AN ACCOUNT OF THE ANCIENT DIVISION OF THE ENGLISH NATION into
Hundreds
and
Tithings:
The happy effects of that excellent institution;—that it would be equally beneficial to all other Nations and Countries, as well under
monarchical
as
republican
establishments;—and that, to the
English Nation
in particular, it would afford an effectual means of
reforming the Corruption of Parliaments
by rendering the Representation of the People
perfectly equal,
in exact numerical Proportion, to the total Number of
Householders
throughout the whole Realm.
Intended as an Appendix to several Tracts on
National Defence,
&c.
By GRANVILLE SHARP.
LONDON: Printed by GALABIN and BAKER, INGRAM-COURT, FENCHURCH-STREET. M.DCC.LXXXIV.
THE First Division of this Kingdom into
Hundreds
and
Tithings
was ordained by the virtuous and patriotic King Alfred,
See Mr. Lambard's explication of words prefixed to his Archaionomia, on the word
Centuria.
who is expressly said to have therein followed the prudent Council given by Jethro to Moses,
The 1st Establishment of this prudent advice of Jethro I have examined more at large in my Tract on
"the Law of Nature and Principles of Action in Man,"
p. 325 to 329. Wherein I have shewn
the Right of the People
to ELECT Judges and Officers, Civil as well as Military, (Religious Officers and Ministers excepted,) from the
Colonel,
or Captain, of a
Thousand,
(who was also a
justiciary,)
down to the Serjeant (Decurio) or Tithingman; (Deut. i. 9-17.) all which Officers were
elected
and
nominated
by the people before they were invested with Authority by Moses. This
Right of the People
to ELECT
Judges
and
Officers
is clearly confirmed by a parallel Text in the same Book. Chap. xvi. 18.—
JUDGES
and
OFFICERS
shalt thou make thee in all thy Gates, which the Lord thy God giveth thee, throughout thy Tribes, and they shall judge the People with just Judgement.
When this is rendered literally according to the Original, the
popular Right of Election
appears still more manifest.—
Judges and Officers shalt thou give to thyself,
(
) which could no otherwise be than by a
free Election
in all their Gates, (i. e. the Gates of their Cities, where the public Courts were anciently held,) for the
Judges and Officers
to each Tribe respectively.—Let us be truly thankful to God for the
Justice
of his Laws, and let us pray that we may have Grace to adopt them! As far as the nature of our political Establishments will legally permit, let us, for the honour of
Human Nature,
imitate the
glorious State of Political Liberty
with which God was pleased to bless his people ISRAEL; and in which he would, most certainly, have maintained them, if they had persevered in
the right Faith,
and in due obedience to
his Laws!
But, when men forsake GOD, they unavoidably lose their LIBERTY! Let no man conceive that the
Rights of Election,
which I have proved by Scripture, were the Rights only of a
single
Nation, the
People of Israel;
on the contrary, let us remember, that, as
all
Nations under the Christian Dispensation, or rather
all
Nations that are really
Christians,
are said to be engrafted on the
Israelitish
Olive-Tree, and are thereby entitled to the
name
of ISRAEL, so they are undoubtedly entitled likewise to all the immunities and privileges of
redeemed Israel:
for, the only
people,
perhaps, that are
judicially
excluded from those
national
Rights, are the
Branches
which were
broken off from that good Olive-Tree for their unbelief,
i. e. the Jews themselves, who are
broken off,
indeed, for a
time,
(a long
time,
alas, it has now been!) and are dispersed or
strewed
(like
Dead Branches
separated from their proper Root)
amongst all the nations of the Earth;
thus
universally
exhibiting, as it were,
a monumental Proof
of the Scripture Testimonies against that peculiar Nation!
But, under the Christian Dispensation, there is not only the
same reason
for claiming to the
people
the Israelitish privilege of
electing all temporal
JUDGES and OFFICERS; but there are also unquestionable Proofs that the
elective Rights
of
Christian People
are enlarged still farther to the choice of all their
Spiritual Officers;
and
Ministers;
whereas, even in Israel, all
Spiritual Functions
were
hereditary
and not
elective.
Thus are the
Elective Rights
of Christian People exceedingly enlarged; and all persons, who withhold or oppose these just
Rights,
ought to beware lest they be found at last amongst the Enemies of the
King of Righteousness;
for it is remarkable that the
great apostacy,
so long foretold in the Christian Church, could not
manifest itself in power
until the unwearied encroachments and usurpations of
Popes, Emperors,
and
Kings,
had withdrawn from the
Church
(i. e. the
Congregation of Clergy and People
in each Country or District) that
most essential Right
of all others, the ancient usage of
electing their own Bishops!
See a long Note on this Subject beginning at p. 331 of my Tract on the Law of Retribution.
for the more commodious Government of
the Israelitish Commonwealth;
it being, indeed, an Institution thoroughly consistent with the most
perfect state of Liberty
that Human Nature is capable of enjoying, and yet competent nevertheless to fulfil all the necessary purposes of
mutual Defence, the due Execution of all just and equal Laws,
and
the sure maintenance of the public peace.
Wonderful Fruits of Utility would this one Council of Alfred (or rather of Jethro) produce to the Common-Wealth
(says the loyal Mr. Lambard)
if we would no longer use the shadow, but hold the substantial form of the true Tithing
Mirabiles illud unum Aluredi (vel potius Jethronis) concilium allaturum Reipublicae utilitatis fructus, si
verae Decuriae
solidam teneremus imaginem, nec amplius umbra uteremur.
Lambard on the word
Decuria,
or
Tithing.
In the Laws of King Edward the Confessor this mode of
national Defence,
by free popular Societies of Armed Citizens in every District and Vicinage, is called
"Summa et maxima Securitas,"
&c.
Cap. 20.
De Friborgis.
Praeterea est quaedam
summa & maxima Securitas
per quam omnes
statu firmissimo sustinentur,
videlicet, ut unusquisque stabiliat se sub fideiussionis securitate quam Angli vocant Freoborhges, soli tamen Eboracenses dicunt eandem Tienmannatala, quod sonat latine decem hominum numerum.
Haec securitas hoc modo fiebat, scilicet, quod de omnibus villis totius regni sub decennali fideiussione debebant esse universi:
Ita quod si vnus ex decem forisfecerit,
novem ad rectum eum haberent: quod si aufugeret, daretur lege terminus ei.
xxxi. dierum: quesitus interim & inventus, ad justitiam regis
adduceretur. Et de suo illico restauraret damnum quod fecerat.
Et si ad hoc FORISFACERET, de corpore suo iustitia sieret. Sed si infra predictum terminum inveniri non posset, quia in OMNIFRIBORCO
unus
erat
capitalis quem vocabant, Friborgesheofod,
ipse capitalis sumeret duos de melioribus SUI FRIBORGI, et de tribus FRIBORGIS sibi propinquioribus
acciperet de unoquoque capitalem & duos de melioribus uniuscujusque
FRIBORGI si posset habere, & ita se DUODECIMO EXISTENTE purgaret se & FRIBORGUM SUUM (si facere posset) de forisfacto & fuga supradicti malefactoris. Quod si facere non posset,
ipse cum
FRIBORGO SUO damnum restauraret de proprio malefactoris quamdiu duraret, quo deficiente de suo & FRIBORGI SUI perficeret, & erga iustitiam emendaret, secundum quod legaliter eis judicatum fuisset. Tandem vero sacramentum quod non potuerunt
adimplere per tres friborgos sibi viciniores per se ipsos jurarent,
sese nullatenus fore culpabiles, & si quando possent eum recuperare adducerent ad justitiam, aut justitiae dicerent ubi esset.
the Chief and greatest Security by which all men are sustained in the firmest State,
viz. that
every one
(unusquisque)
should establish
himself under the Security of a Covenant
(or Suretyship) "which the English call
Freoborhges,
" (i. e.
free pledges,
)
but the Yorkshiremen alone call
Tienmannatela,
which, expressed in the Latin Tongue, is
Decem
Hominum numerum,
(the number of 10 Men.)
This Security was constituted in the following manner, viz. that ALL PERSONS
(UNIVERSI)
of all the Towns of the whole Kingdom ought to be under a
Decenal Suretyship: so that if one of the Ten should
FORFEIT
[viz. forfeit his
Freepledge
—i. e. his Credit in that little Community as an
honest
and
legal
Member of it,
probus
et
legalis,
(see Magna Charta,) by which estimation alone his Neighbours could so far confide in him as to admit him into their
Tithing,
and had a right to expect from him a return of
mutual security
]
the nine should have him to
(trial of) "RIGHT," (or indict him,)
but, if he should abscond, a term in Law of
31
Days should be allowed him: being sought in the mean while and found, he should be brought to the King's Judgement,
(i. e. to Judgement or Justice in the King's Courts,)
"and there, out of his own"
(property,)
should make good whatever
damage he had done. And, if to this he had forfeited
, (or failed,)
Justice should be done of his body. But if, within the aforesaid term he could not be found, the Chief, or Head, for in every Freeborough
(or Tithing)
there was
one Chief whom they called Freeborough Head
, (Freoborges Heofod i. e. Head-borough or Tithingman,)
should take
2
of the better sort of people of his Freeborough, and also, out of the
3
nearest Freeboroughs, he should take of each one Chief and
2
of the better sort of people if he can have them;
and so, the 12 being convened, he shall clear himself and his Freeborough (if he can do it) of the forfeiture and
slight of the aforesaid Malefactor. Which if he could not do, he with his Freeborough should restore the loss out of the property of the malefactor as long as any should remain, failing which he should complete
(the restitution)
out of his own and that of his Free-borough,
and should satisfy
Justice
according to what should be to them lawfully adjudged,
&c. Thus, all the honest inhabitants of every vicinage, being answerable in their own private fortunes and property for all the damages and depredations of robbers, house-breakers, and other lawless sons of violence, committed within their own respective districts, would, of course, be stimulated, by the urgent spur of private interest, to yield up a small portion of their leisure to the necessary
exercise of arms and training,
for their mutual defence against every act of violence and injustice; and on this ancient provision of the Common Law was apparently founded the
legality
of levying taxes on the inhabitants of London and Middlesex, to make good the
damages
occasioned by the alarming riots in the year 1780. We ought, therefore, by no means to repine at the late judgement of the Courts, whereby the Riot-Tax, to make good the damages, was deemed legal, even before the Act was made for levying it; but, on the contrary, to promote, as much as possible, a still more effectual and complete revival of that most excellent institution of the
Common Law,
that it may be constantly and regularly enforced (even in less and more ordinary cases of robbery, house-breaking, &c.) for the immediate recovery of all
damages
and losses by any
act of violence
whatsoever: the value of the damages should be levyed on
ten housekeepers
that are the nearest inhabitants to the spot where the violence or robbery was committed: and if the 10
nearest housekeepers
should not be able to made good the damage, then 10
times
10
of the nearest house-keepers,
(or the hundred,) ought to be assessed, (and so on, if necessary, to the whole county, for such was the ancient usage by the Common Law,) for the damage; whereby all housekeepers would be prompted by their own private interest to
associate in arms
with their respective neighbours to suppress every act of unjust violence, and to maintain the public peace.
In the various-accounts of these ancient Free-boroughs, or
Tithings,
they are sometimes mentioned, as consisting only of
Ten Men;
at other times, as consisting of
"ten men and their families"
—
They be commonly named
TITHINGS,
because they contain (as I told you) the number of
TENNE MEN WITH THEIR FAMILIES.
Lambard's Duties of Constables, p. 7.
"This frank-pledge"
(says Lord Coke)
consisted
most commonly of
ten households,
&c. 2 Inst. p. 73.
: and therefore as all males, from 15 to 60 years of age, are required by law
to have arms and to be duly exercised therein,
(which in a former Tract I have already proved,) the number of males in a
Tithing
of the latter description would amount to about
thirty,
(the proper number for a platoon,) if the average rate of 3 males to a family might be supposed a just estimation, including sons, lodgers, apprentices, journeymen, porters, and servants; though this must vary in different neighbourhoods, according to the nature of the trades and occupations carried on therein, as some employ
many hands,
and others but very few.
Archbishops, Bishops, Earls, Barons, and other great men, having their own proper officers, Serjeants, Esquires, Butlers, Confectioners, Bakers, &c. (see the 21 law of King Edward,) were supposed to have each a
Free-borough
within their own households, and were therefore not included in the ordinary
Tithings
—
because they were a sufficient assurance for themselves and for their menial servants;
no less than the ten were, one for another, in
the ordinary Dozeins.
—See Cowell's Interpreter on the word
Friburgh.
This due exemption of the great men, from the obligation of entering into the ordinary
Decenaries,
I wish to be particularly noticed, because it may prevent the opposition of some
high-minded
persons who would think themselves degraded, perhaps, by an
universal
establishment of the
Tithings.
On the quotation, last made from Dr. Cowell, it is necessary to remark, that the word
dozeins
is manifestly used for
decenns,
or
decenna,
and so also very frequently by other law writers, but I cannot find that these
legal Societies,
or
Associations
of neighbours, ever consisted of
dozeins
or
dozens,
in the ordinary sense of that term, though they are so very frequently called
dozeins,
merely, I presume, by corruption of speech; so that the etymology of the English word
dozen
is not from
duodecim,
as one would naturally suppose from the modern application of the word, but from
decenna
and
dizaine,
the Latin and French appellations of the
Tithings,
which were regularly
Decenaries,
consisting of
ten men;
or rather
ten men
and their
families,
as I have before remarked. But, in the revival of
Decenaries,
which I wish to promote, the number of persons in each
Free-borough or Decenary,
(whether it shall consist of
ten housekeepers with their families and servants,
or only of
ten men,
) must be determined by the votes of the inhabitants themselves in every neighbourhood, at their several
General Meetings, Folk-motes,
or
Ward-motes;
because the service must be perfectly voluntary; for, though the arrangement of the people into
decenary
companies was actually
ordained by the ancient laws of this realm,
and was (and, I trust, still is) required by the
common law
for the whole kingdom, yet one of the most eminent
common-law
writers of his time (Mr. Wm Lambard) mentions the formation of these
decenary
companies as being
the free act of the people themselves
in every neighbourhood: for, according to him, the ancient usage was, that
all free borne men shoulde
CAST THEMSELVES
into several companies by tenne in eche companie,
&c. (Duties of Constables, &c. p. 7.) and our ancestors could not have had any more urgent inducement, to render this service voluntary, than what the present generation actually feels, viz. the necessity of self-defence against
rioters, thieves, robbers,
and
house-breakers;
for, Mr. Lambard informs us, just before, in the same page, that
it was ordained for the more sure
KEEPING OF THE PEACE,
and for the better repressing of
THIEVES
and
ROBBERS,
that all free-born men should
CAST THEMSELVES
into several companies,
&c.
so that
the
REASON
of this law,
on which
the
FORCE of it should depend, does not only
still
subsist, but is certainly as forcible and urgent as ever it was. And, though this excellent custom was become almost obsolete, through neglect and disuse, so long ago as the reign of
Queen Elizabeth,
yet, even then, it was still considered as a
legal
institution, required by the
common law;
and the renewal of it was recommended as easy and most efficacious for the maintenance of the public peace: "whereof" (says the learned Lambard, speaking of the ancient office of Borsholders, Tithingmen, &c.)
there is yet some shew or remnant in our
LEETS,
or Law Days: but if the
VERY SUBSTANCE THEREOF WERE
throughly performed [as I know no let
(says that learned man, and surely
no let
has since been ordained)
but that by law it may] then should the peace of the land be much better maintained.
(Duties of Constables, &c. p. 9.) There is no doubt but the effects would be as happy and beneficial as when
the Tithings
were first established by Alfred; for, all the old Historians agree, that an entire stop to
all robbery and violence
was immediately effected by this regulation.
In the Chronicon of John Brompton, we are informed, that
although laws in times of war are silent, yet King Alfred, in the midst of the clashing of arms, made laws, and instituted the
Centuries,
which they call
Hundreds,
and the
Decenaries,
which they call
Trithings,
(he should have said
Tithings,
)
maintained peace amongst his own subjects, and chastized
robbers
in such sort, that he commanded golden bracelets to be hung up in the roads, divided into 4 ways, which might brave the avidity of passengers, whilst there was none who durst snatch them away:
See Twisden's Hist. Anglicanae Scriptores Antiqui. P. 818.
Et licet inter arma Leges sileant, ipse tamen
Aluredus
Rex inter fremitus armorum Leges tulit, et
Centurias
quas
Hundredas
dicunt, et
Decurias
quas
Trithingas
(plainly an error for
Tithingas
)
vocant instituit, pacem inter suos custodivit, et
latrones
in tantum castigavit, quod in semitis quae per quadrivium finduntur, armillas aureas jussit suspendi, quae viantium aviditatem arriderent, dum non essent qui eas arriperent.
and Speed also tells us, from William of Malmsbury, that "His kingdom hee" (Alfred)
likewise divided into
Shires, Hundreds,
and
Tithings,
for the better ordering and administring of Justice, and for the abandoning of theeves, which had formerly increased
by the meanes
(the very cause which at present exists)
of long warres;
whereby, notwithstanding the multitude of Souldiers continually imploied, it is reported that a
Virgin
might travaile alone in his daies, through all his dominions, without any violence offered; and that bracelets of gold were hanged in the high waies, and no man so hardy as to take them away.
P. 358.
The
ten
householders or masters of families, from whose precise number of
ten
the numerical appellations of
Decenaries, Tithings,
and
Dozeins,
are manifestly derived, were themselves also individually distinguished by the title of
Deciners,
from the youths, journeymen, lodgers, and servants, that were included, and respectively
pledged
by the
householders
in the several
Decenaries.
A right understanding and due application of the term
Deciner
being necessary, as I conceive, towards the promotion of a great national object at present, the necessary reformation of popular Representation in Parliament; I hope my readers will not think it too tedious to attend a little to the investigation of the word, that we may clear it from the indiscriminate use which some law-writers have made of it.
The Circuit thereof
(says Dr. Cowel in his Interpreter, speaking of
frank-pledge
)
was called
DECENNA,
because it commonly consisted of
TEN HOUSEHOLDS:
and every particular person, thus mutually bound for himself and his neighbours, was called
DECENNIER,
(more commonly, I believe,
Decener,
and afterwards by corruption
Dozener,
)
BECAUSE
he was of one
DECENNA or
other.
—But this reason is not sufficiently accurate.—The
youths, servants,
&c. were all
of one
DECENNA
or other,
yet were they not
Decenners,
though they were also mutually bound by oath for their good behaviour in their respective
Decenaries;
but those men only were properly
Deciners,
who were more immediately responsible for all the rest, by being the
masters
of the several families, viz. only the TEN
householders
in every TITHING, who paid scot and lot, and were answerable for the payment of all
national
as well as
provincial
and
parochial
burthens: these only were the men, who had a
judicial capacity,
and were called altogether by the chief
Freeborg,
or
Headborough,
on all occasions to consult and determine; on every question, or extraordinary business, within the extent of their division. All the individuals of the division indeed were suitors in the
Tithing
Court, and might there be present, (as all courts were open,) and amenable thereto for offences; for the
Decenna
or
Tithing
Courts (however insignificant so confined a jurisdiction as a
Tithing
may appear) were of admirable use in promoting
Justice,
and deciding differences and quarrels amongst neighbours. The learned Author of the Notes on Fortescue, (folio edit. in 1741,) p. 106. speaking of
the Court of the Free-borough
or
Tithing,
adds,
"wherein"
(says he)
the
Tithing-man
or
Headborough
was the JUDGE.
And indeed they are intituled, in the laws of the Confessor, JUSTICIARII, JUSTICES; for such was their jurisdiction and office within their
Tithing.
It is necessary, however, for the proper understanding of the chapter, wherein this is mentioned, to be previously informed, that the Latin noun,
Friborgus,
of the masculine gender, does not properly signify a
Free-Borough, Tithing,
or Association of
ten men,
but rather one individual
Free-Borgess,
of that Society: but, when the Society or Association itself is to be collectively understood, the word is generally, though not always,
As there is an example at the latter end of this very law in question, wherein
Friborgos
in all the copies is expressed instead of the accusative plural of the neuter noun,
Friborga,
though the subject manifestly relates to three Friburgs, or Societies, and not to three individual
Freeburgesses.
expressed in the neuter gender,—
Friborgum,
—as Dr. Cowel rightly expresses in his Interpreter, on the word,
Froborgh,
alias
Fridburgh,
&c.
It is also manifest, by the explanation of titles given by the learned Lambard, that
nine persons
of the Tithing were intituled FREOBORH,
Atque hinc
novem illi
quidem FREOBORH, id est, ingenui fidejussores dicebantur, nos in titulis Curiarum
Francos Plegios
appellamus
Decimus
ille TEOTHUNGMON, id est
Decurio,
dictus est, quo nomine hac nostra est tempestate occidentalibus Anglis notissimus. Eum alii TIENHEOFOD, alii FREOBORHES-HEOFOD, id est, vadem primarium et praecipuum nuncupabant.
Lambard on the word
Centuria.
that is
Free-Sureties; "whom we"
(says Mr. Lambard)
"call frank pledges:"
and that
the tenth man was called
TEOTHUNGMON,
that is,
"DECURIO," (or
Tithingman,
) and that "
others called him
TIENHEOFOD," (head of ten,) and
"others again Freoborhes heofod,"
(Freeburgess-head,)
or
Chief-Pledge.
A comparison of these terms with the terms mentioned in the old laws of St. Edward, No 20 and 32, and the relation these terms bear respectively to each other, will clearly demonstrate that the
Justitiarios super quosque decem Friborgos,
therein mentioned, were no other than
Tithingmen,
the
Heads
or
Chiefs
of each
Decenary,
who in Latin were called
Decani
or
Deans
—and that the
Decem-Friborgos,
32d Law of St. Edward. De
Centurionibus
et
capitalibus Friborgis.
Cum autem contingeret quod quidam stulti et improbi gratis et nimis consuete erga vicinos suos forisfacerent, caeperunt sapientes ad invicem super hoc habere consilium, et statuerunt JUSTICIARIOS super quosque
decem Friborgos,
quos
Decanos
possumus appellare, anglice vero
Tienheofod
dicti sunt, 1.
Decemvir,
caput de decem, &c.
mentioned in that sentence, do not signify—
ten Tithings
or
Boroughs
in their collective capacity, (which would amount to a
Hundred-Court,
) but only ten
individuals,
the
ten Householders
or
Deceners
of the Tithing, each of whom Mr. Lambard calls
"Freoborh,"
or Freeburgess. This being understood, we may safely proceed to speak of the authority of the
Tithingmen
in their respective divisions.—
"These"
A continuation of the 32d Law of 1st Edward, beginning from the end of the last quotation of it.—
Isti inter villas & vicinos causas tractabant, & secundum forisfacturas emendationes capiebant, & concordationes faciebant, videlicet, de pascuis, pratis, messibus, & de litigationibus inter vicinos, & innumerabilibus huiusmodi decertationibus que humanam fragilitatem infestant, & eam incessanter oppugnant. Cum autem causae majores erumpebant, referebantur ad superiores eorum justiciarios quos supradicti sapientes super eos constituerant, scilicet, super decem decanos, qúos possumus dicere centuriones, vel centenarios, eo quod super centum friborgos judicabunt.
(according to the Saxon laws, collected by King Edward the Confessor)
TRIED CAUSES
among the villages and neighbours, and according to conviction
(or forfeiture on trial)
"took satisfaction,"
(or damages,)
and settled agreements, concerning pastures, meadows, harvests, as also litigations between neighbours, and innumerable such like disputes, which infest the weakness of human nature, and continually annoy it. But, when causes of more consequence occurred, they were referred to their superior
JUSTICIARIES,
whom the wise men
(or national council)
had appointed over them, that is, over ten Deans,
"(or
chiefs of tens,
)"
whom we may call
—CENTURIONS or CENTENARII,
(hundreders,)
because they had jurisdiction over
AN HUNDRED FRIBORGS,
i. e. an hundred Freeburgesses or
Deciners
).
Thus, it is manifest, that the
Hundreders,
or
High Constables,
were also
Justiciaries,
so that every
Hundred Householders,
throughout the kingdom, had a complete establishment of
Civil Officers,
(i. e. a High Constable and ten Constables, all of whom were
Justiciaries
within their respective jurisdictions,) to preserve the peace and settle differences amongst themselves and their respective families. And though each, or all of these officers sat as
Judges,
or
Precidents,
in their respective courts, yet their power was duly limited by the opinion and determination of the
Householders,
or
Deciners,
from whom the
Juries
(the real judges of the causes) were regularly chosen, and still are, to this day, in most cities and trading towns, (as in London,) without regard to any other qualification than that of their being
housekeepers
of the vicinage, indifferent to the parties, of unblameable character, and sufficient substance, not to be suspected of undue bias; or, as it is expressed in an old form,—
such as be next neighbours, most sufficient, and least suspicious.
And in the act of 21 Edward I. there is an express clause reserving the ancient rights of
Juries
to
cities
and
burghs.
And, Mr. Hawkins, on mentioning this and another statute, (2 West.) remarks thereupon—
that, neither by common law, nor by these statutes, there was any necessity in proceedings before Justices in Eyre, &c. that
PETIT JURORS
should be
FREEHOLDERS;
and, if so,
(says he,)
it seems probable that there is no greater necessity that
GRAND JURORS,
making an enquiry before them, should be
FREEHOLDERS;
and if a
GRAND JUROR
before such Justices need
NOT
be a
FREEHOLDER,
why should there be a greater necessity that a
GRAND JUROR
before other Justices should be a
FREEHOLDER?
&c. Pleas of the Crown 2d book, chap. 25. p. 217. And he repeats this doctrine in chap. 43. sect. 12.
That, at the common law, there was no necessity that
JURORS
should have
ANY FREEHOLD,
as to inquests before Justices in Eyre, or in cities or burghs,
&c. whereby the
judicial
capacity of the Housekeepers or
Deciners,
without any qualification as
Landholders,
is, I trust, sufficiently established. We are misled also in the sense of the word
Deciner,
when it is applied (as by the learned Cowell) in a peculiar manner to the chief or head of a
Tithing.
—
It signifieth,
(says he,)
in the ancient monuments of the law, such as were wont to have the oversight and check of
TEN FRIBOURGS
for the maintenance of the King's peace.
But the
Chief
of the ten, as I have already shewn, had his proper titles of
Headborough,
and
Tithingman;
and, though each chief was always a
Deciner,
as being himself
one
of the
ten
incorporated
householders,
yet he had no peculiar title of
Deciner,
any otherwise than being the chief of the
Deciners
in his division. The youths, and others, that were
not householders,
were pledged by the
Deciners,
as appears by Briton, cap. 12.—
Volons nous que trestous ceux de xiv ans desouthe nous facent le serement, &c.—et velons que toutz soient en
Dizeyne,
et pleuys par
Descyners,
sauve gentz de religion, clers et chevaliers, et leur fitz eynes, et femes.
—
We will that all those which are fourteen years old shall make oath to us,
&c.
and that all shall be in
TITHINGS,
and pledged by Deciners,
&c. The law could not mean that
all
should be pledged by the respective Headboroughs alone, but, certainly, by the TEN
householders
of each
Decenary.
And Dr. Cowell himself also, in the latter part of that article, says,—
that
DECENNIER
is not now used for the chief man of a
DOZEN,
but for him that is sworne to the King's peace;
neither in this is he sufficiently accurate; for the being
sworn to the King's peace
did not constitute a
Decener,
in the proper sense of the word, though it included the person sworn in the jurisdiction of a
Decenary.
The title of
Deciner
could not properly belong to any but the
ten
householders themselves, from whose
number
his division was formerly called
Tienmantale,
id est, (says Mr. Lambard,)
Decemvirale collegium,
—a
society of ten men. Nine
of these, as Mr. Lambard declares, were called
Freoborh, (Free Burgess,)
i. e.
free pledges,
and the tenth was called Teothungmon, (Tithingman,) i. e.
Decurio.
Now, it seems the office and title of
Decurio
was used in Britain, long before the Saxon Kings, by the Romans, as well in their
civil
as their
military
establishments: and the learned author of the notes on the folio edition of Fortescue's excellent tract,
de Laudibus Legum Angliae,
observes in p. 31.—
that the
ROMANS
had their laws, in such parts of this land, as they had their most civil government in; I mean,
(says he,)
in colonies hither deduced. For every colony was but an image of the mother city, with like holy rites, like courts, laws,
&c.
and for the most part with
DUUMVIRI
instead of Consuls, and
AEDILES
and
DECURIONES
in lieu of a Senate: and it is clear
(says he)
that divers colonies from Rome were in Britain, as at Camelodunum, now Malden in Essex,
&c.
The consideration of this circumstance enables us to propose a much more probable etymology of the English word
Denizen
than what is generally assigned. Lord Coke supposes it from
deins nee, born within;
and also from
Donaison,
because the freedom
is given by the King.
But a learned writer (Davies) asserts, that
Denizen is a British law term, which the Saxons and Angles found here and retained.
It could not, therefore, be derived from the
French
tongue, before that modern language was known, or even formed.
Neither is the
Welch
etymology of it at all satisfactory, because it seems very uncouth, and not sufficiently similar in sound to the word. But, if we derive the word immediately from the
Latin,
it will appear most natural and easy, both in
sound
and
sense;
for, the word
Deni,
being derived
à Decem pro Deceni,
is a proper adjective expressive of its relation to the number of
ten
persons in a
Decenary;
and, as the Romans had their
Decuriones,
and consequently
Decenaries
also, a proper
Latin
verb to express the initiation or introduction of a person to the privileges and franchises of a
Decenary,
is very naturally formed from the word
Deni,
viz.
Denizo,
which verb and its derivatives are frequently used by our law-writers, when they speak of the admission of
Aliens
to the franchises of the native inhabitants; and, the said
franchises
being maintained in ancient times by mutual
frank-pledge
in the several
Decenaries,
it is obvious, that the participle
"Denizatus,"
which frequently occurs, and the derived noun-substantive
"Denizatio,"
are applied in such cases in their proper
Latin
sense; though the law-writers, who used them, have overlooked that most obvious etymology, which is confirmed by the
sound
as well as the true
Latin sense
of those terms.
Lord Coke says
Denizen
is taken for an alien born, that is
infranchised,
or DENIZATED by Letters Patent, whereby the King doth grant unto him, that in all things he should be reputed, esteemed, held, and governed, as our liege subject, sprung up
(from his ancestors)
within our said kingdom of England, and not otherwise, nor in any other manner.
And he cites Dier, in the same page, 1 Inst. lib. 2. p. 129. respecting this
ligeance
of
Denizens,
Ligentia Domino Regi debita, &c. Data (est) aut per
denizationem,
aut
per naturalizationem.
—When foreigners, therefore, were admitted to the privileges and franchises of Englishmen, they became the King's
liege
subjects,—
esse ad fidem Regi Angliae,
and were of course
denizated,
or admitted to be members of some
Decenary,
and would be sworn to their ligeance in common with other subjects in the court of
frank-pledge;
and if the
denizated
stranger rented a house, and payed scot and lot, and other rates, he became a
Frioborh,
or
Freeburgess,
having a right to vote for Representatives in
the national Council:
so that Lord Coke was certainly right in using the terms
infranchised,
and
denizatus,
as synonymous: for the
renting of a house, at a certain rent, by the year,
is the ancient legal description of
burgage tenure. "It is called
BURGH," (says Sir Edward Coke,)
because it sendeth
BURGESSES
to Parliament.
And, though this is not the proper derivation of the word, it is certainly the
usage
of
borough,
and as well as the
right of all Burgesses.
"They that have tenements"
(says Littleton)
within the Burrough (or Burgh) hold of the King their tenements, and every tenant for his tenement ought to pay to the King
A CERTAIN RENT BY THE YEAR.
— 1 Inst. lib. 2. c. 10. sect. 162. The next section declares the same doctrine, concerning those who
rent
of any other Lord.
And the same manner is, where another Lord spiritual or temporal is Lord of such a
BURROUGH,
and the
TENANTS OF THE TENEMENTS
in such a Borough, hold of their Lord,
TO PAY EACH OF THEM YEARLY AN ANNUAL RENT.
Sect. 163.
And it is called
TENURE IN BURGAGE,
(says Littleton,)
for that the tenements within the Burrough be
HOLDEN OF THE LORD OF THE BURROUGH BY CERTAINE RENT, &c.
And it is, to wit, that the ancient townes, called
BURROUGHES, BE THE MOST ANCIENT TOWNES THAT BE IN ENGLAND;
for the townes, that now be
CITIES OR COUNTIES,
in old time were
BOROUGHES, and
called
BOROUGHES,
for of such old townes, called
BOROUGHES, CAME THE BURGESSES OF THE PARLIAMENT,
when the King hath summoned his Parliament.
Sect. 164.
Now, this description of paying
an annual rent,
or
holding tenements by certain rent by the year,
is the proper distinction of a tenant
in Burgage
from a
tenant at will,
because the latter
"hath no certain nor sure estate,"
(says Littleton,)
for the Lessor may put him out at what time it pleaseth him.
Lib. 1. c. viii. § 68. But very different is the case of
tenants for years,
(as Littleton remarks in the same Chapter,
Otherwise it is if tenant for yeares, which knoweth the end of his terme, doth sowe the land,
&c.
Ibid.
) and those persons who agree with the owners of their houses at a
certain rent,
howsoever small, for any
fixed time,
if it be but for
half a year,
or even for a
quarter of a year,
are nevertheless to be esteemed in law as
tenants for years,
(
quod tenent ad terminum annorum.
Lib. 1. C. 7. Sect. 67.) For they enjoy a free and
certain
possession to the end of the
agreed term,
so that their
tenure is perfectly free;
and they have sometimes been intituled
"Liberi Tenentes,"
and
Freeholders,
in contradistinction to
tenants in villanage,
though they are indeed
freholders
in a very different sense from the common acceptation of the term
freeholder,
now applied only to those who are properly
land owners;
which would therefore be a less equivocal title for them; the others being also
freeholders,
or
free tenants,
though in a less durable
tenure.
But, their ancient indisputable RIGHT, of
sending Burgesses to Parliament,
proves their
freedom,
as members of the community. In the
Borough
of Southwark, and many others to this day,
the renters
of tenements, or
housekeepers in general,
paying scot and lot, are the Electors of the Deputies to Parliament; so that the doctrine is unquestionable. And, in the City of Westminster, and several other ancient cities, the same RIGHT, by
burgage tenure,
of voting for Representatives, prevails to this day; because,
all Cities
were originally deemed.
Boroughs,
as being the habitations of
freo-borges,
or
free pledges,
i. e. the associated
householders,
who were mutually
pledged
to maintain the public peace, and defend and support the due execution of the laws: and, if the right of voting were fully restored, throughout the kingdom, to all
householders,
or
masters of families,
who principally support the burthens of the state, even if the franchise should descend no lower, it would be amply sufficient, I trust, to destroy the present deplorable corruption in the representation, or rather the
mis-representation,
of the Commons, and to restore the ancient dignity and freedom of Parliament; especially if all the said
householders
were duly incorporated as
Deciners
or
Free-Borhes,
in their respective neighbourhoods.
For then the number of
Deciners
or
Freeholders
in each county would be regularly known, howsoever much the numbers of other males in the several
Tithings
might vary; and the advantage of this
regularity of numbers
would not only be the effecting a proportionable
regularity of manners,
but it would also greatly facilitate the much wished-for measure of a
more equal representation of the people;
nay, the representation may be made not only
more equal,
but
most equal
or
perfectly equal,
if all
Deciners
in each county were allowed to vote, as unquestionably, in justice and constitutional right, they ought to do: for, the junction of ten
equal
hundreds of
Deciners
into one associated body would form the court of the
thousand,
well known in the Israelitish commonwealth; which, considered as a proportionable
division
of a county, perfectly regular in numerical order, both of Officers and other
Deciners,
would much facilitate the conducting and ordering of public business. And
two
such divisions, of
a thousand Deciners each,
would be a proper number to send
one Deputy
to Parliament, according to the present population of the kingdom, so as not to exceed, but rather diminish, the present number of representatives. Thus, a
most equal representation of all the families in the kingdom
would be obtained; and
two thousand
families (one with another) might well afford to pay ample wages to
one
Representative; and the stipend might be very easily collected, if the
Decenaries
were duly formed and established, and the several courts, which regularly arise from the
Decenaries,
viz. the
Hundred
Courts, and also the Courts of
one Thousand
families each, above proposed; and lastly, the junction of
two
such
Courts of the Thousand,
for the election of
one
Representative in the great Common Council of the Realm. The people, of whatever parties, or separate interests, might go up altogether with their separate
Tithings,
or by their
Hundreds,
to the Poll Books, (in like manner as the ancient Romans voted by their
Centuries,
) by which means
order
would be preserved, and no persons would be permitted to vote, but those that were
known
to
dwell
and
reside
in the place, or county, where the election is made, according to an ancient rule of the constitution;
eligantur in quolibet comitatu per homines in eodem comitatu commorantes et residentes:
See my Tract on
Equitable Representation,
&c. p. 26 and 27; and also an Act of Parliament there quoted, which is still in force, 1 Hen. V. c. 1. It is therefore an act of gross corruption, utterly repugnant to the ancient constitution of the kingdom, to bear
the travelling charges of voters
who dwell in distant places; for such ought not to be permitted to vote at all, except on the spot where they reside, by which not only
much expence
would be saved to the Candidates, but also much immorality, debauchery, and tumult, against the public peace at elections,
Extract, respecting
Bribery at Elections
from
A Representation of the Injustice and dangerous Tendency of
tolerating Slavery
in England.
Printed in 1769. P. 16. to 18.
"But how is he" (a Negro claimed by a
Slaveholder
as private property) "to be divested of his
human nature?
or of his just right to the King's protection?
"A man may, indeed, be said to be divested of his
humanity,
1st, in a moral sense, by his own action, in stooping to any kind of baseness beneath the dignity of a
man.
And, 2dly, by the execution of the laws, in punishment of some particular kinds of baseness, for which a man may
lawfully
be divested of his humanity by a
civil death:
that is, may be
disabled to hold any office or franchise,
&c.
as if such person was naturally dead.
This is one of the penalties expressed in a Statute (2 Geo. II. ch. 24.) against bribery and corruption in Parliamentary Elections, whereby, not less the
Briber
than the
Bribed,
(whether the offence be committed
by himself or any person employed by him
) is subjected to the divesture abovementioned. But the vilest and most ignorant Negro Slaves are not so
inhumanly
base and degenerate as these Timeservers, who offend against God! the King! their friends and fellow subjects! themselves! and all their unhappy posterity, even the children that are unborn! They are enemies to the State, infinitely more to be dreaded, than the most puissant foreign power at open war!
"No shuffling arts or equivocations whatsoever can lighten this monstrous load of guilt, for which the offenders must
one day
most certainly be called to account, notwithstanding that they may have escaped the penalties of this English Statute: for indeed it is merely the penalties (or execution) of the said Statute which they escape and not the guilt of breaking it; because the same is so warily drawn up, that there is not the least room for mental reservation.
"A very large proportion of the freeholders in this kingdom, it is to be feared, are involved in this horrid guilt! Nay every elector who hath but even EATEN or DRUNK at the expence of another, during the time of an election, is likewise in some measure guilty! (though charity will incline us to suppose that their offence is, for the most part, occasioned by ignorance, rather than wilful corruption;) for, not only money, but also any
Gift, Office, Imployment, or OTHER REWARD WHATSOEVER
is forbid by the said Act. Now this prohibition must necessarily include
meat
and
drink,
since these articles cannot be considered below the estimation of a "REWARD," because they are expresly prohibited by a preceding Act still in force, (viz. 7 W. III. ch. 4.) whereby those Candidates, who shall
directly
or
indirectly
give, present, or allow, to any person or persons, having voice or vote in such election, any money, MEAT, DRINK, ENTERTAINMENT, or PROVISION, &c. are rendered incapable (though elected)
to act, sit, or have any vote or place in parliament,
&c.
Happy would it be for England, if this salutary law could be strictly enforced! Bribes in money, places, &c. are not productive of half so much evil as the debaucheries of
election entertainments,
because the pernicious effects of the latter are so permanent, that they may fairly be said to be transmitted from
election
to
election.
The gross immorality, as well as the deplorable idleness and poverty, (all forerunners of slavery) which too much prevail in many parts of this kingdom ought, (I sincerely believe) to be principally attributed to the unlawful practice of
opening houses for public entertainment at elections:
and we cannot hope that this dangerous evil will ever be corrected, unless the wisdom of the legislature shall hereafter think fit to oblige every candidate (as soon as he declares himself such) to promise, upon oath, that he will strictly observe every article of the last mentioned Act, against treating electors. This long digression, from the subject of Negro Slaves, the author hopes may be pardoned, especially if the reader will please to consider, that civil and political Slavery, as well as Slavery to sensual appetites, are so very nearly connected with each other, in their nature and effects, that it is no very considerable transition from the present point to speak of them together. But the case of this poor Negro is very different. If he is a Slave, yet it was not with his own consent that he was made so. He neither
sold himself,
nor has he
betrayed others,
and cannot therefore be liable to such severe penalties. He has not been guilty of any offences, that I know of, for which he might
lawfully
(like corrupt and venal voters who accept of money, meat, or drink, at elections)
be divested of his humanity;
and therefore it must certainly be allowed, that he differs from a horse or a dog in this very
essential point,
viz.
his humanity."
would be prevented.
The number of houses in England and Wales, in the year 1777, fell short of a million, as the reader may see by a much better authority than mine is, that of the very able and ingenious calculator Dr. Price.
See—Observations on the Population of England and Wales, p. 11.
Total of houses charged, chargeable, and excused. In 1761, 980, 692.—In 1777, 952,734.
But, for the sake of a round number,
"Let it, however,"
says Dr. Price,
"be stated at a million,"
(p. 14.) The number of
Deciners,
or
Householders,
we may, therefore, also state at
one million:
for the character of
Householder,
without farther
distinction,
happily includes all persons of every
rank
and
denomination
that ought, in
strict justice,
and ancient prescription of constitutional
right,
to elect and send their own Representatives to Parliament, whether as
Knights, Citizens,
or
Burgesses.
