
 perfons to call out their tenants to war, and to afTume the 
 direction of their conduct during a military enterprize. By 
 
 • Gilds Hift.— Bed* Hift. Ecclef. 
 
 thefe
 
 Chap.1. UNDER THE ROMANS. ^ 
 
 thefe two branches of authority, a very fimple form of 
 government was gradually introduced. The whole country 
 was broken into feparate diitricts, according to the extent 
 of territory in the poiTefTion of individuals ; and fell under 
 the civil and military power of fo many chiefs, the moft 
 opulent of whom appear to have been dignilied with the 
 title of princes. By the efforts of thefe leaders, it is likely 
 that private robbery and violence were, in fome degree, 
 retrained, and the people were encouraged to return to 
 their tillage and ordinary employments, from the neglect 
 of which, it is faid, a famine had been produced. But 
 their great object 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 bellowed the appellation of the duke of Britain. The 
 fame perfon prefided in the afTemblies held by the chiefs, 
 in which the great affairs of the nation appear to have been 
 determined. 
 
 After the government had remained for fome time in 
 this channel, Voltigern, one of the moft opulent of their 
 princes, was promoted to that high dignity; and upon a 
 new alarm of an invafion from the Scots and Picts, he is 
 faid to have called a national council, in which it was agreed 
 to folicit the afliftance of the Saxons. As this meafure was 
 fatal in its confequences, it has been univerfally decried, 
 and ftigmatifed as the height of imprudence ; but we 
 ought to confider that it proceeded from the fame fyftem 
 of policy which has been practifed and approved in all 
 ages, that of courting the alliance of one nation, in order to 
 form a balance againft the formidable power of another ; 
 and the cenfures which, in this inftance, have been fo libe- 
 
 E rally
 
 26 STATE OF BRITAIN, &c. Book I. 
 
 rally bellowed upon the Britons, are a plain proof Vh.ou 
 ready we are to judge of adtions from the good or bad 
 fuccefs which attends them, or how difficult it is to efta- 
 blifh any general rules of conduct, that will not appear 
 grofsly defective in a multitude of the particular cafes to 
 which they may be applied. 
 
 C 11 A P.
 
 Chap. II. CHARACTER, SU. 27 
 
 CHAP. II. 
 
 Character and Manners of the Saxons. 
 
 OF thofe barbarians who patted under the denomina- 
 tion 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 moment to afcertain the 
 origin, or to trace the feveral places in which they had 
 previoully refided. The Germans, who fubdued the Wef- 
 tern provinces of the Roman empire, have been fuppofed 
 to pofTefs a fmgular chara&er among the rude inhabitants 
 of the world, and to be diftinguifhed by their eminent 
 qualities and virtues. 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 fame 
 weaknefs keep one another in countenance. But there 
 is reafon to believe that the ancient inhabitants of Germany 
 exhibited the fame difpolitions and manners, and adopted 
 fimilar inititutions and cuftoms, to thofe which may be 
 difcovered in fuch barbarians of every age or country, as 
 have been placed in fimilar circumftances 
 
 Deriving their chief fubfiftence from the pasturing of 
 cattle, they generally ponefled confiderable wealth in herds 
 and flocks; but as they were little acquainted with tillage, 
 
 E 2 they
 
 28 CHARACTER AND Book L 
 
 they feem to have had no idea of property in land. Like 
 the early nations defcribed in the Sacred Hiftory, they 
 were accnftomed frequently to change their abode. Re- 
 garding chiefly the intereft of their cattle, they often found 
 it convenient to wander from one place to another, accord- 
 ing as they were invited by the profpecl: of new paftures ; 
 and in their migrations, they were under no reftraint, 
 either from the cares of hufbandry, or from the nature of 
 their pofTefTions. 
 
 But while the management of their cattle conftituted 
 the ordinary employment of thefe people, they were alfo 
 frequently engaged in war. In common with all other 
 barbarous nations, they were much addicted to theft and 
 rapine. The right of property muff, be long eftablifhed, 
 before the violations of it can be regarded as heinous 
 offences ; and it is necefTary that men fhould be habituated 
 to an extenfive intercourfe of fociety, before they are pre- 
 fented with fufflcient inducements to facrifice the imme- 
 diate profits of fraud and violence, to the diftant but fupe- 
 rior advantages, derived from their living together upon 
 good terms, and maintaining an amicable correfpondence. 
 7 ne ancient Germans, inhabiting a country almoft entirely 
 over-grown with wood, or covered with marines, were 
 often reduced to great fcarcity of provifions ; and were 
 therefore ftrongly inftigated, by hunger and mifery, to 
 prey upon one another. Example, in fuch a cafe, found 
 no difficulty to excufe or vindicate what cuftom had ren- 
 dered univerlal. 
 
 The rude inhabitants of the earth appear, in all ages and 
 countries, to have been divided intofeparate tribes and vil- 
 lages ; a confequence of their narrow communication, and 
 of their hoflile difpofitions. When, from accidental cir- 
 
 cumftances,
 
 Chap. II. MANNERS OF THE SAXONS. 2 9 
 cumftances, a family of fuch people had been planted, at 
 fo great a diftance from their friends and acquaintance 
 as to prevent all correfpondence with them, its members, 
 from inclination, as well as from a regard to mutual de- 
 fence, were ufually difpofed to live together, and to avoid 
 much intercourfe 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 fubdivided themfelves into 
 different families, who erected their huts befide one ano- 
 ther ; and if at length their village had been lb enlarged as 
 to produce a difficulty in finding fubfiftence, they were led, 
 by degrees, to remove that inconvenience, by fending 
 out little colonies, with which, notwithstanding their 
 diftance, they frequently preferved an alliance and connec- 
 tion. The German tribes became larger and more exten- 
 iive, according as, by the encreafe of their cattle, they 
 were enabled to live in greater affluence. In that part of 
 Germany which was known to the Romans, there have 
 been enumerated about forty different tribes or nation--, 
 many of which appear to have enjoyed considerable opu- 
 lence and power. But concerning the number or extent of 
 the villages belonging to each of thefe, little or no account 
 can be eiven. 
 
 The political regulations eftablifhed among the ancient 
 Germans were few and fimple, and fuch as their Situation 
 could hardly fail to fuggeft. Every fociety, whether great 
 or frnall, that had occafion to act in a feparate military ca- 
 pacity, required a feparate leader: for which reafon, as 
 every family was under the direction of the father, ib 
 every village had its own chief; and at the head of the 
 whole tribe or nation there was a great chief, or king. 
 
 How
 
 30 CHARACTER AND Book I. 
 
 How far the king, or the inferior chiefs, enjoyed their 
 dignity by election, or by hereditary defcent, it may be 
 difficult to determine; but their authority was far from 
 being abfolute. It was the bufinefs of every chief to corn- 
 pole 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 adminiftra- 
 tion of public affairs ; but in matters of great moment, 
 fuch as the making of laws, or the trial of capital offences, 
 he was obliged to procure the concurrence of a great coun- 
 cil, compofed of all the heads of families *. 
 
 The general character of theie barbarians was fuch as 
 might be expected from their manner of life. It confifted 
 not of many features, but they were diitinctly 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 neceflaries, their 
 
 * " In pace, nullus eft communis magiftratus ; fed principes regionum atque pa- 
 " gorum inter fuos jus dicunt, controverfiafque minuunt. Ubi quis ex principibus 
 " in concilio dixit fe ducem fore — qui fequi velint profiteantur ; confurgunt ii qui 
 " et caufam ct hominem probant, fuumque auxilium pollicentur, atque ab multi- 
 u tudine conlaudantur : qui ex iis fecuti non funt, in defertorum ac proditorum 
 " numero ducuntur, omniumque iis rerum poftea fides derogatur." Caefar de Bel. Gal. 
 
 6. § 23. " Reges ex nobilitate, duces ex virtute fumunt. Ncc regibus infinita 
 
 " aut libera poteftas ; et duces exemplo potius quam imperio, fi prompti, fi confpi- 
 
 " cui, fi ante aciem agunt, admiratione praefunt." "De minoribus rebus princi- 
 
 M pes confultant, de majoribus omnes : ita tamen, ut ea quooue, quorum penes 
 
 u plebem arbitrium eft, apud principes pertracrontur." " Ut turbse placuit, confi- 
 
 " dunt armati. Silentium per facerdotes, quibus turn et coercendi jus eft, imperatur. 
 " Mox rex, vel principes, prout aetas cuique, prout nobilitas, prout decus bellorum 
 
 " prout facundia eft, audiuntur, auctoritate fuadendi magis quam jubendi potcftatc." 
 
 w Licet apud concilium accufare quoque, et difcrimen capitis intendere." " Eli- 
 
 11 guntur in iifdem conciliis et principes, qui jura per pagos vicofquc reddunt."— - 
 Tacit, dc Mot. German, c. 7. u. 12. 
 
 paflions,
 
 Chap. II. MANNERS OF THE SAXONS. 31 
 paflions, though excited by few objects, were ftrong and vio- 
 lent. Their fituation, at the fame time, occafioned a won- 
 derful fimilarity in the difpolitions and habits of individuals. 
 In every polifhed nation, the labour and application of the 
 people is ufually fo divided, as to produce an endlefs variety 
 of characters in thofe who follow different trades and pro- 
 feflions. The foldier, the clergyman, the lawyer, the phyfi- 
 cian, the taylor, the farmer, the fmith, the fhopkeeper ; all 
 thofe who earn a livelihood by the exercife of feparate em- 
 ployments, 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 think- 
 ing. But the ancient inhabitants of Germany had made 
 too little progrefs in arts, to require that a fingle perfon 
 mould beftow his whole attention upon any one branch of 
 labour, in order to acquire the ufual degree of fkill and 
 proficiency in it. Every man therefore was accuftomed to 
 exercife indifcriminately the few employments with which 
 they were acquainted. Every family built its own cottage, 
 fafhioned its own tools and utenfds, 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 having no purfuits but fuch as were fug- 
 gefted by their moil immediate wants, were trained up in 
 an uniform fort of difcipline, and acquired that uniformity 
 of manners and cuftoms, which is commonly obferved in 
 pcrfons of the fame trade or profeffion. Even the nations 
 inhabiting the moft diftant regions of that extenfive coun- 
 try appear to have been no otherwife difcriminated than by 
 the different fhades of barbarifm and ferocity which the 
 climate or fituation, more or lefs favourable to improve- 
 ment, might eafily be fuppofed to produce. 
 
 5 Among
 
 32 CHARACTER AND Book I. 
 
 Among people who are conftantly expofed to the attacks 
 -of their neighbours, and who are almoil continually em- 
 ployed in war, courage and other military qualities are 
 naturally intitled to hold the firlt rank. There is an acih-c 
 and a pajftve courage, which may be diftinguimed from 
 each other, as they fecm to depend upon different princi- 
 ples, and are not always to be found in the fame perfons. 
 The former is dilplayed in the voluntary encountering of 
 danger, the latter in bearing pain and diftrefs with firm- 
 nefs and conftancy. Valour, which demands a fudden and 
 violent effort of refolution, may be regarded as a mafcu- 
 line 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 imminent danger, we 
 mull be excited by a ilrong defire of procuring efleem and 
 applaufe, either from others, or from the reflection of our 
 own minds. Efforts of this kind, it is evident, are mofl 
 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 diftinclion. 
 Fortitude under pain and diftrefs may, on the contrary, 
 be promoted by the oppofite circumilances, by the want 
 of fenfibility, or by a conviction that our fufferings are 
 beheld with unconcern and indifference. To complain or 
 repine, in the midfl of affliction, is an attempt to procure 
 relief, or at leafl companion, from others ; and when we 
 find that our complaints are difregarded, or treated with 
 fcorn and derifion, we are led to exert our utmofl refolution 
 in order to fmother and reflrain them. 
 
 The
 
 Chap.II. MANNERS OF THE SAXONS. 33 
 
 The favages, who live by hunting and fifhing, are placed 
 in a iituation more favourable to fortitude than to valour. 
 Expofed by their manner of life to innumerable hardfhips 
 and calamities, they are too much loaded by the preflure 
 of their own wants and fufferings, to feel very fenfibly 
 thofe of their neighbours. They difdain, therefore, to 
 folicit that fympathy, which they know by experience 
 will not be afforded them ; and having, from their daily 
 occurrences, been long enured to pain, they learn to bear 
 it with aftonifhing firmnefs, and even to endure every fpe- 
 cies of torture without complaining. As, on the other 
 hand, they live in very fmall focieties, and, in order to 
 find fubfiitence, are obliged to remove their different vil- 
 lages to a great diftance from one another, they are not 
 apt to be engaged in frequent or extenfive military enter- 
 prizes, nor to attain any degree of refinement in the me- 
 thods of conducting their hoftilities. The punctilios of 
 military honour are unknown to them. They fcruple not 
 to take any unfair advantage in fighting, and can leldom 
 be brought to expofe themfelves in the open field. The 
 unrelenting and blood-thirfly Indian of America is accus- 
 tomed to lie concealed for weeks, that he may have a conve- 
 nient opportunity of fhooting his enemy, and may then with 
 fafety enter his cabbin, to rob and murder the family. 
 
 Nations who fubfift by pafturing cattle, as they live in 
 larger focieties, and are fupplied with food in greater abun- 
 dance, are more at leifure, and have greater incitements to 
 cultivate their focial difpolitions. But their magnanimity, in 
 bearing pain and affliction with apparent unconcern, is na- 
 turally diminifhed by their advancement in humanity ; and 
 according as individuals difcover that their diftreffes meet 
 with greater attention from their companions and acquaint- 
 
 F ancej
 
 34 CHARACTER AND Book T. 
 
 ance, they are more encouraged to difplay their fuffer- 
 ftigs, and to leek the tender confolation of pity, by giving 
 way to the expreflion of forrow and uneafmcis. They are 
 alio likely to acquire a much higher degree of the military 
 fpirit. The wandering life of fliepherds is the occafion 
 of bringing frequently into the fame neighbourhood a 
 variety of flranger tribes; among whom any accidental 
 jealoufy, or interference of intereft, is apt to kindle ani- 
 mofity, and to produce quarrels and hoftilities. In the fre- 
 quent wars that arife from fuch a fituation, and which 
 are carried on with the ardour and ferocity natural to bar- 
 barians, the victors, having no fixed refidence, are at full 
 liberty to profecute their fuccefs without interruption; 
 and as, in every migration, fuch people are obliged to 
 carry along with them their wives, and children, and fer- 
 vants, together with their herds and flocks, and even their 
 furniture and utenfils, a deciiive battle never fails to re- 
 duce one tribe completely under the power of another. 
 With the fame eafe with which the conquerors may pur- 
 fue their victory, they can incorporate with themfelves 
 the vanquifhed party, and make ufe of their affiftance 
 in any future enterprize. Thus by repeated fuccefTes, 
 and by a gradual accumulation of forces, a fingle tribe 
 may, in a fliort time, become fo powerful, as to meet 
 with 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. Hiftory is accordingly filled with 
 the rapid and extenfive conquefts made by nations in this 
 early if ate of fociety ; of which, in particular, there oc- 
 cur many celebrated examples among the Arabs and Tar- 
 tars. 
 
 Such
 
 Chap. II. MANNERS OF THE SAXONS. 35 
 
 Such was the condition of the ancient Germans ; of 
 whom it is remarked by the hiftorian, that they were lefs 
 diftinguifhed by their patience of labour, or by their ca- 
 j3acity to bear the extremities of heat and cold, of hunger 
 and of thirit, than by their active courage, and their ardent 
 love of military reputation *. " They are more eafily per- 
 " fuaded," fays Tacitus, " to march againil an enemy, and 
 " to expofe themfelves in the field, than to plough the 
 u earth, and to wait the returns of the feafon. They ac- 
 " count it unmanly to acquire with fweat what may be 
 " procured with blood. When they engage in battle, it 
 " is a difgrace for the chief to be furpailed in valour ; it 
 " is a difgrace for his followers not to equal the bra- 
 " very of their chief ; it is perpetual infamy to efcape 
 " with fafety, after the fall of their leader. To defend 
 " and protect his perfon, to devolve upon him the glory 
 " of all their brave actions, is the principal point of ho- 
 " nour. The chiefs fight for victory, their followers for 
 " the reputation and dignity of the chief t." 
 
 The fame circumftances which gave rife to frequent 
 hoflilities between the members of different tribes, pro- 
 duced a flrong attachment between the individuals belong- 
 ing to each of thofe little focieties. United by a fenfe or 
 their common danger, and by their common animolity, 
 againft all their neighbours, they were frequently required 
 by their fituation to defend and relieve one another, and 
 even to hazard their lives for their mutual fafety. Living 
 
 * Laboris atque operum non cadem patientia; miaimcquc fitim seftnmque to- 
 krare, frigora atque inediam ccelo folove alTuevcrunt. Tacit, de Mor. German. 
 c. 4. 
 
 t Ibid. c. 14, 
 
 F 2 in
 
 3 6 CHARACTER AND Book L 
 
 in a fmall circle of acquaintance, and having fcarcely any 
 intercoiirfe with the reft of mankind, they naturally con- 
 tracted fuch prejudices and prepofTeflions as tended to 
 flatter their own vanity, and to increafe their partial regard 
 for that \illage or tribe of which they were members. 
 But however warmly attached to their kindred and friends^ 
 it could not be expected that, in their ordinary behaviour, 
 they would exhibit much delicacy or refinement of man- 
 ners. They were too little acquainted with the dictates 
 of prudence and fober reflection, to be capable of reftrain- 
 ing the irregular Tallies of paffion ; and too little conver- 
 fant in the arts of polifhed 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, unaccuftomed to bear oppoli- 
 tion or controul, demanded an implicit fubmimon and 
 obedience from all its members. When he met with great 
 provocation, it was not unufual for him to take away the 
 life of a fervant ; and this was regarded as an exercile of 
 domeftic authority, for which he could not be fubjected to 
 any punifhment *. Even the feelings of natural affection 
 did not prevent the children from being, in like manner, 
 fubjected to the arbitrary power of the father, and from 
 experiencing, on many occafions, the unhappy effects of 
 his cafual dilpleafure. 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 um> 
 ally beftowed upon the pleafures of fex, and the inferiority 
 of the women in itxength, courage and military accom- 
 
 • " Occidcre folent, non difciplina ct feveritate, fed impetu ct ira, ut inimkum, 
 jiifi quod impune." Tacit, de Mor. German, c. 25. 
 
 plilhments,
 
 Chap.IL MANNERS OF THE SAXONS. 37 
 
 plifhments, deprived them of that rank and confequence 
 which they enjoyed in a civilized nation. There is great 
 reafon to believe that the hufband commonly bought his 
 wife from her father, or other male relations, and that he 
 confidered her in the light of a fervant or {lave. If ihe 
 was guilty of adultery (a crime which, from the general 
 fimplicity of manners, w r as probably not very frequent, 
 but which, by introducing a connection with a ftranger, 
 was highly prejudicial to the interefh of the family) the 
 punifhment inflicted by the hufband, was that of flrip- 
 ping her naked, turning her out of doors, and whipping 
 her through the village *; 
 
 In the intercourfe of different families, and in their 
 common amufernents, their behaviour was fuited to the 
 fpirit and difpofition of a martial, but rude and ignorant 
 people. Their military life, which was incompatible with 
 industry, prevented the growth of avarice, the ufual at- 
 tendant of conftant labour and application in every lucra- 
 tive profeflion. Their employments were fuch as united 
 them by a common tie, inftead of fuggefting the idea of a fe- 
 parate intereft, or engaging them in that ftruggle for riches* 
 by w r hich the purfuits of every man are, in fome meafure, 
 oppofed to thofe of his neighbour. Their herds and flocks* 
 in which their wealth principally confirmed, being under the 
 management and direction of a whole village or tribe, were 
 confidered, in fome fort, as the joint property of all ; fo far 
 at leaft,. as to render individuals willing, on all occallons, to 
 relieve their mutual wants, by fharing their goods with one 
 
 ♦Tacit, de Mor. German, c. 18.19. The conformity of the German manners 
 with thofe of other barbarous nations, in relation to the condition of women and 
 children, I have endeavoured to illuftrate, in a trcatile entitled. An Enquiry into t.'x 
 Origin of Ranks, 
 
 another.
 
 38 CHARACTER AND Rook I. 
 
 another. Hence that hofpitality and generofity which is 
 £b confpicuous among fhepherd nations in all parts of the 
 world, u Xo nation," lavs the author above quoted*, " il 
 " more hofpitable than the Germans. They make no dif- 
 " ference, in this refpedt, between a ftranger and an ac- 
 u quaintance. When a perfon has been liberally enter- 
 u tained in one houfe, he is conducted to another, where 
 u he is received with the fame hearty welcome. If a gueft, 
 " at his departure, mould aik a prefent from his enter- 
 " tainers, it is feldom refufed; and they will aik any thing 
 " of him with the fame freedom. They are fond of 
 " making prefents, which are fcarcely underftood to lay 
 u the receiver under any obligation." 
 
 Their military operations, no doubt, required a violent, 
 
 though an irregular and tranfient exertion ; but upon the 
 
 voncluiion of an expedition they were completely at liberty 
 
 to indulge themfelves in reft and idlenefs. From thefe 
 
 oppoiite lituations, they contracted oppofite habits, and 
 
 became equally reftlels and flothful. When not engaged 
 
 in the field, the warriors difdained to afliil in domeftic 
 
 offices, they even feldom exercifed themfelves in hunting ; 
 
 but, leaving the care of their cattle, and of their houfhold, 
 
 to the women and children, or to the old and infirm, they 
 
 were accuftomed to pafs their time in liftlefs indolence, 
 
 having little other enjoyment but what they derived from 
 
 food or from ileep t. That from fuch difpofitions they 
 
 found great delight in convivial entertainments, and were 
 
 given 
 
 • Tacit, dc Mor. Germ. § 21. 
 
 f " Qiiotics bclla non ineunt, non mukum venationibus, plus per otium tran- 
 
 a figunt, clediti fomno, ciboque. Fortifliinus quifque ac bellicofiflimus nihil agens, 
 
 u dclcgata domus et penatium et agrorum cura fue minis fenibufque, et ijifirmiffimo 
 
 ^ u cuique
 
 Chap. II. MANNERS OF THE SAXONS. 39 
 given to great excefTes in eating and drinking, may eafily 
 be fuppofed. By the pleafures of intoxication, they fought 
 to diffipate the gloom of that langour and wearinefs with 
 which they were opprefTed, and to enliven the barren 
 profpect which the ordinary courfe of their thoughts and 
 fentiments was capable of prefenting to them. For the 
 fame reafon they were addicted to games of hazard ; info- 
 much that perfons who had loft their whole fortune at play 
 would afterwards, it is faid, venture to flake their liberty ; 
 and having ftill been unlucky, would voluntarily become 
 the flaves of the winner *. The practice of gaming muft 
 have been carried to a high pitch, wdien faihion, even 
 among fuch barbarians, had made it a point of honour to 
 difcharge a game-debt of that extraordinary nature. It is 
 obfervable, that in countries where men have exhaufted the 
 enjoyments arifmg from the polTelTion 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 contracted 
 thole habits of induftry by w r hich w r ealth is acquired ; and 
 they are forced to make ufe of the fame expedient to 
 deliver them from that t tedium vit& 9 which is the moft 
 oppreffive of all misfortunes. The oppofite extremes of 
 fociety appear in this refpect to coincide ; and exceilive 
 gaming is therefore the vice, not only of the moft opulent 
 
 " cuique ex familia, ipfi hebent mira diverfitate nature, cum iidem homines Ac 
 14 ament inertium et oderint quietem." Tacit, de Mor, Germ, c 15. 
 
 " Diem noctemque continuare potando nulli probrum." Ibid. c. 22. 
 
 * Aleam (quod mirere) fobrii inter feria exercent, tanta lucrandi perdendique teme- 
 ritate, ut cum omnia defecerunt, cxtremo ac noviHimo jaftu de libertate et de corpore 
 contendant. Viclus voluntariam fervitutem adit. Quamvis junior, quamvis robuf- 
 tior, adligari fe ac venire patitur. Ea eft in re prava pervicacia: ipG fidem vocant. 
 Tac. de Mor. Germ. c. 24. 
 
 and
 
 4 o CHARACTER AND Book I. 
 
 and luxurious nations, but of the moft rude and bar- 
 barous. 
 
 Among all the German nations, the Saxons, who ap- 
 pear to have been fcattered over the peninfula of Jutland, 
 and along the neighbouring mores of the Baltick Sea, were 
 the moil fierce and barbarous, as they were moft com- 
 pletely removed from that civility and improvement which 
 every where attended the progrefs of the Roman arms. 
 Their maritime fituation, at the fame time, had produced 
 an early acquaintance with navigation, and had even qua- 
 lified them to undertake piratical expeditions to feveral 
 countries at a diftance. They had, accordingly, long in- 
 fefted the coafts of Britain and Gaul ; infomuch that in the 
 former country it was found neceflary to appoint a mili- 
 tary officer, with a regular force, to guard agairift their 
 
 depredations. 
 
 Making allowance, however, for fuch differences as 
 might arile from this peculiarity of fituation, their charac- 
 ter and manners were limilar to thofe of the other inha- 
 bitants of Germany, and, in general, to thole of the wan- 
 dering tribes of fhepherds in every age or country. 
 
 Upon the whole, when we examine the accounts deli- 
 vered by the beft hiitorians, concerning the ancient inha- 
 bitants of Germany, as well as the Saxons in particular, we 
 find nothing, either in their public or private inftitutions, 
 or in their habits and ways of thinking, which we can 
 reafonably fuppofe to have occafioned any peculiarity in the 
 government eftablifhed by the latter people in Britain. 
 Whatever peculiarity therefore is obfervable in the Anglo- 
 Saxon government, it mult have arifen from caufes poftc- 
 lior to the migration of that people into Britain; from the 
 nature of the country in which they fettled; from the 
 
 manner
 
 Chap. II. MANNERS OF THE SAXONS. 4 t 
 manner in which their fettlements were formed ; or from 
 other more recent events and circumftances. 
 
 Some writers fondly imagine, that they can difcover, 
 in the political ftate of the Saxons, while they remained in 
 their native forefls, the feeds of that conftitution which 
 grew up in England during the government of the An- 
 glo-Saxon princes. With refpect to thofe innate princi- 
 ples of liberty which have been alcribed to this people, 
 it mufl be obferved, that in proportion as mankind re- 
 cede from civilized manners, and approach to the infancy 
 of fociety, they are lefs accuftomed to authority, and 
 difcover greater averfion to every fort of reftraint or con- 
 troul. In this fenfe the Saxons may be faid to have pofTefTed 
 a ftronger relifh for freedom than many of the other Ger- 
 man tribes ; as the prefent Indians of America, who 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 improve- 
 ment, and from no original peculiarity of character, it is 
 not likely to be retained by fuch barbarians, after they 
 have opportunities of improving their condition, by acquir- 
 ing property, 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 primitive poverty and barbarifm, 
 they were with more difficulty reduced into a ftate of fub- 
 ordination, and fubmiflion to civil authority. The ancef- 
 tors of almoft every civilized people may be traced back to 
 the moft rude and lavage ftate, in which they have an equal 
 title to be diftinguiihed, as men impatient of all reftraint, 
 and unacquainted with the commands of a fuperior. 
 
 G CHAP-
 
 42 SETTLEMENT OF THE Boon I. 
 
 C II A P. III. 
 
 Self lenient of the Saxons in Britain. 
 
 THE Saxons accepted with joy and alacrity the propo- 
 fals made to them by the Britons ; and it appears to 
 have been flipulated, that they mould immediately fend 
 a body of troops into Britain, to be employed in the de- 
 fence of the country, and to receive a ftated hire during 
 the continuance of their fervices-. In confequence of 
 this agreement Hengifl and Horfa, two brothers, and per- 
 ions of diitinction 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, immediately after, were ftationed by Void- 
 gern partly upon the confines of the Northern wall, and 
 partly upon the Kentifh coaft, the two places that had been 
 ufually iecurcd with garrifons under the late dominion of 
 the Romans. Inflich a fituation thefe auxiliaries, who formed 
 the principal itrength of the country, could hardly fail to 
 perceive their own importance, and to entertain the deb* gn 
 of extorting a permanent fettlement from the inhabitants. 
 With this view, Hengiit is faid to have periuaded the Bri- 
 tons to hire an additional number of his countrymen, as 
 the only effectual means for fecuring themfelves from the 
 
 !eet Orig. Brife Bcdc fays, that the Saxons firft took occafion to quarrel 
 
 with the Britons, by demanding an increafc of their allowance^ to which he gives the 
 name ciamtma, HHfc Ecck£ lib. i. c, 15, 
 
 future
 
 Chap. III. SAXONS IN BRITAIN. 43 
 
 future incurfions of the enemy ; and, upon an application 
 for that purpofe, was joined by a new body of Saxons, 
 amounting to five thoufand men, By this reinforcement 
 he found himfelf fuperior to the disjointed and iin war- 
 like forces of the country. Having therefore fecretly 
 concluded a treaty of peace with the Pidls and Scots, and 
 pretending that the articles of the original 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 endea- 
 voured to penetrate into the country. Their attempts were 
 crowned with fuccefs, and the moft valuable part of the 
 111 and was at length reduced under their dominion. This 
 great event, however, was not accomplifhed without a 
 violent ftruggle, nor in lefs than a hundred and feventy 
 years ; during which time many battles were fought, with 
 various fortune. It is remarkable that, notwithflanding 
 their fears and pufillanimity, when firft abandoned by the 
 Romans,"the Britons, in the courfe of their long-continued 
 conteft with the Saxons, defended themfelves with more 
 obflinate 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 ailifcance was, in all probability, the caufe of 
 this vigorous and fpirited behaviour; as it called forth the 
 exertion of their powers, and produced in them a degree 
 of courage and d'ifcipline, which the provinces enjoying the 
 protection of the Roman government were not under the 
 fame neceflity of acquiring. 
 
 G 2 Wo
 
 44 SETTLEMENT OF THE Book I. 
 
 We have no full account of the circumilances 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 rela- 
 tions of this event by our early hiflorians, and from the 
 more diflinct information that has been transmitted con- 
 cerning 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 mailers of a certain territory, and en- 
 riched themfelves with the fpoil of their enemies. Willing 
 to iecure what they had obtained, they were led afterwards 
 to offer terms of accommodation to the vanquifhed ; with 
 whom they appear, on fome occafions, to have made a 
 formal divifion of their land and other pofTeflions. 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 combatants ; and upon the conclufion 
 of a war, the parties were under flood to have the property 
 of the refpective diflricts which they had been able to 
 occupy or to retain. Such of the Britons as had been made 
 captives in war were doubtlefs, in conformity to the gene- 
 ral practice of the ancient Germans, reduced into a flate 
 of fervitude ; but thofe who had efcaped this misfortune 
 refided in the neighbourhood of the Saxons, and often 
 maintained a friendly intercourfe with them. 
 
 The ambition, however, and avidity of thefe barbarians, 
 incited them, at a future period, to renew their former 
 holtilities ; and thefe were generally followed by new vic- 
 tories, and by a farther extenfion of conqueil. In this 
 manner, after a long courfe of time, the country was com- 
 pletely fubdued by thefe invaders ; and the ancient inhabi- 
 tants.
 
 Chap. III. SAXONS IN BRITAIN. 45 
 
 tants were, according to accidental circumftances, parti y 
 degraded into a flate of ilavery, and partly, by particular 
 treaties, and by long habits of communication, incorporated 
 with the conquerors. 
 
 From the declamatory reprefentations of fome early 
 annalifts, the greater part of hiftorians have been led to 
 fuppofe, that fuch of the Britons as efcaped captivity were 
 either put to death by their barbarous enemies, or, difdain- 
 ing fubmiflion, and expecting no mercy, retired into 
 Wales, or withdrew into the country of A-morica in 
 France, to which, from them, the name of Bretagne has 
 been given. An acute and induftrious antiquary, Mr. 
 Whitaker, has lately mown, I think in a fatisfactory man- 
 ner, that this extraordinary fuppofition is without any folkl 
 foundation. That many of the Britons were at that period 
 fubjected to great hardfhips, and, in order to lave them- 
 felves from the fury of their enemies, were even obliged 
 to quit their native country, may be ealily believed ; but 
 that the Saxons were animated with fuch uncommon 
 barbarity,, as would lead them, in direct oppoiition to their 
 own intereft, to root out the ancient inhabitants, mult 
 appear highly improbable. Of the total extirpation of 
 any people, by the moil furious conquerors, the records of 
 well-authenticated hiftory afford not many examples. It is 
 known, at the fame time, that no fuch cruelty was exhi- 
 bited by any of the German nations who conquered the 
 other provinces of the Roman empire ;. and it mult be ad- 
 mitted, that the fituation of all thofe nations was very 
 much the fame with that of the Saxons, as alfo that they 
 were a people in all refpects of fimilar manners and 
 cuftoms.. There is even complete evidence that, in 
 fome parts of the Ifland, the Britons were fo far from be- 
 
 ing
 
 46 SETTLEMENT OF THE BookI. 
 
 ing extirpated, that they were permited to retain a certain 
 proportion of the landed property ; and it is remarkable, 
 that this proportion, being a third part of the whole, was 
 the lame with that retained by the ancient inhabitants 
 in fome of thofe provinces, upon the continent of EtiFCfpe, 
 which were conquered by the other German tribes. 
 Though, in other cafes, the veftiges of fuch early tn< 
 actions have not been preferred, it is highly probable 
 that a iimilar divifion of the land was made, either by 
 exprefs contract, or by tacit agreement. There can be no 
 reafon to believe that the fame Saxons would, in one part 
 of the Ifland, exhibit fuch moderation and humanity to 
 the Vanquished people, and in another, fuch unprecedented 
 ferocity and barbarity. 
 
 It is further to be obferved, that the language which 
 grew up in Britain after the fettlement of the Saxons, and in 
 which a large proportion of the Bflitijb and the Latin 
 tongues w^ere incorporated with the Saxon, affords a 
 fufneient proof that the inhabitants were compounded 
 of the different nations 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 coniiderable knowledge of agriculture. 
 Having obtained a quantity of land that was formerly 
 employed in tillage, and having procured a proportionable 
 nnmber of fervants, already acquainted with the various 
 branches of hufbandry, it may eafily be imagined that 
 they would avail themfelves of this favourable litnati n, 
 for the profecution of an employment fo conducive to their 
 comfortable fubliitcnce. 
 
 t In
 
 Chap. III. FAXONS IN BRITAIN. 47 
 
 In confequence of a general attention to agriculture, 
 they mult have been induced to quit the wandering life; 
 iince, in order to practile the employment of a farmer with 
 any advantage, a continued refidence upon the fame fpot 
 is necelfary. In the occupancy and appropriation of landed 
 eitates, thofe perfons who had been moft connected in war 
 were mod likely to become neighbours ; and every little knot 
 of kindred and friends were commonly led to build their 
 houies together, that they might be in readinefs to affift one 
 another in their labour, and to unite in defending their pof- 
 feffions. The villages of German fhepherds were thus con- 
 verted into villages of hufbandmen, which, in proportion to 
 the progrefs of their arms, and to their advances in improve- 
 Lit, were gradually enlarged and fpread over the country. 
 It mould feem that, upon the firft fettlement of the Saxons, 
 the whole people were diitributed into little focietics of this 
 kind ; and no individual was fo opulent, that he could 
 c£t to live in fecurity, without maintaining an alliance 
 and intimate communication with others. This cuftom 
 of relbrting to villages, introduced by neceflity, in times 
 of extreme barbarifm and diforder, is even at prefent re- 
 tained by many of the farmers in England ; although, 
 from a total change of manners and circumicances, it is 
 evident that afeparate refidence, upon their different farms, 
 would often be much more convenient. 
 
 While the Saxons, by their intercourfe with a more 
 lized people, were thus excited to a confiderable im- 
 provement of their circum fiances the Britons were, from 
 an oppofite fituation, degraded in the fame proportion, and 
 continued to fink in ignorance and barbarifm. Engaged 
 in a defperate conflicl, in which \g dear to them 
 
 was at ftake, and having to cope with an enemy little 
 
 1
 
 48 SETTLEMENT OF THE Book I. 
 
 practifed in the refinements of humanity, they were oblig- 
 ed, in their own defence, to retaliate thofe injuries which 
 they were daily receiving; and by the frequent exerciie 
 of depredation, they became inured to rapine and injuf- 
 tice. The deftructive wars, in the mean time, which were 
 incefTantly kindled, and which raged with fo much violence 
 in every quarter of the country, were fatal to the greater 
 part of its improvements. The numerous towns which 
 had been raifed under the protection and fecurity of the 
 Roman government, and which now became the ufual 
 refuge of the weaker party, were often facked by the 
 victorious enemy, and after being gradually depopulated, 
 were at length either laid in ruins, or left in the ftate of 
 infignificant villages. In thofe times of univerfal terror 
 and confufion, the ancient fchools and feminaries of learn- 
 ing were abandoned, and every perfon who cultivated 
 the arts fubfervient to luxury and refinement, was 
 forced to defert fuch ufelefs occupations, and betake him- 
 felf to employments more immediately requifite for pre- 
 fervation and fubfiftence. In the courfe of two centuries, 
 within which the conqueft of the more acceflible and va- 
 luable parts of Britain was completed, the monuments of 
 Roman opulence and grandeur were entirely erazed ; and 
 the Britons who remained in the country, and who re- 
 tained their liberty, adopted the fame manner of life with 
 their Saxon neighbours, from whom they were no longer 
 diftinguifhable, 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 iffued from different parts of 
 the German coaft, at fome diftance from one another, and 
 belonged to different tribes or nations : they have been 
 
 divided,
 
 Chap. III. SAXONS IN BRITAIN. 49 
 
 divided, by hiftorians, into three great branches, the An- 
 gles, the Jutes ', and the Saxons, properly fo called. As the 
 leaders of the feveral parties belonging to any of thefe 
 diviilons pofTefTed a feparate influence over their own adhe- 
 rents, and profecuted their enterprifes in different parts of 
 the country, fo they naturally rejected all ideas of fubordi- 
 nation, and endeavoured to acquire a regal authority ; the 
 refult of which was, that after various turns of fortune, no 
 lefs than feven independent Hates, each under its own par- 
 ticular monarch, were at length eftablifhed. 
 
 The followers of Hengift and Horfa, compofed of Jutes, 
 acquired a fettlement in the Earl: corner of the Iiland, and 
 eftablifhed their dominion in what is now the county of 
 Kent. Different parties of the proper Saxons occupied a 
 much larger territory, and laid the foundations of three 
 different kingdoms. Thofe who, from their fituation, 
 were called the Southern Saxons, eftablifhed themlelves in 
 the counties of Suifex and Surrey; the Weft-Saxons ex- 
 tended their authority over the counties to the Weftward, 
 along the Southern coaft ; and the Eaft-Saxons took poffef- 
 flon of Effex, Middlefex, and a conflderable part of Hert- 
 fordfhire. The Angles were ftill more numerous, and the 
 territories which they occupied were much more extenhve. 
 By them was formed the kingdom of the Ealt-Angles, in 
 the counties of Cambridge, Norfolk, and Suffolk ; that of 
 Northumberland, extending over all the country which 
 thefe barbarians had fubdued, from the I lumber to the 
 Frith of Forth ; and that of Mercia, comprehending the 
 inland counties, which were in a manner included by the 
 other kingdoms of the I leptarchy. 
 
 In the Weftern part of the Iiland, from the Land's End to 
 the Frith of Clyde, the ancient inhabitants were itill able 
 
 II to
 
 50 SETTLEMENT OF THE Book I. 
 
 to maintain their independence ; and in this large tract of 
 country were erected four Britifh principalities or king- 
 doms ; thole of Cornwall, of South-Wales, of North-Wales, 
 and of Cumberland. To the North of the Friths of Forth 
 and Clyde the Picts and Scots retained their ancient poi- 
 ieilions. 
 
 The changes produced in the manners and cuftoms of 
 the Saxons, by their fettlement in Britain, were filch as 
 might be expected, from the great change of lituation 
 Which the people experienced, in palling from the ftate of 
 lhepherds to that of hufbandmen. As in following the 
 employment of the latter, they necefTarily quitted the wan- 
 dering life, and took up a fixed refidence, they were ena- 
 bled to acquire property in land; with which it is probable 
 they were formerly unacquainted. The introduction 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 fucceflive- 
 ly ; 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 railed, and afterwards to 
 the future pofTeflion of the ground itfelf, in order that 
 they might obtain the benefit of the improvement which 
 their long cultivation had produced. In this appropriation, 
 of lb great importance to fociety, the Saxons in Britain 
 were undoubtedly ftimulated, and inftructed, from the 
 cultivated ftate of the country, as well as from the example 
 of the people whom they had fubdued. 
 
 This alteration in their circumftances had necefTarily a 
 mighty influence upon the conduct of their military ope- 
 rations. As a great part of their property was now inca- 
 pable of being tranfportcd, the inhabitants of each village 
 
 were
 
 Chap. III. SAXONS IN BRITAIN. 51 
 
 were induced to fortify, in fome degree, the place of their 
 abode, for the prefervation of their mofl valuable effects ; 
 and therefore, in going out to meet an enemy, inftead of 
 carrying along with them their cattle, and other move- 
 ables, 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 actual warriors had occafion to 
 take the field. The immediate plunder, therefore, arifing 
 from a victory, was rendered more iiiconfiderabie ; and 
 even this the victors were commonly obliged to iecure at 
 home, before they could conveniently undertake a new 
 enterprize. Thus, after the fettlement of the Saxons in 
 Britain, they were lefs in a condition to carry on wars at a 
 great diftance ; and they appear to have laid alkie, for the 
 mofl part, their foreign piratical expeditions. 
 
 The permanent refidence of the people tended likewife 
 to open a regular communication between different vil- 
 lages ; the inhabitants of which, by remaining conftantly in 
 the fame neighbourhood, wxre led by degrees to contract 
 a more intimate acquaintance. From the acquifition of 
 landed poffeflions, which by their nature are lefs capable 
 than moveables of being defended by the vigilance and 
 perfonal prowefs of the poffefTor, the necefhty of the public 
 interpofition, and of public regulations for the fecurity of 
 property, muft have been more univerfally felt. From 
 thefe caufes, it is natural to fuppofe that the connections 
 of fociety were gradually multiplied, and that the ideas 
 of juftice, as well as of policy and government, which had 
 been entertained by the primitive Saxons, were conliderably 
 extended and improved. 
 
 The introduction of landed property contributed, oil the 
 other hand, to encreafe the influence and authority of 
 
 H 2 incli-
 
 52 SETTLEMENT OF THE Book I. 
 
 individuals, by enabling them to maintain upon their 
 eitates a greater number of dependents than can be fup- 
 portcd by perfons whole pofleifions are merely moveable. 
 The heads or leaders of particular families were thus 
 railed to greater coniideration ; and, in the refpective com- 
 mimifies of which they were members, obtained more 
 completely the excluhve direction and management of 
 public affairs, The influence of the great leader, or prince, 
 by whom they were conducted in their common expedi- 
 tions, was proportioned, in like manner, to his private 
 eftate, and extended little farther than to his own tenants; 
 for which reafon, in the feveral kingdoms of the Heptar- 
 chy, the fovereign pone fled a very limited authority, and 
 the principal powers of government were lodged in a Wit- 
 tenagetnote, or national council, compofed of the indepen- 
 dent proprietors, or leading men in the ftate. 
 
 Although the monarchs of thefe different kingdoms 
 claimed an independent fovereignty, yet, in their ftruggles 
 with the Britons, they often procured afriftance from one 
 another, and were combined againft the ancient inhabitants 
 of the country, their common enemies. The direction of 
 their forces was, on thofe occasions, committed to fome 
 particular monarch, who, in conducting their joint mea- 
 furcs, was frequently under the necefhty of calling a Wit- 
 tenagemote, 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 let of regulations extending to all its members, \\ as 
 gradually fiiggefted *• according to the opulence or abilities 
 of the different Saxon princes, they were, by turns, pro- 
 moted to that ftipreme dignity ; which became, of courfe, 
 
 the
 
 Chap. III. SAXONS IN BRITAIN. 53 
 
 the great object of their ambition, and the fource of thofe 
 violent animofities which, for a period of about two hun- 
 dred years, continually fubfifted among them. The moil 
 powerful of the Mates belonging, to this confederacy were 
 thofe of WefTex, Mercia, and Northumberland, to which 
 the reft were gradually reduced into a kind of fubordina- 
 tion ; till at length, about the year 827, the feveral king- 
 doms of the Heptarchy were fubdued by Egbert, the king 
 of the Weil-Saxons, who tranfmitted to his pofterity the 
 fovereignty of thofe extenfive dominions. The fame prince 
 extended his authority over all the Britons on the South 
 fide of the Briftol channel, and became mafter of a confi- 
 derable part of Wales,, and of the Cumbrian kingdom. 
 From this time the diftin&ions among the different Saxon 
 ftates were in a great meafure abolimed, and the feveral 
 territories, united under Egbert, received the general name 
 of England ; as the people, from the union of the two 
 principal nations, and in contradiftinclion to their coun- 
 trymen in Germany, were called the Anglo-Saxons. 
 
 Several circumilances appear to have contributed to the 
 accompliihment of this great revolution. With the bravery 
 and military accompliihments ufual among the chiefs and 
 princes of that age, Egbert, who had been educated in the 
 court of Charles the Great, is laid to have united an un- 
 common degree of political knowledge and abilities. His 
 own kingdom, fituated along the Southern coaif of Bri- 
 tain, raras probably the moil improved, if not the moll ex- 
 tenlive, of thofe which had been erected by the Anglo- 
 Saxons. In almoft all the other kingdoms of the Heptarchy, 
 a failure of the lineal heirs of the crown had given rife, 
 among the principal nobility, to a conceit about the fuc- 
 
 ffion: Northumberland, in particular, was weakened by 
 
 ihteftine
 
 54 SETTLEMENT OF THE Book I, 
 
 inteftine diforders, and in no condition to refill a foreign 
 power ; fo that, by the conqueit of Mercia, the only other 
 independent ftatc, the king of WefTex was left without a 
 competitor, and found no difficulty in eftablifliing an uni- 
 verial iovereignty *. 
 
 There can be no doubt that the reduction of all thefe 
 different kingdoms into one monarchy contributed to im- 
 prove the police of the country, and to civilize the manners 
 of the people. The fcene of anarchy and violence which 
 was conftantly exhibited during the conqueft of Britain by 
 the Saxons was incompatible with any attention to the 
 arts of civil life, and in a great meafure extinguifhed the 
 remains of Roman improvement. The beginning of the 
 ieventh century, which falls about the conclulion of that 
 period, may, therefore, be regarded as the sera of greater!, 
 darknefs and barbarifm in the modern hiftory of Britain. 
 The advances, however, that were made, even after this 
 period had elapfed, were very How and gradual. So long- 
 as the country was divided into a number of petty ftates, 
 independent of each other, and therefore often engaged 
 in mutual hoftilities, the perfons and property of indivi- 
 duals were not fecured in fuch a manner as to encourage 
 the exercife of ufeful employments. 
 
 It appears, indeed, that the monarchs in feveral of thofe 
 kingdoms were anxious to prevent diforders among their 
 fubjects, and, with the afTiftance of their national coun- 
 cils, made a variety of ftatutes, by which the punifhment 
 
 • It muli not however be fuppofed that the power of all the kings of the Heptar- 
 chy was at this period entirely deftroyed ; they retained a fubordinate authority, 
 founded upon their great property. The princes of Northumberland and Mercia 
 (till retained the title of king ; and in the reign of Alfred we iind them llill claiming 
 independence. — See William of Malmfbury. 
 
 Of
 
 ChAp.-HI. SAXONS IN BRITAIN. 55 
 
 of particular crimes was defined with great exactnefs. Such 
 were the laws of Ethelbert, and fome of his fuccefTors, in 
 the kingdom of Kent ; thofe of Ina, the king of the Weft- 
 Saxons ; and Offa, of the Mercians *. Thefe regulations, 
 however, were probably of little avail, from the nume- 
 rous independent flates into which the country was divid- 
 ed ; becaufe an offender might eaiily efcape from juftice, 
 by taking fanctuary in the territories of a rival or hoftile 
 nation ; but when the different kingdoms of the Heptar- 
 chy were united under one fovereign, private wars were 
 more effectually difcouraged, juftice was fomewhat better 
 adminiftered, and the laws eftablifhed throughout the 
 Anglo-Saxon dominions were reduced to greater unifor- 
 mity. We are not, however, to imagine that, from this 
 period, the fame regulations in all reflects were extended 
 over the whole Englifh monarchy. The fyftem of private 
 law, being formed in good meafure by long ufage, was 
 neceffarily different in different diftricts ; and the cuftoms 
 which prevailed in the more confiderable 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 ftates on the South fide of the Thames i, while the law 
 of the Mercians was introduced into feveral territories adja- 
 cent to that kingdom J. In a fubiequent period a third 
 fet of regulations, probably a good deal different from the 
 two former, was adopted in the Northern and Eaftern parts 
 of the country. 
 
 • See the Colleftions of the two former, in Wilkins Leo;. Anglo-Sax. — The 
 laws of king Offa haye not been preferved. 
 
 t Called Weitlaxcnlaga. 
 
 + Called Mcrcenlaga. The inhabitants were denominated, from the kind of law 
 which they obferved. See Ran. Htgden Polychron. — In Fra-ice the Pais dc Droit 
 ccrit and the Pais des Coutumes, were diftinguifhed from a furfor circumitance. 
 
 C II A P.
 
 ;6 SIMILARITY OF ANGLO-SAXONS. Book I. 
 
 CHAP. IV. 
 
 Similarity in the Situation of the Anglo-Saxons, and of the 
 other Barbarians who fettled in the Provinces of the Wef- 
 
 tern Empire. Hozv far the State of all thofe Nations 
 
 differed from that of every other People, ancient or mo- 
 
 dern. 
 
 DURING the fame century in which the Anglo-Sax- 
 ons began their iettlements in England, the other 
 provinces of the Weftern empire were invaded by a multi- 
 tude of rude nations, from Germany and the more Eafterly 
 parts of the world. Allured by the profpect of booty, 
 thefe barbarians had long made accidental incurlions upon 
 the frontier provinces ; and having, by repeated fuccerTes, 
 difcovered the weaknefs of the Roman flate, they at length 
 endeavoured to gain more folid advantages, by fettling 
 in the countries which they had fubdued. The Roman 
 emperors were not only obliged to fubmit to thefe en- 
 croachments, but were even forced, in many cafes, to enter 
 into an alliance with thofe invaders, to employ them as 
 auxiliaries in the armies of Rome, and to beftow upon 
 them landed poffeflions, upon condition of their defending 
 the country. But thefe were merely temporary expe- 
 dients, which in the end contributed to increafe the power 
 of the barbarians. Different fwarms of thefe people ad- 
 vancing in fucceffion, and pufhing each other forward in 
 quell: of new poffemons, continued to penetrate into the 
 Roman dominions, and at laft entirely over-ran and dis- 
 membered
 
 Chap. IV. AND OTHER BARBARIAN'S. 57 
 
 membered the Weftern provinces. The Franks, the Bur- 
 
 mdians, and the Wiiigoths fettled in Gaul. Another 
 branch of the Wiflgoths eftablifhed their dominion in 
 
 ain. 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 fullered from 
 the iucceflive inroads of many different nations, a great 
 part of the country was fubjected to the Oftrogoths, and 
 in a fubfequent period, to the Lombards. 
 
 As the original manners and cuftoms of all thefe 
 nations were extremely analogous to thofe of the Saxons 
 in England, and as their conqueft and fettlement in the 
 Weftern empire were completed nearly in the fame manner, 
 it was to be expected that they would fall under a iimilar 
 government. It has happened, accordingly, that their 
 political inftitutions are manifestly formed upon the fame 
 plan, and prefent, to the moft carelefs obferver, the fame 
 afpecl and leading features, from which, as in the chil- 
 dren of a family, their common origin may clearly be 
 difcovered. They differ, no lefs remarkably, from all the 
 other fyftems of policy that have been recorded in ancient 
 or modern hiftory. It may be worth while to examine, more 
 particularly, the caufes of the uniformity, fo obfervable 
 among all thofe nations, and of the peculiarities, by which 
 they are fo much diftinguifhed from the other inhabitants 
 of the world. In this view, there occur five different delim- 
 it ances, that feem to merit attention. 
 
 1. The fettlement of the barbarous nations, upon the 
 Weftern continent of Europe, as well as in England, was 
 effected by the gradual fubjedlion of a more civilized peo- 
 ple, with whom the conquerors were at length completely 
 incorporated. 
 
 I The
 
 58 SIMILARITY OF ANGLO-SAXONS Bo ok I. 
 The- rude and ignorant tribes who fubdued the Roman 
 provinces, were too little connected with one another, and 
 too little accumftomed to Subordination, to unite in pro- 
 fecuting any regular plan of conqucft ; but, according as 
 they were excited by provocation, or met with any encou- 
 ragement, they made occafional inroads, with different 
 degrees of iuccefs ; and when they had overrun a parti- 
 cular district, they commonly chofe to remain in the coun- 
 try, and frequently concluded a treaty of peace with the 
 ancient inhabitants. 
 
 Having, on thofe occafions, become mailers of a large 
 territory, which had been long occupied in tillage, and 
 having, by repeated victories, obtained a number of 
 captives, whom they reduced into ilavery, they found it 
 an eafy matter to employ their Haves in cultivating the 
 land which they had procured. In this fituation they foon 
 made fuch progrefs in agriculture, as determined them 
 to relinquifh their wandering life, and aj)ply themfelves to 
 the acquisition of feparate landed eflates. By their inter- 
 courfe, at the fame time, with fuch of the old inhabitants 
 as retained their freedom, they necefTarily acquired a va- 
 riety of knowledge, and became acquainted with many 
 of the common arts of life to which they had formerly 
 been Strangers. 
 
 It was not to be expected, however, that thefe barba- 
 rians would long remain at reft ; or that they mould have 
 any difficulty in finding pretences for quarrelling with a 
 people whom they meant to Strip of their poSfeSTions. In 
 a courfe of time, therefore, new animofities broke out, 
 which were followed by repeated military enterprizes, 
 attended with fimilar circumstances ; till at lalt, by fuc- 
 peflive extenfions of territory, and after feveral centuries 
 
 had
 
 C H a p. IV- ANDOTIIERBA R B A R I A N S. ^ 
 had elapfed, the whole of the Weilern empire was dis- 
 membered, and reduced under the power of theie in- 
 vaders. 
 
 The events by which this great revolution was accom- 
 plifhed, could not fail to produce very oppofite effects, upon 
 the ancient inhabitants of the country, and upon the new 
 fettlers. The former, while, in coniequence of the vio- 
 lence and diibrder which prevailed, and of their intercourfe 
 with the barbarians, they funk very rapidly into poverty 
 and barbariim, communicated in their turn to the latter, 
 a few great lines of that cultivation, which had not been 
 entirely effaced among themfelves. In the end, thofe two 
 fets of people were entirely blended together; and their 
 union produced fuch a compound fyftem of manners and 
 cuftoms, as might be expected to remit, from the declin- 
 ing ftate of the one, and the riling ftate of the other. 
 
 The deftruction of the Roman provinces (truck out, in 
 this manner, a fudden fpark of improvement, which ani- 
 mated their victorious enemies, and quickly pervaded the 
 new ftates that were founded upon the ruins of the Wef- 
 tern empire. In the earlier! accounts of the modern 
 kingdoms of Europe, we find the people, though evidently 
 retaining very deep marks of their primitive rudenefs, yet 
 certainly much advanced beyond the fimple ftate of the 
 ancient Germans. Their hufbandry, no doubt, continued for 
 ages in a very low and imperfect condition, infomuch that 
 extenfive territories w r ere often permitted to lie wafte and 
 defolate ; yet fuch as it was, it procured the neceftariesof life 
 in greater plenty, and produced of courfe a more univer- 
 fal attention to its conveniencies. Their permanent residence 
 in one place gave room and encouragement to the exercife 
 of different employments, from which, during their former 
 
 1 2 migrations,
 
 Co SIMILARITY OF ANGLO-SAXONS Book I. 
 
 migrations, they were in a great meafure excluded. Their 
 houfes were built of more lafting materials, and rendered 
 more commodious, than the moveable huts in which they 
 formerly fheltcred themfelves. Particular peribns, having 
 acquired very great landed eitates, were enabled, by the re- 
 maining fkill of Roman artificers, to erect fuch fortrefTes as 
 were fufficient to defend them from the hidden incurfions of 
 an enemy ; and lived, in fuitable magnificence, at the head 
 of their tenants and domeflics. The numerous, and opu- 
 lent towns, which had been fcattered over the dominions 
 of Rome, though they fuffered greatly in the general 
 wreck of the empire, were not, however, univerfally de- 
 ftroyed 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 
 familiar to the old inhabitants, was, in many refpects, con- 
 tinued; and in the early codes of laws, collected by the 
 princes of the barbarous nations who fettled in the Wef- 
 tern empire, we often difcover a dole imitation of the 
 II. man jurifprudence. 
 
 In thefe particulars, the iituation of the modern ftates 
 of Europe appears to have been a good deal different from 
 tli at 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 
 <,ther people more improved than themfelves; and have 
 therefore advanced very flowly in the knowledge of arts, 
 as well as in the progrefs of the focial life. From the 
 remoteft period of antiquity, the Arabs and Tartars have 
 remained, fur the moil part, in a paftoral ltatc; and are 
 ltill almoft entirely ignorant of liuibandry. The Indians 
 
 of
 
 Chap. IV. AND OTHE R B AR B A R I AN S. 61 
 
 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 deif itute of fagacity and reflection, to make ufe of 
 thole difcoveries which fortune may throw in their way ; 
 and their improvement is much retarded by thofe habits of 
 floth which, being foitered by the primitive manner of life, 
 are not to be overcome without extraordinary incitements 
 to labour and application. 
 
 Among the instances, preferved in hiftory, of nations 
 who have acquired a connection with others, by means of 
 a conq\;eft, we meet with none that are firnilar to thofe 
 exhibited in Europe, during the period which we are now 
 confidering. The conqueft in Alia, by Alexander and his 
 fuccefTors, was that of one opulent and civilized people over 
 another ; and produced no farther alteration in the Greek 
 dates, but that of infpiring them with a taite of Afiatic 
 luxury and extravagance. 
 
 The liril military efforts of the Romans were employed 
 in fubduing the fmall neighbouring Hates of Italy, whom 
 they found in the fame barbarous condition with them- 
 felves ; and they had become a great nation, firmly efta- 
 blifhed in their manners and political fyftem, before they 
 directed their forces againft the refined and cultivated parts 
 of the world. Befides, the Roman virtue difdained, for a 
 long time, to imitate the talents and accomplifhments of 
 the people whom they had fubdued. 
 
 China, and lbme other of the great Afiatic kingdoms* 
 have been frequently over-run and conquered by ieveral 
 hords of Tartars, accidentally combined under a great 
 leader ; but the conqueft, in thefe cafes, was not carried on 
 llowly and gradually, as in the provinces of the Weftern 
 
 empire :
 
 62 SIMILARITY OF ANGLO-SAXONS Book I. 
 
 empire: it was completed by one or two great and rapid 
 victories ; lb as, on the one hand, to prevent the learning 
 and civilization of the vanqnifhed people from being de- 
 stroyed by a long-continued courfe of war and devaluation ; 
 and, on the other, to prevent the conquerors, by long 
 neighbourhood and acquaintance, from being incorporated 
 with the former inhabitants, in one common lyitem of 
 manners, cuftoms, and inftitutions. The final 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 civilized empire ; of which the na- 
 tive country of the conquerors became only a tributary 
 province. 
 
 The fame obfervation is applicable to the dominion ac- 
 quired by Mahomed, and fome of his immediate fuccef- 
 lors ; which was not eftablifhed by a gradual fettlement of 
 Arabian tribes, in the rich countries of Afia; but by a 
 rapid conquer!, that gave rife to no intimate coalition of 
 the victors with thofe who fubmitted to the Mahometan 
 yoke. No other change, therefore, was produced in the 
 Itate of the conquered nations, than what arofe from fubject- 
 ing them to a new religion, and to a new fet of monarchs ; 
 while the wandering Arabs, the original followers of 
 Mahomed, remained, for the molt part, in their primitive 
 ftate of barbarifm. The conqueft of the Saracens, and of 
 the Eaftern empire, by the Turks, had a greater refem- 
 blance to the pr ogre (live inroads of thofe who conquered 
 the Weftern provinces ; but it was far from proving 
 equally deftructive to the former civilization of the con- 
 quered people, or from reducing them to the level of their 
 barbarous conquerors. 
 
 5 2. The
 
 Chap. IV. AND OTH ER BARB ARIANS. 63 
 
 1. The German or Gothic nations, who fettled in the 
 Weftern part of Europe, were enabled, in a mort time, to 
 form kingdoms of greater extent, than are ufually to be 
 found among people equally rude and barbarous. 
 
 Of all the arts which contribute to improve or to em- 
 bellilh fociety, that of government requires the moil en- 
 larged experience and obfervation ; for which reafon, its 
 progrefs towards perfection is proportionably gradual and 
 flow. In that fimple age, in which labour is not yet divi- 
 ded among feparate artificers, and in which the exchange 
 of commodities is in a great meafure unknown, indivi- 
 duals, who reiide at a diitance from one another, have no 
 occasion to maintain an intimate correlpondence, and are 
 not apt to entertain the idea of eftabliming a political con- 
 nection. The inhabitants of a large country are then 
 ufually parcelled out into feparate families or tribes, the 
 members of which have been led, by neceflity, to contract 
 habits of living together, and been reduced under the 
 authority of that leader who is capable of protecting them. 
 Thefe little communities are naturally independent, as well 
 as jealous of one another ; and though, from the dread of 
 a common enemy, they are fometimes obliged to combine 
 in a league for mutual defence, yet fuch combinations are 
 generally too carnal and fluctuating to be the foundation of 
 a compreheniive and permanent union. 
 
 But thofe barbarians who conquered the Weftern empire 
 were quickly induced, and enabled, to form exteniive 
 affociations ; partly, from the circumftances attending their 
 conqueft; and partly, from the ftate of the country in 
 which they formed their fettlements. 
 
 With refpect to the circumftances attending their con- 
 queft, it is to be obferved, that their tribes were far from 
 
 being
 
 64 SIMILARITY OF ANGLO-SAXONS Book I. 
 
 being large or numerous, and that they over-ran and fub- 
 dued a very large tract of country ; 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 diilance from one another. Individuals 
 who had belonged to a {mall community, and who had 
 been accuftomed to fight under the lame leader, were thus 
 difperfed over an extenfive territory ; and, notwithstanding 
 this change in their fituation, were naturally difpofed to 
 retain their former connections and habits. The notion 
 of uniting under a {ingle chief, which had been eftablifh- 
 cd among the members J)f a wandering tribe of fhepherds, 
 continued, therefore, to operate upon the fame people, after 
 they had acquired ample pofTeflions, and had reduced mul- 
 titudes under their dominion. 
 
 The extent of the kingdoms, erected by thofe barba- 
 rous nations, was like wife affected by the ftate of each 
 Roman province, in which their fettlements were made. 
 
 As every Roman province conftituted a part of the 
 whole empire ; fo it formed a diftinct fociety, influenced 
 by national views, and directed by a feparate intereft. 
 Among the inhabitants of the fame province, united by 
 their local fituation, by the ties of friendfhip and ac- 
 quaintance, and even by that common fyftem of oppreflion 
 to which they were fubject, a regular intercourfe was 
 conftantly maintained. Thofe who lived in villages, or in 
 the open country, carried on a variety of tranfactions with 
 the feveral towns in the neighbourhood, where they found 
 a market for their goods, and were fupplied with thofe 
 conveniencies which they required. The inhabitants of 
 thefe towns, and of the whole province, were, at the 
 fame time, clofely connected with the capital, where the 
 
 governor
 
 C H a P. IV. AND OTHER B A R B A 11 1 A N S. 65 
 governor refuted in a kind of regal pomp and magni- 
 ficence, and directed the various wheels and fprings of 
 administration. Here the public money, accumulated from 
 different parts, was again distributed through the various 
 channels of government ; and hither men of all defcrip- 
 tions, the poor and the rich, the idle and the induftrious, 
 were attracted from every quarter, by the views of profit, 
 of pleafure, or of ambition. 
 
 The changes which at different periods were made in 
 the political conftitution of Rome, produced no great alte- 
 ration, as has been already obferved, either in the extent 
 or condition of her provincial governments. The ancient 
 boundaries of the provinces appear to have been generally 
 retained under the later emperors; though, in order to 
 fecure the public tranquillity, they were often fubdivided 
 into particular diftridts, which were put under the direction 
 of fubordinate officers. The connections, therefore, be- 
 tween the feveral parts of the fame province, were gra- 
 dually Strengthened from the length of time during which 
 they had fubfifted. 
 
 As, by the conqueft of thofe countries, the ancient in- 
 habitants were not extirpated, it is natural to fuppofe that 
 their former habits 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 Still difpofed to admit 
 the authority of a fingle perfon, and to remain in that 
 ftate of union and fubordination to which they had been 
 accuftomed. Particular chiefs having occupied the remain- 
 ing towns belonging to a Roman province, were of comic- 
 rendered matters of the adjacent territory; and he who 
 had fet himfelf at the head of the molt powerful dif- 
 
 K tria,
 
 66 SIMILARITY OF ANGLO-SAXONS Book I. 
 
 tridfc, was in a fair way of becoming fovereign of the 
 whole. 
 
 It may alfo be worthy of notice, that as the conquering 
 tribes adopted a number of the Roman institutions, their 
 principal conductor was frequently in a condition to avail 
 himfelf of that authority, however declining, which the 
 Roman government continued to maintain ; and by affum- 
 ing, or obtaining, the dignity which had belonged to the 
 chief magiitrate of a province, was enabled with greater 
 facility to extend his dominion over the territories which 
 had formerly acknowledged the jurifdiclion of that officer. 
 Thus we find that Clovis, who conquered a great part of 
 Gaul, was, near the end of his reign, inverted with the 
 title of conful, and probably with that of pro-conful, by the 
 emperor Anaftaims ; and that the poilerity of Clovis were 
 at the pains to procure, from the emperor Juitinian, a 
 refignation of all the rights of the empire over that nomi- 
 nal branch of his dominions *. 
 
 In like manner Theodoric, the king of the Oftrogoths, 
 who had been inverted, in the Eaftern empire, with the 
 title of patrician and confitl 9 and who had obtained for 
 himfelf and his followers a fettlement in Thrace, was after- 
 wards comrniflioned by the emperor Zeno to conquer Italy, 
 and take porleflion of the country t. 
 
 From thefe caufes, countries at a great diflance from 
 one another were forced into a fort of political union : and 
 the boundaries of a modern kingdom came, in mod cafes, 
 to be nearly of the fame extent with thofe of an ancient 
 Roman province. 
 
 * Hift. do I'EtablUTement do la Mon. Fran, par l'Abbc Du Bos. liv. 4. ch. 18. 
 liv. 5. ch. 7. 
 
 ■fr [bid. liv. 4. ch. {. 
 
 As
 
 Chap. IV. AND OTHER BARBARIANS. 6> 
 
 As Italy, which comprehended the mimberlefs villas, 
 and highly-cultivated pleafure grounds, belonging to the 
 opulent citizens of Rome, was the objedl of more atten- 
 tion than thole parts of the empire which lay at a greater 
 diitancc, it was early fubjected to a more accurate police, 
 and divided into fmaller diltridls. It was distributed, by 
 Auguftus, into eleven regions ; and in the time of the 
 emperor Adrian that country, together with Sicily, Sar- 
 dinia, and Gorlica, included no lefs than feventeen divi- 
 sions. The fmallnefs of the districts into which it was 
 thus broken by the Roman government had, no doubt, 
 an influence upon the new arrangements which it under- 
 went from the invafion of the barbarians ; and made it 
 fall more eafily into a number of petty Hates, under the 
 feveral dukes, or nobles, who affumed an independent 
 authority. 
 
 In England, though the moft part of the territories 
 which had compofed the ancient Roman province were 
 at laii united in one kingdom, yet this union was effected 
 more ilowly, and with greater difficulty, than in many of 
 the other European countries. The fettlement of the 
 Anglo-Saxons w r as 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 mofc 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 
 themielves over the extenfive territory which fell under 
 their dominion. The original connections, therefore, 
 among the individuals of the conquering nation, co-ope- 
 rated with the circumftance of their fettling in the fame 
 province, to facilitate their reduction, cither by conquer!: 
 
 K 2 or
 
 68 SIMILARITY OF ANGLO-SAXONS Book I. 
 
 or confederacy, under one fupreme leader. The naval 
 incurficns of the Anglo-Saxons were, on the other hand, 
 made by lmall detached parties, collected occafionally by 
 any fingle adventurer, who, for the fake of a precarious 
 fettlement, was willing to relinquifh his kindred and ac- 
 quaintance. The followers of every feparate leader were 
 therefore too inconfiderable to occupy great landed pof- 
 feflions ; and as they invaded England at different times, 
 and in different places, with fcarce any previous concert, 
 and with little attachment to one another, they difcovered 
 fo much the ftronger difpofition to remain in feparate 
 ilates, and to prefer ve their primitive independence. From 
 thefe circumitances, we may account for the diviiion of 
 England into fo many independent kingdoms ; which were 
 not reduced under one monarch till between three and 
 four centuries after the flrfr. fettlement of thofe inva- 
 ders. 
 
 3. The great extent of the kingdoms that were formed 
 upon the ruins of the Weftern empire, together with the 
 1 udenefs of the people by whom they were eftablifhed, 
 appears to have occafioned that fyftem of feudal tenures, 
 which is commonly regarded as the moft diftinguifhing 
 peculiarity in the policy of modern Europe. 
 
 The difpofition to theft and rapine, fo prevalent among 
 rude nations, makes it necefTary that the members of every 
 family mould have a watchful eye upon the conduct of all 
 their neighbours, and mould be conftantly upon their 
 guard to preferve their perfons from outrage, and their 
 property from depredation. The firfr. efforts of civil 
 government arc intended to fuperfede this neceflity, by 
 punifhing fuch offences, and enabling the individuals of 
 the fame community to live together in peace and tran- 
 
 5 quiUity.
 
 C h a p. IV. AND OTHER BARBARIANS. 69 
 quillitv. But thefe efforts, it is evident, 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 fupport his authority over a multitude of individuals, 
 difperfed through a wide country, than over a fmall 
 number, confined to a narrow diitrict. It is for this rea- 
 fon that government has commonly been fooner eftablifh- 
 ed, as well as better modelled, in communities of a mode- 
 rate fize, than in thole which comprehend the inhabitants 
 of an extenfive region. 
 
 In proportion to the great number of people, and the 
 great extent of territory, in each of the modern European 
 kingdoms, the advances of authority in the public were 
 flow, and its capacity of reftraining violence and diforder 
 was limited. The different families of a kingdom, though 
 they acknowledged the fame fovereign, and were directed 
 by him in their foreign military enterprizes, were not, 
 upon ordinary occafions, in a fitnation to feel much de- 
 pendence upon him. Acquiring great landed pofTeffions, 
 and refiding at a diftance from the capital, as well as in 
 places of difficult accefs, they were often in a condition to 
 fet the wdiole power of the crown at defiance ; and difdain- 
 ing to fubmit their quarrels to the determination of the 
 civil magiftrate, they affumed a privilege of revenging 
 with their own hands the injuries or indignities which they 
 pretended to have fuffered. When not employed, there- 
 fore, in expeditions againft a public enemy, they were 
 commonly engaged in private hoftilities among them- 
 felves ; 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 hereditary. In fuch a ftate of anarchy 
 
 and
 
 -g SIMILARITY OF ANGLO-SAXONS Book I. 
 
 and confufion, the ftrong were permitted to opprefs the 
 weak ; and thofe who had moil power of hurting their 
 neigh hours, were the moil completely fecured from the 
 punilhment due to their offences. 
 
 As the individuals of a nation were thus deilitute of 
 protection from government, they were under the necefrity 
 of defending themielves, or of feeking protection from 
 one another ; and the little ibcieties compofed of near rela- 
 tions, or formed accidentally by neighbourhood and ac- 
 quaintance, were obliged to unite in the molt intimate 
 manner, to repel the attacks of their numerous enemies. 
 The poor were forced to fhelter themfelves under the in- 
 fluence 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 capa- 
 ble of maintaining ; thefe were accuitomed to follow him 
 in war, and in time of peace to fliare in the rural fports to 
 which he was addicted ; it was their duty to efpoufe his 
 quarrel on every occaiion, as it was 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 obligation of this kind was naturally underftood 
 from the fituation of the parties; but in larger ibcieties it 
 was rendered more clear and definite by an exprefs agree- 
 ment. A man of great opulence diftributed part of his 
 demefiie among his retainers, upon condition of their per- 
 forming military fervices ; as, on the other hand, the fmall 
 proprietors in his neighbourhood, being incapable of main- 
 taining their independence, were glad to purchafe his pro- 
 tection, by agreeing to hold their land upon the fame terms* 
 
 Hence
 
 Chap. IV. AND OTHER BARBARIANS. 71 
 Hence the origin of vaffalage in Europe, the nature of 
 which will be more particularly explained hereafter. Every 
 confiderable proprietor of land had thus a number of mili- 
 tary fervants, who, inftead of pay, enjoyed a part of his 
 create, as the reward of their fervices. By this distribution 
 and arrangement of landed pofTeffions, the rnoft natural 
 remedy was provided for the evils ariling from the weaknefs 
 of government. Men of inferior itation, who flnglv were 
 incapable of defending their perfons or their property, 
 obtained more fecurity, as well as consideration, under 
 their refpective 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 to 
 refill: the general tide of violence and oppreflion. 
 
 From thefe obfervations we may diicover how far the 
 connections between the Superior and vaflal, and the va- 
 rious parts of what is called the feudal fyftem, are peculiar 
 to the modern flates of Europe, or belong to them in com- 
 mon with other nations * 
 
 In Greece and Rome, or in any of the fmall States of 
 antiquity, there are few or no traces to be diicovered of the 
 feudal institutions. From the inconsiderable number of 
 people collected in each of thofe ancient Hates, and from 
 the narrownefs of the territory which they inhabited, the 
 government was enabled, at an early period, to extend its 
 protection to all the citizens, fo as to free them from the 
 nccefHty 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 thole nations, it appears to have been abolilhed before 
 they were pofTeifed of historical records. 
 
 (a
 
 72 SIMILARITY OF ANGLO-SAXONS Book L 
 
 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 truit the 
 relations given by travellers, is particularly the cafe at pre- 
 terit in feveral of the kingdoms in Alia, and upon the 
 Southern coaft of Africa. In thefe kingdoms, the number 
 of barbarians collected under one fovereign has probably 
 rendered the government 10 feeble, as to require a number 
 of fubordinate aflbciations, for the protection of indivi- 
 duals ; but the coalition of different families being neither 
 fo extenfive, nor produced in the fame rapid manner, as in 
 the modern flates of Europe, the regulations to which it 
 has given occafion are neither fo numerous and accurate, 
 nor have they been reduced into fo regular a fyrtem. 
 
 4. The cuftom of duelling, and the peculiar notions of 
 honour, which have fo long prevailed in the modern na- 
 tions of Europe, appear to have arifen from the fame cir- 
 cumftances that produced the feudal inftitutions. 
 
 The political eflablifhment, in all thofe nations, was, 
 for a long time, incapable of preventing the unlimited ex- 
 ercife of private hoftilities ; and every family, being expofed 
 to invafion from all its neighbours, was obliged to be con- 
 ftantly in a pofture of defence. In thefe circumftances, 
 the military fpirit of the people was not only raifecl to a 
 high pitch, but it received a peculiar direction, and was 
 attended with peculiar habits and opinions. 
 
 In a war between two great nations, when large and 
 wcil-difciplined armies are brought into the field, there is 
 little room for individuals to acquire diftinction by their 
 exploits; and it is only expected of them, that, like the 
 parts of a complex machine, they mould perform, with 
 fteadinefs and regularity, the feveral movements for which 
 
 they
 
 Chap. IV. AND OTHER BARBARIANS. 7; 
 they arc deftined; neither are thole who helong to the 
 oppofite armies likely to entertain much perfonal animo- 
 fity, the national quarrel heing loft in that promifcuous 
 multitude among whom it is divided. But in the pri- 
 vate wars that took place hetween the ieveral families of 
 modern Europe the cafe was very different ; for the num- 
 ber engaged upon either fide was commonly lb fmall, and 
 they had ^o little of military difcipline, that every fingle 
 perfon might a£t a diftinguifhed part, and in the time of 
 aclion was left in fome meafure to purfue the dictates of 
 his own bravery or prudence ; fo that a battle coniifted of 
 little more than the random combats of fuch particular 
 warriors as were led by inclination or accident to oppofe 
 one another. The natural confequence of fuch a fituation 
 was to produce a keen emulation between the individuals 
 of the fame party, as well as a ftated oppofition, and often 
 a violent animoiity, between thofe of different parties. In 
 a long courfe of hoftilities, the fame perfons were often led 
 to encounter each other ; and having fought (perhaps on 
 different occaiions) with various fuccefs, were at length 
 excited by a mutual challenge to a comparative trial of their 
 ftrength, courage, or fkill. By repeated firuggles of this 
 nature a continual jealoufy was kept up between the mem- 
 bers of different families, who in profecuting their quar- 
 rels became no lefs eager to fupport their military charac- 
 ter, and to avenge any irifult or indignity, than to defend 
 their poilefnoiv . 
 
 The private wars between different families, which gave 
 rife to mutual emulation and jealoufy, as well as to violent 
 animoiity and refentmerit, continued in Europe for many 
 centuries, not with ftanding that fome improvements we 
 made by the people in the common am and modes (^t 
 
 L living.
 
 74 SIMILARITY OF ANGLO-SAXONS. Book I. 
 
 living. To aiiaffmate thofe from whom great provocation 
 had been received was, among the primitive conquerors 
 of the Roman empire, a method of revenge purfued with- 
 out fcruplc, and beheld without cenfure. By degrees how- 
 ever the love of military glory prevailed over the gratifica- 
 tion of refentment, and thofe who aimed at maintaining 
 the rank of gentlemen became afhamed of taking an un- 
 fair advantage of an enemy, which might imply a con- 
 fefiion of inferiority in prowefs ; but thought it incumbent 
 upon them, whatever was the quarrel, to invite him to 
 an open conteft, in which the fuperiority might be decided 
 upon equal terms. Thus the practice of duellings the moft 
 refined fpecies of private vengeance, was rendered more 
 and more fafhionable ; and in every country of Europe, 
 according to its progrefs from barbarifm, aflaffination be- 
 came lefs frequent, and was held in greater detection. 
 In Spain and Portugal, the leaft improved of thofe coun- 
 tries, it never has been completely extirpated ; and the in- 
 habitants have not yet attained that refinement of the feu- 
 dal manners, which the reft of Europe, from a ftill higher 
 pitch of improvement, are now feeking to lay afide. 
 
 So far was the government from retraining the cuflom 
 of duelling, that the efforts of the civil magiftrate tended 
 i ather to encourage it. Thofe who had fuftained an affront 
 Thought it difhonourable to apply for redrefs to a court of 
 jaftice; but when a difpute had arifen in matters of pro- 
 perty, and had become the fubjecl: 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 them withdraw their caufe from 
 the court, in order to determine it by the fvvord ; the 
 judge was unable to prevent this determination, but he 
 
 5 endea-
 
 Chap. IV. AND OTHER BARBARIANS. >; 
 endeavoured to diminifh the bad confequences that might 
 arife from it. By regulating the forms of the encounter, 
 and fuperintending the ceremonies with which it was 
 conducted* he availed himfelf of the punctilios of honour 
 which fafhion had eftablifhed, and reftraincd 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 
 fanetion of public authority. It has, accordingly, been 
 obferved, that as, in a judicial controverfy, the moil com- 
 mon provocation confifted in the parties contradicting each 
 other in point of fact ; fo giving the lye has become that 
 fort of offence, on account of which cuftora has rendered 
 it moil indifpenfably neceffary to require fatisfaciion by 
 fighting. 
 
 The inftitutions of chivalry? and xh&joufls and tourna- 
 ments, were the natural appendages of the cmtom of duel- 
 ling, or rather of that flate of manners which gave rife 
 to it. 
 
 In the battles of the feudal ages, men of opulence and 
 rank enjoyed many advantages over the common people, 
 by their fighting on horfeback, by the fuperior weapons 
 and armour which they made uie of, and above all, by that 
 ikill and dexterity which they had leifure to acquire. To 
 improve thefe advantages was the great object of the gen- 
 try, who from their early years devoted themfelves to the 
 profeflion of arms, and generally became attached to 
 fome perfon of experience and reputation, by whom they 
 were trained up and inftructed, not only in the feveral 
 branches of the military exercife, but in all thofe qualifi- 
 cations that were thought fuitable to their condition. To 
 
 L 2 encourage
 
 76 SIMILARITY OF ANGLO-SAXONS Book I. 
 
 encourage thefe laudable purfuits, a mark of diitinction 
 was beftowed upon iuch as had gone through a complete 
 conrie 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 accomplishments connected with that employ- 
 ment, were underftood to be publickly afcertained and ac- 
 knowledged. 
 
 Among the multitude of knights belonging to every 
 country, who became profeifed candidates for fame, and 
 upon that account rivals to one another, military fports, 
 that afforded an opportunity of difplaying thofe talents 
 
 on which the character of every gentleman chiefly 
 depended, were of courfe the favourite entertainments. 
 As thefe became the ordinary paftime among private per- 
 fons, fo they were exhibited, on particular occaiions, by 
 princes and men of high rank, with great pomp and fo- 
 lemnity. 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 
 alio invited to that round tablc^ at which the mafter of the 
 i eremony entertained his company, and of which the figure 
 is faid to have been contrived on purpofe to avoid any 
 difpute concerning the precedence of his guefts. 
 
 Thefe public fpectacles were begun in France under 
 the kings of the fecond race; and were thence, by imita- 
 tion, introduced into the other countries of Europe. They 
 are faid to have been firft known in England, during the 
 reign ^ Stephen, and to have been rendered common in 
 that of Richard the Firft. 
 
 There
 
 Chap. IV. AND OTHER BARBARIANS. 77 
 There can be no doubt that thefe inftitutions and prac- 
 tices, by which badges of diitinction were given to mili- 
 tary eminence, and by which numbers of 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 inflame that 
 mutual jealouly by which they were fet in oppofition to 
 one another. The lame opinions and fentiments acquired 
 additional force from thole extraordinary enterprifes in 
 which the people of different European countries were 
 accidentally combined againft a common enemy ; as in the 
 wars between the Moors and Ghriftians, and in the expe- 
 ditions undertaken by the latter for the purpofe of refcu- 
 ing the holy fepulchre from the hands of infidels. The 
 competition ariflng on thofe occafions among the nume- 
 rous warriors collected in the fame army, was daily pro- 
 ductive of new refinements upon the military fpirit of the 
 times, and contributed to multiply and eitablifh the forms 
 and ceremonies which, in every difpute of honour, were 
 held indifpcnfably ncceiiary. 
 
 From thefe cauies the cuftom of duelling has become 
 lb deeply rooted as, notwithilanding a total change of man- 
 ners and circumstances, to maintain its ground in moft of 
 the countries of Europe ; and the effect of later improve- 
 ments has only been to foften and render more harmleis 
 a relict of ancient barbarity, which they could not deltroy. 
 In England, where the lower ranks of men enjoy a degree 
 of consideration little known in other countries, the mili- 
 tary fpirit of the gentry has even defcended to the common 
 people, as appears from the cuftom of boxing peculiar to 
 the Englilh, by which they decide their quarrels according 
 
 to
 
 7 S SIMILARITY OF ANGLO-SAXONS Boors t. 
 
 to iuch punctilios 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 lituation could lead them to enter- 
 tain the lame notions of military dignity which have been 
 dilplayed by the modern inhabitants of Europe. The in- 
 dependent families or tribes of fhepherds, in Tartary or 
 in other parts of the world, have feldom occafion to reiide 
 fo long in the fame neighbourhood as to create a ftated 
 opposition and jealoufy between their different members. 
 The nations of hufbandmen, upon the Southern coaft of 
 Africa, and in feveral parts of Alia, who have in fome 
 degree adopted the feudal policy, are too little advanced 
 in civilization to admit of any refinement in their me^ 
 thods of executing revenge. In thofe ancient ftates that 
 were mofc addicted to war, as in Rome and Sparta, the 
 people were early brought under the authority of govern- 
 ment, fo as effectually to prevent the exercife of private 
 hoftilities. A Roman or a Spartan, therefore, was never un- 
 der the neceflity of fupporting his military dignity, in oppo- 
 fition to his own countrymen ; but was conftantly employed 
 in maintaining the glory of his country, in oppofition 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 individuals was exerted in acts of public fpirit, 
 not in private animofities and difputes. 
 
 M. Voltaire imagines that the practice of duelling, in 
 modern Europe, has arifen from the cuftom, among the 
 inhabitants, of wearing a fword, as an ordinary part of 
 drefs ; but the ancient Greeks, as we learn from Thuci- 
 dides, were, at an early period, accuftomed to go armed; 
 
 and
 
 Chap. IV. AND OTHER BARBARIANS. 79 
 and there is ground to believe that the fame cuftom has 
 prevailed in all barbarous countries, where the people 
 found thcmfelves continually expofed to danger. The 
 continuance of this practice in Europe longer than in other 
 countries appears to be the effect, not the caule of duel- 
 ling; or rather it is the effect: of that peculiar direction 
 given to the military fpirit, of which duelling is the natural 
 attendant. 
 
 5. The fame fituation produced the romantic love and 
 gallantry by which the age of chivalry was no lefs dif- 
 tinguifhed than by its peculiar notions of military 
 honour. 
 
 The appetite of the fexes, which, in the greater part 
 of animals, nature has, for wife purpofes, connected with 
 exquifite pleafure, is in the human fpecies productive of 
 fentiments and affections, which are of great confequence 
 to the general intercourfe of fociety, as well as to the hap- 
 pinefs of individuals. Thefe two fources of enjoyment, 
 though in reality infeparable, and though the latter is 
 ultimately derived from the former, are not always in- 
 creafed and refined by the fame circumftances. The mere 
 animal inftinct feems to be uxengthened by every circum- 
 ftance that gives occallon to habits of indulgence ; but the 
 peculiar paflions that nature has grafted on this enjoyment 
 appear on the contrary to be raifed to the higheft pitchy 
 by the difficulty attending their gratification ; which, as 
 it fixes the imagination upon the fame object, has a ten- 
 dency 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 necefTa- 
 ries, to pay much regard to the intercourfe of the fexcb ; 
 
 and
 
 8o IILARITY OF ANGLO - SAXOKS Book!. 
 
 and their fimple defires with relation to this point being 
 eaiily gratified as ibon as they arifej are not likely to fettle 
 with much predilection or preference upon any particu- 
 lar perfon. 
 
 The fir ft great improvements that are made in any 
 country, with refpect to the means of fubfiftence, being 
 calculated to multiply the comforts and conveniences 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 productive of more variety in the 
 taite and inclination of different perfohs ; by which they 
 are often diiappointed in the attainment of their willies, 
 and their paflions are proportionally inflamed. The in- 
 troduction of property, which, being accumulated in diffe- 
 rent proportions, becomes the foundation of correfponding 
 diftinctions of rank, is at the fame time the fource of ad- 
 ditional reftraints upon the free commerce of the fexes. 
 By the innumerable pretentions to dignity and importance, 
 derived from the vanity of opulence, or the pride of family, 
 individuals have often to furmount a variety of obiracles in 
 order to gratify their paflions ; and in contracting what is 
 accounted an inimitable alliance, they are commonly check- 
 ed and controuled, not only by the watchful interpoiition 
 of their relations, but itill more by the rules of propriety 
 and decorum, which cufcom, in conformity to the ftate 
 of focietv, has univerlally eltabliihed. 
 
 The effect of great wealth and luxury, in a polilhed na- 
 tion, is on the other hand to create an immoderate purfuit 
 of fenfual pleafure, and to produce habits of excefiive indul- 
 gence in fu( h gratifications. In fuch a fituation particular 
 
 attach-
 
 C h a p. IV. AND OTHER BARBA R I A N S. 8i 
 
 attachments arc apt to be loft in the general propenfitv ; 
 and the correfpondence of the fexes becomes, in a great 
 mcafnrc, fubfervient to voluptuoumeis, or to the purp 
 merely of elegant amufement. 
 
 The paflion of love, therefore, is likely to attain the 
 highefl degree of refinement in a ftate of fociety equally 
 removed from the extremes of barbarifm and of luxury. 
 
 The nations formed in the Weftern part of Europe, 
 upon the downfal of the Roman empire, appear to have 
 continued for many centuries in that condition. They 
 were pofTefTed of fuch opulence, and of fuch improvements 
 in fociety, as to flamp fome value upon the pleafures of 
 fex, without creating much incitement to debauchery. 
 Their diftinctions of rank, arifing from the very unequal 
 distribution of property, and the mutual apprehenfion and 
 jealoufy which a long courfe of private hoftilities had in- 
 troduced among different families, occafioned, at the fame 
 time, in their whole correfpondence, a degree of caution 
 and diftruft unknown in other ages and countries. The 
 women of every family, as well 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, whole 
 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 age was allowed to claim any merit, 
 unlefs he had acquired a military reputation, the warrior 
 who had been infpired with a youthful inclination could 
 not expect any marks of regard, far lcfs a return oi: affi - 
 tion, without fignalizing his fortitude and prowefs, by 
 encountering a variety of hardships and dangers. Before 
 he had in this manner deferved the favour of his miftrefs, 
 
 M it
 
 82 SIMILARITY OF ANGLO-SAXONS BookL 
 
 it was held inconsistent with her character to divulge any 
 impreSSion fhe had received to his advantage; and the laws 
 of delicacy required that fhe fhould behave to him on all 
 occafions with distance and referve, if not with infolence 
 and fcorn. By the delays, the disappointments, the un- 
 certainty of fuccefs, to which he was thus expofed, his 
 thoughts were long engrofTed by that favourite object; 
 and the ardours of a natural appetite were at length exalted 
 into a violent pailion. 
 
 The romantic love, peculiar to the ages of chivalry, was 
 readily united with the high fentiments of military honour, 
 and they feem to have mutually promoted each other. An 
 accomplilhed character in thofe times required not only 
 the molt undaunted courage and refolution, Supported by 
 great generoiity, and a contempt of every fordid intereft, 
 but alio the moil refpectful regard and reverence for the 
 ladies, together with a Sincere and faithful paffion for fome 
 individual. Perfons pofTefTed of thefe accomplishments, or 
 who defired the reputation of poSTeSIing them, devoted 
 themfelves to the particular profeflion of protecting the 
 feeble, of relieving the diStreSTed, of humbling and re- 
 training the infolent oppreSTor. Not content with ordinary 
 occafions of acquiring distinction, there were fome who 
 thought it neceSTary to travel from place to place, with the 
 avowed purpofe of redrerling grievances, and of punifhing 
 the injuries to which, from the diibrderly State of the 
 country, the unwarlike and defencelefs, but efpecially the 
 female fex, were daily Subjected. 
 
 It happened indeed in thofe times, as it naturally hap- 
 
 pei ■ rcvcr mankind have been directed by fafhion to 
 
 . 'mire any particular fort of excellence, that the defire of 
 
 utating the great and gallant actions of heroes and lovers, 
 
 was
 
 Chap. IV. AND OTHER BARBARIANS. 83 
 
 was often disfigured and rendered ridiculous by affec- 
 tation, and became productive of artificial and fantaftic 
 manners. The knight-errant, who found no real abufes 
 to combat, endeavoured to procure diftinction by adven- 
 tures of no utility, and which had no other merit but the 
 danger attending them; as he w r ho had never felt a real 
 paflion, tortured his mind with one merely imaginary, 
 complained of rigours that he had never met with, and 
 entered the lifts, to maintain that fuperior beauty and merit 
 which he had never beheld. 
 
 It is unnecefTary to remark, that thefe inflitutions and 
 cuftoms, and the circumflanc.es from which they proceeded, 
 were peculiarly unfavourable to trade and manufactures. 
 The Saxons in England, as well as the other nations who fet- 
 tled about the fame time upon the Weftern continent of 
 Europe, though immediately after their fettlement they 
 had been excited to a confiderable improvement in agri- 
 culture, 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 occupations. The manners introduced into 
 thofe countries in early times being thus confirmed by long 
 ufage, have become proportionably permanent, and, not- 
 withftanding the changes of a fubfequent period, have left 
 innumerable traces of their former exiftence. 
 
 M 2 C II A P.
 
 84 STATE OF PROPERTY PRODUCED BY Book t 
 
 C H A P. V. 
 
 The State of Property, and the different Ranks and Orders 
 of Men, produced by the Settlement of the Saxons in 
 Britain. 
 
 THE diftribution of property among any people is 
 the principal circumftance that contributes to reduce 
 them under civil government, and to determine the form 
 of their political conftitution. The poor are naturally de- 
 pendent upon the rich, from whom they derive fubfiftence; 
 and, according to the accidental differences of wealth po£- 
 faffed by individuals, a fubordination of ranks is gradually 
 introduced, and different degrees of power and authority 
 are afiumed without oppoiition, by particular perfbns, or 
 beftowed upon them by the general voice of the fociety. 
 
 The progrcls of the Saxon arms in Britain produced an 
 appropriation of land and moveables, by all the free mem- 
 Tiers of the community. Every Warrior confidered himfelf 
 as entitled to a fhare of the fpoil acquired by the conqueit ; 
 and obtained a number of captives, and a landed territory, 
 proportioned to his valour and activity, or to the fervices 
 which he had performed. It is probable that the feveral 
 
 iquering parties were feldom at the trouble of making a 
 formal divilion of their acquisitions, but commonly per- 
 mitted each individual to enjoy the booty which he had 
 feized in war, and to become matter of fuch a quantity of 
 land, as by means of his captives, and the other memfo
 
 Chap. V. THE SETTLEMENT OF THE SAXONS. 85 
 
 of his family, he was enabled to occupy and to manage. 
 Such of the ancient inhabitants, on the other hand, as re- 
 mained in the country, and had preferved their liberty, 
 were in all probability underftood to retain the property of 
 thofe eftates of which they had been able to maintain the 
 pofTeflion. 
 
 There is good reafon to believe that, for fbme time after 
 the fettlement of thofe barbarians in England, the landed 
 eftates acquired by individuals were generally of fmall ex- 
 tent. The Saxons were among the pooreft and the rudeft 
 of the German nations who invaded the Roman empire ; and 
 Britain was, on the other hand, one of the lead cultivated 
 of all its provinces ; at the fame time that the progrefs of 
 the conquerors in the appropriation of land (which from 
 thefe caufes muft have been proportionably flow and gra- 
 dual) was further obftrudted by the vigorous oppoiition 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 bides, 
 each comprehending what could be cultivated by a fingle 1 
 plough. This, among a fimple people, becomes a natural 
 boundary to the pofTefflon of thole who live - in the lame 
 houfe, and are jointly at the expence of procuring that 
 ufeful but complicated inftrument of hufbandry. The 
 general eftimation of the Anglo-Saxon lands, according to 
 this inaccurate meafurc, points out iufliciently the original 
 circumftance which regulated the extent of the greater 
 part of eftates. When, by the progrefs of cultivation, and 
 by future i\\ in war, the landed property of indivi- 
 
 duals was increafed, the ancient ftandard of computation 
 remained ; and the largeft eftates, by comparing them with 
 
 the
 
 86 STATE OF PROPERTY PRODUCED BY Book I. 
 the imalleft, were rated according to the number of hides 
 which they contained*. 
 
 While the eitates pofTefTed by the Anglo-Saxons were 
 fmall, they were cultivated under the immediate infpec- 
 tion of the owner, his kindred or fervants, who lived in 
 his own houfe, and were fed at his table. But when the 
 territory acquired by any perfon became too extenfive, and 
 the members of his family became too numerous, to render 
 this mode of living any longer convenient, a part of his 
 land was parcelled out into different farms, and committed 
 to the management of particular bondmen, from whom, 
 at the end of the year, he required an account of the pro- 
 duce. A part of any great eftate came like wife to be occu- 
 pied by the kindred and free retainers of the proprietor, 
 to whom, in return for that military fervice which they 
 undertook to perform, he afligned portions of land for a 
 maintenance. 
 
 Hence the diftinction between the in-land of the Saxons, 
 and the out-land: the former was what lay next the 
 jnanfion-houfe of the owner, and was retained in his own 
 hands ; the latter, what lay at a greater diftance, and was in 
 the pofTeflion and management either of his retainers or 
 fervants t. 
 
 The out-Jand of every opulent perfon came thus to be 
 pofTcued by two different forts of people; the bond-men, 
 who laboured their farms for the benefit of their mafter, 
 and thofe freemen (mod commonly his kindred) who had 
 become bound to follow him in war, and upon that con- 
 dition, were entitled to draw the full produce of their pof- 
 
 # Sec Spclm. GIolT. v. Hyda. 
 
 t Sec Spelman on Feuds and Tenure? by Jvnight-fervicc, ch. $. 
 
 S feflions.
 
 Chap. V. THE SETTLEMENT OF THE SAXONS. 87 
 
 fcflions. The former have been called villeins > the latter 
 vajjals. 
 
 Confidering the right of the latter to the lands which 
 they poiTefTed, in contradiftin6tion to that of the perfon 
 from whom they derived their pofTeflion, the landed eftates 
 of the Anglo-Saxons have been divided into allodial and 
 feudal. The allodial eftates were thofe of every indepen- 
 dent proprietor. Over thefe the owner enjoyed a full 
 dominion ; and he bad a right to alienate or difpofe of 
 them at pleafure. Upon the death of a proprietor, they 
 defcended to his heirs, according to certain rules of foe- 
 ceflion which cuftom had introduced ; and they were not 
 burdened with fervice of any kind in favour of a fu- 
 perior. 
 
 The feudal eftates were thofe pofTerTed by vafFals upon 
 condition of military or other fervices : thefe were held 
 originally during the pleafure of the fuperior, though it 
 appears that cuftom had early fecured the pofTeflion of the 
 vaffal for a limited time. When he had ploughed and 
 fowed his ground, it was thought equitable that he ihould 
 be allowed to reap the crop ariling from his labour and ex- 
 pence. Thus a year came foon to be acknowledged as the 
 ihorteft period, upon the conclufion of which he might 
 be deprived of his porTeftion. Even after this period it was 
 not likely that a fuperior would think of putting aw 
 his relations and ancient retainers, with whole perfonal 
 attachment he was well acquainted, and of whofe valour 
 and fidelity he had probably been a witnefs. The pofTei- 
 fions, therefore, of the greater part of the vaflals, though 
 not confirmed by any pofitive bargain, with refpecl to the 
 term of their continuance, were in fact ufually retained for 
 life ; and even upon the death of the pofleiibr were fre- 
 quently
 
 S3 STATE OF PROPERTY PRODUCED BY Book I. 
 
 quentlv enjoyed by his poilerity, whom, out of affection to 
 the anceftor, the fuperior commonly preferred to a ilranger, 
 or to any diftant relation. When the lands of a vafTal had, 
 by a poiitive bargain, been only lecured to him for life, 
 or for a limited period, they were called benefices*. 
 
 The differences which I have mentioned in the condi- 
 tion of eitates, gave rife, molt probably, to the celebrated 
 diitinclion of boc-land 'and folc-land. The former, compre- 
 hending the eftates of the nobler fort, was allodial, and 
 being held in abfolute property, was conveyed by a deed 
 in writing ; the latter was the land pofTefTed by people of 
 inferior condition, who having no right of property, but 
 holding their poffeflions merely as tenants, for payment 
 of rents or fervices, did not obtain any written title for 
 afcertaining their rights t. 
 
 It may be remarked that boc-land might belong either 
 to the king or to a fubjedt, and that it implied no obliga- 
 tion to feudal fervices, in the latter cafe, more than in the 
 former. It is true that fubjedls who enjoyed boc-land 
 were bound to defend the kingdom from enemies by fea 
 or land, and to build or repair bridges and catties;}:; but 
 thefe were fervices which they owed to the public as citi- 
 zens, not to the king as vafTals. Thefe duties were impofed 
 by a general law of the kingdom, and were laid upon the 
 pofTeirors of folc-land as well as of boc-land, upon the clergy 
 we]l as laity, in fhort, upon all the free members of 
 the community §. 
 
 * V. Feud. Confuet. lib. i. tit. i. § i. 2. 
 
 t Spelm. on Feuds and Tenures by Knight-fervice, chap. 5. 
 
 % Ei , Burgbhte, and Brigbote. 
 
 § Sec Spclnjan on Feuds and Tenures by Knight- ferv ice, chap. 8. 9. 10. II. 
 
 Such
 
 Chap. V. THE SETTLEMENT OF THE SAXONS. 89 
 
 Such was the original ftate of property in the Anglo- 
 Saxon government ; from the confideration of which, to- 
 gether with the early circumftances and manners of the 
 nation, the inhabitants, excluiive of the ibvereign, may 
 be diftinguifhed into three different ranks or orders. 
 
 1. The firft and moft confpicuous was that of the mili- 
 tary people. It is probable that for fome time after the 
 fettlement of the Saxons in England, this comprehended 
 all the free men of the nation. The general character of 
 thofe adventurers, and the views with which they invaded' 
 Britain, were fuch as difpofed every man, who had the 
 direction of his own conduct, to become a foldier, and to 
 engage in every enterprize by which either plunder or 
 reputation might be procured. Thefe warriors, who in 
 general were denominated thanes^ came foon to be arranged 
 in two clafTes ; the one confuting of thofe heads of fami- 
 lies 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 
 clafTes of people were accounted gentlemen, and were 
 underftood to be of the fame rank, in as much as they 
 exercifed the honourable profefhon of arms ; though in 
 point of influence and power there was the greaterl diipa- 
 rity, the vaffals being almoft intirely dependent upon their 
 fuperior. The foldiers of this lower clafs appear to have 
 received the appellation of /efs, or inferior thanes *. 
 
 2. The peafants compofed a iecond order, greatly inferior 
 in rank to the thanes of either clafs. They appear to have 
 conilfted chiefly of fuch perfons as had been reduced into 
 captivity during the long wars between the Britons and th* 
 
 * Spclman, in the treatife above quoted. 
 
 N Saxons,
 
 90 STATE OF PROPERTY PRODUCED BY Book L 
 Saxons, and had afterwards been entrufted by their mailers 
 u ith the management of particular farms ; they were 
 called ccor/s, caries^ or cburles. Some of them, no doubt, 
 were kept in the houfe of their matter, and employed in 
 cultivating the land in his own poffefTion ; but the greater 
 number were ufually fent to- a diftance, and placed, as it 
 happened to be convenient, upon different parts of his 
 eftate. The former being.under his eye, and acting on all 
 occafions from his orders, remained for a long time in 
 their primitive fervile condition; the latter, on the con- 
 trary, being withdrawn from his immediate inflection, 
 had necefTarily more truft and confidence repofed in them, 
 and were thence enabled, with fome degree of rapidity, to 
 improve their circumftances. From their diftance, the 
 mailer was obliged to relinquifh all thoughts of compell- 
 ing them to labour, by means of perfonal chaftifement ~ 
 and as, from the nature of their employment, he could 
 hardly judge of their diligence, otherwife than by their 
 fuccefs, he foon found it expedient to bribe their induftry, 
 by giving them a reward in proportion to the crop which 
 they produced. They were thus allowed to acquire pro- 
 perty ; and their condition became fimilar, in every refpect^ 
 to that of the adferipti glebct among the ancient Romans,, 
 to that of the prefent colliers and falters in Scotland, or of 
 the bondmen employed in the mines in feveral parts of 
 Europe. In this fituation fome of them, by induftry and 
 frugality, 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 anti- 
 
 c enerally fuppofed that the ceorls were never 
 
 in a fervile condition ; that from the beginning they were 
 
 I free
 
 Chap. V. THE SETTLEMENT OF THE SAXON?, gi 
 free tenants, forming a diftindt clafs of people, and holding 
 an intermediate rank between the villeins or bondmen, and 
 thofe who followed the military profeonlli. But this iup- 
 pofition, fo far as I know, is made without any fhadow 
 of proof: it probably took its rife from obferving that 
 the free tenants, towards the end of the Anglo-Saxon 
 government, were very numerous, without attending to 
 the circumfhances from which they obtained their free- 
 dom. It is not likely, however, that in lb rude and warlike 
 an age any fet of men, who had not been debafed by 
 fervitude, and reftrained by their condition, would attach 
 themfelves wholly to agriculture, and be either unfit for 
 war, or unwilling to engage in it. If the ceorls had not 
 been originally in fome degree of bondage, they would 
 undoubtedly have been warriors ; and we accordingly mid 
 that when, from the circumftances above mentioned, they 
 had afterwards acquired confiderable privileges, they were 
 advanced to the rank and employment of thanes. 
 
 Though the peafants were chiefly employed in agricul- 
 ture, they were fometimes engaged in other branches of 
 labour, as a collateral profeflion. From the poverty and 
 rudenefs of the country, for fome time after the fettlement 
 of the Saxons in Britain, it may ealily be imagined that 
 little encouragement was given to mechanical arts, and that 
 artificers and tradefmen were not of fufficient confequence 
 to become a feparate order in the community. Some 
 mechanics, even in that iimple age, were doubtlefs necef- 
 lary to procure the ordinary accommodations of life, but 
 the demand for their work was too 'narrow to occupy the 
 fole 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 matter 
 
 N - in
 
 92 STATE OF PROPERTY PRODUCED BY Book I. 
 in the exercife of it, and thus were led* by degrees, to 
 make fome proficiency in particular occupations. But 
 they were not hindered by thefe employments from cul- 
 tivating the ground ; and they obtained a maintenance in 
 the fame manner with the other peafants, either by living 
 in the houfe of their matter, or by the pofleflion of iepa- 
 rate farms upon his eftate. As thefe mechanical employ- 
 ments were accounted more unwarlike and contemptible 
 than the exercife of hufbandry, there was yet lefs pro- 
 bability that any freeman would be willing to engage 
 in therru 
 
 3. A third order of men, who in this period of the 
 Engliih hiftory became more and more diftinguiihed, was 
 that of the clergy. The numerous body of church-men 
 introduced by the Chriftian religion, efpecially in the Wef- 
 tern part of Europe, the extenfive power and authority 
 which they gradually acquired, together with the peculiar 
 views and motives by which they were actuated, amidft 
 the diforder and barbarifm of the feudal times, are cir- 
 cumftances of fo much magnitude, as to deferve particular 
 attention in tracing any modern fyftem of European policy.. 
 A few remarks, however, concerning the nature and ori- 
 gin of ecclefiaftical jurifdiction, and the primitive govern- 
 ment of the Chriftian church, will be fufflcient, upon a< 
 fubject that has been fo often and fo fully examined. 
 
 Sect.
 
 Chap. V, THE SETTLEMENT OF THE SAXONS. 93 
 
 Sect. 1. Of the chief Regulations attending the Eflabl fo- 
 ment of Cbriftianity 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 govern- 
 ment, and obtained the fanction of public authority. The 
 uniformity of circumftances attending the introduction of 
 this new religion, produced throughout the whole empire 
 an uniform fet of ecclefiaitical regulations. 
 
 In every province, religious teachers had taken up their 
 refidence wherever they met with encouragement ; and the 
 country was, by degrees, divided into fmall districts, or 
 pariihes, in each of which a particular clergyman had 
 gained an eltablifhment. 
 
 As the inhabitants of aparifh were accuftomed to afTem- 
 ble at ftated times for public worlhip, and were by that 
 means united in a religious fociety, fo the zeal with which 
 they were animated, in fupport of their religion difpofed 
 them to infpect the conduct and theological opinions of 
 all their members. For the regulation of thefe, and of 
 all their common affairs, the heads of families, belonging 
 to every congregation, frequently held meetings, in which 
 their paflor was naturally allowed to prcfkle, and gradually 
 obtained the chief direction of their mearures. Even in 
 fecular matters, the people were difpofed to be guided 
 by his judgment; and when a controverfy had ariien be- 
 tween individuals, he was efteemed the moil propel 
 perfon to compofe the difference; which was therefore 
 
 moil
 
 04 STATE OF PROPERTY PRODUCED BY Book I. 
 
 mofl commonly referred by the parties to his determi- 
 nation. 
 
 The advancement of Chriftianity opened a communica- 
 tion between the profcflbrs of this religion belonging to 
 different parifhes, who in like manner were accuiromed 
 to deliberate upon their common religions concerns. Some 
 particular clergyman became the ordinary preiident in thofe 
 cafes ; and upon that account acquiring fnperior con- 
 fideration and rank, was at length exalted to be fuperin- 
 tendant, or bifhop, of a large diftridt or diocefe. When 
 thefe dioceian meetings were greatly multiplied, the atten- 
 dance of the laity being found inconvenient, and appear- 
 ing to them of lefs confequence, was gradually neglected, 
 fo that the bufinefs came to remain entirely in the hands 
 of the clergy. 
 
 The minifter of every parifh was at firfc. maintained by 
 the occafional bounty of thofe who reaped the benefit of 
 his inif ructions ; and fuch was the attachment of the pri- 
 mitive Chriltians to their teachers, and to one another, 
 that they chearfully made contributions not only for that 
 purpoie, but alio for the maintenance of their poor. In 
 the declining irate of Rome, when the decay of knowledge, 
 by infilling a itrong leaven of iuperftition, had corrupted 
 the purity of the Chriftian religion, the clergy found 
 means to obtain a more independent revenue, by perfuading 
 perfons upon their death-bed to make donations to the 
 c hurch, in order to atone for their offences. In the reign 
 of the emperor Conftantine, when Chriftianity became the 
 eftablifhed religion of the empire, teftamentary bequeits in 
 favour of foe ieties, which had formerly been prohibited by 
 the Roman law, came to be permitted without contronl; 
 and from this time the fafhion of leaving legacies to the 
 
 church
 
 Chap. V. THE SETTLEMENT OF THE SAXONS. 95 
 
 church for pious ufes became ib univerfal, that the clergy 
 were enabled to accumulate large eftates, both in moveables 
 and land. 
 
 The management of thefc eftates, as of all other matters 
 concerning religion, was naturally devolved upon the clergy 
 of every diocefe, who afTumed a difcretionary power of 
 diftributing the produce in fuch a manner as they thought 
 moft expedient, or more conformable to the purpofe of the 
 donors. As the bifhop, however, acquired more influence 
 in eccleiiaftical meetings, he was in a capacity of appropria- 
 ting to his own ufe a greater fhare of that revenue which 
 fell under their difpofal. His dignity became more confpi- 
 cuous ; and for fupporting it a fuitable eftate was deemed 
 neceffary. His cathedral was enlarged and rendered more 
 rjaagmficeiit, a more pompous form of wormip was intro- 
 duced into it, and a number of clergymen were appointed 
 to aflifl in the religious fervices, or other branches of duty, 
 that were fuppofed to belong to his department. 
 
 The rife of a bifhop 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 fuperiority of nation, derived from 
 perfonal qualities, put it in the power of a ilngle pcrfon ta 
 acquire fuperior wealth, and thence to become the perma- 
 nent head or leader of a fociety : but the original pre-emi- 
 nence of the chief arofe from his military talents, that of 
 the bifhop, from the veneration paid to the fanetity of his 
 character and profeffion. This makes the only difference 
 in the nature of their advancement. 
 
 While thofe who had the direction of religious mat: 
 
 were thus ?. ' and rig in opulence and . •", there arofe a 
 
 . w let of fanatics, who divided the efteem and admira-
 
 96 STATE OF PROPERTY PRODUCED BY Book I. 
 
 tion of the people, and were at length admitted into the 
 clerical profeflion. 
 
 The erroneous notions entertained in the dark ages, 
 concerning the Supreme Being ; the mppofition that he is 
 actuated by anger and refentment, in a literal fenfe, againft 
 thole who tranfgrefs his laws, and that thefe paflions are 
 to be gratified by the mere differing of his creatures ; fug- 
 gefted to perfons imprefled 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 
 punifhment which they were confcious of having dcferved. 
 From views of this kind, particular perfons became dif- 
 pofed to retire from the world, and to deny themfelves al- 
 moft all the comforts and enjoyments of life : focieties were 
 afterwards formed, the members of which exprefsly bound 
 themfelves not only to dibmit to actual punifhment s, but 
 to renounce all thofe pleafures and gratifications to which 
 mankind have the great eft propenfity, and for this purpofe 
 came under the vows of poverty, of chaftity, and of obe- 
 dience to the rules of their community. As Chriftianity 
 took a firmer hold of the mind than any of the religions 
 which had been formerly eftablifhed, this perverfion of its 
 doctrines was attended with confequences proportionably 
 more extenfive. 
 
 Thefe mifguided votaries to mortification being origi- 
 nally poor, were fupported either by alms or by their ma- 
 nual labour ; but their exemplary lives, and the aufterities 
 which they praclifed, having excited univerfal admiration, 
 enabled them to follow the example of the fecular clergy, 
 by procuring donations from the people ; and hence, not- 
 
 withftanding
 
 Chap.V. THE 'SETTLEMENT OF THE SAXONS. 97 
 with Handing the poverty ftill profeffed by individuals, 
 their ibcieties acquired the pofleffion of great riches. The 
 members of theie communities were by degres admitted 
 into holy orders ; and became no lefs inftrumental in pro- 
 moting the influence of the church, than in communicat- 
 ing religious in ft ruction. 
 
 As the affairs of a diocefe had fallen under the chief 
 direction of a bifhop, thofe of a monaftery were conducted 
 by an abbot, who prefided in the meetings of the Ibciety, 
 and who, by obtaining authority in confequence of that 
 diftinction, was at length permitted to afllime the diitribu- 
 tion and dilpofal of their property. 
 
 Although the authority and jurifdiction of the church 
 in this early period of Chriftianity, and the fubordination 
 among different ranks of churchmen, proceeded in good 
 meafure from the nature of the bufinefs committed to 
 their care, and the influence derived from their profeflion, 
 vet the general fabric of ecclefiaftical government was like- 
 wife a good deal affected by the political circumftances of 
 the Roman empire. The perlbn exalted to the head of a 
 diocefe was very often the minifter of the moft consider- 
 able town of that diftrict, who from the greater weight 
 and importance of his flock enjoyed a proportionable con- 
 iideration among his brethren of the clergy. As by the 
 civil policy of the empire many of thofe diftrict s were 
 united in what, according to the later diviiion of the coun- 
 try, was called a province, the clergy of this larger terri- 
 tory were led frequently to hold provincial fynods, in 
 which the bifhop of the capital city, acquiring refpect from 
 his refidence near the feat of government, became the re- 
 gular president, and was thence exalted to the dignity and 
 title of a metropolitan or archb;Jhop. In the yet more cx- 
 
 O tenfive
 
 9 3 STATE OF PROPERTY PRODUCED BY Book I. 
 
 tenfive divifions of the empire, which were called jurifdic- 
 tionS) the clergy were induced, upon fome occaiions, to de- 
 liberate ; and in thofe greater meetings the right of prefid- 
 ing was claimed by the bifhop, who redded in the fame 
 city with the governor of each refpective jurijdiclion. 
 Hence there arofe a Hill fuperior rank in the church, 
 that of an exarch or patriarchy who obtained certain pre- 
 rogatives over the clergy of that great divifion. Of all the 
 patriarchs in Chriftendom thofe of Rome and Conftanti- 
 nople, the two great capitals of the empire, became foon 
 the moil diftinguifhed, the former of which enjoyed a pre- 
 eminence over all the clergy in the Weftern, the latter 
 over thofe in the Eaftern provinces. 
 
 Upon the conqueft of the Weftern empire by the bar- 
 barous nations, the ancient inhabitants, who had for a long 
 time been declining in arts and knowledge, experienced at 
 once a violent change of iituation, and were fuddenly 
 plunged into the darknefs and barbarifm of their conque- 
 rors. As thofe conquerors, however, embraced the Chris- 
 tian religion, they fubmitted implicitly to the difcipline of 
 the church, and to all the forms of ecclefiaftical govern- 
 ment which they had found eftablifhed. The Roman 
 clergy, therefore, remained upon their former footing, and 
 were far from lofing any of their former privileges ; they 
 even endeavoured, amidft the general deftruelion 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 necefTity of acquiring, and which was 
 the great fupport of their influence and popularity. With 
 this view, and for the inftmclion of the people, more efpe- 
 cially of thofe that were to be admitted into holy orders, 
 they creeled fchools in their cathedrals and monafterics, 
 
 and
 
 Chap. V. THE SETTLEMENT OF THE SAXONS. 99 
 
 and thence laid the foundation of thofe communities, pof- 
 ieifed of ecclefiaftical powers and privileges, which have 
 received the exclufive appellation of colleges. 
 
