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• Introduction
• A Note On the Text
• Acknowledgments
• Abbreviations Used In the Notes
• An Historical View of the English Government
• Advertisement
• To the Right Honourable Charles James Fox. 1
• Introduction
• Book I: Of the English Government, From the Settlement of the Saxons In Britain to the Reign of William the Conqueror.
• Chapter I: Preliminary Account of the State of Britain Under the Dominion of the Romans.
• Chapter II: Character and Manners of the Saxons.
• Chapter III: Settlement of the Saxons In Britain.
• Chapter IV: Similarity In the Situation of the Anglo-saxons, and of the Other Barbarians Who Settled In the Provinces of the Western Empire.—how Far the State of All Those Nations Differed From That of Every Other People, Ancient Or Modern.
• Chapter V: The State of Property, and the Different Ranks and Orders of Men, Produced By the Settlement of the Saxons In Britain.
• Section I: Of the Chief Regulations Attending the Establishment of Christianity In the Roman Empire, and In the Modern Kingdoms of Europe.
• Section II: The Establishment of Christianity In Britain, Under the Roman Dominion, and In the Early Government of the Anglo-saxons.
• Chapter VI: Institution of Tythings, Hundreds, and Counties.
• Chapter VII: Of the Wittenagemote.
• Chapter VIII: State of the Sovereign In the Primitive Anglo-saxon Government.
• Chapter IX: Of the Principal Events From the Reign of Egbert to the Norman Conquest.
• Chapter X: Variations In the State of Tythings, Hundreds, and Shires. 1
• Chapter XI: Changes Produced In the Condition of the Vassals, and of the Peasants.
• Chapter XII: The Influence of These Changes Upon the Jurisdiction and Authority of the Feudal Lords.
• Chapter XIII: Of Ecclesiastical Courts.
• Chapter XIV: Alterations In the State of the Wittenagemote.
• Book II: Of the English Government From the Reign of William the Conqueror, to the Accession of the House of Stewart.
• Chapter I: The Norman Conquest.—progress of the Feudal System.—view of the Several Reigns Before That of Edward I.—THE Great Charter, and Charter of the Forest.
• Chapter II: In What Manner the Changes Produced In the Reign of William the Conqueror Affected the State of the National Council.
• Chapter III: Of the Ordinary Courts of Justice After the Norman Conquest.
• Chapter IV: Progress of Ecclesiastical Jurisdiction and Authority.
• Chapter V: General View of the Kingly Power, From the Reign of Edward I. To That of Henry VII.
• Chapter VI: History of the Parliament In the Same Period.
• Section I: The Introduction of the Representatives of Counties and Boroughs Into Parliament.
• Section II: The Division of Parliament Into Two Houses, and the Peculiar Privileges Acquired By Each House.
• Section III: Concerning the Manner of Electing the National Representatives, and the Forms of Procedure In Parliament.
• Chapter VII: Alterations In the State of the Ordinary Courts of Justice.
• Section I: Establishment of the Courts of Common Law, At Westminster.
• Section II: Of the Petty Jury—and the Grand Jury.
• Section III: Circumstances Which Prevented the Civil Law From Being So Much Incorporated In the System of English Jurisprudence, As In That of Other European Countries.
• Section IV: The Rise of the Court of Chancery.
• Chapter VIII: Of the Circumstances Which Promoted Commerce, Manufactures, and the Arts, In Modern Europe, and Particularly In England.
• Chapter IX: Of Henry the Seventh.—circumstances Which, In His Reign, Contributed to the Exaltation of the Crown.—review of the Government of This Period.
• Chapter X: Of Henry the Eighth.—the Reformation.—its Causes.—the Effects of It Upon the Influence of the Crown.
• Chapter XI: Of Edward the Sixth—mary—and Elizabeth.—general Review of the Government.—conclusion of the Period From the Norman Conquest to the Accession of the House of Stewart.
• Conclusion of the Period, From the Norman Conquest.
• Volume Iii
• Introduction
• Book I: Of the English Government, From the Accession of James the First, to the Reign of William the Third.
• Chapter I: Review of the Government of Scotland.
• Section I: Of the Government of Scotland, From the Time When Britain Was Abandoned By the Romans, to the Reign of Malcolm the Second.
• Section II: Of the Government of Scotland, From the Reign of Malcolm the Second, to the Union of Its Crown With That of England.
• Section III: Of the Government of Scotland, From the Union of the Scottish and English Crowns, to That of the Two Kingdoms.
• Chapter II: Changes In the Political State of England From the Accession of the House of Stuart—the Advancement of Commerce and Manufactures—institutions For National Defence—different Effect of These In Britain, and Upon the Neighbouring Continent.
• Chapter III: In What Manner the Political System Was Affected By the State of Religious Opinions.
• Chapter IV: Progress of the Disputes Between the King and Parliament, During the Reigns of James the First, and of Charles the First.
• Section I: The Reign of James the First; and That of Charles the First, From His Accession to the Meeting of the Long Parliament.
• Section II: Of the Reign of Charles the First, From the Meeting of the Long Parliament to the Commencement of the Civil War.
• Section III: Of the Reign of Charles the First, From the Commencement of the Civil War to His Death.
• Chapter V: Of Oliver Cromwell, and the Protectorate.
• Chapter VI: Of the Reigns of Charles the Second, and James the Second.
• Chapter VII: Of the Revolution-settlement; and the Reign of William and Mary.
• Book II: Of the English Government From the Reign of William the Third to the Present Time.
• Chapter I: Review of the Government of Ireland.
• Chapter II: Political Consequences of the Revolution—subsequent Changes In the State of the Nation—influence of the Crown.
• Chapter III: The Advancement of Manufactures, Commerce, and the Arts, Since the Reign of William III.; And the Tendency of This Advancement to Diffuse a Spirit of Liberty and Independence.
• Chapter IV: How Far the Advancement of Commerce and Manufactures Has Contributed to the Extension and Diffusion of Knowledge and Literature.
• Chapter V: The Separation of the Different Branches of Knowledge; and the Division of the Liberal Arts and of the Sciences.
• Chapter VI: The Effects of Commerce and Manufactures, and of Opulence and Civilization, Upon the Morals of a People.
• Section I: Of Courage and Fortitude.
• Section II: Of Sobriety and Temperance.
• Section III: Of Justice and Generosity.
• Chapter VII: The Progress of Science Relative to Law and Government.
• Chapter VIII: The Gradual Advancement of the Fine Arts—their Influence Upon Government.
• Section I: Of Poetry; Or Those Compositions Which Are Primarily Calculated For Mere Entertainment.
• Part I: Of Epic Poetry; Or What Is Related By the Poet In His Own Person.
• Part II: Of Dramatic Poetry.
• Appendix 1: Authorities Cited In the Text and In Millar’s Notes
• Appendix 2: Main Historiographical Sources For Millar’s Narrative to 1688

SECTION II

The Establishment of Christianity in Britain, under the Roman Dominion, and in the early Government of the Anglo-Saxons.

Christianity made its way into Britain, in the same gradual manner as into all the other parts of the Roman empire. It is supposed to have obtained a permanent footing in the country, under the government of Marcus Aurelius,11 at which time a bishop of Rome is said, upon the application of Lucius, a British king,12 to have sent over, to this island, several learned men, to preach and propagate the gospel. But whatever degree of credit may be due to this account, it is certain that, in the reign of the emperor Constantine,13 this religion was taken under the protection of<160> government, in Britain, as well as in all the other provinces of Rome; and that it continued in this situation until the island was abandoned by the Romans. During this period the Christian church had received the same form as in all the other parts of the empire. Particular clergymen had obtained a settlement in small districts or parishes, according to the number and situation of the inhabitants.* Many of these districts were united under the inspection of a bishop, the minister of a cathedral church; and a metropolitan, or archbishop, was exalted over the whole clergy of a province. But though it is probable that this ecclesiastical establishment was modelled according to the situation of the great towns, and the chief divisions introduced by the civil government of the country; yet neither the number of the British prelates, nor the churches in which they were settled, appear to be known with any degree of certainty.† Men-<161>tion is made of three archbishops, who, it should seem, corresponded to three of the provinces, in the late arrangement which the Romans made of their British territories. The first resided in London; the second in York; and the third, whose jurisdiction extended over Wales, appears, at different times, to have had a different place of residence.* That the Hierarchy had early acquired a settled condition in Britain, and that its bishops held some rank among those of other churches, is evident from their sending representatives to the council of Arles, called in the year 314, and to other remarkable councils, that were afterwards convened in different parts of Christendom.†

The arrival of the Saxons in this island was productive of great disorder in the religious, as well as in the civil establishment. In those parts of the country which fell under the dominion of the Saxons, the Christian churches<162> were frequently demolished; the public worship was interrupted; and the clergy, in many cases, could neither be provided with a maintenance from the public, nor continue the regular exercise of their jurisdiction. The altars of Thor, and Woden, were often substituted for those of Jesus Christ; and the life and immortality which had been brought to light by the gospel, were obscured and eclipsed by the fictions of Hela’s dreary abode, and Valhalla’s happy mansions, where heroes drink ale and mead from the sculls of enemies whom they have slain in battle.14

Wherever the ancient inhabitants were able to preserve their independence, their ecclesiastical policy remained without any alteration. This was particularly the case in the whole western part of the island, from the southmost 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 settlements, there is ground to believe that, after the tumult and violence attending the conquest had subsided, the two nations frequently maintained an amicable<163> correspondence, were in some measure united in one society, and enjoyed the free exercise of their religion.* As their long neighbourhood produced, by degrees, a communication of civil institutions and customs, it was likewise, in all probability, attended with some approximation of religious opinions and observances; and in this particular, it can hardly be doubted that the regular and well-established system of Christianity, to say nothing of its genuine merit in other respects, would have great advantage over the unformed and loosely connected superstition of the barbarians. In the ardour of making proselytes, and in the capacity of propagating their tenets, the professors of the former must have greatly surpassed those of the latter; and it was natural<164> to expect that the Saxons in England would at length follow the example of all the rude nations, who had settled in the provinces upon the continent, by adopting the religion of the conquered people.

What laid the foundation for a general and rapid conversion of the Saxons, was an event, which happened about an hundred and fifty years after their settlement in Britain. Ethelbert, the sovereign of Kent, having married Bertha,15 the daughter of a king of the Franks; this princess, already a Christian, made open profession of her religion, and brought over a French bishop to reside at the Kentish court. This incident suggested to the Roman pontiff, Gregory the great,16 a man of unbounded ambition, the idea of converting the Anglo-Saxons to Christianity, and, at the same time, of establishing his authority over the British clergy, who had hitherto neither acknowledged the papal jurisdiction, nor yielded an exact conformity to the tenets and observances of the Roman church. For these two purposes, he gave a commission to Augustine,17 one of the monks of a convent at Rome, with about forty assistants, to preach and propagate the gospel in<165> Britain.* By the industry of these, and of succeeding missionaries, the Christian religion was, in the course of about half a century, established universally in all the kingdoms of the Heptarchy. The authority of the church of Rome went hand in hand with Christianity; and though the British clergy struggled for a considerable time to maintain their independence, and their peculiar doctrines, they were at length borne down by the prevailing system, and reduced into a subordinate branch of the Roman Hierarchy.†

The conversion of the Anglo-Saxons has been commonly regarded as an entirely new plantation of the gospel, in the territories which fell under the dominion of that people; and it seems to be imagined, that when Augustine entered upon his mission, there were no traces of Christianity remaining in those parts of the country. This opinion appears to have arisen, partly from the supposition, that the settlement of the Anglo-Saxons was<166> accompanied with a total expulsion of the ancient inhabitants, and partly from a disposition in subsequent ecclesiastical writers to undervalue that system of church-discipline and faith which had obtained in Britain, before it was fully subjected to the papal jurisdiction.

With respect to the general extirpation of the Britons, it seems to be a perfect chimera. Neither is there any reason to believe that they underwent any persecution from the Saxons upon account of their religion. The rude polytheism, professed by those conquerors, does not seem to have taken a firm hold of their minds, or to have inspired much animosity against foreign deities or modes of worship; and if, during the immediate conquest of the country, the British clergy were sometimes plundered or massacred, 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 enterprize, could not be expected to shew much regard to the distinction of characters or professions. The effect of these disorders, however, was only partial and temporary. It appears that, even in those parts of the country<167> where the Saxons had remained the longest, the ancient church buildings were far from being entirely destroyed; for we learn from Bede,18 that, upon the arrival of Augustine in Kent, he first preached in a church, which had been erected by the Romans in honour of St. Martin, and that soon after, when the monarch of that kingdom had been baptized, orders were given to build or repair churches, for the accommodation of the Christian missionaries.*

Upon the full restoration of Christianity in those parts of the country where it had been corrupted by the mixture of Saxon superstition, the religious establishments, which had been introduced under the dominion of the Romans, and which had always been preserved in the unconquered parts of the island, were completely revived; with this difference, that the British churches, in the degree of their submission 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 lost; more especially in those districts,<168> which the Anglo-Saxons had but recently subdued when they embraced the religion of the former inhabitants.†

The number of bishops, it is natural to suppose, and the extent of their jurisdiction, were likewise directed, in some measure, by the antecedent arrangements in the provincial government of Britain; though, from the changes produced in the state of the country, many variations were, doubtless, become necessary. Of the three archbishops, who had formerly acquired a pre-eminence over the whole of the British clergy, one appears to have been sunk by the disjunction of Wales from the English monarchy; so that there came to be only two metropolitans under the Saxon establishment. The archbishop of the northern department resided, as formerly, at York; but the seat of the other, from the residence of Augustine, who obtained the chief ecclesiastical dignity, was transferred from London to Canterbury.†

The revenue for maintaining the clergy was the same in Britain as in all the churches<169> acknowledging the jurisdiction of the Roman pontiff. It consisted, partly of contributions levied in every parish; and partly of landed estates, which the superstition of the people had led them to bequeath for pious uses: but the former of these 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.<170>

CHAPTER VI

Institution of Tythings, Hundreds, and Counties.

In every nation it must be a great object to provide for defence against the invasion of neighbouring states; but in a rude age, the provisions requisite for this purpose are few and simple. The great body of the people are soldiers, willing and ready to take the field whenever their service is necessary. From the mutual depredations frequent among a rude people, they become inured to hardships, and familiar with danger; and having little employment at home, they are glad to embrace every opportunity of acquiring military reputation, or of enriching themselves with the spoil of their enemies. Every person, therefore, as soon as he is capable of using arms, is accustomed to the use of them, and acquainted with the simple manner of fighting practised among his countrymen; so that, as the chief magistrate finds no difficulty in raising troops upon any occasion, he is put to little or no trouble in training and preparing<171> them for those military operations in which they are to be engaged.

The appointment of certain leaders in particular districts, to collect the forces upon any emergency, and to command them in time of battle, seems to be all that is wanted, in such a situation, for putting a whole kingdom in a complete posture of defence. A few regulations of this nature, arising obviously from the circumstances of a barbarous people, were, at an early period, established among the Saxons in England, as well as among their neighbours upon the continent.

Every feudal superior was the military leader of his own dependents; but upon the settlement of the Saxons in Britain, the landed estates acquired by the greater part of individuals were at first so small as to render the number of their vassals inconsiderable; and the allodial or independent proprietors were therefore under the necessity, amidst the disorder that prevailed in those times, of associating for mutual protection and security. Different families, connected by the ties of consanguinity, or otherwise, found it expedient as well as agreeable to settle in the same neighbourhood,<172> that they might on all occasions be in a condition to assist one another. Thus the inhabitants came to be distributed into villages of greater or less extent, according to circumstances; and the members of every village, accustomed from their infancy to live together, and finding themselves united by a common interest, were led to acquire the strongest habits of intimacy and attachment. These little societies received the appellation of vills, towns, or free-bourgs.

As these villages were formed upon the plan of defence, and were frequently employed in the exercise of hostilities, there naturally arose in each of them a leader, who by having the privilege of conducting their military enterprises, obtained also a degree of authority in the management of civil affairs. To this person the name of head-borough or borsholder (a word supposed by some to be contracted 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, or petty districts; and hence they were called tythings or decennaries, as their leader was denominated a decanus or tything-<173>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 ecclesiastical institutions.*

As, upon the first establishment of Christianity under the Roman dominion, the form of church government was in some respects modelled by the political constitution of the empire; so the civil government, in the modern states of Europe, was afterwards regulated in many particulars according to the system of ecclesiastical policy. When the western provinces of the Roman empire were conquered by the barbarous nations and erected into separate kingdoms, the conquerors, who soon embraced the Christian religion, and felt the highest respect for its teachers, were disposed in many cases to improve their own political institutions, by an imitation of that<174> regularity and subordination which was observed in the order and discipline of the church.

In the distribution of persons, or of things, which fell under the regulation of the Christian clergy, it appears that, in conformity to the customs of the Jewish nation, a decimal arrangement was more frequently employed than any other. By the Mosaic institution the people were placed under rulers of thousands, of hundreds, of fifties, and of tens. A Jewish synagogue, corresponding to a modern parish, appears at a subsequent period to have been put under the direction of ten elders, of whom one became the chief ruler of that ecclesiastical division.* A tenth part of the annual produce was appropriated for the support of the Levites, as the same proportion of ecclesiastical livings was claimed by the high-priest. Hence we<175> find that in modern Europe, the members of a cathedral church, as well as those of a monastery, were divided into ten branches, each of which was put under a director, and the tenth of these persons, or decanus,1 was intrusted with a superintendence of all the rest.† Hence too the modern institution of tythes, and the pretensions of the Roman pontiff, the Christian high-priest, to the tenth of all the revenues of the clergy.‡

When the western part of Europe, upon the dissolution of the Roman government, had been reduced into a state of barbarism, by which the inhabitants were necessarily divided into separate villages or small towns, each of<176> those little communities was naturally formed into one congregation, and annexed to a single church. The same people who joined in public worship were also combined in their military expeditions; and the same arrangement, under different rulers, that had been adopted in the former capacity, was easily communicated to them in the latter. This division of a village, with the corresponding territory belonging to its inhabitants, into ten little wards or districts, probably arose in those European kingdoms which had first 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 state of anarchy and confusion.

But while the members of every Anglo-Saxon town or village were thus intimately united, a connection of the same sort was gradually introduced between the inhabitants of a larger territory. Those who belonged to different towns or villages in the same neighbourhood had frequently occasion to assist one another against a common enemy; and in consequence of many joint expeditions, directed by a sense of mutual interest, were induced to<177> form a regular association, under a permanent military officer.

The extent of these associations was at first perhaps arbitrary and variable, but was at length settled in an uniform manner, according to the system of ecclesiastical policy which prevailed both in England and in other European kingdoms. Upon the principle which has been formerly mentioned, every ten churches of a diocese were united under an ecclesiastical inspector, who in England, in contradistinction to a similar officer belonging to a cathedral or monastery, was called a rural dean.* In like manner every ten villages or tythings, which were of the same extent with parishes, formed a military district, which obtained the appellation of a hundred, and its commanding officer that of a centenarius or hundreder.†

The connections of society being still farther extended, the members of different hundreds<178> were also associated for their common defence, and fell under the direction of a greater officer, called the heretoch, a title which, in the Saxon language, is synonymous with that of duke, and which appears to have been originally given to some of those leaders in the Heptarchy, who afterwards assumed the title of kings. The districts belonging to these heretochs, which were greater or less according to accidents, and had been varied on different occasions, were gradually ascertained and established, so as at length to correspond entirely with the territories that were placed under the ecclesiastical jurisdiction of the several bishops. These districts were called shires;2 and the officer who presided over them seems, at a later period of the Anglo-Saxon government, 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 persons, intrusted with different departments; and that the former was the chief military, as the latter was the chief civil officer of the shire.

In some parts of the country a smaller number of hundreds were associated, so as to com-<179>pose an intermediate district, called lathe, rape, or trything; and several of these districts were united in forming a shire. But this arrangement, peculiar to some shires, and depending upon the same principles with the divisions already mentioned, is of little consequence in our present view of the subject.

Such were the military institutions of the Anglo-Saxons; which appear to have arisen almost imperceptibly from the rude state of the country, from the natural divisions of the people, and from their progressive attempts in forming more extensive and permanent associations.

From the great deficiency of Saxon records, there are, concerning these institutions, many particulars, which remain in obscurity, and which have given rise to various disputes and conjectures. The earliest historians, who have said any thing upon this subject, appear, for the most part, to have lived at a period when these institutions had undergone many variations, and in several respects had fallen into disuse. They were, at the same time, ignorant annalists of a barbarous age; and their accounts, which appear to have been chiefly derived<180> from tradition, are short and unsatisfactory.3 It seems to have been uniformly imagined by these authors, that the institutions above mentioned were peculiar to the government of the Anglo-Saxons; and that they were introduced by the singular policy of king Alfred, to whom the admiration of English writers has commonly ascribed every important regulation during the Saxon period. But it is now generally known, that the establishment of tythings, hundreds, and shires, 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 settled in the provinces of the western empire.

With respect to the establishment of tythings and hundreds, it has been the general opinion that the former consisted of ten families, and that the latter, of course, were composed of an hundred families. That such was the exact number of families comprehended in each of these divisions, the respective names affixed to them appear to have been thought sufficient evidence.

But when we examine this opinion, after all the pains that have been taken by late writers<181> to render it plausible, it seems to be attended with insuperable difficulties. To divide the whole people into military parties of ten and of an hundred families, without any regard to their places of residence, would mark a degree of art and contrivance hardly to be expected in a barbarous age: not to mention that it would be a most absurd regulation, as it would frequently separate near relations, and place them under the command of different officers, instead 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 same village or neighbourhood, could not be regularly composed of ten families, nor of any given number, they must of necessity have been split and jumbled with strangers, to make up the several tythings into which the people were thus artificially divided. If such a regulation ever had place in England, we must suppose that it was introduced by a political projector, neglecting, for the sake of a finical regularity, to avail himself of the usual sources of authority in a rude nation, and by a legislator invested with such absolute power, as might<182> render him capable of enforcing measures diametrically opposite to the natural course of things; a supposition which is neither applicable to the character nor to the condition of the early monarchs of Britain.

As the institution of tythings, together with that of hundreds, and of shires or counties, was not limited to England, but had place in most, if not all of the feudal countries, there is good reason to believe that it was not derived from artificial or distant views of policy, suggested to any particular prince; but that it proceeded from a concurrence of circumstances in the European kingdoms, by which it was recommended to the great body of the people.

That a tything was originally the same thing with a village, and that it did not comprehend any precise number of persons or families, may be concluded from this, that in the ancient law-language of England the words vill, town, decennary, and tything, have all the same signification.* If a tything have the same meaning with a vill or town, it is surely impossible that it can signify a collection of ten families only, without relation to the place of their<183> residence. Should we, on the other hand, suppose that a tything was regularly composed of so many families, the members of the same tything must frequently have resided in different towns or villages; in which case it would sometimes be necessary, in describing or pointing out those persons, to mention the town which they inhabited, as distinct from the tything to which they belonged; and these two terms therefore, so far from being synonymous, would come, upon such occasions, to be used in direct opposition to each other.

But what puts this matter in a yet more conspicuous point of view, is an early regulation mentioned by the English lawyers, that every tything should have a church, with celebration of divine service, sacraments, and burials.† If the limits of a tything, and of a town or village, were the same, such a regulation would naturally be established. Its establishment, on the other hand, affords complete evidence that a parish and a tything were of the same extent. But how is it possible to conceive that a parish comprehended only ten families? According to this doctrine every<184> eleventh house must have been a church, and the clergy must have composed the eleventh part of the whole people.

To obviate this objection, it is held by some authors that a family is not to be understood in a literal sense, but as comprehending all the vassals and tenants of a proprietor, who in some cases were pretty numerous. Admitting, however, this explanation in its fullest extent, it will only vary, instead of removing the difficulty. It would still be in vain to expect that a village or town should always contain exactly ten of these enlarged families, or even any number of tens; so that it would often be requisite to patch up a tything from the remnants of different towns or villages; and it would follow that these outcasts did not belong to the church in their neighbourhood, but, however dispersed over the country, and intermixed with other parishes, were united in one congregation, and were provided with a separate church and minister of their own.

The establishment of tythings, hundreds, and shires, was primarily intended for the mutual defence of the inhabitants, but it was likewise rendered subservient to other very salutary<185> purposes. When the people had been assembled in those meetings to engage in a military enterprize, or upon the conclusion of it to divide their booty, they had occasion to hear complaints of the injuries and disorders committed among themselves. Every feudal superior was the natural judge of his own tenants and vassals; but when a dispute had arisen between different allodial proprietors of the same tything, there was no single person possessed of sufficient authority to terminate the difference. The parties being independent of each other in point of property, and therefore masters of their own conduct, were under no necessity, in a matter of that kind, of submitting to the orders of any individual. They acted in the same manner with respect to the exercise of their civil rights, as with relation to peace and war. In both cases they considered themselves as free men, subject to no restraints, but such as arose from the nature of their confederacy, or were imposed by their common consent.

The same motives, however, which induced a village or tything to enter into joint measures for their defence against a foreign enemy, determined them also to take precautions for<186> composing animosities and differences among their own members. Roused by the danger of a quarrel which might be fatal to their union, and which might render them an easy prey to their neighbours, they readily interposed with all their influence to reconcile the parties, and to enforce their observance of the rules of justice. A judicial power was thus gradually assumed by every tything over the allodial or independent proprietors of which it was composed. The hundred, in like manner, came to exercise a power of determining the differences between the members of the several tythings, within the bounds of that larger district; as the meetings of the shire established a similar jurisdiction over the different hundreds comprehended in that extensive territory. These courts took cognizance of every cause, whether civil or criminal; and as they enjoyed the sole jurisdiction, in the first instance, within the respective boundaries of each, they became naturally subordinate one to another; so that from the decision of the tything there lay an appeal to the hundred, and the sentences of this latter tribunal were reviewed in the greater meetings of the shire.<187>

These courts were held originally by all the allodial proprietors of each particular district; and the same persons had the same right of presiding in their judicial procedure, as when their meetings were called to deliberate upon military affairs.

It is probable that every kind of law-suit was at first determined in full assembly, and by a plurality of voices; but in the larger meetings of the hundred, and of the shire, it should seem that when the authority of those tribunals had been confirmed by custom, and their duty had become somewhat burdensome by the increase of business, convenience introduced a practice of selecting a certain number of their members, to assist their president in the determination of each particular cause. Hence the origin of juries, the precise date of whose establishment is uncertain, because it probably arose from no general or public regulation, but from the gradual and almost imperceptible changes, authorized by common usage in the several districts of the kingdom. The number of jurymen was for some time different upon different occasions; till the advantages of an uniform practice produced a general rule, which<188> determined that no less than twelve persons should be called in all ordinary causes.* <189>

Concerning the institution of tythings, there is one regulation, connected with the administration of justice, that has been much taken notice of by historians, and has excited the admiration of all political writers: the members of every tything are said to have been responsible for the conduct of one another; and the society, or their leader, might be prosecuted, and compelled to make reparation for an injury committed by any individual.

If we look upon a tything as regularly composed of ten families, this branch of its police will appear in the highest degree artificial and singular; but if we consider that society as of<190> the same extent with a town or village, we shall find that such a regulation is conformable to the general usage of barbarous nations, and is founded upon their common notions of justice.

Among barbarians in all parts of the world persons who belong to the same family are understood to enjoy a community of goods, and to be all jointly subjected to the same obligations. In those early ages when men are in a great measure strangers to commerce, or the alienation of commodities, the right of property is hardly distinguished from the privilege of using or possessing; and those persons who have acquired the joint possession of any subject are apt to be regarded as the joint proprietors of it. At the same time, when a debt is contracted by one of several persons who have a perfect community of goods, it must of necessity be discharged from the common funds; and the obligation of every individual becomes therefore a burden upon the whole society.

After a family has been enlarged, and subdivided into different branches, their possessions are not upon this account entirely sepa-<191>rated, nor their notions of common property altogether effaced. Though the different families, who are thus formed into a tribe or village, reside in different houses, their neighbourhood allows them still to maintain a promiscuous intercourse; and their situation disposes them to act in concert with each other in all their important employments and pursuits. As, in their expeditions of war and hunting, they go out in a body, so, according to the primitive state of agriculture, they labour in the field, and gather in the harvest in common; and what has been acquired by their united exertions, before it is divided among them by consent, is naturally conceived to be the joint property of all.

It is no hardship, that persons connected in so intimate a manner should be liable for the obligations of one another; and when an individual has become bound to a stranger, who cannot easily know for whose benefit the debt was incurred, it seems reasonable that the creditors should be allowed to demand payment from the community, who alone have access to distinguish the rights of their particular members.<192>

But the greater part of the debts contracted in a barbarous age arise from injuries and hostilities: for which it is usual to make atonement by pecuniary compositions: and as in such cases it commonly happens, either that the offence was originally committed by a whole village, or, if it arose from a single individual, that the quarrel was afterwards adopted and prosecuted by the other members of the community, this appears a sufficient reason for subjecting them to a share of the punishment.

Thus, by the general custom of rude nations, the vengeance of the injured party for murder and other atrocious crimes is not confined to the guilty person, but is extended to his family, and even to the whole village or tribe of which he is a member. The prosecution of claims, founded upon this general custom, makes a considerable part of the history of mankind in the early periods of society. Traces of this primitive law of nations may be discovered even in some civilized countries; where, upon account of enormous offences, the criminal, together with his innocent children, and other<193> relations, have been condemned to one common punishment.*

Among the Jews, when a person was found murdered in the neighbourhood of a city, and the murderer was unknown, it seems to have been thought that the punishment might with justice be extended to all the inhabitants; who are, upon that account, directed to perform an expiatory sacrifice. “And all the elders of the city that is next unto the slain man, shall wash their hands over the heifer that is beheaded in the valley. And they shall answer and say, Our hands have not shed this blood, neither have our eyes seen it. Be merciful, O Lord, unto thy people Israel, whom thou hast redeemed, and lay not innocent blood unto thy people Israel’s charge. And the blood shall be forgiven them.”†

When it is customary to demand satisfaction from a whole village for the highest personal injuries committed by an individual, it cannot appear surprising that the same privi-<194>lege should be claimed upon account of the ordinary violations of property.

I am assured, from the most respectable authority, that, in the villages belonging to the Highlands of Scotland, a rule of this kind has been immemorially established. The stealing of cattle was formerly the only species of theft from which the inhabitants of that country could suffer any great prejudice; and when stolen cattle could be traced within the district of any particular village, the inhabitants were liable to repair the damage, unless they could point out the track of the cattle, passing again without their territories. This law, which was founded merely upon long usage, remained in force at least as far down as the beginning of the present century.*

It was a custom, we are told, among the ancient Irish, “that the head of every sept, and the chief of every kindred, or family, should be answerable and bound to bring forth every one of that sept, and kindred under it, at all times, to be justified, when he should<195> be required, or charged with any treason, felony, or other heinous crime.”† The Irish law, in this as well as in other particulars, was probably analogous to that of the other Celtic nations.

From the code of Gentoo laws published in 1776,4 it appears that a similar regulation has been introduced among the ancient inhabitants of Indostan. If the footsteps of a thief have been traced, or if stolen goods are found, within a certain distance from any town, the thief is presumed to be concealed in it.—And whenever a robbery or theft is committed in the neighbourhood of any town or city, the head-person of that town or city is bound to make up the loss.†

Upon some parts of the coast of Guinea,5 the villages or towns, it should seem, are liable for the obligations of every sort contracted by any of their members; for we are informed, that when a person in that country neglects to pay a debt, the creditor is under no necessity of arresting the real debtor, but, in the district, where he resides, has the liberty of seizing, at<196> pleasure, such a quantity of goods as will satisfy the demand, leaving the sufferers to indemnify themselves in the best manner they can.§

About the middle of the thirteenth century it appears that the states of Germany had very generally adopted a similar practice; which is mentioned by historians as a proof of uncommon rudeness and barbarism.* <197>

The inhabitants of the same foreign country happening, at any one time, to reside in London, were formerly viewed in the same light; and any one of them might be prosecuted for the debts contracted by his countrymen. In a treaty between Edward the Second and Alphonso king of the two Castiles, it is agreed, that the merchants of Bilboa, and the other towns of Biscay, shall not for the future be arrested, nor have their goods distrained, for the debts of any Spaniard, for whom they have not become personally bound.† The small number of Spanish merchants residing in London, and the distance of their native country, made them appear as much connected as if they had been members of a single rude village or tribe.

This noted regulation concerning the Saxon tythings is therefore to be regarded as the remains of extreme simplicity and barbarism, rather than the effect of uncommon refinement or policy; and in this view, it may be observed that, in consequence of some improvement in the manners of the people, the original obligation imposed upon every tything, to<198> repair the injuries committed by any of its members, was, in a period subsequent to that which we are at present examining, subjected to certain limitations. By a law which has been ascribed 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 escapes from justice, his tythingman, with two others of the same tything, together with the respective tythingmen, and two others, out of the three neighbouring tythings, shall assemble to examine the state of the fact, and if the tything to which the criminal belongs is purged by the oath of these twelve persons, it shall be freed from the obligation to pay the damage.* The progress of government, by enlarging the general intercourse of society, contributed to diminish the peculiar connexion among the inhabitants of the same village, and made it appear an intolerable hardship, that they should, without distinction, be accountable for the misdeeds of one another.<199>

Beside the two branches of business which I have mentioned, the defence of the country and the decision of law-suits, that were canvassed in the Saxon tythings, hundreds, and shires, those meetings were accustomed to deliberate upon matters of still greater importance. They received complaints concerning such abuses in administration, or grievances, as had occurred within their several districts, and by introducing new regulations endeavoured to apply a proper remedy. Thus the heads of families or independent proprietors of every village, or tything, exercised a legislative power within their own liberties, but were liable to be controuled, in this respect, by the meetings of the hundred, which enjoyed the same power in a larger territory; and both of these were subordinate to the meetings of the shire, which possessed a legislative authority over all the hundreds of that extensive division. How the meetings of the shire were liable to be controuled by a still greater assembly, I shall now proceed to inquire.<200>

CHAPTER VII

Of the Wittenagemote.

By the gradual extension of intercourse between the different families or tribes of the Anglo-Saxons, and by the advancement of their political union, the inhabitants of larger territories were led to assemble for the regulation of their public concerns. As the freemen or allodial proprietors of a tything, of a hundred, and of a shire, determined the common affairs of their several districts, and were convened for that purpose by the tythingman, the hundreder, and the alderman; so the union of people belonging to different shires produced a greater assembly, consisting of all the allodial proprietors of a kingdom, and summoned by the king, the great military leader, and chief magistrate of the community. This national council received the appellation of the mickle-mote, or Wittenagemote.

During the continuance of the Heptarchy, each of the Saxon kingdoms had its own Wittenagemote; and there can be no doubt that<201> those national councils, though sometimes they might act in concert, were independent of one another. But when all the dominions of the Anglo-Saxons were reduced under one sovereign, the Wittenagemotes of each particular kingdom were dissolved, and there was formed a greater assembly of the same nature, whose authority extended over the whole English nation. The circumstances attending this important revolution are lost in obscurity; and= we have no means of discovering with certainty, whether it was produced by the mere influence of custom, or by an express regulation. It is probable that when Egbert had subdued the different states of the Heptarchy, the members of every separate Wittenagemote were invited to that great council of the monarchy which was then established; and that, in consequence of this, they would scarcely think it worth while to continue their attendance in those inferior meetings with which they had formerly been connected.

Of the particular class or description of persons who composed the Saxon Wittenagemotes, either in the respective kingdoms of the Heptarchy, or in the monarchy which<202> was formed from the union of these, the historians of that period have given us little or no direct information. But, from a variety of circumstances, it appears highly probable that those ancient assemblies were composed of all the members of the community who enjoyed landed estates in full property; that is, of all those who had the appellation of the Greater Thanes.

1. From the state of the country after the Saxon conquest, these persons, being independent with respect to their possessions, were masters of their own conduct, and were under no necessity of adopting public measures to which they had not consented, or upon which they had not at least had an opportunity of deliberating and giving their suffrage. Without their advice and concurrence, therefore, the king could seldom adventure to transact any important national business; and from the frequent practice of consulting them, they were gradually formed into a regular assembly, and became an established branch of the constitution. The rest of the inhabitants were either vassals, whose benefices, if not held precariously, were secured to them only for a<203> limited period; or peasants, whose condition was yet more dependent and servile. That the king should find it necessary or expedient to summon either of these classes of people to his great council, cannot easily be conceived. Their support and assistance might be expected, of course, in the execution of every measure which had been approved by their superiors; 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 usual designations given, by ancient authors, to those who sat in the Saxon Wittenagemote, seem perfectly to coincide with this idea of its constituent members. The persons present in that assembly, when they happen to be particularly specified, are commonly said to be the bishops and abbots, together with the aldermen, the chiefs, the nobles, or the leading men of the kingdom.* These expressions are peculiarly applicable to the allodial proprietors of land. It is to be observed, that in<204> those times there was no such personal wealth as could create any authority; neither was there any distinction between what is now called a nobleman and a gentleman; but every individual, possessed of landed property, was a sort of leader, and maintained a degree of influence and rank corresponding to his fortune. The dignified clergy were distinguished by their profession, as the aldermen, or governors of shires, were by their office; for which reason, in speaking of the persons who composed the Wittenagemote, those two classes of men are frequently mentioned in particular, while the other proprietors of land are only pointed out by a general appellation expressive of their condition.

3. The same conclusion receives an additional support from the obvious analogy between the Wittenagemote, and the inferior meetings of the tythings, hundreds, and shires. These inferior meetings were plainly of the same nature with the great national council. The former deliberated upon the public affairs of the several districts to which they belonged: the latter, upon the public affairs of the whole nation. Both of these appear to have arisen<205> from the same circumstances; and probably the one was introduced in imitation of the other. It was because the chief magistrate of every inferior district had not, of himself, sufficient authority to execute public measures, that he was accustomed to call meetings of those inhabitants whose concurrence he thought was expedient; and it was upon the same account that the king was accustomed to assemble the great national council. There is great reason to believe, therefore, that all these meetings were constituted in the same manner; and, as it seems to be universally agreed, that the court of every tything, hundred, and shire, was composed of the respective proprietors of land in those districts; it can hardly be doubted that the constituent members of the Wittenagemote were the people of a similar description throughout the whole kingdom.

Lastly; The probability of this opinion is farther increased, when we examine the state of the national councils, which existed about the same time in the other European kingdoms. In all those kingdoms, the sovereign was under the necessity of transacting the more<206> important parts of the public business with the concurrence of a great proportion of his subjects; and the councils which he convened for this purpose appear, in every country, to have been composed of that part of the people who enjoyed a degree of influence over the rest of the community. Thus in France, the country of modern Europe in which the greatest number of particulars concerning the primitive government has been transmitted to us, the supreme concerns of the kingdom fell under the deliberations of the assemblies of the field of march; so called from the time of their principal meetings. From the accounts delivered by some of the French writers, these councils appear to have been composed of all the free men of the nation. According to others, they consisted of the leading men or nobility.* These accounts are, at bottom, not very different. In the early periods of the French monarchy, no person could be denominated free, unless he had the independent<207> property of land; and every landed proprietor was, in reality, a sort of chief or nobleman.†

In consequence of the disputes between the king and the people, that took place in England after the accession of the house of Stewart, there arose two political parties; the followers of which have maintained very opposite opinions concerning the constituent members of the Anglo-Saxon Wittenagemote. The supporters of the prerogative,1 in order to shew that the primitive government of England was an absolute monarchy, and that the privileges enjoyed by the people have all flowed from the voluntary grants and concessions of the sovereign, were led to assert that the original members of the Wittenagemote were persons under the king’s immediate influence and direction; from which it was concluded, that, so far from being intended to controul the exercise of his power, this council was called of his own free<208> choice, for the purpose merely of giving advice, and might of consequence be laid aside at pleasure. Hence it was contended, that beside the bishops and abbots, and the aldermen, both of which were supposed to be in the nomination of the crown, the other members of the Wittenagemote, who received the appellation of wites or wise men, were the lawyers or judges of the kingdom, who sat in the privy council, and were likewise in the appointment of the sovereign.*

Those writers, on the contrary, who defended the rights of the people, appear, from their eagerness in combating this opinion, to have been betrayed into the opposite extreme.2 In their endeavours to prove the independent authority of the ancient national council, they were induced to believe, that, from the beginning, it had been modelled upon the same plan as at present; and that it was originally composed of the nobility, the knights of shires, and the representatives of boroughs.† <209>

It requires no great sagacity or attention, at this day, to discover that both of these opinions are equally without foundation. They may be regarded as the delusions of prepossession and prejudice, propagated by political zeal, and nourished with the fondness and credulity of party attachment. Nothing can be more improbable, or even ridiculous, than to suppose that the lawyers or judges of England were, immediately after the settlement of the Anglo-Saxons, a body of men so considerable as to compose the principal part of the Wittenagemote, and, from a title peculiar to themselves, to fix the general denomination of that great assembly. In a very rude age, the business of pleading causes is never the object of a separate profession; and the deciding of lawsuits does not form a characteristical distinction in the chiefs or leading men, who are occasionally employed in that manner. We may as well suppose that, in the period of English history now under consideration, the Anglo-Saxon wites, or wisemen, were the physicians,<210> the surgeons, and apothecaries, or the mathematicians, the chymists, and astronomers of the country, as that they were the retainers of the law. We have surely no reason to believe that the latter were, by their employment, more distinguished from the rest of the community than the former.

Besides, if the wites are understood to be judges and lawyers, it will follow, that the ancient national assembly was often composed of that class of men exclusive of all others; for, in ancient records, it is frequently said, that laws were made, or public business was transacted, in a council of all the wites of the kingdom. But it is universally admitted, that the bishops and abbots, as well as the aldermen or governors of shires, were members of the Wittenagemote; from which it is a natural inference, that these two sets of people were comprehended under the general appellation of wites.

This may easily be explained. The term wite signifies, primarily, a man of valour, or military prowess; and hence a man of high rank, a nobleman.* It has been used, in a<211> secondary sense, to denote a wise man, from the usual connection, especially in a rude age, between military skill and experience or knowledge: in the same manner as an old man, or grey-headed man, is, according to the idiom of many languages, employed to signify a ruler or governor. As far as any conclusion, therefore, can be drawn from the appellation of Wittenagemote, or council of the wites, it is likely that this national assembly comprehended neither judges nor lawyers, considered in that capacity, but that it was composed of all the leading men, or proprietors of = landed estates; in which number the dignified clergy, and the governors of shires, if not particularly distinguished, were always understood to be included.†

The other opinion is not more consistent with the state of the country, and the condition of its inhabitants. It supposes that in England, soon after the settlement of the Anglo-Saxons, the lower ranks of men were so<212> independent of their superiors, as to form a separate branch of the community, invested with extensive political privileges. This opinion supposes, in particular, that the mercantile part of the inhabitants were become a distinct order of the people, and had risen to such opulence and authority as entitled them to claim a share in the conduct of national measures. There is not, however, the least shadow of probability in this supposition. Whatever improvements in trade and manufactures had been made in Britain, while it remained under the provincial government of Rome, these were almost entirely destroyed, by the convulsions which attended the Saxon conquest, and the subjection of a great part of the island to the dominion of a barbarous people. The arts which remained in the country after this great revolution, were reduced to such as procure the mere necessaries, or a few of the more simple conveniencies of life; and these arts were hardly the objects of a separate profession, but were practised occasionally by the inferior and servile part of the inhabitants. How is it possible to conceive, in such a state of manufactures, that the trading interest<213> would be enabled to assume the privilege of sending representatives to the great council of the nation? Even in those European states, whose advancement in arts was much earlier than that of the Anglo-Saxons, the formation of the trading towns into corporations was long posterior to the period we are now examining; yet this event must have preceded their acting in a political capacity, and consequently, their being represented in the national assembly.

But, independent of this consideration, which can hardly fail to produce conviction in such as are well acquainted with the early history of modern Europe; the fact in question may be determined in a manner still more decisive and satisfactory. If the representatives of boroughs, and the knights of shires, were constituent members of the ancient Wittenagemote, it is inconceivable that no traces of their existence should have been preserved in the annals of the Saxon princes. From the numerous meetings of that assembly, which are mentioned in many authentic records, and of which accounts are given by historians, who lived either in that period, or not long after it, a variety of expressions must have occurred, by<214> which the fact might be fully ascertained. Had it been a common practice for the towns and shires to choose representatives in the national assembly, is it possible to believe that this practice would never once have been alluded to upon any occasion whatever; or that, when mention is made so frequently, of the bishops and other dignified clergy, of the aldermen, of the wites, or leading men, who sat in this meeting, another part of its members, consisting of a class of people totally different from the former, would in no case, either from accident or design, have been pointed out in clear and unequivocal terms? It cannot be disputed, however, that, notwithstanding the most diligent search into our ancient histories and records, by men of great industry and learning,3 and eager to prove their hypothesis, not a single unambiguous expression, to that effect, has ever been found: and this observation is not limited to the time of the Heptarchy, but may be extended from the settlement of the Anglo-Saxons to the Norman conquest.

The attempts to prove that there were representatives of boroughs and shires in the Wittenagemote consist, for the most part, in<215> giving a forced interpretation to certain vague and general phrases, which happen to be employed by ancient authors, concerning the members of that assembly. The word alderman, for example, denoting a ruler, may be extended to the ruler, or chief magistrate, of a town, as well as of a shire; and therefore it is contended, that when the aldermen are mentioned in old records, as a constituent part of the national council, we are to understand the representatives of boroughs, as well as the governors of shires. It is, in like manner, asserted that, by chiefs, or leading men, and by wites, or wise men, the persons chosen to represent the commons are as properly described, as the nobility, or proprietors of land.*

According to this reasoning, the representatives of the commons, in every shape, and of every description, as they exist at present, though not separately mentioned, are included in almost every designation, applied to the ancient members of the Wittenagemote. How<216> far this mode of argument may be extended it is difficult to say. The aldermen and the wites have, each of them, the capacity of lord Peter’s bread, containing the quintessence of beef, mutton, veal, venison, partridge, plum-pudding, and custard.

