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pered with a voluntary fubmiffion to the moft rigid fubordination: the trial by jury too was understood and revered by all the northern inhabitants of Europe, when they first appeared among the degenerate nations that had loft it. Liberty, driven from the haunts of fcience and civilization, feems to have fled with this talifman to the defarts, and to have given it to barbarians to revenge her injuries, and to redeem her empire: in marking the procefs of the conftitution, through the furnace of flavery, it must never be forgotten, that fuch were our ancestors.

When William had gained the victory of Haftings, he marched towards London with his victorious Normans, and found (like other conquerors) an eafy paffage to the throne when the prince is flain and his army defeated; the English proffered him the peaceable poffeffion of a kingdom which he was in a condition to have feized by force; rather chufing to fee the brows of a victor encircled with a crown than with a helmet, and wifhing rather to be governed by the fceptre than by the fword: he was therefore installed with all the folemnities of the Saxon coronation, and immediately afterwards annihilated all thofe laws which thefe folemnities were inftituted to perpetuate: he established his own feodal fyftem (the only one he understood); he divided all the lands of England into knight's fees, to be holden of himself by military fervice; and as few or none of the English had any fháre in this general diftribution, their eftates being forfeited from their adherence to Harold, and by fubfequent rebellions, it is plain they could have no political confequence, fince none but the "vaffals of the crown had feats in the feodal parliaments.

Could William have been contented thus to have shared with his Norman barons the fpoils of the conquered Englith, and merely to have transferred his feodal empire from Normandy to Great Britain, the facred fun of freedom had probably then fet upe this ifland, never to have arifen any more; the Norman lords would have eftablished that ariftocracy which then diftinguished the whole feodal world, and when afterwards, by the natural progreffion of that fingular fyftem; when by the inevitable operation of efcheats and forfeitures, the crown must have attracted all that property which originally iffued from it; when the barons thenfelves must have dropped like falling ftars into the centre of power, and aristocracy been fwallowed up in monarchy; the people already trained to

fubjection, without rights, and without even fimilar grievances to unite then, would have been an eafy prey to the prince in the meridian of his authority; and defpotifm, encircled with a standing army, would have fcattered terror through a nation of flaves.

But happily for us, William's views extended with his dominion: he forgot that his barons (who were not bound by their tenures to leave their own country) had followed him rather as companions in enterprize, than as vaffals: he confided in a ftanding army of mercenaries; which he recruited on the continent; rivetted even on his own Normans, the worst feodal ieverities; and before the end of his reign, the English faw the oppreffors themselves among the number of the oppreffed.

This plan, purfued and aggravated by his defcendants, affimilated the heterogeneous bodies of which the kingdom was compofed: Normans and English, barons and vaffals, were obliged to unite in a common caufe. Mr. de L'Olme, citizen of Geneva, by comparing the rife of liberty in England with the fall of it in France, has to clearly and ingenioufly proved, that Magna Charta was obtained from this neceflity which the barons were under of forming an union with the people, that I fhall venture to confider it as a fact demonftrated, and fhall proceed to an inquiry no lefs curious and important, where he and other writers have left a greater field for originality; I mean the rife of the English House of Commons, to its prefent diftinct and representative ftate.

The ftatute of Magna Charta, fo often evaded, and fo often folemnly re-eftablished, diffeminated (it must be confelled) thofe great and leading maxims on which all the valuable privileges of civil government depend; indeed the twenty-ninth chapter contains every abfolute right for the fecurity of which men enter into the relative obligations of fociety: but privileges thus gained, and only maintained by the fword, cannot be called a conftitution; after bearing a summer's bloffom, they may perifh as they grew, in the field of battle: of little confequence are even the moft folemn charters, confirmed by legiflative ratifications, if they who are the objects of them do not compofe part of that power, without whofe confent they cannot be repealed; if they have no peaceable way of preventing their infringement, nor any opportunity of vindicating their claims, till they have loft the benefit

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Mr. Erskine on the House of Commons.

of poffeffion: liberty, in this ftate, is not an inheritance; it is little better than an alms from an indulgent or a cautious adminiftration. It remains, therefore, to thew by what steps the people of England, without being drawn forth into perfonal action, were enabled to act with more than perfonal force; in what manner they acquired a political scale, in which they could depofit the privileges thus bravely and fortunately acquired, and into which every future accumulation of power flowing from the increase of property and the thriving arts of peace might filently and imperceptibly fall, bringing down the fcale without convulfing the balance.