The million of
Householders
would form exactly ONE THOUSAND divisions of
one thousand Householders
each, viz. 1000
Courts of the Thousand,
which I have before recommended from ancient example: and the junction of
two
such
Courts of the Thousand,
for the election of
one
Member of Parliament, as before proposed, would form 500 Courts of
two thousand Householders
each, which would elect
five hundred Representatives
for South Britain; a proportion sufficiently near to the number 513, at present elected for that part of the kingdom; because a reduction in number, would, perhaps, be more beneficial than otherwise; for certain it is, that the ancient Parliaments were not near so numerous as at present, even without reckoning the Deputies from North Britain.
This plan would indeed occasion some variation in modes and forms, but no real
innovation
with respect to the national constitution; because the
right of election
would still be vested where it ought, viz. in ALL
the free Householders,
or Freo-borges, of ALL
the counties;
and that, in the most
perfect proportion of equality
that can be desired; which ought surely to recommend the proposal, if
equal representation
is at all a worthy object,—if
justice
and
right
are to be preferred to their opposite extremes,
in-equity
or iniquity, and
tort,
which have too long prevailed;—or lastly, if we have honesty or humanity enough left amongst us, in the fear of God, to
reject the evil and choose the good,
i. e. to exercise that only faculty, which materially distinguishes men from brutes!
Should we ever be so happy as to see the true divisions of
Tithings
and
Hundreds,
re-established in this realm, and the just reformation of Parliament (as here proposed to be effected by them) actually take place by the establishment of
equal representation,
numerically exact, (which it really may be, if we have but
common honesty
enough amongst us to
desire
and
promote
it,) there will be an admirable harmony in the several gradations and proportions of public officers, or magistrates, over the
Commons of England and Wales,
according to the present supposed state of population: viz.
Deciners
or
Householders,
paying scot and lot, and mutually pledging each other and their respective
families
and servants to the common peace and common desence 1,000,000
Tithingmen
or
Captains
of
Tens,
the elected heads of every ten Deciners, being
Constables
by the common law 100,000
Hundreders,
the elected chiefs of every ten Tithings, being
High-Constables,
and
Justiciaries,
or
Justices,
by the common law 10,000
Chiliarchs,
or
Colonels,
the elected
Chiefs of Thousands,
being not only
Civil Magistrates,
or
Justices,
but also the King's military Lieutenants in their districts 1,000
Senators,
or
Representatives,
in Parliament elected
every year once, and more often if need be,
in 500 courts of 2000 Deciners each 500
But the facility of
equalizing,
and thereby
reforming, the representation of the people
in the great national Council, is not the only benefit that might be obtained by restoring the ancient mode of government by
Tithings, Hundreds,
&c.
In all these various divisions of the people, regular courts were anciently held for the maintenance of
peace
and
right,
and for adjusting all differences amongst neighbours,
without expence;
for, there was no cause or contest of such magnitude and importance, for which a popular court of proportionable dignity could not be found in the larger divisions of Wappentakes, Trithings, and Shires, to adjust and determine it; whereby tedious and vexatious lawsuits, and the ruinous expences attending them, were happily avoided. In like manner,
the general Assemblies,
or
Congregations,
held in the gates of the Israelites, while under the theocracy, were esteemed
courts for justice and judgement;
wherein presided
Judges and Officers, that were freely elected
by the inhabitants of each city or district, as I have elsewhere shewn (see p. 3-5.); and the same reasonable mode of settling private differences, by the
Congregation,
(or Church,) was not unknown, even among Heathen Nations. The people of Ephesus, it seems, retained this salutary constitution of popular liberty, even when under the yoke of the Roman
Beast;
and had a power of holding popular assemblies, (called
Ecclesia,
or Church,) for resolving difficult questions and disputes between individuals, besides the ordinary Courts of Justice, under the
Roman Deputies,
for common offences. This appears by the speech of the Town Clerk of Ephesus, (recorded in Acts xix. 37-39.) who, after he had appeased the tumult and confusion of the people, that had hastily run together, without notice or summons to specify the cause of assembling; he said—
Ye have brought hither these men,
(meaning two of Paul's companions whom they had seized,)
which are neither robbers of Churches, nor yet blasphemers of your Goddess. Wherefore, if Demetrius, and the craftsmen which are with him, have a matter against any man,
THE LAW IS OPEN,
(or rather—the court-days are held,)
and there are
DEPUTIES:
let them implead one another. But if ye enquire any thing concerning
OTHER MATTERS,
it shall be determined in a
LAWFUL ASSEMBLY,
, in a lawful
Ecclesia,
i.e. in a
congregation convocated,
or called together, in due form and order, by the proper officers; this having been neglected in the then last hasty and tumultuous assembling of the people, which occasioned the Ephesian Town-Clerk's harangue. So perfectly unexceptionable is this mode of determining private quarrels and contests, without expence, by a
popular assembly,
that it seems clearly to be pointed out
for the practice of Christians,
in the commands even of OUR LORD HIMSELF, on the case of a trespassing brother. Mat. xviii. 15-17.
Go and tell him his fault
(said our Lord)
between thee and him alone: if he shall hear thee, thou hast gained thy brother. But, if he will not hear, take with thee one or two more,
&c.—
And, if he shall neglect to hear them,
—
, "
tell unto
THE CHURCH," (not unto the
Prelate of the Church,
as Popish writers contend, therein grossly perverting
So deluded and unguarded has the Roman Church been in her
apostacy,
that a very learned Jesuit, Cornelius à Lapide, was not ashamed to suppose
various causes wherein this order
of redress, commanded in this text, "
might be omitted, or
INVERTED" (he might as well have said at once PERVERTED.)—
Porrò varias ob causas
HIC ORDO OMITTI
vel
INVERTI
potest, ac suhinde debet, ut is, qui peccavit, statim deferatur
AD SUPERIOREM,
&c. which, being no part of the
order
enjoined by Christ, is a manifest PERVERSION of the command, a glaring attempt to
render the word of God of none effect, by vain traditions,
for which he had no better authority than a bare reference to some of his own order, one
Salmeron,
&c.
the divine command by their vain traditions,) but,
"unto the congregation,"
including the Laity as well as Clergy. And the Apostle Paul reproved the Corinthians, for carrying their contests about worldly matters (
, things pertaining to this life) before the
established imperial Courts of Justice, where unbelievers presided;
which contests ought to have been judged amongst themselves by the
Congregation of Christian Brethren,
(1 Cor. vi. 1-6.) But, after
the general establishment of Christianity,
in this or any other nation, the several popular Courts of the
Tithings,
or
Hundreds,
or
Thousands,
or
Counties,
duly convened, are the proper
Congregations of Christian Brethren
for every neighbourhood: and, in ancient times, all those courts, where the sheriffs held their
Tourns,
(or
rotulary
visitations,) took cognizance not only of
,
worldly matters,
but also more especially of
Ecclesiastical Cases,
as being the FIRST,
Agantur itaque PRIMO
debita verae Christianitatis Jura: Secundo
Regis placita: POSTREMO causae singulorum dignis satisfactionibus expleantur.
4 Inst. p. 260.
or most important objects of their attention: for thus the order of cases, falling under their cognizance, is stated (as Lord Coke informs us, 4 Inst. p. 259 and 260) in
the Red-Book, inter Leges
H. I. cap. 8.
de generalibus placitis comitatuum, i.e.
(says
he) "
as well of the
TOURN" (before-mentioned)
"as of the County Courts,"
viz.
Let the due laws of true Christianity be
FIRST
discussed;
secondly, the pleas of the King; lastly, let the causes of individuals be dispatched with suitable redress,
(or "satisfactions").
The
Bishops,
Sir Edward Coke, by a citation from the Red Book in the custody of the King's Remembrancer, composed in the time of Henry I. proves that the
Bishops
were then required to be present in popular courts of common law. He refers us to the 8th chap.
de generalibus placitis comitatuum,
which he interprets
as well of the tourn as of the county court.
Sicut antiqua fuerit institutione firmatum, salutari Regis imperio, vera nuper est recordantione firmatum, GENERALIA COMITATUUM PLACITA
certis locis, et vicibus et definito tempore per
singulas Angliae provincias convenire debere, nec ullis ultra fatigationibus agitari, nisi propria Regis necessitas, vel commune Regnicommodum, saepius adjiciant. INTERSINT
autem
EPISCOPI, comites, vicedomini, Vicarii,
Centenarii,
Aldermanni, Praefecti, Praepositi, Barones, Vavasores, Tungrevii,
(Recorders of towns,)
et caeteri terrarum Domini diligenter intendentes ne malorum impunitas aut gravionum pravitas,
(
the corruption of Magistrates,
more particularly of the
Judges of the Exchequer,
who were
Graviones,
)
vel judicum subversio solita miseros laceratione confiniant.
Agantur itaque
PRIMO
debita verae Christianitatis jura;
SECUNDO
Regis placita;
POSTREMO
causae singulorum dignis satisfactionibus expleantur.
—"Whereupon they conclude," (says Sir E. Coke,)
THAT ECCLESIASTICAL CAUSES were handled in the
tourn,
in the reign of Henry I. LONG AFTER
the said supposed charter.
(a charter to extend the tyrannical papal authority, which was not enrolled till
"the second Richard II. being never heard of before,"
though pretended, by the forgers of it, to have been granted by William the Conqueror,)
And certain it is,
(continues Sir E. Coke,)
that the Bishops Consistories were erected, and the causes ecclesiastical removed from the
TOURN to the Consistory, AFTER
the
making of the said Red Book: Ideo penes lectorem sit judicium.
4 Inst. c. 53. p. 200.
as well as the Earls, Lord-Lieutenants, Sheriffs,
Hundreders,
Aldermen, Mayors, Magistrates, &c. presided in these ancient
Courts of the Congregation,
whereby they were enabled to enforce the said
"due laws of true Christianity,"
against all offenders (whether
Clergy
or
Laity,
) through the united
power of the Congregation,
which regularly assembled at certain fixed
places,
and at stated
times;
Viz. in the reign of Henry I. the County Court was assembled
twice,
and the Hundreds and Wapentachs
twelve times,
in a year.—
Debet enim Shiresgemot
his,
Hundreda et Wapentachia
duodecies, in anno,
CONGREGARI.
4 Inst. c. 53. p. 260. These Courts, in their different degrees of importance, proportionable to the magnitude of all questions to be discussed, were the proper
Courts of the Congregation,
to decide according to
the due laws of true Christianity
before-mentioned.
the united power of
many
being sufficiently effectual to resist and humble the most audacious
individuals,
howsoever great and opulent: whereas, at present, the most bare-faced enormities of
immorality
and
irreligion
are beyond the reach of
ecclesiastical
correction: the
episcopal Authority
(and more especially that which ought to restrain the
Laity
) being reduced almost to nothing, through the fallacious enervating innovations and usurpations of the
antichristian church of Rome,
the grand enemy
The inimical spirit of
Popery
against the true Christian
Episcopacy
began very early to be manifested, for the
Apostacy
could not generally take place (as I have before remarked) until the
Clergy and People
were deprived of their ancient
right of electing their own Bishops,
so that a violent usurpation of that
right
must of course be found amongst the
first innovations of antichrist.
A remarkable instance of it by POPE GREGORY THE FIRST, in the year 591, I find recorded even by a
popish
Abbot, who appeals to
Gregory's
own epistles and decretals for the truth of it; so that the
apostacy
was certainly at that time begun; for, though Gregory himself is too commonly esteemed a good primitive
Bishop,
yet his Church had then, for
several years
back, received the brand mark of the
growing apostacy,
by permitting their Bishops to revive the
wounded head
of Roman power, by assuming the Pagan Title of
Pontifex Maximus,
which the Emperors of Rome
alone
had exclusively held from the time of Julius Caesar, down at least to Valentinian the Third, to whom it may be traced, if not to Augustulus, till it became extinct or dead with the power of the last Emperor of the Western branch: so that
Pontifex Maximus
was manifestly the
head,
that was, as it were, wounded to death by a sword,
—viz. the sword of Odoacer, who then took possession of
"the seat of the Dragon,"
and set up an independent
kingdom
in ROME itself, without the peculiar title of UNLIMITED ROMAN dominion; so that afterwards when
the Bishops of Rome,
by assuming that title, did actually revive that blasphemous head,
his deadly wound was healed, and all the world wondered after the Beast;"
and well might they
wonder,
because the title of
Pontifex Maximus,
is not less foreign to the primitive church of Christ than it had been
peculiar
to the head of the
Roman
idolatrous
Augurs,
on account of a
ridiculous
and
strange
kind of ceremony in the inauguration of the elected PONTIFF;
La Consecratione di questo PONTEFICE e tanto
ridicula et strana,
che ella merita d'essere tutta interamente dimostrata nel medesimo modo che l'ha scritta Prudentio: il quale dice che questo PONTEFICZ nel suo habito
Pontificale,
con
la mitera
(and it was a
mitre
of the same shape as those worn by the modern
Pontifs,
except that it was not then
marked
with the ominous insignia of
three crowns;
and the
spike
at the top, as represented in a coin of Augustus Caesar, was not yet converted into
a cross,
)
in testa, et la veste alzata
entravia in una fossa, supra la quale era un
PONTE
di legno tutto buccato,
(so that the name of
Pontifex
is manifestly derived from this
wooden Pons
or Bridge, bored full of holes,)
dove dal vittimario era condotto un toro ornato tutto di fiori et d'oro intorno al capo, che il detro conduttore feriva nel petto, et del
Sangue
cosi caldo che n'usciva et trapelava
per i buscbi del
PONTE,
cra il detto
PONTEFICE tutto imbrattato confregarse ne gl' occhi, gl'orecchi, le labia, et la bocca, et cosi uscendo fuora cosi sporcho et brutto, et
molto terribile a riguardare,
era da tutto il populo salutato et ADORATO, &c.
Discorso della Religione de gl'antichi Romani. Composto in Franzese dal S.
Guglielmo Choul,
—et tradotto in Toscano da M.
Gabriel Simeoni
Fiorentino in Lione, 1569. P. 236.
whom they placed in his pontifical robes under a wooden PONS, or bridge, built for that purpose over a dry ditch, and bored full of holes, that the blood of the victim (a bull sacrificed to Jupiter on the top of the bridge) might fall through the holes upon the head and robes of the PONTIFF, whereby that
Vicar of Satan on earth
was rendered
"terrible to behold,"
that he might be
"saluted,"
(most "probably on the FEET,) "
and
ADORED
by the people:
" whereby the ancient Pagan
Pontifs
were notable types as well of the
bloody
Roman Emperors, who afterwards usurped to themselves the
pontifical
dignity and office, and were likwise ADORED and
deified,
as of the still
more bloody,
though ADORED,
ecclesiastical
Apostates, who, under the
same title,
and authority, of
Pontifex Maximus,
drenched all Europe in
blood,
by ordering
crusadoes
even
against Christians,
and inciting their votaries to
blood,
by grants of plenary indulgences for sin!
This true etymology of the word
Pontifex
proves that it is
foreign
and inapplicable to any office or dignity in the
Church of Christ;
though Latin writers, since the middle of the sixth century, have industriously substituted it for
Episcopus,
the proper official title of
Christian Bishops.
Near twenty years after the time that the
Roman
Emperors lost this title of
unlimited
and
illegal
power by the
sword
of ODOACER, it was wickedly assumed by Pope
Gelasius,
and afterwards by Anastasius the second, and other succeeding Popes, as the learned
Anthony Van Dale
has proved in the second of his nine Dissertations, p. 192. Nevertheless,
the wounded head
could not be said to be completely
healed,
(and consequently the commencement of 1260 years of
bestial
power could not take place,) whilst the
regal
power of the
Heruli,
of the Gothes, or of the Greek Emperor, by his Exarchs, were possessed of
the throne of the Beast.
But,
before
the time of Pope Gregory, three of the first national regal governments, or horns, (without reckoning the government of the
Greek
Emperors, which does not so properly fall under that description, because it was cotemporary with the
former
empire,) which sprang up from the ruins of the
Imperial Pontifex Maximus,
had actually possessed themselves of the
imperial
city by
conquest,
and again had successively lost their dominion, being fundamentally destroyed, and
"plucked up by the roots,"
viz. the kingdom of the Vandals, from Africa under Genseric, that of the Heruli under Odoacer, and that of the Ostrogoths, from Theodoric to Tottilas and Theias. And, as soon as these
three horns were fallen
from their power in the
bloody city,
Pope
Pelagius
(a name which signifies DIVISION, as much as the name of the ancient
Peleg
or
Phalec, "for in his days was the earth divided,"
) was emboldened publicly to avow and establish a system of
religious persecution
and
compulsion,
in order to give effectual weight to papal decisions; for he ordained,
that Haeretics and Schismatics might be coerced by the
SECULAR ARM,
when they could not be drawn to wholesome doctrine by arguments.
—
Ut haeretici et schismatici coerceri etiam SECULARI MANU possent: quando ad sanitatem rationibus non deducerentur.
(Platinae hist. de vitis pontificum, p. xxxiii. b.) And Pope Gregory was so confident in this
pontifical
system of the SECULAR ARM, (as well as all his successors, who have generally been adroit in engaging the neighbouring powers to avenge the
Papal
quarrels, occasionally, one upon another,) that he was not content merely to
rebuke,
but dared even to
affront,
the Greek Emperor
Mauricius,
by contumeliously
taunting
him with his
very low descent, ex infima sorte "hominum,"
said Gregory. See Platinae hist p. xxxv.
We need not wonder, therefore, at his boldness, in usurping an
unlimited
authority over the poor
unarmed
Italian BISHOPS, (who were otherwise his equals in real dignity of office,) deposing them
according to his will,
(a manifest token of the Beast,) and openly violating the most sacred
rights
of the Italian CLERGY, AND PEOPLE, in their
episcopal
elections, that he might fill the Italian sees with
Monkish
Prelates, who would be more attached to the growing power than
married Bishops,
such as were, for the most part, those of the primitive Church. But the particular instance, which I proposed to mention, was at Rimini, in the year 591, where, on the death of a Bishop, Gregory sent a legate to interfere in the
election;
and one Odeatinus, a nobleman, being nevertheless
elected
Bishop, the
Pontif was pleased
(PLACUISSET PONTIFICI) to command them, on pain of
pontifical censure,
to place
another person
in the see. The man
elected
and
consecrated
for this purpose by Gregory was Castorius, who, not being
elected
by the people of Rimini, was of course thwarted by them, and suffered many things by PARTY OPPOSITION, the very evil which Gregory pretended to avoid by his MOST PARTIAL
corruption
of the election,
ne illam, i. e.
electionem,
STUDIA PARTIUM
corrumperent,
for that was his plea for interference. Besides this opposition, Castorius was grievously afflicted with a distemper in his head, on account of which he was invited by the
Pontif
to change the air and visit him at Rome; but, being even there no better, he requested the Pontif that a Pastor might be sent to his church, who could better promote the divine service; and, when the Pontif's hope of Castorius's recovery by the Roman air abated, he administered the charge of the church of Rimini by Leontius, Bishop of Urbin, (a second usurpation,) who was also a Bishop of
his own
appointment. In the mean while the sick
Castorius
urged the Pontif with his entreaties; and at length prevailed on him to grant "POWER TO THE CLERGY AND PEOPLE" of Rimini to
"elect a Bishop for themselves,"
(i. e. to be re-instated in their ancient
right,
)
which was done
in the year
595,
as may easily be known
(says my author)
from the Epistles of Gregory the Great;
and he refers us to the
decretals,
where the whole affair (says he) is related. See Italia sacra, sive de Episcopis Italiae, &c. Autore D. Ferdinando Ughello Florentino ABBATE S S. Vincentii, et Anastasii ad aquas Salvias Ordinis Citerciensis, et Sacrae Indicis Congregationis Consultore. Tom. II. P. 418. Published
permissu superiorum.
to the true
limited Episcopacy.
For, the
Popish Bishops,
by continually grasping at
undue power,
at length obtained in England a removal of all ecclesiastical causes, and religious questions, respecting
morality
as well as
doctrine,
from the cognizance of our
congregational
courts of common law,
—
Ut nullus
Episcopus
vel
Archidiaconus
de Legibus
Episcopalibus
AMPLIUS
in Hundretto,
(i. e. in
Turno
) "placita teneant," (which is a plain acknowledgement however, that all pleas, relating to
Episcopal Laws,
were held in the
Hundred
Court before the publication of this
pretended
charter,)
nec causam quae
ad regimen animarum
pertinet ad judicium
saecularium hominum
adducant, sed quicunque secundum
Episcopales Leges
de quacunque
causa
vel
culpa
interpellatus fuerit, ad locum quem ad hoc
Episcopus elegerit,
et
nominaverit,
veniat, ibique de causa sua respondeat, et
non secundum Hundrettum,
(
this not intended of the
Hundred
Court,
Sir E. Coke remarks,
but, that in those times the Sheriff did hold his Tourn
per Hundreda.
See Mag. Chart. cap. 35. and the exposition thereupon,
)
sed secundum
Canones
et
Episcopales Leges
rectum Deo et Episcopo suo faciat. Si vero aliquis per superbiam elatus ad
justitiam Episcopalem
venire non voluerit, vocetur semel, et secundo, et tertio; quod, si nec sic ad emendationem venerit,
excommunicetur,
&c.
4 Inst. c. 53. p. 259.
to their own
consistories,
to be holden at such
times,
and at such
places,
as they themselves should be pleased to direct; so that
when
and
where
were equally unlimited and uncertain! and the causes were then to be adjudged according to
foreign
Canons and Decretals
unknown to the people!
More effectual means could not be devised for reducing the nation to the most abject slavery under the papal usurpation! To accomplish this baneful purpose, a fictitious charter was produced, bearing the title of
Willielmus gratia Dei Rex Anglorum,
&c. that it might pass for a deed of King William, commonly called the Conqueror; but, even supposing it to have been authentic, yet, as it was neither published nor known till near 300 years after the death of William, viz. not till the second year of King Richard II. anno 1378, the
invalidity
of such an instrument, to alter
the due process of the law,
must be sufficiently obvious: at the last-mentioned period, however, this
pretended
charter of William was ENROLLED, it seems, FOR THE FIRST TIME, viz. in 2d Richard II. "BEING NEVER HEARD OF BEFORE;" as Lord Coke remarks; (4 Inst. c. 83. p. 259.) and the same learned author has produced ample proof from the
Red Book
before quoted, that
ECCLESIASTICAL CAUSES
were handled in the
TOURN,
(the Sheriff's CIRCUIT, or circular visitation of the HUNDREDS,)
in the reign of Henry
I. LONG AFTER
the said supposed charter. And certain it is,
(says he,)
that the Bishops Consistories were erected, and causes ecclesiastical removed from the
TOURN
to the Consistory,
AFTER
the making of the said Red Book:
Ideo penes lectorem sit judicium.
It cannot, therefore, be denied, that this
wicked,
nay, I may justly call it,
diabolical,
encroachment of the
papal power
on the most sacred rights of the people was effected (like most other
innovations
of the
apostate
church) by the help of an abominable LIE,—by a FORGERY, so gross, and obviously
fraudulent
and
false,
that the success of it cannot reasonably be attributed to any other causes than (
first,
with respect to the
deceived)
to that kind of
judicial blindness,
which darkens the perceptions of all persons who neglect the holy scriptures, and
"receive not the love of the truth,"
after being fairly warned, that,
for this cause God shall send them strong delusion that they should believe
A LIE:
(2 Thess. ii. 11.) And (secondly, with respect to the
deceivers
) it may fairly be attributed to the consequent prevalence of
the working of
SATAN,
with all power,
and
signs,
and LYING
wonders, and with
ALL DECEIVABLENESS of UNRIGHTEOUSNESS, &c.
(2 Thess. ii. 3 to 12.) a prevalence and success which God
permits
in his just judgement against
national
delinquency; for
DECEIVABLENESS OF UNRIGHTEOUSNESS
are terms so clearly descriptive of the above-mentioned abominable
cheat
against the RIGHTS
of our congregational
Courts, that
"the Father of lies"
may well be deemed the
first suggester
of it, as well as an active promoter: of its success; so that his
visible
partners in the
deceit,
and
their church,
(the
power
of which, in this kingdom, was then most essentially promoted by it,) must necessarily be stigmatized by
their share of labour and profit
in so palpable a FRAUD: for as "
no
LIE
is of the truth,
" (1 John ii. 21.)
"the deceivableness of unrighteousness"
beforementioned, and its
baneful success,
afford, as in many other instances, (some of which I have exposed in my
Declaration of the Peoples Rights,
p. 127 to 135; afford, I say,) an unquestionable
token
of their
apostacy
from the King of
righteousness,
Shall the throne of
iniquity
have fellowship with thee, which frameth
mischief
by a law? (Ps. xciv. 20.) for what fellowship hath
righteousness
with
unrighteousness?
And what communication hath
light
with
darkness?
And what concord hath
Christ
with Belial?
2 Cor. vi. 14.15.
and of their consequent fellowship with
the Prince of this World,
—"Why hath
Satan
filled thine heart to
lie?
&c. (Acts v. 3.) "for
he
is a lier and the father of it." (John viii. 44.)—
"without"
(i. e out of the pale of
Christ's
Catholic Church,)
are dogs, and sorcerers, and whoremongers, and murderers, and idolaters, and,
WHOSOEVER LOVETH AND MAKETH A LIE.
(Rev. xxii. 15.)—
SPEAKING LIES IN HYPOCRISY, having their conscience seared with a hot iron; FOREIDDING TO MARRY, to ABSTAIN FROM MEATS, &c.
(1 Tim. iv. 1. to 5.) To enforce
these
and such like
"doctrines of Demons,"
(as they are expressly termed in this text,) the above-mentioned abominable FORGERY against the rights of our
congregational courts
were manifestly devised and intended! Now lest the severity of my expressions should give
offence,
instead of
warning,
to those persons for whose service it was intended, I think it necessary to declare, that my censure is not
personal
against the
individuals
of the Romish persuasion, but against the profession itself,—against the
iniquity, falsehoods, errors,
and
usurpations,
of the PAPACY, (in the same manner that I professed myself an
enemy
to STANDING ARMIES, without the least disrespect, or breach of charity, towards the
individuals
incorporated therein. See the Preface to my Declaration of the People's Rights, p. xxxvi.) I may fairly except, however, such
individuals
as shall be duly convicted of
wilfully
promoting
forgeries
and
falsehood
to prop the
papal
tyranny and delusion: but, with respect to all other
individuals
of that church, who are not so directly chargeable with
"deceivableness of unrighteousness"
in their profession, I am bound not only to regard them with
christian charity;
but also (after so severe a censure of their profession in general) freely to declare, that there are many, very many,
individuals
among them, whose various good qualities and virtues justly entitle them to my sincere esteem and respect; to such, therefore, I can only add in the words of the Scripture—
Come out of her, my people,
(i. e. all ye that
fear God;
and the more especially as the period of her power, the completion of the 1260 years of
Roman
tyranny, vested in ten, or rather eleven, crowned Horns, is probably not far distant; all the
prophetical marks
of her apostacy being evident so early as about the middle of the 6th
century,)
that ye be not partakers of her sins, and that ye receive not of her plagues. For her
SIN
hath reached unto Heaven, and God hath remembered her
INIQUITIES!
Rev. xviii. 4.5.
who
"hath nothing in Christ!"
(John xiv. 30.)
By this miserable forgery, the courts of the
congregation
in England were deprived of the presence and aid of their
Bishops
in public judgement,
This material branch of the Bishop's
duty
as a great
popular
magistrate is clearly proved by Sir Henry Spelman. See
"Reliquiae Spelmannianae,"
published by Bishop Gibson, p. 76.—
It appeareth by Epiphanius,
(says Sir Henry)
that, in his time, (as also many
hundred
years after,) Bishops and Clergymen did hear and determine causes, lest Christians, against the rule of the Apostle, should go to law under
Heathens
and
Infidels.
And it is said, in the first Epistle of Clement, (if it were truly his,) that St. Peter himself did so appoint it.
And he previously, in the same chapter, cites a Canon that was ordained A. D. 517, in concilio Taraconenfi, &c.
That Nullus Episcopus vel infra positus,
(or official,)
die Dominico causas judicare praesumat. That no Bishop or inferior person presume to judge (or try) causes on the Lord's day.
And, in page 116, where he censures the Bishops of the eleventh and twelfth century, who affected to get into their hands the secular power of
counties, sheriffwics,
and constableships of castles, as—"
Walter,
Bishop of
Durham,
" (who,)
having bought the county of
Northumberland
of
William
the Conqueror, would needs
sit himself in the County Court;
but paid dearly for it: for his countrymen furiously slew him, even
sitting there.
Matt. Paris, in ann. 1075,
and "
Hugh,
Bishop of
Coventry
" (who)
exercised the Sheriff's place, but was excommunicated for it, as
contra dignitatem Episc.
and so acknowledged his error.
Dicetus in ann. 1190.
To which he immediately adds—
But every one will say, it was
a common thing in old time for
BISHOPS
to be
JUDGES
in secular courts.
I confess it,
(says Sir Henry,)
and think it
godly
and
lawful
as it was used at the first. For the Bishop and the Earl fat together in the
County-Court:
the
Bishop,
as Chancellor, to deliver
Dei rectum
and
populum docere;
the
Earl,
as Secular Judge, to deliver
rectum seculi
and
populum coercere;
as is manifest by the laws of King
Edgar
and others. But, when the Bishops began to supply both places, and to be meer Judges of secular courts, then were they
prohihited
by many Canons.
This
prohibition
of the
Canons,
however, had generally a very different object in view from the ostensible or pretended motive of their being ordained. I speak of the
later
Canons. The
ancient
Canons confirmed the
rights
of the CLERGY and PEOPLE in
episcopal elections, marriage,
&c. but some of the
later
Canons, on the contrary, favoured the encroachments of tyranny and papal apostacy.
In the
ancient
Canons (commonly called
Apostolical
) it is ordained, that
if any Bishop, Priest, or Deacon,
&c.
should abstain from
MARRIAGE, FLESH, and WINE,
not on account of
(religious) "DISCIPLINE," (
or
exercitation
—which was only
—
"for a time, that they might give themselves to fasting and prayer,"
as allowed by the Apostle, 1 Cor. vii. 5; under an express injunction that married persons should
come together again, lest Satan should tempt them,
&c.
through their
(natural)
"weakness;"
it being manifest that such mere
temporary discipline
is alone to be understood in this place,) "
but through
DEFILEMENT,
, (i. e. through pretence that
marriage,
or
meats,
DEFILED the body,)
forgetful that all things are exceeding good, and that
GOD
made
MAN,
male
and
female, and
(viz. by this doctrine of defilement)
blaspheming the Creator, either let him be
REFORMED,
(
)
or let him be deposed,
&c.
See Canon li. And the fifth Apostolical Canon also ordained that
a Bishop,
or
Priest,
or
Deacon, should not put away his wife on pretence of religion,
or
piety,
—
. But some of the
later
Canons, on the contrary, invade the most
natural rights
of humanity. The Council of Carthage, held about the time of Pope Caelestine, (A. D. 397,) Commanded
Bishops, Priests, and Deacons, to hold chastity,
and to
abstain
(ETIAM AB UXORIBUS)
even from their wives.
See Howel's Synop. Canonum, p. 117. So the 12th Canon of the council, held
in Trullo
of the Imperial Palace of Justinian the Second at Constantinople, censures the Prelates of Africa and Libya, who
after their ordination did
NOT
refuse to live with their own proper wives, thereby
(say the
infatuated
authors of the Canon) "
occasioning offence and scandal to the people,
&c."—and therefore this Canon ordains
"that the like"
(i.e. men living with their
own proper married wives,
)
should
NOT
by any means after that time be done!!!
And the learned Theodore Balsamon, Patriarch of Antioch, in the twelfth century, cites several constitutions of the Emperor Justinian the First, which were called
, i.e.
novellae,
or novelties, (an ominous title)—which ordained that a man
was not to be promoted to episcopal dignity who has a wife or children,
;" (a glaring opposition to the rules laid down in scripture for the choice of a Bishop;) and again,
"that Bishops are to be deposed who dwell with a woman,"
—
. See the Paris Edition of Balsamon's Commentary on the Canons, p. 373, 421, and 374. Thus the Authors of some of the
later Canons
are
marked
with a manifest stain of
apostacy,
as men infatuated and deluded by the
wiles of Satan,
who holds them
"forth to open shame,"
by the evidence of their own Canons, as teachers of
"the doctrines of Demons,"
viz.
"forbidding to marry,"
(and commanding)
"to abstain from meats,"
&c. of which devices and doctrines the Apostle hath given express warning. (See 1 Tim. iv. 1-6.) So that the almost universal prevalence of these
open marks
of
apostacy,
throughout Christendom, against the
express warning of holy scripture,
against the strictest cautions of the
ancient apostolic Canons,
and even against
nature itself,
is so
wonderfully
extraordinary, that it would be really
incredible,
were not the evidences of it, which still exist, notorious and undeniable!!! The
natural
depravity of mankind tends not to such effects, so that we can attribute it only to
supernatural
agents; and, though many of the boasted
monkish revelations
were really mere
human
forgeries, yet I believe that many others were real
apparitions of seducing spirits,
in order to hasten the
unnatural apostacy!
But, with respect to the present points, viz. the duty of
Bishops
to preside in the
congregational courts
of common law, and the people's ancient
right
of judging
ecclesiastical causes
therein, the learned SELDEN bears still more ample testimony in his
"Titles of Honour."
P. 520.
And the
Scyregemot
(which was,
says he,—
a court kept twice every year, as the Sheriffs turn is at this day) was held by THE BISHOP of THE DIOCESS, and
the
EALDORMAN, (in shires that had
Ealdormen,
) and by the BISHOPS
and
SHERIFFS, in such as were committed to Sheriffs that were immediate to the King. And so
(says he)
both
THE ECCLESIASTICAL
and
TEMPORAL LAWS were TOGETHER
given in charge to the country.
The authorities cited by Mr. Seldon for this are as follow:—
Videsis Leg. Edgar, cap. 5. et not. ad Edmer. pag. 166 & 167. Historiam nostram de decimis, cap. 14. § 1. et Leg. Canut. cap. 17. Lambard.
Sir Edward Coke has also cited the laws of Edgar to the same purpose in his second Institute, p. 70, viz.—
Celeberrimus est omni Satrapia his quotannis conventus agitor, cui quidem
ILLIUS DIOECESIS EPISCOPUS,
et Senator intersunto, quorum alter
JURA DIVINA,
alter humana populum edoceto;
which also agreeth
(says he)
with
Magna Charta,
and other statutes and continual usage. By that which hath been said, it appeareth
(continues Sir Edward Coke)
that the law, made by King Henry I. was (after the great heat of the conquest was past) but a restitution of the ancient law of England: and forasmuch as
the
BISHOP
with the Sheriffe did go in circuit twice every year by
EVERY HUNDRED within the county, &c.
a
presence
and
aid
of the utmost importance to the welfare of the
people
and of the whole
commonwealth,
whilst the people retained any share of their just and ancient
right
in the election of Bishops, but little to be regretted, when the Bishops, through the total perversion of
that right,
(by the gradual encroachments of monks, popes, and kings,) ceased to have that
intimate
connection with the
people
and
their interest,
which their predecessors in office were wont to acquire so
naturally
by
popular
elections. But the
later
Bishops, chosen by the
usurpers
of
episcopal elections
for very different purposes, and selected, for the most part, from the
monastic
orders, then falsely called
regular,
(instead of the
regular
parochial
priesthood,
) did as
naturally
become the dangerous advocates for very different
interests,
the
interests
of their usurping
constituents,
whether
monkish
or
monarchical;
and, more especially, about the time of Richard II. when the notorious forgery abovementioned was committed.
The courts of the
congregation
were also, by this detestable forgery, cheated of
the power of excommunicating
irreligious and prophane persons from their
own
body or society; a
power
most essentially their
own,
but which, lodged where it is at present, merely with the Bishops of a reformed Church, (who want it not for
undue
purposes like the
papal
prelates,) neither promotes
episcopal dignity
nor due
ecclesiastical authority;
because
ecclesiastical
judgements and censures, by flowing in an improper channel, have excited, and ever will excite, the jealousy of the people; and, of course, they have been generally thwarted and opposed in our courts of
common law,
(through a just jealousy, in the courts, of the Bishop's
separate consistories,
) and have sometimes been reversed and annulled with heavy costs and damages against the
ecclesiastical judge,
or, perhaps, (what is worse,) against his executors and innocent family after his death; by which means, the necessary controul of vice and immorality is weakened, and
ecclesiastical censures,
howsoever just and proper in themselves, are but too little regarded by rich and opulent offenders that can spare money for litigation; so that the public is grievously injured by infectious examples of depravity without any effectual means of restraining them. But, it would be far otherwise, if the
congregational courts
were restored to their ancient powers of acting by the common law, with cognizance of all causes,
ecclesiastical
as well as
civil,
which formerly they enjoyed, as I have already proved. For as
law
was deemed
the dictate of reason,
"Lex est dictamen rationis." Jenk. Cent. p. 117.
and
"reason"
justly deemed
a ray of the divine light,
"Ratio est radius divini luminis." Co. Lit. 232. b.
common
to all men of
common sense,
as being derived and inherited from our first
common parents,
so it followed, of course, that, though many
express laws
for particular occasions and likewise various customs and usages, proved by legal precedents, formed a part of our
common law,
(of which the reverend sages of the law and regular students were, undoubtedly, the properest judges, insomuch that the business of the courts could not be carried on without their assistance,) yet by far the greatest and most essential part of the common law consisted in the
exercise of reason,
duly to discern between
good
and
evil,
between
right
and
wrong,
between
justice
and
injustice,
in all cases whatsoever, by the general principles of
natural right,
See the 1st, 2d, 5th, and 8th, chapters of Doctor and Student.
and by those also which may be drawn from God's Revelation in the Holy Scriptures, which is declared to be the second foundation of our law.
See Doctor and Student, chaprs 3 and 6.
And, as the members of a christian community are required by the Scriptures to have their
senses exercised, through
HABIT
. Heb. V. 14.
or use,
to discern both good and evil,
— such assemblies, with the assistance of the sages and regular students of the law, were surely competent to determine whether any offence complained of, or presented to them, was really either
immoral
in itself, or a
nuisance,
in any respect, to the community; and, in either case,
the
LAW
will find a remedy,
"Lex semper dabit remedium." Prin. Leg. et Aeq p. 52.
be the particular circumstances of the case ever so new or uncommon; for
justice
"Lex deficere non debet in
justitia
exhibenda." Jenk. Cent. p. 4.
Justitia
non est neganda non differenda.
Jenk. Cent. p. 93 and 129.
—Nemini neganda est.
Ib. 176.
Interest reipublicae ne maleficia remaneant impunita.
Ib. 31, 117, and 223. "Law will not suffer wrong." Grounds and Rudiments, p. 188.
ought not to be foiled for the want of an
express
statute, or
a precedent for proceeding,
as at present;
Justice indeed, even at present, does not fail for
want of laws,
but, rather, by having
too many;
for our
Acts of Parliament
have been multiplied of late years to an
excess
that is almost destructive of their end;
excessive,
as well in
number,
as in tedious
prolixity;
for, by neglect of the
common law,
men are apt to conceive that they have
no remedy
for abuses but
statute
making, so that the number of our Acts of Parliament is annually increased, though the difficulty of understanding and retaining them in memory regularly increases with the unweildy bulk of the collection, and thereby renders them more favourable to
evasion
and
impunity
than to
justice
and
right,
more
profitable
to the
venal
talents of perverting orators, than
effectual
for the correction of manners. Hence arise the difficulty, the uncertainty, and the intolerable expence, of obtaining justice, whereby
prudent men
are frequently induced rather to
lose their right
than to risque the expence of defending it in the ordinary course of justice; and
violent men,
on the other hand, are prompted, by the difficulty of obtaining justice, to revenge their
own
quarrels with their
own
hands! Hence
duelling, bloodshed,
and
murder!
which are still farther encouraged by the corrupt, modern, practice of the courts, in laying aside the antient, legal, discrimination between
manslaughter
and
murder,
as I have shewn at large in a distinct tract on that subject, printed several years ago, (in 1773,) and then sent to
all the judges;
but it has not been in the least regarded, though I have never had reason to apprehend any error in the performance, none having yet ever been pointed out, and the modern prevalence of
duelling
proves that the antient doctrine and discipline of the courts (which alone I have asserted) was certainly right and necessary to be restored.
but the
law
is required to be
effective
Law will rather suffer things against the principles of law than that a man shall be
without a remedy.
Grounds and Rudiments, p. 188.
, and all men, however great, were made to regard it by
amerciaments,
or mulcts, in proportion as well to the
crime
as to the
wealth
or substance of the offender; the
contenement
of the land owner being duly considered, the
merchandize
of the merchant, and the
waynage
of the husbandman. (See magna Charta, cap. 14.)
There is no possible case, either of
immorality
or even
inconvenience,
but what is within the reach and correction of the COMMON LAW; for, it is a rule therein, that "
nothing which is against
REASON
is lawful;
"Nihil quod est
contra rationem
est licitum." Co. Lit. 97, b. and Grounds and Rudiments, 228.
and,
surely,
every thing that is
immoral
is
"against reason;"
and again, by another rule,
nothing that is inconvenient is lawful.
"Nihil quod est
inconveniens
est licitum." Co. Lit. 97, b. and Grounds and Rudiments, 228.
And
ecclesiastical
cases were also
particularly
regarded by it; because, whatever things related to the
advancement of religion
were,
in law,
deemed
of the highest consideration;
"
Summa ratio est quae
PRO RELIGIONE
facit.
