Oliver Cromwell. When the Parliament became jealous of this man, and disbanded the army, he applied to them in a manner indeed more canting than that of the Roman generals, and got the Parliament turned out and a new 30 PART I: JUSTICE one appointed more suitable to his mind, with the whole authority vested in himself1.
Thus we have seen how small republics, whether con quering or defensive, came at length to a dissolution from the improvements in mechanic arts, commerce, and the arts of war.
[} 5. Of Military Monarchy] We are next to consider what form of government succeeded the republican.
When small republics were conquered by another state, monarchy, or whatever other government pleased the con querors, was established, though they generally followed the model of their own country. The Athenians always established democracy, and the Spartans aristocracy. The Romans indeed more prudently divided their con quests into provinces which were governed pretty abso lutely by persons appointed by [the] Senate for that purpose. The case is somewhat different when a state is conquered by its own subjects. Both the nature of the action and the instruments by which it is performed require a military monarchy, or a monarchy supported by military force, because it is as necessary to keep them in awe as to conquer them. This was the form of government that was established in Rome during the time of the emperors. These emperors took the whole executive power into their own hands, they made peace and war as they, thought proper, and even named the magistrates either immediately themselves, or by means of a Senate of their own appoint ment. They did not, however, alter any institutions of the civil law; right and wrong were decided as formerly. Cromwell did the same in our own country, he kept the State in awe by an insignificant army, but he allowed the 1 The facts are more shortly dealt with in IV. of N. bk. v. ch. i.
PUBLIC JURISPRUDENCE 31 judge to determine right and wrong as formerly. Nay, he made such improvement in the civil law by taking away wardships, &c., that the first thing the Parliament of Charles II did was to confirm many of Cromwell's laws.
The Roman authors tell us that justice was never better administered than under the worst of the emperors, Domitian and Nero1. It is the interest of all new adminis trators to make few alterations in what the generality of people are much concerned and have been long accustomed to. They will more easily go into anything else, when they are indulged in this. It was particularly the interest of the emperors to keep up the ancient system of laws, and accordingly we find that all consuls who misbehaved in their respective provinces were severely punished. It was not so under the republic; the mo^t scandalous crimes were committed by governors, as we learn from Cicero's Orations. A military government allows the strictest administration of justice. Nobody indeed can have a fair trial where the Emperor is immediately concerned: then he will do as he pleases; but where he is in no way interested it is his interest to adhere to the ancient laws.
It is to be observed that there was a very great difference between the military government established at Rome and those that were established in Asia. At Rome the con querors and conquered were the same people. The conquerors themselves were sensible of the good effects of these laws, and were so far from being willing to abrogate them, that they made improvements upon them. It is not so with the Asiatic governments, though they are purely military. Turkey, Persia, and the other countries were con quered by Tartars, Arabians, and other barbarous nations who had no regular system of laws, and were entirely ignorant of their good effects. They established in all public offices their own people, who were entirely ignorant 1 Suetonius, Nero, 15, sqq.; Doinitianus, 8.
32 PART I I JUSTICE of all the duties of them. A Turkish bashaw or other inferior officer is decisive judge of everything, and is as absolute in his own jurisdiction as the Signior. Life and fortune are altogether precarious, when they thus depend on the caprice of the lowest magistrate. A more miserable and oppressive government cannot be imagined.
[§ 6. Hozu Military Monarchy was dissolved.']
We have considered how the dissolution of small states was brought about, and what form of government succeeded them, by what means an imperial government was intro duced into conquering republics, and what kind of admin istration this was. We come now to show how this military monarchy came to share that fated dissolution that awaits every state and constitution whatever.
In the time of the imperial governments at Rome they had arrived at a considerable degree of improvement both in arts and commerce. In proportion as people become acquainted with these and their consequence, domestic luxury, they become less fond of going out to war; and besides, the government finds that it would hurt its revenue [to call out] those employed in manufactures. If barbarous nations be in the neighbourhood, they can employ them as soldiers at an easier rate, and at the same time not hurt their own industry. Sensible of these things, the Romans recruited their armies in Germany, Britain, and the northern barbarous countries which bordered on the Roman Empire. They had the liberty of recruiting in these countries in the same manner that the Dutch did in Scotland before the beginning of the last war \ After they had gone 1 Enlistment or recruiting with- to prevent his Majesty's subjects out leave or licence from the from serving as officers under crown was felony under 9 Geo. the French king; for the better II, cap. 30. In 1756, at the begin- enforcing of the act 9 Geo. II, cap.
ning of the Seven Years' War, an 30; ' and for obliging such of his act (29 Geo. II, cap. 17) was passed Majesty's subjects as shall accept PUBLIC JURISPRUDENCE 33 on for some time in this practice, they would find for several reasons that it would be much easier to make a bargain with the chieftains of these barbarous nations whom they employed, and give him so much money to lead out a number of men to this or that expedition.