And here those historians must be followed with caution, who have made this new order of the ftate to ftart up at the nod of Montfort or of Edward; neglecting the operations of the feodal fyftem, as thinking them, perhaps, more the province of the lawyer than the hiftorian, they have mistaken the effect for the cause, and have afcribed this memorable event to a fudden political neceffity, which was in reality prepared and ripened by a flow and uniform progreffion. This truth may be eafily illuftrated.

The law of Edward I. ftill remains on the records of parliament, by which the crown and the barons, in order to preferve for ever their fond feodal rights, reftrained the creation of any new fuperiorities. By this act, the people were

* The statute of the 18th Edward I. chap. i. commonly called quia emptores terrarum. The great barons were very preffing to have this law paffed, that the lands they had fold before the act might not be fubinfeud, but might return to themfelves by efcheats, on failure of heirs, or by forfeiture in cafe of felony: but they did not forefee that the multiplication of their own body would, in the end, annihilate its confequence, and raise up a new order in the ftate: indeed the tenancies in capite were multiplying faft before this act; for when a large barony efcheated, or was forfeited to the crown, it was generally divided, and granted to more than one; and frequently thefe baronies defcended to feveral females, who inherited as co-parteners; it was in confequence of this multiplication of tenures in capite that the smaller barons were fummoned per vicecomites, and not like the greater ones, as early as the reign of King John; their numbers being too great to addrefs writs to them all: but this multiplication would probably never have produced a genuine houfe of commons, without the operation of this act, as will appear by and by, from the comparison between the English and Scotch parliaments.

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allowed to difpofe of their eftates, but the original tenure was made to follow the land through all its alienations; confequently, when the king's vaffal divided his property, by fale, into imaller baro. nies, the purchafer had from thenceforth no feodal connexion with the feller, but held immediately of the king, according to the ancient tenure of the land; and if thefe purchafers alienated to others the lands fo purchased, ftill the tenure continued and remained in the crown.

Now, when we reflect that every tenant of a barony holden of the king in capite had a feat in parliament, we fee at once the ftriking operation of this law; we fee how little the wifeft politicians foresee the diftant confequences of ambition: Edward and his barons, by this device, monopolized, it is true, the feodal fovereignties, and prevented their vaffals from becoming lords like themselves, but they knew. not what they were doing; they knew not that, in the very act of abridging the property of the people, they were giving them a legiflative existence, which at a future day would enable them to overthrow whatever ftood in the way of their power, and to level that very feodal fyftem which they were thus attempting to perpetuate; for the tenants in capite who had a right to be fummoned to parliament, foon became fo numerous by the alienation of the king's vaffals (whofe immenfe territories were divifible into many leffer baronies), that they neither could, nor indeed wifhed any longer to affemble in their own rights; the feodal peers were, in fact, become the people *;

and

The House of Commons, and the fpiritual Lords (who still fit in parliament as tenants in capite) are the only remains of the genuine feodal territorial peerage; for, when the tenants in capite became numerous and poor, fuch an alloy was mixed with the ancient original nobility, that it would have been abfurd to have allowed tenure in chief to convey any longer a perfonal honour and privilege: the peerage, therefore, no longer paffed with the fief, but from being territorial and official, became perfonal and honorary; but as tenure in chief was still from the very nature of the foedal fyftem a legiflative title, although its exercife was no longer perfonally practicable from the multiplication of royal holdings, a reprefentation was naturally adopted.

The feodal ariftocracy thus expanded, changed by degrees into a democracy, and the aristocratical part of the government would have been utterly extinguished (on failure of the peers by prefcription) if the Kk 2

crown

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Mr. Erskine on the House of Commons.

and the idea of reprefentation came forward by a neceflary confequence: parliament, from being fingly compofed of men who fat in their own rights to fave the great from the oppreffion of the crown, and not the fmall from the oppreffion of the great, now began to open its doors to the patriot citizen; the feodal and perfonal, changed into natural and corpcrate privileges; and the people, for the first time in the hiftory of the world, faw the root of their liberties fixed in the centre of the conftitution.