" Jenk. Cent. p. 2. et 37. Noy, p. 1. Grounds and Rudiments, p. 318.
so that, if the
congregational courts
were duly reformed and re-established, the jurisdiction and cognizance of all
ecclesiastical cases
therein, according to ancient usage, would not only promore
morality,
but also, by strengthening
ecclesiastical discipline,
would really enlarge the authority and dignity of EPISCOPACY; and if, to this, the
clergy
and
people
were also re-instated in their ancient
right,
as Christians, freely to elect their own Bishops, [duly observing the
scriptural precautions
against
party
divisions and
tumults,
viz. First, to elect
two
unexceptionable or blameless
, (1 Tim. 3, 2.) Quorum vitam carpere nemo jure potest; or
, (Tit. 1, 7.) Inculpati.
presbyters by the common suffrage of
all the people
See the
mode,
as well as the
popular right,
of episcopal elections more fully stated in my Tract on the Law of Retribution, p. 331 to 339. I have there proved, (I hope,) that the
election of Mathias,
to the dignity of an APOSTLE, was, at the same time, a precedent for
elections
to the office of A BISHOP; and, that
the unexceptionable apostolic mode of election, described in Acts
i. 15-26.
was disused, indeed, during the time that the
apostles
themselves administered the affairs of the church, after the great day of Pentecost, when the promises, respecting
the gift of the
HOLY SPIRIT, were visibly accomplished, and, during the continuance of the outward and
extraordinary
tokens of that
glorious gift,
whereby the
apostles manifested
their authority to
APPOINT BISHOPS
without the formulary
PRECAUTIONS
of the first
precedent;
but that these just and equitable PRECAUTIONS became once more desirable as soon as the
extraordinary gifts of the Holy Spirit
(I mean only the
outward
manifestation of apostolic power) ceased in the Church, when the primitive mode of
electing
TWO
unexceptionable presbyters by the people,
and referring the appointment of ONE
of them
to the providence of God, by the decision of
the lot,
according to the excellent precedent recorded in Holy Scripture, was again revived in several places, as being best suited to the
ordinary
state of the church in all succeeding ages, for which I referred to examples testified by good authority; in addition to which I have lately discovered (amongst the valuable MS. collections of the very learned
Dr. Tho Mangey,
formerly prebendary of Durham, which, by the Favour of his worthy son, the late
Rev. Mr. John Mangey,
my affectionate relation, are now in my possession) a reference to the council of
Barcelona,
held in the Year of Christ 599, wherein the re-establishment of that most cautious and unexceptionable mode of
popular e
ections
was expresly decreed by the bishops of a very considerable providence
"
Tarraconesis provinciae episcopi in urbem Barcinonensem,
&c."
in Spain,
(Tarragonia;)
and, by them enjoined as a perpetual usage, on the penalty of
deposition,
solemnly denounced against all persons that should
presume to act otherwise, in future,
whether
the ordainers
of bishops or
the ordained.
See the 3d chapter of that council; —wherein, after reciting some of the necessary qualifications to render a man eligible to the dignity of a bishop, they add —
ita tamen, ut
DUOBUS,
aut
TRIBUS,
quos ante
CONSENSUS CLERI
et
PLEBIS ELEGERIT,
metropolitani judicio ejusque co episcopis proesentatio, quem
SORS,
proeeunte episcoporum jejunio,
CHRISTO DOMINO TERMINANTE, MONSTRAVERIT,
benedictio consecrationis accumulet. Aliter deinceps, quod absit, proesumptum, et
ORDINATORES
et
ORDINATOS
proprii honoris
DEPOSITIO
subsequatur.
And this was ordained even where
kingly power
was established, as appears by the title.
Consilium Barcinonense, aera
DC.XXXVII.
anno
XIV. REGIS RECCAREDI, anno Christi DXCIX. habitum.
See Sacrosancta Consilia, Tom. V. Paris Edition, 1671.
or congregation, (or, at least, of
all the episcopal communicants in each diocess
that should demand their
right
of suffrage,) and then, after solemn prayer, to
decide
BY LOT,
before God and the congregation,
the appointment of
one
of the
elected
presbyters, according to the authentic precedent described in Acts i. 15 to 26. the bishops would obtain such a
natural
connection with the
people,
as great
popular
officers, (which they would really be by a
popular
election, truly
ecclesiastical,
in the true sense of the word
ecclesia,
or congregation, the surest foundation for
popular
respect and authority,) in addition to their proper dignity, as being of the highest order of God's ministers in religion, that they would effectually become what the Common Law entitles them, viz. (not merely
"robur ecclesiae," the strength of the church,
but in a more enlarged sense of the word
ecclesia,
including our whole national community, or
commonwealth,
of Christians,) "ROBUR REIPUBLICAE,"
the strength of the commonwealth.
"Ordo Episcoporum est Robur Reipublicae." Jenk. Cent. p. 56. viz.
The order of Bishops is the strength
(force or hability) "of the
commonwealth.
" But, in order to render this maxim obvious and unquestionable, we must necessarily imply and include, in the
episcopal
function, that very important branch of it already mentioned, viz. the presiding as chief
popular
magistrates in the
congregational
courts of common law;
See also
Leges Edgari Regis,
No 5, and
Leges Canuti Regis,
No 17. (de Comitus,) wherein the
Bishop
is expressly required to attend the
Sbyre-gemot, "and thaer teacan ge Godes Ribt,"
and there teach the Divine Law.
So that the
Bishop's
attendance in the
Shire-parliaments,
(twice every year,) as well as in national Parliaments, is built on the very foundation of the English constitution.
and we must also suppose the continuance or re-establishment of the
primitive Christian freedom
in episcopal elections; that the Bishops, by real
popular
elections, may be truly
popular
magistrates, worthy to be entrusted with the civil as well as the ecclesiastical INTERESTS
of the commonwealth.
Mr. Sadler, in his
"Rights of the Kingdom,"
speaking of the time of King Henry II. says,—
It seemeth considerable, how all historians (of that time and dispute) do record,
THE CHOICE OF BISHOPS
to be in the
PEOPLE:
in
PLEBE and in POPULO,
as well as in
CLERO.
They mention
RADULPH,
ordained a Bishop for the Oreades: but rejected by all, because not elected by
COMMON ASSENT
of the
PEOPLE; PLEBIS, CLERO, PRINCIPIS, 'tis
every where in the old Monks; and how the poor Bishop wandered up and down, as an assistant to other Prelates,
&c.
See p. 235, and more instances also at p. 243. The learned author of a Tract, (printed several years ago, as appears by the lift of Tracts published at the same time, but without a date,) intituled,
Lex Parliamentaria, or a Treatise of the Law and Custom of Parliament,
&c. has cited various proofs of the
People's right
to elect Bishops.—
That for some years,
(says he,)
after this new charter granted in this English Parliament,
(meaning a Parliament held at London by King Henry I.)
the
PEOPLE
were generally
RESTORED
to the right of electing their own magistrates and officers, civil, military, and
ECCLESIASTICAL;
and this
(says the learned author)
I take to be the grand foundation of the
MAGNA CHARTA
of
ENGLISH LIBERTIES, i. e.
as it gave relaxation from
NORMAN
tyranny and slavery. And this may teach us, that the rights and liberties of the Commons of
ENGLAND
are neither so illegally begotten as by rebellion, nor of such tender years as some imagine.
&c. p. 42 The continuation of the evidence, which I have collected on this head, would take up too much room to be inserted
in a note,
and therefore I propose to resume the subject in a distinct Tract at the end of this publication.
And, though these antient congregational courts have unhappily fallen into disuse, yet the law had duly provided for their continuance by establishing an annual court, called
the View of Frankpledge,
wherein the association and due arrangement of the whole body of the people, in their proper
decinal
divisions, were intended to be completed and renewed, one of the constant articles of enquiry being, whether the
decenaries
were complete.
Et fiant Visus de Franco-plegio, sic quod pax inviolabiliter observetur, et quod DECENNAE INTEGRAE SINT, sicut tempore Henrici Regis praedicti esse consueverunt.
Fleta, lib. 2. c. 52.
Fleta in this chapter expresly quotes
Magna Charta,
and gives a transcript of the 35th chapter of it, word for word, with very little variation, except what may enable us to
correct
the common printed copies of that noble charter, wherein we frequently find the word
"trithinga"
inserted instead of
tithinga,
the proper word, which is manifest from the various reading in Fleta of the same import, though in the plural number, viz.
"decennae,"
i. e.
tithings.
The English version, commonly printed in the Statute Books, has also, indeed, the word
"trything"
instead of
tithing;
and Sir Edward Coke, in his commentary on that chapter, calls the word three or four times
"trithinga"
though he has copied it right in the chapter itself. (See his 2d Inst. p. 69.)
—
et quod
TITHINGA
teneatur integra sicut esse consuevit,
&c. —
and let the
TITHING
be kept entire as it hath been accustomed to be.
I have a copy of Magna Charta, printed for the Stationers Company in 1618, which has the same true reading
—
et quod
TITHINGA
teneatur integra,
&c.
and this reading is still farther proved by Sir Edward Coke's commentary upon it;
trithinga,
or
tithinga,
(says he,)
is expounded for
theothinga,
which signifieth the
Frankpledge
of
tenne households,
&c.
It is manifest therefore that the maintaining
the tithings entire
is expressly ordained by Magna Charta; so that we have
statute law,
(the most
respectable statute
that was ever made,) as well as
common law,
to justify the
re-establishment
of the
tithings
throughout the kingdom without having the least need to make a new act for that purpose. It is already
the law,
and the sheriffs and other magistrates, who do not inforce it, by holding the annual view of
Frankpledge
for the
legal
purpose of
maintaining the tithings entire,
as directed by
Magna Charta,
are certainly deficient in their duty, and ought to be duly
amerced
by the crown for their neglect of the most beneficial law, both to the king and people, that was ever made; and, the more especially ought they to be
amerced,
if any
riots
or notorious robberies shall have happened within their respective jurisdictions, during the time of their being in office, because these, in all human probability, would have been prevented, as well as the damages occasioned by them, had the sheriffs done their duty in
completing the tithings,
at an
annual View of Frankpledge,
as the law directs. See the whole chapter concerning the
View of Frankpledge
and other popular Courts, as inserted in the common statute books, 9. Henrici III. cap. 35.
No COUNTY COURT from henceforth shall be holden, but
from moneth to moneth;
and where greater time hath been used, there shall be greater: nor any
sheriff
or his
bailiff
shall keep his
turn
in the HUNDRED, but
twice in the year:
and no where but in due place and accustomed, that is to say,
once
after
Easter,
and again after the Feast of Saint
Michael.
And
the View of
FRANKPLEDGE shall be likewise at the Feast of Saint
Michael
without occasion. So that every man may have his liberties, which he had, or used to have in the time of King
Henry
our grandfather, or which he hath purchased since. The
View of
FRANKPLEDGE
shall be so done that our peace may be kept.
And that the TRYTHING
(for TITHING, as I have already proved)
may be wholly kept,
(or, rather,
be kept entire,
or
complete,
which may easily be done, by means of the annual
View of Frankpledge,
)
as it hath been accustomed. And that the sheriff seek no occasions, and that he be content with so much as the sheriff was wont to have for his
viewmaking
in the time of King Henry our grandfather.
And perhaps the sheriff's fees for this
"view-making"
would be the only part of the business of
re-establishing
the
tithings
that would need some new regulation.
The account of
Frankpledge,
given in Dr. Cowell's Interpreter, is worthy of being recited at length for the sake of those who cannot have recourse to that work.
Frankpledge (Franciplegium)
is compounded
(says he)
of
Franc,
(i. e.
liber,
) and
pleige,
(i. e.
fidejussor,
) and signifieth, in our common law, a pledge, or surety, for freemen. For the ancient custome of England, for the preservation of the publike peace, was that every free-borne man, at fourteene yeeres of age, after
Bracton,
(religious persons, clerkes, knights, and their eldest sonnes excepted,) should find
surety
for his truth toward the king and his subjects, or else be kept
in prison,
Mr. Lambard also mentions this custom of
imprisoning
those that could not
find surety.
See his Tract on "the Duties of
Constables,
" p. 7 and 8. I will recite his words, beginning with the preceding paragraph, for the sake of more fully explaining the nature of
pledges
as well as their association in
tithing
and
hundred
courts. After mentioning the cause of associating in
tithing
or decenary companies, viz.
—
for the better repressing of theeves and robbers,
he adds,
these companies be yet in some places of England, (and namely with us in Kent,) called BOROES, of the saide word BORHES,
pledges
or SUERTIE: albeit in the Westerne partes of the realme they be commonly named TYTHINGS, because they containe (as I told you) the number of TENNE MEN
with their families.
And even as
tenne times tenne
doe make an HUNDRED, so, because it was then also
appointed that
TENNE OF THESE COMPANIES shoulde at certain times
(every three weeks
"Le Hundred Court poit estre tenus ebescun trois semaignes."
See Crompton's "
Authoritie et Jurisdiction des Courts,
&c." p. 231. In ancient times the
Hundred
Court was held every
fifteen days;
—
de Quindena in Quindenam;
—
or once in a fortnight,
but was afterwards altered, by a resolution of parliament, (to clear up some doubts concerning the 35th chapter of Magna Charta,) in the reign of Henry III. to the time above-mentioned, viz.
de tribus septimanis in tres septimanas,
ubi prius teneri solent
de Quindena in Quindenam,
&c.
See Mr. Prynne's Brief Animadversions, &c. on the fourth part of the Institutes, p. 189 and 190.
)
meete together for their matters of greater waight, therefore that generall assemblie (or court) was (and yet is) called a HUNDRED. Furthermore it was then also ordained that if any man were of so evil credit, that he could not get himselfe to be received into one of these
tythings
or
boroes,
that then hee should be
shut up in prison
as a man
unworthie to live at liberty
amongst men abroad.
whereupon a certaine number of neighbors became customably bound one for another, to see each man of their pledge forth-comming at all times, or to answere the transgression committed by any broken away. So that whosoever offended, it was forthwith inquired in what pledge he was, and then they of that pledge either brought him forth within 31 daies to his answere, or satisfied for his offence. This was called
Frank-pledge, causa qua supra,
and the circuit thereof was called
decenna,
because it commonly consisted of 10
households:
and every particular person thus mutually bound for himselfe and his neighbours was called
decennier,
because he was of one
decenna
or another: This custome was so kept, that the sheriffes, at every county court, did, from time to time, take the oathes of young ones as they grew to the age of 14 years, and see, that he were combined in one
dozen
or another: whereupon this branch of the sheriffe's authority was called VISUS FRANCIPLEGII,
View of Frankpledge.
See
the Statute
What Dr. Cowel here calls a
"Statute,"
is printed, indeed, under that
title
in the common Statute Book; but it has not, in the least respect,
the form of a Statute,
nor does it appear to be,
in reality,
any thing more than what the Honourable Mr. Justice Barrington has conjectured, i. e. "
This supposed Statute likewise
(says he, referring to what he had before said of the preceding
nominal
Statute, viz.
This is most clearly
no Statute,
but only an entry made in the
common-place
of some Lawyer,
&c.)
"seems to have been taken,"
(says he,)
as well as the preceding one, from the notes or commonplace of some lawyer, who had occasion to hold a court of Frank-pledge,
&c. It contains, indeed, most of the usual
articles of enquiry
for a court of Frankpledge; but I must remark that the 4th and 5th articles contain a gross perversion of the antient articles of enquiry concerning
vagrants,
viz.
Vagrants, of whom there was any praesumption, or suspicion, of evil,
&c. for this necessary object of enquiry is here perverted and altered to serve the purposes of a most detestable oppression,
Villenage,
to bring
poor labourers
under the usurped authority of the great Lords and land-owners as appendages to their estates and mere private property! Happily therefore it is
no Statute!
I have a copy, nevertheless, of this false Statute, printed in the year 1529, (the 20. Henry VIII. only a little time before the reformation.) when the whole bulk of all the Statutes at large was contained in a very small pocket-volume, little more than half the size of my hand, so that this important book was hardly big enough, in respect of its size, to be deemed even a
manual,
though it bears in its title-page the extraordinary character of containing
more Statutes than ever was imprynted in any one boke before this tyme;
and yet, even then, it contained, it seems, some
things,
falsely called
Statutes,
that ought not to have been there. I wish the
many weighty folios
were once more reduced to a
single manual!
The proper articles of enquiry may be found in Fleta, lib. ii. cap. 52. I must acknowledge, however, that this chapter contains some articles of enquiry favourable to the abominable oppression of
villenage,
but they are distinct articles from that respecting
vagrants,
and as
villenage
is now abolished there can be no occasion to recite them.
for
VIEW OF FRANPLEDGE,
made anno
18.
Ed.
2. See
Decennier,
From this head I have already, in the former part of the work, extracted what seemed to be most necessary.
Leete,
LEETE, (Leta,)
is otherwise called a
LAW-DAY. SMITH
de Republ. Anglor. lib.
ii.
cap.
18.
The word seemeth to have growne from the Saxon,
(LETHE,)
which, as appeareth from the laws of King
EDWARD,
set out by
M. LAMBERD,
num.
34.
was a court of jurisdiction above the
WAPENTAKE
or
HUNDRED,
In the preceding Law of King Edward, No 33, the
Wapentac
is expressly declared to be the same Court as the
Hundred
Court, — quod Angli vocant
Hundredum,
supradicti comitatus vocant
Wappentachium:"
and that it is so named from the
salute
usually paid to the chief of that court, (i. e. the
High-Constable
or
Hundreder,
) by touching his spear with their
weapons,
or lances, in token of confirmation, (
taccare,
confirmare,) but, more expressly according to the English tongue, we call it (says the Law) WAPEN-TAC; armorum
tactus
est,
Wepnn
enim
arma
sonat,
tac
tactus est.
comprehending
THREE
or
FOUR
of them, otherwise called
THRYHING,
[in the said law, as published by Mr. Lambert, it is also called TRIHINGE,
Lex 34. Edwardi Regis — Tit.
De
Trihingis
et
Ledis.
Erant etiam et aliae potestates super
Wapentachia,
quas vocabant THRIHINGAS, qued erat
tertia pars provinciae.
Qui vero super eas dominabantur, vocabantur THRIHINGEREPAS, ad hos defere bantur causae quae non poterant definiri in Wapentachiis. Sicque, quod Angli vocabant
Hundredum,
isti
Wapentachium,
et, quod Anglice vocabant 3
vel
4
Hundreda,
isti vocabant THRIHINGA. In quibusdam vero provinciis Anglice vocabantur LETH quod isti dicunt TRIHINGE. Quod autem in THRIHINGE definiri non poterat, ferebatur in SCYRAM,
i. e. to the
County Court.
LEDA, and LETH,]
and contained the third part of a province or shire. These jurisdictions, one and other, be now
ABOLISHED,
(this, however, is not true; they were never
abolished
though fallen into
disuse;
they are so far from being
abolished
that the
use
of them is not only, at this time,
legal,
but really required
by law,
so that no
new law
is necessary for their
revival,
as I have already shewn,)
and swallowed up in the Countie Court
(but the
County Court
itself is so far fallen, also, into disuse, through a necessary consequence of neglecting the
Hundreds
(or
Wapentaks
) and the
Trithings,
that it seems, as much as the latter, to have lost its ancient importance, which was that of a COUNTY PARLIAMENT, competent for all business (bridges, turnpikes, regulations of Commons, goals, workhouses, &c.) within each county respectively, business with which at present the great national council is clogged and pestered, and the sessions prolonged, instead of being dispatched in the proper
County Courts
where the truth of the allegations for changes and new regulations would best be known and ascertained]
except they be hold by prescription. Kitchen, fol.
6,
or charter in the nature of a franchise, as I have said in
(HUNDRED.)
The libertie of
HUNDREDS
is rare, but many Lords, together with their Courts Baron, have likewise Leetes adjoined and thereby doe enquire of such transgressions as are subject to the enquirie and correction of this Court: whereof you may reade your fill in
KITCHEN,
from the beginning of his booke to the fift chapter, and
BRITON,
cap.
28.
But this Court, in whose mannor soever it bee kept, is accounted the
KING'S COURT,
because the authoritie thereof is originally belonging to the Crowne, and thence derived to inferiour persons,
KITCHEN,
fol.
6.
Justice
DYER
sayth, that this Leete was first derived from the sheriffes
TURN,
fol.
64.
And it enquired of all offences under high treason, committed against the Crowne and dignitie of the King; though it cannot punish many, but must certifie them to the Justices of the Assise,
PER STATUT. ANNO 1. ED. 3. CAP. ULT. KITCHEN,
f.
8.
But what things be onely inquirable, and what punishable, see
KITCHEN
in the charge of a Court-Leete, fo.
8-20.
See also the Statute,
ANNO 8. ED. 2.
The jurisdiction of bayliffes in the dutchy of Normandie, within the compass of their provinces seemeth to be the same, or very mare the same, with the power of our Leete, cap.
4.
of the grand Custumary.
View of Frankpledge,
and Freoborghe. That this discipline is borrowed by us of the
Romane Emperours,
or rather
Lombards,
appeareth most manifestly in the 2d booke of
Feuds,
cap. 53, upon which, if you read
Hotoman
with those authors that hee there recordeth, you will think your labour well bestowed. Read more of this, viz. what ARTICLES were wont to be inquired of in this court, in
Horne's Mirrour of Justices, lib.
1.
cap. de la veneu des francs pleges,
and what these articles were in antient times, see
in Fleta,
lib. 2. cap. 52.
The title in
Horn's Mirrour
is not, as Dr. Cowell has said,
"De la venue,"
&c. but
"De Viewes de Franckpledge."
See chap. i. sect. xvii. This chapter contains many things worthy to be known, and which also relate particularly to the subject of this book, and therefore I think myself obliged to recite it for the sake of those who have not a copy of the original. In doing this, however, I propose to follow the common English translation, printed in 1646, making such alterations as a comparison with the French copy, printed in 1642, may seem to require.
Of Viewes of Franck-pledge.
This word is plural in the old English translation but not in the French copy. Chap. 1. Sect. xvii. De Viewes de Franckpledge.
De celles assemblies primiers estoit aussi ordaine que chescun Hundredor fait common assemble un foits per an, et nemy solement d' fief tenants mes d' touts del hundred estrangers et Denizens d'
xii
ans ensuis forsprise Archevesques, Evesques, Abbes, Priors, et touts gents d' Religion, et tou
s Clerkes, Countees, Barons, et Chivalers, Femmes epouses, Sourdes et Mutes, Malades, Fols naistres
(Idiots, or
Naturals
as they are sometimes called)
et Meseaux, et Ceux que
(for
qui
)
sont ailors en dezein, pur enquirer des points avant dits, et des
ARTICLES
suivants, et nemy per
SERFS
[a i. e. the labouring Poor, enslaved through the oppression, pride, and injustice, of the rich
Landholders,
by whom they were called
"Serfs,"
i. e.
Servi, Slaves;
but God will avenge (
)
the cause of the oppressed and the right of the poor.
(Psa. cxl. 12.) He
will save the oppressed poor, BUT WILL BRING DOWN HIGH LOOKS.
(Psa. xviii. 27.) And
he that oppresseth
(
) "shall receive" i. e. retribution "for the oppression which he hath done, and there is" (with God) "NO RESPECT OF PERSONS." Col. iii. 25.] "
ne per
FEMES" [b i. e. the
"averement,"
verdict, or judgement, was not to be found by
women,
though they might undoubtedly be
witnesses,
and give information to the Court to assist the
"averement:"
and, by the express exemption (but not exclusion) of married women,
"femmes espouses,"
it seems as if the attendance was required of
all other women
not so exempted, viz. the
unmarried,
who, surely, may be included in the general term —
d' touts del Hundred, "of all persons within the Hundred,"
— especially as their attendance to hear the charge concerning the several legal ARTICLES OF ENQUIRY would enable them more effectually to promote, by their influence, that love of
right
and
justice,
for which the virtuous part of the sex are most eminently distinguished; and their better knowledge of the
Common Law
would enable them
sometimes,
perhaps, to prevent the breach of it, but,
at all times,
enable them to aid it by true and candid information in behalf of RIGHT] "
mes per les
AFFEREMENT
d'
xii.
Frank homes al meins"
(c the translator has unluckily omitted this most material circumstance concerning "
a Jury of
TWELVE at the least")
car Serf
[d there are now no
Serfs
(God be thanked!) in England, though a strenuous attempt was made some years ago to engraft the detestable West-Indian
slavery
on the old rotten stock of
villenage,
which it pleased God to enable me to cut up by the roots, contrary to my own expectation or even hope, being at that time utterly ignorant of law, having never till then opened a single book of it, but I was compelled by a particular unforeseen circumstance to search the books in mere
self defence!
But though there are now no
Serfs,
yet the doctrine of this article holds good with respect to all persons under confinement, or sentence, or
charge,
for crimes, who are to be deemed
hondmen
(though not
Serfs
or
private property
) till they are enlarged]
ne poit nul Frank-home
[e and
every man,
not charged with crimes, is to be deemed a
freeman
]
enditer ne nul auter qui u'est resceivable a suite faire en mesme les Courts.
[f In the Old Version it is rendered
inferious Courts:
the translator probably supposed the true reading to be
mes'n,
or
menues, meen,
little or inferior Courts.]
Et pur ceo que ordeine fuit auncientment que nul ne denuorast
(probably for
demeurât
)
en le royalme s'il ne soit en
DIZEIN;
et plevy de Frankhomes; appent aux
HUNDREDORS
d'viewer
[g in the Old Version it is rendered
to shew
]
un foits per le an les Frankpledges, et le plevies;
[h in the Old Version rendered
pledgers;
but the
Frankpledges
themselves are the
pledgers,
who pledge, not only each other, but also all the lodgers, journeymen, servants, &c. that are
not housekeepers
in each Tithing, and these latter are properly the
plevies
or
pledged,
and are so distinguished from the 10 FRANKPLEDGES or DECINERS;]
et pur ceo sont tiels views appelles views d' Frankpledge.
"Les Articles son ceux."
(l The
Articles
are suitable
o
Court Leetes
as well as
Views of Frankpledge:
they are the principal heads or topics of enquiry to be mentioned in the charge of the
Hundreder,
or Chief of the Court, to
the Jury.
)
Of these first assemblies it was also ordained, that every Hundred
-er
doe make a common meeting once in the yeere,
and
"not only of the Freeholders,"
(or Fieftenants,)
but of all persons within the Hundred, strangers and denizens of the age of
12
yeeres and upwards, except of Arch-Bishops, Bishops, Abbots, Priors,
and all
religious persons, and all clerkes,
(Clergy,)
Earls, Barons, and Knights, Feme Coverts,
(rather married women,)
"deaf"
and
dumb, sick, idiots, infected persons, and those who are not in any Dozien,
(rather —
and those who are elsewhere included in a Decenary
— for that is the proper exception intended,)
to enquire quire of the points aforesaid, and of the articles following, and not by villanies,
(meaning
villeins
or bondmen, a )
nor by women,
b but by
the afferment
or verdict of TWELVEc
Freemen at
the least; for a villaine
(meaning a villein, i. e. a bondman or serfd )
cannot indict a Free-man,e
nor any other who is not receiveable to doe suite in
the samef "
Courts,
and therefore it
was anciently ordained, that none should remain in the realm if he were not in some
Decenny
(or Tithing)
and pledge
-ed
of Freemen:
it belongeth also
to
HUNDREDOURS
(the chiefs of
Hundreds,
who are High-Constables)
"once a year to"
viewg
the Frankpledges, and the pledg
-ed,h
and therefore are the viewes called the View of Frankpledges;
or rather,
and for this are such viewes called the Views of Frankpledge.
"The Articlesi are these."
1.
1.
Vous nous dires par vous serements si tres tous sont qui la devoient venir a la jornee.
By the oaths you have taken, you shall declare whether all they, who ought, do appear or not.
In the supposed Statute of 18th Edward II. before-mentioned, the first article is, —
You shall say unto us, by the oath that you have made, if all the
JURORS
that owe suit to this Court be come, and which not.
In both copies the presence of the JURY is necessarily to be understood, as appears by the mention of their oaths, and of course we must suppose a previous summons or
impannel,
to be the foundation of the business, so that it now seems a very proper question to begin with, as well at
Views of Frankpledge
as at all other
Court-Leets
or
Trithings,
and, likewise, at
HundredCourts,
viz.
If all the
JURORS
be come,
&c.
and which not.
— That the absentees may be duly
amerced
if they cannot assign a legal
essoine
or admissible excuse.
2.
2.
"Si touts les Franks"
(k
Franks
in ancient times were mentioned in contradistinction to
Serfs,
but, as
villenage
is now abolished, all men of every rank and degree are to be deemed
Franks
or
Free-men
in the Congregational Courts)
des Hundreds ou del fief sont present.
If all the Free-menk
of the
HUNDRED,
or of the Fee,
(Fief or Manour,)
"be present."
3.
3.
Si touts les Frankpledges eient lour Dozeins entiers. Et touts ceux que ils ont plevies.
(l This interpretation answers to No 5, in Fleta's 52 chap. lib. 2. which I believe to be the true reading, instead of
Frankpledges.
—
Si omnes
CAPITALES PLEGII
venerint sicuti venire debent, et si
DECENNAS
suas habuerint.
See also the supposed Statute of 18th
Edward
II. No 2.
If all the
CHIEF PLEDGES, or their Dozens be come,
as they ought to come, and which not.)
"If all the Frankpledges"
(or, rather, the
Chief Pledges,l
Tithingmen or Headboroughs)
"have their Doziens"
(Decenaries or Tythings)
"entire,"
(or complete,)
"and all those" whom they have pledged.
4.
4.
Si tres touts ceux del Hundred ou del fief d'
xii.
ans ensuis sint jure fealtie al roy, et de resceivors d'autres escient.
(m To tender the oathes of allegiance to boys of 12 or even 14 years of age seems very exceptionable, and therefore I am happy to find that this does not seem to have been originally intended to be required, for by the copy of this article in Fleta, all that is required of such very young persons is their being entered and pledged in some Decenary. —
Item si omnes duodecim annorum et ultra sint in Decenna.
— Enquiry should also be made whether all persons of that age attended the
View of Frankpledge
as they ought. See Fleta, No 8.
Item si omnes
DUODECIM ANNORUM
et ultra venerint sicut debuerint.
This corresponds with the 3d Article of the supposed Statute of 18th Edward II. as expressed in my old Edition of 1529.
Et si toutz de
DOUZE ANS
sont en l'assise nostre seigneur le roy et queux ne sont mye, et qui les resceite.
Which is falsely rendered in the common version, viz.
And if all the
DOZEINS
(instead of all DE DOUZE ANS or of 12 years)
"be in the assize of our Lord the King,"
(the
View of Frankpledge
being that
assise,
—
EO QUOD DIES REGIS EST, because it is the King's day,
as Fleta says, (No 36,) "et in favorem pacis fuit inventus,")
"and which not, and who received them,"
i. e. in what households are they lodged: n and the remaining part of the article is also better explained in
Fleta
concerning
"Receivers of others"
by another distinct article, (No 7,)
De hiis qui non sunt in
DECENNA,
qui fuerint
CLERICI,
qui
MILITES,
qui forisfamulaverint, et qui alii, et de quorum manupastu fuerint. Et si qui fuerint vagantes, de quibus habetur aliqua praesumptio vel suspitio mali,
TUNC DE EORUM RECEPTORIBUS.)
If all those of the
HUNDRED,
or of the fee,
(or fief,)
of the age of
12
years and above, have sworn fealty to the King;m
and of the receiversn
of others wittingly
or knowingly.
5.
5.
D' tout
SANKE
pecherousement espandue, de
HUY
et
CRY
levy a tort; ou a droit, levee et nient suivit duement, et des nosmes d' ceux que encurruerent d' touts mortalx pecheors en touts especes; come des principals et des accessories.
This article is differently expressed in Fleta, See No 9.
Item de burgatoribus, robbatoribus, et latronibus, falsariis, HOMICIDIS, combustoribus domorum, et eorum fautoribus, et RECEPTORIBUS.
His 13th article may also be placed here very properly, —
Item de mahematoribus, et vulneratoribus, imprisonatoribus, et alia contra pacem terrae facientibus.
The enquiries concerning
Hue and Cry
are expressed in another distinct article in Fleta. (See No 16.)
Item de hutesiis levatis injustè; vel si justè. tunc non presecutis, qui ea levaverint,
(this was to prevent false alarms by wanton people,)
et per quos deficit secta.
This is the 17th article of the supposed Statute of 18th Edward II.
Des
HUES
leves et nient pursues.
"
Of
CRIES
levied
" (or raised)
"and not pursued."
And the articles concerning
housebreakers
and common thieves are the 12th and 13th of the said supposed Statute, viz.
Of breakers of houses and of their receivers; of common thieves and of their receivers.
"Of all blood"
feloniously
"shed,"
[to which I will add a necessary article of enquiry from the imaginary statute of 18th Edward II. viz.
"Of"
(any)
"wound made" — "et de play fait"
— (Edit. of 1529) — which in the common version is falsely rendered —
and of frays made
— however, even
frays,
though there be no wounds in consequence of them, may,
as breaches of the peace,
be punished by the
Common Law,
which is competent to find effectual
remedies
for
all immoralities
and
nuisances,
]
of hue and cry wrongfully leavied, or rightfully leavied, or rightfully leavied and not duly pursued, and of the names of
those who pursued;
of all mortal
sinners of all kinds; as of the principals also of the accessories.
6.
6.
De tout exuls, utlagies, weives, et bannise retornes, et que
(for qui)
out eux puis recettes, et de cenx que
(for qui)
ont ete condemnes a la mort ou for jures le royalme.
Compare this with Fleta, No 10.
Item de utlagatis vel abjuratoribus regni reversis, et de eorum bonis et
RECEPTORIBUS.
And with No 20 of the articles of 18th Edward II.
Of persons outlawed returned, not having the King's warrant.
Of all exiles, outlaws, waives, and banished persons returned, and
WHO HAVE SINCE RECEIVED THEM,
and of those who have been adjudged to death or abjured the realm.
7.
7.
"De Christians usurers, et d' touts leur biens."p
The
Jews,
it seems, were the only people, at that time, permitted to practise
usury;
but no distinction is expressed in Fleta, see No 14, in which some other articles of enquiry are added.
Item de
USURARIIS,
Sortilegis, Apostatis, Traditoribus, et eorum catall' et
RECEPTORIBUS.
"Of"
Christians (that are)
usurers and of all their goods.
8.
8.
"De tresure trove,"
(see also 23d article of the supposed Statute of Edward II.)
wrecks, waifs, estrayes, et d' chescun purprise et occupation fait sur l' Roy ou sur sa dignity.
o All encroachments upon public
streets,
or upon
highways,
(by land or by water,) are to be deemed
purprise
or encroachment upon the King. In Fleta this article is different in some particulars. See No 11.
Item de
THESAURO INVENTO,
murdris, et weyvio prosecuto retento.
See also No 25.
Item de purpraesturis super Regem vel dominum factis.
"Of treasure trove,"
(i. e. found,)
wrecks, waifes, estreyes, and of every purpresture and encroachmento
upon the King,p
or upon his dignity.
9.
9.
De chescun
TORT
fait per les ministres l' Roy, et autres al cominaltie del people.
Of all wrongs done by the King's officers and others to the common people.
10.
10.
Et des pur prestures fait en lieu comon, en terre, ou en eawe, ou aillors.
q This article also, as well as No 8, includes the enquiries for encroachments on
streets, roads, rivers,
&c. as being places that are
common
or
public;
but in Fleta this enquiry is ordered by a distinct article. See No 20.
Item de viis et semitis injustè obstructis vel arctatis.
Thus, not only the
obstructing,
but also the
contracting
or
narrowing,
of roads and paths is to be guarded against by the Court of Frankpledge. See also what is called the Statute of
Frankpledge.
(18th Edward II.)
Des voies et Semites amenues
(diminished or contracted)
"ou estoppes,"
(or stopped up.) And also the three preceding sentences relating to encroachments, viz.
Des purprestures faitz en terres, boys, et en ewes a nusance. Des mures, measons, fosses, et hayes leves ou abatus a nusaunce. Des boundes sustreitz et emportes.
And then follows the former quotation.
De voies et Semites amenus ou estoppes.
Enquiries which should never be omitted. See the Common Version in the Statute-book, articles No 7, 8, 9, 10, and 11, viz.
"Of purprestures"
(encroachments)
made in lands, woods, and waters to annoyance. Of walls, houses, dikes,
(or rather
ditches,
)
and hedges, set up or beaten down to annoyance. Of bounds withdrawn and taken away. Of ways and paths opened or stopped. Of waters turned, or stopped, or brought from their right course.
Most of which articles are expressed in the before-cited chapter of Fleta, No 18 and 19.
Item de aquis trestornatis vel obstructis. Item de fossatis, muris, calceis, stagnis, vel hujusmodi ad nocumentum levatis, prostratis, vel exaltatis.
"And all purprestures"
(or private encroachments)
"in"
(any)
"place"
(that is)
"common,"
(or belonging to the public,)
in the land, or in the water, or elsewhere.
q
11.
11.
"Des boundes removes a common nusance."
In Fleta, No 17, may answer to this, as the divisions there mentioned include
bounds of division
as well as common fences.
Item de
DIVISIS
fractis, remotis, vel minoratis.
Of boundaries removed to the common nusance of the people.
12.
12.
De chesc. assise enfreint d' paine, cervoise, vine, draps, poys, mesures, trones, bousseaux, gallons, ulnes, et tolheps, et d' touts faux ballances, et que les ount usees.
The same in substance with Fleta, No 21 and 27.
Item de falsis mensuris et ponderibus, et rectas assisas Regis violantibus.
—
De violatoribus assisae panis, cervisiae, vini, et pannorum.
And, in the articles of 18th Edward II. the substance of this is included in three articles, No 24, 25, 26, viz.
No 24.
Of the assise of bread and ale broken.
No 25.
Of false measures, as of bushels, gallons, yards, and ells.
No 26.
Of faise balances and weights.
Of every breach of the assise of bread, beer, wine, clothes, weights, measures, beams, bushels, gallons, ells, and yards, and of all false seals, and of those who have used them.
13.
13.
Et qui ont achaty per un manier d' pois et de mesures, et vendue per autre manner en fraude des merchants.
This article is No 27 in the
supposed
Statute,
Of such as have double measure, and buy by the great, and sell by the less;
apparently meaning, measures which are
nominally
the same, but
various in size
to gain undue advantage both in buying and selling.
And of those who have bought by one kind of measure, and sold by another kind in deceit of merchants, or buyers.
14.
14.
Des distourbes des fornissements des loyalx judgements, et d' fornissors de forceous, et des ossessors, et consentants.
Of the disturbers of framing lawfull judgements, and of the framers of wrongfull judgements, and of the abbettors, and consenters thereunto.
15.
15.
De chccun torceous detenue d' corps de home, ou d' autre naam.
r
Naam
or
naeme
is Saxon for a
taking
or
seizing
any person. Hence the
Capias in Withernam,
from
naeme,
captio, and
wither,
contra, a writ of
reprisal
to
take
either the
body,
or the chattels, of any oppressor who should be justly suspected of having
taken
and concealed any person in private durance, or to
take
the goods of those who had unjustly seized the goods of others, until restitution and satisfaction should be made.
"Of every wrongful detinue"
or detaining
of the body of a man, or other distresse,
taking,r
or arrest, whether of body or goods.
16.
16.
De chescun faux judgement done pur l'autre view en le Hundred, ou en le fief.
s In the old version this is rendered
"given by the view in the other Hundred,"
which does not sufficiently agree with the original French, and there is no coresponding article in
Fleta
to enable me to find a more satisfactory rendering.
"Of every false judgement given,"
for the other view,• (meaning, perhaps, a retrospect to the preceding view,)
in the Hundred or Fee.
17.
17.
"De chescun forstall faits en le common chemin."
Of every fore-stallment done in the common highway.
18.
18.
"D' touts torceous vēēs."t
This word being
abbreviated
I can only guess (like the former translator) at the word intended to be understood.
Vēēs
may be an abbreviation for the plural of
veue,
the proper French word for
visus,
a
view,
and may refer to the
"wrongful views"
mentioned in article 16, i. e. to any
false judgements
that may have been given in the
preceding views. "Torceous veues"
may also signify partial or
"favourable inquests taken by the sheriff;"
and, so also, if the word intended should be
venues,
torceous
venues,
meaning PACKED JURIES, or juries not duly chosen out by oath from the proper
vicenage,
&c. whereby the sheriffs were enabled to
replevie,
or
bail,
malefactors that otherwise were not
bailable;
and, in this sense, the word
"veues"
also answers to the translation given above. As a remedy to such
"wrongful views"
or
"favourable inquests,"
the 11th chapter of
Westminster Primer,
or 3 Edward I. A. D. 1275, cap. 11, is expressly ordained. In my old edition of 1529 (before-mentioned) it will be found in the 12 chapter. And in the 16th chapter of that edition of the
Primer
(in the common edition, chap. xv.) particular directions are given to distinguish the several cases wherein
bail
or
replevin
may be lawfully given or lawfully refused; and that chapter is copied, not only at
length,
but even with some
additions
by leta in his useful chapter, concerning the
Shiriff's Turns
and
Views of Frankpledge,
to which I have such frequent occasion to refer on this subject. He also directs a distinct article of enquiry, concerning
baitable persons detained, and unbailable persons dismissed.
See No 29.
Item de replegiabilibus injustè detentis, et irreplegiabilibus dimissis.
"Of"
all
"wrongfull replevies;"
i. e. either for regaining possession of goods that have been duly distreined, or for the
bayling,
and setting at liberty, men that have been duly committed to prison. This seems a very
proper article of enquiry,
though it is not obvious at first sight how it can be deemed a translation of the article as expressed in the French copyt of
Horn;
but in the false Statute
of Frankpledge
there is an express article for it, viz.
Des gentes emprisonnes, et puis lesses sauns garauntie.
See No 32 in the English copy of 18th Edward II.
Of persons imprisoned, and after let go without mainprise,
i. e. without finding sureties, either as
bail
for their appearance, or as securities for the peace, and their future good behaviour.
19.
19.
"D' tous torceous rescouses,"u
or
resistance against a lawful authoritie;
(says Dr. Cowell,)
as for example, if a baylife or other officer upon a writ doe arrest a man, and another, (one or more,) by violence, doe take him away, or procure his escape; this act is called a RESCUS.
In the supposed Statute of 18th Edward II. the 19th article seems to have the same object of enquiry, viz.
Of escapes of thieves or felons.
"Of"
all
"wrongful recousses,"
or rescues.u
20.
20.
D' chescun outragious distresse ou en autre fee, ou en market pur forrein contract.
Of every outragious distresse in another fee,
(or manour,)
or in the market for a forraign contract.
21.
21.