 From thefe two circumftances, from the grofs igno- 
 rance and the confequent fuperftition of the people, and 
 from the comparative knowledge and abilities of the 
 clergy, the latter were enabled to reap the utmoit advan- 
 tage from their fituation, and to acquire an almoft unlimit- 
 ed afcendency over the former. Hence the doctrines of the 
 church concerning her influence in the remiffion of fins, 
 and concerning the diftribution of rewards and puniihments 
 in a future ftate, came to be modelled in fuch a manner 
 as was plainly calculated to promote her temporal intereft. 
 From this period, therefore, the donations of land to the 
 church were greatly encreafed, and the bifhops, abbots, 
 and other dignified clergymen, who reaped the chief advan- 
 tage from thefe benefactions, became pofTefTed of eflates, 
 which enabled them in fome degree to rival the greater 
 thanes of the country. From the fame caufes the contri- 
 butions made by every congregation for the fupport of 
 their minifter, were gradually augmented. To augment 
 thefe contributions, and to render them permanent, the 
 church employed the utmoft addrefs and influence of all 
 her members. What was at firfl 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 Jewiih priefts, de- 
 manded at length a tenth part of the annual produce of 
 land, as due to them by divine appointment. Not con- 
 tented with this, they in fome places infiited upon the 
 fame proportion of the annual induftry ; and it came to be 
 maintained, that they had even a right to the tenth part of 
 
 O 2 the
 
 ioo STATE OF PROPERTY PRODUCED BY Book L 
 the nlms given to beggars, as well as of the hire earned by 
 common prostitutes in the exercife of their profeffion*. To 
 inforce the obligation of Submitting to thele monftrous 
 exactions, was for a long time, it is laid, the great aim of 
 thole difcourfes which refounded from every pulpit, and of 
 the pious exhortations delivered by each ghoftly father in 
 private. The right of levying tytbes, which was fhrt esta- 
 blished in France, and which afterwards made its way 
 through all the Weftern parts of Chriftendom, created to 
 the church a revenue of no lefs value than what flic de- 
 rived from her landed poSTeflions t. The tythcs of every 
 parifli were collected by its own minister, but a large pro- 
 portion of thofe duties came to be demanded from the 
 inferior clergy by the bilhop of the diocefe. 
 
 When the provinces of the Weftern empire were broken 
 into a number of independent kingdoms, it might have 
 b^en expected that the church establishment in thole coun- 
 tries would experience a fimilar revolution, and that the 
 clergy of every feparate kingdom, being detached from 
 thole of every other, would form a feparate ecclefiaStical 
 fyftem. It is not difficult, how ever, to difcover the cir- 
 cumstances which prevented fuch a feparation ; and which, 
 notwithstanding the various oppositions of civil govern- 
 ment, united the churches of all the Weftern countries of 
 Europe in one great ecclelialtical monarchy. 
 
 The patriarchs of Rome and Constantinople, of whom 
 the one, as has been already obferved, became the head 
 of the Weftern, and the other of the Eastern part of Chrif- 
 tendom, were in a different Situation with refpect to the 
 establishment of their power and dignity. The patriarch 
 
 * F. Paul's Hiftory of Benefices. 
 
 t The council of Mufco.i, in 585, excommunicated all thofe who refitted to pay 
 tythes. Ibid. 
 
 Of
 
 Chap. V. THE SETTLEMENT OF THE SAXONS, iot 
 of Constantinople, from his connexion with the principal 
 feat of government, appears for fome time to have been 
 exalted above his Weftern rival, and to have enjoyed 
 fuperior authority. But after he had attained a certain 
 pitch of exaltation, the very circumftance which had 
 hitherto promoted his advancement, tended immediately 
 to Hop the progrefs of it ; for no lboner did he become 
 an object of jealoufy to the civil power, than the vicinity 
 of the imperial refidence contributed the more effectually 
 to thwart and controul every project for the extennon of 
 his privileges. The Roman pontiff, on the other hand, 
 when he had riien to fuch opulence and dignity as might 
 have excited the envy and difguft of the civil magistrate, 
 was, by the diffoiution of the Weftern empire, freed from 
 the troublefome infpection of monarchs, who probably 
 would have checked the growth of his power ; ami being 
 placed in the fituation of an independent prince, was at full 
 liberty to put in practice every politic meafure which might 
 either enlarge his temporal dominions, or extend his au- 
 thority over that numerous body of clergy who already 
 owned his Supremacy. 
 
 It may further explain the hiftory of the Weftern church 
 to obferve, that while the bilhop of Rome was thus in a 
 condition to avail himfelf of that fuperior it y which he had 
 acquired, the circumftances 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 profeflion, a good deal different from that 
 of the laity, and incited them to very oppoiite purfuits. 
 The former, in a military and rude age, were generalh 
 drawn from the inferior ranks of life; at the lame time- 
 that, from the prevalence of fuperftition, they poflefled 
 
 great
 
 102 STATE OF PROPERTY PRODUCED BY Book I. 
 great influence over the minds of the people, and wero 
 daily advancing their claims to power and emoluments. 
 By the ancient nobility, therefore, or leading men of every 
 country, and trill more hy the fovereign, the haughtinefs, 
 the infolence, and the rapacity of thefe upftarts, was often 
 beheld with indignation and refentment, and produced 
 continual jealoufies and difplitfes between thole different 
 orders ; the latter endeavouring to maintain and to extend 
 a fet of immunities and privileges, which the former were 
 no lefs eager to reftrain. In fuch a conteft the ecclefiaftics 
 of any particular kingdom were as much inferior 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 afliftance from their brethren 
 in the neighbouring kingdoms. That afliftance they very 
 fcldom failed to procure. The controverfy of every indivi- 
 dual was regarded 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 opprefhon, but even to defend their ufurpa- 
 tions; and by combining, like the foldiers of an army, 
 under one leader, their forces were directed to the belt 
 advantage. 
 
 The opportunities which this great leader enjoyed, of 
 augmenting his revenue, and of increafing his power, may 
 eafily be conceived. In the multitude of difputes which 
 occurred between the clergy and laity in the different na- 
 tions of Europe, the former, in order to obtain his protec- 
 tion, were obliged to fubmit to various taxes, and to the 
 extenfion of his prerogatives. Hence the payment of the 
 fir ft fruits, and fuch other impositions upon the livings of 
 churchmen, were eftablifhed in favour of the holy fee. 
 
 6 In
 
 Chap. V. THE SETTLEMENT OF THE S AXONS. 103 
 
 In like manner, during the wars that were carried on 
 between the different potentates of Europe, the contend- 
 ing parties, finding that the countenance and approbation 
 of the Roman pontiff would give great weight and popu- 
 larity to their caufe, were ibmetimes under the neceility 
 of purchafing his favour, by ratifying his titles, and per- 
 mitting 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 authority, as an inde- 
 pendent fovereign, was recognized. Upon the conqueft 
 of Lombardy by the King of France, his holinefs, who- 
 had thrown his whole influence into the fcale of that mo- 
 narch, was rewarded with a great proportion of the con- 
 quered territory ; and, at the fame time, was enabled to- 
 affume the privilege of conferring the imperial dignity 
 upon the conqueror. 
 
 The difputes among the clergy themfelves, more efpe- 
 cially between the fecular and regular clergy, were another 
 fource of the papal aggrandizement. Every fociety of monks 
 was fubject originally to the bifhop within whofe diocefe 
 their monaltery was fituated ; but as they advanced in 
 riches and popularity, they were led to affert their inde- 
 pendence ; and in fupporting their pretentions, having 
 to ftruggle with the whole body of fecular clergy, they 
 were induced to court the head of the church, by men 
 obedience and compliances as were likely to gain him over 
 to their intereft. 
 
 In the Eaftern church, where thefe caufes did not ope- 
 rate in the fame degree, neither the authority of the clergy, 
 nor that of the patriarch of Constantinople, rofe to the fame 
 height. The payment of tythes, though it was there 
 warmly afferted by churchmen, as well as in the Well, 
 
 was
 
 104 STATE OF PROPERTY PRODUCED BY Book I. 
 was never inforced by public authority ; nor was the head 
 of the church in that part of the world in a condition to 
 eftablilh inch an extenlive revenue as had been acquired 
 by the Roman pontiff. 
 
 It may be Obferved, on the other hand, that the fame 
 circumftances which produced an independent ecclefiaftical 
 jurifdiction in Chriftendom, have been productive of fimilar 
 effects in other religions, and in different parts of the world. 
 Among illiterate nations, the clergy, by explaining the will 
 of the Deity, or by directing myfterious rites and ceremonies, 
 are naturally railed to great importance ; and if many fuch 
 nations profefs a common religion, and maintain an inter.-! 
 courie with one another, their fpiritual guides, by extending 
 their ideas of a common intereft beyond the bounds of a 
 Jingle kingdom, are eafily reduced under one great eccle- 
 liaftical leader. Hence an independent iy ftem of church go- 
 vernment is likely to arife. 
 
 This was formerly the fituation of the Celtic nations, who 
 inhabited a great part of Europe : they were under the influ- 
 ence of a common religion, the minifters of which are faid 
 to have poflefled a jurifdiction fuperior to that of the civil 
 magistrate. Thele druids were, at the fame time, united in 
 one fociety, independent of the different political ftates to 
 which they belonged; and were under the direction of a 
 chief druld, 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 bigh-priejl of the 
 Tartars, which is acknowledged by many tribes or nations 
 totally independent of one another, had, in all probability, 
 the fame foundation. This ecclefiaftical monarch, v. 
 refides in the country called Little Thibet, is alio a tem- 
 poral prince. The numerous clergy, in the different parts 
 
 of
 
 Chap. V. THE SETTLEMENT OF THE SAXONS. 105 
 
 of Tartar y, who acknowledge his fupremac y, are laid to 
 be distinguished into different ranks or orders, fomewhat 
 analogous to thole which take place in Chriftendom ; and 
 the ordinary priefts, or lamas, are lubjectcd to the autho- 
 rity of bifhops, whole jurifdiction is lubordinate to that of 
 the lbvereign pontiff. Without pretending to aicertain, 
 with any degree of accuracy, the church-hiltory either of 
 the Celtic or Tartar nations, we cannot avoid remarking 
 the general analogy that appears in the origin and coniti- 
 tution of all thefe different Hierarchies. 
 
 Sect. 2. The EJlablifhment of Chrijlianity in Britain, under, 
 the Roman Dominion, and in the early Government of the 
 Anglo-Saxons. 
 
 Chriftianity made its way into Britain, in the fame gra- 
 dual manner as into all the other parts of the Roman 
 empire. It is fuppofed to have obtained a permanent foot- 
 ing in the country, under the government of Marcus Au- 
 rebus, at which time a bifliop of Rome is faid, upon the 
 application of Lucius, a Britifh king, to have lent over, to 
 this bland, feveral learned men, to preach and propagate 
 the gofpel. But whatever degree of credit nia^be due to 
 this account, it is certain that, in the reign of the emperor 
 Conffantine, this religion was taken under the protection 
 of government, in Britain, as well as in all the other pro- 
 vinces of Rome; and that it continued in this lunation 
 until the bland was abandoned by the Romans. Dnrin • 
 tins period the Chriftian church had received the lame- 
 form as in all the other parts of the empire. Particular 
 clergymen had obtained a fettlement in linall diltricts or 
 
 P pari flu ,
 
 io6 STATE OF PROPERTY PRODUCED BY Book I. 
 
 parifhes, according to the number and fituation of the 
 inhabitants *. Many of thefe cliftricTts were united under 
 the infpedtion of a bifhop, the miniftcr of a cathedral 
 church ; and a metropolitan, or archbifhop, was exalted 
 over the whole clergy of a province. But though it is 
 probable that this ecclefiaftical eitablifhment was modelled 
 according to the fituation of the great towns, and the 
 chief divifions introduced by the civil government of the 
 country; yet neither the number of the Britifh prelates, nor 
 the churches in which they were fettled, appear to be known 
 with any degree of certainty i. Mention is made of three 
 archbifhops, who, it mould feem, correfponded to three of 
 the provinces, in the late arrangement which the Romans 
 made of their Britifh territories. The firft refided in Lon- 
 don ; the fecond in York ; and the third, whofe jurifdic- 
 tion extended over Wales, appears, at different times, to 
 have had a different place of refidence J. That the Hie- 
 rachy had early acquired a fettled condition in Britain, and 
 that its bifhops held fome rank among thofe of other 
 churches, is evident from their fending reprefentatives to 
 the council of Aries, called in the year 3T4, and to other 
 remarkable councils, that were afterwards convened in 
 different parts of Chriftendom §. 
 
 The arrival of the Saxons in this ifland was productive 
 of great difordcr in the religious, as well as in the civil 
 
 * Gildas.— Alfo Whitaker, Hift. of Manchefter. 
 
 t According to the monkifh tradition, there were twenty-eight bifhops in Britain, 
 during the Roman government of that ifland. Thefe correfponded to the twenty-eight 
 confiderablc cities in the province. See Ranulph. Higden. lib. i. — This number of 
 Bntifh cities is mentioned by Gildas, Bcdc, and others j and their names are tranf- 
 mitted by Nonnius. 
 
 % Ranulph. Higden. lib, i. 
 
 § StHlingfleet, Orig. Britan. 
 
 eftablifhment*
 
 Chap. V. THE SETTLEMENT OF THE SAXONS. 107 
 -eftablifhment. In thofe parts of the country which fell 
 under the dominion of the Saxons, the Chriftian churches 
 were frequently demolifhed ; the public worfhip was inter- 
 rupted ; and the clergy, in many cafes, could neither be 
 provided with a maintenance from the public, nor continue 
 the regular exercife of their jurifdiction. The altars of 
 Thor, and Woden, were often fubitituted for thole of 
 Jefus Chrift; and the life and immortality which had been 
 brought to light 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 fculls 
 of enemies whom they have flaiii in battle. 
 
 Wherever the ancient inhabitants were able to preferve 
 their independence, their ecclenaftical policy remained with- 
 out any alteration. This w r as particularly the cafe in the 
 whole Weftern part of the illand, from the Southmoft 
 point of Cornwall to the Frith of Clyde ; not to mention 
 the country to the Northward, which the arms of the 
 Saxons had not penetrated. In the territories where that 
 people had formed their fettlements, there is ground to 
 believe that, after the tumult and violence attending the 
 conqueft had fubfided, the two nations frequently main- 
 tained an amicable correfpondence, were in fome meafure 
 united in one fociety, and enjoyed the free exercife of 
 their religion*. As their long neighbourhood produced, 
 
 * This was fo much the cafe, that among the Eaft-Angles, according to the tef- 
 timony of Bcde, the Chriftian worfhip, and the Saxon idolatrous rites, were performed 
 in one and the fame church ; fuch good neighbourhood was maintained between the 
 two religions. " Atquc in eodem fano et altare haberet ad facrificium Chrifti ct 
 Arulam ad victimas dEmoniorum. Quod vidclicit fmum, ex cjufdem provinci.r 
 AlJuulf, qui noftra eetate fuit, ufque ad fuum tempus peiduiafle, et fe in pucritia 
 vidiflc teftabatur." Bed. Hift. Ecd. lib. ii. ch. 15. 
 
 P 2 by
 
 io8 STATE OF PROPERTY PRODUCED BY Boo it h 
 
 by degree?, a communication of civil inftitutions and cuf- 
 tofns, it was likewise, in all probability, attended with 
 ibme approximation of religious opinions and obfervan- 
 ces ; and in this particular, it can hardly be doubted that 
 the regular and wcll-eflabliihed iyitem of Chriftianity, to 
 fay nothing of its genuine merit in other refpecls, would 
 have great advantage over the unformed and loofely con- 
 nected iuperitition of the barbarians. In the ardour of 
 making prolelytes, and in the capacity of propagating their 
 tenets, the profeffors of the former muif. have greatly fur- 
 pafled thofe of the latter ; and it was natural to expect that 
 the Saxons, in England, would at length follow the ex- 
 ample of all the rude nations, who had fettled in the pro- 
 vinces upon the continent, by adopting the religion of the 
 conquered people. 
 
 What laid the foundation for a general and rapid con- 
 verfion of the Saxons, was an event, which happened 
 about an hundred and fifty years after their fettlement 
 in Britain. Ethelbert, the fovereign of Kent, having mar- 
 ried Bertha, the daughter of a king of the Franks ; this 
 princefs, already a Chriftian, made open profeflion of her 
 religion, and brought over a French bifhop to refide at 
 the Kentiih court. This incident fuggefted to the Roman 
 pontiff, Gregory the Great, a man of unbounded ambi- 
 tion, the idea of converting the Anglo-Saxons to Chris- 
 tianity, and, at the fame time, of eftablifhing his authority 
 over the Britifh clergy, who had hitherto neither acknow- 
 ledged the papal jurifdiction, nor yielded an exadt confor- 
 mity to the tenets and obfervances of the Roman church. 
 For thefe two purpofes, he gave a commiflion to Auguf- 
 tine, one of the monks of a convent at Rome, with about 
 forty ailiftants, to preacli and propagate the gofpel in 
 
 Britain.
 
 Chap. V. THE SETTLEMENT OF THE SAXONS, 109 
 Britain #. By the induftry of thefe, and of Succeeding rnii- 
 iionaries, the Chriitian religion was, in the couric of about 
 half a century, eftablifliecl univerfajly in all the kingdoms 
 of the Heptarchy. The authority of the church of Rome 
 went hand in hand with Chriitianity ; and though the 
 Britifh clergy itruggled for a confiderable time to maintain 
 their independence, and their peculiar doctrines, they were 
 at length borne down by the prevailing fyftem, and reduced 
 into a fubordinate branch of the Roman Hierarchy t. 
 
 The converfion of the Anglo-Saxons has been com- 
 monly 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 imagined, that when Auguftine 
 entered upon his million, there were no traces of Chrif- 
 tianity remaining in thole parts of the country. This 
 opinion appears to have arifen, partly from the fuppofition, 
 that the fettlement of the Anglo-Saxons was accompanied 
 with a total expullion of the ancient inhabitants, and partly 
 from a difpolition in fubfequent eccleiiafVical writers to un- 
 dervalue that fyftem of church-difcipline and faith which 
 had obtained in Britain, before it was fully Subjected to 
 the papal jurisdiction. 
 
 With refpect 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, profeffed by thofe conquerors, does not feem 
 to have taken a firm hold of their minds, or to have in- 
 spired much animoiity againft foreign deities or modes of 
 
 * Bed. Hift. Ecclefiaft. lib. i. c. 23. 25. 
 
 t Bed. Hift. Ecclef. lib. ii. fcq.— Stillingfleet, Origin. Brit.— Henry's Hift. of 
 Great Britain. 
 
 worfhip ;
 
 no STATE OF PROPERTY PRODUCED BY Book L 
 
 worfhip ; and if, during the immediate conqueft of the 
 country, the Britifh clergy were fometimes plundered or 
 mafTacred, this, in all probability, proceeded from no 
 peculiar enmity to their religion, but from the ferocity 
 natural to barbarians, who, in the heat of a military enter- 
 prize, could not be expected to fhew much regard to the 
 diltinction of characters or profeflions. The effedt of thefe 
 diforders, however, was only partial and temporary. It 
 appears that, even in thole parts of the country where the 
 Saxons had remained the longeft, the ancient church build- 
 ings were far from being entirely destroyed ; 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 build or repair churches, for the ac- 
 commodation of the Chriftian miflionaries -'•. 
 
 Upon the full reftoration of Chriftianity in thofe parts 
 
 of the country where it had been corrupted by the mixture 
 
 of Saxon iuperftition, the religious eftablifhments, which 
 
 had been introduced under the dominion of the Romans, 
 
 and which had always been preferred in the unconquered 
 
 parts of the illand, were completely revived ; with this 
 
 difference, that the Britifh churches, in the degree of their 
 
 iubmiflion to the papal authority, were brought into a 
 
 greater conformity with the churches upon the continent. 
 
 It is probable that the ancient parochial divisions had not 
 
 been entirely loll; more especially in thofe diltricts, which' 
 
 the Anglo-Saxons had but recently fubdued when they 
 
 embraced the religion of the former inhabitants +. 
 
 * Hift. Kcckf. 1. i. c. 26. 
 
 t Whjtaker, Hilt, of Manchcftcr; and the authorities quoted by him. 
 
 • The
 
 Chap. V. THE SETTLEMENT OF THE SAXONS, in 
 The number of bifhops, it is natural to fuppofe, and the 
 extent of their jurifdidtion, were likewife directed, in fome 
 meafure, by the antecedent arrangements in the provincial 
 government of Britain ; though from the changes pro- 
 duced in the ft ate of the country, many variations were, 
 doubtlefs, become necefTary. Of the three archbifljops, who 
 had formerly acquired a pre-eminence over the whole of 
 the Britifh clergy, one appears to have been funk by the 
 disjunction of Wales from the Englifh monarchy ; fo that 
 there came to be only two metropolitans under the Saxon 
 eftablifhment. The archbifhop of the Northern depart- 
 ment refided, as formerly, at York ; but the feat of the 
 other, from the refidence of Auguftine, who obtained the 
 chief ecclefiaftical 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 juril- 
 di£tion of the Roman pontiff. It confined, partly of con- 
 tributions levied in every parifh ; and partly of landed 
 eftates, which the fuperftition of the people had led them 
 to bequeath for pious ufes : 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. 
 
 * Ranulph, Higdcn. lib. i. 
 
 C H A P.
 
 112 INSTITUTION OF TYTHINGS, Book I. 
 
 C II A P. VI. 
 tnjlitut'ton of Vythings, Hundreds, and Counties, 
 
 IN every nation it mull be a great object to provide for 
 defence againft the invafion of neighbouring itates ; 
 but in a rude age, the provifions requifite for this purpofe 
 are few and fimple. The great body of the people are 
 foldiers, willing and ready to take the field whenever their 
 fervice is neceiiary. From the mutual depredations fre- 
 quent among a rude people, they become inured to hard- 
 ships, and familiar with danger ; and having little employ- 
 ment at home, they are glad to embrace every opportunity 
 of acquiring military reputation, or of enriching them- 
 ielves with the fpoil of their enemies. Every perfon, there- 
 fore, as foon as he is capable of ufing arms, is accuftomed 
 to the life of them, and acquainted with the fimple manner 
 of fighting practifed among his countrymen ; fo that, as the 
 chief magiftrate finds no difficulty in railing troops upon 
 any occafion, he is put to little or no trouble in training and 
 preparing them for thole military operations in which they 
 arc to be engaged. 
 
 The appointment of certain leaders in particular diftricts, 
 to collect the forces upon any emergency, and to command 
 them in time of battle, feems to be all that is wanted, in 
 fuch a lituation, for putting a whole kingdom in a com- 
 plete porrure of defence. A few regulations of this nature, 
 arifing obvioufly from the circumftances of a barbarous 
 people, v, ere, at an early period, ettabliihed among the Saxons 
 
 in
 
 Chap. VI. HUNDREDS, AND COUNTIES. 113 
 
 in England, as well as among their neighbours upon the 
 continent. 
 
 Every feudal fuperior was the military leader of his 
 own dependents ; but upon the fettlement of the Saxons 
 in Britain, the landed eftates acquired by the greater part 
 of individuals were at firft fo fmall as to render the num- 
 ber of their vafTals inconfiderable ; and the allodial or inde- 
 pendent proprietors were therefore under the neceffity, 
 amidit the diforder that prevailed in thofe times, of aflbci- 
 ating for mutual protection and fecurity. Different fami- 
 lies, connected by the ties of confanguinity or otherwife, 
 found it expedient as well as agreeable to fettle in the fame 
 neighbourhood, that they might on all occafions be in a 
 condition to aflift one another. Thus the inhabitants came 
 to be diflributed into villages of greater or lefs extent, ac- 
 cording to circumftances ; and the members of every 
 village, accuftomed from their infancy to live together, and 
 finding themfelves united by a common intereft, were led 
 to acquire the ftrongeft habits of intimacy and attachment. 
 Thefe little focieties received the appellation of viMs 9 towns, 
 or free-hour gs. 
 
 As thefe villages were formed upon the plan of defence, 
 and were frequently employed in the exercife of hoftilities, 
 there naturally arofe in each of them a leader, who by 
 having the privilege of conducting their military enter- 
 prizes, obtained alfo a degree of authority in the manage- 
 ment of civil affairs. To this perfon the name of bead-bo- 
 rough or borJJjolder (a word fuppofed by fome to be con- 
 tracted from borough's elder) was commonly given. 
 
 According to the early policy of the Anglo-Saxons, each 
 of their villages was divided into ten wards y or petty dis- 
 tricts ; and hence they were called ty things or decennaries 9 
 
 Q as
 
 H4 INSTITUTION OF TYTHINGS, Book I. 
 
 as their leader was denominated a dec anus or tytbing-man. 
 This regulation appears to have been extended over all the 
 kingdoms upon the neighbouring continent ; and in all 
 probability it originated from the influence of ecclefiaftical 
 inltitutions *. 
 
 As, upon the firft eftablifhment of Chriftianity, under 
 the Roman dominion, the form of church government was 
 in fome refpects modelled by the political conftitution of the 
 empire ; fo the civil government, in the modern Hates of 
 Europe, was afterwards regulated in many particulars ac- 
 cording to the fyftem of ecclefiaftical policy. When the 
 Weftern provinces of the Roman empire were conquered 
 by the barbarous nations, and erected into feparate king- 
 doms, the conquerors, who foon embraced the Chriftian 
 religion, and felt the higheft refpect for its teachers, were 
 dilpoled in many cafes to improve their own political in- 
 ftitutions, by an imitation of that regularity and fubordi- 
 nation 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 Jevifh nation, a 
 decimal arrangement was more frequently employed than 
 any other. By the Mofaic inftitution the people were 
 placed under rulers of thoufands, of hundreds, of fifties, 
 and of tens. A Jewifh fynagogue, correfponding to a mo- 
 dern parifh, appears at a fubfequent period to have been 
 
 * The term free-burg is fometimes applied not to the whole tything or village, but 
 to each of thofe wards into which it was divided. [See the laws afcribed to William 
 the Conqueror. Wilkins, c. 32.] But more frequently a free-burg and tything arc 
 underftood to be fynonymous. See the Gloffaries of Spelman and Du Cangc, v. Fri- 
 
 kci ( 
 
 put
 
 Chap. VI. HUNDREDS, AND COUNTIES. 115 
 
 put under the direction of ten elders, of whom one became 
 the chief ruler of that ecclefiaftical di virion*. A tenth part 
 of the annual produce was appropriated for the lupport of 
 the Levites, as the fame proportion of ecclefiaftical livings 
 was claimed by the high-prieft. Hence we find that, in 
 modern Europe, 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 director, and the 
 tenth of thefe perfons, or decanus, was intruded with a 
 fuperintendence of all the reft t. Hence too the modern 
 inftitution of tythes, and the pretenfions of the Roman 
 pontiff, the Chriftian high-prieft, to the tenth of all the 
 revenues of the clergy J. 
 
 When the Weftern part of Europe, upon the difTolution 
 of the Roman government, had been reduced into a ft ate of 
 barbarifm, by which the inhabitants were necefTarily divided 
 into feparate villages or fmall towns, each of thofe little 
 communities was naturally formed into one congregation, 
 and annexed to a iingle church. The fame people who 
 
 * Dr. Lightfoot's Harmony of the Four Evangelifts, part 3. on Luke chap. 4. 
 ver. 15. — Lewis's Antiquities of the Hebrew Republic, b. 3. ch. 21.— Goodwin's 
 Mofes and Aaron, b. 2. ch. 2. — alfo Vitringa Archifynagogus illuftratus. — This 
 author agrees with Dr. Lightfoot, in fuppofing that the decern otiofi, mentioned as 
 requifite in every fynagogue, were officers employed in the bufmefs of that focictyj 
 though he differs as to the particular employments that were allotted to them. 
 
 f Burn's Ecclef. Law. — Kennet's Paroch. Antiq. 
 
 % Though the diftribution of perfons and things according to tens, appears to have 
 been immediately borrowed by the Chriftian clergy from the Jews, we find among 
 many other nations a tendency to follow the fame arrangement. Thofe natural inftru- 
 rnents of notation, which every man carries about with him, the fingers, have pro- 
 bably been the original caufe of the common arithmetical progreffion by tens, and of 
 the general propenfity to be governed by this number in the clafliftcation of objects.—- 
 The land-tax upon the ancient Roman provinces is faid to_have been a tenth of 
 the produce. 
 
 Q 2 joined
 
 n6 INSTITUTION OF TYTHINGS, Book I. 
 joined in public woiihip 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 
 of a village, with the correfponding territory belonging to 
 its inhabitants, into ten little wards or diJlriBs^ probably 
 arofe in thofe European kingdoms which had firft attained 
 a regular form, and was afterwards extended to the Saxons 
 in England, and to the inhabitants of other countries, 
 who remained longer in a ftate of anarchy and con- 
 
 fuiion. 
 
 But while the members of every Anglo-Saxon town or 
 village were thus intimately united, a connection of the 
 fame fort was gradually introduced between the inhabitants 
 of a larger territory. Thofe who belonged to different 
 towns or villages in the fame neighbourhood had fre- 
 quently occafion to affift one another againft a common 
 enemy ; and in confequence of many joint expeditions, 
 directed by a fenfe of mutual intereft, were induced to 
 form a regular aifociation, under a permanent military 
 officer. 
 
 The extent of thefe afTociations was at firft perhaps 
 arbitrary and variable, but was at length fettled in an uni- 
 form manner, according to the fyftem of ecclefiaftical 
 policy which prevailed both in England and in other Eu- 
 ropean kingdoms. Upon the principle which has been 
 formerly mentioned, every ten churches of a diocefe were 
 united under an ecclefiaftical infpector, who in England, in 
 contradistinction to a fimilar officer belonging to a cathedral 
 or monaftery, was called a rural dean*. In like manner 
 
 • Kcnnet's Paroch. Antiq.—— Burn's Ecclef. Law. v. Dean and Chapter. 
 
 every
 
 Chap. VI. HUNDREDS, AND COUNTIES. 117 
 
 every ten villages or tythings, which were of the fame 
 extent with parifhes, formed a military diftrict, which 
 obtained the appellation of a hundred, and its commanding 
 officer that of a centenarian or hundreder *. 
 
 The connections of fociety being ftill farther extended, 
 the members of different hundreds were alfo afTociated for 
 their common defence, and fell under the direction of a 
 greater officer, called the heretoch, a title which, in the 
 Saxon language, is faid to be fynonymous with that of duke, 
 and which appears to have been originally given to fome of 
 thofe leaders in the Heptarchy, who afterwards affumed 
 the title of kings. The diftricts belonging to thefe here- 
 tochs, which were greater or lefs according to accidents, 
 and had been varied on different occafions, were gradually 
 afcertained and eftablifhed, fo as at length to correfpond 
 entirely with the territories that were placed under the ec- 
 clefiaftical jurifdiction of the feveral biihops. Thefe dis- 
 tricts w^ere eafiedsyft/ra ; and the officer who prefided over 
 them feems, at a later period of the Anglo-Saxon govern- 
 ment, to have changed his title for that of alder-man or 
 earl. It is a common opinion, however, that the heretoch 
 and the alder-man were different perfons, intrufted with 
 different departments ; and that the former was the chief 
 military, as the latter was the chief civil officer of the 
 fhire. 
 
 In fome parts of the country a fmaller number of hun- 
 dreds were afTociated, lb as to compofe an intermediate 
 diftria, called lathe, rape, or trytbmg ; and feveral of thefe 
 dilfricts were united in forming a fhire. But this arrange- 
 
 * HundreJus autem Latine, fays Ralph Higden, five Cantredus, Wallico et 
 Hibernice, continet centum villas, [Polychronicon, lib. i.J 
 
 o ment,
 
 ri8 INSTITUTION OF TYTHINGS, Book!. 
 
 ment, peculiar to fome fhires, and depending upon the 
 fame principles with the divifions already mentioned, is of 
 little confequcnce in our prefent view of the fubjedt. 
 
 Such were the military inftitutions of the Anglo-Saxons ; 
 which appear to have arifen almott imperceptibly from 
 the rude Hate of the country, from the natural divifions of 
 the people, and from their progreflive attempts in forming 
 more exteniive and permanent alibciations. 
 
 From the great deficiency of Saxon records, there are, 
 concerning thefe inflitutions, many particulars, which re- 
 main in obfeurity, and which have given rife to various 
 difputes and conjectures. The earlier! hiltorians, who have 
 laid any thing upon this fubjedt, appear, for the rnoft part, 
 to have lived at a period when thefe inftitutions had under- 
 gone many variations, and in feveral refpedts had fallen into 
 difufe. They were, at the fame time, ignorant annalifts 
 of a barbarous age ; and their accounts, which appear to 
 have been chiefly derived from tradition, are fhort and 
 unfatis factory. It feems to have been uniformly imagined 
 by thefe authors, that the inftitutions above mentioned 
 were peculiar to the government of the Anglo-Saxons ; and 
 that they were introduced by the fmgular policy of king 
 Alfred, to whom the admiration of Englifh writers has 
 commonly afcribed every important regulation during the 
 Saxon period. But it is now generally known, that the 
 eftablifhment of tythings, hundreds, and fhires, was prior, 
 in England, to the time of Alfred; and that it was not 
 peculiar to this country, but was probably extended over 
 all the barbarous nations who fettled in the provinces of 
 the Weftern empire. 
 
 With refpedt to the eftablifhment of tythings and hun- 
 dreds, it has been the general opinion that the former 
 6 con filled
 
 Chap. VI. HUNDREDS, AND COUNTIES. 119 
 
 confiftcd often families, and that the latter, of courfe, were 
 compofed of an hundred families. That fueh was the 
 exact number of families comprehended in each of thefe 
 divifions, the reipective names affixed to them appear to 
 have been thought fufficient evidence. 
 
 But when we examine this opinion, after all the pains 
 that have been taken by late writers to render it plaufible, 
 it feems to be attended with infuperable difficulties. To 
 divide the whole people into military parties of ten and of 
 an hundred families, without any regard to their places of 
 refidence, would mark a degree of art and contrivance 
 hardly to be expected in a barbarous age : not to mention 
 that it would be a moft abfurd regulation, as it would fre- 
 quently feparate near relations, and place them under the 
 command of different officers, 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 regularly compofed of ten 
 families, nor of any given number, they rauft of neceffity 
 have been fplit and jumbled with ftrangers, to make up 
 the feveral ty things into which the people were thus ar- 
 tificially divided. If fuch a regulation ever had place in 
 England, we muft fuppofe that it was introduced by a 
 political projector, neglecting, for the fake of a finical 
 resularitv, to avail himfelf of the ufual fources of autho- 
 rity in a rude nation, and by a legislator inverted with 
 fuch abfolute power, as might render him capable of en- 
 forcing meafures diametrically oppofite to the natural 
 courfe of things ; a fuppofition which is neither applica- 
 ble to the character nor to the condition of the early mo- 
 narchs of Britain. 
 
 As
 
 120 INSTITUTION OF TYTHINGS, Book I, 
 
 As the inftitution of tythings, together with that of 
 hundreds, and of fhires or counties, was not limited to 
 England, hut had place in moft, if not all of the feudal 
 countries, there is good reafon to helieve that it was not 
 derived from artificial or diftant views of policy, iuggefted 
 to any particular prince ; but that it proceeded from a con- 
 currence of circumftances in the European kingdoms, by 
 which it was recommended to the great body of the 
 people. 
 
 That a tything was originally the fame thing with a 
 village, and that it did not comprehend any precife number 
 of perfons or families, may be concluded from this, that 
 in the ancient law-language of England the words vi// 9 
 town, decennary, and tythingihxve all the fame fignification*. 
 If a tything have the fame meaning with a vill or town, it 
 is furely impoflible that it can lignify a collection of ten 
 families only, without relation to the place of their refi- 
 dcnce. Should we, on the other hand, fuppofe that a tyth- 
 ing was regularly compofed of fo many families, the members 
 of the fame tything muft frequently have refided in dif- 
 ferent towns or villages ; in which cafe it would fometimcs 
 be neceflary, in defcribingor pointing out thofe perfons, to 
 mention the town which they inhabited, as diitinct from 
 the tvthing to which they belonged ; and thefe two terms 
 therefore, fo far from being fynonymous, would come, 
 upon fuch occafions, to be ufed in direct oppofition to 
 each other. 
 
 But what puts this matter in a yet more confpicuous 
 point of view, is an early regulation mentioned by the 
 Englifh lawyers, that every tything mould have a church, 
 with celebration of divine fervice, facraments, and bu- 
 
 * Blitckftone's Comment, vol. I. Introd. $ 4. 
 
 rials.
 
 Chap. VI. HUNDREDS, AND COUNTIES. 121 
 
 rials *. If the limits of a tything, and of a town or village, 
 were the fame, fuch a regulation would naturally be efta- 
 bhihed. Its eftablifhment, on the other hand, affords com- 
 plete evidence that a parifh and a tything were of the fame 
 extent. But how is it poflible to conceive that a parifh 
 comprehended only ten families ? According to this doc-trine 
 every eleventh houle muft have been a church, and the 
 clergy muft have composed the eleventh part of the whole 
 people. 
 
 To obviate this objection, it is held by fome authors 
 that a family is not to be underftood in a literal fenfe, but 
 as comprehending all the vafTals and tenants of a proprie- 
 tor, who in fome cafes were pretty numerous. Admitting, 
 however, this explanation in its fulleft extent, it will only 
 vary, inftead of removing the difficulty. It would Hill be in 
 vain to expect that a village or town fhould always contain 
 exactly ten of thefe enlarged families, or even any number 
 of tens ; fo that it would often be requiiite to patch up a 
 tything from the remnants of different towns or villages ; 
 and it would follow that thefe outcafts did not belong to 
 the church in their neighbourhood, but, however difperfed 
 over the country, and intermixed with other parifhes, 
 were united in one congregation, and were provided with a 
 feparate church and minifter of their own. 
 
 The eftablifhment of tythings, hundreds, and fhires, 
 was primarily intended for the mutual defence of the in- 
 habitants, but it was likewife rendered fubfervient to other 
 very falutary purpofes. When the people had been afTem- 
 bled in thofe meetings to engage in a military enterprize, 
 or upon the conclufion of it to divide their booty, they 
 had occalion to hear complaints of the injuries and dif- 
 
 * Blackftonc's Comment, vol. I. Introd. § 4. 
 
 R orders
 
 122 INSTITUTION OF TYTHINGS, Book L 
 
 orders committed among themfelves. Every feudal fupe- 
 rior was the natural judge of his own tenants and vafTals ; 
 but when a difpute had arifen between different allodial 
 proprietors of the fame tything, there was no fingle perfon 
 pofTefTed of fufficient authority to terminate the difference . 
 The parties being independent of each other in point of 
 property, and therefore matters of their own conduct, were 
 under no neceffity, in a matter of that kind, of fubmitting 
 to the orders of any individual. They acted in the fame 
 manner with refpedt. to the exercife of their civil rights, 
 as with relation to peace and war. In both cafes they 
 conlidered themfelves as free men, fubjedt to no restraints, 
 but fuch as arofe from the nature of their confederacy r 
 or were impofed by their common confent. 
 
 The fame motives, however, which induced a village or 
 
 tything to enter into joint meafures for their defence 
 
 againft a foreign enemy, determined them alfo to take 
 
 precautions for compofing animofities 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 interpofed with all their influence to reconcile the 
 
 parties, and to enforce their obfervance of the rules of 
 
 juttice. A judicial power was thus gradually afTumed by 
 
 every tything over the allodial or independent 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 feveral tythings, within the 
 
 bounds of that larger diftricl: ; as the meetings of the fhire 
 
 eftablifhcd a fimilar jurifdiction over the different hundreds 
 
 comprehended in that extenfive territory. Thefe courts 
 
 took cognizance of every caufe, whether civil or criminal; 
 
 and
 
 Chap. VI. HUNDREDS, AND COUNTIES. 123 
 and as they enjoyed the fole jurifdielion, in the firit in- 
 ftance, within the refpecftive boundaries of each, they 
 became naturally fubordinate one to another ; fo that from 
 the deciiion of the ty thing there lay an appeal to the 
 hundred, and the fentences of this latter tribunal were 
 reviewed in the greater meetings of the fliire. 
 
 Thefe courts were held originally by all the allodial 
 proprietors of each particular diftricl: ; and the fame perfons 
 had the fame right of preiiding in their judicial procedure, 
 as when their meetings were called to deliberate upon mili- 
 tary affairs. 
 
 It is probable that every kind of law-fuit was at firft 
 determined in full afTembly, and by a plurality of voices ; 
 but in the larger meetings of the hundred, and of the 
 fhire, it fhould feem that when the authority of thofe tri- 
 bunals had been confirmed by cuftom, and their duty had 
 become fomewhat burdenibme by the increafe of bufmefs, 
 convenience introduced a practice of feledting a certain 
 number of their members, to affift their prefident in the 
 determination of each particular caufe. Hence the origin 
 of juries, the precife date of whofe eftablifhment is uncer- 
 tain, becaufe it probably arofe from no general or public 
 regulation, but from the gradual and almoft imperceptible 
 changes, authorized by common ufage in the feveral dif- 
 tricls of the kingdom. The number of jurymen was for 
 fome time different upon different occaiions; till the advan- 
 tages of an uniform practice produced a general rule, 
 which determined that no lefs than twelve perfons fhould 
 becalled in all ordinary caufes * 
 
 Concerning 
 
 * The cuftom of choofinj twelve men for distributing jufticc, is frequently men- 
 tioned in the Anglo-Saxon laws. Thus, in a law of king Ethclred, it is faiJ, " Et 
 
 R 2 " ut
 
 124 INSTITUTION OF TYTHINGS. Book j. 
 
 Concerning the inftitution of tythings, there is one 
 regulation, connected with the adminiftration 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 refpon- 
 fible for the conduct of one another ; and the fociety, or 
 their leader, might be profecuted, and compelled to make 
 reparation for an injury committed by any individual. 
 
 " ut habeantur conventus in quolibet wapentachio, et exeant feniores duodecim 
 " thani, et prefe£tus cum iis, et jurent fuper fan&uarium quod iis in manus datur, 
 " quod nolent ullum innocentcm accufare, nee aliquem noxium celare." — [Wilkins, 
 p. 117.] In another law, afcribed to the fame king, commonly called the fenatus 
 Lonjiiltum de monticulh Waller, it is enabled, for the mutual benefit of the Engiifh 
 and Welch, that controverfies between them (hall be determined by twelve law-men, 
 the half of whom (hall be Englifhmen, the other half Welchmen. [Wilkins, 
 
 p. 125.] 
 
 Thefe twelve perfons correfpond, it ftiould feem, to the Racimburgl and the Sea- 
 
 I'm':, who under the firft and fecond races of the kings in France affifted in the 
 decifions of the count and of the centenarius. 
 
 It has been fuppofed by fome authors that neither of thefe were upon the footing of 
 modern jurymen, chofen out of the free men of a diftrict for each caufe, but that both, 
 were permanent afleflbrs of the magiftrate and members of the court. See Brady's 
 complete Hift. of Eng.— Hickes's DhT. Epiftol. 
 
 But that either thefe twelve men, or the Racimburgi, or Scabini, were' permanent 
 members of the court, appears improbable, for the following reafons : I. Bccaufe 
 thefe twelve men were chofen among the thanes ; and it is not likely that the fame 
 perfons, of that rank, would fubject themfelves to the drudgery of being conftant 
 afTcilbrs to the magiftrate. 2. The number of Rae'imburgi or Seabini appears to have 
 been varied, according to the importance of the caufes which they decided. This 
 fjppofes a new election in each caufe. 3. If there was a regular bench of afTeffors 
 to the chief magiftrate of a county, it is wonderful that no traces of that inftitution 
 fhould be found at piefent, more efpecially in Scotland, where the county-courts have 
 been continued upon the ancient footing. 
 
 Accordingly Horn, an author who lived in the time of Edward I. fays exprefsly, in 
 mr de Jnjlieesy that king Alfred put to death a number of his judges for deciding 
 caufes without a jury. 
 
 6 If
 
 Chap. VI. HUNDREDS, AND COUNTIES. 125 
 If we look upon a tything as regularly compofed of ten 
 families, this branch of its police will appear in the high eft 
 degree artificial and lingular ; but if we confider that fo- 
 ciety as of the lame extent with a town or village, we 
 fhall find that fuch a regulation is conformable to the 
 general ufage of barbarous nations, and is founded upon 
 their common notions of juftice. 
 
 Among barbarians in all parts of the world, perfons 
 , who belong to the fame family are underftood to enjoy a 
 community of goods, and to be all jointly fubjected 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 diftin- 
 guifhed from the privilege of nfing or pojfejjtng ; and thofe 
 perfons who have acquired the joint pofTeflion of any fub- 
 ject 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 whole fociety. 
 
 After a family has been enlarged, and fubdivided into 
 different branches, their pofTeflions are not upon this ac- 
 count entirely feparated, nor their notions of common 
 property altogether effaced. Though the different families, 
 who are thus formed into a tribe or village, reiide in dif- 
 ferent houfes, their neighbourhood allows them ft ill to 
 maintain a promiicuous intercourfe ; and their fituation 
 difpofes them to act in concert with each other in all their 
 important enr imMent^ and purfuits. As, in their expe- 
 ditions of war and hunting, they go out in a body, fo, 
 
 according
 
 126 INSTITUTION OF TYTHINGS, Book I. 
 
 according to the primitive ftate of agriculture, they labour 
 in the field, and gather in the harveft in common; and 
 what has been acquired by their united exertions, before 
 it is divided among them by content, is naturally conceived 
 to be the joint property of all. 
 
 It is no hardihip, that peribns connected in fo intimate 
 a manner mould be liable for the obligations of one ano- 
 ther; and when an individual has become bound to a 
 ftranger, who cannot eafily know for whofe benefit the 
 debt was incurred, it feems reafonable that the creditors 
 mould be allowed to demand payment from the commu- 
 nity, who alone have accefs to diftinguifh the rights of 
 their particular members. 
 
 But the greater part of the debts contracted in a bar- 
 barous age arife from injuries and hoftilities ; for which it 
 is ulual to make atonement by pecuniary compofitions : and 
 as in fuch cafes it commonly happens, either that the 
 offence was originally committed by a whole village, or, if 
 it arofe from a lingle individual, that the quarrel was 
 afterwards adopted and profecuted by the other members 
 of the community, this appears a fufficient reafon for 
 fubjecting them to a fhare of the punifhment. 
 
 Thus, by the general cuftom of rude nations, the ven- 
 geance of the injured party for murder and other atro- 
 cious 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 general cuftom, makes a con- 
 fide able part of the hiftory of mankind in the early periods 
 of fociety. Traces of this primitive law o\f nations may 
 be dhlovered even in fome civilized countries; where, 
 
 7 upon
 
 Chap. VI. HUNDREDS, AND COUNTIES. 127 
 upon account of enormous offences, the criminal, together 
 With his innocent children, and other relations, have been 
 condemned to one common punifhment *. 
 
 Among the Jews, when a perfon was found murdered 
 in the neighbourhood of a city, and the murderer was 
 unknown, it feems to have been thought that the punifh- 
 ment might with juftice be extended to all the inhabitants ; 
 who are, upon that account, directed to perform an expi- 
 atory facrifice. " And all the elders of the city that is 
 " next unto the flain man, mail warn their hands over the 
 " heifer that is beheaded in the valley. And they Hi all 
 " anfwer and fay, Our hands have not ihed this blood, 
 " neither have our eyes feen it. Be merciful, O Lord, 
 " unto thy people Ifrael, whom thou haft redeemed, and 
 " lay not innocent blood unto thy people IfraePs charge. 
 " And the blood fhall be forgiven them t." 
 
 When it is cuftomary to demand fatisf action from a 
 whole village for the higheft perfonal injuries committed 
 by an individual, it cannot appear furprifmg that the 
 fame privilege mould be claimed upon account of the ordi- 
 nary violations of property. 
 
 I am affured, from the raoft refpectable authority, that, 
 in the villages belonging to the Highlands of Scotland, a 
 rule of this kind has been immemorially eftablifhed. The 
 ftealing of cattle was formerly the only fpecies of theft 
 from which the inhabitants of that country could fuffer 
 any great prejudice ; and when ftolen cattle could be traced 
 within the diftrict of any particular village, the inhabitants 
 were liable to repair the damage, unlefs they could point 
 
 * See inftances of this quoted by the acute author of The Hiftorical Law 
 Tratfs. 
 
 f Deutcron. chap. xxi. 
 
 out
 
 128 INSTITUTION OF TYTHINGS, Book I. 
 out the track of the cattle, pairing again without their ter- 
 ritories. This law, which was founded merely upon long 
 ufage, remained in three at leail as far down as the begin- 
 ing of the prefent century **. 
 
 It was a cuilom, we are told, among the ancient Irifh, 
 " that the head of every /apt, and the chief of every kin- 
 u dred, or family, ihould be anfwerable and bound to 
 u bring forth every one of that fept, and kindred under ir, 
 " at all times, to be juftifled, when he fhould be required, 
 fc< or charged with any trealbn, felony, or other heinous 
 crime K m The Irilli law, in this as well as in other parti- 
 culars, was probably analogous to that of the other Celtic 
 nations. 
 
 From the code of Gentoo laws publiflied in 1776, it 
 •appears that a fimilar regulation has been introduced 
 among the ancient inhabitants of Indoftan. If the foot- 
 lteps of a thief have been traced, or if ftolen goods are 
 found, within a certain diftance from any town, the thief 
 is prefumed to be concealed in it. — And whenever a rob- 
 bery or theft is committed in the neighbourhood of any 
 town or city, the bead-perfon of that town or city is bound 
 to make up the lofs J. 
 
 Upon fome parts of the coaft of Guinea, the villages or 
 towns, it Ihould feem, are liable for the obligations of 
 every fort contracted by any of their members ; for we 
 are informed, that when a perfon in that country neglects 
 to pav a debt, the creditor is under no necefhty of arreiling 
 the real debtor, but, in the diltrict, where he rciides, has 
 
 * It does not feem to be fuppofed by hiftorians, that the Saxon regulations con- 
 cerning tythings were extended to a country To jnacceflible as the Highlands of 
 Scotland. 
 
 f Spencer's View of the State of Ireland. 
 
 X Code of Gentoo laws, ch. 17. fc£t. 4. 6. 
 
 the
 
 Chap. VI. HUNDREDS, AND COUNTIES. 129 
 
 the liberty of feizing, at pleafure, fuch a quantity of goods 
 as will fatisfy the demand, leaving the fufferers to indem- 
 nify themfelves in the beft manner they can *. 
 
 About the middle of the thirteenth century, it appears 
 that the ftates of Germany had very generally adopted a 
 fimilar practice ; which is mentioned by hiftorians as a 
 proof of uncommon rudenefs and barbarifm t. 
 
 The inhabitants of the fame foreign country happening, 
 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 debts contracted by his countrymen. In a treaty 
 between Edward the Second and Alphonfo king of the 
 two Caftiles, it is agreed, that the merchants of Bilboa, 
 and the other towns of Bifcay, mail not for the future be 
 arretted, nor have their goods diftrained, for the debts of 
 any Spaniard, for whom they have not become perfonally 
 bound X. The fmall number of Spanifh merchants refiding 
 in London, and the diftance of their native country, made 
 
 * Hift. Gen. des Voyages. Mod. Univ. Hift. 
 
 f The following paffage is quoted from Pfefel's Abrege Chron. de THiftoire d'AUe- 
 magne. " Je ne puis patter fous filence une autre nouveaute, qui prouve, on ne peut 
 pas mieux, et le malheur de ces terns, et la barbarie des maeurs du fiecle. C'eft le 
 droit d'Otage. [Jus obftagiorum] Rien de plus bizarre que ce droit. Un fouabe, un 
 Bourgeois d'Ulm, lefe par un Liegeois, ne fe donnoit pas la peine de pourfuivre fa 
 partie, devant fa juftice ordinaire ; il fe contentoit de mettre la main fur le premier 
 Liegeois qu'il pouvoit rencontrer, et le conftituoit prifonnicr a Ulm, c'eft la qu'il faifoit 
 juger fa caufe, et VOtage n'etoit point relach-i que la fcntence ne fut executee. L'hif- 
 toire et les Archives nous fourniflent mille exemples de ces proces finguliers : et 
 Lehmann rappcrte que les citoyens de Spire ont fait declarer par des lettres patentes, 
 qu'ils n'etoient point fujets de leur Eveque, et que par confequent Tonne pouvoit les 
 arreter legitemement pour les caufes que regardoient les fujets de ce prince. 
 
 t Anderfon's Hiilory of Commerce. 
 
 S them
 
 -£30 INSTITUTION OF TYTHINGS, Book I. 
 them appear as much connected as if they had been mem- 
 bers of a iingle rude village or tribe. 
 
 This noted regulation concerning the Saxon ty things is 
 therefore to be regarded as the remains of extreme firripli- 
 city and barbarifm, rather than the effect: of uncommon 
 refinement or policy ; and in this view, it may be obferved 
 that, in confequence of lbme improvement in the manners 
 of the people, the original obligation impofed upon eve] / 
 ty thing, to repair the injuries committed by any of its mem- 
 bers, was, in a period fubiequent to that which we arc at 
 prefent examining, fubjected to certain limitations. By a 
 law which has been afcribed to William the Conqueror, but 
 which is probably of an earlier date, we find it enacted, that, 
 if a crime is committed by any member of a decennary, 
 who efcapes from juilice, his tythingman, with two others 
 of the fame tything, together with the refpective tything- 
 men, and two others, out of the three neighbouring ty th- 
 ings, lhall afTemble to examine the ftate of the fact, and if 
 the tything to which the criminal belongs is purged by the 
 oath of thefe twelve perfons, it fhall be freed from the 
 obligation to pay the damage *. The progrefs of govern- 
 ment, by enlarging the general intercourfe of fociety, con- 
 tributed to diminifh the peculiar connexion among the 
 inhabitants of the fame village, and made it appear an 
 intolerable hardfhip, that they mould, without dirtinclion, 
 be accountable for the mifdeeds of one another. 
 
 Befule the two branches of bufinefs which I have 
 mentioned, the defence of the country and the decifion of 
 law-fuits, that were canvaffed in the Saxon tythings, hun- 
 
 • See the laws collected by Roger dc Hovcden, and faid by this author to have 
 been made by William the conqueror in the 4th year of his reign, with the advice of 
 his barons, nobles, wifc men, 6Vc. 
 
 dredsi
 
 Chap. VI; HUNDREDS, AND COUNTIES. j 3 i 
 
 dreds, and mires, thofe meetings were accuftomed to deli- 
 berate upon matters of ftill greater importance. They 
 received complaints concerning fuch abufes in adminiftra- 
 tion, or grievances, as had occurred within their feveral 
 diftricts, and by introducing new regulations endeavoured 
 to apply a proper remedy. Thus the heads of families or 
 independent proprietors of every village, or tything, exer- 
 cifed a legiflative power within their own liberties, but 
 were liable to be controuled, in this refpect, by the meet- 
 ings of the hundred, which enjoyed the fame power in a 
 larger territory ; and both of thefe were fubordinate to the 
 meetings of the mire, which pofTefTed a legiflative autho- 
 rity over all the hundreds of that extenfive divifion. How 
 the meetings of the fhire were liable to be controuled by a 
 ftill greater afTembly, I mall now proceed to enquire. 
 
 S2 CHAP,
 
 jiz OF THE WITTENAGEMOTE. Book L 
 
 CHAP. VII. 
 
 Of the Wittenagemote. 
 
 BY the gradual extenfion of intercourfe between the 
 difFerent families or tribes of the Anglo-Saxons, and 
 by the advancement of their political union, the inhabi- 
 tants of larger territories were led to afTemble for the regu- 
 lation of their public concerns. As the freemen or allodial 
 proprietors of a tything, of a hundred, and of a mire, de- 
 termined the common affairs of their feveral diftricts, and 
 were convened for that purpofe by the tything-man, the 
 hundreder, and the alderman ; fo the union of people be- 
 longing to difFerent mires produced a greater afTembly, 
 confiiting of all the allodial proprietors of a kingdom, 
 and fummoned by the king, the great military leader, and 
 chief magiftrate of the community. This national coun- 
 cil received the appellation of the mickle-mote, or Witte- 
 nag emote. 
 
 During the continuance of the Heptarchy, each of the 
 Saxon kingdoms had its own Wittenagemote ; and there 
 can be no doubt that thofe national councils, though fome- 
 times they might ac~t in concert, were independent of one 
 another. But when all the dominions of the Anglo-Saxons 
 were reduced under one fovereign, the Wittenagemotes of 
 each particular kingdom were difTolved, and there was 
 formed a greater afTembly of the fame nature, whofe au- 
 thority extended over the whole Englifh nation. The 
 circumftances attending this important revolution are loft 
 a in
 
 Chap. VII. OF THE WITTENAGEMOTE. 133 
 in obfcurity ; and we have no means of difcovering with 
 certainty, whether it was produced by the mere influence 
 of cuftom, or by an exprefs regulation. It is probable that 
 Avhen Egbert had fubdued the different flates of the Hep- 
 tarchy, the members of every feparate Wittenagemotc 
 were invited to that great council of the monarchy which 
 was then eftablifhed ; and that, in confequence of this, 
 thev would icarcelv think it worth while to continue their 
 attendance in thofe inferior meetings with which they had 
 formerly been connected. 
 
 Of the particular clafs or description of perfons who 
 compoled the Saxon Wittenagemotes, either in the re- 
 fpective kingdoms of the Heptarchy, or in the monarchy 
 which was formed from the union of thefe, the hiftorians of 
 that period have given us little or no direct information. 
 But, from a variety of circumftances, it appears highly 
 probable that thofe ancient afTemblies were cempofed of all 
 the members of the community who enjoyed landed eflates 
 in full property ; that is, of all thofe who had the appella- 
 tion of the Greater Thanes. 
 
 1. From the flate of the country after the Saxon con- 
 quer!:, thefe perfons, being independent with refpect to their 
 pofTeflions, were matters of their own conduct, and were 
 under no neceflity of adopting public meamres to which 
 they had not confented, or upon which they had not at 
 leaft had an opportunity of deliberating and giving their 
 fuffrage. Without their advice and concurrence, therefore, 
 the king could feldom adventure to tranfact any important 
 national bufinefs ; and from the frequent practice of con- 
 fulting them, they were gradually formed into a regular 
 afTembly, and became an eftabliihed branch of the confti- 
 
 tution.
 
 i 3 4 OF THE WITT EN AGE MOTE. Book I. 
 
 tution. The reft of the inhabitants were either Vqffah, 
 vhofe benefices, if not held precarioufly, were fecured to 
 them only for a limited period ; or pea/ants, whole condi- 
 tion was yet more dependent and fervile. That the king 
 ihould find it necelTary or expedient to furamon either of 
 thele claffes of people to his great council, cannot eafily be 
 conceived. Their fupport and amftance might be expe&ed, 
 of courfe, in the execution of every meafure which had 
 been approved by their fuperiors ; and therefore the voice 
 of the allodial proprietors of land might, on every public 
 emergency, be regarded as the voice of the nation. 
 
 2. The ufual defignations given, by ancient authors, to 
 thofe who fat in the Saxon Wittenagemote, feem perfectly 
 to coincide with this idea of its conftituent members. The 
 perfons prelent in that affembly, when they happen to be 
 particularly fpecified, are commonly faid to be the biJJoops 
 and abbots, together with the aldermen, the chiefs, the 
 nobles, or the leading men of the kingdom *•. Thefe ex- 
 preflions are peculiarly applicable to the allodial proprietors 
 of land. It is to be obferved, that in thofe times there was 
 no fuch perfonal wealth as could create any authority; 
 neither was there any diftinclion between what is now 
 called a nobleman and a gentleman ; but every individual, 
 pofTefTed of landed property, was a fort of leader, and main- 
 tained a degree of influence and rank correfponding to his 
 fortune. The dignified clergy were diftinguiihed by their 
 profefiion, as the aldermen, or governors of iliires, were by 
 their office ; for which reafon, in fpeaking of the perfons 
 who compofed the Wittenagemote, thofe two claffes of 
 
 * Principcs, optimatcs, magnates, procercs, kc. See Spclman on Parliaments— 
 Dr. Brady, Anfwer to Petyt — and the ferics of great councils before the conqueft. 
 TjrrrcH'r Biblw i : ti«:a, Dial. 6« 
 
 men
 
 Chap. VII. OF THE WITTE NAGEMOTE. 135 
 
 men are frequently mentioned in particular, while the other 
 proprietors of land are only pointed out by a general appel- 
 lation expreffive of their condition. 
 
 3. The fame concluflon receives an additional fupport 
 from the obvious analogy between the Wittenagemote, 
 and the inferior meetings of the tythings, hundreds, and 
 fhires. Thefe inferior meetings were plainly of the fame 
 nature with the great national council. The former deli- 
 berated upon the public affairs of the feveral diftricts to 
 which they belonged : the latter, upon the public affairs of 
 the whole nation. Both of thefe aopear to have arifen 
 from the fame circumftances ; and probably the oil e was 
 introduced in imitation of the other. It was becaufe the 
 chief magistrate of every inferior diftricl had not, of him- 
 felf, fufficient authority to execute public meafures, that 
 he was accuitomed to call meetings of thofe inhabitants 
 whofe concurrence he thought was expedient ; and it was 
 upon the fame account that the king was accuftomed to 
 afTemble the great national council. There is great reafon 
 to believe, therefore, that all thefe meetings were confti- 
 tuted in the fame manner ; and, as it feems to be univerfally 
 agreed, that the court of every tything, hundred, and mire, 
 was compofed of the refpective proprietors of land in thofe 
 diftri£h ; it can hardly be doubted that the conftituent 
 Members of the Wittenagemote were the people of a fimi- 
 lar defcription throughout the whole kingdom. 
 
 Laflly ; The probability of this opinion is farther en- 
 creafed, when we examine the ftate of the national councils, 
 which exifted about the fame time in the other European 
 kingdoms. In all thofe kingdoms, the fovereign was under 
 the neceiTity of tranfacling the more important parts of the 
 public bufmefs with the concurrence of a great proportion 
 1 of
 
 i 3 6 OF THE WITTENAGEMOTE. Book I 
 of his fubjects ; and the councils which he convened for 
 this purpofe appear, in every country, to have beencompofed 
 of that part of the people who enjoyed a degree of influence 
 over the reft of the community. Thus in France, the 
 country of modern Europe in which the greateft number 
 of particulars concerning the primitive government has 
 been tranfmitted to us, the fupreme concerns of the king- 
 dom fell under the deliberations of the afTemblies of the 
 field of march ; fo called from the time of their principal 
 meetings. From the accounts delivered by fome of the 
 French writers, thefe councils appear to have been com- 
 pofed of all the free men of the nation* According to 
 others, they confifted of the leading men or nobility*. 
 Thefe accounts are, at bottom, not very different. In the 
 early periods of the French monarchy, no perfon could be 
 denominated free, unlefs he had the independent property 
 of land ; and every landed proprietor was, in reality, a fort 
 of chief or nobleman t. 
 
 In confequence of the difputes between the king and the 
 people, that took place in England after the acceflion of 
 the houfe of Stewart, there arofe two political parties ; the 
 followers of which have maintained very oppofite opinions 
 concerning the conftituent members of the Anglo-Saxon 
 Wittenagemote. The fupporters of the prerogative, in 
 order to lhew that the primitive government of England 
 was an abfolute monarchy, and that the privileges enjoyed 
 
 * See Obfervations fur l'Hift.' dc France par M. l'Abbe Mably— and Memoires 
 Hiftoriques du Gouvernement de France, par M. le Compte de Boulainvilliers. 
 
 t Hinc haud aegre colligere eft, unde noftri appellarent parliamenta procerum totius 
 regni conventus. — Du Cange v. Parliamentum. The Salic laws are faid to have been 
 made with the confent of the proceres or the optimates.— And even charters from the 
 crown ufually bear, that they were granted cum confenfu fidelium nojlrunu, — or /'/; nojlra 
 ft procerum prtfentia. Mably, ibid. 
 
 by
 
 Chap. VII. OF THE WITTEN AGEMOTE. 137 
 by the people have all flowed from the voluntary grants 
 and concerlions of the fovereign, were led to afTert that the 
 original members of the Wittenagemote were perfons un- 
 der the king's immediate influence and direction ; from 
 which it was concluded, that, fo far from being intended to 
 controul the exercile of his power, this council was called 
 of his own free choice, for the purpofe merely of giving 
 advice, and might of confequence be laid aiide 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 members of the 
 Wittenagemote, who received the appellation of wites or 
 iiife men, were the lawyers or judges of the kingdom, 
 who fat in the privy-council, and were likewife in the ap- 
 pointment of the fovereign *. 
 
 Thofe writers, on the contrary, who defended the rights 
 of the people, appear, from their eagernefs in combating 
 this opinion, to have been betrayed into the oppofite ex- 
 treme. In their endeavours to prove the independent au- 
 thority of the ancient national council, they were induced 
 ' to believe, that, from the beginning, it had been modelled 
 upon the fame plan as at prefent ; and that it was origi- 
 nally compofed of the nobility, the knights of mires, and 
 the reprefentatives of boroughs t. 
 
 It requires no great fagacity or attention, at this day, to 
 difcover that both of thefe opinions are equally without 
 foundation. They maybe regarded as the delufions of pre- 
 polfemon and prejudice, propagated by political zeal, and 
 
 * Hume's Hift. of England, Appendix to Anglo-Saxon period. 
 
 t Sir Robert Atkyns' Power, Jurifdiclion, and Privileges of Parliament — Pctyt, 
 Rights of the Commons afTerted. — Jani Anglorum facies nova. — Argumentum Anti- 
 normanicum. — Tyrrel's Bibliothcca Politica. — Lyttelton's Hift. 
 
 T nouriihed
 
 138 OF THE WITTENAGEMOTE. Book I. 
 
 nourifhed with the fondnefs and credulity of party attach- 
 ment. Nothing can be more improbable, or even ridicu- 
 lous, than to fuppofe that the lawyers or judges of Eng- 
 land were, immediately after the fettlement of the Anglo- 
 Saxons, a body of men lb confiderable as to compofe the 
 principal part of the Wittenagemote, and, from a title pecu- 
 liar to themfelves, to fix the general denomination of that 
 great afTembly. In a very rude age, the bufinefs of pleading 
 caufes is never the object of a feparate profeflion ; and the 
 deciding of law-fuits does not form a characteriftical dis- 
 tinction in the chiefs or leading men, who are occafionally 
 employed in that manner. We may as well fuppofe that, 
 in the period of Englifh hiftory now under conlideration, 
 the Anglo-Saxon wites, or wife men, were the phyficians, the 
 furgeons, and apothecaries, or the mathematicians, the chy- 
 mifts, and aftronomers of the country, as that they were 
 the retainers of the law. We have furely no reafon to be- 
 lieve that the latter were, by their employment, more dif- 
 tinguifhed from the reft of the community than the former. 
 Befides, if the wites are underftood to be judges and 
 lawyers, it will follow, that the ancient national afTembly 
 was often compofed of that clafs of men exclufive of all 
 others ; for, in ancient records, it is frequently faid, that 
 laws were made, or public bufinefs was tranfacted, in a 
 council of all the wites of the kingdom. But it is univer- 
 fally admitted, that the bilhops and abbots, as well as the 
 aldermen or governors of ihires, were members of the 
 Wittenagemote ; from which it is a natural inference, that 
 thefe two fets of people were comprehended under the 
 general appellation of wites. 
 
 This may eafily be explained. The term wite fignifies, 
 primarily, a man of valour, or military prowefs ; and hence 
 
 a man
 
 Chap. VII. OF THE WI TTE NAGEMOTE. t 39 
 a man of high rank, a nobleman *. It has been ufed, in a 
 fecondary fenfe, to denote a wife man, from the uiual con- 
 nection, efpecially in a rude age, between military fkill 
 and experience or knowledge ; in the fame manner as an 
 old man, on grey-headed man, is, according to the idiom of 
 many languages, employed to fignify a ruler or governor. 
 As far as any concluiion, therefore, can be drawn from the 
 appellation of Wittenagemote, or council of the wites, it is 
 likely that this national afTembly comprehended neither 
 judges nor lawyers, confidered in that capacity, but that 
 it was compofed of all the leading men, or proprietors of 
 landed eftates ; in which number the dignified clergy, and 
 the governors of fhires, if not particularly diitinguifhed, 
 were always underftood to be included t. 
 
 The other opinion is not more confiftent with the Hate 
 of the country, and the condition of its inhabitants. It 
 fuppofes that in England, foon after the fettlement of the 
 Anglo-Saxons, the lower ranks of men were fo independent 
 of their fuperiors, as to form a feparate branch of the 
 community, inverted with extenfive political privileges. 
 This opinion fuppofes, in particular, that the mercantile 
 part of the inhabitants were become a diftincl order of the 
 people, and had rifen to fuch opulence and authority as 
 entitled them to claim a fhare in the conduct of national 
 meafures. There is not, however, the leafl fhadow of pro- 
 bability in this iuppofition. Whatever improvements in 
 trade and manufactures had been made in Britain, while 
 it remained under the provincial government of Rome, 
 
 * Somner's Sax. Diet. v. Wlta. 
 
 t By a law of king Ina, it is ena&ed, thit if any perfon fought in the houfe of an 
 alderman, or of any other illujlrious wite, he fhould pay a fine of fixty fhillings. See 
 Willcins' Anglo-Saxonica, Leges Inae, c. 6. 
 
 T 2 thefe
 
 140 OF THE WITTENAGEMOTE. Book L 
 thefe were almoft entirely deftroyed, by the convnlfions 
 which attended the Saxon conqueft, and the fubjection 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, were reduced to fuch as procure the mere 
 neceiiaries, or a few of the more fimple conveniencies of 
 life; and thefe arts were hardly the objects of a feparate 
 profeflion, but were practifed occaflonally by the inferior 
 and fervile part of the inhabitants. How is it poffible to 
 conceive, in fuch a ftate of manufactures, that the trading, 
 intereft would be enabled to affume the privilege of fend- 
 ing representatives to the great council of the nation ? Even 
 in thofe European ftates, whofe advancement in arts was 
 much earlier than that of the Anglo-Saxons, the* formation 
 of the trading towns into corporations was long pofterior 
 to the period we are now examining ; yet this event rmift 
 have preceded their acting in a political capacity, and,- 
 confequently, their being reprefented in the national af- 
 fembly. 
 
 But, independent of this consideration, 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 mil more decifive 
 and fatisfactory. If the reprcfentatives of boroughs, and 
 the knights of fhires, were conltituent members of the 
 ancient Wittenagemote, it is inconceivable that no traces 
 of their exiltence mould have been preferved in the an- 
 nals of the Saxon princes. From the numerous meetings 
 of that aiTembly, which are mentioned in many authen- 
 tic records, and of which accounts are given by hiftorians, 
 who lived either in that period, or not long after it, a va- 
 riety of exprefiions mult have occurred, by which the fact 
 
 might
 
 Chap. VII. OF THE WITTE NAGEMOTE. 141 
 
 might be fully afcertained. Had it been a common prac- 
 tice for the towns and fhires to choofe reprefentatives in 
 the national affembly, is it poflible to believe that this 
 practice would never once have been alluded to upon 
 any occafion whatever ; or that, when mention is made Co 
 frequently, of the bifhops and other dignified clergy, of 
 the aldermen, of the wites, or leading men, who fat in 
 this meeting, another part of its members, confifting of a 
 clafs of people totally different from the former, would in 
 no cafe, either from accident or delign, have been pointed 
 out in clear and unequivocal terms ? It cannot be difputed, 
 however, that, notwithflanding the moft diligent fearch 
 into our ancient hiflories and records, by men of great 
 induftry and learning, and eager to prove their hypothefis, 
 not a fingle unambiguous expreffion, to that effect, has 
 ever been found : and this obfervation is not limited to 
 the time of the Heptarchy, but may be extended from 
 the fettlement of the Anglo-Saxons to the Norman 
 conquefL 
 
 The attempts to prove that there were reprefentatives 
 of boroughs and fhires in the Wittenagemote confift, for 
 the moft part, in giving a forced interpretation to certain, 
 vague and general phrafes, which happen to be employed 
 by ancient authors, concerning the members of that aflem- 
 bly. The word alderman, for example, denoting a rider , 
 maybe extended to the ruler, or chief magiftrate, of a town, 
 as well as of a fhire ; and therefore it is contended, that 
 when the aldermen are mentioned in old records, as a con- 
 itituent part of the national council, we are to underitand 
 the reprefentatives of boroughs, as well as the governors of 
 mires. It is, in like manner, afferted that, by chiefs, or 
 leading men, and by wites, or wife men, the perfons chofen 
 
 x to
 
 i 4 2 OF THE WiTTENAGEMOTE. Book I. 
 
 to reprefent the commons are as properly defcribed, as the 
 nobility, or proprietors of land # f 
 
 According to this reafoning, the reprefentatives of the 
 commons, in every fhape, and of every defcription, as they 
 
 (1 at preicni, though not feparately mentioned, are 
 included in almoft every designation, applied to the ancient 
 members of the Wittenagemote. How far this mode of 
 argument may be extended it is difficult to fay. The alder- 
 ,iicn and the zvites have, each of them, the capacity of 
 lord Peter's bread, containing the quintefience of beef, 
 mutton, veal, venifon, partridge, plum-pudding, and 
 cuftard. 
 
 In the accounts given by ancient authors of thofe that 
 were called to the national council, mention is made, in 
 ibme cafes, not only of the bifliops, abbots, aldermen, and 
 chiefs, but alfo of the people ; and the perfons prefent are 
 fometimes diftinguifhed by the appellation of a great mul- 
 titude t. 
 
 But 
 
 * Tyrrell's Bibliotheca Politica, Dial. 6. — It feems to be the opinion of this 
 author, however, that the exiftence of the knights of (hires, in the Saxon Witten- 
 agemote, is more doubtful than that of the reprefentatives of boroughs. 
 
 f Thus in the record of a Wittenagemote held by Ethelbert in 605, it is faid, 
 u Convocato igttur communi concilia tarn cleri quam popu/i." 
 
 A general council is faid to have been held by Ethel wolf, in 855, Prafcnubus et 
 
 fubferibentibus Archiepifcopis et Epifcopis Anglias univerfts, nee non Beorredo rege Afercia, 
 
 Edmundo Eajl-Anglorum regr, Abbatum et Abbatiff'arum, Ducum, Cvnitum, Procerumque 
 
 toti us terra, alioru?nque fide Hum infinite! multitudine, qui omnes regium chirographic 
 
 laudaverunt, dignitatts verofua nomina fubferipferunt. 
 
 Canute, in the fifth year of his reign, is faid to have held a great council, of his 
 archbifhops, dukes, earls, abbots, cum quamplurimm gregariis mlitibus, ac cum populi 
 r/iultitudine ccpiofa. 
 
 ^ In fome other inftances, expreflions of a fimilar nature occur ; fuch as vulgi confen- 
 fus, and populo audicnte et videntc. [Sec the authors above quoted— as alfo Gurdon's 
 
 Hiftory
 
 Chap. VII. OF THE WITTEN A GEMOTE. 143 
 But it cannot efcape obfervation, that if this proves any- 
 thing, it will prove too much : it will prove that all the 
 inhabitants, even thofc of the loweft rank, inftead of 
 fending reprefentatives, were perfonally allowed to vote 
 in the national council. By the appellation of the people 
 it appears that, on fome occafions, the lay-nobles are 
 under flood, in oppofition to the dignified clergy ; and on 
 others, the ordinary proprietors of land, in oppofition to 
 thofe of diftinguifhed opulence. There is, at the fame 
 time, good reafon to believe, that the multitude, faid to 
 have been prefent at fome of thofe meetings, was partly 
 compofed of mere fpedtators, who might pofliblv, by 
 their acclamations, teftify their approbation of the mea- 
 fures prc^ofed. 
 
 There is produced an inftance of a Wittenagemote, held 
 by one of the kings of Mercia, in the year 811, in which 
 a royal charter is faid to have been figned before " the 
 " Mercian chiefs, bifhops, leaders, aldermen, procurator s y 
 " 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 Wittenagemote had 
 
 Hiftory of the Parliament. ] In many of thefe expreffions a diftinction is clearly 
 pointed out between the members of the meeting and the inferior people that were 
 merely fpedtators. It ought alfo to be remembered, that the greaiefl number of thofe 
 general phrafes, quoted for proving that the commons were reprefented in the Wit- 
 tenagemote, are ufed only by writers after the Norman conqueft ; who, in translating 
 Saxon laws, or in fpeaking of Saxon ufages, may be fuppofed to accommodate their 
 language to the ideas prevalent in their own times. 
 
 * Merclorum Optimates, Epifcopos, Principes, Ccviites, Procur atores, ?neofque pro- 
 pinquoSy nee non Cuthredum regem Cuntuariorum, atque Sutbr^lum regem Orient. Saxon, 
 cum omnibus qui t>jles nojlris fynodalibus ionciliabulu aderar.t. [Annals of Winchel- 
 comb.] 
 
 4 immemorial! y
 
 144 OF THE WITTENAGEMOTE. Book I. 
 immemorially the privilege of appointing any perfon to 
 act for them in their ab fence, it has been fuppofed, with 
 great probability, that the procurators here mentioned 
 were the proxies of abfent nobles. In fupport of this 
 conjecture, it is obferved, that they are placed next in order 
 to the nobles, and immediately before the king's rela- 
 tions *. 
 
 But although there is no ground for believing that the 
 reprefentatives of the commons were ever admitted into 
 the Wittenagemote, there can be as little room to doubt 
 that, when the different Anglo-Saxon kingdoms were firft 
 united under one monarch, it compofed a very numerous 
 affembly. As, upon the fettlement of the Saxons in 
 Britain, few perfons were in a condition to occupy large 
 eftates, the number of allodial proprietors was propor- 
 tionably encreafed. It is probable that the eftates of the 
 greater part of individuals extended to no more than a 
 hide of land, or what could be cultivated by a fingle plough, 
 and that this property conftituted the primitive qualifica- 
 tion for voting in the feveral Wittenagemotes of the Hep- 
 tarchy. We hear of no particular limitation in this re- 
 fpect, 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 originally confined to 
 fuch as poflefled forty hides of land ; a property of great 
 extent, which few individuals, it is natural to fuppofe, 
 could have an opportunity of acquiring ; whence it feems 
 to be inferred, that a fmall part only of the landed gentry 
 
 * Gurdon's Hiftory of the Parliament. — In a charter of Athclftan, the procura- 
 tors arc alfo mentioned. But this charter was not granted in the Wittenagemote. 
 [Ibid.J 
 
 were
 
 Chap. VII. OF THE WITTEN AGEMOTE. 14; 
 were admitted into the councils of the lbvereign ::: *. This 
 opinion is founded upon a paflage in the regifter of Ely, 
 which mentions a diltinclion in point of rank, enjoyed by 
 fuch of the nobles as pofTefTed eftates amounting to fort) 
 hides of land. But this paflage refers to the ilate of the 
 kingdom in the reign of Edward the confefTor, when pro- 
 perty had been fubjected to the molt important revolu- 
 tions, and government had widely deviated from its ori- 
 ginal inftitution. No inference can thence be drawn, con- 
 cerning the primitive conftitution of the national council ; 
 which muff have arifen from the ftate of the inhabitants at 
 the time when it was framed. How far the authority above 
 mentioned is fufficient to juftify that conclufion, with re- 
 fpect to the later periods of the Anglo-Saxon government, 
 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 ex- 
 cluded from this afTembly, were either the flaves, or the 
 tenants and vafTals of thofe who fat in it. The former 
 were thus placed under the protection of the latter. Men 
 of inferior rank, though not formally reprefented in the 
 national council, enjoyed, therefore, a degree of fecurity 
 from the influence of their mailer or fuperior, who had an 
 interefl to defend them from every injuitice but his own, 
 and whofe jealoufy was ever watchful to guard them from 
 any oppreflion of the fovereign. 
 
 The pozvers exercifed by the Saxon Wittenagemote were 
 fuch as might be expected from the independent fituation, 
 
 * Dugdalc's preface to his Baronage. Hume's Hid. of England, appenlix to Anglo- 
 Saxon period. 
 
 U and
 
 146 Ob THE WITTENAGEMOTE. Book I. 
 
 and the opulence of its members. It pofTefTed a fimilar 
 authority over the whole kingdom, to that of any tyth- 
 ing, hundred or fhire, over its own fubordinate divifion. 
 In general, the Wittenagemote feems to have taken under 
 its cognizance all thofe branches of government, which 
 were of lufficient importance to merit its attention, and 
 wlkich, at the lame time, could be directed, in confiftency 
 with the delays arifing from the deliberations of a nume- 
 rous afTembly. 
 
 i. It exercifed, firft of all, trie power of providing for 
 the defence of the kingdom, and of determining the public 
 military operations*. This was, in all probability, the 
 primary object in calling that afTembly ; and for which, 
 according to the moil ancient cuitom, it was regularly held 
 twice in the year ; in the fpring when the feed- time was 
 over, to relblve upon fuch expeditions as were thought 
 expedient \ and, in the autumn, before the harveft began, 
 to divide the plunder. A people fo rude as the early 
 Saxons had little other bufinefs of importance but what 
 confifted in the fowing and reaping of their grain; and 
 were generally difpofed to employ the greater!: part of the 
 fummer, either in private rapine, or in hoftilities againif. a 
 foreign enemy. In the other kingdoms of Europe, the fame 
 leafons were obferved, for the meetings of the national 
 council. We arc informed that, in France, the vernal 
 meetings were originally in the beginning of March; but 
 that afterwards, from greater attention, it fhould fecm, to 
 the cares of hufbandry, they were delayed till the firft 
 of May t. 
 
 * Seldcn's Notes on Gov. of England, collected by Nath. Bacon, part i. chap. 20. 
 SUld the authorities referred to. 
 
 } I his change is faid to have been made about the beginning of the fecond race 
 he French kings. 
 
 4 It
 
 Chap. VII. OF THE WITTENAGEMOTE, 147 
 
 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 vallate of the 
 crown, they rauft have been bound, when called upon, 
 to attend the fovereign in war, and confequently their con- 
 fent would not have been requiiite in undertaking any 
 military enterprize. 
 
 The fame authority, by which military enterprizes were 
 determined, made likewife a provifion 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 proportioned to the extent of his property ; it 
 was a general law in the Saxon government, that the pro- 
 prietors of land fliould be rated, for military fervice, ac- 
 cording to the number of hides which they pofTefTed ; and 
 if any perfon refufed to contribute his proportion, he was 
 liable to forfeit his pofTeflions, and to be deprived of the 
 public protection. 
 
 The erecting and repairing forts and caflles, as a de- 
 fence againft the fudden incudions of an enemy, and the 
 maintaining a free communication, by roads and bridges, 
 between the different parts of the kingdom, were objects 
 of police which, in the fame view, attracted the notice of 
 the VVittenagemote, and for which individuals were afTefTed 
 in proportion to their wealth. The magnificent works of 
 this nature, which were executed by the Romans, in all 
 the provinces of their empire, contributed much to faci- 
 litate the progrefs of their arms, and to eltablifh their 
 dominion over the conquered people. From their example, 
 it is likely that the Saxons, in Britain, as well as the other 
 
 U 2 nations,
 
 148 OF THE WITTENAGEMOTE. Book I. 
 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 
 affembled, and when they had fettled every point relating 
 to their martial operations, their attention was frequently 
 turned to other objects of national concern. Whatever 
 inconveniencies had been felt from the manner of con- 
 dueling public bufinefs, whatever abufes had been com- 
 mitted in the adminiftration of government ; theie were 
 canvafTed ; and regulations were made for preventing the 
 like evils for the future. It is not difputed that the Wit- 
 tenagemote exercifed a legiflative 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 impofition 
 of taxes, the molt important appendage of legill ation, was 
 likewife undoubtedly afTumed by this great afTembly, fo far 
 as taxes exifted in that early period ; but thefe were, in a 
 great meafure unknown ; the ordinary expence of govern- 
 ment being defrayed out of the private eftate of the king, 
 and from the various emoluments annexed to the regal 
 dignity. 
 
 3. To this legiflative power was added that of directing 
 and controlling the exercife of the royal prerogative. Thus 
 the demefnes of the crown were confldered as not entirely 
 the private eftate of the king ; but as in fome meafure the 
 property of the public, which fell to be managed and dif- 
 pofed of under the public infpedrion. The alienation, 
 therefore, of crown-lands, though proceeding in the name 
 
 . of the king, was not effectual without the concurrence of 
 
 * Sec the preface to moll of the collections of Saxon laws publiflicd by Wilkins. 
 
 2 the
 
 Chap. VII. OF THE WITTEN AGEMOTE. 149 
 the wites\ and hence royal charters were frequently granted 
 in the Wittenagemote, and fubfcribed by a number of its 
 members *. 
 
 The coining of money, in order to fave the trouble of 
 weighing and afPaying the metals which pafs in exchange, 
 was a privilege early alYumed by the king in the refpective 
 kingdoms of Europe ; and even by the nobles nr great pro- 
 prietors of land in the territories under their jurifdiction. 
 In the exercife of this privilege, great frauds had been 
 committed on many occaiions, by debafing the coin below 
 its ufual ftandard ; for preventing which abufes, the Wit- 
 tenagemote, in England, appears to have fuperintended the 
 behaviour both of the king and of the nobles, and to have 
 regulated the coinage throughout the whole kingdom t. 
 
 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 
 eftablifhed religion, appears from what is related of Edwin 
 king of Northumberland, who being folicited to embrace 
 Chriftianity, is faid to have anfwered, that in a matter of 
 fnch importance he would be determined by the advice of 
 his wites and princes. In the Wittenagemote, all eccleiiaf- 
 tical laws were made ; the king's nomination of bifhops and 
 other dignified clergy was confirmed ; and their number, 
 as well as the extent of their livings, was regulated. 
 
 The fame national council gave fandtion to the eftablifh- 
 ment of monafteries, and of the revenues with which they 
 were endowed]:. 
 
 * Of this privilege of the Wittenagemote there occurs a remarkable inftance in 
 the reign of Egbert, in 836. Spelm. concil. t. i. p. 340. 
 
 f Wilkins leges Athelftani. 
 
 X Selden's Notes collected by N. Bacon, part i. ch. 2c. and the authorities to which 
 this author refers, 
 
 Not
 
 i 5 o OF THE WITT EN AG EMOTE. Book I. 
 
 Not contented with directing the exercife of the execu- 
 tive power, the nobles and witcs aflumed, in extraordinary- 
 cafes, the privilege of calling the fovereign to account for 
 the abufes of his adminiftration. Of this a remarkable in- 
 ftance occurs in the reign of Segebert, a king of the Wef- 
 tern Saxons ; who, for his tyrannical behaviour, and after 
 he had treated with contempt the remonftrances of his 
 people, was, by a general alfembly of the nation, expelled 
 the kingdom ; and another prince of the royal blood was 
 elected in his place. This event is faid to have happened 
 in the year 755 -••. 
 
 Laflly, when the members of the Wittenagemote had 
 met to deliberate upon public bufinefs, they were accuf- 
 tomed alfo to hear complaints concerning fuch great quar- 
 rels and acts of injuftice, as could not be effectually redref- 
 fed by inferior judicatories, and to endeavour, by their fu- 
 perior authority, either to reconcile the parties, or to decide 
 their differences. By frequent interpofitions of this nature, 
 that great council was at length formed into a regular court 
 of juftice ; and became the fupreme tribunal of the king- 
 dom ; in which appeals from the courts of each particular 
 lhire, as well as original actions between the inhabitants of 
 <] liferent fhircs, were finally determined. 
 
 * Saxon chronicle. 
 
 C II A P.
 
 Chap. VIII. STATE OF THE SOVEREIGN, See. 151 
 
 CHAP. VIII. 
 
 State of the Sovereign in the primitive Anglo-Saxon Go- 
 vernment, 
 
 THE different parties of the Saxons, who invaded Bri- 
 tain, were each of them under the conduct of fome 
 adventurer, whofe fortunes they had followed, either from 
 perfonal attachment, or from a confidence in his abilities. 
 After they had fettled in the country, the fame perfon con- 
 tinued to have the command of their forces, and became 
 alfo the chief civil officer of the community. The longer 
 he had remained in that high ftation, his porTeffion of it 
 was rendered more fecure by the continuance of the fame 
 circumftances which had originally produced his elevation. 
 His military talents, deriving luftre and importance from 
 the diftinguifhed point of view in which they were be- 
 held, excited the admiration and refpect of his followers ; 
 while the dangers with which they were furrounded, and a 
 fenfe of their common intereft, united them in fighting 
 under his banner. By every new expedition they became 
 the more accuftomed to fubmit to his direction ; and the 
 oftener they had found it neceffary to folicit his protection 
 and affiitance, under thofe calamities to which they were 
 expo fed, they felt more fenfibly the advantages derived 
 from his favour, as well as the inconveniences ariiing from 
 his difpleafure. 
 
 In the early hift ory of the Anglo-Saxons, the leader of 
 every feparate tribe or party, is accordingly reprefented as 
 
 poife fling
 
 i$<z STATE OF THE SOVEREIGN IN THE Book I. 
 
 poflefling a permanent office, with the title of heretoch 
 or duke, in place of which that of king was afterwards af- 
 iumed. 
 
 The king was in pofTemon of a landed eflate, acquired 
 in the fame manner with that of every inferior leader, 
 by whole affiftance the conquefl had been made. As the 
 booty, arifing from any fuccefsful enterprize, was divided 
 among the free people or heads of families concerned in 
 the adventure, and, as on thofe occafions, each individual 
 obtained a portion, both of land and moveables, fuited to 
 his rank and abilities ; it may eafily be conceived that the 
 property accumulated, in a courfe of time, by the fovereign, 
 Mould be much greater than that of any one of his fub- 
 jec~ls. His eflate was naturally diflributed among his de- 
 pendents, according to the fame plan which was adopted 
 by every other landed proprietor. A part of it was be- 
 llowed upon his kindred or free retainers, under the con- 
 dition of military fervice ; and the remainder was culti- 
 vated by his villains, or bondmen, for fupporting the ex- 
 pence of his houfhold. Over thefe two claffes of people, 
 he exercifed the rights of a fuperior, and of a mailer. 
 Throughout the refl of the kingdom, exclufive of his own 
 particular eflate, his authority was much mor e limited 
 Every allodial proprietor, unaccuflomed to fubje&ion, and 
 fupported by his own retainers, was more or lefs in a con- 
 dition to maintain his independence ; and thofe who had 
 acquired confiderable property, beholding with jealoufy the 
 fuperior dignity and pretenfions of the king, were com- 
 monly ready to combine againfl him, either in refenting 
 or oppofing, whatever they deemed an infringement of 
 their liberties. 
 
 The
 
 Chap. VIII. ANGLO-SAXON GOVERNMENT . ;-; 
 The powers with which the ibvereign came to be in* 
 
 veiled, either in the different ftates of the heptarchy, or 
 in the fubfeqiient monarchy which arofe from the union 
 of thofe kingdoms, were ftich as, in order to prevent con- 
 
 fulion and promote the difpatch of public buiinefs, were 
 tacitly devolved upon him, or as, from the nature of his 
 fituation, he had found encouragement to aflume, and had, 
 without oppofition, been permitted to exercilc. The 
 dignity and office of the king, though higher in degree, 
 were perfectly fimilar to thofe of the tythingman, the 
 hundreder, and the earl; and he pofTefTed nearly the fame 
 powers over the whole kingdom, which thofe inferior of- 
 ficers enjoyed in their own particular diftricts. 
 
 i. By having the command of the forces in the time of 
 battle, the original fource of his greatnefs, he was led to 
 direct their movements on other occafioiis ; to take prepara- 
 tory fteps for bringing them into the field ; to fuggeft par- 
 ticular enterprizes, to plan the meafures for conducting 
 them, to execute treaties with foreign ftates, and in general 
 to fuperintend the defence of the kingdom, and the whole 
 courfe of its military operations. 
 
 2. In confequence of his being at the head of the mili- 
 tary department, the king was led alfo to exert his autho- 
 rity in fuppreffing internal diforders, in quelling tumults 
 and infurrections, in re (training private rapine and vio- 
 lence, in feizing offenders, and preventing their efcape 
 from juftice ; in a word, he obtained the province of main- 
 taining the ordinary 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 Wit- 
 
 X tenageir
 
 154 STATE OF THE SOVEREIGN IN THE Book I. 
 
 tenagemote was necefTary ; he acquired, of courfe, the ex- 
 clusive privilege of calling that afTembly, and of prefiding 
 in all its deliberations. The influence which he thence 
 obtained, with regard to its determinations, may eafily be 
 imagined. The prefident of every numerous afTembly has 
 many opportunities of moulding the bufinefs that comes 
 before it, into fuch a fhape as will promote his own de- 
 figns ; more efpecially, if by the permanent enjoyment of 
 that office, he has leifure to form a regular plan of ma- 
 nagement ; and if, by having a difcretionary power of call- 
 ing the particular meetings, he may regulate his motions 
 according as the afTembly happens, in different con- 
 junctures, to be attended by different members. But 
 while, by thefe favourable circumftances, the fovereign 
 was capable of advancing his political intereft, he enjoyed 
 the additional advantage of fuperior opulence and dig- 
 nity ; which put him in a condition to intimidate, as well 
 as to over-reach oppofition. To a prince, therefore, pofTef- 
 fed of much prudence, and of popular talents, it was not 
 difficult, in ordinary cafes, to procure the confent of the 
 YVittenagemote to thofe meafures which he thought proper 
 to fuggerl ; and the relblutions of that afTembly, 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 Wittenagcmote enacted laws, diilributed juf- 
 tice in the laft relbrt, and regulated the adminillration of 
 public affairs ; fo the duty of enforcing the decrees and 
 illations of that afTembly, and, in general, the executive 
 part of the government, were naturally devolved upon the 
 king. That great officer, who conducted the military force 
 of the kingdom, could hardly fail to afTume the provii 
 
 of
 
 Chap. VIII. ANGLO-SAXON GOVERNMENT. 155 
 of caufing the punifhments 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 refpect to the commiflion of hei- 
 nous crimes, and to direct that they fhould be profecuted 
 before the proper tribunals. In thefe employments, the 
 fovereign acted as the head and reprefentative of the com- 
 munity. In the fame capacity, he obtained the nomina- 
 tion of many inferior officers in church and flate; the 
 privilege of coining money, and of fuperintending weights 
 and meafures ; together with the exercife of all thofe 
 powers which, from their nature, could not be conveniently 
 devolved upon a popular afTembly. 
 
 Thefe prerogatives, which, from the natural courfe of 
 things, and probably without any formal or exprefs regu- 
 lation, were gradually annexed to the crown, became the 
 fource of fuch perquifites and emoluments, as more than 
 compenfated the trouble with which they were attended. 
 The chief executive officer, who profecuted a crime in the 
 name of the public, had a plauiible pretence, upon the 
 lame account, for levying the fine or forfeiture arifing 
 from the conviction of the criminal. Beiides, in govern- 
 ment, as well as in religion, the bulk of men are com- 
 monly fo engrofTed by the image or picture, as to forget 
 the original, and to beftow upon the reprefentative the 
 fentiments due to the object it reprefents. Thus the fove- 
 reign, who appeared to direct, and put in motion, all the 
 wheels and fprings of government, who enforced the laws, 
 who vindicated offences, and took upon himfelf the whole 
 burden of providing for the public fafety, was apt to be 
 confidered as exercifing, in his own right, thofe pow< 
 with which the community had inverted him. Thofe law s 
 
 X 2 which
 
 156 STATE OF THE SOVEREIGN IN THE Book I. 
 
 which he enforced were conceived to be more immediately 
 calculated for his own benefit : thofe officers whom he ap- 
 pointed were looked upon as the fervants of the crown ; 
 and thofe crimes, which he profecuted and punifhed, were 
 regarded as crimes committed againft him in particular, 
 for which he was, therefore, entitled, of himfelf, to demand 
 reparation. 
 
 The public revenue of the Anglo-Saxons, therefore, by 
 which the rank of the fovereign was maintained, and out 
 of which the various expences of government were de- 
 frayed, confided almoft entirely of two branches : the ori- 
 ginal demelhes of the king, acquired in the fame manner 
 with the private eftate of each allodial proprietor ; and the 
 various forfeitures and fines, whether of land or moveables, 
 which, from time to time accrued, or were tranfmitted to 
 him, a3 the head of the community. From this latter 
 fource he derived a continual accumulation of wealth. The 
 diforder and violence, that prevailed fo univerfally, gave 
 occalion to the forfeiture of many rich individuals ; and 
 the king was commonly difpofed to neglect no opportunity 
 of feizing and improving fuch favourable conjunctures. 
 In the greater part of crimes, as it frequently happens in 
 the infancy of government, the criminal was not punifhed 
 in a manner adequate to the purpofes of public juftice, 
 but was admitted to atone for his offence, by making a 
 pecuniary compolltion with the fufferer. In thofe cafes, the 
 king exacted a compofition as well as the private party ; 
 and the profits ariling to the crown, from the innumerable 
 fines and amerciaments, to which this gave occafion, were 
 one great caufe of the long continuance of that imperfeclr 
 mode of punifliing offences. 
 
 In
 
 Chap. VIII. ANGLO-SAXON GOVERNMENT. 157 
 
 In this early ftage of the conftitution, the revenue 
 above mentioned was fufficient for all the charges of 
 public adminiftration ; which were then inconfiderable.- 
 There was no mercenary army to be paid by the king. 
 The judges were either willing to determine differences 
 among individuals, and to take cognizance of crimes, with- 
 out any confederation for their trouble ; or they obtained a 
 compenfation, by exacting fees from the parties who came 
 before them. Taxes therefore were almolt entirely un- 
 known. Their introduction belongs to the hiftory of a. 
 more advanced period of fociety. 
 
 But even this primitive revenue of the crown appears to 
 have laid a foundation for the Wittenagemote to interfere 
 in the difpofal of it ; iince the eftate, acquired by the king, 
 in the character of the chief executive officer, and as re- 
 prefenting the community, was, in a proper fenfe, the 
 eftate of the public. This conclufion was not, indeed, ap- 
 plicable to the whole, though it undoubtedly was to a 
 confiderable part of the royal demefnes. But it was not the 
 genius of that age to make nice diftindtion s ; and the in- 
 terpofition of the national council, in the management of 
 fbme branches of the crown revenue, might eafily be 
 extended to others that were placed in different circum- 
 itances. 
 
 We find that, not only in England, but in the other 
 ftates upon the continent of Europe, the arrangements 
 which took place in the management of the king's houfe- 
 hold, and private eflate, had neceffarily great influence 
 upon the government of the kingdom. According as the 
 fovereign advanced in opulence and dignity, he was led to 
 employ a greater number of fervants in the fcvcral 
 branches of his domestic ceconomy ; and the fame perfons, 
 
 who
 
 i 5 S STATE OF THE SOVEREIGN IN THE Book 1. 
 who enjoyed the chief confidence of their mailer in that 
 private capacity, became, in courfe of t.'e, his nainifters 
 in conducting the bufineis of the nation. In all the Euro- 
 pean feudal kingdoms, the management of the king's houie- 
 hold was anciently divided into five principal departments, 
 .and fell under the inflection of lb many great officers. 
 
 i. The firft of thefe was the Jlezv a rd, or mailer of the 
 houfhold, called, upon the continent, the major domo, the 
 mayor of the palace^ or jenefchall\ 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 were 
 intended for immediate confumption, it was moil conve- 
 nient, 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 family. 
 
 We may eafily believe that, from the nature of his 
 office, the mafler of the houfhold was in a condition to 
 acquire much influence over all the tenants and vaffals of 
 the crown. He was the perfon with whom they were 
 obliged to fettle their accounts ; and who, from his minute 
 
 .uaintance with their circumflances, w r as the mod capa- 
 ble of giving his mafler information concerning them. 
 I lu was, therefore, the perfon moil likely to be employed 
 in adjuiling their differences with one another; and in 
 • onfeqtience of his being the deputy judge upon the royal 
 demefne, he came, at a fubfequent period, to be intruflcd 
 by the crown, with a fimilar power over the whole king- 
 dom *. 
 
 2. As 
 
 * Spclman v. major domo. This author fuppofes three different orders of major 
 : iii the houfhold of the Gothic rrjonarchs. The firft, who had the care of the 
 
 king's
 
 Chap. VIII. ANGLO-SAXON GOVERNMENT. i 59 
 
 2. As the collection and management of the victuals, 
 with which the king's table was fupplied, fell under the 
 direction of the fleward ; fo the care of the liquors was 
 committed to a feparate officer, the cup-bearer •, or butler. 
 In all the Gothic nations, perfons of wealth and diitinc- 
 tion lived in great fplendor, and were much addicted to 
 drinking ; for which reafon, it is not lurpriiing that the 
 accommodation of the fovereign,in this refpect, was exalted 
 into a feparate employment, and became an object of 
 fuitable importance. 
 
 3. The care of the chambers was committed to a third 
 officer, the chantberlain ; whofe bufinefs it was to fuper- 
 intend the lodging of his matter's family. As this officer 
 was entrufled with whatever required to be locked up in 
 the houfe, for the future fervice of the houfhold, he feems, 
 upon this account, to have become the keeper of the 
 wardrobe, and, at a fubfequent period, when the crown 
 rents were paid in money, the king's treafurer or fuperin- 
 tendant of the finances K 
 
 4. Another of the king's principal fervants obtained the 
 infpection of the liable, and was denominated the comes 
 
 king's table : the fecond, who prended over the whole houfliold : and the third, who 
 was employed under the king as chief executive officer of the kingdom. It fecms 
 evident, however, that thefe officers were originally derived from one, who, as lie 
 became great, appointed deputies to difcharge the inferior branches of duty incum- 
 bent upon him. 
 
 In England the {reward, in the king's houfliold, is mentioned under the name 
 of Oeconomus as early as the year 749. [See difcourfc on this office by Air. Thynn in 
 Hearne's Coll. of Antiquities.] But he does not fcem to have acquired great power, 
 as a minifter of the crown, till the Norman conqueft. [See fame collection.] 
 
 * It is probable that the butler [pincerna] was, for a long time, not feparated fiorrv 
 the fteward ; and in the early hiftory of England neither he nor the chamberlain fcem 
 to have been much diitinguifhed. 
 
 § ftabul!,,
 
 i6o STATE OF THE SOVEREIGN IN THE Book J. 
 -jlabuli) or conjlable. When, by the keeping of many 
 horfes, this department was rendered extenilve, it appears 
 to have been divided into two branches ; the one belonging 
 to the chief groom, or conflable ; and the other to the 
 marefcbal) or iinith. It is difficult to mark the period 
 when this divifion was completed : nor is it an eaiy matter 
 to afcertain the relative degrees of importance and rank 
 which might then be annexed to thefe two kindred em- 
 >yments. 
 
 When the life of cavalry in war became frequent, we 
 ly eailiy fuppofe, that the perfons, who had been accui- 
 tomed to rear and manage the king's horfes, would iland 
 forth, as claiming fuperior diitinction, and as having a 
 peculiar title to be confulted. They were thus employed, 
 under the fovereign, in conducting that important part of 
 the troops ; and, by an eafy tranfition, acquired a jurifdic- 
 tion in men controverfies, as were either of a military 
 mature, or had arifen in the army while it remained in the 
 field*. 
 
 5. The writing of the king's letters, and the executing 
 of the charters, or other deeds, that ifTued from the crown, 
 became alio the fubjecl of a diitinct occupation, that of 
 the fecretary. In thole times, when the clergy had acquired 
 great influence, and when a proficiency in the art of writ- 
 ing fuppofed an uncommon degree of literary education, 
 the only perfon likely to be qualified for this employment 
 was the chaplain ; who might be confidered as, in fome 
 jtlc, the keeper of the king's conference ; and who, 
 >m the nature of thofe religious offices which he per- 
 
 • This officer was known to the Anglo-Saxons under the name of Stailarius. 
 Spclm. GlofT. v. Conftabularius. The marcfchal feems to have been considered as 
 Xhc deputy of the conflable. 
 
 formed,
 
 Chap. VIII. ANGLO-SAXON GOVERNMENT. i6r 
 
 formed, could feldom fail to acquire the confidence of 
 his mailer. 
 
 When ilgnatures were introduced, for afcertaining the 
 authenticity of writings, the office of keeping 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 expedient, in 
 many cafes, to take down the fentence of the judge in 
 writing, the fecretary was naturally employed for this pur- 
 pofe; and became keeper of the records of the kinp-'s 
 court. From this branch of his duty, he got the appella- 
 tion of chancellor ; which is laid to have originally denoted 
 a fcrtie, or notary ; being derived from cancella, the place 
 under the Roman government, allotted to perfons of tl 
 profemon for carrying on their bufinefs *; 
 
 As this arrangement in the domeilic adminiitration of 
 the fovereign, fuppofes conliderable wealth and magnifi- 
 cence ; it was probably of a later origin in England than in 
 feveral of the kingdoms upon the continent. It is reafon- 
 able to fuppofe that the whole of the king's houfhold was 
 at firft committed to one principal fervant ; whofe bufinefs 
 having been, by little and little, augmented and rendered 
 more burdenfome, was at length divided into thefe five 
 different departments. A fimilar plan of adminiftration, 
 in a more limited fphere, was adopted by every great landed 
 proprietor ; who naturally multiplied his chief domeftics 
 in proportion to the extent of his wealth ; and often fol- 
 lowed the example of the king, by dividing the affairs 
 of his houfhold into the fame number of branches t. 
 
 Y Thc 
 
 This officer is clearly diftinguifhable in die Anglo-Saxon government. Spelm. 
 v. Cancellarius. » 
 
 f Pafquier in fpeaking of thefe great officers of thc houfhold obferves, that they 
 
 were
 
 S6a STATE OF THE SOVEREIGN IN THE Book I. 
 The longer thefe great officers had been eftablifhed, they 
 rofe to higher degrees of confideration ; and their autho- 
 rity was farther extended, from the fuperintendence of 
 the king's houihold, to the direction and management of 
 the kingdom. As, for the moft part, they were originally 
 chofen by the lbvereign, upon account of their fuperior 
 wealth, or abilities, which rendered them capable of fup- 
 porting his dignity in the execution of the bufinefs com- 
 mitted to them ; fo the truft and confidence which he 
 repofed in them, together with the ihare of public admi- 
 nilfration which they enjoyed, afforded them numberlefs 
 opportunities of augmenting their private fortunes, and 
 of increafmg their influence. In proportion to their ad- 
 vances 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 fupe- 
 riority, which had been the inducement to their firft pro- 
 motion, became commonly more and more conspicuous 
 daring the continuance of their employments. It was, 
 therefore, feldom found convenient to difplace them: and, 
 even after their deceafe, the heir of that eftate, which they 
 had acquired, was naturally regarded as the perfon belt 
 qualified, and who had a preferable claim to- inherit their 
 dignity. By long ufage, thefe offices were thus rendered 
 hereditary in particular families. L To this obfervation, how- 
 were gradually eftablifhed in the families of the great lords and gentlemen. " Par- 
 w quoy eftoient deflus tous, cinq eftats plus eftimez, le chancelier, grand chambellaiu 
 i* trand maiftre, grand cfchancon, que nos anciens appelloient grand bouteeller, et 
 ** conncitable. Nous eftant par '.ecy monftree une grand ceconomie : car aufli n'y 
 u a il maifon qui vueillc tant foit peu paroitre, en laquelle ces cinq eftats ne fe trou- 
 u vent cftre nccefLircs, encore que ce ne foit avec tiltres de telle fplcndcur." Re- 
 «hcrchcs de la France, liv. ii. chap. 12. 
 
 8 ever,
 
 Chap. VIII. ANGLO-SAXON GOVERNMENT. 163 
 
 ever, the office of chancellor, in moll European countries, 
 is an exception. As the chancellor was unavoidably a 
 clergyman, who held his rank in the church, and the 
 eftate connected with it, only during life, he had com- 
 monly neither any opportunity of fecuring the office to 
 his family, nor any deiire of annexing it to his ecclefiafti- 
 cal dignity. 
 
 Of the influence eftablifhed by the great officers of tic- 
 king's houfhold, the political conftitution of Germany af- 
 fords a remarkable inftance. When the dominions of that 
 empire, by the conquer! of large territories in Italy, and 
 in the Southern part of France, had been fo enlarged as to 
 comprehend three diitinct kingdoms, the emperor was in- 
 duced, in that iituation, to appoint three different fecre- 
 taries *. The officers of his houfhold were, upon this 
 account, increafed to the number of feven. In the pro- 
 grefs of the German government, the power of thefe great 
 officers advanced, as that of the emperor declined ; and 
 after the imperial dignity had become intirely elective, 
 they afTumed the privilege of propofing^ to the national 
 affembly, the fucceffor to the crown ; from which they at 
 length proceeded to claim the fole right of electing him. 
 Hence the origin of that precife number of peribns who 
 compofed the primitive German electors. 
 
 The fleward was originally the officer of greateft im- 
 portance in the king's houfhold; becaufe the lupplying of 
 his majefty's table with provifions was regarded as the 
 
 jf concern of the family. We accordingly find that, in 
 
 * The fir ft was the fceretary for Germany, properly To called; the fecond for 
 Italy, and the third for Aries. It is remarkable that thefe chancellors, having 
 become fecular princes, their offices have been attached to their ecclefiaftical 
 dignity. 
 
 Y 2 feveral
 
 104 STATE OF THE SOVEREIGN IN THE Book 1 
 feveral countries of Europe, the perfon who enjoyed this 
 hereditary office, attained a degree of rank and! opulence 
 which rendered him formidable to the Sovereign. In 
 France, the mayors of the palace, after having for a long- 
 time porTefTed the real power and authority of the crown, 
 were at length emboldened to throw oft" the maik, and 
 openly to mount the throne. 
 
 When the ufe of cavalry in war had become very exten- 
 five, and when that part of the feudal armies had the 
 principal fhare in deciding the fate of battles, the conftable 
 or marifhal, was frequently in a condition to difpute the 
 Superiority with the fteward or mayor of the palace. Thus, 
 in Germany, when the throne happened to be vacant, the 
 Elector Palatine, the mayor of the palace, was anciently 
 appointed, for preventing the bad confequences of an in- 
 ter-regnum, to be the vicar of the empire. But in a fub- 
 fequent period, this high dignity was claimed by the 
 elector of Saxony, the conftable; and, after violent dis- 
 putes, and various determinations of the diet? was at laft 
 divided between thofe powerful competitors. 
 
 In the ages of greater civility and improvement, when, 
 from the complicated connections of fociety, its laws became 
 numerous and of difficult interpretation, and when, from 
 the anxiety of individuals to afcertain their rights, the 
 charters and writings proceeding from the crown were mul- 
 tiplied in proportion, the Secretary, or chancellor, to whom 
 the king committed that branch of bufmefs, was invefted 
 with powers of the greateft confequence, and therefore 
 was exalted to the higheft rank. 
 
 In thofe opulent and polifhed nations which have long 
 been reduced under an equal and regular government; in 
 which the impartial diftribution of juftice is looked upon 
 
 5 as
 
 Chap. VIII. ANGLO-SAXON GOVERNMENT. 165 
 
 as almoft a matter of courfe ; and in which the fovereign 
 is accuftomed to govern by influence, more than by the 
 exertion of his prerogative ; in fnch nations, the perfon 
 who prefides over the public treafury, who may be regard- 
 ed as the fubftitute of the chamberlain, becomes the great 
 channel through which the revenue of the ftate is convey- 
 ed, and by which the authority of the crown is main- 
 tained. 
 
 It is hardly neceflary to remark, that this diftribution of 
 the bulinefs in the king's houfehold, into five departments, 
 
 reaches far below the limple period of the Anglo-Saxon 
 government which we are now coniidering. But, on the 
 other hand, it merits attention, that when the exaltation of 
 the fovereign had multiplied 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 coniideration 
 and rank, as to appear no longer in a fubordinate ftation, 
 and even to make the origin of their appointment be for- 
 gotten. This circumifance muif. not be overlooked in pe- 
 rilling the enumeration, given by many hiltorians, of the 
 principal officers in the court, or houfehold, of particular 
 princes. 
 
 From the foregoing imperfect fketch of the powers of 
 the fovereign, as well as of the conftitution and privileges 
 of the Wittenagemote, we may be enabled, notwithstand- 
 ing the darknefs of our ancient hiftory, to form an idea of 
 the original Engliih conftitution. How remote this was 
 from an abfolute monarchy, muft be apparent to every one, 
 who coniiders that the privilege of legiilation, together 
 with that of determining peace and war, and even that 
 of controuling the executive power, was lodged in the na- 
 tional
 
 166 STATE OF THE SOVEREIGN IN THE Book I. 
 tional alTcmbly. Neither can this government be deemed 
 in a high degree, ariftocratical ; fmce the national council 
 was com poled, not of a fmall junto of nobles, but of all the 
 landed proprietors, comprehending a great proportion of 
 the whole people. It feems, in fact, to be that fort of poli- 
 tical fyfteni which is likely to be eflablifhed in all rude and 
 extenfive countries ; before a few individuals have accu- 
 mulated io much wealth as enables them to domineer over 
 their inferiors ; and before the king, in confequence of his 
 high ftation and prerogatives, has had leilure to acquire 
 a revenue Sufficient to overthrow and bear down any oppo- 
 sition that can be apprehended from the moft opulent of 
 his Subjects. It cannot, however, efcape obfervation, that, 
 although the powers committed to the monarch by the 
 early Saxon constitution were fmall, they were not accurate- 
 ly 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 fubordination, 
 the fruit of experience and forefight, cannot be expected 
 to characterize the institutions of a Simple people, who 
 arc ufually guided by their feelings more than by reflec- 
 tion, and who attend more to the immediate effects of any 
 meafure, than to its remote confequences. As the Anglo- 
 Saxon princes were entruftcd with every branch of public 
 administration, in which the Wittenagemote did not think 
 proper to interfere ; their conduct was directed in a great 
 meafure, by particular conjunctures, and by the different 
 nnforefeen events which accidentally required their interpo- 
 sition. We need not he furpriied, therefore, if in perilling 
 the hiftory of that period, while we difcover Strong marks oi 
 the weaknefs of the crown, we ihould alfo meet with tome 
 extraordinary exertions of the prerogative, and ihould at 
 
 the
 
 Chap. VIII. ANGLO-SAXON GOVERNMENT. 167 
 the lame time obferve, that thefe were fuffered to pafs 
 without cenfure, or even without notice. It is a common 
 fource of miftake, among political writers, to confider thefe 
 extraordinary exertions as proofs of the ordinary flate of 
 the government ; and to adduce as an illuftration of the 
 general pra&ice, what is only the random and carnal exer- 
 cife of a power, not yet brought to a regular ftandard. 
 We mail now examine the changes produced in the Eng- 
 lifli conftitution from the reign of Egbert to the Norman 
 conqueft. 
 
 C II A P.
 
 1 68 PRINCIPAL EVENTS FROM EGBERT Book I 
 
 C II A P. IX. 
 
 Of the principal Events from the Reign of Egbert to , 
 
 Norman Conqueft. 
 