In the accounts given by ancient authors of those that were called to the national council, mention is made, in some cases, not only of the bishops, abbots, aldermen, and chiefs, but also of the people; and the persons present are sometimes distinguished by the appellation of a great multitude.* <217>

But it cannot escape observation, that if this proves any thing, it will prove too much: it will prove that all the inhabitants, even those of the lowest rank, instead of sending representatives, were personally allowed to vote in the national council. By the appellation of the people it appears that, on some occasions, the lay-nobles are understood, in opposition to the dignified clergy; and on others, the ordinary proprietors of land, in opposition to those of distinguished opulence. There is, at the same time, good reason to believe, that the multitude, said to have been present at some of those meetings, was partly composed of mere spectators, who might possibly, by their acclamations, testify their approbation of the measures proposed.<218>

There is produced an instance of a Wittenagemote, held by one of the kings of Mercia, in the year 811, in which a royal charter is said to have been signed before “the Mercian chiefs, bishops, leaders, aldermen, procurators,4 and relations of the sovereign, together with Cuthred the king of Kent, and Suthred the king of the East Saxons, and all those who were present in the national council.”* As the members of the Wittenagemote had immemorially the privilege of appointing any person to act for them in their absence, it has been supposed, with great probability, that the procurators here mentioned were the proxies of absent nobles. In support of this conjecture, it is observed, that they are placed next in order to the nobles, and immediately before the king’s relations.† <219>

But although there is no ground for believing that the representatives 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 first united under one monarch, it composed a very numerous assembly. As, upon the settlement of the Saxons in Britain, few persons were in a condition to occupy large estates, the number of allodial proprietors was proportionably increased. It is probable that the estates of the greater part of individuals extended to no more than a hide of land, or what could be cultivated by a single plough, and that this property constituted the primitive qualification for voting in the several Wittenagemotes of the Heptarchy. We hear of no particular limitation in this respect, either in the reign of Egbert, or in any preceding period.

It has been imagined by some authors, that the privilege of sitting in the Wittenagemote was originally confined to such as possessed forty hides of land; a property of great extent, which few individuals, it is natural to suppose, could have an opportunity of acquiring; whence it seems to be inferred, that a small part only<220> of the landed gentry were admitted into the councils of the sovereign.† This opinion is founded upon a passage in the register of Ely,5 which mentions a distinction in point of rank, enjoyed by such of the nobles as possessed estates amounting to forty hides of land. But this passage refers to the state of the kingdom in the reign of Edward the confessor,6 when property had been subjected to the most important revolutions, and government had widely deviated from its original institution. No inference can thence be drawn, concerning the primitive constitution of the national council; which must have arisen from the state of the inhabitants at the time when it was framed. How far the authority above mentioned is sufficient to justify that conclusion, with respect 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 so constituted, as to admit a great proportion of the people into a share of its<221> deliberations: and it merits attention, that even such of the inhabitants as were excluded from this assembly, were either the slaves, or the tenants and vassals of those who sat in it. The former were thus placed under the protection of the latter. Men of inferior rank, though not formally represented in the national council, enjoyed, therefore, a degree of security from the influence of their master or superior, who had an interest to defend them from every injustice but his own, and whose jealousy was ever watchful to guard them from any oppression of the sovereign.

The powers exercised by the Saxon Wittenagemote7 were such as might be expected from the independent situation, and the opulence of its members. It possessed a similar authority over the whole kingdom, to that of any tything, hundred, or shire, over its own subordinate division. In general, the Wittenagemote seems to have taken under its cognizance all those branches of government, which were of sufficient importance to merit its attention, and which, at the same time, could be directed, in consistency with the de-<222>lays arising from the deliberations of a numerous assembly.

1. It exercised, first of all, the 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 assembly; and for which, according to the most ancient custom, it was regularly held twice in the year; in the spring when the seed-time was over, to resolve upon such expeditions as were thought expedient; and, in the autumn, before the harvest began, to divide the plunder. A people so rude as the early Saxons had little other business of importance but what consisted in the sowing and reaping of their grain; and were generally disposed to employ the greatest part of the summer, either in private rapine, or in hostilities against a foreign enemy. In the other kingdoms of Europe, the same seasons were observed for the meetings of the national council. We are informed that, in France, the vernal meetings were originally in the be-<223>ginning of March; but that afterwards, from greater attention, it should seem, to the cares of husbandry, they were delayed till the first of May.*

It may here be worth while to remark, that the power of declaring peace and war, which belonged indisputably to the Saxon Wittenagemote, affords complete evidence that its members were allodial proprietors of land; for, upon the supposition of their being the vassals of the crown, they must have been bound, when called upon, to attend the sovereign in war, and consequently their consent would not have been requisite in undertaking any military enterprize.

The same authority, by which military enterprizes were determined, made likewise a provision for carrying them into execution. As from the circumstances of a rude nation, every man was in a condition to furnish a number of soldiers proportioned to the extent of his property; it was a general law in the Saxon government, that the proprietors of land should be rated, for military service, ac-<224>cording to the number of hides which they possessed; and if any person refused to contribute his proportion, he was liable to forfeit his possessions, and to be deprived of the public protection.

The erecting and repairing forts and castles, as a defence against the sudden incursions 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 same view, attracted the notice of the Wittenagemote, and for which individuals were assessed 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 facilitate the progress of their arms, and to establish their dominion over the conquered people. From their example, it is likely that the Saxons, in Britain, as well as the other nations, who settled upon the continent of Europe, were incited to improvements of this nature which they would not otherwise have thought= of.

2. When the members of the Wittenagemote had been assembled, and when they had<225> settled 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 conducting public business, whatever abuses had been committed in the administration of government; these were canvassed; and regulations were made for preventing the like evils for the future. It is not disputed that the Wittenagemote exercised a legislative power over the whole kingdom; and, of consequence, the power of repealing and altering the regulations introduced by the meetings of any particular tything, hundred or shire.* The imposition of taxes, the most important appendage of legislation, was likewise undoubtedly assumed by this great assembly, so far as taxes existed in that early period; but these were in a great measure unknown; the ordinary expence of government being defrayed out of the private estate of the king, and from the various emoluments annexed to the regal dignity.<226>

3. To this legislative power was added that of directing and controlling the exercise of the royal prerogative. Thus the demesnes of the crown were considered as not entirely the private estate of the king; but as in some measure the property of the public, which fell to be managed and disposed of under the public inspection. The alienation, therefore, of crown-lands, though proceeding in the name of the king, was not effectual without the concurrence of the wites; and hence royal charters were frequently granted in the Wittenagemote, and subscribed by a number of its members.†

The coining of money, in order to save the trouble of weighing and assaying the metals which pass in exchange, was a privilege early assumed by the king in the respective kingdoms of Europe; and even by the nobles or great proprietors of land in the territories under their jurisdiction. In the exercise of this privilege, great frauds had been committed on<227> many occasions, by debasing the coin below its usual standard; for preventing which abuses, the Wittenagemote, in England, appears to have superintended the behaviour both of the king and of the nobles, and to have regulated the coinage throughout the whole kingdom.*

The members of this great council had no less authority in the government of the church than in that of the state. That they were early accustomed to take cognizance of the established religion, appears from what is related of Edwin king of Northumberland,8 who being solicited to embrace Christianity, is said to have answered, that in a matter of such importance he would be determined by the advice of his wites and princes. In the Wittenagemote, all ecclesiastical laws were made; the king’s nomination of bishops and other dignified clergy was confirmed; and their number, as well as the extent of their livings, was regulated.

The same national council gave sanction to the establishment of monasteries, and of the revenues with which they were endowed.† <228>

Not contented with directing the exercise of the executive power, the nobles and wites assumed, in extraordinary cases, the privilege of calling the sovereign to account for the abuses of his administration. Of this a remarkable instance occurs in the reign of Segebert,9 a king of the western Saxons; who, for his tyrannical behaviour, and after he had treated with contempt the remonstrances of his people, was, by a general assembly of the nation, expelled [from] the kingdom; and another prince of the royal blood was elected in his place. This event is said to have happened in the year 755.†

Lastly, when the members of the Wittenagemote had met to deliberate upon public business, they were accustomed also to hear complaints concerning such great quarrels and acts of injustice, as could not be effectually redressed by inferior judicatories, and to endeavour, by their superior authority, either to reconcile the parties, or to decide their differences. By frequent interpositions of this nature, that great council was at length formed into a regular court of justice; and became<229> the supreme tribunal of the kingdom; in which appeals from the courts of each particular shire, as well as original actions between the inhabitants of different shires, were finally determined.<230>

CHAPTER VIII

State of the Sovereign in the primitive Anglo-Saxon Government.

The different parties of the Saxons, who invaded Britain, were each of them under the conduct of some adventurer, whose fortunes they had followed, either from personal attachment, or from a confidence in his abilities. After they had settled in the country, the same person continued to have the command of their forces, and became also the chief civil officer of the community. The longer he had remained in that high station, his possession of it was rendered more secure by the continuance of the same circumstances which had originally produced his elevation. His military talents, deriving lustre and importance from the distinguished point of view in which they were beheld, excited the admiration and respect of his followers; while the dangers with which they were surrounded, and a sense of their common interest, united<231> them in fighting under his banner. By every new expedition they became the more accustomed to submit to his direction; and the oftener they had found it necessary to solicit his protection and assistance, under those calamities to which they were exposed, they felt more sensibly the advantages derived from his favour, as well as the inconveniences arising from his displeasure.

In the early history of the Anglo-Saxons, the leader of every separate tribe or party, is accordingly represented as possessing a permanent office, with the title of herotoch or duke, in place of which that of king was afterwards assumed.

The king was in possession of a landed estate, acquired in the same manner with that of every inferior leader, by whose assistance the conquest had been made. As the booty arising from any successful enterprize, was divided among the free people or heads of families concerned in the adventure, and, as on those occasions, each individual obtained a portion, both of land and moveables, suited to his rank and abilities; it may easily be conceived that the property accumulated, in a<232> course of time, by the sovereign, would be much greater than that of any one of his subjects. His estate was naturally distributed among his dependents, according to the same plan which was adopted by every other landed proprietor. A part of it was bestowed upon his kindred or free retainers, under the condition of military service; and the remainder was cultivated by his villeins, or bondmen, for supporting the expence of his houshold. Over these two classes of people, he exercised the rights of a superior, and of a master. Throughout the rest of the kingdom, exclusive of his own particular estate, his authority was much more limited. Every allodial proprietor, unaccustomed to subjection, and supported by his own retainers, was more or less in a condition to maintain his independence; and those who had acquired considerable property, beholding with jealousy the superior dignity and pretensions of the king, were commonly ready to combine against him, either in resenting or opposing, whatever they deemed an infringement of their liberties.

The powers with which the sovereign came to be invested, either in the different states of<233> the Heptarchy, or in the subsequent monarchy which arose from the union of those kingdoms, were such as, in order to prevent confusion and promote the dispatch of public business, were tacitly devolved upon him, or as, from the nature of his situation, he had found encouragement to assume, and had, without opposition, been permitted to exercise. The dignity and office of the king, though higher in degree, were perfectly similar to those of the tythingman, the hundreder, and the earl; and he possessed nearly the same powers over the whole kingdom, which those inferior officers enjoyed in their own particular districts.

1. By having the command of the forces in the time of battle, the original source of his greatness, he was led to direct their movements on other occasions; to take preparatory steps for bringing them into the field; to suggest particular enterprizes, to plan the measures for conducting them, to execute treaties with foreign states, and in general to superintend the defence of the kingdom, and the whole course of its military operations.

2. In consequence of his being at the head of the military department, the king was led<234> also to exert his authority in suppressing internal disorders, in quelling tumults and insurrections, in restraining private rapine and violence, in seizing offenders, and preventing their escape from justice; in a word, he obtained the province of maintaining the ordinary police of the country, and the security of its inhabitants.

3. As, from these two branches of power, he became the prime mover, and proposer of public measures, and as, in matters of great moment, the concurrence of the Wittenagemote was necessary; he acquired, of course, the exclusive privilege of calling that assembly, and of presiding in all its deliberations. The influence which he thence obtained, with regard to its determinations, may easily be imagined. The president of every numerous assembly has many opportunities of moulding the business that comes before it, into such a shape as will promote his own designs; more especially, if by the permanent enjoyment of that office, he has leisure to form a regular plan of management; and if, by having a discretionary power of calling the particular meetings, he may regulate his motions according as<235> the assembly happens, in different conjunctures, to be attended by different members. But while, by these favourable circumstances, the sovereign was capable of advancing his political interest, he enjoyed the additional advantage of superior opulence and dignity; which put him in a condition to intimidate, as well as to over-reach opposition. To a prince, therefore, possessed of much prudence, and of popular talents, it was not difficult, in ordinary cases, to procure the consent of the Wittenagemote to those measures which he thought proper to suggest; and the resolutions of that assembly, while they appeared to limit and controul the power of the crown, were at bottom, very often directed by the monarch, and rendered subservient to his will.

4. As the Wittenagemote enacted laws, distributed justice in the last resort, and regulated the administration of public affairs; so the duty of enforcing the decrees and regulations of that assembly, 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 assume the province of<236> causing the punishments decreed against offenders to be regularly inflicted, and of compelling every individual to fulfil the decisions of the law. The same person was led to procure information with respect to the commission of heinous crimes, and to direct that they should be prosecuted before the proper tribunals. In these employments, the sovereign acted as the head and representative of the community. In the same capacity, he obtained the nomination of many inferior officers in church and state; the privilege of coining money, and of superintending weights and measures; together with the exercise of all those powers which, from their nature, could not be conveniently devolved upon a popular assembly.

These prerogatives, which, from the natural course of things, and probably without any formal or express regulation, were gradually annexed to the crown, became the source of such perquisites and emoluments, as more than compensated the trouble with which they were attended. The chief executive officer, who prosecuted a crime in the name of the public, had a plausible pretence, upon the same<237> account, for levying the fine or forfeiture arising from the conviction of the criminal. Besides, in government, as well as in religion, the bulk of men are commonly so engrossed by the image or picture, as to forget the original, and to bestow upon the representative the sentiments due to the object it represents. Thus the sovereign, who appeared to direct, and put in motion, all the wheels and springs of government, who enforced the laws, who vindicated offences, and took upon himself the whole burden of providing for the public safety, was apt to be considered as exercising, in his own right, those powers with which the community had invested him. Those laws which he enforced were conceived to be more immediately calculated for his own benefit: those officers whom he appointed were looked upon as the servants of the crown; and those crimes, which he prosecuted and punished, were regarded as crimes committed against him in particular, for which he was, therefore, entitled, of himself, to demand reparation.

The public revenue of the Anglo-Saxons, therefore, by which the rank of the sovereign was maintained, and out of which the various<238> expences of government were defrayed, consisted almost entirely of two branches; the original demesnes of the king, acquired in the same manner with the private estate of each allodial proprietor; and the various forfeitures and fines, whether of land or moveables, which, from time to time accrued, or were transmitted to him, as the head of the community. From this latter source he derived a continual accumulation of wealth. The disorder and violence, that prevailed so universally, gave occasion to the forfeiture of many rich individuals; and the king was commonly disposed to neglect no opportunity of seizing and improving such favourable conjunctures. In the greater part of crimes, as it frequently happens in the infancy of government, the criminal was not punished in a manner adequate to the purposes of public justice, but was admitted to atone for his offence, by making a pecuniary composition with the sufferer. In those cases, the king exacted a composition as well as the private party; and the profits arising to the crown, from the innumerable fines and amerciaments, to which this gave occasion, were one great cause of the<239> long continuance of that imperfect mode of punishing offences.

In this early stage of the constitution, the revenue above mentioned was sufficient for all the charges of public administration; which were then inconsiderable. 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, without any consideration for their trouble; or they obtained a compensation by exacting fees from the parties who came before them. Taxes therefore were almost entirely unknown. Their introduction belongs to the history of a more advanced period of society.

But even this primitive revenue of the crown appears to have laid a foundation for the Wittenagemote to interfere in the disposal of it; since the estate, acquired by the king, in the character of the chief executive officer, and as representing the community, was, in a proper sense, the estate of the public. This conclusion was not, indeed, applicable to the whole, though it undoubtedly was to a considerable part of the royal demesnes. But it was not<240> the genius of that age to make nice distinctions; and the interposition of the national council, in the management of some branches of the crown revenue, might easily be extended to others that were placed in different circumstances.

We find that, not only in England, but in the other states upon the continent of Europe, the arrangements which took place in the management of the king’s household, and private estate, had necessarily great influence upon the government of the kingdom. According as the sovereign advanced in opulence and dignity, he was led to employ a greater number of servants in the several branches of his domestic oeconomy; and the same persons, who enjoyed the chief confidence of their master in that private capacity, became, in course of time, his ministers in conducting the business of the nation. In all the European feudal kingdoms, the management of the king’s household was anciently divided into five principal departments, and fell under the inspection of so many great officers.

1. The first of these was the steward, or master of the household, called, upon the<241> continent, the major domo, the mayor of the palace, or seneschall; who had originally the care of the king’s table. Upon him was naturally devolved the business of gathering in the rents of the crown lands: for, as those rents were all payable in kind, and were intended for immediate consumption, it was most convenient, that they should be delivered into the hands of that person by whom they were afterwards to be laid out for the support of the king’s family.

We may easily believe that, from the nature of his office, the master of the houshold was in a condition to acquire much influence over all the tenants and vassals of the crown. He was the person with whom they were obliged to settle their accounts; and who, from his minute acquaintance with their circumstances, was the most capable of giving his master information concerning them. He was, therefore, the person most likely to be employed in adjusting their differences with one another; and in consequence of his being the deputy judge upon the royal demesne, he came, at a subsequent period, to be intrusted<242> by the crown, with a similar power over the whole kingdom.*

2. As the collection and management of the victuals, with which the king’s table was supplied, fell under the direction of the steward; so the care of the liquors was committed to a separate officer, the cup-bearer, or butler. In all the Gothic nations, persons of wealth and distinction lived in great splendor, and were much addicted to drinking; for which reason, it is not surprising that the accommodation of the sovereign, in this respect, was<243> exalted into a separate employment, and became an object of suitable importance.

3. The care of the chambers was committed to a third officer, the chamberlain; whose business it was to superintend the lodging of his master’s family. As this officer was entrusted with whatever required to be locked up in the house, for the future service of the houshold, he seems, upon this account, to have become the keeper of the wardrobe, and, at a subsequent period, when the crown rents were paid in money, the king’s treasurer or superintendant of the finances.*

4. Another of the king’s principal servants obtained the inspection of the stable, and was denominated the comes stabuli,1 or constable. When, by the keeping of many horses, this department was rendered extensive, it appears to have been divided into two branches; the one belonging to the chief groom, or constable; and the other to the mareschal, or smith. It is difficult to mark the period when this divi-<244>sion was completed: nor is it an easy matter to ascertain the relative degrees of importance and rank which might then be annexed to these two kindred employments.

When the use of cavalry in war became frequent, we may easily suppose, that the persons, who had been accustomed to rear and manage the king’s horses, would stand forth, as claiming superior distinction, and as having a peculiar title to be consulted. They were thus employed, under the sovereign, in conducting that important part of the troops; and, by an easy transition, acquired a jurisdiction in such controversies, as were either of a military nature, or had arisen 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 issued from the crown, became also the subject of a distinct occupation, that of the secretary. In those times, when the clergy had acquired great influence, and when a pro-<245>ficiency in the art of writing supposed an uncommon degree of literary education, the only person likely to be qualified for this employment was the chaplain; who might be considered as, in some degree, the keeper of the king’s conscience; and who, from the nature of those religious offices which he performed, could seldom fail to acquire the confidence of his master.

When signatures were introduced, for ascertaining the authenticity of writings, the office of keeping the king’s seal, and of appending it to his deeds, was committed to the same person who had been employed in writing them.

As in determining law-suits, it was found expedient, in many cases, to take down the sentence of the judge in writing, the secretary was naturally employed for this purpose; and became keeper of the records of the king’s court. From this branch of his duty, he got the appellation of chancellor; which is said to have originally denoted a scribe, or notary; being derived from cancella, the place under the Roman government, allotted to persons<246> of that profession for carrying on their business.*

As this arrangement in the domestic administration of the sovereign, supposes considerable wealth and magnificence; it was probably of a later origin in England than in several of the kingdoms upon the continent. It is reasonable to suppose that the whole of the king’s houshold was at first committed to one principal servant; whose business having been, by little and little, augmented and rendered more burdensome, was at length divided into these five different departments. A similar plan of administration, in a more limited sphere, was adopted by every great landed proprietor; who naturally multiplied his chief domestics, in proportion to the extent of his wealth; and often followed the example of the king, by dividing the affairs of his houshold into the same number of branches.†

The longer these great officers had been<247> established, they rose to higher degrees of consideration; and their authority was farther extended, from the superintendence of the king’s houshold, to the direction and management of the kingdom. As, for the most part, they were originally chosen by the sovereign, upon account of their superior wealth, or abilities, which rendered them capable of supporting his dignity in the execution of the business committed to them; so the trust and confidence which he reposed in them, together with the share of public administration which they enjoyed, afforded them numberless opportunities of augmenting their private fortunes, and of increasing their influence. In proportion to their advances in wealth and<248> power, they were in a condition to render their offices more permanent. They were originally nominated by the king during pleasure; but that superiority, which had been the inducement to their first promotion, became commonly more and more conspicuous during the continuance of their employments. It was, therefore, seldom found convenient to displace them: and, even after their decease, the heir of that estate, which they had acquired, was naturally regarded as the person best qualified, and who had a preferable claim to inherit their dignity. By long usage, these offices were thus rendered hereditary in particular families. To this observation, however, the office of chancellor, in most European countries, is an exception. As the chancellor was unavoidably a clergyman, who held his rank in the church, and the estate connected with it, only during life, he had commonly neither any opportunity of securing the office to his family, nor any desire of annexing it to his ecclesiastical dignity.

Of the influence established by the great officers of the king’s houshold, the political constitution of Germany affords a remarkable<249> instance. When the dominions of that empire, by the conquest of large territories in Italy, and in the southern part of France, had been so enlarged as to comprehend three distinct kingdoms, the emperor was induced, in that situation, to appoint three different secretaries.* The officers of his houshold were, upon this account, increased to the number of seven. In the progress of the German government, the power of these great officers advanced, as that of the emperor declined; and after the imperial dignity had become intirely elective, they assumed the privilege of proposing, to the national assembly, the successor to the crown; from which they at length proceeded to claim the sole right of electing him. Hence the origin of that precise number of persons who composed the primitive German electors.

The steward was originally the officer of the greatest importance in the king’s houshold;<250> because the supplying of his majesty’s table with provisions was regarded as the chief concern of the family. We accordingly find that, in several countries of Europe, the person 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 possessed the real power and authority of the crown, were at length emboldened to throw off the mask, and openly to mount the throne.

When the use of cavalry in war had become very extensive, and when that part of the feudal armies had the principal share in deciding the fate of battles, the constable, or marishal, was frequently in a condition to dispute the superiority with the steward 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 consequences of an inter-regnum, to be the vicar of the empire. But in a subsequent period, this high dignity was claimed by the elector of Saxony, the constable; and, after<251> violent disputes, and various determinations of the diet,2 was at last divided between those powerful competitors.

In the ages of greater civility and improvement, when, from the complicated connexions of society, its laws became numerous and of difficult interpretation, and when, from the anxiety of individuals to ascertain their rights, the charters and writings proceeding from the crown were multiplied in proportion, the secretary, or chancellor, to whom the king committed that branch of business, was invested with powers of the greatest consequence, and therefore was exalted to the highest rank.

In those opulent and polished nations which have long been reduced under an equal and regular government; in which the impartial distribution of justice is looked upon as almost a matter of course; and in which the sovereign is accustomed to govern by influence, more than by the exertion of his prerogative; in such nations, the person who presides over the public treasury, who may be regarded as the substitute of the chamberlain, becomes the great channel through which the revenue<252> of the state is conveyed, and by which the authority of the crown is maintained.

It is hardly necessary to remark, that this distribution of the business in the king’s household, into five departments, reaches far below the simple period of the Anglo-Saxon government which we are now considering. But, on the other hand, it merits attention, that when the exaltation of the sovereign had multiplied the occupations belonging to these different branches, it became expedient, in some of them, to appoint a variety of deputies; many of whom, in particular kingdoms, rose by degrees to such consideration and rank, as to appear no longer in a subordinate station, and even to make the origin of their appointment be forgotten. This circumstance must not be overlooked in perusing the enumeration, given by many historians, of the principal officers in the court, or houshold, of particular princes.

From the foregoing imperfect sketch of the powers of the sovereign, as well as of the constitution and privileges of the Wittenagemote, we may be enabled, notwithstanding the darkness of our ancient history, to form an idea of<253> the original English constitution. How remote this was from an absolute monarchy, must be apparent to every one, who considers that the privilege of legislation, together with that of determining peace and war, and even that of controlling the executive power, was lodged in the national assembly. Neither can this government be deemed in a high degree aristocratical; since the national council was composed, not of a small junto3 of nobles, but of all the landed proprietors, comprehending a great proportion of the whole people. It seems, in fact, to be that sort of political system which is likely to be established in all rude and extensive countries; before a few individuals have accumulated so much wealth as enables them to domineer over their inferiors; and before the king, in consequence of his high station and prerogatives, has had leisure to acquire a revenue sufficient to overthrow and bear down any opposition that can be apprehended from the most opulent of his subjects. It cannot, however, escape observation, that, although the powers committed to the monarch by the early Saxon constitution were small, they were not accurately de-<254>fined; and that, in the exercise of them, he enjoyed, upon this account, a good deal of latitude. Accurate limitations of power, and a regular system of subordination, the fruit of experience and foresight, cannot be expected to characterize the institutions of a simple people, who are usually guided by their feelings more than by reflection, and who attend more to the immediate effects of any measure, than to its remote consequences. As the Anglo-Saxon princes were entrusted with every branch of public administration, in which the Wittenagemote did not think proper to interfere; their conduct was directed, in a great measure, by particular conjunctures, and by the different unforeseen events which accidentally required their interposition. We need not be surprised, therefore, if in perusing the history of that period, while we discover strong marks of the weakness of the crown, we should also meet with some extraordinary exertions of the prerogative, and should at the same time observe, that these were suffered to pass without censure, or even without notice. It is a common source of mistake, among political writers, to con-<255>sider these extraordinary exertions as proofs of the ordinary state of the government; and to adduce as an illustration of the general practice, what is only the random and casual exercise of a power, not yet brought to a regular standard. We shall now examine the changes produced in the English constitution from the reign of Egbert to the Norman conquest.<256>

CHAPTER IX

Of the principal Events from the Reign of Egbert to the Norman Conquest.

While England, by the union of the different states of the heptarchy, was emerging from barbarism, and laying the foundation of a great and powerful kingdom, a new enemy involved her in a series of fresh calamities; and contributed to retard the progress of her improvements. The inhabitants of the northern part of Germany, who retained their ancient manners, and were still much addicted to piracy, continued to infest the coasts of Britain and France, and of such other European countries as, by some advancement in cultivation, presented an inviting prospect of plunder. About the reign of Egbert, several bands of those pirates, known by the general name of Danes, landed in England; and, after committing great ravages, were generally successful in carrying off their booty. Upon the death of that prince, whose vigour<257> had kept them under some restraint, their incursions became bolder and more frequent; they made their attacks in larger parties; and, having been often victorious over the forces that could be assembled against them, they were at length encouraged to form settlements in different parts of the country. From the time when the kingdoms of the heptarchy were united, to that of the Norman conquest; a period extending to about two hundred and fifty years, and comprehending a series of nineteen monarchs; the English were, with little interruption, engaged in a course of hostilities with those invaders; and subjected to perpetual inquietude and disorder. In the reign of Alfred,1 the grandson of Egbert, the Danish arms had been so successful, and their acquisitions had become so extensive, as to threaten an entire conquest of the kingdom.

The history of that prince exhibits a pattern of the hero and statesman, equal to whatever is recorded of ancient patriotism, and even to whatever correct fiction has been able to suggest, in order to excite admiration and esteem. During the reign of Ethelred, his elder brother, by whom he was unjustly deprived of the<258> patrimony left him by his father, he discovered neither any marks of resentment for the private injury he had sustained, nor of what prevailed so universally among the princes of that age, an ambition to possess the crown; but with uniform alacrity seconded all the public measures of the king; and, while yet at an early period of life, displayed uncommon valour and talents, in opposing the enemies of his country. When he afterwards succeeded to the throne, his magnanimity and firmness were put to a severe trial in the school of adversity. Though he had been victorious over the Danes in many conflicts; yet the swarms of those invaders multiplied so fast; and from every quarter pushed their depredations with such rapidity, that the English, throughout the greater part of the kingdom, became quite disheartened, and submitted to the conquerors. His ancient subjects, the western Saxons, alone retained their fidelity, and supported the interest of their monarch: but these were incapable of resisting the torrent which broke in upon them, from the accumulated force of their enemies. After many fruitless efforts, and upon a sudden report of a new invasion<259> by a powerful body of Danes, that spread universal consternation, the king found himself almost entirely abandoned: and, being able no longer to keep the field, was obliged to disband his remaining adherents, and to provide for his present safety; he was even under the necessity of concealing himself by various artifices, and in mean disguises. The distresses to which he was exposed, and the private adventures which he met with, in that situation, appear not unworthy of notice; as they relate to a person of such eminence; and as the fate of England depended upon his surmounting the difficulties in which he was involved. In the garb of a common soldier he remained for some time unknown, in the house of one of his own herdsmen: upon which occasion, historians have mentioned a little incident, which exhibits a ludicrous picture of royalty placed in awkward circumstances without being degraded by them. While the king was one day sitting by the fireside, and trimming his bow and arrows, the woman of the house, who had no suspicion of the quality of her guest, happened to be toasting bread; and, having occasion to go about some other affairs,<260> she found, at her return, that the cakes were burned; with which being greatly provoked, she heartily scolded his majesty, telling him, that though he neglected to turn her cakes, he was always very ready to eat them.

Meanwhile the royal demesnes became a prey to the Danish forces; who being no longer restrained by the apprehension of an enemy, gave a loose 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 some time from place to place, finding shelter from the woods and marshes, which covered a great part of the country, and which were of difficult access even to the natives themselves. But his principal retreat was in the middle of an extensive morass, formed by the rivers Thone and Parret in Somersetshire; which was almost entirely surrounded with water; and which afforded great plenty of fallow deer, and other wild animals fit for subsistence. In this place the king took up his residence; and erecting some fortifications, remained for near the space of a twelvemonth. Here he had leisure to reflect upon the uncer-<261>tainty of human grandeur; to weigh the real value of all human enjoyments; and to revolve in his mind those 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 secret excursions, in order to procure information or plunder, and to revive the drooping courage and spirits of his companions.

At length the earl of Devonshire, having suddenly attacked and routed a large party of the Danes, presented 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 exposed, he appears to have uniformly discovered a mind cool and deliberate, resolute with caution, fruitful in expedients, and dexterous in executing such measures as the singular and desperate posture of his affairs made it adviseable to adopt. On this occasion he is said to have employed a stratagem, suited to the state of discipline in the armies of that age, and<262> which recals the memory of those military adventures related in the early periods of antiquity. In the disguise of a minstrel and fortune-teller, attended only by one companion, he visited the Danish camp; and supported the character with so much address, as to afford universal entertainment, and to pass through every quarter, not excepting even the general’s tent, without incurring the least suspicion. Having thus procured every possible information, and having, by means of a previous intercourse with his nobles, suddenly collected a great body of his subjects, he found himself at the head of a powerful army, exulting in the recovery of their monarch, and eager to be revenged of their oppressors. With this force he fell unexpectedly upon the enemy; and entirely defeated them. His victory was so complete, that the Danes were incapable of any further opposition; and in a little time after were entirely subdued. Some part of them were driven out of the kingdom; the rest were under the necessity of submitting to such terms as he thought proper to impose.

The moderation and clemency of this prince, and the prudence which he displayed in the<263> improvement of these advantages, were no less conspicuous, than the vigour and abilities by which they were obtained. The Danes who submitted to him were sent to reside in East Anglia, Northumberland, and some of the neighbouring parts of the kingdom, where many of their countrymen had long been settled; and they were admitted to the enjoyment of the same privileges with his other subjects. By the zealous interposition of Alfred, they were also happily persuaded to embrace the Christian religion; a circumstance necessary to remove their prejudices against the ancient inhabitants, and to unite those different tribes of people in one community.

Upon the restoration of peace, the first attention of the monarch was employed in providing a fleet, sufficient to oppose any new invasion of the Danish pirates; in erecting fortifications upon the coasts more immediately exposed to their depredations; in making regulations for assembling the inhabitants upon any sudden emergency; in rebuilding the towns that had been destroyed; and in repairing the waste and desolation which the coun-<264>try had suffered from a long course of rapine and violence.

To compile and publish a code of statutes is, in a rude nation, a measure of the highest utility, for instructing an ignorant people in those rules by which they are to be governed; and accordingly we find that this has been the great object of almost all the distinguished princes of an early period. It appears that Alfred bestowed much labour and time upon a work of this nature; of which the greatest part is now lost. It is probable, that, from the various feudal institutions and customs, which had prevailed either in England or upon the neighbouring continent, he selected such as were accounted the most beneficial, and most adapted to the peculiar circumstances of his time and country: and that, having established these regulations by the authority of his great council, he endeavoured, in the most effectual manner, to produce a degree of uniformity in law and government, throughout the whole of the kingdom.2 We are not, however, to imagine, that all differences in the customs of different parts of the country were thus en-<265>tirely abolished. On the contrary, we find that, in consequence of the new settlements in the northern part of the kingdom, a multitude of Danish customs had been introduced; and that the people were now distinguished into three great branches, according to the varieties in the system of private law, established among the Western Saxons, the Mercians, and the Danes.

But the promulgation of good laws is, for the most part, and especially in a country remote from civilization, a matter of less difficulty and importance than the vigorous and impartial execution of them. When a regulation is made, the beneficial objects, which it is intended to promote, are commonly surveyed in that distant and dispassionate view which admits the full exertion of patriotic affections; but when it comes to be enforced by the punishment of transgressors, it then frequently assumes a different aspect; and the interest of the public is likely to be obscured and counteracted by the private connections, and by the partiality and prejudice of individuals: not to mention that the splendor and eclat, which accompany the temporary interpositions of the<266> legislature, do not descend to the unremitting and laborious attention, to the painful and invidious task, of those inferior magistrates who render the law effectual. It was here that the genuine virtue of Alfred appeared most conspicuous. From the long course of depredation to which England had been exposed, that country was become a scene of the utmost license and disorder; exhibiting, on the one hand, a people fierce and barbarous in their manners, accustomed to live by robbery and violence; and on the other, a set of nobles, in reality the leaders of different pillaging parties, abusing that authority and jurisdiction with which they were invested, by protecting their adherents from punishment, and by oppressing those who had fallen under their displeasure. Yet such was the attention of this monarch to the inferior departments of government, so great was his vigilance in examining the conduct of judges, and his rigour in punishing them for malversation in office, that, in a short time, these evils were in a great measure removed, and an equal and regular administration of justice was introduced. In one year of his reign no fewer than forty-four magis-<267>trates, it is said, were put to death, for misbehaviour in their judicial capacity; a proof that corruption and licentiousness had risen to an amazing pitch. There can be little doubt, that in the accounts transmitted by historians, the accuracy and regularity of the police, established by Alfred, has been greatly exaggerated; but even these exaggerations, the usual effects of wonder and admiration, may serve to convince us, that he made great improvements upon the former system. We are informed that, in order to try the success of his institutions, he caused golden bracelets to be hung up near the highway; and that no person, such was the terror of the magistrate, adventured to touch them.

By the establishment of good order and tranquillity, the people were encouraged to follow those peaceable occupations which had been totally interrupted by the preceding disorders. The king was indefatigable in his efforts to promote manufactures, and to excite the industry of his subjects; by employing artificers in great public works; by inviting foreigners to settle in the country; and by rewarding the inventors of new arts. He con-<268>tributed, in a particular manner, to the extension of foreign commerce, by protecting it with his fleet, and by bestowing marks of his favour upon such as became eminent for their skill in navigation.

He was no less attentive to the encouragement of literature, not only by his patronage, but also by his example. His ardour, in this respect, was the more remarkable, as it surmounted the disadvantages he lay under from the neglect 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 first felt a desire of being instructed, in this particular, from the recital of certain pieces of poetry, with which the queen his mother was much delighted. Prompted, however, by a strong inclination for literary pursuits, he soon became, not only a proficient in the Latin language, and in such branches of learning as were respected in that age, but even a writer of eminence, both in prose and in verse. As a poet, he seems to have employed himself chiefly in translating, or composing, fables, or apologues.<269> These compositions are usually the first attempts, in a rude nation, to illustrate, by simple and familiar examples, the proverbs, or maxims for the conduct of life, which observation and experience have suggested, and which, as containing important information to an illiterate people, are frequently repeated, and appealed to, in ordinary conversation. The labours of this eminent statesman appear, in that particular, to have coincided with those of the first great teacher of morality among the Greeks.3 It is probable that those two celebrated personages were directed in the choice of their subject by a similarity of character; and it may perhaps be suspected, that both of them were more remarkable for their philosophy and public spirit, than for their poetry.

Historians have mentioned the bodily accomplishments of Alfred, as corresponding to the extraordinary endowments of his mind. He was distinguished by the strength and activity, as well as by the dignity and gracefulness of his person; and while his dexterity and address, in martial exercises, excited universal applause, he gained the hearts of his subjects by an affable and engaging deportment.<270>

After all, though the history of this monarch may be accounted sufficiently authentic, to afford a solid conviction of his exalted merit; some allowance, no doubt, must be made for the colouring produced by that admiration which was due to his character, and which has been heightened by the remoteness of the period in which he lived. We need not be surprised, therefore, to meet with errors and prejudices, concerning his public transactions; and in particular, to find that he was supposed to be the author of several regulations, which he only revived, or brought to greater perfection than they had formerly attained. The great changes which he produced in the state of his country, by bringing it from anarchy and confusion into a degree of order and regularity, led his countrymen, in subsequent ages, to fix their attention upon him, as the person from whom they had derived the entire model of their constitution. He is thus held, by many historians, to have first divided the kingdom into tythings, hundreds, and shires, and to have introduced a peculiar system of policy connected with those divisions; though it seems now to be clearly proved, that these regulations<271> existed in England before his time, and that they extended to other European kingdoms. The institution of juries has, in like manner, been ascribed 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 establishment in all of them. Alfred, in a word, has become the English Lycurgus;4 and his interposition is the great engine which politicians have employed for explaining the origin of such particulars, in the English government, as have excited uncommon attention, and are too remote, in their beginnings, to fall within the limits of authentic history.

For near eighty years after the death of that prince, England appears to have been successfully defended against every foreign invasion; though she experienced a variety of disturbances, occasioned by the domestic quarrels and insurrections of the Danes and other inhabitants of the country. During this period we may distinguish the reigns of Edward the elder,5 the son of Alfred, of Athelstan, and of Edgar, as remarkably vigorous; and as filled with exploits, which, if they make no very splendid<272> figure in the general scale of historical events, were, however, of considerable consequence to the peace and internal tranquillity of the kingdom.

Those princes are said to have adopted a measure, which, in that early age, appears extremely singular. They are said to have kept in pay a regular body of troops, collected from their Danish subjects; whose military character, it seems, 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 exposed, and by which they were held in continual warfare, suggested the same sort of military establishment that has been found convenient in all civilized nations. The Danish families were employed, in preference to the English, from the same policy, which, in later times, made the inhabitants of Switzerland be engaged in the service of many European princes. As those mercenaries, however, were quartered about the country, and were probably not much under the controul of the<273> civil magistrate, they were guilty of many irregularities, and rendered themselves universally odious. They possessed all the power, and discovered, we may suppose, all the insolence of a standing army;6 unrestrained by the watchfulness of a regular government, or by the influence of civilized manners. Hence the appellation of a lurdane, or lorddane, which was bestowed upon them, came to be used as a term of reproach; and signified an idler and oppressor. Their situation led them, at the same time, to seek distinction, by the superior elegance of their dress and behaviour; and we are told, that they were accustomed frequently to change their cloaths, to comb their hair once a day, and to bathe or wash themselves every Sunday. By these effeminate arts they became the favourites of the women; and were so successful in their gallantries, as to debauch the wives and daughters of many noble families.* <274>

In the reign of Ethelred, a weak and pusillanimous prince, England was again infested by more numerous swarms of the Northern pirates; and at length was invaded by a formidable army under Sweyn, the king of Denmark, and Olave the king of Norway. Ethelred,7 unable to resist these united forces, had recourse to the ineffectual and ruinous expedient of purchasing peace by the offer of a pecuniary composition; and when those princes had returned to their own country, he excited his English subjects, to gratify their resentment against the Danes, by taking advantage of their security, and putting them to death in cold blood. The extent of this massacre, so disgraceful to the monarch, and to the nation, cannot easily be ascertained. The greater part of the historians consider it as extending to the whole of the Danish race at that time to be found in England; but the improbability of this, together with the authority of one ancient author, makes it reasonable to suppose, with Mr. Hume, that the slaughter was, for the most part, limited to those mercenaries against whom the rage of the populace was more immediately directed.<275>

To revenge an act of so much perfidy and cruelty, Sweyn, without loss of time, made another descent into Britain; and after destroying many of the towns, and desolating a great part of the country, he seems to have meditated an entire conquest of the kingdom. He did not live to complete his designs; but these were prosecuted by his son Canute;8 who met with little opposition; and in a short time added the English monarchy to that of Denmark, which he possessed by inheritance. This prince, by his abilities, by the prudence and lenity of his administration, and by the extent of his dominions, was justly entitled to the appellation of great, which he has received from posterity. In England, after the first effects of the conquest were over, he endeavoured to procure the good-will of his subjects, by reducing the English and Danish inhabitants under the same laws, and by abolishing all distinctions between them. He published a collection of laws, which has been preserved.9 After this monarch, two of his sons reigned successively in England; but, as they died without issue, the crown was restored to a prince of the Saxon line, known by the name of Edward the Confessor.10 <276>

The conquest of England by the Danes appears to have been productive of no other political consequences, beside the interruption given to improvements, by the bloody and destructive wars with which it was attended. When Britain was deserted by the Romans, and fell under the Anglo-Saxon government, the country, which had made considerable progress in arts and civilization, was, of a sudden, reduced into a state of barbarism, and underwent a total revolution of its political system. By the Danish conquest, one set of barbarians were subjected to another, of kindred origin and manners; so that the sceptre was placed in different hands, without any alteration in the maxims by which it was swayed, or the authority by which it was maintained.

From the beginning to the end of the period, which is the immediate subject of this review, the circumstances of the kingdom were such, as contributed to render the government more and more aristocratical.

It has been already observed, that the landed estates, originally occupied by the Saxon conquerors of England, were of moderate extent;<277> for which reason 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 several heads of families who settled in the country, and from their want of the knowledge and experience requisite for the management of extensive possessions. During the continuance of their settlement, however, and the consequent improvement of their circumstances, the industry and abilities, or the good fortune, of individuals, were attended with gradual accumulations of wealth, and with proportional differences in the distribution of landed property.

From the reign of Egbert, when England became an extensive kingdom, the sovereign was necessarily removed to a distance from a great part of his subjects; who, for that reason, were equally beyond the reach of his protection, and of his authority. For putting a stop to those predatory incursions, by which the inhabitants of different districts were frequently harassing and injuring one another, the forces employed by the crown could seldom be brought to act, either with sufficient<278> quickness to relieve the sufferer, or with sufficient perseverance to chastise the offender. It was necessary, therefore, when the property of any person was invaded, or threatened with invasion, by a superior power, that the owner should not, in many cases, depend upon the interposition of the sovereign or public magistrate, but should endeavour to procure the immediate assistance of some of his neighbours. As the reciprocal acts of hostility, which were frequently committed, gave rise to hereditary feuds among particular families; so they occasioned, among other families in the same neighbourhood, a variety of combinations and alliances for mutual defence and security. When the parties, who thus formed a defensive alliance, had been exposed to the same difficulties, and expected to derive an equal benefit from their agreement, they were led to unite upon equal terms, and remained in a state of independence. Of the societies formed in this manner, we have many instances, both in England, and in the other countries of Europe.* <279>

But it happened more frequently that small proprietors, being exposed to continual oppression, and to every sort of injustice, from persons of greater opulence, were obliged to solicit the aid of one powerful neighbour, in order to shelter them from the attacks of another.11 In such a situation they could not pretend to form an alliance upon the footing of equality; but were commonly reduced to the necessity of purchasing protection by the offer of submission and services. As they were to obtain, from their protector, the same advantages which he bestowed upon his ancient military servants, it was reasonable that they should, in like manner, acknowledge his jurisdiction, and contribute to the advancement of his power and authority. Thus, in some cases, by a formal agreement, in others, perhaps, by a long and uniform submission to the feudal services, many renounced that allodial property which they were no longer able to maintain; and, from the prospect of living in greater security, allowed themselves to be degraded into the state of military retainers or vassals.

From a similarity of circumstances, these transactions were often repeated in different<280> parts of the country, and were gradually extended over the whole kingdom. The more the demesnes of particular barons had been increased by such voluntary resignations, the remaining proprietors of small estates were the less able to retain their independence; and found it the more expedient to provide for their own safety, by incorporating themselves in some great feudal dependency. The allodial proprietors were, in this manner, continually diminishing; the landed property of England was daily accumulated in fewer hands; and the districts possessed by particular barons, who profited by the reduction of their neighbours into a state of subordination, were proportionably enlarged.

By these changes, the nobility, it is evident, must have obtained more weight in the scale of government. While the landed estates of individuals were so small as barely to supply the necessaries of life, the owners were too inconsiderable to procure influence over others, and too numerous to prosecute an uniform plan for the advancement of their common interest. But in proportion as particular persons had acquired extensive possessions, they were ena-<281>bled to maintain a train of dependants and followers, directed on all occasions by the will of their feudal superior, and inured, by long habits, to scruple at nothing in order to gratify his ambition, or to exalt his dignity. From the smallness of their number, these great proprietors might, at the same time, be combined with more facility, in opposing the exertions of the prerogative.

The sovereign, we may suppose, was not an idle spectator of these alterations in the condition of his subjects. As every opulent baron obliged his poorer neighbours to become his vassals, the king also exerted himself in the protection of such as resided near the royal demesnes, and acquired over them the rights of a feudal superior. But the accessions acquired in this manner, to the revenue of the crown, and to the number of crown vassals, were probably not sufficient to counterbalance the vast accumulation of landed property under the lords of particular districts. We find accordingly, that about the reign of Edward the Confessor, a Godwin, earl of Wessex, a Leofric, duke of Mercia, a Siward, duke of Northumberland, with a few more barons, had become so powerful, as to be the objects of constant<282> alarm and jealousy to the crown, and in a great measure masters of the government.