D' touts
PONTS
rompues et
CAUSIES,
et chemins, common bridges, et qui les doit repaire.
See also No 33, in Fleta.
Item de
PONTIBUS
et
CALCETIS
fractis.
Of all bridges broken, and causies, wayes, common bridges, and who ought for to repaire them.
22.
22.
w
Des addoubers de viels draps demorrants hors de grands villes en lieux defendues.
Des tannors et blancheors d' quirres. Et d' main curriers.
I have joined these three sentences under one article, or head of enquiry, because I find them so connected in the supposed Statute of 18th Edward II.
x
Des vendours des draps et curriours des quirs aillours que en villes marchandes.
Of the makers of cloathes dwelling out of great towns in places forbidden,
and
of tanners and of curriers of leather.
This article is very different from the French original, as well as from Fleta, and the supposed Statute of Edward II. and it is not easy to trace from any, or all, of these copies what has been originally intended. According to the old copy of the Myrrour it should be
of the dressers
(or patchers)
of old cloths dwelling
&c.w as if the object was to prevent a secret vampingup of old, unsaleable, or damaged, clothes in order to pass them for new. In the articles of 18th Edward II. (No 30,) it is
of cloth-sellers and curriers of leatherx dwelling out of merchant-towns,
which I should suppose to respect rather the
markets,
than the
dwellings,
of the
cloth-sellers
and
curriers,
viz. that all wholesale dealing in
cloths
and
leather
should be at public markets, established in great towns like the famous
cloth
-markets at Leeds and Halifax, and like the great
leather
-market in
Leadenhall,
that proper market prices may be regularly ascertained and known for the common benefit of the manufacturers as well as merchants.
And, if this be really the intention of the article, it will enable us the better to understand how far a man was formerly prohibited from exercising two several trades, viz. not any two trades in general, but only such trades as are so particularly connected together, that the exercise of both by one man might, in some degree, affect the public markets, and (like
forestalling
) prevent the fixing of regular market-prices; and even this
limitation
must be
limited
to such trades only which may affect the
necessary articles of life;
for so, I think, we may understand the examples recited by Fleta; "that the
shoe-maker"
(and, of course, all other consumers of
leather,
the
sadler,
the
breeches
-maker, the
glove
-maker)
"shall not be a tanner,"
(for, otherwise, the proper market-price for
leather
could not be so easily ascertained,)
nor the tanner a butcher,
(which would injure the
fell
-market for
pells
and
hides,
and would give him an undue advantage over other tanners,)
nor the business of a taylor
to be exercised (perhaps) by a
clothier,
or manufacturer of cloth, which would injure the
cloth
-markets; but of this last article I am uncertain; for I acknowledge that I do not understand what is meant by the abbreviated words in the original,
See Fleta, the same chapter, No 35.
Item de abbatoribus coreorum, praeterquam in civitatibus et burgis, et etiam de hiis qui duobus utuntur officiis, videlicet sutoriae, et tanneriae, vel tanneriae et carnificis, vel officio scissoris et dub', et etiam dub', praeterquam in burgis et locis communibus; et plures sunt articuli.
and no article of enquiry ought to be formed on a
doubtful
question.
23.
23.
Des butchers et queux vendont chair suffenne pur sane, et gastre pur bien cit.
z Those butchers who
blow up meat with their breath
are presentable, (according to Mr. Robert Powell's
treatise of the antiquity, authority,
&c.
of the ancient Courts of Lette,
&c. p. 114.) and, of course, are
finable.
"Of butchers,"
and those
who sell unwholesome flesh for that which is sound.
And tainted or "spoiled" (either through too long keeping or want of cleanlinessz ) "for well-conditioned."
24.
24.
"D' ceux qui vendont vine perry pur sanc."
Of all those who sell corrupt wine for sound wine.
25.
25
"Et servoise crue ou rousse ou de feves"
(or made of beans)
ou deceraie"
(perhaps for de cerelle, a sort of perry)
"pur covenable et sane."
"And"
(of those who sell)
"beer"
(or)
ale, raw, and not well brewed, for that which is good and wholsome.
26.
26.
"Des mennes larcines."
In the articles of 18th Edward II. some particular kinds of petty thefts are specified. (No 14.)
Des petitz larons come des owes, selyns, ou garbez.
(No 15.)
Des larons queux sakent draps ou garbes.
Which, in the common version, are rendered,
No 14.
Of pety larons, as of geese, hens, or sheafs.
No 15.
Of thieves that steal clothes, or of thieves that do pilfer clothes
(to which the translator has added)
"through windows or walls;"
as if he understood
"garbes"
to bear a different sense from
garbez
in the preceding sentence, signifying
gerbes,
or
sheaves
of corn, but to mean literally
garbes,
garments, clothes, shirts, or any part of our
garbe
or dress, which thieves might be tempted to pilfer from open
windows, walls,
&c. Fleta has this article of
petty larciny,
but he has prefixed to it the article of
cutters of purses,
whose crime, when they do not fail in the attempt, can seldom be ranked as
petty larciny,
unless we may use the term of
cut-purse
to be applicable to all those petty villains whom we commonly call
"pick-pockets."
See Fleta, No 15.
Item de scissoribus bursarum, et latronibus de modicis latrociniis, aucarum,
(of geese,)
"garbarum,"
(of sheaves,)
"pannorum,"
(of clothes,)
"et hujusmodi."
"Of small larcines,"
or thefts, commonly called
"petit larceny,"
when the goods stolen do not exceed the value of twelve-pence.
27.
27.
"Des scissors de burses."
"Of cutters of purses."
28.
28.
"D' ceux qui les suffrent user lour mestier pur loier." "Of those who suffer"
(other)
persons to exercise their trade for hire.
This perhaps may relate to the several particular branches of trade before-mentioned, (in p. 127 and 128.)
two
of which cannot lawfully be exercised by any one person for the reasons before assigned. And this article may be intended to deter tradesmen in any of these branches from permitting tradesmen of different branches from carrying on the prohibited union of trades, in their name, for hire.
Of those who suffer people to use any mysterie for reward or fee.
29.
29.
"D' pernors d' thefeboot,"
probably the same kind of persons may be intended by
the redeemers of robbery
mentioned in Fleta. See No 30.
Item de redemptoribus latrocinii.
"Of receivers of thief-boot,"
i. e. receivers of
"stolen goods."
30.
30.
"D' sesors et hauntors d' faux dice."
Of makers and haunters of false dice.
31.
31.
"D' outrageous tolners."
"Of outrageous tole-takers,"
i. e. those who take more
toll
than the law directs.
32.
32.
"D' touts trecheors et deceivers."
"Of all other"
cheaters (or trickers) and
"deceivers."
33.
33.
"D' touts manners conspirators."
"Of all manner of conspirators."
34.
34.
Et de touts autres articles qui valer purront a pecher destruer.
This article must, of course, include all the other articles mentioned by Fleta, and also in the articles of Edward II. though they are not particularly mentioned in the
Myrrour.
Also of the breakers of goals, the ravishers of women, and the seducers of wives, and of nuns,
or single women. (No 12.)
Item de fractoribus goalarum, raptoribus mulierum, et abductoribus uxorum et monalium.
In the articles of 18th Edward II.
No 21.
Of women ravished not presented before the coroners.
De rape de feme qui n'est my present devant le coroner.
Which should rather be rendered.
Of the rape of woman which is not presented before the coroner.
This includes not only the detestable acts of violence, which alone is expressed by the former rendering, but also the seduction or carrying off a minor even with her own consent, which in law is deemed a
rape
because of the nonage. The old Saxon laws punished every lascivious affront, or impudent incivility, to women, which might be deemed a leading step to greater injuries, by proportionable
amerciaments,
which the
Court-Leets
and
Views
may surely resume, if they please, in favour of
morality,
to vindicate the just rights of modest women, and to promote honourable marriage, which is notoriously hindered by the prevalence and facility of whoredoms, and by the general neglect of doing justice to poor, injured, helpless, girls,
It is unreasonable and unnatural that all the difficulties and ill consequences of temptation between the youth of both sexes should be cruelly laid upon the
weaker vessel,
whereby she is too often irrecoverably loft, and added to the pitiable swarms of wretched female seducers to revenge her injury on the other sex by the communication of a loathsome disease, till her wretched career in the service of Satan is closed by a miserable and hopeless death! The
marriage act
has greatly added to the promotion of these evils, by taking away the force of contracts, and other circumstances of the
common law,
that was favourable to the cases of injured young women, and this merely to indulge the unreasonable pride of families▪
by punishing their seducers, who, in ancient times, would have been compelled to marry them.
The coroners were particularly required to vindicate the rights of females by enquiring after
rapes,
as appears by the last quotation from the articles of 18th Edward II. This circumstance is not mentioned in Fleta, though we there find a distinct article respecting coroners, in which, however, this crime, as being a
felony,
must necessarily be included. —
Item de feloniis quorum clamor non pervenit ad coronatores.
—
Also concerning
FELONIES,
the cry of which did not reach the
CORONERS.
The
rights
of the crown ought also to be enquired after at the
torns
of the sheriffs, and at
Views of Frankpledge,
(and undoubtedly also at other
Leets,
) not only of
alienations
of land, &c. but also of
escheats
of every kind, and of the
fines, amerciaments,
and other profits, of these popular courts, which, howsoever they may have been granted to private lords of manours, may always be resumed according to the true,
legal,
doctrine of
"nullum tempus occurrit Regi,"
as
res fiscalis,
a branch of the public revenue, which ought never to be sold or transferred by any King to another person, being
res quasi sacra quae dari non potest, nec vendi, nec ad alium transferri a principe vel a Rege regnante;
whereas it is otherwise in the alienation of
lands, tenements,
&c. in which,
tempus currit contra Regem sicut contra quamlibet privatam personam,
as I have shewn in a distinct tract on that doctrine. But the
more sacred
branches of the public revenue, those which are properly
res fiscalis,
should be carefully enquired after; for, if they were duly levied and paid into the exchequer to the public accompt, they would considerably augment the national treasure without
burthening
the people, nay, they would be really, on the contrary,
profitable
to the people, not only in a
moral
sense, by restraining vice of every kind, but also in
pecuniary
advantage, by lowering the
poor's rates,
and by aiding the national treasury, in so essential a manner as would render less taxes necessary.
The 22d article in Fleta, charges the
Leet
-juries with the conservation of the rights of the crown.
Et si in
TURNIS VICOMITIS
vel
VISIBUS HUNDREDARUM
tunc sic, de jure regis relato, vel alienato in terra, vel in mari, per quem fuerit alienatum, vel celatum, et a quo tempore.
Notice should also be taken of any
new
customs or usages set up either in land or water. See Fleta, No 32.
Item de
NOVIS
consuetudinibus in terra vel in aqua levatis.
To which should also be added a strict enquiry after
old customs
and
usages
withdrawn, especially of those which were due to the
popular
courts. See the articles of 18th Edward II. No 6.
Of customs and services, due to this court, withdrawn, how, and by whom, and in what bailiff's
(or hundreder's)
"times."
There are a few other circumstances of enquiry peculiar to the articles of 18th Edward II. viz.
"De ceux queux vount en message dez larons."
See No 16 in the common version.
Of such as go in message for thiefs.
No 22.
"Of clippers and forgers of money;"
(fauseours de la money;) rather
falsisiers
of money. No 28.
"Of such as continually"
(rather
"assiduously"
— "assiduelement")
haunt taverns, and no man knoweth whereon they do live,
or
"from whence this"
(expence)
"comes;" "et home ne syet dount ceo vint."
No 29.
Of such as sleep by day, and watch by night, and fare well, and have nothing.
No 31.
Of such as flie unto church or church-yard, and after depart without doing that which belongeth thereunto.
The latter part of this sentence is differently expressed in the original, viz.
"Et puis sen vount sauns faire l'assesse."
Churches and church-yards no longer afford protection to delinquents, but there are still some
priviledged places
which should be so regulated as not to afford a temporary shelter to debtors, &c. merely to enable them to illude
"the due process of the law,"
and then to escape without making any proper advances towards satisfying the law. "—
sauns faire l'assesse,
" which, I suppose, should rather be
l'assise,
i. e. without demanding a due enquiry into their case by
inquest
or
assise
of a
jury.
The priviledge should afford them, indeed, a short, temporary, asylum from any single, merciless, creditor, yet not so as to favour their escape, but merely to give them time to call their other just creditors together, in order to make an equal division, as far as their effects will go, after giving up
all
upon oath, and then to be absolutely at liberty by the
common law
without fear of farther arrest if there is no just suspicion of concealment. The
"due process of the law"
is sacred, and ought not to be baffled (nor even
delayed
in any other manner than what I have described) by abuses of
priviledged places;
and therefore all
Court-Leets
or
trithings
are competent, as being
"Courts of the King,"
to vindicate the
law,
and to limit the asylum of
priviledged places
within reasonable bounds, so as to
relieve
oppressed debtors without
violently injuring
the
just rights
of creditors. The old common law custom before-mentioned in behalf of debtors, viz. that they should be absolutely relieved from the fear of arrest, by giving up all their effects, upon oath, amongst their creditors, was called, in the North of England,
"swearing themselves bare,"
and I remember some instances of it several years ago, but whether it is still in use I do not know: it is, however, a
reasonable
usage; which, under the regulation of
Court-Leets,
(were they universally revived,) might prevent the
imprisonment,
and consequent
ruin,
of many useful and industrious members of society. The only circumstance remaining to be cited from the articles of 18th Edward II. is No 33.
Of such as take doves in winter by door-falls or engines.
Door-falls
are not mentioned in the original, but
"laces,"
for
lacets,
nooses or
snares.
Some other very necessary subjects of enquiry are mentioned by Fleta though omitted in all the other lists of articles, viz. concerning
all neglects in keeping watch and ward,
and concerning the King's high-ways not duly widened. (No 28.)
Item de vigiliis non observatis, et viis regalibus non elargatis.
And, lastly, (all the
other articles having been already cited.
)
Item de hiis qui retinuerint probatores.
—
Also of those who had retained provers,
or (as they were commonly called)
"approvers."
An approver
signifieth, in our common law,
(says Dr. Cowell,)
one, that confessing felony of himselfe, appealeth or accuseth another, one or more, to be guilty of the same; and he is called so, because hee must
PROOVE
that which hee hath alleadged in his appeale.
Staunf. pl. cor. fo. 142.
And that proofe is by battell, or by the countrey, at his election that appealed.
&c. And whilst the barbarous and unreasonable custom of
"trials by battle"
continued, a hardened villain that was skilful at cudgeling, could bear a hearty drubbing, had it in his power (if it be true that the
appellor
had the election of the kind of trial and not the
appellee
) to compel any honest man that happened to be weaker than himself, either to risque the misfortune of an unequal combat, or to lose his land and fly the country. An enquiry therefore after the
retainers
and encouragers of such dangerous knaves was highly necessary in ancient times, but the
approvers
of the present times, i. e. those culprits, who turn
King's evidence
to save their own necks, cannot now endanger the life of an honest man in trials
by the country
unless the jury be extremly ignorant or partial; because such men, who have already confessed their own crimes, cannot justly be deemed
credible witnesses;
so that their information is of no other avail or weight than as it may lead to more substantial evidence. And, besides the crimes already mentioned, every other act of injustice or vice whatsoever, and even mere
immoralities
(as I before remarked) are within the cognizance of the
Court-Leets
or
Trithings,
which are competent in themselves to
find a remedy
for every
inconvenience
without fearching for acts of parliament, because the latter were
intended,
at least, to aid and promote
justice,
and not to take away or lessen the
just
power of the ancient courts in suppressing
vice
and
immorality.
The pecuniary penalties, however, ordained by statutes against various crimes and misdemeanors may afford to the Juries of
Leets
some information respecting what may be deemed an adequate
amerciament;
but it cannot be levied by virtue of the statute unless there is also an express clause, giving power to
Leets
for that purpose, (like the Statute of 4 James I. c. 5. against
drunkenness;
) but as this, I believe, is very seldom the case, it is better to proceed entirely by the authority of the
common law
in all cases wherein it is not expressly altered or changed by statute. With respect to
drunkenness,
(a vice which generally precedes
most other vices,
and cannot therefore afford the least colour of excuse to
any,
but is rather to be deemed an aggravation to the guilt of
all
vices,) every circumstance of it ought to be strictly enquired after, and the defaulters should be regularly
amerced
without remission that they may want
money,
at least, though they do not want inclination, for that
damnable
Be not deceived: neither fornicators, nor idolaters, nor adulterers, nor effeminate, nor abusers of themselves with mankind, nor thieves, nor covetous, NOR DRUNKARDS, nor revilers, nor extortioners, shall inherit the kingdom of God.
1 Cor. vi. 9.10. also Gal. v. 21.
vice. Profane
swearing
and
cursing,
and also every idle or heedless mention of God's holy name should be duly
mulcted
at the Court-Leet without
respect of persons,
either of rich or poor, except in a due proportion of the
amerciaments
to their
respective
abilities of paying, that the
penalties
may be
felt
and regarded by offenders of all ranks, so that the
justice
of the Court may be
equal
and
effectual.
By a statute of 3: Eliz. c. 7. some other articles of enquiry are submitted to the cognizance of court leets. viz.
If any person hath built, or caused to be built, any manner of cottage for habitation or dwelling, or converted any other building to be used as a cottage
for habitation or dwelling, without assigning, or laying, to the same cottage or building, four acres of ground at the least, &c. lying near to the said cottage to be continually occupied and manured therewith, so long as the same cottage shall be inhabited.
The forfeit or penalty is 10l. to the King, and the upholding, maintaining, and continuing, any such cottage is 40s. for every month. The act does not extend to cottages erected
in any city, town corporate, or ancient borough or market town, &c.
nor to cottages
for the necessary and convenient habitation or dwelling of workmen or labourers in any mineral works, coal mines, quarries or delfs of stone or slate, or in or about the making of brick, tile, lime, or coals, within this realm: so as the same cottages or buildings be not above one mile distant from the place of the said mineral, &c.
nor
to any cottage to be made within a mile of the sea; or upon the side of such part of any navigable river where the admiral ought to have jurisdiction, so long as no other person shall therein inhabit, but a sayler or man of manual occupation, to, or for making, furnishing, or victualling of any ship or vessel used to serve on the sea,
nor
to any cottage to be made in any forest, chace, warren, or park, so long as no other person shall therein inhabit but an underkeeper or warrener, &c.
nor
to any cottage heretofore made, so long as no other person shall therein inhabit, but a common herd man or shepherd, for keeping the cattle or sheep of the town; or a poor, lame, sick, aged or impotent person;
nor
to any cottage to be made, which, for any just respect, upon complaint to the justice of assize, at the assizes, or to the justices of peace at the quarter sessions, shall, by their order, entered in open assizes, or quarter sessions, be decreed to continue for habitation for and during so long time only as by such decree shall be tolerated and limited.
But cottages
"builded upon commons or waste grounds"
were allowed only
three acres
to be enclosed to and with the same; and if
there be above the number of three acres enclosed therewith, the overplus shall or may be laid open by the owner or owners of the same wastes,
&c.
See 3d and 4th Edw. VI. c. 3.
And inclosed
gardens, orchards,
or
ponds,
made in any such wastes or grounds are permitted by the last mentioned act to remain to the owners, if they exceed not the quantity of two acres (§. v. & vi.)
We must necessarily understand that the permission in these two clauses could not have been intended to extend to parts of commons or wastes that have been clandestinely joined by inclosures to any neighbouring freehold land; for the latter is notorious incroachment or pu
presture on public rights by
land owners,
who, on account of the land they already possess, are the least intitled to such an indulgence.
The court leet should also enquire,
If there be any inmate, or more families or households than one, dwelling or inhabiting in any one cottage?
In which case the owner or occupier of the cottage forfeits to the lord of the leet 10s.
for every month that any such inmate, or other family than one shall dwell or inhabit in any cottage as aforesaid,
&c. See the before cited act of 31 Eliz. c. 7. which gives full power to court leets
to enquite and to take presentment by the oath of jurors, of all and every offence in this behalf
(i. e.
respecting cottages, &c.
)
and upon such presentment had or made, to levy by distrest to the use of the lord of the leet, all such sums of money as so shall be forfeited,
&c.
We are farther informed by
Fleta,
in the chapter before cited (viz. lib. ii. c. 52.) that
when the
CHIEF PLEDGES
shall have answered distinctly,
says he,
Cum autem
Capitales Plegii
ad haec capitula distinctè responderint, non solum est eorum veredicto fioes adhibenda, verumetiam sacramento et veredicto duodecim liberorum hominum, qui super indictamentis praedictis et etiam de concelamentis praedictis onerentur veritatem declarare; nec poterunt a sacramento excusari per exceptionem, quod non fine brevi reg', co quod illo die non habebit exceptio locum, quia concessum est omnibus libertatem visus francii plegii habentibus, quod sui liberi tenentes, vel alii liberi ad visus suos sectatores in turnis et visibus jurent, non obstante ullo reglo mandato, vel graviter pro contemptu amercientur, eo quod DIES REGIS EST, ET IN FAVOREM PACIS FUIT INVENTUS.
to
these various heads (or articles) belief is due not only to their verdict but also to the oath and verdict of twelve freemen, who, upon the said indictments and also upon the said concealments are charged to declare the truth; nor can they be excused from their oath by
EXCEPTION,
which
(is)
not without the kings writ, because that
NO EXCEPTION
will have place on that day, for to all that have the liberty of
VIEW OF FRANKPLEDGE,
it is granted that their own
FREE TENANTS, and OTHER FREEMEN SUITORS TO THEIR VIEWS
(or inquest)
shall swear'
(act upon oath)
in
TURNS
and
VIEWS,
notwithstanding any royal mandate
(to the contrary)
or they shall be heavily amerced for the contempt, because that it is
THE KING's DAY
(i. e. the day on which the
great leet after Michaelmas
is held for the
view of frankpledge
is to be deemed the
king's day)
and
IT WAS INVENTED IN FAVOUR OF (the common) PEACE.
And of all other articles availeable for the destruction of offenders.
"And the presentments are to be sealed"
(continues the author of the Myrrour)
with the seales of the jurours, so that none, by fraud, doe increase or diminish them; and that which cannot be redressed there by these presentments is presentable at the shiriffes first turne; and those things which the sheriffes cannot redresse are to be presented by the sheriffes into the exchequer.
All those who are presented for any offence which is mortall, and banished persons who are returned, and their receivers, and those who are not in allegiance under the King, are to be seised upon, and their goods to be seised into the King's hands.
And although it be so that the bailiffe cannot heare and determine any action
AT THE LEETE,
(in the original it is "A LA TORNEE,")
neverthelesse if any one present be grieved by any wrong full presentment, and complain thereof; or if the Bayliffe or Steward have a suspition that the Jurours be, in some case, perjured, by concealing of any offence which is presentable, or of any offender; it is lawfull for the Bayliffes,
(or Stewards,)
by twelve more discreet men,
(in the original —
per
xii.
plus vaillant,
"more courageous" or "more worthy,")
to enquire of the truth thereof without delay; and although that the last Jurours
should
say that the first are perjured, neverthelesse because that no
DECENERY
(in the original, TESTIMONY) "
or Jurour
IS NOT ATTESTABLE" (in the original, N'EST ATTEINTABLE, is not attaintable)
with lesse than
TWO JURYES,
and because the latter
JURIE
is not taken, but
EX OFFICIO,
of the Bayliffe, and not in the nature of an attaint, the first Jurours are
NOT
to be taken
ATTAINTED,
but are only to be
AMERCED.
And if any one profer himselfe to sweare fealty to the King, he is first to be
PLEDGED
in some
FRANCKPLEDGE,
and put into the
DECENERY,
(
mise en
DIZEIN,
placed in a Decenary, the French word DIZEIN, for a
Decenary,
being manifestly the root of the word
dozen,
which now bears a very different sense,)
"ana"
(be)
afterwards sworne to the King; and then he is sobidden to offend and common
(i. e. commune)
with offenders, and he is to be enjoyned to be obedient to his
CHIEFE PLEDGE.
CHIEF PLEDGE, i.e. The
captain of ten,
the elected chief of the
ten deciners
by whom the newly-admitted stranger is to be
pledged,
if he is not a
householder,
but only a
lodger,
a
journeyman,
or a
servant;
but with whom he is to be
associated
and numbered as a
deciner,
if he has qualified himself for it by becoming a
householder.
And to take this oath in these
VIEWS
is none exempted who is past the age of
21
yeeres,
(a transposition of these Figures
viz.
12,
I have already remarked, that 12 years seems too tender an age for persons to be required to
take the oaths,
though it is certainly very proper that all persons of that age should appear at
the view
to be publicly admitted as members of the community, and to be arranged under the protection of some
decenary
of associated housekeepers, in order to be duly
pledged
to the public peace.
Bracton,
as I have before remarked, mentions the age of 14 years; perhaps 16 or 18, when youths are more capable of bearing arms, would be a more reasonable age, or even the
transposed
number 21.
is the number expressed in the original,)
man or woman,
By this it plainly appears that all young
girls,
above 12 years of age, as well as
youths,
are required to appear at the
view of frankpledge,
and of course are liable to be
fined
for non-attendance.
Married women
are excused by the law; but have surely a right to attend with their daughters, if they think it proper to do so.
clerke nor layman, except alliens, strangers, messengers, or merchants, and those who are in custody.
At these Views of Turnes, and Views of Frankpledges,
ESSOIGNES HOLD
("TIEN LIEU ESSOIGNES" essoines take place, or are to be admitted)
where the absence of those who cannot be there is excusable, and such
ESSOINES
are adjournable to the next courts following,
that the ESSOINERS
have
(
"eyent"
may have) "
their
WARRANTS."
Thus it is manifest that the law requires all persons to attend
the view of Frankpledge,
and renders them liable not only to the censure of that court, but also to be
amerced
if they neglect to attend, and have not a reasonable excuse, or legal
essoin,
to justify their absence; so that, if sheriffs and other persons who have jurisdiction of
leets
were but convinced of the general utility of
tithing-associations,
they have already ample powers to re-establish them in their respective districts. And if the whole body of the people, both men and women, were thus regularly and systematically arranged in their proper divisions, all riots, mobbing, and illegal obstruction, at
elections,
and on other occasions of popular concourse, might be
I. e.
proper Certificates of a legal excuse, or admissible reason for their absence from the
View of Frankpledge.
easily prevented, and the obscure sons of violence and anarchy might be most effectually restrained, and, by the facility of discovery, be rendered
"forth-coming,"
and personally responsible for all misdemeanors, and even for such impertinencies and immoralities as ought to be curbed: because every single
unit
of our national
millions
of inhabitants, together with his or her communication and manner of living, might then be easily
traced,
as to a given point, throughout all the regular gradations of
shires, thousands, hundreds, fifties, tithings,
and
families,
even to the very chamber of the sculking delinquent. For, whether a country be more or less populous, it makes no difference in the efficacy and regularity of this system, because the proposed numerical divisions would still bear the same proportions exactly, with respect to each other, in either case, viz. whether the people be few or many. And the lesser divisions of
tithings
are so small and manageable, that every
individual,
as well as every
family
therein, may be easily known and controuled by their elected
Chief-Pledges,
who, with their whole divisions, are again included and controuled in still larger divisions, equally well proportioned, under
superior chiefs,
or
justiciaries.
And these
justiciaries
invested with ample power of
law
and
right,
are so limited, with respect to
tort, wrong,
or
injury,
that they have no authority to act contrary to
common consent,
nor to proceed against any man without
"due process of the law,"
though they have effectual means of information concerning the abode and general circumstances even of the meanest individual throughout all the
tithings
by their nearest neighbours and acquaintance. For, when the tithing are properly regulated with their superior divisions, each Tithing may truly be said to be
as it were a wheel in the middle of a wheel,
(Ezek. i. 16.) and more especially so when the
rotation of watch and ward,
and of other public service, is duly
circulated
throughout all the divisions of a whole nation; for such
"wheels"
are indeed
full of eyes round about,
(Ezek. x. 12.) eyes to convey information and complete knowledge in all popular concerns whatsoever, as I have elsewhere observed on the word
cherubim
See Tracts on
"National Defence by a Free Militia,"
p. 40 and 41.
, so that the most obscure offender cannot escape the justice of the community, whenever he is duly indicted and sought.
If this ancient form of popular government was duly established, it would also regulate, with the utmost precision, the rights of all
electors,
and would completely obviate the specious
objections
against
Parliamentary Reformation
that have lately been published, in a little tract, intituled "
Thoughts on a Parliamentary Reform
This celebrated Tract,
little
as it is in bulk, hath still
less
of truth and justice in its positions and conclusions; so that, after paying all due respect to
the singular wit and humour
of the writer, we must necessarily deem it as
superficial
and
groundless
as it is
short!
but it is nevertheless rendered important and considerable, by the great circulation and public notice with which it hath been honoured: for, though the author did not think proper to prefix
his name,
the booksellers, it seems, have made no secret of it, and the work has been industriously retailed by piece-meal in the news papers, and has, therein, been publicly attributed to a certain facetious old gentleman of rank and consequence in the polite world, and also of considerable celebrity as a writer; by which circumstances we may easily account for the extraordinary ready sale and circulation of such a work.
;" for it would most certainly afford the effectual means of maintaining perfect peace during the time of
elections,
and would render the polling of the electors, (be they ever so numerous,) not only
practicable,
but perfectly easy and free from confusion, even if the limitations of the
right of voting
were drawn out to the most liberal extent that has yet been proposed; even according to the
plan,
which this author
ironically
declares, he
"prefers to all the rest,"
viz.
that of giving a right of voting universally together with annual elections.
This is the plan, which, he says,
appears to be the most uniform, consistent, and effectual:
but then he quaintly adds,
it has, indeed, one capital defect, which is, that it is absolutely and utterly impracticable, &c.
Now, if this was as
true
as it is
witty,
the state of the nation would indeed be desperate! for, if the
"most effectual"
plan of reformation was really
impracticable,
any attempt whatever to correct the enormous
inequality,
or
in-equity,
of the national representation, and its consequent
ruinous venality
and manifold
destructive corruptions,
would indeed be hopeless! and we should, of course, be obliged to embrace this author's forlorn and
disloyal
doctrine, (in p. 17.) which may truly be said to express the scope and drift of all his arguments; because they are, for the most part,
deistically
In a well-intended work of the same celebrated author, wherein
Deistical
notions ought not to have appeared without their antidote, we may find several very heterodox and dangerous positions, stated as the remarks of
"some speculative and refined observers,"
viz. that to such persons
"it has appeared incredible,"
(say he,)
that a wise and benevolent Creator should have constituted a world upon one plan, and a religion for it on another;
&c. &c. (p. 133.) 2dly, That
the love of power, riches, honour, and fame, are the great incitements to generous and magnanimous actions; yet by this institution
(meaning the christian religion)
"are all these depreciated and discouraged."
(p. 134.) 3dly, That
government is essential to the nature of man, and
CANNOT
be managed without certain degrees of
VIOLENCE, CORRUPTION
and
IMPOSITION,
yet are all these strictly forbid.
(ibid.) 4thly, That
nations
CANNOT
subsist without wars, nor wars be carried on without rapine, desolation, and murder; yet are these prohibited under the severest threats,
(p. 134 and 135.) 5thly, That
the non-resistance of evil must subject individuals to continual oppressions, leave nations a defenceless prey to their enemies; yet is this recommended.
&c. &c. &c. And at last, he renders himself answerable for these pernicious and contradictory positions, by indiscriminately adopting them all, and making them his
own,
saying,
To all this I answer, that such indeed is the Christian Revelation, though some of its advocates may, perhaps, be unwilling to own it, and such
(says he)
it is constantly declared to be by him who gave it, as well as by those who published it under his immediate direction:
But, happily for mankind and the honour of our holy religion, the texts, which he has cited to justify his assertion, contain nothing that can possibly afford the least sanction to any such doctrines and contradictions. That
world,
which our Saviour spoke of as being in opposition to
him
and
his,
could not mean
the world constituted upon the plan of the Creator,
but only the wickedness of
worldly men,
such as the apostle Paul has particularly described in his second epistle to Timothy, (ch. iii. v. 2-9.)
Lovers of their own-selves, covetous, boasters, proud,
&c. &c. &c.
Lovers of pleasures more than lovers of God; having
A FORM OF GODLINESS, BUT DENYING THE POWER THEREOF;
from such
(said the apostle)
"turn away;"
manifestly giving the very same advice, which appears in one of the texts cited by this writer, "
Be not conformed to this world,
Rom. xii. 2.
" i. e. to the manners and unprofitable pursuits of such
worldly
men as I have described in the words of the apostle; for of such is surely formed that
world which is at enmity with God,
mentioned in another of the texts cited, by him, from the apostle James. Nay, that
1 Cor. ii. 6. Jom. iv. 4.
wisdom of the world which is at enmity with God
cannot be illustrated by more flagrant examples than these very positions, which our author has unguardedly adopted from
"some speculative and refined observers,"
and more especially the third, that
government cannot be managed without violence, corruption, and imposition,
which I propose more particularly to examine, because it is a
political
doctrine too generally adopted by
placemen
and
pensioners,
and which is manifestly the very principle or essential spirit which pervaded, and has notoriously influenced, every page of our author's
Thoughts on a Parliamentary Reform!
His
first
position is materially connected with the
third,
and will, of course, fall under the same examination. With respect to his
second
position, I shall briefly remark, that, though
the love of power, riches, honour, and fame, are,
indeed most commonly
the great inoitements to generous and magnanimous actions,
yet, for the honour of human nature, these are not to be deemed the
only
incitements, because the MOST
"generous"
and the MOST
magnanimous actions
have much more noble
incitements
than he has conceived, viz. the
love of God,
and the
natural love
of
justice
and
right;
so that his position proves nothing against the merit of actions that are
truly
and
perfectly generous.
And, besides these worthy
incitements,
the agency, or influence, of GOD's HOLY SPIRIT is also to be deemed an
incitement to generous and magnanimous actions;
nay, it is certainly the highest
incitement,
or the
supreme principle of action in man,
by which
all
christians
ought
to be influenced, and most certainly
may
be so, if they do not neglect the promised
means!
This, I trust, is amply proved in my tract on
the Law of Nature,
&c.
The
fourth
and
fifth
positions are grounded on a strange misunderstanding of the true doctrine concerning
non-resistance;
for though, we are, indeed, required to forgive
personal injuries,
and to submit to them with christian meekness, when any one of
ourselves
is individually the sufferer, nevertheless we are, most certainly, bound in christian duty to
resist evil
and
injury
whenever the
persons,
or
property,
of
other
men are in danger; and to defend
each other
from all unjust
violence
and
rapine,
whenever it is in our power to do so; and that even at the risk of our lives, which I have fully stated in my tracts on
Crown Law
and
Passive Obedience.
And, if individuals may, legally, and consistently with their duty as christians,
resist evil
in defence of
each other,
surely a whole christian community, or
nation,
may, most conscientiously, be allowed, in their united legislative or executive capacity, a power of
defending the innecent,
and of
resisting evil
and
oppression:
for this is the true foundation of all
just wars,
which, certainly, in the necessary defence of a
nation,
may be carried on without the guilt of
rapine
and
murder;
since, even between
individuals,
the
inevitable killing
of an adversary, in the necessary defence of a man's own person, is clearly
justifiable
in
law,
as well as in
reason,
which is the
eternal
law of God. And
national justice
in many cases, is unquestionably required to
resist evil,
even unto
blood!
The blood of the murderer (i. e. of the
voluntary killer of a
MAN) is absolutely required to be shed by MAN, (
"by man shall his blood be shed,"
Gen. ix. 6.) and a moral reason is elsewhere assigned for this retaliation by
man,
viz.
for blood it desileth the land: and the land cannot be cleansed of the blood that is shed therein, but by the blood of him that shed it.
(Num. xxxv. 33.) And this, surely, is a
resistance to evil,
a retaliation of
violence in kind
even to the utmost extremity of
violence,
—to death! This, however, must be understood only of
judicial acts
of retaliation, duly limited in all their circumstances by the established laws of the
community,
or nation, which inhabits
the land where the blood is shed;
but, under such due restriction, the retaliation of
blood
for
blood
is so far from being forbid, that the land, it is manifest, cannot be
cleansed
without it. The indiscriminate doctrine, therefore, of
non resistance,
as stated in these two positions, has no foundation in scripture, nor indeed any where else, except in the
misunderstanding
and inaccuracy of these
speculative
and
refined observers!
I may now return to the consideration of his third position, that
government is essential to the nature of man, and
CANNOT
be managed without certain degrees of
VIOLENCE, CORRUPTION, and IMPOSITION,
yet all these are strictly forbid.
The first part of this sentence, as well as the last, must certainly be admitted as unquestionable
truths;
but if the middle part of the proposition were equally
true;
viz. that government "CANNOT
be managed without violence, imposition,
" &c. it would follow, of course, that the
necessity of the case
must regularly supersede all that is so
strictly forbid
concerning it! and then, indeed, these
speculative
and
refined observers
would have a better foundation for their impious insinuation, that the
Creator hath
constituted a world upon one plan, and a religion for it on another!
Nay, I have frequently heard these very principles avowed in conversation, by some other
such "friends to good government"
as our author, in terms to the following effect.
That public business cannot be carried on without
BRIBERY and CORRUPTION:
that the measures of administration are indispensably
NECESSARY
to maintain due subordination and
GOOD GOVERNMENT,
and must not, therefore, be impeded by unseasonable negatives of parliament; so that
POLITICAL NECESSITY
will sufficiently justify the statesman in exerting all possible influence to obtain a majority at any rate.
Thus the plea of NECESSITY is introduced to
palliate
and excuse, nay, even to
justify
and
establish,
the most flagrant enormities! as if
inequity
was become an essential principle of government, so authorized and
established
by the sanction of
general usage,
that every attempt to correct it must be deemed an
innovation to the constitution!
In no other point of view can be understood the fallacious and groundless charge of INNOVATION which has regularly been opposed to
parliamentary reform,
by men of
a certain description,
whenever it hath been proposed. With these
latitudinarians in principle,
all distinctions between
right
and
wrong
must be measured by
political expediency,
because
government,
according to them,
cannot be managed without certain degrees of violence, corruption, and imposition!
Thus the celebrated writer hath very honestly stated the
ruling
maxim of that
venal majority
with whom he always
voted
and
associated.
And, as these
"speculative and refined observers"
have carried this wretched system of
political necessity and expediency
to the utmost extent that it was capable of, I have need only to cite their own
woeful experience,
as a most striking and undeniable example of its absurdity!
The INIQUITY of these acknowledged means of
"managing government,"
viz.
violence, corruption, and imposition,
added to the MISCARRIAGES which such worthy
ministerial accomplishments
have of late years notoriously occasioned, would form too heavy a burden for one broad back! I speak, therefore, of the late
governing
majority, in the aggregate, and shall not be tempted to particularize, unless any of them should still persist in soliciting and inviting, as it were, the national justice against themselves, for their former misconduct when in power, by any farther unreasonable and
provoking
opposition to the necessary
reformation.
Under the baneful auspices of these justifying Majorities and their
Managers,
the Patrons and Friends of this writer, (with the sanction also of his
own steady vote,
in all their measures;) the most disgraceful and pernicious excess, of "
violence, corruption,
and
imposition,
" has been tried and pushed to the utmost exertions of the national strength and resources; and at an expence of blood and treasure, far beyond all example of former times!
And yet the detestable
experiment
has notoriously failed in almost every circumstance proposed to be effected by it, and, instead of
raising a revenue,
to gratify and ease
"the country gentlemen,"
has
sunk
the national resources in a hopeless
gulph of debt,
the very interest of which is an
annual
expence of more than the value of an empire! i. e.
a revenue, by the rule of inverse, against
the state, like the
"negative quantity"
of the algebraists,
"less than nothing,"
a
"minus"
of eight millions per annum, at least, besides a most disgraceful dismemberment of the British empire! So much for the EXPERIENCE of the
"speculative and refined observers."
There are many maxims, indeed, which seem to favour the plea of
necessity,
as
(1.) "Necessitas non habet legem."
"NECESSITY
has no law.
"
(2.)
Necessitas facit licitum quod alias non est licitum.
Necessity makes lawful what, otherwise, is not lawful.
(3.) "Salus populi suprema est lex."
"The safety of the people"
(which even bad ministers will pretend to regard)
"is the supreme law."
(4.) "Necessitas vincit legem."
"Necessity binds the law."
(5.)
Necessitas legum vincula irridet.
Necessity scorns the bands of law.
(6.) "Nihil magis justum est, quam quod necessarium est," &c. &c.
Nothing is more
JUST
than that which is
NECESSARY,
&c. &c.
But the man, who has not sufficient discrimination to assign the due legal limits to these doctrines of
necessity,
is certainly unworthy to be trusted either in
law
or
politics.
For the
common law of England
requires the accomaccomplished
lawyer,
or
politician,
to be also
a christian,
and cannot, therefore, excuse the too fashionable doctrine of the vulgar great, that a
state necessity
is not limited by the common rules of
honesty
and
morality.
The maxims in question, therefore, manifestly
relate only to such
laws
as are made to remedy inconveniencies
not in themselves evil,
mere
mala prohibita;
but cannot authorize any thing that is
malum in se;
for that would be REBELLION AGAINST GOD, which no case can justify
See the protest of a private person against every suspension of law, &c. p. 25 to 44.
For, of those, who say
Let us do evil, that good may come,
the scripture has added,
"whose damnation is just,"
(Rom. iii. 8.) and therefore,
"melius est omnia mala pati quam malo consentire,"
It is better to endure ALL adversities, than to assent to ONE evil measure.
is an established maxim of
right,
(3 Inst. 23.) insomuch that a king cannot
legally
dispense with
"malum in se,"
nor can all the
omnipotence of parliament
establish it by statute; because, by the renovating principles of the common law, any such statute must be deemed
null
and
void in itself,
a mere
corruptela,
and
no statute,
as I have elsewhere amply proved. And, as
iniquity,
or
malnm in se,
is never
lawful,
neither is it ever NECESSARY; but, on the contrary,
impolitic,
and
hurtful,
even to a proverb
"He that soweth
iniquity
shall reap
vanity:
and the rod of his anger shall fall." Prov. xxii. 8.