 WHILE England, by the union of the different flates 
 of the heptarchy, was emerging from barbarifm, 
 and laying the foundation of a great and powerful king- 
 dom, a new enemy involved her in a feries of frefh cala- 
 mities ; and contributed to retard the progrefs of her im- 
 provements. The inhabitants of the Northern part of 
 Germany, who retained their ancient manners, and were 
 ftill much addicted to piracy, continued to infeft the coafts 
 of Britain and France, and of fuch other European coun- 
 tries as, by fome advancement in cultivation, prefented an 
 inviting profpect of plunder. About the reign of Egbert, 
 feveral bands of thofe pirates, known 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 under 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 afTembled againft them, they were at 
 length encouraged to form fettlements in different parts of 
 the country. From the time when the kingdoms of the 
 heptarchy were united, to that of the Norman conqucit ; a 
 period extending to about two hundred and fifty years, and 
 comprehending a feries of nineteen monarchs ; the Englifh 
 
 were,
 
 Chap. IX. TO THE NORMAN CONQUEST. r6g 
 
 were, with little interruption, engaged in a eourfe of hofti- 
 lities with thole invaders ; and iubjec/ted to perpetual in- 
 quietude and disorder. In the reign of Alfred, the grand- 
 ion of Egbert, the Danifh arms had been fo fuccefsful, and 
 their acquifitions had become lb extenlive, 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 recorded of ancient 
 patriotism, and even to whatever correct fiction has been 
 able to fuggeft, in order to excite admiration and efteem. 
 During the reign of Ethered, his elder brother, by whom 
 he was unjuitly deprived of the patrimony left him by has 
 rather, he difcovered neither any marks of refentment for 
 the private injury he had iuftained, nor of what prevailed 
 ib univerfally among the princes of that age, an ambition 
 to poffefs the crown ; but with uniform alacrity feconded all 
 the public meafures of the king ; and, while yet at an early 
 period of life, difplayed uncommon valour and talents, in 
 oppofing the enemies of his country. When he afterwards 
 fucceeded to the throne, his magnanimity and firmnefs 
 were put to a fevere trial in the.fchool of adverfity. Though 
 he had been victorious over the Danes in many conflicts ; 
 yet the i warms of thole invaders multiplied lb fait; and 
 from every quarter pufhed their depredations with Inch 
 rapidity, that the Englifh, throughout the greater part of 
 the kingdom, became quite difhearfened, ami fubmirtcd 
 to the conquerors. 1 1 is ancient rubje&s, the Weftern 
 Saxons, alone retained their fidelity, and Supported the 
 intereft of their monarch: but thefe were incapable of 
 refitting the torrent which broke in upon them, from the 
 accumulated force of their enemies After many fruitless 
 efforts, and upon a iudden report of a new invalion by a 
 
 Z powerful
 
 i 7 o PRINCIPAL EVENTS FROM EGBERT Book I. 
 powerful body of Danes, that fpread univerfal confterna- 
 tion, the king found himfelf almoft entirely abandoned ; 
 and, being able no longer to keep the field, was obliged 
 to difband his remaining adherents, and to provide for his 
 prefent lafety ; he was even under the neceflity of conceal- 
 ing 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 
 eminence ; 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 remained for fome 
 time unknown, in the houfe of one of his own herdfmen : 
 upon which occaiion, hillorians have mentioned a little 
 incident, which exhibits a ludicrous picture of royalty 
 placed in awkward circumftances without being degraded 
 by them. While the king was one day fitting by the fire- 
 tide, 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 occaiion to go 
 about fome other affairs, fhe. found, at her return, that the 
 cakes were burned ; with which being greatly provoked, 
 (he heartily fcolded his majefty, telling him, that though 
 he neglected to turn her cakes, he was always very ready 
 
 ro cat them. 
 
 Meanwhile the royal demefnes became a prey to the 
 Danifh forces ; who being no longer reftrained by the ap- 
 prehenfion 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 followers, wandered for fome time from 
 place to place, finding (helter from the woods and marines, 
 
 which
 
 Chap. IX. TO THE NORMANT CONQUEST. m 
 
 which covered a great part of the country, and which were 
 of difficult accels even to the natives themfelves. But his 
 principal retreat was in the middle of an extenfive morafs, 
 formed by the rivers Thone and Parret in Somerfetihire ; 
 which was almoft entirely furrounded with water; and 
 which afforded great plenty of fallow deer, and other wild 
 animals fit for iubfiitence. In this place the king took up 
 his refidence ; and creeling fome 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 thole benevolent and patriotic plans, by 
 the execution of which he came afterwards to be revered 
 by his countrymen, and has excited the admiration of 
 mankind. From this retreat he made many fecret excur- 
 sions, in order to procure information or plunder, and to 
 revive the drooping courage and fpirits of his com- 
 panions. 
 
 At length the earl of Devonfhire, having fuddenlv at- 
 tacked and routed a large party of the Danes, prefented 
 to Alfred a favourable opportunity of appearing once more 
 in the open field, and of animating his Subjects to hazard 
 another attempt for the recovery of the kingdom. Amid 
 all the difficulties and dangers to which this monarch was 
 expofed, he appears to have uniformly difcovered a mind 
 cool and deliberate, refolute with caution, fruitful in 
 expedients, and dexterous in executing filch mcafures as 
 the lingular and defperate pofturc of his affairs made it 
 advifeable to adopt. On this occafion he is laid to have 
 employed a Stratagem, Suited to the ltatc of dilcipline in the 
 armies of that age, and which recals the memory of thofe 
 military adventures related in the early periods of anti- 
 
 Z 2 quity.
 
 172 PRINCIPAL EVENTS FROM EGBERT Book I. 
 
 quity. In the difguife of a minftrel and fortune-teller, 
 attended only by one companion, he viiited the Danifh 
 camp ; and fupported the character with io much addrefs, 
 as to afford univerfal entertainment, and to pais through 
 every quarter, not excepting even the general's tent, with- 
 out incurring the leaft fufpicion. Having thus procured 
 every poflible information, and having, by means of a 
 previous intercourfe with his nobles, fuddenly collected a 
 great body of his fubjedls, he found himfelf at the head of 
 a powerful army, exulting in the recovery of their mo- 
 narch, and eager to be revenged of their opprefTors. With 
 this force he fell unexpectedly upon the enemy ; and en- 
 tirely defeated them. His victory was fo complete, that 
 the Danes were incapable of any further oppofition ; and 
 in a little time after were entirely fubdued. Some part of 
 them were driven out of the kingdom ; the reft were under 
 the neceflity of fubmitting to fuch terms as he thought 
 proper to impofe. 
 
 The moderation and clemency of this prince, and the 
 prudence which he difplayed in the improvement of 
 thefe advantages, were no lefs confpicuous, than the 
 vigour and abilities by which they were obtained. The 
 Danes who fubmitted to him were lent to refide in Ealt 
 Anglia, Northumberland, and fome of the neighbour- 
 ing parts of the kingdom, where many of their country- 
 men had long been fettled ; and they were admitted to the 
 enjoyment of the lame privileges with his other fubjects. 
 By the zealous interpofition of Alfred, they were alio 
 happily perfuaded to embrace the Chriitian religion ; a 
 circumftance necefTary to remove their prejudices againit 
 the an< ient inhabitants, and to unite thofe different tribes 
 <>t people in one community. 
 
 Upon
 
 Chap. IX. TO THE NORMAN CONQUEST; 173 
 
 Upon the reftoration of peace, the firft attention of the 
 monarch was employed in providing a fleet, fufricient to 
 oppofe any new invafion of the Daniih pirates ; in erecting 
 fortifications upon the coafts more immediately expo led to 
 their depredations ; in making regulations for aflembling 
 the inhabitants upon any Hidden emergency ; in rebuild- 
 ing the towns that had been deftroyed ; and in repairing 
 the wafte and defolation which the country had fuffered 
 from a long courie of rapine and violence. 
 
 To compile and publifh a code of ftatutes, is, in a rude 
 nation, ameaiure of the higheft utility, for infix iicling an 
 ignorant people in thofe rules by which they are to be 
 governed'; and accordingly we find that this has been the 
 great object, of almoft all the diftinguimed princes of an 
 early period. It appears that Alfred befiowed much labour 
 and time upon a work of this nature ; of which the greater!: 
 part is now loft. It is probable, that, from the various 
 feudal inftitutions and cuftoms, which had prevailed either 
 in England or upon the neighbouring continent, he felected 
 fuch as were accounted the moft beneficial, and moil 
 adapted to the peculiar circumftances of his time and coun- 
 try ; and that, having eftabliihed thefe regulations by the 
 authority of his great council, he endeavoured, in the 
 moil effect ual manner, to produce a degree of uniformity 
 in law and government, throughout the whole of the 
 kingdom. We are not, however, to imagine, that all dif- 
 ferences in the cuftoms of different parts of the country 
 were thus entirely abolilhed. On the contrary, we find that, 
 in confequence of the new fettlements in the Northern 
 part of the kingdom, a multitude of Daniih cuftoms had 
 been introduced ; and that the people were now diftin- 
 guilhed into three great branches, according to the 
 
 varieties
 
 174 PRINCIPAL EVENTS FROM EGBERT Book I. 
 varieties in the fyftem of private law, eitablifhed among 
 the Weitern Saxons, the Mercians, and the Danes. 
 
 But the promulgation of good laws is, for the moil 
 parr, and efpecially in a country remote from civilization, 
 a matter of lefs difficulty and importance than the vigorous 
 and impartial execution of them. When a regulation is 
 made, the beneficial objects, which it is intended to pro- 
 mote, are commonly furveyed in that diftant and difpaf- 
 iionate view which admits the full exertion of patriotic 
 affections; but when it comes to be enforced by the punifh- 
 ment of tranfgreffors, it then frequently affumes a different 
 afpect ; and the intereft of the public is likely to be ob- 
 fcured and counteracted by the private connections, and by 
 the partiality and prejudice of individuals : not to mention 
 that the fplendor and eclat, which accompany the tempo- 
 rary interpofitions of the legillator, do not defcend to the 
 unremitting and laborious attention, to the painful and in- 
 vidious tafk, of thofe inferior magiftrates who render the 
 law effectual. It was here that the genuine virtue of Alfred 
 appeared moft confpicuous. From the long courfe of de- 
 predation to which England had been expofed, that coun- 
 try was become a fcene of the utmoft licenfe and diforder ; 
 exhibiting, on the one hand, a people fierce and barbarous 
 in their manners, accuitomed to live by robbery and vio- 
 lence; and on the other, a fet of nobles, in reality the 
 leaders of different pillaging parties, abufing that autho- 
 rity and jurifdiction with which they were inverted, by 
 protecting their adherents from punilhmcnt, and by op- 
 preffmg thofe who had fallen under their difpleaiure. Yet 
 fuch was the attention of this monarch to the inferior 
 departments of government, fo great was his vigilance in 
 examining the conduct of judges, and his rigour in punilh- 
 
 o
 
 Chap. IX. TO THE NORMAN CONQUEST. j 75 
 
 ing them for malversation in office, that, in a fhort time, 
 thefe evils were in a great meafure removed, and an equal 
 and regular adminiftration of juflice was introduced. In 
 one year of his reign no fewer than forty- four magiftrates, 
 it is faid, were put to death, for mifbehaviour in their 
 judicial capacity; a proof that corruption and licentiouf- 
 nefs had rifen to an amazing pitch. There can be little 
 doubt, that in the accounts tranfmitted by hiftorians, the 
 accuracy and regularity of the police, eftablifhed by Alfred, 
 has been greatly exaggerated; but even thefe exaggera- 
 tions, the ufual effects of wonder and admiration, may 
 ferve to convince us, that he made great improvements 
 upon the former fyftem. We are informed that, in order 
 to try the fuccefs of his inftitutions, he caufed golden brace- 
 lets to be hung up near the highway ; and that no perfon, 
 fuch was the terror of the magiftrate, adventured to touch 
 them. 
 
 By the eftablifhment of good order and tranquillity, 
 the people were encouraged to follow thofe peaceable occu- 
 pations which had been totally interrupted by the preced- 
 ing diforders. The king was indefatigable in his efforts to 
 promote manufactures, and to excite the induftry of his 
 fubjec~ts ; by employing artificers in great public works ; 
 by inviting foreigners to fettle in the country ; and by re- 
 warding the inventors of new arts. He contributed, in a 
 particular manner, to the extenfion of foreign commerce, 
 by protecting it with his fleet, and by beftowing marks of 
 his favour upon fuch as became eminent for their fkill in 
 navigation. 
 
 He was no lefs attentive to the encouragement of lite- 
 rature, not only by his patronage, but alio by his example. 
 His ardour, in this refpect, was the more remarkable, as it 
 
 furmounted
 
 T7'6 PRINCIPAL EVENTS FROM EGBERT Book I, 
 furmounted the disadvantages he lay under from the ne- 
 glect of his early education ; for, among the anecdotes 
 which 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 
 deiire of being inftructed, in this particular, from the re- 
 cital of certain pieces of poetry, with which the queen his 
 mother was much delighted. Prompted, however, by a 
 ftrong inclination for literary purfuits, he loon became, 
 not only a proficient in the Latin language, and in fuch 
 branches of learning as w r ere refpected 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 tranf- 
 lating, or compofing, fables, or apologues, Theie compo- 
 sitions are ufually the firft attempts, in a rude nation, to 
 illuftrate, by fimple and familiar examples, the proverbs, 
 or maxims for the conduct of life, which obfervation and 
 experience have iuggefted, and which, as containing im- 
 portant information to an illiterate people, are frequently 
 repeated, and appealed to, in ordinary conversation. The 
 labours of this eminent ftatefman appear, in that particular, 
 to have coincided with thofe of the firft great teacher of 
 morality among the Greeks. It is probable that thole two 
 celebrated perfonages were directed in the choice of their 
 fubject by a firriilarity of character; and it may perhaps 
 be fufpe&ed, that both of them were more remarkable 
 for their philolbphy and public fpirit, than for their 
 poetry, 
 
 Hiftorians have mentioned the bodily accomplifhments 
 of Alfred, as correfponding to the extraordinary endow- 
 ments of his mind. He was diftingtiifhed by the ftrength 
 and activity, as well as b\ the dignity and i I 'ulnei' 
 
 his 
 x
 
 Chap. IX. TO THE NORMAN CONQUEST. i 77 
 
 his peribn ; and while his dexterity and addreSs, in martial 
 exerciSes, excited univerSal applaufe, he gained the hearts 
 of his Subjects by an affable and engaging deportment. 
 
 After all, though the hiftory of this monarch may be 
 accounted fufficiently authentic, to afford a folid CoriVic- 
 tion of his exalted merit ; fome allowance, no doubt, mull 
 be made for the colouring 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 furprifed, therefore, to meet with 
 errors and prejudices, concerning his public transactions; 
 and in particular, to find that he was fttppofed to be the 
 author of Several regulations, which he only revived, or 
 brought to greater perfection than they had formerly attain- 
 ed. The great changes which he produced in the State of 
 his country, by bringing it from anarchy and confufion 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 constitution. He is thus held, by many hiftorians, 
 to have firlt divided the kingdom into tythings, hundreds* 
 and fhires, and to have introduced a peculiar fyftem of 
 policy connected with thofe divisions ; though it Seems now 
 to be clearly proved, that theSe regulations existed in Eng- 
 land beSore his time, and that they extended to other 
 European kingdoms. The institution of juries has, in like 
 manner, been afcribed to this monarch ; though there is 
 good reaSon to believe that it aroSe from the general Situation 
 of the Gothic nations; and that it had a very early erta- 
 blifliment in all of them. Alfred, in a word, has become 
 the Englifh Lycurgus ; and his interpofition is the gvt 
 engine which politicians have employed for explaining the 
 
 A a origin
 
 Ty8 PRINCIPAL EVENTS FROM EGBERT Book I. 
 
 origin of fuch particulars, in the Englifh government, as 
 have excited uncommon attention, and are too remote, in 
 their beginnings, to fall within the limits of authentic 
 hiftory. 
 
 For near eighty years after the death of that prince, 
 England appears to have been fuccefsfully defended againft 
 every foreign invafion ; though fhe experienced a variety 
 of disturbances, occasioned by the domeitic quarrels and 
 insurrections of the Danes and other inhabitants of the 
 country. During this period we may distinguish the reigns 
 of Edward the elder, the fon of Alfred, of Athelftan, and 
 of Edgar, as remarkably vigorous ; and as filled with ex- 
 ploits, which, if they make no very fplendid figure in the 
 general fcale of historical events, were, however, of con- 
 siderable confequence to the peace and internal tranquillity 
 of the kingdom. 
 
 Thofe princes are faid to have adopted a meafure, which, 
 in that early age, appears extremely lingular. They are 
 laid to have kept in pay a regular body of troops, collected 
 from their Danifh Subjects ; whofe military character, 
 it feems, was Superior to that of the other inhabitants. 
 Though the bulk of the people were not unfit for war, 
 and, by their ordinary employments, were not hindered 
 from taking the field upon very Short preparation; yet 
 the numerous piratical invasions to which they were ex- 
 pofed, and by which they were held in continual warfare, 
 fuggefted the Same fort of military establishment that has 
 been found convenient in all civilized nations. The Da- 
 nifh families were employed, in preference to the Eng- 
 lish, from the Same policy, which, in later times, made the 
 inhabitants of Switzerland be engaged in the fervice of 
 many European princes. As thofe mercenaries, however, 
 
 5 were
 
 Chap. IX. TO THE NORMAN CONQUEST. j 7g 
 
 were quartered about the country, and were probably no* 1 
 much under the controul of the civil magiftrate, they were 
 guilty of many irregularities, and rendered themSelves 
 univerfally odious. They pofTefTed all the power, and dis- 
 covered, we may fuppofe, all the inlblence of a Handing 
 army; unreflrained by thewatchfulnefs of a regular govern- 
 ment, or by the influence of civilized manners. Hence the 
 appellation of a lurdane, or lord-da?te, which was bellowed 
 upon them, came to be ufed as a term of reproach ; and 
 Signified an idler and oppreflbr. Their Situation led them, 
 at the fame time, to feek distinction, by the Superior ele- 
 gance of their drefs and behaviour ; and we are told, that 
 they were accuftomed frequently to change their cloaths, 
 to comb their hair once a day, and to bathe or wafh them- 
 felves 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 weak and pusillanimous prince, 
 England was again infefted by more numerous fwarms of 
 the Northern pirates ; and at length was invaded by a formi- 
 dable 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 purchafing peace by the offer of a pecuniary composi- 
 tion ; and when thoSe princes had returned to their own 
 country, he excited his English Subjects, to gratify their 
 fefentment agairiil the Danes, by taking advantage of their 
 
 « " Hibebant etiam ex confuctudinc patri.e unoquoque die comam pcclere, fabbatis 
 "'• balneare, fsepe etiam veitituram' mutare, et formatn corporis multis talibus frivolis 
 •' adjuvare; undo ct matronarum calbtati infideabantur, etfilias etiam nobiimm con- 
 "'^cubinarijm nomine detinebant." Chron. Joan. Wallin^ford. 
 
 A a 2 arity,
 
 iSo PRINCIPAL EVENTS FROM EGBERT Book I. 
 
 fecurity, and putting them to death in cold blood. The 
 extent of this maSTacre, lb difgraceful to the monarch, and 
 to the nation, cannot eali.ly be afcertained. The greater 
 part of the historians conhder it as extending to the 
 whole of the Daniih race, at that time to be found in 
 England ; but the improbability of this, together with the 
 authority of one ancient author, makes it reafonable to 
 luppofe, with Mr. Hume, that the {laughter was, for the 
 molt part, limited to thole mercenaries againft whom the 
 rage of the populace was more immediately directed. 
 
 To revenge an act of fo much perfidy and cruelty, 
 Sweyn, without lofs of time, made another delcent into 
 Britain; and after deflroying many of the towns, and defo- 
 
 ing a great part of the country, he feems to have medi- 
 tated an entire conquer! of the kingdom. He did not live to 
 complete his deligns ; but thefe were profecuted by his fon 
 Canute ; who met with little opposition ; and in a fhort time 
 
 ded the Englifli monarchy to that of Denmark, which 
 he pofTeffed by inheritance. This prince, by his abilities, 
 by the prudence and lenity of his administration, and by 
 the extent of his dominions, was juftly entitled to the ap- 
 pellation of great, which he has received from posterity. 
 In England, after the firft effects of the conqueSt were over, 
 he endeavoured to procure the good-will of his Subjects, 
 by reducing the Englifli and Danifli inhabitants under the 
 lame laws, and by abolishing all distinctions between them. 
 He publiihed a collection of laws, which has been pre- 
 served . After this monarch, two of his fons reigned Suc- 
 cessively in England ; but, as they died without ifTue, the 
 crown was reftored to a prince of the Saxon line, known by 
 name of Edward the confeflbr. 
 
 The
 
 Chap. IX. TO THE NORMAN CONQUEST. i3i 
 
 The conqueft of England by the Danes appears to have 
 been productive of no other political confequences, beiide 
 the interruption given to improvements, by the bloody and 
 deitruclive wars with which it was attended. When Britain 
 was deferted by the Romans, and fell under the Anglo- 
 Saxon government, the country, which had made consi- 
 derable progrels in arts and civilization,, was, of a fudden, 
 reduced into a ilate of barbarifm, and underwent a total 
 revolution of its political fyftem. By the Danifh conqueft, 
 one fet of barbarians were fubjecled to another, of kindred 
 origin and manners ; fo that the fceptre was placed in 
 different hands, without any alteration in the maxims by 
 which it was fwayed, 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 contributed to render the go- 
 vernment more and more ariftocratical. 
 
 It has been already obferved, that the landed eflates, 
 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 opulence of the feveral heads of families who 
 fettled in the country, and from their want of the know- 
 ledge and experience requiiite for the management of 
 extenfive poffeffions. During the continuance of their 
 fettlement, however, and the confequent improvement of 
 their circumftances, the induftry and abilities, or the good 
 fortune, of individuals, were attended with gradual accu- 
 mulations of wealth, and with proportional differences in 
 the diftribution of landed property. 
 
 From
 
 182 PRINCIPAL EVENTS FROM EGBERT Book I. 
 
 From the reign of Egbert, when England became an 
 extenfive kingdom, the ibvereign was neceffarily removed 
 to a diitance from a great part of his fubjecls ; who, for 
 that reafon, were equally beyond the reach of his protec- 
 tion, and of his authority. For putting a flop to thofe 
 predatory incurfions, by which the inhabitants of different 
 diftricts were frequently haralling and injuring one ano- 
 ther, 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, therefore, when the property 
 of any perfon was invaded, or threatened with invafion, 
 by a fuperior power, that the owner fhould not, in many 
 cafes, depend upon the interpofition of the fovereign or 
 public magiflrate, but fhould endeavour to procure the 
 immediate aluitance of fome of his neighbours. As the 
 reciprocal acts of hoftility, which were frequently com- 
 mitted, gave rife to hereditary feuds among particular fa- 
 milies ; io they occafioned, among other families in the 
 fame neighbourhood, a variety of combinations and alli- 
 ances for mutual defence and fecurity. When the parties, 
 who thus formed a defenfive alliance, had been expoied to 
 the lame difficulties, and expected to derive an equal be- 
 nefit from their agreement, they were led to unite upon 
 equal terms, and remained in a ftate of independence. 
 Of the lbcietics formed in this manner, we have many 
 inflances, both in England, and in the other countries of 
 Europe ■■-. 
 
 But it happened more frequently that fmall proprietors, 
 being expoied to continual opprelhon, and to every lort 
 
 * They have been cdled fodalitia, frattrnUata, Dr. Hickcs, Difl". Epift. p. 2j. 
 
 oi 
 
 •
 
 Chap. IX. TO THE NORMAN CONQUEST. 183 
 
 of injuftice, from perfons of greater opulence, were obliged 
 to folicit the aid of one powerful neighbour, in order to 
 fhelter them from the attacks of another. In fuch a fitua*- 
 tion they could not pretend to form an alliance upon the 
 footing of equality ; but were commonly reduced to the 
 necemty of purchafing protection by the offer of fubmiffion 
 and fervices. As they were to obtain, from their protector, 
 the fame advantages which he bellowed upon his ancient 
 military fervants, it was reafonable that they mould, in 
 like manner, acknowledge his jurisdiction, 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 fubmiffion to the feudal fervices, 
 many renounced that allodial property which they were no. 
 longer able to maintain ; and, from the profpect of living, 
 in greater fecurity, allowed themfelves to be degraded into 
 the flate of military retainers or vafTals. 
 
 From a fimilarity of circumftances, thefe tranfactions 
 were often repeated in different parts of the country, and 
 were gradually extended over the whole kingdom. The 
 more the dememes of particular barons had been increafed 
 by fuch voluntary refignations, the remaining proprietors 
 of fmall eflates 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 feu- 
 dal dependency. The allodial proprietors were, in this 
 manner, continually diminifhing ; the landed property of 
 England was daily accumulated in« fewer hands ; and the 
 diltridts pofTefTed by particular barons, who profited by the 
 reduction of their neighbours into a irate of Subordination, 
 were proportionally enlarged. 
 
 Bv
 
 iS 4 PRINCIPAL EVENTS FROM EGBERT Book I. 
 
 By thefe changes, the nobility, it is evident, rauft have 
 obtained more weight in the fcale of government. While 
 the landed eftates of individuals were fo fmall as barely 
 to fupply the necefTaries of life, the owners were too in- 
 coniiderable to procure influence over others,, and too 
 numerous to profecute an uniform plan for the advance- 
 ment of their common intereit. But in proportion as par- 
 ticular perfons had acquired extenfive pofTeflions, they 
 were enabled to maintain a train of dependants and fol- 
 lowers, directed on all occasions by the will of their feudal 
 fuperior, and inured, by long habits, to fcruple at nothing, 
 in order to gratify his ambition, or to exalt his dignity. 
 From the imallnefs 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 fuppofe, was not an idle fpectator 
 of thefe alterations in the condition of his fubjecls. As 
 every opulent baron obliged his poorer neighbours to be- 
 come his vaffals, the king alfo exerted himfelf in the pro- 
 tection of fuch as redded near the royal demefnes, and 
 acquired over them the rights of a feudal fuperior. But 
 the acceflions acquired In this manner, to the revenue of 
 the crown, and to the number of crown vaffals, were pro- 
 bably not fufficient to counterbalance the vafh accumulation 
 of landed property under the lords of particular diftri6ts. 
 We find accordingly, that about the reign of Edward the 
 f onfeflbr, a Godwin, earl of WefTex, a Leofric, duke of 
 Mercra, a Siward, duke of Northumberland, with a few 
 more barons, had become fo powerful, as to be the objects 
 of conftant alarm and jealoufy to the crown, and in a great 
 meafure mailers of the government. 
 8 
 
 The
 
 Chap. IX. TO THE NORMAN CONQUEST. t S- 
 
 The authority of • the Anglo-Saxon princes was, on 
 the other hand, weakened, in many cafes, and prevented 
 from acquiring liability, by the defects of their title to the 
 ibvereignty. 
 
 The pules of fucceflion to the crown appear, in all 
 countries, to have been founded upon the fame princi- 
 ples which, govern the inheritance of private eflates. 
 According to the primitive notions of mankind, it was 
 held, that, upon the death of any perfon, his eftate mould 
 belong to his neareft relations, who, by being members of 
 the fame family, appeared to have the moft intimate con- 
 nection with the family goods, of which they had formerly 
 been a fort of joint pofTefTors with the deceafed. But in 
 that Hate of the world, in which every family required a 
 military leader to provide for their defence, the perfon in- 
 verted with this office was by degrees permitted to afTume 
 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 fuccefhon ; which, in 
 oppofition to the feelings of natural juftice, has been intro^ 
 duced from coniiderations of expediency. The eldeft of 
 the fons, being commonly the firft 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 eftablifhcri 
 from the ordinary courfe of things, it was maintained by 
 the force of cuftom, even in fingular cafes, where he had 
 not the fame fuperiority. In the fucceflion to a monarchy 
 there occurred a double reafon for introducing this right of 
 primogeniture ; as the monarch was not only the leader 
 and reprefcntative of the nation, but alio the heir of thai 
 private eftate, which had been the original fource, and v 
 
 Bb
 
 1 86 PRINCIPAL EVENTS FROM EGBERT Book I. 
 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 often maintained with greater difficulty than 
 occurred in the tranfmifuon 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 monarch, to fall afunder, and to embrace the party of 
 thofe different members of the royal family, who might 
 be tempted to aim at the fovereignty. 
 
 The rules of fucceilion to the crown of England appear, 
 in the period now under examination, to have been gra- 
 dually advancing towards a regular ftandard; but were 
 far from having yet attained a perfect uniformity. Among 
 the nineteen princes who' reigned from the union of the 
 Heptarchy to the Norman conqueft, we meet with no fewer 
 than eight, who, according to the notions of the prefent 
 age, muff, be regarded as ufurpers ; and feveral of thefe 
 obtained the crown by titles, which, though conlidered 
 as in fome degree irregular, had not, in that rude age, been 
 entirely exploded. 
 
 Inltcad of the eldeft fon inheriting the eftate of a fa- 
 mily, it is common, in early ages, that the children mould 
 be altogether fupplanted by the brothers and other colla- 
 teral relations ; who, by having arrived at a greater matu- 
 rity, and poifefling fuperior prowefs, are enabled to put 
 themfelves at the head of their kindred. Thus in many 
 of the hordes, or petty nations, upon the coaft of Guinea, 
 the children are 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 fucceflion of the ancient 
 kings of Numidia, though a country far advanced beyond 
 the itate of primitive barbarilm, the brother, as we are 
 
 5 informed
 
 Chap. IX. TO THE NORMAN CONQUEST. 1*7 
 
 informed by Livy, was preferred to the children of the 
 preceding monarch. A fimilar practice may be difcovered 
 in feveral parts of the Eaftem world. It obtains at prefent 
 in the Ladrone iflands ; as it formerly regulated the tranf- 
 miffion of the crown in the kingdom of Siam, and in 
 fome dynafties of the Chinefe empire. Of this preference 
 of the brothers, or other relations, to the direct defen- 
 dants, there are many traces in the early hiflory of modern 
 Europe ; and among the Anglo-Saxon kings, even after the 
 reign of Egbert, we meet with four inftances of it ; in the 
 perfon of Alfred the Great, of Edred, of Ethelred, and of 
 Edwy ; the three firfl of whom fucceeded to a brother ; the 
 laft to an uncle ; and all of them, in prejudice to the chil- 
 dren of the predecefTor. To thefe may be added Edgar, 
 furnamed the Peaceable^ by whom Edwy his brother was 
 dethroned. 
 
 According to the manners of a rude people, there is 
 frequently little difference, with regard to the right of fuc- 
 ceffion, between the children produced by a concubine and 
 thofe who are born in marriage. It is the circumftance of 
 living in the father's houfe, and having a fort of joint pol- 
 ieflion of the family eftate, that is apprehended chiefiv to 
 bellow upon the children a title to the inheritance ; and, 
 in a country fo deflitute of refinement or delicacy, that the 
 wife is indifferent about the fidelity of her hufband, or is 
 of fo little confequence that her jealoufy is not regarded, 
 his baftards are likely to be often brought up under his 
 own eye, and to receive a promifcuous maintenance with 
 his legitimate offspring. This obfervation may be ill 11 (Ira- 
 ted from the hiflory of early nations, both ancient and mo- 
 dern, and in all quarters of the world. It is remarkable 
 that, among the Ifraelites, in the time of their judges, 
 the lawful children of Gilead had, apparently, no other 
 
 Bb ^ y way
 
 i88 PRINCIPAL EVENTS FROM EGBERT Book I. 
 way of preventing Jephthah, their baftard brother, from 
 fvtcceeding to the father s eftate, than by driving him out 
 of the family *. 
 
 The ftridtnefs of morals introduced by Chriftianity, con- 
 tributed in Europe to diminifh the privileges of baftard 
 children. It does not however appear, that, even fo late 
 as the time of the Norman conqueft, they were under- 
 stood, in any European country, to be totally difqualified 
 from inheriting eftates. In England, not to mention the 
 inftances that might be collected among the kings of the 
 Heptarchy, we find that Athelftan, the natural fon of 
 Edward, the elder, was permitted to mount the throne, in 
 preference to the lawful children of his father. 
 
 The accemon of Canute was merely the effect of con- 
 quer!: ; though that prince endeavoured to fupport his 
 claim by means of a Stipulation, real or pretended, with 
 the former king. Upon the reiteration of the Saxon line, 
 the nobles had acquired fo much power as enabled them to 
 diipofe of the vacant throne. To their favour Edward the 
 •ifefTor, who ufurped the right of the lineal heir, was 
 principally indebted for the crown ; and the advancement 
 of Harold had confcfTedly no other foundation. 
 
 By thefe numerous deviations from the regular courfe 
 of fucceflion, the monarch w r as prevented from acquiring 
 that accumulation of hereditary influence, which is the 
 effect of an uninterrupted and long-continued lineal ^le- 
 fcent ; at the fame time that thofe princes who obtained 
 the crown in an irregular manner were, upon that account, 
 fuVefted to difficulties, from which they were obliged to 
 ate themfelves by courting the nobility, and by ma- 
 king fuch concefTions as tended to alter the balance of the 
 conftitution. 
 
 * Sec Judges, chap. ix. 
 
 From
 
 Chap. IX. TO THE NORMAN CONQUEST. 189 
 
 From a lingular incident, in the reign of the firfl Ed- 
 mund, and which occafioned the death of that prince, we 
 may ealily difcover that the Anglo-Saxon kings depended, 
 in a great meafure, upon the arbitrary afliftance of their 
 followers, for maintaining the dignity and authority of the 
 crown ; and were far from being provided with proper 
 refources for fecuring a decent refpect and obedience to 
 their commands. " As Edmund, one day, was folemniz- 
 " ing a feftival in the county of Glocefter, he remarked, 
 " that Leolf, a notorious robber, whom he had fentenced 
 " to banifhment, had yet the boldnefs to enter the hall 
 " where he dined, and to fit at table with his attendants. 
 " Enraged at this infolence, he ordered him to leave the 
 " room ; but on his refilling to obey, the king, whofe tern- 
 " per, naturally choleric, was inflamed by this additional 
 " infult, leaped on him himfelf, and feized him by the 
 " hair : but the ruffian, pufhed to extremity, drew his dag- 
 u ger, and gave the king a. wound, of which he imme- 
 H diately expired-." 
 
 * Hume's Hiftory of England. 
 
 C H A P.
 
 190 VARIATIONS IN THE STATE OF Book I. 
 
 CHAP. X. 
 
 Variations in the State of Ty things, Hundreds, and Shires. 
 
 THE refignations of land, made by allodial proprie- 
 tors in order to procure the patronage and protection 
 of a feudal fuperior, were moulded in a particular manner, 
 and received a peculiar direction, from the inftitutions 
 formerly mentioned, of tythings, hundreds, and fhires; 
 as, on the other hand, the ftate of thefe inftitutions under- 
 went a great alteration from the progrefs of thofe refig- 
 nations. 
 
 A ty thing was compofed of a number of heads of fami- 
 lies, who, poflefling allodial property of fmall extent, and 
 therefore having few dependants, found it convenient to 
 ]ive together in the fame village or neighbourhood, for 
 their mutual defence and fecurity. The bulk of the free 
 people, or allodial proprietors, appear to have been origi- 
 nally incorporated in the different tythings, throughout 
 the kingdom ; though it is probable, at the fame time, 
 that there were particular thanes, or military leaders, who, 
 from their fuperior wealth and power, had no occafion to 
 join in any ty thing ; and who lived, in a ftate of greater 
 independence and dignity, at the head of their own bond- 
 men, or tenants and vaffals. Befidc the villages, therefore, 
 which were compofed of the freemen, and which had the 
 denomination of tythings, there were others, compofed of 
 
 the
 
 Chap. X. TYTHINGS, HUNDREDS, AND SHIRES. 191 
 the dependants of a feudal fuperior, placed under his im- 
 mediate jurifdiction and authority*. 
 
 The primitive borfholder, or tythingman, was elected 
 by the freemen of the tything over which he prefided ; 
 and at flrft was probably but little fuperior to them in opu- 
 lence. By degrees, however, the rank which he enjoyed, 
 together with the influence, and the perquifltes, which he 
 derived from thence, enabled him to increafe his fortune, 
 and to extend his authority over the different members of 
 the community. Upon his deceafe, therefore, the perfon 
 who inherited his eflate, obtaining a great part of the 
 weight and confideration of the predecefTor, was naturally 
 promoted to the fame office ; which after being continued 
 for many generations in the fame family, and beftowing 
 upon the reprefentative of it fucceilive accumulations of 
 property, was at laft regarded as no longer elective, but as 
 a permanent hereditary dignity. The borfholder came 
 thus, in his own right, to demand military fervice from the 
 members of the ancient tything ; and to claim the privilege 
 of being their judge both in civil and criminal matters. 
 The tything, in fhort, was converted into a barony ; and 
 that voluntary combination of the inhabitants, intended 
 for their mutual defence and fecurity, was now loft in 
 the more intimate connection between a fuperior and his 
 vafTals. 
 
 * See the laws afcribed to Edward the ConfefTor, publifhed by Lambard and WiL~ 
 kins. L. 21. is translated as follows: " Archiepifcopi, epifcopi, comites, barones, et 
 " omnes qui habuerint facham et Jbcam, the/, theam et wfangtheft\ etiam milites fuos, 
 • et proprios fervientes, fcilicet dapifcros, pincernas, camerarios, piflores et cocos, 
 " Tub fuo friborgo habeant. Et item lfti fuos armigcros, vel alios fibi fervientes fub 
 " fuo friborgo. Quod fi cui forisfacerent et clamor vicinorum de eis afTurgeret, ipfi 
 " tinerent eos reclitudini in curia fua : Uli dico qui habcreut facham- et focam, thol ct 
 H theam, et infangthefc. 
 
 As
 
 192 VARIATIONS IN THE STATE OF Book I. 
 
 As the prefident of a tything advanced in the acqui- 
 fition of this hereditary dignity, and found that his autho- 
 rity depended lefs upon the confent of his original confti- 
 tuents, he became lefs attentive, we may fuppofe, to the 
 inferior duties of his office; and the police of the village, 
 in matters of fmall moment, was at length committed to a 
 deputy. The remains of this inferior officer feem to be 
 it ill preferved, in the annual election of a perfon to pre fide 
 in each of the towns or parifhes of England ; who in fome 
 cafes retains the old appellation of headborough, or ty- 
 thingman ; but who, from the branches of bufinefs that 
 have llnce devolved upon him, is more commonly called 
 the petty conjlable. 
 
 Similar caufes produced a change of the fame fort in the 
 condition of the cenleimruis. This magiftrate, like the 
 tythingman, was originally chofen by the freemen of 
 the diitri£t over which he prefided ; but as the richefl 
 man of the diftrict was moft likely to carry the election, 
 fo the longer any individual had remained in the office, he 
 became, from the many opportunities it afforded of increa- 
 fing his riches, the more fecure of holding it for the fu- 
 ture; and for the fame rcafon, the heir of his private for- 
 tune, to whom he communicated his family intereft, had 
 likewife the probability of obtaining the fame dignity in 
 preference to every competitor. Thus the leader of the 
 hundred was, through length of time, converted into a 
 hereditary officer; and, from the fuperiority of his ori- 
 ginal office, was enabled to eftablifh a permanent authority 
 over the feveral tythingmen of his diftricl:. When thefe 
 laft had become the hereditary leaders of ty things, they 
 
 re frequently reduced, therefore, into a ftatc of feudal 
 
 fubordinafion to the hundredcr. In other cafes, the in- 
 
 8 fluence
 
 Chap. X. TYTHINGS, HUNDREDS, AND SHIRES. 193 
 flucnce of this greater magiftra<e was exerted in bringing 
 particular tythings under his immediate protection, and in 
 checking and fupplanting the tythingmen, who might 
 otherwife have acquired a feudal authority in thefe little 
 lucieties. 
 
 When the centenarius became a perfon of too much 
 confequence to execute the inferior branches of bufmefs 
 connected with his department, a deputy w r as appointed 
 for that purpofe ; whence the office of the higb-coiijiable, 
 elected annually in thofe diftricts, appears to have been 
 derived. 
 
 With refpect to the alderman, or chief magiftrate of a 
 ihire, it has been difputed whether he was originally nomi- 
 nated by the king, or elected by the freemen of the terri- 
 tory over which he prefided. From what has been already 
 obferved, the latter of thefe opinions is much more 
 probable than the former. Gonfidering how little power 
 Avas ufually pofTefTed by the fovereign in the infancy of 
 government, not only among the Saxons, but in all the 
 modern dates of Europe ; and confidering that he had nei- 
 ther the nomination of the borfholder, nor of the centina- 
 rius ; it is not likely, that he would affume the appoint- 
 ment of thofe who prefided over the greater divihons of 
 the kingdom. 
 
 It is univerfally admitted, that the Anglo-Saxon officers. 
 who, in the early periods of the Heptarchy, received the 
 appellation of Heretochs^ were elected by the people whom 
 they were appointed to command. Thefe heretochs were the 
 leaders of confiderable bodies of the Saxons, who upon the 
 fettlement of their followers, became the governors of pro- 
 vinces ; and of confequence they were in reality the lame 
 fort of magiftrates with thofe who, upon the more ac- 
 curate divifion of the country into (hires, Mere better 
 
 C c known
 
 194 VARIATIONS INT THE STATE OF Book I. 
 
 known by the name of aldermen or earls. It is therefore 
 highly probable, that the firfl aldermen were appointed in 
 the lame manner with their predecefTors the heretochs. 
 By degrees, however, the chief magiftrate of a fhire was 
 intrufted with the collection and management of feveral 
 branches of the crown revenue within the bounds of his 
 diftrict ; and for the execution of this part of his duty 
 he became, of courfe, accountable to the king. This 
 afforded the fovereign a pretence for interfering in the 
 appointment ; and, from the effect which his interference 
 could hardly fail to produce, appears to have given him 
 a negative upon the election*. How long the aldermen 
 were appointed in this manner, it is not eafy to dilcover : 
 but from the fame circumftances which had operated in 
 the cafe of the tythingman, and of the hundreder; from 
 the neceffity of appointing the moft opulent thane of a 
 fhire, who alone was able to command reflect from the 
 inhabitants ; and from the accumulation of property, and 
 of intereft, arifing from the pofTeffion of that high ita- 
 tion ; the office was frequently continued in the fame 
 families ; and was, in the end, annexed to them as a per- 
 manent dignity. We accordingly find, that, in the latter 
 part of the Anglo-Saxon line, the aldermen, or earls, as 
 they were then more commonly called, had in general 
 become hereditary. In France it appears that the fame 
 change in the ftate of the counts and dukes was, in like 
 manner, completed before the acceflion of Hugh Capet; 
 which correfponds to the Englilh period of the Norman 
 conquelt. 
 
 • In the reign of Alfred the earldoms were all held during the pleafurc of the king. 
 Afll-r. de geft. Alfn di. !n the reign of Edward the ConfefTor they had a third part of 
 all fines, forfeitures, and othci profits of the fhire, for their bbour. Brady's Complcat 
 Hi ft. of England, 
 
 I We
 
 Chap. X. TYTHINGS, HUNDREDS, AND SHIRES. i 95 
 We may eafily conceive that the hereditary governor 
 of a fhire, who had, in his own right, the privilege of 
 aflembling and commanding the forces, as well as of hold- 
 ing the chief tribunal for diftributing juftice, in that ex- 
 tern! ve territory, was pofTefTed of great influence and au- 
 thority ; and that many allodial proprietors would find they 
 had no better means of fecuring themfelves from infult 
 and depredation than by courting his protection. Even the 
 leaders of hundreds, who had acquired a feudal fuperiority 
 over their own diftricts, but who had been placed in a 
 ftation fubordinate to the earl, were fometimes induced, 
 by motives of intereft, to become his immediate vafTals, 
 and to promife the fame fervice and fubmiffion to him, 
 which they exacted from their own military retainers. In 
 particular ty things, more immediately fituated within the 
 jphere of his influence, the powerful protection of the 
 earl fuperfeded that of their own tythingmen, and, by a 
 natural confequence, rendered the inhabitants more defi- 
 rous of yielding homage and fealty to that fuperior magis- 
 trate, than to their own proper officers. In fuch cafes the 
 authority of the fmaller magiftrates was loft and fwallowed 
 up in that of the greater. 
 
 The advancement of the earl gave occafion to the ap- 
 pointment of an inferior officer, the Jheriff; upon whom 
 was devolved the real bufmefs connected with the office. 
 This officer was originally chofen by the free inhabitants, 
 or allodial proprietors of the fhire ; though the extenfive 
 department committed to his care, and the great privileges 
 with which he was inverted, had the fame tendency, as in 
 the cafe of the chief governors, to vary the mode of his 
 appointment, and, in the courfc of time, to beftow upon 
 him an independent authority. 
 
 CC2 It
 
 196 VARIATIONS IN THE STATE OF Book I. 
 
 It was in this manner that allodial was generally con- 
 verted into feudal property, and that an enlarged fydem of 
 military dependencies was at length eftablifhed. The 
 neceflity of defence produced the primitive afTociations of 
 tythings, hundreds, and fhires, compofed of allodial pro- 
 prietors, with their refpeclive bondmen or vafTals. But, 
 from the diforders of fociety, thefe combinations were too 
 loofe and feeble, to anfwer the purpofes for which they 
 were intended. To protect and refcue the individuals in 
 each of thefe communities, it was requifite that their 
 leader mould be inverted with greater authority than had 
 originally been bellowed upon him ; and that his afTociates 
 or followers mould become his permanent military fer- 
 vants. Tythings, hundreds, and even a confiderable part 
 of fhires, were thus changed into fiefs ; and the tything- 
 man, the hundreder, and the earl, became the feudal fu- 
 periors over fuch diftricts as found it expedient to court 
 their protection. A fubordination, too, was introduced 
 among the leaders of thole diftricts ; and the tythingmen 
 of a hundred became frequently the vafTals of the hun- 
 dreder; as many of the hundreders belonging to a fhire 
 became vafTals of that greater baron, the earl. 
 
 As thefe changes were produced very ilowly and gra- 
 dually, it is not furprizing that they mould be overlooked 
 by cotemporary annalift<. The meetings of the ty thing, 
 the hundred, and the mire, appear to have retained the fame 
 names, and to have tranfaevted the fame fort of bufmefs, 
 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, confided merely in a different fliade 
 of authority acquired by the leader or chief magiftrate of 
 thofe divifionj 
 
 It
 
 Chap. X. TYTHINGS, HUNDREDS, AND SHIRES. 197 
 It feems worthy of notice, that this converfion of allo- 
 dial afTociations into feudal dependencies, while it promoted 
 the ariftocracy, was calculated to improve the police of the 
 country. When the tythingman, the hundreder, and the 
 earl were exalted to the rank of hereditary barons, they 
 were more capable than formerly of maintaining good order 
 in their feveral diftricts ; and, as every feudal fuperior was 
 refponfible to the public for the conduct of his vaffals and 
 retainers, he had an intereft to exert his authority in pre- 
 venting 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 punifhment due to their offences* 
 
 C H A P.
 
 198 CHANGES IN THE CONDITION OF Book I. 
 
 C H A P. XI. 
 
 Changes produced in the condition of the Vaffals, and of the 
 
 Pea/ants. 
 
 THE members of every feudal dependency confiited 
 of the military retainers or vaffals, and of the pea- 
 fants, 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 pro- 
 prietors to fhelter themfelves under the protection of a 
 feudal fuperior, and by which the number of military 
 retainers was therefore gradually augmented, the privileges 
 belonging to this order of men were naturally increafed ; 
 and their condition was rendered more fecure and com- 
 fortable. The original vaffals of any perfon were the 
 members of his own family, who, from natural affection, 
 and from ancient habits, were ftrongly attached to his in- 
 tereft, and upon whom, from a reciprocal regard, as well 
 as from the confideration of expediency, when they became 
 too numerous to live in his own houfe, he voluntarily be- 
 llowed the poffeffion of lands for their maintenance. As 
 the fuperior had no reafon to fufpect that thefe men would 
 ever be deficient in fidelity, or feek to withdraw their al- 
 legiance ; fo they entertained no apprehenfion that, while 
 they were willing to fulfil their duty, they mould ever be 
 difpoffeffed of their lands. The intimate connexion between 
 
 the
 
 Chap. XT. THE VASSALS AND PEASANTS. 199 
 the parties, and the fimplicity 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 vafTal, any exprefs ftipulation, with 
 refpect to the duration or terms of his pofTeflion. Thus 
 the original vafTals, though, in fact, their land was com- 
 monly permitted to remain with them and their ponerity, 
 were properly no more than tenants at zvilL and therefore 
 entirely dependent upon the fuperior. 
 
 But when perfons originally independent, had, with a 
 view to certain advantages, allowed themfelves 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 
 expected that thefe new vafTals would be willing to hold 
 their lands in fo precarious a manner. Cautious of yield- 
 ing any greater fubmimon than their circumftances re- 
 quired, or fufpicious of neglect or oppreilion from the 
 perfon whom they had chofen for their protector, they 
 naturally infifted, that the precife conditions of their tenure 
 mould be exprefsly afcertained ; while the fuperior, dif- 
 trufting the fidelity and attachment of men over whom he 
 had no natural authority, and who fubmitted to him, per- 
 haps, with reluctance, and from the mere preifure of 
 temporary difficulties, was no lefs anxious to fpecify the 
 nature of their fervice, and to fecure the performance of 
 it, by fubjecting them, in cafe of negligence or dilubedi- 
 ence, to fevere penalties and forfeitures. From a variety of 
 conjunctures, individuals might be laid under the neceflity 
 of fubmitiing to harder conditions, upon fome creations 
 than upon others ; but, in general when a feudal tenure 
 
 was
 
 aoo CHANGES IN THE CONDITION OF Book. I. 
 was conftituted by the confent of any allodial proprietor, 
 it ieems to have been expreisly provided, that the fief 
 ihould not only remain with the vaflal during life, but 
 fhould defcend, either to his heirs male, or to Inch of his 
 heirs as were lpecified in the grant. 
 
 By the eitablifhment of thole hereditary fiefs, the valTal, 
 inftead of being a precarious tenant, became, in effect, 
 the proprietor of the feudal eft-ate, and the intereit of the 
 fuperior was reduced to a reverfton in default of the vaflaTs 
 heirs, together with a right of levying, in particular cafes, 
 a variety of perquiiites or carnal emoluments. Of thefe 
 carnal emoluments or incidents, as they are called, which 
 might full accrue to the fuperior from the eftate of his vaf- 
 fal, after it was made tranfmiffible to heirs, the feudal wri- 
 ters have commonly enumerated feven different forts. 
 
 I. 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, mould folemnly undertake the perform- 
 ance 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 
 pofleiiion, until the heir fhould claim a renewal of the 
 feudal engagement. This privilege gave rife to what is 
 ( ailed the incident oi non-entry. 
 
 i. When the feudal tenures were precarious, the fons 
 of the valfals frequently endeavoured, by a prefent, to 
 procure the favour of the fuperior, and to obtain the 
 continuance of their anceftor's poffeflion. Even after fiefs 
 became hereditary, it itill was found expedient to fecurc, 
 by means of a bribe* what, though a matter of right, 
 § was
 
 Chap. XI. THE VASSALS AND PEASANTS. 201 
 was not eafily extorted by force; and the original arbitrary 
 donation was converted into a regular duty, under the 
 name of relief. 
 
 3. If the heir of a former vafTal was incapable of per- 
 forming the feudal fervice, he had no right to claim the 
 pofTeffion of the fief. While he was under age, therefore, 
 the lands were pofTefTed by the fuperior ; who, at the fame 
 time, from a regard to his own interefi, if not from affec- 
 tion to the family of his old vafTal, was induced to affume 
 the guardianfhip and protection of the minor, his future 
 military fervant. Hence the complex burthen, and pri- 
 vilege, which went under the name of ward/hip. 
 
 4. During the diforders which prevailed under the feu- 
 dal governments, it was of great confequence that the 
 military vafTals fhould not contract an alliance with the 
 enemy of their liege lord ; which might have a tendency 
 to corrupt their fidelity. When fiefs therefore were lecured 
 upon a permanent footing, a provilion was made againft 
 an event of this dangerous nature ; and the vafTals who 
 married without the fuperior's confent, or who even re- 
 futed to marry according to his defire, became liable to 
 a pecuniary compofition or penalty. Such was the incident 
 of marriage ; a perquifite fuited to the rude and barbarous 
 manners which occafioned its eftablifhment. 
 
 5. Befide the ordinary revenue which the fuperior drew 
 from his eifate, he was accuftomed, upon extraordinary 
 emergencies, to apply to his vafTals, and to requeft from 
 them a contribution in order to relieve him from his im- 
 mediate embarrafTment. While they held their lands pre- 
 carioully, a requeft of this nature was equal to a command; 
 fince the fuperior might at pleafure feize upon the whole 
 eftate of his tenants. But when the vaflals had obtained a 
 
 D d more
 
 202 CHANGES IN THE CONDITION OF Book I. 
 more permanent right, it became neceiiary to fettle the 
 particular occafions upon which thofe contributions were 
 to be made, as well as the extent of the fum that might be 
 demanded ; and in this manner, aids or benevolences came 
 to be enumerated among the duties payable to a fuperior. 
 Three cafes are mentioned, in which, over all the feudal 
 kingdoms, thefe contributions might be exacted ; to redeem 
 the fuperior from captivity ; to portion his eldeft daughter, 
 at her marriage ; and to defray the expence of making his 
 eldeft fon a knight. 
 
 6. Though a fief had been rendered hereditary ; yet, 
 upon the total failure of heirs, it necefTarily returned to 
 the fuperior. The vafTal might alfo forfeit his right to the 
 lands, by his neglect to perform the feudal fervice, or by 
 any violation of his duty. This forfeiture, or termination 
 of the fief, was called an ejeheat. 
 
 7. From the primitive flate of the feudal tenures, the 
 vafTal had no title to alienate his fief, which he polTefTed as 
 the wages merely of his military fervice. But when fiefs, 
 by being tranfmiffible to heirs, began to afTume the appear- 
 ance of property ; when the general advancement of arts 
 had rendered land more frequently an object of commerce; 
 and when, upon the fuppreffion of the former diforders, 
 the military fervice of the vafTal was rendered of lefs im- 
 portance, it became cuftomary, by the payment of a fum 
 of money, to compound with the fuperior for the privilege 
 of felling the feudal eft ate. This produced the perquifite of 
 fuperiority called the Jin e 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 vaifal. 
 
 After
 
 Chap. XL THE VASSALS AND PEASANTS. 203 
 After this new fpecies of military retainers had become 
 numerous, and had fpread themfelves over the country, it 
 is natural to fuppofe that their privileges would, by the 
 force of example, be communicated to the ancient vaf- 
 fals. The ancient feudal tenants, who from the more 
 extended connections of the fuperior, had probably become 
 lefs the objects of his peculiar attention, and were not 
 always treated with thofe marks of distinction to which 
 they fuppofed themfelves entitled, beheld with envy and 
 jealoufy the liability and fecurity enjoyed by his new 
 vafTals ; and were folicitous to hold their lands under the 
 fame permanent tenure. A concefTion of this nature, 
 by which the old and faithful followers of a chief were 
 placed upon a footing of equality with Strangers, could 
 Seldom be decently withheld from them; and in cafes where 
 he flood in immediate need of their afllftance, was likely 
 to be eafily obtained. As thefe privileges were flowly 
 and gradually introduced, and as they were often acce- 
 lerated or retarded by the fituation of particular baronies, 
 not to mention a variety of accidental circumstances, it is 
 impoflible to mark the precife period at which their esta- 
 blishment was compleated ; though it is probable that, 
 before the Norman conqueSt, they were extended to the 
 greater part, if not the whole, of the ancient vafTals. 
 
 While the incidents due to the fuperior were thus af- 
 certained with accuracy, the interest of the vafTals made it 
 no lefs necefTary, that the extent and duration of their mi- 
 litary fervice mould be exactly determined. In Britain, 
 and probably in feveral kingdoms upon the continent, 
 it was limited accordingly to forty days for each year; a 
 period that might appear fully fufficient for thofe defultory 
 enterprizes which the fuperior had occalion to undertake. 
 
 Dd 2 It
 
 204 CHANGES IN THE CONDITION OF Book I.. 
 ff ever he chofe, after the expiration of this period, to 
 retain his vaiTals in the field, he was under the neceflity of 
 procuring their content, and was obliged to bear the 
 charges of their maintenance. 
 
 The effect of thefe changes in the flate of the military 
 tenures could not fail to be difcernible in the adminiftra- 
 tion and government of every feudal dependency. Though 
 it ftill was, no doubt, the intereft of the vafTals to avoid all 
 contention with the fuperior, and to merit his favour by 
 their fidelity and alacrity in the difcharge of their duty, 
 yet they were not under the fame neceflity of paying an. 
 implicit obedience to his commands. To whatever incon^ 
 veniencies they might be fubjected from the manner of 
 levying the feudal incidents^ yet, while they punctually 
 performed their fervices, they coukl not, without grofs 
 injuitice, be deprived of their poffeflions ;• and they had 
 a right to follow their own inclination in the management 
 of their private concerns. Senfible of this alteration in 
 their circumfiances, the fuperior was induced to be more 
 cautious of difobliging them, to pay more deference to 
 their opinions, to liften and give way to their remonftran- 
 ces, and, in public meafures of importance, to act. with their 
 advice and concurrence. Thus, while the influence and 
 power of the great lords was gradually extended by the 
 multiplication of their vafTals, their authority over each 
 particular vafTal was neceflarily reduced ; and they were 
 obliged to exercife it with greater moderation, as well as 
 to endeavour, by the arts of popularity, and even, fome- 
 times, by pecuniary rewards and advantages, to gain the 
 effectual fupport of their followers. 
 
 The improvements made in agriculture, produced alte- 
 ration^ of no lefs importance, in the itate of the pealants 
 
 4 or.
 
 Chap. XI. THE VASSALS AND PEASANTS'. 205- 
 or cbur/es. The peafants, as has been formerly obferved, 
 were originally bondmen or Haves. But as from the nature 
 of their employment, and from their living at fuch a dis- 
 tance as to be beyond the reach of the matter's infpe&ion, 
 it was found expedient to excite their induftry by beftow- 
 ing upon them fucceffive gratuities and privileges ; many 
 of them were enabled, at an early period, to acquire con- 
 fiderable property ; and fome of them were advanced to 
 the condition of tenants, intrufted by the mailer with a 
 difcretionary management of their farms. In the natural 
 courfe of things, thefe tenants were afterwards railed to a 
 flill better Situation. When, in confequence of fome ex- 
 perience in husbandry, they were about to undertake an 
 expenfive melioration of their farms, common prudence 
 required that they mould be fecure of the pofleflion, for 
 fuch a period as might afford them a reafonable profpecl: 
 of a return for their labour and expence. By offering an 
 advanced rent to the matter, they fometimes prevailed 
 upon him to make an agreement of that nature, and to 
 grant them a leafe for a certain number of years. From 
 the improving circumftances of the tenant, he fometimes 
 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 purchale of the lands. 
 
 Thofe churles who had acquired a landed eftate tranf- 
 miilible to heirs, to be held for payment of a yearly rent, 
 were denominated focca^e ua£a/s. From their employ- 
 ment and character, they were of an inferior rank to the 
 military vallate ; but they had the lame permanent right 
 to their eftates. They were alio liable to the fame incidents 
 
 of
 
 2o6 CHANGES IN THE CONDITION OF Book I. 
 
 of fuperiority \ excepting thofe of ward/hip and marriage ; 
 the former, becauie the fuperior was difpofed to pay no 
 attention to the education of fuch of his dependants as were 
 employed merely in agriculture ; the latter, becaufe the 
 alliances which they contracted were deemed of little con- 
 fequence to him. 
 
 The churles who made a full purchafe of a landed eftate 
 mould have become allodial proprietors, and have acquired 
 the rank and privileges of nobility ; but the influence of 
 ancient ufage prevented fo fudden and violent a change in 
 the rank of individuals ; and as the proprietor who fold his 
 lands, was unwilling entirely to reiign his dignity, fo the 
 purchafei; had not the prefumption to deprive him of it. To 
 retain a faint fhadow of the ancient connection, the latter 
 became bound, as an acknowledgment of the fuperiority, to 
 pay to the former an elufory annual duty, if ever it mould 
 be demanded *. We find that, by a ftatute in the reign of 
 king Athelftan, a churle who had purchaied an eftate con- 
 lifting of five hides of land, with certain appendages, ufual- 
 ly pofTefTed by gentlemen of that fortune, was declared to 
 have a right to all the privileges of a tha?ie\ by which thofe of 
 a lejfer thane y or military vaftal, were probably underftood t. 
 
 From this law, which demonftrates that the encourage- 
 ment of agriculture was become an object of public atten- 
 tion, it may be 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 privileges of the military people; fince thefe were not 
 conferred upon them without a fpecial interpofition of the 
 
 This tenure has been frequently confounded with the ordinary foccage j but 
 fomctimes is diftinguifhed by the name of blanch. 
 
 t Judicia civiutis Lundoni.r. Wilkins, Leg. Sax. p. 70. 
 
 9 legiflature ;
 
 Chap. XL THE VASSALS AND PEASANTS. 207 
 
 legiflature ; nor even by that ftatute, except upon fuch as 
 had accumulated a very confiderable eflate. 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 with 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 pea- 
 fants, together with the advances in hufbandry from which 
 it proceeded, gave rife to an immediate improvement in 
 arts and manufactures. The firft artificers were villeins, 
 or fervants of the greater thanes ; who happening to difco- 
 ver fome ingenuity in the common mechanical arts, were 
 employed by the mafter in thofe branches of manufacture, 
 which he found requifite for his accommodation. The 
 pofTeflion of their farms, according to the rude manner in 
 which agriculture was then practifed, did not hinder them 
 from exerciling this collateral employment. When thefe 
 people began to be emancipated from their ancient bond- 
 age, they were at liberty to work, not only for their former 
 mafter, but for every perfon who chofe to employ them ; 
 and by working for hire, they drew a regular profit for 
 their labour. A competition was thence introduced among 
 different workmen, which contributed to promote their in- 
 duftry and fkill ; at the fame time that the improvements 
 which have been mentioned in the condition of the lower 
 clafs of people, by increafing their opulence, produced an 
 increafe of demand for the ordinary conveniencies of life ; 
 and therefore afforded greater encouragement to the occu- 
 pations by which thofe conveniencies were fupplied. Par- 
 ticular branches of manufacture, or of labour, coming in 
 
 this
 
 ao8 CHANGES IN THE CONDITION OF Book I. 
 
 this manner to be more in requeft, occafioned 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 fingle branch in which they 
 had attained a peculiar proficiency. 
 
 A variety of trades and mechanical profeflions were thus 
 introduced; and the artificers and labourers compoied a 
 ieparate order of men in the community. As thefe grew 
 up and were multiplied, they became the chief part of the 
 inhabitants in thofe villages where they refided; which 
 were gradually enlarged into towns, of more or lefs extent 
 according as their lituation, or other circumftances, proved 
 more favourable to manufactures. 
 
 It is unnecefTary to obferve, that the feparation of trades 
 and profeflions, among the different inhabitants, occa- 
 fioned, of courfe, a degree of traffick or exchange of com- 
 modities. When the artifans, as well as the farmers, con- 
 fined themfelves to a fingle employment, they were able, 
 by their own labour, to produce only one fort of commo- 
 dity ; and if they wanted any thing of a different fort, they 
 had commonly no other method of procuring it, than by 
 an exchange with the perfon who had produced it. This 
 exchange was at firft limited, we may fuppofe, to the inha- 
 bitants of the fame town or village ; but, according as dif- 
 ferent places began to excel in manufacturing goods of dif- 
 ferent kinds, it was extended to neighbouring towns, or to 
 the more diflant parts of the country. Upon the opening 
 of fuch intercourfe between places at a diflance, the inha- 
 bitants found it, in fome cafes, inconvenient to go them- 
 felves to purchafe the goods which they wanted, and had 
 occafion therefore to employ fome of their neighbours for 
 that purpofe ; from which there arofe, by degrees, a com- 
 mon
 
 Chap. XI. THE VASSALS AND PEASANTS. 20 > 
 
 mon carrier, upon whom this branch of bufineis was fre- 
 quently devolved. As this perfon acquired a little flock, he 
 adventured fometimes, 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 ped- 
 lar or travelling merchant. 
 
 Although thefe tradefmen and mechanics were no 
 longer in a fervile condition, they had ftill much depen- 
 dence upon the original mailer, or feudal fuperior, of that 
 village or town in which they reiided. He defended them 
 rom 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 
 difpoiitions, they were of themfelves but ill qualified to 
 refill. He alfo encouraged and promoted their trade, by 
 permitting them to hold fairs and markets, or ftated feafons 
 of rendezvous, between the merchants and cuftomers of 
 different places ; by fupplying them with warehoufes, and 
 with meafures and weights, for the fale of their goods ; 
 and by fuch other kinds of affiflance as, from the rude 
 Hate of the country, and ih the infancy of commerce, 
 their circumllances made them ftand 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 aug- 
 mented his revenue in proportion to the increafe of their 
 wealth. 
 
 According as the patron and protector of thefe manu- 
 facturing and trading towns was pofTefled of greater in- 
 fluence and power, their trade was likely to be the more 
 profperous and flourifliing. Some of thofe towns, having 
 fprung from the peafantry of the crown-dememes, were un- 
 der the immediate patronage of the fovereign; others, being 
 
 E e fituated
 
 aio CHANGES IN THE CONDITION OF Book ft. 
 
 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 meafure, 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 defirous of encouraging, produced a refort of 
 the nobility and gentry to thofe places ; and, by the expen- 
 iive living incident to a court, created an additional con- 
 fumption 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 preciflon ; but there is reafon to be- 
 lieve that it was not very confiderable. Of this we need 
 require no farther evidence than the fmall fize of the prin- 
 cipal towns in the reign of William the conqueror*. It 
 appears however, that, for more than a century before that 
 period, the commerce and manufactures of the country 
 had been making advances which attracted the notice of the 
 legislature. By a law of king Athenian it is enacted, that 
 a merchant who, upon his own account, had made three 
 trading voyages to a foreign country, fhould acquire the 
 privileges of a thane t. Such extenfive trade, it was pro- 
 bably thought at that time, could be attempted only by a 
 perfon of uncommon fpirit, and in affluent circumftances ; 
 whofe elevation, while it ferved as an incitement to com- 
 
 * With regard to this point, fee Doomfday-book— and Dr. Brady on Boroughs. 
 
 t Et fi mercator tamen fit, qui ter trans altum marc " per facultates proprias abeat, 
 " ille polka jure thani fit dignus."-~[Judicia civitatis Lundoniae. Wilkins, Leg. 
 Sax. p. 7 i . J 
 
 mercial
 
 Chap. XI. THE VASSALS AND PEASANTS. 211 
 mercial enterprize, might be regarded as no difparagement 
 to the military people. In other flatutes which have been 
 preferved, of the fame, and of fubfcquent princes, we 
 meet with fome of thofe fundamental regulations, which 
 commonly have place in every country, upon the firift 
 efforts to introduce a regular commerce ; fuch as the efta- 
 blifhment of certain formalities in completing mercantile 
 tranfactions * ; and the appointment of a mint in the prin- 
 cipal towns t ; together with that of a common ftandard of 
 money, and of weights or meafures J. 
 
 By the addition of artificers and tradefmen to the diffe- 
 rent orders formerly mentioned, the whole people of Eng- 
 land came now to be diflinguifhed into four great claries ; 
 which, from their differences in rank or employment, in 
 characters and habits of living, were feparated and kept at 
 a diftance from one another. Thofe who exercifed the 
 honourable profeflion of arms, whether in the flation of 
 greater or leffer thanes, of fuperiors or vaffals, thought it 
 inconfiftent with their dignity to engage in any lucrative 
 occupation ; and difdained to contract alliances with farmers 
 or manufacturers ||. The two latter orders of men, though 
 nearly of the fame rank, were by their fituation prevented 
 from living together, and led to acquire very different 
 manners, and ways of thinking. The folitary and robufl 
 employment of the farmer was not apt to form a fimilar 
 
 * Wilkins, Leg. Sax. p. 80, 81. 
 •\ Ibid. p. 59. 
 % Ibid. p. 78. 
 
 || After the Norman conqueft, we find that the fuperior lord was prohibited by 
 ftatute to marry his female ward to a villain or a burgefs. It is probable that the 
 rank of the two laft-mentioncd orders of men had rifen confiderably, before this pro- 
 hibition was thought neceflary, 
 
 E e 2 flyle
 
 212 CHANGES IN THE CONDITION OF Book I. 
 ftvle of behaviour and accomplishments to that which was 
 produced by the fedentary town-life of the manufacturer ; 
 and in a country where improvements had not been carried 
 fo far as to create an intimate correfpondence among all the 
 members of fociety, thofe two fets of men were not likely 
 to exchange their profeffions. The children of the farmers, 
 as well as thole 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. Not only were thofe two orders of men, in gene- 
 ral, confined to their refpective profeffions, but the mecha- 
 nics, employed in the feveral branches of manufacture, 
 frequently tranfmitted their occupations to their pofterity ; 
 and continued them, for many generations, in the fame fami- 
 lies. The clergy, who formed a numerous and powerful 
 body, were no lefs diftinguifhed from the other three 
 claries, by their peculiar education, by their feparate views 
 of intereft, and by their profeffional character and man- 
 ners. The celibacy, indeed, of the clergy, which, however, 
 was introduced in England after the period that we are 
 examining, prevented this order of men from being fo 
 entirely feparated from the reft of the inhabitants, as 
 might otherwife have been expected. When churchmen 
 were prohibited from having pofterity of their own, it 
 was neceflary that their profeffion mould be fupplied from 
 the other ranks of the fociety. 
 
 From the natural courfe of things, it ihould feem, that 
 in every country where religion has had fo much influence 
 as to introduce a great body of ecclefiaftics, the people, 
 upon the firit advances made in agriculture, and in manu- 
 factures,
 
 Chap. XI. THE VASSALS AND PEASANTS. 2T3 
 
 failures, are ufually distributed into the fame number of 
 claffes 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 regula- 
 tion, or more probably by the influence of cuftom, derived 
 from the early Situation of the country, kept invariably 
 diftinct from one another. The eftablifhment of the four 
 great cq/ies, in the country of Indoftan, is precifely of the 
 fame nature. This diviiion of the people, which goes back 
 into the remoter!: antiquity, has been afcribed, by hiftorians 
 and political writers, to the positive institution of Brama, 
 the early, and perhaps fabulous legislator of that country ; 
 but, in all probability, it arofe from the natural feparation of 
 the principal profeflions or employments in the State ; as it 
 has been fince retained by that exceffive indolence, to which 
 the inhabitants of thofe warm and fertile regions are ad- 
 dicted, and which has hitherto checked their improvements, 
 by producing an averfion to every fpecies of innovation. 
 
 CHAP.
 
 214 INFLUENCE OF CHANGES UPON THE Book I. 
 
 C EI A P. XII. 
 
 The Influence of thcfe Changes upon the JurifdiBion and 
 Authority of the feudal Lords, 
 
 THE advancement of the Anglo-Saxon vafTals and 
 peafants to greater fecurity and freedom, and the 
 feparation of the trading people from the clafs of huf- 
 bandmen, could not fail to limit the authority of the 
 fuperior, and more efpecially to affect the Hate of his 
 jurifdiclion. When his military retainers held their bene- 
 fices precarioufly, and when the other members of his 
 barony were either bondmen, or merely tenants at will, 
 he found himfelf under no reftraint, in deciding their 
 differences, and in punifhing their offences ; but after the 
 former had obtained hereditary fiefs, and a great pro- 
 portion of the latter had been exalted to the rank of 
 foccage-vafTals, he was obliged to relax his claim to their 
 obedience, and to diftribute juftice among them with 
 greater moderation and circumfpecfion. 
 
 The retainers of every feudal fuperior were bound, not 
 only to the performance of military or other fervices, 
 but alfo to aflift him in maintaining good order and tran- 
 quillity 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 decid- 
 ing by virtue of his own authority, to call a number of 
 his other vafTals, and to proceed with their advice and 
 concurrence in trying the caufe. This expedient was the 
 6 moft
 
 Chap. XII. JURISDICTION OF FEUDAL LORDS. 215 
 moft equitable for the perfon concerned in the trial, as 
 well as the beft calculated for giving weight to the decilion. 
 The afTefTbrs of the judges were the pares cufia 9 men of 
 the fame rank with one another, and with the parties ; 
 they were chofen occafionally, and varied in each caufe, 
 to avoid burdening any individual more than his juft 
 proportion; and they were commonly felected from the 
 neighbourhood of the place where the accufation or dif- 
 pute had taken its rife, that, from their own private know- 
 ledge, they might be enabled to form a better judgment of 
 the facts in queftion. 
 
 Thus the trial by an inqueft, or jury, which had for- 
 merly taken place in the tribunals of the fhire, and of the 
 hundred, was introduced into thofe of a feudal barony. 
 The caufes, however, of this inftitution, in the former 
 and in the latter, were fomewhat different. A jury was 
 found convenient, in the courts of the mire, and of the 
 hundred, to fuperfede the attendance of all their mem- 
 bers ; and might be regarded as a fort of committee, in 
 place of a full and regular meeting. In the courts of the 
 baron, its interpofitions became neceflary, in place of the 
 decisions formerly given by the judge himfelf, in order to 
 fupply his deficience in authority over vaffals whofe fiefs 
 had been fecured to them by a permanent right. A jury 
 was therefore an inftitution lefs popular than that which 
 had formerly obtained in the county or the hundred courts, 
 but more fo, than the mode of jurisdiction originally dis- 
 played in the courts of the baron. It is reafonablc, at the 
 fame time, to fuppofe, that, when allodial proprietors had 
 been changed into vaffals, the cuftom of jury-trials in the 
 courts of the former, would facilitate the introduction 
 
 of
 
 ai6 INFLUENCE OF CHANGES UPON THE Book I. 
 of a fimilar practice in the judicial eftablifhments of the 
 
 latter. 
 
 That this form of trial obtained univcrfally in all the 
 feudal governments, as well as in that of England, there 
 can be no reafon to doubt. In France, in Germany, and 
 in other European countries, where we have any accounts 
 of the confutation and procedure of the feudal courts, it 
 appears that law-iuits of every fort, concerning the free- 
 men or vafTals of a barony, were determined by the pares 
 curia ; and that the judge took little more upon him, than 
 to regulate the method of proceeding, or to declare the 
 verdicl of the jury. 
 
 The number of jurymen was originally varied in each 
 caufe, according as the opulence and power of the parties, 
 or the magnitude of the difpute, rendered it more or lefs 
 difficult to enforce the decifion. So little, after all, was the 
 authority of the court, that, in many cafes, the party ag- 
 grieved by the verdicl afTumed the privilege of challenging 
 the jurymen to fingle combat-. From the progrefs of 
 regular government, and in confequence of the difpofition 
 among mankind to be governed by general rules, a certain 
 number of jurymen became cuftomary in ordinary caufes ; 
 and at laft was univerfally eftablifhed. From accidental 
 circumftances, of little importance, a different number has 
 been eftablifhed in different countries ; as that of twelve 
 in England, and fifteen in Scotland. 
 
 With rcfpedl to the time when trials by jury were nrft 
 introduced into the court of every feudal barony, we are 
 left in the fame obfcurity, as concerning their previous 
 introduction among the allodial proprietors, in the courts 
 
 * Spirit of Laws. 
 
 of
 
 Chap. XII. JURISDICTION OF FEUDAL LORDS. 217 
 of the hundred and of the county. But, considering the 
 circumstances from which the fuperior was induced to 
 adopt this mode of procedure, there is ground to be- 
 lieve that it arofe upon the eftablifhment of hereditary 
 •fiefs, and became gradually more univerfal, according as 
 the number of the feudal tenants, who had obtained a 
 perpetual right to their pofieflions, was increafed. 
 
 In this view, it feems probable that the practice of 
 juries, in the baron-courts, was not very common in Eng- 
 land till near the end of the Anglo-Saxon government. In 
 the opinion of fome antiquaries, the firit veftige of a jury- 
 trial, in the Englifh hiftory, is pofterior to the Norman 
 invafion ; a miitake which appears to have arifen from 
 the fuppofition, that before this period hereditary fiefs 
 were unknown in England. 
 
 Though [the fact feems now to be admitted, that jury 
 trials were eftablifhed in the baron courts of every feudal 
 kingdom, yet the origin of that institution has been the 
 Subject of much doubt and controverfy. Some authors 
 have thought that jurymen were originally compurgators, 
 called by a defendant, to fwear that they believed him 
 innocent of the facts with which he was charged. In the 
 church courts, a perfon accufed of a crime, was understood 
 to be guilty, unlefs he could clear himielf by what was 
 called the oath of purgation ; and in fome cafes, unlets his 
 own oath was confirmed by that of a number of other per- 
 fons acquainted with his behaviour. The injustice of this 
 general preSumption of guilty the very oppofite of what 
 Should be entertained in every court of juftice, was the 
 lefs obfervable, as the coniequence of it was merely to 
 draw upon the guilty perfon a Spiritual admonition, or 
 cenfure, for the good of his foul. From the influence of 
 
 V t" ecclefi-
 
 ai8 INFLUENCE OF CHANGES UPON TH E Book I. 
 ecclefiaftical procedure, the fame rule, however, was after- 
 wards adopted in the temporal courts ; where it came to be 
 much more oppreflive. 
 
 But the province of compurgators, in thofe courts, and 
 that of jurymen, were fo totally different, as to make it 
 fcarcely poffible to conceive that the latter could arife out 
 of the former. Compurgators were merely witneffes : 
 jurymen were, in reality, judges. The former were called 
 to confirm the oath of the party, by fwearing, according 
 to their belief, that he had told the truth : the latter were 
 appointed to try, by witneffes, and by all other means of 
 proof, whether he was innocent or guilty. Compurgators, 
 for this reafon, were called by the party himfelf : the jury, 
 on the contrary, were named by the magiftrate. 
 
 In confequence of the different departments, occupied 
 by thefe two defcriptions of men, it mould feem that, in 
 moft of the feudal governments, they exifled at one and 
 the fame time ; and that juries were accuflomed to afcer- 
 tain the truth of facts, by the defendant's oath of purga- 
 tion, together with that of his compurgators. We can 
 have no doubt that this was formerly the practice; lince 
 it is, even at prefent, retained by the Englifli, in what is 
 called the wager of law. 
 
 There are two particulars in which we difcover a refem- 
 blance between the procedure of compurgators and of 
 jurymen ; whence, in all probability, the opinion above 
 mentioned has arifen. Both of them were obliged to 
 fwear that they would tell the truth ; and both were fub- 
 icclcd to confinement until they had given their declara- 
 tion. But thefe regulations concerning jurymen afford no 
 proof that they were ever confidered in the light of com- 
 purgators. According to the fimple idea of our fore- 
 fathers.
 
 Chap. XII. JURISDICTION OF FEUDAL LORDS, 219 
 
 fathers, guilt or innocence was regarded as a mere matter 
 of fact ; and it was thought, that no man, who knew the 
 real circumftances of a cafe, could he at a lofs to determine 
 whether the culprit ought to be condemned or acquitted. 
 It was, at the fame time, fufpected, that individuals drawn 
 occafionally from the common mafs of the people, to give 
 judgment in a law-fuit, might be expofed to Improper 
 influence ; for which reafon precautions were taken to pre- 
 vent their having the lead intercourfe with the parties or 
 their connexions. 
 
 As to the unanimity required in the Englifh juries, a 
 circumftance in which they agree with the ancient com- 
 purgators, it has not been univerfally eftablifhed in the 
 feudal governments. Prefident Montefquieu, at the fame 
 time, accounts for it, from a point of honour obferved by 
 the pares curia in their judicial decifions, that they fhould 
 agree with one another in pronouncing a verdict ; becaufe 
 they were obliged to fight either of the parties who might 
 give them the lie. 
 
 The fame form of procedure which took place in the 
 adminiftration of juftice, among the vaffals of a barony, 
 was gradually extended to the courts held in the trading 
 towns. Notwithstanding the freedom acquired by the 
 mercantile people, they ftill fubmitted to the jurifdiclion 
 of that perfon to whom they were indebted for protection, 
 and were reduced by him under a iyitem of government, 
 fimilar to that which he eftablifhed among his vaffals. In 
 as much as they held lands, for which they paid him a 
 certain rent, they were in reality a fpecies of feudal 
 tenants. 
 
 The ancient jurifdiclion of the greater thanes, or feu- 
 dal fuperiors, came thus to be exercifed in two different 
 
 Ff 8, courts*
 
 220 INFLUENCE OF CHANGES UPON THE Book I. 
 com . 4 one, in which caufes were determined with 
 
 the aihTtance of a jury, took cognizance of the military 
 and focca^c vaffals« together with the inhabitants of the 
 >\fcis, under the protection of the iuperior. The 
 belch proceeded without that formality, was held 
 for the trial of Inch members of the barony as were frill 
 in a ftate of greater dependence. The former is that which, 
 
 ording to fbnie authors, was properly called the court- 
 
 ; being the court of the Liti, or free people. The 
 latter, in which the fuperior retained his ancient autho- 
 rity received, by way of diltinction, it is laid, the general 
 appellation of the court baron *. 
 
 It is worthy of notice, that the king, coniidered as a feu- 
 dal iuperior, was in the fame circumftances with the greater 
 thanes ; and that, by the gradual multiplication of his vai- 
 fals, his authority over them underwent a iimilar limita- 
 tion. The fame regulations, therefore, concerning the 
 distribution of juftice by the intervention of juries, with 
 the fame distinction in this reipect between his vafTals and 
 bondmen, were introduced into the baron courts of the 
 king, as into thofe of the nobility, or fuch of his fubjecis 
 as retained their allodial property. 
 
 The improvements which I have mentioned, in the 
 ftate of the feudal courts, could not fail to produce a more 
 equal and impartial diitribution of juftice; and this cir- 
 cumftance, together with the general advancement of civil 
 fociety, contributed to incrcafe the buiinefs of thofe tri- 
 bunah. From the greater difFufion of property among the 
 
 * Bacon's dilcourfe on the government of England, coMefled from the MS. notes 
 of Mr. Selden, chap. 33. Alfo The Mirror. 
 
 w Liti ac Litones idem ac Lafli et Libera cenkntur." Muratori Ant. Med. A vi 
 torn. i. diflirt. 1 5. 
 
 people
 
 Chap. XII. JURISDICTION OF FEUDAL LORDS. 22* 
 people of inferior condition, law-fuits became fomewhat 
 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 exer- 
 cife of jurifdiction was thus rendered more tedious and 
 burdenfome, the great lords, as well as the king, who had 
 been accuitomed to preiide in the trial both of civil and 
 criminal caufes, within their feveral baronies, were lefs 
 difpoied to give the heceflary attendance ; and, by appoint- 
 ing deputy judges, endeavoured to relieve themfelves from 
 a great part of the labour. The fame circumltances which 
 gave rife to theie inferior officers, contributed afterwards 
 to enlarge their powers ; and from the negligence of their 
 con flit uents, who feldom interfered in controuling their 
 decifions, and at laft intirely abandoned the employment 
 of judging, they became the ordinary magiflrates in the 
 feveral demefnes or territories committed to their di- 
 rection. 
 
 The transference of jurifdiction, from the primitive 
 judges to their deputies, laid a foundation for one of the 
 moft important alterations in the fyftem of judicial policy. 
 The executive and judiciary powers,- with which every 
 feudal baron was originally inverted, were in this manner ie- 
 parated from each other; and the exercile of the latter 
 became the fole occupation of particular pcrfons; who, upon 
 that account, were likely to give greater application, as 
 well as to acquire more experience and knowledge in the 
 determination of law-fuits. The judges of a barony, though 
 nominated by the baron, had neceilarily their own views 
 of right and wrong; and having a character to fupport, 
 might be fuppofed, in feme cafes, to conduct themfelves 
 without regard to the intereft of their conltituents. T .t 
 
 happened
 
 INFLUENCE OF CHANGES UPON THE Book I. 
 
 happened likewife from the natural courfe of things, that 
 the moil opulent vaflals were found the bell qualified 
 for maintaining the dignity of a judge, the fame perfons 
 were frequently enabled to fecure the office during life, 
 and even ibmetimes to render it hereditary. In either 
 cafe the judge became in a great meafure independent of 
 the feudal lord from whom his authority had been derived. 
 It mull be acknowledged, however, that long after the 
 period which we are now examining, the king's judges con- 
 tinued under a precarious appointment. 
 
 A diftinguiihed political author has pointed out the 
 feparation of the judicial power from the king's preroga- 
 tive, as one of the great fources of the liberty enjoyed by 
 the fubjedls of Britain. To thofe who fpeculate upon the 
 conduct of human affairs, it is amufing to difcover, that 
 this important regulation was neither introduced from any 
 foreiight of its beneficial confequences, nor extorted from 
 the monarch by any party that were jealous of his power; 
 but was merely the fuggeftion of indolence ; and was 
 adopted by the king, in common with other feudal fupe- 
 riors, to relieve them from a degree of labour and attention 
 which they did not chufe to bellow. It was, in reality, a 
 confequence of the general progrefs of fociety, by which 
 employments of every fort, both liberal and mechanical, 
 have been diflributed among different individuals, and 
 have become the objecl: of feparate profeffions and 
 trades. 
 
 As loon as the bufincfs of a judge became the folc 
 employment of particular perfons, it was necelfary that 
 they mould obtain a maintenance in return for their labour. 
 This was acquired without any difficulty, from the very 
 exercife of their profeffion ; as the fuperior by whom 
 9 they
 
 Chap. XII. JURISDICTION OF FEUDAL LORDS. 2*3 
 
 they were appointed, empowered them to exact a fee or 
 perquifite from every party whofe caufe they had occafion 
 to determine. Thefe exactions, which came to be fixed, 
 in every flep of judicial procedure, according to the degree 
 of trouble it was underftood to produce, were not only 
 fufficient for maintaining the judge, but afforded alfo an 
 emolument to the fuperior, who demanded from his de- 
 puty a ftrict account of the fees he had levied. To pre- 
 vent any embezzlement in this refpecl, a clerk was ap- 
 pointed, to fit in court along with the judge, and to keep 
 a record of judicial proceedings. Such was probably the 
 firft intention, not only in England, but in all the feudal 
 countries, of recording the decifions of a judge ; though 
 the practice was afterwards made fubfervient to other, 
 purpofes of the higher! 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 obvi- 
 oufly an intereft to increafe their perquifites 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 juifice. It may, at the fame 
 time, perhaps be admitted, that the intereited adivitv 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 in- 
 troducing tedious and abfurd formalities into the fyftem of 
 judicial difcuflion. 
 
 C H A P^
 
 224 OF ECCLESIASTICAL COURTS. Book I. 
 
 CHAP. XIII. 
 
 Of Ec cleft aftical Courts. 
 
 WHILE the nobles were gradually extending their 
 power, and reducing that of the fovereign, the 
 ecdefiaftical order was advancing, with hafty ftrides, to the 
 eftabliihment of an authority independent of either. The 
 barbarifm and fuperftition that fucceeded the downfal of 
 the Roman empire, and the fyftem of ecclefiaflical govern- 
 ment erected in the Weftern part of Europe, had a uniform 
 tendency, as has been already obferved, to increafe the 
 wealth and influence of the church. Were we to confider 
 merely the progrefs of fuperftition, we mould expect that 
 the usurpations of the clergy would be moft rapid in thofe 
 European countries, which were at the greateft diftance 
 from the incitements to cultivation, and in which the 
 ignorance and fnnplicity of the inhabitants difpofed them 
 to follow more implicitly the direction of their fpiritual 
 guides. But the fact was otherwife. The kingdoms in the 
 neighbourhood of the pope's refidence, and of his temporal 
 dominions, were nearer the center of that artful policy, 
 which by taking advantage of conjunctures, exalted no lefs 
 the power and privileges of the church than the dignity 
 and authority of her leader. Thus the right of levying 
 the tytbes, that enormous impofition for the fupport of the 
 clergy, and which marks the prodigious extent of ecclefi- 
 aflical influence, was introduced in France, and over a great 
 part of Italy, as early at leaft as the time of Charlemagne ; 
 
 t which
 
 Chap. XIII. OF ECCLESIASTICAL COURTS. 22; 
 which correfponds 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 eftablifhed in England, during the reigns 
 of Alfred and of Athelftan ; patriotic princes, who, doubt- 
 lefs, found themfelves under the neceflity of giving way 
 to the current of the times, by fubmitting to fuch an op- 
 preffive exaction. 
 
 The increafing opulence of the clergy, as it was an 
 effect of the blind zeal, and the general debafement of the 
 people, fo it was accompanied by a correfponding perver- 
 iion of religious opinions, and by an increafe of mperftitious 
 obfervances. The real virtues of fociety, whofe intrinfic 
 value recommends them to our obfervance, and which 
 frequently appear to coft us nothing, came to be little 
 efteemed, in comparifon of penances and mortifications ; 
 from which nature is diipoied to fhrink ; and which are 
 mbmitted to, for no other purpofe, but that of appealing 
 the wrath of an offended deity. Thefe lalt were accounted 
 highly meritorious in perfons of every defcription ; but 
 were thought more efpecially fuitable to the profeflion and 
 character of churchmen ; upon whom it was incumbent to 
 fet an example to others. The monks, in particular, who, 
 by their original inititution, had no other means of diltinc- 
 tion, were incited to procure admiration by the auftcrity 
 of their lives, and by the fevere and painful discipline 
 which they underwent. As they advanced in reputation 
 and popularity, they acquired more numerous and wealthy 
 eftablifhments ; their influence in religious matters became 
 proportionably extenfivc ; and they not only rofe to grfcat 
 consideration in the government of the church, but fre- 
 quently, too, interfered in that of the Hate. From the 
 
 G g continent
 
 226 OF ECCLESIASTICAL COURTS. Book I. 
 
 continent of Europe, the fame practices, and ways of 
 thinking, were Communicated to Britain ; where, about the 
 middle of the tenth century, we find St. Dunstan, at the 
 head of the regular clergy, posTesTed of fuch power and 
 credit, as enabled him to controul the administration of 
 government, and even to dilpofe of the crown. 
 
 Among the feveral branches of mortification impofed 
 by the monastic rules, that of celibacy, or a total abstinence 
 from the intercourfe of the fexes, was deemed the molt 
 important ; whether on account of the difficulties which 
 mult be furmounted in counteracting the moil violent pro- 
 pensities of nature; or on account of that variation of 
 temperature in the human frame, which, however irrefifti- 
 ble thofe propensities maybe at certain feafons, yet, on other 
 occasions, renders the indulgence, or even the expreflion 
 of them, an object of aversion and difguft. This, therefore, 
 became now the ufual topic of declamation to the Englifh 
 monks ; who, finding the fecular clergy to be their great 
 rivals in the public esteem, and being impatient of that 
 superior authority wich they posTesTed, inveighed against 
 their married life, as inconsistent with the purity of a 
 Christian pastor; reprefenting their wives in the light of 
 concubines or prostitutes, and their children as bastards. 
 Though the doctrine inculcated by thefe fanatical zealots 
 was not carried into execution until a fubfequent period, it 
 appears, even at this time, to have been approved and sup- 
 ported by the general voice of the people. 
 
 From the situation of the Christian clergy, and from 
 the influence and authority which they enjoyed, they were 
 led early to afliime the cognizance of judicial business* 
 and to form a number of triburfals for the exercife of their 
 jurifdiction. Even before the time of Ponstantine, when 
 t they
 
 Chap. XIII. OF ECCLESIASTICAL COURTS. 227 
 they received no protection or countenance from the civil 
 government, they were accuftomed to enquire into the faith 
 and manners of Chriftians, and, after repeated admoni- 
 tions, to excommunicate thofe individuals who perfifted in 
 opinions, or practices, which the church had condemned. 
 This jurifdiction was at firft exercifed by the clergyman, 
 together with the moft refpectable among the laity, of each 
 particular church ; but when the zeal of the latter, from 
 the greater extenfion of the gofpel, had begun to ilacken, 
 they became weary of interfering in fuch matters ; and as 
 they gradually loft their privilege by difufe, the bufinefs 
 remained entirely in the hands of the former. When a 
 number of churches were afterwards united in one diocefe, 
 the clergy of that larger diftrict, under the authority of 
 the bifhop, exercifed a jurifdiction of a like nature over 
 the whole of the inhabitants. In the meetings that were 
 called, however, for this purpofe, after the introduction of 
 wealth had produced very different degrees of rank among 
 churchmen, the parochial, or inferior clergy, were by 
 degrees overlooked, or endeavoured to excufe themfelves 
 from attendance ; and the care of maintaining ecclefiaftical 
 difcipline, throughout the diocefe, was appropriated to the 
 bifhop and clergy of his cathedral church. This diocefan 
 court, which, from a perfect uniformity of circumftances, 
 was formed upon the fame plan in every diocefe of to? 
 kingdom, was every where liable to the review of a ilmilar 
 court, in a ftill more extenfive diftrict, convened by the 
 archbifhop ; and from the decrees of this laft, at a period 
 when the papal authority had arrived at its height, therd 
 lay an appeal to the Roman pontiff. 
 
 Together with this judicial authority, which was pro~ 
 perly of a fpiritual nature, the Chriitian clergy came alio 
 
 Gg 2 to
 
 22S OF ECCLESIASTICAL COURTS. Book I. 
 
 to be inverted with a temporal jurifdiction. After the 
 Chriftian religion was taken under the protection of the 
 Roman government, and after the fafhion of making do- 
 nations to the church, for pious ufes, had become preva- 
 lent, the dignified clergy, both fecular and regular, as has 
 been formerly mentioned, were enabled to acquire great 
 landed citates. Thefe, upon the fettlement of the Gothic 
 nations in the Weftern part of Europe, were gradually 
 reduced under the fame feudal policy that obtained in the 
 landed property of the lay-barons ; and a great proportion 
 of the lands of every bifhop, or abbot, was commonly 
 distributed among his villeins or valvals ; over whom he 
 exercifed the jurifdiction and authority of a temporal lord 
 and fuperior. The eftate, or benefice, which from the 
 piety of well-difpofed perfons, or from whatever caufe? 
 had been mortified to the church, and had come into the 
 hands of fome particular churchman, was afterwards, in 
 like manner as happened to the other fiefs of the kingdom, 
 ihcreafed by the voluntary fubmiflion of neighbouring 
 fmall proprietors; who, in order to purchafe his protection, 
 refigned their allodial property, and became his vaffals. 
 As the dignified eccleliaftics were not only poffeffed ot a 
 degree of influence corresponding 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 oppreilion ; and of 
 confequencc, the opportunities of augmenting their wealth, 
 by an artful interpofition in behalf of the inferior people, 
 
 re proportionally more frequent* 
 
 In thofe circumftances, a bifhop came to be inverted with 
 
 .1 civil as well as an ecclefialtical jurifdiction ; the one ex- 
 
 the people who lived upon his own eftate; the 
 
 other
 
 Chap. XIII. OF ECCLESIASTICAL COURTS. 229 
 other to all the inhabitants of his diocefe. By virtue of the 
 former, he punifhed the crimes, and determined the pe- 
 cuniary differences of his tenants and vaffals. In confe- 
 quence of the latter, he enquired into the opinions and 
 behaviour of inch as were under his direction in religious 
 
 iters ^ and cenfured them, either for herefy or for im- 
 morality. 
 
 It required no great penetration to difcover, that this 
 temporal jurifdidtion of the bifhop might be extended, 
 under cover of the fpiritual jurifdicridn. Every crime;, 
 every trangreflion of a rule of juftice, 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, 
 confiftently with the fyftem of church-difcipline, become 
 an object of ecclefiaftical cenfure. Whatever, therefore, 
 could be the ground of an action before the civil magistrate, 
 might be brought, at the fame time, under the cognizance 
 of the fpiritual judge. The profeffed purpofe of the former 
 was, indeed, very different from that of the latter, who 
 pretended to act- merely with a view of promoting the good 
 of the party in a future world. But when the church had 
 acquired great authority over the people, it was not diffi- 
 cult for the ecclefiaftical judge to frame his fentences in 
 fuch a manner as to affedt alio the intereft of men in the 
 prefent life. In making atonement for a fin, the offender 
 might be ordained to indemnify the injured perfon, or even 
 to fubmit to a public punifhment. 
 
 This extenfion of ecclefiaftical jurifdidlion was made 
 with greater or lefs rapidity, in different parts of Chriften- 
 dom, and with regard to perfons or caufes of different 
 defcriptions. It began with regard to the clergy them- 
 
 felves. 
 
 To
 
 230 OF ECCLESIASTICAL COURTS. Book I. 
 
 To maintain the dignity and credit of the church, it was 
 neceffary that (he ihould pay the utmoft attention to the 
 behaviour of her own members, and be careful to avoid 
 kandal, by ceniuring their offences with impartiality and 
 rigour. She found, at the fame time, the leaf! difficulty in 
 compelling churchmen to obey her decrees ; for, as foon as 
 the Chriftian church had come to be eft ablifhed by law, 
 the excommunication of a clergyman mutt, have inferred a 
 forfeiture of his benefice ; fince a perfon, who had been 
 call out of the fociety of Chriflians, could not confift- 
 cntiv be permitted to hold any ecclefiaftical dignity or 
 employment. From the fevere difcipline, which the church 
 exercifed over her own members, it became cuftomary to 
 exhibit complaints againft them before the ecclefiaftical, 
 rather than before the civil judge, and to profecute them 
 in the church court, either for private debts, or for public 
 offences. 
 
 After this practice had become general, it was re- 
 garded by churchmen as a matter of privilege. The pe- 
 culiar fun&ions and character of a clergyman required a 
 peculiar delicacy, it was pretended, in judging of his con- 
 duel, which could not with propriety fall under the cog- 
 nizance of the civil magiftrate, and of which the clergy 
 themfelves were the only competent judges. In the pro- 
 grefs of church power, this exemption from the jurifdic- 
 tion of temporal courts was gradually eftablifhed through 
 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 diftridfc fhould only be profecuted, 
 in the firft inftance, before their own bifhop; but from 
 his decifion an appeal was admitted to, the civil magiftrate. 
 In the Eaftern empire, the inferior clergy obtained a fimilar 
 
 privilege,
 
 Chap. XIII. OF ECCLESIASTICAL COURTS. 231 
 privilege, in civil actions, by a law of the emperor Juf- 
 tinian; though, in criminal caufes, not properly eccle- 
 fiaftical, they might ftill be profecuted either in the fpi- 
 ritual or temporal court. The higher orders of churchmen, 
 however, together with nuns, were, by the regulation of 
 this emperor, permitted, in all cafes, to decline the juris- 
 diction of laic judges *. 
 
 When the exemption of the clergy from the jurisdiction 
 of the civil magiitrate, which, with the exception of a 
 few caufes, became univerfal, in the Weftern part of Eu- 
 rope, had been completely eftablifhed, the church was, in 
 reality, independent of the State; fince, whatever regula- 
 tions were enacted by the legillature of any country, 
 they might, with fafety, be difregarded by churchmen 
 who could not be punifhed for the violation of any law, 
 unlefs they thought proper to enforce it by their own 
 courts i. 
 
 The power of the church, in the adminiftration of 
 juflice to her own members, was followed by a fimilar 
 jurisdiction over the laity, in thofe law-fuits by which her 
 own intereft might, in any degree, be affected, or which 
 appeared, however indirectly, to have an influence upon 
 any ecclefiaflical matter. But, in England, this encroach- 
 ment upon the province of the civil magiftrate was pos- 
 terior to the Norman conquefl : and therefore does not 
 fall under our prefent confuleration. During the govern- 
 ment of the Anglo-Saxon princes, the clergy did not claim 
 a feparate cognizance in the temporal caufes of the laitv . 
 
 * V. Nov. 83.— 123.— 79. Alfo Gianone, Hift. of Naples. 
 t There were certain great crimes, fuch as high treaibn, and facrilege, to which this 
 exemption did not extend, 
 
 but
 
 OF ECCLESIASTICAL COURTS. Book 1 
 
 "3 
 
 but they laid the foundation of fuch a claim, in a future 
 period, by afTuming a privilege of aflifting the ordinary 
 magistrates in the determination of fuch caufes. The 
 extent of a diocefe being the fame with that of a mire, 
 the bifhop flit along with the earl or Sheriff, as a judge, in 
 the county courts ; and the rural dean, whofe ecclelialtical 
 diftrict coincided with the hundred, appears, in like man- 
 ner, to have been afTociated with the centenarius^ in the 
 determination of fuch differences as arofe among the peo- 
 ple of that division. It is not improbable that the union 
 of the civil and ecciefiaflical powers was carried ftill lower, 
 and that the parfon of a parim was accuftomed to judge 
 along with the tythingman, in the court of the decennary: 
 this is what might be expected from the correfponclence 
 between the limits of a parim and a tything, and from the 
 analogous praftice in the fuperior courts ; though the 
 accounts tranfmitted by early hiftorians are too vague and 
 general to afford any pofitive evidence of the faxSt. 
 
 This arrangement of the Saxon tribunals was a natural 
 confequence of the influence pofTefTed by the Spiritual and 
 the temporal governors, in the territories over which they 
 prefided. It feems, at the fame time, to have been efteemcd 
 a wife regulation ; in as much as by uniting the opinion 
 of thofe two officers, in the distribution of juifice, it was 
 likely that the decisions would be tempered in fuch a man- 
 ner, as might correfpond to the interefl, and the views, of 
 every fet of men in the community. The experience and 
 forefight of that age was too limited to difcover the incon- 
 veniency of confounding the plain and accurate rules o 
 juitice, with the intricate Subtleties of cafuiftry, which 
 naturally introduce themfelves into the judgments of a fpi 
 
 ritual
 
 Chap. XIII. OF ECCLESIASTICAL COURTS. 233 
 
 ritual director : not to mention the clanger of committing 
 a fhare 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 
 who, by their fituation, having acquired a feparate inte- 
 reft, were led to feek their own aggrandizement at the 
 expence of the great body of the people. 
 
 C H A P.
 
 *34 ALTERATIONS IN THE STATE Book I. 
 
 CHAP. XIV. 
 
 Alterations in the State of the Wittenagemtfe* 
 
 THE progreflive changes in the flate of property,, 
 and in the conftitution and circumftances of the 
 people, of which an account has been given, muft have 
 contributed, in many particulars, to alter the conftitution 
 and procedure of the Wittenagemote. As this national 
 council was compofed of all the allodial proprietors of 
 land, whole eftates, according to the primitive diftribution 
 of property, were generally of final! extent, there can be 
 no doubt that, upon the union of the different kingdoms 
 of the Heptarchy, it formed a very numerous, and, in fome 
 degree, a tumultuary meeting. The meafures which came 
 under its deliberation were propofed, it mould feem, by 
 inch of its members as were diftinguifhed by their influ- 
 ence or abilities ; and its determinations were fignified, not 
 by collecting exactly the number of fuiFrages, but by a 
 promiicuous acclamation, in which the by-ftanders, it is 
 not unlikely, were accuftomed frequently to join with thofe 
 who had the right of voting. This, in all probability, is 
 what is meant by the early hiftorians, when they fpeak of 
 the people being prefent in the ancient Wittenagemote, and 
 of their ajjijlingy and giving their confent, in forming the 
 rcfolutions of that afTembly. 
 
 It cannot efcape obfervation, that this early conftitution 
 of the national council, while it contained a mixture of 
 
 democracy
 
 Chap. XIV. OF THE \\ ITTKN AGEMOTE. 235 
 democracy and ariitocracy, was, in feme refpects, favo - 
 able alio to the interefts of the crown. In fo numerou s 
 and difbrderly an aflembly* there was great room for 
 addrefs, in managing parties, and in conducting the fub- 
 jects of public deliberation ; fo that the king, the chief- 
 executive officer, had many opportunities of promoting 
 the fuccefs of a favourite plan, as well as of parrying, and 
 removing out of fight, thofe meafures which were cfcf- 
 agreeable to him. 
 
 The frequent refignations of land which, during the 
 progrefs of the Saxon government, were made by the 
 fmall allodial proprietors, in order to fhelter themfelves 
 under the protection of a feudal fuperior, necefTarily witfir 
 drew thofe individuals from the Wittenagemote ; and re- 
 duced them under the jurifdiction and authority of that 
 particular thane whom they had chofen for their protector. 
 As they became his military fervants, they were bound, 
 on'every occafion, to efpoufe his quarrel, and to folio w r his 
 banner. They were bound, at the fame time, to attend his 
 baron-court, and to aflift in deciding caufes, as well as in 
 making regulations, with regard to his vafTals. In confift- 
 ency with that fubordinate flation, they could not be per- 
 mitted to fit in the fame council with their liege lord, to 
 deliberate with him upon public affairs ; but, on the con- 
 trary, were underflood to be reprefented in the Witte- 
 nagemote by the perlon who had undertaken to protect 
 them, and to whom they owed fubmiflion and obedi- 
 ence. 
 
 Thus, according as the VaRals of the nobility, through- 
 out the kingdom, were multiplied, the conitituent members 
 of the Wittenagemote became lefs numerous ; and the right 
 of fitting in that affemblv was more and more limited, to a 
 
 H h 2 few
 
 236 ALTERATIONS IN THE STATE Book I. 
 
 few opulent barons, who had acquired the property of 
 extenfive diftric~ts, and reduced the inhabitants under their 
 dominion. 
 
 This change of circumftances was no lefs unfavourable 
 to the king, on the one hand, than it was, on the other, to 
 the great body of the people. For although the \ alials of 
 the crown were, by the gradual resignations of allodial pro- 
 perty, increafed in the fame, or even in a greater propor- 
 tion than thofe of particular noblemen, the fovereign was 
 not thence enabled to preferve his former weight in the 
 determination of public 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 ftrata- 
 gem to divert them from profecuting their own views of 
 interelt or ambition. By the accidental combination of 
 different leaders, they fometimes collected a force which 
 nothing could refifr. ; and were in a condition, not only to 
 defend their own privileges, but even to invade the prero- 
 gative. It was often vain for the fovereign, in fuch a 
 iituation, to appeal to the fword from the decifions of the 
 Wittenagemote. Thofe haughty and ambitious fubjeets 
 were generally prepared for fuch a determination ; and, as 
 they came into the affembly, fupported by their vaflals, 
 armed and ready to take the field, they got frequently the 
 ftart of his majefty. To give way, therefore, to their 
 demands, and to wait for fome future opportunity of re- 
 covering what had been yielded, was in many cafes una- 
 voidable. 
 
 In that early period of the Anglo-Saxon ftate, when the 
 
 allodial proprietors were numerous, and when their eitates 
 
 were generally fmall, they were underftood to be all of the 
 
 fame rank and condition. Although fome perfons might 
 
 5 be
 
 Chap. XIV. OF THE WITTKNAGEMOTE, 372 
 be diitinguifhed above others, by their abilities, or military 
 reputation, the fuperiority derived from thence, being 
 accidental and temporary, was not productive of any per- 
 manent authority or privileges. But when, from the caufes 
 which have been mentioned,, a few great lords had become 
 mailers of an extensive landed property, their exaltation in 
 power and dignity was a necefLiry confequence. Thofe. 
 individuals, on the contrary, who remained in the pofiel- 
 lion of linall eflates, though by any fortunate concurrence, 
 of events they had been enabled, to retain their indepen- 
 dence, were degraded in proportion 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 consideration, and from interfering in public bufi- 
 nefs. It was their intereft to live upon good terms with 
 their neighbours, and, by their peaceable and inoffenfive 
 behaviour, to lTmn every ground of jealoufy and refent- 
 ment. 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 
 negled, or with deriiion. They had but fmall encourage- 
 ment, therefore, to attend the meetings of that afiembly; 
 where, at the fame time that they incurred an ex-pence not 
 fuited to their fortunes, they were fubjecled to j continual 
 mortification, and were incapable of procuring refpect In 
 rhefe circumftances, it is probable that the allodial proprie- 
 tors, whofe eftates were inconsiderable, appeared but ieldom 
 in the Wittenagemote; and that, unlefs upon extraordinary 
 occafions, when great unanimity was of the higheit. im- 
 portances
 
 :;> ALTERATIONS IN THE STATE Boo* L 
 
 portance, their abience was cither difpenfed with, or in a 
 great meafure overlooked. 
 
 It was to be expected that this very unequal ditlribution 
 of property, as it produced a real difference in the conii- 
 deraticn and importance of individuals, would come at 
 length to be accompanied with correfponding marks of 
 diftin&ion ; and that lb much wealth as enabled the poi- 
 leflbr to live according to a certain ftandard of magnificence, 
 might become the foundation of fuitable dignity. Thus, 
 m the latter part of the Anglo-Saxon government, fuch of 
 the nobles as enjoyed an eftate, extending to forty hides of 
 land, were diftinguifhed in rank and condition from thole 
 who poflefTed an inferior property. This appears from a 
 pafTage in the regifter of Ely, in which mention is made of 
 a perlbn who, " though he was a nobleman, could not be 
 " numbered among the proceres, becaufe his eftate did not 
 " amount to fortv hides of land *." 
 
 From this pafTage, political writers have been led to 
 advance two conjectures, to which it gives no countenance 
 whatever. They confider the rank or privileges, attached 
 to the pofTeflion of forty hides of land, as having exifted 
 from the original fettlement of the Anglo-Saxons; although 
 the writer of that pafTage fpeaks only, and that by the by, 
 of what was eftablilhed in the reign of Edward the Confei- 
 for. They alfo maintain, that perfons whofe eftates were 
 below forty hides of land, were entirely excluded from the 
 right of fitting in the Wittenagemote. But the pafTage re- 
 ferred to makes no mention of the right of fitting in the 
 
 * Habuit enim (fpeaking of the abbot of Ely) fratrem Gitd/nundum vocabulo, cui 
 filiam prrepotcntis viri in matrimonium conjungi paravcrat. Sed quoniam ille qua- 
 draginta. hidarum terras dominium minime obtineret, licet nobdh eflet, inter, prtcercs 
 tunc numejrari non potuit j eum puella repudiavit. Hiftoria Elicnfis, lib. ii. cap. 40. 
 
 Wittenage-
 
 Chap. XIV. OF THE WITTENAGEMOTE. 239 
 
 Wittenagemote, nor gives the leaft hint concerning it ; 
 but only points out the extent of property which entitled 
 a perfon to be ranked among the praceres. There is no 
 reafon to believe, either from this, or from any other an- 
 cient author, that, even in the latter part of the Anglo- 
 Saxon government, the proprietors of fuch great eftates 
 were the only members of the national afTembly ; though 
 it is, no doubt, highly probable, that they would be more 
 apt, than perfons of a lower Station, to give a punctual at- 
 tendance upon its meetings * 
 
 The fuperior dignity, however, enjoyed, in the reign 
 of Edward the ConfefTor, by fuch of the nobility as were 
 pofTefTed of a certain extent of property, is the more 
 worthy of attention, as it became ftill more remarkable 
 after the Norman conqueft, and laid the foundation of that 
 noted distinction between the greater and j r maller barons, 
 which was productive of important changes in the con- 
 llitution. 
 
 As the Wittenagemote was diminifhed by the reduction 
 of many allodial proprietors into a State of vafTalage ; it 
 may be queilioned whether it did not, on the other hand, 
 receive a gradual fupply of new members, by the advance- 
 ment of the churleSy who, in confequence of the law of 
 king Atheiitane, were, upon the acquisition of five hides 
 of land, admitted to the privileges of a thane. Concerning 
 this point the following obfervations will occur. iSt, That. 
 though many of the peafants appear, in the latter periods 
 of the Anglo-Saxon government, to have become free, and 
 even opulent, it is probable that they held their porTemom 
 upon the footing of vafTalage, rather than of allodial pro- 
 perty ; in confequence of which, theycould only be ranked., 
 from the law above-mentioned, among the leffer ihanes^ 
 
 8 W\0
 
 24p ALTERATIONS IN THE STATE Book L 
 who had no right of fitting in the Wittcnagemote : idly, 
 Suppofing that any of thefe churles acquired allodial eftates, 
 and that they were itrictly entitled to a voice in the Witte- 
 nagemote ; yet, about the time when this privilege was be- 
 llowed, a much greater property than five hides of land, 
 -the quantity fpecified in the law of king Athelitane, was 
 required for giving the proprietor any weight or coniide- 
 ration in that aiiembly, or for making his attendance 
 upon it a defirable object. This was a privilege, therefore, 
 which they would be more apt to decline from its incon- 
 veniencies, than to exercife, or to boaft of, on account of its 
 advantages. 
 
 It may alfo be a queftion, whether thofe merchants who 
 performed three voyages into a foreign country, and who, 
 by another law of the fame prince, are faid to have ob- 
 tained the rights of a thane, were admitted into the Witte- 
 nagemote. But, as thefe mercantile adventurers were not 
 required to pofTefs any eftate, real or perlbnal, it is not 
 reaibnable to fuppofe that they could be allowed to parti- 
 cipate, with the ancient nobility, in the deliberations of the 
 fupreme national council. It has already been obfervcd, 
 that by the privileges of a thane, bellowed as an encou- 
 ragement to a certain degree of enterprise in trade, were 
 probably understood thofe of a lejcr thane , or vafTal ; who, 
 though not a member of the Wittenagemote, was of a con- 
 dition greatly fuperior to that of the original pealants and 
 mechanics- 
 
 As it does not appear that individuals among the mer- 
 chants had, independent of any landed eftate, the privilege 
 of fitting in the Wittenagemote ; lb there is no evidence 
 that, collectively, the trading intereft were, even in the 
 latter part of the Anglo-Saxon hiftory, entitled to fend re- 
 
 prefentativesj
 
 Chap. XIV. OF THE WITTENAGEMOTK. 241 
 preventatives to that aiTembly. Of this we may be Satisfied 
 from the particulars, relative to the cohititution of the 
 national council, which have been former!;/ mentioned. 
 The facts which were then adduced, in order to fhew that 
 in the Saxon Wittenagemote there were no representatives, 
 either from towns, or from the frnall proprietors of land, 
 appear conclufive with regard to the whole' period of the 
 Engliih government before the Norman coriqueft. If the 
 original constitution of that afTembly admitted of no repre- 
 fentatives from either of thole two claffes of men, it mud 
 be fuppoied, that the fubiequent introduction of them, 
 more elpecially if it had happened near the end of the 
 Saxon period, when historical events are better afcertained, 
 would have excited the attention of fome hiftorian or other, 
 and have been thought worthy of tranfmiilion to future 
 ages. But upon this point, of fo much importance in the 
 political fyftem, and fo unlikely to pafs without notice, 
 the later as well as the early Saxon historians are entirely 
 illent. 
 
 The advancement of arts and manufactures, towards the 
 end of the Saxon line, was, indeed, fo considerable, as to 
 have enlarged particular towns, and to have exempted 
 the inhabitants from thofe precarious duties and fervices 
 to which they had anciently been Subjected. They were 
 permitted to form focietiesj or "gilds , for the benefit of the 
 trade ; which appear to have at length fuggefted the prac- 
 tice of incorporating the whole of a town, with particular 
 privileges and regulations*. By a feries of progreffive 
 improvements, the trading people were thus gradually 
 prepared and qualified for that political coniideration which 
 
 * Madox firma burgi. 
 
 I i thjv
 
 242 ALTERATIONS IN THE STATE Book I. 
 
 they afterwards acquired by the eftablifhment of reprefen- 
 tatives in the national council. But the acquifition of 
 this important privilege was the work of a later period, 
 when they rofe to a higher pitch of opulence and inde- 
 pendence. 
 
 The original meetings of the Wittenagemote in Eng- 
 land, as well as thofe of the national council, in moft of 
 the kingdoms upon the neighbouring continent, appear, 
 as was formerly obferved, to have been held regularly at 
 two feafons of the year ; at the end of fpring, for delibera- 
 ting upon the military operations of the fummer, and at 
 the beginning of autumn, for dividing the fruit of thofe 
 depredations. The fame times of meeting were, for fimi- 
 lar reafons, obferved, in the courts belonging to the feveral 
 lhires and baronies of the kingdom. But as, in England, 
 from her infular fituatioil, military enterprizes againft a 
 foreign enemy were lefs regular than upon the continent 
 of Europe,, 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 occafions, to call the Wittenage- 
 ite. Hence the meetings of that council came to be held 
 iformly at three different feafons ; at Chriftmas, at Eafter 
 and at YVhitfuntide. 
 
 The increafe of the national bufinefs, particularly with 
 jpedt to the diftribution of juftice a confequence of the 
 ..dual progrefs of authority in.the public, made it necef- 
 y that die Wittenagemote mould be held more fre- 
 quently than in former times ; and therefore, in any extra- 
 ordinary exigence, which arofe between the different fefti- 
 vals above mentioned, a particular meeting of that council 
 was called by the king. Thus there came to be two forts 
 8 of
 
 Chap. XIV. OF THE WITTEN AGEMOTE. 243 
 
 of Wittenaeemote : the one held by cuftom ; and at three 
 Hated periods; the other called occafiorially, by a fpecial 
 fummons from the king*". Both were compofed of the 
 fame perfons, if they chofe to attend ; but commonly a 
 much lefs regular attendance was given in the latter than in 
 the former. At the occafional meetings of the great coun- 
 cil, fuch of the nobilitv as lived at a diftance were feldom 
 at the trouble of appearing ; and the bufmefs, 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 reafon, the occafional meetings of the Witte- 
 ragemote ufually confined themfelves to matters of lets 
 ortance than were difcufTed in the old cuftomary meet- 
 ings. The chief employment of the former was the hear- 
 ing of appeals from inferior courts : but legiflation, and 
 other weighty tranfactions, were generally referved to the 
 latter. 
 