The authority of the Anglo-Saxon princes was, on the other hand, weakened, in many cases, and prevented from acquiring stability by the defects of their title to the sovereignty.

The rules of succession to the crown appear, in all countries, to have been founded upon the same principles which govern the inheritance of private estates. According to the primitive notions of mankind, it was held, that, upon the death of any person, his estate should belong to his nearest relations, who, by being members of the same family, appeared to have the most intimate connexion with the family goods, of which they had formerly been a sort of joint possessors with the deceased. But in that state of the world, in which every family required a military leader to provide for their defence, the person invested with this office was by degrees permitted to assume the management, and at length to acquire the property, of that family-estate which was committed to his protection. Hence the right of primogeniture in succession; which, in opposition to the feelings of natural justice, has<283> been introduced from considerations of expediency. The eldest of the sons, being commonly the first 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 established from the ordinary course of things, it was maintained by the force of custom, even in singular cases, where he had not the same superiority. In the succession to a monarchy there occurred a double reason for introducing this right of primogeniture; as the monarch was not only the leader and representative of the nation, but also the heir of that private estate, which had been the original source, and was the principal support of his dignity. But in kingdoms of great extent, and which had made but small progress in the arts of government, the indivisible succession of the crown was often maintained with greater difficulty than occurred in the transmission of private estates; because the several districts of an extensive monarchy, being at a great distance, and feebly united, were apt, upon the death of a monarch, to fall asunder, and to embrace the<284> party of those different members of the royal family, who might be tempted to aim at the sovereignty.

The rules of succession to the crown of England appear, in the period now under examination, to have been gradually advancing towards a regular standard; 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 conquest, we meet with no fewer than eight, who, according to the notions of the present age, must be regarded as usurpers; and several of these obtained the crown by titles, which, though considered as in some degree irregular, had not, in that rude age, been entirely exploded.

Instead of the eldest son inheriting the estate of a family, it is common, in early ages, that the children should be altogether supplanted by the brothers and other collateral relations; who, by having arrived at a greater maturity, and possessing superior prowess, are enabled to put themselves at the head of their kindred. Thus in many of the hordes, or petty nations, upon the coast of Guinea, the children are said<285> to inherit nothing from their father but his arms; his other effects are carried off by the older relations of the family. In the succession of the ancient kings of Numidia,12 though a country far advanced beyond the state of primitive barbarism, the brother, as we are informed by Livy,13 was preferred to the children of the preceding monarch. A similar practice may be discovered in several parts of the eastern world. It obtains at present in the Ladrone island;14 as it formerly regulated the transmission of the crown in the kingdom of Siam, and in some dynasties of the Chinese empire. Of this preference of the brothers, or other relations, to the direct descendants, there are many traces in the early history of modern Europe; and among the Anglo-Saxon kings, even after the reign of Egbert, we meet with four instances of it; in the person of Alfred the Great, of Edred, of Ethelred, and of Edwy; the three first of whom succeeded to a brother; the last to an uncle; and all of them, in prejudice to the children of the predecessor. To these may be added, Edgar, surnamed the Peaceable, by whom Edwy his brother was dethroned.15 <286>

According to the manners of a rude people, there is frequently little difference, with regard to the right of succession, between the children produced by a concubine and those who are born in marriage. It is the circumstance of living in the father’s house, and having a sort of joint possession of the family estate, that is apprehended chiefly to bestow upon the children a title to the inheritance; and, in a country so destitute of refinement or delicacy, that the wife is indifferent about the fidelity of her husband, or is of so little consequence that her jealousy is not regarded, his bastards are likely to be often brought up under his own eye, and to receive a promiscuous maintenance with his legitimate offspring. This observation may be illustrated from the history of early nations, both ancient and modern, and in all quarters of the world. It is remarkable that, among the Israelites, in the time of their judges, the lawful children of Gilead had, apparently, no other way of preventing Jephthah, their bastard brother, from succeeding to the father’s estate, than by driving him out of the family.* <287>

The strictness of morals introduced by christianity, contributed in Europe to diminish the privileges of bastard children. It does not, however, appear, that, even so late as the time of the Norman conquest, they were understood, in any European country, to be totally disqualified from inheriting estates. In England, not to mention the instances that might be collected among the kings of the Heptarchy, we find that Athelstan, the natural son of Edward the elder, was permitted to mount the throne, in preference to the lawful children of his father.16

The accession of Canute was merely the effect of conquest; though that prince endeavoured to support his claim by means of a stipulation, real or pretended, with the former king. Upon the restoration of the Saxon line, the nobles had acquired so much power as enabled them to dispose of the vacant throne. To their favour Edward the Confessor, who usurped the right of the lineal heir, was principally indebted for the crown; and the advancement of Harold had confessedly no other foundation.

By these numerous deviations from the re-<288>gular course of succession, the monarch was prevented from acquiring that accumulation of hereditary influence, which is the effect of an uninterrupted and long-continued lineal descent; at the same time that those princes who obtained the crown in an irregular manner were, upon that account, subjected to difficulties, from which they were obliged to extricate themselves by courting the nobility, and by making such concessions as tended to alter the balance of the constitution.17

From a singular incident, in the reign of the first Edmund, and which occasioned the death of that prince, we may easily discover that the Anglo-Saxon kings depended, in a great measure, upon the arbitrary assistance of their followers, for maintaining the dignity and authority of the crown; and were far from being provided with proper resources for securing a decent respect and obedience to their commands. “As Edmund, one day, was solemnizing a festival in the county of Glocester, he remarked, that Leolf, a notorious robber, whom he had sentenced to banishment, had yet the boldness to enter the hall where he dined, and to sit at table with his attendants.<289> Enraged at this insolence, he ordered him to leave the room; but on his refusing to obey, the king, whose temper, naturally choleric, was inflamed by this additional insult, leaped on him himself, and seized him by the hair; but the ruffian, pushed to extremity, drew his dagger, and gave the king a wound, of which he immediately expired.”* <290>

CHAPTER X

Variations in the State of Tythings, Hundreds, and Shires.1

The resignations of land, made by allodial proprietors in order to procure the patronage and protection of a feudal superior, were moulded in a particular manner, and received a peculiar direction, from the institutions formerly mentioned, of tythings, hundreds, and shires, as, on the other hand, the state of these institutions underwent a great alteration from the progress of those resignations.

A tything was composed of a number of heads of families, who, possessing allodial property of small extent, and therefore having few dependants, found it convenient to live together in the same village or neighbourhood, for their mutual defence and security. The bulk of the free people, or allodial proprietors, appear to have been originally incorporated in the different tythings, throughout the kingdom; though it is probable at the same time,<291> that there were particular thanes, or military leaders, who, from their superior wealth and power, had no occasion to join in any tything; and who lived, in a state of greater independence and dignity, at the head of their own bondmen, or tenants and vassals. Beside the villages, therefore, which were composed of the freemen, and which had the denomination of tythings, there were others, composed of the dependants of a feudal superior, placed under his immediate jurisdiction and authority.*

The primitive borsholder, or tythingman,2 was elected by the freemen of the tything over which he presided; and at first was probably but little superior to them in opulence. By degrees, however, the rank which he enjoyed,<292> together with the influence, and the perquisites, which he derived from thence, enabled him to increase his fortune, and to extend his authority over the different members of the community. Upon his decease therefore, the person who inherited his estate, obtaining a great part of the weight and consideration of the predecessor, was naturally promoted to the same office; which after being continued for many generations in the same family, and bestowing upon the representative of it successive accumulations of property, was at last regarded as no longer elective, but as a permanent hereditary dignity. The borsholder came thus, in his own right, to demand military service 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 short, was converted into a barony; and that voluntary combination of the inhabitants, intended for their mutual defence and security, was now lost in the more intimate connection between a superior and his vassals.

As the president of a tything advanced in the acquisition of this hereditary dignity, and found that his authority depended less upon<293> the consent of his original constituents, he became less attentive, we may suppose, to the inferior duties of his office; and the police of the village, in matters of small moment, was at length committed to a deputy. The remains of this inferior officer seem to be still preserved, in the annual election of a person to preside in each of the towns or parishes of England; who in some cases retains the old appellation of headborough, or tythingman; but who, from the branches of business that have since devolved upon him, is more commonly called the petty constable.

Similar causes produced a change of the same sort in the condition of the centenarius.3 This magistrate, like the tythingman, was originally chosen by the freemen of the district over which he presided; but as the richest man of the district was most likely to carry the election, so the longer any individual had remained in the office, he became, from the many opportunities it afforded of increasing his riches, the more secure of holding it for the future; and for the same reason, the heir of his private fortune, to whom he communicated his family interest, had likewise the pro-<294>bability of obtaining the same dignity in preference to every competitor. Thus the leader of the hundred was, through length of time, converted into an hereditary officer; and, from the superiority of his original office, was enabled to establish a permanent authority over the several tythingmen of his district. When these last had become the hereditary leaders of tythings, they were frequently reduced, therefore, into a state of feudal subordination to the hundreder. In other cases, the influence of this greater magistrate was exerted in bringing particular tythings under his immediate protection, and in checking and supplanting the tythingmen, who might otherwise have acquired a feudal authority in these little societies.

When the centenarius became a person of too much consequence to execute the inferior branches of business connected with his department, a deputy was appointed for that purpose; whence the office of the high constable, elected annually in those districts, appears to have been derived.

With respect to the alderman, or chief magistrate of a shire, it has been disputed whe-<295>ther he was originally nominated by the king, or elected by the freemen of the territory over which he presided. From what has been already observed, the latter of these opinions is much more probable than the former. Considering how little power was usually possessed by the sovereign in the infancy of government, not only among the Saxons, but in all the modern states of Europe; and considering that he had neither the nomination of the borsholder, nor of the centenarius; it is not likely, that he would assume the appointment of those who presided over the greater divisions of the kingdom.

It is universally 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. These Heretochs were the leaders of considerable bodies of the Saxons, who upon the settlement of their followers, became the governors of provinces; and of consequence they were in reality the same sort of magistrates with those who, upon the more accurate division of the country into shires, were better known by the name of<296> aldermen or earls. It is therefore highly probable, that the first aldermen were appointed in the same manner with their predecessors the Heretochs. By degrees, however, the chief magistrate of a shire was intrusted with the collection and management of several branches of the crown revenue within the bounds of his district; and for the execution of this part of his duty he became, of course, accountable to the king. This afforded the sovereign 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 easy to discover: but from the same circumstances which had operated in the case of the tythingman, and of the hundreder; from the necessity of appointing the most opulent thane of a shire, who alone was able to command respect from<297> the inhabitants; and from the accumulation of property, and of interest, arising from the possession of that high station; the office was frequently continued in the same families; and was, in the end, annexed to them as a permanent 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 same change in the state of the counts and dukes was, in like manner, completed before the accession of Hugh Capet; which corresponds to the English period of the Norman conquest.

We may easily conceive that the hereditary governor of a shire, who had, in his own right, the privilege of assembling and commanding the forces, as well as of holding the chief tribunal for distributing justice, in that extensive territory, was possessed of great influence and authority; and that many allodial proprietors would find they had no better means of securing themselves from insult and depredation than by courting his protection. Even the leaders of hundreds, who had acquired a feudal superiority over their own districts, but who<298> had been placed in a station subordinate to the earl, were sometimes induced, by motives of interest, to become his immediate vassals, and to promise the same service and submission to him, which they exacted from their own military retainers. In particular tythings, more immediately situated within the sphere of his influence, the powerful protection of the earl superseded that of their own tythingmen, and, by a natural consequence, rendered the inhabitants more desirous of yielding homage and fealty to that superior magistrate, than to their own proper officers. In such cases the authority of the smaller magistrates was lost and swallowed up in that of the greater.

The advancement of the earl gave occasion to the appointment of an inferior officer, the sheriff;4 upon whom was devolved the real business connected with the office. This officer was originally chosen by the free inhabitants, or allodial proprietors of the shire; though the extensive department committed to his care, and the great privileges with which he was invested, had the same tendency, as in the case of the chief governors, to vary the mode of his<299> appointment, and, in the course of time, to bestow upon him an independent authority.

It was in this manner that allodial was generally converted into feudal property, and that an enlarged system of military dependencies was at length established. The necessity of defence produced the primitive associations of tythings, hundreds, and shires, composed of allodial proprietors, with their respective bondmen or vassals. But, from the disorders of society, these combinations were too loose and feeble, to answer the purposes for which they were intended. To protect and rescue the individuals in each of these communities, it was requisite that their leader should be invested with greater authority than had originally been bestowed upon him; and that his associates or followers should become his permanent military servants. Tythings, hundreds, and even a considerable part of shires, were thus changed into fiefs; and the tythingman, the hundreder, and the earl, became the feudal superiors over such districts as found it expedient to court their protection. A subordination, too, was introduced among the lead-<300>ers of those districts; and the tythingmen of a hundred became frequently the vassals of the hundreder; as many of the hundreders belonging to a shire became vassals of that greater baron, the earl.

As these changes were produced very slowly and gradually, it is not surprising that they should be overlooked by contemporary annalists. The meetings of the tything, the hundred, and the shire, appear to have retained the same names, and to have transacted the same sort of business, long after the two former were entirely, and the last, in a great measure, converted into the courts of a barony. The alteration, in reality, consisted merely in a different shade of authority acquired by the leader or chief magistrate of those divisions.

It seems worthy of notice, that this conversion of allodial associations into feudal dependencies, while it promoted the aristocracy, was calculated to improve the police of the country.5 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 several districts; and, as every feudal su-<301>perior was responsible to the public for the conduct of his vassals and retainers, he had an interest to exert his authority in preventing rapine and violence. Unhappily, indeed, they were often too powerful to submit to this part of their duty; and, instead of repairing the injuries done by their dependants, were frequently disposed to screen them from the punishment due to their offences.<302>

CHAPTER XI

Changes produced in the Condition of the Vassals, and of the Peasants.

The members of every feudal dependency consisted of the military retainers or vassals, and of the peasants, or churles; both of whom, in the latter part of the Anglo-Saxon government, experienced a great alteration in their circumstances.

In that state of society which determined allodial proprietors to shelter themselves under the protection of a feudal superior, and by which the number of military retainers was therefore gradually augmented, the privileges belonging to this order of men were naturally increased; and their condition was rendered more secure and comfortable. The original vassals of any person were the members of his own family, who, from natural affection, and from ancient habits, were strongly attached to his interest, and upon whom, from a reciprocal regard, as well as from the consideration of<303> expediency, when they became too numerous to live in his own house, he voluntarily bestowed the possession of lands for their maintenance. As the superior had no reason to suspect that these men would ever be deficient in fidelity, or seek to withdraw their allegiance; so they entertained no apprehension that, while they were willing to fulfil their duty, they should ever be dispossessed of their lands. The intimate connexion between the parties, and the simplicity of their manners, made them place a mutual confidence in each other, and prevented their being apprehensive of any future disputes: so that neither the superior required any specification of the services to be performed, nor the vassal, any express stipulation, with respect to the duration or terms of his possession. Thus the original vassals, though, in fact, their land was commonly permitted to remain with them and their posterity, were properly no more than tenants at will,1 and therefore entirely dependent upon the superior.

But when persons originally independent, had, with a view to certain advantages, allowed themselves to fall into a feudal subordination,<304> or had agreed to exalt an equal or a stranger to the rank of a superior, it could hardly be expected that these new vassals would be willing to hold their lands in so precarious a manner. Cautious of yielding any greater submission than their circumstances required, or suspicious of neglect or oppression from the person whom they had chosen for their protector, they naturally insisted, that the precise conditions of their tenure should be expressly ascertained; while the superior, distrusting the fidelity and attachment of men over whom he had no natural authority, and who submitted to him, perhaps, with reluctance, and from the mere pressure of temporary difficulties, was no less anxious to specify the nature of their service, and to secure the performance of it, by subjecting them, in case of negligence or disobedience, to severe penalties and forfeitures. From a variety of conjunctures, individuals might be laid under the necessity of submitting to harder conditions, upon some occasions than upon others; but, in general, when a feudal tenure was constituted by the consent of any allodial proprietor, it seems to have been expressly provided, that the fief should not only<305> remain with the vassal during life, but should descend, either to his heirs male, or to such of his heirs as were specified in the grant.

By the establishment of those hereditary fiefs, the vassal, instead of being a precarious tenant, became, in effect, the proprietor of the feudal estate, and the interest of the superior was reduced to a reversion2 in default of the vassal’s heirs, together with a right of levying, in particular cases, a variety of perquisites or casual emoluments. Of these casual emoluments or incidents,3 as they are called, which might still accrue to the superior from the estate of his vassal, after it was made transmissible to heirs, the feudal writers have commonly enumerated seven different sorts.

1. Though fiefs had been rendered hereditary, yet, as every person who enjoyed them was liable for the feudal services, it was necessary that an heir, before he obtained the investiture, should solemnly undertake the performance of them, and come under an oath of fidelity to the superior. Upon the death of any vassal, therefore, the superior laid hold of the lands, and detained them in his possession, until the heir should claim a renewal of the<306> feudal engagement. This privilege gave rise to what is called the incident of non-entry.

2. When the feudal tenures were precarious, the sons of the vassals frequently endeavoured, by a present, to procure the favour of the superior, and to obtain the continuance of their ancestor’s possession. Even after fiefs became hereditary, it still was found expedient to secure, by means of a bribe, what, though a matter of right, was not easily 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 vassal was incapable of performing the feudal service, he had no right to claim the possession of the fief. While he was under age, therefore, the lands were possessed by the superior; who, at the same time, from a regard to his own interest, if not from affection to the family of his old vassal, was induced to assume the guardianship and protection of the minor, his future military servant. Hence the complex burthen, and privilege, which went under the name of wardship.4

4. During the disorders which prevailed<307> under the feudal governments, it was of great consequence that the military vassals should not contract an alliance with the enemy of their liege lord; which might have a tendency to corrupt their fidelity. When fiefs therefore were secured upon a permanent footing, a provision was made against an event of this dangerous nature; and the vassals who married without the superior’s consent, or who even refused to marry according to his desire, became liable to a pecuniary composition or penalty. Such was the incident of marriage; a perquisite suited to the rude and barbarous manners which occasioned its establishment.

5. Beside the ordinary revenue which the superior drew from his estate, he was accustomed, upon extraordinary emergencies, to apply to his vassals, and to request from them a contribution in order to relieve him from his immediate embarrassment. While they held their lands precariously, a request of this nature was equal to a command; since the superior might at pleasure seize upon the whole estate of his tenants. But when the vassals had obtained a more permanent right, it became necessary to settle the particular<308> occasions upon which those contributions were to be made, as well as the extent of the sum that might be demanded; and in this manner, aids or benevolences5 came to be enumerated among the duties payable to a superior. Three cases are mentioned, in which, over all the feudal kingdoms, these contributions might be exacted; to redeem the superior from captivity; to portion his eldest daughter, at her marriage; and to defray the expence of making his eldest son a knight.

6. Though a fief had been rendered hereditary; yet, upon the total failure of heirs, it necessarily returned to the superior. The vassal might also forfeit his right to the lands, by his neglect to perform the feudal service, or by any violation of his duty. This forfeiture, or termination of the fief, was called an escheat.6

7. From the primitive state of the feudal tenures, the vassal had no title to alienate his fief, which he possessed as the wages merely of his military service. But when fiefs, by being transmissible to heirs, began to assume the appearance of property; when the general advancement of arts had rendered land more frequently an object of commerce; and when,<309> upon the suppression of the former disorders, the military service of the vassal was rendered of less importance, it became customary, by the payment of a sum of money, to compound with the superior for the privilege of selling the feudal estate. This produced the perquisite of superiority called the fine of alienation.

These feudal incidents may be considered as the remains of that absolute property of the fief, which the superior had formerly enjoyed; but which, with reservation of such casual emoluments, was now conveyed to the vassal.

After this new species of military retainers had become numerous, and had spread themselves over the country, it is natural to suppose that their privileges would, by the force of example, be communicated to the ancient vassals. The ancient feudal tenants, who, from the more extended connections of the superior, had probably become less the objects of his peculiar attention, and were not always treated with those marks of distinction to which they supposed themselves entitled, beheld with envy and jealousy the stability and security enjoyed by his new vassals; and were solicitous to hold their lands under the same permanent tenure.<310> A concession 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 cases where he stood in immediate need of their assistance, was likely to be easily obtained. As these privileges were slowly and gradually introduced, and as they were often accelerated or retarded by the situation of particular baronies, not to mention a variety of accidental circumstances, it is impossible to mark the precise period at which their establishment was compleated; though it is probable that, before the Norman conquest,7 they were extended to the greater part, if not the whole, of the ancient vassals.

While the incidents due to the superior were thus ascertained with accuracy, the interest of the vassals made it no less necessary, that the extent and duration of their military service should be exactly determined. In Britain, and probably in several kingdoms upon the continent, it was limited accordingly to forty days for each year; a period that might appear fully sufficient for those desultory enterprizes which the superior had occasion to<311> undertake. If ever he chose, after the expiration of this period, to retain his vassals in the field, he was under the necessity of procuring their consent, and was obliged to bear the charges of their maintenance.

The effect of these changes in the state of the military tenures could not fail to be discernible in the administration and government of every feudal dependency. Though it still was, no doubt, the interest of the vassals to avoid all contention with the superior, and to merit his favour by their fidelity and alacrity in the discharge of their duty, yet they were not under the same necessity of paying an implicit obedience to his commands. To whatever inconveniencies they might be subjected from the manner of levying the feudal incidents, yet, while they punctually performed their services, they could not, without gross injustice, be deprived of their possessions; and they had a right to follow their own inclination in the management of their private concerns. Sensible of this alteration in their circumstances, the superior was induced to be more cautious of disobliging them, to pay more deference to their opinions, to listen and give<312> way to their remonstrances, and, in public measures 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 vassals, their authority over each particular vassal was necessarily reduced; and they were obliged to exercise it with greater moderation, as well as to endeavour, by the arts of popularity, and even, sometimes, by pecuniary rewards and advantages, to gain the effectual support of their followers.

The improvements made in agriculture, produced alterations, of no less importance, in the state of the peasants or churles. The peasants, as has been formerly observed, were originally bondmen or slaves. But as from the nature of their employment, and from their living at such a distance as to be beyond the reach of the master’s inspection, it was found expedient to excite their industry by bestowing upon them successive gratuities and privileges; many of them were enabled, at an early period, to acquire considerable property; and some of them were advanced to the condition of tenants, intrusted by the master with<313> a discretionary management of their farms. In the natural course of things, these tenants were afterwards raised to a still better situation. When, in consequence of some experience in husbandry, they were about to undertake an expensive melioration of their farms, common prudence required that they should be secure of the possession, for such a period as might afford them a reasonable prospect of a return for their labour and expence. By offering an advanced rent to the master, they sometimes prevailed upon him to make an agreement of that nature, and to grant them a lease for a certain number of years. From the improving circumstances of the tenant, he sometimes obtained, not only a right of holding the estate for life, but of transmitting it to heirs; and there appear to have been some occasions, though it is probable these were not very common, on which, by the payment of a full price, he was enabled to make an entire purchase of the lands.

Those churles who had acquired a landed estate transmissible to heirs, to be held for payment of a yearly rent, were denominated soc-<314>cage vassals.8 From their employment and character, they were of an inferior rank to the military vassals; but they had the same permanent right to their estates. They were also liable to the same incidents of superiority; excepting those of wardship and marriage; the former, because the superior was disposed to pay no attention to the education of such of his dependants as were employed merely in agriculture; the latter, because the alliances which they contracted were deemed of little consequence to him.

The churles who made a full purchase of a landed estate should have become allodial proprietors, and have acquired the rank and privileges of nobility; but the influence of ancient usage prevented so sudden and violent a change in the rank of individuals; and as the proprietor who sold his lands, was unwilling entirely to resign his dignity, so the purchaser had not the presumption to deprive him of it. To retain a faint shadow of the ancient connection, the latter became bound, as an acknowledgment of the superiority, to pay to the former an elusory annual duty, if ever it<315> should be demanded.* We find that, by a statute in the reign of king Athelstan, a churle who had purchased an estate consisting of five hides of land, with certain appendages, usually possessed by gentlemen of that fortune, was declared to have a right to all the privileges of a thane; by which those of a lesser thane, or military vassal, were probably understood.†

From this law, which demonstrates that the encouragement of agriculture was become an object of public attention, it may be inferred, that though in some cases the churles were enabled to acquire landed property, they had not been understood, upon that account, to obtain of course the privileges of the military people; since these were not conferred upon them without a special interposition of the legislature; nor even by that statute, except upon such as had accumulated a very considerable estate. Such was the original inferiority of the peasants, and so strong were the habits connected with their primitive condition, that<316> though they had been raised to independent circumstances, it was with some difficulty they were permitted to hold the rank of gentlemen, and procured the treatment suitable to men of that superior class.

The freedom acquired by a great proportion of the peasants, together with the advances in husbandry from which it proceeded, gave rise to an immediate improvement in arts and manufactures. The first artificers9 were villeins, or servants of the greater thanes; who happening to discover some ingenuity in the common mechanical arts, were employed by the master in those branches of manufacture, which he found requisite for his accommodation. The possession of their farms, according to the rude manner in which agriculture was then practised, did not hinder them from exercising this collateral employment. When these people began to be emancipated from their ancient bondage, they were at liberty to work, not only for their former master, but for every person who chose to employ them; and by working for hire, they drew a regular profit for their labour. A competition was then introduced among different workmen,<317> which contributed to promote their industry and skill; at the same time that the improvements which have been mentioned in the condition of the lower class of people, by increasing their opulence, produced an increase of demand for the ordinary conveniencies of life; and therefore afforded greater encouragement to the occupations by which those conveniencies were supplied. Particular branches of manufacture, or of labour, coming in this manner to be more in request, occasioned more constant employment to individuals; who, at length, found it their interest to abandon every other occupation, and to depend, for their livelihood, upon that single branch in which they had attained a peculiar proficiency.

A variety of trades and mechanical professions were thus introduced; and the artificers and labourers composed a separate order of men in the community. As these grew up and were multiplied, they became the chief part of the inhabitants in those villages where they resided; which were gradually enlarged into towns, of more or less extent according as their situation, or other circumstances, proved more favourable to manufactures.<318>

It is unnecessary to observe, that the separation of trades and professions,10 among the different inhabitants, occasioned, of course, a degree of traffick or exchange of commodities. When the artisans, as well as the farmers, confined themselves to a single employment, they were able, by their own labour, to produce only one sort of commodity; and if they wanted any thing of a different sort, they had commonly no other method of procuring it, than by an exchange with the person who had produced it. This exchange was at first limited, we may suppose, to the inhabitants of the same town or village; but, according as different places began to excel in manufacturing goods of different kinds, it was extended to neighbouring towns, or to the more distant parts of the country. Upon the opening of such intercourse between places at a distance, the inhabitants found it, in some cases, inconvenient to go themselves to purchase the goods which they wanted, and had occasion therefore to employ some of their neighbours for that purpose; from which there arose, by degrees, a common carrier, upon whom this branch of business was frequently devolved. As this person acquired a little stock, he ad-<319>ventured sometimes at his own risk, to buy commodities in one place, with a view of selling them in another; and his employment was at length improved into that of a pedlar or travelling merchant.

Although these tradesmen and mechanics were no longer in a servile condition, they had still much dependence upon the original master, or feudal superior, of that village or town in which they resided. He defended them from the attacks of the military people around them; to which, from the turbulence and disorder of the times, they were greatly exposed; and which, from their unwarlike dispositions, they were of themselves but ill qualified to resist. He also encouraged and promoted their trade, by permitting them to hold fairs and markets, or stated seasons of rendezvous, between the merchants and customers of different places; by supplying them with warehouses, and with measures and weights, for the sale of their goods; and by such other kinds of assistance as, from the rude state of the country, and in the infancy of commerce, their circumstances made them<320> stand in need of. In return for these advantages, he levied from them such tolls and duties as they were able to bear; and of consequence augmented his revenue in proportion to the increase of their wealth.

According as the patron and protector of these manufacturing and trading towns was possessed of greater influence and power, their trade was likely to be the more prosperous and flourishing. Some of those towns, having sprung from the peasantry of the crown demesnes, were under the immediate patronage of the sovereign; others, being situated upon the estates of the greater thanes, were under the protection of those nobles. The former, it is evident, enjoyed a great superiority over the latter. The protection of no particular nobleman could reach beyond the limits of his own estate; but that of the sovereign extended, in some measure, over the whole of the kingdom: not to mention that the king, by residing occasionally in the towns of which he was the immediate protector, and which he was naturally desirous of encouraging, produced a resort of the nobility and gentry to<321> those places; and, by the expensive living incident to a court, created an additional consumption of their commodities.

The extent of the trade of England, before the Norman conquest, cannot, at this distance of time, be ascertained with any degree of precision; but there is reason to believe that it was not very considerable. Of this we need require no farther evidence than the small size of the principal 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 Athelstan it is enacted, that a merchant who, upon his own account, had made three trading voyages to a foreign country, should acquire the privileges of a thane.† Such extensive trade, it was probably thought at that time,<322> could be attempted only by a person of uncommon spirit, and in affluent circumstances; whose elevation, while it served as an incitement to commercial enterprize, might be regarded as no disparagement to the military people. In other statutes which have been preserved, of the same, and of subsequent princes, we meet with some of those fundamental regulations, which commonly have place in every country, upon the first efforts to introduce a regular commerce; such as the establishment of certain formalities in completing mercantile transactions;† and the appointment of a mint in the principal towns;§ together with that of a common standard of money, and of weights or measures.‖

By the addition of artificers and tradesmen to the different orders formerly mentioned, the whole people of England came now to be distinguished into four great classes; which, from their differences in rank or employment, in characters and habits of living, were separated and kept at a distance from one another.<323> Those who exercised the honourable profession of arms, whether in the station of greater or lesser thanes, of superiors or vassals, thought it inconsistent with their dignity to engage in any lucrative occupation; and disdained to contract alliances with farmers or manufacturers.* The two latter orders of men, though nearly of the same rank, were by their situation prevented from living together, and led to acquire very different manners, and ways of thinking. The solitary and robust employment of the farmer was not apt to form a similar style of behaviour and accomplishments to that which was produced by the sedentary town-life of the manufacturer; and in a country where improvements had not been carried so far as to create an intimate correspondence among all the members of society, those two sets of men were not likely to exchange their professions. The children of the<324> farmers, as well as those of the tradesmen and mechanics, were commonly disposed to follow that way of life with which they had been early acquainted. They were even bred up in most cases, to their father’s employment, before they could well have an opportunity of comparing it with any other. Not only were those two orders of men, in general, confined to their respective professions, but the mechanics, employed in the several branches of manufacture, frequently transmitted their occupations to their posterity; and continued them, for many generations, in the same families. The clergy, who formed a numerous and powerful body, were no less distinguished from the other three classes, by their peculiar education, by their separate views of interest, and by their professional character and manners. 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 so entirely separated from the rest of the inhabitants, as might otherwise have been expected. When churchmen were prohibited from having posterity<325> of their own, it was necessary that their profession should be supplied from the other ranks of the society.

From the natural course of things, it should seem, that in every country where religion has had so much influence as to introduce a great body of ecclesiastics, the people, upon the first advances made in agriculture, and in manufactures, are usually distributed into the same number of classes or orders.11 This distribution 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 distant parts of the globe. The ancient inhabitants of Egypt are said to have been divided into the clergy, the military people, the husbandmen, and the artificers; and these four descriptions of men were, by a public regulation, or more probably by the influence of custom, derived from the early situation of the country, kept invariably distinct from one another. The establishment of the four great castes, in the country of Indostan,12 is precisely of the same nature. This division of the people, which goes back into the remotest antiquity, has been ascribed, by historians and po-<326>litical writers, to the positive institution of Brama,13 the early, and perhaps fabulous legislator of that country; but, in all probability, it arose from the natural separation of the principal professions or employments in the state; as it has been since retained by that excessive indolence, to which the inhabitants of those warm and fertile regions are addicted, and which has hitherto checked their improvements, by producing an aversion to every species of innovation.<327>

CHAPTER XII

The Influence of these Changes upon the Jurisdiction and Authority of the feudal Lords.

The advancement of the Anglo-Saxon vassals and peasants to greater security and freedom, and the separation of the trading people from the class of husbandmen, could not fail to limit the authority of the superior, and more especially to affect the state of his jurisdiction. When his military retainers held their benefices precariously, and when the other members of his barony were either bondmen, or merely tenants at will, he found himself under no restraint, in deciding their differences, and in punishing their offences; but after the former had obtained hereditary fiefs, and a great proportion of the latter had been exalted to the rank of soccage-vassals, he was obliged to relax his claim to their obedience, and to distribute justice among them with greater moderation and circumspection.

The retainers of every feudal superior were<328> bound, not only to the performance of military or other services, but also to assist him in maintaining good order and tranquillity within his barony; and therefore, when any of them complained of injustice from another, or was accused of a crime, the baron found it expedient, instead of deciding by virtue of his own authority, to call a number of his other vassals, and to proceed with their advice and concurrence in trying the cause. This expedient was the most equitable for the person concerned in the trial, as well as the best calculated for giving weight to the decision. The assessors of the judges were the pares curiae,1 men of the same rank with one another, and with the parties; they were chosen occasionally, and varied in each cause, to avoid burdening any individual more than his just proportion; and they were commonly selected from the neighbourhood of the place where the accusation or dispute had taken its rise, that, from their own private knowledge, they might be enabled to form a better judgment of the facts in question.

Thus the trial by an inquest, or jury, which had formerly taken place in the tribunals of<329> the shire, and of the hundred, was introduced into those of a feudal barony. The causes, however, of this institution, in the former and in the latter, were somewhat different. A jury was found convenient, in the courts of the shire, and of the hundred, to supersede the attendance of all their members; and might be regarded as a sort of committee, in place of a full and regular meeting. In the courts of the baron, its interpositions became necessary, in place of the decisions formerly given by the judge himself, in order to supply his deficience in authority over vassals whose fiefs had been secured to them by a permanent right. A jury was therefore an institution less popular than that which had formerly obtained in the county or the hundred courts, but more so, than the mode of jurisdiction originally displayed in the courts of the baron. It is reasonable, at the same time, to suppose, that, when allodial proprietors had been changed into vassals, the custom of jury-trials2 in the courts of the former, would facilitate the introduction of a similar practice in the judicial establishments of the latter.

That this form of trial obtained universally<330> in all the feudal governments, as well as in that of England, there can be no reason to doubt. In France, in Germany, and in other European countries, where we have any accounts of the constitution and procedure of the feudal courts, it appears that law-suits of every sort, concerning the freemen or vassals of a barony, were determined by the pares curiae; and that the judge took little more upon him, than to regulate the method of proceeding, or to declare the verdict of the jury.

The number of jurymen was originally varied in each cause, according as the opulence and power of the parties, or the magnitude of the dispute, rendered it more or less difficult to enforce the decision. So little, after all, was the authority of the court, that, in many cases, the party aggrieved by the verdict assumed the privilege of challenging the jurymen to single combat.* From the progress of regular government, and in consequence of the disposition among mankind to be governed by general rules, a certain number of jurymen became customary in ordinary<331> causes; and at last was universally established. From accidental circumstances, of little importance, a different number has been established in different countries; as that of twelve in England and fifteen in Scotland.

With respect to the time when trials by jury were first introduced into the court of every feudal barony, we are left in the same obscurity, as concerning their previous introduction among the allodial proprietors, in the courts of the hundred and of the county. But considering the circumstances from which the superior was induced to adopt this mode of procedure, there is ground to believe that it arose upon the establishment of hereditary fiefs, and became gradually more universal, according as the number of the feudal tenants, who had obtained a perpetual right to their possessions, was increased.

In this view, it seems probable that the practice of juries, in the baron-courts, was not very common in England till near the end of the Anglo-Saxon government. In the opinion of some antiquaries,3 the first vestige of a jury-trial, in the English history, is posterior to the Norman invasion; a mistake<332> which appears to have arisen from the supposition, that before this period hereditary fiefs were unknown in England.

Though the fact seems now to be admitted, that jury-trials were established in the baron courts of every feudal kingdom, yet the origin of that institution has been the subject of much doubt and controversy. Some authors have thought that jurymen were originally compurgators,4 called by a defendant, to swear that they believed him innocent of the facts with which he was charged. In the church courts, a person accused of a crime was understood to be guilty, unless he could clear himself by what was called the oath of purgation; and in some cases, unless his own oath was confirmed by that of a number of other persons acquainted with his behaviour. The injustice of this general presumption of guilt, the very opposite of what should be entertained in every court of justice, was the less observable, as the consequence of it was merely to draw upon the guilty person a spiritual admonition, or censure, for the good of his soul. From the influence of ecclesiastical procedure, the same rule, however, was after-<333>wards adopted in the temporal courts; where it came to be much more oppressive.

But the province of compurgators, in those courts, and that of jurymen, were so totally different, as to make it scarcely possible to conceive that the latter could arise out of the former. Compurgators were merely witnesses; jurymen were, in reality, judges. The former were called to confirm the oath of the party, by swearing, according to their belief, that he had told the truth: the latter were appointed to try, by witnesses, and by all other means of proof, whether he was innocent or guilty. Compurgators, for this reason, were called by the party himself: the jury, on the contrary, were named by the magistrate.

In consequence of the different departments, occupied by these two descriptions of men, it should seem that, in most of the feudal governments, they existed at one and the same time; and that juries were accustomed to ascertain the truth of facts, by the defendant’s oath of purgation, together with that of his compurgators. We can have no doubt that this was formerly the practice; since it is,<334> even at present, retained by the English, in what is called the wager of law.5

There are two particulars in which we discover a resemblance between the procedure of compurgators and of jurymen; whence, in all probability, the opinion abovementioned has arisen. Both of them were obliged to swear, that they would tell the truth; and both were subjected to confinement until they had given their declaration. But these regulations concerning jurymen afford no proof that they were ever considered in the light of compurgators. According to the simple idea of our forefathers, guilt or innocence was regarded as a mere matter of fact; and it was thought, that no man, who knew the real circumstances of a case, could be at a loss to determine whether the culprit ought to be condemned or acquitted. It was, at the same time, suspected, that individuals drawn occasionally from the common mass of the people, to give judgment in a law-suit, might be exposed to improper influence; for which reason precautions were taken to prevent their having the least intercourse with the parties or their connexions.<335>

As to the unanimity required in the English juries, a circumstance in which they agree with the ancient compurgators, it has not been universally established in the feudal governments. President Montesquieu,6 at the same time, accounts for it, from a point of honour observed by the pares curiae in their judicial decisions, that they should agree with one another in pronouncing a verdict; because they were obliged to fight either of the parties who might give them the lie.

The same form of procedure which took place in the administration of justice, among the vassals of a barony, was gradually extended to the courts held in the trading towns. Notwithstanding the freedom acquired by the mercantile people, they still submitted to the jurisdiction of that person to whom they were indebted for protection, and were reduced by him under a system of government, similar to that which he established among his vassals. In as much as they held lands, for which they paid him a certain rent, they were in reality a species of feudal tenants.

The ancient jurisdiction of the greater thanes, or feudal superiors, came thus to be<336> exercised in two different courts. The one, in which causes were determined with the assistance of a jury, took cognizance of the military and soccage vassals, together with the inhabitants of the trading towns, under the protection of the superior. The other, which proceeded without that formality, was held for the trial of such members of the barony as were still in a state of greater dependence. The former is that which, according to some authors, was properly called the court-leet; being the court of the Liti, or free people. The latter, in which the superior retained his ancient authority, received by way of distinction, it is said, the general appellation of the court-baron.*

It is worthy of notice, that the king, considered as a feudal superior, was in the same circumstances with the greater thanes; and that, by the gradual multiplication of his vassals, his authority over them underwent a<337> similar limitation. The same regulations, therefore, concerning the distribution of justice by the intervention of juries, with the same distinction in this respect between his vassals and bondmen, were introduced into the baron courts of the king, as into those of the nobility, or such of his subjects as retained their allodial property.

The improvements which I have mentioned, in the state of the feudal courts, could not fail to produce a more equal and impartial distribution of justice; and this circumstance, together with the general advancement of civil society, contributed to increase the business of those tribunals. From the greater diffusion of property among the people of inferior condition, law-suits became somewhat more numerous; and from their being frequently decided by men of the same rank with the parties, were likely to procure a fuller and more deliberate hearing. As the exercise of jurisdiction was thus rendered more tedious and burdensome, the great lords, as well as the king, who had been accustomed to preside in the trial both of civil and criminal causes, within their several baronies, were less<338> disposed to give the necessary attendance; and by appointing deputy judges, endeavoured to relieve themselves from a great part of the labour. The same circumstances which gave rise to these inferior officers, contributed afterwards to enlarge their powers; and from the negligence of their constituents, who seldom interfered in controuling their decisions, and at last intirely abandoned the employment of judging, they became the ordinary magistrates in the several demesnes or territories committed to their direction.

The transference of jurisdiction, from the primitive judges to their deputies, laid a foundation for one of the most important alterations in the system of judicial policy. The executive and judiciary powers, with which every feudal baron was originally invested, were in this manner separated from each other; and the exercise of the latter became the sole occupation of particular persons; who, upon that account, were likely to give greater application, as well as to acquire more experience and knowledge in the determination of law-suits. The judges of a barony, though nominated by the baron, had necessarily their<339> own views of right and wrong; and having a character to support, might be supposed, in some cases, to conduct themselves without regard to the interest of their constituents. It happened likewise from the natural course of things, that as the most opulent vassals were found the best qualified for maintaining the dignity of a judge, the same persons were frequently enabled to secure the office during life, and even sometimes to render it hereditary. In either case the judge became in a great measure independent of the feudal lord from whom his authority had been derived. It must be acknowledged, however, that long after the period which we are now examining, the king’s judges continued under a precarious appointment.

A distinguished political author has pointed out the separation of the judicial power from the king’s prerogative, as one of the great sources of the liberty enjoyed by the subjects of Britain.7 To those who speculate upon the conduct of human affairs, it is amusing to discover, that this important regulation was neither introduced from any foresight of its beneficial consequences, nor extorted from the<340> monarch by any party that were jealous of his power; but was merely the suggestion of indolence; and was adopted by the king, in common with other feudal superiors, to relieve them from a degree of labour and attention which they did not chuse to bestow. It was, in reality, a consequence of the general progress of society, by which employments of every sort, both liberal and mechanical, have been distributed among different individuals, and have become the object of separate professions and trades.

As soon as the business of a judge became the sole employment of particular persons, it was necessary that they should obtain a maintenance in return for their labour. This was acquired without any difficulty, from the very exercise of their profession; as the superior by whom they were appointed, empowered them to exact a fee or perquisite from every party whose cause they had occasion to determine. These exactions, which came to be fixed, in every step of judicial procedure, according to the degree of trouble it was understood to produce, were not only sufficient for maintaining the judge, but afforded also an emolument to<341> the superior, who demanded from his deputy a strict account of the fees he had levied. To prevent any embezzlement in this respect, a clerk was appointed to sit in court along with the judge, and to keep a record of judicial proceedings. Such was probably the first intention, not only in England, but in all the feudal countries, of recording the decisions of a judge; though the practice was afterwards made subservient to other purposes of the highest utility.

Of the fees, or perquisites, drawn by the judges under the appointment of the crown, the sovereign acquired a considerable proportion, which formed an additional branch of the public revenue.

From this method of maintaining judges, they had obviously an interest to increase their perquisites by encouraging law-suits, and multiplying the forms of judicial procedure. Hence there occurred a new reason for the interposition of juries in the court of a barony; that they might prevent the unreasonable delay of justice. It may, at the same time, perhaps be admitted, that the interested activity and vigilance of the magistrate was, in that<342> early and rude age, more beneficial in preventing disorder and violence, than it was hurtful, either by promoting litigiousness, or by introducing tedious and absurd formalities into the system of judicial discussion.<343>

CHAPTER XIII

Of Ecclesiastical Courts.

While the nobles were gradually extending their power, and reducing that of the sovereign, the ecclesiastical order was advancing, with hasty strides, to the establishment of an authority independent of either. The barbarism and superstition that succeeded the downfal of the Roman empire, and the system of ecclesiastical government erected in the western part of Europe, had a uniform tendency, as has been already observed, to increase the wealth and influence of the church. Were we to consider merely the progress of superstition, we should expect that the usurpations of the clergy would be most rapid in those European countries, which were at the greatest distance from the incitements to cultivation, and in which the ignorance and simplicity of the inhabitants disposed them to follow more implicitly the direction of their spiritual guides. But the fact was other-<344>wise. The kingdoms in the neighbourhood of the pope’s residence, and of his temporal dominions, were nearer the center of that artful policy, which by taking advantage of conjunctures, exalted no less the power and privileges of the church than the dignity and authority of her leader. Thus the right of levying the tythes, that enormous imposition for the support of the clergy, and which marks the prodigious extent of ecclesiastical influence, was introduced in France, and over a great part of Italy, as early at least as the time of Charlemagne; which corresponds to that of Egbert among the Anglo-Saxons; and the same tax was afterwards extended, by degrees, to the other countries of Europe. It appears to have been finally established in England, during the reigns of Alfred and of Athelstan; patriotic princes, who, doubtless, found themselves under the necessity of giving way to the current of the times, by submitting to such an oppressive exaction.

The increasing opulence of the clergy, as it was an effect of the blind zeal, and the general debasement of the people, so it was accompanied by a corresponding perversion of<345> religious opinions, and by an increase of superstitious observances. The real virtues of society, whose intrinsic value recommends them to our observance, and which frequently appear to cost us nothing, came to be little esteemed, in comparison of penances and mortifications; from which nature is disposed to shrink; and which are submitted to, for no other purpose, but that of appeasing the wrath of an offended deity. These last were accounted highly meritorious in persons of every description; but were thought more especially suitable to the profession and character of churchmen; upon whom it was incumbent to set an example to others. The monks, in particular, who, by their original institution, had no other means of distinction, were incited to procure admiration by the austerity of their lives, and by the severe and painful discipline which they underwent. As they advanced in reputation and popularity, they acquired more numerous and wealthy establishments; their influence in religious matters became proportionably extensive; and they not only rose to great consideration in the government of the church, but frequently, too,<346> interfered in that of the state. From the continent of Europe, the same practices, and ways of thinking, were communicated to Britain; where, about the middle of the tenth century, we find St. Dunstan,1 at the head of the regular clergy, possessed of such power and credit, as enabled him to controul the administration of government, and even to dispose of the crown.