Supposing then an institution of this kind, the bar barous chieftain, at the head of his own men, possessed the whole military authority of the people for whom he fought, and whenever the government in the least offended him, he could turn his arms against those who employed him, and make himself master of their country. We find that all the western provinces were taken possession of much in this manner. After they had by their practice given such invitations to the inroad of barbarians, we find that most of the Roman provinces were infested by them. In this country the Romans built a wall and kept garrisons to secure their province from the pillagers of the north. The garrisons which secured this station were called away to the defence of Gaul, which at that time was also infested. The historians tell us that the Britons then got leave to shake off the Roman yoke, but it could be no advantage to the Romans to give any country in Britain its liberty, and it was no favour done it to have no protection from Rome, which the province in reality wanted to have continued. The Romans undoubtedly meant that they should take the trouble of defending themselves, as they were, for some time, to be otherwise employed. The Britons, how ever, did not like the proposal, but resolved to invite over a body of Saxons to their relief. Accordingly Hengist and Hursa came over with a considerable army which was frequently recruited, entirely drove out the Romans J, and commissions in the Scotch Bri- be correctly applied to the Rogade, in the service of the States manized population of Britain, but General of the United Provinces, it is probably used here merely by to take the oaths of allegiance mistake for 'Britons,' since a little and abjuration.' lower down we find the phrase 1 The term ' Romans ' might ' the old inhabitants ' employed 34 PART I: JUSTICE finding themselves masters of the whole country, took possession of it and founded the Saxon Heptarchy. In this manner fell the Western Empire of Europe, and military monarchy came to ruin. We find in the last hundred and fifty years of the Roman Empire this custom of recruiting in barbarous nations carried on, and many of their chieftains had greatly raised themselves. Patricius ^Elias 1 under Honorius, and many others, acquired great power. In the same manner all the Asiatic governments were dissolved. Their soldiers were hired from Tartary, arts and manufactures were carried on, the people made more by their trades than by going to war. The East India trade which Italy and some other nations carried on by the Red Sea had rendered them very opulent. Every nation as well as Rome was willing to make a bargain with the neighbouring barbarous princes to defend them, and this proved the ruin of the government.
[} 7. Of the Allodial Government^ Having now considered all the ancient forms of govern ment of which we have any distinct accounts, we show next what form succeeded the fall of the Roman Empire, and give an account of the origin of the modern govern ments of Europe.
The government which succeeded this period was in the case of Gaul in order to printed with a capital initial letter, avoid the ambiguity of ' Romans.' as it is in Muratori, Rerum Itali- 1 A mistake for 'the patrician carurn scriptores, torn. i. pars i, Aetius.' An easily-made error might easily mislead any one who in transcription will account for did not happen to be very familiar ' ^Elias.' ' Patricius ' may possibly with the technical use of the term be due to phrases in Jornandes in the later Roman Empire.
De Gefarumorigme,suchas 'JEtius Aetius was later than Honorius.
ergo Patricius tune praeerat The influential barbarian under militibus fortissimorum Moesio- Honorius was Stilicho, whose rum stirpe progenitus ' (cap. 34), name was very probably men- 'tanta Patricii ^Etii providentia tioned in the lecture and omitted fuit ' (cap. 36). Patricius, thus by the reporter.