 If, however, it was found neceffary, in the interval 
 between the three great feftivals, to deliberate upon pub- 
 lic bufinefs of importance, the king iffued an extraordi- 
 nary fummons to his nobles ; in which he exprefsly re- 
 quired their attendance, and fpecified the caufe of their 
 
 meeting: t. 
 
 o 
 
 It may here be proper to remark, that the fmaller occa- 
 fional meetings of the Wittenagemote appear to have 
 fuggefted the idea of the aula regis ; a feparate couil, 
 which, after the Norman conqucft, was formed out of 
 parliament for the fole purpofe of deciding law-fuits. 
 
 * 
 
 The former were called courts de mire, being founded upon immemorial cuflom. 
 f Gurdon's Hiftory of the high court of Parliament. 
 
 I i 2
 
 244 ALTERATIONS IN THE STATE Book I. 
 
 As the occurrences which demanded the immediate in- 
 terpofition of the Wittenagemote could not be forefeen, 
 the king was led to determine the particular cafes in which 
 the deliberation of that ailembly was requifite ; and in the 
 exerciie of this prerogative, he was originally under no 
 reftraint. The powers exercifed by the crown feem, at firfc, 
 to have been all difcretionary ; and to have remained with- 
 out limitation, until experience had ihewn the danger of 
 their being abufed. 
 
 We fhall afterwards have occaflon to obferve, that, under 
 the princes of the Norman and Plantagenet race, the an- 
 cient and regular meetings of the national council were 
 more and more disregarded, and at length entirely difufed ; 
 in confequence of which the whole parliamentary bufmefs 
 came to be tranfacted in extraordinary meetings, which 
 were called at the pleafure of the fovercign. The attempts 
 to limit this important branch of the royal prerogative will 
 be the fuhjecr. of future difcuilion. 
 
 Conclufion of the Saxon Period, 
 
 Such appear to be the outlines of the Englifli govern- 
 ment under the administration of the Anglo-Saxon princes. 
 To the fubjecls of Britain, who confider the nature of 
 their prefent confutation, and compare it with that of 
 molt of the nations upon the neighbouring continent, it 
 feems natural to indulge a prepofTeffion, that circumftances 
 peculiarly fortunate muft have concurred in laying the 
 foundation of fo excellent a fabric. It feems natural to 
 imagine, that the government of the Anglo-Saxons mull 
 have contained a proportion of liberty, as much greater 
 
 than
 
 Chap. XIV. OF THE WITTENAGEMOTE. 245 
 than that of the neighbouring nations, as our conflitu- 
 tion is at prefent more free than the other European go- 
 vernments. 
 
 When we examine, at the fame time, the Hate of our 
 country, in that remote age ; the uniform jurifdi&ibn and 
 authority pofTefTed by every allodial proprietor ; the divi- 
 sion of the country into various diftricSts, fubordinate one 
 to another ; the perfect correfpondence between the civil 
 and ecclefiaftical divilions ; the fimilarity in the powers 
 exercifed by the meetings of the tything, the hundred, 
 and the mire, in their refpective territories, and thofe of 
 the Wittenagemote over the whole kingdom; the ana- 
 logy between the office of the tythingman, the hundreder, 
 and the earl, in their inferior departments, and that of the 
 fovereign in his more exalted itation : when, I fay, we 
 examine thefe, and other particulars relating to the Anglo- 
 Saxon government, in which we may difcover fo much 
 order and regularity, fuch a variety of regulations, nicely 
 adjufted to one another, and calculated for the moft bene- 
 ficial purpofes ; it is natural to fuppofe, that the whole has 
 originated in much contrivance and forefight ; and is the 
 remit of deep laid fchemes of policy. 
 
 In both of thefe concluiions, however, we mould un- 
 doubtedly be miitaken. When we look round and examine 
 the ftate of the other European kingdoms about the lame 
 period ; and when we obferve, in each of them, the clc . 
 and minute refemblance of its political fyftem to that of 
 England, how little foever the apparent intercourfe of the 
 inhabitants ; we feel ourfelves under the neceffity of aban- 
 doning our former fuppofition, and of acknowledging that 
 the regulations eilabiifned in all of thefe countries proceed- 
 ed from no artificial or complicated plans of legiflation ; 
 
 but
 
 46 ALTERATIONS IN THE STATE, &c. Book I. 
 
 mt were inch as occurred iucceirively to the people, for 
 
 _• fupply of their immediate wants, and the removal of 
 
 idental inconveniencies ; in a word, that the feudal con* 
 
 ftitution was, every where, a kind of natural growth, pro- 
 
 (hi ed by the peculiar lituation and circumftances of the 
 
 focie . 
 
 Neither was the Anglo-Saxon government calculated, in 
 any peculiar manner, to fecure the liberty and the natural 
 rights of mankind. The fovereign, indeed, in the long 
 period during which this government fub lifted, and through 
 all the fucceflive alterations which it underwent, was at no 
 time inverted with abfolute power. The fupreme autho- 
 rity in the ftate was originally pofTefled by a numerous 
 body of landed proprietors ; but the reft of the community 
 were either Haves, or tenants at the will of their mailer. 
 The number of thofe who enjoyed a fhare in the govern- 
 ment was afterwards greatly diminifhed ; at the fame time 
 that, upon this advancers ent of the ariftocracy, the lower 
 part of the inhabitants became Somewhat more free and 
 independent. The encreafe of political power in men of 
 a fuperior clafs was thus compenfated by fome little exten- 
 fion of privileges in the great body of the people. 
 
 BOOK
 
 [ 2 47 ] 
 
 BOOK II. 
 
 OF THE ENGLISH GOVERNMENT FROM THE REIGN OF WIL- 
 LIAM THE CONQUEROR, TO THE ACCESSION OF THE HOUSE 
 OF STEWART. 
 
 THE political hiftory of this extenfive period may 
 be fubdivided into three parts ; the firft extending 
 from the Norman conquer! to the end of the reign of 
 Henry the third; the fecond, from the beginning of the 
 reign of Edward the firft, to the acceflion of Henry the 
 feventh ; and the third, comprehending the reigns of the 
 Tudor family. In each of thefe parts we mail meet with 
 progreflive changes in the Englifh conftitution, w r hich ap- 
 pear 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 re- 
 garded as the natural growth and developement of the 
 original fyftem, produced by the peculiar circumftances of 
 modern Europe. 
 
 C H
 
 j 4 8 THE NOR MAX CONQUEST; Book II, 
 
 CHAP. I. 
 
 Norman conqueft,. — Progrefs of the feudal sAfiem-. — r>e-:v 
 of the fever al Reigns before that of Edward I. — The gteat 
 
 Charter, and Charier of the ForejL 
 
 WILLIAM the conqueror afcended the throne of 
 England, partly by force of arms, and partly by 
 the voluntary iubmiilion of the people. The great landed 
 eftates, acquired by a few individuals, towards the end of 
 the Saxon government, had exalted particular nobles to 
 inch power and iplendor, as rendered them, in ibme de- 
 gree, rivals to the lbvereign, and even encouraged them, 
 upon any favourable emergency, to aipire to the crown. 
 Among thele, under the feeble reign of Edward the con- 
 feflbr, we may diftinguifh Godwin earl of WefTex, who 
 had become formidable to the monarch; and, after the 
 death of that earl, his fon Harold, who, at the fame time 
 that his pofleffions were not lefs extenfive than thole of his 
 father, being endowed with fuperior abilities, and much 
 more amiable difpoiitions, appears to have attained a degree 
 of influence and authority which no Englifh iubject had 
 ( ver enjoyed. He became, of courfe, an object of jealoufy 
 to Edward ; who, in the decline of life, and having no chil- 
 dren, was anxious to exclude this nobleman from the 
 throne, by fecuring the fucceflion to one of his own kin- 
 dred. Edward himfelf was properly an ufurper, having 
 feized the < rown to the prejudice of his elder brother's fon, 
 
 the
 
 Chap. I. PROGRESS OF FEUDAL SYSTEM, 8cc. 249 
 the undoubted lineal heir. This prince being now dead, 
 the light of inheritance devolved upon his fon Edgar 
 Atheling, whofe tender age, and {lender abilities, appeared 
 to disqualify him, in men a critical conjuncture, for wield- 
 ing the fceptre over a fierce and turbulent people. In thofe 
 diforderly times, the line of hereditary mccefiion, though 
 not intirely disregarded, was frequently broken from par- 
 ticular accidents : perfons incapable of defending the fove- 
 reigntv, were commonly deemed unworthy to obtain it ; 
 and the recommendation, or will, of the reigning prince 
 was always held to be a ftrong circumllance in favour of 
 any future competitor for the fucceflion. 
 
 Edward the confeflbr had rellded four and twenty years 
 in the court of Richard the Second, 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 generouily educated and pro- 
 tected. By remaining, for fo long a period, in a foreign 
 country, where he was carefled, and treated with every 
 mark of diftinction, the Englifh prince was led to form an 
 attachment to the people, whofe progrefs in arts, govern- 
 ment, and manners, furpafTed that of his own countrymen ; 
 and he ever retained a grateful remembrance of the hofpi- 
 tality and kindnefs which he had experienced in the family 
 of his kinfman. When he mounted the throne of Eng- 
 land, a communication was opened between the two coun- 
 tries ; and an intimate connexion fublifted between the re- 
 fpeclive fovereigns. Multitudes of Normans reforted to the 
 Englifh court, in expectation of preferment ; many indi- 
 viduals of that country obtained landed porTeilions in Eng- 
 land ; and many were promoted to offices of great dignity, 
 both in church and itate. Thefe foreigners, who flood fo 
 
 K k high
 
 25© THE NORMAN CONQUEST; Book II. 
 high in the favour of the Sovereign, were imitated by the 
 Engliih in their drefs, their amufements, their manners, 
 and cuftoms. They imported alfo the French language ; 
 Which had for fome time been adopted by the Normans; 
 and which, being- regarded as a more improved and elegant 
 dialect than the Saxon, became fafhionable in England, and 
 a\ as even employed, it is laid, in the writings and plead- 
 ings of lawyers. 
 
 The dutchy of Normandy having defcended to William, 
 the natural fon of Robert, and nephew of Richard II. the 
 affections, as well as the policy of Edward, made him caft 
 his eyes upon that prince, his nearer! relation by the mother, 
 and the moft able and accomplifhed warrior of his time, as 
 the moft proper perfon to fucceed him in the throne. His 
 illegitimate birth was, in that age, an objection of little 
 moment ; lince it had not prevented him from inheriting 
 the dukedom of Normandy; and fince a Similar {tain is 
 obfervable in the line of our Saxon kings. Some hiftorians 
 have afTerted, that the Englifh monarch actually made a 
 will, 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 whether fuch a tranfaction was 
 really executed, appears extremely doubtful. It is certain, 
 however, that Edward had publickly declared his intentions 
 to this purpofe; that William, in confequence of fuch 
 declaration, had openly avowed his pretentions to the 
 crown of England ; and that Harold himfelf, being upon 
 a vitit to the Norman court, and having received a promife 
 of the duke's daughter in marriage, had taken a folemn 
 oath to fupport his title. An artifice which was put in prac- 
 tice, with relation to that oath, in a contract: between two of 
 the moft conspicuous perfonages of the age, is worthy of 
 
 x attention,
 
 Chap. I. PROGRESS OF FEUDAL SYSTEM, See. 25T 
 attention, as it exhibits a ludicrous picture of the iuper- 
 ftition to which the minds of men were then univerfallv 
 fubjected. William fecretly conveyed under the altar upon 
 which Harold was to fwear, the bones of fome of the moil 
 revered martyrs ; and after the oath was taken, the wed 
 the relics to the affrighted nobleman ; who difcovered, 
 with equal concern and indignation, that he was enmared 
 into a much itronger obligation than he had intended ; and 
 that his future breach of promife would be productive of 
 more fatal confequences than he had been aware of. 
 
 By what fpecies of cafuiitry Harold afterwards endea- 
 voured to fatisfy his confeience with refpect to the violation 
 of this oath, which had, indeed, been in fome degree ex- 
 torted from him, we have no information ; but, in fact, he 
 neglected no opportunity of increafing his popularity, and 
 of ftrengthening his connexions among the nobility ; fo 
 that, upon the death of Edward, he found himfelf, before 
 his rival could take any meafures for preventing him, in a 
 condition to obtain pofleflion of the throne, and to bear 
 down every appearance of oppofition. The duke of Nor- 
 mandy was not of a temper to brook this difappointment, 
 and tamely to relinquifh his pretenfions. He collected a 
 great army, compofed not only of fuch forces as could be 
 levied in his own dominions, but of all thofe deiperate ad- 
 venturers whom the profpect of plunder, and of miltary 
 reputation, allured to the ftandard of fo celebrated a leader. 
 The battle of Haftings, in which Harold and his principal 
 adherents were flam, put an end to the ftruggle, and left 
 the victorious general without a competitor. This decihve 
 action was followed by a fpeedy fubmifiion to his autho- 
 rity; and the chief of the nobility and clergy, together 
 with Edgar Atheling himfelf, having made him an offer of 
 
 K k 2 the
 
 252 THE NORMAN CONQUEST; Book II. 
 the vacant throne, he was crowned at Weftminftei Abbey 
 with the ufual folemnities. It is worthy of notice, that, on 
 this occafion, he took the fame oath which had formerly 
 been adminiftered to the Saxon kings, " that he would 
 " maintain the ancient fundamental laws of the kingdom ;" 
 to which there was added a particular clauSe, Suggefted by 
 the peculiarity of the prefent circumftances, " that he 
 " would distribute juflice impartially between his Englifli 
 " and his Norman Subjects." 
 
 The crown of England having thus been transmitted 
 to a foreign family, William, according to the barbarous 
 Latin of thofe times, received the title of conquteftor ; 
 which has, without much propriety, been tranilated the 
 conqueror. It imported merely an acquirer^ in contradis- 
 tinction to a perfon *ho inherits by lineal defcent, corre- 
 sponding to the SenSe in which, by the prefent law language 
 of Scotland, conqueftis oppofed to heritage*. 
 
 Whether the acceffion of this monarch is to be con- 
 sidered in the light of a real conqueft by force of arms, 
 unsupported by any other circumftance, would be a frivo- 
 lous queftion, were it not for the Serious and important 
 conSequences which have, by Some authors, been con- 
 nected with that Supposition. It is maintained, that if Wil- 
 liam intirely conquered the kindom, he could be under 
 no reftraint in modelling the government ; that he, accor- 
 dingly, overturned altogether the ancient conftitution ; and 
 in place of that moderate fyftem which had grown up 
 under the Saxon princes, introduced an abSolute monarchy. 
 
 • u 
 
 Conquejlus id quod a parentibus non acceptum, fed laborc prctio vcl parfimonia 
 M comparatum pofiidemus — Hinc Guliel. I. conquejior dicitur que Angliam con- 
 M quidvit, i.e. acquifivit, purchased; non quod fubegir." Spelm. Gloflar. v\ 
 Conqueftus. See alfo Skene, dc verbor. fign. 
 
 The
 
 1 <- '» 
 
 Chap. I. PROGRESS OF FEUDAL SYSTEM, Sec. 
 The iuppofition itfelf is no lefs remote from truth, than 
 the conclufion drawn from it is erroneous. It was the 
 party of Harold only that was vanquished by the arms of 
 the Normans ; and had it not been for the ufurpation of 
 that nobleman, William would probably have met with no 
 oppofition to his claim. After the defeat of Harold, there 
 was, befide the duke of Normandy, no other candidate 
 able to hold the reins of government. Even fuppofin^- 
 William to have completely conquered the whole of the 
 Englifh, his conqueft, fureiy, was not extended over thole 
 Norman barons, the affociates and companions of his enter- 
 prize, to whom he was chiefly indebted for his fuccefs. 
 When thofe powerful chieftains obtained pofTeflions, in 
 England, proportioned to their feveral merits, and became 
 grandees of the kingdom, it is not likely that they would 
 willingly relinquifh the independence which they had en- 
 joyed in their own country, or that they would regard the 
 affiftance they had given to their duke, in railing him to 
 be a great king, as a good reafon for enilaving them *. 
 
 But, however this be, nothing is more clear in point of 
 fact, than that William was far from wifhing to hold him- 
 felf up to the people of England in the light of a conque- 
 
 * The dutchy of Normandy was at that period governed like "moft of the other 
 feudal countries of Europe ; and the duke, at the fame time that he was a feudatory 
 of the king of France, enjoyed a very moderate authority over his Norman vaflals. 
 In particular, he could neither make laws, nor impofe taxes, without the content of 
 the barons, or principal land-holders of the dutchy. This appears from the Latin 
 cuftoms of Normandy, printed at the end of the old French edition of the Ccujlumier 
 de Normandy ; in the preface to which it is faid ; " Quoniam leges et inftituta quae 
 " Normanorum principes, non fine magna provifionis induftria prselatorum, comi- 
 " turn, et baronum, nee non et coeterorum virorum prudentum confilio, et aflenfu, 
 " ad falutem humani foederis ftatuerunt." [Tyrrel's Bibliotheca Politica, dial. ic. 
 Alfo many inftances of Norman great councils, collected by Brady.] 
 
 ror.
 
 *54 THE NORMANCONQUEST; Book II. 
 ror. Like every wife prince, who has employed irregular 
 and violent meafures for obtaining the foverdgnty, he en- 
 deavoured as much as poflible to cover every appearance of 
 uiurpation ; and was willing to exercife his power in the 
 manner moft likely to fecure the continuance of it. He 
 was active in reitraining his Norman followers from com- 
 mitting depredations on the Englifh, and in preventing 
 difputes between the individuals of thofe different nations. 
 The partifans of Harold, who had diitinguiihed themfelves 
 by fupporting his caufe in the field, were, doubtlefs, de- 
 prived of their poffemons ; but the reft of the Engliih, 
 who fubmitted to the authority of the monarch, were 
 treated with marks of his favour and confidence. Many of 
 thofe who had been in arms againft him, were overlooked 
 or forgiven ; and the people in general received affurances 
 of his protection. London, and the other cities of the 
 kinp'dom, were confirmed in their immunities and privi-* 
 leges. Even Edgar Atheling himfelf, the lineal heir of the 
 crown, was permitted to live in fafety, and to retain the 
 eftate and honours which had formerly been conferred 
 upon him. Juftice was every where adminiftered, not 
 only with great impartiality, but by tempering clemency 
 with fe verity ; and, the public tranquility being thus, in a 
 fliort time, perfectly reftored, the government under the 
 new fovereign proceeded, without interruption, in its for- 
 mer channel *. 
 
 But 
 
 * Several hiftorians, who write near that period, confukr William's advancement 
 to the Lnglifh throne as the efl'edt of a formal election. William of Poi£tou, this 
 king's chaplain, gives the following account of it : " Die ordinationi decreto locutus 
 M ad Anglos concedenti fermone Kboraci Archiepifcopus, fapiens, bonus, eloquens, 
 " an confenurent cum fibi dominum coronai i immifivit ; proteilati funt hilarem con- 
 
 " lVnfum
 
 Chap.I. PROGRESS OF FEUDAL SYSTEM, &c. 255 
 But though the constitution was far from being con- 
 verted into an abfolute monarchy, by virtue of an imme- 
 diate conqueSt, a confiderable change was, about this 
 time, introduced, both in the irate of landed property, and 
 in the authority of the fovereign. For this change, the 
 country, during the latter part of the Anglo-Saxon govern- 
 ment, had been gradually ripened and prepared. When* 
 by the frequent conversion of allodial into feudal eStates,. 
 the Small proprietors of land were at length reduced into 
 the condition of military fervants, thofe great lords, who 
 remained at the head of extennVe districts, were brought 
 into a more direct opposition and rivalfhip to one another. 
 Their eflates, by gradual enlargement, were become conti- 
 guous ; and thofe intermediate poSTeSTbrs, whom they had 
 formerly been employed in fubduing, were now distributed 
 upon either fide, and ready to affift their refpective Supe- 
 riors in their mutual depredations. Thofe hereditary fiefs, 
 which had been fcattered over a multitude of individuals, 
 were now concentered in a few great leaders ; who felt a 
 Stronger incitement to the exercife of reciprocal hoftilities, 
 as well as the capacity of profecuting them with greater 
 vigour and perfeverance, according as their power, toge- 
 
 " fenfum univerfi minime haefttantes, ac fi ccelitus una mente data, unaque voce, 
 " Anglorum, quam facillime Normanni confonuerunt fermocinato apud eos, ac fen- 
 " tentiam prxcunctatorium Conftantini Praefule, fie, eleflum confecravit Archiepif- 
 u copus," &c. 
 
 Ordericus Vitalis, who lived in the reign of William Rufus, fpealcs of the fame event 
 as follows : " Dum Aldredus Proeful alloqueretur Anglos, et Godofredus Conftanti- 
 41 nienfis Normannos, an concederent Gulielmum regnare fuper fe, et univerfi con- 
 " fenfum hilarem proteftarentur una voce non unius linguae locutione." 
 
 Gul. Gemeticenfis, in his hiftory of the dukes of Normandy, agrees with the two 
 authors above quoted " Ab omnibus," fays he, ■ turn Normannorum, quam An- 
 u glorum roccribus rex ejl glgflus" &c Tyrrel's Bibliotheca Polit. dial, 10. 
 
 thcr
 
 156 THE NORMAN CONQUEST; Book II 
 ther with their pride and their ambition, had been aug- 
 mented. The public magiftrate was often unwilling to 
 interfere in reconciling their differences, and was even 
 pleafed to fee their force wafted and broken by their mu- 
 tual ravages. The greater nobles were thus permitted to 
 injure and opprefs one another at their own difcretion ; 
 and, being expofed to fuch difficulties and diftrefTes as had 
 formerly been fuftained by the proprietors of fmall eft ates, 
 were obliged to extricate themfelves by fimilar expedients. 
 They endeavoured to provide againft the dangers which 
 threatened them, from the invafion of fome of their neigh- 
 bours, by forming an alliance with others ; or, if this re- 
 iburce had proved ineffectual, by courting the favour and 
 foliciting the protection of the king. Nothing lefs than 
 the power of the crown was capable, in many cafes, of de- 
 livering them from their embarraiTment ; and, in order to 
 procure that relief which their fituation required, it was 
 neceffary that they mould promife, upon their part, a re- 
 turn of good offices. If they were anxious to enjoy that 
 fecurity which he bellowed upon his immediate retainers, 
 they could not decently with-hold from him the fame 
 homage and fealty, or refufe to perform the fame fervices. 
 They found, in a word, that it was expedient for them to 
 refign their allodial property, and to hold their eftates by a 
 feudal tenure as vaffals of the crown. 
 
 The political theatre, at that time, exhibited a frequent 
 repetition of the fame parts by different actors. Thofe 
 opulent individuals, who had formerly been in a condition 
 to opprefs their neighbours, and force them into a ftate of 
 dependence upon the fovereign, were, by a different com- 
 bination of rival powers, or by an alteration of circumftancc',, 
 
 ndered, on other occasions, incapable of maintaining 
 
 their
 
 Chap. I. PROGRESS OF FEUDAL SYSTEM, 8cc. 257 
 
 their own independence ; and being, in their turn, induced 
 to (Vipplicate the interpoiition of the crown in their favour, 
 were obliged to purchafe it by the fame terms of fubmif- 
 iion. As thefe reiignations of land were in the higheft 
 degree advantageous to the fovereign, we can have no 
 doubt, that the influence of the court would be uniformly 
 exerted, and that every pohTble artifice would be employed, 
 in promoting them. The great nobles were thus rendered 
 fubordinate to the crown, in the fame manner as the infe- 
 rior free people had become fubordinate to the nobility; 
 the whole kingdom was united in one exteniive barony, of 
 which the king became the fuperior, and in fome meafure 
 the ultimate proprietor; an*l the feudal fyftem, as it is 
 called, of which the foundations had been laid leveral cen- 
 turies before, was at length entirely completed. 
 
 From the ftate of England, about the acceflion of the 
 Norman race of kings, a change of this nature was likely 
 to have happened ; though it was, undoubtedly, promoted 
 and accelerated by the peculiar 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 ponefTed of uncommon 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 nu- 
 merous forfeitures, incurred by the partifans of Harold, 
 and by fuch as were incited to aifls of rebellion, during the 
 courfe of William's reign, enabled the fovereign to acquire 
 a prodigious landed territory in England ; part of which he 
 retained in the pofTeflion of the crown; and the reft he 
 beftowed upon his favourites, under condition of their per- 
 
 forming the feudal fervices. 
 
 L 1 It
 
 2sS THE NORMAN CONQUEST; Book II. 
 
 It muft not be overlooked, that this feudal policy was 
 extended to the greater ecclefiaftical benefices, as well as to 
 the eitates of the laity. The bifhops and abbots became 
 immediate vaffals of the crown ; and, though not bound 
 to the king for perfonal fervice in war, were obliged to 
 fupply him with a number of military tenants proportioned 
 to the extent of their pofTeflions. Notwithitanding the 
 great influence of the clergy, fupported by the Roman 
 pontiff, who ftrongly remonftrated againft this innovation, 
 yet, as ecclefiaftical benefices were enjoyed only for life, 
 thofe churchmen who expected preferment from the 
 crown were, without much difficulty, prevailed upon to 
 accept of a benefice, under fuck general conditions as now 
 began to be impofed upon all the great proprietors of 
 land. 
 
 The change, which was thus effected in the flate of the 
 great nobles, was far from being peculiar to England. It 
 was extended, nearly about the fame time, over all the 
 kingdoms in the Weftern part of Europe ; and in moft 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 vaffals of the crown, in the time of Hugh Capet; 
 whofe reign began about eighty years before the Norman 
 conqueft; and who obtained the regal dignity, without any 
 appearance of diforder or violence, by the free eledion of 
 the national afTembly. The feudal inftitutions having been 
 
 npleted in that kingdom, of which Normandy coniti- 
 tuted one of the principal baronies ; it is likely, that Wil- 
 liam, when he came into England with a train of Norman 
 vaffals, found it the more eafy to eftablifh that fyltcm, be- 
 
 caufe
 
 Chap.1. PROGRESS OF FEUDAL SYSTEM, 8cc. 259 
 caufe his followers had already been acquainted with it in 
 their own country. 
 
 In the German empire many powerful barons became 
 vaffals 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 fubordination of the 
 nobility was not rendered fo univerfal in Germany as in 
 other European countries *. 
 
 By 
 
 * Concerning the time when the feudal fyftem was introduced into England, 
 authors of great note have entertained very different opinions. Lord Coke, the 
 judges of Ireland who gave their decifion upon the cafe of defective tides, Mr. Sel- 
 den, the author of the Mirroir des Ju/lices, and many others, fuppofe that it was 
 eftablifhed under the Anglo-Saxon government. Lord Hale, Mr. Somner, Cambden, 
 Dugdale, Mathew Paris, Bracton, maintain that it was unknown before the Norman 
 conqueft. — Sir Henry Spelman, in his GlofTary, feems to hold this laft opinion j but 
 in his pofthumous treatife he explains his meaning to be, only that fiefs did not become 
 hereditary, fo as to yield feudal incidents, before the reign of William the Conqueror. 
 The opinion which I have delivered above feems to account for thefe oppofite con- 
 jectures* It feems impoflible to deny that there were fiefs among the Anglo-Saxons : 
 on the other hand, it appears equally clear that there were many allodial eftates prin- 
 cipally in the hands of the great nobility. Nothing therefore remained for William, 
 towards completing the feudal fyftem, but the reduction of thefe laft into a ftate of 
 vafTalage. 
 
 We find accordingly, that, in the twentieth year of his reign, this monarch, having 
 finifhed a furvey of all the lands in the kingdom (except thofe of Northumberland, 
 Cumberland, and Weftmoreland) fummoned all the great men and land-holders, to da 
 homage, and fwear fealty to him. The expreflion ufed in the Saxon Chronicle, in 
 mentioning this fac\ is Proceres, et omnes pradia tcnentes, fe ilk fubdedcre, ejufque faeli 
 funt vajj'alli. Having become vaffals of the crown, at that time, it may be inferred 
 they were not in that condition formerly. It is further probable, that the twenty years 
 which had elapfed, fince the accc/Tion of William, were occupied in brin^-ino- about 
 this great revolution ; for if the great men had been crown vaflals durin°- the 
 Saxon government, it was the intereft of this prince not to delay their renewal of 
 
 LI 2 thc
 
 26o THE NORMAN CONQUEST Book IL 
 
 By this alteration in the flate of landed property, the 
 power of the crown was undoubtedly increafed ; but it was 
 j lot increafed in fo great a proportion as at the fiiit view 
 may perhaps be imagined. When the allodial eftates of the 
 great lords were converted into fiefs, they were invariably 
 fecured to the vafTal and his heirs. The power and in- 
 fluence of thofe opulent proprietors were therefore but 
 little impaired by this change of their circumflances. By 
 their tenures they w r ere fubjec~t to the jurifdiction of the 
 king's courts, as well as bound to ferve him in war ; and 
 they were liable for various incidents^ by which his revenue 
 was coniidcrably augmented ; but they were not in other 
 reflects dependent upon his will ; and, while they fufilled 
 the duties which their condition required, they could not, 
 with any colour of juflice, be deprived of their pofTefhons. 
 Neither was the fovereign capable, at all times, of enfor- 
 cing the performance of the feudal obligations ; but from 
 the pow r er of his great vaflals, or the exigence of his own 
 fituation, he found it necefTary, in many cafes, to connive 
 at their omiflions, and even to overlook their offences . 
 
 The reign of William the Firft was filled with diiquie- 
 tude and uneafinefs, both to the monarch, and to the na- 
 tion. About fix months after the battle of Haftings, he 
 found the kingdom in fuch a ftate of apparent tranquillity, 
 that he ventured to make a vifit to Normandy ; in order, as 
 it mould feem, to receive the congratulations of his ancient 
 
 the feudal engagement, by their fwearing fealty to him as foon as he came to the 
 throne. 
 
 From domcfday-boclc, which is now happily laid open to the infpe&ion of all the 
 rid, this faft is made ftill more certain, as innumerable inftances occur of land- 
 holders, who are (aid to have held their lands allodlally y in the reign of Edward, the 
 • 
 
 fubjects.
 
 Chap. I. PROGRESS OF FEUDAL SYSTEM, &c. 261 
 fubje&s. He probably intended to furvey his late elevation 
 from the mod interefting 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. William is, on this 
 occafion, accufed by fome authors of having formed a re- 
 folution to feize the property of all his Englifh fubjects, 
 and to reduce them into the moll abject Haver y. He is 
 even fuppofed to have gone fo foon into Normandy, for 
 the purpofe of giving them an opportunity to commit acts 
 of rebellion, by which a pretence might be afforded for the 
 fe verities which he had purpofed to execute*. But, as this 
 has been advanced without any proof, fo it appears in it- 
 felf highly improbable. It is altogether incontinent with 
 the prudence and found policy afcribed to this monarch, 
 not to mention the feelings of generality or juftice, of which 
 he does not feem to have been wholly deftitute, that he 
 mould, in the beginning of his reign, have determined to 
 crufh and deftroy the Englifh nobility, merely for the fake 
 of gratifying his Norman barons ; lince, by doing fo, he 
 mult have expected to draw upon himfelf the hatred and 
 refentment of the whole kingdom, and to incur the evident 
 hazard of loling that crown which he had been at fo much 
 trouble and expence in acquiring. Although William was, 
 doubtlefs, under the necellity of bellowing ample rewards 
 upon many of his countrymen, it was not his interelt that 
 they mould be enriched, or exalted beyond meafure. Nei- 
 ther was he of a character to be guided by favourites, or to 
 facrifice his authority to the weafcnefs of private affection. 
 Whcji he found himfelf feated upon the Englifh throne 
 
 * Hume's Hill, of England. 
 
 it
 
 zGi THE NORMAN CONQUEST; Book II. 
 it is natural to iuppofe that he would look upon the dutch y 
 of Normandy as a diftant province, or as a mere depen- 
 dency of the crown of England; and that he would he 
 more interested in the prosperity 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 ltop to thole quarrels which, in his abfcncc, had 
 broke out between his Englifh and his Norman fubjects, 
 and in giving redrefs to the former, for thofe injuries 
 which they had iuitained from the latter. In particular, he 
 endeavoured, every where, to reftore the Englifh to thofe 
 pofTeffions from which they had been expelled, through the 
 partiality, or want of authority in thofe perfons w'ith whom 
 he had left the administration of government. 
 
 Several circumftances contributed to render this monarch 
 unpopular, and have fubjected his conduct to greater cla- 
 mour and cenfure than it appears to have merited. 
 
 i. The jealoufy with which the Englifh beheld the 
 Normans, whom they looked upon as intruders, and who 
 became the ruling party, gave rife to numberlefs difputes, 
 and produced a rooted animofity between them. The par- 
 tiality which, in fuch cafes, might frequently be difco- 
 vered, and perhaps was oftener fufpected, in the Sovereign, 
 or in thofe to whom he committed the inferior branches of 
 executive power, inflamed the paflions of men who con- 
 ceived themfelves loaded with injuries, and excited them to 
 frequent infurrcctions. By the punifhment, which fell 
 unavoidably upon the delinquents, and which could not 
 fail to be regarded by their countrymen as rigorous, new 
 difcontents were occasioned, and freih commotions were 
 produced. 
 
 4 To
 
 Chap. I. PROGRESS OF FEUDAL SYSTEM, Sec. 263 
 To the averfion which the Englifh conceived againft 
 William, as a Norman, and as the friend and protector of 
 Normans, they joined a ftrong prejudice againft thofe 
 foreign cuftoms which he and his followers had imported. 
 Devoted, like every rude nation, to their ancient ufages,, 
 they were difgufted with thofe innovations which they 
 could not prevent ; and felt the utmoft reluctance to adopt 
 the peculiar manners and policy of a people by whom they 
 were oppreffed. The clamours propagated againft parti- 
 cular laws of William the Conqueror, which were confi- 
 dered as the moft oppreffive, may ferve to demonftrate, 
 that his fubjecls had more difpoiition to complain than 
 there was any reafon to juftify. It appears that the origin 
 and nature of fome of thefe laws have been grofsly mif- 
 underftood and mifreprefented. The regulation, for in- 
 ftance, that lights mould be extinguifhed in every houfe 
 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 moft inconteftable evidence, not only that William 
 was determined entirely to break and fubdue the fpirit of 
 the Englifh, but that he was held in continual terror of 
 their fecret confpiracies. It is now generally underftood 
 and admitted, that this was a rule of police eftablifhed in 
 the greater part of the feudal nations ; as by the extreme 
 fobriety which it enforced, it was peculiarly adapted to the 
 circumftances of a fimple people. Another law, the fource 1 
 of much complaint, and deemed ah intolerable grievance, 
 was, that when a Norman was robbed or ilain, the hun- 
 dred, within whole territory the crime had been committed, 
 mould be refponfible, and fubject to a pecuniary punifli- 
 
 ment.
 
 264 THE NORMAN CONQUEST; Book IL 
 ment. This regulation, which, in all probability had be- 
 come neceffary, from the multitude of Normans that were 
 daily aiuiiTinated, was originally of Saxon inititution, and 
 was only accommodated in this reign to the exigence of 
 the times. 
 
 2. The extenfion of the prerogative, by reducing the 
 allodial proprietors of land into a flate of vafTalage under 
 the crown, was likewife, we may fuppofe, the ground of 
 duTatisfadtibn and murmuring to thofe great barons, who 
 found themfelves deprived of their ancient independence, 
 and were expofed to much vexation from thofe various 
 incidents, the fruit of the feudal tenures, that were now 
 claimed by the fovereign. The diicontent arifmg from 
 this caufe, and the delire of recovering that condition 
 which they had held under the Anglo-Saxon princes, was 
 not limited to the Englifh nobility ; but was readily com- 
 municated to thofe Norman chiefs who had obtained eftates 
 in England, and were naturally animated with the ambition 
 of fupporting the privileges of their own order in oppofi- 
 tion to the claims of the fovereign. One of the moil for- 
 midable infurrections, during the reign of William the 
 Firft, appears to have been excited and conducted 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 circumif ance which contributed, no lefs than 
 either of thofe which have been mentioned, to render Wil- 
 liam unpopular, was the refentment of the clergy, whom 
 he greatly offended by his exactions from them, and by his 
 oppofition to the progrefs of ecclefiaftical authority. As 
 the clergy porTerled great influence over the people, fo they 
 were the only hiitorians of thofe times ; and in cilimating 
 
 the
 
 Chap. I. PROGRESS OF FEUDAL SYSTEM, &c. 265 
 the character of any particular prince, they feem to have 
 had no other criterion hut the liberality and favour which 
 he difplayed to the church. According to his difpofitions 
 in this refpecl, 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 thefe impure fountains the 
 itream of ancient hiflory contracted a pollution, which has 
 adhered to it even in the courle of later ages, and by which 
 it is prevented from reflecting a true picture of the pail 
 occurrences. 
 
 After all, it cannot be controverted, that this monarch 
 was of a fevere and inflexible temper ; and that he punifh- 
 ed with rigour every attempt to fubvert or to diilurb his 
 government. That he was rapacious of money, as the 
 great inftrument for fupporting his authority, muft like- 
 wife be admitted. Among other exactions, he revived 
 a tax, no lefs hateful than fmgular, known to the Englifh 
 by the name of Dane-gelt, which had been abolilhed by 
 Edward the ConfefTor. It appears to have arifen from an 
 extraordinary contribution, which the Anglo-Saxon kin:;s 
 were under the necefhty of levying, to oppofe the inroads 
 of the Danes, or to make a composition with thole 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 Hid- 
 den or extraordinary demand. That he exterminated, how- 
 ever, the whole Englifh nobility, or confiderable proprietors 
 of land, or that he ftripped them of their pofleffions, as 
 has been aflerted by Dr. Brady and by fome later writers, 
 from the authority of fome declamatory and vague ex-pref- 
 ix m fions
 
 266 THE NORMAN CONQUEST; Book IL 
 
 lions in one or two ancient annalifts, there feems no good 
 reaibn to believe *. 
 
 When, 
 
 * This point has been the fubjeer, of much difquifition and controverfy. See Petit';* 
 Rights of the Commons averted — Atwood's Janus Anglorum ab Antique*— Cook's 
 Ar^umentum Antinormanicum — Tyrrell's Hiftory — and Bibliothcca Politica, dial. 10. 
 On the other fide of the queftion, Dr. Brady's Hiftory, and his various political 
 treatifes. 
 
 From an infpe&ion 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 0£ 
 England, and that very large eftates were conferred upon his Norman barons, who 
 had the principal fhare 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 
 pofTeflbrs. Whatever burdens were impofed upon the church, it is not alledged that 
 the clergy, or that any religious focieties, which had been efhblifhed under the 
 Anglo-Saxon government, were deprived of their property. Thefe ecclefiaftical 
 eftates were of great extent, and the tenants, or knights, who held of the church 
 were numerous and powerful. Of 60,215 knights' fees, computed to have been in 
 England not long after the conqueft, no fewer than 20,015 are faid to have belonged 
 to churchmen. It muft be owned, however, that when vacancies occurred in church 
 livings, they were moft commonly beftowed upon Normans. 
 
 With refpecr. to the laity, there are great numbers mentioned in Doomfday-book, as 
 having held eftates in ihe reign of Edward the Confeflbr. This is fo palpable, that 
 even Dr. Brady himfelf, in his anfwer to the Argumentum Antinormanicum, feems 
 to abandon his aflcrtion, that the Englifti were deprived of their pofleflions, and con- 
 tents himfelf with maintaining, that the nature of their property was changed, by 
 their being reduced into the fubordinate ftate of vaflalage. 
 
 But even here the fad feems to be mifreprefentcd, and in the lift of crown vaflals 
 
 recorded in Doomfday, we may difcover great proprietors, who held lands in England 
 
 re the conqueft: fuch as, Ralulfus </ Mortimer — Hugo de Porth — and even inr 
 
 number we may reckon the Earl of M; rcicn, who, though a Norman, had, along 
 
 with many others, obtained Englifti pofleflions in the reign of Edward the Confeflbr. 
 
 thofe crown vaflals, it feems difficult, in many cafes, to diftinguifh the names 
 
 e Norman from thofe of the Anglo-Saxon families j but there are many which 
 
 to have been appropriated to the latter. Such as, Ofwald> Eldred y Albert, 
 
 I - Edmund^ Mured. 
 
 it is (aid indeed, by William of Malmfbury and Henry of Huntington, that, about 
 
 the
 
 Chap. I. PROGRESS OF FEUDAL SYSTEM, &c. 267 
 When, at the fame time, the fituation of William, and 
 the difficulties which he was obliged to encounter, are 
 properly confidered, it mult on the one hand be acknow- 
 ledged, that the rigours imputed to him were, for the moft 
 part, excited by great provocation ; as, on the other, it may 
 be doubted, whether they were not in fome degree necef- 
 fary for reducing the country into a ftate of tranquillity ; 
 and whether afovereign, endowed with greater miklnefs of 
 difpolition, would not have probably forfeited the crown, as 
 well as involved the kingdom in greater calamities thanthofe 
 which it actually fuffered. 
 
 William Rufus, the fecond fon of the Conqueror, fuc- 
 ceeded to the throne, in preference to Robert his elder bro- 
 ther, from the recommendation of his father; from the 
 influence of Lanfranc, the archbifhop of Canterbury ; and 
 from his being, at his father's death, in England to, iup- 
 port his claim, while his brother was at a diflance. His 
 reign exhibits the fame afpedt. of public affairs with that 
 of his father ; the internal difcord of the nobles ; their 
 frequent infurrecftions againft the fovereign ; with his cor- 
 refpondent efforts to keep them in fubjection. As by the 
 fuaceffion of this prince, the dutchy of Normandy, which 
 was bequeathed to Robert by his fath i detached from 
 
 the crown of England, many of the Norman barons, fore- 
 
 the end of William's reign, no Englifljman was cither bot, or ah, in 
 
 England. 
 
 We may add, that, fuppofing the whole of the Englifh to have been c by 
 
 William the Conqueror, it would not thence follow that his gc. ;mc 
 
 abfolute. For what motive could have induced his Norman barons now become 
 Englifh nobles, and pofTefled of immenfc eitates, which werte fecured to thorn in per- 
 petuity, to acquiefce in any violent; extenjlon of the itivc, to which neither the 
 i.'jbilicy of Normandy nor of England had been accu Homed : 
 
 M m 2 ing
 
 268 THE NORMAN CONQUEST; Book II. 
 feeing the inconvenience that might arife from a divifion 
 of their property under different ibvereigns, endeavoured 
 to prevent his eftablifhment, and railed a rebellion in fa- 
 vour of Robert. But the fame circumftance, which ren- 
 dered the advancement of William fo difagreeable to the 
 Normans, made this event equally defirable to the Englifh, 
 who dreaded the continuance of a connexion, from which, 
 in the late reign, they had experienced fo much uneaiinefs 
 and hard treatment. By their aiTiftance, the Norman re- 
 bels were foon defeated ; the eftates of the greater part of 
 them were conhTcated ; and the authority of the king was 
 completely eftablifhed : a proof that, in the reign of the 
 Conqueror, the Englifh nobility or confiderable land-holders 
 were far from being extirpated ; and that their power was 
 not nearly fo much impaired as has been pretended*. 
 
 Not long after, the king pafTed over into Normandy, with 
 an army, in order to retaliate the late difturbances which had 
 been promoted from that quarter ; but before hoftilities had 
 been pufhed to any confiderable length, a reconciliation, 
 between the two brothers, was effected, by the interpofition 
 of the principal nobility in both countries ; and a treaty 
 was concluded, by which, among other articles, it was 
 
 • The expreffion ufed on this occafion by William of Malmfbury, is, " Rex videns 
 " Normannos pene in una rabie confpiratos, Anglos probos et fortes viros, qui adhitc 
 " refidui erunt, invitatoriis fcriptis arceflit; quibus fuper injuriis fuis queremoniam 
 " faciens, bonafque leges, et tributorum levamen, liberafque venationes pollicens, 
 r - fidelitati fuse obligavit." Ordericus Vitulis fays, " Lanfrancum archiepifcopum, 
 " cum fufFraganeis praefulibus, et comites Anglofque naturales, convocavitj et conatus 
 " adverfariorum, et velle fuum expugnandi eos, indicavit." 
 
 Dr. Brady, whofe fyftem led him to maintain that none of the native Englifh 
 
 retained confiderable property in the end of the reign of William the Conqueror, 
 
 labours to prove, that, by the Angli Naturales, and the Angli qui adhuc erant refidui^ 
 
 mans, or Frenchmen, who had fettled in England, are to be underftood, in oppo- 
 
 fhton to fuch as lived in Normandy, or were but recently come from that country. 
 
 agreed,
 
 Chap. I. PROGRESS OF FEUDAL SYSTEM, &c. 269 
 agreed, that, upon the death of either, without ifTue, the 
 furvivor fhould inherit his dominions. Twelve of the mod 
 powerful barons on each iide became bound, by a iblemn 
 oath, to guaranty this treaty : a circumitance which, as 
 Mr. Hume obferves, is fufficient to fhew the great autho- 
 rity and independence of the nobles at that period. No- 
 thing can afford fuller conviction, that neither this king 
 nor his predecelfor, though they undoubtedly extended 
 their prerogative, had been able to deftroy the ancient arif- 
 tocracy, and to eftablifh an abfolute defpotifm. 
 
 The re-union of Normandy with the dominions of the 
 Englifh monarch was, however, more fpeedily accomplifh- 
 ed, in confequence of an event, by which, at the fame time, 
 all Europe was thrown into agitation. I mean, the crufades ; 
 which were begun in this reign, towards the end of the 
 eleventh century, and continued for about two hundred years . 
 The caufes which produced thofe expeditions ; the general 
 fuperftition of the age, by which Chriflians were infpired 
 with a degree of phrenfy to deliver the holy fepulchre, and 
 the holy land, from the hands of infidels ; and the ambi- 
 tious defigns of the Pope, fupported by the whole Wef- 
 tern church, to extend the dominion of Chriftianity over 
 both the religion and the empire of Mahomed ; thefe cir- 
 cumftances inflamed moft of the princes of Europe with 
 an eager defire of fignalizing themfelves in a war, from 
 which they had the profpect, not only of the higheft repu- 
 tation and glory in this world, but of much more tran- 
 fcendent rewards in the next. Such motives were peculi- 
 arly calculated to work upon the gallant, though tlefs, dif- 
 intcreited character of Robert, the duke of Normandy ; 
 who, in the fame proportion as he was deficient in political 
 • capacity.
 
 270 THE NORMAN CONQUEST; Book II. 
 capacity, ieems to have excelled in military accomplish- 
 ments, and to have been pofTefTed with all thofe religious 
 fentiments, and thole romantic notions of military honour, 
 which were fafhionable in that age. Embarking, there- 
 fore, in the firft cruiade, and being under the neceflity of 
 railing money to equip him for that extraordinary enterprife, 
 he was prevailed upon to mortgage, to his brother the king 
 of England, the dutchy of Normandy, for the paltry him 
 of ten thouland marks. William Rufus took no part in 
 that war, and ieems to have beheld it with perfect indiffe- 
 rence. He was upon bad terms with the clergy, whofe 
 relentment he incurred by the contributions which he 
 levied from them ; and he has, partly, we may fuppofe, 
 for that realon, been branded even with irreligion and pro- 
 faneneis. His covetous difpofition allowed him to enter- 
 tain no fcruple in taking advantage of his brother's nece£-. 
 fities ; and, being immediately put in pofTeffion of Nor- 
 mandy, his authority, by this extenlion of territory, and 
 by the diftant occupation thus given to Robert, was more 
 firmly eftablimed. 
 
 This monarch, after a reign of thirteen years, having 
 been killed accidentally, by an arrow aimed at a wild beaft, 
 was fucceeded by his younger brother, Henry ; who im- 
 mediately feized upon the treafure of the late king, and 
 obtained pofTeflion of the throne. The duke of Normandy 
 was at this time in Syria, where he had gained great repu- 
 tation by his valour. It was to be expected, that, as foon as 
 he fliould be informed of thefe tran factions, he would take 
 vigorous meal ures for fupporting his title to the crown of 
 England. Few of the Englifh princes have appeared at 
 their acceflion to be furrounded with greater dangers and 
 5 dimcultiet
 
 Chap. I PROGRESS OF FEUDAL SYSTEM, 8cc. 271 
 difficulties than Henry the Firft ; but his capacity enabled 
 him to encounter them with firmnefs, and to extricate him- 
 felf with dexterity. 
 
 During many of the reigns that fucceeded the Norman, 
 conqueft, we find that the demands of the nobility, in their 
 difputes with the fovereign, and the complaints of fuch as 
 were difcontented with the government, were pretty uni- 
 formly confined to one topic, " the reiteration of the laws 
 " of Edward the ConfefTor." But what particular object 
 they had in view, when they demanded the reftoration of 
 thofe laws, it is difficult to afcertain. That they did not 
 mean any collection of ftatutes, is now univerfally admitted; 
 and it feems to be the prevailing opinion, that their demand 
 related to the fyftem of common law eftablifhed in England 
 before the Norman conqueft. From what has been ob- 
 ferved concerning the advancement of the feudal fyftem in 
 the reign of William the Firft, it appears evident, that the 
 nobility had in view the recovery of the allodial property, 
 and the independence, which they had formerly enjoyed. 
 They faw with regret, we may eafily fuppofe, the late di- 
 minution of their dignity and influence; and fubmitted 
 with reluctance to the military fervice, and to the other 
 duties incumbent on them as vaffals of the crown. The 
 feudal incidents, which were levied by the crown-officers, 
 and of which the extent was not afcertained with accuracy, 
 were, in particular, the fource of much vexation, and gave 
 occafion to many complaints. Of theie complaints the 
 fuccefs was generally proportioned to the difficulties in 
 which the fovereign was involved, and the neceility he 
 was under of purchasing popularity by a rcdrefs of 
 grievances. 
 
 As
 
 -72 THE NORMAN CONQUEST; Book II. 
 
 As Henry the Firft was expo fed to all the odium attending 
 an open and palpable ufurpation, and was threatened with 
 an immediate invafion from the duke of Normandy, the 
 acknowledged heir of the crown, he endeavoured to lecure 
 the attachment of his barons by yielding to their demands; 
 and, in the beginning of his reign, he granted them a public 
 charter of their liberties, by which the encroachments of 
 prerogative made in the reign of his father, and of his 
 brother, were limited and reftrained. When we examine 
 this charter, the firft of thofe that were procured from the 
 Englifh monarchs after the Norman conqueft, we find 
 that, befides containing a claufe with refpect to the pri- 
 vileges of the church, it relates principally to the incidents 
 of the feudal tenures. 
 
 One of the moft oppreffive of thefe was ward/bip ; by 
 which the king became the guardian of his vafTals, in their 
 minority, and obtained the pofTeflion of their eftates du- 
 ring that period. It is probable that this important privi- 
 lege had not, in the cafe of crown-vafTals, been yet fully 
 eftablifhed ; fince the guardianfhip of them is, in the char- 
 ter of Henry the Firft, relinquifhed by the king, and com- 
 mitted to the neareft relations *. 
 
 The relief, or compofition, paid by the heir of a vafTal, 
 in order to procure a renewal of the inveftiture, was not 
 given up by the fovereign ; but the extent of this duty 
 appears to have been fettled, with a view of preventing op- 
 preilion or difpute in particular cafest. 
 
 The incident of i?wr?"iage, by which, in after times, the 
 ftiperior was entitled to a compofition, for allowing his 
 
 * The charter of Henry I. publifhcd by Blaclcftone. 
 t Ibid. * " * 
 
 vafTals
 
 Chap. I. PROGRESS OF FEUDAL SYSTEM, &c. 273 
 vaflals the liberty of marrying, ieems, by this charter, to 
 have extended no farther than the privilege of hindering 
 them from forming, by intermarriages, an alliance with 
 his enemies*. 
 
 Upon the whole, the parties appear to have intended, in 
 this famous transaction, to compound their differences. 
 The feudal fuperiority of the crown is permitted to re- 
 main ; while the nobles are, on the other hand, relieved 
 from fome of the chief inconveniences which had refulted 
 from it ; and, after the regulations particularly Specified, 
 the charter contains a general claufe, in which the king 
 promiles to obferve the laws of Edward the GonfefTor, 
 with fuch amendments as William the Firft, with the 
 advice of his barons, had introduced. Copies of this deed 
 were lent to all the counties of England ; and depofited in 
 the principal monafleries, in order to preferve the memory 
 of an agreement, by which the prerogative of the crown, 
 and the rights of the people, in feveral important articles, 
 were afcertained and defined. 
 
 The popularity which Henry acquired by thefe prudent 
 conceflions, enabled him to defeat the ill-concerted enter- 
 prize of the duke of Normandy ; who, becoming the dupe 
 of his brother's policy, was perfuaded to refign his prefent 
 claim to the crown, in confequence of an agreement fimilar 
 to that which had formerly been made with William Rufus, 
 that, upon the death of either of the two princes without 
 iffue, the furvivor mould inherit his dominions. Not con- 
 tented with the quiet pofTeflion of England, Henry foon 
 after invaded Normandy; gained a complete victory over 
 Robert, and reduced the whole country into Subjection. 
 
 * The charter of Henry I. publilhcd by Blaclcftone. 
 
 N n The
 
 274 THE NORMAN CONQUEST; Book II. 
 The duke himfelf, being taken prifoner, was carried over 
 to England, and detained in cuftody during the remainder 
 of his life, which was eight and twenty years. It is added 
 by foine authors, that he lived moil part of this time in 
 utter blindnefs ; having, on account of an attempt to make 
 his efcape, been condemned to lofe his eye-light. The 
 character of thefe two brothers appears to exhibit a ftriking 
 contrail, in the virtues of generofity and private affection, 
 as well as in activity and talents for public affairs ; and the 
 unfortunate duke of Normandy was no lefs diitinguiihed 
 by his fuperiority in the former, than by his inferiority, or 
 rather total deficiency, in the latter. 
 
 During a reign of thirty-five years, Henry conducted 
 the adminiftration of government, with conftant modera- 
 tion, and with uninterrupted profperity. He was attentive 
 to the grievances of his people, vigilant in the diftribution of 
 juftice, and careful to levy no exactions without confent of 
 the national council. From the progrefs of ecclefiaflical 
 ufurpation, he was involved in difputes with the church ; 
 but in the courfe of thefe he conducted himfelf with fuch 
 addrefs, as not only to avoid the refentment, but, in the 
 ifl ue, to become even the favourite of the clergy. His 
 character has, of confequence, been highly celebrated: at 
 the fame time, when regarded only in a public view, it 
 feems to merit all the praifes with which it has been trans- 
 mitted to pofterity. 
 
 Henry left no legitimate fons ; and only one daughter, 
 Matilda ; who had been firft married to the emperor, and 
 afterwards to the earl of Anjou, by whom fhe had chil- 
 dren. Setting afide the conlideration that her father v 
 an ururper, me had, according to the rules of fucceflion in 
 that period, by which females were beginning to inherit 
 5 landed
 
 Chap. 1. PROGRESS OF FEUDAL SYSTEM, 8cc. 275 
 landed eflates, the beft title to the crown ; but a great part 
 of the nobility were in the intereft of Stephen, a younger 
 fon of the count of Blois, and grandfon, by a daughter, of 
 William the Conqueror. This nobleman, who had long 
 refided in England, and was diftinguifhed by his popular 
 manners, had procured many partizans ; and was probably 
 thought the fitter perfon to wield the fceptre *. After 
 obtaining pofTemon of the fovereignty, he immediately 
 called a parliament at Oxford, in which he granted a 
 charter, confirming all the privileges contained in that of 
 his predeceffor ; and in the prefence of the afTembly he 
 took an oath to maintain them ; upon which the bifhops 
 and peers recognifed his authority, and fwore fealty to 
 himt. The policy of this monarch was not equal to his 
 bravery. During the long conteft in which he was en- 
 gaged with Matilda, and her elded fan, Henry, he was 
 generally unfortunate; and, in the end, w r as obliged to 
 yield the reverfion of the crown to the latter. 
 
 Henry the Second, who fucceeded, in right of his mother, 
 but who irregularly mounted the throne in her life-time, 
 had excited fanguine expectations of a profperous and 
 brilliant reign. To the early difplay of great activity and 
 abilities, he joined the pofTeffion of more extenfive domi- 
 nions than had belonged to any Englifh monarch. Upon 
 the continent he was mailer of Normandy, Britany, Anjou, 
 Guienne, and other territories, amounting to more than a 
 third of the whole French monarchy. He was, at the 
 fame time, a defcendant, though not the lineal heir, of the 
 Anglo-Saxon monarchs ; his grandmother, the wife of 
 
 * Daniel's Hill. 
 
 f Ibid. Blackftone, IMory of the Great Charter. 
 
 N n 2 Henry
 
 276 THE NORMAN CONQUEST; Book II. 
 Henry the Firft, being the niece of Edgar Atheling; a 
 circumftance which contributed not a little to conciliate the 
 affection of the Englifh. Notwithstanding thefe advantages, 
 his adminiitration, though full of vigour, was clouded with 
 misfortunes. Having conceived the defign of repreffing 
 the incroachments of the church, and wifhing to execute 
 this in the imootheft and moft effectual manner, he pro- 
 moted to the fee of Canterbury his principal favourite* 
 Thomas a Becket, by whofe afliflance he expected that 
 the direction of his own clergy would be infallibly fecured. 
 This prelate, however, happened to pofTefs a degree of 
 ambition, not inferior to that of his matter ; and no fooner 
 found himfelf at the head of the Englifh church, than he 
 refolved to dedicate his whole life to the fupport of eccle- 
 fiaftical privileges, and of the papal authority. 
 
 The particulars of that controverfy, which terminated 
 fo unfortunately, and fo difgracefully, to the king, are 
 known to all the world. The greateft monarch in Europe, 
 reduced to the neceflity of walking three miles barefooted, 
 to the tomb of Saint Becket ; proftrating himfelf before 
 that fhrine, and lying all night upon the cold pavement of 
 the cathedral, in prayer, and with demonftrations of the 
 deepeft penitence, for having offended a man from whom 
 he had received the higheft provocation ; and, after all, 
 fubmitting to be fcourged by the prior and monks of the 
 neighbouring convent; beiides yielding up implicitly all 
 thofe points which had been the original caufe of the 
 conteft : fuch an unufual and humiliating fpectacle cannot 
 fail to excite fingular emotions ; and it is believed that few 
 readers can perufe this part of our hiftory without vifible 
 marks of indignation. 
 
 That
 
 Chap. I. PROGRESS OF FEUDAL SYSTEM, Sec. 277 
 That ecclefiaflical tyranny is more extenfively mifchie- 
 vous than civil, is indifputable ; and that the former mould 
 therefore raife greater indignation than the latter, is rea- 
 fonable. There may be ground for fufpecting, however, 
 that our feelings, in the prefent 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 intrepidity ; and 
 though it may be confidered as a purer principle of action, 
 by purfuing the aggrandifement of his own order more 
 than of himielf ; yet is lefs calculated to dazzle the imagi- 
 nation, and to feize our admiration, than that of a Cxfar 
 or an Alexander, who makes his own will 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 fiefs in perpetuity, there was another pecuniary 
 payment, which grew up in courle 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 mm of money in place of his 
 perfonal attendance in the field • and fuch a compofition 
 was generally acceptable to the fovereign ; who, by means 
 of it, was enabled to hire a foldier more perfectly fubject 
 to his direction. The mm payable by the vaffal in place 
 of military fervices, the extent of which was at iirft deter- 
 mined by an agreement with the king in each cafe, was 
 denominated a /outage. In England, the practice of levy- 
 ing fcutages became very general in the time of Henry 
 the Second ; when the connexions of the fovereign with 
 France gave rife to more expenfive enterprizes than had 
 
 former! y
 
 278 THE NORMAN CONQUEST; Book II. 
 
 formerly been cuftomary ; and confequently induced the 
 crown-vaflals more frequently to decline their perfonal 
 attendance. 
 
 In this reign the conqueft of Ireland, as it is called, was 
 begun and compleated. As that ifland had never been 
 conquered, or even invaded, by the Romans, it retained, 
 with its independence, a total ignorance of thofe arts, and 
 of that civilization, which every where accompanied the 
 Roman yoke. It leems, on the other hand, to have efcaped, 
 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 coaits, where they formed fome fmall fettlements, and 
 built feveral towns. Thus, while the greateft part of 
 Europe was, for feveral centuries, thrown into convul- 
 iions by the repeated irruptions of the German or Scythian 
 nations, Ireland was, by reafon of its fituation, expofed to 
 little difturbance or commotion from any foreign enemy ; 
 and the inhabitants were feldom engaged in any military 
 enterprizes, but fuch as arofe from their own private quarrels 
 and depredations. It is therefore highly probable, that, for 
 fome time after that country was mil inhabited, and while 
 the feveral families or petty tribes, to whom by its fertility 
 it afforded an eafy fubfiftence, were not much crowded 
 together, they enjoyed more tranquillity than the other 
 barbarians of Europe, and, of confequence, were lefs coun- 
 teracted and reftrained in thole exertions of generofity and 
 friend (hip, to which, among people who live in fmall focie- 
 ties, and are ftrangers to induflry, and to the concomitant 
 habits of avarice, there are peculiar incitements. That 
 the ;ht, upon this account, acquire a conliderable fhare 
 
 of that refinement which is attainable in the paitoral ages, 
 
 it
 
 Chap.L PROGRESS OF FEUDAL SYSTEM, 8cc. 279 
 
 it is natural to fuppofe ; and that they actually did fo, the 
 fpecimens of Celtic poetry, lately publifhed, which have 
 been claimed refpectively by the Irifh and by the inhabi- 
 tants of the Weft Highlands of Scotland, both of whom 
 may, in this cafe, be confulered as one people, appear incon- 
 teftible evidence. The authenticity of thefe publications 
 has, indeed, been called in queftion ; 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 believe 
 that they are the original production of any modern 
 publifher. * 
 
 According as Ireland became gradually more populous, 
 a greater number of families came to be united in par- 
 ticular principalities ; the leaders of which being actuated 
 by larger views of ambition, found more frequent pre- 
 tences for quarrelling with each other; and their fubjects 
 or followers, being thus involved in more numerous acts of 
 hoftility, or in fuch as were productive of greater violence 
 and outrage, the manners of the people in general were, 
 of courie, rendered more ferocious. The whole illand 
 came at length to be reduced into four or five extenfive 
 diftricts, under fo many different fovereigns ; one of which 
 frequently claimed a fort of authority or pre-eminence 
 over all the reft. 
 
 After the Englifh monarchy had come to be connected 
 with the continent of Europe, and to interfere in its trans- 
 actions, it was natural for the king of England to entertain 
 the ambition of adding to his dominions a country fo com- 
 modioully fituated as Ireland, and which appeared to be fo 
 little in a capacity of making reliftance. Henry the Second 
 is accordingly faidto have taken fome fteps for executing a 
 project of this nature, when application was made to him 
 
 for
 
 iSo THE NORMAN CONQUEST; Book II. 
 for protection, by Dermot the king of Leinfler, who had 
 been driven out of his dominions. In virtue of a bare per- 
 miilion from the king of England, two needy adventurers, 
 Fitzttephen and Fitzgerald, and afterwards Richard, fur- 
 named Strongbow, likewife a man of defperate fortune, to 
 whom the two former acted in a kind of fubordination, 
 landed with a few followers in Leinfter; defeated any 
 force that was brought in oppofition to them ; beiieged and 
 took feveral towns, and formed a fettlement in the province. 
 Upon receiving information of their progrefs, Henry, in- 
 flamed, as it fhould feem, with jealoufy of their fuccefs, 
 battened immediately to take pofTeflion of the territory 
 which they had fubdued ; and coming over to Ireland, re- 
 ceived the fubmillion 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 fuccefTors for feveral 
 centuries, appear to have derived any fubitantial benefit 
 from this acquifition. Their authority was confined to that 
 narrow diftricf inhabited by the Engliih ; and even tberewzs 
 more nominal than real ; for the Englifh inhabitants, har- 
 rafTed by continual inroads from their neighbours, and re- 
 ceiving a very uncertain and cafual fupport from England, 
 were, on many occafions, tempted to throw off their alle- 
 giance, and were feduced to imitate the barbarous manners 
 and practices of the natives. 
 
 Henry, in [the latter part of his life, was rendered un- 
 happy by domeflic misfortunes. A confpiracy was formed 
 againft him, by his queen and fons, which became the 
 fource of repeated infurrec~lions, accompanied with feve- 
 ral very formidable invaflons from the neighbouring 
 powers. 
 
 Though
 
 Chap. I. PROGRESS OF FEUDAL SYSTEM, 8cc. 281 
 Though the king was fuccefsful in re])refling thefe dif- 
 •orders, and in defeating all his enemies ; yet the obftinacy 
 with which his children perliited in their unnatural at- 
 tempts, appears to have imprefTed his mind with deep fan- 
 timents of melancholy and dejection. From the difficulties, 
 at the fame time, with which he was furrounded, he found 
 it highly expedient to court the good-will of his fubjects, 
 not only by a careful attention to the police of the king- 
 dom, and by an equal diftribution of juftice, but by grant- 
 ing a new charter in the fame terms with that of Henry 
 the Firft *. 
 
 Richard the Firft, who fucceeded his father, was en- 
 tirely ingrofTed 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 fafhionable achievement of 
 that age, or in opnreflive exactions, to relieve him from 
 the burdens which he. had incurred by that unfortunate 
 enterprize. 
 
 The character of John, his brother and fuccefTor, is 
 univerfally 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 himfelf with honour; but which, under his 
 management, could hardly fail to terminate in ruin and 
 difgrace. 
 
 It is obferved by Mr. Hume, with his ufual acutenefs, 
 that the extenfive territories which the kings of England, 
 at this period, pofTefTed in France, were the fource of 
 
 • Blackitone, Hiftory of the Great Charter. 
 
 O o much
 
 iSz THE NORMAN CONQUEST; Book IL 
 much lefs real than apparent ftrength ; and that, from their 
 fituation, they were rilled with the feeds of revolt and dif- 
 obedience. In the ordinary ftate of the feudal tenants, the 
 vaflals of the nobility were much more attached to their 
 immediate fuperior, by whom they were moll commonly 
 protected, and with whom they maintained an intimate 
 correfpondencc, than with the fovereign, who lived at a 
 diiiance from them, and with whom they had little con- 
 nexion. The power of the king, therefore, depended, for 
 the mofl part, upon the extent of his own demefnes ; and 
 in every quarrel with his nobles, it was to be expected that 
 all their vaffals would take party againft him. But in the 
 dominions which the king of England held in France, thefe 
 circumitances were completely reverfed ; and his imme- 
 diate vaffals, by their fituation, were lefs capable, on any 
 emergence, of receiving protection from him, than from 
 the French monarch, their paramount fuperior : not to 
 mention, that they regarded the king of England as a fo- 
 reign prince, whofe intereft was commonly very different, 
 and fomctimes diametrically oppofite to that of their native 
 country. Their affections therefore were gradually alie- 
 nated from their immediate fuperior; 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 wreft thofe 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 con- 
 ic fluently the lineal heir, and as he had incurred great 
 odium in a war with that prince, whom he defeated, and 
 u as afterwards believed to have murdered; Philip Auguitus 
 at that time king of France, feized the opportunity of in- 
 
 5 terfering
 
 Chap. I. PROGRESS OF FEUDAL SYSTEM, 8cc. 283 
 terfering in a difpute, which afforded fo fair a profpect of 
 acquiring popularity, as well as of promoting his intereft. 
 Having called a national council, he procured a declaration, 
 that the king of England, by his behaviour, had forfeited 
 Normandy, and the other territories which he held in 
 France; and in the greater part of thofe territories, this 
 decree, from the concurrence of the inhabitants, co-opera- 
 ting with the power of the French crown, was eafily car- 
 ried into execution. 
 
 This difafter was followed by a conteft with the Roman 
 pontiff, concerning the right of electing the archbifhop of 
 Canterbury; in which John was, if poffible, frill more un- 
 iuccefsful. In order to remove the papal excommunication 
 which had been inflicted upon him, he was laid under the 
 neceflity, not only of abandoning the points in difpute, but 
 of furrendering his kingdom to the pope, and fubmitting 
 to hold it as a feudatory of the church of Rome. 
 
 The contempt which this abject fubmiflion of their 
 fovereign could not fail to excite in the breaft of his fub- 
 jects, together with the indignation raifed by various acts 
 of tyranny and oppreflion of which he was guilty, pro- 
 duced at length a combination of his barons, who demand- 
 ed a redrefs of grievances, and the reftoration of their an- 
 cient laws. As this appeared the moil favourable conjunc- 
 ture which had occurred, fmce the Norman conquer!:, for 
 limiting the encroachments of prerogative; the nobility and 
 principal gentry were defirous of improving it to the ut- 
 moft; and their meafures were planned and conducted with 
 equal moderation and firmnefs. The king attempted, by 
 every artifice in his power, to fruitrate their dcfigns. He 
 endeavoured by menaces to intimidate them; and, by dc- 
 lufive promiies, to lull them afleep, in order to gain time 
 
 O o 2 for
 
 284 THE NORMANCONQUEST; Book I?, 
 for breaking their confederacy. When all other expedients 
 proved ineffectual, he made application to the pope as his 
 liege-lord ; and called upon his holinefs to protect the 
 rights of his vaffal. The barons were neither to be deluded 
 nor terrified from the profecution of their purpofe. Find- 
 ing that their petitions were disregarded, they rofe up in 
 arms, and proceeded to actual hoitilities. The number 
 of their adherents was daily increafed ; and the king, 
 who retired before them, was deferted by almoft all his 
 followers ; till at laft there were only feven lords who 
 remained in his retinue. All further oppofition, therefore, 
 became impracticable. At Runnemede, 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 agreement 
 upon which they infilled; and the king gave an explicit 
 confent to their demands*. The articles were then re- 
 dcued into the form of a charter ; to which the king 
 
 -" Hail Runny mead ! 
 
 K Illuftrious field ! like Marathon renowned ! 
 
 " Or Salamis, where freedom on the hofts 
 
 " Of Perfta, from her radiant fword {hook fear 
 
 " And dire difcomfiture ! Even now I tread 
 
 " Where Albion's ancient barons won the pledge 
 
 u Of independence.— — — — — — 
 
 " O gallant chiefs ! whether ye ride the winds, 
 
 " Bound on fome high commifTion to confound 
 
 " The pride of guilty kings j or, to alarm 
 
 u Their coward fpirits, through the realms of night 
 
 u Hurl the tremendous comet, or in bowers 
 
 " Of blooming paradife enjoy repofe ; 
 
 " I ween the memory of your patriot-zeal 
 
 " Exalts your glory, and fublimes your joys.'* Richardson.' 
 
 affixed
 
 Chap. I. PROGRESS OF FEUDAL SYSTEM, fee. 285 
 affixed his great feal ; and which, though it was of the 
 fame nature with the charters obtained from the preced- 
 ing 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 diftinc- 
 tion, the great charter of our liberties. 
 
 As the feudal fuperiority of the crown, over the nobles, 
 together with the various cafual emoluments, or incidents, 
 arifing from that fuperiority, had now been eftablifhed, 
 with little or no interruption, ever iince the reign of 
 William the Conqueror; it would probably have been a 
 vain project 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 opprei- 
 fing them by the undue exercife of thofe powers, the effects 
 of their feudal fubordination, with which he was under- 
 flood to be fully inverted. The incidents of wardfhip, 
 relief, and marriage, notwithstanding the provifions in the 
 charter of Henry the Firft, had continued the fubjec~t. of 
 much controverfy ; for the removal of which, the nature 
 and extent of thofe feudal perquifites were more parti- 
 cularly defined and explained. With regard to the practice 
 of levying aids zndfeutages, it was provided that the former 
 fhould not be demanded, unlefs in the three cafes efta- 
 blifhed by the feudal cuftoms, to redeem the fovereign from 
 captivity, to portion his eldeft daughter, or to make his 
 eldeft fon a knight; and that the latter fhould not be 
 impofed in any cafe without the authority of parlia- 
 ment*. 
 
 The jurifdiction exercifed by the king, as a feudal fupe- 
 
 * Blackftone's edition of king John's Magna Charta, § 2, 3, 4, 6, 12, &c. 
 
 rior.
 
 2 86 THE NORMAN CONQUEST; Book II. 
 
 rior, was another fource of oppreffion, for which a remedy- 
 was thought requifite ; and feveral regulations were intro- 
 duced, in order to facilitate the diftribution of juftice, to 
 prevent the negligence, as well as to reftrain the corruption, 
 of judges : In particular, it was declared, that no count 
 or baron mould be fined unlefs by the judgment of his peers, 
 and according to the quality of the offence *. 
 
 While the barons were thus labouring to fecure them- 
 felves againft the ufurpations of the prerogative, they could 
 not decently refufe a iimilar fecurity to their own vaflals ; 
 and it was no lefs the intereft of the king to infift upon 
 limiting the arbitrary power of the nobles, than it was 
 their intereft to infift upon limiting that of the crown. 
 The privileges inferted in this great tranfa£tion were, 
 upon this account, rendered more extenfive, and commu- 
 nicated to perfons of a lower rank, than might otherwife 
 have been expected. Thus it was provided that juftice 
 fhould not he fold, nor unreafonably delayed, to any per Jon t> 
 That no freeman fhould be imprifoned, nor his goods be 
 cliftrained, unlefs by the judgment of his peers, or by the 
 law of the land J; and that even a villain mould not, by 
 any fine, be deprived of his carts and implements of hus- 
 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 fuppole, 
 would be chiefly attentive to their own privileges ; the 
 intereft of another clafs of people, much inferior in rank, 
 was not entirely overlooked : I mean the inhabitants of the 
 
 * Blackflone's edition of king John's Magna Charta, § 21. 
 * Ibid. § 40. % Ibid. § 39. § Ibid. § 20. 
 
 trading
 
 Chap. I. PROGRESS OF FEUDAL SYSTEM, Sec. 287 
 
 trading towns. It was declared, that no aid fhould be im- 
 posed upon the city of London, unlefs with confent of the 
 national council ; and that the liberties and immunities of 
 this, and of all the other cities and boroughs of the king- 
 dom, fhould 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 moleftation. The in- 
 fertion of fuch claufes rauft be confidered as a proof that 
 the mercantile people were beginning to have fome atten- 
 tion paid to them ; while the fhortnefs of thefe articles, 
 and the vague manner in which they are conceived, afford 
 an evidence equally fatisfadfory, that this order of men had. 
 not yet rifen to great importance. 
 
 In order to diffufe the knowledge of the charter over the 
 kingdom, and to enfure the execution of it, a number of 
 originals was made, and one of thefe was lodged in every 
 county, or at leaft in every diocefe; twenty-five barons 
 were chofen, as guardians of the public liberties, and in- 
 verted with power fuitable to the difcharge of fo important 
 a trull ; and the nobles farther required, that, in the 
 mean time, the city of London fhould remain in their 
 hands, and that the Tower fhould be put in their pofTef- 
 fion. The king confented to thefe meafures ; though no- 
 thing could be farther from his intentions, than to fulfil 
 the conditions of the charter. No fooner had he obtained 
 a bull from the pope annulling that deed, and prohibiting 
 both the king and his fubjects from paying any regard to 
 it, than, having fecretly procured a powerful fupply of 
 
 * Blackftone's edition of king John's Magna Charta, § 1 3. 
 
 foreign
 
 2 88 THE NORMAN CONQUEST; Book IK 
 
 foreign troops, he took the field, and began without mercy 
 to kill and deftroy, and to carry devaitation throughout the 
 eitates of all thofe who had any ihare in the confederacy. 
 The barons, truiting to the promifes of the king, had rafhly 
 diibanded their followers ; and being in no condition to 
 oppofe the royal army, were driven to the defperate mea- 
 fure of applying to Lewis, the ion 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 adminiflration of the earl of Pem- 
 broke, the regent, the young king, in the firfl year of his 
 reign, granted a new charter of liberties ; at the fame time 
 that the confederated barons were promifed a perpetual 
 oblivion for the paft, in cafe they mould 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 Englifh inhabitants of that ifland; who, it was 
 juitly thought, had an equal right to all the privileges en- 
 joyed by their fellow-fubjecls in Britain. 
 
 The following year, when peace was concluded with 
 Lewi^, and the public tranquillity was reftored, this char- 
 ter 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 fubjeel of a feparate inftrument, called the Char- 
 ter of the Fore/I. The two deeds, into which the original 
 
 at charter came thus to be divided, were again renewed, 
 8 v> ith
 
 Chap. I. PROGRESS OF FEUDAL SYSTEM, 8cc. 289 
 with fome variations, and confirmed, in the ninth year of 
 Henry Third, when the king was, by a papal bull, declared 
 of age, and began to hold the reins of government. 
 
 The charter of the foreft, how infignificant foever 
 the fubjedl of it may be thought in the pfefent age, was 
 then accounted a matter of the higheft importance. The 
 Gothic nations, who fettled in the Roman empire, were, 
 all of them, immoderately addicted to the diverfion of 
 hunting ; inibmuch that this may be regarded as a pecu- 
 liarity in their manners, by which they are diftinguilhed 
 from every other people ancient or modern*. It arofe, 
 in all probability, from their having acquired very exten- 
 iive landed eflates, a great part of which they were not 
 able to cultivate ; and from their continuing, for many 
 centuries, in that rude and military ftate, which difpofed 
 them to bodily exercife ; while it produced fuch a contempt 
 of induftry, and profound ignorance of the arts, as were 
 the fources of much leifure and idlenefs. The free people, 
 or gentry, commonly allotted to hunting the moft part of 
 the time in which they were not engaged in war ; and the 
 vaffals of every chieftain, or feudal fuperior, were ufually 
 his companions in the former occupation as well as in the 
 latter. Every independent proprietor, however, endeavour- 
 ed to maintain the exclufive privilege of killing game upon 
 his own grounds ; and, having fet apart, for the purpofe of 
 this amufement, a large portion of uncultivated land, under 
 the name of a for 'eft ! , he denounced fevere penalties againft 
 his vaffals, as well as againft every other \ e ion, who 
 mould hunt upon it without his content. The fbvsreign, 
 
 * Muratori, Antiq. Med. Jliv. torn. ii. cliff. 23. — The Romans generally employed 
 their flaves in hunting. Ibid. 
 
 P p in
 
 200 THE NORM AX CONQUEST; Book II. 
 
 in each kingdom, enjoyed the lame privilege, in this refpedk, 
 with the other allodial proprietors ; though it appears to 
 have heen originally confined within the limits of his own 
 demefnes. The completion of the feudal fyflem, however, 
 by reducing the great lords to he the vaflals of the crown, 
 I the fovereign the ultimate proprietor of all the 
 lands in the kingdom; and the privilege of hunting, being 
 confidered as a branch of the royal prerogative, was 
 not underftood, without a fpecial grant in their charter, to 
 be communicated to his vafTals. Upon the fame principle 
 that the king was alone entitled to kill game within his 
 dominions, he afiumed the exclufive privilege of erecting 
 lands into a foreft ; by which they were appropriated to the 
 diveriion of hunting : at the fame time, for preferving the 
 game in the royal forefts, a peculiar fet of regulations came 
 to be eftabliihed ; and particular officers and courts of 
 juitice were appointed, for executing fuch regulations, and 
 for trying offences committed againft them. 
 
 The diverfion of hunting became flill more fafhionable, 
 and was carried to a greater height in England, than in 
 the countries upon the continent of Europe. The infular 
 lituation of Britain enabled the inhabitants in a great mea- 
 fure to extirpate the fiercer and more hurtful fpecies of 
 wild animals ; ib as to leave no other but thole which, 
 placing their whole fafety in flight, directed the attention 
 of the people to the pleafure merely of the chafe. Hunt- 
 
 , therefore, in Britain, came to conlilt in a long and 
 intricate purfuit, admitting the difplay of much art and 
 Ikill ; while, upon the continent, it was often a fort of com- 
 bat with wild animals, requiring only a momentary exer- 
 tion of ftrength and courage, or at molt, of military 
 de • . As the inhabitants of this ifland were,, befides, 
 
 tefs
 
 Chap. I. PROGRESS OF FEUDAL SYSTEM, &c. 291 
 lefs engaged in diftant wars than the other European 
 nations, they had, upon that account, more leifure to 
 employ themfelves in rural fports. It has farther been 
 alledged, that Britain was anciently famous for. its breed 
 of flow-hounds, a fpecics of dogs peculiarly fitted for the 
 improvement of the chafe ; but whether this ought to be 
 regarded as one caufe of the national propenfity to this 
 diverfion, or rather as the effect of it, there may be fome 
 reafon to doubt. It is more probable that the Enelifh 
 were led early to cultivate the breed of flow-hound?, be- 
 caufe they were much addicted to that mode of hunting 
 which required thofe animals, than that this kind of dogs, 
 from fomething unaccountable in the nature of our foil 
 and climate, were the original and peculiar growth of our 
 country-. 
 
 We may remark, by the way, that the Englifli manner 
 of hunting, and their fondnefs for that fport, has been the 
 caufe of another peculiarity, their paffion for horfe-racing. 
 When hunting came to confift entirely in a purfuit, there 
 was a necefhty that the company mould, for the moil part, 
 be on horfeback; and when different fportfmen were 
 engaged in the fame chafe, they had frequently occafion 
 to vie with one another in the fwiftnefs of their horfes; 
 which naturally produced a more formal trial, by running 
 in a itated courfe ; while the improvement of this latter 
 diverfion excited the people to cultivate that breed of race- 
 horfes which is now reckoned peculiar to the country. 
 
 * That England was anciently famous for its breed of flow-hounds, appears from 
 F'trabo, c. 4. The French, under the kings of the Merovingian race, were accuf- 
 tomed to procure hunting dogs from England. Vcily's Hift. vol. i. 
 
 P P 2 During
 
 292 THE NOR .MAN CONQUEST; Book II. 
 
 During the whole period of the Anglo-Saxon govern- 
 mens the great lords, who pofTefYed allodial eftates, appear 
 to have enjoyed the privilege of hunting upon their own 
 
 ound, independent of the fovereign*. But, in conie- 
 querrce of that feudal fupcriority over the nobles, which 
 was acquired by the crown upon the acceflion of William 
 the Fir If, it became a maxim, that the killing of game was 
 a branch of the royal prerogative, and that no fubjecl had 
 anv right, either to poflefs a foreft, or even to hunt upon 
 his own eftate, unlefs by virtue of a charter from the 
 
 crown. sj 
 
 In this part of the prerogative, Williarhjhe Conqueror, 
 and his immediate fucceffor, are faid to have committed 
 great abules. As thofe princes were exceffively addicted to 
 the amufement of hunting, they laid wafte very extenfive 
 territories, in different parts of England, in order to con- 
 vert them into foreits ; having, for that purpofe, demolifhed 
 many houfes, and even villages, and expelled the inhabi- 
 tants. New and ravage penalties were inflicted upon fuch 
 as encroached upon the king's game, or committed any 
 trefpafs in his foreits ; and the laws upon this fubjecl: 
 were executed in a manner the moft rigorous and 
 oppreiBve. 
 
 It may, indeed, be fufpected that thefc abufes have 
 been fomewhat exaggerated. The extcnfion of the pre- 
 rogative, with refpect to the privilege of hunting, muff 
 
 * By a law of Canute the Great, whofe authority was more extenfive than that' 
 •f his predecefTors, the right of the nobles to protect the game upon their own 
 grounds feems to be laid under reftri tions. The words are, u v olo ut omnis liber 
 u homo, pro libito fuo, habeat venerem, five viridem, in plants fuis fuper terras 
 *' fuas, fine chacea tarnen, et devitent omnes meam, ubicunque earn habere 
 * volucro." 
 
 i have
 
 Chap. I. PROGRESS OF FEUDAL SYSTEM, 8lc. 293 
 
 have been highly offerifive to the nobles ; and could hardly 
 fail to excite loud complaints, together with fome degree 
 of mifreprefentation, againft the proceedings of the crown. 
 The erection of great forefts, even though thefe had been 
 confined within the dememes of the king, was likely of 
 itfelf to occafion much popular clamour; as in our own 
 times the change of a large eftate from tillage to pafturage, 
 by which many tenants are deprived of their livelihood, is 
 frequently the fource of much odium and refentment. 
 There is reafon, however, to believe, that thefe exertions 
 encroached, in fome cafes, upon the private property of 
 individuals, and were, therefore, no lefs unjuft than they 
 we re unpopular. 
 
 The charter of the forelt contained a variety of falutary 
 regulations, for mitigating the feverity of the laws upon 
 that fubject, for the rectification of the former abufes, and 
 for preventing the future encroachments of the fovereign. 
 In the proceedings againft thofe who trefpafTed upon a 
 forelt, a greater degree of regularity was introduced ; and 
 capital punilliments were, in all cafes, aboliihed. The in- 
 vasions of private property, by erecting a royal foreft, ex- 
 cept upon the dememes of the crown, were prohibited ; 
 and it was ordained that all the lands, belonging to parti- 
 cular perfons, which, from the reign of Henry the Second, 
 had been included within the boundaries of a forelt, mould 
 be dijaforefied) and reftored to the owner *. 
 
 The long reign of Henry the Third, from the feeble 
 character of rhat monarch, and from the injudicious, the 
 inconstant, and the arbitrary meafures which he purfued, 
 according to the different favourites by whofe counfel he 
 
 * See the Charter publifhed by BJackftone. 
 
 happened
 
 294 THE NORMAN CONQUEST; Book II. 
 happened to be governed, was filled with infurre£tions and 
 
 diforders; and in the latter part of it, the rebellion con- 
 dueled by the daring ambition and great abilities of Simon 
 Montfort, the earl of Leiceiter, had reduced the fovereign 
 to the molt defperate iituation, and threatened to deprive 
 him of his crown: when his enemies were unexpectedly 
 and completely defeated, by the intrepidity, iteadinefs, and 
 good fortune, of his fon Edward. During, the courfe of 
 thefe commotions, Henry, in order to appeafe his ba- 
 rons, granted, more than once, a renewal of the great 
 charter, and the charter of the foreft. He alfo fwore, in 
 the moft folemn manner, to preferve them inviolable ; an 
 oath to which, after he was relieved from the prefent em- 
 barrafTment, he appears to have Ihewn little regard. 
 
 We may here take notice, though it falls beyond 
 the period which we are now confidering, that another 
 folemn confirmation of thefe charters was afterwards ob- 
 tained, in the vigorous and fuccefsful reign of Edward the 
 Fir-it. 
 
 i. When we take a view of thefe great tranfactions, and 
 endeavour to eftimate the degree of attention which they 
 merit, their number, their Similarity, and the long inter- 
 vals of time at which they were procured, are circumftances 
 which cannot be overlooked. Had one charter only been 
 granted by the fovereign, on a Angular occafion, it might 
 well be fuppofed to have aiifen from a concourfe of acci- 
 dents, and from partial views. Inftead of exprefTing the 
 opinions entertained by the king and his people, concern- 
 ing the rights of either, it might, in that cafe, have been 
 the effect of a mere carnal advantage, which the one party 
 had gained over the other; and, fo far from difplaying the 
 ordinary ftate of the government at that period, it might 
 
 5 have
 
 Chap. I. PROGRESS OF FEUDAL SYSTEM, &c. 295. 
 have exhibited the triumph and injuitice of a temporary 
 ufurpation. But thofe important ftipulations, not to men- 
 tion the frequent confirmations of them in a later period, 
 were begun and repeated under the reigns of fix dif- 
 ferent monarchs, comprehending a courfe of about two 
 hundred years; they were made with princes of ex- 
 tremely different characters, and in very oppolite fili- 
 ations ; and though, by the infertion of different articles, 
 thofe deeds were gradually expanded, and accommodated 
 to the circumftances of the times, yet their main object 
 continued invariably the fame ; to limit thofe abufes of 
 prerogative, which, from the advancement of the feu- 
 dal fyltem, and from the nature of the monarchy, were 
 moffc likely to be committed. Taking thofe charters, there- 
 fore, in connexion with one another, they feem to declare, 
 in a clear and unequivocal manner, the general and per- 
 manent fenfe of the nation, with refpeel: to the rights of 
 the crown; and they afcertain, by exprefs and pofitive 
 agreement between the king and his fubjecls, thofe terms 
 of iubmiflion to the chief magiftrate, which, in moil other 
 governments, are no othervvife explained than by long 
 ulage, and which have therefore remained in a ftate of un- 
 certainty and fluctuation. 
 
 1. It feems to be a common opinion, that, by theie 
 charters, the crown was deprived of many of thofe powers 
 which had been afTumed by William the Conqueror, or by 
 has fon William Rufus, and the conftitution was brought 
 nearer to that equal balance, which it had maintained under 
 the direction of the Saxon princes. In particular, by the 
 charter of king John (for the preceding charters have been 
 in a great meafure overlooked) it has always been fup- 
 pofed that the bounds of the prerogative were greatK 
 
 limited,.
 
 296 THE NORMAN CONQUEST; Book II. 
 
 limited. But upon examination it will be found, that this 
 opinion is contrary to the real ftate of the fact. During 
 the whole period which we are now confidering; that 
 is, from the Norman conqueft to the time of Edward 
 the Firft ; while the barons were exerting themfelves, 
 with fo much vigour, and with fo much apparent fuc- 
 cefs, in reftraining the powers of the crown, thofe powers 
 were, notwithstanding, continually advancing; and the 
 repeated conceffions, made by the fovereign, had no far- 
 ther effect than to prevent his authority from encreafing 
 fo rapidly as it might otherwife have done. For a proof 
 of this we can appeal to no better authority than that 
 of the charters themfelves; from which, if examined 
 according to their dates, it will appear, that the nobility 
 were daily becoming more moderate in their claims ; and 
 that they fubmitted, in reality, to a gradual extenfion of 
 the prerogative; though, by more numerous regulations, 
 they endeavoured to avoid the wanton abufes of it. Thus, 
 by the great charter of Henry the Third, the powers of 
 the crown are lefs limited than by the charter of kinp 
 John ; and by this laft the crown-vaf7als abandoned fome 
 important privileges with which they were inverted by 
 the charter of Henry the Firft. 
 
 In the charter of Henry the Firft, the h t ofward- 
 
 />, the fevereft and moil opprefiivc of all the feudal inci- 
 dents, is relinquished by the fovereign; and the heirs of a 
 flal being thus allowed to continue the pofTeffion of the 
 fief, during their minority, that is, at a period when they 
 could not perform the feudal fervice, were in a great mca- 
 fure reftored to that allodial property which, before the 
 Norm nqueft, their predccefTors had enjoyed. But, 
 
 inth< ting John, the incident of wardfhip had 
 
 taken
 
 Chap. I. PROGRESS OF FEUDAL SYSTEM, Sec. 297 
 taken fuch root, that the crown vaffals no longer thought 
 of difputing the continuance of it ; but were fatisfied with 
 
 procuring fome regulations to prevent abufes in making it 
 effectual. From this period, therefore, the nobles muft be 
 understood to acknowledge that they had no other claim to 
 the enjoyment of their eftates than as a coniideration for 
 the performance of military fervice. 
 
 According to the charter of Henry the Firft, the inci- 
 dent of marriage extended no farther than to prevent the 
 crown vailals from marrying any woman, with whofe fami- 
 ly the fuperior was at variance; a reftri&ion which was 
 not likely to be very opprefTive, and which was in fome 
 degree neceffary for maintaining the public tranquillity. 
 But in the time of king John this incident had been fo 
 much enlarged, as to imply a right in the fuperior to pro- 
 hibit his vaffals from marrying without his confent, and 
 even to require that they fhould marry any woman whom 
 he prefented to them. In the charter of that prince, there- 
 fore, it is provided that the heirs of a vaffal ihall be mar- 
 ried without difparagement, that is, they mall not be requir- 
 ed to contract unfuitable alliances ; and, to fecure them 
 from impofition or undue influence, in a matter of this 
 kind, it is farther ftipulated, that before they contract 
 any marriage their neareft relations fhall be informed 
 of it. 
 
 The charter of king John may, on the other hand, be 
 compared with that of Henry the Third, in relation to aids 
 and feu tages, a fort of indirect taxes, from which a confi- 
 derable part of the crown-revenue was derived. By the 
 charter of John, the excluiive power of impofing thofe du- 
 ties is committed to parliament; but that of Henry the 
 Third is entirely filent upon this point; and leaves the 
 
 Q q monarch
 
 098 THE NORMAN CONQUEST; Book II- 
 
 monarch under no reflraint in impofing fuch burdens by- 
 virtue of his own prerogative. It is true, that the former 
 limitation upon this part of the prerogative was afterwards 
 renewed in the reign of Edward the Fifft *. 
 
 What I have obferved, concerning the variations in the 
 feries of great charters, does not feem applicable to the laws 
 of the foreft. The violations of private property, commit- 
 ted in this refpect by William the Firfl, and his fuccefTors, 
 were too notorious to be ferioufly defended ; and therefore, 
 notwithstanding the general progrefs of monarchy, it was 
 thought necefTary to remove thefe abufes, and to guard 
 againft them for the future. 
 
 3. Whoever enquires into the circumflances in w T hich 
 thefe great charters were procured, and into the general 
 flate of the country at that time, will eafily fee that the 
 parties concerned in them were not actuated by the moft 
 liberal principles ; and that it was not fo much their inten- 
 tion to fecure the liberties of the people at large, as to efta- 
 blifh the privileges of a few individuals. A great tyrant 
 on the one fide, and a fet of petty tyrants on the other, 
 feem to have divided the kingdom ; and the great body of 
 the people, difregarded and opprefTed on all hands, were 
 beholden for any privileges bellowed upon them, to the 
 jealoufy of their mailers ; who, by limiting the authority 
 of each other over their dependants, produced a reciprocal 
 diminution of their power. But though the freedom of 
 the common people was not intended in thofe charters, it 
 was eventually fecured to them ; for when the peafantry, 
 and other perfons of low rank, were afterwards enabled, 
 by their induftry, and by the progrefs of arts, to emerge 
 
 • 34 Ldw. I. fiat. 4.. cap. i. — Alfo 25 Edw. I. 2, 5, 6. 
 
 from
 
 Chap. I. PROGRESS OF FEUDAL SYSTEM, Sec. 299 
 from their inferior and fervile condition, and to acquire 
 opulence, they were gradually admitted to the exercife ot 
 the fame privileges which had been claimed by men or 
 independent fortunes; and found themfelves entitled, of 
 courfe, to the benefit of that free government which was 
 already eltablilhed. The limitations of arbitrary power, 
 which had been calculated chiefly to promote the intereft 
 of the nobles, were thus, by a change of circumitances, 
 rendered equally advantageous to the whole community as 
 if they had originally proceeded from the molt exalted 
 fpirit of patriotifm. 
 
 When the commons, in a later period, were difpofed to 
 make farther exertions, for fecuring their natural rights, 
 and for extending the bleflings of civil liberty, they found 
 it a lingular advantage to have an ancient written record, 
 which had received the fanction of part, ages, and to which 
 they could appeal for afcertaining the boundaries of the 
 prerogative. This gave weight and authority to their 
 meafures ; afforded a clue to direct them in the mazes of 
 political fpeculation ; and encouraged them to proceed with 
 boldnefs in completing a plan, the utility of which had 
 already been put to the telt of experience. The regulations, 
 indeed, of this old canon, agreeable to the fimplicity of 
 the times, were often too vague and general to anfwer 
 the purpoles of regular government ; but, as their aim 
 and tendency were fufficiently apparent, it was not diffi- 
 cult, by a proper commentary, to bellow upon them fuch 
 expansion and accommodation as might render them appli- 
 cable to the circumitances of an opulent and polilhed 
 nation. 
 
 Q q 2 CHAP.
 
 3oo CHANGES IN WILLIAM'S REIGN, Book II. 
 
 CHAP. II. 
 
 In what Manner the Changes produced in the Reign of Wil- 
 liam the Conqueror affeBed the State of the national 
 Council. 
 
 TH E changes in the flate of landed property, arifing 
 from the completion of the feudal fyftem, in the 
 reign of William the Firit, were necefParily attended with 
 correfpondent alterations in the conftitution and powers of 
 the national council. The Saxon Wittenagemote was com- 
 pofed of the allodial proprietors of land ; the only fet of 
 men pofTened of that independence which could create a 
 right of interfering in the adminiftration of public affairs. 
 The number of thefe, having been originally very great, 
 was gradually diminifhed, according as individuals were 
 induced, from prudential confederations, to refign their 
 allodial property, and to hold their eftates of fome feu- 
 dal iuperior. But in the reign of William the Conqueror, 
 when the moll: powerful of the nobility, thofe who alone 
 had hitherto retained their allodial property, became at lait 
 the immediate valfals of the crown, the ancient Wittenage- 
 mote was of courfe annihilated; iince there no longer ex- 
 ifted any perfon of the rank and character which had been 
 deemed efTential to the members of that afTembly. 
 
 As, during the government of the Anglo-Saxon princes, 
 everj feudal fuperior had a court, compoied of his vaiTals, 
 by^whofe afliitance he decided the law-fuits and regulated 
 the police of his barony; fo the king, confidered in the 
 
 fame
 
 Chap. II. THEIR EFFECTS UPON PARLIAMENT. 301 
 fame capacity, had likewiie a private baron-court, con- 
 ftituted in the fame manner, and invefted with fimilar 
 powers. In that period, however, the former of thefe 
 courts, being held by allodial proprietors, acknowledging 
 no farther fubjection to the king than as chief magistrate 
 of the community, were totally independent of the latter. 
 But in the reign of William the Conqueror, when the 
 whole of the nobility became valvals of the crown, thcv 
 were incorporated in the king's baron-court, and the jurii- 
 diction which they exercifed in their own demefne was 
 rendered fubordinate to that of the king as their para- 
 mount fuperior. The feveral districts, which had formerly 
 been divided into lb many independent lordfhips, were 
 now united in one great barony, under the {Sovereign ; and 
 his baron-court afTumed, of confequence, a jurifdidtion and 
 authority over the whole kingdom. Thus, upon the extinc- 
 tion of the Wittenagemote, there came to be fubitituted, 
 in place of it, another court or meeting, fimilar to the 
 former, and calculated for the fame purpofes, though con- 
 stituted in a manner fomewhat different. To this meeting, 
 as the Norman or French language was now fafhionable 
 in England, and even employed in public deeds and le- 
 gal proceedings, the name of parliament was given ; as 
 the meeting itfelf correfponded, not only to the aflembly 
 known by the fame appellation in France, but to the na- 
 tional council of all thofe European countries in which the 
 feudal fyftem had attained the fame degree of advance- 
 ment *. 
 
 * It has been alledged, that the name of parliament was befrowcd upon the Englifh. 
 national council even in the reign of Edward the Confeflbr, at which time the French 
 language begpn to be fafhionable in England. Difcourfe on the Englifh government, 
 publifhed by Nathaniel Bacon. 
 
 The
 
 3 o2 CHANGES IN WILLIAM'S REIGN, Book IL 
 
 The Englifh parliament, though its members appeared 
 under a different description, comprehended in reality the 
 fame clafs of people who had been members of the ancient 
 Wittenagemote. It was compoled of all the immediate 
 vaffals of the crown ; including the dignified clergy, and 
 the nobility, whether of Englifli or of French extraction. 
 The wealth of thefe perfons, from the fucceflive accumu- 
 lations of property before, and in the reign of William the 
 Conqueror, muff have been prodigious. From the furvey 
 in doomfday-book it appears, that, about the end of Wil- 
 liam's reign, the immediate vaffals of the crown were in 
 all about fix hundred : fo inconfiderable was the number of 
 baronies, whether in the hands of laymen or ecclefiaftics, 
 into which the whole territory of England, exclufive of 
 Wales, and the three Northern counties, and exclufive of 
 the royal demefnes, had been diflributed * . 
 
 Not with - 
 
 * The feparate baronies in the different counties, including the lands in the crown 
 oemefne, amount in all to 1462. But as the fame perfons were often poffeffed of 
 eftates in many different counties, it is a matter of fome labour to diftinguifh the 
 exact number of feparate proprietors. For example, the king himfelf held lands in 
 every county except Shropfhire. — Comes Moritonienfis poffeffed baronies in 20 coun- 
 ties.. — Comes Euftachius, in 11. — Comes Rogerius, in 13. — Willelmus de Wa- 
 renna, in 12. — Ldvvardus Sarifberienfis, in 9. — Willelmus filius Anfculfi, in 11. — 
 Hunfridus Camerarius, in 9. — Comes Alanus, in 11. — Comes Hugo, in 21. — Er- 
 nulfus de Hefding, in 10. — Radulphus de Mortemer, in 13. — Epifcopus Cantua- 
 renfis, in 8. — Epifcopus Baiocenfis, in 17. — Epifcopus Wentonienfis, in 11. — Abbatea 
 Weftmonafterii, in 14. — Epifcopus Lincolcenfis, in 9. 
 
 After a pretty accurate fcrutiny, it is believed the feparate crown-vaffals, recorded 
 
 in doomfday-book, are not above 605, though they may poffibly be one or two 
 
 below that number. Of thefe, the ecclefiaffical vaflals, including the different forts of 
 
 r gioiw foeieties, amount to about 140. It is to be obferved, however, that fome of 
 
 to have belonged to Normandy, though they pofleffed lands in Eng- 
 
 It
 
 Chap. II. THEIR EFFECTS UPON PARLIAMENT. 303 
 
 Notwithstanding the vafTalage into which the barons 
 had been reduced, their influence was but little impaired ; 
 and, though changed in outward appearance, they conti- 
 nued to maintain that authority which great landed eftates 
 will always procure. By the nature of their tenures, their 
 property was not rendered more precarious than formerly ; 
 but merely fubjected to certain burdens or exactions in fa- 
 vour of the king. As vafTals of the crown, their depen- 
 dence upon it was even flighter than that of the inferior 
 hereditary vafTals upon their immediate fuperior; and from 
 their number, their diftance, and their vaft opulence, the 
 king was lefs able to retain them in fiibjection. Standing 
 frequently in need of their fupport and affiftance, he found 
 it highly expedient to avoid their difpleafure, to confult 
 them in matters of a public nature, and to proceed with 
 their approbation. In their new capacity, therefore, they 
 ftill aflumed the privilege of controuling the abufes of ad- 
 miniftration ; and in directing the great machine of go- 
 vernment, their power was little inferior to that which had 
 formerly been poflefled by the Wittenagemote *. 
 
 The 
 
 It is evident that the power and influence of the crown-vafTals, in the reign of 
 William the Conqueror, muft have been great in proportion to the fmallnefs of their 
 number, and the vaft extent of their property. 
 
 * That parliaments were frequently held by William the Conqueror, and by his 
 fon William Rufus, as well as by the fucceeding monarchs, is indifputable. In the 
 fourth year of William the Conqueror, the laws of Edward the Confeflbr were con- 
 firmed by a great national council. [R. Hoveden. Annal. Alfo Selden, Spicilegium in 
 Eadmerum.j It is doubtful whether this was the fame parliament which confirmed 
 the collection of Edward the Confdibr's laws, preferved by Ingulphus, the abbot of 
 Croyland, and fecretary to William the Firft. Selden, ibid. — Another parliament was 
 held in 1070, for terminating a difpute between the archbifhop of York and the bimop 
 of Worceftcr. — Coram regc ct dorobunits archie pifcop. Lanjranco, ct epifcopis abbatibuSy 
 9 comitibuSy
 
 304 C FIANCES IN WILLIAM'S REIGN, Book II. 
 The power of declaring peace and war was from this 
 time, indeed, regarded as a branch of the royal prerogative. 
 It was a principle inseparably connected with the feudal 
 polity, that the vaflals of the king, as well as thofe of every 
 fubordinate baron, mould be liable for military fervice to 
 their liege lord, and ihould be ready to attend him in the 
 field whenever he chofe to call upon them. To determine 
 the particular quarrels in which he mould engage, and the 
 military enterprizes which he mould undertake, was his 
 province, not theirs ; and, provided their attendance was 
 not more burdenfome than their duty required, it was un- 
 derftood to be a matter of indifference to them, againft 
 what enemy they fhould happen to be employed. The 
 dilcretionary power, which came thus to be afTumed by the 
 king, as the great feudal fuperior of the kingdom, was, at 
 the fame time, Supported by the confideration of its expe- 
 diency. During the numerous invafions cuitomary in the 
 feudal times, it was necelTary, upon any fudden emergency, 
 that the leader of a barony fhould take his meafures upon 
 the fpot ; and that, without confulting his vafTals, he fhould 
 
 comitibu^ ct primatibus, tctius Anglia, Dr. Brady's T rafts. — Another parliament is 
 mentioned in 1084, for changing the canons cf Durham into Monks — Prafentibus 
 
 ncis. Ibid. — See alio, in the fame author, the inftances 
 o;' national councils convened by William Rufus. 
 
 The : . itory of England not having been united as the feudal barony of the 
 
 king, till near the end of the Conqueror's reign, his parliament or baron-court could 
 ■ ce this period, be properly inveflxd with an authority over the whole king- 
 It is probable, however, that this circumftance was overlooked; and that, as 
 :uat pit of the nobility, foon after the eonqueft, were become vafTals of the 
 crown, they were called, in that capacity, to the national council ; while others, who 
 Hill retained their allodial property, might be willing perhaps, without regarding the 
 ir htuation, to join in the deliberations of that afTcmbly. 
 
 proceed
 
 Chap. II. THEIR EFFECTS UPON PARLIAMENT. 305 
 proceed to repel the enemy by force of arms. To call a 
 council, in fuch a cafe, would be to lofe the critical mo- 
 ment ; to wafte, in deliberation, the proper feafon for ac- 
 tion ; and, for the fake of a punctilio, to involve the whole 
 community in utter deitruction. 
 
 This may be accounted the chief difference between the 
 Anglo-Saxon and the Anglo-Norman government, In the 
 former, the power of making peace and war was invariably 
 porTefTed by the Wittenagemote, and was regarded as in- 
 feparable 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 commotions pre- 
 valent in that rude period, has remained in after ages, 
 when, from a total change of manners, the circumitances, 
 by which it was recommended, have no longer any ex- 
 iflence. 
 
 The legiflative power was viewed in a different light. 
 New regulations generally took their origin from a com- 
 plaint of grievances, made to the fovereign, the great exe- 
 cutor of the law, and accompanied with a requeft, that, in 
 the future adminiflration of government, they might be 
 redreffed. The privilege of preferring fuch petitions, or 
 at leaft that of demanding a pofitive anfwer to them from 
 the fovereign, was anciently appropriated to the Wittenage- 
 mote ; and, upon the diffolution o*~ that afTembly, was de- 
 volved upon the Anglo-Norman parliament. In every 
 fubordinate barony into which the kingdom was divided, 
 the vaffals exercifed a fimilar privilege with refpect to the 
 conduct of their own fuperior. A public ftatute was, ac- 
 cording to this practice, a fort of paction or agreement 
 between the king and his vafTals , by which, at their defire, 
 
 Rr he
 
 30$ CHANGES IN WILLIAM'S REIGN, Book H 
 he promifed to obferve a certain rule of conduct; and in 
 which, therefore, the content of both was clearly implied. 
 No inch rule was ever thought of without the previous 
 
 ueft of parliament, nor was it ever effectual to bind the 
 parties, unlefs the fovereign acceded to the propofal. 
 
 The fupreme diftribution of juitice was like wife a mat- 
 ter of fuch confequence as to require the interposition 
 of the crown-vaffals ; and therefore constituted another 
 privilege of the Anglo-Norman parliament. How this 
 branch of bufmefs came, in ordinary cafes, to be devolved 
 upon an inferior court, with refervation of an ultimate 
 controuling power in the parliament, will be the fubject. 
 of a feparate enquiry. 
 
 Taxation is properly a branch of the legiflative power ; 
 fince every rule that is made, with refpect to the payment 
 of taxes, is a law which directs and limits the future admi- 
 niflration of government. This branch of legiflation is in 
 itfelf of greater importance, and it is more likely to be 
 abufed, than any other ; becaufe every member in the com- 
 munity has an intereft to avoid all public burdens, and to 
 roll them over upon his neighbours ; while the chief exe- 
 cutive officer, or whoever has the management and difpo- 
 fal of the revenue, is interefted to fqueeze as much as he 
 can from the people. We may eafily fuppofe, therefore, 
 that as the valvals of the crown, after the Norman conqueff* 
 afTumed the ordinary exercifeof the legiflative power, they 
 would not be difpofed to relinquiih that peculiar branch of 
 it, which confided in the impofition of taxes ; and there is, 
 accordingly, no reafon to doubt, that, as far as it could exift 
 in that period, the power of taxation was immediately 
 transferred, from the Wittenagemote of the Saxons to the 
 Anglo-Norman parliament. 
 
 But
 
 fin \ p. II. THEIR EFFECTS UPON PARLIAMENT. 507 
 
 But in that age, there was little occafion for exercifing 
 
 this power; few taxes being then, directly at leaft and 
 avowedly, impofed upon the nation. The chief fupport 
 of the crown was derived from a revenue independent of 
 the people ; and when additional fuppHes became requiiite, 
 thev were obtained, either by means of a private bargain, 
 for a valuable confideration ; or under the maik. of a gift 
 or voluntary contribution. 
 
 At a period when mercenary armies were unknown, 
 and when the administration of juitice, initead of being 
 a burden upon the crown, was the lburce of emolument, 
 the royal dememes, which, after the acceflion of William 
 the Firil, became prodigioufly exteniive, together with the 
 profits of amerciaments and fines, and the common feudal 
 rents and incidents arifing from the eftates of crown-vaf- 
 fals, were fully iufficient to maintain the dignity of the 
 fovereign, and to defray the ordinary expence of govern- 
 ment. This ancient revenue, however, was gradually im- 
 proved, according to the increaling charges of government, 
 by the addition of /cut ages, hydages, and t a Hi ages. 
 
 The firft were pecuniary compofitions paid by th 
 crown-vafTals, in place of their military fervice ; and, being 
 fettled, in each cafe, by a Stipulation between the parties, 
 had no relemblance to what is properly called a tax. It 
 was always in the power of the vafial to infill upon fuch 
 terms, with refpedt to this compofition, as he judged expe- 
 - dicnt, or to avoid the payment of it altogether, by perform- 
 ing the fervice for which he was originally bound. The 
 fum paid was a voluntary commutation ; and therefore it 
 muft be understood that he who paid it thought himfelf 
 
 v gainer by the bargain. 
 
 R r 2 Hydages
 
 ^o8 CHANGES IN WILLIAM'S REIGN, Book II. 
 
 Hydages were due by the foccagc-vafTals of the crown ; 
 who, befule their conltant yearly rent to their fuperior, 
 were bound to fupply him with carriages, and to perform 
 various kinds of work. As thefe were, by their nature, 
 lomewhat indefinite, they came to be frequently exacted by 
 the crown-officers in an oppreflive manner; and, when the 
 vaflal rofe to a degree of wealth and independence, he was 
 willing to exchange them for a pecuniary 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 manner, by the inhabitants 
 of towns in the king's demefne. As the king protected 
 his boroughs, and beltowed upon them various privileges^, 
 with refpect to their manufactures, fo he levied from them 
 fuch tolls and duties as they were able to bear. According 
 as thofe communities became opulent and flourifhing, 
 their duties were multiplied, and rendered more trouble- 
 fome and vexatious ; from which it was at length found 
 convenient that they mould be converted into a regular 
 pecuniary afTefTment*. 
 
 The trade of the country, however inconfiderable, be- 
 came alfo the means of procuring fome revenue to the 
 fovercign. Perfons engaged in this employment, ftand- 
 m need of the protection of government, and being 
 alio frequently deftitute of conveniences for transporting 
 and vending their goods, were not only protected, but even 
 
 * The name of tp.lliage is frequently extended to every pecuniary contribution levied 
 by the fuperior from his Yaftals. 
 
 fometimes
 
 Chap. II. THEIR EFFECTS UPON PARLIAMENT. 309 
 fome Limes provided with warehoufes, and with meafures 
 an I weights, by the king; who, in return, demanded from 
 them, either a part of their commodity, or fome other 
 payment fuited to the nature of the benefit which they 
 had received. A fimilar payment was demanded by the 
 king upon the pafTage of goods from one port of the 
 kingdom to another. To the duties which came thus 
 to be eftablilhed by long ufage, was given the appella- 
 tion of cujioms. 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 mutual 
 agreement. 
 
 When all thefe branches of revenue proved infufficient, 
 the king, upon any extraordinary exigence, applied for an 
 aid 9 or general contribution, from his vafTals. We find 
 that aids are enumerated among the feudal incidents ; but, 
 exclusive of the three cafes formerly mentioned, what- 
 ever was contributed 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 benevo- 
 lence. 
 
 Though none of thofe duties, which were levied by the 
 exprefs or implied confent of parties, could with propriety 
 be conlidered as taxes, they became in reality the fource of' 
 much oppreflion and injuitice. It was dangerous to refufe 
 the fovereign, even when he demanded a thing to which 
 he had no right. It was difficult to make an equal bargain 
 with a pcrfon fo greatly fuperior in power and influence. 
 By adhering ftrictly to their privileges, and by incu 
 the refentment of the king, the people fubjected to tin 
 impofitions might be utterly ruined ; and were, on eve 
 
 occafion,
 
 3io CHANGES IN WILLIAM'S REIGN, Book II. 
 
 occafion, likely to lofe much more than the value of what 
 
 . demanded from them. When the abufes, however, 
 of v. Inch the crown was guilty in relation to thefe exac- 
 tions, had rifen to a certain height, they "became the rub- 
 ied* >neral complaint, and attracted the notice of the 
 
 Mature. Scutages, payahle by the military vaflals of 
 clu- crown, came to be fixed by parliament, of which thole 
 vaflals were members. After the lbccage tenants and the 
 bnrgefles had acquired a degree of opulence, the fame rule- 
 was extended to the hydages, and talliages, levied from 
 thole two orders of men. The aids, demanded promif- 
 cuoufly from all the different forts of crown vaflals, came 
 to be regulated by the fame authority*. The cuftoms, 
 originally of little importance, were, by the gradual exten- 
 fion of trade, and the increaimg demands of the crown, 
 brought likewife into public view, and acquired fuch mag- 
 nitude as to occafion the interpofition of parliament. By a 
 ftatute in the reign of Edward the Fir 11, it is provided 
 that thole duties fhall not be levied without the u common 
 " arlent of the realm t." 
 
 With reipeel: to the manner of convening the national 
 council, it was not immediately varied by the Norman con- 
 queft. The parliament, from the acceflion of William the 
 Firft, was held, like the Wittenagemotein the Saxon times, 
 either according to ancient ufage, at the three ftated fefti- 
 v:ils of Chriitmas, Eafter, and Whitfuntide, or, upon par- 
 
 * With regard to aids, and fcutages, this provifion is made in the charter of king 
 I'hn, § 12. The ftatutes 25 Edward I. c. 5, 6. and 34 Edw. I. contain the fame 
 regulation with refpedt to aids and talliagos. 
 
 t 25 Edw. I. c. 7. 
 
 * ticular
 
 Chap. II. THEIR EFFECTS UPON PARLIAMENT. 311 
 ticular exigencies, by virtue of a fummons from the king. 
 By degrees, however, the occafional meetings extended the 
 fubjedts of their deliberation ; while, on the other hand, 
 the regular cuftormry aiTemblies were 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 convtilfions 
 in the reign of king John, were entirely difcontinued. 
 The power of calling parliaments, and confequently of 
 putting a negative upon its meetings, was thus in all cafes 
 devolved upon the fovereign *. 
 
 From thefe particulars, it is evident, that the Englifh 
 monarchs, after the Norman conqueft, were far from pof- 
 fefling an abfolute authority ; and that the conftitution, 
 notwithstanding the recent exaltation of the crown, ftill re- 
 tained a considerable proportion of the preceding arifto- 
 cracy. As the national council, compofed of the nobility 
 or great proprietors of land, was inverted with the legiila- 
 tive power, including that of impofmg taxes, and with the 
 power of distributing juitice in the laft relbrt, it enjoyed, 
 of courle, the right of controuling and directing the fove- 
 reign in the mofl important parts of adminiftration. 
 