Among the several branches of mortification imposed by the monastic rules, that of celibacy, or a total abstinence from the intercourse of the sexes, was deemed the most important; whether on account of the difficulties which must be surmounted in counteracting the most violent propensities of nature; or on account of that variation of temperature in the human frame, which, however irresistible those propensities may be at certain seasons, yet, on other occasions, renders the indulgence, or even the expression of them, an object of aversion and disgust. This, therefore, became now the usual topic of declamation to the English monks; who, finding the secular clergy to be their great rivals in the public esteem, and being impatient of that superior authority which they possessed, in-<347>veighed against their married life, as inconsistent with the purity of a christian pastor; representing their wives in the light of concubines or prostitutes, and their children as bastards. Though the doctrine inculcated by these fanatical zealots was not carried into execution until a subsequent period, it appears, even at this time, to have been approved and supported 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 assume the cognizance of judicial business, and to form a number of tribunals for the exercise of their jurisdiction. Even before the time of Constantine, when they received no protection or countenance from the civil government,2 they were accustomed to enquire into the faith and manners of christians, and, after repeated admonitions, to excommunicate those individuals who persisted in opinions, or practices, which the church had condemned. This jurisdiction was at first exercised by the clergyman, together with the most respectable among the laity, of each particular church; but when the zeal of the latter, from the greater exten-<348>sion of the gospel, had begun to slacken, they became weary of interfering in such matters; and as they gradually lost their privilege by disuse, the business remained entirely in the hands of the former. When a number of churches were afterwards united in one diocese, the clergy of that latter district, under the authority of the bishop, exercised a jurisdiction of a like nature over the whole of the inhabitants. In the meetings that were called, however, for this purpose, 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 excuse themselves from attendance; and the care of maintaining ecclesiastical discipline, throughout the diocese, was appropriated to the bishop and clergy of his cathedral church. This diocesan court, which, from a perfect uniformity of circumstances, was formed upon the same plan in every diocese of the kingdom, was every where liable to the review of a similar court, in a still more extensive district, convened by the archbishop; and from the decrees of this last, at a period when the papal authority had<349> arrived at its height, there lay an appeal to the Roman pontiff.

Together with this judicial authority, which was properly of a spiritual nature, the christian clergy came also to be invested with a temporal jurisdiction.3 After the christian religion was taken under the protection of the Roman government, and after the fashion of making donations to the church, for pious uses, had become prevalent, the dignified clergy, both secular and regular, as has been formerly mentioned, were enabled to acquire great landed estates. These, upon the settlement of the Gothic nations in the western part of Europe, were gradually reduced under the same feudal policy that obtained in the landed property of the lay-barons; and a great proportion of the lands of every bishop, or abbot, was commonly distributed among his villeins or vassals; over whom he exercised the jurisdiction and authority of a temporal lord and superior. The estate, or benefice, which from the piety of well-disposed persons, or from whatever cause, had been mortified to the church, and had come into the hands of some particular church-<350>man, was afterwards, in like manner as happened to the other fiefs of the kingdom, increased by the voluntary submission of neighbouring small proprietors; who, in order to purchase his protection, resigned their allodial property, and became his vassals. As the dignified ecclesiastics were not only possessed of a degree of influence corresponding to the extent of their benefices, but were supported by the spiritual arm of the church, they were often better qualified than many of the nobles, to secure their dependants from oppression; and of consequence the opportunities of augmenting their wealth, by an artful interposition in behalf of the inferior people, were proportionably more frequent.

In those circumstances, a bishop came to be invested with a civil as well as an ecclesiastical jurisdiction; the one extending to the people who lived upon his own estate; the other to all the inhabitants of his diocese. By virtue of the former, he punished the crimes, and determined the pecuniary differences of his tenants and vassals. In consequence of the latter, he enquired into the opinions and be-<351>haviour of such as were under his direction in religious matters; and censured them, either for heresy or immorality.

It required no great penetration to discover, that this temporal jurisdiction of the bishop might be extended, under cover of the spiritual jurisdiction. Every crime; every transgression of a rule of justice, whether of a public or private nature, may be considered as a sin, or as an offence in the sight of God; and in that view it might, consistently with the system of churchdiscipline, become an object of ecclesiastical censure. Whatever, therefore, could be the ground of an action before the civil magistrate, might be brought, at the same time, under the cognizance of the spiritual judge. The professed purpose of the former was, indeed, very different from that of the latter, who pretended to act merely with the 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 difficult for the ecclesiastical judge to frame his sentences in such a manner as to affect also the interest of men in the present life. In making atonement for a sin, the<352> offender might be ordained to indemnify the injured person, or even to submit to a public punishment.

This extension of ecclesiastical jurisdiction was made with greater or less rapidity, in different parts of Christendom, and with regard to persons or causes of different descriptions. It began with regard to the clergy themselves.

To maintain the dignity and credit of the church, it was necessary that she should pay the utmost attention to the behaviour of her own members, and be careful to avoid scandal, by censuring their offences with impartiality and rigour. She found, at the same time, the least difficulty in compelling churchmen to obey her decrees; for, as soon as the Christian Church had come to be established by law, the excommunication of a clergyman must have inferred a forfeiture of his benefice; since a person, who had been cast out of the society of christians, could not consistently be permitted to hold any ecclesiastical dignity or employment. From the severe discipline, which the church exercised over her own members, it became customary to exhibit com-<353>plaints against them before the ecclesiastical, rather than before the civil judge, and to prosecute them in the church court, either for private debts, or for public offences.

After this practice had become general, it was regarded by churchmen as a matter of privilege. The peculiar functions and character of a clergyman required a peculiar delicacy, it was pretended, in judging of his conduct, which could not with propriety fall under the cognizance of the civil magistrate, and of which the clergy themselves were the only competent judges. In the progress of church power, this exemption from the jurisdiction of temporal courts was gradually established through the greater part of Christendom. It was introduced in the diocese of Rome by a law of Alaric,4 which provided that the clergy of that district should only be prosecuted, in the first instance, before their own bishop; but from his decision an appeal was admitted to the civil magistrate. In the Eastern empire, the inferior clergy obtained a similar privilege, in civil actions, by a law of the emperor Justinian; though, in criminal causes, not properly ecclesiastical,<354> they might still be prosecuted either in the spiritual or temporal court. The higher orders of churchmen, however, together with nuns, were, by the regulation of this emperor, permitted, in all cases, to decline the jurisdiction of laic judges.*

When the exemption of the clergy from the jurisdiction of the civil magistrate, which, with the exception of a few causes, became universal in the Western part of Europe, had been completely established, the church was, in reality, independent of the state; since, whatever regulations were enacted by the legislature of any country, they might, with safety, be disregarded by churchmen, who could not be punished for the violation of any law, unless they thought proper to enforce it by their own courts.†

The power of the church, in the administration of justice to her own members, was followed by a similar jurisdiction over the laity, in those law-suits by which her own<355> interest might, in any degree, be affected, or which appeared, however indirectly, to have an influence upon any ecclesiastical matter. But, in England, this encroachment upon the province of the civil magistrate was posterior to the Norman conquest: and therefore does not fall under our present consideration. During the government of the Anglo-Saxon princes, the clergy did not claim a separate cognizance in the temporal causes of the laity; but they laid the foundation of such a claim, in a future period, by assuming a privilege of assisting the ordinary magistrates in the determination of such causes. The extent of a diocese being the same with that of a shire, the bishop sat along with the earl or sheriff, as a judge, in the county courts; and the rural dean, whose ecclesiastical district coincided with the hundred, appears, in like manner, to have been associated with the centenarius, in the determination of such differences as arose among the people of that division. It is not improbable that the union of the civil and ecclesiastical powers was carried still lower, and that the parson of a parish was accustomed to judge along with the tythingman, in the<356> court of the decennary: this is what might be expected from the correspondence between the limits of a parish and a tything, and from the analogous practice in the superior courts; though the accounts transmitted by early historians are too vague and general to afford any positive evidence of the fact.

This arrangement of the Saxon tribunals was a natural consequence of the influence possessed by the spiritual and the temporal governors, in the territories over which they presided. It seems, at the same time, to have been esteemed a wise regulation; in as much as by uniting the opinion of those two officers, in the distribution of justice, it was likely that the decisions would be tempered in such a manner, as might correspond to the interest, and the views, of every set of men in the community. The experience and foresight of that age was too limited to discover the inconveniency of confounding the plain and accurate rules of justice, with the intricate subtleties of casuistry, which naturally introduce themselves into the judgments of a spiritual director: not to mention the danger of committing a share of the judicial power, in those<357> times of ignorance, to a set of men, who, by their superior education, were likely to be an over-match for the civil magistrate, and who, by their situation, having acquired a separate interest, were led to seek their own aggrandizement at the expence of the great body of the people.<358>

CHAPTER XIV

Alterations in the State of the Wittenagemote.

The progressive changes in the state of property, and in the constitution and circumstances of the people, of which an account has been given, must have contributed, in many particulars, to alter the constitution and procedure of the Wittenagemote. As this national counsel was composed of all the allodial proprietors of land, whose estates, according to the primitive distribution of property, were generally of small extent, there can be no doubt that, upon the union of the different kingdoms of the Heptarchy, it formed a very numerous, and, in some degree, a tumultuary meeting. The measures which came under its deliberation were proposed, it should seem, by such of its members as were distinguished by their influence or abilities; and its determinations were signified, not by collecting exactly the number of suffrages, but by a promiscuous acclamation, in which the<359> by-standers, it is not unlikely, were accustomed frequently to join with those who had the right of voting. This, in all probability, is what is meant by the early historians, when they speak of the people being present in the ancient Wittenagemote, and of their assisting, and giving their consent, in forming the resolutions of that assembly.

It cannot escape observation, that this early constitution of the national council, while it contained a mixture of democracy and aristocracy, was, in some respects, favourable also to the interests of the crown. In so numerous and disorderly an assembly, there was great room for address, in managing parties, and in conducting the subjects of public deliberation; so that the king, the chief executive officer, had many opportunities of promoting the success of a favourite plan, as well as of parrying, and removing out of sight, those measures which were disagreeable to him.

The frequent resignations of land which, during the progress of the Saxon government, were made by the small allodial proprietors, in order to shelter themselves under the protection of a feudal superior, necessarily withdrew those<360> individuals from the Wittenagemote; and reduced them under the jurisdiction and authority of that particular thane whom they had chosen for their protector. As they became his military servants, they were bound, on every occasion, to espouse his quarrel, and to follow his banner. They were bound, at the same time, to attend his baron-court, and to assist in deciding causes, as well as in making regulations, with regard to his vassals. In consistency with that subordinate station, they could not be permitted to sit in the same council with their liege lord, to deliberate with him upon public affairs; but, on the contrary, were understood to be represented in the Wittenagemote by the person who had undertaken to protect them, and to whom they owed submission and obedience.

Thus, according as the vassals of the nobility, throughout the kingdom, were multiplied, the constituent members of the Wittenagemote became less numerous; and the right of sitting in that assembly was more and more limited, to a few opulent barons, who had acquired the property of extensive districts,<361> and reduced the inhabitants under their dominion.

This change of circumstances was no less unfavourable to the king, on the one hand, than it was, on the other, to the great body of the people. For although the vassals of the crown were, by the gradual resignations of allodial property, increased in the same, or even in a greater proportion than those of particular noblemen, the sovereign was not thence enabled to preserve his former weight in the determination of public measures. The more the national council had been reduced to a small junto of nobles, it was the more difficult to impose upon them, or by any stratagem to divert them from prosecuting their own views of interest or ambition. By the accidental combination of different leaders, they sometimes collected a force which nothing could resist; and were in a condition, not only to defend their own privileges, but even to invade the prerogative. It was often vain for the sovereign, in such a situation, to appeal to the sword from the decisions of the Wittenagemote. Those haughty and ambitious subjects were generally prepared for<362> such a determination; and, as they came into the assembly, supported by their vassals, armed and ready to take the field, they got frequently the start of his majesty. To give way, therefore, to their demands, and to wait for some future opportunity of recovering what had been yielded, was in many cases unavoidable.

In that early period of the Anglo-Saxon state, when the allodial proprietors were numerous, and when their estates were generally small, they were understood to be all of the same rank and condition. Although some persons might be distinguished above others, by their abilities, or military reputation, the superiority derived from thence, being accidental and temporary, was not productive of any permanent authority or privileges. But when, from the causes which have been mentioned, a few great lords had become masters of an extensive landed property, their exaltation in power and dignity was a necessary consequence. Those individuals, on the contrary, who remained in the possession of small estates, though by any fortunate concurrence of events they had been enabled to retain their independence, were degraded in proportion to<363> their poverty. They could maintain but few retainers to support their influence. Hardly in a condition to defend themselves, and afraid of every contest which might endanger their property, and their personal safety, they were deterred from claiming political consideration, and from interfering in public business. It was their interest to live upon good terms with their neighbours, and, by their peaceable and inoffensive behaviour, to shun every ground of jealousy and resentment. 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 neglect, or with derision. They had but small encouragement, therefore, to attend the meetings of that assembly; where, at the same time that they incurred an expence not suited to their fortunes, they were subjected to continual mortification, and were incapable of procuring respect. In these circumstances, it is probable that the allodial proprietors, whose estates were inconsiderable, appeared but seldom in the Wittenagemote; and that, unless upon extraordinary occasions, when great unanimity was of the highest importance,<364> their absence was either dispensed with, or in a great measure overlooked.

It was to be expected that this very unequal distribution of property, as it produced a real difference in the consideration and importance of individuals, would come at length to be accompanied with corresponding marks of distinction; and that so much wealth as enabled the possessor to live according to a certain standard of magnificence, might become the foundation of suitable dignity. Thus, in the latter part of the Anglo-Saxon government, such of the nobles as enjoyed an estate, extending to forty hides of land, were distinguished in rank and condition from those who possessed an inferior property. This appears from a passage in the register of Ely, in which mention is made of a person who, “though he was a nobleman, could not be numbered among the proceres,1 because his estate did not amount to forty hides of land.”* <365>

From this passage, political writers have been led to advance two conjectures, to which it gives no countenance whatever. They consider the rank or privileges, attached to the possession of forty hides of land, as having existed from the original settlement of the Anglo-Saxons; although the writer of that passage speaks only, and that by the by, of what was established in the reign of Edward the confessor. They also maintain, that persons whose estates were below forty hides of land, were entirely excluded from the right of sitting in the Wittenagemote. But the passage referred to makes no mention of the right of sitting in the Wittenagemote, nor gives the least hint concerning it; but only points out the extent of property which entitled a person to be ranked among the proceres. There is no reason to believe, either from this, or from any other ancient author, that, even in the latter part of the Anglo-Saxon government, the proprietors of such great estates were the only members of the national assembly; though it is, no doubt, highly probable, that they would be more apt, than persons of a lower station, to give a punctual attendance upon its meetings.<366>

The superior dignity, however, enjoyed, in the reign of Edward the confessor, by such of the nobility as were possessed of a certain extent of property, is the more worthy of attention, as it became still more remarkable after the Norman conquest, and laid the foundation of that noted distinction between the greater and smaller barons, which was productive of important changes in the constitution.

As the Wittenagemote was diminished by the reduction of many allodial proprietors into a state of vassalage; it may be questioned whether it did not, on the other hand, receive a gradual supply of new members, by the advancement of the churles, who, in consequence of the law of king Athelstane, were, upon the acquisition of five hides of land, admitted to the privileges of a thane. Concerning this point the following observations will occur. 1st. That though many of the peasants appear, in the latter periods of the Anglo-Saxon government, to have become free, and even opulent, it is probable that they held their possessions upon the footing of vassalage, rather than of allodial property; in consequence of which, they could only be ranked, from the<367> law above-mentioned, among the lesser thanes, who had no right of sitting in the Wittenagemote: 2dly, Supposing that any of these churles acquired allodial estates, and that they were strictly entitled to a voice in the Wittenagemote; yet, about the time when this privilege was bestowed, a much greater property than five hides of land, the quantity specified in the law of king Athelstane, was required for giving the proprietor any weight or consideration in that assembly, or for making his attendance upon it a desirable object. This was a privilege, therefore, which they would be more apt to decline from its inconveniencies, than to exercise, or to boast of, on account of its advantages.

It may also be a question, whether those merchants who performed three voyages into a foreign country, and who, by another law of the same prince, are said to have obtained the rights of a thane, were admitted into the Wittenagemote. But, as these mercantile adventurers were not required to possess any estate, real or personal, it is not reasonable to suppose that they could be allowed to participate, with the ancient nobility, in the delibe-<368>rations of the supreme national council. It has already been observed, that by the privileges of a thane, bestowed as an encouragement to a certain degree of enterprize in trade, were probably understood those of a lesser thane, or vassal; who, though not a member of the Wittenagemote, was of a condition greatly superior to that of the original peasants and mechanics.

As it does not appear that individuals among the merchants had, independent of any landed estate, the privilege of sitting in the Wittenagemote; so there is no evidence that, collectively, the trading interest were, even in the latter part of the Anglo-Saxon history, entitled to send representatives to that assembly. Of this we may be satisfied from the particulars, relative to the constitution of the national council, which have been formerly mentioned. The facts which were then adduced, in order to shew that in the Saxon Wittenagemote there were no representatives, either from towns, or from the small proprietors of land, appear conclusive with regard to the whole period of the English government before the Norman conquest. If the<369> original constitution of that assembly admitted of no representatives from either of those two classes of men, it must be supposed, that the subsequent introduction of them, more especially if it had happened near the end of the Saxon period, when historical events are better ascertained, would have excited the attention of some historian or other, and have been thought worthy of transmission to future ages. But upon this point, of so much importance in the political system, and so unlikely to pass without notice, the later as well as the early Saxon historians are entirely silent.

The advancement of arts and manufactures, towards the end of the Saxon line, was, indeed, so considerable, as to have enlarged particular towns, and to have exempted the inhabitants from those precarious duties and services to which they had anciently been subjected. They were permitted to form societies, or gilds, for the benefit of their trade; which appear to have at length suggested the practice of incorporating the whole of a town with particular privileges and regulations.* By a series of progressive improvements, the trading people were thus gradually prepared<370> and qualified for that political consideration which they afterwards acquired by the establishment of representatives in the national council. But the acquisition of this important privilege was the work of a later period, when they rose to a higher pitch of opulence and independence.

The original meetings of the Wittenagemote in England, as well as those of the national council, in most of the kingdoms upon the neighbouring continent, appear, as was formerly observed, to have been held regularly at two seasons of the year; at the end of spring, for deliberating upon the military operations of the summer, and at the beginning of autumn, for dividing the fruit of those depredations. The same times of meeting were, for similar reasons, observed, in the courts belonging to the several shires and baronies of the kingdom. But as, in England, from her insular situation, military enterprizes against a foreign enemy were less regular than upon the continent of Europe, those meetings fell soon into disuse; and as, on certain great festivals, the king was accustomed to appear, with great pomp and solemnity, among his nobles; it was found convenient, on those oc-<371>casions, to call the Wittenagemote. Hence the meetings of that council came to be held uniformly at three different seasons; at Christmas, at Easter, and at Whitsuntide.2

The increase of the national business, particularly with respect to the distribution of justice, a consequence of the gradual progress of authority in the public, made it necessary that the Wittenagemote should be held more frequently than in former times; and therefore, in any extraordinary exigence, which arose between the different festivals above mentioned, a particular meeting of that council was called by the king. Thus there came to be two sorts of Wittenagemote; the one held by custom; and at three stated periods; the other called occasionally, by a special summons from the king.* Both were composed of the same persons, if they chose to attend; but commonly a much less regular attendance was given in the latter than in the former. At the occasional meetings of the great council, such of the nobility as lived at a distance were seldom at the trouble of appearing; and the business, of course, devolved upon those mem-<372>bers who happened to be in the king’s retinue, and who might be said to compose his privy council.

For this reason, the occasional meetings of the Wittenagemote usually confined themselves to matters of less importance than were discussed in the old customary meetings. The chief employment of the former was the hearing of appeals from inferior courts: but legislation, and other weighty transactions, were generally reserved to the latter.

If, however, it was found necessary, in the interval between the three great festivals, to deliberate upon public business of importance, the king issued an extraordinary summons to his nobles; in which he expressly required their attendance, and specified the cause of their meeting.†

It may here be proper to remark, that the smaller occasional meetings of the Wittenagemote appear to have suggested the idea of the aula regis;3 a separate court, which, after the Norman conquest, was formed out of parliament for the sole purpose of deciding law-suits.

As the occurrences which demanded the immediate interposition of the Wittenagemote<373> could not be foreseen, the king was led to determine the particular cases in which the deliberation of that assembly was requisite; and in the exercise of this prerogative, he was originally under no restraint. The powers exercised by the crown seem, at first, to have been all discretionary; and to have remained without limitation, until experience had shewn the danger of their being abused.

We shall afterwards have occasion to observe, that, under the princes of the Norman and Plantagenet race, the ancient and regular meetings of the national council were more and more disregarded, and at length entirely disused; in consequence of which the whole parliamentary business came to be transacted in extraordinary meetings, which were called at the pleasure of the sovereign. The attempts to limit this important branch of the royal prerogative will be the subject of future discussion.

Conclusion of the Saxon Period.

Such appear to be the outlines of the English government under the administration of the Anglo-Saxon princes. To the subjects of Britain, who consider the nature of their<374> present constitution, and compare it with that of most of the nations upon the neighbouring continent, it seems natural to indulge a prepossession, that circumstances peculiarly fortunate must have concurred in laying the foundation of so excellent a fabric. It seems natural to imagine, that the government of the Anglo-Saxons must have contained a proportion of liberty, as much greater than that of the neighbouring nations, as our constitution is at present more free than the other European governments.

When we examine, at the same time, the state of our country, in that remote age; the uniform jurisdiction and authority possessed by every allodial proprietor; the division of the country into various districts, subordinate one to another; the perfect correspondence between the civil and ecclesiastical divisions; the similarity in the powers exercised by the meetings of the tything, the hundred, and the shire, in their respective territories, and those of the Wittenagemote over the whole kingdom; the analogy between the office of the tythingman, the hundreder, and the earl, in their inferior departments, and that of the sovereign in his more exalted station; when,<375> I say, we examine these, and other particulars relating to the Anglo-Saxon government, in which we may discover so much order and regularity, such a variety of regulations, nicely adjusted to one another, and calculated for the most beneficial purposes; it is natural to suppose, that the whole has originated in much contrivance and foresight; and is the result of deep laid schemes of policy.

In both of these conclusions, however, we should undoubtedly be mistaken. When we look round and examine the state of the other European kingdoms about the same period; and when we observe, in each of them, the close and minute resemblance of its political system to that of England, how little soever the apparent intercourse of the inhabitants; we feel ourselves under the necessity of abandoning our former supposition, and of acknowledging that the regulations established in all of these countries proceeded from no artificial or complicated plans of legislation; but were such as occurred successively to the people, for the supply of their immediate wants, and the removal of incidental inconveniencies; in a word, every where, a kind of natural growth, produced by<376> the peculiar situation and circumstances of the society.

Neither was the Anglo-Saxon government calculated, in any peculiar manner, to secure the liberty and the natural rights of mankind. The sovereign, indeed, in the long period during which this government subsisted, and through all the successive alterations which it underwent, was at no time invested with absolute power. The supreme authority in the state was originally possessed by a numerous body of landed proprietors; but the rest of the community were either slaves, or tenants at the will of their master. The number of those who enjoyed a share in the government was afterwards greatly diminished: at the same time that, upon this advancement of the aristocracy, the lower part of the inhabitants became somewhat more free and independent. The encrease of political power in men of a superior class was thus compensated by some little extension of privileges in the great body of the people.

end of vol. i.

AN

HISTORICAL VIEW

OF THE

ENGLISH GOVERNMENT

FROM THE

SETTLEMENT OF THE SAXONS IN BRITAIN

TO

THE REVOLUTION IN 1688.

To which are subjoined,

SOME DISSERTATIONS CONNECTED WITH THE

HISTORY OF THE GOVERNMENT,

From the Revolution to the Present Time.

BY JOHN MILLAR ESQ.

Professor of Law in the University of Glasgow

IN FOUR VOLUMES

VOL. II.

London:

printed for j. mawman, no 22 in the poultry.

1803.

By T. Gillet, Salisbury-Square

Book II

OF THE ENGLISH GOVERNMENT FROM THE REIGN OF WILLIAM THE CONQUEROR, TO THE ACCESSION OF THE HOUSE OF STEWART.

The political history of this extensive period may be subdivided into three parts;1 the first extending from the Norman conquest to the end of the reign of Henry the third; the second, from the beginning of the reign of Edward the first, to the accession of Henry the seventh; and the third, comprehending the reigns of the Tudor family. In each of these parts we shall meet with progressive changes in the English constitution, which appear to demand a separate examina-<2>tion, and which, being analogous to such as were introduced, about the same time, in the other European governments, may be regarded as the natural growth and development of the original system, produced by the peculiar circumstances of modern Europe.<3>

CHAPTER I

The Norman Conquest.—Progress of the feudal System.—View of the several Reigns before that of Edward I.—The great Charter, and Charter of the Forest.

William the conqueror ascended the throne of England, partly by force of arms, and partly by the voluntary submission of the people. The great landed estates, acquired by a few individuals, towards the end of the Saxon government, had exalted particular nobles to such power and splendor, as rendered them, in some degree, rivals to the sovereign, and even encouraged them, upon any favourable emergency, to aspire to the crown. Among these, under the feeble reign of Edward the confessor, we may distinguish Godwin earl of Wessex, who had become formidable to the monarch; and, after the death of that earl, his son Harold, who, at the same<4> time that his possessions were not less extensive than those of his father, being endowed with superior abilities, and much more amiable dispositions, appears to have attained a degree of influence and authority which no English subject had ever enjoyed. He became, of course, an object of jealousy to Edward; who, in the decline of life, and having no children, was anxious to exclude this nobleman from the throne, by securing the succession to one of his own kindred. Edward himself was properly an usurper, having seized the crown to the prejudice of his elder brother’s son, the undoubted lineal heir.1 This prince being now dead, the right of inheritance devolved upon his son, Edgar Atheling, whose tender age, and slender abilities, appeared to disqualify him, in such a critical conjuncture, for wielding the sceptre over a fierce and turbulent people. In those disorderly times, the line of hereditary succession, though not intirely disregarded, was frequently broken from particular accidents: persons incapable of defending the sovereignty, were commonly deemed unworthy to obtain it; and the recommendation, or will, of the reigning prince was always<5> held to be a strong circumstance in favour of any future competitor for the succession.

Edward the confessor had resided four and twenty years in the court of Richard the second,2 duke of Normandy, his maternal uncle; by whom, in the short reign of his brother Edmund Ironside, and during the usurpation of the Danish monarchs,3 he was generously educated and protected. By remaining, for so long a period, in a foreign country, where he was caressed, and treated with every mark of distinction, the English prince was led to form an attachment to the people, whose progress in arts, government, and manners, surpassed that of his own countrymen; and he ever retained a grateful remembrance of the hospitality and kindness which he had experienced in the family of his kinsman. When he mounted the throne of England, a communication was opened between the two countries; and an intimate connexion subsisted between the respective sovereigns. Multitudes of Normans resorted to the English court, in expectation of preferment; many individuals of that country obtained landed possessions in England; and many were promoted to offices of<6> great dignity, both in church and state. These foreigners, who stood so high in the favour of the sovereign, were imitated by the English in their dress, their amusements, their manners, and customs. They imported also the French language; which had for some time been adopted by the Normans; and which, being regarded as a more improved and elegant dialect than the Saxon, became fashionable in England, and was even employed, it is said, in the writings and pleadings of lawyers.

The dutchy of Normandy having descended to William,4 the natural son of Robert, and nephew of Richard II. the affections, as well as the policy of Edward, made him cast his eyes upon that prince, his nearest relation by the mother, and the most able and accomplished warrior of his time, as the most proper person to succeed him in the throne. His illegitimate birth, was, in that age, an objection of little moment; since it had not prevented him from inheriting the dukedom of Normandy; and since a similar stain is observable in the line of our Saxon kings. Some historians have asserted, that the English monarch actually made a will, by which he be-<7>queathed his crown to the duke of Normandy; and that this deed was even ratified by the states of the kingdom. But whether such a transaction was really executed, appears extremely doubtful. It is certain, however, that Edward had publickly declared his intentions to this purpose; that William, in consequence of such declaration, had openly avowed his pretensions to the crown of England; and that Harold himself, being upon a visit to the Norman court, and having received a promise of the duke’s daughter in marriage, had taken a solemn oath to support his title. An artifice which was put in practice, with relation to that oath, in a contract between two of the most conspicuous personages of the age, is worthy of attention, as it exhibits a ludicrous picture of the superstition to which the minds of men were then universally subjected. William secretly conveyed under the altar upon which Harold was to swear, the bones of some of the most revered martyrs; and after the oath was taken, shewed the relics to the affrighted nobleman; who discovered, with equal concern and indignation, that he was ensnared into a much stronger obligation than he had<8> intended; and that his future breach of promise would be productive of more fatal consequences than he had been aware of.

By what species of casuistry Harold afterwards endeavoured to satisfy his conscience with respect to the violation of this oath, which had, indeed, been in some degree extorted from him, we have no information; but, in fact, he neglected no opportunity of increasing his popularity, and of strengthening his connexions among the nobility; so that, upon the death of Edward, he found himself, before his rival could take any measures for preventing him, in a condition to obtain possession of the throne, and to bear down every appearance of opposition. The duke of Normandy was not of a temper to brook this disappointment, and tamely to relinquish his pretensions. He collected a great army, composed not only of such forces as could be levied in his own dominions, but of all those desperate adventurers whom the prospect of plunder, and of military reputation, allured to the standard of so celebrated a leader. The battle of Hastings,5 in which Harold and his principal adherents were slain, put an end to the struggle,<9> and left the victorious general without a competitor. This decisive action was followed by a speedy submission to his authority; and the chief of the nobility and clergy, together with Edgar Atheling himself, having made an offer of the vacant throne, he was crowned at Westminster Abbey, with the usual solemnities. It is worthy of notice, that, on this occasion, he took the same oath which had formerly been administered to the Saxon kings, “that he would maintain the ancient fundamental laws of the kingdom”; to which there was added a particular clause, suggested by the peculiarity of the present circumstances, “that he would distribute justice impartially between his English and his Norman subjects.”6

The crown of England having thus been transmitted to a foreign family, William, according to the barbarous Latin of those times, received the title of conquaestor; which has, without much propriety, been translated the conqueror. It imported merely an acquirer, in contradistinction to a person who inherits by lineal descent, corresponding to the sense in<10> which, by the present law language of Scotland, conquest is opposed to heritage.*

Whether the accession of this monarch is to be considered in the light of a real conquest by force of arms, unsupported by any other circumstance, would be a frivolous question, were it not for the serious and important consequences which have, by some authors, been connected with that supposition. It is maintained, that if William intirely conquered the kingdom, he could be under no restraint in modelling the government; that he, accordingly, overturned altogether the ancient constitution;7 and in place of that moderate system which had grown up under the Saxon princes, introduced an absolute monarchy. The supposition itself is no less remote from truth, than the conclusion drawn from it is erroneous. It was the party of Harold only that was vanquished by the arms of the Normans; and had<11> it not been for the usurpation of that nobleman, William would probably have met with no opposition to his claim. After the defeat of Harold, there was, beside the duke of Normandy, no other candidate able to hold the reins of government. Even supposing William to have completely conquered the whole of the English, his conquest, surely, was not extended over those Norman barons, the associates and companions of his enterprize, to whom he was chiefly indebted for his success. When those powerful chieftains obtained possessions, in England, proportioned to their several merits, and became grandees of the kingdom, it is not likely that they would willingly relinquish the independence which they had enjoyed in their own country, or that they would regard the assistance they had given to their duke, in raising him to be a great king, as a good reason for enslaving them.* <12>

But, however this be, nothing is more clear in point of fact, than that William was far from wishing to hold himself up to the people of England in the light of a conqueror. Like every wise prince, who has employed irregular and violent measures for obtaining the sovereignty, he endeavoured as much as possible to cover every appearance of usurpation; and was willing to exercise his power in the manner most likely to secure the continuance of it. He was active in restraining his Norman followers from committing depredations on the English, and in preventing disputes between the individuals of those different nations. The partisans of Harold, who had distinguished<13> themselves by supporting his cause in the field, were, doubtless, deprived of their possessions; but the rest of the English, who submitted to the authority of the monarch, were treated with marks of his favour and confidence. Many of those who had been in arms against him, were overlooked or forgiven; and the people in general received assurances of his protection. London, and the other cities of the kingdom, were confirmed in their immunities and privileges. Even Edgar Atheling himself, the lineal heir of the crown, was permitted to live in safety, and to retain the estate and honours which had formerly been conferred upon him. Justice was every where administered, not only with great impartiality, but by tempering clemency with severity; and, the public tranquillity being thus, in a short time, perfectly restored, the government under the new sovereign proceeded, without interruption, in its former channel.* <14>

But though the constitution was far from being converted into an absolute monarchy, by virtue of an immediate conquest, a considerable change was, about this time, introduced, both in the state of landed property, and in the authority of the sovereign. For this change, the country, during the latter part of the Anglo-Saxon government, 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<15> into the condition of military servants, those great lords, who remained at the head of extensive districts, were brought into a more direct opposition and rivalship to one another. Their estates, by gradual enlargement, were become contiguous; and those intermediate possessors, whom they had formerly been employed in subduing, were now distributed upon either side, and ready to assist their respective superiors in their mutual depredations. Those hereditary fiefs, which had been scattered over a multitude of individuals, were now concentered in a few great leaders; who felt a stronger incitement to the exercise of reciprocal hostilities, as well as the capacity of prosecuting them with greater vigour and perseverance, according as their power, together with their pride and their ambition, had been augmented. The public magistrate was often unwilling to interfere in reconciling their differences, and was even pleased to see their force wasted and broken by their mutual ravages. The greater nobles were thus permitted to injure and oppress one another at their own discretion; and, being exposed to such difficulties and distresses as had formerly been sustained by<16> the proprietors of small estates, were obliged to extricate themselves by similar expedients. They endeavoured to provide against the dangers which threatened them, from the invasion of some of their neighbours, by forming an alliance with others; or, if this resource had proved ineffectual, by courting the favour and soliciting the protection of the king. Nothing less than the power of the crown was capable, in many cases, of delivering them from their embarrassment; and, in order to procure that relief which their situation required, it was necessary that they should promise, upon their part, a return of good offices. If they were anxious to enjoy that security which he bestowed upon his immediate retainers, they could not decently withhold from him the same homage and fealty, or refuse to perform the same services. They found, in a word, that it was expedient for them to resign their allodial property, and to hold their estates by a feudal tenure as vassals of the crown.

The political theatre, at that time, exhibited a frequent repetition of the same parts by different actors. Those opulent individuals, who had formerly been in a condition to oppress<17> their neighbours, and force them into a state of dependence upon the sovereign, were, by a different combination of rival powers, or by an alteration of circumstances, rendered, on other occasions, incapable of maintaining their own independence; and being, in their turn, induced to supplicate the interposition of the crown in their favour, were obliged to purchase it by the same terms of submission. As these resignations of land were in the highest degree advantageous to the sovereign, we can have no doubt that the influence of the court would be uniformly exerted, and that every possible artifice would be employed, in promoting them. The great nobles were thus rendered subordinate to the crown in the same manner as the inferior free people had become subordinate to the nobility;8 the whole kingdom was united in one extensive barony, of which the king became the superior, and in some measure the ultimate proprietor; and the feudal system, as it is called, of which the foundations had been laid several centuries before, was at length entirely completed.

From the state of England, about the accession of the Norman race of kings, a change<18> of this nature was likely to have happened; though it was, undoubtedly, promoted and accelerated by the peculiar circumstances of William the conqueror. From the great abilities of that prince, as well as from the manner in which he ascended the throne, he became possessed of uncommon personal influence; and, by his uniting the dutchy of Normandy to the crown of England, the royal demesnes, and the public revenue, were greatly extended. But above all, the numerous forfeitures, incurred by the partisans of Harold, and by such as were incited to acts of rebellion, during the course of William’s reign, enabled the sovereign to acquire a prodigious landed territory in England; part of which he retained in the possession of the crown; and the rest he bestowed upon his favourites, under condition of their performing the feudal services.

It must not be overlooked, that this feudal policy was extended to the greater ecclesiastical benefices, as well as to the estates of the laity. The bishops and abbots became immediate vassals of the crown; and, though not bound to the king for personal service in war, were obliged to supply him with a number of military<19> tenants proportioned to the extent of their possessions. Notwithstanding the great influence of the clergy, supported by the Roman pontiff, who strongly remonstrated against this innovation, yet, as ecclesiastical benefices were enjoyed only for life, those churchmen who expected preferment from the crown were, without much difficulty, prevailed upon to accept of a benefice, under such general conditions as now began to be imposed upon all the great proprietors of land.

The change which was thus effected in the state of the great nobles, was far from being peculiar to England. It was extended, nearly about the same time, over all the kingdoms in the western part of Europe; and in most of them, was the result of no conquest, or violent effort of the sovereign, but appears to have proceeded from the natural course of the feudal governments.

In France the great barons appear to have become the immediate vassals of the crown, in the time of Hugh Capet; whose reign began about eighty years before the Norman conquest; and who obtained the regal dignity, without any appearance of disorder or violence,<20> by the free election of the national assembly. The feudal institutions having been completed in that kingdom, of which Normandy constituted one of the principal baronies; it is likely that William, when he came into England with a train of Norman vassals, found it the more easy to establish that system, because his followers had already been acquainted with it in their own country.

In the German empire many powerful barons became vassals of the emperor, as early as the reign of Otho the Great; who had likewise been advanced to the sovereignty, not by force of arms, but by the voice of the diet. From particular causes, however, the feudal subordination of the nobility was not rendered so universal in Germany as in other European countries.* <21>

By this alteration in the state of landed property, the power of the crown was undoubtedly increased; but it was not increased in so great<22> a proportion as at the first view may perhaps be imagined. When the allodial estates of the great lords were converted into fiefs, they were invariably secured to the vassal and his heirs. The power and influence of those opulent proprietors were therefore but little impaired by this change of their circumstances. By their tenures they were subject to the jurisdiction of the king’s courts, as well as bound to serve him in war; and they were liable for various incidents, by which his revenue was considerably augmented; but they were not in other respects dependent upon his will; and, while they fulfilled the duties which their condition required, they could not, with any colour of justice, be deprived of their possessions. Neither was the sovereign capable, at all times, of enforcing the performance of the feudal obligations;<23> but from the power of his great vassals, or the exigence of his own situation, he found it necessary, in many cases, to connive at their omissions, and even to overlook their offences.

The reign of William the First was filled with disquietude and uneasiness, both to the monarch, and to the nation. About six months after the battle of Hastings, he found the kingdom in such a state of apparent tranquillity, that he ventured to make a visit to Normandy; in order, as it should seem, to receive the congratulations of his ancient subjects. He probably intended to survey his late elevation from the most interesting point of view, by placing himself in the situation in which he had planned his undertaking, and by thence comparing his former anxious anticipations with his present agreeable reflections. William is, on this occasion, accused by some authors of having formed a resolution to seize the property of all his English subjects, and to reduce them into the most abject slavery.9 He is even supposed to have gone so soon into Normandy, for the purpose of giving them an opportunity to commit acts of rebellion, by which a pretence<24> might be afforded for the severities which he had purposed to execute.* But, as this has been advanced without any proof, so it appears in itself highly improbable. It is altogether inconsistent with the prudence and sound policy ascribed to this monarch, not to mention the feelings of generosity or justice, of which he does not seem to have been wholly destitute, that he should, in the beginning of his reign, have determined to crush and destroy the English nobility, merely for the sake of gratifying his Norman barons; since, by doing so, he must have expected to draw upon himself the hatred and resentment of the whole kingdom, and to incur the evident hazard of losing that crown which he had been at so much trouble and expense in acquiring. Although William was, doubtless, under the necessity of bestowing ample rewards upon many of his countrymen, it was not his interest that they should be enriched, or exalted beyond measure. Neither was he of a character to be guided by favourites, or to sacrifice his authority to the weakness of private affection. When he found himself seated upon the English<25> throne, it is natural to suppose that he would look upon the dutchy of Normandy as a distant province, or as a mere dependency of the crown of England; and that he would be 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 himself in putting a stop to those quarrels which, in his absence, had broke out between his English and his Norman subjects, and in giving redress to the former, for those injuries which they had sustained from the latter. In particular, he endeavoured, every where, to restore the English to those possessions from which they had been expelled, through the partiality, or want of authority in those persons with whom he had left the administration of government.

Several circumstances contributed to render this monarch unpopular, and have subjected his conduct to greater clamour and censure than it appears to have merited.

1. The jealousy with which the English beheld the Normans, whom they looked upon as intruders, and who became the ruling party,<26> gave rise to numberless disputes, and produced a rooted animosity between them. The partiality which, in such cases, might frequently be discovered, and perhaps was oftener suspected, in the sovereign, or in those to whom he committed the inferior branches of executive power, inflamed the passions of men who conceived themselves loaded with injuries, and excited them to frequent insurrections. By the punishment, which fell unavoidably upon the delinquents, and which could not fail to be regarded by their countrymen as rigorous, new discontents were occasioned, and fresh commotions were produced.

To the aversion which the English conceived against William, as a Norman, and as the friend and protector of Normans, they joined a strong prejudice against those foreign customs which he and his followers had imported. Devoted, like every rude nation, to their ancient usages, they were disgusted with those innovations which they could not prevent; and felt the utmost reluctance to adopt the peculiar manners and policy of a people by whom they were oppressed. The clamours propagated against particular laws of William<27> the conqueror, which were considered as the most oppressive, may serve to demonstrate, that his subjects had more disposition to complain than there was any reason to justify. It appears that the origin and nature of some of these laws have been grossly misunderstood and misrepresented. The regulation, for instance, that lights should be extinguished in every house 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 most violent exertion of tyranny; and the most incontestable evidence, not only that William was determined entirely to break and subdue the spirit of the English, but that he was held in continual terror of their secret conspiracies. It is now generally understood and admitted, that this was a rule of police established in the greater part of the feudal nations; as by the extreme sobriety which it enforced, it was peculiarly adapted to the circumstances of a simple people. Another law, the source of much complaint, and deemed an intolerable grievance, was, that when a Norman was robbed or slain, the hundred, within<28> whose territory the crime had been committed, should be responsible, and subject to a pecuniary punishment. This regulation, which, in all probability, had become necessary, from the multitude of Normans that were daily assassinated, was originally of Saxon institution, and was only accommodated in this reign to the exigence of the times.

2. The extension of the prerogative, by reducing the allodial proprietors of land into a state of vassalage under the crown, was likewise, we may suppose, the ground of dissatisfaction and murmuring to those great barons, who found themselves deprived of their ancient independence, and were exposed to much vexation from those various incidents, the fruit of the feudal tenures, that were now claimed by the sovereign. The discontent arising from this cause, and the desire of recovering that condition which they had held under the Anglo-Saxon princes, was not limited to the English nobility; but was readily communicated to those Norman chiefs who had obtained estates in England, and were naturally animated with the ambition of supporting the privileges of their own order in opposition to<29> the claims of the sovereign. One of the most formidable insurrections, during the reign of William the First, appears to have been excited and conducted by some of the principal Norman barons; and to have proceeded from the impatience of those individuals under that recent authority which the crown pretended to exercise.10

3. Another circumstance which contributed, no less than either of those which have been mentioned, to render William unpopular, was the resentment of the clergy, whom he greatly offended by his exactions from them, and by his opposition to the progress of ecclesiastical authority. As the clergy possessed great influence over the people, so they were the only historians of those times;11 and in estimating the character of any particular prince, they seem to have had no other criterion but the liberality and favour which he displayed to the church. According to his dispositions in this respect, 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 these impure fountains the<30> stream of ancient history contracted a pollution, which has adhered to it even in the course of later ages, and by which it is prevented from reflecting a true picture of the past occurrences.

After all, it cannot be controverted, that this monarch was of a severe and inflexible temper; and that he punished with rigour every attempt to subvert or to disturb his government. That he was rapacious of money, as the great instrument for supporting his authority, must likewise be admitted. Among other exactions, he revived a tax, no less hateful than singular, known to the English by the name of Dane-gelt, which had been abolished by Edward the confessor. It appears to have arisen from an extraordinary contribution, which the Anglo-Saxon kings were under the necessity of levying, to oppose the inroads of the Danes, or to make a composition with those invaders. According to the maxims of prudence, common to the princes of that age, William was not content with providing a revenue sufficient to defray his annual expence; but accumulated a large treasure for the supply of any sudden or extraordinary<31> demand. That he exterminated, however, the whole English nobility, or considerable proprietors of land, or that he stripped them of their possessions, as has been asserted by Dr. Brady12 and by some later writers, from the authority of some declamatory and vague expressions in one or two ancient annalists, there seems no good reason to believe.* <32>

When,* at the same time, the situation of William, and the difficulties which he was<33> obliged to encounter, are properly considered, it must on the one hand be acknowledged, that the rigours imputed to him were, for the most part, excited by great provocation; as, on the other, it may be doubted, whether they were not in some degree necessary for reducing the country into a state of tranquillity; and whether a sovereign, endowed with greater mildness of disposition, would not have probably forfeited the crown, as well as involved the kingdom in greater calamities than those which it actually suffered.