, as it commonly
"renders bad worse!"
this is the
ordinary
effect of wicked policy, (so amply demonstrated in the
experience
of the celebrated author's
political friends,
) so that even the powerful plea of
necessity
cannot justify such
expedients,
nor excuse the
dishonesty
and
treacherous conspiracy
of those who practise them! because the
immorality
of such evil policy, whether attended with success or not, is always
certain
and
humiliating;
for the
worldly
politician, (who strives to parry off
evil
by
evil,
) from being, perhaps, simply
unfortunate,
renders himself
base, miscreant,
and
dishonourable
In a prophetical description of
an abandoned man,
(see Psalm xxxvi.) it is declared, as a part of such a character, that
he hath not abominated
EVII,
. What then shall we say of those wretched
time-servers,
who not only
vote
for every
evil
measure, and oppose every
good
one, (see
Thoughts on a Parliamentary Reform,
) but even promote and inculcate
evil
by
precept
and regular
principles,
(see the detestable false doctrines of
Political Necessity
already cited.) The
not hating evil
soon draws after it the whole character of
reprobacy!
. These (with due deference to
"the speculative and refined observers"
) are the additions or epithets due to
immorality
whenever it is active; but this is not all: even if the
wicked policy
seems at any time to be successful, if it ever assists in warding off a
temporary misfortune,
yet it only transfers the merited suffering from
this world
to the
next,
by rendering the mere
worldly.
politician obnoxious to
eternal judgement!
which is certainly due to every one that shews himself more afraid of
man
than of his
Creator!
—more a passive subject under
"the prince of this world,"
(which is the
devil
himself, the
"mammon of unrighteousness,")
than a
free citizen of the kingdom of God!
For the indispensable duty of the latter is "
righteousness on all occasions
, literally,
"in everytime,"
or
"at all times,"
for there can be
no time,
when
righteousness
and
true judgement
are not to be maintained, so that there never can be a
necessity
to dispense with them, or
suspend
them: "
Blessed are the keepers
(or maintainers)
of judgement,
" (
, i. e. true
legal
judgement, without respect of persons, of which the constitutional term in England is
"the due process of the law,"
and "
blessed also is he that doth
RIGHTEOUSNESS AT ALL TIMES," (Psalm cvi. 3.) This is an unquestionable AXIOM of the
eternal law
of God, and consequently must be received as one of the infallible
maxims,
or
foundations,
of the
common law of England.
;" this only is
honourable,
this only is
politic:
because "
whosoever doth not
RIGHTEOUSNESS
is not of God.
" (1 John. 3.10) And the same just principle is equally indispensable in the duty of every
free citizen of the kingdom of England,
by all the infallible foundations of our common law; to which the propositions of
"the speculative and refined observers"
are utterly repugnant! How then shall we reconcile them? Must the very
foundations
of our law and national policy be torn up, to make room for a tottering fabric of INIQUITY, frightfully reared and suspended upon the rotten prop of an imaginary NECESSITY! No, let us rather examine whether the proposition be true on which this supposed
necessity
is built? viz. that
government
cannot be managed without certain degrees "of violence, corruption, and imposition!
or whether, on the contrary, this detestable union of three diabolical principles; "
violence, corruption,
and
imposition,
" is not itself the most obvious efficient cause of all the
necessities
and
misfortunes
of every government? and which, if not speedily reformed in our own, must inevitably produce a total subversion of the state and kingdom?
Search the histories of all preceding nations that are either entirely lost and overwhelmed with calamity and misery, or else still unhappily continue upon earth, a contrasted memorial of their once flourishing ancestry, in a wretched existence of
political slavery,
subjected to the despotic will, caprice, and misgovernment, of arbitrary tyrants, and see if a single instance can be found among them of any nation being thus deplorably reduced, till these baneful seeds of destruction,
violence, corruption,
and
imposition,
(planted and watered by the
refined observations
of such
"speculative"
writers, as the author of
"Thoughts on a Parliamentary Reform!"
&c.) had taken deep root, had sprouted, grown up, and flourished, (under their fostering hands,) till they were ripe for such a harvest! and yet these
refined observers
would have us believe, that the Creator hath
constituted a world upon one plan, and a religion for it on another,
(p. 133.) as if there was no DIVINE PROVIDENCE
in this world
to favour and encourage
just
men and
just
measures! or as if
"God's ways were not equal,"
which, it seems, was an erroneous conception also of the backsliding people of Israel.
Yet, saith the house of Israel, The way of the Lord is not equal.
O HOUSE OF ISRAEL, ARE NOT MY WAYS EQUAL?
are not your ways unequal? Therefore will I judge you, O house of Israel, every one
ACCORDING TO HIS WAYS,
saith the Lord God. Repent, and turn yourselves from all your transgressions;
SO INIQUITY SHALL NOT BE YOUR RUIN,
&c. (Ezek. xviii. 29, 30.) By the
ruin
here spoken of, as occasioned by
iniquity,
is to be understood a
temporal
ruin, to be brought upon their nation, on account of the
violence, corruption,
and
imposition,
and other
iniquities,
with which their political
"government"
was unhappily
"managed."
This sense is rendered obvious by the preceding chapter, as well as by several which follow it; and particularly, in the 22d chapter, these three baneful
iniquities
are plainly pointed out, as principally concurring to effect the then approaching destruction of Jerusalem! And first, with respect to "VIOLENCE."
Behold,
(said the prophet,)
the princes of Israel, every one were in thee to their power to shed blood.
And again,
—
in the midst of thee have they
DEALT BY OPPRESSION
with the stranger: in thee have they vexed the fatherless and widow.
And, with respect to their IMPOSITION and DECEIT,
In thee
(said the prophet)
are men which
CARRY TALES
to shed blood;
and, with respect to their CORRUPTION and BRIBERY,
In thee
(said the prophet)
have they
TAKEN GIFTS
to shed blood!
And these, with other crimes, are expressly declared to be the true causes of their political failure, and national disgrace;
"behold, therefore,"
(said the prophet, in the name and power of him who sent him,)
I have smitten mine hand at thy dishonest gain which thou hast made, and at thy blood which hath been in the midst of thee. Can thine heart endure,
(or
be firm,
)
or can thy hands be strong, in the days that I shall deal with thee?
I, THE LORD (JEHOVAH,)
have spoken
(it)
and will do
(it.)
And then follows the denunciation of vengeance, the usual effect of such
"management"
in politics!
And I will scatter thee among the heathen,
(or nations,)
and disperse thee in the countries, and will consume thy filthiness out of thee.
(Ezek. xxii. 6-15.) These are clearly
temporal
judgements;—
the expulsion
of a
whole nation from their native country,
and their dispersion as vagabonds amongst their enemies, for their
wicked policy
in having
"managed"
their
government
with "
violence, imposition,
and
corruption!
"
In the 33d chapter, also, the prophet again repeatedly reproves their impious supposition of an
inequality
in the
ways
of the
Creator,
which appears to have been essentially the same with the
Deistical
proposition of our
"refined observers,"
about
a world upon one plan, and a religion for it on another.
See verses 17 to 29.
Yet the children of thy people say, The way of the Lord is not equal: but as for them,
(said the prophet speaking of the
"speculative refined observers"
of that day,)
their way is not equal. When the
RIGHTEOUS
turneth from his
RIGHTEOUSNESS,
and committeth
INIQUITY,
(whether in "
violence, imposition,
or
corruption,
" or as a literary advocate for all three!)
he shall even die thereby. But, if the wicked turn from his wickedness, and do that which
is LAWFUL and RIGHT,
he shall
LIVE THEREBY.
Yet, ye say, the way of the Lord is not equal. O ye house of Israel, I will judge you every one after his ways.
And a little farther, in the same chapter, the prophet is charged with a solemn appeal to them, concerning the
improbability
of their being permitted to continue in
possession of their country,
if they continued their detestable practices of
violence,
&c. in direct opposition to the
plan; religion,
and
laws,
of the Creator!
Wherefore say ye unto them, thus saith the
LORD GOD;
Ye eat with the blood,
(a practice expressly forbid under the
patriarchal
and
Christian,
as well as the
Mosaic,
dispensations,)
and lift up your eyes toward your idols
This is a charge of criminality which cannot be evaded by those who pray before
images,
on the delusive pretence of assisting their devotion: for, though their prayers may be addressed to the
prototype,
yet they are certainly guilty of
lifting up their eyes toward their idols!
and shed blood: and
SHALL YE POSSESS THE LAND?
Ye stand upon your sword,
(i. e. they trusted in their
standing armies,
the power of
the beast,
and the source of all their criminal VIOLENCE,)
"ye work abomination,"
(which includes every species of CORRUPTION and immorality,)
and ye defile every one his neighbour's wife
Thus
private
vices also hasten
public
calamities, and
national
disinheritance, and should, therefore, be strictly presented and suppressed, by censures and amerciaments, in the courts of the congregation, the only effectual means of restraining
immorality!
; and "SHALL YE POSSESS THE LAND?" and then follows God's vindication of his PROVIDENCE, in an awful denunciation of a
sure temporal vengeance
for such enormities!
Say thou thus unto them, Thus saith the
LORD GOD,
(as) I live, surely they that are in the wastes shall fall by the sword, and him that is in the open field will I give to the beasts to be devoured, and they that be in the forts and in the caves shall die of the postilence. For
I WILL LAY THE LAND MOST DESOLATE,
and the pomp of her strength shall cease; and the mountains of Israel shall be desolate, that none shall pass through. Then shall they know that I am the Lord, when I have laid the
LAND
most desolate
BECAUSE
of all their abominations which they have committed.
It is manifest, therefore, that the Creator hath NOT
constituted a world upon one plan, and a religion for it on another,
but, as
"his ways are equal,"
doth indispensably require all men who profess
his religion,
as well
rulers
as
subjects,
to conduct themselves in all things according to the
plan of that religion,
which is
righteousness.
For
the Prince of peace,
our leader and instructor, is also
the King of righteousness;
and, accordingly, the
only plan of government,
which christians can hope to maintain
in this world
with prosperity and success, must be that of "
righteousness;
for "RIGHTEOUSNESS
exalteth a nation,
" "
but
SIN
is a reproach to any people.
" (Prov. xiv. 34.)
The throne
is established by
righteousness,
(Prov. xvi. 12.) See also the noble maxim of
eternal law,
in Psalm xxxvii. 37.
which may thus be rendered,
preserve
INTEGRITY,
and regard
RIGHT,
for the after-effect to a man is peace.
This is the uniform doctrine of many other texts, which manifestly relate to the
management of temporal governments in this world
The advice of the apostle Paul to the Philippians, (ch. i. v. 27.) was manifestly intended to regulate their whole behaviour as a
christian community,
and not merely their duty as
individuals.
Only let your
CONVERSATION
be as it becometh the gospel of Christ.
The imperative verb,
, in our letters,
politeuesthe,
rendered,
let your conversation be,
) included the
political
duty of the Philippians, in all their
public
transactions and arrangements for the government of their
community,
as well as the duty of
individuals:
and the maintaining such
becoming conversation,
in all our dealings, public or private, as may be suitable to our religious profession, is not only a rule of
christianity
but also of the
old law. Right,
either in the practice of the courts of judgement, or in politics, was never to be set aside. Nay, not only
right,
but
right right,
i. e.
perfect right,
or, as it is rendered in our common version, "
that which is altogether
JUST
shalt thou follow.
" And the
reason
for that excellent
rule
is not less binding upon
Englishmen
at this day than it ought to have been upon the Israelites, to whom it was originally declared, viz.
that thou mayest live and inherit the land.
A reason, surely, which ought to awe all temporal governments into a strict observance of
"right right,"
of invariable
righteousness
and
honesty
in all their measures. See Deut. xvi. 20.
That which is altogether just
(
, or RIGHT RIGHT)
shalt thou follow, that thou mayest live and
INHERIT THE LAND
which the Lord thy God giveth thee.
Therefore, even in
worldly policy
as well as in
future judgement,
the old English proverb is irrefragable,
"Honesty is always the best policy."
, and therefore
"the world,"
or that part of it, which is
constituted
upon
a different plan,
is NOT
constituted by the Creator,
neither can it have any part in him
For,
what fellowship is there between RIGHTEOUSNESS
and
ILLEGALITY? (
;) and
what communion to
LIGHT
with
DARKNESS?
and what concord to Christ with Belial?
2 Cor. vi. 14.
; but belongeth to that being alone, which
deceiveth the nations,
to their
temporal
as well as their
eternal
destruction.
That old serpent, called the devil and satan, which
DECEIVETH THE WHOLE WORLD!
(Rev. xii. 9.) i. e. deceiveth all that numerous and unhappy part of mankind that do not resist him according
to the Creator's plan of religion,
but blindly adopt the contrary plan of "
violence, corruption,
and
imposition.
" These are the servants and ministers of Satan! and not of God! and every
"government," managed
on such principles, is manifestly a
branch
of Satan's temporal dominion, fitted for destruction; a hateful part of
that world,
which is opposed to the kingdom of Christ, in the several texts that have been so grossly misunderstood by the celebrated writer abovementioned!
"Let no man deceive you,"
(said the beloved apostle of Christ,)
he that doeth
RIGHTEOUSNESS
is
RIGHTEOUS
even as he is
RIGHTEOUS.
He that committeth sin is of the devil; for the devil sinneth from the beginning.
And again,
in this
THE CHILDREN OF GOD
are manifest, and
THE CHILDREN OF THE DEVIL:
whosoever
DOETH NOT RIGHTEOUSNESS
is not of
GOD,
neither he that loveth not his brother.
(1 John iii. 7, and 10.) So that even the
omission
of righteousness is also fatal and impolitic, though not, perhaps, in so great a degree as the actual exercise of our celebrated author's three practical principles of
iniquity.
In the history of David, we find that his
omissions
to execute
justice
and
right,
on some occasions, were attended by punishments almost as exemplary as those which marked his actual crimes. His neglect to punish his son
Amnon
's detestable violence and persidy, towards his sister
Tamer,
produced the treacherous murder of
Amnon
by his brother
Absalom;
and again, his farther neglect to punish
Absalom
for that notorious
murder
(for no
human authority
can pardon murder) left him a
bloody
enemy to seek his own life, and actually to dethrone him for a time!
The holy scriptures abound with such striking instances of
bad,
as well as of
good,
actions; but
all
of them are to be deemed as
ensamples, written for our admonition,
(1 Cor. x. 11.) and therefore, we must not presume to say, with the celebrated author, that some of the occurrences, related in scripture, are
of no importance at all,
(p. 128.) and, the more especially, because even the
occurrences
which he himself has picked out
"I have no doubt," (says our celebrated author,)
but that St. Paul was shipwrecked, and that he left his cloak and his parchments at Troas; but the belief of these facts makes no part of christianity, nor is the truth of them any proof of its authority. It proves, only, that this apostle could not, in common life, be under the perpetual influence of infallible inspiration; for, had he been so, he would not have put to sea before a storm, nor have forgot his cloak.
and cited, as samples of this unwarrantable doctrine, (and, doubtless, a gentleman, so celebrated in the polite world for wit and genius, must be supposed to have chosen the most
obvious samples
that could be found, if there were any,) are so far from being of
no importance at all,
that they are, on the contrary,
highly important,
and truly
profitable for doctrine, for reproof, for correction,
&c. as, indeed, every other occurrence related in scripture most certainly is both
important
and
necessary,
in some respect or other, whether we have sagacity to discover it or not; because the same authority assures us, that
ALL SCRIPTURE (is) given by
inspiration of God, and
IS PROFITABLE
for
DOCTRINE,
for
REPROOF,
for
CORRECTION,
for
INSTRUCTION
in righteousness,
&c. 2 Tim. iii. 16.
Happily the celebrated writer, it seems, has
"no doubt,"
of
"these facts,"
for otherwise
"the belief"
of them, he must allow,
"is necessary,"
if it is but for
one plain reason,
viz. that they
are related in the holy scriptures:
but whenever the occurrences, mentioned in scripture
are related in any other way,
in any way, I mean, that is
contrary to,
or
unsupported
by, the scripture-account of them, (like the celebrated author's
own way of relating
the occurrences in question) then, indeed, as he says,
"the belief of these facts,"
when SO RELATED,
"makes no part of christianity!"
When this gentleman, for instance, remarks concerning
"the truth of them,"
that
it proves, only, that this apostle could not, in common life, be under the perpetual influence of infallible inspiration,
(a point which requires no proof or dispute at all,) he immediately subjoins, by way of illustration, a state of circumstances which is utterly discordant with the scripture-account of
"these facts,"
saying,
"for, had he been so,"
(i. e. under the influence of inspiration,)
he would not have put to sea before a storm, nor forgot his cloak.
But the celebrated author himself had
"forgot,"
(it seems,) that the apostle
was a prisoner
at that time, and could not avoid being
"put to sea,"
so that this circumstance
proves
nothing at all to the purpose of his argument; and he has
forgot,
likewise, another circumstance which is still more unlucky for his assertion, viz. that the holy scripture has expressly informed us, that the apostle
actually foretold the danger of the voyage,
and has thereby given us ample proof of his being under
the influence of infallible inspiration,
at the very time, and in the very fact, which the celebrated writer has ingeniously cited as a proof to the contrary! (See Acts. xxvii. 10.) The occurrence is, therefore, so far from being of
"no importance at all,"
that it is, perhaps, the
most important
of any in the whole history of that apostle! if we except his conversion; because the actual attention of
divine providence
towards just and righteous men is exemplified (for the comfort of all persons that are truly religious) in this eminent instance of God's regard to the person of Paul, in giving him such
foreknowledge for his preservation.
And the other circumstances of the shipwreck are also
highly important
in many other respects; for, though the ship was really lost,
agreeable to the apostle's prediction,
yet God afterwards
gave to Paul the lives of all that failed with him,
whereby he was authorized to assure them of safety, even when they were at the utmost extremity of danger, saying,
there shall not a hair fall from the head of any of you,
though there were 276 souls on-board! so that the celebrated writer has, indeed, picked out a
most important occurrence
to serve him as a sample of those which he supposes
"of no importance at all!"
and, as to the other
supposed
occurrence, (viz. that the apostle had
"forgot his cloak,"
) it has not the least foundation in holy scripture, or elsewhere, that I know of, except in the lively imagination of this agreeable
writer,
in order to give a quaint and facetious turn to the end of one of his sentences, which is an object of more importance, it seems, with some fashionable authors, than
truth
itself! That the apostle LEFT
his cloak in Troas,
(
,
which, "I
LEFT," says he,
"in Troas with Karpus,"
2 Tim. iv. 13.) and, probably,
his books
also, is not to be disputed; but we have no warrant to suppose that he
FORGOT
either cloak or books, unless we may be allowed to confound all due discrimination of words and their separate senses for the sake of a
bon-mot.
And even this circumstance of the apostle's having
"left his cloak and his parchments at Troas"
(immaterial as it may seem at first sight) is not to be esteemed
"of no importance at all;"
for this teaches us that the apostle
though under a
WATCHFUL PROVIDENCE)
found it necessary to provide against such natural insirmities as it is committed to the guardianship of human care to fence against; and, though he was instructed with an abundance of revelations,
(yet)
that did not supersede the necessity and use of books, for such improvement in knowledge as was within the power of human industry.
(See Mr. Ridley's Sermon preached before the hon. Trustees for establishing the Colony of Georgia, and the Associates of Dr. Bray, in 1746, p. 15.) These
occurrences,
therefore, I hope, will at length prove both
"important"
and
"profitable"
even to the celebrated writer himself; because a careful review of them, as
related in scripture,
must convince him that he has been too hasty and superficial in his citations; whereby he himself stands as much in need of
"reproof"
as his celebrated writings do of
"correction;"
so that his good sense, I hope, will incline him to
profit
by the
"instruction"
which necessarily arises from these two
humiliating
circumstances: and, if ever he should conceive that I may be able to assist his farther
improvement
by the removal of any apprehended disticulties, he may assuredly command my best endeavours.
founded, not only on the like false idea of the universal and irremediable existence and prevalence of
wrong
in this world, but also (which is still worse) on the same imaginary NECESSITY
of yielding to that wrong,
for the maintainance of government; i. e. the delusive and baneful doctrine of a NECESSITY
to
do evil, that good may come,
the common received notion of
Deistical
time-servers, who will not admit the true comfortable doctrine of God's immediate direction and providence over all his works, and consequently cannot form any idea of the NECESSITY
of doing right,
and of being strictly
just
on all occasions, exceeds every other
necessity,
and removes all difficulty from the soundest and best
policy
in the government of states and kingdoms;—
"fiat justitia, ruat coelum."
This gentleman's abilities as a writer, his ready wit, and smooth agreeable stile, insure a ready reception of his sarcasms even against the most interesting and serious
truths,
I mean, with careless, superficial readers, who delight more in wit, or in elegant expression, than in real information. But, with men of common
sense,
and common
honesty,
it may be deemed a sufficient answer to this gentleman's sophistry, to remark, that, in
proving too much,
he has far overshot his mark, and
consequently proves nothing
that he has aimed at! because his
ingenious
arguments, against all honest endeavours to reform national abuses, and against every plan that has yet been proposed for lessening the corruptions of
parliament,
hold equally good against
having any parliament at all!
and, when we find that this apparent tendency of his arguments is not only a necessary conclusion to be drawn from thence, (exactly what an opponent would wish to fix upon him,) but, also, that it is a conclusion expressly acknowledged, even in his own words, (see p. 17. that
those, who cannot make shift with such a parliament, must have none,
&c.) we may fairly suppose, that he is not more serious in this than in most of his other positions, and, of course, that
the schemes presented to the public by real and pretended patriots, that is,
(as he says,)
by those who have more honesty than sense, and those who have more sense than honesty,
are not the only objects of this subtle writer's irony, but that he meant equally to ridicule the whole pack of their yelping
opponents,
even his staunch old friends, the pensioned advocates for
corruption
and
good government,
(as they are pleased to call it,) by setting them full cry upon false scents of untenable arguments!
But, if I am deceived in attributing to him a deeper
"sense,"
and more
"honesty"
at bottom, than, perhaps, he is willing to acknowledge, yet I should be sorry to fall into the contrary extreme of imputing to him any degree of that unhappy disproportion between
"sense"
and
"honesty"
which he himself, without the least scruple, so quaintly and facetiously imputes to every other person that has written upon the subject! Common charity, therefore, obliges me to give him credit, at least, for the
honesty
of meaning well, howsoever wide his arguments may be from truth and loyalty; and, as to his
sense,
I have never presumed to question it, but only the
use,
or rather the
abuse,
he has made of it; for, after all, my hopes of being pardoned, for the freedom of these remarks, must rely on his
good sense,
and I sincerely desire to experience so notable an instance of it, though I am far from expecting the farther satisfaction of
receiving his thanks
for my labour and pains in searching and proposing an
effectual remedy
to the
"one capital defect"
of his most eligible plan of reformation, because a removal of this
defect
(in his opinion, it seems) would deprive the
favoured
plan of
"its chief excellence,"
viz. its supposed
impracticability;
an
excellence,
however, to be relished only by professed
enemies to reformation and order!
To be convinced of the
IMPRACTICABILITY
of this scheme,
(says he in p. 6.)
let us but figure to ourselves
multitudes
of all descriptions and denominations called out to exercise their right of voting, inflamed by contest and intoxicated by liquor;
&c.
But it is more reasonable, in the first place, to consider the actual state of things;
"let us,"
therefore, rather
figure to ourselves
(what is really the case at present)
multitudes of all descriptions and denominations
actually
called out
(not indeed
to exercise their
RIGHT
of voting,
but what is far more dangerous to the community)
to exercise
the WRONG
of preventing others from voting,
by tumultuously obstructing every avenue to the poll-books, and raving with all the horrible malice that the devil and drunkenness can inspire, that they may intimidate and hinder quiet electors, that really
have the right of voting,
from
"exercising their right!"
so that
elections
can be no longer
free
whilst such notorious
menacing,
and open violence, is so generally tolerated!
Let us,
also,
"figure to ourselves"
(for the horrible scenes have been too recently imprinted on our memories to be easily effaced) these suborned
multitudes of all descriptions,
and beyond all description, or of no description at all, as much
inflamed by contest and intoxicated by liquor
as they possibly could be, even if admitted to a
"right of voting;"
weavers from their looms, and miners from tinneries and coal-pits; sailors from their ships, and soldiers from their quarters; to whom we must add,
(as the celebrated author has done,)
thousands of thieves, smugglers, rogues, vagabonds, and vagrants;
and
we must add,
also, select troops of Irish chairmen from the environs of the polite gaming-houses, and whole bands of journeymen butchers, the very scum and offal of all the shambles brandishing their formidable cleavers!
I say, let us figure to ourselves all these respectable
hinderers and obstructors of
free
election,
let loose
not only for
"one day,"
but for many days together,
throughout every part of the kingdom, and such a scene of confusion, of drunkenness and riot, of rapine
and even of
"murder!"
&c.
"will present itself"
(by due recollection of very recent facts, more strongly than by mere
imagination
)
"as must shock us,"
indeed,
"with horror,"
and ought, therefore, to convince us, that we already experience the most consummate mischiefs and inconveniencies that can possibly arise either from the
multitude
or the
meanness
of the persons that usually attend elections! What then must we think of the
morality
and
patriotism
of those persons, who regularly oppose every attempt to reform these intolerable grievances and corruptions?
With respect to the
danger
which the celebrated author apprehends from all the rabble being
let loose in one day throughout every part of the kingdom,
it is a mere bugbear: are they not, at present, frequently
let loose in one day throughout every part of the kingdom,
even
"one day"
in every week? Nay, are they not at liberty
any day,
or
every day,
to be as
"loose,"
if they please, as those haughty persons who falsely esteem themselves so much their betters? and yet, perhaps, they are
not more licencious,
though certainly
much less guilty,
than their unprincipled CORRUPTORS, a great majority of
"the honourable gentlemen,"
as they call themselves, who solicit their favour at elections, to whom
all the mobs
and
all the mischiefs,
on those occasions, are chiefly to be attributed! for those men who bribe, treat, lead, and excite, these disorderly
multitudes,
cannot surely be exempted, by their rank, titles, or fortunes, from being deemed a
part of the mob,
when they are notoriously the most
guilty and vicious part
of it, by being principals and movers of the rabble!
And such men should remember that the vile practice of
opening houses, for election purposes,
is a species of
bribery,
not only the most
pernicious
to the people and kingdom, but also the most effectually
degrading
to themselves; because they are thereby absolutely
incapacitated, in law,
to take their seats, (see note in p. 48.) and therefore all those persons, that may fairly be convicted of this most
pernicious
and
degrading
misdemeanour, ought most certainly (for the honour of the house) to be ejected!
Let us also figure to ourselves
the present inconvenient and hopeless method of
determining disputed and undue elections,
and also the
lamentable number of them,
by which the precious time and attention of the great
national council
must be principally engrossed, to the manifest hindrance of national business: whereas in ancient times, when
general elections
throughout the kingdom were
every year once and more often if need be;
viz. previous to
every session
of parliament, though the
sessions
were held not only
annually,
but often twice, and sometimes three and four times in a year, yet
there were not above two or three cases of elections questioned, or complained of, for above
200
years!
(see "the Legal Means of Political Reformation, p. 32 and 55.) so that a restoration of our ancient parliamentary rights, and a due reformation of modern abuses and
innovations,
are unquestionably necessary to be demanded now that the exercise of our inestimable franchises are sunk down (through the
enormous disproportion
of popular Representation) to the
very lowest degree
of possible existence, and that all our public circumstances are really tainted with the most
noxious corruption
imaginable! exceeding any
superlative of it
that can either be expressed or even conceived! In short, there is but
one degree lower, in humiliation and baseness,
to which the nation can possibly descend! and that would be to adopt the wicked and
disloyal
position of this celebrated writer, viz. that
those who cannot make shift with such a parliament must have none.
For to be contented, like him,
to make shift with such a parliament
would certainly be the
lowest degree
of
parliamentary corruption;
for it cannot descend any lower, as I have already remarked, without actually losing its existence, and therefore
the one degree lower
would be to admit this gentleman's baneful alternative, the
having no parliament
at all; which is certainly
the lowest degree of
POLITICAL SLAVERY!
The
necessity,
therefore, of
a parliamentary reform
is UNQUESTIONABLE, notwithstanding this celebrated writer's
"Thoughts"
to the contrary; and the
practicability
of it will be equally certain, if the
constitutional remedy
to the present national
immorality
and
corruption
is but previously applied, viz. a due
re-establishment of the ancient
VIEW
of
FRANKPLEDGE, with all its
just
and
legal
usages and appendages; for this is the true
state-antiseptic
which will sicken the
worms of undue influence
and put an effectual stop to their baneful progress on the vitals of the English constitution; especially if some farther reasonable and very necessary heads of
enquiry
be added to the
articles of annual inquest,
which I have already stated in pages 112 to 132, and ought to be inserted after the 33d article, (
Of all manner of conspirators,
) leaving the article, there distinguished by the number 34, for the conclusion of the whole.
Item, (34.) Whether the
Elections of members to parliament have been freely and indifferently made without charge or expence,
as required by the laws of this kingdom? See 7 and 8 W. III. c.iv. A.D. 1695. and 2 Geo. II. c. 24. A. D. 1729. What person or persons have received
bribes
of any kind, or have
eaten or drunk
(the most pernicious participation of
bribery
) at the expence of others during the time of an
election?
The penalty of receiving any
"reward whatsoever"
on such occasions is 500l. besides an
incapacity
from ever voting again: see stat. 2 Geo. II. c. 24. And
meat and drink, entertainment or provision,
are expressly deemed articles of
reward
in the previous statute of king William. See note in p. 48.
35. What attornies, or other persons, have been agents in distributing money, or other reward of any kind, or in promising reward or emolument during the time of an election?
36. What public houses have been
opened
(a term sufficiently understood by the notorious practice of it) for the purpose of influencing any election, after the teste of the writ, or after the place became vacant? and who hath paid (or hath undertaken to pay, and is, directly or indirectly, responsible) for the expences incurred by such public and unlawful entertainment? If the proofs on this head can be fairly traced, so as to criminate the
persons elected,
they are thereby effectually incapacitated from holding their unjustly-acquired seats in parliament, and by virtue of the above-mentioned statute of 7 and 8 William III. are
to be deemed and taken
no
members in parliament, and shall not act, sit, or have any vote or place,
&c.
as if they had never been returned or elected members for the parliament;
and the act does not limit the conviction to any fixed period of time after the offence; so that there is ample leisure and opportunity for researches on that head; which all true friends to the
honour and dignity of parliament
ought to promote.
37. What publican or victualler hath supplied
meat, drink,
entertainment,
or
provision,
during the time of an election, to any person or persons whom they might justly have suspected of not intending to pay for the same at their own cost and charge? For, in this case, the publican is as much a criminal agent in
bribery,
as the petty-fogging attorney who
bribes
with cash, notes, or promises, and is equally liable to all the penalties of
bribery.
38. And what person hath made any disbursements or expenditure whatsoever, either in his own behalf, or in trust for others, or even promise of expenditure, or repayment, directly or indirectly, to promote such dishonest and baneful practices against the peace and welfare of the community?
There is no doubt but that regular
annual
enquiries upon oath, in all parts of the kingdom, on these points, would put an effectual stop to the
expences
and
corruption
of elections, and consequently to the
tumults
and other immoralities of them, whereby the trite argument against the
constitutional frequency of elections
would, of course, be superseded; so that the ancient right of newly electing our representatives for
every session of parliament
might again be happily restored, without either
inconvenience
to the electors, or
expence
to the candidates.
And lastly, as the original intention of these legal divisions of the people into
tithings
and
hundreds
was obviously for
military,
as well as
civil,
purposes, some other additional articles of enquiry will also be necessary to re-establish and maintain the ancient
legal military duties
of the people in a regular WATCH and WARD throughout the kingdom, in order to prevent every species of
robbery, riot,
or other
violence
whatsoever, by internal enemies, as well as to be thoroughly prepared, without the enormous and ruinous expence which at present is thought necessary against the apprehension of invasions by foreign enemies.
That this was an ancient object of enquiry at
views of Frankpledge
is manifest, by the article which I cited from
Fleta,
in p. 138. n. viz.
Item de vigiliis non observatis.
Also concerning watches not duly observed.
That the ancient and true constitution of the English state absolutely requires every man (the clergy and judges excepted) to have
arms,
and to be duly
trained
and
exercised
in the use of them, I have amply proved in my
Tracts on the Means of National Defence;
so that, from thence, it will be very easy to form such
additional articles of enquiry
as may be necessary to restore and preserve these two great national objects, the
general arming
and
training
of the people to military services, in WATCH and WARD; whereby the imaginary necessity of maintaining
a numerous standing army in constant pay
(the most dangerous and unconstitutional of all our modern
innovations
) will be effectually superseded, and, of course, a probable means and opportunity would thereby be laid open to a
virtuous
administration of government (a title that will most certainly be due to any administration that shall adopt and restore the
just
and
free
constitution of
tithings
and
hundreds
in their ancient
legal
purity) of crowning their success, in reformation, with an effectual reduction of the
national debt
and
taxes,
by means of the great annual savings that would arise from a proper
gradual decrease
I say a
gradual decrease,
because I wish the reduction of our armies to be made without injury or any material inconvenience to the brave officers and men that have faithfully served therein, to whom are certainly due all the kindness and reasonable liberality that the nation can afford to shew them: and, though I am a
professed
enemy to STANDING ARMIES in general, yet, at the same time, I
profess,
and really entertain, a very cordial regard and benevolence to the deserving
individuals,
of which they are composed. The kind of reduction, therefore, which I wish to see, is such as they themselves, I believe, would not think either
unjust
or
hard
upon them: and yet, I trust, that
the savings,
arising from it, would be as
effectual
and
speedy
as those of any other plan that the nation can (with consistent honour and due liberality to the parties) adopt. Let us, therefore, suppose a reduction to be made
by time
rather than by the
involuntary discharge
of any one; and by putting an
entire step to recruiting, and to the granting of any new commissions,
rather than by the
stoppage
of pay. Let
discharges,
however, be
freely granted
to all that
request
them; and let
liberal bounties
(in proportion to rank and pay) be given, to incite
such requests;
that industrious subaltern officers and men may be encouraged and enabled to engage themselves in
civil
occupations. A preference should also be given, in the disposal of lucrative
civil
employments under the crown, (in such employments, I mean, as are necessary to be continued) to deserving officers that are properly qualified for them, provided they give up their
military
commissions and profession; which would much hasten the reduction of the army and
its expences.
The corps of
Engineers
and the regiment of
Artillery,
however, are branches of the military establishment which cannot so safely be reduced, or, at least, not in so great a degree, as the other military corps, because they cannot so easily as other regiments be raised again, in case of any sudden want of them; a regular education being necessary for
engineers
and
artillery
officers in the study of mathematics, projectiles, mechanics, military architecture, surveying, drawing, &c. But a proper establishment in these two branches (duly maintained in study and practice) would, in case of any sudden emergency, enable the
present national militia,
and the
trained hundreds
and
thousands,
or HOSTS of the people, in their
rotations
of service, to oppose, with sufficient effect, any power (humanly speaking) that could possibly be brought against them. I have here supposed the
national militia
to remain on its present establishment; for, though I contend that the
hundreds
and
tithings,
when duly
trained,
form the true
constitutional militia
of this kingdom, yet, until that happy legal constitution can be so effectually re-established as to be deemed of itself sufficient for the national defence, I should be very unwilling to propose any alteration in the present establishment of militia for the counties, except, indeed, some such obvious amendments as may render it less burdensome and ruinous to poor labourers, by throwing a more adequate proportion of the expence upon those that can better afford it: and also to prevent any man from being detained from home (after he is duly disciplined) longer than
a month
(or six weeks at most) at any one time in actual service, lest he should thereby lose his
civil
occupation and become a
mere
soldier. See
Tracts on the Means of National Defence by a free Militia,
p. 47, 59, 66-68, 86, 87.
of the duties of our
present military establishments.
The duties of
watch
and
ward,
or
guard,
were rendered light and easy, by an
equal service
of the whole body of the people
"in rotation;"
for which the modern term is
"a roster of service."
See "Leges Gulielmi Regis," as published in Lambard's Archionomia, (1st edit. 4 to 1568. fol. 125.) Statuimus, &c.
We ordain that all the Cities, and Boroughs, and Castles, and Hundreds, and Wapentakes, of our whole kingdom aforesaid shall every night be watched and guarded
IN GYRUM
(i. e. into a circle, or rather by "a ROTATION" viz. a roster of service)
against crimes and enemies, according as the sherifes, and aldermen, and magistrates, and our ministers, shall best provide, by common council, for the welfare of the kingdom.
And a little farther he adds,
statuimus et firmiter praecipimus,
&c.
We ordain and strictly command that all earls, barons, knights, ministers,
(servientes or serjeants,)
and
ALL THE FREEMEN
of our whole kingdom aforesaid,
(universi liberi homines totius regni nostri praedicti,)
shall have and hold themselves always well
IN ARMS
and horses, as it is fit and right, and that they may be always ready and prepared to fulfil their
ENTIRE SERVICE TO US,
and effectually to act whenever there shall be occasion, according to the duly which they ought to do of right
(de jure)
to us, for their lands and tenements, and according as we command them by the
COMMON COUNCIL,
(i. e. by the parliament)
of the whole kingdom aforesaid.
And this ENTIRE SERVICE TO THE KING, thus duly limited by the national COMMON COUNCIL of the WHOLE KINGDOM, was rendered still more suitable to the dignity of a
free people,
by the ENTIRE ELECTION also, among themselves, of all their officers; not only of the
tithing-men
(who had the
civil
power of
constables,
and the
military
authority of
serjeants
) and of the
hundreders
(who had the
civil
authority of
high-constables
and
justiciaries,
and the
military
rank of
captains
) but also of the
viscounts
or
sherifs,
and of the
heretochii,
the commanders or leaders of the army; "DUCTORES EXERCITUS."
The same
(says the learned judge Atkins
See judge Atkins's "parliamentary and political tracts," p. 253, 254. "Sir Edw. Coke, in his 2d Inst." (says judge Atkins,)
in his exposition of the statute of Westminster, 1 cap. 10. concerning the election of the coroners by the freeholders (which ever was so, and so still continues) says, there is the same reason for election of sheriffs and so (says he) it anciently was by writ directed to the coroners. In like manner
(continues judge Atkins)
were the conservators of the peace chosen, in whose place the justices of the peace now succeed, and so the verdurers of the forest are to this day. These were great and high liberties, and did belong to the
freeholders
(by which he must mean the
liberi tenentes,
the free
holders
in
burgage
tenure, viz. the
householders
or
Deceners,
as well as others)
from all antiquity, and are strong arguments to confirm those late authors that will by no means allow of a limited government, but leave us under an arbitrary power, and who call our laws and liberties but the concessions and condescensions from the regal and absolute power.
)
as in the dialect of this present age, may be called the lord-lieutenants, or deputy-lieutenants.
For this the learned judge refers us to the law of K. Edward above cited
"Isti vero viri"
(speaking of the HERETOCHII)
eligebantur per commune concilium pro communi utilitate regni, per provincias et patrias universas et per singulos comitatus in
PLENO FOLKMOTE
This
full folkmote
for the election of
heretoches,
or
lord-lieutenants,
and of the
sheriffs,
was ordered to be held every year in the beginning of October, by the same law.
Item aliud
folkmote
esse debet in quolibet comitatu per provincias et patrias totius regni praedicti universas, scilicet in capite kl. Octob. ad providendum ibi quis erit vice-comes, et qui erunt eorum
beretochii,
et ad audiendum ibi justa eorum precepta concilio et assensu procerum et judicio folksmote,
&c.
,
sicut et
VICECOMITES
provinciarum et comitatuum
ELIGI DEBENT.
"This law" (says the learned judge Atkins) "mentions this election as an use and custom."
I must, however, remark, that this quotation is taken from that part of K. Edward's laws which is printed in
italics
in Mr. Lambard's edition, and which Mr. Prynne calls a
"spurious addition,"
and he cites a much higher authority (that of the learned Abp. Usher) for the same opinion. Mr. Lambard himself, however, informs us, that there were two different exemplars, the one
per antiquum,
"very ancient;" and "the other" (says he)
is not, indeed, so ancient; which, however, contains more
(
alterum non ita sanè vetus, quod tamen plura complectatur.
) And he informs us, that he himself,
after making a diligent comparison of them, had joined both together, in such a manner, however,
(says he,)
that the whole of the old exemplar is expressed in the
LARGER
letters,
(i. e. the Roman,)
but whatever is expressed in the
LESSER
characters
(the Italics)
is to be attributed (says he) to
the
LATER
copy
(
quae minoribus vero describuntur caracteribus, ea recentiori sunt tribuenda.
But he does not express the least suspicion that the latter is
spurious;
and he was surely a very competent judge of that matter, as being one of the most eminent antiquarians of his time. And the rev. Dr. David Wilkins, who printed an edition of the Anglo-Saxon Laws, in 1721, has set forth the laws of K. Edward, without distinguishing▪ by Roman and Italic letters, the various readings of the two eminent exemplars before mentioned, (as Lambard and Whelock had done before him,) so that he manifestly thought it right to adopt the additions in
italics,
as properly belonging to the text (though rejected by Mr. Prynne,) or he would not thus have omitted the distinctions between the two exemplars.
Whatever objections Abp. Usher might have had to some of the historical circumstances related in this exemplar of K. Edward's laws, (as, for instance, the correspondence between pope
Elutherius
and the British king
Lucius,
the extensive conquests of king
Arthur,
&c.) yet, as these circumstances were generally received for historical
facts
long before the fourth year of K. William I. (when these
Laws of Edward
were newly collected
These laws were newly collected in the 4th year of K. William I. by a parliament
elected
and called together expressly for that purpose; and the manner of the representation was remarkable. Twelve representatives were elected for each county of the whole kingdom, and were sworn before the king (after the manner of a
jury
) that they would, to the best of their power, without departing either to the right or the left from the path of truth, declare their
laws
and
customs,
nothing omitting, nothing adding, nothing changing, by prevarication, &c.