 From the ftate of the revenue, indeed, in that period, 
 the executive power was under lefs reftraint from the legif- 
 lature 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 queftioned about the difpofal of his 
 income. The people, who gave nothing to the public ma- 
 gistrate for defraying the expence of government, had but: 
 
 ♦Gurdon's Hiftory of Parliament. 
 
 little
 
 3T2 CHANGES IN WILLIAM'S REIGN, Book II. 
 
 little incitement or pretence, either to find fault with his 
 ceconomy, or to require a Uriel account of his manage- 
 ment. ! I _- managed the revenue of the kingdom, as other 
 individuals were accuStomed to manage their own eStates ; 
 and the idea of a public officer, or magistrate, was apt to 
 he funk in that of an ordinary proprietor, to whom the 
 
 syn, and the revenues connected with it, have been trans- 
 mitted like a private inheritance. 
 
 It muft at the fame time be admitted, that abufes in the 
 exercife of the executive power were then extremely fre- 
 quent, and were often fuffered to pais without animadver- 
 fion or notice. The legiflature had too little experience, to 
 provide regulations for preventing the numerous inftances 
 of malversation in office that were likely to occur; judicial 
 eftablifhments had not yet attained fuch perfection as 
 might enable them with quicknefs to punifh the feveral 
 violations of juftice ; nor had long ufage eftablifhed thofe 
 equitable maxims of government, which are the common 
 effects of polifhed manners, and which often fupply the 
 place of pofitive institutions. The conduct of the Sove- 
 reign, therefore, and even that of inferior officers, in the 
 ordinary courfe of administration, was in a great meafurc 
 difcretionary ; and was no otherwife restrained, than by 
 the fear of exciting general clamour and disturbance. But 
 individuals might fuftain much oppreffion before their 
 complaints were likely to excite attention, and might be dif- 
 pofed, from prudential confiderations, to fubmit to many 
 injuries and inconveniencies, rather than contend againlt 
 the whole force of the crown. In this difcrderly State of 
 Society, perfons who preferred any requeft to the king, or 
 who had even any claim of right, in which his intereft was 
 t concerned,
 
 Chat. II. THEIR EFFECTS UPON PARLIAMENT. 313 
 concerned, were commonly induced to fccure his favour by 
 a prefent, or, if you will, by a bribe. A numerous lift of 
 thole prefents, which were made to the fovereign, in order 
 to procure what was barely juftice, has been collected by 
 different authors, with a view of demonftrating the defpo- 
 tical 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 departments of 
 adminiftration. They fhew that the government was rude 
 and imperfecl, and therefore in many cafes arbitrary ; not 
 that it was an abfolute monarchy : that the national coun- 
 cil was negligent and unfkilful in reflraining diforders ; not 
 that it was deftitute of authority to limit the prerogative. 
 This is what happens in the 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 
 obliged to ihelter themfelves under the wings of a fuperior ; 
 and are glad to obtain, by folicitation 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 conftitution, have fince 
 been removed by the gradual improvement of arts, and the 
 correfpondent progrefs of manners, without any confider- 
 able change in the diftribution of the great powers of go- 
 vernment. The outlines of the Englifh conftitution are 
 not very different, at this day, from what they were in the 
 reign of William the Conqueror ; but the powers which 
 were then univerfally acknowledged, have been fince more 
 
 S f minutely
 
 314 CHANGES IN WILLIAM'S REIGN. Book II. 
 
 minutely applied to the detail of adminiftration ; and the 
 variations, that have occurred in the modes of living, and 
 in the condition of individuals, have been gradually accom- 
 modated to the fpirit of the old inftitutions. The expe- 
 rience of the nation has led them to fill up the picture, 
 of which a rude iketch was delineated in that early 
 period. 
 
 CHAP,
 
 Chap. III. ORDINARY COURTS OF JUSTICE. 315 
 
 CHAP. III. 
 
 Of the ordinary Courts of Jujlice after the Norman Conquefl. 
 
 THE diftribution of juftice, in the laft refort, was not 
 the moft brilliant or confpicuous, though it was, 
 undoubtedly, one of the moft ufeful departments belong- 
 ing to the national council. During the latter part of the 
 Anglo-Saxon government, this branch of bufinefs was 
 commonly devolved upon occafional meetings of the Wit- 
 tenagemote ; which being called for difcuffing matters of 
 inferior concern, were feldom attended by any other mem- 
 bers 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, contributed to produce farther alterations in the 
 judicial eftablifhments ; and particularly, to dive it more 
 entirely the public afTembly of the ordinary cognizance of 
 law-fuits. By the completion of the feudal fyftem in 
 France, the admin iftration of juftice in that country attained 
 a degree of regularity which was formerly unknown ; and 
 upon the acceftion of William the Firft, to the Engliih 
 throne, the improvements in this branch of policy, which 
 had been extended to Normandy, at that time a part of the 
 French dominions, were gradually introduced into Britain. 
 As the lcveral diftricts of the kingdom, which had former- 
 ly been diftracled by the feuds of their independent leaders, 
 
 S f 2 came
 
 S i6 ORDINARY COURTS OF JUSTICE Book II. 
 came now to be united under the feudal fuperiority of the 
 crown, the deciiion of private quarrels by the fword was 
 more effectually reitrained ; while the vigor and influence, 
 pofTefled by the two firft princes of the Norman race, co- 
 operated with the natural progrefs of fociety in bringing 
 the differences among all the inhabitants under the deter- 
 mination of the magiflrate. From the confequent multi- 
 plication of appeals to parliament, the members of that 
 aillmbly became daily lefs difpofed to execute this part of 
 their duty; at the fame time that, from the increafmg 
 authority of the crown, their attendance was rendered pro- 
 portionably lefs necefTary. The number of crown-vafTals, 
 convened on fuch occafions, was therefore gradually dimi- 
 niihed ; the abfence of others was more and more over- 
 looked ; and at length there was formed, out of parliament, 
 a regular tribunal, for the fole purpofe of deciding law-fuits, 
 and compofed of an arbitrary number of thole perfons 
 who fat in the greater afTembly. The great officers of the 
 crown, being always upon the fpot, whenever a meeting 
 of this kind was called, became its ordinary conftituent 
 members ; and to thefe were added by the king particular 
 perfons, who, from their knowledge of law, or experience 
 in bufinefs, were thought qualified to affiff. in the inferior 
 departments of office *. 
 
 This 
 
 * Account of this tribunal in Madox's Hirtory of Exchequer. The great officers 
 of the king's court are made by this author to be feven in number. I. The chief 
 jufticier. a. The conftable. 3. The marefchall. 4. The fenefchall or dapifer. 
 5. '1 he chamberlain. 6. The chancellor. 7. The treafurer. Of thefe the chief 
 jufticier was originally the fenefchal or high-fteward. But when the primitive high- 
 lteward, who had been the chief officer of the family, came to be poflc-fled of great 
 minifterial powers over the whole kingdom, a deputy was appointed to manage the 
 e houfhold, who acquiring high rank and authority-} received the appella- 
 tion
 
 Chap. III. AFTER THE NORMAN CONQUEST. 317 
 
 This court, from the place in which it was commonlv 
 held, received the appellation of the aula regis. In its 
 conititution and origin, it correfponded exactly with the 
 cour de roy, which, after the acceffion of Hugh Capet, 
 was gradually formed out of the ancient parliament of 
 France ; and with the aullc council^ which, after the time of 
 Otho the Great, arofe, in like manner, out of the diet of the 
 German empire. In Scotland we meet 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 fyftem gave rife to a ilmilar inftitution. In all 
 thefe countries, as well as in England, it appears probable, 
 that this tribunal was detached from the national council by 
 connivance rather than by any pofitive appointment ; from 
 a difpoiition in the people to confult their own eafe and 
 convcniency, more than from any delign upon the part of 
 the crown to limit their privileges ; in ihort, from no pre- 
 conceived plan of altering the conflitution, but from a 
 natural and obvious accommodation to the circumftances 
 
 tion of fenefchall, or Jieuard of the houfehold^ as the other was called the Jieward of the 
 kingdom. The fubordinate appointment of a fleward of the houfhold, or comes palatii* 
 is alfo to be found in France, Germany, and other feudal countries. 
 
 The office of conftable, or chief groom, had come in England, as well as upon the 
 continent, to be divided into two branches, that of the conftable and marfhal ; or of 
 the groom and the fmith, or farrier. 
 
 The fenefchal and dapifer ought, in all probability, to have been diftinguifiied ; as in 
 France, and of courfe in Normandy, the offices of fteward, and butler, or cup-bearer, 
 had been long feparated. 
 
 The treafurer is fuppofed to have been originally the deputy of the high-fteward. — 
 But in later times was more probably that of the chamberlain, who came to have the 
 principal charge of the revenue. 
 
 See an account of the rank and employment of thefe officer?, in that branch of the 
 king's court which had the management of the revenue, in the Diahgus de Scaccric 
 published by Madox, from the black and the red books of Exchequer. 
 
 6 of
 
 3i8 ORDINARY COURTS OF JUSTICE Book IL 
 
 of the community ; and from an immediate profpec"t of 
 advantage, by facilitating the diftribution of juftice. As 
 this tribunal, 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 for- 
 mation. In England, the inititution of the aula regis is 
 commonly afcribed to William the Conqueror; but this 
 mull be underftood with relation to the firft appearance 
 of that court, as diftincl: from the greater meeting of par- 
 liament, and not with refpect to the fubfequent varia- 
 tions and improvements which preceded its complete efta- 
 blifhment. 
 
 This court was held by the Englifh monarchs, not only 
 in their mofc ufual place of refidence, but wherever they 
 happened to be, when there was found occafion for its in- 
 terposition. It had the fame extent of jurifdiction with 
 parliament, out of which it had grown ; and therefore ob- 
 tained the cognizance of all ordinary law-fuits, whether 
 ci.il, criminal, or fifcal. 
 
 The king himfelf prefided in the aula regis, whenever 
 he thought proper to lit there as a judge ; but the ordinary 
 prefident of this court was the lord high iteward, the prin- 
 cipal officer of the crown; who, in rank and authority, 
 had rifen to be the fecond perfon in the kingdom ; and 
 upon whom the king, w hen abfent from parliament, 
 had like wife devolved the right of prefiding in that af- 
 
 fembly *- 
 
 For fotne time after this tribunal had been feparated 
 >m the meetings of parliament, it ftill coniifted of all the 
 
 ■ii the members of this court tranfa^ed civil and criminal pleas, they fat in 
 the h..ll of the king : when they a&cd as a court of revenue, they fat in the lixchc- 
 cuer. Dial, dc Scacaiio. Uaion Gilbert's I lift, of Chancery. 
 
 3 great
 
 Chap. III. AFTER THE NORMAN CONQUEST. 319 
 great officers of the crown ; but according as, by the gra- 
 dual extenlion of its authority, it had occalion to fit more 
 frequently, the attendance even of the greater part of thefe 
 members was rendered more ufelefs, as well as inconve- 
 nient ; and therefore became the lefs regular. The king, 
 at the fame time, acquiring higher notions of his own 
 dignity, or finding himfelf more engaged in the other de- 
 partments of government, ceafed alfo to exercifc the ordi- 
 nary 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 denominated the grand jufliciaryK 
 
 While the judicial authority of parliament was thus de- 
 legated to another court, the king exercifed the chief parts 
 of the executive power, by the affiftance of a privy- council, 
 compofed of fuch barons as enjoyed his particular favour 
 and confidence. Some inftitution of this nature had pro- 
 bably exifted, at leaft occafionally, during the reigns of the 
 later Saxon princes; but, after the Norman conqueft, when 
 the prerogative was coniiderably exalted, the privy-council, 
 
 of 
 
 * That the grand justiciary of England was originally the high fteward appears 
 indifputable. i. That the high fteward, or maire of the palace, in France, was an- 
 ciently the officer of the crown who acquired the higheft dignity and authority over the 
 kingdom, is univerfally admitted. 2. In Normandy a fimilar officer, appointed by the 
 duke, appears to have been chief jufticiar throughout the dutchy. See Couftumitr c!u 
 Normandie. 3. From the black and red books of Exchequer, there is diftiiut evi- 
 dence that Robert earl of Leicefter, who, in the reign of Henry the Second, was the 
 high fteward, had alfo the office of 'grand jujikiary. Non plum ad fcacar'.um icrum per 
 univerfum regnum presidentis dignitatem obtinuit. The author of this account vm 
 a cotemporary, who fays he faw the great officer whom he (peaks of. 4. That the 
 high fteward had by his office the right of prefiding over the king's privy counfellors, 
 and over all the officers and minifters of juftice in the kingdom, appears alfo from aw 
 old manufcript, intituled, S$uis JH Senefihalhts Anglia, et quid ejus officum, quoted by Sir 
 
 Robert
 
 ::o ORDINARY COURTS OF JUSTICE Book II. 
 
 oi confequence, rofe in dignity, ami its interpoiitions 
 became proportion ably more extenlive. The members of 
 this meeting, it is probable, were nearly the fame perfons 
 who, from their employment about the king's perfon, had 
 ufually been called to fit in the aula regis 9 after it came to 
 be feparated from the greater meeting of parliament; and 
 even when the king and his privy-counfcllors had devolved 
 the ordinary bufinefs of that court upon a iingle magiit rate, 
 they mil retained the cognizance of fuch extraordinary 
 caufes, both civil and criminal, as more immediately excited 
 their attention. Of the caufes which came, in this manner, 
 to be determined by the king and his privy -council, and 
 were at length, by cuftom, appropriated to that court, there 
 were three different forts. 
 
 i. When a crime was committed, for the punifhment 
 of which the common law had made no proper pro virion, 
 it was thought expedient, that the criminal fhould not be 
 permitted to efcape from juftice ; but that he mould be 
 called before this extraordinary tribunal, and punifhed ac- 
 cording to the nature of his offence. From the meetings 
 
 Robert Cotton and other antiquaries, whofe refearches upon this fubjecl: are preferved 
 in Hearne's Collection. — See the fails collected by thefe authors — alfo Spelm. GlofT. 
 v. Jufticiarius Capitalis. 
 
 It is true, that among the Englifh hiftorians and antiquaries there is fome confufion 
 in the accounts given of the perfons who held the office of high fteward and of juf- 
 ticiary. This feems to have arifen partly from the difficulty of difringuifhino- the old 
 high fteward from his original deputy the fteward of the houfhold j and partly from 
 the occafional appointments made by the fovereign of perfons to prefide in particular 
 trials, who have been miftaken for permanent judiciaries. This laft feems to be the 
 great fource of error in Madox. 
 
 5. That the high fteward was anciently the prefident over the king's judges, and 
 even of the high court of parliament, is further confirmed by the privilege of that 
 officer, when created, in later times, to prefide in the houfc of lords. 
 
 Of
 
 Chap. III. AFTER THE NORMAN CONQUEST. 321 
 of the privy-council, which gave a clecifion in fuch un- 
 common and lingular cafes, there was formed, in after 
 times, a regular jurifdiction, known by the name of the 
 jtar chamber*. 
 
 From the nature of things, it was to be expected, that 
 this jurifdiction would foon degenerate into tyranny and 
 opprefTlon. The procedure of the court, as it related to 
 matters in which no rule had been eltablifhed, was, of 
 courfe, difcretionary and fluctuating : at the fame time that 
 the caufes which might come before it, under pretence of 
 not being properly 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, lb the decilions, whenever he chofe 
 to interfere, depended entirely upon his will. Thefe ob- 
 jections, however, to the jurifdiction of the ftar-chamber, 
 which appear lb well-founded, and which, in a future 
 period, occalioned the abolition of that court, were not 
 likely to be fuggefted upon its firfc eftablifhment, when 
 its interpolitions, we may fuppofe, were few, and limited 
 to cafes of great neceffity, and when the limplicity of the 
 age was more difpofed to regard the immediate benefit ari- 
 fing from any meafure, than to confider the diitant confe- 
 quences of which, as a matter of precedent, it might pof- 
 fibly be productive. 
 
 2. In civil queflions, the rules of common law, which 
 had been gradually eltablifhed by judges in order to avoid 
 
 * Concerning the origin of the name of ftar-chamber, and the original nature or" 
 that court, fee Sir Thomas Smith de Repub. Angl. — Lamb. Arch.— Blacldkme's Com- 
 ment. — The nature of the jurifdiction anciently poflelTed by the ftar-chamber may be 
 conceived from the fort of offences concerning which that court is directed to enquire, 
 by the ftatutes 3 Henry VII. c. r. and 21 Henry VIII. c. 20. See Coke's Inft. 
 
 T t reflection^,
 
 322 ORDINARY COURTS OF JUSTICE Book IL 
 
 reflections, and to prevent inconliftency of conduct, were 
 ibmetimes found fo extremely defective as to lay the court 
 under the difagreeable neceffity, either of refilling juftice 
 to individuals, or of pronouncing an improper decifion. 
 The king and his privy-council, upon the fame principle 
 which led them to interfere in extraordinary crimes, were 
 induced to hear the complaints of perfons who had fuffered 
 in juftice from the rude and imperfect fyftem of jurifpru— 
 dence adopted by the grand jufticiary ; and to afford them 
 relief by a decifion according to confcience or natural 
 equity. The interpolations derived from this fource, be- 
 coming numerous, and being often attended with fome. 
 difficult v, were put more immediately under the direction 
 of the chancellor ; who as the king's fecretary, was ufually 
 a man of fome literature; and who, having become the 
 clerk, or keeper of the records of the aula regis, was parti- 
 cularly converfant in matters of law, and qualified to decide 
 in fuch nice and intricate cafes. In what manner the deci- 
 fion s of this officer, who acted at fir ft with the affiftance 
 of a committee of privy-counfellors, gave rife to the juris- 
 diction of the court of chancery, will fall more properly to 
 be conlidered hereafter. 
 
 3. When the Chriftian clergy had acquired an extenfive 
 authority and jurifdiction in the Weftern part of Europe, 
 we find that, whatever cenfure they may deferve for the 
 interefted policy which they practifed in other refpects, 
 they had the fingular merit of endeavouring every where 
 to reprefs the diforder and injuftice arifing from the anar- 
 chy of the feudal times. The weak and defencelefs, who 
 met with infult and oppreffion from every other quarter, 
 found protection from the church ; and the caufes of wi- 
 dows and orphans, and of all perfons in circumftances of 
 
 diftrcfs,
 
 Chap. III. AFTER THE NORM AX CONQUEST. 323 
 diftreiV--, which had heen baiiifhed from the barbarous 
 tribunal of the lay-judges, procured a welcome reception 
 in the fpiritual court ; where they were commonly examined 
 with candour, and determined with impartiality. 
 
 In imitation, as it mould feem, of this ecclefiaftical in- 
 terpofition, the king of England took under his immediate 
 protection the caufes of fuch as, by reafon of their poverty, 
 ■were unable to bear the expence of an ordinary law-fuit ; 
 and, fince no other court in the country could give the 
 proper redrefs, he encouraged thofe perfons to bring a peti- 
 tion or fupplication to the privy-council; which decided 
 their claims in a fummary manner, and without the forms 
 obferved in the ordinary tribunals. Hence particular per- 
 fons being entrufted with this branch of bufmefs, com- 
 pofed at length a court of reqiiefis, as it w r as called ; which, 
 for a long time, had no warrant of ordinary jurifdiction ; 
 but which, as the complaints that came before it could not 
 be accurately defined, affumed at length fo great powers as 
 to render it unpopular, and, in the reign of Charles the 
 Firfl, to occafion its abolition t. 
 
 The influence of that humanity, difplayed by the church, 
 was not confined to England ; but appears to have produced 
 a fimilar interpofition in the government of other European 
 countries. In France it was anciently the cuftom to prefent 
 petitions or complaints to the king at the gate of his pa- 
 lace; and, for the purpofe of receiving and examining thefe, 
 the king was early led to appoint certain perfons belonging 
 to his houfehold. If any petition was of too great con; 
 quence to be anfwered immediately by thefe commiffion- 
 
 * Perfonts miferabi* . 
 t Sir Tho. Smith de Repub. Anglor.— Blackflonc's Comment. 
 
 T t 2 ers.
 
 304 ORDINARY COURTS OF JUSTICE Book II. 
 ers, they were dire-fled to make a report of it to the king, 
 and to require the attendance of the parties, in order that 
 the caufe might he heard and determined. The perfons 
 appointed for the determination of fuch caufes, who feem 
 to have been members of the king's privy-council, were 
 called maiftres des req de fbojiel du roy. Their number 
 
 was increafed to fix, of which the one half were eccleiiaf- 
 tics ; and they feem at length to have been formed into 
 a icparate court, under the name of the chamber of 
 requejlr : K 
 
 The inflitution of the aula regis, or court of the grand 
 jufticiary, was a natural, and a very great improvement in 
 the fyftem of judicial policy. The great national council 
 could not be very frequently convened, and its decifions, 
 therefore, efpecially in matters of private property, w T ere 
 not eaiily procured. But the fmaller tribunal of the aula 
 regis was eafily kept in readinefs, to determine every con- 
 troversy whether civil or criminal. As the king, amid 
 the diforders of the feudal government, was under the 
 neceflity of making frequent journeys over the kingdom, 
 in older to maintain his authority, and to fupprefs or pre- 
 vent infurrections, he was enabled to receive, in every quar- 
 ter, the complaints of his people, and found no difficulty 
 in calling this court to give fuch redrefs as the occafion 
 might require. Juftice was made, in this manner, to 
 pervade the country; reparation of injuries was rendered 
 more certain, while the expence of litigation was dimi- 
 niihed ; and, by punifliing crimes in the neighbourhood of 
 thole- places where they had been committed, the axe and 
 the halter became an immediate and powerful antidote to 
 
 s poifon of bad example. 
 
 * Rcchcrchcs tie la France. D'Efticnne Pafijuicr. 
 
 From
 
 Chap. III. AFTER THE NORMAN CONQUEST. 325 
 From the decifions of this tribunal, there always lay 
 an appeal to the high court of parliament. This was a 
 confequence of the manner in which the aula regis was 
 formed ; by the mere difufe of attendance in the greater 
 part of the members of parliament; who thence were 
 underftood to have delegated the ordinary, judicial power 
 to fuch of their number as continued in the exercife of 
 it. But as this delegation was intended merely to fave 
 trouble to the members of parliament ; it was not con- 
 ceived to exclude a full meeting of that council from 
 reviewing, in extraordinary cafes, the procedure of the 
 committee upon whom this ordinary jurifdiction had been 
 devolved. Though parliament might wim to be difen- 
 gaged from the labour attending the decilion of law-fuits, 
 it was probably not willing to refign the authority con- 
 nected with that employment ; and, while it acquiefced in 
 the fubftitution of a court for exercifmg the whole parlia- 
 mentary jurifdiction in the firft inftance, it ft ill referved 
 the power, which might be exerted on lingular occafions r 
 of fuperintending the proceedings of that court, and of 
 controuling its decifions. 
 
 The aula regis, being a fort of deputation from the 
 national council, or king's baron-court, had, on the other 
 hand, a power of reviewing the fentences of the feveral 
 tribunals erected in different parts of the kingdom ; and 
 became an intermediate court between them and the high 
 court of parliament. There was the fame reafon for com- 
 mitting to the court of the grand jufliciary, the province 
 of hearing and difcufling appeals from inferior tribunals, 
 as for devolving upon it an original jurifdiction in parlia- 
 mentary actions. The full eftablifhment of this tribunal, 
 however, together with the changes in the ft ate of pro- 
 
 9 perty
 
 a 
 
 326 ORDINARY COURTS OF JUSTICE Book IL 
 perty after the Norman conqueft, contributed to limit the 
 authority of thefe inferior courts, and to render their inter- 
 pofition of little importance. 
 
 When the great lords of a county had become vaffals of 
 the crown, they claimed the privilege of bringing their 
 law-fuits, in the firil inftance, before the baron-court of 
 the {Sovereign, their immediate fuperior. To the fame 
 court were brought immediately, appeals from the fen- 
 tences pronounced by thefe great lords in their own baron- 
 courts. The lheriff, now converted into a crown vaflal, 
 belide the jurifdidtion over his own feudal barony, appears 
 to have Hill retained the power of deciding controverfies 
 between the rear-vajjah or tenants belonging to different 
 baronies within his county. 
 
 But the authority pofTefTed by the aula regis ^ which was 
 daily extended, from the increaiing power of the crown, 
 enabled that court even to make continual encroachments 
 upon the fubordinate jurifdidl ion of the fheriffand of the 
 different barons. It could be of little advantage to the 
 inhabitants, that their law-fuits were brought in the firft 
 i nuance before the court of the baron or of the lheriff, 
 fince the decilion of thofe judges might with the utmolt 
 facility be reviewed by the court of the grand julliciary ; 
 and, as this great tribunal appeared occafionally in all parts 
 of the kingdom, and diftributed juftice with fuperior effi- 
 cacy and fplendor, men were frequently difpofed to pais 
 over the inferior courts, and took encouragement to bring 
 their diiputes immediately before the court of appeal. 
 Thus, by the gradual operation of the fame circumftances, 
 t lie judicatories of each barony, and county, dwindled into 
 ftate of Lnlignificance ; their jurifdidtion was at length 
 d to matters of fmall value ; and the greater pal I 
 
 c allies,
 
 Chap. III. AFTER THE NORMAN CONQUEST. 327 
 
 caufes, civil and criminal, as well as fifcal, were appro- 
 priated to the ordinary baron-court of the fovereign. 
 
 Mr. Hume imagines, that none of the other feudal 
 governments in Europe had fuch inftitutions as the county- 
 courts ; and feems to be of opinion, that as thefe courts, 
 by requiring the frequent attendance of the barons, con- 
 tributed to remind them of their dependence upon the 
 king, they muft have had remarkable effects in reducing 
 thofe great perfonages under the authority of the chief 
 magiilrate. 
 
 But the county-courts were fo far from being peculiar 
 to England, that they appear, in the early periods of the 
 feudal iyftem, to have exifted throughout all the Weftern 
 parts of Europe. In France, and in feveral other countries 
 upon the continent, thofe courts began fooner to lole their 
 authority than in England; becaufe the fovereign had 
 fooner acquired a feudal fuperiority over the great lords ; 
 by which they were reduced under the immediate jurif- 
 diclion of the king's baron-court, and withdrawn from that 
 of the chief officer of a county. In Scotland, on the other 
 hand, where the influence of the crown over the nobles 
 advanced more flowly than in England, the county-courts 
 were enabled much longer to preferve their primitive juris- 
 diction ; fo that a coniiderable fliare of it has been trans- 
 mitted to the prefent time, and become a permanent branch 
 of the judicial polity. 
 
 It feems difficult, therefore, to fuppofe that the long 
 continuance of the courts of the fheriffin England had any 
 tendency to increaie or maintain the authority of the king 
 over the barons. The decay of thofe judicial eftabliih- 
 ments appears, on the contrary, to have been a necefTary 
 confequence of a correfpondent exaltation of the crown ; 
 
 x and
 
 328 ORDINARY COURTS OF JUSTICE Book IL 
 
 and we fhall find that, in every country, they remained 
 longer in power and fplendor, according- as particular cir- 
 cumftances contributed to thwart the ambitious views of 
 the monarch, and to prevent the exteniion of his pre- 
 rogative. 
 
 In the dominions belonging to France the judicial power 
 of the cour de roy advanced very quickly from the reign of 
 Hugh Capet, by the difufe of the country courts, and by 
 receiving appeals from the courts of the barons. Thefe 
 appeals, agreeable to the general cuftom of the feudal 
 governments, contained at firft a complaint that injuftice 
 had been committed by the inferior judge ; who, therefore, 
 was obliged to appear as a party, before the fuperior tri- 
 bunal. But according as the practice of appealing became 
 more frequent, the petitions of appeal were admitted upon 
 {lighter grounds ; the charge of wilful injuftice againft the 
 inferior courts was more and more overlooked; the magis- 
 trates, who had prefided in thefe courts, were no longer 
 Sufficiently interested to appear for the justification of their 
 conduct ; and the controverfy was examined in the court of 
 review, for the fole purpofe of determining the propriety 
 or impropriety of the former decifion. 
 
 It is true, that from the diforders which prevailed in 
 France, under the later princes of the Garlovingian race, 
 one or two of the great lords had acquired fuch inde- 
 pendence, as, for Some time after the reign of Hugh Capet, 
 prevented the king from reviewing their Sentences ; but 
 this is mentioned by all the historians as a remarkable An- 
 gularity. It alfo merits attention, that the French monarchs, 
 about this period, were not content with the power of 
 receiving appeals from the Several courts of their barons. 
 An expedient was deviled of fending royal bailiffs into 
 
 differi
 
 Chap. III. AFTER THE NORMAN CONQUEST. 329 
 
 different parts of the kingdom, with a commiflion to take 
 cognizance of all thofe caufes in which the lbvereign was 
 interefted, and in reality for the purpofe of abridging and 
 limiting the fubordinate jurifdiclion of the neighbouring 
 feudal fuperiors. By an edict of Philip Auguftus, in the 
 year 1190, thofe bailiffs were appointed in all the principal 
 towns of the kingdom *. 
 
 * Hainault's Abridgment of Hift. of France, 
 
 V 11 CHAP.
 
 .■).*» 
 
 so PROGRESS OF ECCLESIASTICAL Book II. 
 
 C II A P. IV. 
 
 Progrefs of ccclrficjlical JurifdiElion and Authority. 
 
 THE hierarchy of the Weftern church grew up and 
 extended itfelf over the kingdoms of Europe, inde- 
 pendent of the boundaries which had been fet to the 
 dominion of fecular princes, and of the revolutions which 
 took place in the ftate of any civil government. The 
 Roman pontiff, having found the means of uniting under 
 his protection the clergy of each particular kingdom, was 
 equally interefted in promoting their influence, as they 
 were in maintaining the authority of their fpiritual leader. 
 By taking advantage, therefore, of the various and fuc- 
 ceflive contentions among oppofite and rival powers, he 
 was enabled to extort conceffions from thofe whom he 
 had fupported, to levy impofitions, and to exalt the dig- 
 nity and prerogatives of the holy fee. 
 
 The Norman conqueft, in England, was followed by 
 a complete feparation of the ecclefiaftical from the tem- 
 poral courts. By a regulation of William the Conqueror, 
 the bifhop was no longer permitted to fit as a judge in 
 the 'court of the county, nor the rural dean in that of 
 the hundred *. This alteration had undoubtedly a ten- 
 dency to promote that exclufive jurifdiclion which the 
 ilergy were defirous of eftablifhing ; and to build up that 
 
 • William the Conqueror's charter, with advice of the national council. Spcl- 
 rrun. 
 
 fyftem
 
 Chap. IV. JURISDICTION AND AUTHORITY. 331 
 fyftem of church power which the wiiclom of after a^-es 
 found it fo neceffary, and at the fame time fo difficult, to pull 
 down. Under the dominion of the Anglo-Saxon princes, 
 while the fpiritual judges were affociated with the civil 
 magiftrate, many caufes of an ecclefiaftical nature were 
 brought under the cognizance of the temporal courts; 
 and though, from the fuperior knowledge and addrefs of 
 churchmen, the decifions given by thofe tribunals might 
 be apt, in fome cafes, to favour of a clerical fpirit, there 
 was little danger, from this arrangement, that the church 
 would become totally independent of the ftate. But from 
 the moment that the clergy were excluded from a voice in 
 the courts of the hundred and of the county, ecclefiaftical 
 controverfies were appropriated, in all cafes, to the judi- 
 catories of the church ; and the ambition of churchmen 
 immediately excited them to extend their own peculiar 
 jurifdiction, by invading that of the civil magiftrate. 
 
 The encroachments made by the fpiritual, upon the pro- 
 vince of the temporal courts, were of a fimilar nature in 
 England, and in all the other countries belonging to the 
 Weftern church. The pretence for thefe encroachments 
 was, the privilege of the clergy to inflict, cenfure upon e very- 
 irregularity, which could be confidered as a Jin, or an 
 offence in the fight of God. Under this defcription every 
 act of injuftice, every violation of the laws of the land, 
 was manifeftly included; but the offences which in this 
 view attracted more particularly the attention of church- 
 men were fuch, it may eafily be conceived, as had an 
 immediate connexion with their own intereft, or with thofe 
 religious obfervances from which their own dignity and 
 importance were in fome meafure derived. 
 
 U u 2 One
 
 332 PROGRESS OF ECCLESIASTICAL Book II. 
 
 One of the firft interpofitions of the church, in a mat- 
 ter of civil jurlfdiction, appears to have been made with 
 relation to tytbes\ and other ecclcfiaftical revenues. Even 
 after the rights of the clergy, in this particular, had re- 
 ceived the lanclion of public authority, they were not 
 likely to meet with a vigorous and hearty fupport from 
 the civil mainitrate : and it was therefore coniidered bv the 
 church, as a matter of general concern, to render them 
 effectual in the fpiritual court. 
 
 The performance of teftamentary bequefts was viewed 
 in a fimilar light. As in the exercile of their profeflion, 
 the clergy were frequently employed about dying perfons, 
 and had aim oft the exclufive pofTeffion of all the literature 
 of that ignorant age, they were ufually conlulted upon the 
 making of teftaments, and became the common witnefies 
 to thofe deeds. It would be doing them injuftice to lay, 
 that they neglected to avail themfelves of that fituation, 
 for increafing the revenue of the refpe£tive corporations 
 to which they belonged. With fo great diligence and 
 fuceefs did they perform this part of their duty, that few 
 perfons adventured to take a near profped of a future ftate, 
 without making confiderable donations for pious ufes\ and 
 the effect, of inculcating the fame doctrine was at length 
 rendered fo univerfal, that, in many countries of Europe, 
 a great proportion of every perfpnal eilate was, without 
 any teftament, and in virtue of a tacit or prefumed will of 
 the proprietor, transferred, by the ordinary courfe of iuc- 
 ceffibii, to the church. Thus the clergy were not only 
 the belt qualified for explaining the will of the teftator, 
 but had befides a peculiar intereft in the execution of it; 
 and therefore by their activity and vigilance, joined to the 
 
 indifferefu e
 
 Chap. IV. JURISDICTION AND AUTHORITY. — 
 indifference and remiifnefs of the civil tribunals, tfc 
 found it not difficult, in questions of this nature, to acquire 
 an cxcluiive jurifdiclion. 
 
 From the fame principle which recommended penances 
 and mortifications as highly meritorious, the miniitcrs of 
 religion thought it incumbent upon them to cenfure and 
 difcourage all exceffes in fenfual pleafure ; and in a par- 
 ticular manner to reftrain every irregularity with refpect 
 to the intercourfe of the fexes. The contract of marriage 
 was therefore brought under their immediate inspection ; 
 and, as it came to be celebrated by a clergyman, and to be 
 accompanied with religious forms and folemnities, was 
 regarded as a fpecies of facrament. Upon this account, 
 every breach of the duties of marriage, every queifion 
 with relation to its validity, or concerning the terms and 
 conditions which were held compatible with that inititu- 
 tion, became an object, of ecclefiaftical cognizance. 
 
 This branch of jurifdiction afforded, by degrees, a pe- 
 cuniary revenue, which the clergy did not fail to improve. 
 By the Roman law, which was at firit adopted in ecclefiaf- 
 tical courts, marriage was prohibited between collateral 
 relations in the fecond degree ; that is, between brothers 
 and filters. This prohibition, comprehending thole per- 
 fons who ufually were brought up in the fame family, and 
 who, unlefs their union had been entirely prevented, might 
 be frequently expoled to the hazard of feduction, is. founded 
 upon manifeft confiderations of expediency. But no fooner 
 was the church pofTefled of fufneient authority in this 
 point, than, becoming diflatisfied with fuch a lvaibnablc 
 and falutary regulation, die thought proper to introduce 
 a ftrictcr discipline ; and proceeded, by degrees, to pro- 
 hibit the union of more diitant relations ; in fo much that 
 
 marriage
 
 334 PROGRESS OF ECCLESIASTICAL Book II. 
 
 marriage between perfons in the fourteenth degree, accord- 
 ing to the Roman computation, was at length declared 
 illegal*. Not contented with preventing the intercourfe of 
 natural relations, the fuperflition of the age recommended, 
 and the intereited policy of the church ordained, a reftraint 
 of the fame nature, in confequence of the fpiritual con- 
 nexion ariiing from baptifm ; between the perfon baptized 
 and his godfathers and godmothers, as well as the clergy- 
 man by whom that facrament was adminiftered ; and the 
 marriage of thofe perfons, together with their relations, as 
 far as the fourteenth degree, was likewife forbidden. The 
 number of people, thus prohibited from intermarrying, 
 came to be fo immenfe, that perfons at liberty to form that 
 union, at a time when relations were not, as at prefent, 
 fcattered over the world by the influence of commerce, 
 could feldom be found, at lead among perfons of rank, 
 in the fame quarter of a country, and hardly ever in the 
 fame circle of acquaintance t. 
 
 Thefe regulations were intended merely for the purpofe 
 of levying contributions from the people ; for, though mar- 
 riages contracted within the forbidden degrees were null 
 
 * The fourteenth degree, according to the computation of the civilians, is equal to 
 the feventh degree among the canoniits 3 comprehending perfons removed by feven 
 generations from the common frock. To change the Roman method of count- 
 ing kindred, was the firft contrivance of the clergy in the dark ages, for extending 
 the laws of ancient Rome with refpect to the relations prohibited from contracting 
 marriage. 
 
 •f- Blackftone in his Comment, vol. ii. calculates the number of relations which 
 may, at an average, exift in different degrees of confanguinity ; by which it appears, 
 that every perfon may have at leaft 1 6,000, in the 14th degree, according to the 
 Roman computation, not to mention fuch as are a ftcp or two nearer, who nay be 
 living at the fame time ; and of fpiritual relations, in confequence of baptifm, he 
 may have three or four times as many more. 
 
 and
 
 Chap. IV. JURISDICTION AND AUTHORITY. 335 
 
 and void, the church affuraed a power of difpenfing with 
 the law ; and to fach as were able to pay for it, with ex- 
 ception of parents and children, and fome other very- 
 near relations, a difpenfation, in molt cafes, was readily 
 granted. 
 
 By this jurisdiction with relation to teftaments, and with 
 relation to the validity of marriage, the church decided the 
 mofl important queifions concerning the tranfmiflion of 
 property. She pollened the fole power of determining the 
 legitimacy of children, upon which depended their capa- 
 city of inheritance ; at the fame time that fhe gave autho- 
 rity to the nomination of every perfon who fucceeded to 
 an eftate by the 'will of the proprietor. 
 
 Amid the diforders which prevailed in Europe for many 
 centuries after the downfal of the Roman empire, and by 
 which the inhabitants were funk in profound ignorance 
 and barbarifm, the clergy exerted themfelves in retraining 
 the perfidy and injuftice of the times; and, by the influ- 
 ence of religious motives, endeavoured, as far as poffible, 
 to induce mankind to the obfervance of good faith in their 
 various tranfactions. For this purpofe they introduced a 
 general practice, that contracts of every fort mould be con- 
 firmed by the fanction of an oath ; by which means the 
 violation of a contract, being confidered as the breach of 
 a religious duty, fell under the cognizance of the church. 
 From the ftrictnefs obferved in the decisions of the fpi ritual 
 court, the private party, at the fame time, found it more 
 advifeable to bring his complaint before this tribunal 
 than that of the civil magiftrate. The extent of juris- 
 diction, acquired in this manner, may eafily be con- 
 ceived. 
 
 Laftly.
 
 336 PROGRESS OF ECCLESIASTICAL Book II. 
 
 Laftly. To the church courts were appropriated, as I 
 formerly had occaiion to obfervc, the cauies or* widows and 
 Orphans, and of all perfons in circumltances of diftrefs. 
 Cauies of this deicription were too apt to be neglected by 
 thofe military barons inverted with civil jurifdiction, who 
 paid but little attention to the claims of any perfon from 
 whofe future fervices they could derive no benefit, or from 
 whole refentment they had nothing to fear. 
 
 It mult be remembered, to the honour of the clergy of 
 thofe times, that they were the friends of order and regular 
 government; that, if they laboured to rear a fyftem of 
 ecclefiaftical defpotifm, their authority was generally em- 
 ployed in maintaining the rules of juftice; and that they 
 dilcovered a uniform inclination to protect the weak and 
 dcfencelefs, againft that violence and oppreffion which 
 was too much countenanced by fuch of the laity as 
 were poiTeffed of opulence and power. From this cir- 
 cumftance, the extenfions of ecclefiaftical jurifdiction were 
 highly acceptable to the people; and, notwithstanding 
 the pernicious confequences which they ultimately tended 
 to produce, were in the mean time, of great advantage to 
 the lower ranks of men, if not of general benefit to the 
 community. 
 
 Having thus occafion to determine a multitude of caufes, 
 both of an cccleiiaitkal nature, and fuch as fell within the 
 province of the civil magiltrate, the church courts advanced 
 in the knowledge and experience of judicial buimefs. As, 
 by their literature, the clergy could not fail to be acquainted 
 with the ancient Roman law, they were led, in many cafes, 
 to adopt the rules of that equitable fyftem : Their own de- 
 cilions were collected, in order to ferve as precedents in 
 
 future
 
 Chap. IV. JURISDICTION AND AUTHORITY. 337 
 
 future queilions ; and from thcfe, together with the opi- 
 nions of learned fathers in the church, the decrees of coun- 
 cils, and regulations of popes, was at length formed that 
 body of canon-law, which obtained univerfal reputation in 
 the Weftern part of Europe. 
 
 It would have been to little purpofe, however, for the 
 church to afTume a jurifdiction, had me not been able to 
 render herfelf independent in the exercife of it. But the 
 fame vigour and dexterity, by which the clergy eftabliihed 
 their power in any European kingdom, were exerted in 
 order to withdraw their fubjection from the fovereign, and 
 to render them fubordinate only to the Roman pontiff. In 
 England this was, in fome meafure, effected fo early as the 
 reign of William the Conqueror, by the expedient of aj}- 
 pointing papal legates, or commiilioners, to hear and de- 
 termine eccleHaffical caufes. As thofe appointments might 
 be renewed at pleafure, they loon opened the way for a 
 direct appeal from the-Engliih. church-courts to that of 
 Rome ; which was firft attempted in the reign of William 
 Rufus, and finally accomplifhed in that of king Stephen*. 
 The entire exemption of churchmen, or c/ertis, from 
 fecular jurifdiction, which had been early introduced into 
 fome other European countries, and which appears to be a 
 natural confequence of the advancement of ecclenaftical 
 power, was, in England, made effectual about the time of 
 Henry the Second. The effects of this exemption, which 
 have, in fome meafure, been retained in later ages, are 
 univerfally known by what is called the benefit of c. 
 As the church-courts never inflicted a capital, or corpor 
 punimment, thofe offenders, who could be fubjected to no 
 
 * Burnc's Ecclefiafcical Law. 
 
 X x other
 
 338 PROGRESS OF ECCLESIASTICAL Book iI. 
 
 other jurifdiclion, were of courfe exempted from fuch 
 punifhment, unlefs in fome few cafes, where the church 
 might refute her interpofition, or was pleafed to deli- 
 ver over the criminal to the fecular arm. After the re- 
 formation, this privilege of clerks, which, by the progrefs 
 of literature, came to he within the reach of almoft all the 
 inhabitants, was looked upon as a convenient method for 
 moderating the rigorous punifhment s of the common law ; 
 and therefore, with various modifications by flatute, was 
 then incorporated in the legal iyftem. 
 
 In the reign of Henry the Firfl, the monaftic rule of 
 celibacv, after long and violent flruggles, was at length 
 impofed upon the fecular clergy of England ; and received 
 the fanclion of ecclefiaflical authority *. By this regula- 
 tion, churchmen, being freed from the cares of a family, 
 and from the burden of making a provifion for poflerity, 
 were detached, in a great meafure, from the reft of the 
 community, and, by motives of intereft and ambition, were 
 more uniformly and firmly united in that ecclefiailical cor- 
 poration of which they were members. Though it may 
 be true, therefore, that this abfurd fyftem of mortification 
 was introduced from perverted notions of refinement, ami 
 by the univerfal influence of fuperftition, there can be no 
 doubt that it was afterwards promoted and extended from 
 the interefted policy of churchmen, and more efpecially 
 from that of their fpiritual fovereign. 
 
 But the great circumftance which contributed to eftablifh 
 the independent power of the church, was the privilege of 
 bellowing ecclefiaflical preferments. 
 
 Upon the iirfl eftablifhment of ecclefiaflical benefices, 
 by the donation of dying perfons, and the confequent rife 
 
 * Lyttelton's Hift. of Henry II. 
 
 of
 
 Chap. IV. JURISDICTION AND AUTHORITY. 339 
 
 of ecclefiaftical dignities, the inferior clergy of each diocefe 
 were chofen by the bifhop and chapter, and the bifhop 
 himfelf, by the dean and chapter, of the cathedral church. 
 After the modern European kingdoms had been erected 
 upon the ruins of the ancient Roman empire, the fove- 
 reign, in each of thofe kingdoms, was tempted to inter- 
 fere in ecclefiaftical elections, and, by his influence over 
 thofe who had the power of nomination, acquired at length 
 the privilege of beftowing the higher church livings. Kut 
 when the authority of the bifhop of Rome had riien to a 
 great height in the Weftern church, he left no meafure 
 unattempted, in order to wreft out of the hands of princes 
 an inftrument of fo much importance as the nomination of 
 the fuperior clergy. The difpute concerning this point, 
 which lafted for more than a century and a half, is one of 
 the moft remarkable events in the hiftory of modern Eu- 
 rope. It was begun by the famous Gregory the Seventh ; 
 a man who, by his abilities, his intrepidity, and his un- 
 bounded ambition, was qualified to draw the utmoft ad- 
 vantage from the fituation in which he was placed. This 
 pontiff not only rejected with difdain the prerogative which 
 the German emperors had for fome time exercifed, of 
 confirming the election of the popes ; but prohibited them 
 from interfering in the election of all bifhops and abbots ; 
 and proceeded fo far as to ifTue decrees, by which he ex- 
 cluded the laity, of every rank or condition, from the col- 
 lation to ecclefiaftical benefices. Henry the Fourth, who 
 at this time wore the imperial diadem, defended his rights 
 with vigour ; and, as many princes were, by various motives, 
 induced to fupport the intereft of the church, the contend- 
 ing parties had recourfe to arms. During the progrefs of 
 the quarrel, all Italy and Germany were thrown into con- 
 
 X x 2 vulfions :
 
 340 PROGRESS OF ECCLESIASTICAL Book II. 
 
 vulfioiis ; millions of people were deftroyed upon the one 
 Qde and the other; and it is computed that no lefs than 
 fixty battles were fought in the reign of this emperor ; 
 together with eighteen more in that of his fon and fuc- 
 cefibr, Henry the Fifth ; who, at length, was permaded to 
 conclude a peace with the court of Rome, by granting an 
 exprefs renunciation of all his pretenfions *. 
 
 The conteft, with refpect to the right of inveftitures,. 
 was not confined to Italy and Germany, but extended itfelf 
 over the other countries of Europe ; in which the church, 
 for the moft part, was equally fuccefsful. In France, the 
 decrees of the pope were made effectual with lefs rapidity ; 
 hut without violence, and even without much difturbance. 
 In England, the right of the laity to confer ecclefiaftical 
 benefices, was firfl dilputed in the reign of Henry the Firit, 
 when Anfelm, the archbifhop of Canterbury, refufed to 
 confecrate the bifhops nominated by the king. The con- 
 troverfy was continued under feveral of the fucceeding 
 princes; but no blood was fpilt in the quarrel, farther than 
 by the afTafflnation of Becket, or than what might arife 
 from the fcourging of Henry the Second. In this kind of 
 warfare, the church was properly in her own element; 
 and managed her weapons with her ufual dexterity. When 
 king John had been weakened by an unfuccefsful war, and 
 had incurred the contempt and refentment of his fubjedls, 
 the pope laid hold of that opportunity to invade his prero- 
 gative ; and, by thundering out againft him the different 
 orders and degrees of eccleflaftical cenfure, at the fame 
 time that he had the addrefs to employ the fecular arm of 
 F ranee to fupport his authority, he at length obliged the 
 
 * Father Paul's Hiflory of Benefices. 
 
 x infatuated
 
 Chap. IV. JURISDICTION AND AUTHORITY. 341 
 
 infatuated Englifh monarch, not only to relinquish all claim 
 to the right of inveftitures, but even to refign his kingdom 
 to the church, and to hold it for the future as a feudatory 
 of the holy fee. 
 
 It could hardly be expected that the pope would engage 
 in fuch long and violent fcrugglcs for the fake merely of 
 the clergy over whom he prefided, and that when he had, 
 at laft, gained a complete victory, he would not endeavour to 
 improve it to his own advantage. No fooner was the no- 
 mination of bifhops and abbots placed in the clergy of 
 each cathedral church or monaftery, than his holinefs be- 
 gan to interfere in elections, by recommending particular 
 perfons to vacant benefices. Confidering the influence and 
 authority which he pofTefTed over all the members of the 
 church, and the exertions which he had made in procuring 
 the right of election to the clergy, fuch a recommendation 
 could not, with decency, be overlooked ; and, in molt 
 cafes, could fcarcely fail of fuccefs. The frequency, how- 
 ever, of thefe recommendations difpofed the electors to 
 anticipate them on particular occaiions, by filling up the 
 vacancy w r ith the utmoft expedition. Forefeeing the death 
 of fome particular incumbent, the pope endeavoured fome- 
 timcs to prevent a precipitate fupply of the vacancy, by 
 requefiing that it mould be delayed for fome time. Such 
 recommendations and requefls, having come at length to 
 be frequently difregarded, were afterwards accompanied 
 with commands ; and commiilioners were fent to put them 
 in execution, as well as to punifh the clergy, in cafe of 
 their difobedience. To all thefe expedients was added, at 
 length, a more effectual interpofition for preventing every 
 dif appointment. With regard to the mode of electing bi- 
 fhops and abbots, and the qualifications of the perfon to be 
 
 elected,
 
 342 PROGRESS OF ECCLESIASTICAL, &c. Book II. 
 
 elected, a let of regulations was made, fo numerous and 
 intricate, that the flrict obfervance of them became impof- 
 fible ; while it was declared, that, upon the leaft failure in 
 any point, the election fliould be void, and the nomination 
 fhould devolve to the apoflolic fee. By thefe artifices the 
 bifhop of Rome acquired, in reality, the power of appoint- 
 ing all the dignified clergy, together with all that influence 
 and revenue which could be obtained, either directly or 
 indirectly, from the difpofal of every important eccleiiafti- 
 cal preferment. 
 
 CHAP.
 
 Chap. V. VIEW OF THE KINGLY POWER, 8cc. 343 
 
 CHAP. V. 
 
 General View of the kingly Power ; from the Reign of Ed- 
 ward L to that of Henry VII. 
 
 THE period of the Englifh monarchy, from Edward 
 the Firfl to the acceflion of the houfe of Tudor, 
 correfponds, with great exadtnefs, to that of the French, 
 from Philip the Fair to Lewis the Eleventh. About the 
 beginning of thefe periods, the government, in each of 
 thofe countries, affumed a degree of regularity unknown 
 in former ages ; and it afterwards continued, by fimilar 
 Heps, advancing towards maturity. The power of the 
 king, and that of the nobles, formed, at this time, the 
 only balance in the conftitution ; which came, in the natural 
 courfe of things, to lean more and more to the fide of the 
 former. The nobility were too much divided among 
 themfelves, to be capable of profecuting any regular plan 
 for the aggrandifement of their own order. Their opu- 
 lence, which, if collected in one great current, might have 
 borne down every obftacle before it, was deprived of its 
 efficacy by being broken into many feparate channels, and 
 fpent in various and contrary directions. In order to make 
 an effectual oppofition to the crown, it was requiiite that 
 the greater barons fhould be firmly united in defence of 
 their privileges ; but fuch a union was not eaiily procured, 
 and, for, any length of time, could hardly ever be main- 
 tained. Diffracted by mutual animolity, and actuated bv 
 private jealowfies, or by oppofite views of intereit, thele 
 
 reftleisj
 
 344 VIEW OF THE KINGLY POWER, Book II. 
 
 reftlefs, but moit-iighted chiefs, were, without much diffi- 
 cult", perfuaded to abandon any joint meafures; and excited 
 to employ their force in weakening and deflroying one 
 another. What they gained, therefore, upon fome occa- 
 sions, by a hidden and violent effort, was afterwards thrown 
 away, from the want of perfeverance or management ; and 
 the effect of a temporary combination was more than com- 
 penfated by their ufual tendency to difunion and diffen- 
 lion. But the crown was not capable of being divided 
 agairrft itfelf. Its property, being under the difpofal of a 
 jingle perfon, was always directed, however injudiciouily, 
 to the fame end; and made fubfervient to one political 
 purpofe ; that of extending the royal prerogative. The 
 revenue of the crown, therefore, created a degree of 
 influence, which was continually extending itfelf, and 
 which, by its uniform operation, afforded continual oppor- 
 tunities for increaiing that revenue. While the ariftocracy 
 was thus remaining ltationary, or left in a fluctuating ftate, . 
 according to the impulfe of caiual circumftances, the mo- 
 narchy, by receiving regular fupplies from every quarter, 
 was gradually riling to a greater height, and overflowing- 
 its ancient boundaries. 
 
 It mud, however, be admitted, that the period of Englifli 
 hiftory, now under confideration, is dift inguiihed by many 
 powerful efforts of the nobility to fupport their privileges ; 
 and that the crown did not rile to the fummit of dignity 
 and fplendor which it attained in the poffefhon of the 
 Tudor family, without furmounting a variety of obitaclcs 
 and without being frequently checked and retarded by 
 unfavourable occurrences. 
 
 There is c-v. on to believe, that, in England, 
 
 ! author':' - is more limited about the time i I 
 
 Edward
 
 Chap. V. FROM EDWARD I. TO HENRY VII. 345 
 Edward the Firft, than it was in France, during the reign 
 of Philip the Fair. Though the Englifh crown was con- 
 iiderably exalted upon the accerlion of William the Con- 
 queror, yet, under the fucceeding reigns, its progrefs was 
 apparently more How and gradual. The barons, by taking- 
 advantage of particular conjunctures, and, in fome cafes, 
 by proceeding to fuch extremities as threatened an imme- 
 diate revolution, obtained from the fovcreign the moil 
 important conceffions ; and, in little more than a c ury 
 and a half, no fewer than fix great charters were gran 
 fome of them repeatedly, by fix different princes. By 
 thefe charters the power of the crown does not, indeed, 
 feem to have been contracted within a narrower compafs 
 than immediately after the Norman conqueft ; but it was 
 undoubtedly reflrained in its advancement, and prevented 
 from riling to that height which it would otherwife have 
 attained. In France, on the other hand, the extenfion of 
 the royal prerogative appears, from the time of Hugh 
 Capet, to have fcarcely met with any oppofition. No for- 
 midable combination of the nobles, to withftand the in- 
 croachments of the kingly power ! No feries of charters, 
 as in England, relinquifhing the fuppofed ufurpations of 
 the crown, and confirming the privileges of the ariftocracy ! 
 The only deed of this nature, which we meet with in the 
 French hiftory, was near half a century pofterior to the 
 reign of Philip the Fair ; and was extorted from king John, 
 in confequence of the difficulties under which he laboured 
 from the invafion of his kingdom by the Englifh mo- 
 narch *. 
 
 To 
 
 * " The opportunity of the ftates general, aiTembleJ in the year 1 355," fays the 
 count de Boulainvilliers, " is favourable to my defign ; fince, upon their remonltrances, 
 
 Y V « king
 
 346 VIEW OF THE KINGLY POWER, Book II. 
 
 To what caufes may we afcribe this different fpirit of the 
 French from that of the Englifh nobility ? From what 
 circumftances were the former difpofed to look with fo 
 muvh tranquillity and indifference upon the exaltation of 
 the crown, as never, but upon one occafion, to exert them- 
 feives in reprefling it; while the latter difcovered fuch a 
 
 Jlant jealoufy of the fovereign, and made fo many and 
 fuch vigorous attempts to reitrain the progrefs of his au- 
 thority ? The importance of this queftion is obvious ; for 
 the efforts then made to refift. the ufurpations of the crown, 
 mav be regarded as the groundwork of thofe more precife 
 limitations of the prerogative, w T hich have been intro- 
 duced in a later period. 
 
 i. There occurs one remarkable difference between the 
 fituation of the French and the Englifh kings ; that in 
 France, the crown was, without interruption, tranfmitted 
 directly from father to fon, during a period of more than 
 three hundred years; that is, from the time of Hugh 
 Capet to that of Philip the Long ; including a feries of 
 eleven different reigns ; whereas in England, during the 
 fame period, we meet with no lefs than five deviations 
 from the lineal courfe of fucceffion ; and about one half 
 of the reicming princes, who, however their title might 
 be recognized by parliament, or their pretenfions might 
 
 • king John gave a declaration which irrevocably eftablifhed the right of thofe afiem- 
 
 u biles, and which, upon that account, might juftiy be compared to the great charter 
 
 anted to the Englijh by a prince of the fame name ; were it not unfortunately too 
 
 *' erue, that it has been buried in oblivion for above two hundred years pail, even fo 
 
 • there is no public infrrument of it remaining, except one copy preferved i;> 
 
 .-• king's library ; from whence I took that of which I (hall give you an extract in 
 
 of this letter." [Boulainv account of the ancient parliaments of France.] 
 
 nt given by this noble author, of that famous French charter, which in 
 
 ■..lance to the Eng UJh charter •above mentioned. 
 
 be
 
 Chap.V. FROM EDWARD I. TO HENRY VII. 347 
 be fupported by the prevailing party, were, according to 
 the common notions of that age, coniidured in the light of 
 ufurpers. In France, therefore, the crown parTed, with 
 perfect tranquillity, from one fovereign to another; and each 
 of thofe princes, when he mounted the throne, having no 
 competitor to obifruct his immediate pofTeflion, no flaw in 
 his title to weaken or diiturb the general prepofleflion in 
 his favour, fucceeded, of confequence, to all that hereditary 
 influence which had been accumulated by his predecefTors. 
 To render the fucceiTion fall more quiet and fecure, Hugh 
 Capet introduced the precaution, which had been in fome 
 meafure fuggefted by the Roman emperors, of crowning 
 his heir in his own life-time; and the fame practice was 
 uniformly obferved by fix of the fucceeding monarchs ; 
 that is, till the reign of Philip Auguftus, when, from the 
 fuperior liability of the throne, any ceremony of this kind 
 was become luperfhious. 
 
 In England, on the contrary, the fucceffion of thofe 
 princes, whofe title was ill founded or difputable, gave 
 always occafion to diffatis faction and complaint, if not to 
 direct oppohtion, and open refinance ; and, as the nobles 
 were invited to lay hold of thefe opportunities for main- 
 taining or extending their privileges, the king was obliged 
 to compound for the pofTeflion of fovereignty, by fub- 
 mitting to limitations in the exercife of it. The peribnal 
 authority of William the Conqueror, produced a fubmii- 
 fion to William Rufus, though in preference to his elder 
 brother R.obert, a man of a popular character ; but Henry 
 the Firfl, and Stephen, may be faid to have purchafed the 
 crown, by the refpective great charters which they granted 
 to their vafTals. With refpect to Henry the Second, it mult 
 be acknowledged, that, though he wos a foreigner, and 
 
 Y y 2 though
 
 34§ VIEW OF THE KINGLY POWER, Book II. 
 though he had in fome meafure fought his way to the 
 throne, yet in the end his acceflion was agreeable to the 
 whole nation. But after having fuffered a variety of dis- 
 appointments, and having been expofed to much uneafinefs 
 from the unnatural behaviour of his own children, he ap- 
 pears to have confirmed the two preceding charters, from a 
 difpofition to guard againft any future accident, by Secu- 
 ring the good-will of his people. The ufurpation of John, 
 accompanied with the murder of the lawful heir, had 
 excited againft that prince an indignation and reientment, 
 which his future conduct, inftead of removing, tended 
 only to confirm; and the conceflions which (he made to his 
 Subjects, were plainly extorted from him by the accumula- 
 tion of diftrefs and embarraffment under which he la- 
 boured. Henry the Third, though there were no objec- 
 tions to his title, inherited, while he was yet a minor, a 
 civil war from his father ; and afterwards, by his imbecillity 
 and imprudence, was involved in calamities, from which 
 nothing lefs than the good fortune, and the great abilities, 
 of his Son Edward the Firft could have extricated him. 
 The charters granted by the former of thofe two princes 
 were evidently the fruit of thele difficulties *. 
 
 2. Another circumftance which, in that early period, 
 produced a peculiar exaltation of the monarchy in] France, 
 was the forfeiture of Normandy by the king of Eng- 
 land, and the reduction of that extenfive country into an 
 immediate fief of the French crown. This forfeiture, 
 though the particular time when it happened might be 
 accidental, was to be expected from the Situation of 
 that country, with refpect to the king of England, the 
 
 * It appears, that one of the charters granted by Henry III. was lhbfcribeil by his 
 fon prince Edward, 13Uckflonc, Hiftory of the Great Charters. 
 
 4 immediate
 
 Chap. V. FROM EDWARD I. TO HENRT VII. 349 
 immediate fuperior, and to the king of France, the 
 lord paramount. The effect of fo great an acceflion of 
 revenue and influence to the French crown was vifible; 
 and Philip Auguftus, in whofe reign it happened, became 
 evidently pofTefTed of much greater authority than his 
 predecefTors. 
 
 No acquifition of equal importance was made to the 
 crown of England at this early period ; for the fettle ment 
 which was effected in Ireland, by Henry the Second, and 
 which hiltorians have been pleated to dignify with the 
 fplendid appellation of a conquer!:, was productive neither 
 of wealth nor of authority to the Englilfi monarch ; nor 
 does it appear, for feveral centuries, to have yielded any 
 advantage whatever. 
 
 3. The infular fituation of Britain may be confidered as 
 a general caufe of the flower advancement of the royal 
 prerogative in England, than is to be found in the greater 
 part of the modern kingdoms upon the continent of Eu- 
 rope. As, in the infancy of government, the kingly office 
 arofe from the neceflity of having a general to command 
 the united forces of the ftate, it was to be expected, that 
 the oftener any fovereign had occafion to act in this capa- 
 city, his authority and dignity would fooner arrive at ma- 
 turity. During the time of a military enterprize, when 
 the national forces, the great body of the people, were 
 placed under the immediate direction of the king, they 
 acquired habits of fubmitting to his orders ; their admira- 
 tion was excited by his eminent ffation or diftinguifhed 
 prowcfs ; and they were taught by experience to look up to 
 him as the principal fource of honours and preferment*. 
 \n times of peace, on the contrary, when the members of 
 different baronies, or tribes, had retired to their feveral 
 
 places
 
 350 VIEW OF THE KINGLY POWER, Book IL 
 
 places of abode, they were, in a great meafure, withdrawn 
 from the influence of the king; and were accuftomed to 
 no other jurifdiction, or authority, but that of the baron or 
 chief by whom they were protected. Even after the feu- 
 dal governments had attained ibme degree of regularity, 
 and when the fovereign had acquired numerous branches 
 of civil power, it flill was in the field that his pre-eminence 
 attracted fuperior attention, and that he had thebeft means 
 of procuring popularity. 
 
 It feems reafonable to conclude, therefore, that, upon 
 the continent of Europe, -where every fovereign found his 
 dominions furrounded by bordering nations, whom he was 
 frequently tempted to invade, and againfl whom he was 
 obliged to be conftantly upon his guard, the moft ample 
 icope was afforded him for difplaying thofe talents, and for 
 availing himfelf of thofe iituations, which were belt cal- 
 culated for extending his authority. In England, on the 
 other hand ; a country in which there w r ere fewer induce- 
 ments to undertake a national war, and in which the mili- 
 tary operations of the fovereign were chiefly employed in 
 quelling the disturbances excited by his rebehious barons, 
 or in repelling the inroads of the Scots, which were not of 
 much more importance than the infurrection of particular 
 barons ; he had fewer opportunities of exciting a national 
 fpirit in his favour ; and confequently found it more diffi- 
 cult to reduce the nobility into a ftate of dependence. 
 
 The profperous reign of Edward the Firft, had undoubt- 
 edly a confiderable effect in confirming and exalting the 
 prerogative. This prince was equally diftinguiihed by his 
 policy in the cabinet, and by his activity, courage, and 
 conduct, in the field ; at the fame time that he does not 
 appear, by any fcrupulous regard to the principles of ho- 
 nour
 
 Chap. V. FROM EDWARD I. TO HENRY VII. 351 
 nour or juftice, to have been, on any occafion, prevented 
 from directing thofe talents to the purfuit of his own 
 grandeur or emolument. By the conqueft of Wales he not 
 only gained an enlargement of dominion, but freed himfelf 
 from the vexatious depredations of a troublefome neigh- 
 bour. Had he lived fomewhat longer, it is more than pro- 
 bable that he would alfo have compleated the entire con- 
 queft 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 
 productive of fuch advantages, to both countries, as might 
 in lbme meafure have atoned for the perfidy and injuftice 
 by which it was accompli (Tied. 
 
 The reign of Edward the Second was no lefs adverfe to 
 the influence of the crown, than that of his father had 
 been favourable to it. By the total deficiency of that 
 prince, in vigour and military capacity, he foon loft all the 
 acquiiitions which his father had made in Scotland ; and 
 faw the independence of that kingdom completely re-eita- 
 blifhed. For the internal adminiitration of government 
 he was equally difqualified. The nobility of that age were,, 
 with difficulty, reconciled to the dignity and pre-eminence 
 of the fovereign ; but they could not endure that any 
 perfon of inferior condition mould, by the favour of the 
 monarch, be exalted over them, and be inverted with the 
 exercife of the prerogative. The extreme facility of Ed- 
 ward fubjecled him, however, to the conftant dominion of 
 favourite-, in fupporting whom he excited the indignation 
 of the nobles; and the queen, whole aifections had been 
 leduced by Mortimer, and who fecms to have thought her- 
 felf better entitled than anv other perfon to govern her 
 hufband, having joined the malcontents, the king was for- 
 mally 
 3
 
 3$2 VIEW OF THE KINGLY POWER, Book II. 
 
 in all v depofed by a meeting of parliament ; was kept for 
 fome time in confinement ; and at length barbarouily mur- 
 dered. 3Jhe fate of this unhappy prince cannot fail to 
 move companion, as it proceeded from the weaknefs of his 
 imderftanding, and even from the gentlenefs of his difpofi- 
 tion, more than from ambition, or any paffion for arbitrary 
 power : while it afforded a falutary leffon to his fuccefTors, 
 by exhibiting a ftriking example of the authority of parlia- 
 ment, to controul, and even to punifh, the fovereign. 
 
 The fame power of the nobles, which had depofed Ed- 
 ward the Second, advanced to the throne his fon Edward the 
 Third, while yet a minor. The early indications of genius, 
 and of a martial diipolition, difcovered by this prince, difpel- 
 led very quickly the gloom which had for fome time hung 
 over the nation ; and gave a total change to the afpect of 
 public affairs. He foon freed himlelf from the direction of 
 the queen his mother; and put to death her favourite Mor- 
 timer, with little ceremony, and without much regard to 
 the forms of juftice. His firfl military enterprize was di- 
 rected to the recovery of what his father had loft in Scot- 
 land ; in which, from the weak and diforderly ftate of that 
 country, he met with little obftruction ; but he was pre- 
 vented from the execution of this plan, by another object, 
 which was thought of much greater importance, and 
 which, during the remainder of his reign, ingroffed his 
 whole attention. This was his preteniion, in right of his 
 mother, to the crown of France; a claim which, though 
 founded neither in juftice nor expediency, was yet fufli- 
 ^ icntly plaufible to palliate that love of extenfive dominion, 
 with which not only princes, but even the people in all 
 jes and countries, have been almoft conltantly intoxicated. 
 The conduct of Edward, in aliening this claim, was pro- 
 bably
 
 Chap. V. FROM EDWARD I. TO HENRY VII. 353 
 I) ably fuch as every monarch of fpirit, in that age, mult 
 have held, and in {b doing was fure of meeting with the 
 general approbation of his fubjects. As the undertaking 
 
 therefore, was crowned with unexpected and amazing fuo 
 cefs, it is no wonder that the fplendid victories obtained by 
 this king, and by his Ion the Black Prince, who acted fo 
 confpicuous a part in thole fcenes, procured them the ad- 
 miration as well as the affections of the whole Englifh na- 
 tion. While theie two princes flattered the national vanity, 
 by the profpect of conquering fo great a kingdom as France, 
 they displayed all the talents and virtues which, in thofe 
 times, were fuppofed to enter into the competition of the 
 molt complete military character. Even at this day, when 
 we contemplate the gallantry of the Black Prince, and the 
 humanity and generality w T ith which he treated the king 
 of France, his prifoner, we mult acknowledge that they 
 are furparTed by nothing either in ancient or modern ltorv. 
 Without detracting from the merit of this diitinguiihed 
 perfonage, we are led at the fame time to conceive an ex- 
 alted idea of the inftitutions and manners of chivalry, which, 
 in fo rude a ftate of focietv, were capable, among people of 
 the better fort, of promoting fo much delicacy of fenti- 
 ment, and of encouraging any individual to form Inch a 
 perfect model of propriety and refinement. 
 
 In the courie of his long war againlt France, the king 
 obtained, more and more, an afcendant over thofe nobles 
 who followed his banner, and were i mitten by an univerfal 
 enthufiafm to diftinguifh themfelvcs in that illultrious field 
 of national glory. His adminillration at home was equally 
 prudent and vigorous, and calculated to reftrain injuftiee, 
 as well as to command refpect. Though not difpofed to 
 relinquish any part of his prerogative, he appears to have 
 
 '/: Z had
 
 354 VIEW OF THE KINGLY POWER, Book II. 
 
 had a real regard for the ancient conititution ; and though 
 he acquired greater authority than was rofTerTed by the 
 former kings of England, he confirmed, on many occauons, 
 the great charters of his predeceffors. He was under the 
 neceifity of making large and frequent demands of money 
 from his fubjecls ; but, as he endeavoured, in moft cafes, to 
 procure it by the concurrence of parliament, and as the 
 nation entered heartily into the views which gave occafion 
 to fo much expence, the fupplies which he required were 
 commonly furnifhed without any complaint. His nume- 
 rous applications to the national affembly contributed, be- 
 fides, to afcertain its powers and privileges, as well as to 
 eftablifh and reduce into order the forms and method of 
 its procedure. 
 
 It merits attention, that, notwithstanding 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 their falling under the 
 government eftablifhed in that country; and, to remove this 
 apprehenfion, a ftatute was made, in which the king ex- 
 prefsly declares, that the realm and people of England 
 " Hi all not, in any time to come, be put in fubjeclion nor 
 " in obeifance of us, nor of our heirs nor fuccefTors, as 
 * kings of France, nor be fubject nor obedient, but mall 
 " be free and quit of all manner of fubjection and obeifance 
 " aforefaid, 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 Englifh ; and were afraid that their monarch, if 
 
 * 14 Edw. HI. 
 
 he
 
 Chap. V. FROM EDWARD I. TO HENRY VII. 355 
 he came to the pofTeflion of that kingdom, might be led 
 to exercife over them a power inconfiitent with the confti- 
 tution of England. 
 
 The reign of Richard the Second is, in many refpects, 
 a repetition of the fame difgufting and melancholy fcenes, 
 which that of his great grandfather, Edward the Second, 
 had exhibited. In each of them we behold a young prince 
 afcending the throne with great advantages; regarded by 
 the nation with a partiality and affection derived from pa- 
 ternal connections; incurring the general contempt and 
 indignation, by his folly and mifconducl:; governed, through 
 the whole courfe of his adminiftration, by favourites • de- 
 throned at length by parliament, imprifoned, and brought 
 to a tragical end. But the occurrences, in the time of Ri- 
 chard, were accompanied with circumftances which, in a 
 review of the Englifh government, are more particularly 
 worthy of obfervation. 
 
 This reign affords a memorable example of the interfe- 
 rence of parliament for the removal of the king's miniflers. 
 To the addrefs which was prefented for this purpofe, Ri- 
 chard is faid to have anfwered, that, at the defire of parlia- 
 ment^ he would not remove the meanejl fcullion of his kitchen. 
 Having occaiion for a fubfidy, however, which could not 
 otherwife be obtained, he was obliged to comply with their 
 demand : the earl of Suffolk, the chancellor, was not only 
 removed from his office, but impeached, and found guilty 
 of mifdemeanours ; an inquiry was ordered into the difpo- 
 ial of the public revenue ; and a commillion was granted 
 by parliament, to fourteen perfons, for the fpace of a 
 twelvemonth, to concur with the king in the adminiftration. 
 of government. 
 
 Zz 2 To
 
 $$6 VIEW OF THE KINGLY POWER, Book IL 
 
 To fheie regulations Richard ftibmitted no longer than 
 till he thought himfelf in a condition to oppofe them; and 
 it loon became evident, that he had formed a refolution of 
 extending his prerogative beyond its ancient limits. For 
 this purpofe he confulted with the principal judges and 
 lawyers of the kingdom ; from whom he found no diffi- 
 culty in procuring an unanimous opinion agreeable to his 
 withes. Whatever may be the virtue of individuals, it is 
 not to be expected that a body of men, fprung very fre- 
 quently from a low origin; bred up in the habits of a 
 gainful profeflion ; whofe views muft be continually di- 
 rected towards preferment, and the emoluments of office; 
 foldiers of fortune, and whofe fortune depends chiefly 
 upon the favour of the crown; will be difpofed to ftand 
 forth in critical times, and expofe themfelves to much 
 hazard in maintaining the rights of the people. 
 
 This defign was fruftrated by the vigour and activity of 
 the nobles, who levied a great army, and defeated that of 
 the crown. The king's miniflers made their efcape ; but in 
 their abfence were impeached, and their eftates confifcated. 
 Two pcrfons of note, one of whom was the famous Trefi- 
 lian, chief juftice of the king's bench, who happened to 
 be caught, were tried and executed. The reft of the 
 judges, who had concurred in the opinions above-mention- 
 ed, were banifhed to Ireland. 
 
 The behaviour of the king, in this fituation, was abject 
 and mean, in proportion to his former haughtinefs. At 
 an interview with the nobles, he is laid to have anfwered 
 their reproaches with a flood of tears. But Richard was 
 poflefled of a high degree of obltinacy ; a quality which 
 equently connected with inferiority of undcritanding : 
 
 whether
 
 Chap. V. FROM EDWARD I. TO HENRY VII. 357 
 whether it be that the fame ftupidity, which leads men 
 into error, puts them out of the reach of conviction by rca- 
 foning; or that, in proportion as they are incapable of exa- 
 mining objects on every fide, they are commonly felf-con- 
 ceited 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 eaiieft me- 
 thod of carrying his views into execution, was by dividing 
 that alfembly, and in particular, by procuring a majority 
 in the houie of commons. We accordingly find, that, by 
 adhering invariably to the fame plan ; by directing the no- 
 mination of fheriffs, and of the principal magiftrates of 
 boroughs ; and by employing the intereft and addrefs of ail 
 thofe different officers in the election and return of repre- 
 fentatives, this objeel was, in a few years, entirely accom- 
 plifhed. The king now ventured to avow his pretentions 
 to abfolute power; and in a meeting of parliament, in the 
 year 1397, the opinions of the judges, which had been 
 formerly condemned, w^ere approved of and ratified; the 
 chief heads of the ariifocracy were put to death, or banifh- 
 ed ; the duke of Glocefter, the king's uncle r was privately 
 murdered ; and, to luperfede the necefhty of calling the 
 national affembly for the future, a committee was appoint- 
 ed, confifting of twelve peers, and fix commoners, upon 
 whom the authority of both houfes was devolved. 
 
 This expedient of the crown, to pack the houfe of 
 commons, is the fiift of the kind that occurs in our hiifor\ ;. 
 and it mull be cotifidered as forming a remarkable xra 
 in the Britifh conftitution. It (hows, in the firft place, the 
 limited nature of our ancient goverment ; fince, notwith- 
 standing the late advances of the regal authority, the king 
 
 in
 
 353 VIEW OF THE KINGLY POWER, Book II. 
 
 in order to carry his meafures, was obliged to employ 
 luch nidi reel means for procuring the concurrence of 
 parliament. 
 
 It proves alfo, that political confideration was not, at 
 this period, confined to the greater nobility ; but that men 
 of fmall property, and of inferior condition, the repre- 
 fentatives of counties and boroughs, were pofTefTed of fo 
 much intereil as enabled them, by throwing their weight 
 into the icale of the fovereign, to beflow upon him an 
 entire afcendant over the national council. 
 
 From the confequences which followed this undue in- 
 fluence, acquired by the king over the houfe of commons, 
 we may plainly perceive that a fpirit of liberty, or, if you 
 will, of oppofition to the tyranny of the crown, was even 
 then diffufed, in fome meafure, over the nation. Finding 
 that he was now matter of the refolutions of parliament, 
 Richard iuppofed 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 betrayed by their own repre- 
 fentatives ; their indignation and refentment were excited, 
 and they became ripe for a general infurrec~tion. The 
 leaders of the malcontents call: their eyes upon the duke of 
 Hereford, the elder! fon of the duke of Lancafter ; who, 
 by the injuftice of the king, had been fent into exile, and 
 afterwards excluded from the inheritance of his father's 
 large pofTefTions. This nobleman, the molt diftinguiihed 
 by his rank and accomplifhments, was invited to put him- 
 felf at the head of the confpiracy, for the purpofe of 
 redrefling his own private injuries, no lefs than of deliver- 
 ing the nation from tyranny and opprefhon. Richard, 
 mean while, went over to Ireland, in order to quel] the 
 
 diitur bailees 
 a
 
 Chap. V. FROM EDWARD I. TO HENRY VII. 359 
 difturbances of that country; and thus gave to his ene- 
 mies the opportunity which they wanted of executing 
 their defigns. The general fentiments of the people were 
 made abundantly evident by the events which followed. 
 The duke of Hereford landed at Ravenfpur, in Yorkfhire, 
 with no more than eighty attendants ; but in a fhort time 
 found himfelf at the head of an army amounting to iixty 
 thoufand. The duke of York, on the other hand, who 
 had been left regent of the kingdom, aiTembled a body of 
 troops to the number of forty thoufand; but thefe, from 
 diiafFe£tion, were unwilling to fight ; and being therefore 
 difbanded, they immediately joined the enemy. Another 
 army having been tranfported by the king from Ireland, 
 were infected with the fame fpirit ; and the greater part 
 of them deferted the royal ftandard. 
 
 Richard, abandoned by the whole nation, was forced to 
 fubferibe an inflrument of refignation^ in which he ac- 
 knowledged himfelf unworthy to govern the kingdom. An 
 accufation for mifbehaviour, confifting of no lefs than 
 thirty-five articles, was preferred againft him to parlia- 
 ment, and univerfally 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 obfervation of an 
 eminent writer, " that thefe extremities fell upon Richard 
 u the Second, at a time when every thing feemed to con- 
 " tribute to his fupport, in the exercile of that arbitrary 
 " power which he had affumed. Thole whom he had. 
 " molt reafon to fear, were removed, either by violent death 
 " or baniihment ; and others were fecured in his intereft 
 u by places, or favours at court. The great offices of the 
 
 u crown*,
 
 < 6o VIEW OF THE KItfGLY POWER, Book II. 
 
 " crown, and the magiftracy of the whole kingdom, were 
 u put into fiich hands as were fit for his defigns ; beiides 
 " which, he had a parliament entirely at his devotion ; but 
 4i all theie advantageous circumitances lerved only to prove, 
 u that a prince can have no real fecurity againft the juft 
 " refenrmci.ts of an injured and exafperated nation ; for, in 
 " fuch governments as that of England, all endeavours 
 " nfed by the king to make himfelf abfolute, arc but fo 
 u many iteps towards his own downfall.'* 
 
 The right of Henry the Fourth to the crown of Eng- 
 land was derived from the authority of parliament, con- 
 firmed by the voice of the whole kingdom. No tranfaction 
 of the kind was ever compleatcd with greater unanimity. 
 But although, in that age, the people gave way to their 
 natural feelings in dethroning an arbitrary and tyrannical 
 prince, they were probably little accuflomed to reafon upon 
 thofe philofophical principles, by which, in cafes of extreme 
 neceflity, the right of doing lb may be vindicated. Even 
 fo late as the revolution, in the year 1688, when the necef- 
 lity and propriety of the fettlement, which then took place, 
 was univerfally understood, the parliament were unwilling 
 to avow, in exprefs terms, that power which they were 
 determined to exercife ; they had recourfe to childiih. eva- 
 sions, and fictitious fuppolitions ; and the abfurd pretext of 
 an abdication was employed to cover the real depofition of 
 the fovereign. It is not furprifing, therefore, that, in the - 
 days of Richard the Second, the Speculative opinions of 
 men, concerning points of this nature, were loofe and 
 
 fluctuating. Henry appears to have been fenfible of this; 
 
 I'ld founds Ids claim to the throne upon three different 
 
 • Remarks upon the Pliftory of England by H. OlJcafllc. 
 
 4 circumftances ;
 
 u 
 
 Chap. V. FROM EDWARD I. TO HENRY VII. &x 
 circumftances ; upon the mal-adminiftration of Richard ; 
 upon the right of conquer* ; and upon a popular, though 
 probably a groundlefs tradition, that, by his mother, he 
 was descended from Henry the Third, by an elder brother 
 of Edward the Firft, who, on account of his peribnal de- 
 formity, had been excluded from the fucceflion to the 
 crown. Thefe particulars, however, are jumbled together, 
 in a manner calculated to avoid a minute inveftigation. 
 " In the name of Fadher, Son, and Holy Ghoft," lays he, 
 " I Henry of Lancafler challenge this rewme of Yng- 
 " lande, and the crown, with all membres and appurte- 
 u nances ; als I that am defcendit by right line of the blode, 
 coming fro the gude king Henry therde, and throge that 
 right that God of his grace hath fent me, with helpe of 
 kyn, and of my friends, to recover it ; the which rewme 
 " was in poynt to be ondone by defaut of governance, and 
 " ondoying of the gude lawes." 
 
 As no credit feems due to this connection with Henry 
 the Third ; fo it muft be admitted, that, luppofing it necef- 
 fary to fet afide Richard the Second, for defaut of gover- 
 nance^ Henry the Fourth was not, according to the efta- 
 blifhed rules of fucceflion, the next heir of the crown. He 
 was the grandfon of Edward the Third, by the duke of 
 Lancafler, third fon of that monarch. But the duke of 
 Clarence, Edward's iecond fon, had left a daughter, who 
 was married into the houfe of Mortimer, and whole grand- 
 fon, the earl of Marche, now a boy of ieven years of age, 
 was the reprefentative of that family. 
 
 In examining this point, however, it ought to be re- 
 membered, that by the rules of fucceflion eftablifhed among 
 rude and warlike nations, what is called the right of repre- 
 
 3 A fentation
 
 362, VIEW OF THE KINGLY POWER, Book II. 
 
 Jentation is unknown, and the nearer defcendants of a 
 family are frequently preferred to the more diftant; as 
 alfo, that, upon iimilar principles, female relations are 
 trivially excluded by the males. According to the early 
 laws of almoit 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 man- 
 ners, had undoubtedly been gaining ground, before this 
 competition became an object of attention ; but we muft 
 not fuppole that it had yet become univerfal, or had ac- 
 quired luch a degree of liability, as the peaceful fitua- 
 tion, and the fcientific views of a polifhed age, have fmce 
 bellowed upon it. 
 
 But whatever might be £he opinions of parliament, or 
 of the people, upon this point, the preference of Henry to 
 any other competitor was, at this time, a matter of the 
 higheft expediency, if not of abfolute neceffity. To de- 
 throne a prince, who had for years been eitablifhing a fyf- 
 tem of abfolute power, and who had given proofs of his 
 violent and ianguinary difpofition, was a meafure no lefs 
 dangerous than it was difficult ; and the fuccefsful execu- 
 tion of it could only be expected under a leader of great 
 popularity, weight, and abilities. Henry appears to have 
 been the only perfon in the kingdom qualified for con- 
 ducting fuch an enterprife, and likely to fecure the pub- 
 lic tranquillity under the new eftablifhment. To depofe 
 Richard, and at the fame time to commit the reins of 
 government to a perfon who, in that extraordinary exi- 
 n' e, was manifeftly incapable of holding them, would 
 have been to attempt the abolition of defpotifm by fub- 
 
 ftituting
 
 Chap. \ . FROM EDWARD 1. TO HENRY VII. 3G3 
 itituting anarchy in its place ; and wantonly to introduce a 
 revolution at the hazard of much bloodfhed and injuirice, 
 but with no reafonable proipect that it could be productive 
 of any lafling advantages. 
 
 Henry the Fourth enjoyed, however, but little tran- 
 quillity in the pofTeflion of that fovereign power which 
 was thus conferred upon him. The great lords, who had 
 taken a diftinguimed part in placing him on the throne, 
 and who probably over-rated their fervices, became diflatif- 
 fled with that fhare of the royal favour and confidence 
 which he thought proper to bellow upon them ; and were 
 difpofed to believe they might eafily pull down that fabric 
 which they themfelves had erected. The perfevering acti- 
 vity, 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 ; although it muft be admitted, that 
 his uncommon talents, which were uniformly exerted 
 for this purpofe, during a reign of thirteen years, were 
 hardly fufficient to recover the prerogative from the 
 ihock which it had received by the depofition of his 
 predecefTor. 
 
 The iplendid character of Henry the Fifth ; his courage 
 nnd magnanimity ; his clemency, moderation, and huma- 
 nity ; his engaging appearance and deportment ; his affa- 
 bility, addrels, and popular manners ; together with his 
 renewal of the claim to the kingdom of France, and his 
 invafion of that country, accompanied with moll aflonilh- 
 ing fuccefs ; thefe circumflances revived the flattering and 
 delufive profpects entertained by the Englilh in the days 
 ef Edward the Third ; and, by feizing the national emhu- 
 
 3 A 2 fiafm,
 
 364 VIEW OF THE KINGLY POWER, Book II. 
 fiafm, reinstated the crown in that authority and dignity 
 which it had formerly maintained. 
 
 But the death of that monarch produced a fad reverfe in 
 the flate of the kingdom. By the long minority of Henry 
 the Sixth, and his total incapacity, after he came to be of 
 age ; by the diiafters which befel the Englifh in profecut- 
 ing the war with France; and by their entire expulfion 
 from that country, without the ieaft hope of recovering it ; 
 the people were filled with difcontent ; were infpired with 
 contempt of their fovereign ; and of courfe were difpofed 
 to liften to any objections agahrft the title by which his 
 family had obtained the crown. In the preceding reign, 
 thofe objections were held to be of fo little moment, that 
 ilenrv the Fifth diicovered no jealoufy or apprehenfion 
 of the earl of Marche, the lineal heir of Richard ; and 
 tli ere even fubfifled between them an intercourfe of mutual 
 confidence and friendfhip ; a circumftance which reflects 
 great honour both upon the king and upon that nobleman. 
 '\s the right of the governing family had been confirmed 
 by a poffetfion of three iucceflive reigns, it would not, 
 in .ill probability have now been called in queftion, had 
 not the weaknefs and misfortunes of the prefent admi- 
 niftration deitroyed all refpetf: to the government, and 
 excited uncommon diliatisfaclion. 
 
 Upon the death of the earl of Marche without heirs male* 
 the duke of York, in right of his mother, was now be- 
 
 ne the reprefentative of that family; and from the 
 tenfive property poflefled by this nobleman, together 
 
 h his powerful connections, in confequence of various 
 alliances among the principal nobility, he found himfelf 
 
 . condition to affert that claim to the crown, which bad. 
 
 been
 
 Chap. V. FROM EDWARD I. TO HENRY VII. 365 
 been over-ruled by the prevailing afcendant of the houfe 
 of Lancafter. It is needlefs to enter into particulars 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 with 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 
 was trampled under foot, was extremely unfavourable 
 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 
 difputes, leagued together in oppofition to the king ; but, 
 by efpoufing the intereft of different candidates, were led 
 to employ their whole force againft one another. Though 
 the crown, therefore, was undoubtedly weakened, the no- 
 bility did not receive proportional ftrength ; and the ten- 
 dency of this melancholy fituation was not fo much to 
 increafe the ariftocracy, as to exhauft and impoverifh the 
 nation, and to deftroy the effect of all fubordination and 
 government* 
 
 When we confider, in general, the ftate of the EHglilh 
 conftitution, from the acceflion of Edward the Firft, to 
 that of Henry the Seventh, we muft find fome difficulty 
 to afcertain the alterations produced in the extent of the 
 regal authority. That the powers of the monarch were, 
 upon the whole, making advances during this period, it 
 mould feem unreafonable to doubt ; but this progrefs ap- 
 pears to have been flow, and frequently interrupted. ]f, 
 in the vigorous and fuccefsful reigns of Edward the Firft, 
 
 of
 
 366 VIEW Ol i liL K)XGL\ [\; j $cc. Book II. 
 
 or' Edward the Third, and of Iknry the Fifth, the icep- 
 tre Was remarkably exalted, it was at lcail equally deprefled 
 by the feeble and unfortunate adminircration of Edward 
 the Second, of Richard the Second, and of Henry the 
 Sixth. By what circumitances the prerogative acquired 
 additional ftrength, under the princes of the Tudor Tamil v 5 
 we iliall afterwards have occaiion to examine. 
 
 (MA 1\
 
 Chap, VI. HISTORY OF THE PARLIAMENT, Sec. 367 
 
 CHAP. VI. 
 
 ' Hijlory of the Parliament in the fame Period. 
 
 AMONG the important fubjects of inquiry, which 
 diftinguifh the period of Englifh hiftory, from the 
 acceffion of Edward the Firft to that of Henry the Se- 
 venth, our firft attention is naturally directed to the changes 
 which affected the Iegiflative power ;. by the introduction 
 of reprefentatives into parliament ; by the divifion of that 
 afTembly into two houfes, attended with the appropriation 
 of peculiar powers to each of them; and laftly, by the 
 fubfequent regulations, with refpect to the right of elect- 
 ing members of the national council. Thefe particulars 
 appear to be of fuch magnitude, as to deferve a feparate 
 examination. 
 
 Sect. I. The Introduction of the Reprefentatives of Counties 
 and Boroughs into Parliament. 
 
 THE parliament of England, from the time of William 
 the Conqueror, was compofed, as I formerly took notice, 
 of all the immediate vafFals of the crown, the only part ot 
 the inhabitants that, according to the feudal conftitution, 
 could be admitted into the Iegiflative aiTembly. As the 
 Englifh nobility had accumulated extenfive landed pro- 
 perty, towards the latter part of the Anglo-Saxon govern- 
 8 ment ;
 
 3 6S HISTORY OF THE PARLIAMENT, Book II. 
 
 ment ; as yet larger territories were acquired by many of 
 thofe Norman barons who fettled in England at the time 
 of the conquer! ; and as the converfion of allodial into 
 feudal eftatcs, under the crown, occafioned no diminution 
 in the pofTeflions of individuals ; the original members of 
 parliament, muft have been, for the moft part, men of 
 great power, and in very opulent circumflances. Of this 
 we can have no doubt, when it is confidered that, in 
 the reign of William the Firft, the vafTals of the crown, 
 did not amount to more than fix hundred, and that, 
 exclusive of the royal demefne, the whole land of the 
 kingdom, in property or fuperiority, was divided among 
 lb fmall 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 oppor- 
 tunity of afferting their privileges, of courting preferment, 
 or of difplaying their influence and magnificence. But 
 in a long courfe of time, the members of that afTembly 
 were fubjected to great revolutions ; their property was 
 frequently difmembered, and fplit into fmaller divifions; 
 their number was thus greatly increafed ; while the 
 confideration and rank of individuals were proportion- 
 ably impaired ; and many of thofe who had appeared in 
 eminent ftations were reduced to poverty and obfeurity. 
 Thefe changes proceeded from the concurrence chiefly 
 of three different caufes. 
 
 i. During that continual jealoufy between the king and 
 the nobles, and that unremitting ftruggle for power, which 
 arofe from the nature of the Englifh conftitution, it was 
 the conftant aim of the crown, from a confeioufnefs of in- 
 feriority in force, to employ every artifice or ftratagem for 
 undermining the influence of the ariftocracy. But no mea- 
 
 fure
 
 Chap.VI. FROM EDWARD I. TO HENRY VII. 369 
 
 fare could be more effectual for this purpofc, than to di- 
 vide and difmember the overgrown eitates of the nobles ; 
 for the fame wealth, it is evident, which became formida- 
 ble in the hands of one man, would be of no iignificance 
 when fcattered among twenty. As the frequent infurrections 
 and diforders, which prevailed in the country, were pro- 
 ductive of numberlefs forfeitures, thev afforded the kine 
 opportunities of feizing the property of thofe barons who 
 had become obnoxious to him, and of either annexing it to 
 the crown or difpofing of it at pleafure. In this manner a 
 confiderable part of the land in the kingdom, during the 
 courfe of a century or two, pafTed through the hands of 
 the fovereign, and, being diftributed in iuch parcels as 
 coincided with his views of policy, gave rife to a multipli- 
 city of petty proprietors, from wiiofe exertions he had 
 no reafon to fear much oppofltion to the progrefs of his 
 authority. 
 
 2. Another circumftance, which contributed fhill more 
 effectually, though perhaps more flowly and gradually, to 
 diminifh the eftates of the crown-vafTals, was the advance- 
 ment of arts and manufactures. 
 
 The irruption of the Gothic nations into the Roman 
 empire ; the flruggles which took place during their con- 
 queft of the different provinces; the fubfequent invafions 
 carried on by new fwarms of the fame people, againft the 
 ftates erected by their predeceffors ; the violent conyulfions 
 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 profefhons. The rude and barbarous 
 manners of the conquerors were, at the lame time, com- 
 municated to thofe countries which fell under their domi- 
 
 3 B nion ;
 
 3/0 HISTORY OF THE PARLIAMENT, Book II. 
 
 nion ; and, the fruits of their former culture and civiliza- 
 tion being gradually loft, the inhabitants were at length 
 funk in univerfal ignorance and barbarifm. 
 
 When thefe diforders had rifen to a certain pitch, the 
 countries which had fo long poured out their inhabitants, 
 to difhirb the peace of Europe, put a flop to their depre- 
 dations. The Northern hive, it has been faid, was then 
 exhausted. Thole countries, however, were in reality fo 
 far from being drained of inhabitants, that they had in- 
 creafed in population. But they had become a little more 
 civilized ; and, confequently, had lefs inclination to roam in 
 queit. of diitant fettlements, or to procure fubfiffence by 
 the plunder of nations who were now in abetter condition 
 to withftand them. 
 
 The greater tranquillity which was thenceforward en- 
 jo ved in the dates that had been formed upon the ruins of 
 the Roman empire, gave the people more lei lure and en- 
 couragement to introduce regulations for fecuring * pro- 
 perty, for preventing mutual injuries, and for promoting 
 their internal prosperity. That original difpolition to better 
 their circumftances, implanted by nature in mankind, ex- 
 cited them toprofecute thofe different employments which 
 procure the comforts of life, and gave rife to various and 
 fucccilive improvements. This progrefs was more or leis 
 accelerated, in different countries, according as their iitua- 
 tion was more favourable to navigation and commerce ; the 
 firff attention of every people being ufually turned to the 
 arts moft eflential to fubiiitence, and, in proportion to the 
 advancement of thefe, being followed by fuch as are fub- 
 fervient to conveniency, or to luxury and amufement. The 
 eleventh and twelfth centuries have been marked by hiifo- 
 lians as prefenting, in modern times, the firft dawn of 
 
 knowledge
 
 Chap. VI. FROM EDWARD I. TO HENRY VII. 371 
 knowledge and literature to the Weftern part of Europe; 
 and from this period we begin to trace the rude footfteps 
 of manufactures, in Italy, hi France, and in the Ne- 
 therlands. 
 
 The communication of the Normans with England, in 
 the reign of Edward the ConfefTor, which began in 1041, 
 and ftill more from that of William the Conqueror, con- 
 tributed to fpread, in this iiland, the improvements which 
 had made a quicker progrefs upon the continent : the com- 
 mon arts of life were now more and more cultivated ; 
 tradelmen and mercantile people were gradually multiplied ; 
 foreign artificers, who had made proficiency in various 
 branches of manufacture, came and fettled in England; 
 and particular towns, upon the coafts of the fea, or of 
 navigable rivers, or which happened to be otherwife ad- 
 vantageouily fituated, began to extend their commerce. 
 
 This alteration in the circumftances of fociety, which 
 became more and more confpicuous through the reigns of 
 the feveral princes of the Norman and Plantagenet race, 
 was productive, as we may eafily fuppofe, of a correfpon- 
 dent variation of manners. The proprietors of land, for 
 whofe benefit the new improvements were chieflv intended, 
 endeavoured to render their fituation more comfortable, by 
 purchafing thofe conveniencies which were now introdu- 
 ced ; their ancient plainnefs and limplicity, with refpecf to 
 the accommodations of life, were more and more deierted ; 
 a mode of living more expeniive, and fomewhat more ele- 
 gant, began to take place ; and even men of fmaller fortunes 
 were tempted, in this, as well as in moft other particulars, 
 to follow the example of their fuperiors. By an increafe 
 of their annual cxpence, without any addition to their an- 
 nual revenue, many individuals, therefore, were laid under 
 
 3 B 2 difficulties ;
 
 372 HISTORY OF THE PARLIAMENT, Book II. 
 
 difficulties ; found it necefiary to contract debts ; and, being 
 fubjeclied to incumbrances, were at lad obliged to difmem- 
 ber and alienate their creates. 
 
 To this general caufe of alienation, we may add the 
 epidemical madnels of the crufades, by which many per- 
 sons were induced to fell or mortgage their pofTeflions, 
 that they might put themfelves in a condition for bear- 
 ing a part in thofe unproiperous and expenfive expe- 
 ditions. 
 
 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 fubjected. According to the fim- 
 plicity of manners which had prevailed among the rude 
 inhabitants of Europe, and which had kept eftates invari- 
 ably in the fame families, no perfon was undeiitood 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 alienation, from the 
 circum ftance that every vafTal, being a military fervant, 
 and having obtained his land as a coniideration for fervices 
 to be performed, could not transfer the property without 
 the confent of his mailer. In England, upon the dawn- 
 ings of improvement after the Norman conqueit, perfons 
 who had acquired an eitate by purchafe, were permitted 
 to difpofe of it at pleafure ; and in towns, the inhabi- 
 tants of which became familiar with commerce, the fame 
 privilege was probably foon extended to every tenement, 
 however acquired. When the difpoiition to alienate be- 
 came fomewhat more general over the country, the con- 
 
 * Vide L. L. Aclfrcd, c. 37. 
 
 veyance,
 
 Chap. VI. FROM EDWARD I. TO HENRY VII. 373 
 veyance, even of eftates defcending by inheritance, \ 
 executed, in a manner confident with feudal principles, 
 by fubinfeudation ; the purchafer became the vaifal 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 ftatute was made, by which an 
 unbounded liberty was given to the alienation of landed 
 property; and when any perfon fold an eftate, the fuperior 
 was bound to receive the purchafer as his immediate 
 vaflal *. 
 
 3. By the courfe of legal fucceffion, the property of the 
 crown vafTals, or members of parliament, was alio fre- 
 quently broken and difmembered. The right of primoge- 
 niture, indeed, which, among the feudal nations, was in- 
 troduced in order to fhelter the individuals of everv family 
 under the protection of their own chief or leader, prevent- 
 ed, fo far as it w r ent, the divilion of eftates by inheritance. 
 But primogeniture had no place in female fucceffion. Be- 
 fides, the improvements of fociety, by enlarging the ideas 
 of mankind, with relation to property, contributed to extend 
 and to multiply dev/fes, by which even landed pofleffions 
 were bequeathed at pleafure ; and, according to the litiga- 
 tion or caprice of the owner, were liable to be fplit and 
 diftributed among different perfons. 
 
 When the alienation of eftates, together with thofe divi- 
 fions ot landed property which arofe from female fuccef- 
 fion, or from devife, had proceeded fo far as to threaten the 
 deftruclion of great families, the nobility took the alarm, 
 and had recourle to the artifice of entails for prcferving 
 
 * The famous fixture quia empttrcs, pafTed in the iRth of Edward I. This law was 
 farther extended, or at leaft received a more liberal interpretation, in the reign oi 
 Edward II f. 
 
 their
 
 374 HISTORY OF THE PARLIAMENT, Book IT. 
 
 their opulence and dignity. In the reign of Edward the 
 Firft, they are laid to have extorted from the king a re- 
 markable ftarute, by which the privilege of entailing was 
 greatly extended ; from which it may be inferred that there 
 had appeared, about this time, a ltrong difpolition to alie- 
 nate and difmember eilates ; iince, in order to check the 
 progrels of the evil, this extraordinary remedy was thought 
 requilite *. 
 
 Thefe changes in the flate of landed property had necef- 
 farily an extenfTve influence upon the government, and 
 more efpecially upon the intereft and political views of 
 thofe perfons who compofed the national council. Many 
 of the crown-vaflals w r ere 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 aflembly ; where, inftead of grati- 
 fving their ambition, they w r ere more likely to meet with 
 iituations to mortify their vanity, by expofmg the infig- 
 nilicance into which they had fallen. They were no longer 
 in a condition to view the extenfions of the royal preroga- 
 tive with an eye of jealous apprehenfion ; but had com- 
 monly more caufe of complaint againft the great barons, 
 who lived in their neighbourhood, and by whom they 
 were frequently opprefTed, than againft the fovereign, whofe 
 power, being more diftant, and operating in a higher 
 fphcre, gave them lefs difturbance. 
 
 But while, from thefe confederations, the fmall barons 
 were difpofed, in many cafes, to withdraw themfelves from 
 
 * This was the ftatute of Weftminfter de donis condU\onal'ibus y 13 Edward I. c. 1. 
 By which it was provided, that an eftate left to a perfon, and the heirs of his body> 
 fhould in all cafes go to the uTue, if there was any j if not, fhould revert to the 
 dvnor. 
 
 the
 
 Chap. VI. FROM EDWARD I. TO HENRY VII. 375 
 the meetings of parliament, the king had commonly an 
 intereft in requiring their punctual attendance; becaufe 
 he found it no difficult matter to attach them to his party, 
 and by their afliftance was enabled to counterbalance the 
 weight of the ariftocracy. On every occafion, therefore, 
 where any meafure of public importance was to be agitated, 
 the king was ufually folicitous that many of the poorer 
 members of parliament mould be prefent ; and a great part 
 of thefe, on the other hand, were continually excufing 
 themfelves from fo burdenfome a fervice. The longer the 
 caufes which I have mentioned had continued to operate, 
 in dividing and difmembering landed eftates, the number 
 of crown-vaffals, defirous of procuring an exemption from 
 this duty, became fo much the greater. 
 
 Comparing the condition of the different landholders 
 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 diitinction among 
 them, proceeding from oppofite caufes. In the former 
 period, when people of fmall fortune were unable to 
 fubfift without the protection of their fuperiors, the pro- 
 perty of many allodial proprietors was gradually accu- 
 mulated in the hands of a few, and thofe who pofTeffed 
 a landed territory of a certain extent, acquiring fuitable 
 consideration and rank, were diitinguifhed by the title 
 of procereSy or chief nobility. Under the firit. Norman 
 princes, when the dependence of the lower ranks had 
 produced its full effect in the completion of the feudal iyi- 
 tem, the owners of fmall eftates were almoll entirely an- 
 nihilated ; and in the condition of thole opulent barons 
 among whom the kingdom came to be divided, no diffe- 
 rence was probably acknowledged. But when the revi- 
 val
 
 376 HISTORY OF THE PARLIAMENT, Book II. 
 
 val of arts, and the progrefs of the people towards inde- 
 pendence, had begun to difmember eftates, and to multi- 
 ply the vailals of the crown, the difproportion between 
 the property of individuals became, once more, confpi- 
 cuous ; and the former diitineYion between the great and 
 fm all barons excited the attention of the legillature. 
 
 The prior accumulation, and the fublequent diflipation, 
 of wealth, had in this refpeel: a fimilar efTecl:. In amafTing 
 great fortunes fome of the barons were necefTarily more 
 fuccefsful than others, which rendered eftates extremely 
 unequal. In that ftate of fociety which tempted men 
 to fpend, or promoted the divilion of their eftates, 
 ibme proprietors proceeded likewife in this career with 
 greater rapidity, by which the fame inequality was 
 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, lhall receive a general citation 
 from the king's bailiffs or lheriffs. But, although the more 
 opulent vaftals of the crown are thus clearly exalted above 
 thofe of inferior wealth, and dignified with particular marks 
 of refpeel, it is difficult to afcertain the extent of property 
 by which thofe two orders of men were feparated from each 
 other. That the ftatute has a reference to fome known 
 boundary between them, can hardly be doubted ; but 
 whether, in order to obtain the rank and title of a great 
 baron, an eftate amounting to forty hides of land was 
 requilite, agreeable to the diftindtion of the chief nobility 
 in the reign of Edward the Confeffor ; or whether the 
 qualification in point of property had been varied accord- 
 ing
 
 CHAP. VI. FROM EDWARD I. TO HENRY VII. 377 
 
 ing to the alteration of times and circumitanccs, no ac- 
 count can be given. 
 
 The effect of a regulation for fummoning the final] 
 barons to parliament, by a general citation only, was to 
 place them in greater obfeurity, and to encourage their 
 delertion, by giving them realbn to hope that it would 
 pais without obfervation. In fuch a fituation, however, 
 where a complete and regular attendance was not to be 
 expected, and where each individual was endeavouring 
 to excufe himfelf, and to throw as much as poflible of 
 the burden upon his neighbours, an agreement would 
 naturally be fuggefted to the inhabitants of particular 
 diftridts, that they iliould relieve and fucceed each other by 
 turns, in the performance of this duty ; and thus contri- 
 bute to their mutual eafe and advantage, by fharing among 
 them an inconvenience which they could not entirely avoid. 
 Of thefe joint meamres, it was an obvious improvement, 
 that, inftead of a vague and uncertain rotation, particular 
 perfons, who appeared the beil qualified for the tank, and 
 were moft willing to undertake it, mould be regularly 
 elected, and fent, at the common expence, to reprefent 
 their conftituents in parliament. Nor can it be doubted 
 that the king would be highly pleafed with fuch an expe- 
 dient, by which he fecured a proportion of the fmall 
 barons in the ordinary meetings of the national council, 
 and which did not hinder him from convening a greater 
 number on extraordinary occaiions. 
 
 In this manner the knights of mires appear to have 
 been firft introduced into parliament. The date of this 
 remarkable event cannot be fixed with precifion; but it 
 was undoubtedly as early as the reign of Henry the 
 
 3 C Third.
 
 378 HISTORY OF THE PARLIAMENT, Book IL 
 
 Third •••. The divifion of counties produced a feparate aflb- 
 ciation among the crown vaffals, in each of thofe diftridts, 
 for electing their own reprcfentatives. The number of thefe 
 appears to have been originally precarious, and probably 
 w as varied in different emergencies. On different occafions 
 we meet with four knights called from each county; but 
 they were gradually reduced to two, the fmallefl number 
 capable of confulting together for the interefl of their 
 conftituents i. 
 
 The fame changes in the flate of the nation, which con- 
 tributed principally to the rife of the knights of mires, 
 introduced likewile the burgefTes into parliament. 
 
 Bv the advancement of agriculture, the peafants, in many 
 parts of Europe, had been gradually emancipated from 
 Jlavery, and been exalted, fuccemvely to the condition of 
 farmers, of tenants for life, and of hereditary proprietors. 
 In confequence of the freedom attained by this inferior 
 dais of men, a great proportion of them had engaged in 
 mechanical employments ; and, being collected, in towns, 
 where the arts were moll conveniently cultivated, had, in 
 
 * The records of parliament, for feveral reigns after the Norman conqueft, are in a 
 great meafure loft, having probably, during the barons wars, been deftroyed alternately 
 by each prevailing party, who found them unfavourable to their intereft. [Prynne's 
 preface to Cotton's Abridg. of Records in the Tower.] This circumftance accounts 
 ior the great obfeurity in which, after all the labour of antiquaries, the origin of lb 
 great a change in the conftitution of that aflembly ftill remains. The firft introduc- 
 tion of reprefentatives of counties may, with fome probability, be traced as far back 
 a:, the reign of king John. Sec Carte's Hifr. Reign of Edw. I. 
 
 f In the eleventh year of Edward I. four knights were iummoned for each county. 
 [Brady's Hift. of England.] In the reign of John, there Mad been a writ iflued to the 
 Hi' tifl' of Oxfordfhire, to return four knights for that county. Carte, in the reign of 
 I '.ward I. 
 
 many
 
 Chap. VI. FROM EDWARD I. TO HENKY VII. 379 
 many cafes, become manufacturers and merchants. The 
 fituation of thefe manufacturing and trading people ena- 
 bled them, after the diforders which prevailed in Europe 
 had in fome meafurc fubfided, to make a rapid progrefs 
 in improving their circumftances, and in acquiring various 
 immunities and privileges. By mutual emulation, and b \ 
 the influence of example, the inhabitants of the fame 
 town were excited to greater induftry, and to the continu- 
 ed 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 interefl. Being originally 
 the tenants or dependants, either of the king or of fome 
 particular nobleman, upon whofe demefne they refuled, 
 the fuperior exacted from them, not only a rent for the 
 lands which they poilefTed, but Various tolls and duties for 
 the goods which they exchanged with their neighbours. 
 Thefe exactions, which had been at firif precarious, were 
 gradually afcertained and fixed, either by long cuflom, or 
 by exprefs regulations. But, as many artifices had, no doubt, 
 been frequently practifed, in order to elude the payment 
 of thofe duties, and as, on the other hand, the perfons 
 employed in levying them were often guilty of oppreffion ; 
 the inhabitants of particular towns, upon their increafing 
 in wealth, were induced to make a bargain with the 
 fuperior, by which they undertook to pay a certain yearly 
 rent, in the room of all his occasional demands : and thefe 
 pecuniary compofitions, being found expedient for both 
 parties, were gradually extended to a longer period, and at 
 laft rendered perpetual. 
 
 An agreement of this kind appears to have fuggdfted 
 the firft idea of a borough, considered as a corporation. 
 Some of the principal inhabitants of the town undertook 
 
 3 C 2 to
 
 380 HISTORY OF THE PARLIAMENT, Book II, 
 to pay the fupcrior's yearly rent; in confideration of which, 
 they were permitted to levy the old duties, and became re- 
 lponiible for the funds committed to their care. As mana- 
 gers for the community, therefore, they were bound to 
 fulfil its obligations to the fuperior ; and, by a natural exten- 
 lion of the fame principle, it came to be underftood 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 foci ety was thus viewed in the light of 
 a body politick, or fictitious perfon, capable of legal deeds, 
 and executing every fort of transaction by means of certain 
 truftces or guardians. 
 
 This alteration in the date of towns was- accompa- 
 nied with many other improvements. They were now 
 generally in a condition 10 difpenfe with the protection, 
 of their fuperior ; and took upon themfelves the burden of 
 keeping a guard, to defend them againfl a foreign enemy, 
 and to fecure their internal tranquillity. Upon this account, 
 befide the appointment of their own adminiftrators, they 
 obtained the privilege of electing magiftrates, for diftribu- 
 ting juftice among them. They became,, in a word, a fpe- 
 cics of foe xage tenants^ with this remarkable peculiarity in 
 their favour, that by remaining in the ftate of a corporation 
 from one generation to another, they were not liable to the 
 incidents belonging to a fuperior, upon the tranfmifiion of 
 lands to the heirs of a vafTal. 
 
 The precife period of the fir ft incorporation of bo- 
 roughs, in the different kingdoms of Europe, is not eafily 
 determined ; becaufe the privileges ariling from the pay- 
 ment of a fixed rent to the fuperior, in the room of his 
 cafual emoluments, and the confequences which refulted 
 from placing the revenue of a town under permanent ad- 
 miniitrators,
 
 Chap. VI. FROM EDWARD I. TO HENRY VII. 381 
 miniftrators, were ilovvly 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 advancement of trade and ma- 
 nufactures in thofe countries *. The towns in France are 
 faid by Father Daniel to have been firft incorporated in the 
 reign of Lewis the Grofs ; but it appears that they had then 
 acquired confiderable privileges, were intrufted with their 
 own government, and the inhabitants were formed into 
 a militia for the fervice of the crown t. 
 
 In the reign of Henry the Firft of England, the cotem- 
 porary of Lewis the Grofs, the inhabitants of London had 
 begun to farm their tolls and duties, and obtained a royal 
 charter for that purpofe i. Their example was followed 
 by the other trading towns, and from this time forward 
 the exiftence of Englifh boroughs becomes more and more 
 confpicuous. 
 
 When the towns, under the immediate protection of the 
 king had been incorporated, and, of courfe, exalted into 
 the rank of crown-vafTals, it was agreeable to the general 
 fyftem of the feudal policy, that they mould have a voice 
 in the national council ; and, more efpecially, when extraor- 
 dinary aids, befide their conftant yearly rent, were de- 
 
 * With refpedt to the rife of the cities of Italy, fee Muratori Antiq. Ital. Med. 
 /Evi, torn. Iv. The advancement of the German free cities appears to have been ra- 
 ther pofterior to that of the Italian; their chief privileges having been acquired un- 
 der the princes of the Swabian family. They attained their higheft pitch of grandeur 
 in confequence of the famous Hanfeatick confederacy, which began in the year 1241, 
 See Abrege de Thiftoire ct du droit public d'Allemagne, par. M. Pfeffel. 
 
 f M. Pfeffel's Hiftory of the reign of Lewis VII. 
 I Hume's Hiftory of England. 
 
 manded
 
 384 HISTORY OF THE PAELLA MIIXT, Book 11. 
 manded from them, as well as from the other tenants in 
 capite> that they fliould have an opportunity of reftifing or 
 confenting to thefe demands. Their attendance in that 
 afiembly was, at the fame time, of advantage to the fove- 
 reign, and even more lb than that of the fmall barons ; 
 for the trading people of all the inferior part of the nation 
 were the moll liable to be iniulted and opprefTed by the 
 nobles, and were of confequence proportionably attached to 
 the monarch, who had found his account in protecting and 
 
 Supporting them. 
 
 It was impoflible, however, that all the members of 
 every royal borough fliould afTemble in order to deliberate 
 upon the bufinefs of the nation; and in this, as well as in 
 the ieparate concerns of each reipedlive community, it was 
 natural for them to commit the adminiflration to particular 
 commiflioners or reprefentatives. In England, accordingly, 
 it appears, that after the boroughs had been incorporated, 
 and had been railed, by their trade, to a degree of confide- 
 ration and independence, they began to fend reprefentatives 
 into parliament. The records of parliament, as has been 
 before remarked, during feveral reigns after the Norman 
 conquefl have not been preferved ; ib that it is no lefs un- 
 certain at what precife time the burgefTes, than at what 
 time the knights of fhires, made their firfl appearance in 
 that afiembly ; but as thole two events proceeded from the 
 fame caufe, the advancement of commerce and manufac- 
 tures, it is probable that they were nearly coeval*. 
 
 * Sir Henry Spelman declares, that, from the moft careful examination, he co-ild 
 find no traces of the reprefentatives of boroughs in parliament, before the latter parr 
 the reign of Henry III. Gloffar. v. Parliamentum. 
 
 8 In
 
 Chap. VI. FROM EDWARD I. TO HENRY VII. 383 
 In the great charter of king John, it is exprefsly ordain- 
 ed, that aids fhall not be impofed upon the boroughs with- 
 out the confent of parliament ; from which it mav be in- 
 ferred, that thofe communities had then acquired the rank 
 of foccage tenants, and that matters were at leait ripened 
 and prepared for their introduction into the councils of the 
 nation. The firft inftance, upon record, of the burgefles 
 attending in parliament, occurs in the forty-ninth year of 
 the reign of Henry the Third ; when they are faid 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 nobleman, at the very time when he was endea- 
 vouring to fcreen himfelf from the refentment of the na- 
 tion, would have ventured to open a new fource of difcon- 
 tent, by making a fudden and violent change in the confti- 
 tution. It is likely that fome of the burgefles had been 
 prefent in former parliaments ; as we find that they after- 
 wards were, upon two different occafions, in the early part 
 of the reign of Edward the Firft: but the number of 
 them was not fixed ; nor were they accuftomed to give a 
 regular attendance* 
 
 The policy of Edward the Firft led him to take hold of 
 the circumftances, which have been mentioned, for pro- 
 moting the intereftofthe crown. In the twenty -third year 
 of his reign, directions were given to fummon regularly 
 the knights of the mires, together with the burgefles ; or 
 which, after the example of the former, two were gene- 
 rally fent by each borough ; and from that period, botli 
 thefe clafTes of reprefentatives continued to be conitant 
 members of the legiuaturc, 
 
 The
 
 384 Iil-TOUY OF THE PARLIAMENT, Book II. 
 
 The fame circumftances, according as they exifted more 
 or lefs completely, in the other countries of Europe, -were 
 productive of iimiiar changes in the conititution of their 
 national councils. 
 