William Rufus,13 the second son of the Conqueror, succeeded to the throne, in preference to Robert his elder brother, from the recommendatation<34> of his father; from the influence of Lanfranc,14 the archbishop of Canterbury; and from his being, at his father’s death, in England to support his claim, while his brother was at a distance. His reign exhibits the same aspect of public affairs with that of his father; the internal discord of the nobles; their frequent insurrections against the sovereign; with his correspondent efforts to keep them in subjection. As by the succession of this prince, the dutchy of Normandy, which was bequeathed to Robert by his father, was detached from the crown of England, many of the Norman barons, foreseeing the inconvenience that might arise from a division of their property under different sovereigns, endeavoured to prevent his establishment, and raised a rebellion in favour of Robert. But the same circumstance, which rendered the advancement of William so disagreeable to the Normans, made this event equally desirable to the English, who dreaded the continuance of a connexion, from which, in the late reign, they had experienced so much uneasiness and hard treatment. By their assistance, the Norman rebels were soon defeated; the estates<35> of the greater part of them were confiscated; and the authority of the king was completely established: a proof that, in the reign of the Conqueror, the English nobility or considerable land-holders were far from being extirpated; and that their power was not nearly so much impaired as has been pretended.*

Not long after, the king passed over into Normandy, with an army, in order to retaliate the late disturbances which had been promoted from that quarter; but before hostilities had<36> been pushed to any considerable length, a reconciliation, between the two brothers, was effected, by the interposition of the principal nobility in both countries; and a treaty was concluded, by which, among other articles, it was agreed, that, upon the death of either, without issue, the survivor should inherit his dominions. Twelve of the most powerful barons on each side became bound, by a solemn oath, to guaranty this treaty: a circumstance which, as Mr. Hume observes,15 is sufficient to shew the great authority and independence of the nobles at that period. Nothing can afford fuller conviction, that neither this king nor his predecessor, though they undoubtedly extended their prerogative, had been able to destroy the ancient aristocracy, and to establish an absolute despotism.

The reunion of Normandy with the dominions of the English monarch was, however, more speedily accomplished, in consequence of an event, by which, at the same time, all Europe was thrown into agitation. I mean, the crusades;16 which were begun in this reign, towards the end of the eleventh century, and continued for about two hundred years. The<37> causes which produced those expeditions; the general superstition of the age, by which Christians were inspired with a degree of phrensy to deliver the holy sepulchre, and the holy land, from the hands of infidels; and the ambitious designs of the Pope, supported by the whole Western church, to extend the dominion of Christianity over both the religion and the empire of Mahomed; these circumstances inflamed most of the princes of Europe with an eager desire of signalizing themselves in a war, from which they had the prospect, not only of the highest reputation and glory in this world, but of much more transcendent rewards in the next. Such motives were peculiarly calculated to work upon the gallant, thoughtless, disinterested character of Robert, the duke of Normandy; who, in the same proportion as he was deficient in political capacity, seems to have excelled in military accomplishments, and to have been possessed with all those religious sentiments, and those romantic notions of military honour, which were fashionable in that age. Embarking, therefore, in the first crusade, and being under the necessity of raising money to equip him for that extraordinary enterprise, he was prevailed upon to mortgage,<38> to his brother the king of England, the dutchy of Normandy, for the paltry sum of ten thousand marks. William Rufus took no part in that war, and seems to have beheld it with perfect indifference. He was upon bad terms with the clergy, whose resentment he incurred by the contributions which he levied from them; and he has, partly, we may suppose, for that reason, been branded even with irreligion and profaneness. His covetous disposition allowed him to entertain no scruple in taking advantage of his brother’s necessities; and, being immediately put in possession of Normandy, his authority, by this extension of territory, and by the distant occupation thus given to Robert, was more firmly established.

This monarch, after a reign of thirteen years, having been killed accidentally, by an arrow aimed at a wild beast, was succeeded by his younger brother, Henry;17 who immediately seized upon the treasure of the late king, and obtained possession of the throne. The duke of Normandy was at this time in Syria, where he had gained great reputation by his valour. It was to be expected, that, as soon as he should be informed of these transactions, he would take vigorous measures for supporting<39> his title to the crown of England. Few of the English princes have appeared at their accession to be surrounded with greater dangers and difficulties than Henry the first; but his capacity enabled him to encounter them with firmness, and to extricate himself with dexterity.

During many of the reigns that succeeded the Norman conquest, we find that the demands of the nobility, in their disputes with the sovereign, and the complaints of such as were discontented with the government, were pretty uniformly confined to one topic, “the restoration of the laws of Edward the confessor.” But what particular object they had in view, when they demanded the restoration of those laws, it is difficult to ascertain. That they did not mean any collection of statutes, is now universally admitted; and it seems to be the prevailing opinion, that their demand related to the system of common law established in England before the Norman conquest. From what has been observed concerning the advancement of the feudal system in the reign of William the first, it appears evident, that the nobility had in view the recovery of the allodial property, and the independence,<40> which they had formerly enjoyed. They saw with regret, we may easily suppose, the late diminution of their dignity and influence; and submitted with reluctance to the military service, and to the other duties incumbent on them as vassals of the crown. The feudal incidents, which were levied by the crown-officers, and of which the extent was not ascertained with accuracy, were, in particular, the source of much vexation, and gave occasion to many complaints. Of these complaints the success was generally proportioned to the difficulties in which the sovereign was involved, and the necessity he was under of purchasing popularity by a redress of grievances.

As Henry the first was exposed to all the odium attending an open and palpable usurpation, and was threatened with an immediate invasion from the duke of Normandy, the acknowledged heir of the crown, he endeavoured to secure 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<41> reign of his father, and of his brother, were limited and restrained. When we examine this charter, the first of those that were procured from the English monarchs after the Norman conquest, we find that, besides containing a clause with respect to the privileges of the church, it relates principally to the incidents of the feudal tenures.18

One of the most oppressive of these was wardship; by which the king became the guardian of his vassals, in their minority, and obtained the possession of their estates during that period. It is probable that this important privilege had not, in the case of crown-vassals, been yet fully established; since the guardianship of them is, in the charter of Henry the first, relinquished by the king, and committed to the nearest relations.*

The relief, or composition, paid by the heir of a vassal, in order to procure a renewal of the investure, was not given up by the sovereign; but the extent of this duty appears to have been settled, with a view of preventing oppression or dispute in particular cases.† <42>

The incident of marriage, by which, in after times, the superior was entitled to a composition, for allowing his vassals the liberty of marrying, seems, 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 superiority of the crown is permitted to remain; while the nobles are, on the other hand, relieved from some of the chief inconveniences which had resulted from it; and, after the regulations particularly specified, the charter contains a general clause, in which the king promises to observe the laws of Edward the confessor, with such amendments as William the first, with the advice of his barons, had introduced. Copies of this deed were sent to all the counties of England; and deposited in the principal monasteries, in order to preserve the memory of an agreement, by which the prerogative of the crown, and the rights of<43> the people, in several important articles, were ascertained and defined.

The popularity which Henry acquired by these prudent concessions, enabled him to defeat the ill-concerted enterprizes of the duke of Normandy; who, becoming the dupe of his brother’s policy, was persuaded to resign his present claim to the crown, in consequence of an agreement similar to that which had formerly been made with William Rufus, that, upon the death of either of the two princes without issue, the survivor should inherit his dominions. Not contented with the quiet possession of England, Henry soon after invaded Normandy; gained a complete victory over Robert, and reduced the whole country into subjection. The duke himself, being taken prisoner, was carried over to England, and detained in custody during the remainder of his life, which was eight and twenty years. It is added by some authors, that he lived the most part of this time in utter blindness; having, on account of an attempt to make his escape, been condemned to lose his eye-sight. The character of these two brothers appears to exhibit a striking contrast, in the virtues of generosity<44> and private affection, as well as in activity and talents for public affairs; and the unfortunate duke of Normandy was no less distinguished by his superiority in the former, than by his inferiority, or rather total deficiency, in the latter.

During a reign of thirty-five years, Henry conducted the administration of government, with constant moderation, and with uninterrupted prosperity. He was attentive to the grievances of his people, vigilant in the distribution of justice, and careful to levy no exactions without consent of the national council. From the progress of ecclesiastical usurpation, he was involved in disputes with the church; but in the course of these he conducted himself with such address, as not only to avoid the resentment, but, in the issue, to become even the favourite of the clergy. His character has, of consequence, been highly celebrated: at the same time, when regarded only in a public view, it seems to merit all the praises with which it has been transmitted to posterity.

Henry left no legitimate sons; and only one daughter, Matilda; who had been first married<45> to the emperor, and afterwards to the earl of Anjou, by whom she had children. Setting aside the consideration that her father was an usurper, she had, according to the rules of succession in that period, by which females were beginning to inherit landed estates, the best title to the crown; but a great part of the nobility were in the interest of Stephen, a younger son of the count of Blois, and grandson, by a daughter, of William the conqueror. This nobleman, who had long resided in England, and was distinguished by his popular manners, had procured many partizans; and was probably thought the fitter person to wield the sceptre.* After obtaining possession of the sovereignty, he immediately called a parliament at Oxford, in which he granted a charter, confirming all the privileges contained in that of his predecessor; and in the presence of the assembly he took an oath to maintain them; upon which the bishops and peers recognised his authority, and swore fealty to him.† The policy of this monarch was<46> not equal to his bravery. During the long contest in which he was engaged with Matilda,19 and her eldest son, Henry, he was generally unfortunate; and, in the end, was obliged to yield the reversion of the crown to the latter.

Henry the second,20 who succeeded, in right of his mother, but who irregularly mounted the throne in her life-time, had excited sanguine expectations of a prosperous and brilliant reign. To the early display of great activity and abilities, he joined the possession of more extensive dominions than had belonged to any English monarch. Upon the continent he was master of Normandy, Britany, Anjou, Guienne, and other territories, amounting to more than a third of the whole French monarchy. He was, at the same time, a descendant, though not a lineal heir, of the Anglo-Saxon monarchs; his grandmother, the wife of Henry the first, being the niece of Edgar Atheling; a circumstance which contributed not a little to conciliate the affection of the English. Notwithstanding these advantages, his administration, though full of vigour, was clouded with misfortunes. Having conceived the design of repressing the incroachments of the<47> church, and wishing to execute this in the smoothest and most effectual manner, he promoted to the see of Canterbury his principal favourite, Thomas a Becket,21 by whose assistance he expected that the direction of his own clergy would be infallibly secured. This prelate, however, happened to possess a degree of ambition, not inferior to that of his master; and no sooner found himself at the head of the English church, than he resolved to dedicate his whole life to the support of ecclesiastical privileges, and of the papal authority.

The particulars of that controversy, which terminated so unfortunately, and so disgracefully, to the king, are known to all the world. The greatest monarch in Europe, reduced to the necessity of walking three miles barefooted, to the tomb of Saint Becket; prostrating himself before that shrine, and lying all night upon the cold pavement of the cathedral, in prayer, and with demonstrations of the deepest penitence, for having offended a man from whom he had received the highest provocation; and, after all, submitting to be scourged by the prior and monks of the neighbouring convent; besides yielding up implicitly all those points<48> which had been the original cause of the contest: such an unusual and humiliating spectacle cannot fail to excite singular emotions; and it is believed that few readers can peruse this part of our history without visible marks of indignation.

That ecclesiastical tyranny is more extensively mischievous than civil, is indisputable; and that the former should therefore raise greater indignation than the latter, is reasonable. There may be ground for suspecting, however, that our feelings, in the present instance, proceed from a natural bias or prejudice, more than from any such rational or liberal views. The ambition of St. Becket, though accompanied with superior steadiness and intrepidity; and though it may be considered as a purer principle of action, by pursuing the aggrandisement of his own order more than of himself; yet is less calculated to dazzle the imagination, and to seize our admiration, than that of a Caesar or an Alexander,22 who makes his own will the law of his conduct, and who scruples not to tread upon the necks of his people.

Besides the feudal incidents formerly mentioned, which were a sort of rights reserved by<49> the superior, upon his granting fiefs in perpetuity, there was another pecuniary payment, which grew up in course of time, from the regular duty of military service. As, in many cases, the performance of this duty became inconvenient for the vassal, he was led to offer a sum of money in place of his personal attendance in the field; and such a composition was generally acceptable to the sovereign; who, by means of it, was enabled to hire a soldier more perfectly subject to his direction. The sum payable by the vassal in place of military services, the extent of which was at first determined by an agreement with the king in each case, was denominated a scutage. In England, the practice of levying scutages became very general in the time of Henry the second; when the connexions of the sovereign with France gave rise to more expensive enterprizes than had formerly been customary; and consequently induced the crown vassals more frequently to decline their personal attendance.

In this reign the conquest of Ireland, as it is called, was begun and compleated.23 As that island had never been conquered, or even invaded, by the Romans, it retained, with its independence,<50> a total ignorance of those arts, and of that civilization, which every where accompanied the Roman yoke. It seems, on the other hand, to have escaped, in a great measure, the fury of the Saxons, Danes, and other northern invaders; who never penetrated into that country, but only committed occasional depredations upon the coasts, where they formed some small settlements, and built several towns. Thus, while the greatest part of Europe was, for several centuries, thrown into convulsions by the repeated irruptions of the German or Scythian nations,24 Ireland was, by reason of its situation, exposed to little disturbance or commotion from any foreign enemy; and the inhabitants were seldom engaged in any military enterprizes, but such as arose from their own private quarrels and depredations. It is therefore highly probable, that, for some time after that country was first inhabited, and while the several families or petty tribes, to whom by its fertility it afforded an easy subsistence, were not much crowded together, they enjoyed more tranquillity than the other barbarians of Europe, and, of consequence, were less counteracted and restrained in those<51> exertions of generosity and friendship, to which, among people who live in small societies, and are strangers to industry, and to the concomitant habits of avarice, there are peculiar incitements. That they might, upon this account, acquire a considerable share of that refinement which is attainable in the pastoral ages, it is natural to suppose; and that they actually did so, the specimens of Celtic poetry, lately published,25 which have been claimed respectively by the Irish and by the inhabitants of the West Highlands of Scotland, both of whom may, in this case, be considered as one people, appear incontestible evidence. The authenticity of these publications has, indeed, been called in question; but it would require an equal degree of scepticism to doubt, that the groundwork of them is genuine, as it would of credulity to believe, that they are the original production of any modern publisher.

According as Ireland became gradually more populous, a greater number of families came to be united in particular principalities; the leaders of which being actuated by larger views of ambition, found more frequent pretences for quarrelling with each other; and their subjects<52> or followers, being thus involved in more numerous acts of hostility, or in such as were productive of greater violence and outrage, the manners of the people in general were, of course, rendered more ferocious. The whole island came at length to be reduced into four or five extensive districts, under so many different sovereigns; one of which frequently claimed a sort of authority or pre-eminence over all the rest.

After the English monarchy had come to be connected with the continent of Europe, and to interfere in its transactions, it was natural for the king of England to entertain the ambition of adding to his dominions a country so commodiously situated as Ireland, and which appeared to be so little in a capacity of making resistance. Henry the second is accordingly said to have taken some steps for executing a project of this nature, when application was made to him for protection, by Dermot the king of Leinster, who had been driven out of his dominions. In virtue of a bare permission from the king of England, two needy adventurers, Fitzstephen and Fitzgerald, and afterwards Richard, surnamed Strongbow, likewise<53> a man of desperate fortune, to whom the two former acted in a kind of subordination, landed with a few followers in Leinster; defeated any force that was brought in opposition to them; besieged and took several towns, and formed a settlement in the province.26 Upon receiving information of their progress, Henry, inflamed, as it should seem, with jealousy of their success, hastened immediately to take possession of the territory which they had subdued; and coming over to Ireland, received the submission of several chiefs or princes of the country, who, dreading the effects of his power, were anxious to avoid any contest with him.27

Neither Henry himself, nor his successors for several centuries, appear to have derived any substantial benefit from this acquisition. Their authority was confined to that narrow district inhabited by the English; and even there was more nominal than real; for the English inhabitants, harassed by continual inroads from their neighbours, and receiving a very uncertain and casual support from England, were, on many occasions, tempted to throw off their allegiance, and were seduced to imitate the<54> barbarous manners and practices of the natives.

Henry, in the latter part of his life, was rendered unhappy by domestic misfortunes. A conspiracy was formed against him, by his queen and sons, which became the source of repeated insurrections, accompanied with several very formidable invasions from the neighbouring powers.28

Though the king was successful in repressing these disorders, and in defeating all his enemies; yet the obstinacy with which his children persisted in their unnatural attempts, appears to have impressed his mind with deep sentiments of melancholy and dejection. From the difficulties, at the same time, with which he was surrounded, he found it highly expedient to court the good-will of his subjects, not only by a careful attention to the police of the kingdom, and by an equal distribution of justice, but by granting a new charter in the same terms with that of Henry the first.*

Richard the first,29 who succeeded his father, was entirely engrossed by the love of military<55> glory; and the short period, during which he held the reins of government, was, for the most part, employed, either in preparations for a magnificent crusade, the fashionable atchievement of that age, or in oppressive exactions, to relieve him from the burdens which he had incurred by that unfortunate enterprize.

The character of John,30 his brother and successor, is universally known, as a compound of cowardice, tyranny, sloth, and imprudence. This infatuated king was involved in three great struggles, from which it would have required the abilities of his father, or of his great grandfather, to extricate himself with honour; but which, under his management, could hardly fail to terminate in ruin and disgrace.

It is observed by Mr. Hume, with his usual acuteness, that the extensive territories which the kings of England, at this period, possessed in France, were the source of much less real than apparent strength;31 and that, from their situation, they were filled with the seeds of revolt and disobedience. In the ordinary state of the feudal tenants, the vassals of the nobility were much more attached to their immediate superior, by whom they were most commonly<56> protected, and with whom they maintained an intimate correspondence, than with the sovereign, who lived at a distance from them, and with whom they had little connexion. The power of the king, therefore, depended, for the most part, upon the extent of his own demesnes; and in every quarrel with his nobles, it was to be expected that all their vassals would take party against him. But in the dominions which the king of England held in France, these circumstances were completely reversed; and his immediate vassals, by their situation, were less capable, on any emergence, of receiving protection from him, than from the French monarch, their paramount superior: not to mention, that they regarded the king of England as a foreign prince, whose interest was commonly very different, and sometimes diametrically opposite to that of their native country. Their affections therefore were gradually alienated from their immediate superior; and transferred to their sovereign; who, it was natural to suppose, might, some time or other, availing himself of his advantageous situation, be enabled to wrest those dominions from his rival. This accordingly happened<57> in the beginning of the present reign. As John was advanced to the throne in preference to Arthur,32 the son of his elder brother, and consequently the lineal heir, and as he had incurred great odium in a war with that prince, whom he defeated, and was afterwards believed to have murdered; Philip Augustus at that time king of France, seized the opportunity of interfering in a dispute, which afforded so fair a prospect of acquiring popularity, as well as of promoting his interest. 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;33 and in the greater part of those territories, this decree, from the concurrence of the inhabitants, co-operating with the power of the French crown, was easily carried into execution.

This disaster was followed by a contest with the Roman pontiff, concerning the right of electing the archbishop of Canterbury; in which John was, if possible, still more unsuccessful. In order to remove the papal excommunication which had been inflicted upon him, he was laid under the necessity, not only<58> of abandoning the points in dispute, but of surrendering his kingdom to the pope, and submitting to hold it as a feudatory of the church of Rome.34

The contempt which this abject submission of their sovereign could not fail to excite in the breast of his subjects, together with the indignation raised by various acts of tyranny and oppression of which he was guilty, produced at length a combination of his barons, who demanded a redress of grievances, and the restoration of their ancient laws. As this appeared the most favourable conjuncture which had occurred, since the Norman conquest, for limiting the encroachments of prerogative; the nobility and principal gentry were desirous of improving it to the utmost; and their measures were planned and conducted with equal moderation and firmness. The king attempted, by every artifice in his power, to frustrate their designs. He endeavoured by menaces to intimidate them; and, by delusive promises, to lull them asleep, in order to gain time for breaking their confederacy. When all other expedients proved ineffectual, he made application to the pope as his liege lord; and<59> called upon his holiness to protect the rights of his vassal. The barons were neither to be deluded nor terrified from the prosecution of their purpose. Finding that their petitions were disregarded, they rose up in arms, and proceeded to actual hostilities.1 The number of their adherents was daily increased; and the king who retired before them, was deserted by almost all his followers; till at last there were only seven lords who remained in his retinue. All further opposition, therefore, became impracticable. At Runnemede, a large meadow between Windsor and Staines; a place which has been rendered immortal in the page of the historian and in the song of the poet; was held that famous conference, when the barons presented, in writing, the articles of agreement upon which they insisted; and the king gave an explicit consent to their demands.* The<60> articles were then reduced into the form of a charter; to which the king affixed his great seal; and which, though it was of the same nature with the charters obtained from the preceding monarchs, yet, as it was obtained with difficulties which created more attention, and as it is extended to a greater variety of particulars, has been called, by way of distinction, the great charter of our liberties.36

As the feudal superiority of the crown, over the nobles, together with the various casual emoluments, or incidents, arising from that superiority, had now been established, with little or no interruption, ever since 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 present charter, was to prevent<61> the sovereign from harassing and oppressing them by the undue exercise of those powers, the effects of their feudal subordination, with which he was understood to be fully invested. The incidents of wardship, relief, and marriage, notwithstanding the provisions in the charter of Henry the first, had continued the subject of much controversy; for the removal of which, the nature and extent of those feudal perquisites were more particularly defined and explained. With regard to the practice of levying aids and scutages, it was provided that the former should not be demanded, unless in the three cases established by the feudal customs, to redeem the sovereign from captivity, to portion his eldest daughter, or to make his eldest son a knight; and that the latter should not be imposed in any case without the authority of parliament.*

The jurisdiction exercised by the king, as a feudal superior, was another source of oppression, for which a remedy was thought requisite; and several regulations were introduced, in<62> order to facilitate the distribution of justice, to prevent the negligence, as well as to restrain the corruption, of judges: in particular, it was declared, that no count or baron should be fined unless by the judgment of his peers, and according to the quality of the offence.†

While the barons were thus labouring to secure themselves against the usurpations of the prerogative, they could not decently refuse a similar security to their own vassals; and it was no less the interest of the king to insist upon limiting the arbitrary power of the nobles, than it was their interest to insist upon limiting that of the crown. The privileges inserted in this great transaction were, upon this account, rendered more extensive, and communicated to persons of a lower rank, than might otherwise have been expected. Thus it was provided that justice should not be sold, nor unreasonably delayed, to any person.* That no freeman should be imprisoned, nor his goods be distrained, unless by the judgment of his peers, or by the law of the land;† and that even a<63> villein should not, by any fine, be deprived of his carts and implements of husbandry.†

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 suppose, would be chiefly attentive to their own privileges; the interest of another class of people, much inferior in rank, was not entirely overlooked: I mean the inhabitants of the trading towns. It was declared, that no aid should be imposed upon the city of London, unless with consent of the national council; and that the liberties and immunities of this, and of all the other cities and boroughs of the kingdom, should be maintained.§ To the same class we may refer a regulation concerning the uniformity of weights and measures, and the security given to foreign merchants, for carrying on their trade without molestation. The insertion of such clauses must be considered as a proof that the mercantile people were beginning to have some attention paid to them; while the shortness<64> of these articles, and the vague manner in which they are conceived, afford an evidence equally satisfactory, that this order of men had not yet risen to great importance.

In order to diffuse the knowledge of the charter over the kingdom, and to ensure the execution of it, a number of originals was made, and one of these was lodged in every county, or at least in every diocese; twenty-five barons were chosen, as guardians of the public liberties, and invested with power suitable to the discharge of so important a trust; and the nobles farther required, that, in the mean time, the city of London should remain in their hands, and that the Tower should be put in their possession. The king consented to these measures; though nothing could be farther from his intentions, than to fulfil the conditions of the charter. No sooner had he obtained a bull from the pope annulling that deed, and prohibiting both the king and his subjects from paying any regard to it, than, having secretly procured a powerful supply of foreign troops, he took the field, and began without mercy to kill and destroy, and to carry devastation throughout the estates of all those who had any<65> share in the confederacy. The barons, trusting to the promises of the king, had rashly disbanded their followers; and being in no condition to oppose the royal army, were driven to the desperate measure of applying to Lewis, the son of the French monarch, and making him an offer of the crown. The death of John, in a short time after, happened opportunely to quiet these disorders, by transmitting the sovereignty to his son Henry the third, who was then only nine years of age.37

Under the prudent administration of the earl of Pembroke, the regent, the young king, in the first year of his reign, granted a new charter of liberties, at the same time that the confederated barons were promised a perpetual oblivion for the past, in case they should now return to their allegiance.38

It is observable, that a copy of this deed, with some variations, was also transmitted to Ireland, for the benefit of the English inhabitants of that island; who, it was justly thought, had an equal right to all the privileges enjoyed by their fellow-subjects in Britain.

The following year, when peace was concluded with Lewis, and the public tranquillity<66> was restored; this charter was renewed, with additions and improvements; and, as the charter of king John contained one or two clauses relating to the forest laws, these were now extended, and made the subject of a separate instrument, called the Charter of the Forest.39 The two deeds, into which the original great charter came thus to be divided, were again renewed, with some variations, and confirmed, in the ninth year of Henry the third, when the king was, by a papal bull, declared of age, and began to hold the reins of government.40

The charter of the forest, how insignificant soever the subject of it may be thought in the present age, was then accounted a matter of the highest importance. The Gothic nations, who settled in the Roman empire, were, all of them, immoderately addicted to the diversion of hunting; insomuch that this may be regarded as a peculiarity in their manners, by which they are distinguished from every other people, ancient or modern.* It arose, in all probability, from their having acquired very extensive landed estates, a great part of which<67> they were not able to cultivate; and from their continuing, for many centuries, in that rude and military state, which disposed them to bodily exercise, while it produced such a contempt of industry, and profound ignorance of the arts, as were the sources of much leisure and idleness. The free people, or gentry, commonly allotted to hunting the most part of the time in which they were not engaged in war; and the vassals of every chieftain, or feudal superior, were usually his companions in the former occupation as well as in the latter. Every independent proprietor, however, endeavoured to maintain the exclusive privilege of killing game upon his own grounds; and, having set apart, for the purpose of this amusement, a large portion of uncultivated land, under the name of a forest, he denounced severe penalties against his vassals, as well as against every other person, who should hunt upon it without his consent. The sovereign in each kingdom enjoyed the same privilege, in this respect, with the other allodial proprietors; though it appears to have been originally confined within the limits of his own demesnes. The completion of the feudal system, however, by reducing the great<68> lords to be the vassals of the crown, rendered the sovereign the ultimate proprietor of all the lands in the kingdom; and the privilege of hunting, being thus considered as a branch of the royal prerogative, was not understood, without a special grant in their charter, to be communicated to his vassals. Upon the same principle that the king was alone entitled to kill game within his dominions, he assumed the exclusive privilege of erecting lands into a forest; by which they were appropriated to the diversion of hunting: at the same time, for preserving the game in the royal forests, a peculiar set of regulations came to be established; and particular officers and courts of justice were appointed for executing such regulations, and for trying offences committed against them.

The diversion of hunting became still more fashionable, and was carried to a greater height in England, than in the countries upon the continent of Europe. The insular situation of Britain enabled the inhabitants in a great measure to extirpate the fiercer and more hurtful species of wild animals; so as to leave no other but those which, placing their whole safety in flight, directed the attention of the people to<69> the pleasure merely of the chase. Hunting, therefore, in Britain, came to consist in a long and intricate pursuit, admitting the display of much art and skill; while, upon the continent, it was often a sort of combat with wild animals, requiring only a momentary exertion of strength and courage, or at most, of military dexterity. As the inhabitants of this island were, besides, less engaged in distant wars than the other European nations, they had, upon that account, more leisure to employ themselves in rural sports. It has farther been alleged, that Britain was anciently famous for its breed of slow hounds,41 a species of dogs peculiarly fitted for the improvement of the chase; but whether this ought to be regarded as one cause of the national propensity to this diversion, or rather as the effect of it, there may be some reason to doubt. It is more probable that the English were led early to cultivate the breed of slow-hounds, because they were much addicted to that mode of hunting which required those animals, than that this kind of dogs, from something unaccountable in the nature of our soil and climate, were<70> the original and peculiar growth of our country.*

We may remark, by the way, that the English manner of hunting, and their fondness for that sport, has been the cause of another peculiarity, their passion for horse-racing. When hunting came to consist entirely in a pursuit, there was a necessity that the company should, for the most part, be on horseback; and when different sportsmen were engaged in the same chase, they had frequently occasion to vie with one another in the swiftness of their horses; which naturally produced a more formal trial, by running in a stated course; while the improvement of this latter diversion excited the people to cultivate that breed of race-horses which is now reckoned peculiar to the country.

During the whole period of the Anglo-Saxon government, the great lords, who possessed allodial estates, appear to have enjoyed the privilege of hunting upon their own<71> ground, independent of the sovereign.* But, in consequence of that feudal superiority over the nobles, which was acquired by the crown upon the accession of William the first, it became a maxim, that the killing of game was a branch of the royal prerogative, and that no subject had any right either to possess a forest, or even to hunt upon his own estate, unless by virtue of a charter from the crown.

In this part of the prerogative, William the conqueror, and his immediate successor, are said to have committed great abuses. As those princes were excessively addicted to the amusement of hunting, they laid waste very extensive territories, in different parts of England, in order to convert them into forests; having, for that purpose, demolished many houses, and even villages, and expelled the inhabitants. New and savage penalties were inflicted upon<72> such as encroached upon the king’s game, or committed any trespass in his forests; and the laws upon this subject were executed in a manner the most rigorous and oppressive.

It may, indeed, be suspected that these abuses have been somewhat exaggerated. The extension of the prerogative, with respect to the privilege of hunting, must have been highly offensive to the nobles; and could hardly fail to excite loud complaints, together with some degree of misrepresentation, against the proceedings of the crown. The erection of great forests, even though these had been confined within the demesnes of the king, was likely of itself to occasion much popular clamour; as in our own times, the change of a large estate from tillage to pasturage,42 by which many tenants are deprived of their livelihood, is frequently the source of much odium and resentment. There is reason, however, to believe, that these exertions encroached, in some cases, upon the private property of individuals, and were, therefore, no less unjust than they were unpopular.

The charter of the forest contained a variety of salutary regulations for mitigating the severity<73> of the laws upon that subject, for the rectification of the former abuses, and for preventing the future encroachments of the sovereign. In the proceedings against those who trespassed upon a forest, a greater degree of regularity was introduced; and capital punishments were, in all cases, abolished. The invasions of private property, by erecting a royal forest, except upon the demesnes of the crown, were prohibited; and it was ordained that all the lands belonging to particular persons, which, from the reign of Henry the second, had been included within the boundaries of a forest, should be disaforested, and restored to the owner.*

The long reign of Henry the third, from the feeble character of that monarch, and from the injudicious, the inconstant, and the arbitrary measures which he pursued, according to the different favourites by whose counsel he happened to be governed, was filled with insurrections and disorders; and in the latter part of it, the rebellion, conducted by the daring ambition and great abilities of Simon Montfort, the earl of Leicester,43 had reduced<74> the sovereign to the most desperate situation, and threatened to deprive him of his crown; when his enemies were unexpectedly and completely defeated, by the intrepidity, steadiness, and good fortune of his son Edward. During the course of these commotions, Henry, in order to appease his barons, granted, more than once, a renewal of the great charter, and the charter of the forest. He also swore, in the most solemn manner, to preserve them inviolable; an oath to which, after he was relieved from the present embarrassment, he appears to have shewn little regard.

We may here take notice, though it falls beyond the period which we are now considering, that another solemn confirmation of these charters was afterwards obtained in the vigorous and successful reign of Edward the first.44

1. When we take a view of these great transactions, and endeavour to estimate the degree of attention which they merit, their number, their similarity, and the long intervals of time at which they were procured, are circumstances which cannot be overlooked. Had one charter only been granted by the sovereign, on a singular occasion, it might well be supposed<75> to have arisen from a concourse of accidents, and from partial views. Instead of expressing the opinions entertained by the king and his people, concerning the rights of either, it might, in that case, have been the effect of a mere casual advantage, which the one party had gained over the other; and, so far from displaying the ordinary state of the government at that period, it might have exhibited the triumph and injustice of a temporary usurpation. But those important stipulations, not to mention the frequent confirmations of them in a later period, were begun and repeated under the reigns of six different monarchs, comprehending a course of about two hundred years; they were made with princes of extremely different characters, and in very opposite situations; and though, by the insertion of different articles, those deeds were gradually expanded, and accommodated to the circumstances of the times, yet their main object continued invariably the same; to limit those abuses of prerogative, which, from the advancement of the feudal system, and from the nature of the monarchy, were most likely to be committed. Taking those charters, therefore, in connexion<76> with one another, they seem to declare, in a clear and unequivocal manner, the general and permanent sense of the nation, with respect to the rights of the crown; and they ascertain, by express and positive agreement between the king and his subjects, those terms of submission to the chief magistrate, which, in most other governments, are no otherwise explained than by long usage, and which have therefore remained in a state of uncertainty and fluctuation.

2. It seems to be a common opinion, that, by these charters, the crown was deprived of many of those powers which had been assumed by William the conqueror, or by his son William Rufus, and the constitution 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 measure overlooked) it has always been supposed that the bounds of the prerogative were greatly limited.45 But upon examination it will be found, that this opinion is contrary to the real state of the fact. During the whole period which we are now considering; that is,<77> from the Norman conquest to the time of Edward the first; while the barons were exerting themselves with so much vigour, and with so much apparent success, in restraining the powers of the crown, those powers were, notwithstanding, continually advancing; and the repeated concessions made by the sovereign, had no farther effect than to prevent his authority from increasing so rapidly as it might otherwise have done. For a proof of this we can appeal to no better authority than that of the charters themselves; 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 submitted, in reality, to a gradual extension of the prerogative; though, by more numerous regulations, they endeavoured to avoid the wanton abuses of it. Thus, by the great charter of Henry the third, the powers of the crown are less limited than by the charter of king John; and by this last the crown vassals abandoned some important privileges with which they were invested by the charter of Henry the first.

In the charter of Henry the first, the incident<78> of wardship, the severest and most oppressive of all the feudal incidents, is relinquished by the sovereign; and the heirs of a vassal being thus allowed to continue the possession of the fief, during their minority, that is, at a period when they could not perform the feudal service, were in a great measure restored to that allodial property which, before the Norman conquest, their predecessors had enjoyed. But, in the reign of king John, the incident of wardship had taken such root, that the crown vassals no longer thought of disputing the continuance of it; but were satisfied with procuring some regulations to prevent abuses in making it effectual. From this period, therefore, the nobles must be understood to acknowledge that they had no other claim to the enjoyment of their estates than as a consideration for the performance of military service.

According to the charter of Henry the first, the incident of marriage extended no farther than to prevent the crown vassals from marrying any woman, with whose family the superior was at variance; a restriction which was not likely to be very oppressive, and which was in some degree necessary for maintaining the<79> public tranquillity. But in the time of king John this incident had been so much enlarged, as to imply a right in the superior to prohibit his vassals from marrying without his consent, and even to require that they should marry any woman whom he presented to them. In the charter of that prince, therefore, it is provided, that the heirs of a vassal shall be married without disparagement, that is, they shall not be required to contract unsuitable alliances; and, to secure them from imposition or undue influence, in a matter of this kind, it is farther stipulated, that before they contract any marriage their nearest relations shall 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 scutages, a sort of indirect taxes, from which a considerable part of the crown revenue was derived. By the charter of John, the exclusive power of imposing those duties is committed to parliament; but that of Henry the third is entirely silent upon this point; and leaves the monarch under no restraint in imposing such burdens by virtue of his own prerogative. It is true, that the former limitation upon this part of the prerogative<80> was afterwards renewed in the reign of Edward the first.*

What I have observed concerning the variations in the series of great charters, does not seem applicable to the laws of the forest. The violations of private property, committed in this respect by William the first, and his successors, were too notorious to be seriously defended; and therefore, notwithstanding the general progress of monarchy, it was thought necessary to remove these abuses, and to guard against them for the future.

3. Whoever enquires into the circumstances in which these great charters were procured, and into the general state of the country at that time, will easily see that the parties concerned in them were not actuated by the most liberal principles; and that it was not so much their intention to secure the liberties of the people at large, as to establish the privileges of a few individuals. A great tyrant on the one side, and a set of petty tyrants on the other, seem to have divided the kingdom; and the great body of the people, disregarded and oppressed on all hands, were beholden for any privileges bestowed<81> upon them, to the jealousy of their masters; 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 those charters, it was eventually secured to them; for when the peasantry, and other persons of low rank, were afterwards enabled, by their industry, and by the progress of arts, to emerge from their inferior and servile condition, and to acquire opulence, they were gradually admitted to the exercise of the same privileges which had been claimed by men of independent fortunes; and found themselves entitled, of course, to the benefit of that free government which was already established. The limitations of arbitrary power, which had been calculated chiefly to promote the interest of the nobles, were thus, by a change of circumstances, rendered equally advantageous to the whole community as if they had originally proceeded from the most exalted spirit of patriotism.

When the commons, in a later period, were disposed to make farther exertions, for securing their natural rights, and for extending the blessings of civil liberty, they found it a singular<82> advantage to have an ancient written record, which had received the sanction of past ages, and to which they could appeal for ascertaining the boundaries of the prerogative. This gave weight and authority to their measures; afforded a clue to direct them in the mazes of political speculation; and encouraged them to proceed with boldness in completing a plan, the utility of which had already been put to the test of experience. The regulations, indeed, of this old canon, agreeable to the simplicity of the times, were often too vague and general to answer the purposes of regular government; but, as their aim and tendency were sufficiently apparent, it was not difficult, by a proper commentary, to bestow upon them such expansion and accommodation as might render them applicable to the circumstances of an opulent and polished nation.<83>

CHAPTER II

In what Manner the Changes produced in the Reign of William the Conqueror affected the State of the national Council.

The changes in the state of landed property, arising from the completion of the feudal system, in the reign of William the first, were necessarily attended with correspondent alterations in the constitution and powers of the national council. The Saxon Wittenagemote was composed of the allodial proprietors of land; the only set of men possessed of that independence which could create a right of interfering in the administration of public affairs. The number of these, having been originally very great, was gradually diminished, according as individuals were induced, from prudential considerations, to resign their allodial property, and to hold their estates of some feudal superior. But in the reign of William the conqueror, when the most powerful of the nobility, those who alone had hitherto retained their allodial property, became at last the immediate vassals<84> of the crown, the ancient Wittenagemote was of course annihilated; since there no longer existed any person of the rank and character which had been deemed essential to the members of that assembly.

As, during the government of the Anglo-Saxon princes, every feudal superior had a court, composed of his vassals, by whose assistance he decided the law-suits and regulated the police of his barony; so the king, considered in the same capacity, had likewise a private baron-court, constituted in the same manner, and invested with similar powers. In that period, however, the former of these courts, being held by allodial proprietors, acknowledging no farther subjection 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 vassals of the crown, they were incorporated in the king’s baron-court, and the jurisdiction which they exercised in their own demesne was rendered subordinate to that of the king as their paramount superior. The several districts, which had formerly been divided into so many independent lordships,<85> were now united in one great barony, under the sovereign; and his baron-court assumed, of consequence, a jurisdiction and authority over the whole kingdom. Thus, upon the extinction of the Wittenagemote, there came to be substituted, in place of it, another court or meeting, similar to the former, and calculated for the same purposes, though constituted in a manner somewhat different. To this meeting, as the Norman or French language was now fashionable in England, and even employed in public deeds and legal proceedings, the name of parliament was given; as the meeting itself corresponded, not only to the assembly known by the same appellation in France,1 but to the national council of all those European countries in which the feudal system had attained the same degree of advancement.*

The English parliament, though its members appeared under a different description,<86> comprehended in reality the same class of people who had been members of the ancient Wittenagemote. It was composed of all the immediate vassals of the crown; including the dignified clergy, and the nobility, whether of English or of French extraction. The wealth of these persons, from the successive accumulations of property before, and in the reign of William the conqueror, must have been prodigious. From the survey in doomsday-book2 it appears, that, about the end of William’s reign, the immediate vassals of the crown were in all about six hundred: so inconsiderable was the number of baronies, whether in the hands of laymen or ecclesiastics, into which the whole territory of England, exclusive of Wales, and the three northern counties, and exclusive of the royal demesnes, had been distributed.* <87>

Notwithstanding the vassalage into which the barons had been reduced, their influence was but little impaired; and, though changed in outward appearance, they continued to maintain that authority which great landed estates will always procure. By the nature of their tenures, their property was not rendered<88> more precarious than formerly; but merely subjected to certain burdens or exactions in favour of the king. As vassals of the crown, their dependence upon it was even slighter than that of the inferior hereditary vassals upon their immediate superior; and from their number, their distance, and their vast opulence, the king was less able to retain them in subjection. Standing frequently in need of their support and assistance, he found it highly expedient to avoid their displeasure, to consult them in matters of a public nature, and to proceed with their approbation. In their new capacity, therefore, they still assumed the privilege of controlling the abuses of administration; and in directing the great machine of government, their power was little inferior to that which had formerly been possessed by the Wittenagemote.* <89>

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,<90> that the vassals of the king, as well as those of every subordinate baron, should be liable for military service to their liege lord, and should be ready to attend him in the field whenever he chose to call upon them. To determine the particular quarrels in which he should engage, and the military enterprises which he should undertake, was his province, not theirs; and, provided their attendance was not more burdensome than their duty required, it was understood to be a matter of indifference to them, against what enemy they should happen to be employed. The discretionary power, which came thus to be assumed by the king, as the great feudal superior of the kingdom, was, at the same time, supported by the consideration of its expediency. During the numerous invasions customary in the feudal times, it was necessary, upon any sudden emergency, that the leader of a barony should take his measures upon the spot; and that without consulting his vassals, he should proceed to repel the enemy by force of arms. To call a council, in such a case, would be to lose the critical moment; to waste, in deliberation, the proper season for action; and, for the sake<91> of a punctilio, to involve the whole community in utter destruction.

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 possessed by the Wittenagemote, and was regarded as inseparable from the allodial condition of its members. In the latter, it was transferred to the sovereign: and this branch of the feudal system, which was accommodated, perhaps, to the depredations and internal commotions prevalent in that rude period, has remained in after ages, when, from a total change of manners, the circumstances, by which it was recommended, have no longer any existence.

The legislative power was viewed in a different light. New regulations generally took their origin from a complaint of grievances, made to the sovereign, the great executor of the law, and accompanied with a request, that, in the future administration of government, they might be redressed. The privilege of preferring such petitions, or at least that of de-<92>manding a positive answer to them from the sovereign, was anciently appropriated to the Wittenagemote; and, upon the dissolution of that assembly, was devolved upon the Anglo-Norman parliament. In every subordinate barony into which the kingdom was divided, the vassals exercised a similar privilege with respect to the conduct of their own superior. A public statute was, according to this practice, a sort of paction or agreement between the king and his vassals, by which, at their desire, he promised to observe a certain rule of conduct; and in which, therefore, the consent of both was clearly implied. No such rule was ever thought of without the previous request of parliament, nor was it ever effectual to bind the parties, unless the sovereign acceded to the proposal.

The supreme distribution of justice was likewise a matter of such consequence as to require the interposition of the crown-vassals; and therefore constituted another privilege of the Anglo-Norman Parliament. How this branch of business came, in ordinary cases, to be devolved upon an inferior court, with re-<93>servation of an ultimate controlling power in the parliament, will be the subject of a separate inquiry.

Taxation is properly a branch of the legislative power; since every rule that is made, with respect to the payment of taxes, is a law which directs and limits the future administration of government. This branch of legislation is in itself of greater importance, and it is more likely to be abused, than any other; because every member in the community has an interest to avoid all public bargains, and to roll them over upon his neighbours; while the chief executive officer, or whoever has the management and disposal of the revenue, is interested to squeeze as much as he can from the people. We may easily suppose, therefore, that as the vassals of the crown, after the Norman conquest, assumed the ordinary exercise of the legislative power, they would not be disposed to relinquish that peculiar branch of it, which consisted in the imposition of taxes; and there is, accordingly, no reason to doubt, that, as far as it could exist in that period, the power of taxation was immediately transferred<94> from the Wittenagemote of the Saxons to the Anglo-Norman parliament.

But in that age, there was little occasion for exercising this power; few taxes being then, directly at least and avowedly, imposed upon the nation. The chief support of the crown was derived from a revenue independent of the people; and when additional supplies became requisite, they were obtained, either by means of a private bargain, for a valuable consideration; or under the mask of a gift or voluntary contribution.

At a period when mercenary armies were unknown, and when the administration of justice, instead of being a burden upon the crown, was the source of emolument, the royal demesnes, which, after the accession of William the first, became prodigiously extensive, together with the profits of amerciaments and fines, and the common feudal rents and incidents arising from the estates of crown-vassals, were fully sufficient to maintain the dignity of the sovereign, and to defray the ordinary expence of government. This ancient revenue, however, was gradually improved, according to the<95> increasing charges of government, by the addition of scutages, hydages, and talliages.

The first were pecuniary compositions paid by the crown-vassals, in place of their military service; and, being settled, in each case, by a stipulation between the parties, had no resemblance to what is properly called a tax. It was always in the power of the vassal to insist upon such terms, with respect to this composition, as he judged expedient, or to avoid the payment of it altogether, by performing the service for which he was originally bound. The sum paid was a voluntary commutation: and therefore it must be understood that he who paid it thought himself a gainer by the bargain.

Hydages were due by the soccage-vassals of the crown; who, beside their constant yearly rent to their superior, were bound to supply him with carriages, and to perform various kinds of work. As these were, by their nature, somewhat indefinite, they came to be frequently exacted by the crown-officers in an oppressive manner; and, when the vassal rose to a degree of wealth and independence, he was willing to exchange them for a pecuniary<96> payment, which might, at the same time, yield more profit to the crown. Of this payment the extent was originally fixed, like that of the scutage, by an agreement in each case between the parties.

Talliages were paid, in like manner, by the inhabitants of towns in the king’s demesne. As the king protected his boroughs, and bestowed upon them various privileges, with respect to their manufactures, so he levied from them such tolls and duties as they were able to bear. According as those communities became opulent and flourishing, their duties were multiplied, and rendered more troublesome and vexatious; from which it was at length found convenient that they should be converted into a regular pecuniary assessment.*

The trade of the country, however inconsiderable, became also the means of procuring some revenue to the sovereign. Persons engaged in this employment, standing in need of the protection of government, and being also frequently destitute of conveniencies for trans-<97>porting and vending their goods, were not only protected, but even sometimes provided with warehouses, and with measures and weights, by the king; who, in return, demanded from them, either a part of their commodity, or some other payment suited to the nature of the benefit which they had received. A similar payment was demanded by the king upon the passage of goods from one port of the kingdom to another. To the duties which came thus to be established by long usage, was given the appellation of customs. Having arisen from the demands of one party, and the acquiescence of the other, they were in reality founded upon a sort of stipulation or mutual agreement.