As the multiplication of royal tenures from the enfranchisement of boroughs* (but chiefly from the operation of this law) first gave rife to popular reprefentation; fo it is only in the continued operation of these principles, that we can trace the diftinct exiftence and growing power of the House of Commons: we know that they affembled for a long time in the fame chamber with the peers; that the feparation was not preconceived by the founders of the conftitution, but arofe from neceffity, when their numbers became too great to form one affembly; and we know that they never thought of affuming popular legislative privileges, till by this neceffary divifion they became a

crown had not preserved it, by conferring on a few, by perfonal inveftiture, an hereditary tight of legiflation in the room of that territorial peerage that had branched out and become a popular right. This produced a great change in the orders of the ftate, for the feodal baronage, after having produced the House of Commons, continued to balance and struggle with the prerogative as a democracy, in the fame manner that it had refifted it before as an aristocratical body: whereas, the monarchical peerage, which sprung up on the decay of the feodal, is merely an emana-, tion of the royal prerogative, interefted in the fupport of the crown, from which it derives it luftre and its power, and has no connection with the feodal fyftem which conferred no legiflative rights but by tenure in capite, which tenure diffused among the multitude, conftituted the Houfe of Commons.

It is very probable, that burgage tenure first gave the idea of a reprefentative of the fmaller barons: For when the king enfranchifed a town, and gave it lands from the royal demefne, this inftantly made the corporation a tenant in capite; but, as the corporation could not fit in parliament, it elected a burgefs. It is in confequence of this burgage tenure or tenancy in capite, of a corporation, that we now fee fuch an infignificant village as Old Sarum, fending two members to parliament, while fuch a flourishing town as Manchester Lends none.

diftinct body from the lords. This, though a political accident, brought the English Commons forth into action; their legislative existence was the natural birth of the feodal fyftem, compreffed by the crown.

To prove these truths, we have only to contemplate the hiftory of our fifter kingdom of Scotland (governed at that time by the fame laws), there being very little difference between the Regiam Majeftatem, the Scotch code of those days, and the work compiled by Glanville, chief justice to Henry II. The law of Edward I. which produced these great changes in England, was tranfcribed by the Scotch parliament into the ftatute book of their Robert I. but the King of Scotland had not conquered that country as William had fubdued England, confequently he was rather a feodal chieftain than a mo

*It may be asked, what thefe changes were, which the act is faid to have produced, fince the burgeffes were called to parliament in the beginning of Edward's reign, before the act paffed; and fince the leffer barons were fummoned by the sheriffs, as early as the

reign of King John. To this it may be anfwered, that thefe parliaments were entirely feodal; the burgeffes reprefenting those corporations that were tenants in capite, and the fummons of the leffer barons being by no means a popular election, but a proclamation for thofe who hold fufficient lands of the king in capite, to affemble in their own rights: but where the ftatute of quia emptores had fo generally diffufed the royal holding, that from being a feodal privilege confined to a few, it came to be a popular and almost univerfal right, representation of the multitude fucceeded upon feodal principles to a perfonal right of legiflation; the territorial peerage funk altogether, or rather dilated itself into an House of Commons; and that power, which in other feodal countries, being condenfed like the rays of the fun to a focus, confumed the rights of mankind, produced, when thus fcattered abroad, a plentiful harveft of liberty. In Scotland, where the act of quia emptores was never enforced, the feodal baronage diffufed itself, notwithstanding, fo as at leaft to produce a reprefentation, but it continued to be reprefentation merely feodal; the knights of the fhires were reprefentative barons, not reprefentatives of the people; and never formed a diftinct order in the ftate: indeed, fuch a third power could never have poffibly fprung up from a feodal conftitution, or any other principle, than that which is here laid down. There was no reprefentation of the Scotch barons till the year 1427, when it was enacted by ftatute, that the fmaller barons needed not to come to parliament, provided they fent commissioners.