PUBLIC JURISPRUDENCE 35 not altogether unlike the Tartar constitution formerly mentioned, though the Germans and others who, upon the fall of the Roman Empire, took possession of the western countries, had better notions of property, and were a little more accustomed to the division of lands. The king and the other chieftains, after they had become conquerors of the country, would naturally for their own purposes take possession of a great part of it. They would distribute it among their vassals and dependents, as they thought proper, and would leave but a very inconsiderable share to the ancient inhabitants. They did not, however, extirpate them entirely, but still paid them some little regard. Among the Franks who took possession of Gaul, the person who killed a Frank paid only five times the fine which was payable for killing one of the old inhabitants 1. As these nations were almost lawless, and under no au thority, depredations were continually committed up and down the country, and all kinds of commerce stopped.
In consequence of this arose the allodial government, which introduced an inequality of fortune. All these chieftains held their lands allodially without any burden of cess, wardship, &c. One of these great lords was possessed of almost a county, but as he was unable himself to reap any advantage from so much of it, he found it necessary to parcel it out among vassals, who either paid a certain annuity, attended him in war, or performed some service of this nature. By this means his incomes became so great that, as there was then no domestic luxury, he could not consume them in any way but by maintaining a great number of retainers about his house. These were another species of dependents, who increased his authority and secured domestic peace, for they kept the tenants in awe and were kept in awe by the tenants. So great was the authority of these lords, that if any one claimed a debt from 1 For a Frank 200 sous, for a Roman serf 45; Montesquieu, Esprit des lots, liv. xxviii. ch. iii; liv. xxx. ch. xxv.
36 PART I: JUSTICE any of their vassals the king had no power to send a messenger into the lord's dominions to force payment1. He could only apply to the lord, and desire him to do justice. To them also lay the last resort 2 in judging of all manner of property under their own jurisdiction, the power of life and death, of coining money, and of making bye- laws and regulations in their own territories. But besides this power of government, which in a great measure was betwixt the king and the great lords, if there had been no other the balance would not have been properly kept. But besides the allodial lords there was a great number of free people who were allowed to consult about justice in their own spheres. Every county was divided into hundreds and subdivided into tens. Each of these had their respective court, viz:— the decennary court, the hundred court. Over those was placed the Wittenagemot or as sembly of the whole people 3. Appeals were brought from the ten to the hundred, and from it to [the] county court. An appeal could be brought to the king's court in case the inferior court denied justice by refusing to hear a cause, or if it was protracted by unreasonable delays4. Appeals were also sometimes carried to the Wittenagemot, which was made up of the king, allodial lords, aldermen or earls, bishops, abbots, &c. This was the first form of government in the West of Europe, after the downfall of the Roman Empire.
[} 8. Of the Feudal System.]
We are next to show how the allodial government was overturned and the feudal system introduced. As these great lords were continually making war upon 1 W. of N. bk. iii. ch. iv. vol. i. 1723, pt. ii. p. 61), not 'assembly p. 413. composed of the whole people.'
2 MS. reads ' result.' * Hume, History of England 3 I.e. commune concilium totius front Julius Caesar to Henry VII, regni (Spelman, English Works, 1762, vol. i. pp. 151, 152.
PUBLIC JURISPRUDENCE 37 one another, in order to secure the attendance of their tenants, they gave them leases of the lands which they possessed from year to year, which afterwards, for the same reasons, came to be held for life l.
When they were about to engage in any very hazardous enterprise, that, in case of the worst consequences, the families of their vassals who went along with them might not be left destitute, and that they might still be more encouraged to follow them, they extended this right to the life of the son and grandson: as it was thought cruel to turn out an old possessor, the right became at last hereditary, and was called feuda 2. The feudal tenant was bound to certain offices, but service in war was the chief thing required, and if the heir was not able to perform it, he was obliged to appoint one in his place. It was in this manner that wardships were introduced;5. When the heir female succeeded, the feudal baron had a right to marry her to whomever he pleased, because it was thought reasonable that he should have a vassal of his own choosing4. The prima seizin was another emolument of the master. When the father died the son had no right to the estate till he publicly declared his willingness to accept of it; and on this account the lord sometimes had the estate in his own 1 Hume, History of England death, that the sons should not from Julius Caesar to Henry VII, have the possession of what they 1762, vol. i. p. 399. had formerly had a share in the 2 Reference to Smith's au- enjoyment of; it occurred like- thority shows that the plural wise readily to superiors that 'feuda' is correct in spite of the a man would venture himself context properly requiring the less in battle, when the loss of singular. Dalrymple, in his his life was to be attended with Feudal Property, pp. 198, 199, the ruin of his family; from these says that when the grants of land considerations the grants were were held at will they ' were extended to the vassal and his properly called Munera...Soon sons; and they were then, and not afterwards they were granted till then, properly styled Feuda.' for life, and they were then 3 Dalrymple, Feudal Property, called Beneflcia...But...it was pp. 44, 45.
accounted hard, after the father's 4 Ibid. pp. 45-47.