When all these branches of revenue proved insufficient, the king upon any extraordinary exigence applied for an aid, or general contribution from= his vassals. We find that aids are enumerated among the feudal incidents; but, exclusive of the three cases formerly mentioned, whatever 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 benevolence.3

Though none of those duties, which were<98> levied by the express or implied consent of parties, could with propriety be considered as taxes, they became in reality the source of much oppression and injustice. It was dangerous to refuse the sovereign, even when he demanded a thing to which he had no right. It was difficult to make an equal bargain with a person so greatly superior in power and influence. By adhering strictly to their privileges, and by incurring the resentment of the king, the people subjected to those impositions might be utterly ruined; and were, on every occasion, likely to lose much more than the value of what was demanded from them. When the abuses, however, of which the crown was guilty in relation to these exactions, had risen to a certain height, they became the subject of general complaint, and attracted the notice of the legislature. Scutages, payable by the military vassals of the crown, came to be fixed by parliament, of which those vassals were members. After the soccage tenants and the burgesses had acquired a degree of opulence, the same rule was extended to the hydages, and talliages, levied from those two orders of men. The aids, demanded promiscuously from all the different<99> sorts of crown vassals, came to be regulated by the same authority.* The customs, originally of little importance, were, by the gradual extension of trade, and the increasing demands of the crown, brought likewise into public view, and acquired such magnitude as to occasion the interposition of parliament. By a statute in the reign of Edward the first, it is provided that those duties shall not be levied without the “common assent of the realm.”†

With respect to the manner of convening the national council, it was not immediately varied by the Norman conquest. The parliament, from the accession of William the First, was held, like the Wittenagemote in the Saxon times, either according to ancient usage, at the three stated festivals of Christmas, Easter, and Whitsuntide, or, upon particular exigencies, by virtue of a summons from the king. By degrees, however, the occasional meetings extended the subjects of their deliberation; while,<100> on the other hand, the regular customary assemblies were frequently prevented by the disorderly state of the country. In the war between the empress Matilda and king Stephen,4 they met with great interruptions, and from the beginning of the convulsions in the reign of king John, were entirely discontinued. The power of calling parliaments, and consequently of putting a negative upon its meetings, was thus in all cases devolved upon the sovereign.*

From these particulars, it is evident, that the English monarchs, after the Norman conquest, were far from possessing an absolute authority; and that the constitution, notwithstanding the recent exaltation of the crown, still retained a considerable proportion of the preceding aristocracy.5 As the national council, composed of the nobility or great proprietors of land, was invested with the legislative power, including that of imposing taxes, and with the power of distributing justice in the last resort,6 it enjoyed, of course, the right of controlling and directing the sovereign in the most important parts of administration.<101>

From the state of the revenue, indeed, in that period, the executive power was under less restraint from the legislature than it has become in later ages. As the king had seldom occasion to solicit a supply from parliament, he was the less liable to be questioned about the disposal of his income. The people, who gave nothing to the public magistrate for defraying the expence of government, had but little incitement or pretence, either to find fault with his oeconomy, or to require a strict account of his management. He 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 be sunk in that of an ordinary proprietor, to whom the crown, and the revenues connected with it, have been transmitted like a private inheritance.

It must at the same time be admitted, that abuses in the exercise of the executive power were then extremely frequent, and were often suffered to pass without animadversion or notice. The legislature had too little experience, to provide regulations for preventing the numerous instances of malversation in office that<102> were likely to occur; judicial establishments had not yet attained such perfection as might enable them with quickness to punish the several violations of justice; nor had long usage established those equitable maxims of government, which are the common effects of polished manners, and which often supply the place of positive institutions. The conduct of the sovereign, therefore, and even that of inferior officers, in the ordinary course of administration, was in a great measure discretionary; and was no otherwise restrained, than by the fear of exciting general clamour and disturbance. But individuals might sustain much oppression before their complaints were likely to excite attention, and might be disposed, from prudential considerations, to submit to many injuries and inconveniencies, rather than contend against the whole force of the crown. In this disorderly state of society, persons who preferred any request to the king, or who had even any claim of right, in which his interest was concerned, were commonly induced to secure his favour by a present, or, if you will, by a bribe. A numerous list of those presents, which were made to the sovereign, in order to<103> procure what was barely justice, has been collected by different authors, with a view of demonstrating the despotical nature of the Anglo-Norman government. But these instances tend only to prove the frequency of abuses, from the want of a regular polity, extending to all the departments of administration. They shew that the government was rude and imperfect, and therefore in many cases arbitrary; not that it was an absolute monarchy: that the national council was negligent and unskilful in restraining disorders; not that it was destitute of authority to limit the prerogative. This is what happens in the infancy of every political system, whatever be the peculiar plan upon which it is formed. The strong find themselves often at liberty to oppress the weak; persons of inferior station are therefore obliged to shelter themselves under the wings of a superior; and are glad to obtain, by solicitation or bribery, the quiet exercise of those rights which they are unable to maintain by any other means.

What puts this observation in a clear light is, that the abuses of the executive power, which were so frequent in the early periods of<104> the English constitution, have since been removed by the gradual improvement of arts, and the correspondent progress of manners, without any considerable change in the distribution of the great powers of government. The outlines of the English constitution are not very different, at this day, from what they were in the reign of William the Conqueror; but the powers which were then universally acknowledged, have been since more minutely applied to the detail of administration; and the variations, that have occurred in the modes of living, and in the condition of individuals, have been gradually accommodated to the spirit of the old institutions. The experience of the nation has led them to fill up the picture, of which a rude sketch was delineated in that early period.<105>

CHAPTER III

Of the ordinary Courts of Justice after the Norman Conquest.

The distribution of justice, in the last resort, was not the most brilliant or conspicuous, though it was, undoubtedly, one of the most useful departments belonging to the national council. During the latter part of the Anglo-Saxon government, this branch of business was commonly devolved upon occasional meetings of the Wittenagemote; which being called for discussing matters of inferior concern, were seldom attended by any other members than such as happened, at the time, to be retained about the king’s person. But, after the Norman conquest, the changes which have been mentioned in the state of the country, contributed to produce farther alterations in the judicial establishments; and particularly, to divest more entirely the public assembly of the ordinary cognizance of lawsuits. By the completion of the feudal system in France, the administration of justice in that<106> country attained a degree of regularity which was formerly unknown; and upon the accession of William the First, to the English 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 several districts of the kingdom, which had formerly been distracted by the feuds of their independent leaders, came now to be united under the feudal superiority of the crown, the decision of private quarrels by the sword was more effectually restrained; while the vigour and influence, possessed by the two first princes of the Norman race, co-operated with the natural progress of society in bringing the differences among all the inhabitants under the determination of the magistrate. From the consequent multiplication of appeals to parliament, the members of that assembly became daily less disposed to execute this part of their duty; at the same time that, from the increasing authority of the crown, their attendance was rendered proportionably less necessary. The number of crown-vassals, convened on such occasions, was therefore gradually diminished;<107> the absence of others was more and more overlooked; and at length there was formed, out of parliament, a regular tribunal, for the sole purpose of deciding law-suits, and composed of an arbitrary number of those persons who sat in the greater assembly. The great officers of the crown, being always upon the spot, whenever a meeting of this kind was called, became its ordinary constituent members; and to these were added by the king particular persons, who, from their knowledge of law, or experience in business, were thought qualified to assist in the inferior departments of office.* <108>

This court, from the place in which it was commonly held, received the appellation of the aula regis.1 In its constitution and origin, it corresponded exactly with the cour de roy, which, after the accession of Hugh Capet, was gradually formed out of the ancient parliament of France; and with the aulic council, which, after the time of Otho the Great, arose, in like manner, out of the diet of the German<109> empire. In Scotland we meet with a court of the same nature; and there is reason to believe that, in every European kingdom of considerable extent, the progress of the feudal system gave rise to a similar institution. In all these countries, as well as in England, it appears probable, that this tribunal was detached from the national council by connivance rather than by any positive appointment; from a disposition in the people to consult their own ease and conveniency, more than from any design upon the part of the crown to limit their privileges; in short, from no preconceived plan of altering the constitution, but from a natural and obvious accommodation to the circumstances of the community; and from an immediate prospect of advantage, by facilitating the distribution of justice. As this tribunal, therefore, has been formed in a slow and gradual manner, it seems difficult, in any of the countries above-mentioned, to ascertain the precise date of its formation. In England, the institution of the aula regis is commonly ascribed to William the Conqueror; but this must be understood with relation to the first appearance of that court, as distinct from the<110> greater meeting of parliament, and not with respect to the subsequent variations and improvements which preceded its complete establishment.

This court was held by the English monarchs, not only in their most usual place of residence, but wherever they happened to be, when there was found occasion for its interposition. It had the same extent of jurisdiction with parliament, out of which it had grown; and therefore obtained the cognizance of all ordinary law-suits, whether civil, criminal, or fiscal.

The king himself presided in the aula regis, whenever he thought proper to sit there as a judge; but the ordinary president of this court was the lord high steward,2 the principal officer of the crown; who, in rank and authority, had risen to be the second person in the kingdom; and upon whom the king, when absent from parliament, had likewise devolved the right of presiding in that assembly.* <111>

For some time after this tribunal had been separated from the meetings of parliament, it still consisted of all the great officers of the crown; but according as, by the gradual extension of its authority, it had occasion to sit more frequently, the attendance even of the greater part of these members was rendered more useless, as well as inconvenient; and therefore became the less regular. The king, at the same time, acquiring higher notions of his own dignity, or finding himself more engaged in the other departments of government, ceased also to exercise the ordinary functions of a judge; so that the high steward became in a manner the sole magistrate of the aula regis; and, from this most conspicuous branch of power annexed to his office, was denominated the grand justiciary.† <112>

While the judicial authority of parliament was thus delegated to another court, the king exercised the chief parts of the executive power, by the assistance of a privy-council,3 composed<113> of such barons as enjoyed his particular favour and confidence. Some institution of this nature had probably existed, at least occasionally, during the reigns of the later Saxon princes; but, after the Norman conquest, when the prerogative was considerably exalted, the privy-council, of consequence, rose in dignity, and its interpositions became proportionably more extensive. The members of this meeting, it is probable, were nearly the same persons who, from their employment about the king’s person, had usually been called to sit in the aula regis, after it came to be separated from the greater meeting of parliament; and even when the king and his privy-counsellors had devolved the ordinary business of that court upon a single magistrate, they still retained the cognizance of such extraordinary causes, both civil and criminal, as more immediately excited their attention. Of the causes which came, in this manner, to be determined by the king and his<114> privy-council, and were at length, by custom, appropriated to that court, there were three different sorts.

1. When a crime was committed, for the punishment of which the common law had made no proper provision, it was thought expedient, that the criminal should not be permitted to escape from justice; but that he should be called before this extraordinary tribunal, and punished according to the nature of his offence. From the meetings of the privy-council, which gave a decision in such uncommon and singular cases, there was formed, in after times, a regular jurisdiction, known by the name of the star chamber.*

From the nature of things, it was to be expected, that this jurisdiction would soon degenerate into tyranny and oppression. The procedure of the court, as it related to matters<115> in which no rule had been established, was, of course, discretionary and fluctuating: at the same time that the causes 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 pleasure by the king, so the decisions, whenever he chose to interfere, depended entirely upon his will. These objections, however, to the jurisdiction of the star-chamber, which appear so well founded, and which, in a future period, occasioned the abolition of that court, were not likely to be suggested upon its first establishment, when its interpositions, we may suppose, were few, and limited to cases of great necessity, and when the simplicity of the age was more disposed to regard the immediate benefit arising from any measure, than to consider the distant consequences of which, as a matter of precedent, it might possibly be productive.

2. In civil questions, the rules of common law, which had been gradually established by judges in order to avoid reflections, and to prevent inconsistency of conduct, were sometimes<116> found so extremely defective as to lay the court under the disagreeable necessity, either of refusing justice to individuals, or of pronouncing an improper decision. The king and his privy-council, upon the same principle which led them to interfere in extraordinary crimes, were induced to hear the complaints of persons who had suffered injustice from the rude and imperfect system of jurisprudence adopted by the grand justiciary; and to afford them relief by a decision according to conscience or natural equity. The interpositions derived from this source, becoming numerous, and being often attended with some difficulty, were put more immediately under the direction of the chancellor; who, as the king’s secretary, was usually a man of some literature; and who, having become the clerk, or keeper of the records of the aula regis, was particularly conversant in matters of law, and qualified to decide in such nice and intricate cases. In what manner the decisions of this officer, who acted at first with the assistance of a committee of privy-counsellors, gave rise to the jurisdiction of the court of chancery, will fall more properly to be considered hereafter.<117>

3. When the Christian clergy had acquired an extensive authority and jurisdiction in the western part of Europe, we find that, whatever censure they may deserve for the interested policy which they practised in other respects, they had the singular merit of endeavouring every where to repress the disorder and injustice arising from the anarchy of the feudal times. The weak and defenceless, who met with insult and oppression from every other quarter, found protection from the church; and the causes of widows and orphans, and of all persons in circumstances of distress,* which had been banished from the barbarous tribunal of the lay-judges, procured a welcome reception in the spiritual court; where they were commonly examined with candour, and determined with impartiality.

In imitation, as it should seem, of this ecclesiastical interposition, the king of England took under his immediate protection the causes of such as, by reason of their poverty, were unable to bear the expense of an ordinary law-suit; and, since no other court in the country<118> could give the proper redress, he encouraged those persons to bring a petition or supplication to the privy-council; which decided their claims in a summary manner, and without the forms observed in the ordinary tribunals. Hence particular persons being entrusted with this branch of business, composed at length a court of requests, as it was called; which, for a long time, had no warrant of ordinary jurisdiction; but which, as the complaints that came before it could not be accurately defined, assumed at length so great powers as to render it unpopular, and, in the reign of Charles the first,4 to occasion its abolition.†

The influence of that humanity, displayed by the church, was not confined to England; but appears to have produced a similar interposition in the government of other European countries. In France it was anciently the custom to present petitions or complaints to the king at the gate of his palace; and, for the purpose of receiving and examining these, the king was early led to appoint certain persons belonging to his houshold. If any petition<119> was of too great consequence to be answered immediately by these commissioners, they were directed to make a report of it to the king, and to require the attendance of the parties, in order that the cause might be heard and determined. The persons appointed for the determination of such causes, who seem to have been members of the king’s privy-council, were called maistres des requestes de l’hostel du roy.5 Their number was increased to= six, of which the one half were ecclesiastics; and they seem at length to have been formed into a separate court, under the name of the chamber of requests.*

The institution of the aula regis, or court of the grand justiciary, was a natural, and a very great improvement in the system of judicial policy. The great national council could not be very frequently convened, and its decisions, therefore, especially in matters of private property, were not easily procured. But the smaller tribunal of the aula regis was easily kept in readiness, to determine every controversy whether civil or criminal. As the king, amid the disorders of the feudal government, was under the necessity of making frequent<120> journies over the kingdom, in order to maintain his authority, and to suppress or prevent insurrections, he was enabled to receive, in every quarter, the complaints of his people, and found no difficulty in calling this court to give such redress as the occasion might require. Justice was made, in this manner, to pervade the country; reparation of injuries was rendered more certain, while the expence of litigation was diminished; and, by punishing crimes in the neighbourhood of those places where they had been committed, the axe and the halter became an immediate and powerful antidote to the poison of bad example.

From the decisions of this tribunal, there always lay an appeal to the high court of parliament. This was a consequence of the manner in which the aula regis was formed; by the mere disuse of attendance in the greater part of the members of parliament; who thence were understood to have delegated the ordinary judicial power to such of their number as continued in the exercise of it. But as this delegation was intended merely to save trouble to the members of parliament, it was not conceived to exclude a full meeting of that council from reviewing, in extraordinary cases the proce-<121>dure of the committee upon whom this ordinary jurisdiction had been devolved. Though parliament might wish to be disengaged from the labour attending the decision of law-suits, it was probably not willing to resign the authority connected with that employment; and, while it acquiesced in the substitution of a court for exercising the whole parliamentary jurisdiction in the first instance, it still reserved the power, which might be exerted on singular occasions, of superintending the proceedings of that court, and of controlling its decisions.

The aula regis, being a sort of deputation from the national council, or king’s baron-court, had, on the other hand, a power of reviewing the sentences of the several tribunals erected in different parts of the kingdom; and became an intermediate court between them and the high court of parliament. There was the same reason for committing to the court of the grand justiciary, the province of hearing and discussing appeals from inferior tribunals, as for devolving upon it an original jurisdiction in parliamentary actions. The full establishment of this tribunal, however, together with the changes in the state of property after<122> the Norman conquest, contributed to limit the authority of these inferior courts, and to render their interposition of little importance.

When the great lords of a county had become vassals of the crown, they claimed the privilege of bringing their law-suits, in the first instance, before the baron-court of the sovereign, their immediate superior. To the same court were brought immediately, appeals from the sentences pronounced by these great lords in their own baron-courts. The sheriff, now converted into a crown vassal, beside the jurisdiction over his own feudal barony, appears to have still retained the power of deciding controversies between the rear-vassals or tenants belonging to different baronies within his county.

But the authority possessed by the aula regis, which was daily extended, from the increasing power of the crown, enabled that court even to make continual encroachments upon the subordinate jurisdiction of the sheriff and of the different barons. It could be of little advantage to the inhabitants, that their law-suits were brought in the first instance before the court of the baron or of the sheriff, since the<123> decision of those judges might, with the utmost facility, be reviewed by the court of the grand justiciary; and, as this great tribunal appeared occasionally in all parts of the kingdom, and distributed justice with superior efficacy and splendor, men were frequently disposed to pass over the inferior courts, and took encouragement to bring their disputes immediately before the court of appeal. Thus, by the gradual operation of the same circumstances, the judicatories of each barony, and county, dwindled into a state of insignificance; their jurisdiction was at length restricted to matters of small value; and the greater part of causes, civil and criminal, as well as fiscal, were appropriated to the ordinary baron-court of the sovereign.

Mr. Hume imagines, that none of the other feudal governments in Europe had such institutions as the county-courts; and seems to be of opinion, that as these courts, by requiring the frequent attendance of the barons, contributed to remind them of their dependence upon the king, they must have had remarkable effects in reducing those great personages under the authority of the chief magistrate.<124>

But the county-courts were so far from being peculiar to England, that they appear, in the early periods of the feudal system, to have existed throughout all the western parts of Europe. In France, and in several other countries upon the continent, those courts began sooner to lose their authority than in England; because the sovereign had sooner acquired a feudal superiority over the great lords: by which they were reduced under the immediate jurisdiction 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 slowly than in England, the county-courts were enabled much longer to preserve their primitive jurisdiction; so that a considerable share of it has been transmitted to the present time, and become a permanent branch of the judicial polity.

It seems difficult, therefore, to suppose that the long continuance of the courts of the sheriff in England had any tendency to increase or maintain the authority of the king over the barons. The decay of those judicial<125> establishments appears, on the contrary, to have been a necessary consequence of a correspondent exaltation of the crown; and we shall find that, in every country, they remained longer in power and splendor, according as particular circumstances contributed to thwart the ambitious views of the monarch, and to prevent the extension of his prerogative.

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 disuse of the county courts, and by receiving appeals from the courts of the barons. These appeals, agreeable to the general custom of the feudal governments, contained at first a complaint that injustice had been committed by the inferior judge, who, therefore, was obliged to appear as a party, before the superior tribunal. But according as the practice of appealing became more frequent, the petitions of appeal were admitted upon slighter grounds; the charge of wilful injustice against the inferior courts was more and more overlooked; the magistrates who had presided in these courts, were no longer sufficiently interested to appear for the justification of their conduct;<126> and the controversy was examined in the court of review, for the sole purpose of determining the propriety or impropriety of the former decision.

It is true, that from the disorders which prevailed in France, under the later princes of the Carlovingian race,6 one or two of the great lords had acquired such independence, 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 singularity. It also 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 devised of sending royal bailiffs into different parts of the kingdom, with a commission to take cognizance of all those causes in which the sovereign was interested, and in reality for the purpose of abridging and limiting the subordinate jurisdiction of the neighbouring feudal superiors. By an edict of Philip Augustus, in the year 1190, those bailiffs were appointed in all the principal towns of the kingdom.* <127>

CHAPTER IV

Progress of Ecclesiastical Jurisdiction and Authority.

The hierarchy of the western church grew up and extended itself over the kingdoms of Europe, independent of the boundaries which had been set to the dominion of secular princes, and of the revolutions which took place in the state of any civil government. The Roman pontiff, having found the means of uniting under his protection the clergy of each particular kingdom, was equally interested in promoting their influence, as they were in maintaining the authority of their spiritual leader. By taking advantage, therefore, of the various and successive contentions among opposite and rival powers, he was enabled to extort concessions from those whom he had supported, to levy impositions, and to exalt the dignity and prerogatives of the holy see.

The Norman conquest, in England, was followed by a complete separation of the<128> ecclesiastical from the temporal courts. By a regulation of William the Conqueror, the bishop was no longer permitted to sit as a judge in the court of the county, nor the rural dean in that of the hundred.* This alteration had undoubtedly a tendency to promote that exclusive jurisdiction which the clergy were desirous of establishing; and to build up that system of church power which the wisdom of after ages found it so necessary, and at the same time so difficult, to pull down. Under the dominion of the Anglo-Saxon princes, while the spiritual judges were associated with the civil magistrate, many causes of an ecclesiastical nature were brought under the cognizance of the temporal courts; and though, from the superior knowledge and address of churchmen, the decisions given by those tribunals might be apt, in some cases, to savour of a clerical spirit, there was little danger, from this arrangement, that the church would become totally independent of the state. But from the moment that the clergy were excluded from a voice in the courts of the<129> hundred and of the county, ecclesiastical controversies were appropriated, in all cases, to the judicatories of the church; and the ambition of churchmen immediately excited them to extend their own peculiar jurisdiction, by invading that of the civil magistrate.

The encroachments made by the spiritual, upon the province of the temporal courts, were of a similar nature in England, and in all the other countries belonging to the Western church. The pretence for these encroachments was, the privilege of the clergy to inflict censure upon every irregularity, which could be considered as a sin, or an offence in the sight of God. Under this description every act of injustice, every violation of the laws of the land, was manifestly included; but the offences which in this view attracted more particularly the attention of churchmen were such, it may easily be conceived, as had an immediate connexion with their own interest, or with those religious observances from which their own dignity and importance were in some measure derived.

One of the first interpositions of the church, in a matter of civil jurisdiction, appears to<130> have been made with relation to tythes,1 and other ecclesiastical revenues. Even after the rights of the clergy, in this particular, had received the sanction of public authority, they were not likely to meet with a vigorous and hearty support from the civil magistrate; and it was therefore considered by the church, as a matter of general concern, to render them effectual in the spiritual court.

The performance of testamentary bequests was viewed in a similar light. As in the exercise of their profession, the clergy were frequently employed about dying persons, and had almost the exclusive possession of all the literature of that ignorant age, they were usually consulted upon the making of testaments, and became the common witnesses to those deeds. It would be doing them injustice to say, that they neglected to avail themselves of that situation, for increasing the revenue of the respective corporations to which they belonged. With so great diligence and success did they perform this part of their duty, that few persons adventured to take a near prospect of a future state, without making considerable donations for pious uses; and the effect of in-<131>culcating the same doctrine, was at length rendered so universal, that, in many countries of Europe, a great proportion of every personal estate was, without any testament, and in virtue of a tacit or presumed will of the proprietor, transferred, by the ordinary course of succession, to the church. Thus the clergy were not only the best qualified for explaining the will of the testator, but had besides a peculiar interest in the execution of it; and therefore, by their activity and vigilance, joined to the indifference and remissness of the civil tribunals, they found it not difficult, in questions of this nature, to acquire an exclusive jurisdiction.

From the same principle which recommended penances and mortifications as highly meritorious, the ministers of religion thought it incumbent upon them to censure and discourage all excesses in sensual pleasure; and in a particular manner to restrain every irregularity with respect to the intercourse of the sexes. 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 solemnities, was regarded as<132> a species of sacrament. Upon this account, every breach of the duties of marriage, every question with relation to its validity, or concerning the terms and conditions which were held compatible with that institution, became an object of ecclesiastical cognizance.

This branch of jurisdiction afforded, by degrees, a pecuniary revenue, which the clergy did not fail to improve. By the Roman law, which was at first adopted in ecclesiastical courts, marriage was prohibited between collateral relations in the second degree; that is, between brothers and sisters. This prohibition, comprehending those persons who usually were brought up in the same family, and who, unless their union had been entirely prevented, might be frequently exposed to the hazard of seduction, is founded upon manifest considerations of expediency. But no sooner was the church possessed of sufficient authority in this point, than, becoming dissatisfied with such a reasonable and salutary regulation, she thought proper to introduce a stricter discipline; and proceeded, by degrees, to prohibit the union of more distant relations; in so much that marriage between persons in the fourteenth<133> degree, according to the Roman computation, was at length declared illegal.* Not contented with preventing the intercourse of natural relations, the superstition of the age recommended, and the interested policy of the church ordained, a restraint of the same nature, in consequence of the spiritual connexion arising from baptism, between the person baptized and his godfathers and godmothers, as well as the clergyman by whom that sacrament was administered; and the marriage of those persons, together with their relations, as far as the fourteenth degree, was likewise forbidden. The number of people, thus prohibited from intermarrying, came to be so immense, that persons at liberty to form that union, at a time when relations were not, as at present, scattered over the world by the influence of<134> commerce, could seldom be found, at least among persons of rank, in the same quarter of a country, and hardly ever in the same circle of acquaintance.*

These regulations were intended merely for the purpose of levying contributions from the people; for, though marriages contracted within the forbidden degrees were null and void, the church assumed a power of dispensing with the law; and to such as were able to pay for it, with exception of parents and children, and some other very near relations, a dispensation, in most cases, was readily granted.

By this jurisdiction with relation to testaments, and with relation to the validity of marriage, the church decided the most important questions concerning the transmission<135> of property. She possessed the sole power of determining the legitimacy of children, upon which depended their capacity of inheritance; at the same time that she gave authority to the nomination of every person who succeeded to an estate by the will of the proprietor.

Amid the disorders which prevailed in Europe for many centuries after the downfal of the Roman Empire, and by which the inhabitants were sunk in profound ignorance and barbarism, the clergy exerted themselves in restraining the perfidy and injustice of the times; and, by the influence of religious motives, endeavoured, as far as possible, to induce mankind to the observance of good faith in their various transactions. For this purpose they introduced a general practice, that contracts of every sort should be confirmed by the sanction of an oath; by which means the violation of a contract, being considered as the breach of a religious duty, fell under the cognizance of the church. From the strictness observed in the decisions of the spiritual court, the private party, at the same time, found it more adviseable to bring his complaint before this tribunal than that of the civil magistrate.<136> The extent of jurisdiction, acquired in this manner may easily be conceived.

Lastly. To the church courts were appropriated, as I formerly had occasion to observe, the causes of widows and orphans, and of all persons in circumstances of distress. Causes of this description were too apt to be neglected by those military barons invested with civil jurisdiction, who paid but little attention to the claims of any person from whose future services they could derive no benefit, or from whose resentment they had nothing to fear.

It must be remembered, to the honour of the clergy of those times, that they were the friends of order and regular government; that, if they laboured to rear a system of ecclesiastical despotism, their authority was generally employed in maintaining the rules of justice; and that they discovered a uniform inclination to protect the weak and defenceless, against that violence and oppression which was too much countenanced by such of the laity as were possessed of opulence and power. From this circumstance, the extensions of ecclesiastical jurisdiction were highly acceptable to the people; and, notwithstanding the pernicious<137> consequences 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 occasion to determine a multitude of causes, both of an ecclesiastical nature, and such as fell within the province of the civil magistrate, the church courts advanced in the knowledge and experience of judicial business. As, by their literature, the clergy could not fail to be acquainted with the ancient Roman law, they were led, in many cases, to adopt the rules of that equitable system: Their own decisions were collected, in order to serve as precedents in future questions; and from these, together with the opinions of learned fathers in the church, the decrees of councils, and regulations of popes, was at length formed that body of canon-law,2 which obtained universal reputation in the western part of Europe.

It would have been to little purpose, however, for the church to assume a jurisdiction, had she not been able to render herself independent in the exercise of it. But the same vigour and dexterity, by which the clergy established their power in any European king-<138>dom, were exerted in order to withdraw their subjection from the sovereign, and to render them subordinate only to the Roman pontiff. In England this was, in some measure, effected so early as the reign of William the conqueror, by the expedient of appointing papal legates, or commissioners, to hear and determine ecclesiastical causes. As those appointments might be renewed at pleasure, they soon opened the way for a direct appeal from the English church-courts to that of Rome; which was first attempted in the reign of William Rufus, and finally accomplished in that of king Stephen.*

The entire exemption of churchmen, or clerks, from secular jurisdiction, which had been early introduced into some other European countries, and which appears to be a natural consequence of the advancement of ecclesiastical power, was, in England, made effectual about the time of Henry the second. The effects of this exemption, which have, in some measure, been retained in later ages, are universally known by what is called the benefit of<139> clergy. As the church-courts never inflicted a capital or corporal punishment, those offenders, who could be subjected to no other jurisdiction, were of course exempted from such punishment, unless in some few cases, where the church might refuse her interposition, or was pleased to deliver over the criminal to the secular arm. After the reformation, this privilege of clerks, which, by the progress of literature,3 came to be within the reach of almost all the inhabitants, was looked upon as a convenient method for moderating the rigorous punishments of the common law; and therefore, with various modifications by statute, was then incorporated in the legal system.

In the reign of Henry the first, the monastic rule of celibacy, after long and violent struggles, was at length imposed upon the secular clergy of England; and received the sanction of ecclesiastical authority.* By this regulation, churchmen, being freed from the cares of a family, and from the burden of making a provision for posterity, were detached, in a great measure, from the rest of the community, and, by motives of interest and ambition, were more<140> uniformly and firmly united in that ecclesiastical corporation of which they were members. Though it may be true, therefore, that this absurd system of mortification was introduced from perverted notions of refinement, and by the universal influence of superstition, there can be no doubt that it was afterwards promoted and extended from the interested policy of churchmen, and more especially from that of their spiritual sovereign.

But the great circumstance which contributed to establish the independent power of the church, was the privilege of bestowing ecclesiastical preferments.4

Upon the first establishment of ecclesiastical benefices, by the donation of dying persons, and the consequent rise of ecclesiastical dignities, the inferior clergy of each diocese were chosen by the bishop and chapter, and the bishop himself, 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 sovereign, in each of those kingdoms, was tempted to interfere in ecclesiastical elections, and, by his influence over those who had the power of nomination,<141> acquired at length the privilege of bestowing the higher church livings. But when the authority of the bishop of Rome had risen to a great height in the western church, he left no measure unattempted, in order to wrest out of the hands of princes an instrument of so much importance as the nomination of the superior clergy. The dispute concerning this point, which lasted for more than a century and a half, is one of the most remarkable events in the history of modern Europe.5 It was begun by the famous Gregory the seventh; a man who, by his abilities, his intrepidity, and his unbounded ambition, was qualified to draw the utmost advantage from the situation in which he was placed. This pontiff not only rejected with disdain the prerogative which the German emperors had for some time exercised, of confirming the election of the popes, but prohibited them from interfering in the election of all bishops and abbots; and proceeded so far as to issue decrees, by which he excluded the laity, of every rank or condition, from the collation to ecclesiastical benefices. Henry the fourth, who at this time wore the imperial diadem, defended his rights with vigour; and,<142> as many princes were, by various motives, induced to support the interest of the church, the contending parties had recourse to arms. During the progress of the quarrel, all Italy and Germany were thrown into convulsions; millions of people were destroyed upon the one side and the other; and it is computed that no less than sixty battles were fought in the reign of this emperor; together with eighteen more in that of his son and successor, Henry the fifth, who at length was persuaded to conclude a peace with the court of Rome, by granting an express renunciation of all his pretensions.*

The contest, with respect to the right of investitures, was not confined to Italy and Germany, but extended itself over the other countries of Europe; in which the church, for the most part, was equally successful. In France, the decrees of the pope were made effectual with less rapidity; but without violence, and even without much disturbance. In England, the right of the laity to confer ecclesiastical benefices, was first disputed in the reign of Henry the first, when Anselm,6 the archbishop<143> of Canterbury, refused to consecrate the bishops nominated by the king. The controversy was continued under several of the succeeding princes; but no blood was spilt in the quarrel, farther than by the assassination of Becket, or than what might arise from the scourging of Henry the second.7 In this kind of warfare, the church was properly in her own element; and managed her weapons with her usual dexterity. When king John had been weakened by an unsuccessful war, and had incurred the contempt and resentment of his subjects, the pope laid hold of that opportunity to invade his prerogative; and, by thundering out against him the different orders and degrees of ecclesiastical censure, at the same time that he had the address to employ the secular arm of France to support his authority, he at length obliged the infatuated English monarch, not only to relinquish all claim to the right of investitures, but even to resign his kingdom to the church, and to hold it for the future as a feudatory of the holy see.

It could hardly be expected that the pope would engage in such long and violent struggles for the sake merely of the clergy over whom<144> he presided, and that when he had at last gained a complete victory, he would not endeavour to improve it to his own advantage. No sooner was the nomination of bishops and abbots placed in the clergy of each cathedral church or monastery, than his holiness began to interfere in elections, by recommending particular persons to vacant benefices. Considering the influence and authority which he possessed over all the members of the church, and the exertions which he had made in procuring the right of election to the clergy, such a recommendation could not, with decency, be overlooked; and, in most cases, could scarcely fail of success. The frequency, however, of these recommendations disposed the electors to anticipate them on particular occasions, by filling up the vacancy with the utmost expedition. Foreseeing the death of some particular incumbent, the pope endeavoured sometimes to prevent a precipitate supply of the vacancy, by requesting that it should be delayed for some time. Such recommendations and requests, having come at length to be frequently disregarded, were afterwards accompanied with commands; and commissioners<145> were sent to put them in execution, as well as to punish the clergy, in case of their disobedience. To all these expedients was added, at length, a more effectual interposition for preventing every disappointment. With regard to the mode of electing bishops and abbots, and the qualifications of the person to be elected, a set of regulations was made, so numerous and intricate, that the strict observance of them became impossible; while it was declared, that, upon the least failure in any point, the election should be void, and the nomination should devolve to the apostolic see. By these artifices the bishop of Rome acquired, in reality, the power of appointing all the dignified clergy, together with all that influence and revenue which could be obtained, either directly or indirectly, from the disposal of every important ecclesiastical preferment.<146>

CHAPTER V

General View of the kingly Power, from the Reign of Edward I. to that of Henry VII.

The period of the English monarchy, from Edward the First to the accession of the house of Tudor, corresponds, with great exactness, to that of the French, from Philip the Fair to Lewis the Eleventh.1 About the beginning of these periods, the government, in each of those countries, assumed a degree of regularity unknown in former ages; and it afterwards continued, by similar steps, advancing towards maturity. The power of the king, and that of the nobles, formed, at this time, the only balance in the constitution; which came, in the natural course of things, to lean more and more to the side of the former. The nobility were too much divided among themselves, to be capable of prosecuting any regular plan for the aggrandisement of their own order. Their opulence, which, if collected in one great current, might have borne<147> down every obstacle before it, was deprived of its efficacy by being broken into many separate channels, and spent in various contrary directions. In order to make an effectual opposition to the crown, it was requisite that the greater barons should be firmly united in defence of their privileges; but such a union was not easily procured, and, for any length of time, could hardly ever be maintained. Distracted by mutual animosity, and actuated by private jealousies, or by opposite views of interest, these restless, but short-sighted chiefs, were, without much difficulty, persuaded to abandon any joint measures; and excited to employ their force in weakening and destroying one another. What they gained, therefore, upon some occasions, by a sudden and violent effort, was afterwards thrown away, from the want of perseverance or management; and the effect of a temporary combination was more than compensated by their usual tendency to disunion and dissension. But the crown was not capable of being divided against itself. Its property, being under the disposal of a single person, was always directed, however injudiciously, to the same end; and made subservient to<148> one political purpose; that of extending the royal prerogative. The revenue of the crown, therefore, created a degree of influence, which was continually extending itself, and which, by its uniform operation, afforded continual opportunities for increasing that revenue. While the aristocracy was thus remaining stationary, or left in a fluctuating state, according to the impulse of casual circumstances, the monarchy, by receiving regular supplies from every quarter, was gradually rising to a greater height, and overflowing its ancient boundaries.

It must, however, be admitted, that the period of English history, now under consideration, is distinguished by many powerful efforts of the nobility to support their privileges; and that the crown did not rise to the summit of dignity and splendor which it attained in the possession of the Tudor family, without surmounting a variety of obstacles, and without being frequently checked and retarded by unfavourable occurrences.

There is even good reason to believe, that, in England, the regal authority was more limited, about the time of Edward the First,<149> than it was in France, during the reign of Philip the Fair. Though the English crown was considerably exalted upon the accession of William the Conqueror, yet, under the succeeding reigns, its progress was apparently more slow and gradual. The barons, by taking advantage of particular conjunctures, and, in some cases, by proceeding to such extremities as threatened an immediate revolution, obtained from the sovereign the most important concessions; and, in little more than a century and a half, no fewer than six great charters were granted, some of them repeatedly, by six different princes. By these charters the power of the crown does not, indeed, seem to have been contracted within a narrower compass than immediately after the Norman conquest; but it was undoubtedly restrained in its advancement, and prevented from rising to that height which it would otherwise have attained. In France, on the other hand, the extension of the royal prerogative appears, from the time of Hugh Capet, to have scarcely met with any opposition. No formidable combination of the nobles, to withstand the incroachments of the kingly power! No series of charters, as<150> in England, relinquishing the supposed usurpations of the crown, and confirming the privileges of the aristocracy! The only deed of this nature, which we meet with in the French history, was near half a century posterior to the reign of Philip the Fair; and was extorted from king John in consequence of the difficulties under which he laboured from the invasion of his kingdom by the English monarch.*

To what causes may we ascribe this diffe-<151>rent spirit of the French from that of the English nobility? From what circumstances were the former disposed to look with so much tranquillity and indifference upon the exaltation of the crown, as never, but upon one occasion, to exert themselves in repressing it; while the latter discovered such a constant jealousy of the sovereign, and made so many and such vigorous attempts to restrain the progress of his authority? The importance of this question is obvious; for the efforts then made to resist the usurpations of the crown, may be regarded as the groundwork of those more precise limitations of the prerogative, which have been introduced in a later period.

1. There occurs one remarkable difference between the situation of the French and the English kings; that in France, the crown was, without interruption, transmitted directly from father to son, during a period of more than three hundred years; that is, from the time of Hugh Capet to that of Philip the Long;2 including a series of eleven different reigns; whereas in England, during the same period, we meet with no less than five deviations from the lineal course of succession; and about one<152> half of the reigning princes, who, however their title might be recognized by parliament, or their pretensions might be supported by the prevailing party, were, according to the common notions of that age, considered in the light of usurpers. In France, therefore, the crown passed, with perfect tranquillity, from one sovereign to another; and each of those princes, when he mounted the throne, having no competitor to obstruct his immediate possession, no flaw in his title to weaken or disturb the general prepossession in his favour, succeeded, of consequence, to all that hereditary influence which had been accumulated by his predecessors. To render the succession still more secure, Hugh Capet introduced the precaution, which had been in some measure suggested by the Roman emperors, of crowning his heir in his own lifetime; and the same practice was uniformly observed by six of the succeeding monarchs; that is, till the reign of Philip Augustus,3 when, from the superior stability of the throne, any ceremony of this kind was become superfluous.

In England, on the contrary, the succession of those princes, whose title was ill founded or<153> disputable, gave always occasion to dissatisfaction and complaint, if not to direct opposition, and open resistance; and, as the nobles were invited to lay hold of these opportunities for maintaining or extending their privileges, the king was obliged to compound for the possession of sovereignty, by submitting to limitations in the exercise of it. The personal authority of William the Conqueror, produced a submission to William Rufus, though in preference to his elder brother Robert, a man of popular character; but Henry the First, and Stephen, may be said to have purchased the crown, by the respective great charters which they granted to their vassals. With respect to Henry the Second, it must be acknowledged, that, though he was a foreigner, and though he had in some measure fought his way to the throne, yet in the end his accession was agreeable to the whole nation. But after having suffered a variety of disappointments, and having been exposed to much uneasiness from the unnatural behaviour of his own children, he appears to have confirmed the two preceding charters, from a disposition to guard against any future accident, by securing the good-will of his<154> people. The usurpation of John, accompanied with the murder of the lawful heir, had excited against that prince an indignation and resentment, which his future conduct, instead of removing, tended only to confirm; and the concessions which he made to his subjects, were plainly extorted from him by the accumulation of distress and embarrassment under which he laboured. Henry the Third, though there were no objections to his title, inherited, while he was yet a minor, a civil war from his father; and afterwards, by his imbecility and imprudence, was involved in calamities, from which nothing less than the good fortune, and the great abilities, of his son Edward the First could have extricated him. The charters granted by the former of those two princes were evidently the fruit of these difficulties.*

2. Another circumstance which, in that early period, produced a peculiar exaltation of the monarchy in France, was the forfeiture of Normandy by the king of England, and the reduction of that extensive country into an<155> immediate fief of the French crown.4 This forfeiture, though the particular time when it happened might be accidental, was to be expected from the situation of that country, with respect to the king of England, the immediate superior, and to the king of France, the lord paramount. The effect of so great an accession of revenue and influence to the French crown was visible; and Philip Augustus, in whose reign it happened, became evidently possessed of much more authority than his predecessors.

No acquisition of equal importance was made to the crown of England at this early period; for the settlement which was effected in Ireland, by Henry the Second, and which the historians have been pleased to dignify with the splendid appellation of a conquest, was productive neither of wealth nor of authority to the English monarch; nor does it appear, for several centuries, to have yielded any advantage whatever.

3. The insular situation of Britain may be considered as a general cause of the slower advancement of the royal prerogative in Eng-<156>land, than is to be found in the greater part of the modern kingdoms upon the continent of Europe. As, in the infancy of government, the kingly office arose from the necessity of having a general to command the united forces of the state, it was to be expected, that the oftener any sovereign had occasion to act in this capacity, his authority and dignity would sooner arrive at maturity. 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 submitting to his orders; their admiration was excited by his high station or distinguished prowess; and they were taught by experience to look up to him as the principal source of honours and preferment. In times of peace, on the contrary, when the members of different baronies, or tribes, had retired to their several places of abode, they were, in a great measure, withdrawn from the influence of the king, and were accustomed to no other jurisdiction or authority but that of the baron or chief by whom they were protected. Even after the<157> feudal governments had attained some degree of regularity, and when the sovereign had acquired numerous branches of civil power, it still was in the field that his pre-eminence attracted superior attention, and that he had the best means of procuring popularity.

It seems reasonable to conclude, therefore, that, upon the continent of Europe, where every sovereign found his dominions surrounded by bordering nations, whom he was frequently tempted to invade, and against whom he was obliged to be constantly upon his guard, the most ample scope was afforded him for displaying those talents, and for availing himself of those situations which were best calculated for extending his authority. In England, on the other hand; a country in which there were fewer inducements to undertake a national war, and in which the military operations of the sovereign were chiefly employed in quelling the disturbances excited by his rebellious barons, or in repelling the inroads of the Scots, which were not of much more importance than the insurrection of particular<158> barons, he had fewer opportunities of exciting a national spirit in his favour, and consequently found it more difficult to reduce the nobility into a state of dependence.

The prosperous reign of Edward the First had undoubtedly a considerable effect in confirming and exalting the prerogative. This prince was equally distinguished by his policy in the cabinet, and by his activity, courage, and conduct in the field; at the same time that he does not appear, by any scrupulous regard to the principles of honour or justice, to have been, on any occasion, prevented from directing those talents to the pursuit of his own grandeur or emolument. By the conquest of Wales he not only gained an enlargement of dominion, but freed himself from the vexatious depredations of a troublesome neighbour.5 Had he lived somewhat longer, it is more than probable that he would also have completed the entire conquest of Scotland; in which case, there is good ground to believe, that the reduction of the northern and southern parts of the island into one monarchy, would have been productive of such advantages to both<159> countries, as might in some measure have atoned for the perfidy and injustice by which it was accomplished.

The reign of Edward the Second6 was no less adverse 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 soon lost all the acquisitions which his father had made in Scotland; and saw the independence of that kingdom completely re-established. For the internal administration of government he was equally disqualified. The nobility of that age were, with difficulty, reconciled to the dignity and pre-eminence of the sovereign; but they could not endure, that any person of inferior condition should, by the favour of the monarch, be exalted over them, and be invested with the exercise of the prerogative. The extreme facility of Edward subjected him, however, to the constant dominion of favourites, in supporting whom he excited the indignation of the nobles; and the queen, whose affections had been seduced by Mortimer,7 and who seems to have thought herself better entitled than any other person to govern her husband, hav-<160>ing joined the malcontents, the king was formally deposed by a meeting of parliament; was kept for some time in confinement; and at length barbarously murdered. The fate of this unhappy prince cannot fail to move compassion, as it proceeded from the weakness of his understanding, and even from the gentleness of his disposition, more than from ambition, or any passion for arbitrary power: while it afforded a salutary lesson to his successors, by exhibiting a striking example of the authority of parliament, to controul, and even to punish, the sovereign.

The same power of the nobles, which had deposed Edward the Second, advanced to the throne his son Edward the Third, while yet a minor. The early indications of genius, and of a martial disposition, discovered by this prince, dispelled very quickly the gloom which had for some time hung over the nation, and gave a total change to the aspect of public affairs. He soon freed himself from the direction of the queen his mother, and put to death her favourite Mortimer,8 with little ceremony, and without much regard to the forms of justice. His first military enterprise was<161> directed to the recovery of what his father had lost in Scotland, in which, from the weak and disorderly state of that country, he met with little obstruction; but he was prevented from the execution of this plan, by another object, which was thought of much greater importance, and which, during the remainder of his reign, ingrossed his whole attention. This was his pretension, in right of his mother, to the crown of France;9 a claim which, though founded neither in justice nor expediency, was yet sufficiently plausible to palliate that love of extensive dominion, with which not only princes, but even the people in all ages and countries, have been almost constantly intoxicated. The conduct of Edward, in asserting this claim, was probably such as every monarch of spirit, in that age, must have held, and in so doing was sure of meeting with the general approbation of his subjects. As the undertaking, therefore, was crowned with unexpected and amazing success, it is no wonder that the splendid victories obtained by this king, and by his son the Black Prince,10 who acted so conspicuous a part in those scenes, procured them the admiration as well as the affections of the<162> whole English nation. While these two princes flattered the national vanity, by the prospect of conquering so great a kingdom as France, they displayed all the talents and virtues which, in those times, were supposed to enter into the composition of the most complete military character. Even at this day, when we contemplate the gallantry of the Black Prince, and the humanity and generosity with which he treated the king of France, his prisoner, we must acknowledge that they are surpassed by nothing either in ancient or modern story.11 Without detracting from the merit of this distinguished personage, we are led at the same time to conceive an exalted idea of the institutions and manners of chivalry, which, in so rude a state of society, were capable, among people of the better sort, of promoting so much delicacy of sentiment, and of encouraging any individual to form such a perfect model of propriety and refinement.