Post acquisitionem Angliae,
praesatus
Rex
Angliae
Guli
lmu
quarto anno regni
ui, consillo Baronum suorum fecit summoniti per universos Angliae consulatus Anglos nobile
, sapientes, et sua lege eruditos, ut eorum leges, & jura; & consuetudines abipsis audiret.
Electi igitur de singulis totius patriae comitatibus, viri Duodecem, jurejurando coram rege primum confirmaverunt,
ut quoad possent recto tramite
incedentes, nec ad dextram nec ad sinistram divertentes,
legum suarum & consuetudinum sancita patefacerent, nihil praetermittentes, nil addentes, nil praevaricando mutantes. A legibus igitur sanctae matris ecclesiae sumentes exordium, quoniam per eam Rex & regnum solidum subsistendi habet fundamentum, leges, libertates, & paces ipsius concionati sunt, dicentes.
and digested into the present form, as appears by the first article) the insertion of them into a manuscript, alleged to be of that age, cannot (even if they were false) afford any proof against the originality of the manuscript, because the writers of that age, in general, believed these circumstances to be
facts,
and might, therefore, with great probability, be supposed to have inserted them.
And, as to Mr. Prynne's exception in his brief animadversions, &c. on the fourth part of the Institutes, &c. compiled by Sir Edw. Coke, p. 189.) it is manifestly founded on a mere
literal
error of the transcriber of the M. S. which by no means injures the general credit of the copy, and its other contents. Mr. Prynne says,
I cannot but take notice of one grosse mistake, in the
spurious addition
to the laws of K. Edward the confessor, in Mr. Lambert, cited in the 2d Inst. p. 70. concerning the antiquity of the
folkmote,
or
court leet;
and administering the oath of allegiance in it to the people;
ad defendendum regnum,
&c.
Hanc legem invenit
ARTHURUS (
qui quondam fuit inclytissimus rex
BRITONUM)
et ita consolidavit et confoederavit regnum
BRITANNIAE
universum semper in unum. Hujus legis
AUTHORITATE
(meaning the authority or happy effect of free-
folkmotes,
or
court-leets,
i. e. the incomparable constitution of
Frankpledge,
which I now wish to recommend for the same purpose, viz. to
unite
the whole nation in one
confederated
body by a universal establishment of
the law which Arthur found,
with all its just and legal usages)
expulit
ARTHURUS
praedictus
SARACENOS
et inimicos a regno.
When, as it is most clear
(says Mr. Prynne)
by Galfridus Monmuthensis, Mat. Westminster, Radulfus Cestrensis, Ponticus Verumnius, &c. An. Dom. 516 to 542; and other our ancient and modern historians, who write of king
Arthur,
record, that he
only
fought his several battles with the
Saxons,
Scots, Picts, whom he expelled out of the realm, but not with the SARACENS, who never infested nor entered our
Island,
nor mention any such oath, law, court, prescribed or held by him.
Now that K. ARTHUR
fought
with the
Saxons, Scots, Picts,
&c. must be readily allowed, and also that he
fought not
with the SARACENS; but if we consider the mention of "SARACENOS" as a mere literary mistake of an ignorant transcriber for SCANIOS or SCANDIOS, (an ancient name, much less known to the vulgar at the time when this copy was wrote, than that of the SARACENS,) there will be no cause for farther cavil against the authenticity of the copy, because such a mistake in a copy ought not to injure the credit of the original compiler of the work. And that the word SCANIOS, or SCANDIOS, was really intended, is manifest from the context (two pages farther) wherein express mention is made of K.
Arthur
's conquest of
Scantia
and
Gutland,
the countries from whence proceeded the most of Arthur's enemies, even the
Saxons
themselves originally, (see Sheringham de Anglorum Gentis Origine,) if not the
Picts
also, the very nations mentioned by Mr. Prynne himself, and also by all the authors to whom he has appealed.
There is just such another
mere literal
mistake, a few pages farther, which, without proper warning, might still farther induce a superficial reader to suspect the authenticity of the exemplar; I mean the passage where mention is made of the election of king Ina, viz.
qui electus suit in regem per
ANGELUM,
who was elected king through
(or by means of) "AN ANGEL, (a very improbable circumstance,) instead of the obvious meaning of the original writer, i. e. "
per
ANGLIAM" "
throughout
ENGLAND." For, this latter sense is clearly supported by the context immediately following, which relates, that
Ina first obtained the monarchy of this
WHOLE KINGDOM,
&c.
et qui
PRIMO
obtinuit monarchiam
TOTIUS REGNI HUJUS
post adventum
ANGLORUM
in Brytanniam.
PRIMUS
enim fuit rex coronatus
ANGLORUM ET BRYTONUM SIMUL MANENTIUM IN BRITANNIA
post adventum Saxonum,
&c. And a little farther the text relates that he obtained
Wales
and
Cornwall
by his second wife, as also the consecrated British crown, which belonged to the last British king, Cadwallader; so that the circumstance manifestly intended to be expressed was the
general acknowledgement of
INA,
as king over both the
ENGLISH and the BRITONS, that is,
"per Angliam,"
throughout all England;
and not
"per Angelum."
Nevertheless these two palpable errors of transcribers have been copied in all the subsequent editions of K. Edward's laws, without the least animadversion of the publishers to clear the original compilers, and their work, from the discredit of such improbable circumstances.
With respect to Mr. Prynne's objection to the antiquity of the
hundred
courts, as declared in this addition to K. Edward's laws, viz. that
"Arthur found this law," "Hanc legem invenit Arthurus," &c.
"and so" (by means thereof)
united and confederated the whole kingdom of Britain into one,
(et ita consolidavit et confoederavit regnum Britanniae universum semper in unum;) and that
by virtue of
THIS LAW
the said Arthur drove the
SCANTIANS (or Scandinavinians)
and enemies out of the kingdom,
&c. I must observe that Mr. Prynne has assigned nothing but
negative evidence
against the fact, which is by no means sufficient to disprove it. On the other hand, as
Arthur
did really succeed in
uniting
and
strengthening
the kingdom against his
enemies,
the other part of the sentence is the more probable, (that
he found this law,
) because he certainly could not have pursued a more effectual and speedy means of restoring a divided and weakened kingdom than by reviving and enforcing
"this law,"
which he is said to have
found;
and, had he been as careful,
after his success, to maintain "this law,"
and to establish it in the countries which he conquered, with
free
and
equal
liberty to all the inhabitants, the happy effects of his success would not have had so short a duration.
For, though the Britons certainly
had "this law"
both before and after the time of
Arthur,
yet they generally
had
it rather in
name
than in
use,
or else they would certainly have been
less dissolute
in their morals, and more
united
and powerful against their enemies. They
had "this law,"
I may say, much in the same manner as we
have
it at this day; it was really the
law of the kingdom,
but not duly maintained; the
nominal divisions
remained, as at present, but these divisions became
local
instead of
popular;
the mere
divisions of space,
instead of exact numerical
divisions of the people,
which
"this law"
requires to be effective. A sufficient answer to Mr. Prynne's objection, against the antiquity of
"this law,"
may be gathered from a former part of this tract, (p. 33-36.) where I have referred to ample evidence that the
divisions of hundreds and tithings
(CENTURIAE
CENTURIATA COMITIA. Those
Comitia,
or assemblies of the people of
Rome,
by
Centuries,
where every one gave his vote in his
century.
These sorts of assemblies were first instituted by
Servius Tullius,
who divided, as is above said, the people into six
classes,
and each
classis
into CENTURIES. These assemblies had a great share in ordering of all state affairs, for they were summoned together to make great officers, to approve any new law, to proclaim war against any people, and to implead any citizen of Rome after his death. They also chose the consuls, praetors, censors, and sometimes the proconsuls and chief priests,
&c. See Danet's Dict. of Greek and Roman antiquities. What difficulty then can there be in supposing that
"Arthur found this law"
among the
Britons,
who so lately before had been incorporated in the
Roman
colonies of this island?
and DECURIAE
Romulus having at first divided the
Roman
people into three tribes, he appointed, at the head of each tribe, a colonel to command it,
(i. e.
the head of a thousand,
)
and afterwards divided each tribe into TEN Curiae, or companies, and appointed a
centurion
or captain to command an
hundred men,
and a
decurion
to command
ten
men.
Ibid. on the word
Decurio.
) were in use with the Roman colonies in Britain, both in their
civil
and
military
government; and that the
Britons
were incorporated in those colonies; so that it was very natural for the Britons afterwards to retain something of the same kind (though badly observed) in the
civil
constitution of Britain, differing, for the most part, only in names and titles, from the future
Saxon
constitution: as, for instance, (according to information
Verum quod modo vocatur
comitatus,
olim apud Britones temporibus Romanorum in regno isto Brytanniae vocabatur
consulatus.
Et qui modo vocantur
vicecomites,
tunc temporis
vice consules
vocabantur, ille vero dicebatur
viceconsul,
qui
consule
absente ipsius vicea supplebat in
jure
et in
foro.
Leges Edwardi Regis (No 12.)
from this copy of K. Edward's laws,)
what is now called a
COUNTY
was formerly with the
BRITONS
in the times of the
ROMANS
in this kingdom of
BRITAIN
called
CONSULATUS.
And those who are now called
VICECOMITES (or sheriffs)
were then called
VICE-CONSULES,
and he that was called
VICE-CONSUL
was the person, who, in the absence of the consul, supplyed his place in the law and in the
COURT
Not only
land-owners,
but also
householders,
and even
all the inhabitants of a county
are to be deemed
suitors to the county-court.
Countie court est le court de viscount
PUR TOUTS LES INHABITANTS
deins le countie.
This is the remark of the learned Mr.
H. Finch
in his
Nomotechnia,
(p. 115.) on the statute of Merton, c. 10. which ordains, that
every freeman which oweth
SUIT
to the
COUNTY, TRYTHING, HUNDRED
and
WAPENTAKE,
or to the court of the lord, may freely make his attorney to do those
SUITS
for him.
And this must necessarily be understood from the very nature of
Frankpledge,
because
every man,
according to this
constitutional law,
must be incorporated in some
tithing
and
hundred,
which are the regular component parts of every
county-court,
and not the mere
landholders
alone, as some persons of late have erroneously conceived.
.
And therefore, I think, we may safely admit the assertion in this copy of K. Edward's law, that
Arthur found this law,
(notwithstanding the authority of Mr.
Prynne
to the contrary,) and that the success of the
British
monarch in
uniting
and confederating, by it, his whole kingdom against foreign and domestic
enemies
is an example perfectly suitable to the purpose of my present work
At the time when K. Arthur is said to have
"found this law,"
it was, perhaps, no more in general
use
than it is at present; for WE, even at this day, may also be said to
"find this law,"
that is, we
find it
mentioned in all the law-writers of the best authority, as being the
law and constitution of the kingdom,
though the
usage
is certainly lost. In a case solemnly argued in the court of common pleas, even so late as the 5th K. James, the custom of
Frankpledge
was considered as still
existing in law,
though it certainly did not
exist in usage. "And it seemed to the court,"
(says the reporter, Sir Edw. Coke,)
that they cannot adjudge him a
CHIEF PLEDGE
upon that verdict,
(the circumstances of which are there mentioned,)
for
LEETS
were divided in
DECURIAS or DECENNAS,
unde dicitur
DECENARII
to this day; and out of every
TEN, (and one of them being pledge for the other, from whence the court was called CURIA VISUS FRANCI-PLEGII)
one was called
CAPITALIS PLEGIUS,
seu
PRIMARIUS FIDEI JUSSOR; and in some places, at this day,
he is called the
TITHING-MAN,
and, in Yorkshire,
TENMANTALE.
And a little farther he adds,
and it appeareth by the said act of
18 Edw. II.
that it ought to be enquired at the
LEET,
if all the
CHIEF PLEDGES,
with their
DECENNERS,
that is, the other
NINE,
appears, by which it appeareth, that the
TENTH
principal man was the
CHIEF PLEDGE,
&c. VI Report 78.
. And, with respect to the
variations
in these two copies of K. Edward's laws, collated by Mr. Lambard, I may now safely remark, (after having removed some of the principal objections,) that the
variations
which remain are not such as contradict each other in the least: and, though there is still another copy in
Roger de Hoveden
's annals
See Rerum Anglicarum Scriptores post Bedam Piaecipui, &c. p. 343-348. London 1596.
, which contains the same laws for the most part, but with many
various
readings, and without the
historical additions,
yet these several copies contain
no variations,
upon the whole, which can justify a rejection of any one of them in favour of another: for it is probable that the most learned and loyal people amongst the English, in the 4th year of K. William I. would be induced, at that time particularly, to prepare collections of their old laws, that they might report and obtain a confirmation of them in the parliament that was then called (a regular
jury
of 12
"sapientes, et sua lege eruditos," "wise or discrete men, and learned in their law,"
being required to be
elected
and deputed by each county) expressly for the purpose of
reporting these laws:
and that
historical
parts were probably added to some one of the collections even at that time (for no subsequent
time
was so likely to give occasion for such an addition) by some one or more of these
learned
representatives, in order to assert the
antiquity
as well as the
certain efficacy
of the excellent constitution of
Frankpledge,
by the eminent examples of the
British
K. ARTHUR, and of the
Saxon
king EDGAR, who, both of them,
found this law,
and experienced the happy effects of
reviving
and
enforcing
it.
. This law also provides, in terms equally strong, for the
general arming of the people,
as the act of K. William does for
"the entire service of the king,"
see "cap. 35. de Greve."
DEBENT
enim
UNIVERSI LIBERI HOMINES TOTIUS REGNI, juxta
facultates suas et possessiones, et juxta catalla sua, et secundum feodum suum, et secundum tenementa sua,
ARMA HABERE,
et illa semper prompta conservare ad tuitionem regni,
&c.
That
ALL FREE-MEN OF THE WHOLE
kingdom, according to their
means, &c. OUGHT TO HAVE ARMS,
and those always to keep ready for the defence of the kingdom.
By the same law they were restrained from
pawning
their arms.
Non debent illa invadiare,
(i. e. pignori ponere,)
nex extra regnum vendere, sed hoeredibus suis in extremis legare,
&c.
That
they ought not to pledge them, nor sell them out of the kingdom, but bequeath them to their heirs,
&c.
And, to secure obedience to this law, all men,
"universi,"
were obliged, one certain day every year
to shew their arms, throughout the whole kingdom, in the cities, in the boroughs, in the castles, in the hundreds and wapentakes of the kingdom, which ought to be done
(says this law)
in the same day throughout the whole kingdom, lest any persons should accommodate their friends and acquaintance, with their arms, and they themselves receive them back in return, and thereby defraud the justice of the king, and injure the king and kingdom
Universi vero praedicti singulis annis in crastino purificationis beatae Mariae debent omni excusatione remota arma sua per universum regnum ostendere, scilicet in civitatibus regni, et in Burgis, et in Castellis, et Hundredis, et Wapen achiis, Regni, secundum eis quod statutum est, et adjudicatum, et juxta quod debent, et idcirco hoc fieri debet uno eodem die per universum regnum ut predictum est, ne aliqui possint arma sua familiaribus suis et notis accommodare, nec ipsi illa mutuo accipere, ac justitiam domini regis defraudare, et dominum regem et regnum offendere.
.
And the same law also commanded a just and exact observance of the
watch
duty, which could be no otherwise, in those ancient times, than by a regular
rotation
of all the people, in
gyrum,
as described in king William's law, and they were afterwards carefully to provide against fires, when they returned home to their houses.
Et ut
WARDAE, (i. e. vigiliae vel custodiae)
justè et ritè observentur, et ut cautè deinceps incendiis sibi illic provideant, cum ad propria redibunt.
The duty of
watch
and
guard,
by the people, was deemed so very important in ancient times, (and surely ought still so to be,) especially in towns and places of more than ordinary resort, that the law prohibited the holding of
markets
and
fairs
in all places except those that were duly
enclosed
and
fortified,
and, in which, of course, the inhabitants ought, according to the common law, to perform the duties of
watch and guard,
and be always
prepared and trained in arms,
as above described, for
the entire service of the king,
in the true legal sense of service, i. e. for the preservation of the
king's peace
in the effectual prevention of all
tumults
and
riots;
for aiding and assisting the king's courts and their
legal
officers in
the due process of the law,
and for the effectual security of all peaceable traders and their property. See Leges Gulielmi Regis.
Item nullum mercatum vel forum sit, nec fieri permittatur nisi in
CIVITATIBUS
regni nostri, et in
BURGIS CLAUSIS,
et
MURO VALLATIS,
et
CASTELLIS,
et
LOCIS TUTISSIMIS,
ubi consuetudines regni nostri, et jus nostrum commune, et dignitates coronae nostroe, quoe constitutoe sunt a bonis praedecessoribus nostris, deperire non possunt, nec violari, sed omnia ritè, et per
JUDICIUM,
et
JUSTITIAM
fieri debent. Et ideo
CASTELLA,
(not private
castles,
but such only as had a regular establishment of
civil
magistrates,)
et burgi, et civitates sunt et fundatoe et oedificatoe, scilicet, ad tuitionem gentium et populorum regni, et ad defensionem regni, et idcirco observari debent cum omni libertate, et integritate, et ratione.
Also no
MARKET
or
FAIR
may be, nor may be permitted to be, except in the cities of our kingdom, and in enclosed boroughs, fenced with a wall, and in castles, and most secure places, where the usages of our kingdom,
(so that
private castles
cannot here be meant, but such
castles
only as were governed by regular magistrates, according to the common law, as
Newcastle, Chester, Rochester, Colchester, Cirencester, Bicester,
&c.)
and our common law and the dignities of our crown, &c. may not be lost nor defrauded, nor violated; but all things ought to be done in due form, and by
JUDGEMENT
and
JUSTICE.
And, for this cause, castles,
(hereby manifestly intending such
castles
only as I have described,)
and boroughs, and cities, are established and built, viz. for the security of nations and people, and for the defence of a kingdom, and therefore they ought to be maintained with all liberty, integrity, and reason.
Thus every city, town, and borough, was supposed to contain, within itself, a complete establishment for maintaining the
common law,
and the
dignities of the crown,
and for doing all things
in due form,
and
by
JUDGEMENT
and
JUSTICE, which certainly could not, in any other way, be effected, than by these
numerical divisions of the people;
in which the magistracy was always duly proportioned to the
number of inhabitants,
so that whether they were
many
or
few,
they were all
equally
manageable. And the
rotation
of duty, by being regularly
circulated
amongst
all
men, was reduced and rendered easy to
all.
The cities of the Israelites under the theocracy had the same proportion of magistrates exactly which our common law requires, and also regular
rotations
of public service; but it does not appear that they had our happy constitution of
juries,
whereby unexceptionable and impartial persons
from among the people,
that are neighbours to the parties and the facts, in every cause, are appointed the LEGAL JUDGES of it. Had this indispensable constitution been a part of
their
law, as it is of
ours,
it is probable they would not so soon have fallen away from
justice
and
judgement:
for they had no sufficient guard against
partiality.
If a man was accused, he had no right to reject the magistrate from being
his judge,
even though he knew him to be
his enemy,
or the friend and favourer of his accuser: whereas in England, a man may challenge and reject 35 jurymen, if he thinks fit, p
evious to the trial of a charge of
treason,
and 20 jurymen previous to trials for any other
felonies,
without assigning any reason against them, which is called
peremptory challenge;
and he may
challenge
as many more as he can produce
just
and
legal
exceptions against, which is called
"challenge with cause."
The total want of this just regulation laid the
magistrates
of the
Israelitish cities
more open to the temptation of
bribery
than they would otherwise have been; and afterwards, under the monarchy, when these
heads of thousands
were appointed by the king, instead of the people, the want of
juries
became still more apparent; for, if the process against any man was directed by the king's letters, or under his seal, as in the case of
Naboth,
the judges were tempted to preserve only the mere outward form of the law, without the spirit and intention of it: they would not
condemn
indeed without a
legal number of witnesses
were set up to accuse, but then there was no
jury
to determine whether or not these accusers were
credible witnesses,
which the law equally required at that time, as it does at present. But in every other respect the government of the
Israelitish cities
seems (as I have said) to have been similar to what our
common law
requires. The Rev. Dr.
Sam. Croxall,
formerly archdeacon of
Salop,
has drawn up an account of the
Rulers of Cities
See his SCRIPTURE POLITICS, chap. 8. §. xv. concerning
the
RULERS
of
CITIES, p. 465, 466, 467, 468, 471, 472, 473, 475, 476, 477.
The
third wheel
of their government, which, as we mentioned before,
turned within the other two,
was the constitution and magistracy
of every city within itself.
As the weight of superintending the affairs of every
tribe
was much lightened to the
prince
thereof, by the subordinate jurisdiction of the
heads of families;
the political burden of these latter was, in like manner, considerably alleviated by the share of authority which appertained to the
rulers of cities:
Every tribe having several cities belonging to it, and every city being inhabited by a great number of families.
The chief magistrate in these corporations was called the
ruler
of
the city.
* * * *
Some have questioned whether there were not more than one of these chief magistrates in every city: That there
were many subordinate ones, having gradual authority under one another, is very plain;
and that these were the same whom
Moses
constituted
to be judges of the people in the wilderness,
by the advice of
Jethro
his father-in-law. Exod. xviii. 25.
He chose able men out of all Israel,
(but I have already proved that the
able men
were really elected by the people,)
and made them heads over the people, rulers of thousands, rulers of hundreds, rulers of fifties, and rulers of tens.
And
they judged the people at all seasons: The hard causes they brought unto
Moses,
but every small matter they judged themselves.
When, therefore, the tribes came to
have cities belonging to them, there these magistrates presided and exercised their jurisdiction.
Which consisted principally of these three parts.
First,
to
convene and hold senates and councils,
in order to enact such
by-laws as were expedient for that body corporate, of which they were members.
Secondly,
to commission and authorise the judges to enter upon and to determine, in the judiciary way, such small matters as lay properly within their cognizance.
And, thirdly,
to make a part of the great council of the nation, as often as it was summoned to assemble by that person who held the helm of government.
These are they who are intended in that precept, where it is said, Deut. xvi. 18.
judges and officers shalt thou make thee in all thy gates, which the Lord thy God giveth thee throughout thy tribes.
Which
officers
we find mentioned upon other occasions. Deut. xxix. 10.
Ye stand this day all of you before the Lord your God; your captains of your tribes, your elders, and your officers.
Again,
Moses
says, Deut. xxxi. 28.
Gather unto me all the elders of your tribes, and your officers.
And we find
Joshua,
when he was
old and stricken in age,
Joshua xxiii. 2.
called for all
Israel,
and for their elders, and for their heads, and for their judges, and for their officers.
So when
David
calls together the
great congregation
to declare his purpose about the building of the temple, 1 Chron. xxviii. 1. we read of
the captains over the thousands, and the captains over the hundreds, with the officers,
being summoned upon that occasion. And, afterwards, we are told that
Solomon
made a speech
unto all
Israel, 2 Chron. i. 2.
to the captains of thousands, and of hundreds, and to the judges, and to every governor in all
Israel,
the chief of the fathers.
And thus, when that pious prince
Hezekiah
was resolved upon a reformation both of religion and manners, throughout his kingdom, it is said, 2 Chron. xxix. 20.
Then
Hezekiah
the king rose early, and gathered the rulers of the city, and went up to the house of the Lord.
As to their judiciary capacity, they were not, strictly speaking, judges themselves, but had the power of admitting what causes they thought were proper to come before the judges, and of rejecting what they looked upon as frivolous or unnecessary to be enquired into. * * * * * *
Of the judiciary authority of these rulers, we read farther in the case of
Jeremiah.
When (another)
Micaiah
had heard his prophetical denunciations against
Israel
and
Judah,
Jer. xxxvi. 11. he went down
into the king's house, into the scribe's chamber, where all the princes
(these rulers)
were sitting,
and informed them of it. And after, when
Jeremiah
was going out of the city into the land of Benjamin,
Irijah,
who suspected that he was going to desert to the army of the
Chaldeans,
who were lately broken up from besieging the city, Jer. xxxvii. 12.
took
Jeremiah
and brought him to the princes. Wherefore the princes were wroth with
Jeremiah,
and smote him, and put him in prison.
And upon his farther prophesying that
the city should be given into the band of the king of
Babylon,
Therefore the princes said unto the king, We beseech thee, let this man be put to death. Then
Zedekiah
the king said, Behold he is in your hand; for the king is not he that can do any thing against you.
Which shews that they bore a mighty sway in the
great council
of the nation; and that, when they prayed judgement and execution against any one, even the king thought it most safe and prudent to comply with them.
The number of these
rulers,
in every city, was in proportion to the number of its inhabitants; as many
thousands
as it contained, so many
rulers,
of that rank and denomination, belonged to it; from which regulation, the estimation and consequence of each city was discernible at one view. And from this consideration arises that fine allusion of one of the prophets concerning the place where Christ should be born; so understood and applied by
the chief priests
and
scribes
themselves, as the Evangelist informs us. Mat. ii. 5. Mic. v. 2.
But thou,
Bethlehem Ephratah,
though thou be little among the thousands of
Judah, (in comparison of those cities that have
rulers of thousands
belonging to them,)
yet out of thee he shall come forth unto me, that is, to be ruler in
Israel;
whose goings forth have been of old, from everlasting.
So exactly was almost every minute circumstance, relating to the Saviour of mankind, delineated and foretold by those divinely-inspired writers, who lived so many hundred years before he came into the world. * *
Captains of Thousands, &c.
The rest of the officers that governed the army we find called by the titles of
captains of thousands, captains of hundreds, captains of fifties, and captains of tens.
Who probably were of the same rank with those whom
Moses
constituted, in the wilderness,
rulers of thousands,
&c. and, at first, acted in a double capacity, being at the same time civil magistrates and military officers.
The
captains of thousands
seem to have been much the same as colonels of regiments with us; and the
captains of hundreds
might probably answer to those who, in our army, have the command of troops and companies; the
captains of fifties
and
tens,
to our subalterns, serjeants and corporals.
Among the list of
David
's adherents while he fled from
Saul,
1 Chron. xii. 1.14. and
kept himself close at
Ziklag; after several names mentioned, it is said;
These were of the sons of God, captains of the host: one of the least was over an hundred, and the greatest over a thousand.
Again, we read of others said, 1 Chron. xii. 20. to be
captains of the thousands that were of
Manasseh. And, when
David
had thoughts of bringing the
Ark of God
from
Kirjathjearim,
we are told, 1 Chron. xiii. 1. he
consulted with the captains of thousands, and hundreds, and with every leader.
And again, when he declared his intentions about building the temple, it is said that he, 1 Chron. xxviii. 1.
assembled all the princes of
Israel,
the princes of the tribes, and the captains of the companies that ministered to the king by course, and the captains over the thousands, and the captains over the hundreds.
So when
Jehoiada
the high-priest had a mind to bring on the restoration, by declaring
Joash
to be king, 2 Kings xi. 4.
he sent for the rulers over hundreds, with the captains, and the guard, and shewed them the king's son;
and gave them proper instructions what they were to do.
And the captains over the hundreds did according to all things that
Jehoiada
the priest commanded. And to the captains over hundreds did the priest give king
David
's spears and shields, that were in the temple of the Lord. And he took the rulers over hundreds, and the captains, and the guard, and all the people of the land, and they brought down the king from the house of the Lord, and be sate on the throne of the kings.
And we read, 2 Kings i. 9, 11, 13. of
three captains of fifties,
who, with their fifties, were sent successively by
Ahaziah,
king of
Israel,
to bring the prophet
Elijah
to him. The Apocryphal writings tell us, 1 Mac. iii. 55. that
Judas ordained captains over the people, even captains over thousands, and over hundreds, and over fifties, and over tens.
These officers, from the
captain of the host
down to the lowest subaltern, appear, after the monarchy took place, to have received their commissions from the king.
(Whereas they were before chosen by the people.)
When
Samuel
declares to the people the
manner
of the king that was to reign over them, this is part of it; 1 Sam. viii. 12.
he will appoint him captains over thousands, and captains over fifties,
&c. Accordingly when
Saul
began to grow jealous of
David
's rising glory, 1 Sam. xviii. 13.
he removed him from him, and made him his captain over a thousand.
So we read, 2 Sam. xviii. 1. that
David numbered the people that were with him, and set captains of thousands, and captains of hundreds over them.
2 Chron. xxv. 5. and that
Amaziah gathered
Judah
together, and made them captains over thousands, and captains over hundreds.
in Israel, ready to my hand, which is so suitable to my present purpose, that I should do injustice to the subject, if I neglected to give my readers some extracts of it in the author's own words.
The
military
duties of
watch
and
guard
in cities, towns, &c. which by the laws of K. William I. were ordered to be performed
"in gyrum,"
i. e. in due
rotation
of service by all the inhabitants, as I have already shewn, were farther regulated by the statute of Winchester, in the 13th K. Edw. I. A. D. 1285. which, without altering the former law about
rotation,
specifies the
strength of the guard
to be set in each place, and ordains (for I will cite it as abbreviated by Mr. Lambard in his
"Duties of Constables,"
p. 13. which proves that he thought it still in force so late as the reign of Q. Elizabeth in 1584.) that
NIGHT WATCHES
should be kept yearly, from the feast of the
ASCENTION,
untill
MICHAELMAS, by six men at everie gate of everie CITIE,
by
12
men in everie
BOROUGH
towne, and in every other
TOWNE
by six men, or four men, or according to the number of inhabitants in the towne, all the night long, from sunne setting to sunne rising: so that if any stranger did passe, he should be arrested till the morning, and then set at large, (if no suspicion were found of him,) but if any suspicion fel out against him, then he should be imprisoned till he might be lawfully delivered. And of these
WATCHES
(says Mr. Lambard)
the officers before named have the charge within the limites (or places) of their auctorities, as the
CONSTABLE
in his town, the
BORSHOLDER
in his boroe, and the
HIGH CONSTABLE
within all his
HUNDRED:
and these
officers ought to see
these
WATCHES
(says Mr. Lambard, by which he plainly insists on the continued force of this statute, so that the enquiry concerning WATCH DUTY at views of Frankpledge ought to be regulated by it)
duly set and kept, and ought also to cause
HUE
and
CRIE
The
hue
and
crie
was a
military
exertion of the
civil
power which all men were obliged to attend, with their
arms
in
military array,
whenever legally summoned to do so. Even so late as the 3d
Hen.
VII. 1. as Mr.
Dalton
in his
Officium Vicecomitum
relates,
the sheriff's bayliff, to execute a
REPLEVY, took with him 300 men armed (MODO GUERRINO) sc. with brigandines, jackes, and guns, and
it was holden lawful;
(says he,)
for the sheriff's officer hath power to take assistance, as well as the sheriff himself,
p. 355. And a little farther he adds (p. 356.)
and every man is sworn (saith Keble) to be aiding to the sheriff in his business; and if they do it not at the request of the sheriff, they shall be fined, 3
Hen.
VII. 1. Br. Fine pur contempt 37. and trespass, 266. See also Stat. of 2
Hen.
V. cap. 8. which inflicteth both fine and imprisonment upon such as shall not aid the sheriff, they being thereunto required.
This proves that the
military
capacity of every man is required to support the
civil
government.
to be raysed after such as will not obey the
ARREST
of such watchmen.
This power of ARRESTING suspicious persons in all towns and boroughs; shews the necessity of having in each town and borough a proper GOAL or
appointed place of confinement;
especially as the common law required
that if any man was of so evil credit, that he could not get himselfe to be received into one of these
TYTHINGS
or
BOROES,
that then hee should be shut up in
PRISON,
as a man unworthie to live at liberty amongst men abroad.
(Lambard's Duties of Constables, p. 8.) And the expences necessary for the building and maintaining such proper
places of confinement
might be levied by the COURT LEET on the inhabitants of each district; for the LEET has competent power, according to the common law, to
levy taxes
for defraying all necessary public works
See Powell's Treatise of the Antiquity, &c. of Courts of Leet, or View of Frank-pledge, &c. p. 163.
Any
BY-LAWES
for the commonweale may be made in a
LEET,
and are good,
and
will lye against those that do not consent, as to make cawseyes, highways, bridges, and such like
And no public works surely are more for the
common weal,
or more necessary for enforcing a due compliance with the
common law,
than the erection of proper
goals
and
places of confinement,
or
houses of correction,
and
"of industry,"
in lesser districts, to prevent the
accumulation of multitudes of prisoners
in the county goals, where they mutually
corrupt each other,
and to prevent the baneful practice of
selling convicts into foreign slavery,
or into miserable torture in floating prisons, who, according to the common law, ought to be punished
only
upon the spot where their offences, as well as their contrition and amendment, might be known; for, if there should be still cause to suspect a want of improvement in any of them, so that they should not be able to obtain a re-admission into any
tithing
of
Frankpledge;
the LEETS had ample authority to prolong their imprisonment, and to keep them hard at work, to defray the expences of a
sober
and
limited
diet, the very best mode of inclining reprobates to hear
reason
and
instruction.
The indefatigable labours of the benevolent and
truly patriotic
Mr. HOWARD (who has so disinterestedly devoted both himself and his fortune to the
public service)
afford ample materials for selecting the most just and effectual means of forming such necessary establishments.
,
44th Edward III. fol. 19.
But a bylaw to repair a church binds none but such as do assent,
vid. Co. 5. fol. 63. ALEET
may make
BY-LAWES,
the lord by prescription may distreyne for the amerciaments, and sell the distresse: For the king may so doe, and the
LEET
is the king's, although the lord
hath the profits. BROOKE LEET, 34. PRESCRIPTION 40.
The same power, that is here attributed to
the lord of a leet,
certainly belongs also to
sheriffs, mayors, bailiffs,
and
hundreders,
or
high constables,
who may hold
leets
by the common law, and consequently have a right also,
by prescription, to distreyne for the amerciaments, and to sell the distresse.
I must also observe that where any lord of a manor hath enjoyed a right of holding a court
leet,
and hath either abused or neglected his power, the
king
may certainly, according to the true limited doctrine of
"Nullum Tempus,"
(see my separate Tract on that head,) resume the
right
of the court and all the
profit
of it, (which is, properly,
res fiscalis,
) and must, in that case, restore the power of the holding the said court to the
high constable,
or proper officer by the
common law.
: so that the modern usage of applying to the great
national council
on such occasions is clearly
wrong;
because it not only occasions a
needless
expence, interferes with more important business of the nation, and grievously prolongs the sittings of parliament, but also tends to enure the members to
private solicitations
in behalf of
partial
objects; facilitates the
practice
of
canvassing
them
individually;
and thereby lays them open to
influence
and
temptation
in higher matters: whereas
frequent
but SHORT SESSIONS of
newly elected parliaments,
like those of ancient times, would effectually
cut up the roots of corruption and undue influence.
In order the more effectually to promote the happy system of government, which I now recommend, viz. that
ALL
freeborne men
(within this kingdom) "
shoulde cast themselves into
TITHINGS," (see p. 16 and 17.) for the common security of ALL, it was ordained by king William I.
Ut
OMNES
habeant et teneant
LEGEM REGIS EDWARDI
in omnibus rebus adauctis his quae constituimus
(says the statute of William)
ad utilitatem Anglorum.
That
ALL PERSONS
should have and hold
THE LAW
of king Edward
(wherein the more ancient laws for maintaining the
tithings
and
hundreds
are collected and stated)
in all things, those things being also added which we have ordained
(said William)
"for the use of the English."
And no free nation could reasonably desire more substantial and effectual
additions
for the security of their
own peace
and
liberty
than those
additional
laws of William, most of which I have already cited
That all cities, boroughs, castles, hundreds, and wapentaches, of our whole kingdom, shall be
watched
and
guarded
IN GIRUM
(in
rotation
or by a
roster
of service)
against malefactors and enemies, according as the sheriffs, aldermen, mayors,
(PRAEPOSITI, a title as frequently given to the
hundreders,
or
high-constables,) "and"
(others)
our ministers, shall better provide by
COMMON COUNCIL
(i. e. by parliament)
for the good of the kingdom,
that ALL
earls, barons, knights, and serjeants, (servientes,)
and all freemen of our whole kingdom
aforesaid, (universi liberi homines totius regni nostri praedicti,) shall have and hold themselves always well in ARMS
and in horses,
ut decet et oportet, (suitably to their rank,) and that they may be always ready and prepared to fulfil our ENTIRE SERVICE whenever there shall be occasion, and as they ought
of right
(de jure)
to do for their lands and tenements, and as we shall appoint them by
COMMON COUNCIL OF THE WHOLE KINGDOM
(so that the
English
were so far from being enslaved by what is commonly called the
conquest,
that K. Wm's statute expressly submits the efficient power of the kingdom, the
national militia,
to the orders of parliament). And also the clause which I have but just now cited for the regulation of WATCH and WARD.
. To these I must now add a farther excellent clause of K. William's statute
Omnis hemo qui voluerit se teneri pro LIBERO, sit in PLEGIO,
(i. e. fidejussione,)
ut PLEGIUS eum habeat ad justitiam si quid offenderit; et si quisquam evaserit talium, videant plegii ut solvant quod calumniatum est, et purgent se, quia in evaso nullam fraudem noverint. Requiratur HUNDREDUS, et COMITATUS sicut antecessores statuerunt, et qui justè venire debent et noluerint, summoneantur
semel,
et, si
secundo
non venerint, accipiatur BOS UNUS, at si
tertio,
alius BOS, et si quarto, reddatur de rebus hujus hominis quod calumniatum est, quod dicitur
ceapgyld,
(al.
orfgyld,
quod idem est,) et insuper regi forisfacitura.
, which is necessary for the better enforcing and promoting K. Edward's laws, viz. that
every man who shall be willing
TO BE DEEMED A FREEMAN
shall be
IN PLEDGE,
(shall enter himself into some tithing of FRANKPLEDGE,)
that the pledge may have him to justice, if in any thing he should offend; and if any of such
(pledged persons)
should abscond, that the pledges may pay whatsoever damages are laid,
(or rather are proved,)
and may clear themselves, that they knew
(or were privy to)
no fraud in the absconded person. Let the
HUNDRED
(court)
"be demanded"
(or summoned) "
and the
COUNTY" (court)
and those who ought of right to attend
(at
either
of these courts, as the context requires us to understand)
and shall be unwilling, let them be summoned
ONCE; and, if to a SECOND
(summons)
they shall not come, let
ONE OX
be taken,
(or perhaps the medium value of one ox, at the current market-price, for thus the quantum of the
forfeit
would generally bear a due proportion, or nearly so, to the true value of money; as college-rents are sometimes ascertained by the value of certain quantities of corn,)
and, if to a
THIRD
(summons he shall not come, let)
"another ox"
(be taken,)
and, if to a
FOURTH
(summons they shall not come,)
let what is rated be paid out of the effects of this man, which is called
CEAPGYLD
CEAPGYLD. CEAP in the Saxon tongue signifies
price, wages, cattle, wealth,
or
chattles;
and GYLD signifies
payment;
the compound word CEAPGYLD, according to Mr. Somner, signifies
rei furto ablatae pretium,
"the price of any thing stolen,"
but which, in this law, must evidently mean the
payment,
or
forfeit of the man's reputed wealth;
and
,
or
ORFGYLD
so likewise ORFGYLD. ORFE signifies
money, cattle, effects;
and the compound word Mr. Somner renders
"rei pretium,"
the price of any thing.
So that I suppose both these words to be synonymous with the Saxon word
.
Regular summonses, however, were required by
law,
to be made
seven days before
any of these courts, unless a legal and admissable excuse could be assigned for the omission, (
et septem diebus antea
SUMMONIRI,
nisi publicum commodum vel dominica regis necessitas terminum praeveniat,
see K. Edward's law de Heretochiis, &c.) And a neglect or disregard of a
legal summons to a court of law
might surely be deemed a
contempt of the law,
the declared penalties for which (a single or double forfeiture of the man's WERE
Were;
which is commonly rendered
Aestimati
capitis;
" not the whole value of a man's
estimated wealth,
but only such a
certain rate
according to each man's rank in life, as he might justly be supposed
able to pay
(in case he should incur a penalty or forfeit) without being
ruined
and degraded by it, agreeable to what I have remarked in p. 86 and 87, on the due
limitation of amerciaments,
by the 14th chapter of Magna Charta; which was certainly the law of the kingdom long before that time. Because, even in K. Edward's laws, it appears, that a man might be amerced
twice his Were, "his Weram suam,"
for a second offence, and
all that he was worth
for a
third
offence; so that a man's
Were,
or estimated price, was certainly very far within the compass of his real wealth or substance. And, therefore, all these
amerciaments
must necessarily be understood to have been levied strictly according to the
spirit
of what was afterwards ordained in Magna Charta, i. e.
saving to a man
(according to his rank) his CONTENEMENT, or MERCHANDISE, or
wainage,
without degrading him from his rank and means of livelihood, except the same crime was obstinately repeated: and such
amerciaments were to be made only by the oath of honest and lawful men of the vicinage,
according to the regular usage of all the ancient
leets
and popular courts. The great object of
amerciaments
was to compel
men of all ranks
to respect and observe the laws; whence arose the necessity of varying the quantum of the
mulct
in due proportion to the offender's
ability to pay,
without actually depressing or degrading him from his rank; and of this
due proportion
a jury of the vicinage were the only proper judges.
) may perhaps help to explain the nature of the
amerciaments
mentioned above for neglect of
summonses.
Et qui leges apostabit,
(i. e. violarit,)
si fuerit Anglicus, vel Dacus, vel Waliscus, vel Albanicus, vel insulicola,
WERAE
suae reus sit apud regem; et, si
SECUNDO
id faciat, reddat
BIS WERAM SUAM;
et, si quid addat
TERTIO,
reus sit omnium quae habebit.
And whosoever shall neglect
(or violate)
the laws, whether he be Englishman, Dane, Welchman, or Scot, or islander, shall forfeit his
WERE
with the king; and, if he shall do it a
SECOND TIME,
let him pay
TWICE HIS WERE;
and, if he shall add a
THIRD TIME,
(i. e. a third repetition of the same offence,)
let him forfeit all that he shall have.
To increase
amerciaments
on the repetition of
offences
seems to be both just and necessary; but, whether in so enlarged a proportion as that of
doubling the Were
for a second conviction, and forfeiting
all
on a third, may reasonably be questioned; especially as there is no express exception for second and third offences in the
limitation of americaments
ordained by the 14th chapter of
magna charta.