38 PART I: JUSTICE hand, and enjoyed the profits of it for some time. The heir paid a sum to get it back, which was called relief1. There was still another emolument belonging to the lord, called escheat; that is, after the estate became hereditary, if there was no heir of the family to succeed, it returned to the lord. The same thing happened if the heir failed of performing the services for which he had the tenure 2. There were besides these some small sums due to the superior on redeeming his son when taken prisoner, or on knighting him 3, and on the marriage of his daughter, and some such occasions 4.
The same causes that made allodial lords give away their lands to their vassals on leases which afterwards became hereditary, made the king give away the greater part of his lands to be held feudally: and what a tenant possessed in feu was much the same with real property. They were indeed subject to the above-mentioned emoluments, but they possessed their lands for themselves and posterity. Feudal property may in some respects be inferior to allo dial, but the difference is so inconsiderable that allodial lordships soon become to be held feudally. About the tenth century all estates came to be held feudally, and the allodial lords, that they might enjoy the king's protection, exchanged their rights for a feudal tenure 5.
It is to be observed that those historians who give an account of the origin of feudal laws from the usurpation of the nobility are quite mistaken 6. They say that the nobility wanted to have those lands which they held at pleasure of the king to be hereditary, that it might not be in his power to turn them out, and that the feudal law was introduced 1 Dalrymple, Feudal Property, 4 Dalrymple, Feudal Property, 2 Ibid. pp. 66-67. 5 Hume, History of England 3 This should, of course, read (Caesar to Henry VI 7), vol. i. p. 'for redeeming him when taken 400.
prisoner, or on the knighting of " W. of N. bk. iii. ch. iv. vol. i. Jiis eldest son.' p. 414.
PUBLIC JURISPRUDENCE 39 on account of the diminution of the king's power. But it was actually the contrary; it was on account of the increase of his power, and it required great influence in the king to make the lords hold their lands feudally. The best proof of this is that William the Conqueror changed all the allodial lordships in England into feudal tenures and Malcolm Kenmure l did the same in Scotland ~.
The introduction of the feudal system into all Europe took away everything like popular government. The popular courts were all removed. Neither decennary, hundred, nor county courts were allowed. All public affairs were managed by the king and the great feudal lords. No commoners, none but hereditary lords had a right to sit in parliament. Those great lords who held immediately of the king were considered as his companions, pares convivii comites. They advised concerning public affairs, and nothing of importance could be done without them. The consent of the majority was to be obtained before any law could be passed, and it was necessary to have them called together. The barons or inferior lords observed the same method in their jurisdictions, and they who held;i of them were called pares curiae baronis. It was likewise necessary that they should be consulted, as they too were in arms. The baron could neither go to war, nor make a law, without the consent of the majority. Nothing could be done in the kingdom without almost universal consent, and thus they fell into a kind of aristocracy with the king at the head of it.
Besides these orders of men of which we have taken notice, there were two others which in that period were held in the utmost contempt 4. The first was that of the villains (villani} who ploughed the ground and were 1 Canmore. 3 MS. reads 'them' between 2 Lord Kames, Essays upon ' held ' and ' of them.'
British Antiquities, 1747, pp. 11-17; 4 Hume, History of England Dairy mple, Feudal Property, p. 25. ( Caesar to Henry VII), vol. i. p. 404.
40 PART I: JUSTICE adscripti glebae. The second order was the inhabitants of boroughs, who were much in the same state of villainage with the former, or but a little beyond it. As the boroughs were much under the influence of the lord who gave them protection, it was the king's interest to weaken as much as possible this interest and to favour their liberty. Henry II carried this so far that if a slave escaped to a borough and lived there peaceably a year and day, he became free *. He gave them many other privileges, but what secured them most was the power of forming themselves into corporations upon paying a certain sum to the king. They held of him in capitc 2, and at first every man paid his pro portion to the king 3; but afterwards the borough paid the sum and levied it as it seemed proper to itself. By this means, as the number of inhabitants increased, the burden became lighter, and the boroughs became opulent and very considerable. In the reign of King John a law was made that if a lord married his ward to a burgher he only forfeited his wardship 4.