In the course of his long war against France, the king obtained, more and more, an ascendant over those nobles who followed his banner, and were smitten by an universal enthusiasm to distinguish themselves in that illustrious<163> field of national glory. His administration at home was equally prudent and vigorous, and calculated to restrain injustice, as well as to command respect. Though not disposed to relinquish any part of his prerogative, he appears to have had a real regard for the ancient constitution; and though he acquired greater authority than was possessed by the former kings of England, he confirmed, on many occasions, the great charters of his predecessors. He was under the necessity of making large and frequent demands of money from his subjects; but, as he endeavoured, in most cases, to procure it by the concurrence of parliament, and as the nation entered heartily into the views which gave occasion to so much expence, the supplies which he required were commonly furnished without any complaint. His numerous applications to the national assembly contributed, besides, to ascertain its powers and privileges, as well as to establish and reduce into order the forms and method of its procedure.

It merits attention, that, notwithstanding the alacrity with which the English nation supported the claim of their sovereign to the<164> crown of France, the parliament seem to have been alarmed at the idea of their falling under the government established in that country: and, to remove this apprehension, a statute was made, in which the king expressly declares, that the realm and people of England “shall not, in any time to come, be put in subjection nor in obeisance of us, nor of our heirs nor successors, as kings of France, nor be subject nor obedient, but shall be free and quit of all manner of subjection and obeisance aforesaid, as they were wont to be in the time of our progenitors, kings of England, for ever.”* From this precaution, it may be inferred, that the parliament understood the French monarchy, at this time, to be more absolute than the English; and were afraid that their monarch, if he came to the possession of that kingdom, might be led to exercise over them a power inconsistent with the constitution of England.

The reign of Richard the second12 is, in many respects, a repetition of the same disgusting and melancholy scenes, which that of<165> his great grandfather, Edward the second, had exhibited. In each of them we behold a young prince ascending the throne with great advantages; regarded by the nation with a partiality and affection derived from paternal connections; incurring the general contempt and indignation, by his folly and misconduct; governed, through the whole course of his administration, by favourites; dethroned at length by parliament, imprisoned, and brought to a tragical end. But the occurrences, in the time of Richard, were accompanied with circumstances which, in a review of the English government, are more particularly worthy of observation.

This reign affords a memorable example of the interference of parliament for the removal of the king’s ministers. To the address which was presented for this purpose, Richard is said to have answered, that, at the desire of parliament, he would not remove the meanest scullion of his kitchen. Having occasion for a subsidy, however, which could not otherwise be obtained, he was obliged to comply with their demand: the earl of Suffolk,13 the chancellor, was not only removed from his office, but im-<166>peached, and found guilty of misdemeanours; an inquiry was ordered into the disposal of the public revenue; and a commission was granted by parliament to fourteen persons, for the space of a twelvemonth, to concur with the king in the administration of government.

To these regulations Richard submitted no longer than till he thought himself in a condition to oppose them; and it soon became evident, that he had formed a resolution of extending his prerogative beyond its ancient limits. For this purpose he consulted with the principal judges and lawyers of the kingdom, from whom he found no difficulty in procuring an unanimous opinion agreeable to his wishes. Whatever may be the virtue of individuals, it is not to be expected that a body of men, sprung very frequently from a low origin; bred up in the habits of a gainful profession; whose views must be continually directed towards preferment, and the emoluments of office; soldiers of fortune, and whose fortune depends chiefly upon the favour of the crown; will be disposed to stand forth in critical times, and expose themselves to much hazard in maintaining the rights of the people.<167>

This design was frustrated by the vigour and activity of the nobles, who levied a great army, and defeated that of the crown. The king’s ministers made their escape; but in their absence were impeached, and their estates confiscated. Two persons of note, one of whom was the famous Tresilian, chief justice of the king’s bench, who happened to be caught, were tried and executed. The rest of the judges, who had concurred in the opinions above-mentioned, were banished to Ireland.14

The behaviour of the king in this situation was abject and mean, in proportion to his former haughtiness. At an interview with the nobles, he is said to have answered their reproaches with a flood of tears. But Richard was possessed of a high degree of obstinacy; a quality which is frequently connected with inferiority of understanding: whether it be that the same stupidity which leads men into error, puts them out of the reach of conviction by reasoning; or that, in proportion as they are incapable of examining objects on every side, they are commonly self-conceited and opinionative.<168>

The parliament being then composed of two houses, as will be mentioned more fully hereafter, it was perceived by the advisers of this infatuated prince, that the easiest method of carrying his views into execution, was by dividing that assembly, and, in particular, by procuring a majority in the house of commons. We accordingly find, that by adhering invariably to the same plan; by directing the nomination of sheriffs, and of the principal magistrates of boroughs; and by employing the interest and address of all those different officers in the election and return of representatives, this object was, in a few years, entirely accomplished. The king now ventured to avow his pretensions to absolute power; and in a meeting of parliament, in the year 1397, the opinions of the judges, which had been formerly condemned, were approved of and ratified; the chief heads of the aristocracy were put to death, or banished; the duke of Glocester, the king’s uncle, was privately murdered; and, to supersede the necessity of calling the national assembly for the future, a committee was appointed, consisting of twelve peers and<169> six commoners, upon whom the authority of both houses was devolved.15

This expedient of the crown, to pack the house of commons, is the first of the kind that occurs in our history; and it must be considered as forming a remarkable aera in the British constitution. It shows, in the first place, the limited nature of our ancient government; since, notwithstanding the late advances of the regal authority, the king, in order to carry his measures, was obliged to employ such indirect means for procuring the concurrence of parliament.

It proves also, that political consideration was not, at this period, confined to the greater nobility; but that men of small property, and of inferior condition, the representatives of counties and boroughs, were possessed of so much interest as enabled them, by throwing their weight into the scale of the sovereign, to bestow upon him an entire ascendant over the national council.

From the consequences which followed this undue influence, acquired by the king over the house of commons, we may plainly perceive that a spirit of liberty, or, if you will, of<170> opposition to the tyranny of the crown, was even then diffused, in some measure, over the nation. Finding that he was now master of the resolutions of parliament, Richard supposed the dispute was at an end; was therefore lulled in perfect security; and abandoned himself to the dictates of his own arbitrary will. But the people saw with concern, that they had been betrayed by their own representatives; their indignation and resentment were excited, and they became ripe for a general insurrection. The leaders of the malcontents cast their eyes upon the duke of Hereford, the eldest son of the duke of Lancaster,16 who, by the injustice of the king, had been sent into exile, and afterwards excluded from the inheritance of his father’s large possessions. This nobleman, the most distinguished by his rank and accomplishments, was invited to put himself at the head of the conspiracy, for the purpose of redressing his own private injuries, no less than of delivering the nation from tyranny and oppression. Richard, mean while, went over to Ireland, in order to quell the disturbances of that country, and thus gave to his enemies the opportunity which they wanted<171> of executing their designs. The general sentiments of the people were made abundantly evident by the events which followed. The duke of Hereford landed at Ravenspur, in Yorkshire, with no more than eighty attendants; but in a short time found himself at the head of an army amounting to sixty thousand. The duke of York,17 on the other hand, who had been left regent of the kingdom, assembled a body of troops to the number of forty thousand; but these, from disaffection, were unwilling to fight; and being therefore disbanded, they immediately joined the enemy. Another army having been transported by the king from Ireland, were infected with the same spirit, and the greater part of them deserted the royal standard.

Richard, abandoned by the whole nation, was forced to subscribe an instrument of resignation, in which he acknowledged himself unworthy to govern the kingdom. An accusation for misbehaviour, consisting of no less than thirty-five articles, was preferred against him to parliament, and universally approved of: after which, this prince was solemnly deposed by<172> the suffrages of both houses; and the crown was conferred on the duke of Hereford.

It is remarkable, according to the observation of an eminent writer, “that these extremities fell upon Richard the second, at a time when every thing seemed to contribute to his support, in the exercise of that arbitrary power which he had assumed. Those whom he had most reason to fear, were removed, either by violent death or banishment; and others were secured in his interest by places, or favours at court. The great offices of the crown, and the magistracy of the whole kingdom, were put into such hands as were fit for his designs; besides which, he had a parliament entirely at his devotion; but all these advantageous circumstances served only to prove, that a prince can have no real security against the just resentments of an injured and exasperated nation; for, in such governments as that of England, all endeavours used by the king to make himself absolute, are but so many steps towards his own downfal.”* <173>

The right of Henry the fourth to the crown of England was derived from the authority of parliament, confirmed by the voice of the whole kingdom. No transaction of the kind was ever compleated 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 accustomed to reason upon those philosophical principles, by which, in cases of extreme necessity, the right of doing so may be vindicated. Even so late as the revolution, in the year 1688, when the necessity and propriety of the settlement, which then took place, was universally understood, the parliament were unwilling to avow, in express terms, that power which they were determined to exercise; they had recourse to childish evasions, and fictitious suppositions; and the absurd pretext of an abdication was employed to cover the real deposition of the sovereign. It is not surprising, therefore, that, in the days of Richard the second, the speculative opinions of men, concerning points of this nature, were loose and fluctuating. Henry appears to have been sensible of this; and<174> founds his claim to the throne upon three different circumstances; upon the mal-administration of Richard; upon the right of conquest; and upon a popular, though probably a groundless tradition, that, by his mother, he was descended from Henry the third, by an elder brother of Edward the first, who, on account of his personal deformity, had been excluded from the succession to the crown. These particulars, however, are jumbled together, in a manner calculated to avoid a minute investigation. “In the name of Fadher, Son, and Holy Ghost,” says he, “I Henry of Lancaster challenge this rewme of Ynglande, and the crown, with all membres and appurtenances; als I that am descendit by right line of the blode, coming fro the gude King Henry therde, and throge that right that God of his grace hath sent 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 seems due to this connection with Henry the third; so it must be admitted, that, supposing it necessary to set aside<175> Richard the second, for defaut of governance, Henry the fourth was not, according to the established rules of succession, the next heir of the crown. He was the grandson of Edward the third, by the duke of Lancaster, third son of that monarch. But the duke of Clarence, Edward’s second son, had left a daughter, who was married into the house of Mortimer,18 and whose grandson, the earl of Marche, now a boy of seven years of age, was the representative of that family.

In examining this point, however, it ought to be remembered, that by the rules of succession established among rude and warlike nations, what is called the right of representation is unknown, and the nearer descendants of a family are frequently preferred to the more distant; as also, that, upon similar principles, female relations are usually excluded by the males. According to the early laws of almost all Europe, the title of Henry the fourth to the crown was therefore preferable, from both of these considerations, to that of the earl of Marche. A contrary custom, indeed, in consequence of more improved manners, had undoubtedly been gaining ground, before this<176> competition became an object of attention; but we must not suppose that it had yet become universal, or had acquired such a degree of stability, as the peaceful situation, and the scientific views of a polished age, have since bestowed upon it.

But whatever might be the 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 highest expediency, if not of absolute necessity. To dethrone a prince, who had for years been establishing a system of absolute power, and who had given proofs of his violent and sanguinary disposition, was a measure no less dangerous than it was difficult; and the successful execution of it could only be expected under a leader of great popularity, weight, and abilities. Henry appears to have been the only person in the kingdom qualified for conducting such an enterprise, and likely to secure the public tranquillity under the new establishment. To depose Richard, and at the same time to commit the reins of government to a person who, in that extraordinary exigence, was manifestly incapable of holding them,<177> would have been to attempt the abolition of despotism by substituting anarchy in its place; and wantonly to introduce a revolution at the hazard of much bloodshed and injustice, but with no reasonable prospect that it could be productive of any lasting advantages.

Henry the fourth enjoyed, however, but little tranquillity in the possession of that sovereign power which was thus conferred upon him. The great lords, who had taken a distinguished part in placing him on the throne, and who probably over-rated their services, became dissatisfied with that share of the royal favour and confidence which he thought proper to bestow upon them; and were disposed to believe they might easily pull down that fabric which they themselves had erected. The persevering activity, the deliberate valour, and sound policy, displayed by this monarch, through the whole of his conduct, enabled him to crush those frequent conspiracies which were formed against him; although it must be admitted, that his uncommon talents, which were uniformly exerted for this purpose, during a reign of thirteen years, were hardly sufficient to recover the prerogative<178> from the shock which it had received by the deposition of his predecessor.

The splendid character of Henry the fifth;19 his courage and magnanimity; his clemency, moderation, and humanity; his engaging appearance and deportment; his affability, address, and popular manners; together with his renewal of the claim to the kingdom of France, and his invasion of that country, accompanied with most astonishing success; these circumstances revived the flattering and delusive prospects entertained by the English in the days of Edward the third; and, by seizing the national enthusiasm, reinstated the crown in that authority and dignity which it had formerly maintained.

But the death of that monarch produced a sad reverse in the state of the kingdom. By the long minority of Henry the sixth,20 and his total incapacity, after he came to be of age; by the disasters which befel the English in prosecuting the war with France; and by their entire expulsion from that country, without the least hope of recovering it;21 the people were filled with discontent; were inspired with contempt of their sovereign; and of<179> course were disposed to listen to any objections against the title by which his family had obtained the crown. In the preceding reign those objections were held to be of so little moment, that Henry the fifth discovered no jealousy or apprehension of the Earl of Marche, the lineal heir of Richard; and there even subsisted between them an intercourse of mutual confidence and friendship; a circumstance which reflects great honour both upon the king and upon that nobleman. As the right of the governing family had been confirmed by a possession of three successive reigns, it would not, in all probability, have now been called in question, had not the weakness and misfortunes of the present administration destroyed all respect to the government, and excited uncommon dissatisfaction.

Upon the death of the earl of Marche without heirs male, the duke of York, in right of his mother, was now become the representative of that family; and from the extensive property possessed by this nobleman, together with his powerful connections, in consequence of various alliances among the principal nobility, he found himself in a condition to assert<180> that claim to the crown, which had been over-ruled by the prevailing ascendant of the house of Lancaster. It is needless to enter into particulars of the famous contention between those 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 disorder and with blood.22 That this long continued civil war, in which different princes were alternately set 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, escape observation, that, in the course of this violent contention, the nobles were not, as in some former disputes, leagued together in opposition to the king; but, by espousing the interest of different candidates, were led to employ their whole force against one another. Though the crown, therefore, was undoubtedly weakened, the nobility did not receive proportional strength; and the tendency of this melancholy situation was not so much to<181> increase the aristocracy, as to exhaust and impoverish the nation, and to destroy the effect of all subordination and government.

When we consider, in general, the state of the English constitution, from the accession of Edward the first, to that of Henry the seventh,23 we must find some difficulty to ascertain 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 should seem unreasonable to doubt; but this progress appears to have been slow, and frequently interrupted. If, in the vigorous and successful reigns of Edward the first, of Edward the third, and of Henry the fifth, the sceptre was remarkably exalted, it was at least equally depressed by the feeble and unfortunate administration of Edward the second, of Richard the second, and of Henry the sixth. By what circumstances the prerogative acquired additional strength, under the princes of the Tudor family, we shall afterwards have occasion to examine.<182>

CHAPTER VI

History of the Parliament in the same Period.

Among the important subjects of inquiry, which distinguish the period of English history, from the accession of Edward the first to that of Henry the seventh, our first attention is naturally directed to the changes which affected the legislative power; by the introduction of representatives into parliament; by the division of that assembly into two houses, attended with the appropriation of peculiar powers to each of them; and lastly, by the subsequent regulations, with respect to the right of electing members of the national council. These particulars appear to be of such magnitude, as to deserve a separate examination.

[11. ]For Marcus Aurelius, see p. 22, note 8.

[12. ]Lucius: legendary British king, reputed to have written to Pope Eleutherius in the second century, desiring assistance in his conversion to Christianity.

[13. ]For Constantine, see p. 22, note 10.

[* ]Gildas.—Also Whitaker, Hist. of Manchester.

[† ]According to the monkish tradition, there were twenty-eight bishops in Britain, during the Roman government of that island. These corresponded to the twenty-eight considerable cities in the province. See Ranulph. Higden. lib. i.—This number of British cities is mentioned by Gildas, Bede, and others; and their names are transmitted by Nonnius.

[* ]Ranulph. Higden. lib. i. [[Millar cites Ranulf [Ranalph] Higden. See Polychronicon Ranulphi Higden Monachi Cestrensis, ed. Churchill Babington, 49 vols., Rolls Series (London, 1865–89; repr. Kraus, 1965), 2:110–13. Augustine changed the archbishopric from London to Canterbury when Pope Gregory died.]]

[† ]Stillingfleet, Orig. Britan.

[14. ]In Nordic mythology, Odin is the supreme god and creator. Thor is his son, the god of thunder, agriculture, and weather. Hela is the goddess of the dead, commonly represented as living in a cavern. Valhalla is the great hall of the gods in the Nordic pantheon.

[* ]This was so much the case, that among the East Angles, according to the testimony of Bede, the Christian worship, and the Saxon idolatrous rites, were performed in one and the same church; such good neighbourhood was maintained between the two religions. “Atque in eodem fano et altare haberet ad sacrificium Christi et Arulam [[sic: arulam ad victimas daemoniorum. Quod videlicit sic: videlicet fanum, ex sic: rex ejusdem provinciae Alduulf, qui nostra aetate fuit, usque ad suum tempus perdurasse, et se in pueritia vidisse testabatur.” Bed. Hist. Eccl. lib. ii. ch. 15. “In the same temple he had one altar for the Christian sacrifice and another small altar on which to offer victims to devils. Ealdwulf, who was ruler of the kingdom up to our time, used to declare that the temple lasted until his time and that he saw it when he was a boy.” Bede’s Ecclesiastical History of the English People, ed. Bertram Colgrave and R. A. B. Mynors (Oxford: Clarendon Press, 1969), 191.]]

[15. ]Bertha (d. after 601): queen of Kent.

[16. ]Pope Gregory I, the Great (590–604).

[17. ]St. Augustine of Canterbury (d. 604): Italian churchman and first archbishop of Canterbury. Augustine’s mission to Britain commenced in 596. For the discussion in Bede that Millar cites, see Bede’s Ecclesiastical History, 69–73.

[* ]Bed. Hist. Ecclesiast. lib. i. c. 23. 25.

[† ]Bed. Hist. Eccles. lib. ii. seq.—Stillingfleet, Origin. Brit.—Henry’s Hist. of Great Britain.

[18. ]See Bede’s Ecclesiastical History, 77.

[* ]Hist. Eccles. l. i. c. 26.

[† ]Whitaker, Hist. of Manchester; and the authorities quoted by him.

[† ]Ranulph. Higden. lib. i.

[* ]The term free-burg is sometimes applied not to the whole tything or village, but to each of those wards into which it was divided. [See the laws ascribed to William the conqueror. Wilkins, c. 32.] But more frequently a free-burg and tything are understood to be synonymous. See the Glossaries of Spelman and Du Cange, v. Friborga.

[* ]Dr. Lightfoot’s Harmony of the Four Evangelists, part 3. on Luke chap. 4. ver. 15.—Lewis’s Antiquities of the Hebrew Republic, b. 3. ch. 21.—Goodwin’s Moses and Aaron, b. 2. ch. 2.—also Vitringa Archisynagogus illustratus.—This author agrees with Dr. Lightfoot, in supposing that the decem otiosi [[Ten men of leisure. The reference is to John Lightfoot’s The Harmony of the Four Evangelists, Among Themselves, and with the Old Testament (London, 1650), pt. 3, 115, who gives Hebrew rather than Latin., mentioned as requisite in every synagogue, were officers employed in the business of that society; though he differs as to the particular employments that were allotted to them.]]

[1. ]Dean.

[† ]Burn’s Eccles. Law.–Kennet’s Paroch. Antiq.

[‡ ]Though the distribution of persons and things according to tens, appears to have been immediately borrowed by the Christian clergy from the Jews, we find among many other nations a tendency to follow the same arrangement. Those natural instruments of notation, which every man carries about with him, the fingers, have probably been the original cause of the common arithmetical progression by tens, and of the general propensity to be governed by this number in the classification of objects.—The land-tax upon the ancient Roman provinces is said to have been a tenth of the produce.

[* ]Kennet’s Paroch. Antiq.—Burn’s Eccles. Law. v. Dean and Chapter.

[† ]Hundredus autem Latinè, says Ralph Higden, sive Cantredus, Wallicè et Hibernicè continet centum villas. [Polychronicon, lib. i.] [[“A hundred, moreover, in Latin—or a cantred in Welsh or Irish—contains a hundred towns.” Ranulph Higden, Polychronicon, 2:86.]]

[2. ]Administrative districts, consisting of a number of smaller districts called hundreds, united for purposes of local government.

[3. ]In this usage, “tradition” does not carry its modern sense, but rather means orally transmitted stories: hence a weak form of evidence. Hume, similarly, writes: “Ingenious men, possessed of leisure, are apt to push their researches beyond the period, in which literary monuments are framed or preserved; without reflecting, that the history of past events is immediately lost or disfigured, when intrusted to memory and oral tradition.” HE, 1:3.

[* ]Blackstone’s Comment. Vol. I. Introd. § 4.

[† ]Blackstone’s Comment. Vol. I. Introd. § 4. [[Sir William Blackstone notes that “Tithings, towns, or vills, are of the same signification in law; and had, each of them, originally a church and celebration of divine service, sacraments, and burials; which to have, or have had, separate to itself, is the essential distinction of a town, according to Sir Edward Coke.” Commentaries on the Laws of England (London, 1765), vol. 1.]]

[* ]The custom of choosing twelve men for distributing justice, is frequently mentioned in the Anglo-Saxon laws. Thus, in a law of king Ethelred, it is said, “Et ut habeantur conventus in quolibet wapentachio, et exeant seniores duodecim thani, et prefectus cum iis, et jurent super sanctuarium quod iis in manus datur, quod nolent ullum innocentem accusare, nec aliquem noxium celare.” [[“And assemblies shall be held in each wapentake, and twelve of the leading thanes shall come forward together with the reeve, and they shall swear on holy relics placed into their hands neither to accuse any innocent man nor conceal a guilty one.” A wapentake is a division of land in the Danelaw corresponding to the hundred. The Anglo-Saxon text can be found in The Laws of the Kings of England from Edmund to Henry I, ed. and trans. A. J. Robertson (Cambridge: Cambridge University Press, 1925), 65.—[Wilkins, p. 117.] In another law, ascribed to the same king, commonly called the senatus consultum de monticulis Walliae a decree of the Wittenagemote concerning the mountain-dwellers of Wales; this is the title of the law as it appears in Lambarde, Archaionomia, sive De Priscis Anglorum Legibus Libri (Cambridge, 1644), 94, it is enacted, for the mutual benefit of the English and Welch, that controversies between them shall be determined by twelve law-men, the half of whom shall be Englishmen, the other half Welchmen. [Wilkins, p. 125.]

These twelve persons correspond, it should seem, to the Racimburgi and the Scabini, who under the first and second races of the kings in France assisted in the decisions of the count and of the centenarius. The Racimburgi under the Merovingians were nobles assembled in groups of seven or eleven to assist the count in judgments in his court or to give their own judgments. The Scabini (in French échevins) succeeded them under Charlemagne in the eighth century. Robert Brady discusses the question in A Complete History of England (London, 1685), 1:76n.

It has been supposed by some authors that neither of these were upon the footing of modern jurymen, chosen out of the free men of a district for each cause, but that both were permanent assessors of the magistrate and members of the court. See Brady’s complete Hist. of Eng.—Hickes’s Diss. Epistol.

But that either these twelve men, or the Racimburgi or Scabini, were permanent members of the court, appears improbable, for the following reasons: 1. Because these twelve men were chosen among the thanes; and it is not likely that the same persons, of that rank, would subject themselves to the drudgery of being constant assessors to the magistrate. 2. The number of Racimburgi or Scabini appears to have been varied, according to the importance of the causes which they decided. This supposes a new election in each cause. 3. If there was a regular bench of assessors to the chief magistrate of a county, it is wonderful that no traces of that institution should be found at present, more especially 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. says expressly, in his Mirroir de Justices, that king Alfred put to death a number of his judges for deciding causes without a jury.]]

[* ]See instances of this quoted by the acute author of The Historical Law Tracts. [[Millar’s general reference is to Lord Kames, who noted that Egypt and Greece “deemed it unjust, that the innocent should suffer with the guilty, and that a child, common to mother and father, should lose its life for the crimes of the mother. We find no such similar instances while punishment is in the hands of individuals; for a good reason, that such regulations are incompatible with the partiality of man.” Historical Law-Tracts (Edinburgh, 1758), 1:75–76.]]

[† ]Deuteron. chap. xxi. [[Deuteronomy 21:6–8.]]

[* ]It does not seem to be supposed by historians, that the Saxon regulations concerning tythings were extended to a country so inaccessible as the Highlands of Scotland.

[† ]Spencer’s View of the State of Ireland. [[For this quoted passage, see Edmund Spenser, A View of the State of Ireland, ed. Andrew Hadfield and Willy Maley (Oxford: Blackwell, 1997), 42.]]

[4. ]Gentoo is an archaic term for Hindu. The publication of this law code was sponsored by Warren Hastings, then governor general of India. It states that “If the footsteps of a Thief may be traced for some little Distance, or if the Article stolen hath dropped for a little Distance, and afterwards no farther Sign can be found, then, whatever Town is near the Place where these Signs have for a little Way extended, the Thief shall be judged to lurk in that Town.” A Code of Gentoo Laws (London, 1776), chap. 16, sect. 4.6, 257.

[† ]Code of Gentoo laws, ch. 17. sect. 4. 6.

[5. ]Guinea is a historical term for the West African coastline.

[§ ]Hist. Gen. des Voyages. Mod. Univ. Hist.

[* ]The following passage is quoted from Pfefel’s Abrégé Chron. de l’Histoire d’Allemagne. “Je ne puis passer sous silence une autre nouveauté, qui prouve, on ne peut pas mieux, et le malheur de ces tems, et la barbarie des moeurs du siécle: c’est le droit d’Otage. [ Jus obstagiorum] Rien de plus bizarre que ce droit. Un Souabe, un bourgeois d’Ulm, lésé par un Liegeois, ne se donnoit pas la peine de poursuivre sa partie, devant la justice ordinaire; il se contentoit de mettre la main sur le premier Liegeois qu’il pouvoit rencontrer, et le constituoit prisonnier à Ulm, c’est là qu’il faisoit juger sa cause, et l’Otage n’étoit point relâché que la sentence ne fût exécutée. L’histoire et les archives nous fournissent mille exemples de ces procès singuliers: et Lehmann rapporte que les citoyens de Spire ont fait déclarer par des lettres patentes, qu’ils n’étoient point sujets de leur Evêque, et que par conséquent l’on ne pouvoit les arrêter légitimement pour les causes que regardoient les sujets de ce prince.” [[“I cannot pass over in silence another extraordinary practice which furnishes the best possible proof both of the lamentable conditions of those times and of the barbarity of the customs of the century: that is the right to take hostages (jus obstagiorum). There is nothing stranger than this right. A Swabian, a burgher of Ulm, having been wronged by a citizen of Liège, did not bother to prosecute his opponent in court in the ordinary way; he merely laid hands on the first inhabitant of Liège that he could find and imprisoned him at Ulm. There he had his case tried, and the hostage was not released until the sentence had been carried out. History and the archives provide us with a thousand examples of these remarkable trials, and Lehmann reports that the citizens of Speyer caused a declaration to be made by letters patent that they were not subjects of their bishop and consequently could not be legitimately arrested for lawsuits involving subjects of that prince.” Christian Friedrich Pfeffel, Nouvel abrégé chronologique de l’histoire et du droit public d’Allemagne (Paris, 1777), 1:453–54. This text is a paraphrase rather than an exact quotation.]]

[† ]Anderson’s History of Commerce. [[Edward II, king of England and Scotland (r. 1307–27); Alfonso XI, king of Castile and León (r. 1312–50). Millar cites Adam Anderson’s An Historical and Chronological Deduction of the Origin of Commerce, 2 vols. (London, 1764).]]

[* ]See the laws collected by Roger de Hoveden, and said 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, wise men, &c.

[* ]Principes, optimates, magnates, proceres [[aldermen, chiefs, great lords, nobles, &c. See Spelman on Parliaments—Dr. Brady, Answer to Petyt—and the series of great councils before the conquest. Tyrrell’s Bibliotheca Politica, Dial. 6. Millar cites, among others, the discussions of the Wittenagemote’s composition in Robert Brady’s Introduction to the Old English History (London, 1684), 7–10, and James Tyrrell’s Bibliotheca Politica: Or, an Enquiry into the Ancient Constitution of the English Government (London, 1694). See 2nd edition (London, 1727), dialogue 6, 271–81.]]

[* ]See Observations sur l’Hist. de France par M. l’Abbé Mably—and Memoires Historiques du Gouvernement de France, par M. le Compte de Boulainvilliers.

[† ]Hinc haud aegre colligere est, unde nostri appellarent parliamenta procerum totius regni conventus.—Du Cange v. Parliamentum. [[“From this it is not difficult to gather from what cause our countrymen called the assemblies of the nobles from the whole kingdom ‘parliaments.’” Charles du Fresne, Sieur du Cange, Glossarium ad Scriptores Mediae et Infimae Latinitatis, 6 vols. (Paris, 1766), 6:175. The Salic laws are said to have been made with the consent of the proceres or the optimates.—And even charters from the crown usually bear, that they were granted cum consensu fidelium nostrum,—or in nostra et procerum presentia. Mably, ibid. With the agreement of our liegemen; in our presence and that of our nobles. Abbé de Mably, Observations sur l’histoire de France in Oeuvres complètes de l’Abbé de Mably (Toulouse, 1793), 1:270.]]

[1. ]The reference is to those who aligned themselves with the royalist cause in struggles between the Crown and Parliament in the seventeenth century. Millar associates Hume with this royalist or Tory view. In fact, Hume makes very much the same point regarding later partisanship and its distorting effect on the historiography of the Saxons. See HE, 1:163–64, 174.

[* ]Hume’s Hist. of England, Appendix to Anglo-Saxon period.

[2. ]The reference is to those who took the parliamentary side in these struggles: hence, broadly to the Whig party and their controversialists and historians—here identified as Robert Atkyns (author of The Power, Jurisdiction, and Priviledge of Parliament, 1689); William Petyt (author of The Antient Rights of the Commons of England Asserted, 1680); James Tyrrell (author of the Bibliotheca Politica, 1694, and of The General History of England, Both Ecclesiastical and Civil, 1696–1704); and George, Lord Lyttelton (author of the History of the Life of King Henry the Second, vols. 1–4, 1769).

[† ]Sir Robert Atkyns’ Power, Jurisdiction, and Privileges of Parliament,—Petyt, Rights of the Commons asserted.—Jani Anglorum facies nova.—Argumentum Antinormanicum.—Tyrrell’s Bibliotheca Politica.—Lyttelton’s Hist.

[* ]Somner’s Sax. Dict. v. Wita.

[† ]By a law of king Ina, it is enacted, that if any person fought in the house of an alderman, or of any illustrious wite, he should pay a fine of sixty shillings. See Wilkin’s Anglo-Saxonica, Leges Inae, c. 6.

[3. ]In the Bibliotheca Politica, 1694 (dialogue 6, 281–307), James Tyrrell cites Matthew Paris and William of Malmesbury, among others, as providing arguments for the view that boroughs and shires had representatives; on the other hand, John Selden, Sir Edward Coke, William Lambarde, Sir Henry Spelman, and Robert Brady are credited with the opposite view.

[* ]Tyrrell’s Bibliotheca Politica, Dial. 6.—It seems to be the opinion of this author, however, that the existence of the knights of shires, in the Saxon Wittenagemote, is more doubtful than that of the representatives of boroughs.

[* ]Thus in the record of a Wittenagemote held by Ethelbert in 605, it is said, “Convocato igitur communi concilio tamcleri quam populi.” [[“Having therefore summoned a joint council of the clergy as well as of the people.” Council of King Ethelbert in 605 in Sir Henry Spelman, Concilia, Decreta, Leges, Constitutiones, in re ecclesiarum orbis Britannici (London, 1639), 126–27.

A general council is said to have been held by Ethelwolf, in 855, Praesentibus et subscribentibus Archiepiscopis et Episcopis Angliae universis, nec non Beorredo rege Merciae, Edmundo East-Anglorum rege, Abbatum et Abbatissarum, Ducum, Comitum, Procerumque totius terrae, aliorumque fidelium infinita multitudine, qui omnes regium chirographum laudaverunt, dignitates vero sua nomina subscripserunt. “With all the archbishops and bishops of England present as signatories, as well as Burgred, king of Mercia, Edmund, king of the East-Angles, and a countless multitude of abbots and abbesses, commanders, aldermen, and thanes from the whole land and other liegemen, who all praised the royal charter, the dignitaries signed their names in a true fashion.” Spelman, Concilia, 350.

Canute, in the fifth year of his reign, is said to have held a great council, of his archbishops, dukes, earls, abbots, cum quamplurimus gregariis militibus, ac cum populi multitudine copiosa. “with a great many common soldiers and a large multitude of the people.” Spelman, Concilia, 534.

In some other instances, expressions of a similar nature occur; such as vulgi consensus, and populo audiente et vidente. vulgi consensus: the accord of the common people; populo audiente et vidente: before the eyes and ears of the people. [See the authors above quoted—as also Gurdon’s History of the Parliament.] In many of these expressions a distinction is clearly pointed out between the members of the meeting and the inferior people that were merely spectators. It ought also to be remembered, that the greatest number of those general phrases, quoted for proving that the commons were represented in the Wittenagemote, are used only by writers after the Norman conquest; who, in translating Saxon laws, or in speaking of Saxon usages, may be supposed to accommodate their language to the ideas prevalent in their own times.]]

[4. ]Procurator: a caretaker or official.

[* ]Merciorum Optimates, Episcopos, Principes, Comites,Procuratores,meosque propinquos, nec non Cuthredum regem Cantuariorum, atque Suthredum regem Orient. Saxon. cum omnibus qui testes nostris synodalibus conciliabulis aderant. [Annals of Winchelcomb.]

[† ]Gurdon’s History of the Parliament.—In a charter of Athelstan, the procurators are also mentioned. But this charter was not granted in the Wittenagemote. [Ibid.]

[† ]Dugdale’s preface to his Baronage. Hume’s Hist. of England, appendix to Anglo-Saxon period.

[5. ]Ely: an abbey and bishopric in Cambridgeshire founded in the seventh century.

[6. ]Edward the Confessor (r. 1042–66).

[7. ]For Hume’s consideration of similar issues of Saxon government and manners, see his appendix 1 in HE, 160–85. For Millar’s following reference to Nathaniel Bacon, see An Historical and Political Discourse of the Laws and Government of England. Collected from Some Manuscript Notes of John Selden, 4th ed. (London, 1739), 36.

[* ]Selden’s Notes on Gov. of England, collected by Nath. Bacon, part i. chap. 20. and the authorities referred to.

[* ]This change is said to have been made about the beginning of the second race of the French kings.

[* ]See the preface to most of the collections of Saxon laws published by Wilkins.

[† ]Of this privilege of the Wittenagemote there occurs a remarkable instance in the reign of Egbert, in 836. Spelm. concil. t. i. p. 340.

[* ]Wilkins leges Athelstani.

[8. ]Edwin, king of Northumbria (r. 616–33): converted to Christianity in 627.

[† ]Selden’s Notes collected by N. Bacon. part 1. ch. 20. and the authorities to which this author refers.

[9. ]Segebert, king of Wessex (r. 756–57).

[† ]Saxon chronicle.

[* ]Spelman, v. major domo. This author supposes three different orders of major domo in the houshold of the Gothic monarchs. The first, who had the care of the king’s table: the second, who presided over the whole houshold: and the third, who was employed under the king as chief executive officer of the kingdom. It seems evident, however, that these officers were originally derived from one, who, as he became great, appointed deputies to discharge the inferior branches of duty incumbent upon him.

In England the steward, in the king’s houshold, is mentioned under the name of Oeconomus [[steward, i.e., the person in charge of running the household (from the Greek word for house, oikia) as early as the year 749. [See discourse on this office by Mr. Thynn in Hearne’s Coll. of Antiquities.] But he does not seem to have acquired great power, as a minister of the crown, till the Norman conquest. [See same collection.]]]

[* ]It is probable that the butler [pincerna] was, for a long time, not separated from the steward; and in the early history of England neither he nor the chamberlain seem to have been much distinguished.

[1. ]Attendant in charge of the stable.

[† ]This officer was known to the Anglo-Saxons under the name of Stallarius. [[Master of the horse (“staller”). Spelm. Gloss. v. Constabularius. The mareschal seems to have been considered as the deputy of the constable.]]

[* ]This officer is clearly distinguishable in the Anglo-Saxon government. Spelm. v. Cancellarius.

[† ]Pasquier in speaking of these great officers of the houshold observes, that they were gradually established in the families of the great lords and gentlemen. “Parquoy estoient dessus tous, cinq estats plus estimez, le chancelier, grand chambellan, grand maistre, grand eschançon, que nos anciens appelloient grand bouteéller, et connestable. Nous estant par cecy monstrée une grand oeconomie: car aussi n’y a il maison qui vueille tant soit peu parôitre, en laquelle ces cinq estats ne se trouvent estre nécessaires, encore que ce ne soit avec tiltres de telle splendeur.” Recherches de la France, liv. ii. chap. 12. [[“For this reason there were five offices respected above all others: the chancellor, the grand chamberlain, the grand master, the grand cup-bearer, whom our ancestors called the grand butler, and the constable. Thus was the model of a grand household provided for us, for as a consequence there is no house with aspirations to put on even the smallest display in which these five offices are not felt to be necessary, albeit without titles of such magnificence.” For a modern edition, see Etienne Pasquier, Les recherches de la France, ed. Marie-Madeleine Fragonard and François Roudaut (Paris, 1996), 1:436–37.]]

[* ]The first was the secretary for Germany, properly so called; the second for Italy, and the third for Arles. It is remarkable that these chancellors, having become secular princes, their offices have been attached to their ecclesiastical dignity.

[2. ]The assembly of the Holy Roman Empire.

[3. ]From Spanish junta, a cabal, council, or committee. The term was applied by contemporaries to a small group of aristocratic Whig politicians who wielded great influence in a series of ministries at the turn of the eighteenth century.

[1. ]Alfred the Great, king of Wessex (r. 871–99): the youngest son of Athelwolf, king of Kent and Wessex (r. 839–55), succeeded his elder brothers Athelbald, king of Wessex (r. 855–60), Athelbert, king of Kent and Wessex (r. 860–65/6), and Ethelred I (r. 865/6–71). Alfred’s reign is traditionally represented as an Anglo-Saxon golden age due to his military, administrative, and cultural accomplishments.

[2. ]Alfred’s law code was presented at some time between 878 and 885, and was an extensive revision of the law code issued in the reign of Ina.

[3. ]Presumably Aesop. See p. 789, note 3. Hume, following the Life of King Alfred by Asser (d. 909), writes that Alfred both disseminated existing parables and invented others, while also translating Aesop. See HE, 1:80.

[4. ]Lycurgus is traditionally thought to have established Sparta’s legal and governmental institutions in the ninth century Millar regards Lycurgus as an example of the mythic figure of the Legislator. For an earlier attack on this myth, including mention of both Lycurgus and Alfred, see DR, 6.

[5. ]Edward the Elder, king of Wessex (r. 899–924); Athelstan I, king of Wessex (r. 924–39); and Edgar the Peaceable, king of Wessex (r. 959–75).

[6. ]In seventeenth- and eighteenth-century Britain, as well as in the American colonies in their struggle for independence, there was considerable fear that “standing armies” (i.e., professional armies maintained in times of peace) were an instrument of tyrannical government.

[* ]“Habebant etiam ex consuetudine patriae unoquoque die comam pectere, sabbatis balneare, saepe etiam vestituram mutare, et formam corporis multis talibus frivolis adjuvare; unde et matronarum castitati insideabantur, et filias etiam nobilium concubinarum nomine detinebant.” Chron. Joan. Wallingford. [[“They had also from the custom of their country the habit of combing their hair every day, of bathing on Sundays, even of changing their clothing frequently, and of enhancing their physical attractiveness with many frivolous devices of this sort. By this means they laid snares for the chastity of married women and kept the daughters even of noblemen as concubines.” The Chronicle Attributed to John of Wallingford, ed. Richard Vaughan (London: Royal Historical Society, 1958), 60.]]

[7. ]Ethelred II, the Unready: king of England (r. 978–1013, 1014–16). He paid this “pecuniary composition” or Danegeld to Svein I Haraldson, “Forkbeard,” king of the Danes (r. 986–1014) and Olaf I Tryggvason of Norway (r. 995–1000). The St. Brice’s Day massacre ordered by Ethelred occurred on 13 November 1002, and prompted the return of Svein I and Olaf I to Britain. Haraldson would reign as king of England by conquest for several months until his death in 1014, at which time Ethelred returned to power.

[8. ]Cnut the Great: king of Denmark, Norway, and England (r. 1016–35), and son of Svein I Haraldson. Cnut conquered England in 1015, and gained entire control in 1016 after the death of Edmund II “Ironside” (r. 1016), with whom he had agreed to share the kingdom. He was succeeded by his sons Harold Harefoot (r. 1037–40) and Harthacanute (r. 1040–42).

[9. ]Cnut’s law codes, I and II Cnut, were issued in 1018.

[10. ]Edward the Confessor (r. 1042–66).

[* ]They have been called sodalitia, fraternitates. [[Clubs; brotherhoods. Dr. Hickes, Diss. Epist. p. 21.]]

[11. ]Millar contends the feudal tenures grew because smaller allodial (or independent) proprietors were forced to ask for aid from their more powerful neighbours, who granted protection on the basis of feudal service. As a result, feudal tenures increased at the expense of allodial ones, and, as more land was brought into fewer hands, the nobility consolidated its power.

[12. ]Numidia: an ancient country of northwest Africa (near present-day Algeria) that flourished in the first centuries and

[13. ]Livy, or Titus Livius (59 –17 ): Roman historian, author of the History of Rome which he wrote in installments over the course of his life.

[14. ]Ladrone Island: an older name for the Northern Mariana Islands in the west Pacific Ocean, east of the Philippines; Siam is an older name for Thailand.

[15. ]Eadred (r. 946–55) succeeded his brother Edmund I, the Magnificent (r. 939–46); Ethelred II succeeded his brother Edward the Martyr (r. 975–78); Edwy (r. 955–59) succeeded his uncle Eadred and was himself succeeded by his younger brother Edgar, the Peaceable.

[* ]See Judges, chap. xi. [[ Judges 11:1–2, 4–11.]]

[16. ]Edward the Elder, king of Wessex, had eighteen children by three wives, but the legitimacy of his first marriage, to Egwina, the mother of Athelstan I, is unclear. Thus, Athelstan’s claim to the throne was legally less compelling than those of his clearly legitimate brothers.

[17. ]The reign of Edward the Confessor, son of Ethelred the Unready, marks the restoration of the Saxon line upon the death of Harthacanute. Edward’s accession was strengthened by the support of Godwin, earl of Wessex, chief among the nobles to whom Millar refers. Harold II, Godwin’s son and chief adviser to Edward, rose to power after Edward’s death by the influence of his father. William of Normandy contested his succession, and successfully invaded in 1066.

[* ]Hume’s History of England. [[For this quoted passage from Hume, see HE, 1:89.]]

[1. ]On tythings, hundreds, and shires, see p. 97, note 2, and p. 99, the daggered note.

[* ]See the laws ascribed to Edward the Confessor, published by Lambard and Wilkins. L. 21. is translated as follows: “Archiepiscopi, episcopi, comites, barones, et omnes qui habuerint sacham et socam, thol, theam et infangthefe, etiam milites suos, et proprios servientes, scilicet dapiferos, pincernas, camerarios, pistores et cocos, sub suo friborgo habeant. Et item isti suos armigeros, vel alios sibi servientes sub suo friborgo. Quod si cui forisfacerent et clamor vicinorum de eis assurgeret, ipsi tinerent eos rectitudini in curia sua: illi dico qui haberent sacham et socam, thol et theam, et infangthefe.” [[“Archbishops, bishops, earls, thanes, and all those possessing sac and soc, toll, team, and infangthief shall have both their knights and their own servants, namely sewers, butlers, chamberlains, bakers, and cooks under their frank-pledge. And likewise they shall have their squires or others serving them under their frank-pledge. Accordingly if these persons commit an offense against anyone and a hue and cry is raised concerning them among their neighbours, the lords themselves—those, I mean, possessing sac and soc, toll, team, and infangthief—shall produce them for trial in their own court.” See William Lambarde, Archaionomia, 144.]]

[2. ]The “tythingman”: the chief man of a tithing; later, it denotes a parish peace officer, or petty constable.

[3. ]The chief officer of a hundred.

[* ]In the reign of Alfred the earldoms were all held during the pleasure of the king. Asser. de gest. Alfredi. In the reign of Edward the Confessor they had a third part of all fines, forfeitures, and other profits of the shire, for their labour. Brady’s Compleat Hist. of England.

[4. ]The representative of royal authority in a shire, responsible for the execution of the law.

[5. ]Police in this sense means civil order. See p. 12, note 6.

[1. ]Those whose rights to occupy the tenancy could be terminated by the feudal lord at any time.

[2. ]In law, the legal return of an estate to the donor or grantor, or his heirs.

[3. ]In law, refers to the management and disposal of the estate of a deceased person.

[4. ]The guardianship and custody of the land and person of a minor.

[5. ]Gifts or grants of money, often used in reference to forced loans or contributions levied by the king on his subjects.