Nevertheless, if we consider that a frequent
repetition
of the
same misdemeanor
is undoubtedly a
heinous aggravation
of it, and that it was always so considered
in the common law,
and punished accordingly by an
aggravation of the mulct,
as appears by the
laws
already cited, we shall, perhaps, be inclined to believe, that the authors of the said
limitation of mulcts
in Magna Charta, though they certainly intended to regulate by it the pecuniary penalties of
crimes in general,
yet, (for any thing that appears,) they had not in contemplation the peculiar circumstance of a
contemptuous repetition
of any crime, and may therefore be justly supposed not to have intended to abridge the salutary spirit of the
common law,
so necessary for its own preservation, in duly punishing, by gradual advances of severity, any
repeated contempts
of its authority.
If all these points be duly considered, it must appear that our
common law
is already vested with
ample powers
to enforce a
revival
of the ancient constitution of this kingdom; so that nothing is wanting but a general communication of its principles (the purpose of this tract) to engage THE WILL OF THE PUBLIC for its re-assumption; that the
SUMMA ET MAXIMA SECURITAS
of our ancestors (see p. 6.) may be once more established, the happy effects of which cannot be expressed in stronger terms than in the words of Sir Edw. Coke on this very subject.
By the due execution of this law,
(says he, speaking of the VIEW
of
FRANKPLEDGE, in his comment on Magna Charta, p. 73. 2d inst.)
such peace (whereof this chapter speaketh) was universally holden within this realme, as no injuries, homicides, robberies, thefts, riots, tumults, or other offences, were committed; so as a man with a white wand might safely have ridden, before the conquest, with much money about him, without any weapon throughout England; and one saith truly,
Referring to Mr. Lambard's explanation of AesTIMATIO CAPITIS.
conjectur a est, eaque non levis, haud it a multis scatuisse prisca tempora sceleribus, quippe quibus rapinae, furto, coedi
Caedi, or
manslaughters,
(if he meant
voluntary
slaughters or
murders,
) ought not to have been mentioned here as crimes formerly punished only by
pecuniary mulcts;
for, though I am well aware that many eminent law-writers have
supposed
this, as well as the learned Mr. Lambard and the excellent lawyer who quoted him, and though, perhaps, too many instances may be cited of such a corrupt usage sometimes prevailing in ancient times, so as to strengthen the
supposition,
yet it never was
the law
since the establishment of christianity, but a real
perversion
of the law, whenever it was done; which must have been occasioned either by corrupt
partiality,
or
favour,
from the officers of the crown, or through their
ignorance,
and want of due
discrimination
to be aware of the particular circumstances of
manslaughters,
wherein fines, or
mulcts,
might sometimes legally take place, as in
involuntary manslaughters,
to make men more careful of each others lives, and even in cases of
accidental deaths,
wherein the
deodands
were in the nature of
mulcts,
and also the particular circumstances when
mulcts
might be levied for
actual murder;
which was only when the murderer
had fled and could not be taken, that a certain sum should be paid for him, and should be collected, because they had not taken the killer,
&c.
"Si autem aufugeret," (i. e. interfector,)
et capi non posset, s
lverentur pro co 66 marcae, et colligebantur in
villa
ubi quis esset
interfectus,
et ideo quia
interfectorem
non habuerunt; et, si in tali
villa
pro paupertate colligi non possent, colligerentur in
hundredo
in thesauro regis
deponendae.
(Bract. lib. 3. c. 15.) N.B. The fines were to be
deposited
in the exchequer (
deponendae,
and not appropriated) for a year and a day, lest the
murderers
should, in the mean time, be taken; in which case the fines were to be returned to the town or
hundred,
as will hereafter be shewn.
But, if he could be taken, the same law declared
"fieret de eo justitia,"
let justice be done upon him; and the only
justice,
in the laws of GOD and
man
for such a crime was, and is, the
retribution of death!
The learned judge Bracton copied from K. Edward's laws, this very expression, concerning a convicted murderer,
"sieret de eo justitia,"
as also the alternative when the murderer could not be taken,
si autem aufugeret,
SOLVERETUR
ut supra dictum est,
(see leges Edouardi regis, c. 16.). The doctrine, here referred to by the words
"ut supra dictum est,"
is in the preceding chapter of king Edward's laws, viz. No . 15. entitled,
Lex Murdrorum,
to the following effect;
Si quispiam
murdratus
alicubi reperiebatur, querebatur apud villam ubi inveniebatur interfector illius. Qui, si inveniri poterat,
tradebatur justitiae regis
infra ipsos 8 dies interfectionis. Si vero
inveniri non peterat,
mensis et unius diei respectum habebant ad eum perquirendum. Quod si intra terminum non inveniebatur, colligebantur in villa illa 46 Marcae. Quod si ad tantae solutionem pecuniae non sufficiebat,
per hundredum colligebatur,
quod in
villa
non poterat. Veruntamen quoniam omnino
villa
confundebatur, providerunt barones quod
per hundredum
colligerentur, et sigillo al
cujus Baronis comitatus sigillarentur, et ad Thesaurarium Regis deportarentur, quas sigillatus
(perhaps for
sigillatas
)
ipse servaret per annum et diem unum, quod si infra hunc terminum possit murdrator haberi,
traderetur justitiae regis, et ipsi marcas Thesaurario Regis commenda
as rehaberent.
(So that the fine appears manifestly to be intended for no other purpose than to induce the inhabitants to
bring the murderer to justice.
)
Sin infra tempus annuum non posset teneri, parentes murdrati sex marcas haberent, rex quadraginta: &c. &c.
that if a murdered person was any where found, enquiry was made after the murderer, who, if he could be found within eight days, he was to be
delivered to the justice of the king.
But, if he could not be found, the inhabitants had a respite
(respectus)
of a month and a day, to search for him. Within which term if he was not found, the 46 marks before-mentioned were to be collected in the town, or (if so large a sum could not there be raised) throughout
the hundred;
and to be delivered, sealed up, to the king's treasurer, who was to keep them, sealed up, for a year and a day, that if, within this term, the murderer could be taken, he should be DELIVERED TO THE JUSTICE OF THE KING, and the marks were to be
returned.
So that
justice,
and not the fine, was manifestly the object; for, otherwise, some farther provision would have been made, that the fine should
not be returned
to the innocent inhabitants, until the abilities of the guilty person to make it good were ascertained. And, besides,
the justice of the king
could not
legally
be deferred, because the law ordained that
"justice should be done"
upon the murderer,
"fieret de eo justitia,"
and there could be no other
justice
to expiate the crime of murder except
the blood
of the criminal,
after the laws of God
were acknowledged by our Anglo Saxon ancestors; so that the king could not remit the due punishment either
for a fine,
or
through favour,
without drawing upon
his own head
a share of the
guilt of blood!
And, as a proof of this, the crime of
wilful killing,
or
murder,
was, in the laws of K. Canute, deemed
OTELESS,
that is,
UNE
IABLE, which is amply demonstrated by the learned Mr. justice Aland, in the preface to his edit▪ of Fortescue's Treatise on
the difference between an absolute and limited Monarchy,
p. 59. to 64. See also my Tract on
Crown Law,
&c.
, plurimisque aliis sceleribus mulctae imponebantur pecuniariae, cum hiis hac nostra tempestate,
(as for instance, 15 men hanged up together upon one gallows at Newgate the very last execution-day!!!)
nos omnibus merito capitis poenam irrogamus,
&c.
2d Inst. p. 73.
Mos retinendus est fidelissimae vetustatis.
4 co. 78.
Old Jewry,
July 17, 1784.
GRANVILLE SHARP.
,
,
.
Glory in the highest to GOD,
And on Earth PEACE,
Towards Men GOODWILL!
TRACT, Number II.
An ABSTRACT from the preceding Account of the
Hundreds
and
Tithings,
presented by the author to the committee of delegates from the several counties, &c. and entituled
A PROPOSAL For removing the enormous disproportion of popular representation enjoyed by the corrupt and venal boroughs: which Boroughs are now vested or monopolized, in the hands of a few individuals, as
private property;
a property avowedly estimated by the value of
the seats in parliament,
(instead of the only lawful property therein,
the real rentals of the tenements,
) and, at that unlawful and exorbitant estimation, notoriously
bought and sold,
to the disgrace and perversion of parliamentary authority.
THE present great national evil, the notorious
misrepresentation
of the commons in parliament, cannot
safely
be remedied or altered for the purpose of amendment, by any other mode than that of reverting back to the first principles of the constitution, and by reviving the
ancient rights
of all denominations or classes of the people; at the same time carefully rejecting every
innovation
that is not
consistent in principle
with the
ancient usages
of the realm, of which the
certain effects
are already known: whereas no human prudence can insure the
real
tendency and final effect of
an innovation
in matters of state, howsoever plausible it may at first appear.
Though all true friends to the cause of liberty and the
natural rights
of mankind would wish that
every man
should vote for his representative in the national council, without any other description of
right,
or qualification, than that of
being a man;
yet, if this has not already been
the usage
of the realm, it is not, perhaps,
adviseable,
at least at present, to be adopted.—We know not what would be the effects of it; probably
they would be good:
but we ought to walk in a trodden path, and build on sure foundations.
That
every man,
as such, if he was but an inhabitant of
a county,
did formerly vote in
the court
of that county (called the
plein county,
or
full county
) at elections for
the knights
of the shire, seems probable, by the description of
very great
outrageous
and
excessive number of people dwelling within the same counties, &c. voting at such elections,
as mentioned in the act of 8 Hen. VI. cap. 14. which restrained the right of voting for knights to the freeholders of 40s. per ann. lands or tenements.
But a just definition of
terms
will best shew what description of persons have an unquestionable
right to vote for representatives
according to the fundamental principles of the constitution.
The titles of
freeholder
and
liber-tenens
are
ambiguous
terms, not sufficiently descriptive of the rank intended to be expressed; for they are applied at present only to
land-owners;
that is, to those who have, at least, a
life-interest
in
lands
or houses; which last, as being built on
land,
do equally intitle the proprietor to the rank of a
land-owner:
but these ambiguous terms,
freeholders
and
liberi tenentes,
have sometimes been applied also to the
free-renters of tenements by the year
in contradistinction to the
tenants at will
and
holders in villenage;
for the old Saxon
freo-borges,
or
free-burgesses,
(that is, the
free pledges
of the realm,) were equally
free
in their condition with those persons we now call
freeholders,
though the
tenure
of many of them was
not permanent;
they being, (by far the greatest part of them) only the
renters of tenements by the year;
though, indeed, the
land-owners
themselves (those that were
housekeepers,
or
householders
) must have been included under the same general description of
freoborges.
Sir Edward Coke defines the meaning of the word
burgh
to be
because
it
sendeth burgesses to parliament;
and, though this is not the proper derivation of the word, it is certainly the
ancient usage
of all
boroughs,
as well as the
right
of all
burgesses,
or
freoborges.
For
burghs
were originally named from burgesses, or
freo-borges,
i. e.
free-pledges
"It was in former times"
(says Sir Edward Coke, speaking of the word BURGH)
taken for those companies of ten families which were one another's pledge, and therefore a pledge, in the Saxon tongue a
BORHOE,
whereof (some take it) that
a BURGH
came;
&c.
whereof also cometh
HEADBOROUGH, or BORROWHEAD,
capitalis plegius, a
CHIEF PLEDGE, viz.
the chief man of the
BORHOE,
&c. Co. Lit. p. 109.
, in their collective capacity, in
tithings
and
hundreds
(many of which might be included in one
borough
) and not vice versa, the
burgesses
from the
burghs,
which at present is commonly understood; and may, indeed, in some cases of the more modern boroughs, incorporated by charters, be really the fact
A different etymology may also be assigned to many towns, the names of which end with
berg
or
burg,
which signifies a
fortification,
or castle, from the Greek
, of which the learned Sheringham has given some instances in his tract de Anglorum Gentis origine, p. 278.
.
In the great annual courts of
Frankpledge
throughout the kingdom,
every housekeeper
was incorporated with nine other neighbouring
housekeepers,
(archbishops, bishops, peers, and other great men, excepted, who
pledged
their own
households,
and were supposed in law to have a
tithing
within their own families; but all other
householders,
or
renters of houses, per annum,
were incorporated) in distinct legal associations called
tithings,
or
decenaries,
from the incorporated number of
housekeepers
in each: and though all youths of 12 or 14 years of age, as also lodgers, journeymen, and male servants, were likewise obliged to attend the great annual court of
frankpledge,
and be there sworn to the king's peace, and be also regularly included in the
decenary
and trained in the use of arms, together with the
ten
housekeepers in whose families they were respectively included and numbered, yet the
ten housekeepers only
were properly
freo-borges,
because they were the responsible persons, who
pledged all the rest,
and had a fixed habitation, and certain interest in the state, paying scot and lot, being liable to all
national,
as well as
county
and
parish,
rates.
And these ten
Freeborgs
of each
tithing
were still farther distinguished by the title of
deciners,
(i. e.
decenarii,
) a term very properly expressive of their rank and quality as fixed and permanent members of a
decenary,
consisting of
ten
such associated members, one of which was annually elected
chief of the ten,
or
tithingman.
The term
deciner
has been very much mistaken and misrepresented by law writers; some applying it merely to the headborough, or
capitalis-friborgus,
the
tithingman,
or head of each ten
free-burgesses;
and others again to
every man
that was included in a
tithing;
which is a gross abuse of the term: for a
tithing
may consist of many more than
ten,
(even 20 or 30 males,) yet the
ten housekeepers
who are principally responsible and thereby actually constitute the
decenary,
both in number and title, those
ten
alone are properly the
deciners
of a
tithing.
Again, the word
denizen
has strangely puzzled the etymologists; who have sought its derivation, some from the French tongue, others again from the antient
British,
but both equally in vain: For, though it appears, that the
Britons
had the term
denizen
in use amongst them before the coming in of the Anglo-Saxons, yet, as all the
Roman colonies,
established among the Britons, were not only divided into
centuriae
or
hundreds,
but had also their
decuriones,
and consequently
decenaries
also, (for the captain of
the ten
could not be without
the nine
whom he headed,) both in their
civil
and
military
government, it is clear, that the term
denizen
is of pure
Latin
original, from the numeral adjective
deni,
forming the Latin verb
denizo,
to express the adoption of any person into all the franchises and rights of a
decenary.
And our law-writers have regularly used the participle
denizatus,
and the derivative substantive
denizatio,
to express the introduction of
aliens
to the franchises of natural-born subjects, and yet they have not perceived the obvious meaning of these words both in sense and sound.
For the alien is admitted by
denization
to all the rights of mutual protection enjoyed by the community of natives in their established
decenaries;
and if he then becomes a housekeeper, and one of the
ten
housekeepers, who jointly constitute a tithing, or
decinary,
he is, of course, a
deciner;
and, with other
deciners,
is an incorporated member of the county which he inhabits; for, as the
hundreds
are the constituent parts of the
county,
and the
tithings
the constituent parts of each
hundred,
it necessarily follows, that the
deciners
are suitors of the
county-courts;
which right at present is very improperly attributed to the
freeholders,
or (more properly) to the
land-owners
alone; for the right of the deciners, or
free burgesses,
to the county-courts is demonstrated by the examples which have been given of general elections for
knights, citizens, and burgesses, all together promiscuously in the county-courts;
which I have recommended in a former tract
See
Equitable Representation necessary to the Establishment of Law, Peace, and good government,
&c. p. 22-29.
, as
one
means of reducing the enormous disproportion of representation (at present enjoyed by some particular
boroughs,
to the effectual disfranchisement of all the rest!) whereby the kingdom has lost the means of expressing the
sense of the people
in parliament; and the king has been
deluded
by majorities of alternate factions; factions, which, falsely calling themselves
the commons of England,
have plunged the nation into desperate measures and enormous expences, and thereby loaded it with a burden, which it cannot possibly bear and retrieve without a speedy reformation.
Though the representatives of cities are now called
citizens,
yet it appears that all cities and large towns have their right of voting as being ancient
boroughs;
that is, they had their right of voting from the inhabitants being
freo-borges,
or
free-pledges
of each other, in their respective
decenaries,
as
deciners;
and their right of becoming
deciners
arose from their being
householders,
paying certain rent per annum;
or
paying each of them yearly an annual rent:
for that is the true definition of
burgage-tenure,
as described by Littleton; and therefore, not only
householders
whose houses are their own property, but also EVERY RENTER OF A HOUSE, OR TENEMENT,
who is equally liable to bear the burdens of the state, by being rated to all public and parochial taxes,
OUGHT TO BE ADMITTED TO VOTE FOR THEIR REPRESENTATIVES IN PARLIAMENT; a right which they anciently enjoyed.
For of such
OLD
towns, called
BOROUGHS, (says Littleton, p. 109. b.)
come the
BURGESSES
of the parliament, when the king hath summoned his parliament.
The
ancient city
of Westminster, and many other cities
For the towns, that now be
cities
or counties, in old time were
boroughes,
and called
boroughes,
for of such old townes, called boroughs, come the burgesses of the parliament, &c.
Lit. p. 109. b.
, as well as the
ancient borough
of Southwark, still retain the original usage and rights of
burgage-tenure,
the mere
renters of houses,
or
householders,
throughout
all the parishes
respectively included in each, being still entitled to vote by ancient prescription, which clearly proves the original nature of
burgage-tenure,
though it is very much altered in some other places, partly through the encroachments of
purchasers of boroughs,
to reduce the number of voters; and partly by granting exclusive privileges to a
few people
in the incorporated chartered boroughs.
The shortest and most easy mode of restoring, to
all the householders of this realm, their ancient right of voting,
is, first, to restore their ancient capacity of DECINERS, by advising them to
throw themselves
into tithings or
decenaries;
and to hold annual courts of
Frankpledge
(now too long neglected) for the
renewal
and continual preservation of the
tithing associations.
By this means both the
civil
and
military
government of the people will be completely restored, and peace and defence will be completely secured, so that
housebreaking
and
robbery
will no longer be known amongst us, for such was
once
the happy state of the kingdom; and effected by the
very same
regulations here recommended. A farther advantage, by restoring this ancient, legal, and constitutional, mode of government, will be, that the exact proportions of the people in each county, who have a
right to vote,
will be truly ascertained; whereby may
hereafter
be introduced a representation of all the counties,
perfectly equal,
in proportion to their respective numbers of
householders:
for if, in each county, divisions were formed, consisting each of 200
decenaries
or
tithings,
(including 2000 householders each,) that proportion will be found, on calculation, to contain the most convenient and proper number to be joined in the election of
one deputy
for parliament, in order to obtain an
equal representation
of
all the families in the kingdom;
and no persons will be excluded but servants and others, who have
no fixed habitation of their own;
and, consequently, at present, have no permanent interest in the state; or, at least, do not bear so large a proportion of relief to its burdens as the
housekeepers
do.
Two thousand
families might well afford to pay ample wages to
one
representative; and the stipend might be very easily collected, if the
decenaries
were duly formed and established, and the several courts which regularly arise from the
decenaries,
viz. the
hundred courts;
and those which might most conveniently be added to superintend and regulate the
hundred courts,
viz. the court of
one thousand
families, (answering to those of the Israelitish commonwealth, the
thousands
of Ephraim, the
thousands
of Judah,) and lastly the junction of TWO
such courts of the thousand, for the election of
ONE
representative.
This last proposed court of 2000
householders
would probably be equal to what some of the old
trithing courts
formerly were; which are said to have sometimes included the third or fourth part of a county.
If every division of 2000
families
were to elect
one
deputy to represent them in the great
common council
of the kingdom, the whole number of
representatives,
for South Britain, would amount (according to the present state of population) to about 476
This calculation is formed from the account of the number of houses charged, chargeable, and excused, in 1777, viz. 952, 734. See Dr. Price's Observations on the Population of England and Wales, p. 11. In my former proposal, from which this is extracted, where I make the number of representatives amount to 500, I have, for the sake of a round number, followed Dr. Price's advice, when he says, concerning the number of houses, in p. 14.
let it, however, he stated
(says he)
at a million.
; by which there would be a profitable reduction of 37 members.
This would be no
innovation,
because the election would still be vested where it ought, viz. in
all the free householders,
or
free-borges, of all
the counties; and that in the most
perfect proportion
of
equality:
and this order of
equity
would not be liable to change, or to be corrupted, because the number of deputies or delegates would rise or fall in due proportion with the degree of population in each county, from time to time.
GRANVILLE SHARP.
TRACT, Number III.
Being a
Memorandum
on a late Proposal for a New Settlement to be made on the Coast of AFRICA; recommending, to the Author of that Proposal, several Alterations in his Plan, and more especially the adoption of the ancient Mode of Government by
Tithings
(or Decenaries) and
Hundreds
as being the most useful and effectual Mode of Government for all Nations and Countries.
THE proposal for a settlement on the coast of Africa will deserve all encouragement, if the settlers are
absolutely prohibited from holding any kind of property in the persons of men, as slaves, and from selling either man, woman, or child.
Even
to claim
any human person, as
a slave,
ought to be considered as an affront to the whole community, and be punished accordingly.
With respect to the proposal for leave to
purchase slaves,
the permission, if granted at all, must be very carefully guarded; and the price given must be considered and declared, at the time of purchase, to be a mere
pecuniary debt for redemption,
due from the person purchased to the society or state of the settlement; and by no means to be tranferred to any single individual, (which would introduce domestic tyranny and traffic in the bodies of men,) but the debt to be discharged at leisure, without increase or interest, whenever the redeemed, or his friends, shall tender the amount of the first price; in default of which, the price should be worked out by a limited proportional service to the state; and the state should hold forth, at the same time, ample encouragement to engage compliance and submission: but it should be an established principle, that the state or society ought rather to lose the value of the purchase than,
by compulsion, to enforce involuntary servitude,
whereby honest labour, that should always be deemed honourable, is rendered odious and slavish.
Rules must also be laid down to prevent
the monopoly of land
within the bounds of the settlement: and a sufficient reserve of
land
must be made for public services
(schools and religious instruction)
in each township; and for
cottage land
to be distributed in small parcels to new settlers and redeemed captives; which parcels
must revert to the state or community, for the same benevolent investiture to others of the like condition,
as soon as the temporary possessors are enabled to purchase larger lots; for it will prevent, in some degree, the monopoly of land, if the
cottage-lots
are untenable with other land.
Common land
should also be reserved for a competent distance round each town and village, wherein
all inhabitants,
rich and poor, should have an
equal personal right:
because
the claims of rich landholders,
when made in proportion to the size of their bordering estates, is unreasonable and unjust; and has occasioned a cruel perversion of the utility of common lands in England: for the live stocks of rich farmers, occasionally turned loose upon the commons, generally deprived the cattle of the poor inhabitants of their necessary sustenance; and the late divisions for enclosures, by act of parliament, having been, for the most part, inconsiderately granted in the same unjust proportions, have at length nearly annihilated
the common lands of England:
whereas, on the contrary, the large possessions of the neighbouring landholders ought, in reason and natural justice, rather to have excluded them from the least share in the inheritance of the poor inhabitants; or, at most; their share should have been
merely personal,
as men, and individuals,
equal to,
but not exceeding, the claims of their neighbours, that the
common lands
might be truly
in common.
The managers, entrusted with the society's property to form the settlement, should have no settled dominion or authority over the people as governors or judges, but should be contented with that superiority and influence, which their pecuniary trust, as agents and overseers for the society, will naturally afford them; and their services may be amply rewarded and encouraged after the first year's salary, by an admission to a due proportion or share with the members of the society in the general profits of the settlement, and in the profits of the common or public trade of the society; but
no private trade
whatsoever should be permitted to any of the society's managers and agents.
The officers for internal government, as the governor or mayor, the sheriffs and other magistrates, constables, &c. &c. should be
freely elected every year by all the inhabitants,
due qualifications being premised to render men eligible to offices of dignity and trust.
The purposes of the defence, legislation, public justice, government, and subordination, of the settlers, and their union as a community, (however large and extensive the settlements may hereafter become,) are points more easily to be accomplished than is generally conceived; provided the antient Anglo-Saxon government by
mutual frankpledge
in
tithings
(ordecenaries) and
hundreds
A short, yet very comprehensive and well-stated account of this ancient mode of government was published in the year 1780, on the spur of an occasion which too clearly demonstrated the lamentable want of this excellent institution: I mean the dangerous riots in that year, which could not have proceeded to such an alarming excess, had not this institution been long disused, for otherwise
"the civil power,"
as the sensible author remarks,
would have fully guarded us from its outrages,
p. 45. "I ascribe" (says he, in letter II. p. 27.)
the complete formation of those general outlines, by which we have ever defined the English constitution, to
Alfred,
on the authority of historians, who specify the particular regulations which rendered his government so happy as well as glorious; which have been, in some degree, preserved amidst violent and numerous revolutions; to which every Englishman has an unconquerable partiality; and the restoration of which, to their proper vigour and effect, would secure our persons and property, and preserve that peace and order which are so essential to the happiness of the community.
Keeping in view those general, those beautiful, outlines which were formed by the institutions of our early ancestors; over which the people sighed when broken and deformed by the Norman conquest, by the bloody contests of the houses of Lancaster and York, by the tyranny of the house of Tudor, and the folly of that of Stuart; and an attention to which, alone, rendered the revolution a blessing: we must define an English citizen to be a free-man; who is to owe his protection, and the security of his family and property, to a civil government, of which he is an essential member.
You will observe, Sir, that I confine myself to one object, or one part of our constitution, which provided for the safety of individuals, and the preservation of order by the following regulations, still existing in names and forms; the revival of which would be the most beneficial and popular act of government which can well be imagined.
The whole kingdom was, as it is now, divided into COUNTIES, HUNDREDS, and TITHINGS.
Ten families
were associated, their names entered, their occupations defined: the males in them from eighteen to fifty, or sixty, years of age, pledged themselves for the security of the
tithing;
and to obey the summons of the
decennary,
or
tithingman,
on the least apprehension of danger. They were furnished with such arms as the times afforded.
The perfect knowledge which every neighbourhood had of its inhabitants; the concern which every man had in the security of every man; and the obligation which every decennary was under to be answerable for his tithing; either prevented all violations of peace and order, or corrected them at their first origin.
All the decennaries or tithingmen were
chosen by the people
once a-year; and this is an
essential
circumstance in the institution.
The ten tithingmen of every district, called a hundred because it contained a hundred families, chose a person to preside over the hundred, to whom they made their appeals, and who had a power of calling them out. All these were amenable to the earl or count who governed the county; and he was amenable to the king, who either by the
earl or by the sheriff, both of which were of his own appointment
The worthy author in this point is mistaken: the sheriff, as well as the earl and
heretock,
were, in ancient times,
chosen by the people.
, could call out the whole force of a county, or of any number of counties, as the public exigencies required; while the internal peace and order of each district was provided for without his interference, and in a manner perfectly consistent with his general authority and influence.
Nothing has ever been imagined more simple in its construction, or more effectual in the execution, than this part of the English constitution. The several powers of it, which in most cases are in eternal discord, are here so happily blended, that the people are secure and free; the king's power extends to every thing but mischief, and is, in reality, greater than can be obtained on any other plan.
These regulations might be easily restored and rendered as effectual as ever. The prepossessions of the people are strongly in their favour; and, perhaps, no others can be contrived which will not set the body of the people
at enmity
with government; which will perfectly allay their apprehensions and jealousies; will make them the ministers of their own security, while the power of the king
reaches every individual of them, by a chain, every link of which is effectual,
and
will not interfere with the prerogative of the king in other departments of the state,
however the business of them may be administered. * * * *
"If you mean that it is impracticable," (says he, in letter III.)
because the inhabitants of this country are too far advanced in luxury, too indolent, too effeminate, to enter on any plan of security, which will require the least trouble, or put them to the least inconvenience; and if you can ascertain this fact, I have no answer to make. But the trouble and inconvenience are such as would not be complained of by women. What is it but an amusement to learn the common use of arms? What inconvenience to submit to such regulations as may bring together a neighbourhood, a parish, the ward of a city, a town, a district, &c. to clear them of vagabonds, occasionally to assist the civil magistrate, and to lay the basis of a general security, confidence, and strength, where it ought to be laid, in the whole body of the people?
I will venture to affirm, that there is no other method by which disturbances, riots, and insurrections, can be prevented, without debasing the people into the condition of brutes: and there is no other method by which a king may hold every man in the nation in his hands; while every man in the nation would feel and know himself to be as free as it is possible he should be in society.
Hints have been thrown out of acts of parliament which render such associations, as I recommend, illegal; but the acts are not specified. I know there are laws forbidding a man's going armed, in a time of tranquillity and peace, without leave from a magistrate, and specifying such assemblies of people as are dangerous and seditious; but without the most distant reference to the right which every man has, from nature, from the connivance of the most despotic governments, and from the express provisions of the English constitution, to provide for his own defence and that of his family; and to unite with his neighbourhood, under the eye and direction of the supreme magistrate, for the general peace and order of the community.
If there were such laws as you mention, they could not possibly have effect, against not only
a necessary right or nature, but an essential principle of the English constitution.
If a law were made, that, because it is
possible
an English elector may become venal, therefore all electors must relinquish the right of voting,— would this constitute an obligation? Will any man say, that the legislature is competent to the making of such a law?—how much less to annihilate the first and most important principles of human society, by awarding, that, as it is possible men may make an improper use of their limbs, or their arms, which may be as necessary as their limbs, they must therefore suffer them to be
taken off.
The power of the legislature, like every power in human society, is limited by certain and accurate bounds; it may exceed these bounds, and commit absurdities, and even offences. The English legislature is just as competent to make a law, by which every Englishman may be banished to the Orkneys, or put to death, as it is to enjoin the people to give up the right of self-defence and preservation, by the use of their limbs, or by the use of arms.
The apprehension that associations will produce commotions and riots, instead of preventing them, must be pretended only. And all the arguments for depriving the people of the right of associating, because they have often assembled for mischievous purposes, are delusive. Cardinal de Retz says, that all numerous assemblies are mobs; and I will add, that all mobs are mischievous. Let the people, who might form such assemblies,
be divided into small bodies; and, though the individuals be not improved, they will act reasonably and well.
The design of associations is, to
prevent large and tumultuous assemblies; to arrange the people under the eye of government,
as accurately as an army,
without diminishing their constitutional independence and liberty;
to increase the difficulty of misleading them, and to destroy all ideas of
appeals to them.
Here I beg to be understood, not as aiming at any of the rights of the people: but the idea of an
appeal to them
has been borrowed from the government of
Rome;
in England it is, like the introduction of military force, a thing that negligence or mismanagement may render
necessary;
but the constitution is perfect without it; no supposition is made of the possibility of having any occasion to make it; and, whenever it is made, the remedy may be as hazardous as any evil it can be designed to remove. A whole nation, like the human body, in order to act with harmony and pleasure,
must be divided into small parts, each having its local power, subject to the direction and controul of the general will,
p. 38 to 44.
be duly adopted; and this being already consistent with the common law and antient constitution of this kingdom, (still deemed
legal
though not in use,) might be lawfully established, even if the settlement is made within the boundaries of the present English claims; but, in that case, the legal process in all the courts of justice must be carried on in the king's name; and the settlers may not refuse to admit a governor, or lieutenant, of the king's appointment, with a
limited
delegation of authority, according to the constitution of England, whenever the privy council shall think proper to send one.
But, if the settlement be attempted in any other part of Africa, not claimed by European powers, the managers must first obtain the consent (and association, if possible) of the native inhabitants, or else the establishment must be made on an uninhabited part of the coast: and, as the majority of the settlers will probably be negroes, returned from slavery and oppression to their
native
soil, there will be no necessity to form the plan of government strictly by the constitutional model of England, any farther than reason and experience may suggest the adoption of some particular parts of it: but we may, in that case, assume the liberty of drawing a precedent for government from more antient and more perfect documents than our Saxon records, viz. from the example, or rather the original intention, of
the Israelitish commonwealth,
purified and improved by the general precepts and
maxims of the gospel,
and by the example of
free congregational government amongst the primitive Christians,
who decided their own temporal litigations and differences, (
,
"things pertaining to this life,"
1 Cor. vi. 1—8.) as well as ecclesiastical questions, in their regular assemblies of
all the people:
which method was an ancient ethnic custom, (derived probably from patriarchal times,) as appears by the example of the pagan Ephesians, recorded in Acts xix. 38, 39. whom their town-clerk referred to
a lawful assembly
(
, apparently distinct, as the context proves, from their
ordinary courts of justice,
then subject to the Romans) for the
examination
and
resolution
of all extraordinary questions.
The Israelitish government, under the theocracy, was administered by
freely-elected judges and officers
(see my tract on the Law of Nature, p. 325 to 329.) throughout all the tribes and cities or gates; except in the extraordinary cases of prophetical judges; though these were probably
elected
likewise, as soon as their superior, or supernatural, abilities became generally known.
They had a regular gradation of official power, heads of
tens,
of
fifties,
of
hundreds,
and of
thousands;
besides the provincial governors, who were ancient heads of houses or tribes: these altogether formed
one great band of allegiance,
uniting the whole community together for
action and defence,
as
one man,
with
one mind,
viz. by the free resolutions of the majority; the smaller divisions being regularly included and controuled in the larger, and the individuals of all the divisions being mutually bound to each other by the reciprocal ties, or allegiance, of
frankpledge,
which our Saxon ancestors, and many other, even savage and heathen, nations
The Romans had their
decuriones
and
centuriones,
not only in their
military,
but also in their
civil,
government; and, consequently, they must have had the popular divisions of
tithings
and
hundreds
much in the same manner as those established by K Alfred in England, in imitation of the Israelitish commonwealth; and even the
Chinese
and
Japonese
(it is said) have
tithings
to this day.
, have in some degree maintained, probably from the patriarchal times. For, all men (having
the knowledge of good and evil
) are capable of this form of government, if it is once properly explained to them, and established: and there is no mode of defending, restraining, and keeping in order, a promiscuous body of men, so cheap, so easy, or so certainly effectual for every profitable purpose, as that of
mutual government
by the principles and maxims of
right,
in such equal proportioned congregations; each of which is a constituent part, or member, of a more powerful congregation, in the great
unity,
or
commonwealth;
wherein every individual, however violent or morose in himself, is prevented from injuring others, by having his person and his property rendered answerable for all damages, which he either occasions by his own rapacious violence or caprice, or which he does not endeavour to prevent in others, as a member of the
tithing
wherein any violence or offence is committed: for, according to the law of
frankpledge,
no man is entitled to
liberty
Omnis homo, qui voluerit se teneri PRO LIBERO, sit in
plegio,
ut
plegius
eum habeat ad justitiam si quid offenderit,
&c. See Lambard's Archionomia, p. 125. b.
, that is not duly
pledged by his nearest neighbours
for the mutual conservation of
peace
and
right.
Under this form of government, all public works, as entrenchments, or
earthworks,
and
fortifications,
to secure the towns and strengthen the country; canals, and highways, for public passage; sewers, and drains, for the general health of the country, &c. may be formed and maintained by
a rotation of service;
in which the value of daily attendance must be estimated, that defaulters may bear their share, or rather a
double share,
of the burden: and the expence of
watch and ward,
or
military service,
must be defrayed in the same manner; by which means no debt will be incurred for the defence of the state. Rich funds may also be obtained to support the credit of a public exchequer, (without laying any perceptible burden on the community,) by a general agreement to punish by fines and mulcts, in due proportion to the wealth and possessions of delinquents; increasing likewise, by repetition, for all offences as well of
omission
(or neglect of public duty) as of
commission;
except for murder, rapes, and unnatural crimes, which, by the laws of God, are unpardonable by any community. The people themselves to be
judges,
people of the vicinage, unexceptionably disinterested; liable, besides, to the challenge of the parties, and duly
sworn
(according to the known laws of English
juries
) to do
right,
in the presence of the ordinary judges, and officers elected to preside and keep order in the assemblies.
GRANVILLE SHARP.
Old Jewry,
Aug. 1, 1783.
TRACT, Number IV.
An easy and practicable Plan for laying out Settlements on uncultivated Lands, in equal Divisions of
ten Tithings,
or 100 Families each; whereby new Colonies may be most advantageously formed and extended in regular Districts of
Hundreds,
agreeable to the ancient legal Divisions of our Anglo-Saxon Ancestors.
SEVERAL years ago I made some memorandums of
A Method of forming frontier Settlements,
which I copied from the second edition of a book first printed at Philadelphia, but reprinted at London in 1766, and intituled
An Historical Account of the Expedition against the Ohio Indians, in the Year
1764,
under the Command of Henry Bouquet, Esq. to which are annexed Military Papers, containing Reflections on the War with the Savages; a Method of forming frontier Settlements,
&c.
My reference for the last-mentioned subject is to p. 51 of the said book; but, as I have not the book itself at present, I cannot pretend to be perfectly accurate in my quotations from it; neither do I remember whether the author recommended a government by
tithing
and
hundred
courts, with their proper officers, according to the Anglo-Saxon model; but only that his proposed settlements were (happily for my present purpose) laid out in equal divisions of
one hundred
lots each, for the maintenance of
one hundred
families; so that, of course, the constitutional regulations for
hundreds,
recommended in the preceding tracts, will not be less suitable and beneficial to
his
scheme than
his
certainly is to mine.
"Let us suppose a settlement" (says he)
to be formed for
one hundred families,
composed of five persons each upon an average.
Lay out upon a river or creek, a squ. of 1760 yards; or a mile for each side.
That square will contain 640 acres.
Allowance for streets and public uses 40 640 acres.
To half an acre for every house 50 640 acres.
To 100 lots at 5½ acres 550 640 acres.
The four sides of the square measures 7040 yards, which gives to each house about 70 yards in front, to stockade, and the ground, allowed for building, will be 210 feet front and about 100 feet deep.
An acre of ground will produce at least 30 bushels of Indian corn; therefore, two acres are sufficient to supply five persons at the rate of 12 bushels each person; two other acres will be for cows and sheep, another for hay, or to be sown with red clover; the remaining half acre may be laid out for a garden.
Thus far the author's plan may be applicable to lands even in England, especially if laid out in less divisions of
tithings,
instead of
hundreds,
preserving the same due proportion of land in lots for each family. The
ten
families with their habitations would form a compact little village, under the government of a
tithing-man,
annually elected from among themselves, whereby all would be rendered mutually responsible for each other, for the common peace; and to make good every damage that might be occasioned by the ill behaviour of any individual among them. An estate laid out in small farms, with such a
tithing
village in the centre of it, for a constant supply of labourers, might be made to maintain a much greater number of people than land generally does in the ordinary way of farming; and would, consequently, be much more beneficial both to the landlords and to the nation at large. Commons and waste forests or chases might thus be laid out and occupied by the labouring poor, to the great reduction of parish rates as well as of the price of labour; for, free and useful labourers would never be wanting, if such a regular provision, under their own management could be found for their families. But the possession of such parish-lots should be limited to those persons, who occupy no other land; and should be delivered up to the parish or community, for the use of other unprovided families, as soon as any possessor obtains more land, either as a farm, or in fee, (as recommended in a former Tract,) to prevent
the monopoly of land,
and the entire deprivation of the poor from any share in it, as at present.
The remainder of the author's scheme is suitable only to unoccupied countries, like many parts of Africa and America, where the people are few, and the lands of small value, viz. "Round the town" (says he)
are the commons of three miles square, containing, exclusive of the lots above-mentioned, 5120 acres. On three sides of the town, five other squares will be laid out, of three square miles, containing 5760 acres each; one of which is reserved for wood, for the use of the settlement; the other four to be divided into 25 out-lots, or plantations, of about 230 acres each; so that in the four squares there will be 100 such plantations, for the 100 families. Another township may be laid out joining this, upon the
ame plan, and as many more as you please, upon the same line, without losing any ground.
The following is a rough Sketch of the whole.
The banks of the river (as in ancient times) should be deemed
common
or
public
as the river itself, under the conservation of the
community;
and should be reserved for future improvements, (as for the accommodation, not only of fishermen, but also of manufacturers, traders, and of all industrious strangers,) and docks, or navigable cuts (whenever the level of the country will permit) should be made from the river, as far back, at least, as the centre between every two townships.
The spaces between the squares are left for roads and common communications between the several lots; and the roads which divide two distinct townships should be still more spacious for the common use of all the inhabitants, the cartage of their produce and other traffic, the driving of cattle, &c. and a spacious road, to be formed lengthways throughout the whole settlement, ought, in forming the lots, to be reserved through the centre of each township: the central lots, which will thereby be diminished in
size,
will find ample compensation, in
value,
by their situation on the great central road, which I have expressed by a dotted line. I do not remember whether any roads, or spaces for them, were expressed in the original plan of the author.
I would likewise deviate from the original plan of the author, with respect to the situation of the 5760 acres of woodland for each township; which, I conceive, had better be reserved in one of the most distant squares, at an angular situation from each town, instead of being in the opposite square, according to his proposal: for the towns will not only be more healthy, by having the uncleared lands more distant from them, but also the inhabitants, when on watch and ward duty, will be better enabled to discover the approach of any lurking savages, or other enemies in time of war.
GRANVILLE SHARP.
Old Jewry,
Aug. 1, 1783.
TRACT, Number V.
A farther Declaration of the ancient
popular,
or
congregational, Right to elect Bishops;
intended to illustrate, more effectually, a Maxim of the Common Law, cited in p. 91, viz.
Ordo Episcoporum est Robur Reipublicae.
Jenk. Cent. p. 56.
"ORDO EPISCOPORUM EST ROBUR REIPUBLICAE."
Jenk. Cent. p. 56.
IT is an established maxim of the common law of England, that
The order of bishops is the strength
(force or hability)
"of the commonwealth."
But, in order to render this maxim obvious and unquestionable, we must necessarily imply and include, in the
episcopal
function, that very important branch of it already mentioned, viz. the presiding as chief
popular
magnistrates in the
congregational
courts of common law
See second note in p. 92.
"Leges Edgari,"
&c.
; and we must also suppose the continuance or reestablishment of the
primitive christian freedom
in episcopal elections; that the bishops, by real
popular
elections, may be truly
popular
magistrates, worthy to be entrusted with the
civil
as well as the
ecclesiastical
INTERESTS
of the common-wealth.