G 9- Of the English Parliament.]
Thus we have considered the several orders of men of which the whole kingdom then consisted. We shall next show how each of them got a share in the government, and what share of it was allotted to each of them. Every person who had an estate great or small, had a right to sit 1 This is ascribed to Henry II, 3 W. of N. bk. iii. ch. iii. vol. i. probably only because it is men- p. 400.
tioned in Glanvill, De legibus 4 ' King John ' appears to be a Angliae, lib. v. cap. 5. Brady, mistake for 'Henry III,' the re- Complete History of England, pref. ference apparently being to the p. xxvii, quotes from Glanvill. Statute of Merton, 20 Hen. Ill, In W. of N. bk. iii. ch. iii. vol. i. cap. 6, 'As touching lords which p. 405, the phrase is 'at that marry those that they have in ward to villains or other, as burgesses, 2 Madox, Firma burgi, ch. i. § 8, where they be disparaged...the pp. 21-23. lord shall lose the wardship.'
PUBLIC JURISPRUDENCE 41 in the king's court, and to consult and advise with him about public matters. In the reign of William Rufus 700 sat in parliament1. In Henry Ill's time it was enacted that the smaller barons, who could not afford to attend in parliament, should send a representative. These representatives were considered as lords, and sat in the same house with them 2. In the same manner boroughs came to have representatives in parliament, because they themselves were become opulent and powerful, and the king found it his interest to give them some weight so as to lessen the authority of the peers3. It became necessary to have their consent as well as that of the barons before any law was passed. These representatives of the boroughs sat in a house by them selves, and the smaller barons, being far from the level of the great lords with whom they sat, and not much superior to the commons, soon joined them4. The king's revenues were then on many occasions insuffi cient for his demands. They consisted chiefly, first, of the royal demesnes; secondly, knights' services; thirdly, feudal emoluments such as wardships; fourthly, fines, amercements, compositions for crimes, &c.; fifthly, all waff5 goods, res nullius, &c. These were the principal sources of the king's revenue. But these were by no means sufficient to supply the increasing expenses of government. The two bodies of the commoners when joined made a very considerable figure, and the greater part of the subsidies came from them. The king excused the smaller barons from a constant attendance, and called 1 Dalrymple, Feudal Property, 2 Hume, History of England pp. 325, 326, says that Domesday (Caesar to Henry VII), vol. ii. p. 88.
shows that there were 700 im- 8 W. of N. bk. iii. ch. iii. vol. i.
mediate vassals of the crown in p. 404.
the time of the Conqueror, and * Hume, History of England then mentions that ' all who held (Caesar to Henry VII), vol. ii.
of the king in capite sat in parlia- pp. 92, 93; Carte, History of ment.' Cp. Hume, History of England, 1750, vol. ii. p. 451.
England (Caesar to Henry VII), 5 I.e. ownerless; a Scotch form 42 PART I: JUSTICE them or not as he pleased l. When he did call them he issued a writ summoning them, and from this was the origin of creating peers by writ or patent, which is the only way of doing it at present.
[§ 10. How the Government of England became Absolute^ Having shown how the House of Commons became considerable, we shall next show how the nobility's power decreased and the government turned arbitrary.
In all the courts of Europe the power of the nobility declined from the common causes, the improvements in arts and commerce. When a man could spend his fortune in domestic luxury he was obliged to dismiss his retainers. By their ancient rustic hospitality they could more easily maintain 1000 retainers than at present lodge one lord for a night. Richard, Earl of Warwick, who was styled Make-King, maintained every day forty thousand people besides tenants 2. But when luxury took place he was unable to do this 3. Thus the power of the nobility was diminished, and that too before the House of Commons had established its authority, and thus the king became arbitrary. Under the House of Tudor the government was quite arbitrary, the nobility were ruined, and the boroughs lost their power.
It might be expected that the sovereign also should have lost his authority by the improvement of arts and commerce, but a little attention will convince us that the case must have been quite opposite. A man possessed of forty thousand pounds a year, while no other body