 In Scotland, a country whole government and laws bore 
 a great analogy to thole of England, not only from the 
 common circumftances which operated upon all the feudal 
 nations, but alio from that vicinity which produced an 
 intercourfe and imitation between the two countries, the 
 parliament, as far back as we can trace the records of Scot- 
 tifh hiftory, appears to have been compofed of the greater 
 thanes, or independent proprietors of land. The reprefen- 
 tatives of boroughs are fuppofed by hiftorians to have been 
 mil: introduced into its meetings during the reign of Ro- 
 bert Bruce ; which correfponds to that of Edward the Se- 
 cond ; but iatisfactory evidence has lately been produced, 
 that this event mult have happened at an earlier period #; 
 From the flow progrefs, however, of trade in Scotland, the 
 number of burgefTes in her national council was for a long 
 time inconfiderable ; and their appearance was limited to a 
 few extraordinary cafes. 
 
 The reprefentatives of counties became conflituent mem- 
 bers of the Scottifh parliament by the authority of a 
 ftatute, which, being ftill preserved, affords great light 
 with refpect to the origin of this eitablifhment both in 
 Scotland and in England. By that ftatute it is provided, 
 that the fmaller vaifals of the crown fhould be excufed 
 from perfonal attendance in parliament, upon condition 
 of their fending reprefentatives, and maintaining them 
 at the common expence. This regulation was intro* 
 
 * See Dr. Stuart's acute rcfearches into the ancient government of Scotland. 
 
 duced
 
 Chap. VI. FROM EDWARD I. TO HENRY VII. 385 
 
 duced by James the Firft ; who, as he had refided for many- 
 years in England, and was a prince of learning and dis- 
 cernment, had probably been induced to copy this branch 
 of policy from the inftitutions of a people, among whom 
 the monarchy had made greater advances than in his own 
 country. But the Scottifh barons, whole poverty had 
 given occafion to this regulation, laid hold of the difpenfa- 
 tion which it bellowed upon them, without fulfilling the 
 conditions which it required; and it was not until the 
 reign of James the Sixth, that their obligation to fend re- 
 prefentatives into parliament was regularly enforced *. 
 
 In France, the reprefentatives of boroughs, according to 
 the moil: probable account, were firft introduced into the 
 national alfembly 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 coiivention of eftates, no fet of men, correfpond- 
 ing to the knights of fhires in England, was ever admit- 
 ted. The improvement of arts, in France as well as in 
 England, contributed not only to raife the trading people, 
 
 * In the reign of James the Firft, we meet with two ftatutes upon this fubject. 
 By act 1425, c. 52. it is required, that all the freeholders fhall give perfonal attend- 
 ance in parliament, and not by a procurator ; unlefs they can prove a lawful caufe of 
 their abfence. Afterwards, by a ftatute 1427, c. 102. it is enacted, " that the fmall 
 " barons and free tenants need not come to parliaments, provided that, at the head 
 " court of every fherifFdom, two or more wife men be chofcn, according to the extent 
 " of the fhire, who fhall have power to hear, treat, and finally to determine all caufes 
 " laid before parliament; and to chufe zfpcaker y who fhall propone all and fundry needs 
 " and caufes pertaining to the commons in parliament. " 
 
 From thefe two ac"ls of parliament, it is evident the king had firft endeavoured t« 
 enforce the attendance of all the fmall barons ; and, upon finding this impracticable, 
 had reforted to the expedient of introducing reprefentatives. 
 
 \ This happened about the year 1300. See Pafquicr Rechcrchcs dc la France. 
 
 3 D but
 
 386 HISTORY OF THE PARLIAMENT, Book II. 
 
 but alio to difmember the eftates of many proprietors of 
 land ; but the king does not feem to have availed himfelf of 
 that fituation for obliging the fmall barons to fend repre- 
 fentatives into the national council. The greater authority 
 pofTeired, about this period, by the French monarch, was 
 probably the caufe of his not reforting to the fame fhifts, 
 that were practifed in England, to counterbalance the power 
 of the ariitocracy. That a fovereign fhould court the lower 
 part of his fubjecl:s, and raife them to confideration, with 
 a view of deriving fupport from them, is none of the moft 
 agreeable expedients ; and nothing, we may fuppofe, but 
 ibme very urgent neceflity could make him think of fub- 
 mitting to it. 
 
 The circumftance now mentioned, created a moil efTen- 
 tial difference between the national council in France and 
 in England ; the latter, comprehending the reprefentatives 
 of counties as well as of boroughs, and conlequently a 
 large proportion of the people ; whereas the former admit- 
 ted no other reprefentatives but thofe of boroughs, the 
 number of which, in either country, was for a long time 
 inconfiderable. 
 
 The free cities of Germany had, in the thirteenth cen- 
 tury, acquired fuch opulence as enabled them to form that 
 famous Hanfeatick league, which not only fecured their 
 independence, but rendered them formidable to all the mi- 
 litary powers in their neighbourhood. From thefe circum- 
 ftances they rofe to political power, and obtained a feat in 
 the Diet of the empire. But in Germany, the reprefenta- 
 tives of the fmall barons were not admitted into that affem- 
 bly, from an oppofite reafon, it mould feem, to that which 
 prevented their admimon into the French convention of 
 eftates. At the time when the rife of commerce had led 
 9 the
 
 Chap. VI. FROM EDWARD I. TO HENRY VII. 387 
 
 the way to fuch a regulation, the nobility, and the free 
 ftates of the empire, had fo firmly eftablifhed their inde- 
 pendence, and the emperors had fo far declined in authority, 
 that it was vain to expect, by any artifice or exertion, to flop 
 the progrefs of the ariftocracy. The great exaltation of the 
 German ftates had indeed produced a wide difference, in 
 the power and dignity of the different nobles ; and thofe of 
 inferior rank, inftead of maintaining an equal voice with 
 their fuperiors, were at length afTociated in different claffes ; 
 each of which, having only a fingle vote in the diet, were 
 in fact reduced to a worfe condition than if they had acted 
 by reprefentatives. 
 
 In Flanders, in the feveral principalities which after- 
 wards compofed the Spaniih monarchy, and, in general, in 
 all the feudal governments of Europe, we may obferve, 
 that whenever the towns became free and opulent, and 
 where they continued members of a larger community, they 
 obtained a feat in the legiilative affembly. But with refpect 
 to the reprefentatives of the fmall barons, or inferior no- 
 bles, their introduction into the legiilature is to be regarded 
 as a more lingular regulation, which, depending upon a 
 nice balance between the crown and the nobility, has 
 been adopted in fome countries, and in others neglected, 
 according as it happened to fuit the intei^eft. and policy 
 of the fovereign, or the peculiar circum (ranees of the 
 people *. 
 
 In 
 
 * The boroughs are faid to have been introduced into the cortes of the different 
 petty kingdoms of Spain, about the fame time as in the other nations of Europe. 
 In each of thofe kingdoms the cortes came to be compofed of the nobility, of the dig- 
 nified ecclefiaftics, and the reprefentatives of the cities. But in none of them do we 
 find that the reprefentatives of the fmall proprietors of land were admitted into thofe 
 
 3 D 2 aflemblies ;
 
 3 88 HISTORY OF THE PARLIAMENT, Book II. 
 
 In Italv, a country which had been broken into fmall 
 principalities, under princes porTefTed of little power, or 
 refiding at fuch a diftance as to have little capacity of exert- 
 ing it over the inhabitants, the principal towns, whofe 
 prolperity in trade, if we except the territories belonging 
 to the Moors in Spain, was prior to that of the other parts 
 of Europe, became feparate and independent itates ; and 
 fell under fuch modes of republican government as were 
 agreeable to the Situation of their refpective focieties. 
 
 From a connected view of the different countries of 
 Europe, during the period now under examination, it 
 feems hardly poiTible to entertain a doubt, that the repre- 
 sentatives in the Englifh parliament were introduced in the 
 manner, and from the caufes, which have been fpecificd. 
 It appears, at the fame time, furpriimg, and may perhaps 
 be considered as an objection to the account which has been 
 given, that there is a profound filence, among all cotem- 
 porary writers, concerning this important event. The hif- 
 torians of that age, it is true, were neither philofophers 
 nor politicians ; they were narrow-minded and bigotted 
 eccleiiaihcs, who law nothing of importance in the hiflory 
 of England, but what was immediately connected with 
 thofe religious inftitutions to which they were devoted. 
 But ftill it maybe faid, that if the commons were unknown 
 in the early ailcmblies of the nation, the introduction of 
 that order of men into parliament, would have been fuch 
 a novelty, as could hardly fail to itrike the imagination, 
 and to be mentioned in fome of the writings of thofe 
 times. 
 
 aflcmblicsj though, in the kingdom of Arragon, it appears that the nobility were dif- 
 i juifhed into thofe of the firft, and thofe of the fecond rank. See Dr. Robertfon's 
 Hillory of Charles V. 
 
 It
 
 Chap. VI. FROM EDWARD I. TO HENRY VII. $%g 
 
 It is necefTary, however, to remark, that this alteration 
 was produced in a gradual manner, and without any ap- 
 pearance of innovation. When the knights of (hires began 
 to attend the meetings of parliament, they were no other 
 than barons formerly entitled to that privilege. Their be- 
 ing fent at the common expence of the fmall barons be- 
 longing to a diftrict, was a circumftance that would excite 
 little attention ; as it probably arofe from the private con- 
 tribution of the parties concerned, not from any public re- 
 gulation. The burgefTes, in like manner, were not admitted 
 into parliament all at once, or by any general law of the 
 kingdom ; but when particular towns, by their incorpora- 
 tion, and by the privileges bellowed upon them, had ac- 
 quired the rank of crown-vafTals, their obtaining a mare in 
 the legiilature, by means of reprefentatives named for 
 that purpofe, was a natural confequence of their advance- 
 ment. This privilege, fo far from being regarded as new 
 or uncommon, had regularly been acquired by fuch of the 
 churles, or peafantry, as were exalted to the condition of 
 ibecage-tenants ; and was in reality a confequence of vafTal- 
 age, interwoven in the fyftem of that feudal government, 
 with which the people of that age were familiarly acquaint- 
 ed. Neither was it likely that the appearance, from time 
 to time, of a few of thefe inferior perfons, along with the 
 greater lords of parliament, would have an apparent ten- 
 dency to vary the deliberations of that aflembly ; and the 
 practice had, in all probability, been long continued, and 
 greatly extended, before the effects of it were of fuch mag- 
 nitude as to attract the notice of the public. 
 
 Sect.
 
 390 HISTORY OF THE PARLIAMENT, Book II. 
 
 ^ect. II. 'The divlfion of Parliament into two Houfes, and the 
 peculiar Privileges acquired by each Houfe. 
 
 THE members of the great council, in all the feudal 
 governments of Europe, were divided originally into two 
 claries or orders ; the one compofed of ecclefiaflical, the 
 other of lay barons. Thefe two fets of men, from their 
 circumftances and way of life, having a different interefl, 
 and being actuated by different views of policy, entertained 
 a mutual jealoufy, and were frequently difpofed to combat 
 and thwart the defigns of each other. In the conduct of 
 national bufinefs, they ufually held feparate conferences 
 among themfelves ; and when they afterwards came to a 
 joint meeting, were accuftomed, inftead of voting promif- 
 cuoufly, to deliver, upon the part of each, the remit of 
 their previous deliberations. As each of thofe bodies was 
 pofTefTed of independent authority, it would have been 
 dangerous to venture upon any meafure of importance, in 
 oppofition to the inclination or judgment of either ; and 
 therefore, in all public tranfactions which they had occa- 
 fion to determine, the concurrence of both was held in- 
 difpenfable. Hence, by long cuftom, they became two fe- 
 parate ejlatesy having each a negative upon the refolutions 
 of the legiflature. 
 
 When the burgefTes were admitted into the national 
 aflembly, they were, by their fituation and character, ftill 
 more diftinguifhed from the ecclefiaflical and lay barons, 
 than thefe laft from each other. They acted, not in 
 their own name, but in the name of thofe communities, 
 by whom they had been appointed, and to whom they 
 
 were
 
 Chap, VI. FROxM EDWARD I. TO HENRY VII. 391 
 were accountable : at the fame time that the chief object in 
 requiring their attendance, was to give their confent to 
 fuch peculiar aids, or taxes, as were demanded from their 
 conftituents. It was necerTary, therefore, that thev fhould 
 confult among themfelves, in matters relating to their pe- 
 culiar intereft ; and, as the department allotted them was 
 unconnected with that of all the other members, they 
 naturally obtained a feparate voice in the afTembly. We 
 may eaiily conceive, that when this method of procedure 
 had been eftablifhed in the impofition of taxes, it was 
 afterwards, upon the fubfequent rife of the burgefTes, ex- 
 tended to every branch of parliamentary bufinefs, in which 
 they claimed the privilege of interfering. Thus, in all the 
 feudal kingdoms which had made advances in commerce, 
 the great council came to be compofed of three eftates : each 
 of whom, in the determination of public meafures, enjoyed 
 a feparate negative. 
 
 Whether thefe different claries of men mould be con- 
 vened in the fame, or in different places, depended, in all 
 probability, upon accident, and in particular on the num- 
 ber of their members, which, at the times of their meet- 
 ing, might render it more or lefs difficult to procure them 
 accommodation. In England, the prelates, and the nobility, 
 were accuftomed, in ordinary cafes, to meet in the fame 
 place ; although it is likely that each of them, in order to 
 fettle their plan of operations, had previous confultations 
 among themfelves. When the deputies from counties and 
 boroughs were firft called into parliament, they proceeded 
 upon the fame plan, and were included in the fame meet- 
 ing with the ancient members. It is probable, that the 
 boroughs, then in a condition to ufe this privilege, were 
 not numerous. To a parliament held in the eleventh of 
 
 Ed wave!
 
 592 HISTORY OF THE PARLIAMENT, Book II. 
 Edward the Firft, we find that no more than twenty towns 
 were required to fend reprefentativcs ; of which two were 
 fummoned from each town *. Bat upon the regular eita- 
 blifhment of the deputies from counties and boroughs, in 
 the twenty-third year of that reign, the number of the 
 latter was greatly encreaied. The returning boroug is, 
 from each of which two reprefentatives were generally 
 required, are faid to have then amounted to about an 
 hundred and twenty; befides thofe belonging to Wales, 
 of which there are fuppofed to have been about 
 twelve t. 
 
 From the number of the burgeffes at this time, from the 
 influence and weight which they had acquired, and from 
 their peculiar character and circumftances, as reprefent- 
 ing the commercial intereft, they now found it convenient, 
 it mould feem, to have a different place of meeting from 
 
 * The trading towns, who fent reprefentatives to this parliament, were, London, 
 York, Carlifle, Scarborough, Nottingham, Grimefby, Lincoln, Northampton, Lynne 
 Yarmouth, Colchefter, Norwich, Chefter, Shrewfbury, Worcester, L Hcreford, Brif- 
 tol, Canterbury, Winchefter, and Exeter. See Carte's Hid. 
 
 t Some of thefe boroughs, however, were omitted in the fummons to future par- 
 liaments. Mr. Browne Willis, from a diligent infpedtion of fuch materials as he 
 could find, to afford any information upon this point, is of opinion, that from about 
 the middle of Edward the Third's reign, to the beginning of that of Edward the Sixth, 
 the parliament confifted of a pretty uniform number of boroughs : that, about this laft 
 period, it confifted of 126, and at no former time amounted to 130. See Notitia Par- 
 liam. 
 
 Mr. Hume aiTetts, that the fheriffof each county had anciently a difcretionary power 
 ©f omitting particular boroughs in his returns, and was not deprived of this power till 
 the reign of Richard II. [Hift. 4to, vol. ii. p. 287.] In proof of this alTertion, he refers 
 to 5 Richard II. c. 4. But that ftatute proves the direct contrary. It declares, " That 
 u if any fheriff leaves out of his returns any cities or boroughs which be bound, and 
 "of old time were wont to come to the parliament, he ftjall be punijhed in the manner 
 " as lias accujhmtd to be done in the /aid cafe in times pa/I." Statutes at Large. 
 
 6 the
 
 Chap. VI. FROM EDWARD I. TO HENRY VII. 393 
 the other members of parliament, and began to form a 
 feparate body, which was called the houfe of commons. 
 
 The knights of mires continued, for fome time after, 
 to fit in what now became the houfe of peers. Although 
 the fmall barons were, in general, excufed from perfonal 
 attendance, yet, as crown-vafTals, they had Hill a title to 
 vote in parliament ; and fuch of them as attended, even in 
 confequence of an election, were at firft confidered in the 
 fame light with the greater nobility. By appearing fre- 
 quently, however, in the capacity of mere reprefentatives, 
 not only elected, but having their charges borne by their 
 conftituents, their privilege of attending in their own right 
 w r as gradually loll and forgotten. In confequence of the 
 progreflive alienation and divifion of landed property, their 
 perfonal influence was continually Unking, while that of 
 the mercantile people was rifing in the fame proportion ; 
 and, as thefe two clafTes were thus brought nearer to a level, 
 the landed gentry were often indifcriminately chofen to 
 reprefent either the one or the other. In fuch a fituation, 
 it became at length an obvious improvement, that the de- 
 puties of the counties and boroughs, as by the circum- 
 ftance of their being reprefentatives, and refponfible to 
 thofe who had appointed them, they were led into a Simi- 
 larity of procedure, mould meet in the fame houfe, and 
 carry on their deliberations in common. It is conjectured 
 by Carte the hiftorian, that this change was not effected 
 before the latter part of the reign of Edward the Third ; 
 but with refpect to the precife time when it happened, 
 there feems to be no evidence whatever. 
 
 The coalition of thefe two orders of deputies may per- 
 haps be regarded as the great caufe of the authority ac- 
 quired by the Englifh houfe of commons. The members 
 
 3 E of
 
 304 HISTORY OF THE PARLIAMENT, Book II. 
 of that houie were by this mcafure exalted to higher con- 
 fideration and refpect, from the increafe of their numbers, 
 as well as from the augmentation of their property. They 
 now reprelented the mercantile people and the landed 
 gentry ; who, exclufive of thofe who remained in a ftate of 
 icrvitude, compoled the great body of the people, and who 
 polTeiTed a great proportion of the national wealth. Of 
 thofe two clafTes of the free inhabitants, the landed gentry, 
 for a long time, enjoyed the firft rank ; and the deputies of 
 boroughs were therefore frequently chofen among the 
 neighbouring gentlemen, who, by reafon of their indepen- 
 dence, were more capable than their own burgefTes of 
 protecting their conftituents. By joining together and con- 
 founding thefe different orders of reprefentatives, the im- 
 portance of either was in fome degree communicated to 
 both ; at the fame time that the people, under fo many 
 leaders, became attentive to their common privileges, and 
 were taught to unite in defending them. Had all the con- 
 fl ituents been to appear in the national council, they would 
 have been a diforderly multitude, without aim or direction : 
 by choofing deputies to manage their parliamentary inte- 
 reft, they became an army, reduced into regular fuhordi- 
 nation, and conducted by intelligent officers. 
 
 We 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 tp the height of abfolute power. The 
 fudden revolution, produced at that time by the national 
 rciJiLitntatives, was a prelude -to thofe greater exertions, 
 which at a fubfequent period they difplayed in a better 
 caul 
 
 In
 
 Chap. VI. FROM EDWARD I. TO HENRY VII. 395 
 In the principal kingdoms upon the continent of Europe, 
 the third ejlate was differently conftituted. It comprehend- 
 ed, as I formerly ohferved, no other deputies but thole of 
 the trading towns ; a fet of men, who, in comparifon even 
 of the fmall barons, or inferior gentry, were long obicure 
 and infignincant. In fupporting their privileges, the bo- 
 roughs were not aided by the joint efforts of the counties ; 
 and the family intereft of the reprefentative was not fuper- 
 added to the weight of his perfonal wealth. 
 
 In fome of thofe kingdoms, therefore, as in France and 
 in Spain, the monarch was enabled to break the ariftocracy, 
 and to annihilate the national council, before the third 
 eftate^ in confequence of the advancement of commerce, 
 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 diet, reduced 
 the power both of that affembly and of the emperor to a 
 mere lhadow. 
 
 After the members of parliament had been accuftomed 
 to meet regularly in two feparate places, the three eftates 
 were gradually melted down and loft, in the divifion of the 
 two houfes. The ecclefiaitical and lay barons, who fat in 
 the upper houfe, were led, moft frequently, into a promif- 
 cuous deliberation ; 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 affected. But as government came to be more 
 eftabliihed upon a regular plan, thofe extraordinary ques- 
 tions occurred lefs frequently \ at the lame time that the 
 progrefs of knowledge, and of the arts, diminifhed the in- 
 fluence of the clergy, and rendered them lefs willing to 
 hazard a direct and avowed conteft with the nobles. The 
 
 % E 2 cultom
 
 396 HISTORY OF THE PARLIAMENT, BookIL 
 
 cuftom of deliberating promifcuoufly, was thus more and 
 more confirmed, and the exertions of a feparate negative, 
 being confidered as indications of obftinacy or a factious 
 difpofition, 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 en- 
 tirely compleated. 
 
 The two houfes, on the other hand, having occafion al- 
 ways to deliberate apart, acquired an independent autho- 
 rity, and were naturally regarded as diftinct branches of 
 the legiilature. The refolutions of each houfe conftituted 
 a feparate voice ; and the concurrence of both was necef- 
 fary in all the determinations of parliament. 
 
 After the formation of the two houfes of parliament, in 
 the manner juft mentioned, each of them came to be pof- 
 fefled of certain peculiar privileges ; which, although pro- 
 bably the objects of little attention in the beginning, have 
 fince rifen to great political importance. 
 
 i. The houfe of commons, from the nature of its 
 original eitablifhment, obtained the fole power of bringing 
 in money-bills. This was not, at firft, regarded as a privi- 
 lege ; but was introduced merely for the fake of difpatch. 
 The primitive houfe of commons was compofed of bur- 
 gefTes only, empowered to grant the king a fupply, by 
 one general agreement, in place of the feparate bargains, 
 which had formerly been made with each borough. In 
 conducting this bufinefs, each borough feems to have di- 
 rected its reprefentatives with refpect to the rate of afTefi^ 
 ment to which they fhould confent ; and by collecting 
 thefe particular directions, the mm total to be granted by 
 the whole trading intereft was eafily afcertained. In a 
 matter fo fimplc as that of determining the extent of the 
 
 contribution
 
 Chap. VI. FROM EDWARD I. TO HENRY VII. 397 
 
 contribution which, on any particular occaiion, they were 
 willing to make, the conftituents found no difficulty either 
 in preparing their deputies, by expreffing a previous opi- 
 nion upon the fubject, or by fending them clear and point- 
 ed inftructions, in cafe, from any new exigence, after the 
 meeting of parliament, an unexpected demand was made 
 by the fovereign. 
 
 According to this conftitution of parliament, the impofi- 
 tion 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 burgefTes ; but when the depu- 
 ties from counties came to fit and deliberate along with 
 them, a variation was necefTary. The deputies of the 
 counties having, by this change, affumed entirely the cha- 
 racter of reprefentatives, came naturally to be limited, in 
 the fame manner as the burgefTes, by the inftructions of 
 their conftituents *. But thofe two orders of men, who 
 now formed the cumulative body of the commons, were 
 connected with different parts of the nation ; and, while the 
 burgefTes were interefted in the taxes laid upon the bo- 
 roughs, the county-members had an equal concern in fuch 
 as were paid by the landed gentry. In their promifcuous 
 deliberations, 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 re- 
 prefented, but fhould agree in the duties to be paid in 
 common by the whole of their conftituents ; and, as the 
 
 * In a parliament held in the year 1339, that is, about the middle of the reign of 
 Edward the Third, we find the knights of (hires pleading that they durft not grant a 
 tax without the confent of their conftituents. Carte. 
 
 taxes
 
 39S HISTORY OF THE PARLIAMENT, Book IL 
 
 taxes paid by landed gentry or fmall barons were of the 
 fame nature with thole which were laid upon the great ba- 
 rons or peers, this naturally fuggefted the idea of a general 
 affefTment upon the nation at large, to be impofed by the 
 concurrence of both houfes of parliament. Hence the in- 
 troduction of tenths, fifteenths, andfub/tcf/es; the two former 
 of which were taxes upon perfonal property j the laft, upon 
 creates real and perfonal. In the impofition of fuch taxes, 
 both houfes of parliament were equally concerned ; and the 
 concurrence of both was therefore held requifite. 
 
 The houfe of commons, however, if the precife mm to 
 be granted by them had not been previoufly fpecified, 
 were accuftomed, in cafes of this nature, to confult their 
 conftituents, and to regulate their conduct by the inftruc- 
 tions which they received. 
 
 They could have no debate, therefore, on any occafion, 
 upon the fubject of taxation ; as their province extended no 
 farther than merely to declare the determination of their 
 conftituents. Upon this account, it was to no purpofe that 
 any particular tax mould firfl become the fubject of delibe- 
 ration among the peers, and afterwards be fubmitted to the 
 confidcratipn of the commons; flnce, after the fulled and 
 moil laborious difcuflion of the queftion by the former, 
 no other point could be confidered by the latter, but whe- 
 ther the intended fupply was agreeable to their initruc- 
 tions. The moil expedient couiTc, in order to lave time 
 :\nd ufelefs difputation, was evidently, that the commons 
 fhould begin with Hating the exact fum which they had 
 been empowered to grant; and that the tax propofed by 
 them mould afterwards be examined and canvafTed in the 
 , whole conduct, in this as well as in other 
 ot fubject to any direction or controul. 
 
 From
 
 Chap. VI. FROM EDWARD I. TO HENRY VII. 399 
 From the fame circumftancc which introduced the prac- 
 tice, that every propofal for a tax mould originate in the 
 houfe of commons, it became cuftomary that every fuch 
 propofal or bill, when prefented to the houfe of peers, 
 fhould receive their fimple afTent, or negative, without 
 variation or amendment. It could anfwer no purpofe, to 
 return the bill, with amendments, to the houfe of com- 
 mons; becaufe the members of that houfe had no power 
 of deliberating upon fuch matters, and, having once de- 
 clared the opinion of their conftituents, could not ven- 
 ture to deviate from it in any fubfequent ftage of the 
 bufinefs. 
 
 It is probable, at the fame time, that this mode of con- 
 ducting the bufinefs 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 impolition of taxes, they might incite the nobi- 
 lity to follow their example, and make them afhamed of 
 declining a burden which they were much more able to 
 bear. 
 
 Such appears to have been the origin of this important 
 privilege, which is now juftly regarded by Englishmen as 
 one of the greateft pillars of their free conftitution. Like 
 many other parts of the Britifh government, it arofe from 
 views of immediate conveniency ; and its diftant confe- 
 quences were neither forefeen nor intended : but, after it 
 had received the fandtion of immemorial cuftom, it was 
 preferved inviolable, without any confideration of the cir- 
 cumftances from which it had taken its rife. As the com- 
 mons interfered by degrees in legillation, and in various 
 other branches of bufinefs, their interpositions became 
 too extenfive and complicated, to permit that they fhould 
 9 be
 
 4 oo HISTORY OF THE PARLIAMENT, Book II. 
 be regulated by the opinion of condiments living at a dif- 
 tance. In confequence of more liberal views, it came 
 alfo to be confidered as the duty of each reprefentative, 
 to promote the good of the nation at large, even in op- 
 position to the intereft of that particular community which 
 he reprefented. The inftrudtions, therefore, of condim- 
 ents were laid alide, or regarded as producing no obligation, 
 upon any fet of deputies, to depart from the dictates of 
 their own confcience. The expediency of this important 
 privilege, with which the houfe of commons came thus 
 accidentally to be inverted, will fall more properly to be 
 examined hereafter. 
 
 2. Upon the eifablifhment of the two houfes of parlia- 
 ment, the fupreme judiciary power was, on the other hand, 
 appropriated to the houfe of peers. The jurifdiction be- 
 longing to the Saxon Wittenagemote w T as exercifed promif- 
 cuoufly by all the members of that afTembly ; and in the 
 Norman parliaments, both before and after the formation 
 of the aula regis, the fame rule was obferved. It feems, 
 however, to be a principle of natural law, that when a 
 magistrate of any fort is inverted with jurifdiclion, he is 
 bound to a perfonal difcharge of the duties of his office, 
 and has no power to commit the exercife of them to a dele- 
 gate. The public, by whom he is appointed, has a right 
 to the fruit of that capacity or diligence, upon account of 
 which he was felected to the office ; and as, in the decifion 
 of law-fuits, no fecurity can be given that different indivi- 
 duals will act precifely in the fame manner, the appoint- 
 ment of a delegate for the difcharge of this employment, 
 would be to impofe upon the public a different rate or 
 mcafure of fervice from that which was due. Upon this 
 principle, the members of the houfe of commons, having 
 
 x only
 
 Chap. VI. FROM EDWARD I. TO HENRY VII. 401 
 only a delegated'power, were excluded from the exercife of 
 that jurifdidtion with which the members of -parliament, 
 in general, had been anciently inverted. Their difqualiii- 
 cation, at the fame time, was rendered dill more apparent, 
 by their acting in confeqnence of inftructions from their 
 condiments. The counties and boroughs might be in a 
 condition, from their general information, to inftruct their 
 deputies concerning the taxes to be impofed, or even con- 
 cerning any law to be enacted, but were altogether inca- 
 pable of directing them how to proceed in the determina- 
 tion of la w-fuits. The decifion given in any caufe mufl 
 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 
 tranfacted viva voce, can form any proper judgment con- 
 cerning it. Upon this account, the only members of par- 
 liament, 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 immediate investiga- 
 tion of the circumftances, were capable of deciding from 
 the impreffion made upon their own minds. 
 
 From the fame caufe, therefore, which beftowed upon the 
 commons the right of fuggefting taxes, the houfe of peers 
 1 became the ultimate tribunal of the nation, and obtained 
 the power of determining, in the lad refort, both civil and 
 criminal actions. Thus, while one of thefe branches of 
 the legiilature enjoyed an immediate accefs to the purfes of 
 the people for the public fervice, the other was intruded 
 with the guardianfhip of their lives and fortunes. What 
 was acquired by the commons, in one department, was 
 fully compenfated by what fell to the fhare of the peers in 
 another ; fo that the constitution remained upon its ancient 
 
 3 F balls,
 
 4 02 HISTORY OF THE PARLIAMENT, Book II. 
 
 bafts, and was kept in equilibrio by an equal diftribution of 
 privileges. 
 
 It may farther deferve to be remarked, that, by the ex- 
 dufion of the commons from the judicial power, the fu- 
 preme tribunal of the nation came to be compofed of a 
 moderate number of perfons ; a circumftance highly con- 
 ducive to the uniformity of their deciiions, as well as to 
 the expedition and regularity of their procedure. 
 
 When law-fuits, before the Norman parliament, had be- 
 come frequent, it was found inconvenient to determine them 
 in a full meeting, and they were brought, in the firft. in- 
 ftance, before the aula regis. 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 
 numerous ; while, by the divifion of its members into two 
 houfes, they were prevented, at leait. according to their 
 ufual forms, from co-operating with one another in the 
 diftribution of juftice. The fame regulation, therefore, 
 which was introduced from the peculiar iituation of the 
 lords and of the commons, was afterwards recommended, 
 no doubt, and fupported by general confiderations of 
 utility. 
 
 3. The fupreme judiciary power being limited to the 
 houfe of peers, the right of impeachment was of courfe 
 devolved upon the commons. 
 
 When perfons intrufted with great offices under the 
 crown, or enjoying any fhare in the public adminiftration, 
 were guilty of malverfation in office, or of what are called 
 high mifdemeanors, it was frequently thought neceiTary, 
 that they fhould be tried before the highelt court in the 
 nation, whofe weight alone was adequate to the talk or 
 bringing inch powerful oifenders to juitice. In the carlic. 
 
 periods
 
 Chap. VI. FROM EDWARD I. TO HENRY VII. 403 
 
 periods of the Englifh government, the nation:! council 
 was accuftomed to enquire into the conduct of the different 
 executive officers, and to punifh them for their offences. 
 The king himfelf was not exempted from fuch inquiry and 
 punifhment, more than perfons of inferiorrank. On fuch 
 great occafions, the profecution, inftead of being commit- 
 ted, as in ordinary crimes, to the management of an indi- 
 vidual, was ufually conducted by the afTembly, who acted 
 both in the capacity of accufers and judges. This was, 
 doubtlefs, a practice ill calculated for fecuring a fair trial 
 to the delinquent; but it was no more than what happen- 
 ed in criminal trials before the ordinary courts of juflice, 
 where the king was both judge and profecutor. 
 
 Upon the eftablifhment of the two houfes of parliament, 
 it became a natural and obvious improvement, that, as the 
 power of trying thofe offences was reftricted to the houfe 
 of peers, the privilege of conducting the accnfation mould 
 belong to the commons ; that branch of the legiflative af- 
 fembly, which had no fhare in the judicial department, 
 though it was no lefs concerned than the other to prevent 
 the abufes of adminiftration. In this manner the two cha- 
 racters of a judge and a profecutor, which, in the ordinary 
 courts, had been placed in different hands by the cuf- 
 tom of appointing deputies to officiate in the name of the 
 crown, came like wife to be feparated in the trial of thofe 
 extraordinary crimes, where, from the danger of arbitrary 
 meafures, an amendment of the ancient method of proceed- 
 ing was moft efpecially requiflte. 
 
 4. Befide the foregoing privileges, which, from the in- 
 fluence of peculiar circumftances, were acquired by the 
 different. branches of parliament, either houfe was led to 
 affume the power of afcertaining the perfons of whom 
 
 3F2 it
 
 4 04 HISTORY OF THE PARLIAMENT, Book II, 
 it was compoied; a jurisdiction and authority over them; 
 and the cognizance ofthefeveral rights and immunities 
 belonging to their own order. Hence it came to be efta- 
 blifhed, that the houfe of commons fhould determine ques- 
 tions concerning the election of its own members ; and that 
 every bill affecting the rights of the peerage fhould take its 
 origin in the houfe of peers. The privileges arifing from 
 this principle, which have been acquired by the houfe of 
 commons, were afterwards greatly multiplied, and variouily 
 Subdivided, in confequence of the attention given by that 
 houfe to the forms of its procedure, and to the rules and 
 maxims necefTary for fecuring its independence. 
 
 Sect. III. Concerning the Manner ofelecJing the national Re- 
 prefentatives, and the Forms of Procedure in Parliament. 
 
 THE eftablifhment of a houfe of commons, confifting 
 entirely of reprefentatives, required a fet of regulations 
 for the election of its members. From the different fitua- 
 tion of the counties and boroughs, the deputies of thofe 
 two clafTes of men came to be chofcn in a very different 
 manner. 
 
 i. Upon the firfl incorporation of a borough, the nomi- 
 nation of particular perfons, for diftributing juftice, for 
 managing the funds, and for executing the other bufinefs 
 of the community, would feem naturally to belong to all 
 its members, who have a common concern in thofe branches 
 of administration. In thofe towns, accordingly, where 
 commerce had introduced a degree of wealth and indepen- 
 dence among the bulk of the inhabitants, fuch a popular 
 plan of government appears to have been generally adopted. 
 
 But
 
 Chap. VI. FROM EDWARD I. TO HENRY VII. 40^ 
 But in many of the boroughs, whofe trade was more in 
 its infancy, the people of inferior rank were flill too poor, 
 and in too fervile a condition, to claim the privilege of 
 electing their own adminiftrators ; and by their neglecting 
 to intermeddle in public buiinefs, the care of every thing 
 relating to the community was devolved upon particular 
 citizens, diftinguiihed by their opulence. When the bo- 
 roughs were afterwards permitted to have a voice in par- 
 liament, the differences in their condition occaiioned the 
 lame, or even a greater diverfity in the mode of ehoofmg 
 their reprefentatives ; and, in a long courfe of time, many 
 other varieties were added, from the operation of accidental 
 circumftances. In fome towns, therefore, the reprefenta- 
 tives 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 lingle perfon. 
 
 Two forts of inequality were thus produced in the re- 
 prefentation of the mercantile and manufacturing intereft : 
 the one from the very different magnitude of the boroughs, 
 who fent, for the moft part, an equal number of reprefen- 
 tatives : the other, from the very different number of vo- 
 ters, by whom, in each borough, thofe reprefentatives were 
 chofen. But this inequality, whatever bad confequences 
 may have flowed from it in a later period, was originally 
 an object of little attention, and excited no jealoufy or com- 
 plaint. The primitive burgefTes were fent into parliament 
 for the purpofe chiefly of making a bargain with the crown, 
 concerning the taxes to be impofed upon their own conlli- 
 tucnts ; and the reprefentatives of each borough had mere- 
 ly the power of confenting to the mm paid by that com- 
 munity which they reprefented, without interfering in 
 
 whar
 
 4o5 HISTORY OF THE PARLIAMENT, Book II. 
 
 what was paid by any other. It was of no confequence, 
 therefore, to any one borough, that another, of inferior 
 
 j or opulence, fhould have as many reprefentatives in 
 the national afiembly ; fince thofe reprefentatives, as far as 
 
 . were concerned, could only protect their own corpo- 
 
 tion, but were incapable of injuring or hurting their 
 neighbours. So far were the boroughs from entertaining 
 a jcalouiy of one another upon this account, that fome of 
 them found it more eligible to acquiefce in whatever aids 
 the thought proper to demand, than to be at the ex- 
 
 pence 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 the reign of Edward the Firft. 
 Mr. Browne Willis has produced a large lift of boroughs, 
 which had early fent reprefentatives into parliament, but 
 which loft that privilege by difufe ; and there is no doubt 
 that fcveral towns, which had been incorporated, and 
 which obtained the denomination of boroughs, exerted 
 themfelves from the beginning, and fuccefsfully, in avoid- 
 ing any parliamentary reprefentation 
 
 Neither was it originally of much importance to any 
 parliamentary borough, in what manner its deputies were 
 chofen; for thefe, being inftructed by the corporation, 
 with reipeel: to the precife amount of the fupply to be 
 granted, were only the meffengers, who declared the will 
 of their conftituents ; and as they were not entrufted with 
 discretionary powers, their behaviour occafioned no appre- 
 henfion or anxiety. The honour of being the reprefenta- 
 tive of a borough was, in thofe times, little coveted ; and 
 the privilege of voting in his election was yet lefs. The 
 rank which the burgefTes held in parliament was too low to 
 
 become
 
 Chap. VI. FROM EDWARD I. TO HENRY VII. 407 
 become the object of much intereft or felicitation; and 
 thofe who voted for a burgefs, were fo far from gaining 
 any thing by it, that they had icarcely an opportunity of 
 obliging their friends. 
 
 2. The knights of the mires were atfirft elected, in each 
 county, by a meeting compoied of the fmall barons, or 
 Vaftals of the crown. Of this, from the nature of the thing, 
 it feems hardly pofftble to doubt. The fmall barons had 
 been originally members of parliament, but were excufed 
 from perfonal attendance, upon condition of their lending 
 representatives. Who could have a right to choofe thofe 
 reprefentatives, but the perfons whom they reprefented ; 
 the perfons by whom they were fent ; and who bore the 
 charges of their attendance ? 
 
 But although the vafTals of the crown only had, in the 
 beginning, a right to interfere in the appointment of the 
 knights of fhires ; the rear-vqffals 9 or inch as held their 
 lands of a fubjecT-fuperior, were afterwards admitted to a 
 fhare in the election. This, although an important change 
 in the conftitution of parliament, has pafled, like many 
 others, without any notice of coterrtporary hiftorians. Of 
 the circumftances from which it proceeded, a probable 
 conjecture feems to be the utmoft that can be attained. 
 
 The fmall barons, or vafTals, who, exclusive of the nobi- 
 lity, held their lands of the crown, and thole who held 
 of a fubject-fuperior, were feparate orders of men, who 
 originally, by their fituation, were removed to a great c :'■.- 
 tance from each other. As members of the community, 
 they appeared to be diftinguimed moil: remarkably in two 
 refpecls. The vafTals of the crown fat in parliament: thofe 
 of a fubject-fuperior were members of his baron-court. 
 The former were liable for aids, and for the other feudal 
 
 incidents,
 
 4 o8 HISTORY OF THE PARLIAMENT, Book II. 
 
 incidents, to the king : the latter were bound, for fimilar 
 duties, to their inferior liege lord. 
 
 But thefe diftincHons, ariiing from the feudal policy, 
 continued no longer than while that lyilem remained in its 
 vigour- After the reien of Edward the Firft, the fmall 
 barons, having ceafed to attend in parliament, othcrwife 
 than by reprefentatives, were at length underftood, unlefs 
 when particularly called by the king, to have no more 
 a feat in that afTembly than the vaffals of a fubject- 
 fuperior. 
 
 With refpedl to the feudal incidents, great alterations, 
 in the courfe of time, were alfo produced. The demelhes of 
 the crown, together with the extraordinary aids, and other 
 incidents, drawn from the crown-vafTals, 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 fociety, had from time to time 
 been encreafed, thefe funds became at length infufficient ; 
 new fupplies were demanded by the king; and, after 
 ftretching as far as pomble the ancient duties of the 
 crown- vafTals, it was found neceflary to levy an afleffinent 
 upon all the proprietors of land, without confidering 
 whether they held immediately of the king, or of a 
 fubjec't. The greater part of the public burdens came thus 
 to be impofed upon the nation at large; and the cafual 
 emoluments, which the crown derived from its imme- 
 diate vafTals, became, in proportion, of little importance. 
 
 In this fituation, there was no longer any effential dif- 
 ference between the fmall proprietors of land, who held 
 immediately of the crown, and thofe who held of a fubjec't.. 
 Neither of them had any right, in their own perfons, to 
 fit in the houfe of commons. Both of them, according to 
 
 4 the
 
 Chap. VI. FROM EDWARD I. TO HENRY VII. 409 
 
 the later notions of property, had the fame full power over 
 the refpective eft ate s which they pofTeffed; and the eftates 
 of both were equally fubject to the taxes impofed upon the 
 counties. Both of them, therefore, were equally beholden 
 to the knights of the (hires, by whole content thofe taxes 
 were impofed, and who had it in their power to fecure 
 either the one or the other from oppreflion. As thofe two 
 clafTes of men thus reaped an equal benefit from the fer- 
 vice of the knights of fhires, it became reafonable that 
 they fhould contribute jointly to the expence with which 
 that fervice was attended ; and if they joined in maintain- 
 ing the county-reprefentatives, it was no lefs equitable, 
 that they fhould have a voice in their election. If thev 
 fubmitted to the burden, they could not decently be exclu- 
 ded from the privilege. 
 
 By this relaxation of the feudal fyftem, the foundation 
 of the houfe of commons was enlarged ; and its eftablifh- 
 ment was rendered more extenfively ufeful. The knights 
 of the fhires became properly the reprefentatives, not of 
 one clafs, but of the whole gentry of every rank and defcrip- 
 tion. All the independent property in the kingdom was, 
 according to this conftitution, reprefented in parliament : 
 the lords appeared in behalf of their own pofTefTions ; the 
 inferior landed intereft fell under the care of the county- 
 members ; and the burgefTes were entrufted with the pro- 
 tection of that wealth which was employed in trade. 
 
 Such, in all probability, were the circumftances, from 
 which the rear-vafTals obtained a ihare in the election of 
 county-members ; but at what time this change was pro- 
 duced 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 
 
 3 G ftatute,
 
 4 io HISTORY OF THE PARLIAMENT, Book IL 
 ftatute, it docs not appear to have introduced any fitch 
 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 ge- 
 neral proviiion for fecuring the freedom of their election, 
 us well as for preventing undue returns by the fherifY*. 
 
 A late refpectable hiftorian, notwithstanding all the light 
 which has been thrown upon the fubject in the prefent 
 age, declares it mil to be his opinion, not only that the 
 knights of counties were coeval with the exiftence of the 
 Englifh parliament ; but that, from the beginning, they were 
 chofen, as at prefent, in a joint meeting of the rear-vailals, 
 and thole who held immediately of the crown t. The 
 former part of this opinion has been already examined* 
 With regard to the latter, it is totally inconfiftent with the 
 original plan of the feudal government. But what puts 
 the matter beyond all pofUbility of doubt, is, that in Scot- 
 land, whofe conftitution, from a fimilarity of circumflances, 
 as well as from imitation, is extremely analogous to that 
 of England, but who, from the flow progrefs of arts, has 
 retained a number of her primitive regulations; in Scot- 
 land, the original practice has been invariably continued; 
 and, from the firft introduction of county-reprefentatives 
 to the prefent day, no perfon who does noc hold his lands 
 immediately of the crown, whatever be the extent of 
 his property, has ever been permitted to vote in a county 
 election %. 
 
 * 7 Henry IV. c. 15. See a farther provifion to the fame purpofe, 11 Henry IVo 
 
 c. 1 
 
 t See Lord Lyttelton's History of Kcnry II. 
 
 X Holding of the prince of Wale?, is in Scotland viewed in the fame light with 
 ig of the king. 
 
 x When
 
 Chap. VI. FROM EDWARD I. TO HENRY VII. 411 
 
 When a number of the crown-vafTals had been excufed 
 from perfonal attendance in parliament, on account of the 
 fmallnefs of their fortunes, it might have been expected 
 that fome rule would be eftablifhed, concerning the precife 
 extent of property which gave a title to this concefllon ; 
 and that an exact line of partition would thus be formed 
 between the fmall barons, or gentry^ and the great barons, 
 or nobility. It appears, however, that no fuch regulation 
 was ever made. The liberty of abfence enjoyed by parti- 
 cular members of parliament, feems to have depended, at 
 firft, upon the mere will of the fovereign, who never 
 thought of reftraining himfelf with regard to the terms 
 upon which he granted this indulgence. To procure this 
 liberty was the aim of by far the greater part of the crown- 
 vafTals ; as to prevent the unreafonable extenfion of it, was 
 the great object of the king ; and the exemption was, by 
 cuftom, eftablifhed in favour of individuals, before any pre- 
 cautions had been fuggefled for afcertaining its boun- 
 daries *. 
 
 The want of a general rule to define the limits, in point 
 of property, between the fmall and the great barons, ap- 
 pears to have produced an irregularity in this part of the 
 conftitution. Thofe crown-vafTals whofe attendance in 
 parliament had been dilpenfed with, continued ever after 
 to be excluded from that afTembly, and their pofterity re- 
 
 * It feems at one time to have been intended by Edward I. that perfonal attend- 
 ance in parliament fhould be required from every landed proprietor, whofe yearly rent 
 was above 20I. This was the rule prefcribed to the fheriffs of counties, in fummon- 
 ing the crown-vafTals to an afTembly held in the eleventh of that king's reign. This 
 was alfo the extent of property in Scotland, which diftinguilhed the great barons, 01 
 thofe who were " conjlrenzied to come to the parliament or general council." Pail. 
 M57> c - 75. 
 
 3 G 2 mained
 
 412 HISTORY OF THE PARLIAMENT, Book II. 
 mained in the fame fituation, however great the fortune 
 which they might happen to acquire. On the other hand, 
 thole opulent "barons who continued, in their own right, 
 to lit in parliament, after the time of Edward the Firft, 
 retained for the future their feat in the houfe of peers, not- 
 withstanding all the viciffitudes of their fortune, and what- 
 ever might he the degree of poverty to which they were 
 afterwards reduced. Property, the natural fource of influ- 
 ence and authority, was, in this manner, detached from 
 political power; while indigence, the parent of fervility 
 and dependence, was often inverted with privileges which 
 he was not qualified to exercife. The former inconvenience 
 might, in particular cafes, be removed by the interpofl- 
 tion of the fovereign ; who could, at pleafure, create any 
 commoner a member of the houfe of peers : but the 
 latter admitted of no remedy ; fince a peer, who had 
 fquandered his eft-ate, could not, unlefs he committed a 
 crime, be deprived of his rank ; and fince by that rank 
 he was excluded from the ufual means of repairing his 
 fortune*. 
 
 As there was no regulation concerning the grcatejl ex- 
 tent of property, from which a baron might be excufed 
 from attending in parliament, fo there was originally none, 
 with refpect to the leajl which entitled him to vote for a 
 county-member. All the crown-vafTals whatever, whofe 
 perianal attendance was difpenfed with, had of courfe a 
 title to choofe reprefentatives, and were bound by their 
 joint contribution to defray the expence of maintaining 
 
 * There occurs, in the reign of Edward IV. an act of parliament, declaring, in the 
 cafe of George Nevil, duke of Bedford, that his title of honour, as a duke, was void 
 and extinguifhed, in rcfpecl of his poverty, by which he was incapable of fupporting 
 
 bib dignity. 
 
 them.
 
 Chap VI. FROM EDWARD I. TO HENRY VII. 413 
 them* 1 . But when landed property had undergone fo 
 much divifion, that the pofTeiTions of many individuals 
 were become extremely infignificant ; more efpecially 
 after the rear-vafTals had been joined with thofe who held 
 immediately of the crown, in voting for the county-mem- 
 bers ; the poorer fort of proprietors endeavoured to excufe 
 themfelves from contributing to the fupport of national re- 
 presentatives ; and, upon being relieved from that bur- 
 den, had no longer a pretence for interfering in their 
 election. 
 
 By an act of parliament, in the reign of Henry the Sixth, 
 it is provided, that the knights of mires mall be chofen by 
 perfons reiiding within the fame county, and pofTefTed of 
 lands or tenements, of which the yearly rent, free from all 
 charges, amounts to forty millings t. By another ftatute, 
 in the fame reign, it is declared, that the voter mall have 
 this eftate within the county where the election is made t. 
 Mr. Hume is of opinion, that forty fhillings, at that time, 
 making allowance for the alteration in the weight of the 
 coin, and in the price of commodities, was equivalent to 
 near twenty pounds of our prefent money. 
 
 According as parliament had occafion to determine a 
 greater variety of queftions, had attained more experience 
 in difcufling the bufmefs which came before it, the forms 
 of parliamentary procedure became an object of greater 
 attention, and received, as we may eailly imagine, a variety 
 
 * Wkh rc r pz£t to the contribution laid upon the counties for nlaintainihg the mem- 
 bers, fee Ahulox Finna-l-urgi. It was at firft levied by the kino's writ; an J after- 
 wards by act of parliament, from the time of Richard II. Sec 12 Rich. II. c. 12. 
 
 t 8 Henry VI. c. 7. 
 
 J 10 Henry VI. c. 2. 
 
 Of
 
 414 HISTORY OF THE PARLIAMENT, Book II. 
 
 of improvements. The appointment of a prefident, in 
 order to prevent confufion in delivering opinions, to declare 
 the refult of a debate, and even, in fome meafure, to di- 
 rect the method of handling any queftion, was a ftep, fo 
 neceflary in a numerous meeting, that we meet with it as 
 far back as there are any records of the Englifh national 
 council. The lord high fteward, as I formerly took notice, 
 was anciently the perfon who, in abfence of the king, pre- 
 fided in that afTembly ; and when that officer no longer 
 exiited, the chancellor, who then rofe to the chief conlide- 
 ration in the king's houfehold, was commonly entrufled 
 with this department. After the divifion of parliament 
 into two houfes, this officer continued in mod cafes to pre- 
 fide in the houie of peers ; but in that of the commons, 
 whofe deliberations were totally feparate, another prefident 
 became necefTary. 
 
 From the primitive fituation of the commons, who, in 
 all cafes, were inftructed how to act, they had no oppor- 
 tunity of debating upon any fubject; but they required 
 a perfon to intimate their determinations to the king ; 
 and for this purpofe they, at firft, elected a fpeaker. The 
 farther the bufinefs of that houfe was extended, the more 
 they ventured 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 prefident. The firft 
 election of this officer, upon record, occurs in the firft 
 parliament of Richard 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 confpicuous, as to attract 
 the attention of the public. 
 
 One
 
 Chap. VI. FROM EDWARD I. TO HENRY VII. 415 
 
 One of the principal branches of bufinefs which fell 
 under the confideration of parliament was legiflation. The 
 firit method of conducting a meafure of this kind was by a 
 petition from parliament addrefTed to the king, fetting 
 forth ibme particular grievance or inconvenience, and re- 
 queuing that it mould be removed. To the king belonged 
 the direction both of the executive and judicial powers; 
 and, agreeably to the fpirit of a rude age, he was originally 
 under no reftraint in the exercife of his prerogative, far- 
 ther than what might arife from his apprehenfion of incur- 
 ring the public difpleafure. By a Itatute it was propofed to 
 limit the former difcretionary power of the king, and, out 
 of refpect 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 law was, in fact, 
 an innovation of the ancient eftablifhment, it required the 
 agreement of all parties concerned ; that is, of the national 
 afTembly, including virtually the whole people, and of the 
 king, whofe power was to undergo a limitation. When 
 the petition, therefore, had pafTed the two houies, and had 
 obtained the confent of the king, it became an act of the 
 legiflature. 
 
 The petitions which had thus been granted, during the 
 conrfe of a parliament, were afterwards digefted into the 
 form of a ftatute ; and, as the execution of this talk required 
 a degree of legal knowledge, it was devolved upon the 
 principal judges of the kingdom. From the obfervation, it 
 is faid, that rmfiakes and abufes were committed in a mat- 
 ter of fuch importance, it was provided, in the reign of 
 Henry the Fifth, that the ftatutes ihould be drawn up by 
 the judges before the end of each parliament ; and, in the 
 reign of Henry the Sixth, the r>refent mode of prefenting 
 
 bills
 
 4i6 HISTORY OF THE PARLIAMENT, Book II. 
 
 bills to parliament, already digcfted in the form of a ftatutc, 
 was nrft introduced *. 
 
 For fome time after the introduction of the commons 
 into parliament, no notice was taken of them in the cha- 
 racter of legiflators. The burgefTes who compofed the nrft 
 houie of commons, were not regarded as the adviiers of the 
 crown ; and if on any occafion they were capable of extort- 
 ing a redrefs of grievances, it was merely by creating an 
 apprehennon that they might refufe the fupply which was 
 demanded from them. In the beginning of the reign of 
 Edward the Third, the commons are mentioned in the 
 character of petitioners ; and the ftatutes are faid, in the 
 preamble, to have been ordained " at the requeft of the 
 " commonalty of the realm, by their petition made before 
 " the king and his council in the parliament, by the afTent 
 u of the prelates, earls, barons, and other great men afTem- 
 " bled at the faid parliament." The union of the knights of 
 mires, in the fame houfe with the burgefTes, contributed 
 quickly to beftow a deliberative voice upon the aggregate 
 body of the commons; and in the reign of Richard the 
 Second, we find them interfering in public regulations of 
 the highefl importance t. In digefting the ftatutes, how- 
 ever, the old fble was continued, until the reign of Edward 
 the Fourth ; when laws are faid to be eftablifhed by the 
 advice and conjent of the lords y at the requejl of the com- 
 monS) and by the authority of the fame parlia?nent \. 
 
 From the primitive method of conducting bills for a 
 new law, in the form of a petition to the king, was derived 
 the cuftom that they mould take their origin from parlia- 
 
 * See Blackflone's Commentaries, 
 f See Guidon's Hiftory of Parliament. 
 Sec the Preamble to thofc Statutes. 
 
 ment.
 
 Chap. VI. FROM EDWARD T. TO HENRY VII. 4.T7 
 merit, and that the king mould give no opinion concerning 
 them, till they had been approved of in that affembly. As 
 the king had no inclination to limit his own discretionary 
 powers, it was never fuppofed that a bill for that purpofe 
 would be fuggefted by the crown. All that could be expected 
 from the fovereign, in a matter of this nature, was, that he 
 would be gracioufly pleafed to comply with the defires of 
 his people, communicated to him by the national council : 
 and when a bill had come to be agitated in parliament, it 
 was not yet confidered as the requeft of the nation, and 
 could not, therefore, be regularly prefented to the king, 
 for the royal afTent, before the two houfes had given their 
 authority for that meafure. 
 
 Such was the original foundation of a maxim, which is 
 now regarded as one of the main pillars of the Britifli 
 constitution ; that the king's negative upon bills mail not 
 be interpofed, until they have undergone the final difcuf- 
 fion of the two houfes of parliament; and, as a confe- 
 quence of this, that he mall not take notice of any bill 
 depending in parliament, until it Shall be communi- 
 cated to him in the ufual and parliamentary manner. 
 The effect of this maxim, in fupporting the democratical 
 part of the government, is now univerfally admitted ; but 
 that it was dictated by a regard to the interest of the peo- 
 ple, or from the view of encreafing their weight in the 
 exertions of the legiflature, there is no reafon to believe. 
 It is probable, on the contrary, that the form of procedure 
 above mentioned was thought advantageous, or at lead re- 
 fpectful, to the fovereign ; as it prevented his being trou- 
 bled with Solicitations to limit his power, until there was 
 an immediate neceflity for it. But in reality, this method 
 of conducing the deliberations of the legillature, was not 
 
 3 H the
 
 4 iS HISTORY OF THE PARLIAMENT, Book II. 
 
 the fruit of any pre-conceived fyftem of policy, nor the 
 refult of any claim of right, cither upon the part of the 
 king, or of parliament; it arofe merely from the nature of 
 the bufinefs under confulcration, which was moil conve- 
 niently brought to an iiTue in that manner ; and, as this 
 gave rife to a practice, which was obferved with fome de- 
 gree of uniformity, fo, in the revolution of ages, the an- 
 cient uiage, whole utility became daily more obfervable, 
 was inverted with complete legal authority. 
 
 It merits attention, however, that what has been ob- 
 ferved, concerning the method of ordinary legillation, is not 
 applicable to the impofition of taxes. As the effect of a 
 ftatute was to afcertain and determine the behaviour of the 
 king, and confequently 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 oppoiite courfe, therefore, was followed in 
 thofe two branches of government. The people were un~ 
 derftood to be the prime movers in the former -, the king, 
 injthe latter. The propofal for a new law proceeded upon 
 a petition from parliament to the crown. The propofal for 
 a new tax proceeded upon a requeft or folicitation of the 
 crown to parliament. Each of thefe parties having fome- 
 thing to beftow which the other wanted, they both became 
 coy and referved in the ; r turn, and, by their addrefs and 
 perfeverance, were enabled to extort reciprocal advantages. 
 When the king was in want of money, he offered his con- 
 fent to beneficial regulations, upon condition that certain 
 taxes were impofed. When parliament were about to grant 
 fupplies to the crown, they took advantage of its necelTi- 
 ties, and, as a preliminary article, ftipulated the redrefs of 
 grievances. 
 
 6 Upon
 
 Chap. VI. FROM EDWARD I. TO HENRY VII. 419 
 Upon this principle, that taxes are granted by parlia- 
 ment, at the defire of the king, is founded a rule, at pre- 
 fent, "that the houfe of commons fhall receive no petition 
 " for any fum of money relating to the public fervice, 
 " but what is recommended from the crown." And when 
 a money bill is offered to that houfe, it is necefTary, that 
 the chancellor of the exchequer, or fome other officer of 
 the crown, fhould declare, " that his majefty, having been 
 " informed of the contents of the faid bill, recommends 
 " the fame to the conlideration of the houfe *." After this 
 preliminary Hep, a bill for the impofition of taxes is con- 
 ducted in the fame courfe, and pafTes through fimilar flages 5 
 with every other matter which comes under the determi- 
 nation of the legiflature. 
 
 * See Hatfell's Proceedings in the Houfe of Commons* 
 
 3 II 1 CHAP.
 
 420 ALTERATIONS IN THE STATE Book II. 
 
 CHAP. VII. 
 
 Alterations in the State of the ordinary Courts ofjujiice. 
 
 THE reign of Edward the Firft is no lefs diftinguifhed 
 by inftitutions of great importance relating to the 
 diftribution of juftice, than by thofe which have been 
 mentioned with regard to the legiflative 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 refpecting the exer- 
 ciie of the judicial power, and fome of the moft remarkable 
 confequences with which they were attended, we fhall 
 proceed to examine. 
 
 Sect. I. Eflablijbment of the Courts of Common Lazv, 
 
 at Wejlminjler. 
 
 THE aula regis, which, after the Norman conqueft, 
 had rifen by degrees out of the high court of parliament, 
 was productive of great advantages, by facilitating the dis- 
 tribution of juftice. A full meeting of parliament could 
 not be obtained, unlefs upon fingular occafions; but this 
 tribunal, confifting of a fmall number of judges, and thefe 
 commonly attending the king's perfon, could eafily be held 
 upon any emergency, and was ready to take cognizance 
 of every complaint. 
 
 " Although 
 
 ■ 
 
 \
 
 Chap. VII. OF THE COURTS OF JUSTICE. 421 
 
 Although the inftitution of the aula regis, how- 
 ever, was, at the time of its introduction, accommodated 
 to the infant ftate of improvements in the country, yet, 
 in a fubfequent period, when thofe improvements were 
 advanced to greater maturity, and when the authority of 
 government was better eftablifhed, its interpositions bjcame 
 not only defective, but liable to many inconvenfencies. 
 For fome time after the Norman conqueft, the inveftiga- 
 tion of law-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 neighbour- 
 hood 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 members 
 of fociety, as well as the forms of judicial procedure, fuch 
 a quick difpatch of the bufinefs was no longer practicable ; 
 and, as the court had no fixed relidence, but followed the 
 king, wherever the political ftate of the kingdom required 
 his prefence, it was frequently necefTary that caufes mould 
 be decided in a part of the country very remote from that 
 in which they had arifen. The circumftances of this am- 
 bulatory court, became thus inconfiftent with the leifure 
 and deliberation requifite for judges in forming their deci- 
 fions ; and ftill more incompatible with the intereft of par- 
 ties, who, in many cafes, were obliged to attend the court 
 from place to place, and fometimes, before they could ob- 
 tain a final fentence, to travel over a great part of the king- 
 dom. This attendance was rendered more expenfive and 
 burdenfome, from the gradual advancement of law, as a 
 fcience ; which tended to promote the employment of 
 lawyers, as well as other retainers of judicial controverfy; 
 and which, by contributing to encourage the fullefl and 
 9 moft
 
 422 ALTERATIONS IN THE STATE Book II. 
 
 moil ample difcufTion of every plea, laid parties frequently 
 under the neceflity of calling a number of witneffes in fup- 
 port of their feveral averments. 
 
 It was to be expected, therefore, that, according to the 
 general improvements of the country, the attention of go- 
 vernment would be directed to the removal of thefe incon- 
 veniencies ; by rendering the aula regis a itationary court, 
 or at leaft by appointing, that it mould hold regular meet- 
 ings at particular j^laces. 
 
 While the natural progrefs of improvement in the king- 
 dom appeared to require this alteration in the Irate of the 
 principal tribunal, the increafe of judicial bufinefs had like- 
 wife a tendency to diftinguifh different branches of juris- 
 diction, and to place them in the hands of different judges. 
 The profecutions carried on againfr. atrocious offenders, to 
 fatisfy public juftice, and to prevent the future commiffion 
 of crimes, came to be viewed in a different light from pri- 
 vate controverfies concerning property, and the various 
 rights and obligations which occur among individuals. 
 Law-fuits of the former fort, or criminal aclions, are ufually 
 much lefs numerous than thole of the latter, which have 
 received the appellation of civil aBions. The trial of a 
 crime is apt to be terminated in a more expeditious manner, 
 than a civil procefs. Thofe heinous offences, which are 
 fuppoled to require a profecution at the inftance of the 
 public, excite, for the molt part, a general indignation in 
 the minds of men, who are therefore difpofed to call for a 
 fpeedy vengeance upon the criminal. In many of thofe 
 offences, befides, it is neceffary, that, before a profecution 
 is commenced, the perfon fufpected of the crime fhould be 
 arrefted and imprifoned, in order that, if guilty, he may be 
 \ revented from efcaping a trial; and the hardships to which 
 
 he
 
 Chap. VII. OF THE COURTS OF JUSTICE. 423 
 
 he is thus unavoidably fubjedled, together with the diffi- 
 culty of fecuring his perifon, afford additional reafons, from 
 expediency, as well as from juitice, for bringing the a&ion 
 againft him to a fpeedy conclufion. To all thefe peculiar 
 circumftances, we may add, that the laws of a country, 
 refpedting the puniihment of crimes, are ufually plain and 
 fimple ; fo that, in profecutions of this nature, the judge 
 can feldom have any farther difficulty, than what arifes 
 from the invefligation of the fact. 
 
 Law-fuits about private property are in a different fitua- 
 tion. A cool fpedtator feels himfelf but little interefted in 
 fuch difputes ; and it feems reafonable that the parties 
 mould be left, in a great meafure, to their own difcretion 
 in bringing the buiinefs to an iffue. As in fuch differences 
 there is no reafon to fufpect that either party will endea- 
 vour to efcape from juftice, no imprifonment of either is 
 neceffary. The laws, too, relating to the civil rights of 
 mankind, are apt to become fo numerous and intricate, as 
 may occafion great hefitation and embarraffment in apply- 
 ing them to particular cafes. Thefe peculiarities, by mul- 
 tiplying the pleadings of parties, as well as the delays of 
 court, and by introducing peculiar forms of procedure, have 
 contributed to diftinguifh a civil from a criminal action . 
 
 To thefe two fpecies of law-fuits may be fubjoined a 
 third, arifing from difputes between the king and the peo- 
 ple, in matters of revenue. Such law-fuits are calculated 
 to intereft the public, at lead the crown, like a criminal 
 trial ; at the fame time that they are ftrictly of a mere pecu- 
 niary nature. Though the public revenue of a ffate is 
 really the property of the community, yet, in a monarchical 
 government, the fovereign, who has the immediate difpofal 
 of that revenue, and who reaps more benefit from it than 
 
 any
 
 424 ALTERATIONS IN THE STATE Book IL 
 
 any other individual, is likely to coniider it as his own patri- 
 mony, and to become particularly attentive to the fupport 
 and encouragement of thole judges by whom it is made 
 effectual. 
 
 Thus, in every kingdom which is advancing in improve- 
 ment, the fame divifion of labour which takes place in the 
 arts becomes alfo convenient in the conduct of law-fuits ; 
 and, upon the fame principle which gives rife to feparate 
 trades and profefiions, the province of diftributing juftice 
 will be divided, and appropriated to a number of diftinct 
 judicatories. 
 
 Thefe two objects, the fixing the refidence of the aula 
 regis to a particular place, and the divifion of the powers 
 with which it was inverted, had not been entirely over- 
 looked by the Englifh, before the time of Edward the Firfl. 
 From what has been already obferved, it is evident, that 
 an ambulatory court is lefs qualified for difcufling a civil 
 than a criminal action. From the multitude of civil, in 
 comparifon of criminal caufes, fuch an unfettled tribunal is 
 attended with more inconvenience to the judge ; from the 
 greater length of time required in their difcuflion, it is more 
 burdenfome to the parties. 
 
 We accordingly find, that, by a claufe in the great char- 
 ter of king John, an improvement was made with refpect 
 to the exercife of civil jurifdiction ; a court of common pleas 
 was detached from the ancient aula regis, and was appoint- 
 ed, for the future, to have a permanent relidence *. The 
 making this an article in that great tranfaction between the 
 king and his nobles, is a proof that a regulation of this na- 
 ture was thought of the utmoft importance ; and that the 
 
 u Communia placita non fequantur curiam regis, fed tcneantur in aliquo loco 
 « certo." 
 
 want
 
 Chap. VII. OF THE COURTS OF JUSTICE. 425 
 
 want of it, in former times, had been a ground of general 
 complaint. The new court of common pleas, which was 
 thus erected, and held by feparate judges, appears to have 
 been deemed inferior in rank to the criminal court, held by 
 the grand jufticiary, and in which the king continued fome- 
 times to fit in perlbn. For this reafon, the latter court was 
 permitted, in certain cafes, to review the decifions of the 
 former *. 
 
 Even at an earlier period, the aula regis, when acting as 
 a court of revenue, had been fo far diftinguifhed as to have 
 a feparate prefident ; that officer who had the charge of the 
 public treafury t. 
 
 At laft, in the reign of Edward the Firfl, thefe change* 
 were completed : the court of the grand jufliciary was en- 
 tirely abolifhed ; and three permanent courts were efta- 
 blifhed at Weftminfter ; a court of king's bench, to have the 
 cognizance of crimes ; a court of common pleas, to deter- 
 mine civil caufes ; and a court of exchequer, to decide in 
 matters of revenue. As the jurifdidtion 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 judges. 
 
 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 natural courfe of things in 
 abolrfhing this court, and in producing the inftitutions 
 which came in its place. The office of the grand jufliciary 
 was originally an appendage of that of the lord high flew- 
 ard ; who, in all the feudal kingdoms, was the chief officer 
 
 * See Blackftone's Commentaries, Book III. 
 
 t Baron Gilbert's Hiftory of the High Court of Chancery. Dialogus tie Schac- 
 cario. 
 
 3,1 of
 
 426 ALTERATIONS IN THE STATE Book II. 
 
 of the king's houfehold, and the perfon next in power 
 and dignity to the fovcreign. As an employment of 
 fuch high importance was naturally claimed by one of the 
 greateit of the nobility, fo his remaining in the pofTef- 
 fion of it could not fail to augment his opulence and au- 
 thority. It was the fame officer in France, who, at an 
 early period, found himfelf in a condition to dethrone 
 the Merovingian race of kings, and to eftablifh the crown 
 in his own family. We need not wonder, therefore, 
 that Edward, a prince of equal policy and activity, and 
 who had been fuccefsful in extending the regal authority, 
 mould be defirous, at the fame time that he improved the 
 judicial eftablifhments, of putting an end to the existence 
 of a minilter, of whofe defigns he might be apprehenfive, 
 and whom he found it difficult to retain in fubjection. 
 The chief juftice, who prefided in the new criminal court, 
 was confidered merely in the light of a judge, without any 
 ihare of public adminiftration. 
 
 In this, as well as in other branches of government, the 
 hiftory of modern Europe exhibits a remarkable unifor- 
 mity ; accompanied, however, with certain varieties, the 
 effecT: of accidental circumftances. The cour de roy in France, 
 which, like the Englifh aula regis, had grown out of the 
 national council, and which was like wife an ambulatory 
 court, was at length productive of fimilar inconveniencies 
 to thofe felt in England ; and it was thought proper to re- 
 move them by giving a permanent refidence to this tribu- 
 nal. By an ordinance, in the reign of Philip the Fair, a 
 branch of the cour de roy was fixed at Paris, and another 
 at Thouloufe *; to both of which the name of parliaments 
 was given. Other courts of the fame nature were after- 
 
 *In the year 1302, 
 
 wards
 
 Chap. VII. OF THE COURTS OF JUSTICE. 427 
 
 wards added in different diftricts, or had arifen in provinces 
 which came to be reduced under the French monarchy ; 
 fo that the whole kingdom, inftead of being placed, like 
 England, under one fet of great tribunals, remaining in the 
 capital, was divided into a number of feparate territories, 
 in each of which there was a particular court, inverted with 
 a fupreme and independent jurifdiction. The multiplica- 
 tion of law-fuits in any of thofe courts occafloned a fubdi- 
 vifion of its members into different chambers, among which 
 the different forts of judicial bufinefs were tliftributed. 
 
 The aulic council in Germany, as I formerly obferved, 
 was, in like manner, an ambulatory court, which had ari- 
 fen from the diet of the empire ; but, from the flower im- 
 provements of that country, or perhaps from the decline 
 of the imperial dignity, the attempts of the German le- 
 giflators, to correct this inconvenient mode of diftributing 
 juftice, occurred at a much later period. In the year 1495, 
 and the reign of the emperor Maximilian, was formed the 
 imperial chamber, a new and ftationary court, with fimilar 
 powers to thofe of the aulic council. But, as this latter tri- 
 bunal was not abolifhed, the German empire has come to 
 be provided with two diftinct judicatures, the one ambula- 
 tory, the other with a fixed refidence, which have, in the 
 greater part of caufes, a concurrent jurifdiction. 
 
 In Scotland, the aula regis, both in its original conftitu- 
 tion, and in its powers, was perfectly fimilar to the court 
 of the fame name in England ; and, from fimilar motives of 
 conveniency, it was afterwards broken into the different 
 courts, of the feflion, the exchequer, and the juiticiary; 
 correfponding to the diftinction of civil, fifcal, and criminal 
 caufes ; and thefe tribunals came, at length, to have a regu- 
 lar efcablimment in the capital. 
 
 3 I 2 In
 
 428 ALTERATIONS IN THE STATE Boor il. 
 
 In confidering the policy of the judicial inftitutions, In 
 modern Europe, thofe of England and France, the two molt 
 powerful nations, appear to merit particular notice. 
 
 In France, the eftablifhment of a number of parliaments, 
 or fupreme tribunals, in different diftricts throughout the 
 kingdom, has the manifeft advantage of diminifhing the 
 expence of litigation, by bringing the diflribution of juftice 
 near the refidence of the different inhabitants : an advan- 
 tage which is farther improved, by the appointment of 
 fubordinate courts, held by the lieutenant civil and crlminel^ 
 within the diftrict of every fuperior judicatory. 
 
 The independence of thefe great tribunals has, on the 
 other hand, a tendency to produce inconilftent and jarring 
 decifions. The cliflricTfcs belonging to the different parlia- 
 ments may, fo far as the interpretation of law, and the 
 opinion of the judges, are concerned, be confidered as in 
 the flate of feparate kingdoms ; having, in the ordinary 
 operation of government, no means for fecuring unifor- 
 mity of conduct. This, no doubt, is one great caufe of 
 the diverfity of laws and cuftoms, which, notwithftanding 
 the general influence of civilized manners, is to be found 
 at prefent in different parts of the French monarchy. 
 
 To remove this inconvenience, an extraordinary mea- 
 fure is, in fome cafes, adopted. The king, who is the 
 fountain of juftice, nominates, at pleafure, any number of 
 perfons, to receive an appeal from the decifion of any par- 
 ticular parliament; and in this way, the members of one 
 parliament are fometimes appointed to review the fentence 
 of another. But this is a partial remedy, which cannot 
 t>e effectual to prevent all difcordance in the judgment of 
 thofe different courts. In a few inftances of grofs abfur- 
 dity, or flagrant injuflice, the interpofition of the fovercign 
 
 may
 
 Chap. VII. OF THE COURTS OF JUSTICE. 429 
 may be procured; but it is impoflible that he mould give 
 attention to the ordinary courfe of decifions, through the 
 whole extent of his dominions, and reftrain the numberlefs 
 varieties and inconliftencies which are introduced into the 
 common law of the country. 
 
 The judicial eftablifhments of England are totally free 
 from this inconveniency. As the principal courts have a 
 jurifdiction over the whole kingdom, the principles of law, 
 in every department, being determined by the fame fet 
 of judges, are reduced to an uniform flandard. As thefe 
 courts have, befides, a fixed refidence in the neighbour- 
 hood of each other, it was eafy for them to communicate 
 their opinions ; and hence, in order to fecure the propriety 
 of their decifions, it became cuftomary, in matters of great 
 diff]culty,.depending before any one court, to refer the deci- 
 iiora to a. meeting compofed of the judges of all the three 
 courts. With the fame view, it was provided by a ftatute 
 in. the reign of Edward the Third, that the decifions of the 
 court of exchequer may be reviewed by a court confiding of 
 the judges of the king's bench and. common pleas, with the 
 afhftance of certain officers of the crown; and by another 
 ftatute, in the reign of Elizabeth, that 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 Englifh jurifprudence has become what 
 might be expected from this general plan of the Englifh 
 tribunals. There feems to be no country in the world 
 where the lawyers and judges are fo ftronglv impreffed with 
 a notion of the advantages derived from uniformity and 
 ftability in the rules of law. That a certain rule mould be 
 eitablifhed, and invariably maintained, is juftly efteemed of 
 
 more 
 4
 
 430 ALTERATIONS IN THE STATE Book II. 
 
 uiotfe confequence, than that the rule itfelf fliould be the 
 molt perfect imaginable. Almoft any regulation whatever 
 is preferable to fluctuation and uncertainty. To fuch an 
 extreme, it fhould feem, has this principle 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 autho- 
 rity, it mall be regarded as not liable, on any future occa- 
 lion, to be altered or difputed. 
 
 But the Englifh tribunals, according to the plan above 
 mentioned, were calculated to render litigation expenfive 
 and troublefome, by giving to the capital a monopoly in the 
 distribution of juftice. The inferior judicatories, thole of 
 the baron in his own demefne, and of the fherifF in each 
 county, had, upon the advancement of the aula regis, been 
 lb far reduced as to retain only the cognizance of petty 
 crimes, and the determination of civil actions below the 
 value of forty fhilings. Thefe, therefore, could be of lit- 
 tle fervice in fettling difputes, and retraining injuftice, 
 throughout the kingdom ; and, as no intermediate courts 
 were provided, the molt part of law-fuits, both in civil and 
 criminal matters, and whether of fmall or of great import- 
 ance, could only be decided by the courts of Weftminfter- 
 halL In a country fo extenfive as England, a great propor- 
 tion of the inhabitants were thus removed to a great dif- 
 tance from the feat of juftice, and laid under many difad- 
 vantages in making their rights effedtuaL 
 
 To fupply this deficiency in the ordinary eftablifhment, 
 the king appointed certain extraordinary judges, as auxilia- 
 ries to thofe of the capital, for the purpofe of circulating 
 the adminiftration of juftice through every corner of the 
 kingdom. 
 
 3 Although
 
 Chap. VII. OF THE COURTS OF JUSTICE. 43r 
 Although the diftant refidencc 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 act with fo little 
 caution as to afford a written document of his guilt ; nei- 
 ther is it competent to demand his oath concerning the 
 truth of the facts with which he is charged. But of all the 
 methods of proof, that which requires the attendance of 
 witnefTes, more efpecially when they muft be conveyed 
 from diftant parts of a country, is neceffarily the moft ex- 
 pensive and burdenfome. In the view of public utility, it 
 is likewife expedient, that every criminal trial fhould be 
 conducted, and that the punifhment of the offender mould 
 be inflicted, as much as poilible, in the neighbourhood of 
 the place where the crime has been committed. The chief 
 object in the punifhment of crimes is to preferve the peace 
 and good order of fociety, by deterring others from follow- 
 ing the example of the criminal ; and this is moft effectu- 
 ally obtained, when the fame perfons who have beheld the 
 violation of the law, are alfo Spectators of the terror, mor- 
 tification, and tnifery, with which that violation is at- 
 tended. 
 
 From thefe considerations, when the king's bench, came 
 to have its ufual refidence at Weftminfter, the fovereign was 
 induced to grant fpecial commiflions, for trying particular 
 crimes, in fuch parts of the country as were found moft con- 
 venient ; and this practice was gradually modelled into a re- 
 gular appointment of certain commiflioners, 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, however, never ob- 
 tained
 
 432 ALTERATIONS IN THE STATE Book II. 
 
 tained an ordinary jurifdi&ion ; but continued, on every 
 occafion, to derive their authority from two fpecial com- 
 miilions ; that of oyer and terminer, by which they were 
 appointed to hear and determine all treafons, felonies, and 
 mifdemeanors, within certain diftricts; and that of gaol 
 delivery, by which they were directed to try every prifoner 
 confined in the gaols of the feveral towns falling under 
 their infpec~tion. Thus, by the addition of an ambulatory 
 court, in fupplement of another which has a fixed refi- 
 dence, precautions are taken to prevent the various and 
 oppofire inconveniencies incident to the diftribution of 
 criminal juitice ; and, as far as human inftitutions are 
 capable of attaining perfection, the moft complete eftabliih- 
 ment feems to be made for the trial and puniihment of 
 crimes. 
 
 The appointment of the circuit judges, in order to fa- 
 cilitate criminal trials, naturally fuggefted the idea, that the 
 lame commiffioners might affift the courts at Weftminfter 
 in another department, and be made fubfervient to the more 
 expeditious decifion of civil caufes. With this view the 
 oommimon of ajjife, and that of nifi prius, was granted to 
 thefe judges. By the former they were impowered to take 
 the verdid* of a jury in the trial of landed difputes. The 
 latter was intended to fliorten the procedure in ordinary 
 civil anions, by directing the judges in the circuits to in- 
 veftigate all fuch matters of fad, as were then under dif- 
 pute before any court of Weftminfter-hall *, 
 
 What is commonly an article of the greateft magnitude, 
 even in a civil procefs, the proof of the different averments 
 made by the parties, came thus to be difcuffed within 
 
 * See Blackilonc's Commentaries. Hawkins's Pleas of the Crown. 
 
 the
 
 Chap. VII. OF THE COURTS OF JUSTICE. 433 
 
 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 consideration of the great court at a 
 diflance ; a court, from its permanent iituation, as well as 
 from its authority and dignity, the belt qualified for deci- 
 ding points of fuch difficulty and importance. 
 
 To thefe regulations, of fuch manifeft utility, there was 
 added a further provifion, for maintaining the general tran- 
 quillity. When quarrels arofe among individuals, when 
 outrage and violence were committed, and thefe were likely 
 to be followed by riots and infurrections, it was in vain to 
 expect, that, by application to the ordinary courts of juftice, 
 a timely interpofition could be procured for fuppreffing 
 fuch diforders. It was expedient, therefore, that men of 
 rank and character, living in the different parts of the 
 country, and who might, of confequence, be at hand 
 upon any emergency, ihould be inverted with fufficient 
 authority to feize diforderly 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 
 oonfervators of the peace y with powers of that nature, were, 
 in the different counties, elected by the freeholders ; and 
 the fame powers were alfo annexed to many of the higher 
 offices of government. It appears that thofe magiftrates 
 had originally no cognizance of crimes, but merely an au- 
 thority to fecure offenders, in order to their trial before the 
 ordinary tribunals. We may eaiily conceive, however, 
 that fuch an employment would lead to a fpecies of jurifdic- 
 tion. When a perfon has been guilty of a breach of thv 
 peace, his conduct, although deferving animadverfion, may 
 often be unworthy of the trouble and expence which would 
 
 3 K attend
 
 434 ALTERATIONS IN THE STATE Boofc IL 
 
 attend a trial before the ordinary courts ; and if, in filch a 
 cafe, the magiftrate, who has taken the offender into cuf- 
 tody, and who muft, in fome meafure, have already exa- 
 mined the cafe, mould proceed of himfelf to inflict a mo- 
 derate punimment, the expediency of fuch a meafure 
 would afford its j unification, or at leaft would induce the 
 public to connive at fo fmall an extenfion of authority. 
 
 In the reign of Edward the Third, the appointment of 
 thole magiitrates, as might be expected from the rifing 
 ftate of the prerogative, was transferred to the crown ; at 
 the fame time that they were inverted with a power of try- 
 ing all offences excepting thofe which inferred a capital 
 punifhment *. From this period they acquired the appella- 
 tion oijujliccs of the peace. By fubfequent regulations they 
 came to be entrufted with various branches of civil jurifdic- 
 tion ; by which they were enabled, in many queftions of 
 importance, to fuperfede the interpofition of the fuperior 
 tribunals. 
 
 Although, in Scotland, the principal courts of law were 
 eftabliihed in the capital, upon the fame plan as in England, 
 the inhabitants were not fubjected to the fame inconveni- 
 ence by their diftance from the place where juftice was ad- 
 miniftercd. To fay nothing of the narrownefs of the coun- 
 try, compared with England, the Scottifh nobles maintained 
 their authority much longer than the Englifh ; and the 
 courts of the baron, and of the fheriff, were therefore 
 enabled to preferve a great part of their original jurifdic- 
 tion. As thefe tribunals had the power of determining both 
 civil and criminal actions, in their feveral diftricts, there 
 
 • By iS and by 34 Edward III. the JufUces of peace are empowered to determine 
 felonies and trcfpafTes \ but in practice their jurisdiction is reftricled to fuch felonies as 
 arc within the benefit of the clergy. See Hawkins. 
 
 4 was
 
 Chap. VII. OF THE COURTS OF JUSTICE. 435 
 
 was no neceflity for bringing fuch matters, in the firft in- 
 stance, before the fuperior courts in the capital; and upon 
 this account, although the judges of the court of judiciary 
 were empowered to make circuits over the country, as in 
 England, there was no occafion for bellowing upon them 
 any civil jurifdi£tion, correfponding to what arifes from 
 the Englifh commrflion of niji prius. 
 
 The appointment of juilice: of the peace, to fupply what 
 is defective in the jurisdiction of the ordinary courts for 
 fupprefling riot and diforder, was introduced into Scotland 
 at a later period, but in a fimilar manner, and upon the 
 fame footing, as in England. 
 
 Sect. II. Of the Petty Jury — and the Grand Jury. 
 
 FROM the progreflive alterations, which have been 
 mentioned, in the Englifh courts of juftice, it is natural to 
 conclude, that the judges were continually advancing in 
 experience and knowledge, and that the forms of judicial 
 procedure were daily attaining higher degrees of perfection. 
 Of all the inftitutions relative to the management of judi- 
 cial bufinefs, which may be confidered as the effect of that 
 improvement, thofe of the petty jury, and the grand jury, 
 are moll defervedly the boaft of Englifh jurisprudence ; and 
 as, in the period which we are now examining, both of 
 them appear to have arrived at their complete eflablilhment, 
 a review of the circumltances from which they proceeded, 
 and of the fteps by which they were introduced, may not 
 be improper. 
 
 1. I had formerly occafion to obferve, that, under the 
 government of the Anglo-Saxon-princes, the chief magis- 
 trates 
 ;K2
 
 436 ALTERATIONS IN THE STATE Book II. 
 
 tratesofthe feveral counties and hundreds, found it tin- 
 neceflary, in the determination of law-iuits, to call a full 
 meeting of the courts over which they prefided; and, for 
 the greater difpatch of the bufinefs, as well as for the eafe 
 and convenience of the people, were accuftomed to felect 
 a certain number of the freemen, or allodial proprietors, lii 
 each particular caufe, to affift in giving a decifion. Hence 
 the firfc idea of the petty jury was probably fuggefled. 
 
 In a fubfequent period, a limilar practice was adopted in 
 the courts of a barony. When the vafTals of a fuperior had 
 acquired hereditary fiefs, they were no longer under the 
 necefhty of fubmitting to his arbitrary will ; and in regu- 
 lating their conduct, as well as in diflributing juftice among 
 them, he found it expedient to a6t with their advice and 
 concurrence. To have affembled the whole of his vafTals, 
 for the determination of every law-fuit, would have been 
 too great a hardfhip upon them ; but a moderate number 
 were convened, in order to fatisfy the parties, and to give 
 weight and authority to the fentence. 
 
 The calling, occafionally, a number of the vaflals, in each 
 cafe, to aflilt the fuperior, was a more natural expedient, 
 than the appointment of certain permanent afTefibrs. It 
 was attended with no trouble or expence ; for every vafTul 
 was bound not only to fight for the fuperior, but alio to 
 perform fuch other fervices as might be requiiite, in order 
 to fupport his authority and dignity. According to the 
 iimple notions of that age, thefe perfons were lufricicntly 
 qualified to determine the points referred to their deciiion ; 
 more efpecially as they might receive advice and direction 
 from the magiftrate. In fome 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 
 
 fit nation,
 
 Chap. VII. OF THE COURTS OF JUSTICE. 437 
 
 lituation, having frequently accefs to know the ftate of the 
 controverfy, as well as the circumftances of the facts in 
 queliion. 
 
 The introduction of juries in the courts of a barony, 
 arofe from the eitablifhment of hereditary fiefs ; for, fo 
 long as vaflals held their land precariouily, or even were 
 not fecure of tranfmitting it to their poflerity, they had too 
 much dependence upon their fuperior, to difpute his autho- 
 rity, either in fettling their differences or puniihing their 
 offences. We may ealily fuppofe, therefore, that, under the 
 Anglo-Saxon government, this mode of precedure was not 
 very common; becaufe the cuftom of fecuring landed 
 eftates to the heirs of a vaffal was then far from being ge- 
 neral. It is from the reign of William the Conqueror, that 
 we may date the remarkable extenlion of jury-trials ; pro- 
 ceeding partly from the imitation of Norman or French 
 cuftoms ; but ftill more from the completion of the feudal 
 fyflem, and the confequent multiplication of hereditary 
 fiefs. 
 
 It merits attention, that this infiitution had been hither- 
 to limited to the hundred and county courts, and to thofe 
 of a feudal barony, but never had taken place in the judi- 
 ciary proceedings of the national council. The caufes 
 which came under the cognizance of the Wittenagemote 
 were not fo numerous, as to create much trouble to its 
 members, or to fuggeit the meafure of devolving that 
 branch of bufinefs upon any fort of Committee, or partial 
 meeting, in place of the full afTembly. 
 
 Upon the eftablifhment of the Anglo-Norman parlia- 
 ment, its ordinary judicial buHnefs was, in a fhort time, 
 committed to the aula regis; a court which at firft confifted 
 of fcveral members, but was afterwards held by a lingle 
 
 magiftrate,
 
 4;5 ALTERATIONS IN THE STATE Book II. 
 
 magiitrate, the deputy judge of the fovereign. This tribu- 
 nal was properly the ordinary baron-court of the king; 
 and, being in the fame circumftances with the baron-courts 
 of the nobility, it was under the fame neceffity of trying 
 caufes by the intervention of a jury. As the vaffals of the 
 crown were ufually more independent of the king, than 
 the rear- vaffals were of their immediate fuperior; it is not 
 likely, that, while juftice wasadminiitered by the pares cur/a: 
 to the latter, the former would fubmit to the deciiions of a 
 fingle magiftrate, named at pleafure by the fovereign. We 
 find, accordingly, that, by a general law in the reign of 
 Henry the Second, either party in a law-mit was allowed 
 to decline the cullomary mode of trial by fingle combat, 
 and to demand that his caufe fhould be determined by an 
 ajjize ox jury of twelve perfons. From this time forward, 
 there can be no doubt that jury-trials were admitted in 
 all the courts of ordinary jurifdiction, They are exprefsly 
 recognized and eftablifhed by the great charters of king- 
 John, and of Henry the Third-. 
 
 When the office of the grand judiciary was abolifhed, 
 in the reign of Edward the Firft, and when the powers of 
 the aula regis were diftributed to the king's bench, the 
 common pleas, and the exchequer, it was natural for thefe 
 courts to follow the fame forms of procedure which had 
 been obferved by that high tribunal to which they were 
 fubftituted. The former practice of determining law-fuits 
 by a jury, was doubtlefs viewed, at the fame time, in the 
 light of a privilege, which the nation would not have been 
 willing to refign. The number of judges, in each of the 
 courts of Weftminfter-hall, was much inferior to that of 
 
 Magna Charta reg. Johan. c. 21. M. C. teg. Hen. III. c. 32. 
 
 the
 
 Chap. VII. OF THE COURTS OF JUSTICE. 439 
 
 the ordinary aflize ; and, as they were not men of the fame 
 rank with the parties, it was not likely that the fame 
 degree of confidence would he repofed in them. To have 
 transferred the powers of an institution fo popular as that 
 of juries, to a fet of courts conftituted in this manner, 
 would, notwithstanding the late advances of prerogative, 
 have been a dangerous meafure. What is called the petty 
 jury was therefore introduced into thefe tribunals, as well 
 as into their auxiliary courts employed to diftribute juftice 
 in the circuits ; and was thus rendered effentially necelTary 
 in determining caufes of every fort, whether civil, criminal, 
 or fifcal. 
 
 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 
 intereffc of parties. It was not requifite for the convenience 
 of the members ; becaufe the trials which came before 
 parliament were few, and fpeedily brought to an ifTue It 
 was not conducive to the intereft of parties ; becaufe they 
 were better fecured from partiality and oppreffion, by a 
 judgment of the whole houfe, confifting of all the crown 
 vaffals, than they could expect to be from a decifion given 
 by a limited number of thofe vafTals, arbitrarily appointed 
 by the prefident. 
 
 It has been queftioned, whether an inflitution, fimilar 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 eita- 
 blithments, it does not appear that the inhabitants of certain 
 diftricls were ever inverted with jurifdiction, or that a part 
 of their number were in each trial felected by the ordi- 
 nary magiitrate to ailiit him in giving a decifion. The 
 
 ordinary
 
 440 ALTERATIONS IN THE STATE Book II. 
 
 ordinary courts of Greece and Rome were compofed qfrja 
 chief magiftrate, and of certain affeffors ; but thefe laft 
 were permanent officers, appointed, as it fhould feem, from 
 year to year, or for the fame period with the magiftrate 
 hi mi elf. 
 
 The Roman judex pedaneus, indeed, was nominated for 
 each trial ; but he was originally no more than a commif- 
 fioner for taking a proof of the fails in queftion ; and, al- 
 though 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 the 
 decifion, but merely to relieve the magiftrate and his affef- 
 fors from a part of their labour. 
 
 Among the Gothic nations of modern Europe, the cuf- 
 tom of deciding law-fuits by a jury feems to have prevailed 
 univerfally ; frrft in the allodial courts of the county, or of 
 the hundred, and afterwards in the baron-courts of every 
 feudal fuperior. The fame cuftom, however, does not ap- 
 pear, in any European kingdom except England, to have 
 been extended to thole great courts, which, upon the ad- 
 vancement of civilized manners, arofe out of the national 
 council, and were inverted with the principal branches of 
 ordinary jurifdiction. 
 
 The cour de roy, in France, was not, like the court of the 
 grand judiciary in England, reduced under the direction of 
 a Tingle magiftrate; but confiftedof an indefinite number 
 of the fame perfons who fat in the national afTembly. 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 
 un dcrftood, were to direct the forms of procedure, and to 
 
 take 
 
 §
 
 Chap. VII. OF THE COURTS OF JUSTICE. 441 
 take upon them the drudgery of the buflnels *. The par- 
 liament of Thouloufe, which was authorifed at the fame 
 time, and the other parliaments which were afterwards 
 formed in particular diftric~t.s, conducted themfelves upon 
 the fame principles 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 erroneous judgments, 
 or even to fecure the parties from oppreffion, was the lefs 
 necefTary. 
 
 This obfervation is applicable to the principal courts of 
 the German empire. The aulic council was compofed of 
 an indefinite number of the fame perfons who had a right 
 to lit in the diet. The imperial chamber was a numerous 
 council of judges. In both of thefe tribunals, therefore, 
 the afliftance of a jury was probably thought unneceffary. 
 
 In Scotland, the* court of the grand jufticiary came to 
 be eftablifhed upon the fame plan as in England ; and ad- 
 mitted, in like manner, the form of jury-trials. But upon 
 the divifion of the powers of that court into different 
 branches, the civil tribunal, then introduced, was a com- 
 mittee of parliament ; that is, a committee of thofe crown- 
 vaffals of whom juries had been compofed. By one or two 
 variations of that model, was formed the prefent court of 
 feflion, which was made to confift of fifteen ordinary 
 judges, the ufual number of jurymen in Scotland ; with a 
 view, it mould feem, to fuperfede the ufe of j ury-trials : and 
 as this mode of judicial procedure was laid afide in the 
 
 • Soon after the eftablifhment of the parliament of Paris, the king difpenfed with 
 the attendance of the 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 of attending that court on folemn oc- 
 casions, 
 
 3 L principal
 
 442 ALTERATIONS IN THE STATE Book II. 
 
 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 confifted of a 
 fmalier number of judges, and consequently in the inferior 
 criminal courts, the ancient pra&ice of jury-trials was 
 
 continued. 
 
 Befide the circumflance now mentioned, relating to the 
 coriftitution of the principal courts of juftice in feveral Eu- 
 ropean kingdoms, the influence of the ancient Roman law, 
 as delivered in the compilations of the emperor Juilinian, 
 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 fyftem of 
 jurifprudence was recommended and propagated by the 
 clergy ; was taught, under their direction, in almofl all the 
 univerfities ; and its decifions and forms of procedure were 
 confldered by the civil magiftrate as models for imitation. 
 The Gothic inftitution of juries, which had been unknown 
 to the Romans, was therefore brought more and more into 
 difcredit ; and, that the whole cognizance of a law-fuit 
 fhould be committed to judges, who, by being fet apart for 
 that purpofe, and by devoting themfelves to this employ- 
 ment, might become peculiarly qualified for the exercife of 
 it, was regarded as an improvement in the Hate of judi- 
 cial policy. 
 
 In England, where, from circumftances that will be men- 
 tioned hereafter, the Roman fyftem was lefs incorporated 
 with the common law than in other countries, the cuftom 
 of jury-trials has, accordingly, been moft rclgiouily main- 
 tained. But even in England, this cuitom has been totally 
 excluded fromecxleiiaftical tribunals, from thofe of the two 
 
 univerfities, and from all other courts in which, from par- 
 ticular
 
 Chap. VII. OF THE COURTS OF JUSTICE. 443 
 
 ticular caufes, the maxims and principles of the civil law 
 have been adopted. 
 
 Scotland was, in fome degree, under the influence of 
 opposite fy Items ; and feems, upon that account, to have 
 held a middle courfe. Like the nations upon the continent, 
 me was led into a clofe imitation of the Roman decifions 
 and forms of procedure ; while, by her vicinity to Eng- 
 land, me was induced to borrow many regulations and cuf- 
 toms from that more cultivated and powerful country. 
 Thus the Scottifh tribunals imitated the Englifh, by retain- 
 ing a jury-trial in criminal profecutions ; but followed the 
 practice of the Romans, by neglecting that inflitution in 
 the greater part of civil actions. In the former, it was na- 
 tural to entertain a greater fufpicion of the court than in 
 the latter ; becaufe, in a criminal trial, the king, who no- 
 minates the judges, and to whom they muft look for pre- 
 ferment, is always a party ; whereas in a civil action, or 
 controverfy between private individuals, the crown has no 
 intereft ; and there is commonly no circumftance to influ- 
 ence the magiftrate upon either fide, or lay him under a 
 temptation to grofs partiality. 
 
 It is not likely that the infcitution of juries would, in any 
 country, be very acceptable to the lbvereign ; fmce it li- 
 mited the power of thofe judges whom he appointed, and 
 of whom he had, in fome meafure, the direction. We may 
 eafily imagine, therefore, that, according as, among any 
 people, the prerogative was exalted or deprelied, its influ- 
 ence would be exerted, more or lefs effectually, in difcou- 
 raging this mode of trial ; and hence we may difcover an 
 additional reafon for the continuance of juries in Eng- 
 land. As the Englifh were fuccefsful in reducing the 
 power of the monarch within moderate bounds, and acqui- 
 
 3L2 red
 
 444 ALTERATIONS IN THE STATE Book II, 
 
 red proportionally higher notions of liberty ; they became, 
 of courfe, the more attached fo that method of diilributing 
 juitice, by which the difpofal of their lives and fortunes 
 was committed to their fellow citizens, rather than to offi- 
 cers in the nomination of the crown. They became not 
 only the more pailionately fond of this privilege, which 
 had been handed down to them from their anceflors, but at 
 the fame time the more capable of maintaining it. There 
 is no reafon, indeed, to believe that this circumftance alone 
 would have been fumcient to retain, in England, the prac- 
 tice of jury-trials; for other European flates have had alio 
 the good fortune to reftrain the prerogative, and to eftablifli 
 a popular government. But this circumftance undoubtedly 
 co-operated, with the other caufes formerly mentioned, in 
 rendering the people of England more tenacious of that 
 ancient appendage of the feudal policy, and more jealous of 
 every attempt, from whatever pretences, either to limit the 
 power of juries, or to exclude them from the decifion of 
 particular caufes. 
 
 2. In order to fecure the regular diflribution of juflice, 
 it is not enough that courts are properly conftituted, and 
 that judges are attentive to the determination oflaw-fuits. 
 The magiftrate muft alfo be informed of thofe cafes which 
 require his interposition ; and meafures mull be taken for 
 bringing them under his examination. A diftinc~tion, how- 
 ever, in this refpecT:, may be obferved between that branch 
 of judicial bufinefs which relates to civil, and that which 
 relates to criminal caufes. In a controverfy between private 
 individuals, each party is likely to prove fufficiently atten- 
 tive to his own intereit; and may therefore be left to vin- 
 dicate his own rights as he fhall think fit. But when a 
 crime ib committed, which requires a punilhment for the 
 
 a fake
 
 Chap. VII. OF THE COURTS OF JUSTICE. 445 
 
 fake of a public ex mple, there is danger that the intereft 
 of the community will be neglected; that no information 
 of the fact will be given to the judge ; and that no perfon 
 will take upon him the trouble, the odium, and the ex- 
 pence, of bringing an accufation. It is here that fome re- 
 gulation is neceffary, to prevent the diforders that might 
 be apprehended, from permitting criminals to pais with 
 impunity. 
 
 Among the Romans, not only the perfon injured, but 
 any one of the people, was allowed to profecute a public 
 offence. As the crime was underftood to affect the whole 
 community, any one of its members, being 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 profecution was liable to great abufes. It was likely, on 
 the one hand, to produce negligence in profecuting crimes ; 
 and, on the other, to encourage unjuft and groundlefs pro- 
 fecutions. Few people were found fo public-fpirited, as to 
 undertake the difagreeable tafk of convicting criminals, 
 from the view of promoting the intereft 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 opportunity to profecute. To 
 prevent this latter enormity, fevere penalties were inflict ed 
 upon fuch as brought an unjuft accufation of a public 
 offence. In particular, it was enacted, that he who failed in 
 proving his accufation, mould fuffer the fame punifhment 
 to which, if he had been fuccefsful, the defendant 
 would have been fubjected : a regulation which, ifftrictly 
 enforced, muft have put an end to every capital profecution : 
 
 For
 
 446 ALTERATIONS IN THE STATE Book IT. 
 
 For who is there that will hazard his own life, upon the 
 uncertainty of prevailing in any criminal trial ? 
 
 In the modern feudal nations, the judge himfelf was 
 originally the public profecutor. Every teuda 1 lord, whe- 
 ther a fovereign prince or a fubjec"t, was excited to punifh 
 offences within his demefne ; not only from the deilre 
 of reprefling diforders, but alfo from that of procuring 
 fines and amerciaments. As reprefentingth e community, 
 of which he was the leader and executive officer, he firft 
 brought an accufation againft thofe whom he fufpected of 
 crimes : as the chief magiftrate, he afterwards examined the 
 proof, and gave judgment in thecaufe. 
 
 The mifchief attending this practice muft have foon 
 become notorious. It can hardly be fuppofed that the 
 fame perfon would acquit himfelf with propriety in the 
 two-fold character of an accufer and a judge. Even in 
 the eourfe of a fpeculative debate, men ufually acquire 
 a prejudice in favour of thofe tenets which they are en- 
 deavouring to fupport ; and find it extremely difficult to 
 preferve a degree of candour in judging of fuch as are ad- 
 vanced upon the oppofite fide. What fhall we fay then of 
 a perfon who is engaged in preparing a public accufation ; 
 who fets out with a itrong fufpicion, that the defendant is 
 guilty; who converfes with informers, likely to employ 
 every artifice to ftrengthen that opinion ; and who, to pais 
 over his pecuniary intereft, involved in the ifTue of the 
 caufe, has exerted himfelf in collecting and arranging all the 
 facts and arguments in confirmation of his hypothecs ? how 
 is it poffible to avoid that blind zeal and prepofTeflion, that 
 eagernefs to convict the defendant, acquired in the capacity 
 of a profecutor ; and to behave with that impartiality, 
 
 3 coolnefs,
 
 Chap. VII. OF THE COURTS OF JUSTICE. 447 
 
 coolnefs, and moderation, which are eflentially requifite in 
 the diftribution of juftice ? 
 
 To prevent this dreadful enormity, and at the fame time 
 to fecure a proper attention to the public intereit, the 
 profecntion of crimes was, in all the feudal countries, re- 
 duced into a feparate 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 ad- 
 vocate in Scotland, were appointed to manage the judicial 
 bufmefs of the crown, before the principal tribunals ; and 
 a fimilar inftitution, from the fame views of expediency, 
 was even extended to inferior courts. 
 
 But, previous to the profecution of offences, there muft 
 be information of their exiftence ; and frequently, 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 
 efcape the examination of any court. It appears, accord- 
 ingly, that, in modern Europe, this branch of police had 
 early become an object of general attention. To make in- 
 quiry concerning the commifhon of public offences, and 
 to tranfmit an account of them to the criminal court, was 
 one great purpofe of the appointment of coroners; a fet of 
 officers who had place not only in England and Scotland, 
 but in the greater part, if not in all, of the feudal kingdoms 
 upon the continent. 
 
 The office of the coroners, in England, is of fo great an- 
 tiquity, that the commencement of it is entirely loft in ob- 
 fcurity. It feems to have been an immemorial cuifom of 
 the Anglo-Saxons, that feveral perfons of diftinction mould 
 
 be
 
 44$ ALTERATIONS IN THE STATE Book II. 
 
 be named by the freeholders in each county, with power 
 to fecure and impriibn criminals of all forts, to the end 
 that they might be brought to a trial. From this employ- 
 ment, thefe officers, as in after times the juftices of the 
 peace, found the means of afiuming a criminal jurifdiction, 
 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 ap- 
 pendage or confequence of the former, was that of afcer- 
 taining and determining the value of the fines, amercia- 
 ments, and forfeitures, or of any other emoluments, which 
 accrued to the lbvereign, either from the condemnation of 
 public offenders, or from the right of the crown 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 determine thofe matters 
 which fell under his own jurifdiction, or in order to trans- 
 mit an account of it to fome other criminal court, he pro- 
 ceeded, in the fame manner that was cuftomary in the 
 courts of the hundred, and of the county, by the affiflance 
 of an inquejl or jury ; and the number of jurymen, who, 
 in thofe cafes, w r ere called from the neighbouring town- 
 Ihips, was not lefs than w r as employed in other judicial 
 inveftigations. 
 
 After the Norman conqueft, when the aula 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 
 inquifition concerning thofe offences which fell under its 
 jurifdiclion ; and upon this information, the moft authentic 
 that could well be procured, a trial before the grand jufti- 
 ciary was commenced. Upon the eitablifhment of the 
 
 king's
 
 Chap. VII. OF THE COURTS OF JUSTICE. 449 
 
 king's bench, and of the commiffions of oyer and terminer 
 and gaol delivery, the like certification, and for the fame 
 mirpofe, 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 diminiihed; his jurifdiction was daily fubject- 
 ed to greater limitations ; and his reports became gradually 
 more narrow and defective : whether it be that, by having 
 a fellow-feeling with the inhabitants, he endeavoured to 
 fcreen them from juftice, or that, from the ruft and 
 relaxation to which every old inftitution is liable, his ope- 
 rations became tardy and inaccurate ; certain it is, that he 
 came to overlook the greater part of the offences which re* 
 quire the interpofltian of the magifrrate, and hisinquifition 
 was at length confined to a few of thofe enormous crimes, 
 which excite univerfal indignation and refentment. 
 
 To fupply the deficiency of the coroner's inqueft, the 
 fheriff, who had come, in a great meafure, under the ap- 
 pointment 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 ' jury ,hy whofe inquifltion the judges were 
 authorifed to proceed in the trial of public offenders. 
 
 It is probable, that when the grand jury were firit. 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 delated the pcrfons whom they found 
 to deferve an accufation ; but, by degrees, when the 
 agent for the crown had been led to fufpect any particular 
 perfon, he was accultomed to lay before them the immedi- 
 ate queftion, how far that fufpicion was well founded ? 
 
 3 M Hence
 
 450 ALTERATIONS IN THE STATE Book II. 
 
 Hence the two methods of finding the fact ; by prefentment, 
 and by indiffwent. 
 
 It feems evident, from what has been obferved, that the 
 original purpofe of the inqniiition by the coroner, and of a 
 prcfcntjnent by the grand jury, was to prevent offenders 
 from being overlooked, and from efcaping a trial. When 
 the cuftom of preferring indi&ments to the grand jury was 
 introduced, the intention of that meafure was, probably, 
 to avoid the trouble and expence of a fruitlefs profecution. 
 But, whatever was originally intended by this practice, the 
 neceffity of procuring the previous approbation of a jury, 
 by one or other of the forms above mentioned, was produc- 
 tive of the higheft advantage to the people, that of fecuring 
 them from groundlefs or frivolous accufations. If aperfon 
 is known to have committed a crime, or lies under a ftrong 
 fufpicion of guilt, the voice of the whole neighbourhood 
 will probablv call aloud for jultice, and demand an imme- 
 diate trial of the offender. But if, on the contrary, an in- 
 nocent man is attacked, if he is threatened with a profecu- 
 tion, from apparently malicious motives, or for the purpofe 
 of ferving a political job, it is moil: likely that his fellow 
 citizens will view this proceeding with indignation ; that 
 tbey will confider his misfortune as, in fome meafure, 
 their own ; and that, from a principle of humanity and 
 juftice, as well as from a regard to their own intereft, 
 they will be excited to fland forth as the protectors of 
 innocence. 
 
 This is a new infrance, perhaps more confpicuous than 
 any that we have had occafion to obferve in the hiftory of 
 the Englifh government, of a regulation whpfe confequences 
 were not forefeen at the time when it was introduced. The 
 great benefit arifing to fociety from the interpofition of the 
 
 grand
 
 Chap. VII. OF THE COURTS OF JUSTICE. 451 
 grand jury is not only totally different, but even diametri- 
 cally oppofite to that which was originally intended by it. 
 The original purpofe of that inftitution was to afTift the 
 crown in the difcovery of crimes, and by that means to 
 encreafe the number of profecutions. But when an accu- 
 rate police had been eftablifhed in the country, there was 
 little danger that any crime of importance would be con- 
 cealed from the public ; and it became the chief end of the 
 grand jury to guard againft the abufes of the difcretionary 
 power with which the officers of the crown are inveited, 
 that of profecudng public offences. 
 
 The employment of the coroner in Scotland, was the 
 fame as in England ; and he appears to have ufed the fame 
 forms in the exercife of his jurifdiction. With the affiftance 
 of a jury, he enquired into the commi.'Tion of crimes; and 
 either puni lied them by his own authority, or tranfmit- 
 ted information concerning them to the comj^etent court. 
 The negligence of this officer feems, in that country, to 
 have likenvife produced the interpofition of the fheritf, or 
 chief magiftrate of particular diitricts, by calling a jury for 
 the fame purpofe. By a ftatute in the reign of Alexander 
 the Second, it is enacted, -that no proiecution, at the inftance 
 of the crown, fliall proceed againft any perfon, urilefs by 
 an accufation, upon the inquifition of a jury, coniifting 
 of the chief magiftrate of the place and three rcfpectnblc 
 perfons in the neighbourhood. This rule continued till 
 near the end of the ilxteenth century; whesfc, in Cohle- 
 quence of the eftablifhment of the court of feiliun, and 
 from other caufes, the inveftigation of judicial matters, 
 by a jury, came to be much more limited than it had for- 
 merly been. By an act of the Scottifh parliament, in 1587, 
 ^certain commillioners, inftcad of the in quel! formerly called, 
 
 3 M 2 were
 
 452 ALTERATIONS IN THE STATE Book II. 
 
 were appointed in the feveral counties, for enquiring into 
 public offences ; and indictments, framed upon the report of 
 thefe commiffioners, were put into a lift, which got the 
 name of the parteous roll*. 
 
 The fame ftatute empowered the king's advocate to pro- 
 fecute crimes of his own proper motion t ; and, as he was 
 the perfon employed to raife indictments, upon the informa- 
 tion tranfmitted by the commiiiioners, he naturally aflumed 
 the privilege of determining whether the facts laid before 
 him ought to be the ground of a profecution or not. Tnus 
 in Scotland the ancient grand jury was abohfhed; and crimi- 
 nal actions, at the inftance of the public, came, in all cafes 
 to be directed at the difcretion of a crown officer. 
 
 The attorney-general, in England, and the mafter of the 
 crown-office, have acquired, in like manner, a power of 
 profecuting by information, without any previous autho- 
 rity of a grand jury; but this mode of profecution is con- 
 fined to mifdemeanours tending to difturb the government,. 
 or the peace and good order of fociety, and is never extend- 
 ed to crimes of a capital nature. 
 
 How far the nations upon the continent were pofTefTed 
 of a fimilar provifion, to fecure 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 em- 
 ployed for bringing to light thole diforders which required 
 the interpofition of a criminal court, there is no room to 
 doubt. But when, from the circumftances which have 
 already been pointed out, the method of trial by the petty 
 jury had fallen into difufe, it is not likely that a previous 
 inqueft would ftill be employed to judge of the neceility 
 
 • See Aft of Parliament, 1587. ch. $2. \ Ch. 77. 
 
 or
 
 Chap.VH. OF THE COURTS OF JUSTICE. 453 
 
 or expediency of commencing a criminal accufation. From 
 
 the rapid advancement of the prerogative in thefe nations, 
 
 the fovereign was freed from any restraint in this branch 
 
 of adminiftration, and an unbounded liberty of trying 
 
 public offences was committed to the officers of the crown. 
 
 To whatever caufes it may be afcribed,. the Englifh grand 
 
 jury is now the only inftitution of the kind that remains 
 
 in Europe ; and perhaps, as it is modelled at prefent, there 
 
 cannot be found, in the annals of the world, a regulation 
 
 fo well calculated for preventing abufes in that part of the 
 
 executive power which relates to the profecution of 
 
 crimes. 
 
 S e c t. III. Circmn fiances which prevented the Civil Lazv 
 from being fo much incorporated in the Svftem of Englifb 
 Jur if prudence^ as in that of other European Countries* 
 
 T O thofe who furvey the common law of England, ir* 
 its progrefs towards maturity, there is one peculiarity which 
 muff appear extremely remarkable ; the little affiftance it 
 has borrowed from the ancient Roman jurifprudence; that 
 fyftem of equity, which has been fo highly efteemed, and 
 which, in the other countries of Europe, has excited fuch 
 univerfal imitation. Why the Englifh have deviated, in this 
 particular, from the practice of all the neighbouring na- 
 tions, and have difdained to draw fupplies from thofe plen- 
 tiful fources of legal knowledge, by which many fy items 
 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 lingular, and ap- 
 parently fo unreafonabk, we fhall, perhaps, be enabled to 
 
 difcover
 
 454 ALTERATIONS IN THE STATE Book II. 
 
 diicover the advantages or difadvantages which have result- 
 ed from it ; and likewife to form an opinion, how far ex- 
 pediency may, in the prefent ftate of things, recommend 
 the lame, 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-rnn, were by degrees incorporated with the ancient 
 
 inhabitants ; and from the communication and mixture of 
 
 thefe two races of men, there was formed a compofition of 
 
 laws, manners, and cuftoms, as well as of language ; in 
 
 which, upon different occahons, and from a variety of 
 
 circumftanc.es, the proportions contributed by the one 
 
 people, or by the other, were accidentally more prevalent. 
 
 Although the ancient inhabitants were, every where, the 
 
 vanquished party, they poflefled that Superiority which 
 
 knowledge and civilization have ufually bellowed over 
 
 ignorance and barbarifm ; and hence we find a multitude 
 
 of Roman inftitutions inferted in the codes of law, which, 
 
 at an early period, were publifhed by many kings or leaders 
 
 of thofe barbarous nations. 
 
 Soon after the Settlement of thofe barbarians, or rather 
 before it was completed, they embraced Chrillianitv, and 
 fell under the direction of the Chriftian clergy ; who, 
 having been firmly eftablifhcd in the Roman empire, were 
 enabled to preferve their footing in thofe new Hates that 
 were formed. Thefe ecclefiaftics were attached to the 
 Roman law, in opposition to the barbarous cuftoms of the 
 new fettlers ; both as it was the fvflcm with which they 
 were acquainted, and as it was calculated to maintain that 
 peace and tranquillity, which their profeflion and manner 
 of life difpofed them to promote. 
 
 The
 
 Chap. VII. OF THE COURTS OF JUSTICE. 45S 
 The doctrines of Chriftianity, unlike the fables which 
 conftituted the mythology of the Greeks and Romans, con- 
 tained philofophical truths, which the teachers of that re- 
 ligion were under the neceffity of knowing, and by the 
 knowledge and propagation of which they fupported their 
 credit among the people. Thofe teachers, therefore, became 
 converfant in feveral branches of literature ; and, as their 
 theological fyftem afforded them great fcope for fpeculation 
 and reafoning, and confequently for difference of opinion; 
 theyfoon arranged themfelves in different feels ; difputed 
 eagerly with one another; and, in proportion to their zeal 
 in making profelytes, acquired a degree of acutenefs and 
 fkill in defending their feveral tenets. 
 