[6. ]An incident of feudal law whereby a fief reverted to the lord when the tenant died without leaving a successor to inherit under the original grant.

[7. ]Millar is concerned to argue that important features of the feudal system were generally in place before the Norman Conquest in 1066.

[8. ]Socage is a general term referring to the tenure of land by certain determinate services other than knight service. Hence, as Millar says, the socage vassal belongs to a rank inferior to those who render military service as knights.

[* ]This tenure has been frequently confounded with the ordinary soccage; but sometimes is distinguished by the name of blanch.

[† ]Judicia civitatis Lundoniae. Wilkins, Leg. Sax. p. 70.

[9. ]An artificer is a craftsman, or artisan; a “mechanic.”

[10. ]This is one of a number of places in which Millar, following Smith, introduces the topic of the division of labor.

[* ]With regard to this point, see Doomsday-book—and Dr. Brady on Boroughs. [[Millar’s general references are to the Domesday Book, the census that William commissioned in 1085 and completed 1086–87, and to Robert Brady. See Domesday Book: A Complete Translation, ed. Ann Williams and G. H. Martin (London: Penguin, 1992); and Brady, Historical Treatise of Cities and Burghs, 2nd ed. (London, 1704), which includes borough information during this period, 4–17.]]

[† ]Et si mercator tamen sit, qui ter trans altum mare “per facultates proprias abeat, ille postea jure thani sit dignus.” [[“And if there nevertheless is a merchant who crosses the high sea three times using his own resources, he shall afterward be worthy of the privilege of a thane.”—[ Judicia civitatis Lundoniae. Wilkins, Leg. Sax. p. 71.]]]

[† ]Wilkins, Leg. Sax. p. 80, 81.

[§ ]Ibid. p. 59.

[‖ ]Ibid. p. 78.

[* ]After the Norman conquest, we find that the superior lord was prohibited by statute to marry his female ward to a villein or a burgess. It is probable that the rank of the two last-mentioned orders of men had risen considerably, before this prohibition was thought necessary.

[11. ]Millar once again returns to both the subject and the essential method of his first book, The Origin of the Distinction of Ranks.

[12. ]Indostan is an archaic name for the Indian subcontinent; caste refers to the traditional division of Indian society into several hereditary groupings, divided along social, religious, and professional lines.

[13. ]The ancient Laws of Manu are traditionally believed to have been inspired by Brahma, the Hindu creator.

[1. ]“Peers of the court.”

[2. ]For Smith’s teaching on the same subject, see LJ, 283–87, 425–26.

[* ]Spirit of Laws.

[3. ]Here as elsewhere Millar tends to emphasize the continuity of English institutions, pre- and post-1066.

[4. ]A compurgator was a witness to the character of the accused (or, in religious courts, to his orthodoxy).

[5. ]An offer to make an oath of innocence or nonindebtedness, to be supported by the oaths of compurgators.

[6. ]Montesquieu, Charles Louis de Secondat, baron de (1689–1755): French philosopher and jurist whose most influential works include the Lettres persanes (1721) and De l’esprit des lois (1748). Montesquieu’s comparative study of the “spirit of the laws” was a foundational text for the writers of the Scottish Enlightenment.

[* ]Bacon’s discourse on the government of England, collected from the MS. notes of Mr. Selden, chap. 33. Also The Mirror. [[Both are courts with lesser jurisdiction. The court leet was held periodically within a hundred or lordship, before the lord or his steward. It had jurisdiction over petty offenses and civil affairs. The court baron was an assembly of the freehold tenants of a manor under the presidency of the lord or his steward. Such a court had jurisdiction in civil actions arising within the manor. Millar’s note again cites Nathaniel Bacon’s discussion: see his Historical and Political Discourse, 4th ed. (London, 1739), 49.

“Liti ac Litones idem ac Lassi et Liberti censentur.” Muratori Ant. Med. Aevi. tom. i. dissert. 15. “Liti or Litones are considered to be the same as Lassi and freedmen.” Lodovico Antonio Muratori, Antiquitates italicae medii aevi (Milan, 1738; repr. Bologna, 1965), vol. 1, diss. 15, 866. Liti (also called Litones) are serfs among the Franks, tied legally to the land but not subject to being bought and sold like slaves. Lassi are also serfs among the Saxons, while liberti are freedmen (manumitted or freed slaves), whom Muratori argues are subject to limitations on their freedom.]]

[7. ]Presumably a reference to Montesquieu.

[1. ]St. Dunstan (ca. 909–88): counselor to Edmund, Eadred, and Edgar the Peaceable, who appointed him archbishop of Canterbury (959–88).

[2. ]Emperor Constantine’s Edict of Milan (313) gave civil rights and toleration to Christians throughout the empire.

[3. ]The clergy, and especially the bishops, acquired civil and political powers, in addition to their spiritual authority.

[4. ]Alaric II: Christian king of the Visigoths (r. 484–507), who issued in 506 a code of laws known as the Breviarum Alaricanum.

[* ]V. Nov. 83.—123.—79. Also Gianone, Hist. of Naples.

[† ]There were certain great crimes, such as high treason, and sacrilege, to which this exemption did not extend.

[1. ]Chief men, nobles, magnates.

[* ]Habuit enim (speaking of the abbot of Ely) fratrem Gudmundum vocabulo, cui filiam praepotentis viri in matrimonium conjungi paraverat. Sed quoniam ille quadraginta hidarum terrae dominium minime obtineret, licet nobilis esset, inter proceres tunc numerari non potuit; eum puella repudiavit. Historia Eliensis, lib. ii. cap. 40. [[“For he had a brother by the name of Gudmundus to whom he had made preparations to marry the daughter of a very powerful man. But since Gudmundus did not possess an estate of forty hides, even though he was a noble he could not be counted among the greater thanes, and so the girl rejected him.” For a modern edition of the History of Ely and the above passage, see Liber Eliensis, ed. E. O. Blake (London: Royal Historical Society, 1962), 167.]]

[* ]Madox firma burgi.

[2. ]The season of Whit Sunday (fifty days after Easter) and the days immediately after, a celebration of the descent of the Holy Ghost.

[* ]The former were called courts de more, being founded upon immemorial custom.

[† ]Gurdon’s History of the high court of Parliament.

[3. ]Court of the royal household. The aula regis or curia regis was the grand justiciary established by William at the conquest.

[1. ]Millar’s subdivision of this period comprises three eras: (1) 1066–1272; (2) 1272–1485; (3) 1485–1603.

[1. ]Edward the Exile: son of Edmund II (Ironside), who was sent from the country at the accession of Canute. Edward the Exile’s son, Edgar the Atheling, was in fact proclaimed king of the English in the brief period in 1066 between the death of Harold II and the accession of William the Conqueror.

[2. ]Richard II, Duke of Normandy (r. 996–1026).

[3. ]The Danish occupation of the English crown, 1016–42.

[4. ]William the Conqueror. See p. 10, note 4.

[5. ]The Battle of Hastings took place in 1066.

[6. ]James Tyrrell reproduces the Saxon royal oath (in Latin) in the general introduction to his General History of England, Both Ecclesiastical and Civil (London, 1704), 1:lviii. Millar’s translated quote is likely from this source.

[* ]“Conquestus id quod à parentibus non acceptum, sed labore pretio vel parsimoniâ comparatum possidemus—Hinc Guliel I. conquestor dicitur que Angliam conquisivit, i.e. acquisivit, purchased; non quod subegit.” [[“An acquisition: that which we possess not as an inheritance from our parents, but which we have obtained by working, purchasing or saving.—Hence the name of Conquestor (Acquirer) is given to William I, who acquired England, i.e., purchased (“acquisivit”) it, not because he subjugated it.” The quotation is from Sir Henry Spelman’s Glossarium Archaiologicum (London, 1687), 145. The reference is to Sir John Skene, De Verborum Significatione (Edinburgh, 1681): under the entry “Conquestus,” Skene makes a distinction between property that is a “conquest” under Scottish Law and a “heretage.” Spelm. Glossar. v. Conquestus. See also Skene, de verbor. sign.]]

[7. ]The reference is to the idea of the “Norman yoke”—the notion that the Norman conquest had destroyed an earlier constitution more favorable to liberty. In the pages that follow, Millar is concerned to establish the continuities bridging the two periods, in part by arguing that the major social changes “had been gradually ripened and prepared” under the later Anglo-Saxon kings.

[* ]The dutchy of Normandy was at that period governed like most of the other feudal countries of Europe; and the duke, at the same time that he was a feudatory of the king of France, enjoyed a very moderate authority over his Norman vassals. In particular, he could neither make laws, nor impose taxes, without the consent of the barons, or principal land-holders of the dutchy. This appears from the Latin customs of Normandy, printed at the end of the old French edition of the Coustumier de Normandy; in the preface to which it is said; “Quoniam leges et instituta quae Normanorum principes, non sine magna provisionis industria praelatorum, comitum, et baronum, nec non et caeterorum virorum prudentum consilio, et assensu, ad salutem humani foederis statuerunt.” [[“Since the laws and statutes which the dukes of Normandy, along with the great and diligent foresight of the prelates, the counts, and the barons, as well as the advice and consent of other prudent men, decreed for the preservation of human society. …” See James Tyrrell’s Bibliotheca Politica (London, 1694), 727. [Tyrrel’s Bibliotheca Politica, dial. 10. Also many instances of Norman great councils, collected by Brady.]]]

[* ]Several historians, who write near that period, consider William’s advancement to the English throne as the effect of a formal election. William of Poictou, this king’s chaplain, gives the following account of it: “Die ordinationi decreto locutus ad Anglos concedenti sermone Eboraci Archiepiscopus, sapiens, bonus, eloquens, an consentirent eum sibi dominum coronari inquisivit; protestati sunt hilarum consensum universi minime haesitantes, ac si coelitus unâ mente datâ, unâque voce, Anglorum, quam facillime Normanni consonuerunt sermocinato apud eos, ac sententiam praecunctatorium Constantini Praesule, sic, electum consecravit Archiepiscopus,” &c. [[“On the day fixed for the coronation, the archbishop of York … wise, good and eloquent, addressed the English, and asked them in the appropriate words whether they would consent to him being crowned as their lord. They all shouted their joyful assent, with no hesitation, as if heaven had granted them one mind and one voice. The Normans added their voice most readily to the wish of the English, after the bishop of Coutances had addressed them and asked their wishes. … When William had been elected in this way the archbishop … consecrated him.” The Gesta Guillelmi of William of Poiters, ed. and trans. R. H. C. Davis and Marjorie Chibnall (Oxford: Clarendon Press, 1998), 150–51.

Odericus Vitalis, who lived in the reign of William Rufus, speaks of the same event as follows: “Dum Aldredus Praesul alloqueretur Anglos, et Godofredus Constantiniensis Normannos, an concederent Gulielmum regnare super se, et universi consensum hilarem protestarentur unâ voce non unius linguae locutione.” “… when Archbishop Ealdred asked the English, and Geoffrey Bishop of Coutances asked the Normans, if they would accept William as their king, all of them gladly shouted out with one voice if not in one language that they would.” The Ecclesiastical History of Orderic Vitalis, ed. and trans. Marjorie Chibnall (Oxford: Clarendon Press, 1969), 2:184.

Gul. Gemeticensis, in his history of the dukes of Normandy, agrees with the two authors above quoted, “Ab omnibus,” says he, “tum Normannorum, quam Anglorum roceribus sic: tam Normannorum, quam Anglorum proceribus rex est electus,” &c. Tyrrel’s Bibliotheca Polit. dial. 10. “was elected king by all magnates, both of the Normans and the English.” The Gesta Normannorum Ducum of William of Jumièges, Orderic Vitalis, and Robert of Torigni, ed. and trans. Elisabeth M. C. van Houts (Oxford: Clarendon Press, 1995), 2:170.]]

[8. ]Millar’s view is that the extension of feudalism, more than the fact of military conquest, created the conditions that shifted power toward the crown. Similar changes occurred across much of western Europe, without the impulse of conquest.

[* ]Concerning the time when the feudal system was introduced into England, authors of great note have entertained very different opinions. [[See the discussions in John Selden, Titles of Honour (London, 1614), 300–302; Matthew Hale, The History of the Common Law of England (London, 1713), 107, 223–25; William Dugdale, The Baronage of England (London, 1675), vol. 1 preface, unpaginated; and Henri de Bracton, On the Laws and Customs of England, vol. 2, ed. G. E. Woodbine and trans. S. E. Thorne (Cambridge, Mass.: Harvard University Press, 1968), 37–38. On Bracton, see p. 354, note 15. Lord Coke, the judges of Ireland who gave their decision upon the case of defective titles, Mr. Selden, the author of the Mirroir des Justices, and many others, suppose that it was established under the Anglo-Saxon government. Lord Hale, Mr. Somner, Camden, Dugdale, Matthew Paris, Bracton, maintain that it was unknown before the Norman conquest.—Sir Henry Spelman, in his Glossary, seems to hold this last opinion; but in his posthumous treatise he explains his meaning to be, only that fiefs did not become hereditary, so as to yield feudal incidents, before the reign of William the conqueror. The opinion which I have delivered above seems to account for these opposite conjectures. It seems impossible to deny that there were fiefs among the Anglo-Saxons: on the other hand, it appears equally clear that there were many allodial estates principally in the hands of the great nobility. Nothing therefore remained for William, towards completing the feudal system, but the reduction of these last into a state of vassalage.

We find accordingly, that, in the twentieth year of his reign, this monarch, having finished a survey of all the lands in the kingdom (except those of Northumberland, Cumberland, and Westmoreland) summoned all the great men and land holders, to do homage and swear fealty to him. The expression used in the Saxon Chronicle, in mentioning this fact, is, Proceres, et omnes praedia tenentes, se illi subdedere, ejusque facti sunt vassalli. “The nobles and all those who were in possession of estates submitted themselves to him and became his vassals.” (Anglo-Saxon Chronicle, year 1086). A recent translation of the Anglo-Saxon text may be found in The Anglo-Saxon Chronicle, trans. Michael Swanton (New York: Routledge, 1998), 217. Having become vassals 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 elapsed, since the accession of William, were occupied in bringing about this great revolution; for if the great men had been crown vassals during the Saxon government, it was the interest of this prince not to delay their renewal of the feudal engagement by their swearing fealty to him as soon as he came to the throne.

From Doomsday-book, which is now happily laid open to the inspection of all the world Millar may be referring to Domesday Book, 2 vols. (London, 1783), or Robert Kelham, ed., The Domesday Book Illustrated: Containing an Account of That Antient Record (London, 1788)., this fact is made still more certain, as innumerable instances occur of landholders, who are said to have held their lands allodially, in the reign of Edward, the preceding king.]]

[9. ]See Hume, HE, 1:194.

[* ]Hume’s Hist. of England.

[10. ]Millar is likely referring to the insurrection of William’s brother Odo and his son Robert in 1088.

[11. ]For similar remarks by Hume, see HE, 1:25.

[12. ]Robert Brady (d. 1700), English historian and royal keeper of the records. Brady’s focus was the history of English feudalism, a subject of much political significance in the years surrounding the Glorious Revolution of 1688. Brady’s most important works were the Introduction to the Old English History (1684), the Complete History of England (1685), and the Historical Treatise of Cities and Burghs (1690).

[* ]This point has been the subject of much disquisition and controversy. See Petit’s Rights of the Commons asserted—Atwood’s Janus Anglorum ab Antiquo—Cook’s Argumentum Antinormanicum—Tyrrell’s History—and Bibliotheca Politica, dial. 10. On the other side of the question, Dr. Brady’s History, and his various political treatises. [[Among Millar’s sources concerning the matter of the extermination of the English nobility by William the Conqueror are Robert Brady, Complete History of England (London, 1685), 1:185–216, especially 192–93; James Tyrrell, Bibliotheca Politica (1694), dialogues 6 and 10; 305, 518, 523, 527, 546; William Petyt, The Antient Rights of the Commons of England Asserted (London, 1680), 17–18, 21–22, 29; William Atwood, Jus Anglorum ab Antiquo (London, 1681), 2–3, 33–39.

From an inspection of Doomsday-book, it cannot be denied, that William the first, before the end of his reign, had made prodigious changes in the landed property of England, and that very large estates were conferred upon his Norman barons, who had the principal share of his confidence.—But, on the other hand, it seems equally clear, that a great part of the landed property remained in the hands of the ancient possessors. Whatever burdens were imposed upon the church, it is not alleged that the clergy, or that any religious societies, which had been established under the Anglo-Saxon government, were deprived of their property. These ecclesiastical estates 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 conquest, no fewer than 20,015 are said to have belonged to churchmen. It must be owned, however, that when vacancies occurred in church livings, they were most commonly bestowed upon Normans.

With respect to the laity, there are great numbers mentioned in Doomsday-book, as having held estates in the reign of Edward the Confessor. This is so palpable, that even Dr. Brady himself, in his answer to the Argumentum Antinormanicum, seems to abandon his assertion, that the English were deprived of their possessions, and contents himself with maintaining, that the nature of their property was changed, by their being reduced into the subordinate state of vassalage.

But even here the fact seems to be misrepresented, and in the list of crown vassals recorded in Doomsday, we may discover great proprietors, who held lands in England before the conquest: such as, Radulfus de Mortimer —Hugo de Porth—and even in this number we may reckon the Earl of Moreton, who, though a Norman, had, along with many others, obtained English possessions in the reign of Edward the Confessor. Among those crown vassals, it seems difficult, in many cases, to distinguish the names of the Norman from those of the Anglo-Saxon families; but there are many which appear to have been appropriated to the latter. Such as, Oswald, Eldred, Albert, Grimbald, Edgar, Edmund, Alured.

It is said, indeed, by William of Malmsbury and Henry of Huntingdon, that, about the end of William’s reign, no Englishman was either a bishop, abbot, or earl, in England.

We may add, that, supposing the whole of the English to have been extirpated by William the Conqueror, it would not thence follow that his government became absolute. For what motive could have induced his Norman barons, now become English nobles, and possessed of immense estates, which were secured to them in perpetuity, to acquiesce in any violent extension of the prerogative, to which neither the nobility of Normandy nor of England had been accustomed?]]

[* ]This point has been the subject of much disquisition and controversy. See Petit’s Rights of the Commons asserted—Atwood’s Janus Anglorum ab Antiquo—Cook’s Argumentum Antinormanicum—Tyrrell’s History—and Bibliotheca Politica, dial. 10. On the other side of the question, Dr. Brady’s History, and his various political treatises. [[Among Millar’s sources concerning the matter of the extermination of the English nobility by William the Conqueror are Robert Brady, Complete History of England (London, 1685), 1:185–216, especially 192–93; James Tyrrell, Bibliotheca Politica (1694), dialogues 6 and 10; 305, 518, 523, 527, 546; William Petyt, The Antient Rights of the Commons of England Asserted (London, 1680), 17–18, 21–22, 29; William Atwood, Jus Anglorum ab Antiquo (London, 1681), 2–3, 33–39.

From an inspection of Doomsday-book, it cannot be denied, that William the first, before the end of his reign, had made prodigious changes in the landed property of England, and that very large estates were conferred upon his Norman barons, who had the principal share of his confidence.—But, on the other hand, it seems equally clear, that a great part of the landed property remained in the hands of the ancient possessors. Whatever burdens were imposed upon the church, it is not alleged that the clergy, or that any religious societies, which had been established under the Anglo-Saxon government, were deprived of their property. These ecclesiastical estates 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 conquest, no fewer than 20,015 are said to have belonged to churchmen. It must be owned, however, that when vacancies occurred in church livings, they were most commonly bestowed upon Normans.

With respect to the laity, there are great numbers mentioned in Doomsday-book, as having held estates in the reign of Edward the Confessor. This is so palpable, that even Dr. Brady himself, in his answer to the Argumentum Antinormanicum, seems to abandon his assertion, that the English were deprived of their possessions, and contents himself with maintaining, that the nature of their property was changed, by their being reduced into the subordinate state of vassalage.

But even here the fact seems to be misrepresented, and in the list of crown vassals recorded in Doomsday, we may discover great proprietors, who held lands in England before the conquest: such as, Radulfus de Mortimer —Hugo de Porth—and even in this number we may reckon the Earl of Moreton, who, though a Norman, had, along with many others, obtained English possessions in the reign of Edward the Confessor. Among those crown vassals, it seems difficult, in many cases, to distinguish the names of the Norman from those of the Anglo-Saxon families; but there are many which appear to have been appropriated to the latter. Such as, Oswald, Eldred, Albert, Grimbald, Edgar, Edmund, Alured.

It is said, indeed, by William of Malmsbury and Henry of Huntingdon, that, about the end of William’s reign, no Englishman was either a bishop, abbot, or earl, in England.

We may add, that, supposing the whole of the English to have been extirpated by William the Conqueror, it would not thence follow that his government became absolute. For what motive could have induced his Norman barons, now become English nobles, and possessed of immense estates, which were secured to them in perpetuity, to acquiesce in any violent extension of the prerogative, to which neither the nobility of Normandy nor of England had been accustomed?]]

[13. ]William II, Rufus (r. 1087–1100).

[14. ]Lanfranc (ca. 1005–89), archbishop of Canterbury from 1070.

[* ]The expression used on this occasion by William of Malmsbury, is, “Rex videns Normannos pene in una rabie conspiratos, Anglos probos et fortes viros, qui adhuc residui erunt [[sic: erant , invitatoriis scriptis arcessit; quibus super injuriis suis queremoniam faciens, bonasque leges, et tributorum levamen, liberasque venationes pollicens, fidelitati suae obligavit.” Ordericus Vitulis says, “Lanfrancum archiepiscopum, cum suffraganeis praesulibus, et comites Anglosque naturales, convocavit; et conatus adversariorum, et velle suum expugnandi eos, indicavit.” “He (the king) when he saw the Normans almost to a man united in this mad conspiracy, sent a letter of invitation to all the English, good men and true, who yet remained; and complaining of his wrongs, bound them to his service, with the promise of good laws, lighter imposts, and freer hunting.” William of Malmesbury, Gesta Regum Anglorum: The History of the English Kings, ed. and trans. R. A. B. Mynors, R. M. Thomson, and M. Winterbottom (Oxford: Clarendon Press, 1998), 1:546; “He … therefore summoned Archbishop Lanfranc with the suffragan bishops and earls and the native English, and gave them an account of his enemies’ uprising and his own determination to overthrow them.” The Ecclesiastical History of Orderic Vitalis, ed. and trans. Marjorie Chibnall (Oxford: Clarendon Press, 1973), 4:124.

Dr. Brady, whose system led him to maintain that none of the native English retained considerable 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 residui “the native English” and “the English who yet remained.” The argument that these terms cannot refer to Anglo-Saxon English appears in Robert Brady’s An Introduction to the Old English History (London, 1684), 7–8 of the glossary at the end, which is separately numbered., Normans, or Frenchmen, who had settled in England, are to be understood, in opposition to such as lived in Normandy, or were but recently come from that country.]]

[15. ]For Hume’s account, see HE, 1:232.

[16. ]The Crusades were a series of wars undertaken by European Christians between the eleventh and fourteenth centuries to recover the Holy Land from Islam.

[17. ]Henry I, Beauclerc (r. 1100–1135).

[18. ]The Charter of Henry I was an elaboration on the traditional oath of coronation.

[* ]The charter of Henry I. published by Blackstone.

[† ]Ibid.

[† ]The charter of Henry I. published by Blackstone.

[* ]Daniel’s Hist.

[† ]Ibid. Blackstone, History of the Great Charter.

[19. ]Matilda (1102–67) was first married to Henry V, Holy Roman emperor (r. 1111–25), and in 1128 married Geoffrey Plantagenet of Anjou (1113–51). Stephen (r. 1135–54) was the nephew of Henry I.

[20. ]Henry II (r. 1154–89).

[21. ]Thomas à Becket (1118–70) was created archbishop of Canterbury in 1162. Becket was murdered by four of Henry’s knights in late 1170. Henry did not order Becket’s death but nevertheless was held accountable. Becket was made a saint in 1173.

[22. ]The sense here is that Julius Caesar and Alexander the Great are to be seen as examples of civil tyranny, a form of political injustice which is less “extensively mischievous” than Becket’s “ecclesiastical tyranny.”

[23. ]For a review of Irish affairs, see vol. 4, chap. 1.

[24. ]Scythia: an ancient region of Eurasia, extending from the Danube on the west to the borders of China on the east. The Scythians were nomadic conquerors who spoke an Indo-Iranian language.

[25. ]The Scottish historian and philologist James Macpherson (1736–96) published what he claimed to be translations of the poems of Ossian, an ancient Gaelic poet and warrior. Those who disputed the authenticity of the poetry pointed to (among other things) the refined sentiments attributed to these heroes of a primitive time. Millar acknowledged the dispute, but believed the work to be built on genuine foundations and argued that this sort of refinement was not out of place among pastoral people.

[26. ]Diarmid Macmurchada, king of Leinster, offered to become Henry’s vassal in exchange for assistance in regaining his Irish kingdom. The “needy adventurers” Millar refers to were Robert Fitzstephen (d. ca. 1183) and Maurice Fitzgerald (d. 1176). Richard Strongbow is another name for Richard Fitzgilbert, earl of Pembroke (d. 1176), who in 1170 answered Diarmid’s call for help by taking Waterford in the south of Ireland.

[27. ]Henry’s conquest of eastern Ireland took place in 1171.

[28. ]In 1173, two of Henry’s sons, John and Richard the Lionheart, along with his wife, Eleanor of Aquitaine (1122–1204), rebelled against their father with the assistance of Phillip II Augustus of France (r. 1179–1223) and William the Lion of Scotland (r. 1165–1214). Richard again rebelled against his father with Phillip II in 1188.

[* ]Blackstone, History of the Great Charter.

[29. ]Richard I the Lionheart (r. 1189–99) left England in 1190, one year after his coronation, and did not return until 1194. The same year he promptly left for France, never to return.

[30. ]John, Lackland (r. 1199–1216).

[31. ]In what follows, Millar echoes Hume on the French territories: “their immediate lord was often at too great a distance to protect them; and any disorder in any part of his dispersed dominions gave advantages against him.” HE, 1:299–300.

[32. ]Arthur, duke of Brittany (1187–1203), was the son of Geoffrey II of Brittany and the grandson of Henry II. It is alleged that he was put to death by his uncle, King John, as a superior claimant to the throne.

[33. ]King John had ceded almost all of his French territories to Philip Augustus by 1206.

[34. ]This controversy revolved around King John’s rejection of the new archbishop of Canterbury, Stephen Langton, in 1207. John was excommunicated in 1208 as a result of his rejection. By an agreement with Pope Innocent III (ca. 1198–1216), John agreed to convert England into a fiefdom of the papacy, thereby gaining needed papal support against the nobility and the French.

[35. ]The baronial rebellion began in May 1215.

[* ]

• ——— “Hail Runny-mead!
• Illustrious field! like Marathon renowned!
• Or Salamis, where freedom on the hosts
• Of Persia, from her radiant sword shook fear
• And dire discomfiture! Even now I tread
• Where Albion’s ancient barons won the pledge
• Of independence. ———
• ——— O gallant chiefs! whether ye ride the winds,
• Bound on some high commission to confound
• The pride of guilty kings; or, to alarm
• Their coward spirits, through the realms of night
• Hurl the tremendous comet, or in bowers
• Of blooming Paradise enjoy repose;
• I ween the memory of your patriot zeal
• Exalts your glory, and sublimes your joys.”
• Richardson

[36. ]King John signed the Great Charter or Magna Carta at Runnymede on June 15, 1215. Throughout what follows, Millar cites Sir William Blackstone’s edition: The Great Charter and Charter of the Forest … to which is prefixed … the history of the charters (Oxford, 1759).

[* ]Blackstone’s edition of king John’s Magna Charta, § 2, 3, 4, 6, 12, &c.

[† ]Blackstone’s edition of king John’s Magna Charta, § 21.

[* ]Ibid. § 40.

[† ]Ibid. § 39.

[† ]Blackstone’s edition of king John’s Magna Charta, § 20.

[§ ]Ibid. § 13.

[37. ]Henry III (r. 1216–72) was the first English monarch crowned in his minority.

[38. ]William Marshal, the first earl of Pembroke (d. 1219), was instrumental in subduing the rebellious barons, issuing the 1216 charter, and restoring order to the kingdom.

[39. ]The Charter of the Forest was issued in 1217 and confirmed in 1225.

[40. ]Henry assumed full authority in 1227, after the regency of Hubert de Burgh (1219–27).

[* ]Muratori, Antiq. Med. Aev. tom. ii. diss. 23.—The Romans generally employed their slaves in hunting. Ibid.

[41. ]A sleuth-hound, pointer, or tracking dog.

[* ]That England was anciently famous for its breed of slow-hounds, appears from Strabo, c. 4. The French, under the kings of the Merovingian race, were accustomed to procure hunting dogs from England. Velly’s Hist. vol. i.

[* ]By a law of Canute the Great, whose authority was more extensive than that of his predecessors, the right of the nobles to protect the game upon their own grounds seems to be laid under restrictions. The words are, “Volo ut omnis liber homo, pro libito suo, habeat venerem, sive viridem, in planis suis super terras suas, sine chacea tamen, et devitent omnes meam, ubicunque eam habere voluero.” [[“It is my will that every free man shall have the right to hunt, or the right to cut wood, as he wishes on his own fields on his lands, without, however, a chase, and that everyone shall avoid my chase wherever I wish to have it.” The Anglo-Saxon original is to be found with a translation in The Laws of the Kings of England from Edmund to Henry I, ed. and trans. A. J. Robertson (Cambridge: Cambridge University Press, 1925), 215. A “chase” is an area of forest granted by the king to a subject that is exempt from some of the royal forest laws and over which the subject exercises jurisdiction.]]

[42. ]The reference is to the Highland clearances, which made such large and devastating changes to the agricultural life of the Scottish Highlands in the eighteenth century.

[* ]See the Charter published by Blackstone.

[43. ]Simon de Montfort, earl of Leicester (ca. 1208–65) was Henry’s brother-in-law, and a powerful baron. Hostilities broke out in 1264, and, despite some successes, Henry was defeated and captured by Montfort at the Battle of Lewes.

[44. ]Edward I, king of England (r. 1272–1307), defeated the baronial army at the Battle of Evesham in 1265.

[45. ]Edward confirmed the Charters in 1297. The “prerogative” in this sense refers to the peculiar rights and privileges of the monarch.

[* ]34 Edw. I. stat. 4. cap. i.—Also 25 Edw. I. 2, 5, 6.

[1. ]In France, the parlement was a judicial body, growing out of the royal feudal courts.

[* ]It has been alleged, that the name of parliament was bestowed upon the English national council even in the reign of Edward the confessor, at which time the French language began to be fashionable in England.—Discourse on the English government, published by Nathaniel Bacon.

[2. ]The Domesday Book of 1086 was the result of a royal survey intended to collect information on the population and stock of each borough or village in the realm.

[* ]The separate baronies in the different counties, including the lands in the crown demesne, amount in all to 1462. But as the same persons were often possessed of estates in many different counties, it is a matter of some labour to distinguish the exact number of separate proprietors. For example, the king himself held lands in every county except Shropshire.—Comes Moritoniensis possessed baronies in 20 counties.—Comes Eustachius, in 11.—Comes Rogerius, in 13.—Willelmus de Warenna, in 12.—Edwardus Sarisberiensis, in 9.—Willelmus filius Ansculfi, in 11.—Hunfridus Camerarius, in 9.—Comes Alanus, in 11.—Comes Hugo, in 21.—Ernulfus de Hesding, in 10.—Radulphus de Mortemer, in 13.—Episcopus Cantuarensis, in 8.—Episcopus Baiocensis, in 17.—Episcopus Wentoniensis in 11.—Abbatea Westmonasterii, in 14.—Episcopus Lincolcensis, in 9. [[Comes: count; Episcopus Cantuarensis: archbishop of Canterbury; Episcopus Baiocensis: bishop of Bayeux; Episcopus Wentoniensis: bishop of Winchester; Abbatea Westmonasterii: Westminster Abbey; Episcopus Lincolnensis: bishop of Lincoln.

After a pretty accurate scrutiny, it is believed the separate crown-vassals, recorded in doomsday-book, are not above 605, though they may possibly be one or two below that number. Of these, the ecclesiastical vassals, including the different sorts of religious societies, amount to about 140. It is to be observed, however, that some of these appear to have belonged to Normandy, though they possessed lands in England.

It is evident that the power and influence of the crown-vassals, in the reign of William the conqueror, must have been great in proportion to the smallness of their number, and the vast extent of their property.]]

[* ]That parliaments were frequently held by William the conqueror, and by his son William Rufus, as well as by the succeeding monarchs, is indisputable. In the fourth year of William the conqueror, the laws of Edward the confessor were confirmed by a great national council. [R. Hoveden. Annal. Also Selden, Spicilegium in Eadmerum.] It is doubtful whether this was the same parliament which confirmed the collection of Edward the Confessor’s laws, preserved by Ingulphus, the abbot of Croyland, and secretary to William the First. Selden, ibid.—Another parliament was held in 1070, for terminating a dispute between the archbishop of York and the bishop of Worcester.—Coram rege et dorobuniae archiepiscop. Lanfranco, et episcopis abbatibus, comitibus, et primatibus, totius Angliae. [[“In the presence of the king, Lanfranc, archbishop of Canterbury, and the bishops, abbots, and noblemen of all England.” Dr Brady’s Tracts.—Another parliament is mentioned in 1084, for changing the canons of Durham into Monks—Praesentibus omnibus episcopis et baronibus meis. “In the presence of all my bishops and barons.” See Brady, An Introduction to the Old English History (London, 1684), appendix, 54. Ibid.—See also in the same author, the instances of national councils convened by William Rufus.

The whole territory 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 not, before this period, be properly invested with an authority over the whole kingdom. It is probable, however, that this circumstance was overlooked; and that, as a great part of the nobility, soon after the conquest, were become vassals of the crown, they were called, in that capacity, to the national council; while others, who still retained their allodial property, might be willing perhaps, without regarding the difference of their situation, to join in the deliberations of that assembly.]]

[* ]The name of talliage is frequently extended to every pecuniary contribution levied by the superior from his vassals.

[3. ]A forced contribution levied by the kings of England on their subjects.

[* ]With regard to aids, and scutages, this provision is made in the charter of king John, § 12. The statutes 25 Edward I. c. 5, 6. and 34 Edward I. contain the same regulation with respect to aids and talliages.

[† ]25 Edw. I. c. 7.

[4. ]The civil war continued, to a greater or lesser extent, 1139–47.

[* ]Gurdon’s History of Parliament.

[5. ]Millar recalls here his division of English history into three periods, the first two of which were feudal aristocracy and feudal kingship. See p. 9, note 1.

[6. ]A tribunal having final authority; the last court to which appeal can be made.

[* ]Account of this tribunal in Madox’s History of Exchequer. The great officers of the king’s court are made by this author to be seven in number. 1. The chief justicier. 2.= The constable. 3. The mareschall. 4. The seneschall or dapifer. 5. The chamberlain. 6.= The chancellor. 7. The treasurer. Of these the chief justicier was originally the seneschal or high-steward. But when the primitive high-steward, who had been the chief officer of the family, came to be possessed of great ministerial powers over the whole kingdom, a deputy was appointed to manage the affairs of the household, who acquiring high rank and authority, received the appellation of seneschall, or steward of the household, as the other was called the steward of the kingdom. The subordinate appointment of a steward of the household, or comes palatii, [[count palatine is also to be found in France, Germany, and other feudal countries. Thomas Madox, The History and Antiquities of the Exchequer (London, 1711). See especially chap. 3 (56–104), which outlines the origins of the King’s Court as a place to hear pleas. Sec. 6 (65–67) outlines the kinds of complaints which would have been heard in this court.

The office of constable, or chief groom, had come in England, as well as upon the continent, to be divided into two branches, that of the constable and marshal; or of the groom and the smith, or farrier.

The seneschal and dapifer ought, in all probability, to have been distinguished; as in France, and of course in Normandy, the offices of steward, and butler, or cup-bearer, had been long separated.

The treasurer is supposed to have been originally the deputy of the high-steward.—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 these officers, in that branch of the king’s court which had the management of the revenue, in the Dialogus de Scacario, published by Madox, from the black and the red books of Exchequer.]]

[1. ]See p. 190, note 3.

[2. ]The lord high steward of England ranks as the first of the great officers of state. The household of the Norman and Plantagenet kings of England included certain persons of secondary rank who were entrusted with domestic and state duties. At coronations and festivals, however, it became the custom in England and elsewhere to appoint magnates of the first rank to discharge for the occasion the domestic functions of the ordinary officials.

[* ]When the members of this court transacted civil and criminal pleas, they sat in the hall of the king: when they acted as a court of revenue, they sat in the Exchequer. Dial. de Scacario. Baron Gilbert’s Hist. of Chancery.

[† ]That the grand justiciary of England was originally the high steward, appears indisputable. 1. That the high steward, or maire of the palace, in France, was anciently the officer of the crown who acquired the highest dignity and authority over the kingdom, is universally admitted. 2. In Normandy a similar officer, appointed by the duke, appears to have been chief justiciar throughout the dutchy. See Coustumier du Normandie. 3. From the black and red books of Exchequer, there is distinct evidence that Robert earl of Leicester, who, in the reign of Henry the Second, was the high steward, had also the office of grand justiciary. Non solum ad scacarium verum per universum regnumpresidentisdignitatem obtinuit. [[“He held the office of president not only at the Exchequer, but also throughout the whole kingdom.” The author of this account was a cotemporary, who says he saw the great officer whom he speaks of. 4. That the high steward had by his office the right of presiding over the king’s privy counsellors, and over all the officers and ministers of justice in the kingdom, appears also from an old manuscript, intitled, Quis sit Seneschallus Angliae, et quid ejus officum “The identity of the Lord High Steward of England and the nature of his office.”, quoted by Sir Robert Cotton and other antiquaries, whose researches upon this subject are preserved in Hearne’s Collection.—See the facts collected by these authors—also Spelm. Gloss. v. Justiciarius Capitalis.

It is true, that among the English historians and antiquaries there is some confusion in the accounts given of the persons who held the office of high steward and of justiciary. This seems to have arisen partly from the difficulty of distinguishing the old high steward from his original deputy the steward of the household; and partly from the occasional appointments made by the sovereign of persons to preside in particular trials, who have been mistaken for permanent justiciaries. This last seems to be the great source of error in Madox. 5. That the high steward was anciently the president 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 preside in the house of lords.]]

[3. ]The private counselors selected by the sovereign, together with certain persons who are members by usage, as the princes of the blood, the archbishops, and the chief officers of the present and past ministers of state.

[* ]Concerning the origin of the name of star-chamber, and the original nature of that court, see Sir Thomas Smith de Repub. Angl.—Lamb. Arch.—Blackstone’s Comment.—The nature of the jurisdiction anciently possessed by the star chamber, may be conceived from the sort of offences concerning which that court is directed to enquire, by the statutes 3 Henry VII. c. 1. and 21 Henry VIII. c. 20. See Coke’s Inst. [[The Star Chamber was the ancient meeting place of the king of England’s counselors in the palace of Westminster in London, so called because of stars painted on the ceiling. The court of the Star Chamber developed from the judicial proceedings traditionally carried out by the king and his council, and was entirely separate from the common-law courts of the day. On its origin and abolition, Millar refers to Sir Thomas Smith, De Republica Anglorum (London, 1583), 94–97; and Sir William Blackstone, Commentaries on the Laws of England, 4 vols. (London, 1765–69). See, for example, 1:131, 259–60 and 4:263–64, 422–23.]]

[* ]Personae miserabiles. [[Wretched persons.]]

[4. ]Charles I (r. 1625–49).

[† ]Sir Tho. Smith de Repub. Anglor.—Blackstone’s Comment.

[5. ]Masters of requests of the royal household.

[* ]Recherches de la France. D’Estienne Pasquier.

[6. ]The Carolingian dynasty. See p. 66, note 12.

[* ]Hainault’s Abridgment of Hist. of France.

[* ]William the Conqueror’s charter, with advice of the national council. Spelman.

[1. ]On tithes, see p. 83, note 8.

[* ]The fourteenth degree, according to the computation of the civilians, is equal to the seventh degree among the canonists; comprehending persons removed by seven generations from the common stock. To change the Roman method of counting kindred, was the first contrivance of the clergy in the dark ages, for extending the laws of ancient Rome with respect to the relations prohibited from contracting marriage. [[For Blackstone’s calculation of the number of relations which may exist in different degrees of consanguinity, see Commentaries on the Laws of England, 4 vols. (London, 1765–69), 1:202–8.]]

[* ]Blackstone in his Comment. vol. ii. calculates the number of relations which may, at an average, exist in different degrees of consanguinity; by which it appears, that every person may have at least 16,000, in the 14th degree, according to the Roman computation, not to mention such as are a step or two nearer, who may be living at the same time; and of spiritual relations, in consequence of baptism, he may have three or four times as many more.

[2. ]In the Roman Catholic Church, the body of law based on the legislation of the councils and the popes, as well as the bishops. It is the law of the church courts and is distinguished from other parts of ecclesiastical law, such as liturgical law.

[* ]Burne’s Ecclesiastical Law.

[3. ]The diffusion of literacy, by which increasing numbers of persons could claim to be clerics—regarded as having a monopoly on reading—and therefore enjoy the benefit of clergy.

[* ]Lyttelton’s Hist. of Henry II.

[4. ]The right to appoint candidates for ecclesiastical offices.

[5. ]Late in the eleventh century, the struggle concerning clerical investiture broke out largely due to the divergence between Pope Gregory VII (1073–85) and Emperor Henry IV (r. 1056–1106). At that time, there was no general agreement as to the powers of the papacy and the Holy Roman Emperor in installing German bishops: it was only generally recognized that both had rights in the matter, touching off the controversy. Henry was succeeded as emperor by his son, Henry V (r. 1106–25).

[* ]Father Paul’s History of Benefices.

[6. ]St. Anselm (1033–1109): archbishop of Canterbury from 1093.

[7. ]See p. 220, note 21.

[1. ]The period from 1272 to 1485. Philip IV, the Fair (r. 1285–1314); Louis XI (r. 1461–83).

[* ]“The opportunity of the states general, assembled in the year 1355,” says the count de Boulainvilliers, “is favourable to my design; since, upon their remonstrances, king John gave a declaration which irrevocably established the right of those assemblies, and which, upon that account, might justly be compared to the great charter granted to the English by a prince of the same name; were it not unfortunately too true, that it has been buried in oblivion for above two hundred years past, even so far that there is no public instrument of it remaining, except one copy preserved in the king’s library; from whence I took that of which I shall give you an extract in the course of this letter.” [Boulainv. account of the ancient parliaments of France.] See a full account given by this noble author, of that famous French charter, which in reality has a great resemblance to the English charter above mentioned.

[2. ]The period from 987 to 1322. For Hugh Capet, see p. 11, note 5. Philip V, “the Tall” (r. 1316–22).

[3. ]Philip II Augustus (r. 1179–1223).

[* ]It appears, that one of the charters granted by Henry III. was subscribed by his son Edward. Blackstone, History of the Great Charters.

[4. ]King John lost Normandy to the French in 1203.

[5. ]By Edward I’s conquest of Wales (1276–84), the English established complete control over the region. With the Statute of Wales of 1284, Wales was brought within the government of England.

[6. ]Edward II (r. 1307–27). The English were expelled from Scotland after the victory of Robert I, the Bruce (r. 1306–29) at Bannockburn in 1314.

[7. ]Roger Mortimer (ca. 1287–1330), baron of Wigmore and earl of March, was the lover of Queen Isabella. In league with young Edward (III), king of England (r. 1327–77), he captured Edward II in Wales in 1326. Edward was coerced into abdicating in 1327 and was killed shortly thereafter upon Mortimer’s orders.

[8. ]Edward III had Mortimer put to death in 1330.

[9. ]Edward’s maternal grandfather was Philip IV, the Fair. His aggressive pursuit of this claim initiated what is traditionally called the Hundred Years’ War, beginning in the year 1338.

[10. ]Edward, the Black Prince (1330–76): Edward III’s eldest son.

[11. ]John II, the Good, king of France (r. 1350–64) was held for ransom by the English 1356–60. The legend of the Black Prince, to which Millar refers, was popularized by Jean Froissart (b. 1337) author of the Chroniques, written between 1369 and 1400.

[* ]14 Edw. III.

[12. ]Richard II (r. 1377–99) was the son of Edward, the Black Prince, and the grandson of Edward III.

[13. ]Michael de la Pole (ca. 1330–89), earl of Suffolk, was appointed chancellor in 1386.

[14. ]This uprising, which occurred in 1386, was raised by Thomas, duke of Gloucester, the earl of Arundel, Thomas Beauchamp, the earl of Warwick, Thomas Mowbray, the earl of Nottingham, and Henry Bolingbroke, the duke of Hereford and Richard’s cousin [later Henry IV, king of England (r. 1399–1413)]. Sir Robert Tresilian and Nicholas Brembre, lord mayor of London, were executed as traitors in 1388.

[15. ]Gloucester, Arundel, and Warwick were arrested in 1397. Shortly thereafter, Gloucester and Arundel were killed, and Warwick banished to the Isle of Man. Mowbray was exiled for life and Bolingbroke for ten years, a sentence later extended to life.

[16. ]Afterward Henry IV, king of England. See note 14.

[17. ]Edmund Langley, duke of York (1341–1402).

[* ]Remarks upon the History of England by H. Oldcastle. [[Millar quotes this passage from Henry St. John, Viscount Bolingbroke, Remarks on the History of England, from the Minutes of Humphrey Oldcastle, Esq. (London, 1743), 74–75.]]

[18. ]Edmund Mortimer, earl of March (1391–1425).

[19. ]Henry V (r. 1413–22). Chief among his victories was the rout of the French forces at Agincourt in 1415.

[20. ]Henry VI (r. 1422–61; 1470–71) was nine months old when he inherited the English throne.

[21. ]The English were expelled from France in 1453, ending the Hundred Years’ War. Among the English defeats was the fall of Orleans to the army of Jeanne d’Arc in 1429.

[22. ]Edward IV (r. 1461–70; 1471–83); Richard III (r. 1483–85). The Wars of the Roses, the conflict between the houses of York and Lancaster, lasted ca. 1450–87. The Lancastrian faction proved victorious at the Battle of Bosworth in 1485.

[23. ]Henry VII (r. 1485–1509): the first monarch of the Tudor dynasty.