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Mr. Erfkine on the Houfe of Commons.

march, and had no power to carry this law of Edward's into execution; for the Scotch barons, although they would not allow their vaffals to fubinfeud, yet when they fold their own lands, they would not fuffer the crown to appropriate the tenure, but obliged the purchasers to hold as vaffals to themselves: by this weakness of the Scotch crown and power of the nobles, the tenancies in capite were not multiplied as in England; the right to fit in parliament was confequently not much extended beyond the original numbers; and Scotland never faw an Houfe of Commons *, nor ever tafted the bleffings of equal government. When the boroughs, indeed, in latter days, were enfranchifed, they fent their representatives; but their numbers being inconfiderable, they affembled in the fame house with the king and the peers, were awed by the pride of the lords, and dazzled by the iplendour of the

* The reprefentative barons and burgeffes never formed, in Scotland, a third eftate (as has been obferved in the last note), they were confidered as the reprefentatives of royal tenants, and not of the people at large; and, therefore, naturally affembled with the peers, who fat by honorary creation: for tenures in chief being confined to a very small number, when compared with other tenures, still continued to be the criterion of legislation; and, though extended beyond the practicability of perfonal exercife, was highly feodal, even when expanded to a state of reprefentation. Whereas, in England, the ftatute of quia emptores made tenure in capite almoft univerfal, or in other words, gave legiflative privileges to the multitude, upon feodal principles; which confequently produced a reprefentation, not of royal tenants, according to the principles of the feodal fyftem, but of the people, according to the natural principles of human fociety. It is probably from this difference between thefe principles of legiflation, that the right of voting is fo different in the two countries: in Scotland, the common council, and not the body of the burgeffes, are the electors; because the corporation, as the tenant in capite, is reprefented, and not the individuals compofing it: and no forty fhilling freeholder can vote for a knight of the thire, unless he holds immediately of the king; for if his tenure be not royal, he muft have four hundred pounds. Whereas, in England, the right of election (unless it has been otherwife fixed by prefcription) is in the whole body of the burgeffes; and all forty fhilling freeholders vote for the knights of the fhire, whether the tenure be of the king or a fubject.

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crown, they fat filent in parliament, reprefenting the flavery and not the freedom of the people.

But this diffemination of property, which in every country on earth is fooner or later creative of freedom, met with a fevere check in its early infancy, from the statute of entails; in this inftance even the crown of England had not sufficient ftrength to ripen that liberty which had fprung up from the force of its rays; for if Edward I. could have refifted this law, wrefted from him by his barons to perpetuate their eftates in their families, the English conftitution, from an earlier equidibrium of property, had fuddenly arifen to perfection, and the revolution in the reign of Charles I. had probably happened two centuries higher in our history, or, perhaps, from the gradual circulation of that power which broke in at last with a fudden and projectile force, had never happened at all; but the fame effects had been produced without the effusion of civil blood: for, no fooner was the statute of entails fhaken in the reign of Henry VII. and finally destroyed by his fucceffor, than we fee the popular tide which had ebbed fo long, begin to lift up its waves, till the mighty fabrics of prerogative and aristocracy paffed away in one ruin together. This crifis, which fhallow men then mistook, and still mistake for anarchy, was but the fermentation of the unconquerable fpirit of liberty, infused as early as Magna Charta, which in working itfelf free from the impurities that oppreffed it, was convulfing every thing around: when the fermentation ceased, the ftream ran purer than before, after having, in the tumult, beat down every

By the diffemination of property, in this place, is not meant, that which gave the right of legislation to the people on feodal principles, but that which is neceffary to give weight and confequence to a third estate fo arifen.

The ftatute of fines, paffed in the fourth year of Henry VII. was purpofely wrapped up in obfcure and covert expreffions, in order to induce the nobility to confent to it, who would otherwife have flung it out if they had thought it would have barred entails: but in the thirty-fecond year of Henry VIII. when the will of the prince was better obeyed, its real purpofe was avowed, and the ftatute then made had a retrospective operation, given to it, fo as to include all entails barred by fines fince the fourth year of the former reign.

bank

Tenets of the Quakers explained.