 The learning and abilities which came, in this manner, 
 to be pofTefTed by the clergy, together with the general ig- 
 norance and fuperftition of the people, beitowed upon the 
 former an influence and authority over the latter, and 
 produced, as I formerly took notice, an extenfive jurifdic- 
 tion both in eccleiiaftical and fecular matters. It is fufli- 
 cient here to obferve, that, in the exercife of this jurifdic- 
 tion, ecclefiafticaljudges were guided, as far as the difference 
 of circumftances would permit, 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 collections made by different Roman em- 
 perors, by Theodofius the younger, by Juftinian, and by 
 many of Ins fucceffors. The Roman fyftem berame, in a 
 great meafure, the law of the church ; and was therefore 
 propagated by her, with the fame zeal, and from the fame 
 views and motives, by which fhe was actuated in fup- 
 porting and extending her influence and a thority. The 
 difurders which, for forne centuries, were continued* 
 
 by
 
 45 6 ALTERATIONS IN THE STATE Book II. 
 
 by the fucceflive invafions of new barbarous tribes, retard- 
 ed, no doubt, the progreis of every regular eflablifhment. 
 But when Europe began to recover from theie convulfions, 
 and when the refloration of public tranquillity was follow- 
 ed, as there was realbn to expert, by the revival of letters, 
 the efforts of the clergy, to extend the credit and authority 
 of the Roman law, became highly confpicuous and fuccefs- 
 ful. Innumerable fchools were founded in cathedrals and 
 monafteries, many of which, under the patronage of the 
 church, obtaining large endowments, and being inverted 
 with jurifdicYion and various privileges, became what are 
 now called univerfities. Roth the canon law, which was 
 the rule of deciflon in ecclefiaftical courts, and the civil 
 lazvy properly fo called, the original fund from which a 
 great part of the former had been gathered, were taught 
 in theie 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 Chartres 
 publifhed a collection of canon-law, much more complete 
 than any that had been formerly made ; though it was 
 much inferior to the fubfequent compilation of Gratian, a 
 Benedictine monk, known by the title of the Decretum. 
 
 In the year 1137, the Pifans, at the taking of the town 
 of Amalphi, found a copy of Juftinian's Pandects ; 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 
 apparently fo frivolous. 
 
 § The
 
 Chap. VII. OF THE COURTS OF JUSTICE. 457 
 
 There is no reafon to believe that this book had been 
 entirely loft in the Weftern part of Europe, although, for a 
 long time, it had been lefs in requeft than other compila- 
 tions upon the fame fubject. Ivo de Chartres, in the pre- 
 ceding century, quotes the laws of the Pandects; and 
 Irnerius, profefTor of law at Bologna, as early as the 
 year n 28, prelected upon fome part at leaft of Juftinian's 
 compofitions. 
 
 Even fuppofing the Pandects to have been loft, there 
 were many other writings upon the Roman law ftill re- 
 maining, from which the knowledge of it might, in fome 
 degree, have been preferved ; the Inftitutes, the Codex ; 
 and the Novelise of Juftinian ; the Theodoftan code ; and 
 the compilations, publifhed after the time of Juftinian, by 
 different emperors of Conftantinople. 
 
 Neither is it likely that, if men had pofTefTed no previ- 
 ous difpofition to that ftudy, it would have been infpired 
 by finding an old book upon the fubject. Few people will 
 be at the pains to perufe a long book, upon any abftract 
 fcience, unlefs they already feel a ftrong inclination to ac- 
 quire the knowledge contained in it. But, in the twelfth 
 century, when, from different circumftances, a fpirit of 
 improvement began to diffufe itfelf in Italy and France, it 
 is probable that men of learning were excited to the difco- 
 very of ancient books upon every fubject ; and, as the civil 
 law became then a principal object of attention, the Pan- 
 dects, containing the fulleft collection of legal opinions and 
 decifions, was confidered as the moft inftructive work of the 
 kind, and copies of it were greedily fought for. As Amal- 
 phi was* at this time, the chief trading ftate of Italy, an 
 Amalphitan merchant, obferving the demand for books of 
 
 3 N that
 
 45 8 ALTERATIONS IN THE STATE Book IT. 
 
 that nature, is faid to have brought from Conftantinople this 
 copy of the Pandects, which was found by the Pi-fans. 
 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 particular country might receive the higheft improve- 
 ment. This the modern lawyers were, by their education, 
 accuftomed to confider as the ftandard of reafon and equity ; 
 and, wherever their own municipal cuftoms were defective, 
 they had recourfe to it, in order to fupply what was want- 
 ing, or to correct what was amifs. Even fuch of the mo- 
 dern writers as endeavoured to delineate the principles of 
 natural juftice, independent of all pofitive inftitutions, 
 made ufe of the Roman fyftem, almoft exclufively of every 
 other, in order to iliuftrate their doctrines. 
 
 Although the Roman law was, in this manner, generally 
 incorporated in that of the modern European nations, it 
 acquired more authority in fome of thefe nations than in 
 others. The German emperors appear to have confidered 
 themfelves as the fuccefTors to the Roman empire in the 
 eft, and their dominions as therefore fubject to that fyftem 
 of law by which the Romans were governed. Hcnce,i:i 
 Germany, properly lb called, in the Southern part of France, 
 ( r v. hat are called the Pays d'e droit ecrit, and in feveral parts 
 of Italy, which, at the time when the German emperors 
 c; J r ed the higheft profperity, were included under their 
 ' minion, the Roman law is underftood to be the common 
 law of the country, to which the inhabitants, upon the 
 
 * Giannonc, Iliftory of Naples. 
 
 1 failure
 
 Chap. VII. OF THE COURTS OF JUSTICE. 459 
 
 failure of their own municipal cuftoms and regulations, 
 are bound to fubmit. In other European countries it is 
 viewed in the light of a foreign fyftem ; which, however, 
 from its intiinfic 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 thepofi- 
 tive will of the legiflature. This is the cafe in Spain, in 
 Portugal, in the Northern parts, or what are called the 
 Pays de coututnes, in France, in Sweden, in Denmark, and 
 in Scotland *. 
 
 Upon the revival of letters, the fame regard to the Ro- 
 man law was difcovered in England as in the other coun- 
 tries of Europe. It was propagated with equal zeal by the 
 clergy, and, in the twelfth century, became the fubjeel: of 
 public lectures in both the univerflties. The deciiions and 
 principles delivered in the writings of Juftinian, were bor- 
 rowed, and even the expreuion was frequently copied, by 
 Bradton, by the author of Fleta, and by other Englifh lawyers 
 of that period. The work attributed to Glanville, the grand 
 justiciary of Henry the Second, and a Scotch law-book, 
 known by the name of Regiam Magi/latem, both fet out 
 with a paflage which is almoft literally the fame ; whence, 
 as well as for other reafons, it is concluded, that the latter 
 of thefe productions has been copied from the former. 
 Upon examination, however, the paflage in queftion is 
 found in the preface to the Inftitutes of Juftinian. 
 
 The fettlement of the chief courts of common law in the 
 neighbourhood of the capital, which was begun in conle- 
 
 * Duck dc Au&oritate Jur. Civil. — It fhoiilJ feem, that, fince the time when this 
 author wrote, the ideas of the inhabitants, in fomc ofthofe countries, have undergone 
 a confiderable change upon that fubjeel. 
 
 3 N 2 quence
 
 4 6o ALTERATIONS IN THE STATE Book II. 
 
 quence of the great charter of king John, and completed in 
 the reign of Edward the Firft, made it neceffary that the 
 lawyers, and other practitioners in thofe courts, mould refide 
 there alfo. Hence arofe the inns of court, and of chancery, 
 which were lodging-places in the neighbourhood of London, 
 intended for the accommodation of the retainers about the 
 courts at Weftminfter. Seminaries of common law were 
 foon formed in thofe places of refort ; and lectures upon 
 that fubject were given to the elder ftudents, in the inns of 
 court, and to the younger ftudents, in the inns of chancery. 
 The king gave encouragement to thefe inftitutions, by 
 forming the members of each lodging-place into a fort of 
 corporation, and by eftabliihing a fet of rules for their con- 
 duct:. We find that Henry the Third beftowed upon them 
 an exclufive privilege, by prohibiting any other fchool for 
 teaching law within the city of London. 
 
 The univerfities of Oxford, and of Cambridge, were the 
 only other inftitutions in the kingdom, in which law was 
 taught with public encouragement. But in thofe learned 
 focieties, the only fyftems which had reputation, and which 
 were thought worthy of public lectures, were thofe of the 
 civil and the canon law. The municipal law, from its ten- 
 dency, in many particulars, to encourage violence and dis- 
 order, from the barbarous jargon in which it was involved, 
 and from the want of literature among its practitioners, 
 was treated with contempt. Thefe practitioners, we may 
 imagine, were difpofed to retaliate thole unfavour- 
 able icntiments. Upon this account, and from the diftance 
 between the feats of inftruction, in civil and municipal 
 law, the former contributed no aftiftancc to the latter. 
 Thofe two branches of education were carried on apart, 
 
 and
 
 Chap. VII. OF THE COURTS OF JUSTICE. 461 
 
 and became entirely diftinct, and feparate. The teachers 
 of each, inftead of co-operating in order to form a com- 
 plete lawyer, were actuated by mutual jealoufy and oppofi- 
 tion ; and the one fcience being treated as defpicable in the 
 univerfities, the other was probably reprefented as ufelefs 
 by the practitioners of the common law. 
 
 For fome time the civil law, under the patronage of the 
 clergy, and of the univerfities, was in the higheft efleem 
 throughout the nation ; and the fludy of the municipal law 
 was confined to mere lawyers by profeflion ; 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 fyflem by which the property and 
 the conduct of individuals were chiefly regulated, could not 
 fail to rife in confideration and importance ; at the fame 
 time that, by the progrefs of judges in experience and refine- 
 ment, its defects were gradually fupplied ; while the laws of 
 Rome, which were unconnected with the ordinary courts 
 ef juflice, and therefore of no practical utility, became an 
 object of little attention. 
 
 We accordingly find, that, in the reign of Edward the 
 Fourth, and even before that time, the inns of court and 
 chancery had become the fafhionable places of education 
 for men of rank and fortune, and were frequented by a 
 great multitude of ftudents. There were four inns of court, 
 and no lefs than ten of chancery : in each of the former, 
 the number of undents amounted to about two hundred, in 
 each of the latter, to about an hundred. Neither was the 
 fyflem of education, in this great feminary, confined en- 
 tirely to law : it comprehended all exercifes, and every fort 
 of accomplif lment, becoming a gentleman of the king's 
 
 court ;
 
 462 ALTERATIONS IN THE STATE Book II. 
 
 court ; fuch as dancing and mufic. Sir John Fortefcue in- 
 forms us, that it was like wile cuitomary to fludy divinity 
 on feftival days \ I iuppofe, by way of relaxation*. 
 
 Juftice Shallow is introduced by Shakefpear, boafting, 
 that he had been a ftuderit of Clement's Inn, and that he 
 had often heard the chimes at midnight; as a proof that 
 he was a young man of fafhion and fpirit. — In the fame 
 manner, as he boafted of his acquaintance with John of 
 Gaunt. 
 
 When thofe teachers of the common law had begun to 
 feel their own confequence, they afiumed the privilege of 
 beftowing rank upon their ftudents of a certain {landing ; 
 and conferred the degrees of ferjeant, and apprentice, corre- 
 fponding to thofe of doSlor and bachelour in the univer- 
 fities. 
 
 As the reparation of the civil and the municipal law pro- 
 duced an averfion to the former in the inns of court and 
 chancery, we may eaiily conceive, that the fame prejudice 
 would be communicated to their numerous pupils, and thus 
 become prevalent among the nobility and gentry of the 
 kingdom. Hence the jealoufy difcovered, on feveral occa- 
 sions, by the Englifh parliament, left, by the influence of 
 the clergy the laws of ancient Rome mould be introduced 
 into England ; of which a remarkable inftance is mentioned 
 in the reign of Richard the Second; 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 king, and the lords of parliament, mall it ever be 
 
 * Fortefcue de laudibus Leg. Aug. — Alfo the difcourfes on this fubjetf: preferved in 
 Hcarne's collection of antiquities. 
 
 " ruled
 
 Chap. VII. OF THE COURTS OF JUSTICE. 463 
 " ruled or governed by the eivil law*." As the laws of 
 ancient Rome had not been incorporated in the municipal 
 fyftem, they feem to have been viewed, by the partizans of 
 the latter, in the fame light with the doctrines of a rival 
 feci;, which has with difficulty been prevented from ac- 
 quiring the fuperiority in the national eftablimment. 
 
 It has been alledged by authors of note, that the oppofl- 
 tion of the Engliili nobility to the civil law, arofe from its 
 being the law of a defpotic government, and therefore in- 
 confiftent with their notions of Englifh liberty. But who- 
 ever has examined the compilations of Juftinian with any 
 attention, rauft be feniible that there is no foundation for 
 this remark. Thofe collections relate almoft entirely to the 
 private, and touch very flightly upon the public law of the 
 empire. But with refpect to property, and the rights of 
 private perfons, the opinions and deciilons of the Roman 
 lawyers do not feem to have been at all perverted by the 
 nature of their government. Perhaps it will be difficult to 
 point out any modern fyflem of law, in which the rules 
 of juftice among individuals appear to be fo little warped by 
 the interefl of the crown, and in which the natural rights 
 of mankind are inveftigated and enforced with greater 
 impartiality. In one or two cafes, you meet with an obfer- 
 vation, " that the prince is above the laws." Thefe, how- 
 ever, are detached, and, as it were infulated expreffions, 
 delivered in general terms, and without any viiible effect 
 upon the body of the work ; which relates, not to disputes 
 between the emperor and his fubjects, but to fuch as may 
 ariie among the people. 
 
 * Blackftone's Commentaries. 
 
 After
 
 464 ALTERATIONS IN THE STATE Book II. 
 
 After the free government of Rome was overturned, 
 the emperors found it expedient for a long time to conceal 
 the extent of their usurpation, and to leave the ordinary 
 judges, in a great meaiure, undifturbed in the exercife of 
 that jurifdiction which had been founded in the more for- 
 tunate times of the republic. Auguilus firft fet the exam- 
 ple of this prudent diflimulation, which was copied by a 
 great number of his fucceffors. Befide the apprehenfion 
 that the old republican fpirit was not entirely extinguished, 
 and the circumftance that the throne continued elective, 
 the emperors were kept in awe by thofe powerful armies, 
 under particular officers of distinction, which were main- 
 tained in the provinces. Thefe were much fuperior to that 
 pretorian guard, which, for the immediate fupport of the 
 imperial dignity, was eitabliihed in the neighbourhood of 
 Rome. In this manner a fjrt of balance, however preca- 
 rious, was for fome time held, by the military forces dif- 
 perfed over the empire, and by the jealoufy between the 
 emperor and the leader of each conliderable army ; in 
 confequence of which, the former was deterred from in- 
 vading and destroying the internal Structure of the con- 
 flit ution. 
 
 Some of the firft emperors, indeed, were guilty of enor- 
 mous crimes and diforders ; but the effect of thefe appears 
 to have been limited, in a great meaiure, to perfons high 
 in office, or in fuch rank or Station as to be involved in the 
 intrigues of the court. In the fucceeding period the Ro- 
 mans were more fortunate, and the throne was filled by 
 a fcries of princes who are an honour to human nature ; 
 Nerva, Trajan, Adrian, Antoninus Pius, and Marcus Aure- 
 lius. Under thefe emperors no interference of the crown 
 
 prevented
 
 Chap. VII. OF THE COURTS OF JUSTICE. 465 
 
 prevented the equal diftribution of juftice; the experience 
 of an empire, which included the whole civilized world, 
 was accumulated in one mafs ; and the fyftem of private 
 law was thus brought to much greater perfection than it 
 had attained in the preceding ages. 
 
 In the reign of Adrian was compofed the perpetual ' edic;\ 
 the firft great compilation of the rules of decilicn ; and this 
 became the ground-work of moft of the writings publifhed 
 by fucceeding lawyers. It was about this time that the law 
 began to be regularly cultivated as a fcience ; that it became 
 the object of a lucrative profeffion ; and that it was taught 
 at Pvome with public encouragement *. 
 
 Severus new modelled the Praetorian guard, by appoint- 
 ing that it mould confift of above fifty thoufand men ; about 
 four times the ancient number ; and that it fhoukl be re- 
 cruited, not, as formerly, from the effeminate inhabitants 
 of Italy, but from the hardy and well-difciplined legions 
 upon the frontiers. With the command of this army the 
 emperor poffefTed a force which nothing in the whole em- 
 pire was able to oppofe ; and the government of courfe de- 
 generated into an abfolute military defpotifm. From this 
 time, therefore, the law could not fail to decline. From 
 the influence of long ufage, however, it appears to have 
 declined very flowly ; and, notwithstanding the ignorance 
 and barbarifm in which the people were funk, together 
 with the heavy yoke of tyranny to which they were fub- 
 jected, the ancient fyftem was treated with refpect. 
 
 • The practice of lawyers taking an honorarium, had been introduced before the end 
 of the commonwealth, but was prohibited by flatutc. Complaints of the violation of 
 this law were made in the reign of Claudius; when it was ena&ed, that no lawyer 
 fhould receive, in one caufe, more than ICO aurei, or about 8cl. ftcrling. 
 
 3 It
 
 466 ALTERATIONS IN THE STATE Book II. 
 
 It merits attention, that the opinions and decifions con- 
 tained in the Pandects of Juftinian, were delivered by au- 
 thors, who either lived entirely, or at leaft received their 
 education, before this great revolution was introduced ; and 
 probably a confiderable time before its effects, in fub verting 
 the private law of the country, had been very feniibly felt. 
 Modettinus, the latere of thofe authors, wrote in the reign, 
 I think, of the younger Gordian, and only about thirty 
 years below that of Severus. 
 
 The Inflitutes, an elementary book upon the fcience of 
 law, intended as an introduction to the perufal of the 
 Pande&s, was likewife compofed, with a very few additions 
 of Juftinian, by an old lawyer, who lived within the period 
 above mentioned. 
 
 As the profcription of civil law from the courts of Weft- 
 minfter-hall proceeded entirely from the animofity and op- 
 pofition between the univerfities and the inns of court and 
 chancery; it may be fuppofed that this would continue no 
 longer than while the latter preferved their confideration 
 and popularity. For a long time, however, thefe inftitu- 
 tions have not only ceafed to be the great feminaries for 
 educating the nobility and gentry ; but have become of 
 little ufe for conveying inftruction to practical lawyers. 
 No lectures are now given in the inns of court or chancery ; 
 no exerciles are performed ; no meafnres are taken for di- 
 recting the application of thofe who, of their own accord, 
 may be difpofed to ftudy. The whole care of education 
 feems to be devolved upon the cook ; and the only re- 
 maining part of the ancient regulations is, that the 
 Undent mall eat his commons for a certain number of 
 terms. 
 
 6 The
 
 Chap. VII. OF THE COURTS OF JUSTICE. 467 
 
 The caufes of this alteration it is not difficult to dis- 
 cover. Beiide the luxury of a great metropolis, which is 
 calculated to produce idlenefs anddiflipat'.on both in teach- 
 ers and fcholars, the profits ariling from the practice of 
 the law, together with the profpect of preferment in the 
 ftate, have allured men of fpirit and abilities to defert the 
 more fpeculative and lefs diftinguilhed employment of 
 communicating the principles of the fcience to a fet of 
 pupils. To counteract this natural tendency, and to 
 maintain the vigour of teaching law, notwithstanding 
 the fuperior advantages derived from the practical pro- 
 feilion of a lawyer, public encouragement, as well as the 
 itridteft regulation, would have been requisite; but this 
 object appears to have been overlooked by government; 
 and, upon the advancement of national wealth and pros- 
 perity, the old inftitutions were left to their natural 
 courfe. 
 
 But the decay of the inns of court and chancery did not 
 immediately change the ideas which, in their more flou- 
 rishing condition, they had imprefTed upon the nation. 
 The movement continued, and its direction was little 
 varied, for a long time after the hand that gave it was 
 withdrawn. It is but of late years that the prejudices, 
 which had fo long prevailed, have begun to difappear, and 
 that the fame liberal fpirit with which the nation is ani- 
 mated in the profecution of other fciences, has been ex- 
 tended to the interpretation of the rules of jultice. In 
 ecclefiaftical courts, indeed, and in thofe of the univerfi- 
 ties, the civil law has been long followed; but this pro- 
 ceeded in fome meafure from prepofTefhon ; as the rejec- 
 tion of that fyftem, in the courts of WeitminSter-hall, 
 
 3 O 2 wai
 
 4 68 ALTERATIONS IN THE STATE Book II. 
 
 was the effect of prejudice. Upon the rife of the court 
 of chancery, its decifions were commonly directed by a 
 clergyman; who naturally pofTefTed an attachment to that 
 fvitem of equity, the propagation of which was the great 
 aim of the whole ecclefiaftical order. In the court of the 
 admiral, which acquired a jurifdiction in maritime caufes, 
 the principles adopted were Inch as had been fuggeited, 
 not by the peculiar cuftoms of England, but by the 
 common intercourfe of commercial nations, and in which 
 a "Teat proportion of the civil law was introduced. A 
 fimilar fvitem was embraced in the courts of the conilable 
 and marfhal ; who, from having the command of armies* 
 more efpecially when engaged in foreign expeditions, 
 were permitted to affume a military jurisdiction. Thefe 
 officers, as might be expected, were led to imitate the ge- 
 neral practice of Europe, or what may .be called the law 
 of nations. 
 
 It was referved for the enlightened judges of the preienr 
 age to eitimate the fyftem of Roman jurifprudence ac- 
 cording to its intrinfic merit ; and without being influ- 
 enced by adventitious circumltances, to derive from it, in 
 the courts of common law, fuch afliftance as it was ca- 
 pable of bellowing. Of all the fciences, law feems to be 
 that which depends the moft upon experience, and in 
 which mere Speculative reafoning is of the leaft confe- 
 quence. As the Roman fvitem contains the accumulated 
 experience and obfervation of ages, and of the molt exr 
 tenfive empire that ever exifted in a civilized form ; the 
 advantages refulting from it, as an example to the law- 
 vers and judges of any modern country, muft be propor- 
 tional v great. It prefents the largeit collection of equi- 
 table
 
 Chap. VII. OF THE COURTS OF JUSTICE. 469 
 table decifions, and rules, that is any where to be found. 
 Thefe are calculated to enlarge the compafs of legal know- 
 ledge, without having the influence to miflead ; they have 
 all the benefit of precedents, without any authority to 
 impofe ; and, therefore, may render the fyftem of Englifh 
 law more full and comprehenfive, without any danger of 
 corrupting it. 
 
 Sect. IV. The Rife of the Court of Chancery. 
 
 I N attempting a general outline of the principal Eng- 
 lifli courts, the judicial authority of the Chancellor no\Y 
 remains to be confidered. The jurifdidtion of this officer 
 was plainly derived from the nature of his employment in 
 the king's houfehold, and from the minifterial powers over 
 the kingdom, with which he thence came to be inverted. 
 By being the king's fecretary and chaplain, he enjoyed the 
 peculiar confidence of his matter; and had the fole charge 
 of writing his letters ; and afterwards of ifluing writs in the 
 name of the crown. As it became cufiomary that every 
 vafTal mould hold his fief by a charter from the fuperior, 
 the power of granting thofe deeds, throughout the royal 
 demefne, became the fource of great influence, and, after 
 the Norman conqueft, when the n > ulity were all reduced 
 into the ftate of crown-vaflals, raifed the chancellor to be a 
 principal officer of ftate. 
 
 When the deeds ifTuing from the crown became nume- 
 rous, the care of expediting many of them was devolved 
 upon inferior perfons ; and, to afcertain their authencity, 
 
 the
 
 47 o ALTERATIONS IN THE STATE Book II. 
 
 the fubfcription of the chancellor, and afterwards a public 
 
 I, of which he obtained the cuftody, was adhibited*. 
 
 At what time fignatures became cnltomary, in England, 
 to deeds proceeding from the crown, appears uncertain. It 
 is probable that they were known to the Anglo-Saxons; 
 but that they did not become frequent until the fettlement 
 of the Norman Princes. From this period the chancellor 
 was confidered as having a title to he keeping of the great 
 feal ; but as, from the caprice of the monarch., there occur- 
 red fome inftances in which it was entruited to a different 
 perfon, a flatute was made in the reign of Henry the 
 Third, requiring that the employments of lord-keeper and 
 chancellor mould alwavs be c njoined; a regulation which, 
 having foniLtimes been overlooked, was afterwards renewed 
 in the reign of Elizabeth t. 
 
 In this manner all important writings, irXue.l by the king, 
 either came through the medium of the cham ellor, or were 
 fubjecled to his infpeclion. Before he affixed the great feal 
 to any deed, he was bound to examine its nature, and, if it 
 proceeded upon a falfe reprefentation, or contained any 
 thing erroneous or illegal, to repeal and cancel it. So early 
 were laid the foundations of a maxim, which in after days 
 has been gradually extended ; that the fervants of the crown 
 are juftly refponfible for meafurcs which cannot be exe- 
 
 * The fubfcription of the refertndarlus^ who was probably the chancellor, occurs as 
 far back, in the Anglo-Saxon period, as the reign of Ethclbert, the firft Chriftian king. 
 In the reign of Edward the Confefibr we meet with a charter fubferibed by the chan- 
 cellor, under that exprefs appellation: " Ego Rembaldus cancellarius fubferipfi." 
 Sclden on the office of lord chancellor in England. 
 
 In France, and probably in all the kingdoms in the Wcflcrn part of Europe, the 
 ncelloi came to be the ordinary keeper of the king's feal. 
 
 f Selden on the oflke of chancellor, 5 Eliz. c. 18. 
 
 cuted
 
 CiiAP.Vir. OF THE COURTS OF JUSTICE. 471 
 
 cuted without their concurrence. As the exercife of thefe 
 powers required a previous examination and cognizance, 
 it gave rife to an ordinary jurifdiclion, which, although of 
 great importance, has occasioned no controverfy, and ap- 
 pears to have excited little attention. 
 
 The extraordinary jurifdiction of the chancellor arofe 
 more indirectly, from his character and iituation. The 
 origin of his interposition, to correct the decilions of the 
 ordinary tribunals, was formerly fuggefted. When the 
 king's baron-court, confining itfelf within the rules of 
 common law, had been laid under the neceffity of giving 
 a decision, which, in its application to particular cafes, was 
 found hard and oppreflive, the party aggrieved was accuf- 
 tomed to petition the king for relief. Applications of this 
 nature were brought before the privy council ; and the 
 confideradon of them w r as naturally referred to the chan- 
 cellor ; who, as the fecretary of ihe king, being employed 
 to regifter the decrees, and to keep the re ;ords of his baron- 
 court, was rendered peculiarly converfant and intelligent in 
 all judicial difcumons. 
 
 A jurifdiction of this nature appears to have been 
 acquired by the fame officer, in feveral, if not in the 
 greater part, of the kingdoms of Europe. Such, in par- 
 ticular, was that of the chancellor in France; who, under 
 the kings of the firft and fecond race, had the custody of 
 their feal, and was distinguished by the appellation of the 
 grand rejerendaire #. 
 
 In England, it mould feem that, before the end of the 
 Saxon government, the chancellor was employed in giving 
 redrefs againit the hard Sentences pronounced by the judges 
 
 * Sec Iafquier, Recherches de la France, and the authorities to which he referi. 
 
 of
 
 vTIONS IN THE STATE Book II. 
 f i lemefne. As thofe judges, however, h; 
 
 then a very limited authority, his interpoiitions were pro- 
 portionably of little importance. But, after the acceflion 
 of William the Conqueror, when the aula regis became the 
 king's ordinary baron court, and drew to itielf almoft the 
 whole judicial bufinefs of the nation, the exercife of fuch 
 extraordinary jurifdiction began to appear in a more con- 
 spicuous light. From this period, the multiplication of 
 law-fuits before the grand judiciary, produced more va- 
 rious inftances of imperfection in the rules of common 
 law ; and, from greater experience and refinement, the ne- 
 cemty of relaxing in the obfervance of thefe rules, by the 
 minion of numerous exceptions, was more fenlibly 
 
 felt. 
 
 applications for this pnrpofe became frequent, pro- 
 viiion was made in order to facilitate their progrefs ; and 
 the tribunal to which they were directed grew up into a 
 regular form. A committee of the privy council had, in 
 each cafe, been originally appointed along with the chan- 
 cellor, to determine the points in queftion. But, as thefe 
 counfellors paid little or no attention to bufinefs of this na- 
 ture ; of which they had feldom any knowledge; their 
 number, which had been arbitrary, was therefore gradually 
 diminifhed ; and at laft their appointment, having come to 
 be regarded as a mere ceremonv, was entirely difcontinued. 
 Subordinate officers were, on the other hand, found re- 
 quisite in various departments, to alhft the chancellor in 
 preparing his decilions, and in difcharging the other 
 branches of his duty. 
 
 The authority, however, which was thus exercifed by 
 is great magistrate, in order to correct and to fupply the 
 gnoft remarkable errors and defects in the ancient rule 
 
 law,
 
 Chap. VII. OF THE COURTS OF JUSTICE. 473 
 
 law, appears to have mil proceeded upon references from 
 the king or from the privy council. His interpofitions 
 depended upon the decifions given by other courts, and 
 were of too lingular a nature to be eafily reduced into a 
 fyitem, or to be viewed in the light of a common 
 remedy. 
 
 It was at a later period, that the chancery became an 
 original court, for determining cauies beyond the reach of 
 the ordinary tribunals. This inftitution, arifing from cir- 
 cumftances more accidental than thofe which produced the 
 jurifdiction above-mentioned, does not feem to have per- 
 vaded the other European countries, but is in a great mea- 
 fure peculiar to England. 
 
 According to the feudal policy in the weftern part of 
 Europe, all jurifdiction was infeparably connected with 
 landed property ; and actions of every fort proceeded upon 
 a mandate, or commiflion, from that particular fuperior 
 within whofe territory the caufe was to be tried. If an 
 action was intended before a court deriving its jurifdiction 
 from the king, the plaintiff made application to the crown, 
 ftating the injuftice of which he complained; in anfwer to 
 which, the fovereign ordered the adverfe party to appear 
 before a particular court, in order that the caufe might be 
 heard and determined. The writ or briefs iflued for this 
 purpofe by the king, ferved not only to fummon the defen- 
 dant into court, but alfo, in that particular queition, to au- 
 thorize the inveftigation of the maginrate. The different 
 barons, in their refpective demelhes, iiiued briefs in like 
 manner, for bringing any law-fuit under the cognizance 
 of their feveral courts. 
 
 In England this mode of litigation was uniformly 
 obicrved, in proceedings before the aula regis\ and was 
 
 3 P afterwards
 
 474 ALTERATIONS IN THE STATE Book JI, 
 
 afterwards adopted in the three courts of common law, 
 among which the powers of the grand juiticiary were 
 divided. 
 
 The primitive writs, upon which any action was com- 
 menced, being accommodated to the few fimple claims 
 that were anciently enforced in a court of jultice, were 
 probably conceived in fuch terms as might occur without 
 much reflection. But complaints upon the fame principle 
 of law being frequently repeated, the fame terms naturally 
 continued ; lb that, by long ufage, a particular form of writ 
 was rendered invariable and permanent in every fpecies of 
 action. This prefervation of uniformity, although perhaps 
 the effect of that propenfity, fo obfervable in all mankind, 
 to be governed on every occafion by analogy, proved, at 
 the lame time, of great advantage, by aicertaining and 
 limiting the authority of the judge. From the advance- 
 ment of property, however, and from the multiplied con- 
 nections of lbciety, there arofe new claims, which had 
 never been the fubjedt. of difcuflion. Thefe required a new 
 form of writ; the invention of which, in confiftency with 
 the eft ablifhcd rules of law, and fo calculated as to main- 
 tain good order and regularity in the fyftem of judicial 
 procedure, became daily a matter of greater nicety and 
 importance. 
 
 Application, in fuch cafes, was made to the chancellor; 
 who, from a fcrupulous regard to precedents, was fre- 
 quently unwilling to interpofe, but referred the parties to 
 the next meeting of parliament. Thefe references, how- 
 ( er, as might be expected, foon became burdenfome to 
 that afiembly ; and, by a ftatute in the reign of Edward 
 the Firft, it , aided, that, "Whenfocver, from thence- 
 
 " forth, it fhall fortune in chancery that, in one cafe a 
 
 a " writ
 
 Chap. VII. OF THE COURTS OF JUSTICE. 475 
 " writ is found, and in like cafe, falling under like law, 
 " and requiring like remedy, is found none, the clerks in 
 " chancery fhall agree in making the writ, or ill all ad- 
 " journ the plaintiffs to the next parliament, where a 
 " writ fhall be framed, by confent of the learned in the 
 " law; left it might happen for the future, that the coi n 
 " of our lord the king mould long fail in doing j d e to 
 " the fuitors *." 
 
 The new writs, devifed in confequence of this law, 
 were, for fome time, directed to fuch of the ordinary courts 
 as, from the nature of the cafe, appeared to have the 
 moft proper jurifdidtion. At length, however, there oc- 
 curred certain claims, in which, though feeming to require 
 the interpofition of a judge, it was thought the courts of 
 common law would not interfere. In thefe, the chancellor, 
 willing to grant a remedy, and, perhaps, not averfe to the 
 extenfion of his own authority, adventured to call the par- 
 ties before himfelf, and to determine their difference t. 
 This innovation is faid to have been introduced about the 
 time of Richard the Second, and for the purpofe of fup- 
 portirig a contrivance to elude the ftatute of mortmain, by 
 the appointment of truftees to hold a landed eftate, for the 
 benefit of thofe religious corporations to which it could not 
 be directly bequeathed. The courts of common law could 
 give no countenance to a ftratagem fo palpably intended to 
 difappoint the will of the legiflature. But the chan' ellor, 
 as a clergyman, was led, by a fellow-feeling with In. ow 11 
 order, to fupport this evafion ; and, pretending to coniider 
 it as a matter of confeience, that the truftees lhould be 
 
 * Statutes at Large, 13 Edw.ird I. c. 24. 
 f This was doiie by the writ offubpacna. 
 
 7, P 2 boilll
 
 476 ALTERATIONS IN THE STATE Book II. 
 
 bound to a faithful difcharge of their truft, took upon him 
 to enforce the will of a teftator, in oppofition to the law of 
 the land. 
 
 Having fuccefsfully afTumed the cognizance of one cafe, 
 in which he was particularly interefted, the chancellor 
 found little difficulty in extending his jurifdiclion to others. 
 In thefe, he appears to have acted more from a general 
 regard to juftice ; and, in confequence of the limited views 
 entertained by the ordinary courts, his interpofition feemed 
 immediately necefTary. His authority thus grew up im- 
 perceptibly : what was begun in usurpation, by acquiring 
 the ianction of long ufage, became a legal eftablifhment ; 
 and, when it afterwards excited the jealoufy of the courts 
 of common law, its abolition w r as regarded as impolitic and 
 dangerous. After the direction of chancery had long been 
 pofTefled by clergymen, who, from their fituation, were 
 intent upon the increafe of its jurifdiction, it was, upon 
 fome occaiion?, committed to lawyers by profeffion ; by 
 whom its procedure was more digefted into a regular 
 fyftem. 
 
 From what has been obferved, concerning the extraor- 
 dinary jurifdiction of the court of chancery, there can be 
 no doubt that it was originally diftinguifhed from that of 
 the other courts of Weftminfter-hall, by the fame limits 
 which mark the distinction between common^ oxjlrict law y 
 and equity. Its primitive interpofitions were intended to de- 
 cide according to conference, upon thofe occalions when the. 
 decifions of other courts, from an adherence to ancient 
 rules, were found hard and oppreflive. It was afterwards 
 led to interpofe in original actions, in order to make effec- 
 tual thole new claims which the ordinary courts accounted 
 
 beyond
 
 Chap. VII. OF THE COURTS OF JUSTICE. 477 
 
 beyond the limits of their jurifdiction. The firft branch 
 of this authority in the court of chancery was therefore 
 defigned to correct the injujlice, the other to fupply the 
 defects, of the other tribunals. 
 
 This accordingly feems to have been the univerfally re- 
 ceived idea of that court ; which is called a court of equity, 
 by every author who has occafion to mention it. In this 
 view it is confidered by Lord Bacon, who himfelf held the 
 office of chancellor, and who, among all his cotemporaries, 
 appears to have been the heft qualified to underftand its 
 nature. The fame opinion of this court was entertained 
 by the learned Selden. " Equity," fays that author, " is a 
 " roguiih thing ; for law we have a meafure ; know what 
 " to truft to. Equity is according to the confcience of 
 " him that is chancellor ; and, as that is larger or narrower, 
 " fo is equity. It is all one as if they fhould make the 
 " ftandard for meafure a chancellor's foot. What an 1111- 
 " certain meafure would this be ! One chancellor has a 
 " long foot ; another a fhort foot ; a third, an indifferent 
 " foot. 'Tis the fame thing in the chancellor's con- 
 H fcience*." 
 
 The ingenious and acute author of " The Principles of 
 " Equity" has adopted this notion concerning the nature 
 of the court of chancery ; and difputes with Lord Bacon, 
 whether it is more expedient, that the equitable jurifdic- 
 tion, and the jurifdiction according to Uriel: law, fhould be 
 united in the fame court, as in ancient Rome ; or divided 
 between different courts, as in England ? 
 
 In opposition to thefe authorities, Juftice Blackftone, a 
 writer whom, in a practical point of this nature, we can 
 
 * Seldcn's Table-talk. 
 
 hardly
 
 47 3 ALTERATIONS IN THE STATE Book II. 
 
 hardly iuppofe to be miftaken, affirms* that there is no fuch 
 diftinftion between the chancery and the other courts of 
 Weftminfter; and maintains that the latter are pofTeffed of 
 an equitable jurifdidtipn ; while the former, to which, how- 
 ever, like other writers, he gives the appellation of a court 
 of equity, is accuftomed to decide according to the rules of 
 ftric~t law. 
 
 To reconcile thefe different opinions, it feems necefTary 
 to fuppoie that they refer to different periods ; and that 
 both the chancery, and the other courts in queftion, have, 
 iince their firfl eftablifhment, been fubjected to great alte- 
 rations. This is what, from the nature of things, might 
 reafonably be expected. Lord Bacon and Mr. Selden fpeak 
 of the court of chancery as it flood in a remote period : 
 and, in a matter relating to the hiltory, or even the philo- 
 fophy of law, Juftice Blackflone might ealily be deceived. 
 
 The diftinction between ftrie"t. law and equity is never, 
 in any country, a permanent diftinction. It varies accord- 
 ing to the ftate of property, the improvement of arts, the 
 experience of judges, the refinement of a people. 
 
 In a rude age the obfervation of mankind is directed 
 to particular objects ; and feldom leads to the formation of 
 general concluiions. The firft decifions of judges, agree- 
 able to the ftate of their knowledge, were fuch as arole, in 
 each cafe, from immediate feelings ; that is, from confede- 
 rations of equity. Thefe judges, however, in the courie of 
 their employment, had afterwards occafion to meet with 
 many fimilar cafes ; upon which, from the fame imprefTions 
 of juftice, as well as in order to avoid the appearance of 
 partiality, they were led to pronounce a fimilar decifion. A 
 
 * See his Commentaries, Eook III. chap. 4 and 7. 
 
 number
 
 Chap. VII. OF THE COURTS OF JUSTICE. 479 
 
 number of precedents were thus introduced, and, from the 
 force of cuitom, acquired refpect and authority. Diffe- 
 rent cafes were decided, from the view of certain great and 
 leading circumftances in which they refembled each other; 
 and the various deciiions, pronounced by the courts of 
 law, were gradually reduced into order, and diftributed 
 into certain clafTes, according to the feveral grounds and 
 principles upon which they proceeded. The utility of 
 eftabliihing general rules for the determination of every 
 law became alfo an object of attention. By limiting and 
 circumfcribing the power of a judge, they contributed to 
 prevent his partiality in particular fituations ; and by mark- 
 ing out the precife line of conduct required from every 
 individual, they bellowed upon the people at large, the 
 fecurity and fatisfaction arifing from the knowledge of their 
 feveral duties and rights. 
 
 But although the Amplification of deciiions, by redu- 
 cing them to general principles, was attended with manifeft 
 advantage, it was, in fome cafes, productive of inconve- 
 nience and hardfhip. It is difficult, upon any fubject, to 
 eftablifh a rule which is not liable to exceptions. But the 
 primitive rules of law, introduced by unexperienced and 
 ignorant judges, were even far from attaining that per- 
 fection which was practicable. They were frequently too 
 narrow ; and frequently too broad. They gave rife to de- 
 ciiions, which, in many inftances, fell extremely fliort of 
 the mark ; and which, in many others, went far beyond it. 
 In cafes of this nature, it became a queition ; whether it 
 was more expedient, by a fcrupulous obfervance of rules, 
 to avoid the poffibility of arbitrary practice, or, by a parti- 
 cular deviation from them, to prevent an unjuit determi- 
 nation ? In order to prevent grofs injuitice under the fanc- 
 
 tion
 
 4 8o ALTERATIONS IN THE STATE Book II. 
 
 tion of legal authority ; an evil of the raoft alarming nature ; 
 it was thought advifeable, upon extraordinary occafions, to 
 depart from eftabliftied maxims, and, from a complex view 
 of every circumftance to decide according to the feelings 
 of juftice. The diitinction between Jlricl /azv and equity 
 was thus introduced ; the former comprehending the efta- 
 blifhed rules ; the latter, the exceptions made to thofe 
 rules in particular cafes. 
 
 But when queftions of equity became numerous, they, 
 too, were often found to refemble one another; and, requi- 
 ring a fimilar decihon, were by degrees arranged and claf- 
 fed according to their principles. After a contract, for ex- 
 ample, had been enforced by a general rule, it might hap- 
 pen, on different occafions, that an individual had given a 
 promife, from the undue influence of threats and violence, 
 from his being cheated by the other party, or from advan- 
 tage being taken of his ignorance and incapacity. On 
 every occafion of this nature an equitable deciflon was 
 given ; and, by an exception to the common rule of law, 
 the promifer was relieved from performance. [But, the re- 
 medy given in fuch cafes being reduced into a regular fyf- 
 tem, could no longer be viewed in the light of a Angular 
 interpolation ; and, by the ordinary operation of law, every 
 contract extorted by force, elicited by fraud, or procured 
 in confequcnce of error and incapacity, was rendered inef- 
 fectual. Every primitive rule of juftice was productive of 
 numerous exceptions; and each of thefe was afterwards 
 reduced under general principles; to which, in a fubfe- 
 quent period, new exceptions became necefTary • as from 
 the trunk of a fpreading tree there iflue large branches; 
 h of which gives rife to others, that arc loft in various 
 divhi< 
 
 Law
 
 Chap. VII. OF THE COURTS OF JUSTICE. 481 
 
 Law and equity are thus in continual progrefiion; and 
 the former is conftantly gaining ground upon the lat r. 
 Every new and extraordinary interpofition is, by length of 
 time, converted into an old rule. A great part of what is 
 now ftrict law was formerly confldered as equity ; and the 
 equitable decifions of this age will unavoidably be ran' 
 under the ftrict law of the next. 
 
 Although the chancellor, therefore, was originally en- 
 trufted with the mere province of equity, the revolutions 
 of time have unavoidably changed the nature of his juris- 
 diction- He continues to exert an authority in all fuch 
 claims as were anciently taken under his protection ; but 
 his interpolations concerning them are now directed by 
 general principles, to which various exceptions, according 
 to equity, have fince been introduced. He continues, like- 
 wife, thofe modes of procedure which were fuitable to his 
 primitive fituation, and adapted to fuch inveftigations as 
 the purpofe of his eftablifhment required. 
 
 The ordinary courts of Weftminfter-hall have, on the 
 other hand, extended their jurifdiction beyond its ancient 
 limits. Though they originally did not venture to deviate 
 from the rules of ftrict law, the improvements of a later 
 age have infpired them with a more liberal fpirit ; and have 
 rendered their decifions more agreeable to the natural dic- 
 tates of juftice. 
 
 Thus the court of chancery has been gradually diverting 
 rtfelf of its original character, and affuming that of the 
 courts of common law ; while thefe latter have been, in the 
 fame proportion, enlarging their powers, and advancing 
 within the precincts of equity. 
 
 According to Juftice Blackftone, the elfential difference 
 at prefent, between the chancery and the courts of common 
 
 3 Q law,
 
 4 8s ALTERATIONS IN THE STATE Book II. 
 
 law, confifts in the modes of adminiftering juftice peculiar 
 to each. It may deferve to be remarked, that thefe diffe- 
 rences are fuch as would naturally arife between courts 
 originally diltinguifhed, by having the feparate departments 
 of itrict law and of equity. 
 
 i. From the mode of proof adopted by chancery, all 
 queftions which require a reference to the oath of a party 
 are appropriated to that court. This peculiarity arofe from 
 an opinion, entertained by early judges, that it was a hard- 
 Ihip to compel any perfon to furnifh evidence againft him- 
 felf. But the view fuggefted by equity was more liberal 
 and refined. It appeared unjuft that a defendant ihould 
 refufe to fatisfy a claim which he knew to be well found- 
 ed ; and, unlefs he was confcious of having fraudulently* 
 withheld performance, he could fuffer no damage by his 
 judicial declaration. 
 
 2. The chancery alone is competent for taking proofs 
 by commifTion, when witneffes are abroad, or ihortly to 
 leave the kingdom, or hindered by age or infirmity from 
 attending. In the courts of common law, the method of 
 trial by a jury was univerfally eftablifhed ; and as this form 
 required that the witnefTes fhould be examined in court, the 
 interpofition of equity was indifpenfable, to authorize their 
 examination in abfence. 
 
 3. Inftead of awarding damages for the neglecting to 
 fulfil a contracl, the court of chancery has power to order 
 fpecihc performance. From the narrow principles em- 
 braced, in early times, by the courts of ftrict law, no com- 
 plaint was regarded unlefs the plaintiff had fuffered in his 
 pecuniary intereft ; and, confequently, upon the breach of 
 contract, nothing farther could be claimed than reparation 
 of the damage incurred. In a more equitable view, it ap- 
 peared
 
 Chap. VII. OF THE COURTS OF JUSTICE. 483 
 
 peared that every innocent and reafonable purpofe of 
 the contractors ought to be enforced ; although, perhaps, 
 the lofs arifing from the failure of performance could not 
 be eflimated in money. A court of equity, therefore, was 
 accuftomed to enjoin, that a contract fhould be exprefsly 
 fulfilled. 
 
 4. Two other branches of power are mentioned as pe- 
 culiar to the court of chancery : the one to interpret fecu- 
 rities for money lent. This arofe from the prohibition, in- 
 troduced by the canon law, of taking intereft for the loan 
 of money ; which occasioned an evafion, by means of 
 what is called a double bond. The true construction of this 
 deed, according to the intention of the parties, and in op- 
 position to the words, was beyond the jurifdiction of the 
 ordinary courts. The other branch of power alluded to 
 was that of enforcing a trujl. This, as I formerly obferved, 
 was intended to evade the ffcatute of mortmain ; and afford- 
 ed the chancellor the firft ground for afTuming his extraor- 
 dinary authority in original actions. 
 
 Confidering the origin of the court of chancery, there 
 was no reafon to expect that its jurifdiction would be fe- 
 parated from that of the ordinary courts by any fcientific 
 mode of arrangement. It was the offspring of accidental 
 emergency ; being merely a temporary expedient for 
 granting an immediate relief to thofe who had fiiffered 
 from legal injustice. Suppofing that, after it became a per- 
 manent and regular tribunal, it had remained upon its 
 original footing, the advantages likely to have refulted 
 from it may reafonably be called in queftion. That one 
 court fhould have a jurifdi&ion according to ftridt law, 
 and another according to equity; that the former fhould 
 be obliged, with eyes open, to pronounce an unjult fen- 
 
 3Q2 tence,
 
 484 ALTERATIONS IN THE STATE, &c. Book II. 
 tence, in conformity to an old rule, leaving parties to pro- 
 cure relief by an application to the latter; that, in a word, 
 the common-law tribunal (hould be empowered to view 
 the law-fuit only upon one fide, and the court of equity 
 upon a different one ; fuch a regulation appears in itfelf 
 no lefs abfurd and ridiculous, than its confequences would be 
 hurtful, by producing a waif e of time, and an accumulation 
 of expences : not to mention the uncertainty and fluctua- 
 tion of conduct arifin^ from the inaccurate and variable 
 boundaries by which equity and flrict law muff ever be dif- 
 tinguifhed. Even according to the later form which the 
 chancery has afTumed, and by which it has appropriated 
 caufes of a very peculiar defcription, or fuch as require a 
 lingular mode of procedure, its line of partition from the 
 ordinary civil courts may be thought rather arbitrary and 
 whimfical. But, however the prelent diif ribution of the 
 judicial powers may be deficient in fpeculative propriety, it 
 feems in practice to be attended with no inconvenience. 
 The province belonging to each of the courts of Weftmin- 
 fler-hall appears now to be fettled with an cxactnefs which 
 prevents all interference or embarrafTment ; and there is, 
 perhaps, no country in the world where equity and flrict 
 law are more properly tempered with each other, or where 
 the adminiflration of juflice, both in civil and criminal mat- 
 ters, has a freer and more uniform courfe. 
 
 C H A R
 
 [ 4«5 ] 
 
 CHAP. VIII. 
 
 Of the Circumjlances zvbicb promoted Commerce, Manufac- 
 tures, and the Arts, in modern Europe, and particularly in 
 England. 
 
 THE commerce of the ancient world was confined, in 
 a great meafure, to the coafts of the Mediterranean 
 and of the Red Sea. Before the invention of the mariner's 
 compafs, navigators were afraid of venturing to a great 
 diftance from land, and in thofe narrow feas, found it eafv, 
 by fmall coafting expeditions, to carry on an extenfive 
 traffic. Not to mention what is related concerning the 
 fleets of Sefoftris and of Solomon, which are faid to have 
 been built upon the Red Sea, we may afcribe to this caufe 
 the commerce of the Phenicians, the Carthaginians, the 
 Athenians, the Rhodians, and many other Hates, in the 
 iflands and upon the coaff. of the Mediterranean. 
 
 From the time of Alexander the Great, when Greece 
 had become one extenfive kingdom, and had formed con- 
 nections with Afia, the two narrow feas above-mentioned 
 became the channel of a more diftant commerce along the 
 Indian ocean, by which the valuable productions of the 
 Eaft were imported into Europe. It was in order to facili- 
 tate this traffic, that the city of Alexandria is faid to have 
 been built. 
 
 The fame commerce was carried on, and probably much 
 extended, in the flouriihing periods of the Roman empire, 
 when the numerous articles of Afiatic luxury were in fuch 
 
 univerfal
 
 486 CIRCUMSTANCES WHICH PROMOTED Book II. 
 univerfal requeft among that opulent people. The decline of 
 the Roman power tended gradually to diminifh that branch 
 trade ; but did net entirely deftroy it. Even after the 
 \nfall of Rome, when Italy had been often ravaged, 
 1 a great part of it fubdued, by the barbarous nations, 
 there aroie upon the fea-coait forne conliderable towns, 
 the inhabitants of which continued the ancient courfe of 
 navigation, and itill maintained a degree of traffic with 
 India. The road, however, to that country was a good 
 deal changed by the revolutions and diforders which hap- 
 pened in Egypt, and by the rife of the Saracen empire ; fo 
 that the Indian trade was carried on leis frequently by 
 Alexandria, and moft commonly by the Black Sea and 
 part of Tartary, or by a middle way through the city of 
 Bagdat. 
 
 During the barbarous period that mcceeded the deftruc- 
 tion of the Roman empire, the fame caufe which had for- 
 merly promoted the commerce of the Mediterranean, gave 
 rife, in the Northern part of Europe, to a fmall degree of 
 traffic upon the narrow fea of the Baltick. The inhabi- 
 tants of the Southern coaft of Scandinavia, and the Nor- 
 thern parts of Germany, being necelfitate 1, in that inhos- 
 pitable climate, to fifh for their fubfiftence, became early 
 acquainted with navigation, and were thereby encouraged 
 not only to undertake piratical 'expeditions, but alio to ex- 
 change with each other the rude produce of the country. 
 1 rom the conveniency of that fituation, numbers of people 
 were drawn, by degrees, to refide in the neighbourhood) 
 and trading towns were formed upon the coaft, or in the 
 mouths of the adjoining rivers. For feveral centuries, the 
 commerce of the Northern part of Europe was ingrofled 
 by thole towns, in the fame manner as that of the Southern 
 
 \\ as 
 6
 
 Chap. VIII. COMMERCE, MANUFACTURES, Sec. 487 
 was ingrofled by fome of the Italian ftates. As the laws 
 relating to commerce are ufually eftablifhed by the general 
 cuftom of merchants, it commonly happens, that the prac- 
 tice of nations who have gained a remarkable fuperiority 
 in trade, becomes a model for imitation to their neigh- 
 bours, or fuch as come after them in the fame employ- 
 ment. Thus, as the Rhodian laws at one period regulated 
 the commerce of the ancient world, the ftatutes of Wifby, 
 the famous capital of Gothland, in the Baltick, obtained a 
 iimilar authority, and have fince been conlidered, by 
 many European ftates, as the balls of all their mercantile 
 regulations. 
 
 In modern Italy, the maritime laws of Amalphi were, 
 in like manner, relpecled and obferved by the merchants 
 in that part of Europe *. Nothing can ihew more deci- 
 sively the early advances in trade which were made by 
 thofe towns. 
 
 While the inhabitants of thofe different parts of Europe 
 were thus advancing in navigation and in commerce, they 
 could hardly fail to make fome progrefs alfo in manufac- 
 tures. By having a vent for the rude produce of the coun- 
 try, they rauft have had frequent opportunities of obfer- 
 ving that, by bellowing a little labour upon their native 
 commodities^ they could draw a much greater profit upon 
 the exchange of them. In this maimer they were encou- 
 raged to occupy themfelves in working up the raw mate- 
 rials ; to acquire habits of induftry ; and to make profi- 
 ciency in mechanical employments. If we examine the hif- 
 tory of commercial nations, thofe efpecially of the ancient 
 world, we fhall find that this has been the ufual courfe of 
 
 * Gunnone's Hift. of Naples, 
 
 their
 
 4 S3 CIRCUMSTANCES WHICH PROMOTED Book II. 
 their advancement ; and that their trade and m aim failures 
 have been commonly derived from a convenient maritime 
 fituation; which, by affording them the benefit of water- 
 carriage, opened a ditlant market for their goods, and 
 tempted them to engage in foreign commerce. 
 
 The commerce of Italy feems accordingly to have been 
 followed by a rapid improvement of the mechanical arts. 
 In the twelfth and thirteenth centuries, many of the Italian 
 towns had arrived at great perfection in manufactures ; 
 among which we may take notice of Venice, Genoa, Bo- 
 logna, Pifa, Sienna, and Florence. It was from Italy that 
 the art of making clocks and watches, as well as many 
 other of the finer branches of manufacture, together with 
 the mod accurate method of keeping mercantile accompts, 
 was afterwards communicated to the other nations of 
 Europe. 
 
 The advancement of the common arts of life was natu- 
 rally fucceeded by that of the fine arts, and of the fciences; 
 and Florence, which had led the way in the former, was 
 likewife the firfl that made confiderable advances in the 
 latter. That city, after having been aggrandized by trade, 
 banking, and manufactures, began, about the middle of 
 the thirteenth century, to difcover a tajle of elegance and 
 refinement, and to promote the cultivation of letters. 
 Charles of Anjou, who then obtained the kingdom of Na- 
 ples as a donation from the Pope, and who was, at the 
 fame time, the feudal fovereign of Florence, is faid to have 
 been a zealous encourager of thefe liberal purfuits. The 
 example of the Florentines w as foon followed by the other 
 flates of Italy, in proportion as trade and manufactures 
 had raifed them to eafe and opulence. 
 
 § The
 
 Chap. VIII. COMMERCE, MANUFACTURES, Sec. 489 
 The intercourfe of thofe Italian dates with f>me of the 
 opulent nations of the Eaft, in confequence of the crufades, 
 or of other cafual events, may have contributed fomet ing 
 towards the revival of letters in Europe. But the operation 
 of this accidental circumftance mull have been entirely 
 fubordinate to the great natural caufe of improvement 
 already fuggefted. While the inhabitants of Europe con- 
 tinued rude and barbarous, they were not likely to procure 
 much knowledge by their tranfient or hoftile communica- 
 tion with Afia ; but after they had acquired a tafte for the 
 cultivation of arts and fciences, they, doubtlefs, found in- 
 ft.ruc~t.ors in that part of the world. 
 
 As the people upon the coaft of the Baltick inhabited a 
 poorer country, the produce of which was not fo eafily 
 wrought up into valuable manufactures, they made a pro- 
 portionably flower progrefs in the mechanical arts ; though, 
 by continuing to export their native commodities, they 
 acquired a degree of wealth, and many of their towns be- 
 came large and powerful. Having been much opprefTed, 
 and obftructed in their trade, by the barons and military 
 people in their neighbourhood, they were led by degrees 
 into joint meafures for their own defence ; and, about the 
 twelfth century, entered into that famous Hanfeatic league, 
 which, being found of great advantage to the commercial 
 intereft, was at length rendered fo extenfive as to include 
 many cities in other parts of Europe. 
 
 As the fituation of towns, upon the coafr. of a narrow 
 fea, was favourable to foreign commerce, a country inter- 
 fered by many navigable rivers gave a iimilar encourage- 
 ment to inland trade, and thence likewiie to manufactures. 
 An inland trade, however, cannot be rendered very exten- 
 five, without greater expence than is neceflary to the 
 
 ^ R trade
 
 490 CIRCUMSTANCES WHICH PROMOTED Book II. 
 trade of a maritime town. That all the inhabitants may 
 have the benefit of a market, canals become requifite, 
 where the river-navigation is cut off; roads muft be made, 
 where water-carriage is impracticable ; machinery nruft be 
 conftructed, and cattle, fit for draught, mult be procured 
 and maintained. It may be expected, therefore, that inland 
 trade will be improved more llowly than the commerce 
 which is carried on along the fea-coait ; but, as the former 
 hold out a market to the inhabitants of a wider country, 
 it is apt, at length, to produce a more extenfive improve- 
 ment of manufactures. 
 
 We accordingly find, that, after the towns of Italy, and 
 thofe upon the coaft of the Baltick, the part of Europe 
 which made the quickeft advances in trade was the Ne- 
 therlands ; where the great number of navigable rivers, 
 which divide themfelves into many different branches, and 
 the general flatnefs of the country, which made it eafy to 
 extend the navigation by canals, encouraged the inhabitants 
 to employ themfelves in the manu failure of their natural 
 productions. 
 
 Befule the facility of water-carriage, the inhabitants of 
 
 the Netherlands appear to have derived another advantage 
 
 from the nature of their foil. The two moft considerable 
 
 branches of manufacture, which contribute to fupply the 
 
 conveniencies or luxuries of any people, are the making of 
 
 linen and of woollen cloth. With regard to the former of 
 
 thefe branches, that country leems fitted to produce the 
 
 rude materials in the greateft perfection. As early as the 
 
 tenth century, we accordingly find that the people had, 
 
 by this peculiar circumftance, been excited^to attempt the 
 
 manufacture of linens ; and that, in order to promote an 
 
 4 inland
 
 Chap. VIII. COMMERCE, MANUFACTURES, &c. 491 
 
 inland trade of this kind, which fuppofes that the commo- 
 dity muft often be carried to a confiderable diftance, Bald- 
 win the young, the hereditary count of Flanders, eftablifh- 
 ed fairs and markets in particular towns, as the moft con- 
 venient places of rendezvous between the merchants and 
 their cuftomers. 
 
 After the Flemings had made fome progrefs in this trade, 
 and when, of confequence, individuals among them had 
 acquired fome flock, as well as habits of induftry, they alfo 
 endeavoured to fupply the demand for woollen manufac- 
 tures, which required no very different fpecies of fkill and 
 dexterity from what they had already attained. In this 
 employment, however, they were fubjected to greater in- 
 conveniency ; as, after pufhing it to any confiderable ex- 
 tent, they were under the neceffity of purchafing the rude 
 materials from foreign nations. This obliged them to 
 carry on a regular trade with Spain, and with Britain, the 
 two countries of Europe in which wool was produced in 
 greater!: abundance. The union, however, of the fove- 
 reignty of Spain with that of the Netherlands, which hap- 
 pened in the perfon of the emperor Charles the Fifth, con- 
 tributed in part to remove that inconveniency, by fecu- 
 ring to the latter country the wool produced by the for- 
 mer ; and the Spanifh monarch, who faw the rude ma- 
 terials manufactured within his own dominions, had an 
 opportunity of protecting and encouraging every branch 
 of the labour connected with that employment. From this 
 time the woollen and linen manufactures of the Nether- 
 lands came to be in the fame flouridiing condition. 
 
 But while this part of Europe enjoyed fuch advantages 
 for inland trade, it was not entirely excluded from a fhare 
 in foreign commerce, by means of Antwerp, and of fome 
 
 3 R 2 other
 
 492 CIRCUMSTANCES WHICH PROMOTED Book II. 
 
 other maritime towns in the neighbourhood. The inha- 
 bitants of Italy, and of the countries upon the coaft of the 
 Baltick, having reciprocally a demand for the commodities 
 produced in iuch different climates, were led by degrees 
 into a regular traffic. As the mips, employed in this ex- 
 tenfive navigation, found a convenient middle ftation in 
 the ports of the Netherlands, the merchants of this coun- 
 try were furnifhed with opportunities of tranfporting their 
 linen or woollen cloths, both to the Southern and Northern 
 parts of Europe ; and a fure market was thus opened for 
 thofe valuable commodities. It merits attention, that the 
 opulence, thus acquired by Flanders, and the neighbour- 
 ing provinces of the low countries, had the fame effect 
 as in Italy, of giving encouragement to literature, and to 
 the cultivation of the fine arts. The rife of the Flemifh 
 painters was later than that of the Italian, becaufe the trade 
 of the Netherlands was of a pofterior date ; and their 
 not attaining the fame perfection may, among other 
 caufes, be afcribed to this circumffance, that the flourifli- 
 ing trade of that country was of fhorter duration. 
 
 The encouragement given, in the Netherlands, to 
 painting, was extended alfo to muiic, and was productive 
 of a fimilar proficiency in that art. It is obierved, that the 
 Flemings were accuftomed, in this period, to fupply the 
 reft of Europe with muficians, as is done in our days by 
 the Italians*. 
 
 Towards the end of the fixteenth, and the beginning of 
 the feventeenth century, three great events concurred to 
 produce a remarkable revolution upon the ftate of trade 
 
 * Sec Reflexions on Poetry, Painting, and Mufic, by the Abbe du Bos. 
 
 and
 
 Chap. VIII. COMMERCE, MANUFACTURES, &c. 493 
 and manufactures in general, and that of Europe in par- 
 ticular. 
 
 1. The flrft of thefe was the invention of the mariner's 
 compafs; which changed the whole fyftem of navigation, 
 by enabling navigators to find their way with certainty in 
 the wide ocean, to undertake more diftant expeditions, and 
 to complete them with much greater quicknefs. When 
 this difcovery had been properly afcertained, and reduced 
 to practice, thofe who inhabited the coaft of a narrow fea 
 had no longer that fuperiority, with refpect to commerce, 
 which they formerly pofTefTed; for, whatever advantages 
 they might have in a fmall coafting navigation, thefe were 
 overbalanced by the inconveniencies of their fituation, 
 whenever they had occaiion to fail beyond thofe adjacent 
 capes or promontories by which they were limited and cir- 
 cumfcribed. The harbours, which became then mofl fa- 
 vourable to commerce, were fuch as had formerly been 
 leaft fo; thofe which were the farthefl removed from 
 itreights, or dangerous mores, and, by their diftance from 
 oppofite lands, admitted the freeft pafTage to every quarter 
 of the globe. 
 
 1. The difcovery of America, and the opening of a paf- 
 fage to the Eaft-Indies by the Cape of Good Hope, which 
 may be regarded as a confequence of the preceding im^ 
 provement in navigation, contributed itill farther to change 
 the courfe of European trade. By thefe difcoveries a let of 
 new nnd magnificent objects of commerce was prefented, 
 and Europe began to entertain the profpecl: of forming 
 fettlements in diltant countries ; of trading with nations in 
 various climates, producing a proportional variety of com- 
 modities ; and of maintaining an eafy correipondence be- 
 tween the remctefl parts of the world. The merchants of 
 
 Italy,
 
 494 CIRCUxMSTANCES WHICH PROMOTED Book II. 
 Italy, and of the Northern parts of Germany, were natu- 
 rally left behind, in the profecution of thefe magnificent 
 views. Their fituation, hemmed in by the coaft of the 
 Baltick, or of the Mediterranean, was particularly unfa- 
 vourable for that new fpecies of trade. They had, befides, 
 a reluctance, we may fuppofe, to abandon their old habits, 
 and to relinquifh that fettled traffic in which they had been 
 long engaged, for the new and hazardous adventures 
 which were then pointed out to them. Adhering, there- 
 fore, to their former courle, they found their profits de- 
 creafc according as the new commerce became confidera- 
 ble ; and their commercial importance was at length, in a 
 great meafure, funk and annihilated. 
 
 3. The violent fhock given, by the Spanifh government, 
 to the trading towns of the Netherlands, occaiioned, 
 about this period, a change in the manufactures of Eu- 
 rope, no lefs remarkable than the two foregoing circum- 
 flances produced in its commerce. Philip the Second of 
 Spain embraced the narrow and cruel policy of his father 
 Charles the Fifth, in attempting to extirpate the doctrines 
 of Luther throughout his dominions ; at the fame time 
 that he added a bigotry, peculiar to himfelf, which led him 
 to feek the accomplifhment of his purpofe by meaiures 
 yet more imprudent and fanguinary. The doctrines of the 
 reformation had been fpread very univerfally in the Ne- 
 therlands ; and had been adopted with a zeal not inferior 
 to that which appeared in any other part of Europe. 
 Philip employed the whole force of the Spanifh monarchy 
 in order to fubdue that fpirit of religious innovation ; and, 
 after a long and obftinate flruggle, he at laft prevailed ; but 
 it was by extirpating a great part of the inhabitants, and 
 ruining the manufactures of the country. The moft inde- 
 pendent
 
 Chap. VIII. COMMERCE, MANUFACTURES, &x. 495 
 pendent and fpirited, that is, the moft active and fkilful 
 part of the manufacturers, difdaining to fubmit to a tyran- 
 ny by which they were opprefTed in their moft valuable 
 rights, fled from their native country ; and, finding a refuge 
 in other European nations, carried along with them that 
 knowledge and dexterity in manufactures, and thofe ha- 
 bits of induftry, which they pofTefTed in fo eminent a 
 degree. 
 
 Of all the European nations, Great Britain was in a con- 
 dition to reap the moft immediate profit from thefe 
 important changes in the ftate of commerce and manu- 
 factures. 
 
 England has long enjoyed the peculiar advantage of rear- 
 ing a greater number of fheep, and producing larger quan- 
 tities of wool, fit for manufacture, than moft other parts of 
 the world. This is probably derived from the flatnefs of the 
 country, by which a great part of it is plentifully fupplied 
 with moifture, and from the moderate temperature of its 
 climate ; both of which circumftances appear favourable 
 to the production of pafture, and to the proper cultivation 
 of fheep. But, whatever be the caufes of it, the fact is 
 certain, that, Spain excepted, no other country can, in this 
 particular, be brought in competition with England. 
 Particular mention is made of the Englifh wool, even when 
 Britain was a Roman province ; and, in the early periods of 
 our hiftory, the exportation of that commodity was a con- 
 fiderable article of commerce, What is remarkable, the 
 Englifh w r ool of former times appears to have been of a 
 finer quality than the prelent ; and there is even realbn to 
 believe that it was held fuperior to the Spanifh *. Of this 
 
 * See Obfervations upon National Induftry, by James Anderfon, and the authori- 
 ties to which he refers. 
 
 extraordinary
 
 496 CIRCUMSTANCES WHICH PROMOTED Book II. 
 extraordinary fact it feems difficult to give any fatisfactory 
 account. I am credibly informed, that the improvements, 
 made of late years, in the pailure-grounds of England, have 
 greatly debated the quality of the wool; though, by the 
 increafe of the quantity, they have fufficiently indemnified 
 the proprietors. 
 
 By pofleffing the raw material in great plenty, the Eng- 
 lifh appear to have been incited, at an early period, to 
 make lome 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 
 diforders which followed while the Saxons were fubduing 
 the country, and during the fubfequent ravages of the 
 Danes, gave great interruption to manufactures ; but, foon 
 after the Norman conqueft, and particularly in the reigns 
 of Henry the Third and Edward the Firft, that of woollen 
 cloth appears to have become an object of attention. 
 
 The flourifhing reign of Edward the Third was ex- 
 tremely favourable to improvements ; and that enterpri- 
 fing monarch, notwithstanding his ardour in the purfuitof 
 military glory, was attentive to reform the internal policy 
 of the kingdom, and gave particular encouragement to the 
 woollen manufacture. He invited and protected foreign 
 manufacturers ; and, in his reign, a number of Walloon 
 weavers, with their families, came and fettled in England. 
 An act of parliament was made, which prohibited the 
 wearing of foreign cloth; and another, by which the ex- 
 portation of wool was declared to be felony. Thefe regu- 
 lations, however narrow the principles upon which they 
 were built, were certainly framed with the btft intentions; 
 but they could have little or no effect, as the Englifb, at 
 that time, were neither capable of manufacturing the 
 
 whole 
 
 §
 
 Chap. VIII. COMMERCE, MANUFACTURES, Sec. 497 
 whole of their wool, nor even of fupplying their own de- 
 mand for woollen cloth. The crown, therefore, in virtue 
 of its difpeniing power, was accufto.ned to relieve the rai- 
 iers of wool, by granting occafionally, to individuals, a li- 
 cence for exportation ; and, as a difpenfation in this cafe 
 was abfolutely necefTary to procure a market for the com- 
 modity, it became the fource of a revenue to the fove- 
 reign, who obtained a price for every licence which he 
 beftowed. 
 
 The woollen trade of England made confiderable ad- 
 vances in the reign of Henry the Seventh, when, after a 
 long courfe of civil diffeniion, the people began to enjoy 
 tranquillity under a prince who favoured and protected the 
 arts of peace. About this time were fet on foot the coarfe 
 woollen manufactures of Yorkfhire ; particularly at Wake- 
 field, Leeds, 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 extenflon of manufactures, about this period, be- 
 came fo confiderable as to produce an alteration in the 
 whole face of the country ; and in particular, gave rife to 
 remarkable improvements in hufbandry, and in the diffe- 
 rent arts connected with it. The enlargement of towns 
 and villages, compofed of tradefmen and merchants, could 
 not fail to encreafe the demand for provifions in the neigh- 
 bourhood, and, by enhancing the value of every article 
 railed by the farmers, to advance the profits of their em- 
 ployment. From this improvement of their circumihinccs, 
 the tenants were foon enabled, by offering an additional 
 rent, to procure leafes for a term of years ; and the matter, 
 
 3 S whole
 
 4 q8 CIRCUMSTANCES WHICH PROMOTED Book H. 
 whofe daily expences were encreafed by the progrefs of 
 trade and luxury, was content to receive a pecuniary com- 
 penfation, for the lois of that authority over his depen- 
 dants, which he was obliged to relinquifh. Thus the 
 freedom and independence, which the mercantile and ma- 
 nufacturing people derived from the nature of their em- 
 ployment, was, in fome meafure, communicated to the pea- 
 lantry ; who, inftead of remaining tenants at will, were 
 fecured for a limited term in the polfemon of their farms. 
 
 In confequence of thefe changes, the number of villeins 
 in England was greatly diminilhed, in the reign of Henry 
 the Seventh ; and before the acceflion of James the Firft, 
 that clafs of men had entirely difappeared. Without any 
 public law upon the fubjeel:, their condition was gradually 
 improved by particular bargains with their matter ; and, 
 according as their opulence enabled them to purchafe 
 higher privileges, they acquired longer leafes, or were con- 
 verted into copyholders, or freeholders. 
 
 As, from this time, the Englifh continued, with unremit- 
 ting ardour, to profecute their improvements, and were 
 continually advancing in opulence, as well as in fkill and 
 dexterity, and in the habits of induftry, it was to be expected 
 that, in the long run, the pofTeffion of the rude material 
 of the woollen manufacture would give them a manifeft 
 fuperiohty in that branch of bufinefs, and put it in their 
 power to underfell other nations who had not the fame 
 advantage. 
 
 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 of manufacture 
 was greatly impaired, and that of woollen cloth was totally 
 
 deftroved*
 
 Chap. VIII. COMMERCE, MANUFACTURES, &x. 499 
 deftroyed. Thus the deftruction of the woollen trade of 
 the Netherlands happened at the very critical period, when 
 the Englifh were come to be in a condition of turning that 
 event to their own emolument. The manufacturers who 
 had been driven from their native land found a welcome 
 refuge from queen Elizabeth ; and the greater part of 
 them took up their refidence in England ; fo that the inha- 
 bitants of the former country became, in the highefl de- 
 gree, inftrumental in promoting the trade of the latter ; 
 inftead of retarding or depremng it, by that fuperiority of 
 induftry and fkill, and that uninterrupted pofleffion of the 
 market which they had long maintained. 
 
 In Spain, the only other country of Europe enjoying 
 fimilar advantages to thofe of England, the improvement 
 of the woollen manufacture was prevented by a variety of 
 concurring circumftances. The rooted animolity between 
 the profeflbrs of the Chriftian and Mahometan religions, 
 cherifhed by the remembrance of many acts of cruelty and 
 oppreffion, had excited Ferdinand of Arragon, when he 
 became mafter of the country, to perfecute the Moors, the 
 only induftrious part of the inhabitants. In a fubfequent 
 reign, they were entirely extirpated. The fame imprudent 
 and barbarous policy interrupted and difcouraged the trade 
 of the Netherlands ; and, after thefe two fatal events, the 
 fudden importation of gold and fllver into Spain, in conic- 
 quence of the pofTeilion of America, completed the de- 
 ftruction of induftry among the people, by railing indivi- 
 duals to fudden wealth, and making them defpife the ilow 
 and diftant returns of trade and manufactures. 
 
 Upon the ruin of the Spanifh Netherlands, were efta- 
 blifhed the fine woollen manufactures of Wiltihirc, and 
 
 3 S 2 feme
 
 5 oo CIRCUMSTANCES WHICH PROMOTED Book JL 
 fome of the neighbouring counties; thofe parts of 
 England which produced the greateft number of fheep, 
 and in which the iuperior quality of the wool was moil 
 remarkable. The rapid improvements in that great branch 
 of manufacture, which became conlpicuous in England, 
 had a natural tendency to introduce other branches, more 
 or lefs connected with it; and, when a great body of the 
 people had acquired indultry and fkill in one fort of em- 
 ployment, it was not very difficult, as occafion required, 
 to extend their application to other trades and profef- 
 fions. 
 
 While thefe circumflances bellowed upon England a 
 iuperiority in manufactures, fhe began to enjoy advantages 
 no lefs confpicuous, with regard to navigation and com- 
 merce. When the people of Europe had become qualified 
 for extenfive naval undertakings, the dittance of Britain 
 from the continent, and her fituation as an ifland, afforded 
 her a fuperiority to moil other countries in the number of 
 fuch harbours as have a free communication with all parts 
 of the globe. Her infular fituation was, at the fame time, 
 no lefs advantageous with refpect to inland trade, from 
 the numerous bays and rivers, which, by interfering the 
 country in different places, extended the benefit of water- 
 carriage to the greater part of the inhabitants. As the 
 bulk of the people beci me thus familiar with the dangers 
 and viciffitudes 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 fub- 
 fervient to navigation, tbe great inflrumcnt of commerce. 
 In thefe circumilances, there has been formed a numerous 
 body of failor^, equally prepared for commercial and for 
 
 military
 
 Chap. VIII. COMMERCE, MANUFACTURES, &c. 501 
 
 military enterprises. As, in the early Itate of the feudal 
 nations, the gr&al body of the people were, without labour 
 or expence, qualified for all the fervices of the field; fo, in 
 Britain, a great proportion of the inhabitants, after the 
 advancement of commerce, became a fort of naval militia, 
 ready, upon all occafions, for the equipment of her fleets, 
 and, without the afliftance of navigation affs, or other pre- 
 cautions of the legiflatufe, fully fufficient for the defence 
 of the country. 
 
 Thefe advantages, however, were rendered more liable 
 and permanent by the great extent of this ifland, fuperior 
 to that of molt o hers upon the globe. This, as it united 
 the inhabitants in one great ftate, made them capable of 
 exerting a force adequate to the protection of its commerce 
 and manufactures. To the extent of her dominions Great 
 Britain is indebted for her long-continued profperity. 
 The commercial ftates, both in ancient and modern times, 
 which were formed in iflands of fmall extent, have been 
 frequently overturned in a fhort time, either by the jea- 
 loufy of neighbours, or by an accidental collifion with 
 more powerful nations. The prefent combination of Eu- 
 ropean powers againit Great Britain, demonftrates the 
 jealoufy which a national iupcriority in trade is likely to 
 excite, and the force which is neceifary to maintain that 
 dangerous pre-eminence *. 
 
 That the government of England, in that period, had 
 alfo a peculiar tendency to promote her trade and manu- 
 factures, it is impollible to doubt. As the inhabitants 
 were better fecured in their property, and protected from 
 opprefiive taxes, than in any other European kingdom, it 
 
 * This was written before the peace in 1782. 
 
 r is
 
 502 CIRCUMSTANCES, Sec. Book II. 
 
 is natural to fuppofe that their induftry was excited by the 
 certain profpeft of enjoying whatever they fhould acquire. 
 Though the Englifh conftitution was then deftitute of 
 many improvements which it has now happily received, 
 yet, compared with the other extenfive governments of 
 Europe La that age, it may be regarded as a fyftem of 
 liberty. 
 
 C H A F,
 
 [ 5*3 3 
 
 CHAP. IX. 
 
 Of Henry the Seventh. — Circumjlances which> in his reign<> 
 contributed to the exaltation oftbeCro-wn. — Review of the 
 Government of this period* 
 
 IN 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 circumitances which produced 
 this alteration, either arofe from the general ftate of the 
 country, and the natural tendency of its government ; or 
 were the confequence of lingular events, and occafional 
 conjunctures. 
 
 i. The improvements in agriculture, and in trade and 
 manufactures, which appeared fo confpicuouily from the- 
 acceflion of the Tudor family, contributed, more than any 
 other circumftance, to increafe the influence and autho- 
 rity of the crown. By thefe improvements, perfons of the 
 lower clafs were led to the acquifition of different privileges 
 and immunities: inftead of remaining in the idle ftate of 
 retainers, they found employment either as farmers, who 
 paying a fixed rent, were exempted from the arbitrary will 
 of a matter, or as tradefmen and merchants, who, at a 
 diftance from any fuperior, were enriched by the profits 
 of their induftry. Thefe circumitances naturally produced 
 that fpirit of independence which is fo favourable to civil 
 § liberty,
 
 504 EXALTATION OF THE CROWN Book H, 
 
 liberty, and which, in after times, exerted itfelf in oppofi- 
 tion to the power of the crown. But fuch was the fituation 
 of the great body of the people, upon their firft exaltation, 
 that, inftead of attempting to deprefs, they were led to fup- 
 port the political influence of the monarch. His protection 
 they had formerly experienced, in oppofition to thofe great 
 proprietors of land in their neighbourhood, by whom they 
 had been oppreifed, and who Hill were endeavouring to 
 retain them in fubjedtion. Notwithft anding the change of 
 their condition, their power was not lb eiiablifhed as to 
 enable them, alone and unprotected, to withftand thefe an- 
 cient oppreflbrs ; and from their former habits, as well as 
 from the dangers and difficulties which were not yet en- 
 tirely removed, they Hill adhered to the fovereign as their 
 natural protector. In this peculiar flare of things, the in- 
 tcreit of the crown coincided with that of the great body 
 of the people ; while the ambition of the nobles appeared 
 equally inconilftent with both. To humble the ariftocracy 
 was therefore the firft aim of the lower order of the inha- 
 bitants ; but, in their attempts to deftroy two or three hun- 
 dred petty tyrants, they incurred the hazard of railing up a 
 iingle one more powerful than them all. 
 
 This union of the crown with the great body of the 
 people, at the fame time that it primarily encreafed the 
 authority of the monarch, contributed indirectly to prefcrve 
 the ancient privileges of parliament. As the houfe of 
 ( ommons, which daily rofe to higher confideration, was in 
 the intereft of the king, and ufually fupported his meafurcs 
 if not extremely odious and oppreffivc, he found it expe- 
 dient to call frequent meetings of that aiTcmbly. Tims the 
 very power, which the interpofitions of parliament were 
 taleulated to reftrain, invited and prompted this national 
 
 council
 
 Chap. IX. IN THE REIGN OF HENRY VII. 505 
 
 council to exercife its rights ; becaufe, in the exercife of 
 them, it was difpofed to gratify the inclination or humour 
 of the fovereign, who regarded prefent convenience more 
 than the future effects of example. 
 
 The fame views of intereft, which led the king to call 
 frequent meetings of parliament, induced him to .beftow 
 additional weight upon the houfe of commons, by encreaf- 
 ing the number of its members. For this purpofe, many 
 fmall towns, upon the demefne of the crown, were incor- 
 porated, and invefled with all the privileges of royal bo- 
 roughs; in confequence of which they became entitled to 
 fend the uftial number of burgeffes to parliament. In 
 other towns, which had anciently been incorporated, but 
 which had long neglected to fend reprefentatives, that 
 obligation was renewed and inforced. The poorer and 
 more infignificant thefe boroughs were, they promoted 
 more effectually the dellgn with which they were created ; 
 being fo much the more dependant upon the fovereign, 
 and the more likely to choofe reprefentatives willing to fol- 
 low his direction. 
 
 During the reigns of the Tudor princes, after that of 
 Henry the Seventh, and even upon the accefTion of the 
 Stewart- family, this expedient was put in practice to a 
 ^great extent, and apparently with great fuccefs. Henry the 
 Eighth reftored, or gave, to twelve counties, and to as 
 many boroughs in Wales, the right of fending, each of 
 them one reprefentative. In other parts of his domain. he 
 alfo created eight new boroughs, requiring two delegates 
 from each. Edward the Sixth created thirteen boroughs ; 
 and reftored ten of thofe which bad given up the right of 
 reprefentation. Mary created ten, and renewed the ancient 
 privilege in two. In the reign of Elizabeth, no fewer than 
 
 3 T twenty-
 
 506 EXALTATION OF THE CROWN Book N. 
 
 twenty-four parliamentary boroughs were created ; and 
 {even were reltored. James the Firit created fix, and re- 
 ftored eight. Charles the Firft reftored nine. From each 
 of thefe boroughs two reprefentatives appear to have been 
 admitted •'•. 
 
 The circumrfances now mentioned will, in a great mea- 
 fure, account for that very unequal reprefentation in par- 
 liament, which has been ib often and fo juftly complained 
 of. No view of national utility could ever have produced 
 lb grofs an abfurdity. But, as the king had an intereft. in 
 augmenting the houfe of commons, in order, with their 
 affiitance, to counteract the influence of the peers ; fo by 
 multiplying the fmall and iniignificant boroughs, he fecu- 
 red a more numerous party in that houfe, and was en- 
 abled, with greater facility, to over-rule its determina- 
 tions. 
 
 2. The occurrences which had preceded the acceflion 
 of Henry the Seventh, and the general difpofition which 
 thefe had produced in the nation, were like wife highly 
 favourable to the intereft of the monarch. During the 
 long and bloody civil war between the houfes of York and 
 Lancafter, every perfon of diflincYion had been engaged in 
 fupporting one or other of the competitors ; and, from the 
 various turns of fortune exhibited in the progrefs of the 
 eonteft, had alternately fallen under the power of the ad- 
 verfe party. At the final termination of the difpute, many 
 of the great families were totally ruined ; all of them were 
 much exhaufted and weakened. The dignity of the crown 
 had, indeed, from the fame caufes, been alfo greatly im- 
 paired. But the royal demefnes were not fo liable to be 
 
 * See Notitia Parliamentaria, by Browne Willis. 
 
 difmembered
 
 Chap. IX. IN THE REIGN OF HENRY VIL 507 
 
 difmembered as thofe of the nobility ; and, upon the re- 
 ftoration of public tranquillity, the numerous refources 
 of the monarch, which were all directed to the fame ob- 
 ject, afforded him great advantages, in extending his au- 
 thority over a broken and disjointed ariftocracy. During 
 the alternate government of the two contending branches 
 of the royal family, the partizans of both had probably 
 occafion to think their fervices undervalued ; and to be 
 difgufted with the fyftem of admin iftr at ion which prevail- 
 ed. Henry the Sixth, in whom the line of Lancailer for- 
 feited the crown, had, by his incapacity, excited univerfal 
 contempt. The crimes of Richard the Third, the laft mo- 
 narch of the houfe of York, had rendered him the object of 
 horror and deteftation. Time and experience had gradually 
 abated the zeal of party ; and the nation, tired in waiting its 
 blood and treafure in fo unprofitable a quarrel, was become 
 willing to adopt any fyftem that promifed a removal of the 
 prefent diforders. Henry the Seventh, accordingly, ob- 
 tained the crown by a fort of compromife between the two 
 parties ; being the acknowledged head of the houfe of 
 Lancafter; and having come under a folemn engage- 
 ment to marry Elizabeth, 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 more 
 likely to promote the general intereft of the nation, could 
 hardly be expected. Henry was the deliverer of his coun- 
 try from the tyranny of Richard ; and appears to have been 
 the only perfon pofTerTed of fuch credit and influence, as 
 were neceffary to hold the fcepter with fteadinefs, and to 
 create the expectation of a quiet and permanent reign. 
 The fame views and difpofitions which had eftabliilied this 
 prince upon the throne, were likely- to produce a general 
 
 3 T 2 fubmifiion
 
 5 o8 EXALTATION OF THE CROWN Book II. 
 
 iubmifTion to his authority, and averfion to every meafure 
 which might occafion frefh difturbance, or threaten 
 once more to plunge the nation into the former cala- 
 mities. 
 
 3. The perfonal character of Henry was calculated for 
 improving, to the utmoft, the advantages which he deri- 
 ved from his peculiar fituation. Lefs remarkable for the 
 brilliancy of his talents, or the extent of his genius, than 
 for the folidity of his judgment, he difcovered uncommon 
 fagacity in difcerning his own intereft, and unremitting 
 afliduity and vigour in promoting it. His great objects 
 were, to maintain the pofTeflion of the throne, to deprefs 
 the nobility, and to exalt the prerogative ; and thefe he 
 appears to have invariably purfued, without being ever 
 blinded by paflion, relaxed by indolence, or milled by 
 vanity. Cautious in forming no vifionary or diftanc 
 fchemes, he was refolute in executing his meafures, and 
 dextrous in extricating himfelf from difficulties. In war he 
 difplayed activity, valour, and conduct, and was fortunate 
 in all his undertakings ; but he feems to have engaged 
 in them from necelfity, or from the profpect of emolu- 
 ment, more than from the defire of procuring military 
 reputation. Full of fufpicion, he admitted no perfon to 
 his confidence ; but affumed the entire direction of every 
 public department ; and was even attentive to the moft 
 minute and trivial concerns. His miniitcrs were generally 
 ecclefiaftics, or men of low rank ; and were employed as 
 the mere inftruments of his government. 
 
 The jealoufy which Henry difcovered of all the friends 
 of the York family, and thefeverity with which he treated 
 them, have been ufually cenfured as illiberal and impo- 
 litic. To the praife of liberal views and featiments ; this 
 
 § monarch
 
 Chap. IX. IN THE REIGN OF HENRY VII. 509 
 
 monarch had certainly no claim. But that this plan of 
 conduct was contrary to the maxims of found policy, may 
 perhaps be doubted. When a political junto is fo much 
 broken and reduced as to be no longer formidable, pru- 
 dence feems to require that its members mould not be 
 pointed out by invidious diltinclions ; but that, by gentle 
 treatment, they mould be induced to lay afide their peculiar 
 principles and opinions. But when the individuals of an 
 unfuccefsful party are frill polTerTed of fo much power, a^ 
 to afford the profpecl of riling to fuperiority in the flare, 
 it is vain to expect that their attachment will be fecured by 
 marks of confidence and favour. Hope ca-operates with 
 refentment, to keep alive the fpirit of oppofition ; and 
 the participation of honours and emoluments is only fur- 
 nifhing them with weapons for the deftrufrion of their 
 political enemies. Such was the fituation of the numerous 
 adherents of the houie of York. They had, indeed, yielded 
 to the exigency of the times ; but they were frill pofTeiied 
 of much influence, and were far from being thoroughlv 
 reconciled ro the advancement of a family which they had. 
 fo long onpofed. 
 
 From the imputation of avarice the character of Henry 
 cannor fo ealily be vindicated. That vice, it mould feem. 
 Was equally promoted by thofe habits of minute attention 
 for which he was noted, and by the circumlhmces 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 peop 
 to Amply all the deficiencies of the public revenue, the 
 difpofition of the king to accumulate wealth would be a 
 moft extravagant and ridiculous propeniitv. But in thole 
 times, when the private, eftate of the. fovcreign was the 
 
 principal
 
 5ro EXALTATION OF THE GROWN Book II. 
 
 principal fund for defraying his expences, and when every 
 new exaction, from his fubjeets was deemed a general grie- 
 
 nce, he had the fame intereft with every other individual 
 to praclife ceconomy ; and his love of money might be in 
 
 lily the love of independence and of power. In all 
 • *ountries, accordingly, in which 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 amafling a treafure. " Whereunto," fays my Lord 
 Bacon, in his character of Henry the Seventh, " I mould 
 " add, that having every day occafion to take notice of the 
 u neceflities and fhifts 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 might be made of the advancement of the 
 commons, in raifing the power of the crown, in oppofition 
 to that of the nobility, feems not to have efcaped the pene- 
 tration of Henry ; and in the ftatutes which pafTed in his 
 reign, we difcover the policy of the monarch, co-operating 
 with the natural improvements of fociety, in diminifhing 
 the influence of the ariftocracy. 
 
 The artifice of entails, rendered effectual by a ftatute, 
 in the relgo of Edward the Firft, had for a long time pre- 
 vented the barons from difmembering their eflates. But 
 the general propenfity to alienation, ariiing from the ad- 
 vancement of commerce and manufactures, became at 
 length ib {Irons;, thaf it could no longer be withltood by 
 fuch unnatural reftraints. When a law is directly contrary 
 to the bent of a whole people, it mult either be repealed 
 or evaded. In the reign of Edward the Fourth, the device 
 of a common recovery, that is, a collufive judgment by a 
 court of juftice, was accordingly held fufflcient to defeat an 
 
 entail.
 
 Chap. IX. IN THE RfelGN OF HENRY VII. 511 
 
 entail. For the fame purpofe, the ingenuity of lawyers had 
 fuggefted the expedient of a fine, or collufive agreement, 
 entered upon the records of a court ; to which Henry the 
 Seventh, by an act of parliament, in the fourth vear of his 
 reign, procured the fanction of the legiilature. Thus, by 
 the dilTblution 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 artifi- 
 cially accumulated in the pofTeflion of the nobility, was gra- 
 dually diffipated and transferred to the commons. AY hat- 
 ever might be the ultimate confequences of this alteration, 
 its immediate effects were undoubtedly advantageous to trie- 
 monarch . 
 
 The wealth of the barons being leffened, while their 
 manner of living was becoming more expenfive, they were 
 laid under the neceffity of reducing the number of their 
 military fervants. This change in the fituation of the 
 nobility, fo conducive to the good order of the kingdom, 
 parliament had repeatedly endeavoured to promote, by 
 prohibiting their keeping retainers in liveries, for the pur- 
 pofe of affiiting them in their quarrels ; a regulation which 
 Henry is laid to have exerted the utmoft vigilance and acti- 
 vity to enforce. 
 
 Many other regulations were introduced in this reign, 
 which, by tending to improve the police, and to promote 
 the induftry and the importance of the lower orders of the 
 people, contributed more indirectly to the fame political 
 changes. 
 
 From the r e concurring circumftances, the prerogative 
 was, no doubt, considerably advanced, after the acccilion 
 of Henry the Seven! h. its advancement, however, ap- 
 pears not lb much in the uiTumntion of new powers by the 
 
 t monarchy
 
 §ta EXALTATION OF THE CROWN Book II. 
 
 monarch, as in the different fpirit with which the ancient 
 .powers began to be cxercifed. This will be evident from 
 an examination of thofe different branches of government 
 which cuftom had then appropriated xo the king, and to 
 the national affemblv. 
 
 The legiilative powers in conformity to the ancient con- 
 stitution, was, without all queltion, exclusively veiled in 
 parliament ; as the executive power, that of declaring peace 
 and war, of levying troops, of commanding the armies, 
 and, in general, 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 power of parliament. 
 
 When a ftatute prohibited any aftion, or enjoined any 
 ride of conduct, the king, as representing the community, 
 might remit the penalties incurred by the t ran fgref lion of 
 it. From a ftep of this nature it was thought no conlicler- 
 able ftretch, that he fhould previoully give to individuals 
 a difpenfation from the obfervance of the law ; fincc the 
 kuter feemed to be nothing more than a different mode of 
 exercifmg a power which he was nniverfally allowed to 
 poffefs. To pardon a criminal, after he has been guilty 
 is indeed lefs dangerous to fociety than to give a previous 
 induleence to the commiffion of crimes ; but in a rude aire, 
 this difference was likely to be overlooked. Hence the 
 origin of the difpenfmg power ; which was early cxercifed 
 by the fovereign ; and which, as long as it was kept with- 
 in a narrow compafs, appears to have excited little atten- 
 tion. By degrees, however, thefe extraordinary interpoli- 
 tions of the crown were multiplied* and extended to things 
 of greater importance; and in fome cafes, inftead of gnrnt- 
 . ig a mere exemption to particular perfons, were at length 
 
 carried
 
 Chap. IX. IN THE REIGN OF HENRY VII. 5*3 
 
 carried fo far as at once, by a general difpenfation, to fuf- 
 pend all the effects of a ftatute. This laft exertion of the 
 regal power, which was of much greater magnitude, ap- 
 pears to have been, in fome meafure, concealed under the 
 mafk of the former ; and had never been avowed as a dif- 
 tinct branch of the prerogative-. It was indeed impoflible 
 that the parliament could admit fuch a claim of the fove- 
 reign, without furrendering to him its legiilative authority. 
 The general fufpeniion of a law is equal to a temporary 
 abrogation ; and therefore can only proceed from the fame 
 power by which the law was made. 
 
 But the difpeniing power of the crown, even in favour 
 of particular perfons, had been virtually difallowed and 
 reprobated in parliament. In the reign of Richard the 
 Second, a power was granted to the king of making fuch 
 Sufferance, touching the ftatute of provifors, as Jbould feem 
 to him reafonable and profitable. But this ftatute, at the, 
 fame time that it implies his having, of himfelf, no fuch 
 authority, allows this power only until the next parlia- 
 ment; and contains a proteftation, that it is a novelty, 
 and that it fhall not be drawn into example for the time 
 to come t. 
 
 As 
 
 * See the trial of the Bifhops in the reign of James IF. In the courfe of that trial, 
 in which all the lawyers of eminence were engaged, and contended every point with 
 great eagernefs, it is aflerted by the counfel for the bifhops, and not contradicted on 
 the other fide, that from the Norman conqueft, until the acceflion of the houfe of 
 Stewart, a general power of fufpending or diipenfmg with the laws had never been 
 directly claimed by the crown. 
 
 t The ftatute, which paflbd in the fifteenth of Richard the Second, is as follows :— 
 " Be it remembered, touching the ftatute of Prcvifcrs y that the commons (for the 
 " great confidence which they have in the peifon of our lord the king, and in his 
 " moft excellent knowledge, and in the great tendemefs which he hath for his crown, 
 
 o (J " a™*
 
 5 i4 EXALTATION OF THE CROWN Book II. 
 
 As the king attempted, in fome cafes, to interrupt the 
 eourfe of the ilatutes already made, fo he endeavoured, 
 ibmetimes, by his commands, to fupply the place of new 
 regulations. In the character of chief magiftrate, he af- 
 fumed the care of maintaining the police of the kingdom ; 
 and, in order to put his fubjects upon their guard, fo that none 
 might pretend ignorance of the duties required of them, he 
 frequently iiTued proclamations, with refpect to thofe rules 
 of conduct which he had occafion to enforce. But as thefe 
 commands of the fovereign were not always confined to 
 
 ,c and the rights thereof, and al fo in the noble and high difcretion of the lords) have 
 
 *"• affented in full parliament, that our faid lord the king, by advice and aiTent of the 
 
 " faid lords, may make fuch fufferanze, touching the faid Jiatute, as /hall feem to him 
 
 M reafonable and profitable, until the next parliament, fo as the faid feature be not re- 
 
 u pealed in no article thereof v and that all thofe who have any benefices by force of 
 
 a the faid ftatute, before this prefent parliament j and alfo that all thofe, to whom any 
 
 u aid, tranquillity, or advantage is accrued by virtue of the faid ftatute, of the bene- 
 
 « c fices of holy church (of which they were heretofore in poffefiion) as well by pre- 
 
 " fentation or collation of our lord the king, as of the ordinaries or religious perfons 
 
 41 whatfoever, or by any other manner or way whatfoever ; may freely have and enjoy. 
 
 4t them, and peaceably continue their pofieilion thereof, without being oufted theieof, 
 
 ■ or any ways challenged, hindered, molefted, difquieted, or grieved hereafter, by 
 
 " any provifors or others, againft the form and effect of the ftatute aforefaid, by reafon 
 
 Cl of the faid fufferance, in any time to come. And moreover, that the faid commons 
 
 4 may difagree, at the next parliament,, to this fufferance, and fully refort to the faid 
 
 " ftatute, if it fhall feem good to them to do it : with protejlation, this nflent, which 
 
 .*' is a novelty, and has not been done before this time, be not drawn into example or 
 
 " cenfequence, for time to come. And they prayed our lord the king, that the pro- 
 
 u teftation might be entered of record in the roll of parliament : and the king gnuited 
 
 " and commanded to do it." 
 
 The ftatute of Provifors had prohibited, under fevere penalties, the procuring or 
 accepting ecclefiaftical benefices from the pope j and it is evident that, by the prefent 
 acl of parliament, it was intended that the king fhould difpenfe with that ftatute in 
 f.vour of particular perfons only, not that he fhould all at once fufpend the cfle& of 
 it. Even this difperifation to individuals is termed a novelty. 
 
 t the
 
 Chap. IX. IN THE REIGN OF HENRY VU. 51- 
 
 the mere execution of the laws already in being, it was not 
 eafy for the people at large to diftinguifh in what cafes 
 they exceeded that boundary, or to determine the degree 
 of obedience to which they were itridtly entitled. As, 
 however, few would be willing to incur the king's difplea- 
 fure by calling their validity in queftion, the royal procla- 
 mations were allowed to advance in authority, according to 
 the increaling influence and dignity of the crown. In the 
 reign of Henry the Seventh, they rofe to higher confidera- 
 tion than they had pofTefTed 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 de- 
 termining the rules by which the people fhould contri- 
 bute to defray the expence of government. The right 
 of impofing taxes had therefore been invariably claimed 
 and exercifed by parliament. But, in order to procure 
 money, without the authority of that aflembly, the king 
 had recourfe to a variety of expedients. 
 
 The firfl, and moil obvious, was that of foliciting a 
 benevolence. This was originally a contribution made by 
 the king's immediate vafTals ; but, from a relaxation of the 
 ancient feudal principles, had afterwards, in the reign, it 
 fhould feem, of Edward the Fourth, been extended over 
 the whole kingdom * . It was always, except in three lin- 
 gular cafes, confidered as a free gift; and could not be 
 levied, by force, from fuch as perfifted in refufing it. But 
 
 * This cxtenfion of a benevolence is probably what is ment by Lord Bacon, when 
 he fays, " This tax was devifed by Edward the Fourth, for which he fuftained much 
 u envy." 
 
 3U2 although
 
 S i6 EXALTATION OF THE CROWN Book IL 
 
 although the people were not bound, in law, to contribute; 
 they had every inducement from expediency ; fmcc a 're fil- 
 ial was likely to be attended with greater inconveniency 
 than the payment of the money which was demanded. 
 From the difcretionary power of executing the law, the 
 crown had many opportunities of harraffing thofe who 
 mewed themfelves unwilling to relieve its necefiities ; and 
 feldom could fail to make them heartily repent of their 
 obftinacy. In particular, from the direction of the army, 
 the king had the power of quartering troops in any part of 
 the kingdom ; by which means he was enabled, however 
 unjultly, to create ex pence and vexation to fuch of the 
 inhabitants as had not complied with his demands. The 
 very folicitation of a benevolence upon the part of the 
 crown, was therefore juftly regarded in the light of hard- 
 fhip ; and, in the preceding reign, appears to have been, in 
 every fhape, condemned and prohibited by parliament: 
 which provides, " that the king's fubjects fhall from 
 " henceforth, in no wife, be charged by fuch charge, ex- 
 * action, or impofition called a benevolence, nor by fuch 
 " like charge ; and that fuch exactions 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 fubjects 
 u hereafter, but fhall be damned and annulled for ever *-.?' 
 
 Notwithstanding the violence with which the legiflature 
 had thus teftified its difapprobation of this practice, we 
 find that in the feventh year of Henry the Seventh, the 
 parliament, upon occaflon of a war with France, exprefsly 
 permitted the king to levy a benevolence. That this, how- 
 ever, was intended as a mere voluntary contribution, ap- 
 
 • i Richard III. c. 2. 
 
 pears
 
 Chap. IX. IN THE REIGN OF HENRY VII. 517 
 
 pears from the account of it given by Lord Bacon, who 
 fays, it was to be levied from the more able fort ! , and men- 
 tions a tradition concerning the arguments which the com- 
 miffioners for gathering the benevolence were instructed 
 to employ ; " that, if they met with any that were fparing, 
 " they fliould tell them, that they mnft needs have, be- 
 " caufe they laid no; and if they were fpenders, they 
 " muft needs have, becaufe it was feen in their port, and 
 " manner of living : fo neither kind came amifs." This 
 was called by fome bifhop Morton's fork, by others his 
 crutch f . 
 
 In a few years after, parliament made what my Lord 
 Bacon calls an underpropping aB of the benevolence, by or- 
 daining that the fums, which any perfon had agreed to pay, 
 might be levied by the ordinary courfe of law. This act, 
 however, (till fuppofes that, independent of the confent of 
 the party, no contribution of this nature could ever be made 
 effectual. 
 
 Befide the benevolence formerly mentioned, which was 
 obtained by the permiffion of the legislature, there was 
 only one more levied by Henry the Seventh. On all other 
 occasions, the general afTefTments procured by this mo- 
 narch were Supported by the authority of parliament, and 
 impofed in the direct form of a tax. 
 
 When the kings of England had reafon to fufpect that 
 the benevolence of their Subjects might be exhausted, they 
 had fometimes recourfe to another expedient, that of re- 
 questing a loan. This mode of relief, as it Strongly mark- 
 ed the neceSIities of the crown, and its reluctance to burden 
 the people, and required no more than the temporary ufe 
 
 * Hift. of the reign of Henry the Seventh, 
 
 3 of
 
 5 t8 EXALTATION" OF THE CROWN Book II. 
 
 of their money, could with lefs decency be withheld. But, 
 in reality, a loan, when granted to the fovereign, came to be 
 nearly of the fame amount with a benevolence. From the 
 condition of the debtor, he could never be compelled to do 
 juflice to his creditors; and his circumfhmces were fuch as 
 always afforded plaufible pretences for delaying and eva- 
 ding repayment. Although the nature of a loan, imply- 
 ing a mutual tran faction, appeared to exclude any idea of 
 right in demanding it, yet the fame indirect methods might 
 eafily be practifedby the crown for procuring a fupply in 
 this manner, as under the form of a benevolence. We 
 accordingly find, that in a parliament, as early as the reign 
 of Edward the Third, the commons pray the king, " that 
 " the loans which were granted to the king by many of 
 a that body may be releafed ; and none compelled to make 
 " fuch loans for the future againft his will, for that it was 
 <c againft reafon and the franchife of the land ; and that 
 " reflitution might be given to thofe who had made the 
 " loans." The king's anfwer was, " that it fhould be 
 " done *," It does not appear that Henry the Seventh ever 
 practifed this mode of exaction. 
 
 Purveyance was another fpecies of exaction, by which 
 the people were expofed to great vexation from the crown. 
 It was requifite that the king and his followers, who in 
 early times were frequently moving over different parts of 
 the country, fhould, wherever they came, be fpeedily 
 fupplied with provisions. Inffead of making, therefore, a 
 previous bargain with the inhabitants, the officers of the 
 crown were accuftomed to lay hold of fuch commodities as 
 were wanted, leaving commonly the indemnification of the 
 
 * 26th of Edward III. See Parliamentary Hiftory in that year. 
 
 proprietors
 
 Chap. IX. IN THE REIGN OF HENRY VII. 5 i 9 
 
 proprietors to fome future occafion. It may eafily be fup- 
 pofed, that this practice was liable to much abufe, and that 
 thofe whom the king employed in this department would 
 endeavour to make profit at the expence of the people. 
 The number of ftatutes, that, from the reign of Edward the 
 Firft, were made for preventing the fraud and oppreflion 
 of the king's purveyors, afford fiifficieni evidence of the 
 great enormities with which that fet of people had been 
 charged, and of which they probably were guilty *. 
 
 It muff, not be overlooked, that, from the exclufive 
 power of making laws, with which parliament was in- 
 verted, that afTembly had the privilege of retraining thefe, 
 and all other arbitrary proceedings of the crown. Its exer- 
 tions for this purpofe, how r ever, were frequently inter- 
 rupted or prevented by the want of a fixed rule with refpect 
 to the times of its meeting. 
 
 Upon the difufe of the ancient practice, by which par- 
 liaments had been regularly held at the three flated feflivals 
 of Eafter, Whitfuntide, and Chriftmas, the power of con- 
 vening thofe afTemblies devolved entirely upon the king. 
 The magistrate, intruded with the fupreme execution of 
 the laws already exifting, was the belt qualified to difcover, 
 in what cafes thefe were defective, and upon what occa- 
 fions a new interpofition of the legiflature was requifite. 
 In that fimple age it was perhaps not apprehended that, 
 Avith a view of extending the prerogative, he would be dif- 
 pofed to avoid the meetings of parliament ; or rather, the 
 barons trufted, that, whenever they had a mind, they could 
 
 * See 28 Edw. I. c. 2. — 4 Edw. III. c. 4.-5 Edw. III. c. 2. — 10 Edw III. 
 fat. 2.-25. Edw. III. fat. 5.-36 Edw. III.— 1 Rich. II. c. 3.-6 Rich. II. fat. 2. 
 c. 2. — 23 Henry VI. 
 
 compel
 
 5 20 EXALTATION OF THE CROWN Book IL 
 
 compel him to fummon thofe meetings. But when expe- 
 rience had ihewnthe abufes in this particular, which were 
 likely to arife, it was thought proper that the difcretionary 
 power of the crown mould be limited ; and accordingly, 
 by a flatute in the fourth year of Edward the Third, it 
 was exprefsly provided, that " a parliament mall be held 
 " every year once, and oftener if need be." By another 
 flatute, in the thirty-fixth year of the fame reign, this regu- 
 lation is confirmed-. In a fubfequent period, when the 
 houfe of commons had begun to throw confiderable 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 confequence, lefs anxious to enforce this 
 branch of his duty. Henry the Seventh, during a reign of 
 twenty-three years, had occafion to convene leven different 
 parliaments. 
 
 To diffolve a parliament was originally nothing more 
 than to put an end to the attendance of its members ; with 
 which, as it faved them from farther expences, they were 
 commonly well fatisfied. Before the introduction of re- 
 prefentatives into that anembly, every new meeting of the 
 barons was properly a new parliament ; and there could be 
 n> diftindlion between a dijfohition of parliament and a 
 prorogation. But, after the eftablifhment of the houfe of 
 commons, which confided of members whofe election was 
 attended with trouble and expence, it became convenient 
 that the fame parliament ihould, in fome cafes, be pro- 
 longed, and that there mould be intervals in its meeting. 
 When the meetings of parliament came thus to be divided 
 into different fefiions, the power of proroguing a parlia- 
 
 * Statutes at Large. 
 
 ment
 
 Chap. IX. IN THE REIGN OF HENRY VII. 521 
 
 paent from one feffion to another, like that of dirTolving it, 
 was devolved upon the crown ; and, for a long time, this 
 branch of the prerogative was exercifed within ruch nar- 
 row limits as to excite no apprehenfion or jealoulv. The 
 danger of allowing too great an interval between one par- 
 liament and another, as well as that of permitting the king 
 to reign entirely without a parliament, was always mani- 
 feft ; but the milchiefs ariiing from the long continuance 
 of the fame parliament ; the reducing the members of the 
 houle of commons, more immediately, under the influence 
 of the crown, and rendering them lefs dependent upon 
 their conftituents ; in a word, the erection of the national 
 aflembly into a {landing fenate, and deftroying, or at leafl 
 greatly impairing, its reprefentative character ; thefe evils 
 had never been felt, and, in that early age, were not likely 
 to be forefeen. 
 
 3. With refpect to the judicial power, it muft be ac- 
 knowledged, that the extent of the prerogative was, in 
 ieveral refpedls, incompatible with an equal and proper 
 dillribution of juflice. 
 
 The nature and origin of the Jlar-chamber have been 
 formerly confidered. This court confifled of the king and 
 his privy-council, together with the judges of the princi- 
 pal courts, and fuch other perfons as, in each particular 
 cafe, he thought proper to nominate ; and was intended for 
 the determination of fuch criminal actions as were beyond 
 the jurifdiclion of the ordinary tribunals. Being calcula- 
 ted to fupply 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 uti- 
 lity. But, as the limits of its jurifdiclion could not be afcer- 
 fained with accuracy ; as the acliojv of which it took cog- 
 
 3 X nizance
 
 5 22 EXALTATION OF THE CROWN Book II, 
 
 nizance related principally to crimes affecting the ftate, in 
 which the crown was immediately interefted ; and as the 
 king, by fitting in this tribunal, was enabled to control) J 
 and direct its decifions ; we have every reafon to believe 
 that its proceedings were partial and arbitrary, and that 
 it might eafily be employed as an engine of minifteria! 
 oppreilion. According as the crown role in authority, the 
 jurifdiction of this court was enlarged ; and being, in cer- 
 tain cafes, confirmed by act of parliament, in the reign of 
 Henry the Seventh, was, by the fubfequent princes of the 
 Tudor line, rendered yet more inftrumental in promoting 
 the incroachments of the monarch. 
 
 When a military enterprize had occalioned the levying 
 of troops, it was necefTary that among thefe a ftricter and 
 more fevere difcipline mould be enforced, than among the 
 reft of the people. Hence the origin of the martial /aw, 
 as diftinguifhed 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 vafTals, with their followers, it feemed a natural 
 confequence, that he might, at pleafure, extend to the 
 whole of his fubjects that arbitrary fyftem of law, which 
 was held irritable to men living in camps. In that period 
 of the Engliih biftory, when family feuds and civil wars 
 were frequent and univerfal, this extenfion might often 
 prove falutary, as the means of quelling and preventing 
 diforders. It was, at the fame time, a meafure from which 
 great abufes might be expected ; as it fuperfeded, at once, 
 that mild and equitable fyftem of regulations, by which the 
 rights and liberties of the nation were fecured. 
 
 But the chief handle for the oppreffion of individuals, 
 arofc from the influence of the crown in the direction and 
 
 conduct
 
 Chap. IX. IN THE REIGN OF HENRY VII. 523 
 
 conduct of public profecutions. As every public profecu- 
 tion proceeded in the name of the king, and was carried on 
 by an officer whom he appointed during pleafure, he pof- 
 fefTed, of courfe, a difcretionary power in bringing the trial 
 to an hTue. Thus, by directing the profecution of indivi- 
 duals 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 mall be no unreafon- 
 able delay of juttice. This regulation was conceived in 
 terms too vague and general, to be of much advantage ; 
 although its meaning and fpirit are fufficiently obvious. 
 Henry the Seventh carried the abufe to fuch a height, as, 
 upon pretence of crimes, to make a trade of imprifoning 
 perfons of great opulence, and of extorting from them 
 fums of money as the price of their liberty. The names 
 of Empfon and Dudley, as the common agents of the 
 crown in that infamous traffic, have been handed down to 
 pofterity ; and it is remarkable that the houfe of commons, 
 inftead of difcovering a refentment of fuch notorious op- 
 preffion, made choice of Dudley for their fpeaker. The 
 houfe of commons were, at this period, attached to the 
 crown ; and probably took little concern in the fate of the 
 great barons, againft whom, upon account of their opu- 
 lence, and their oppofition to the king, this kind of extor- 
 tion was rnoft likely to be committed. But although thcie 
 uons, for fome time, efcaped the vengeance due to their 
 luitous practices, it overtook them in the beginning of 
 the aext reign ; when, in coniequeiue both of the ientencc 
 
 3X2 of
 
 524 EXALTATION OF THE CROWN Book II. 
 
 of a court, and of a bill of attainder in parliament, they 
 were condemned to death and executed. 
 
 Upon the whole, it is a grofs error to fuppofe, that the 
 Englilh government was rendered abfolute in the reign of 
 Henry the Seventh. There is, on the contrary, no reaibn 
 to believe, that any material variation was produced in the 
 former conftitution. Although the influence of the crown 
 
 s increaied, the prerogative remained upon its former 
 bafis. The king's authority was entirely fubordinate to 
 that of the national aiTembly ; and if, in fome cafes, pre- 
 cautions had not been taken to prevent his arbitrary and 
 oppreflive meafures, this was owing to the want of expe- 
 rience, which prevented the legiilature from fuggefting 
 a remedy. Such abufes of prerogative, although they 
 might have excited occafional difcontent and clamour, had 
 not yet attained fo great magnitude, or been fo long con- 
 tinued, as to demonstrate that a general limitation was 
 neceffary. 
 
 The period of Henry the Seventh in England, corre- 
 sponded, in fome meafure, to that of Lewis the Eleventh in 
 France. Charles the Seventh, the father of this prince, 
 had recovered the kingdom from the Englifti ; and, after 
 long convulfions and dilbrders, had re-eftablimed the pub- 
 lic tranquillity. The nature of the ftruggle in which he 
 was engaged, had excited a national fpirit in favour of the 
 (rown, while the fuccefs of his undertaking rendered him 
 highly popular, and difpofed his fubjedfs to promote and 
 fupport all his meafures. By the feizure of thofe lands 
 which had been in the porTeinon of the enemy, it is pro- 
 bable that the royal demefnes were alfo augmented. Lewis 
 came to the throne at a time when thefe favourable circum- 
 
 ftances
 
 Chap. IK. IN THE REIGN OF HENRY YU. 52.5 
 
 Ranees had begun to operate, and by his abilities and poli- 
 tical character was capable of improving them to the ut- 
 moif. The fudden annexation of many great fiefs to the 
 crown contributed likewife to extend its influence. Upon 
 the deceafe of the duke of Burgundy, without male defcen- 
 dants, the monarch found himfelf in a condition to feize 
 that dutchy, as not being tranimiflible to females. He ac- 
 quired Provence by a legacy ; and, in a little time after, his 
 fon Charles the Long, by marrying the heirefs of Brittany, 
 became the mailer 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 after- 
 wards laid afide, the convention of eflates, having united 
 in his own perfon the legiflative and executive powers. The 
 fame line of conduct was in general purfued by his fuccef- 
 fors ; although, in one or two extraordinary cafes, the tem- 
 porary exigence of the prince might induce him to fummon 
 that ancient aflembly. In feveral other governments upon 
 the continent, we may alfo obferve, that, nearly about the 
 fame period, the circumftances of the monarch w r ere fuch 
 as produced a fimilar exaltation of the prerogative, 
 
 CHAP.
 
 526 THE REFORMATION : ITS EFFECTS Book II. 
 
 C H A P. X. 
 
 Of Henry the Eighth. — The Reformation, — Its Caufes. — : J 
 Effects of it upon the Influence of the Croze/;. 
 
 HENRY the Eighth reaped the full benefit of thofe 
 favourable circumftances which began to operate, 
 and of that uniform policy which had been exerted, in the 
 reign of his father. By uniting, at the fame 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 animofity which had fo long divided the nation, 
 and was univerfally acknowledged by his fubjecls as the 
 lawful heir of the kingdom. The perfonal character of 
 this monarch was better fuited to the pofTeflion and en- 
 joyment of power, than to the employment of the flow 
 and gradual means by which it is to be acquired. Vain, 
 arrogant, headftrong, and inflexible, he fhewed little dex- 
 terity in the management of his affairs; was unable to 
 brook oppofition or controul; and, inftead of fhunning 
 every appearance of ufurpation, was rather folicitous to let 
 flip no opportunity for the difplay of his authority. 
 
 The moft remarkable event, in the reign of Henry the 
 Eighth, was the fudden downfal of that great fyftem of 
 ccclefiaftical tyranny, which, during the courfe of many 
 enluries, the policy of the Roman pontiff had been conti- 
 nually extending. To this religious reformation, the minds 
 of men, in other European countries as well as in England, 
 
 4 were
 
 ChaK X. ON THE INFLUENCE OF THE CROWN. 527 
 were predifpofed and excited by the changes which had 
 lately occurred in the general ftate of fociety. 
 
 I. The Chriftian religion, by teaching mankind to be- 
 lieve in the unity of the Deity, prefented to their minds 
 the contemplation of the aftonifhing attributes difplaycd in 
 the government of the univerfe. While the profefibrs of 
 Chriitianity thus agreed in the main article of their 
 their difpofition to fpeculate upon' other points was promoted 
 by their differences of opinion, by the controverlies with 
 one another in which they were unavoidably engaged, and 
 by the variety of fects into which they were at length di- 
 vided. The church, however, affumed the power of deter- 
 mining the orthodox faith ; and by degrees availed herfelf 
 of the prevailing fu perflation, in order to propagate fuch 
 opinions as were molt fubfervient to her intereft. Hence 
 the doctrines relating to purgatory, to the impolition of 
 penances, to auricular confeflion, to the power of granting 
 a remiffion of fins, or a difpenfation from particular ob- 
 fervances, with fuch other tenets and practices as contri- 
 buted to encreafe the influence of the clergy, were intro- 
 duced and eftabliined. Not contented w r ith requiring an 
 implicit belief in thofe particular opinions, the church pro- 
 ceeded 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 fcriptures, which had been 
 intended to direct the faith and manners of Chriftians. A 
 fyflem of fuch unnatural reftraint, which nothing but 
 extreme ignorance and fuperftition could have fupported, 
 it was to be expected that the firA advances of literature 
 would be fufficient to overturn. Upon the revival of let- 
 ters, accordingly, in the fourteenth and fifteenth centuries, 
 
 it.
 
 528 THE REFORMATION : ITS EFFECTS Book II. 
 
 it was no longer porlible to prevent mankind from indulging 
 their natural propenfity in the puriuit of knowledge, and 
 from examining thofe fundamental tenets of Chriltianity 
 which had been fo anxioufly withheld from their view. 
 They were even prompted, fo much the more, to pry into 
 the myfteries of religion, becaule it was prohibited. To 
 difcover the abiurdity of many of thofe doctrines, to which 
 an implicit affent had been required, was not difficult. 
 But the mere examination of them was to reject the 
 decrees of the church, and to merit the cenfure of con- 
 tumacy. 
 
 2. While the advancement of knowledge difpofed men 
 to exert their own judgment in matters of religion, the 
 progrefs of arts, and of luxury, contributed to diminifh the 
 perfonal influence of the clergy. " In the produce of arts, 
 " manufactures, and commerce," fays the ingenious and 
 profound author of the Inquiry into the Nature and Caufes 
 of the Wealth of Nations % " the clergy, like the great 
 " barons, found fomething for which they could exchange 
 " their rude produce, and thereby difcovered the means 
 " of fpending their whole revenue upon their own perfons, 
 <k without giving any confiderable fhare of them to other 
 " people. Their charity became gradually lefs extenfivc, 
 " their hofpitality lefs liberal, or lefs profufe. Their re- 
 " tainers became confequently lefs numerous, and by de- 
 " grees dwindled away altogether. The clergy, too, like 
 " the great barons, wifhed to get a better rent from their 
 
 * I am happy to acknowledge the obligations 1 feel myfelf under to this illufrrious 
 philofopher, by having, at an early period of life, had the benefit of hearim: ' is lec- 
 tures on the Hiftory of Civil Society, and of enjoying his unreferved convc \tion 
 on the fame fubjedt. — The great Montefquieu pointed out the road. He w. the 
 d luicon in this branch of philofophy. Dr. Smith is the Newton. 
 
 " landed
 
 Chap. X. ON THE INFLUENCE OF THE CROWN. 529 
 " landed eflates, in order to fpend it, in the fame manner, 
 " upon the gratification of their own private vanity and 
 " folly. But this increafe of rent could be got only by 
 " granting leafes to their tenants, who thereby became, 
 " in a great meafure, independent of them. The ties of 
 " intereft, which bound the inferior ranks of people to 
 " the clergy, were, in this manner, gradually broken and 
 " difTolved.— The inferior ranks of people no longer look- 
 " ed upon that order, as they had done before, as the 
 " comforters of their diftrefs, and the relievers of their 
 " indigence. On the contrary, they were provoked and 
 " difgufled by the vanity, luxury, and expence of the 
 " richer clergy, who appeared to fpend upon their own 
 " pleafures what had always before been regarded as the 
 u patrimony of the poor," 
 
 3. The improvement of arts, which obliged the dignified 
 clergy, as well as the great barons, to difmifs their retain- 
 ers, enabled this inferior clafs of men to procure fubfiflence 
 in a different manner, by the exercife of particular trades 
 and profeflions. By this way of life, they were placed in 
 a condition which rendered them lefs dependent upon their 
 fuperiors, and by which they were difpofed to refill every 
 fpecies of tyranny, whether ecclefiaftical or civil. That 
 fpirit of liberty, however, which, from thefe circumftances, 
 was gradually infufed into the great body of the people, 
 began fooner to appear in oppofing the ufurpations of the 
 church, than in reftraining the encroachments of the 
 king's prerogative. In pulling down the fabric of eccleii- 
 aftical power, and in flopping the clergy of their wealth, 
 all who had any profpecl: of fharing in the fpoil might 
 be expecled to give their concurrence. But in limiting the 
 power of the crown, the efforts of the people were coun^ 
 
 3 Y teracled
 
 530 THE REFORMATION : ITS EFFECTS Book II. 
 
 teracted by the whole weight of the civil authority. Thus, 
 in England, the reformation was introduced more than a 
 century before the commencement of the ftruggle between 
 Charles the Firil and his parliament; although the fame 
 principle which produced the latter of thefe events, was 
 evidently the chief caufe of the former. 
 
 But whence has it happened, that the circumftances 
 above-mentioned have operated more effectually in fome 
 parts of Europe than in others ? What has enabled the 
 pope to retain in obedience one half of his dominions, 
 while the other has rejected his authority ? That this was 
 owing, in fome meafure, to accident, it feems impoilible 
 to deny. The exiflence of fuch a perfon as Luther in 
 Germany, the difpute that arofe in England between Henry 
 the Eighth and his wife, the policy of particular princes, 
 which led them to promote or to oppofe the intereft of his 
 holinefs ; thefe, and other fuch cafual occurrences, during 
 the courfe of this great religious controverfy, had un- 
 doubtedly a confiderable influence in determining its fate. 
 We may take notice, however, of certain fixed caufes,. 
 which contributed more to the progrefs of the reformation 
 in fome of the European countries than in others. 
 
 i. The Roman pontiff found it eafier to maintain his 
 authority in the neighbourhood of his capital than in 
 countries at a greater diftance. The fuperltition 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 ecclefiaftical preferment, -and the refidence, as 
 well as the occafional refort, of great numbers of the mofl 
 opulent churchmen, whofe influence over the people 
 was proportionably extenfive. Here the pope was a tem- 
 poral, 
 
 3
 
 Chap.X. ON THE INFLUENCE OF THE CROWN. 531 
 poralj as well as an ecclefiaftical fovereign; and could 
 employ the arm of rlefh, as well as the arm of the fpirit. 
 Befides, he had here a better opportunity, than in remoter 
 countries, of obferving and managing the difpofitions and 
 humours of the inhabitants ; and, being at hand to difco- 
 ver the feeds of any dilbrder, was enabled to crufh a 
 rebellion in the bud. This circumitance tended to prevent, 
 or to check, the reformation in Italy, or in France, more 
 than in Sweden, in Denmark, in Germany, in England, 
 or in Scotland. 
 
 2. Independent of accidental circum fiances, it was to be 
 expected that thofe countries, which made the quickeft 
 progrefs in trade and manufactures, would be the nrft to 
 difpute and reject the papal authority. The improvement 
 of arts, and the confequent diffufion of knowledge, contri^ 
 buted, on the one hand, to difpel the mift of fuperftition, 
 and, on the other, to place the bulk of a people in fituations 
 which infpired them with fentiments of liberty. That 
 principle, in fhort, which is to be regarded as the general 
 caufe of the reformation, produced the moft powerful 
 effects in thofe countries where it exifled the fooneft, and 
 met with the greateft encouragement. 
 
 This alone will account for the banifhment of the Ro- 
 mifh religion from the independent towns of Germany, 
 from the Dutch provinces, and from England ; thofe parts 
 of Europe which were foon pollened of an extenfive com- 
 merce. In the ten provinces of the Netherlands, the ad- 
 vancement of trade and manufactures was productive of 
 fimilar effects. The inhabitants acquired an attachment to 
 the do&rines of the reformation ; and maintained them 
 with a degree of courage and firmnefs which nothing lefs 
 than the whole power of the Spanifh monarchy was able to 
 
 3 Y 2 fubduc.
 
 532 THE REFORMATION: ITS EFFECTS Book II, 
 fubdue. In France too the fame fpirit became early con- 
 fpicuous, in that part of the inhabitants which had made 
 the greatest improvement in arts ; and, had it not been for 
 the molt, vigorous efforts of the crown, accompanied with 
 the moft infamous perfidy and barbarity, and afhfted by 
 the celebrated league of the Catholic powers, it is probable 
 that Calvinifm would have obtained the dominion of the 
 Gallican church. The tendency of mercantile improve- 
 ments to introduce an abhorrence of the Catholic fuperfti- 
 tion, and of papal domination, is thus equally illuftrated 
 from the hiftory of thofe kingdoms where the reformation 
 prevailed, as of thofe where, by the concurrence of cafual 
 events, it was obftru6ted and counteracted. 
 
 3. In thofe countries where the fmallnefs of a ftate had 
 given rife to a republican conftitution, the fame notions of 
 liberty were eafily extended from civil to ecclefiattical go- 
 vernment. The people, in thofe governments, were not only 
 difpofed to rejeft the authority of the pope, as they did 
 that of a temporal fovereign ; but were even difgufted with 
 the hierarchy, no lefs than with that fubordination which 
 is required in a monarchy. Hence that high-toned fpecies 
 of reformation, which began in Geneva, and in fome of 
 the Swifs cantons; and which, from the weaknefs and 
 imprudent oppofition of the crown, was introduced by 
 the populace into Scotland. 
 
 The fmall ftates of Italy, indeed, although they fell un- 
 der a republican government, and fome of them were dif- 
 tinguiffaed by their early advancement in commerce, have 
 remained in the Catholic church. In fome of the cantons 
 of Switzerland, notwithstanding their very limited extent, 
 and their popular government, the reformation has like- 
 wife been unfuccefsful. The vicinity of the pope's refi- 
 
 dence,
 
 Chap. X. ON THE INFLUENCE OF THE CROWN. 533 
 
 deuce, and of his temporal dominions, appear, in fpite of 
 the circumftances which had fo plainly an oppofitc ten- 
 dency, to have retained them under his jurifdiction. It 
 may deferve, however, to he remarked, that the Vene- 
 tians the principal traders of Italy, and who formed the 
 molr. eminent republic, though they did not eftaUifh the 
 doctrines of any feet of the reformers, effected what is 
 perhaps more difficult, and had more the appearance of 
 moderation : they diminifhed the authority of the pope, 
 without rejecting it altogether; and, though they did not 
 attempt to root out the ancient fyftem, they lopped off fuch 
 parts of it as they deemed inconfiitent with their civil 
 confliturion. 
 
 After the controverfy between the Catholics and Pro- 
 teftants had proceeded fo far, in England, as to divide the 
 whole nation, Henry the Eighth became pofTefTed of addi- 
 tional influence, by holding a fort of balance between the 
 two parties. Although that prince had quarrelled with the 
 papal authority, and was willing to enrich himfelf by the 
 plunder of the churchy he adhered religiouily to many of 
 thofe tenets which had given the greater!: offence to the 
 reformers. While he took the lead in the reformation, he 
 affumed the power of directing and controuling its pro- 
 grefs ; and, as he ftill kept meafures with both parties, he 
 was at the fame time feared and courted by both. In the 
 end, however, he eftabliffied a fyftem which was agreeable 
 to neither. 
 
 The reformation, as it was modelled in this reign, open- 
 ed a new fource of influence and authority to the fovereign. 
 The diffblution of the monasteries, whole revenues were 
 immediately annexed to the crown, beftowed upon him a 
 large acceilion of riches. Thefe funds, indeed, in confe- 
 
 quence
 
 •34 THE REFORMATION : ITS EFFECTS Book II. 
 quence of the improvements in trade and manufactures, 
 which tended to augment the expences of the king, as well 
 as of the great harons, were afterwards diflipated, and, in 
 the end, transferred to that lower order of people who by 
 their induftry were enabled to accumulate wealth. 
 
 As the pope was ftripped of all that authority which he 
 had poflefled in England, the king became the head of 
 the church ; and as the Englidi hierarchy was, without 
 any variation, permitted to remain, he acquired, by the 
 difpofal of all the higher benefices, the entire direction of 
 the clergy, and confequently the command of that influ- 
 ence which they ftill maintained over the people. By 
 claiming, at the fame time, the fupremacy of the Roman 
 pontiff, the fovcreign was furnifhed with a new pretext for 
 affuming the power to difpenfe with the law. 
 
 But, notwithstanding all the circumftances which contri- 
 buted to extend the influence of the crown, .the prerogative, 
 during the greateft part of this king's reign, appears to 
 have remained upon the fame footing as in that of his 
 predeceffor. Through the whole of it, the power of im- 
 pofing taxes was uniformly exercifed by parliament. Upon 
 one occafion, a loan was demanded by the king; but fo 
 little money was raifed by it, that an immediate appli- 
 cation to parliament became necefTary for procuring a 
 fubfidy. 
 
 Cardinal Wolfey, in the plenitude of his power, feems 
 to have projected an encroachment upon this branch of 
 the confutation- lie began by interfering in the debates 
 of the commons, in relation to a money-bill, and infifted 
 upon the liberty of reafoning with them upon the fubjedt. 
 But this demand was peremptorily refufed ; and he was 
 unable to procure the fupply, in the terms which he 
 
 had
 
 Chap.X. on the influence of the crown. 535 
 
 had propofed. Not long after, he attempted to levy a tax 
 by the authority of the crown ; but this meafure excited 
 fuch univerfal commotion, and refentment, that Henry 
 thought fit to difavow the whole proceeding, and fent 
 letters all over England, declaring, that he would ajk nothing 
 but by way of benevolence*. 
 
 From this time no money was levied by the king with- 
 out the confent of parliament ; except in the thirty-fifth 
 year of his reign, when a benevolence was again fol icitcd. 
 It is further to be obferved, that the parliamentary grants 
 of fupply to the king, were fometimes preceded by an in- 
 quiry into the propriety of the wars which he had under- 
 taken, or of the other meafures of government by which 
 his demand of money had been occalioned. 
 
 The legiilative authority of the national council was no 
 lefs regularly exerted. It was by act of parliament that the 
 monafteries were iupprefTed; that the king became the 
 head of the church ; that the authority of the pope in 
 England, together with all the revenues which he drew 
 from that kingdom, was abolilhed; in iliort, that the an- 
 cient fyflem of ecclefiaftical government was overturned. 
 In the numerous divorces procured by the fovereign, in the 
 regulations that were made concerning the legitimacy of 
 the children by his different wives, in the various and 
 contradictory fettlements of the crown, Henry never pre- 
 tended to act by virtue of his own prerogative, but conti- 
 nually fheltered himfelf under the fanction of parliamen- 
 tary eftablifhment. 
 
 Nothing, indeed, could exceed the fervility with which 
 the parliaments, efpecially in the latter part of this reign, 
 
 * This attempt was made in the year 1526, and the 17th of this king. See Pari. 
 Hiftory, vol. III. 
 
 complied!
 
 536 THE REFORMATION : ITS EFFECTS Book II, 
 complied with the moft eccentric inclinations of the mo- 
 narch. 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 ridiculous humours, nor even with particular acts of 
 tyranny and oppreflion. In a dangerous diitemper, they 
 were unwilling to reject a violent medicine.? on account of 
 the uneafinefs and trouble with which its operation was 
 attended. Their complaifance, however, was at length car- 
 ried fo far as to make them abandon their own privileges. 
 In the thirty-firft year of Henry the Eighth, it was enacted, 
 " That the king, with the advice of his council, might 
 u ifTue proclamations, under fuch penalties as he fliould 
 M think neceflary, and that thefe fliould be obferved, as 
 u though they were made by act of parliament," with this 
 limitation, " that they mould not be prejudicial to any 
 " perfon's inheritance, offices, liberties, goods, chattels, or 
 " life *." What are the particular fubjects of proclamation, 
 which do not fall within .the reflrictions mentioned in this 
 act, is not very clear. But there can be no doubt that it 
 contains a delegation, from parliament, of its legiflative 
 authority; which, in practice, might foon have been ex- 
 tended beyond the original purpofe for which it was grant- 
 ed. By another flatute, about the fame time, the king was 
 impowered, with the afliif ance of a committee, or even by 
 his own authority alone, to regulate the religious tenets, as 
 well as the external obfervances, of the kingdom. 
 
 If thefe powers had been afcertained, and confirmed 
 by ufage, the government of England would have become 
 us abfolute as that of France was rendered by Lewis the 
 
 • 31 Henry VIII. ch. 8. 
 
 Eleventh,
 
 Chap. X. ON THE INFLUENCE OF THE CROWN. 537 
 
 Eleventh. Fortunately, the Englifh monarch, from the 
 obfequioufnefs of parliament, had little occaiion to exercife 
 this new branch of prerogative ; and, as he did not live to 
 reduce it into a fyftem, the conflitution, in the reign of his 
 fuccefTor, returned into its former channel. The laft years 
 of Henry the Eighth exhibited the greatefl: elevation, which 
 the crown ever attained, under the princes of the Tudor 
 family. 
 
 3 Z CHAP.
 
 533 OF EDWARD THE SIXTH, Book II, 
 
 CHAP. XI. 
 
 Of Edward the Sixth — Mary — and Elizabeth. — General Re- 
 view of the Government. — Conclujion of the Period from 
 the Norman Conqueft to the Acceffon of the Houfe of 
 Stewart. 
 
 BY the minority of Edward the Sixth, the ambitions 
 defigns of his father became entirely abortive. The 
 administration was committed to a council of the nobles ; 
 who, from want of authority, from difagreement among 
 themfelves, or from the defire of popularity, were induced 
 to retrench all the late exterifions of prerogative. The 
 very firft year of this reign produced a repeal of that ofTen- 
 five flatute, by which royal proclamations had, in any 
 cafe, obtained the force of laws. Other innovations, which 
 had proceeded from the extraordinary influence of Henry 
 the Eighth, were likewife abolifhed ; and, in a fhort time, 
 the former conftitution was completely reftored. The re- 
 formation, 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 fentiments of the party by whom 
 it was embraced. 
 
 The reign of Mary is chiefly diftinguifhed by the violent 
 ftruggle which it produced, in order to re-eftabliih the 
 Roman catholic fuperftition. Although the reformation 
 
 was,
 
 Chap. XI. MARY, AND ELIZABETH. 539 
 
 was, at this time, acceptable to the majority of the nation* 
 there ftill remained a numerous body, zealouily attached 
 to the ancient religion, and highly exafperated by the late 
 innovations. With this powerful fupport, and by the moil 
 vigorous exertion of crowhVinfluerice upon the elections of 
 the commons, Mary was able to procure a parliament en- 
 tirely devoted to her interefl, and willing to execute her 
 deiigns*. The reftitution of the revenues, of which the 
 monafteries had been plundered, and in which a great part 
 of the nobility and gentry had been fharers, was the only 
 meafure at which they feemed to feel any fcruple of con- 
 fcience. But the reign of Mary, though it occafioned a 
 violent fhock to the reformation, was too fhort for extirpa- 
 ting thofe religious opinions, which had taken a deep root 
 through the kingdom ; and which, upon the acceffion of 
 her fuccefibr, were prudently cultivated and brought to 
 maturity. 
 
 In the Englifh annals, we meet with no reign fo uni- 
 formly fplendid and fortunate as that of Elizabeth. Never 
 did any fovereign, fince the days of Alfred, enjoy fuch high 
 and fuch defer ved popularity, or procure fuch extenfive 
 advantages to the nation. To her the nation was indebted 
 for the fecurity of religious, the great forerunner of civil 
 liberty. Her own religion coincided with that of the 
 greater part of her fubjects ; who looked up to her as their 
 deliverer from a fuperftition which they abhorred. Nor 
 did fhe appear in this light to her own fubjects only : Hie 
 was the great fupport and proteclor of the Protectant inte- 
 reft in Europe ; and, while this drew upon her the enmity 
 
 • Burnet's Hiflory of the Reformation. 
 
 3Z2 of
 
 540 GENERAL REVIEW Book II. 
 
 of all the Catholic powers, flie was endeared 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 confpicuous 
 in her domeftic and foreign tranfactions ; and, in the whole 
 courfe of her administration, it will be hard to point out 
 an inftance where fhe miftook her political intereft, or was 
 guilty of any error or neglect in promoting it. Notwith- 
 standing the number and power of her enemies, and in 
 fpite of all the combinations that were formed againft her, 
 flie maintained invariably the peace and tranquillity of her 
 own dominions ; and her fubjects, during a reign of five 
 and forty years, enjoyed a courfe of uninterrupted profpe- 
 rity and happinefs. 
 
 Whether Elizabeth entertained a juft idea of the Englifh 
 conftitution, has been called in queftion. But fuch as her 
 idea was, her behaviour feems to have been Strictly con- 
 formable to it. Between the prerogative, and the privileges 
 of parliament, me appears to have drawn a fixed line; 
 and, as in her greater! profperity fhe never exceeded this 
 boundary, fo in the utmoft diftrefs and perplexity fhe 
 never permitted the leaft encroachment upon it. 
 
 With the legislative power of parliament fhe never in- 
 terfered. The exclufive privilege of that auembly, in im- 
 pofing taxes, was neither controverted by her, nor im- 
 paired. There is no veftige of her either attempting, or 
 defiling, to violate thefe important branches of parliamen- 
 ts tary
 
 Chap. XL OF THE GOVERNMENT. 541 
 
 tary authority *. Mention is made of her having, in one 
 or two cafes, obtained a loan from her fubjects : but there 
 is no appearance that any compullion was employed in 
 making it effectual ; and her conduct is, in this particular, 
 illuftriouily diftinguifhed from that of moft other princes, 
 by her punctual repayment of the money. 
 
 Inftead of afking a benevolence, fhe even refufed it, 
 when offered by parliament. Such expedients, indeed, 
 for procuring fupplies, were in a great meafure fuperflu- 
 ous. So rigid was her ceconomy, fo great and fo apparent 
 were the occafions upon which fhe ever demanded a fup- 
 ply, fuch was the confidence repofed in her by parliament, 
 and fo intimately did they conceive her enterprizes to be 
 connected with the public welfare, that they never difco- 
 vered any reluctance to grant whatever funis of money fhe 
 thought proper to require. 
 
 There was one point invariably maintained by Eliza- 
 beth, in which, to thofe who form their notions of the 
 Englifh government from what is at prefent eftablifhed, 
 fhe 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 fome inconvenience ; and when this petition had ob- 
 tained the king's confent, it acquired the force of a law. 
 According to this method of conducting the buflnefs of 
 legiflation, the king had no occafion to declare his refolu- 
 tion concerning any bill, until it was difcufTed, and finally 
 approved of, by both houfes of parliament. Before this 
 
 * In the 13th of Elizabeth, we find parliament flrongly aflerting its power to fettle 
 and limit the fuccefiion to the crown, by declaring it high treafon tor any perfon to call 
 this power in qucfrion. 
 
 was
 
 542 GENERAL REVI E W Book II. 
 
 was clone, it could not be confidered as a national requeft, 
 to which an anfwer from the throne was demanded. 
 
 From the nature of this tranfaction, and from the view 
 of laving trouble to the fovereign, a regular courfe of pro- 
 cedure was thus introduced, by which any new law re- 
 ceived the aflcnt of the crown, after the fanction of the 
 other two branches of the legiflature had been given to its 
 enactment. This practice, deriving authority from cui- 
 tom, was at length followed independent of the circum- 
 ftances from which it had been originally iuggefted ; and 
 was confirmed by the experience of a later age, which dif- 
 covered, that any deviation from it would be attended with 
 dangerous confequences. When the propofal of a new 
 law, after being fully debated in parliament, has excited 
 the public attention, and its utility has become apparent to 
 the nation, the crown is, in mofl cafes, unwilling to coun- 
 teract the inclinations of the people, by refilling its confent 
 to the meafure. But if the fovereign were permitted to 
 Another any bill, the moment it was propofed in parlia- 
 ment, there could fcarcely exift a poflibility that any new 
 law, difagreeable to the crown, or adverfe to the views of a 
 miniftry, fhould ever be enacted. It has therefore become 
 a fundamental principle of the conftitution, that, with a 
 few exceptions, the king mail not take notice of any bill 
 depending in parliament; and that, before it has pafTed 
 the two houfes, the royal afTent or negative mail not be 
 declared. 
 
 But that this rule was completely and invariably efta- 
 blifhed in the reign of Elizabeth, there is no reafon to be- 
 lieve. The political expediency of fuch a regulation was, 
 in that age, not likely to become an object of general 
 attention. Neither was it inconfiftent with the nature of 
 
 the
 
 Chap. XL OF THE GOVERNMENT. 543 
 
 the bufinefs, however contrary to the ufual practice, that 
 the king, upon the introduction of a bill into parliament, 
 lhould prevent the labour of a fruitlefs difcuflioii by an 
 immediate interpofltion of his negative *. 
 
 Of this interpofltion Elizabeth exhibited fome remarka- 
 ble inflances. The firft improvement of arts, manufactures, 
 and commerce, by raifing the lower clafs of the inhabi- 
 tants 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 was farther extended, the great body of the 
 people became ftill more independent, and found them- 
 felves capable of defending their privileges, whether in 
 oppofition to the crown or to the nobles. This gave rife 
 to a new fpirit, which became confpicuous after the accef- 
 fion of James the Firit, but of which the dawn began to 
 appear in the reign of his predecefTor ; a fpirit of liberty in 
 the commons, by which they were incited to regulate and 
 to restrain fuch branches of the prerogative as appeared 
 the moft liable to abufe, and mofc inconfiftent with the 
 enjoyment of thofe rights which they were difpofed to 
 afTert. 
 
 Whenever a bill of this tendency was brought into par- 
 liament ; 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 imme- 
 diately her oppofition to the meafure, and even to prohibit 
 any farther debate upon the fubjecl:. In doing this, fhe 
 
 * We find, however, that even fo early as the fecond of Henry the Fourth, the 
 commons petitioned the king, that he would not fufFer any report to be made to h:m 
 of matters debated amongft them, till they fhould be concluded ; to which the king 
 aflented . 
 
 x feerrs
 
 544 GENERAL REVIEW Book IL 
 
 feems to have confidered herfelf as merely defending thofe 
 rights of the crown which had been transmitted by her 
 anceftors. Is not the fovereign, laid the miniftry in thofe 
 cafes, a branch of the legiflature ? Has (lie not a voice in 
 the pairing of laws ? When her negative has once been 
 interpofed, all farther deliberation upon the fubject muft 
 be entirely excluded ; and the bill muft be laid afide, in the 
 fame manner as if it had been rejected by either houfe of 
 parliament. 
 
 This view of the prerogative fuggefted another exertion 
 of authority, which, in the prefent age, has been thought 
 ftill more illegal and arbitrary than the former. If, at any 
 ftage of a bill in parliament, the crown was entitled to in- 
 terpofe its negative, it feemed to be a confequence, that, 
 upon the exercife of this right, any farther debate or deli- 
 beration upon the fubjecl: was precluded. The attempt to 
 profecute the bill, after fuch intimation was given upon 
 the part of the crown, was to reject the determination of 
 the legiflature, to contemn the authority of the fovereign, 
 and, by faction and clamour, to ftir up diforder and dis- 
 content. A behaviour of this kind was thought liable to 
 punifhment ; and Elizabeth, upon feveral occafions a adven- 
 tured to imprifon thofe members of parliament who per- 
 lifted in pufhing forward thofe bills which had been refufed 
 by the crow r n. 
 
 It is proper to remark, that thefe exertions of her power 
 were limited to cafes of that nature. She never prevented 
 the difcufhon of any bill in parliament, except in cafes 
 where her ancient prerogative was invaded ; nor did ihe 
 ever pretend to punifh the liberty of fpeech, unlcfs when 
 indulged in continuing to pufli thofe bills which lhe had 
 declared her final refolution to reject. 
 
 That
 
 Chap. XI. OF THE GOVERNMENT. 545 
 
 That fuch proceedings, however, by intimidating mem- 
 bers of parliament, are calculated to prevent the proper 
 difcharge of their duty, is indifputable. The liberal ideas 
 upon this point, which are now happily reduced into prac- 
 tice, may be regarded as one of the greateft improvements 
 in the Britifh conftitution. That a fenator may be encou- 
 raged to perform his duty to the public with fteadinefs and 
 confidence, he ought to enjoy an unbounded liberty of 
 fpeech, and to be guarded againfl the refentment either of 
 the lbvereign, or of any other perfons in power, whom 
 that liberty may offend. From the controul of that houfe, 
 of which he is a member, he is likely to be prevented 
 from any great indecency and licentioulhefs in the exercife 
 of this privilege; and his parliamentary conduct mould 
 not be impeached, or called in queftion, in any other court, 
 or from any other quarter. This principle is now fuffl- 
 ciently underitood, and univerfally acknowledged. Its efla- 
 bliihment, however, marks a degree of refinement, and 
 of experience in political fpeculation, which, under the 
 government of the Tudor princes, the nation could hardly 
 be fuppofed to attain ; and the liberty of fpeech, then be- 
 longing to members of parliament, was probably limited to 
 fubjects which that afTembly had a right to difcufs. 
 
 The fituation of religious controverfy, in the reign of 
 Elizabeth, gave rife to a new eccleiiaftical tribunal) which, 
 in after times, was likewife held inconfiftent with free go- 
 vernment, the court of high commijjion. It mufl be acknow- 
 ledged, that the primitive reformers, in any country of 
 Europe, though they zealoufly oppofed the papal tyranny, 
 were far from adopting the liberal principle of religious 
 toleration. Such a principle would, perhaps, have been 
 unfuitable to their circumftances, which required that 
 
 4 A they
 
 546 GENERAL REVIEW Book II. 
 
 they fhould combat the moft inveterate prejudices, and 
 overturn a fyitem, which for ages had been advancing in 
 refpect. and authority. As, in England, the king fucceeded 
 to the fupremacy, which had been verted in the Roman 
 pontiff, he became the judge of orthodoxy in matters of 
 religion ; and aiTumed the power of directing the modes 
 and forms of religious worfhip. This authority was, by 
 Henry the Eighth, delegated to a fingle perfon, with the 
 title of Lord vicegerent. In the reign of Elizabeth, parlia- 
 ment thinking it fafer that fuch jurifdidion mould be en- 
 trufted to a numerous meeting, empowered the queen to 
 appoint a commiflion for the exercife of it *. This altera- 
 tion was a manifest improvement ; yet the court of high 
 commiflion was fo little fettered by the rules of law, and 
 was fo much calculated to indulge the "rancour and animo- 
 fity infpired by theological difputes, that we may eafily 
 fuppofe the complaints, which it excited, were not without 
 foundation. Its abolition, in a fubfequent reign, was far- 
 ther recommended from this confederation, that, after the 
 full eftablifhment of the reformation, the fame neceflity of 
 inculcating uniformity of religious tenets could no longer 
 be pretended. 
 
 The great hiftorian of England, to whom the reader is 
 indebted for the complete union of hiitory with philofophy, 
 appears very ftrongly imprefTed with a notion of the 
 defpotical government in the reign of Elizabeth, and 
 of the arbitrary and tyrannical conduct difplayed by that 
 princefs. 
 
 i. He obferves, that " fhe fufpended the laws, fo far as 
 H to order a great part of the fervice, the litany, the 
 
 * Burnet, Hift. Reform, 
 
 " Lord's
 
 Chap. XI. OF THE GOVERNMENT. 547 
 
 " Lord's prayer, the creed, and the gofpels, to be read in 
 " Englilh. And, having nrft publifhed injunctions, that 
 " all the churches fhould conform themfelves to fhe 
 " practice of her own chapel, me forbad the hofte to be 
 " any more elevated in her prefence; an innovation, which, 
 " however frivolous it may appear, implied the mofl mate* 
 " rial confequences." 
 
 But we muft not forget, that, in this cafe, the difpen- 
 fing power was exercifed under great limitations and in 
 very lingular circumftances. Upon the accefllon of Eliza- 
 beth, the Proteftants, who now formed the greater! part of 
 her fubjedts, exafperated by the late perfecution, and in 
 full confidence of protection, began to make violent 
 changes ; to revive the fervice authorized by Edward the 
 Sixth, to pull down images, and to affront the priefts of 
 the Roman catholic perfuafion. The queen had called a 
 parliament to fettle the national religion ; but, in order to 
 flop the progrefs of thefe diforders, an immediate interpo- 
 fition of the crown was necefTary. It was even pretend- 
 ed by fome, that the parliaments, in the late reign, had 
 not been legally held, and that of confequence the laws of 
 Edward the Sixth, relating to the government of the 
 church, were ftill in force #. But, whatever regard might 
 be due to this, a temporary indulgence to the Proteftants, 
 with reflect to the external forms of religious worfhip, 
 was highly expedient for quieting their minds, and for 
 preventing the commiflion of greater enormities. This 
 indulgence was followed by a proclamation prohibiting all 
 innovations, until the matters in difpute mould be finally 
 determined by parliament ; and, confulering the circum- 
 stances of the cafe, ought to be regarded rather as a mea- 
 
 * Burnet. 
 
 4 A a furc
 
 54 8 GENERAL REVIEW Book II. 
 
 fure calculated for the prefent fecurity of the eftablifhed 
 religion and its profeftors, than as a violent exertion of the 
 prerogative, in oppofition 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 aflert, that it was entitled, at pleafure, to introduce new 
 ftatutes. " In reality," fays he, " the crown pofllflbd the 
 " full legillatlve power, by means of proclamations, 
 U which might affect any matter, even of the greater! 
 " importance, and which the ftar-chamber took care 
 « to fee more rigorouily executed than the laws them- 
 " fehres *> 
 
 In anfwer to this, it will perhaps be thought fufficient 
 to obferve, that anciently the crown pofTefTed no legiflative 
 power ; that royal proclamations were iirft 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 reftrictions, and in lingular cafes ; and that in 
 the beginning of the fubfequent reign, it was entirely 
 aboliihed by the fame authority from which it had pro- 
 ceeded. 
 
 If the ftar-chamber, therefore, fupported this power in 
 the reign of Elizabeth, it muft have been in direct viola- 
 tion of the co..ftitution ; and it is not likely, that ftretches 
 of this kind would often be attempted. But let us con- 
 iider what were the proclamations iflued in this reign, 
 which the ftar-chamber had an opportunity to enforce. 
 In virtue of the papal fupremacy, with which fhe was in- 
 verted, Elizabeth prohibited prophecyings, or particular af- 
 femblies inftituted for fanatical purpofes, and not autho- 
 
 ♦ Hift, of Eng. vol. V. Appendix 3. 
 
 rized
 
 Chap. XI. OF THE GOVERNMENT. 549 
 
 rized by the church*. Having the regulation of trade 
 and manufactures, (lie alio prohibited the culture of 
 wood, a plant ufed for the purpoie of dying. And, as 
 a director of ceremonies, prefcribing rules for the drefs 
 of thofe who appeared at court, or in public places, Hie 
 gave orders that the length of the fwords, and the height 
 of the ruffs then in fafhion, mould be diminifhed. Thefe 
 are the important inilances adduced in order to prove that 
 Elizabeth fuperfeded the authority of acts of parliament, 
 and afTumed the legiflative power in her own perfon. 
 
 3. The fame hift orian appears to conceive, that, among 
 other branches of prerogative exercifed by Elizabeth, was 
 that of impoflng taxes. " There was," he remarks, " a 
 * fpecies of fhip-money impofed at the time of the Spanifh 
 " invaiion : the feveral ports were required to equip a 
 " certain number of vefTels at their own charge ; and fuch 
 ** was the alacrity of the people for the public defence, 
 " that fome of the ports, particularly London, fent double 
 " the number demanded of them t." And in a fubfequent 
 period of the Englifh hiftory, having mentioned a requiii- 
 tion made by Charles the Firft, that the maritime towns, 
 together witb the adjacent counties ', mould arm a certain 
 number of vefTels, he adds ; " This is the firit appearance, 
 " in CI a les's reign, of mip-money ; a taxation which had 
 " once been impofed by Elizabeth, but which afterwards, 
 
 * In the fifth of Flizabeth there was parted an a£>, conformable to a preceding one 
 in the reign of Edward the Sixth, againft fond and fantajiicai prophecies concerning the 
 queen and divers honourable per/ins, which, it feems, had a tendency to (Hr up fedition. 
 From the name, it is not unlikely that the aflemblies, alluded to in the proclamation 
 above-n entioned, were fuppofed guilty of the like practices, and that Elizabeth was 
 merely following out the intention of an act of parliament. 
 
 f Vol. V, Appendix 3. 
 
 u when
 
 s5 o GENERAL REVIEW Book II. 
 
 " when carried fome fteps farther by Charles, occafioned 
 " inch violent difcontents *.* 
 
 Ship-money was originally a contribution by the mari- 
 time towns, for the fupport of the fleet, correfponding, in 
 fome meafure, to the icutages which were paid by the mi- 
 litary people in the room of perfonal fervice in the field. 
 When it came, therefore, to be a regular afTefTment, ex- 
 acted by public authority, it fell of courfe under the regu- 
 lation of parliament; and, like other taxes, being gradually 
 pufhed beyond its original boundaries, was extended to the 
 counties in the neighbourhood of the fea, and at length to 
 the moft inland parts of the kingdom. To oppofe an invafion 
 which threatened the immediate deftrudlion of her empire, 
 Elizabeth had recourfe to the cuftomary affiftance of the 
 fea-port towns; and, fo far from ufing compulllon to pro- 
 cure it, was freely fupplied with a much greater force than 
 fhe required. How can this meafure be confidered as ana- 
 logous to the conduct of Charles the Firit, in levying that 
 flip-money^ which gave rife to fuch violent complaints ? 
 The contribution obtained by Elizabeth was altogether vo- 
 luntary : that which was levied by Charles was keenly dif- 
 puted by the people, and enforced by the whole power of 
 the crown. The fupply granted to Elizabeth was furnifhed 
 by the maritime towns only ; who, by their employment 
 and fituation, were connected with the equipment of vef- 
 fcls : that which was extorted by Charles, had been con- 
 verted into a regular tax ; and was impofed upon the na- 
 tion at large. The fhip-money of Elizabeth was procured 
 in a fingle cafe, and one of fuch extraordinary necefnty as 
 would have excufed a deviation from the common rules of 
 
 * Vol. VI. 
 
 4 government.
 
 Chap. XI. OF THE GOVERNMENT. 551 
 
 government. But the fhip-money of Charles was not pal- 
 liated by any pretence of neceflity : it was introduced, and, 
 notwithstanding the clamours of the people, continued for 
 a considerable period, with the avowed intention of enabling 
 the king to rule without a parliament. 
 
 4. But the chief ground of this opinion, concerning the 
 tyrannical behaviour of Elizabeth, and the defpotical nature 
 of her government, appears to be, her interference in the 
 debates of parliament ; her imprifonment of members for 
 prefuming to urge the profecution of bills, after fire had 
 put a negative upon them ; and the tamenels with which 
 parliament fubmitted to thofe exertions of prerogative. 
 
 It muft be confefTed, that if, in the prefent age, a Britifh 
 monarch fhould ac/t in the fame manner, and mould meet 
 with the fame acquiefcence from parliament, we might 
 reafonably conclude that our freedom was entirely deflroy- 
 ed. But the fubmiflion of that afTembly, at a period when 
 the order, in which the king's negative fhould be inter- 
 pofed, was not invariably determined, does not argue the 
 fame corruption ; and therefore will not warrant the fame 
 conclufion. Whatever might be the view entertained by 
 fome members of parliament in that age, the greater part 
 of them were probably not aware of the confequences with 
 which thofe exertions of the crown might be attended ; and 
 as, with reafon, they placed great confidence in the queen's 
 intentions, their jealoufy was not roufed by a meafure 
 which did not feem to violate any fixed rule of the govern- 
 ment. 
 
 Neither have we any good reafon to infer, that, becaufe 
 this point had hitherto been left undetermined, the confti- 
 tution was of no value or efficacy to maintain the rights 
 of the people. It was, no doubt, a great defect in the poli- 
 tical
 
 552 GENERAL REVIEW Book II. 
 
 tical fyftem, that the king might put a ftop to any bill 
 depending in parliament, and prevent any farther debate 
 with relation to it. But even this power of the fovereign 
 was far from rendering the government defpotical. By 
 means of it, he might the more effectually defend his own 
 prerogative, but it could not enable him to encroach upon 
 the liberty of the lubject. The parliament, without whofe 
 authority no innovation could be made, was the lefs capa- 
 ble of introducing any new regulation ; but not the lefs 
 qualified to maintain the government as it itood. The 
 power of taxation, at the fame time, threw a prodigious 
 weight into the fcale of parliamentary influence. By the 
 increafing expence of government, a conlequence of the 
 improvement of arts, and the advancement of luxury, the 
 old revenues of the crown became daily more inadequate 
 to the demands of the fovereign ; which laid him under 
 the neceffity of making frequent applications to parliament 
 for extraordinary Supplies. This, as it reduced him to a 
 dependence upon that affembly, enabled it to take advan- 
 tage of his neceiiities, and to extort from him fuch con- 
 ceffions as experience had mown to be requilite for fecuring 
 the rights and privileges of the people. 
 
 5. According to Mr. Hume, " the government of Eng- 
 " land, during that age, however different in other parti- 
 " culars, 'bore, in this refpect, fome refemblance to that of 
 " 1 urkey at prellnt : the fovereign poffeffed every power, 
 u except that of impoling taxes: and in both countries 
 " this limitation, unsupported by other privileges, appears 
 " rather prejudicial to the people. In Turkey, it obliges 
 " the Sultan to permit the extortion of the bafhaws and 
 li governors of provinces, from whom he afterwards 
 " fcrueezes prefents, or takes forfeitures. In England, it 
 
 3 " engaged
 
 «Chap.XI. OF THE GOVERNMENT. 5 53 
 
 " engaged the queen to erect monopolies, and grant pa- 
 " tents for exclulive trade : an invention fo pernicious, 
 that had fhe gone on, during a tract of years, at her own 
 rate, England, the feat of riches, and arts, and com- 
 merce, would have contained, at prefent, as little induflry 
 as Morocco, or the coall of Barbary *." 
 But furely, in England, the fovereign was not pofTefTed 
 of every power, except that of impofing taxes. The power 
 of legiflation was veiled in the king, lords, and commons. 
 The judicial power was not, in ordinary cafes, exercifed 
 by the crown, but was diflributed among various courts of 
 juflice ; and though, in thefe, the judges, from the manner 
 of their appointment, might be fuppofed to favour the 
 prerogative, yet the modes of their procedure, and the" 
 general rules of law, were in more, cafes too invariably de-~ 
 termined, to permit very grofs partiality. The inflitu- 
 tion of juries, befides, which had long been compleatly 
 eflablifhed in England, was calculated to counterbalance 
 this natural bias of judges, and to fecure the rights of the 
 people. Is it poffible that, in fuch a government, the 
 power of the monarch can be feriouily compared to that 
 which prevails in Turkey ? 
 
 The fovereign, indeed, was entitled to erect monopolies, 
 and to grant exclulive privileges ; which, in that period, 
 were thought neceffary for the encouragement of trade 
 and manufactures. That thefe grants were often bellowed 
 for the purpofe merely of deriving a pecuniary advantage 
 to the crown, it is impoflible to deny. But who can belie ve 
 that the perquifites, ariling from this branch of the prero- 
 gative, or from fuch of the feudal incidents as were Hill of 
 
 * Hiftory of England, vol. Y. Appendix 3. 
 
 \ B an
 
 554 GENERAL REVIEW Book II* 
 
 an arbitrary nature, were ever likely to defray the extraor- 
 dinary expences of the crown, and to fuperfede the necef- 
 fity of foliating taxes from parliament ? 
 
 The ftar-chamber, and the court of high commiilion, 
 were doubtlefs arbitrary and opprefTive tribunals ; and were 
 in a great mcafure under the direction of the fovereign. 
 But their interpolition, though juftly the fubjedt of com- 
 plaint, was limited to fingular and peculiar cafes ; and, had 
 it been pufhed fo far as to give great interruption to the 
 known and eftablifhed courfe of juftice, it would have occa- 
 sioned fuch odium and clamour, as no prince of common 
 underftanding would be willing to incur. 
 
 To be fatisfied, upon the whole, that the Englifh confti- 
 tution, at this period, contained the efTential principles of 
 liberty, we need only attend to its operation, when the 
 queflion was brought to a trial, in the reigns of the two 
 fucceeding princes. At the commencement of the difputes 
 between the houfe of commons and the two flriT. princes 
 of the Stewart family, the government Hood precifely 
 upon the fame foundation as in the time of Elizabeth. 
 Neither the powers of parliament had been encreafed, nor 
 thofe of the fovereign diminifhed. Yet, in the courfe of 
 that flruggle, it ibon became evident, that parliament, 
 without going beyond its undiiputed privileges, was pofTef- 
 fed of fufricient authority, not only to refift the encroach- 
 ments of prerogative, but even to explain and define its 
 extent, and to eftablifh a more compleat and regular fyftem 
 of liberty. It was merely by withholding fupplies, that 
 the parliament was able to introduce thefe important and 
 falutary regulations. Is the power of taxation, therefore, 
 to be confidered as prejudicial to the people ? Ought it not 
 rather to be regarded as the foundation of all their privi- 
 leges,.
 
 Chap. XL OF THE GOVERNMENT. 555 
 
 leges, and the great mean of eftablifhing that happy mix- 
 ture of monarchy and democracy which we at prefent 
 
 enjoy ? 
 
 Conclufion of the Period, from the Norman Conquejl. 
 
 WHEN we review the Englifh. conftitution, under the 
 princes of the Norman, the Plantagenet, and the Tudor 
 line, it appears to illuftrate the natural progrefs of that 
 policy which obtained in the Weftern part of Europe, with 
 fuch peculiar modifications, as might be expected, in Bri- 
 tain, from the fituation of the country, and from the cha- 
 racter and manners of the inhabitants. By the completion 
 of the feudal fyftem, at the Norman conquer!, the autho- 
 rity of the fovereign was confiderably encreafed ; at the 
 fame time that his powers, in conformity to the practice of 
 every rude kingdom, were, in many refpects, difcretionary 
 and uncertain. The fubfequent progrefs of government 
 produced a gradual exaltation of the crown ; but the long- 
 continued ftruggle between the king and his barons, and 
 the feveral great charters which they extorted from him, 
 contributed to afcertain and define the extent of his prero- 
 gative. While the monarchy was thus gaining ground 
 upon the ancient ariftocracy, the conftitution was acquiring 
 fomething of a regular form, and, by the multiplication of 
 fixed laws, provifion was made againft the future exertions 
 of arbitrary power. 
 
 By the infular fituation of Britain, the Englifh were 
 little expofed to any foreign invafion, except from the Scots, 
 whofe attacks were feldom very formidable : and hence the 
 
 4 B 2 king,
 
 556 CONCLUSION OF THE PERIOD Book fl. 
 
 king, being prevented from engaging in extenfive national 
 enterprises, was deprived of thole numerous opportunities 
 for fignalizing his military talents, and for fecuring the ad- 
 miration and attachment of his fubjects, which were en- 
 joyed by the princes upon the neighbouring continent. 
 Thus the government of England, though it proceeded in 
 a fimilar courfe to that of the other monarchies in Europe, 
 became lefs ablblute than the greater part of them ; and 
 gave admittance to many peculiar inftitutions in favour of 
 liberty. 
 
 The fame infular fituation, together with the climate 
 and natural produce of the country, by encouraging trade 
 and manufactures, gave an early confequence to the lower 
 order of the inhabitants ; and, by uniting their interefl with 
 that of the king, in oppofing the great barons, difpoled 
 him to encreale their weight and importance in the com- 
 munity. Upon this account, when the crown had attained 
 its greateft elevation, under the princes of the Tudor fami- 
 ly, the privileges of the commons were not regarded as 
 hoflile to the fovereign, but were cheriihed and fupported 
 as the means of extending his authority. 
 
 In confequence of thefe peculiar circumftances, the 
 government of England, before the acceffion of James the 
 Firft, had come to be diftinguifhed from that of every 
 other kingdom in Europe : the prerogative was more li- 
 mited ; the national afTembly was eonftituted upon a more 
 popular plan, and poflefled more extenfive powers ; and, 
 by the intervention of juries, the adminiftration of juftice, 
 in a manner confident with the rights of the people, was 
 better fecured. 
 
 Thefe peculiarities, it is natural to fuppofe, could hardly 
 efcape the attention of any perfon, even in that period, who 
 
 4 had
 
 Chap. XI. FROM THE NORMAN CONQUEST. 557 
 
 had employed himfelf in writing upon the government of 
 his country. And yet the hiitorian, whom I formerly 
 quoted, imagines that, before the reign of James the Firir,. 
 the Englifh had never difcovered any difference between 
 their own conftitution and that of Spain or France ; and 
 declares, " that he has not met with any writer in that age r 
 " who fpeaks of England as a limited monarchy, but as an 
 " abfolute one, where the people have many privileges ••". 
 This appears the more extraordinary, as foreigners, he ac- 
 knowledges, were fufficiently fenfible of the diitinction. 
 " Philip de Comines remarked the Englifh conftitution to 
 " be more popular, in his time, than that of France. And 
 " Cardinal Bentivoglio mentions the Englifh government 
 " as fimilar to that of the Low Countries under their 
 H princes, rather than to that of France or Spain t." 
 
 To prove that Englifh authors did not conceive their 
 government to be a limited monarchy, it is farther obferved* 
 that Sir Walter Raleigh, a writer fufpefted of leaning to- 
 wards the puritanical party, divides monarchies into fuch 
 as are entire, and fuch as are limited or rejlrained; and that 
 he clafTes the Englifh government among the former. It 
 muft be obferved, however, that by a limited monarchy* 
 in this paffage, is meant that in which the king has not the 
 fovereignty in time of peace, as in Poland. This is the ex- 
 planation which the author himfelf gives of his doctrine. 
 
 But not to iniift upon the expreflions of Sir Walter Ra- 
 leigh, a courtier, who thought it incumbent upon him to 
 write of queen Elizabeth in a ftyle of romantic love; an 
 adventurer, continually engaged in projects which required 
 the countenance and fupport of the prince ; I fhall mention 
 
 * See note Q,, at the end of vol, VI, 
 t Ibid, 
 
 two*
 
 5 5 3 CONCLUSION OF THE PERIOD Book II. 
 
 two Englifh writers, whofe authority upon this point will 
 perhaps be thought fuperior, and whofe opinion is much 
 more direct and explicit. 
 
 The firft is Sir John Fortefcue, the lord chief juftice, 
 and afterwards the chancellor to Henry the Sixth, who has 
 written a treatife upon the excellence of the Englifh laws, 
 and who, from his profeffion, as well as from the diftin- 
 guifhed offices which he held by the appointment of the 
 fovereign, will not readily be fufpected of prejudices againft 
 the prerogative *. This author, inftead of conceiving the 
 Englifh government to be an abfolute monarchy, defcribes 
 it in language that feems, in every refpect, fuitable to the 
 itate of our prefent conftitution. After diftinguifhing go- 
 vernments into regal and political, that is, into abfolute 
 and limited, he is at pains, through the whole of his work, 
 to inculcate, that the Englifh government is of the latter 
 kind, in oppofition to the former. " The fecond point, 
 " moft worthy prince, whereof you ftand in fear," (I make 
 ufe of the old tranilation, to avoid the poflibility of {train- 
 ing the expreflion) " fhall in like manner, and as eafily as 
 " the other, be confuted. For you ftand in doubt whe- 
 u ther it be better for you to give your mind to the ftudy 
 w of the laws of England, or of the civil laws ; becaufe 
 " they, throughout the whole world, are advanced in glory 
 " and renown above all men's laws. Let not this fcruple of 
 u mind trouble you, O molt noble prince : for the king of 
 " England cannot alter nor change the laws of his realm, 
 a at his pleafure. For why, he governeth his people by 
 
 * This book was tranflated into Englifh, and publifhed, in the reign of Elizabeth, by 
 Robert Mulcafter, a fludent of law, and dedicated to one of her juftices of the Common 
 Pleas. From the dedication, it fhould feem that the doctrines contained in this publi- 
 cation, were nut undcrftood to be, in any degree, offenfive to administration, or contrary 
 to the ideas, of the Englifh conftitution, entertained by the lawyers of that reign. 
 
 " power,
 
 Chap. XI. FROM THE NORMAN CONQUEST. 559 
 " power, not only regal but political. If his power over 
 u them were regal only, then he might change the laws 
 " of his realm, and crj^rge his fubjects with tallage and 
 " other burdens without their confent*." — The aim of 
 a limited monarchy he afterwards explains more fully. 
 u Now you underftand," fays he, " moil noble prince, 
 u the form of inftitution of a kingdom political; whereby 
 " you may meafure the power, which the king thereof 
 " may exercife over the law, and fubjecls of the fame. 
 " For fuch a king is made and ordained for the defence of 
 i; the law of his fubjeets, and of their bodies, and goods, 
 4> * whereunto he receiveth power of his people, fo that he 
 <c cannot govern his people by any other power t." — ■ 
 Then follows a more particular application of this doc- 
 trine to the conftitution of England. " Now whether the 
 " ftatutes of England be good or not, that only remaineth 
 u to be difcuffed. For t ,ey proceed not only from the 
 <* prince's pleafure, as do tlie laws of thofe kingdoms that 
 " are ruled only by regal government, where fometimes 
 ** the ftatutes do fo procure the fingular commodity of the 
 ** maker, that they redound to the hinderance and damage of 
 
 * " Secundum vero, prineeps, quod tu formidas, confimili nee majori opera eli- 
 " detur. Dubitas nempe, an Anglorum legum, vel civilium ftudio te conferas, dum 
 ** civiles fupra humanas cunclas leges alias, fama per orbem extollat gloriofa. Non te 
 44 conturbet, fili regis, haec mentis evagatio : nam non pnteft rex Angline ad libitum 
 " fuum, leges mutare regni fui. Principatu namque, nedum regally fed et politico^ 
 4C ipfe fuo populo dominatur. Si regali tantum ipfe prasdiet iis, leges regni fui mu- 
 " tare ille pofTet, taUagium quoque at caetera onera eis imponere ipfis inconfultis."— 
 Forte/cue^ de Laudibus Legum Angl'ics, c. 9. 
 
 + " Habes in hoc jam, prineeps, in/iitttti omnis polh'u'i regni formam, ex qua. 
 u metire poteris poteftatem quam rex ejus in leges ipfius, aut fubditos valuat excrcere. 
 u Ad tutelam namque legis fubditorum, ac eorum corporum, et bonorum, rex hujuf- 
 44 modi ereclus- eft?; et ad hanc poteftatem a populo effluxam ipfe habet, quo ei nori 
 44 licet poteftate alia fuo populo dominari." — Cap. 13. 
 
 " his
 
 560 CONCLUSION OF THE PERIOD Book IL 
 
 u his f\ibje6ts. — But ftatutes cannot thus pafs in England, for 
 " fo much as they are made, not only by the prince's plea- 
 " lure, but alfo by the aflent of the whole realm : fo that 
 u of neceffity they muft procure the wealth of the people, 
 M and in no wife tend to their hinderance *." — After fiating 
 fome objections, in the name of the Prince, he goes on ; 
 w Do you not now fee, molt noble prince, that the more you 
 " object againft the laws of England, the more worthy they 
 " appear ?— I fee plainly, quoth the Prince, that in the cafe 
 u wherein you have now travailed, they have the pre- 
 " eminence above all other laws of the world ; yet we have 
 " heard that fome of my progenitors, kings of England, 
 " have not been pleafed with their own laws, and have 
 H therefore gone about to bring in the civil laws to the 
 " government of England, and to abolifh. their own coun- 
 " try laws. For what purpofe and intent they fo did I 
 " much marvel. — You would nothing marvel thereat, quoth 
 " the Chancellor, if you did deeply confider with yourfelf 
 u 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 fingeth, The prince's 
 " pleafure Jlandeth in force of a law, quite contrary to the 
 fc decrees of the laws of England, whereby the king there- 
 " of ruleth his people, not only by regal but alfo by politi- 
 " cal government ; infomuch that, at the time of his coro- 
 
 • " Statuta tunc Anglorum, bona fint necne, folum reftat cxplorandum. 
 " Non enim emanant ilia a principis folum voluntate, ut leges in regnis qure tan- 
 u turn rcgaliter gubernantur, ubi quandoque ftatuta ita conftituentis procurant com- 
 " modum fingulare, quod in ejus fubditorum ipfa redundant difpendium. — Sed non 
 "• fie Anglire ftatuta oriri poflunt, dum nedum principis voluntau, fed et totius r<-gni 
 * l aflfafu, ipfa conduntur, quo populi lxfuram ilia efficere nequeunt, vel non eorum 
 / corr-modum procurare." — Cap. 18. 
 
 u nation,
 
 Chap. XL FROM THE NORMAN CONQUEST. $6t 
 
 « nation, 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 mould not freely 
 " govern their fubjecls as other kings do, whofe rale is 
 " only reo-al, governing their people by the civil law, and 
 " chiefly by that forefaid maxim of the fame law, whereby 
 " they, at their pleaiure, change laws, make new laws, 
 " execute punifhments, burden their fubjedts with charges ;. 
 " and alfo, when they lift, do determine controverfies of 
 « fuitors, as pleafeth them. Wherefore thefe your proge- 
 ci nitors went about to caft off the yoke political, that they 
 " alfo might rule, or rather rage over the people their 
 " fubje&s in regal wife only : not confidering that the 
 " power of both kings is equal, as in the forefaid 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 fubjects, but alfo to 
 " the king himfelf, and further no fmall lightening or eafe- 
 ** ment to his charge. And that this may appear more 
 " evident unto you, ponder and weigh the experience of 
 " both regiments ; and begin with the king of France, 
 " perufmg after what fort he ruleth his fubjedts, by regal 
 " government alone : and then come to the effect of the 
 " joint governance, regal and political, examining by expe- 
 " rience how and in what manner the king of England 
 " governeth his fubjects *." After thefe obfervations, the 
 
 author, 
 
 • " Nonne vides jam, princeps clariffime, leges Anglic tanto magis clarefcere, 
 " quanto eifdem tu amplius reluclaris ? Princeps, video, inquit, et eas inter totius 
 tt orbis jura (in cafu quo tu jam fudafti) praefulgere confidero ; tamen progenitorum 
 K meorum Angliae regnum quofdam audivimus, in legibus fuis minima deledatos, 
 " fatagentes proinde leges civiles ad Angliae regimen inducerc, et patrias leges repu- 
 
 4 C " dinrc
 
 s 6z CONCLUSION OF THE PERIOD Book II. 
 
 author, in two feparate chapters, contrails the mifery pro- 
 duced by the abiblute government in France with the hap- 
 pinefs reiulting from the limited monarchy in England. 
 The whole treatife is well worth an attentive peruial; as 
 it contains the judgment of a celebrated lawyer, concern- 
 ing the mixed form of the Englifh conftitution, at a period 
 when fome have conceived it to be no lefs arbitrary and 
 defpotical than that which was eftabliihed in France or in 
 any other kingdom of Europe. 
 
 It will occur to the reader, that the opinion of Sir John 
 Fortefcue, in the pafTages above quoted, is widely different 
 from that of Mr. Hume, who maintains that the legiflative 
 power of the Englifh parliament was a mere fallacy. 
 
 44 diare conatos : horum revera confiltum vehementer admiror. Cancellarius, Non 
 w admirareris, Princeps, fi caufam hujus conaminis mente folicita pertraclares. Au- 
 " difti namque fuperius quomodo inter leges civiles prsecipua fententia eft, maxima 
 " five regula ilia quae fie canit, quod principi placuit legis habet vigor em : qualiter non 
 " fanciunt leges Angliae, dum nedum regaliter^ fed et politlce rex ejufdem dominatur 
 " in populum fuum, quo ipfe in coronatione fua ad legis fuae obfervantiam aftringitur 
 " facramento; quod reges Angliae aegre ferentes, putantes proinde fe non libere 
 " dominari in fubditos, ut facient reges regalltcr tantum principantes, qui lege civili, 
 " et potifiime predi&a legis illius maxima, regulant plebem fuam, quo ipfi, ad eorum 
 u libitum, jura mutant, nova condunt, poenas infligunt, et onera imponunt fubditis 
 " fuis, propriis quoque arbitriis, contendentium, cum velint dirimunt lites. Quare 
 " moliti funt ipii progenitores tui hoc jugum politicum abjicere, ut confimiliter et ipfi 
 cc in fubjectum populum regaliter tantum dominari, fed potuis debacchari qucant ; 
 " non attendentes quod aequalis eft utriufque regis potentia ; ut irt predifto traclatu 
 " de natura legis natura docetur ; et quod non jugum fed libertas eft politlce regerc 
 " populum, fecuritas quoque maxima nedum plebi, fed et ipfi regi, allevatio etiam 
 " non minima folicitudinis fuae. Quae ut tibi apertius pateant, utriufque regiminis 
 " experientiarn percunclare, et a regimine tantum rcgali, qualiter rex Franciae princi- 
 " patur in fubditos fuos, exordium fumito : deinde a regain et politici regiminis effec- 
 " tu, qualiter rex Angliae dominatur in fibi fubditos populos, experientiarn quaere." 
 Vide cap. 32,33,34. 
 
 The
 
 Chap. IX. FROM THE NORMAN CONQUEST. 563 
 The other Englifli writer, from whofe authority it ap- 
 pears that the government of England was, at this time, 
 underftood to be a limited monarchy, is Sir Thomas Smith, 
 a diftinguifhed lawyer, and principal fecretary both to Ed- 
 ward the Sixth and to Elizabeth. In his Commonwealth 
 of England-, a work which unites liberality of fentiment 
 with fome philofophy; this author, after explaining the 
 origin and progrefs of government, has occafion to con- 
 fider more particularly the nature of the Englifli conftitu- 
 tion. " The moft high and abfolute power," fays he " of 
 « the realm of England, confifteth in the parliaments- 
 " The parliament abrogateth old laws, maketh new, 
 " giveth order for things paft, and for things hereafter to 
 " be followed, changeth rights and pofleflions of private 
 « men, legitimateth baftards, eftablilheth forms of religion, 
 ** altereth weights and meafures, giveth form of fuccef- 
 « Hon to the crown, defineth of doubtful rights, whereof 
 " no law is already made, appointeth fubfidies, tailles, 
 €t taxes, and impofitions, giveth moft free pardons and 
 « abfolutions, reftoreth in blood and name, as the higheft 
 « court, condemneth or abfolveth them whom the prince 
 " will put to that trial. And, to be fhort, all that ever 
 " the people of Rome might do, either in centuriath 
 " comitiis, or tributis, the fame may be done by the par- 
 « liament of England, which reprefenteth, and hath the 
 « power of the whole realm, both the head and the 
 " body. For every Englifhman is intended to be there 
 " prefent, either in perfon or by procuration and attorney, 
 " of what preheminence, ftate, dignity, or quality foevcr he 
 « be, from the prince, to the lowelt perfon of England. 
 « And the confent of the parliament is taken to be every 
 
 4 G 2 " man's-
 
 564 COXCLUSION OF TPIE PERIOD Book II. 
 
 " man's confent*." — Among the privileges of parliament, 
 mentioned by this well-informed writer, one is, that the 
 members " may frankly and freely fay their minds, in 
 « difputing of fiich matters as may come in queftion, and 
 4t that without offence to his majefty t." — He alfo enu- 
 merates the feveral branches of the prerogative ; inch as 
 that of making peace and war, of coining money, of ap- 
 pointing the higher officers and magiftrates of the realm, 
 of drawing the tenths and firft fruits of ecclefiaflical bene- 
 fices, of iffuing writs and executions, of levying the ward- 
 ship, and firft marriage, of all thofe who hold of the king- 
 in chief. What he fays concerning the difpenfing power of 
 the ibvereign deferves particular notice, as he mentions the 
 foundation of that power, and the limitations under which 
 it was underftood to be exercifed. 
 
 " The prince," he obferves, u ufeth alfo to difpenfe 
 " with laws made, whereas equity requireth a moderation 
 ii to be had, and with pains for tranfgreffing of laws, 
 " where the pain of the law is applied only to the prince. 
 " But where the forfeit, (as in popular actions it chanceth 
 « many times) is part to the prince, the other part to the 
 €t declarator, detector, or informer, there the prince doth 
 li difpenfe for his own part only. Where the criminal is 
 " intended by inquifition (that manner is called with us at 
 " the prince's fuit) the prince giveth abfolution or pardon, 
 " yet with a daufe, modo Jiet rectus in curia, that is to fay, 
 " that no man object againft the offender. Whereby, not- 
 " withftanding that he hath the prince's pardon, if the pcr- 
 li fon offended will take upon him the accufation (which 
 
 * Commonwealth of England, b. ii. ch. 2, 
 f Ibid. ch. 3. 
 
 <.». 
 
 in
 
 CHAP. XI. FROM THE NORMAN CONQUEST. 565 
 *' in our language is called the appeal) in cafes where 
 u it lieth, the prince's pardon doth not ferve the of- 
 " fender*." With what reafon, therefore, or plaufibility, 
 can it be afferted, that no lawyer, in the reign of Elizabeth, 
 conceived the Englifh conflitution to be a limited mo- 
 narchy ? 
 
 In perufing thefe accounts of the Englifh government, we 
 cannot fail to remark, that they are fo little enforced by 
 argument, and delivered with fuch plainnefs and flmplicity, 
 as makes it probable that they contained the doctrines uni- 
 verfally received in that age, and which had never been the 
 fubjec~t of any doubt or controverfy. 
 
 The views of this important queftion, which have been 
 fuggefted by other writers, it is not my intention to exa- 
 mine. But the opinions of this eminent hiftorian are enti- 
 tled 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 filence. The improvements made in 
 the Englilh government, from the accelflonof the houfe of 
 Stewart to the prefent time, with the prefent ftate of the 
 Britifh conftitution in all its principal branches, are intend- 
 ed for the fubject of a future inquiry. 
 
 * Commonwealth of England, b. ii. ch. 4* 
 
 I N D E X.
 
 I 
 
 N 
 
 D E X. 
 
 A' 
 
 A. 
 
 'BKOTS prefide in the affairs 
 of monafteries, page 97. 
 
 Atlions, criminal, in law, lefs nume- 
 rous than civil, 422. 
 
 Admittance of the commons to a feat 
 in parliament, how brought about, 
 389- 
 
 Adrian, the emperor, contracts the 
 limits of the empire, 18. 
 
 Adultery, its punifhment among the 
 ancient Germans, 27. 
 
 Africa falls a prey to the Vandals, 57. 
 
 Alaric, a law in favour of the clergy 
 of that diflrid, 230. 
 
 Alderman, or earl, chief civil officer 
 of the fhire, among the Anglo- 
 Saxons, 1 17. 
 
 Alienation of landed property, when 
 firfl authorifed by ftatutc, 373. 
 
 Alfred, his character and misfortunes, 
 169, 70. His demefnes feized, ib. 
 He retreats to a morafs formed by 
 the rivers Thane and Parrot, in 
 Somerfetfhire, 171. Collects an 
 army, ib. Vifits the Danifh camp 
 in difguife, 172. Defeats them in 
 battle, ib. Creates a fleet, for- 
 tifies the coaft, rebuilds the towns, 
 improves the country, and com- 
 potes a new code of laws, 173. 
 
 Eflablifhes the regular adminiflra- 
 tion of juflice, 174. Excites in- 
 duftry among all orders of men, 
 and extends the interefls of com- 
 merce, 175. His manly virtues, 
 and literary talents, 176. His 
 portly figure, and dexterity in 
 athletic exercifes, 177. Moll ac- 
 counts of him fabulous, ib. 
 
 Allodial and feudal eftates, what, and 
 how diftinguifhed, 87. 
 
 Allodial property renounced, 183, 
 Effects of that mcafure, ib. 
 
 Alterations in the flate of the courts 
 of juflice, 420. 
 
 Anglo-Saxons, the fiercefl and mod 
 warlike of the German tribes, 41, 
 The power of their princes weak- 
 ened, 185. Their government, 
 how diftinguilhed from that 
 of the Anglo-Saxon Normans, 
 
 305- 
 Amalphi, its maritime laws how re- 
 fpecled, 487. 
 
 Affaffination, the practice of, abolifh- 
 ed by duelling, 74. 
 
 Archbijhops, their functions, 97. 
 Three of, originally in England, 
 117. 
 
 AriJlocracy y feudal, what, 3. 
 
 Army, Roman in Britain, its num- 
 ber, 10. Operations, ib. Effects 
 
 on
 
 I 
 
 N 
 
 D 
 
 E 
 
 X. 
 
 on the manners of the people, 
 ibid. 
 
 e, commifllon of, why given, 
 43-- 
 Atbelftan, his reign, 178. Mounts 
 rhe throne in preference to his 
 father's legitimate offspring, 18S. 
 A fingular itatute of, 206. Ano- 
 ther, 210. 
 
 Attorney General, office of, for what 
 purpofe created, 446. 
 
 Aula regis explained 243. Its ana- 
 logies, 317. Its date uncertain, 
 318. Ordinary and extraordinary 
 prefident, who, ib. Acquires the 
 title of grand judiciary, 319. A 
 great improvement in judicial po- 
 licy, 324. A deputation from the 
 national council, 325. Limits the 
 authority of inferior courts, 326. 
 Encroaches on the jurifdiction of 
 the fheriffs and barons, id. Its 
 extenfive influence, 326, 7. Its 
 imperfections, 422. Its refidence 
 fixed, 424. Abolifhed, and from 
 what caufes, 425. Subjected, in 
 Scotland, to fimilar revolutions, 
 427. 
 
 Aulic council, in Germany, defcribed, 
 317. Diftinguifhed from the 
 imperial chamber, 24. 
 
 Aicguftine and forty affiftants commif- 
 fioned by the pope to preach the 
 gofpel in Great Britain, 108. 
 
 'pices of Henry II. 's afceniion to 
 
 the throne, 276. 
 
 tbority of the diftant provincial 
 Roman governors, 12. Of the 
 feudal lords, by what mean di- 
 minished, 104. 
 
 B. 
 
 Baldwin, count of Flanders, inflltute* 
 furs and markets, 491. 
 
 Barons, hereditary, fkreen their fol- 
 lowers, 197. Greater and lefler r 
 diftinguilhed, 239. The leffer 
 barons confider their attendance 
 on parliament as a burden, 316. 
 Weakened by their animofities, 
 343. Extort frequent conceffions 
 from the crown, 345. Their con- 
 duel materially different from thofe 
 of France, 346. They defeat Ri- 
 chard II. in battle, 2 $6. 
 
 Baronies, in feparate counties, amount 
 of, 306. 
 
 Becket, Thomas, promoted to the fee 
 of Canterbury, 276. His inor- 
 dinate ambition, 277. His affaf- 
 fination alluded to, 340. 
 
 Benefices, ecclefiaftic, fubjected to 
 military fervice, 285. 
 
 Benefit of clergy, what, and how 
 eftabliihed, 338'. 
 
 Benevolence, its derivation, 309. Al- 
 ways confidered as a free gift, except 
 in three fingular inftances, 515. 
 Damned and difannulled for ever 
 by act of parliament, 516. 
 
 Bi/kops, the fource of that dignity, 94. 
 Their primitive fituation, 97. In- 
 verted with civil as well as eccle- 
 fiaftic jurifdiction, 228. Become 
 judges, with fheriffs, in the county 
 courts, 232. DifpofTeffed of this 
 diftinction, ib. 
 
 Bills for a new law, how conduct- 
 ed, 416. 
 
 Boc-land and Folc-land defcribed and 
 diftinguifhed, 88. 
 
 4 Boroughs,
 
 Boroughs, the idea of, how fuggeft- 
 ed, 379. When reprefented in 
 parliament, So, 81, 82. For Scot^ 
 land, when, 384. An hundred and 
 twenty of, under Edward I. fend 
 two delegates each, 39:. Repre- 
 sentatives of, how elected, 405, 
 6. Twelve in Wales receive the 
 privilege of reprefentation from 
 Henry VIII. who at the fame 
 time gives the fame right to as 
 many counties in England, 505. 
 Twenty-four raifed, and feven re- 
 ftored, under queen Elizabeth, /£. 
 Sixteen made, and ten renewed, by 
 Edward VI. j ten made, and two 
 renewed, by Mary, ib. James I. 
 created fix and reftored eight, ib. 
 Charles I. reftored nine, 506. 
 
 Burgeffes, when firft introduced to 
 parliament, 378. 
 
 Borjh older, who, 191. 
 
 Boxing peculiar to the Englifh, 77. 
 Its laws derived from thole of chi- 
 valry, 78. 
 
 Black Prince, his gallantry and deli- 
 cacy of fentiment, 2S3' 
 
 Brady quoted and cenfured, 264, n. 
 
 Britain, its fituation when firft fub- 
 dued by the Romans, 10. The 
 Roman government of, ib. Duke 
 of, his office, 20. Count of, who, 
 ib. Deferted by the Romans, 22. 
 Confequences of that event, ib. 
 Forms fchemes of felf-defence, 24. 
 Calls the Saxons to its aid, and is 
 betrayed, 42, 3. 
 
 Britons , the ancient, reduced to fer- 
 vitude, 44. Not extirpated, 45, 6. 
 Their language a compound of 
 the ancient Saxon and Britiih, it. 
 
 D E X. 
 
 Their bar bari fill 
 
 mis, 48. 
 
 C. 
 
 and vvretcheci- 
 
 Camite, king, his conquefts and con- 
 duct, 180. 
 
 Canon law formed into a fyftem, 
 337. Improved, 456. 
 
 Carles, cecrls, churles, names of the 
 ancient Britifh peafantry, 90. 
 
 Centenarius, or hundreder, the office 
 of, 117. 
 
 Chides, fourfold, into which the peo- 
 ple of England were formerly di- 
 vided, 212. Analogous to the 
 caftes of the Indians, 13. 
 
 Clergy, the third order of ancient 
 Britons, 92. Acquire influence 
 in fecular affairs, 94. Accumulate 
 great property by legacies be- 
 queathed to the church, 95. Re- 
 tain their literature amidft the 
 grofleft barbarifm, 99. Claim a 
 tenth from the alms of the beggar, 
 and the hire of the proftitute, 100, 
 Combine in their own defence, 
 102. Their merits admitted, ^d. 
 Obtain an exemption from fecular 
 jurifdiction, 337. 
 
 Chancellor, origin of that office, 161. 
 
 Changes in the condition of varTals 
 and peafants, 198, 
 
 Charles I. reftored nine boroughs to 
 the right of fending delegates to 
 parliament, 506. 
 
 Charles of Anjou, a liberal patron of 
 the fine arts, 488. 
 
 Clocks, the art of making, derived 
 from Italy, 488. 
 4 D Cbw
 
 I N D 
 
 Charter of the foreft explained, 289, 
 90. The great charter of liberty 
 renewed, ib. Begun and repeated 
 under fix different monarchs, 295. 
 Mentioned again, 345. 
 
 Chriftianity, eftablifhment of, 93. 
 Among the Anglo-Saxons, 1050 
 Debafed by Saxon fuperftition, 
 107. 
 
 Chivalry, a confequence of duelling, 
 76. Its fpectacles firft exhibited 
 in France, ib. Produced the no- 
 bleft delicacy of fentiment, 353. 
 
 Church gathers ftrength from die 
 difmemberment of the empire, 
 100. Increafe in wealth and 
 power, 226. Celibacy of its offi- 
 cers, ib. Aflumes the cognizance 
 of judicial bufinefs, ib. Excom- 
 municates refractory members, 
 227. Severe difcipline, 228. Fram- 
 ed to affect men's prefent interefts, 
 229. Its legal eftablifhment, 338. 
 
 Charles, their flat ion and rank in life 
 defcribed, 205, 6, 7. 
 
 Circumftances which contributed to 
 form the Britifh conftitution of 
 government, 57. Prevented the 
 civil incorporating with the com- 
 mon law, 453, 4> 5> 6. 
 
 Coalition of the mercantile deputies 
 with thofe of the leffer barons, 
 
 393> 
 Commons, in parliament, acquire a 
 feparate houfe, 396. Houfe of, 
 its privileges, 97, 98, &c. 
 
 Civil law, its excellence and altera- 
 tions, 463, 4, 5, 6. 
 
 Common law of England little in- 
 debted to Roman jurifprudence, 
 and why, 453« 
 
 E X. 
 
 Commerce, origin and extent 485. of, 
 Confined by the ancients to the 
 coafts of the Mediterranean and 
 the Red Sea, 486. EngrofTed in 
 the northern ports of Europe by 
 towns fituated on the fhores of the 
 Baltic, and in the fouthcrn by the 
 Italians, 486, 87. Its rapid pro- 
 grefs in England, 495. By the 
 woollen trade, 497. By improve- 
 ments in agriculture, 498. And 
 navigation, <joo. Encouraged 
 and facilitated by the nature of a 
 free government, 501, 2. 
 
 Conservators of the peace, their ori- 
 gin and employment, 433. 
 
 Coroner, appointment of, and for 
 what purpofe, 447. The bufinefs 
 of that office, 48, 9. Superfeded 
 by the inftitution of a grand jury, 
 ib. Undergoes in Scotland a fimi- 
 lar change, 51. 
 
 Cortes of Spain, when introduced, 
 388, n. 
 
 Compurgators explained, 277. 
 
 Confiantine erects an eaftern capi- 
 tal, 19. Difbands the Pretorian 
 guards, 20. Diftributes the whole 
 empire into four great prefectures, 
 ib. 
 
 Conftitution, Englifh, remote from 
 abfolute monarchy, 165. Not 
 ariftocratic, 166. Nor very dif- 
 ferent, even at this day, from what 
 it was under William the Con- 
 queror, 313. State of, from the 
 acceffion of Edward I. to that of 
 Henry VII. 345. 
 
 Conftable, petty, origin of, 192. 
 
 Count, the derivation and meaning 
 of that title, 194. 
 
 Courage
 
 Courage diftinguiflied from forti- 
 tude, 32. 
 
 Court baron, and leet, diftinguifhed, 
 220. Ecclefiaftic, explained, 224. 
 Diocefan, how constituted, 227. 
 Its fentence, 229. Of chancery, 
 its inftitution, 322. Of requefts 
 abolifhed, 323. Of king's bench, 
 common pleas, exchequer, when 
 and by whom eftablifhed, 425. 
 
 Cour de roy, what, 317. Alterations 
 in the form and ftation of, 426. 
 
 Councils , national, of France and 
 England, how different, 386. 
 
 Crown, the prerogative of, at firft 
 difcretionary, 244. 
 
 Crufades, commencement of, 269. 
 
 Curfew, its inftitution, 263. 
 
 CuJtontSy their origin, 309. 
 
 D. 
 
 Danes, their invafion of England, 
 168, 9. Their abilities, 170. 
 Maffacred, 180. 
 
 Decimal arrangement, how and why 
 adopted, 1 14, 15. 
 
 Dean, Rural, his office, 116. 
 
 Devonfljire, earl of, routes a large 
 body of Danes, 171. 
 
 Differences among the Anglo-Saxons, 
 where decided, 122. 
 
 Dioclefian divides the fovereignty of 
 the empire between two Caefars, 
 19. 
 
 Dermot, king of L,einfter, afTifled by 
 the Englilh, 280. 
 
 Difpenfwg power of the crown, its 
 origin, 512. Protected againft in 
 
 INDEX. 
 
 parliament fo early as the reign of 
 Richard II. 513. 
 
 Defpondency of the ancient Britons, 
 24. 
 
 Dotlrines of the church promote the 
 power of the clergy, 99. 
 
 Duelling, its origin, nature, and 
 effects, 72. 
 
 Dunjlan, the faint of that name, his 
 excefiive power, 226. 
 
 E. 
 
 Eafi Indies, a paffage opened to, by 
 the Cape of Good Hope, advan- 
 tageous to commerce, 493. 
 
 Ecclefiaftical government, how affect- 
 ed by the politics of the empire, 
 97- 
 
 Edward the Elder, his reign, 178. 
 
 Edward the Confeffor, an ufurper, 
 248. Educated in the court of 
 Normandy, 249. Connection be- 
 tween the Engliih and Normans, 
 250. Names the duke of Nor- 
 mandy his fucceffor, ib. His 
 great ability and fuccefs, 352, 
 Confirms the great charter of li- 
 berty, 354. Relieves his fubjects 
 from the apprehenfions of the 
 French government, ib, 
 
 Edward VI. created thirteen bo- 
 roughs, and reftored ten to the 
 right of fending members to par- 
 liament, 505. He corrects, not- 
 withstanding the fhortnefs of his 
 reign, abufes introduced by his 
 father, 538. 
 
 Edmund, king, killed by a robber, 
 189. 
 4 D 2 Etbelbej-k,
 
 f 
 
 N 
 
 D 
 
 E 
 
 X. 
 
 Ibert, his laws defined with eor- 
 re&nefs the nature of crimes, 55. 
 
 Ethclred, though a weak prince, de- 
 ceives his enemies by a pecuniary 
 offer, 179. MafTacres the Danes, 
 1 So. 
 
 Eletlors of the Germanic empire, the 
 number of, how rendered perma- 
 nent, 163. For members of par- 
 liament, in Scotland, Hill hold their 
 lands of the crown, 400. Their 
 qualifications in England ftated 
 and examined, 404. 
 
 Egbert, king, his abilities and ad- 
 drefs, 54. 
 
 Elizabeth, queen, created twenty- 
 four, and reftored feven, boroughs 
 to the right of reprefenration, 505. 
 The fplcndor of her reign, 539. 
 Her princely character and de- 
 meanour, 540. Her deference to 
 parliamentary authority, 541. She 
 punctually repays her creditors, ib. 
 AfTcrts the royal prerogative, 543, 
 4. Court of high commiflion, 
 for trying religious opinions, in- 
 stituted in her rtign, 545. Exer- 
 cifes the difpenfing power of the 
 crown under great limitations, 547. 
 Prohibits prophefying, 548. Lays 
 an inhibition on the dye fluff call- 
 ed woad, 549. Her mode of rai- 
 fing money, when menaced by a 
 Spanifii invafion, not fimilar to 
 the fhip-money under Charles I. 
 550. Apology for her interfering 
 with the debates of parliament, 
 and imprifoning its members, 551. 
 Her government improperly com- 
 pared to that of Turkey, by Mr. 
 Hume, 553. The powers of par- 
 
 liament extended under her au- 
 spices, 554, 5. 
 
 England, when me began to eflrablifh 
 a maritime power, &nd*arTume her 
 rank in the fcale of Europe, 2. 
 Conftitution of, when and how 
 founded, 4. Has no equal, in 
 point of excellence and liberality, 
 in the annals of mankind, 5. 
 Farnous for the breed of flow- 
 hounds, 290. And for boxing, 277. 
 Antiquity of her woollen manu- 
 factures, 496. Her jurifprudence, 
 how fuperior to that of France, 
 and the other nations on the con- 
 tinent, 428. 
 
 England, when firft given as the 
 name of South Britain, 53. 
 
 sEra of darknefs and barbarifm in 
 the modern hiflory of Britain, 54. 
 
 Entails, when and for what reafon 
 introduced, 373, 4. 
 
 EJlates, the three of parliament, melt- 
 ed down by its meeting in two fe- 
 parate houfes, 395. 
 
 Equity, how diltinguiihed from flricl: 
 law, 480. 
 
 Europe, the weftern continent of, 
 how fubdued, 57. 
 
 Events from the reign of Egbert to 
 the Norman conqueft, 168. 
 
 Extirpation of the ancient Britons, 
 fabulous, 109. 
 
 Extenfton of the royal prerogative, 
 296. 
 
 Exchequer, court of, when, and by 
 whom cftablifhed, 425. 
 
 F. Field
 
 F. 
 
 Field of march defcribed, 136. 
 Fine of alienation explained, 202. 
 
 Feudal fyjlem peculiar to the modern 
 ftates of Europe, 71. The pro- 
 grefs of, 248. Its mode of trying 
 criminal caufes, 446. Its comple- 
 tion, 257. Controverfy concern- 
 ing the eftablifhment of, 259, 60. 
 Acquired authority rather from 
 accident than defign, 242. 
 
 Firfi fruits, the impofition of, how 
 occafioned, 102. 
 
 Forty days the term of military fer- 
 vice, during the prevalence of the 
 feudal fyftem, 103. 
 
 Feuds, hereditary, their effects, i$$. 
 
 Fortefcue, Sir John, quoted, 462. 
 Quoted again, in oppofition to 
 Mr, Hume, 558. 
 
 Florence, its tafte formerly for ele- 
 gance and refinement, 488. 
 
 France derives peculiar advantages 
 by its acquifition of Normandy, 
 349. Its jurifprudence how di- 
 verfifkd, and in what refpecls de- 
 fective, 428. 
 
 G. 
 
 Gallantry, its origin and effects, 79, 
 80, I, 2, 3. 
 
 Gaul invaded by the Franks, the 
 Burgundians, and the Wifigoths, 
 
 57- 
 Gtntoo code of laws quoted, 128. 
 
 Germans, ancient, defcribed, 27, 8. 
 Their employment, manners, poli- 
 
 N D E X. 
 
 tical regulations, and perfonil 
 qualities, 29, 30. Account of 
 then} by Tacitus, the Roman hif- 
 torian, 35. Their unity, their fim- 
 plicity, and unpolifhed habits, 3$, 
 6. Their military talents, com- 
 mon intereft, and virtues of hofpi- 
 tality, 37, 8. Addicted to hard 
 drinking, indolence, and games of 
 hazard, 39. 
 
 Goths, their facility in forming 
 kingdoms, 63. 
 
 Godwin, earl of WefTex, formidable 
 to Edward the ConfeiTor, 248. 
 
 Gael delivery, when and why ap- 
 pointed, 428. 
 
 Go/pel preached in England by St.- 
 Augultine, 108. 
 
 Government, commercial, what, 3. 
 Of a moderate fize, why fo eafily 
 eftablifhed, 69. The Anglo- 
 Saxon diftinguifhed from that of 
 the Anglo-Saxon Normans, 305. 
 
 Grand Juries, 435. Their bufinefs af- 
 certained, 49, 50. 
 
 Gregory the Great extends his autho- 
 rity over the Britiih clergy, 108. 
 
 FT. 
 
 3S6, 
 
 Hanfeatic league, its operations, 
 The origin and date of, 489. 
 
 Haftings, the battle of, alluded to, 
 251. 
 
 Harold, his extenfive property and 
 great ambition, 248. He is out- 
 witted at the Norman court by a 
 ftratagem, 251. Obtains pofTeflfion 
 of the government, ib. Is over- 
 thrown at the battle of Haftings, 
 252. His party only, and not 
 
 the
 
 I N D 
 
 the Fngliih in general, conquer- 
 ed, 53- 
 
 \"s Proceedings in the Houfe of 
 Commons quoted, 419. 
 
 Hengift the Saxon, his artifice, 42, 3. 
 
 v, the Rev. Doctor, his hiftory 
 quoted, 15. 
 
 Henry I. feizes the vacant throne, 
 270. Restoration of the common 
 law demanded of him by the ba- 
 rons, 271. He is threatened with 
 an invafion by the Normans, 272. 
 He grants ibme mitigation of 
 the feudal incidents, ib. Co- 
 pies of this grant fent to all the 
 counties of England, 273. He 
 invades Normandy, and carries 
 the duke a captive to England, 274. 
 His character and merits, ib. 
 Tolls and duties farmed in his 
 time, 381. The charter granted 
 by this prince v/as in lieu of the 
 crown, 347. 
 
 Henry II. mounts the throne in the 
 midft of feveral aufpicious circum- 
 flances, 276. His difappoint- 
 ment and mortification, ib. He 
 aflifts Dermot, king of Leinfter, 
 280. Grants a charter to the ba- 
 rons, 281. Popularity the object: 
 of all his complaifance to the peo- 
 ple, 348. Melancholy circum- 
 stances which crowd the end of 
 his reign, 28 1. 
 
 Henry III. only nine years old at 
 his father's death, 288. The earl 
 of Pembroke becomes regent du- 
 ring his minority, ib. He renews 
 the great charter in favour of li- 
 berty, 289. 
 
 3 
 
 E X. 
 
 Henry IV. his right to the crown 
 derived from . parliament, 360. 
 He was not the legal heir, 361. 
 Pie poffesTed great ability and 
 popularity, 362. His policy and 
 valour, 363. 
 
 Henry V. his military talents and 
 virtues, ib. He reinstates the 
 crown in all its former autho- 
 rity and fplendour, 364. 503. 
 Unites the interefts of the two 
 Houfes of York and Lancaster, 
 507. His perfonal character, 508. 
 His policy, 5^9. His avarice, 
 510. He aiTumes the controul 
 of the police, 514. His expedients 
 for raifing money, 515. Pie levies 
 benevolences, 516. But he never 
 has recourfe to loans, 518. He 
 adopts the exaction by purvey- 
 ance, 519. He inllitutes martial 
 law, 522. Conducts public pro- 
 fecutions, 523. The constitution 
 how affected by the meafures of 
 his reign, 524, 25. 
 
 Henry VI. his long minority, and 
 want of ability, filled his reign 
 with difafters, 364. 
 
 Henry VII. mentioned, 365. Influ- 
 ence of the crown prod igiou fly 
 extended by the meafures purfued 
 in his reign, 503, 4, 5, 6. 
 
 Henry VIII. raifes twelve counties, 
 and as many Welch boroughs, to 
 the right of fending members to 
 parliament, 505. Puts an end to 
 the political animofities which had 
 fo long distracted the nation, 526. 
 Affects to controul both parties in 
 the reformation, 533. Demolifhes 
 monasteries, 534. Becomes the 
 head of the church, ib. Dif- 
 
 clauns
 
 I 
 
 N 
 
 D 
 
 X. 
 
 ctaims the interference of his 
 minifter in the deliberations of 
 parliament, 535. In all his mea- 
 fures he fhelters himfelf under the 
 fanction of parliament, ib. 
 
 Heptarchy combined againfl the in- 
 habitants of the country, 52. The 
 leader of, an object of ambition, 
 ib. 
 
 Hereford 3 duke of, heads the confpi- 
 racy againfl Richard II. 359. 
 
 Hides of land, what, 85. 
 
 Heretoch, among the Anglo-Saxons, 
 the chief military officer of the 
 (hire, 117. 
 
 High Ccnjrable, the office and duties 
 of, explained, 193. 
 
 Hierarchies of the Tartars, Celtics, 
 and modern Europeans, analogous, 
 115. 
 
 Hijiory of England, natural divifion 
 of, 1. Of the Britifh parliament, 
 367. Of the court of chancery, 
 469. Inflituted to correct injuf- 
 tice, and fupply the defects of 
 other tribunals, 477. Various opi- 
 nions whether it be a court of 
 equity, 478. Has gradually di- 
 verted itfelf of its original charac- 
 ter, 481. Diftingui fried from other 
 courts of law, 482. Its mode of 
 examining proofs, ib. Takes evi- 
 dence by commifilon ib. Rea- 
 lizes contracts, ib. Interprets fe- 
 curities for monies lent, 483. En- 
 forces a trufl, ib. 
 
 Horfley\ Britiih Roman Antiquities 
 quoted, 10. 
 
 Jioufe of Commons has the fole power 
 of bringing in money bills, 396, 
 cfj 3 98, ^. Why incapable 
 
 of judiciary power, 400, 1, 2. 
 Its right of impeachment, how 
 founded, 402, 3. Competent 
 to determine all queflions con- 
 cerning its own members, 403, 4 . 
 Its primitive mode of electing its 
 members, 405, 6. Chafes a fpeaker, 
 414. Receives no petition concern- 
 ing public money but what comes 
 recommended by the crown, 419. 
 
 Hugh Caput, the manner of his ob- 
 taining the French crown, 258. 
 
 Horfe-racing, its origin, 291. 
 
 Hume, the hiftorian, quoted, 281. 
 Examined and correfted, 409. 
 His opinions of queen Elizabeth's 
 reign refuted, 546, 47, 4S, 49, 
 
 5°; 5 J > 5*> S3> 54. 
 Hundreds, the denomination of, 
 whence, 116. 
 
 Hunting, a favourite exercife of our 
 anceftors, 290. 
 
 Hydages explained, 306. 
 
 I. 
 
 James I. created fix and reflored 
 eight boroughs to the right of 
 fending reprefentatives to parlia- 
 ment, 506. 
 
 John, king, afcends the throne, 281. 
 Surrenders his kingdom to the 
 pope, 289. Yields to the requifi- 
 tion of the barons, 284. Raifes an 
 army to punifh them, 288. Dies, 
 and leaves the crown to a minor, . 
 ib. His conceffions in favour of 
 liberty,, obtained by the great 
 charter, 286. The privileges fe- 
 cured by that famous deed, the 
 effects of neceffity, 348.. 
 
 Ina %
 
 i N 
 
 his Laws, $$. 
 
 tits of the fir ft ages defcribed, 
 29. 
 
 and Outland, the distinction 
 of, 86. 
 
 fment before a grand jury, 345. 
 
 re to church livings claimed 
 by the pope, in all the countries of 
 # Europe, 340. 
 
 Injiitution of tythings, hundreds, and 
 counties, 1 12. 
 
 lents s feudal, qoo. Of non- 
 entry, ib. Of relief, 201. Of 
 wardlhip, ib. Of marriage, ib. 
 Of aids and benevolence, 202. Of 
 efcheat, ib. Of fines of aliena- 
 tion, ib. 
 
 of court, and of chancery, 
 their origin, 460. The number 
 of the former four., of the latter 
 ten, 46 t. Fafhionable feminaries of 
 education, ib. Their declenfion, 
 its canfes, 466, 7. 
 
 Impeachment, the right cxclufively 
 of the commons, 402, 3. 
 
 Imperial procurator, his office, 14. 
 
 Imperial chamber of Germany, how, 
 and of whom constituted, 427. 
 
 Influence of the crown, how extended 
 under the reign of Henry VII. 
 503. By the improvements of 
 the manufactures, and the increafe 
 of the royal boroughs, 504, 5, 
 6. By various occurrences 
 which preceded his accefiion to 
 the throne, ib. By his perfbnal 
 characVr, ib. By the abolition 
 of entails, 510, 11. By the ex- 
 tenfion of the royal proclama- 
 tions, 515. Under Henry VI 1 1. 
 
 D E X. 
 
 by the progrefs of the reformation, 
 526. By the revival of letters, 527. 
 By the progrefs of luxury, 528. 
 By the refinement of the arts, 529. 
 Its elevation at the death of this 
 monarch, 537. 
 
 Ireland, original fituation of, 278. 
 
 Joufts, a fpecies of private tourna- 
 ments, 76. 
 
 Italy fubjugated by the Oftrogoths, 
 and afterv/ards by the Lombards, 
 58. Divided by Auguftus into 
 eleven regions, 67. 
 
 Juvenal quoted, 17. 
 
 v pedanius of the Romans, who, 
 440. 
 
 Judges, the falary of, its neceflity and 
 commencement, 222. 
 
 Judgment of his peers fecured to 
 every Englifhman by the great 
 charter of liberty, 286. 
 
 Judicial combats, whence, 75. 
 
 Jujlinian the emperor, a law of his, 
 231. 
 
 Juflice, ordinary courts of, after the 
 Norman conqueft, 315. 
 
 Juftices of the peace, when created 
 in England, 434. In Scotland, 
 
 435- 
 Juries, or jurymen, their origin, 123. 
 Their office, 215. Grand and petty, 
 defcribed and diftinguifhed, 435. 
 
 JurifditTwn, ecclefiaftic, its progrefs, 
 330. Interferes with the province 
 of other courts, 331. In tythes, 
 legacies, and marriages, 332, 3, 
 4. Decides on the legitimacy of 
 children, 335. Prefcribcs to the 
 administration of I aft wills, ib. 
 
 Vindicates
 
 I N D 
 
 Vindicates the claims of widows 
 and orphans 336. Its capacities or 
 powers, ib % 
 
 X. 
 
 K. 
 
 Keeper of the King's confciencc, who, 
 160. 
 
 Killing game, a branch of the royal 
 prerogative, 292. 
 
 Kingly Power, a view of, from 
 Edward I. to Henry VII. 343. 
 Why lefs rapid in England than 
 France, 346. Deviations in the li- 
 neal fucceflion to the crown more 
 frequent in the one than the other, 
 347. Forfeiture of Normandy by 
 the former, and its acceflion to 
 the latter, 348. Different fitua- 
 tion of the two countries, 349. 
 Increafed by the addrefs of Ed- 
 ward I. 350. Declines under the 
 reign of Edward II. 351. Is 
 iupported and augmented by 
 Henry IV. and Henry V. lan- 
 guishes under Henry VI. and 
 finally triumphs in confequence 
 of the conteft between the two 
 houfes of York and Lancafter, 
 
 King's Bench court, when and by 
 whom eftablifhed, 425. 
 
 King's advocate of Scotland, for what 
 purpofe appointed, 446. 
 
 Knigkts of jhires, when firft intro- 
 duced to parliament, 377. In 
 what manner elected, 407. 
 
 Knight errant, his manners and 
 puifuits, 83. 
 
 L. 
 
 Landed property, how acquired by 
 the Saxons, 50. 
 
 Legacies, how bequeathed to the! 
 church, 95. 
 
 Legiflation, the power of, when af- 
 fumed by the Commons, 415. 
 
 Leolff, a robber, his temerity, 189. 
 
 Law, civil and canon, taught at 
 both univerfities, 460. 
 
 Livy, the Roman hiftorian, quoted, 
 187. 
 
 Linen manufacture, its origin, 490. 
 
 Literature of the ancient Britons, 16". 
 
 Loans, an expedient for raifing mo- 
 ney, 517. 
 
 Love fuppofes a ftate of refinement 
 not compatible with extreme bar- 
 barifm or luxury, 81. 
 
 Lords of particular diftricts objects 
 of jealoufy to the crown, 184. 
 
 Lurdane or Lord-dane, a term of re- 
 proach, 179. 
 
 Lye, the giving of which why fb 
 generally refented, 75. 
 
 Lyttelton's Hiftory of Henry Ilrquo- 
 
 ted, 410. 
 
 M. 
 
 Manufactures and mechanical arts 
 introduced, 106. Their pre^iefs 
 and improvement, 118, 19. ac- 
 quire peculiar advantage from the 
 Normans, 371. Accelerated by 
 the convenience of water carriage, 
 4 E » 488.
 
 488. An effect of inland trade, 
 490. Linen and woollen, their 
 origin, 491. The fuccefs of, pro- 
 duces improvement in agricul- 
 ture, 497. 
 
 Manufactures of the ancient Britons., 
 16. 
 
 Mariners compafs, difcovery of, ad- 
 vantageous to commerce, 493. 
 
 Marriage, why conftiruted a ficra- 
 ment, 233' Regulated by certain 
 degrees of confanguinity, on what 
 account, 34. 
 
 Mary, queen of England, created ten, 
 and renewed the ancient privileges 
 of two boroughs, 505. Her more 
 reign, intolerant principles, and 
 packed parliament, 538. 
 
 Mayors of 'the palace , in France, who, 
 164. Their ambition, ib. 
 
 Moors, the confequences of their ex- 
 tirpation in Spain, 499. 
 
 'Martial law, its origin, 522. 
 
 Morton, his fork or crutch, 517. 
 
 Mechanics of the ancient Britons, 16. 
 
 Monafteries, their origin, 97. By 
 whom and when eftabliflied, 149, 
 Abolifhcd in England, 593. 
 
 Monuments of Roman opulence and 
 grandeur erafed, 48. 
 
 Monarchy, feudal, explained, 3. 
 
 N. 
 
 Nations in a ftate of barbarifm and 
 
 migration, 33, 34. 
 Naval militia explained, 501. 
 Niji prius, the chief object of, 432. 
 
 N D E X. 
 
 Normandy, the duchy of mortgaged 
 
 for ten thou fund marks, 270. 
 
 Barons of, their insurrection 268. 
 Nuns, when and by whom permitted 
 
 to decline the jurifdiction of laic 
 
 judges, 231. 
 
 O. 
 
 Oath of purgation explained, 217, 
 
 Obftinacy defcribed, 357. 
 
 Offa, his laws, 55. 
 
 Officers of the king's court, who, 
 316, n. 
 
 Oyer and Terminer explained, 432. 
 
 P. 
 
 Pares curiae, 215. 
 
 Pandefis of Juftinian, when difco- 
 vered, 456. Whether the rapid 
 cultivation of the civil law, in 
 the twelfth century, was owing 
 to that event, 457, 8. 
 
 Packing the Houfe of Commons, firft 
 inftance of, 357. 
 
 Parliament, its commencement, 301* 
 compofed of fuch as were mem- 
 bers of the ancient Wittenage- 
 mote, ib. Impofe taxes, 306. 
 Interfere in regulating the cuftoms 
 and other duties, 309, 10. For- 
 merly convened at the three ftate 
 feftivals, Chriltmas, Falter, and 
 "W hitfuntide, 310. AiTemble at 
 the king's fummons, 31 1. Call- 
 ing and diflblving of, the prero- 
 gative of the crown, ib. Pro~ 
 tedts the fubject from the in- 
 trodu tion of a French govern- 
 ment,
 
 I 
 
 N 
 
 D 
 
 E 
 
 X. 
 
 merit, under the reign of Edward 
 III. 354. Infill: upon a change 
 of adminiftration, .355. Impeach 
 the minifters of Richard II. 356. 
 Hiftory of, from Edward I. to 
 Henry VII. 367. Its two houfes in- 
 dependent of each other, and pof- 
 felTed of a diftincT: voice, 396. A 
 court of review, 402. Its annual 
 meeting fecured, 520. Extreme 
 fervility to Henry VIII. 535. 
 
 Patronage of the church the fource 
 of its power, 338, 9. Eftablifh- 
 ed by Gregory the Seventh, and 
 much difputed, 339, 40. 
 
 Peace and war, the right of declar- 
 ing, where lodged bv the confti- 
 tution, 304. 
 
 Patriarch 3 his primitive office, 98. 
 More enterprifing in Rome than 
 Conftantinople, 103. 
 
 People, how prefent in the ancient 
 Wittenagemote, 234. 
 
 Pleas Common, court of, when and 
 by whom eftablifhed, 415. 
 
 Peers, the houfe of, poffefs fupreme 
 judiciary power, 400. _ Are en- 
 trufted with the guardianfhip of 
 the people's lives and fortunes, 
 402. Every bill affecting their 
 own rights, originates with them- 
 felves, 404. 
 
 Petty Juries, their nature, 435. Hif- 
 tory of their origin, formation, 
 and powers, 436, 7, 8, 9. Obtain 
 in all the courts of Weftminfter, 
 ib. Why not in parliament, 439. 
 No traces of among the nations 
 of antiquity, 440. Excluded from 
 the courts of France, and the ci- 
 vil tribunals of Scotland, and 
 
 why, 441, A- 2 ' Ecclefiailic courts 
 of England not carried on by ju- 
 ries, 442. Admitted in the err 
 nal law of Scotland, and on what 
 account, 453. Why retained in fo 
 much purity in England, 443, 4. 
 
 Philip Augujlus, king of France, 
 claims the Norman dominions, 
 
 283. 
 
 Primogeniture, the right of, whence 
 derived, 185. How applied by 
 the owners of landed property 
 under the feudal fyftem, 373. 
 
 Privy council, its inftitution, 319. 
 
 Its members the fame as in the 
 
 aula regis, 320. 
 Property, its influence accumulated 
 
 in the hands of the king, 2. In 
 
 land, how acquired, 50. 
 
 Philip II. of Spain accelerates the 
 progrefs of commerce, manufac- 
 tures, and the arts, by his cruelty, 
 494. 
 
 Prejentment to grand juries, what, 452. 
 
 Provinces, Roman, defcribed, 645, 6. 
 
 Prophejying prohibited under the 
 reign of queen Elizabeth, 549. 
 
 Poetry, Celtic, whether genuine, 279. 
 
 Poll Tax, 1 4. 
 
 Pope, his power of nominating all 
 the dignified clergy abolilhed, 342. 
 Loft his authority in countries 
 moft diftant from Rome, 530. 
 Where trade and manufactures 
 made moft progrefs, 531. When 
 notions of liberty were moft eafily 
 extended, 532. 
 
 Population of England, 1 1. 
 
 Porteous Roll, in Scotch law, what, 
 452. 
 
 4 E 2 Power,
 
 I 
 
 N 
 
 D 
 
 Fewer, political, its rife and pro- 
 
 grefs, 2. 
 Powers executive, and judiciary, dif- 
 
 tinguifhed, 221. 
 
 Purveyance, the nature of, defined, 
 518. 
 
 Quefiion, a party one, 137. What 
 enabled the Roman Pontiff to re- 
 tain in obedience one half of his 
 dominions, while he loft the other, 
 
 530. 
 
 R. 
 
 Reformation, its caufes, 526. EfFecls 
 upon the influence of the crown, 
 ib. 
 
 Richard I. his fhort reign, 281. 
 
 Richard II. his impotent govern- 
 ment, 355. He is defeated 
 battle, and his minifters are 
 impeached, 356. He divides par- 
 lument into lords and commons, 
 and in both obtains a majority, 
 357. Caufes his uncle the duke 
 of Gloucefter to be murdered, ib. 
 Is lulled into fecurity, 358. Sub- 
 fcribes an inftrument of refigna- 
 tion, and is folemnly depofed by 
 the fufifrage of both houfes, 359. 
 
 Rife of the court of chancery, 469. 
 
 Robert, eldeft fon of William the 
 Conqueror, fupplanted by his 
 brother, 267. Succeeds however 
 Lv his father's will to the duchy 
 of Normandy, ib. From thence 
 he collects an army, and invades 
 
 E X. 
 
 England, 26S. Engages in the 
 crufades, and mortgages his 
 duchy, 27c. Makes war on 
 Henry, 273. Lofes at once his 
 dominions and liberty, 274. Re- 
 mains twenty-eight years, and 
 dies at laft, a prifoner in England, 
 ib. 
 
 Revenue of the crown creates its own 
 increafe, 344. How raifed, 307, 
 8, 9. Independent of the peo- 
 ple, ib. Augmented by fcutages, 
 hydages, and talliages, ib. 
 
 Rome, its downfall, 7. Its fimple 
 form of government, ib. Op- 
 prefiions by its provincial gover- 
 nors, 8. Its means of civilizing 
 the nations, 9. Its attention to 
 the diftribution of juftice, 11. 
 Declenfion of its military prow- 
 efs, ib. 
 
 Round Tables, the origin and utility 
 of, 76. 
 
 Runnymede, the great charter of, 284. 
 
 S. 
 
 Saxon auxiliaries, their intrigues, 
 treachery, and fuccefs againft the 
 ancient Britons, 42, 3. Their 
 improvements- in the arts of peace 
 and feciety, 47. Divided into 
 Angles, Jutes, and Saxons, and 
 fettled in various parts of England, 
 49. How they acquired property 
 in land, 50. Fortify their 
 towns, and cultivate the focial 
 virtues, 51. Individually accu- 
 mulate influence. 52. Unite un- 
 der Egbert, $3. Effects of this 
 revolution on civilization, 54. 
 
 Their
 
 I 
 
 N 
 
 D 
 
 X. 
 
 Their "converfion to Chriftianity, 
 ro8. Rated according to the ex- 
 tent of their lands, 147. 
 
 Saxon fhore, count of, 20. 
 
 Savages pofiefs more fortitude than 
 courage, 33. 
 
 Stutage explained, 278. 308. 
 
 Seeds of the Britifh conftitution not 
 found in the woods of Germany,4i. 
 
 Seneca, the philofopher, his avarice 
 
 15- 
 Sbakefpeare quoted, 462. 
 
 Shires , their derivation, 117. 
 
 Sheriff, office of, why inftituted, 
 195. 
 
 Spain over-run by a branch of the 
 
 Wifigoths, 57. 
 
 State of property under the fettlement 
 of the Saxons in Britain, 84. 
 
 Star- chamber, its origin and inftitu- 
 tion, 321. More particulars of, 
 521. 
 
 Stephen, grandfon to William I. af- 
 fumes the government, 275. Pur- 
 chafed the crown by concefiions 
 to the barons, 347. Is driven 
 from the throne by Henry lbn of 
 Matilda., 275. 
 
 Stuart, Dr. quoted, 384. 
 
 Smith, Sir Thomas, his opinion op- 
 pofed to that of Hume, 563. 
 
 Sovereign, ftate of, among the An- 
 glo-Saxons, 157. Originally the 
 heretoch, or duke, 152. Com- 
 manded the forces in battle, 153. 
 SuppreiTed tumults, ib. Piefided 
 in the national afTemblies, 154. 
 Affumed the executive part of 
 government, 155. His various 
 
 prerogatives, how accumulated, 
 156. His revenues, whence, ib. 
 Management of his houfhold, 157. 
 Officers of, their refpective duties 
 and departments, ib. 
 
 Sweyn, king of Denmark, invades 
 England, 179. Revenges with 
 much feverity the mafTacre of 
 his countrymen, 180. 
 
 Subinfeudation, a term in feudal law ; 
 explained, 373. 
 
 T. 
 
 Tacitus, the Roman hiftorian, quo- 
 ted, 14. 
 
 Tafte of the ancient Britons, 16. 
 
 Talliages explained, 308.. 
 
 Taxation the prerogative of parlia- 
 ment, 306. Originates in the 
 Houfe of Commons, 398. 
 
 Taxes impofed by the Romans, 13, 
 Unknown among the Anglo- 
 Saxons, 156. 
 
 Tenths of landed property, how -ac- 
 quired by the clergy, 99. 
 
 Tenures, feudal, how occafioned, 69. 
 Of eftates changed from allodial to 
 feudal, 256. 
 
 Tha/ies, whence that application, and 
 to whom it belonged, 89. Tht? 
 greater, who, 136. The lelTer, 
 
 240. 
 
 Trade of the Britons deftroyed by 
 the Saxon conqueft, 140. Ex- 
 tent of the Britifh, before the Nor- 
 man conqueft, 210. Inland, 
 what, and how carried on, 489, 
 
 90. 
 
 Trajan
 
 an and the Antonines adopt a 
 Gvfar, 19. 
 namentS) whence* 76. 
 
 ms not reprefented in the Wit- 
 tenagemote, 141. 
 
 'fythes, the right of levying, firft efta- 
 bliihed in France, 100. How 
 early introduced, 224. Eftablifh- 
 ed in England by Alfred and 
 Athelftan, 225. 
 
 Tythings defcribed, 118, 19, 20. 190. 
 Converted into baronies, 191. 
 
 V. 
 
 Vajfalage in Europe, ts origin, 71. 
 
 Defcribed, 198, 9. 
 
 Vajfah of the crown, fix hundred in 
 number, under William the Con- 
 queror, 368. 
 
 Variations in the ftate of tythings, 
 hundreds, and {hires, 190. 
 
 Vicar of the empire explained, 164. 
 
 View of feveral reigns prior to that 
 of Edward I. 248. 
 
 Villeins diflinguifhed from vafTals, 87. 
 
 Voltaire quoted, 79. 
 
 Voltigern folicits the afliftance of the 
 Saxons, 42. 
 
 Unanimity of Englilh juries explain- 
 ed, 219. 
 
 W. 
 
 Wager of law explained, 218. 
 
 Watches, art of making, derived 
 from Italy, 488. 
 
 IVealth of Nations approved, 528. 
 
 INDEX. 
 
 l?7.\ ; taker's Hiftory of Manchefter 
 quoted, 10. 
 
 IVilUcim the Conqueror, a law of hi?, 
 130. Invades England, 251. Is 
 crowned at Weftminfter, 252. His 
 coronation oath, and moderation, 
 254. His clemency and impartia- 
 lity, ib. Great revenue and terri- 
 tory, 258. Elis reign full of in- 
 quietude, 260. A general averfioa 
 to many of his laws, 263. Inftitutes 
 the curfew, ib. Claims the feudal 
 incidents, 264. Elis exactions of- 
 fend the clergy, ib. His rigour 
 and rapacity, 265. The notion of 
 his exterminating the Englilh no- 
 bility refuted, 266, n. -His provo- 
 cations ftated, 267. 
 
 William Rufus fucceeds to the go- 
 vernment, 267. Is attacked by 
 Robert, his brother, 268. Retali- 
 ates the infult by an invafion of 
 Normandy, 269. Reconciliation 
 of the two brothers, ib. A trea- 
 ty formed between them, and 
 guarantied by the barons, ib. 
 He takes no part in the cru fades, 
 270. His avarice and irreligion, 
 ib. Accidentally flain, ib. His 
 popular character, 347. 
 
 William of Malmfbury quoted, 54. 
 
 Wites, or wife men, who, 137. 
 
 Wittenagemote, what, and on what 
 occafion affembled, 52. Circum- 
 fbances of, 132. Of whom chiefly 
 compofed, 134, 5, 6, 7, 8, 9. Its 
 convention defcribed, ib. Analo- 
 gous to the national afTemblies in 
 other parts of Europe, ib. The 
 various prerogatives it afTumes, 
 145. The qualifications of its 
 members, ib* a remarkable one 
 3 held
 
 I 
 
 N 
 
 D 
 
 held by the kings of Mercia, 143. 
 It provided for the general de- 
 fence, 146. The time of its 
 meeting fpecified, ib. It arro- 
 gated the right of declaring peace 
 and war, 147. It made laws, 
 148. It contracted the exercife 
 of die royal prerogative, ib. Re- 
 gulated the coinage, 149. Go- 
 verned the church, ib. Efta- 
 blilhed monafteries, ib. Took 
 cognizance of the fovereign's ad- 
 miniftration, 150. Conftituted it- 
 felf into the fupreme tribunal of 
 the kingdom, ib. Interfered in 
 the management of the revenues, 
 157. When and how diiTolved, 
 132. Right of fitting in, limited, 
 and to whom, 236. Confequences 
 of its diffolution, 301. Its ftrength 
 
 E X. 
 
 while unbroken, ib. Abandoned 
 by the leiTer barons, 238. On 
 what occafion its time of meeting 
 changed from twice to three times 
 a year, 242. Two kinds of, men- 
 tioned, 243. 
 
 Writers j political, a miflake of, 167. 
 
 Woollen manufactures , their origin, 
 491. Superiority of the Englilh, 
 499. Deftroyed in the Nether- 
 lands, and Spain, ib. 
 
 Wool, Englilh, its fuperlative qua- 
 lity, 495> 6 - 
 
 Wolfey, cardinal, his abortive inter- 
 ference in the debates of parlia- 
 ment, 534. 
 
 JVcad, a plant ufed in dying, prohi- 
 bited by queen Elizabeth, 549, 
 
 I N I
 
 UNIVERSITY OF CALIFORNIA. LOS ANGELES 
 
 THE UNIVERSITY LIBRARY 
 
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 MAY 1 1955 
 
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 JMlVtfUSi ii of CALIVQKNIA 
 
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