Mr. Sadler, in his
Rights of the Kingdom,
speaking of the time of K. Henry II. says,—
It seemeth considerable, how all historians (of that time and dispute) do record,
THE CHOICE OF BISHOPS
to be in the
PEOPLE:
in
PLEBE and in POPULO,
as well as in
CLERO.
They mention
RADULPH,
ordained a bishop for the Orcades: but rejected by all, because not elected by
COMMON ASSENT
of the
PEOPLE; PLEBIS, CLERO
For
cleri.
, PRINCIPIS, it is
every where in the old monks; and how the poor bishop wandered up and down, as an assistant to other prelates,
&c.
See p. 235, and more instances also at p. 243. The learned author of a tract, (printed several years ago, as appears by the list of tracts published at the same time, but without a date,) intituled,
Lex Parliamentaria, or a Treatise of the Law and Custom of Parliament,
&c. has cited various proofs of the
people's right
to elect bishops.—
"That for some years,"
(says he,)
after this new charter granted in this English parliament,
(meaning a parliament held at London by K. Henry I.)
the
PEOPLE
were generally
RESTORED
to the right of electing their own magistrates and officers, civil, military, and
ECCLESIASTICAL; and this
(says the learned author)
I take to be the
grand foundation of the
MAGNA CHARTA of English liberties, i.e. as it gave relaxation from Norman tyranny and slavery. And this may teach us, that the rights and liberties of the commons of England, are neither so illegally begotten as by rebellion, nor of such tender years, as some imagine. But, if any man is not convinced from what I have before produced, touching the origin of English parliaments, and the antiquity of the house of commons, let him peruse the authors cited in the margin
Dier 60 and 70. See Mirror, c. 1. sect. 3. Bra. Flet. Lambard's Archaion, 57, 239, 245. Sir R. Atkins, p. 20. 17. &c. Vide Post. c. 6 & 7.
, especially the treatise writ by that learned judge Sir Robert Atkins, on this very subject.
Nor was this the first English parliament held under this king, Mat. Paris has given us a brief account
37, 39. 2 Inst. 15. Saxon Chron. sub anno 1099. p. 208, 210. Flor. Wig. &c. Mat. Par. 39.
, (which other authors confirm and enlarge,) that one Ranulph, bishop of Durham, (whom Mat. &c. adorn with the sublime titles of,
Vir pessimus, & corruptissimus; homo perversus & ad omne scelus paratus; vir subacto ingenio & profunda nequitia, &c.)
was imprisoned, &c. by a common-council or parliament of Englishmen. The whole passage runs thus,
Eo tempore rex tenuit in custodia
Ranulphum Dunelmelsum,
episcopum hominem perversum & ad omne scelus paratum, quem frater regis
i.e.
rex
Willielmus
episcopum
"The office of a
court bishop.
"
fecerat
Dunelm.
& regni
Anglorum
subversorem; qui cum regi jam dicto nimium esset familiaris, constituerat eum rex, procuratorem suum in regno, ut
evelleret, destrueret, raperet, et disperderet,
et omnia omnium bona ad fisci commodum comportaret. Sed mortuo eodim rege iniquo &
Henrico
coronato, de
communi consilio gentis Anglorum,
posuit rex eum in vinculis,
&c.
Nor was the concurrence of the commons in parliament requisite only to the imprisonment or exauctoration of
bishops
Rights of the kingdom, p. 118, 133, 140, &c.
, the same assent seems as necessary, and that too in a superior degree, as to their
election
or
confirmation;
divers instances of this appear in the historians of those times: I shall select some to prove it
then
the custom of England, Scotland, Wales, Ireland, France, &c.
Anno 1113, Ralph, bishop of Rochester
Sax. Chr. p. 306.
, was elected archbishop of Canterbury by the king,
annuente plebe & clero
Eadmer.
; this was done
in communi consilio apud Windsore
Hoveden.
, And I find, about the same time, that another Ralph, who had been ordained a bishop in Scotland, was rejected by all, because not elected with the consent of the people, &c. and, notwithstanding his consecration, was forced to wander about, and officiate as a coadjutor to other bishops.
About the year 1120
Malmsb.
, one David was consecrated bishop of Bangor, by the then archbishop of Canterbury; but it is expressly said, that he had been thereto elected,
a principe clero & populo Walliae,
i. e. by a Welch parliament. And in the same reign one Gregory, an Irish abbot, was elected to the bishopric of Dublin,
a rege Hiberniae & clero & populo,
an Irish parliament. So that the commons, at this time, were a constituent part of the Scottish, Welch, and Irish, parliaments, as well as with us in England.
And in the year 1128
Vide Sax. Chr. sub An. 1127.
, I find that famed scholar, Gilbertus Universalis, to be elected and consecrated bishop of London,
annuente clero & populo.
This seems at a parliament at London.
But this right of the commons, in electing bishops, does more clearly appear in Henry II.'s time, when all historians agree it to be a general custom both here and in France (and seems founded on divers express canons of the primitive church.) Insomuch, as Mezeray, in his history, asserts, that until that time (i. e. the middle of the 12th century)
the voice of the people in electing bishops, was esteemed the voice of God.
Even the histories, published by papal authority, bear ample testimony of the people's
right,
and the exercise of it in ancient times, though it has been long usurped by that very authority. See
Italia Sacra,
(the History of the
Italian Bishops,
cited in the former tract,) vol. I. p. 1284, in the account of the bishops of
Tarracina;
where it is expressly declared, that, on the death of
Avitus,
bishop of
Tarracina,
St. Valentine was elected bishop by the
CLERGY
and
PEOPLE
of that city
S. Valentinus Clari, et Flaviae nobiliss. Terracinensium filius, defuncto Avito, à
CLERO
et
POPULO
ejusdem civitutis episcopus electus,
&c.
St. Valentine is said to have suffered martyrdom about the year 362.
In the account of the archbishops of Florence, (vol. III. p. 12. of the said work,) Zenobius, about the year 376, is said to have been
elected,
not only
by the clergy,
but by ALL THE PEOPLE; which unanimity was esteemed a
divine call,
not lawfully to be refused.
Non solum a clero, sed etiam ab universo populo solemniter ad
PONTIFICATUS
This expression,
"pontificatus"
for
episcopatus,
is much more modern than the times to which it is here applied, though considered, perhaps, as a synonymous term by the compiler of this history; who, of course, may be supposed to express himself in the
modern
language of his own times. There are many examples of the like gross
misapplication
of this word, and also of
pontifex
for
episcopus,
by ecclesiastical historians; but we are not therefore to conceive that they found these words, so applied, in the
ancient
records from which they compiled their histories. For the word
pontifex
did not signify a
christian bishop,
the etymology of the word being deducible entirely
from a gross
PAGAN
ceremony,
(as I have already shewn in p. 64.)
peculiar to
ROME
itself,
and applicable to none but
the pagan augurs of
ROME, until the
Roman emperors
of the
Western branch
usurped the title of PONTIFEX MAXIMUS, for political purposes; and, whilst they continued in power to maintain it, (which they did at least to the death of Valentinian III. A.C. 455, if not to the time of
Augustulus,
when the Western branch of the Roman empire was entirely abolished by Odoacer, in the year 477,) no bishop could either have the power, or even an
inducement
to assume the title of
pontifex,
until the
imperial head,
to which it was inseparably annexed, became,
"as it were, wounded to death,"
nor until the time was come, that this
"deadly wound"
was to be
"healed;"
and wo be to that
bishop
who first disgraced his function by that
fatal mark!
apicem est
ELECTUS.
Nec vero licuit ei reniti, vel obsistere
ISTIUS MODI ELECTIONI,
quorum, ut praefatus sum, ita
CONSENSU
et
ANNISU OMNIUM
suorum
CONCIVIUM
fuerat postulatus ad ejusdem ecclesiae gubernacula, ut palam daretur intelligi,
DIVINITUS
eum ad ejusmodi fuisse officium invitatum.
And, about the year of Christ 443, Silvianus, an African, was
elected
bishop of Tarracina,
a clero et populo,
(tom. I. p. 1290.) But the language, respecting the appointment of the bishops of Tarracina, was totally different in the very next century; nay, even under their
Saint Gregory,
or
Pope Gregory
THE GREAT, the papal usurpation, on the rights both of
clergy
and
people,
was become shamefully notorious! for we read of
bishops
taking the charge of the church of Tarracina,
ex imperio
MAGNI GREGORII,
by the command of GREAT GREGORY!
GREAT
Gregory
indeed he might well be called; for the popes having, then lately,
See p. 65.
revived the
imperial
title of
PONTIFEX MAXIMUS,
were become suitably
great
and
imperious
in their language; so that, notwithstanding the
counter-title
of
servus servorum Dei
which Gregory had hypocritically assumed, as a cloak of humility, to cover the pride of the former title, yet, in his
imperious
language, he sufficiently manifested the character of the
"little horn,"
foretold by Daniel, (ch. vii. 8.) in
which
were eyes, like the eyes of a man,
(i. e. the horn was to be a
bishop,
or rather a succession of
bishops,
who are properly
see-ers,
or
overseers,
viz.
, very aptly represented by
"the eyes of a man,"
) and
a mouth speaking great things.
And, accordingly, we read of
Agnellus, bishop of Funda,
(or Fanda,)
who
managed the church of Tarracina 'ex imperio,' by the command of
GREAT GREGORY.
Aguellus Fundanus, episcopus, Tarracinensem ecclesiam administravit,
EX IMPERIO MAGNI GREGORII,
&c. (tom. I. p. 1291.)
And also, that
Constantius, bishop of Palermo, had charge of the flock of Tarracina, 'ex imperio,' by the
COMMAND
of the same St. Gregory, the pontifex.
Constantius Panormitanus, episcopus, curam gessit de grege Tarracinen.
EX IMPERIO
ejusdem S. Gregorii pontif. uti palam fit ex lib.
7.
epist.
14.
(tom. I. p. 1291.)
Thus the popes began to elude the
election
of bishops, by appointing other bishops to take care of the vacant sees: but they afterwards boldly took the
election,
even nominally, upon themselves; which, before, they had usurped indeed in effect, but did not so openly profess; and accordingly, in the very same page, we read of one
Ambrosius,
a MONK, being ELECTED bishop of
Tarracina,
by pope Alexander II. in the year 1071;
ab Alexandro
II. ELECTUS
fuit episcopus, an.
1071;
and also of one
Gregory,
another MONK, being
elected
Gregorius
MONACHUS
Casinensis, a Paschali
II.
pontifice
ELECTUS,
&c.
bishop of
Tarracina,
by pope Paschal II.
The popes obtained this absolute dominion over
episcopal elections
by various arts and wiles and by gradual encroachments, craftily made, according to the circumstances of the people they intended to deceive from time to time; and they always advanced in their demands after the admission of every unjust claim; which demonstrates the danger of swerving, in any respect, from primitive usages. The
monkish clergy
in every part of the world, in proportion as the false notions of the sanctity of
celibacy
advanced and prevailed, were regularly the instruments employed in thus
sapping
the rights of
the clergy and people.
But the fathers at the council of Laodicea (which was as early as the year of Christ 365, or 367; according to bishop Beveridge. See Dr. Cave's Hist. Eccles. p. 231.) did not proceed so
gradually
in sapping the
rights
of the
people,
but boldly excluded them, at once, from all interference at
episcopal
elections, (see canon XII.) and also from
the appointment of priests,
(see canon XIII.) which, however, as the learned patriarch of Antioch, Balsamon, has remarked, affords proof that
not only
BISHOPS
were elected, in ancient times, by
THE MULTITUDES,
(or people,) "
but even the
PRIESTS
also
(says Balsamon)
, &c. That the
people
were allowed a share in the election, even of their
priests,
as well as of their
bishops,
appears also by a quotation which I find in the M. S.
notitia ecclesiastica,
of the learned Dr. Mangey before cited, viz.
Dist. LXXVI. Can.
Quicunque exinde jam accessu temporum
PRESBYTERIO
vel
EPISCOPATUI,
si eum
CLERI
et
PLEBIS
evocaverit
ELECTIO,
societur. Vide Anton. Aug. Epic. Juris Pont. lib.
3.
tit.
—4.
(the figure preceding the 4 is blotted, and not legible,) "
et lib.
4.
tit.
18." And that it was an established practice in Spain, for
the clergy
and
people,
of each city or district, to elect
priests,
appears by the 19th canon of the fourth council of Toledo.
Sed nec ille deinceps
SACERDOS
erit, quem nec
CLERUS,
nec
POPULUS,
propriae civitatis
ELEGERIT,
vel auctoritas metropolitani vel comprovincialium sacerdotum assensio exquesivit,
&c. Consilium Toletarum IV. anno C. 633. Sacrosancta Concilia, tom. 5. Par. edit. 1671.
."
The
monkish
prelates in the second council of
Arles,
at a much later period, (A.D. 452,) durst not proceed so rapidly against the
peoples right of election,
though shamefully bold, at that time, in promoting
"the doctrines of doemons,"
by prohibiting marriage, or (in the words of scripture)
"forbidding to marry."
See the second, third, fourth, and 43d, 44th, 45th, and 52d, canons of that council. But with respect to
episcopal elections,
they seem to have affected an imitation (though a very delusive one) of the ancient mode of electing two or three persons, (as described in a note of a former tract, p. 88— 90.) and they thought themselves obliged still to acknowledge that the people were intitled to some share in the election; which, however, they reduced to as small a proportion as they could venture to do at that time, and craftily stated it in a most precarious light, to leave room for farther
innovation;
viz. that
THREE PERSONS
should be nominated by the bishops,
(i. e. instead of the
people,
as before,)
out of which three persons, the
CLERGY, OR CITIZENS,
should have power to elect
ONE.
"Placuit,"
(thus like
popes
and
kings
they manifested their
"will and pleasure"
against
right,)
in ordinatione episcopi hunc ordinem custodire, ut primo loco venalitate vel ambitione submota
TRES
ab episcopis nominentur, de quibus
CLERICI VEL CIVES
erga unum eligendi habeant potestatem.
Concilium Arelatense II. can. 54. Howel's Synop. Can. p. 202. These are farther proofs of the
"deceivableness
of
unrighteousness,"
(mentioned in p.72—75.) by which the
monastic
clergy rendered themselves too generally the notorious instruments of
"the man of sin!"
The word VEL is artfully inserted, instead of the copulative ET, between the words CLERICI and CIVES, that the
acknowledged right
of the CITIZENS, might be occasionally suppressed, whenever the temper of the times would permit. The same crafty insertion of
vel
for
et
Metropolitanus episcopus a comprovincialibus episcopis, clericis
VEL
populis electus,
&c. Howel's Synop. can. p. 241.
may be seen in the seventh canon of the second council of Orleans, (concilium Aurelianense ii. A.D. 533.) where it is manifestly intended as a preparatory step to the suppression of the
people
's share in
the election.
The like
monkish
craft appears also in the third canon of the third council of
Orleans
De comprovincialibus vero ordinandis, cum consensu metropoliti cleri
VEL
civium,
&c. (Ibid. p. 245.)
, A.D. 538. But, though this deceitful mode of innovation could pass at
Arles
and
Orleans,
yet it was too gross to be admitted in the capital of France at a still
later period;
for, even so late as the third council of Paris, A. D. 557. we find the right of the
clergy and people
to elect bishops (expressly,
juxta antiquam consuetudinem,
&c.) publicly asserted and established; and even the
royal interference,
or MANDATE, most carefully, and in
express terms,
PROHIBITED
See Sacrosancta Consilia,
tom.
5.
p.
814.
Paris edit.
1671.
Concilium Parisiense III. circa annum Christi DLVII. Pelagii Papae III. Childeberti Regis XLVI. C.VIII.
—
Et quia in aliquibus rebus
consuetudo prisca
negligitur, ac decreta canonum violantur, placuit ut
juxta antiquam consuetudinem
canonum decreta serventur. Nullus,
civibus invitis,
ordinetur episcopus, nisi quem
populi
et
clericorum electio
plenissima quaesierit voluntate. NON PRINCIPIS IMPERIO, neque per quamlibet conditionem contra metropolis voluntatem, vel Episcoporum comprovincialium, ingeratur. Quod si PER ORDINATIONEM REGIAM henoris istius culmen pervadere aliquis nimia temeritate praesumpserit, a comprovincialibus loci ipsius Episcopus recipi nullatenus mereatur, quem indebitè ordinatum agnoscunt. Si quis de Comprovincialibus recipere contra interdicta praesumpserit, sit a fratribus omnibus segregatus, et ab ipsorum omnium caritate semotus,
&c.
And because, in some things, the
ancient usage
is neglected, and the decrees of the canons are violated, it pleased,
(the assembly to ordain,)
that the decrees of the canons should be observed, according to
ancient usage,
no person, contrary to the will of
(any)
citizens, shall be ordained bishop, except him whom
the election of the people and clergy
shall have required by the most ample desire,
(by the most manifest majority in sentiment.)
Let not any bishop be brought in by the command of the prince,
(or king,)
"nor through any condition" "(or
terms
)
whatsoever, against the will of the metropolitan or of the con-provincial bishops. But if,
by royal appointment,
any bishop, with too much rashness, shall presume to pass through
(or attain)
the summit of this honour, he by no means deserves to be received by the con-provincial bishops of that province, whom they know to be
unduly
appointed. If any one of the conprovincial bishops shall presume to receive him, contrary to
(these)
prohibitions, let him be severed from all the brethren, and removed from the esteem of all of them,
&c. Which is clearly the penalty of
excommunication
decreed against any bishop that shall presume to acknowledge the authority of any
royal appointment
to the dignity of a bishop: and they had it in their power to render such appointments null and void, by refusing
the essential
introduction to the office; the giving an
episcopal commission,
by laying on of hands and previous prayer.
. But the grand enemy to
law
and
right,
, the PAPAL POWER, found means, at length to
dispense
with this just Parisian
law;
for pope
Zacharias,
the same that absolved
Pepin
from his oath of allegiance to king Childeric III. thought proper also, in the
plenitude of his dispensing power,
to
INDULGE
king Pepin, that he might
NOMINATE
bishops to be ordained throughout the kingdom of France, as any sees should become vacant.
See Italia Sacra, tom I. p. 19.
"Hic pontifex,"
(speaking of
Sanctus Zacharias,
a Benedictine
monk,
made pope, A.D. 741.)
Pipino regi Francorum
INDULSIT,
ut per Galliae regnum in episcopos ordinandos, ubi sedes vacasset aliqua,
NOMINARET.
The danger of
regal influence, in episcopal elections,
had been early foreseen and carefully guarded against, not only by
the council of Paris,
(last cited,) but also by the
primitive church
The peculiar care and caution of the
primitive church,
to preserve
episcopal elections
from
undue influence,
is worthy to be remarked, because it demonstrates the existence and pre-eminence of the
episcopal order
in the church, (clearly distinct and superior in office and degree to the
order of presbytery,)
from the apostolic times: and, though
all bishops
must certainly be
presbyters,
yet the constantre-ordination of every
presbyter
after being
elected
or nominated to the office of a bishop (by the same essential rites of solemn prayer for the guidance and assistance of the Holy Spirit, with the imposition of hands) demonstrates, that presbyters, though really
pastors,
and, in some respect,
overseers
of distinct
flocks
or congregations of christians, yet were not properly
bishops
(
) in the
primitive
ecclesiastical sense, until admitted to that dignity by the renewal of their sacred orders with the express
designation
to the
episcopal
function: for the
essential rights
of
ordination,
(prayer for the Holy Spirit and laying on of hands,) are the same, for all the three degrees of the christian ministry, differing only in the
designation
to their respective duties of deacons, presbyters, and bishops.
, and thereby the wickedness of this
lawless
pope, and his INDULGENCE to K. Pepin, is rendered the more conspicuous! The learned bishop Beveridge gives a decided opinion that the 30th canon of the ancient codex, which he calls
codex canonum primitivae ecclesiae,
was necessarily ordained,
lest any person, by money or
MEANS OF SECULAR POWERS,
should be promoted, but
ONLY
by the free election of
THE CLERGY
and
PEOPLE.
Ne quis pecuniâ, aut
SECULARIUM POTESTATUM
ope,
sed LIBERA-TANTUM CLERI POPULIQUE ELECTIONE
promoveatur.
See his "Codex Canonum Ecclesiae primitivae vindicatus," &c. p. 209.
But no comment can be more clear and decided, than the canon itself in guarding against the
interference of princes,
viz.
if any
BISHOP,
having availed himself
(of the power or influence)
of
WORLDLY PRINCES,
shall through them have obtained authority over a church, let him he deposed and separated,
(or excommunicated,)
and also all those that communicate
(or have fellowship)
with him.
See bishop Beveridge's
"Codex Canonum Primitivae Ecclesiae,"
can. 30. p. 442.
The council of Paris, before cited, seems to have copied the spirit of this law. Thus the most jealous republicans may be convinced that
episcopacy
has
no necessary
connection with
monarchy;
but, on the contrary, is an institution which
ought to be entirely independent
of it;
independent,
I mean, with respect only to NOMINATION or
election
to the dignity: so that
royal mandates
and
letters missive,
with the
"congé d'elire,"
are by no means founded in
right,
but are only
modern encroachments,
promoted by
popes
and
monks
when they
were unable to monopolize
the power of
election
to
themselves;
for they would rather throw the
nomination
into the power and
will
of
arbitrary princes
than see it
lawfully
exercised by the
clergy
and
people;
provided their
partial
favour towards
royalty
were admitted as an "INDULGENCE" from their own
plenitude of power!
But, though king Pepin was base enough to avail himself of the presumptuous and wicked encroachment of pope Zachary on the people's rights, yet his son and grandson were more honourable than their ancestor, and, instead of basely accepting this most unjust
papal indulgence,
on the contrary asserted the
popular right
to elect bishops in the plainest and most unequivocal terms, and nobly and
disinterestedly
rescued it from the usurpations of the
monkish
clergy, which had almost universally prevailed for some time before. For the emperor CHARLES THE GREAT most nobly ordained,
That bishops should be chosen according to the statutes of the canons, by the
ELECTION OF THE CLERGY AND PEOPLE
of the proper diocese.
See Capitularia Caroli Magni, lib. i. 83.
Ut episcopi
PER ELECTIONEM CLERI
et
POPULI
secundum statuta canonum de propria diocesi elegantur.
And the emperor Lewis
the Good,
or
Ludovicus Pius,
also asserted the same just
rights
of the
clergy
and
people:
Let a bishop be elected by the
CLERGY
and
PEOPLE
of the proper diocess, without respect of persons, or bribes,
(but)
on account of worthiness of life, and gift of wisdom.
See
Capitularia Ludovici Pii,
which are annexed to the canons of the third council of Aix, (
Concilium Aquisgranense III. A. D. 816. sub Ludovico Pio celebratum,
cap. 2.)
Episcopus per
CLERUM
et
POPULUM
eligatur, de propria dioecesi absque personarum et munerum acceptione, ob vitae meritum et sapientiae donum.
(Howel's Synop. Can. p. 407.)
These excellent laws would probably have continued in force much longer than they did, if they had been observed with the primitive precautions stated in a former note, viz. to elect
two,
and afterwards to decide by
lot;
because this ancient mode of
exercising the joint elective rights of
CLERGY
and
PEOPLE is so safe and perfectly unexceptionable, that it must have obviated the plausible objection that was usually alleged, by popes and monks, against POPULAR elections; i.e. the danger of exciting
party animosities
and
tumults.
The monks, however, were not able entirely to set aside these excellent constitutions of Charles and Lewis, for several years afterwards; and the influence of them seems to have extended even to
Rome
itself: for the bishops at a
lateran council,
not less than 45 years afterwards, (viz. A. D. 861.) asserted the
rights of the clergy and people;
and even the pope himself, (Nicolas I.) concurred! the more willingly perhaps, because the general purpose of the canons, then made, was to curb the extravagance of a
rival
metropolitan, John VIII. archbishop of
Ravenna,
whose province was intituled
Aemilia.
The very first canon was to restrain the archbishop
from consecrating bishops throughout
(the province of)
Aemilia, except after
THE ELECTION OF THE CLERGY AND PEOPLE; a testimony highly to the point in question, and the more especially, if we consider that it proceeded from a quarter, the seat of usurpation, that had long been inimical to all
popular
rights! See
caput primum,
—
Episcopos per
AEMILIAM
non consacres, nisi post electionem
CLERI
et
POPULI,
(Italia Sacra, tom. 2. p. 347.) This canon would have done more honour, however, to the
lateran council,
and pope Nicolas, had it extended to episcopal elections in
general,
instead of being
confined
to the province of
Aemilia.
The archbishop of Aemilia had probably encroached on the elective rights of the
clergy and people
of his province; but this alone could not have been considered, at
Rome,
as a
crime,
(it having been the regular practice of the popes themselves,) had he not, at the same time, professed
independence of the Roman see:
and the Pontif, though probably, like his prececessors, a natural enemy to the
elective rights
of the
clergy and people,
was content, it seems, to acknowledge them, whilst the reformation tended to reduce the pretensions of his
rival:
and indeed he gained a complete conquest over him, by means of this lateran council, wherein he reduced him to the pitiful dilemma of accepting a continuance of his preferment on the most humiliating terms of submission to the
Roman See,
(which was by no means due from a
metropolitan
bishop,) and compelled him basely and dishonestly to yield up the just rights and
independence
of his province to the encroaching jurisdiction of the papal power.
A very few years afterwards, (about the year 877,) pope John VIII. (or rather John IX. as he is stiled by
Platina
Many
ancient
writers of good repute represent pope
John
VIII. to have been a
woman;
and some of them add, that he was even an
English woman!
It is
therefore
to avoid the throwing any farther unnecessary blame on our reputed
countrywoman,
that I say,
rather
John IX.
than John VIII. because the times I speak of were about the quarter part of a century later than the period usually assigned for the
infallible
dominion of our extraordinary
English
pope. Of late, indeed, it has been a sort of
fashion
amongst
protestant
writers, as well as
papists,
to deem the story of
pope Joan
a mere
fable:
thus much, however, is certain, that, if it be a
fable,
it was not invented by the
protestants.
Accounts of it were written by undoubted catholics, some
centuries
before the reformation, and these accounts were
even printed
several years before either Luther or Calvin were preachers.
Martin
(the author quoted for it by
Platina
) was a dominican frier,
apostolic
-chaplain under pope Nicolas III. A.D. 1277; and was afterwards a
popish archbishop
in Poland; so that, from his situation and rank in life, it was neither probable that he should want the best information on that subject, which the times he lived in could afford, nor that he should adopt such a story, had it not been
current
and
generally admitted
at that time.
Platina,
who quotes him, was employed by pope
Sixtus
IV. to write the
History of the Popes;
and would not surely have quoted this story from
Martin
if he had thought that it might
with propriety
have been absolutely rejected; but, on the contrary, he is so far from making
Martin
alone answerable for the story, that he declares it to be the
common report;
"
Haec quae dixi
VULGO FERUNTUR,"
commonly reported,
it seems, by
several authors;
whom he is pleased, however, to deem
uncertain
and
obscure, ("incertis tamen et obscuris auctoribus,")
though he had no right to include
Martin
in this vague censure. In the very next sentence, however, he entirely exculpates him (as well as his
obscure authors
) from the invention of the story, by adding, that it was
"what almost all affirm," "quod fere omnes affirmant,"
see p. 57. a. This was
printed
at Venice in 15
4.
Werneris Rollwinck;
who; in his
"Fasciculus Temporum,"
relates the story without expressing the least doubt about the truth of it, was a
Carthusian frier;
so that he was as little likely, as the two former writers, to publish this account through any pique or prejudice against the
papacy. Rollwink
has also added, that this
John
was the sixth pope who had the name of sanctity, without the thing itself; and, like others, was also smitten of God, and not placed in the catalogue of pontiffs.
Et hic
sextus
videtur fuisse PAPA, qui nomen sanctitatis sine re habuit usque huc, et similiter sicut alii a Deo plagatus fuit, nec ponitur in catalogo Pontificum.
See p. 66. b. This was
printed
in the year 1488. In the chronicle of
Sigebert,
the story is related as a
current report,
i. e.
fama,
—
"Fama est hunc Joannem foeminam fuisse,"
&c. This author was a
Benedictine monk,
about the year 1100, and his work was printed by
H. Stephens,
the
French king's printer,
at Paris, in 1513; so that there is no reason to suspect either the author or the printer of
partiality
against
popery.
Of all these different authors, except the
first, (Martin,)
I have the printed copies before me of the several dates abovementioned. Many other authors I find quoted for the story, who were also professed
Roman Catholics;
as
Marianus Scotus,
a
monk
at Mentz, who wrote a
chronicle
about the year 1069, the chronicle also of
Petrarque,
printed at
Florence
in 1478. That of
Antoninus,
who was
archbishop of Florence,
and died A. D. 1459, that of the
abbe Trithemius,
and also the commentaries of
Raphael Volatteranus,
dedicated to pope
Julius
II. &c. &c. &c. and all
before
the
protestant
times. So that the
fable,
if it is one, must not be attributed to
protestants;
but we cannot say so much for the
opposition
that has been made to it; for the
protestants
may certainly be said to have
innocently
occasioned it, though they cannot justly be answerable for the futility of the far-fetched arguments and pretences that have been raked together by learned
Jesuits
for that purpose. The advancement of the
reformation
rendered it necessary, indeed, for the honour of the
eternal city,
to patch up and plaster over the
incurable
sores and blains of the papal pretenders to
infallibility;
but, after all the pains that have been taken, the reasons, or rather excuses, alleged for the first introduction of the
perforated chair,
(the famous
"sedes stercoraria,"
see Platina, p. 57.) are so frivolous and unsatisfactory, that they seem much more improbable and
fabulous
than the plain
fable
itself, (as they presume to call it,) which
most naturally
accounts for the absurdity!
) openly availed himself of this newly acquired extension of power, by
ostentatiously
submitting the
archbishops of Ravenna,
(together with the archbishops also of
Milan,
) against all probability of
right
or
seemliness,
to the jurisdiction of the
bishops
of
Pavia,
or more properly
Papia;
a very
ominous
appellation, derived, as even my popish author admits, (see
Italia Sacra,
tom. I. p. 1075.) from the
Latin
interjection PAPE!
O wonderful,
or
O strange!
The Pontif, however, thought himself obliged to admit, at the same time, the
elective rights
of the
clergy and people of
PAVIA, probably the better to secure, from examination and opposition, the usurped authority of the
"privilegium,"
(as he called it,) whereby he exalted the
bishops of Papia,
above their brethren, the independent metropolitans of
Ravenna
and
Milan.
This
"privilegium"
would not have been mentioned by me, had it not contained an express testimony
"—Decernimus, ut, si humana
contradictione
" (probably for
conditione
)
tuae sedis episcopus ex hoc mundo migraverit,
de proprio clero quem idoneum prae caeteris
CLERUS
et
POPULUS
repererit, potestatem habeant
secundum statuta venerabilium patrum, et Romanae sedis antistitum, nulla seculari contradicente potentiâ,
eligendi episcopum.
Italia Sacra, tom. I. p. 1086.
to the
popular right
of election. And the author of
Italia Sacra,
speaking farther of this Pope
John,
and Bishop
John,
relates, that the latter obtained these and also
other privileges,
in a council held at
Papia
by Pope
John;
but these, it seems, were the chief, as being the only
privileges
he has particularized;
"In quo"
(concilio)
ab eodem
PONTIFICE ALIA
obtinuit
PRIVILIGIA,
ac praecipue, ut
POPULO, CLEROQUE
Papiensi
SUUM EPISCOPUM ELIGENDI JUS ESSET,
eidemque concessit, ut quoties Mediolanensem,
ac
Ravennatensem archiepiscopos cum suis suffraganeis ad synodum vocaret, accederent,
&c. Italia Sacra, tom. I. p. 1087.
About seven or eight years before this time, viz. A. D. 869 or 870, the 36th council of Constantinople (intituled, by the popish or Latin party, the eighth general council) wickedly declared against the
unalienable popular right
of electing Bishops, and formed a canon expressly against it. Pope John therefore, on the last-mentioned occasion, might have (besides his partiality to the bishop of
Papia
) a still farther inducement for re-establishing the
clergy
and
people
of
Papia
in their just
right of
election, viz. to demonstrate the
plenitude of his power in dispensing with laws;
because, whatever tends to aggrandize the papal jurisdiction may sometimes afford an ample reason even for a
Pontif
to do
right!
The same reason, probably, may be assigned for the continuance of
popular
elections, even at Rome itself, long after the said decree of the general council against them; for pope Adrian III. in the year 895, was
"so bold,"
(
"tanti animi fuit,"
says Platina,) in behalf of this just
right,
that he announced it to the senate and people, viz. that,
in creating a pope, the authority of the emperor should not be waited for; and that the suffrages of
THE CLERGY
and
PEOPLE
should be free.
Adrianus III. patria Romanus: patre Benedicto:
tanti animi fuit:
ut init o pontificatus sui statim ad senatum populumque retulerit: anno Domini DCCCXCV ne in creando pontifice imperatoris auctoritas expectaretur: utque
libera
essent et
cleri
et
p
puli
suffraga: quod quidem inst tu um a Nicolao primo tenta um potiusquam inchoatum diximus.
But ma
k the leading cause of Adrian's
boldness;
I
lectum credo hac opportunitate Adrianum: quòd Karolus Imperator ab Italia cum exer
itu discedeus: in Normannos rebellantes moyerat.
And he adds, that
this institution was rather attempted than begun by pope Nicolas
I.
But this, however, was not the case; for even he himself relates in his accounts of pope Nicolas, on the preceding page, not only that the
clergy
and
people
did really elect without waiting for the
imperial will,
but also, that letters were afterwards
received from the emperor Lewis
(II.)
in which he highly commended the Romans, that they had knowingly and wholly created their own chief pontif, without waiting for the wish of others, who, perhaps, in that business, through the want of personal knowledge, might have had less judgement.
Supervenere a Ludovico imperatore literae: quibus Romanos adniodum laudat: quod summum pontisicem scientè et integrè creassent: non expectato aliorum voto: qui fortè ea in re ob ignorationem personarum minus judicii habuissen.
It is manifest, therefore, that Platina was inclined to attribute the merit of promoting free
popular elections,
at Rome, rather to the
Pope
than to the
Emperor,
to whom it was more strictly due, even according to his own evidence: for
Popes
and
Monks
could not endure a concurrent right of the
people
in episcopal elections, except when it might seem to
aggrandize
the holy see as a
peculiar privilege;
or unless it were admitted in any particular place by
papal
favour and
indulgence,
as at
Papia,
for the like purpose of
aggrandizement!
But in all other cases they were the regular professed enemies to
popular right;
so that to
their
influence, and not to the influence of imperial or royal power, is the wicked
decree against free elections
to be attributed. And this was carried, it seems, on the stale pretence of probable
tumults,
and
the confusion that a multitude of electors might occasion,
just as the present
tumults
in Westminster afford, to the enemies of the English constitution, an exulting argument against the ancient
right
of
frequent elections;
who, instead of being willing to correct the
abuse
of an institution, would rather destroy the profitable
use
of it: but such perverse reasoners are either
deplorably ignorant,
or else
shamefully wicked:
for the same argument holds equally good for
robbing
the people of their
pecuniary
property; because many of them make a very improper use of what little money they have to spare; and indeed the robbery would be much
less dishonest
and
sinful
in the latter case than in the former; for, though both are
rights
of the people, and cannot therefore be infringed without
iniquity
and
injustice,
which are hateful in the sight of God, yet the
right
of
election
(whether it be to
civil
or
ecclesiastical
offices) is
inestimable,
and above price; so that no plea of
expedience,
or even of
"necessity,"
can justify the
gross dishonesty
of infringing it. They might as well persuade us to cut off our legs, lest we should strain our ancles in walking! or absolutely to prohibit
all
men from riding on horseback, because
some
men have had dangerous falls, and others have accidentally lost their lives by it! yet such arguments are not more
grossly absurd
than this pretence of
tumults
as a reason for robbing the people of their
election rights;
and yet
this absurdity
prevailed in the 36th council of Constantinople, though the popular
right
was expressly allowed!
On a longtemps conservé aux laics
LE DROIT
d'assister aux élections,
(says
Herycourt
in his
Analyse,
p. 17.)
et d'y donner leur suffrage. La
CONFUSION QUE POUVOIT CAUSER LA MULTITUDE DES ELECTEURS
engagea à n'y admettre plus que la clergé. On en fit un decret exprès dans la
VIII.
concile général.
[For so he stiles (but very improperly) the 36th council held at Constantinople, in 869.]
Ce changement n'a point empêché que l'on ne fut obligé de demander le consentement des
SOVEREIGNS.
And this obligation, to ask the
consent of sovereigns, monkish prelates
were content to endure, (notwithstanding that the interference of all
secular Princes
in episcopal elections is strictly forbid by the canons of the primitive church, see p. 317.) provided they could but prevail on the
Monarchs
to join them in effecting an entire exclusion of the
people's right to elect.
However neither the
monkish,
nor the
monarchical,
influence could entirely overcome the
popular right
in England, until many years afterwards, which I have already proved by several incontestible examples. But it was far otherwise in
France:
for, even in the same century, (ninth,) the
Kings of France
(instead of maintaining equal justice between
the clergy and people,
like their predecessors Charles the Great, and Lewis I. and II.) now claimed to
themselves the
NOMINATION of BISHOPS; of which I find a memorandum in the learned Dr. Mangey's
Notitia Ecclesiastica,
before cited, viz.
"It seems"
(says he)
that in the ninth century the kings of France claimed the
NOMINATION
of Bishops.
And, if this
monarchical
usurpation of the most essential
popular right
in the Christian church was not actually promoted by the Roman
"mystery of iniquity,"
(for I have already given an instance of Pope
Saint Zachariah
's plenary
indulgence
to such
dishonesty,
see p. 315.) it had, at leastafterwards, the
express consent
of the
Roman
court, provided that the
papal
share of the unlawful plunder might be admitted with it: and accordingly we read of
THE CONCORDATE
(as formerly between the murderer
Herod
and
Pontius Pilate,
now also)
between Pope Leo
X.
and K. Francis: The Pope
COLLATES
upon the King's
NOMINATION.
This memorandum I found in Dr. Mangey's
Notitia Ecclesiastica,
for which he cites
Herycourt,
lib. 1. c. 6.
Le
CONCORDAT
fait entre Leon
X.
et François
I.
a transferé à nos Rois tout le
DROIT
des électeurs.
The
concordate
made between Leo X. and K. Francis I. hath transferred to our Kings all the right of the electors.
This indiscriminate writer could not perceive (or, if he did, he must be charged with a much worse fault than
indiscrimination
) that the DROIT
of the electors
could not be
transferred
by those who had
no right
in it; and, consequently, that the kings of France do not exercise a DROIT, but a TORT, as long as their unjust usurpation of the DROIT continues; and I wish I could speak more favourably of the
usurpation of our elective rights
in England!
The rights of
episcopal
elections, as well as the nature of the
episcopal office
itself, have, indeed, been subjects of much controversy in the Christian church; and the several dissentients, that have hitherto published their opinions, might long ago have approached much nearer to an agreement in the happy medium of truth, had they been endued with sufficient
impartiality;
but this, alas! has been too much wanting on every side of the controversy. The
episcopalians,
on the one hand, though they have, in general, well maintained and proved the nature and efficacy of the
episcopal
function, and the exercise of it
in every age of the church,
clearly distinct from the office of mere
presbyters,
(demonstrating that, though every
bishop
must be
a presbyter,
yet that every
presbyter
most certainly
was not a bishop,
) nevertheless, on the point of
episcopal elections,
they have either been totally silent like the learned Archbishop Usher
Archbishop Usher, however, in another useful work, not professedly on the subject of Episcopacy, has nevertheless, in occasional notes, produced several instances of
Bishops elected by the
PEOPLE
as well as by the clergy.
See Veterum Epistolarum Hibernicarum Sylloge, viz. the 25th, 33d, 34th, 40th, and 41st, epistles, with the Archbishop's
remarks
upon them, together with his remarks on the 39th epistle; all which
remarks
will be found at the end of the book, under the title of
"Epistolarum Recensio."
The examples relate to the
free elections, by the clergy and people,
of the Bishops of
Dublin
and
Waterford,
between the years of Christ 1074 and 1122, which Bishops, as well as the Bishops of
Limerick,
received, in those times, their episcopal ordination, or consecration, from the Archbishops of Canterbury, and
freely
acknowledged the jurisdiction of that see. The inhabitants of the said Irish cities were colonies of
Normans,
who invaded Ireland and took possession of those parts under the command of
Rollo
and his two brothers, (according to an account cited by Archbishop Usher, ibid. p. 163.) which was probably
before
his conquest and settlement in a part of France, about A. D. 912. Dublin, however, and the greatest part of Ireland was afterwards (viz. about A. D. 964.) conquered by our Anglo-Saxon King, Edgar, (as appears by his charter, of that year,
"De Oswaldes law,"
ib. p. 121.) a circumstance not much noticed by historians, as the Archbishop remarks on the said charter or diploma, p. 163.
"in quo"
(says he)
quod omnes historiae tacent,
MAXIMAM PARTEM HIBERNIAE CUM SUA NOBILISSIMA CIVITATE DUBLINIA, ANGLORUM REGNO SUBJUGATAM A SE FUISSE
confirmat.
But though our
Anglo-Saxon
government soon afterwards lost their dominion in
Ireland,
with respect to temporal matters, yet these
Norman
colonies in
Ireland
long afterwards freely acknowledged and endeavoured, of their own accord, to maintain an ecclesiastical jurisdiction of the archbishops of Canterbury over their
own elected
Bishops; by regularly applying to Archbishop Lanfranck, and some of his successors, archbishops of Canterbury, to consecrate their elected Bishops. And the
elergy
and
people
of
Dublin,
in one of these epistles, (viz. to Radulph, Archbishop of Canterbury, A. D. 1121.) say, "
We have always willingly submitted
OURS" (i. e. our Bishops)
to the
GOVERNMENT OF YOUR PREDECESSORS,
from which we remember that
OURS
received ecclesiastical dignity.
Antecessorum enim vestrorum magisterio semper
NOSTROS LIBENTER SUBDIMUS,
a quo recordamur nostros accepisse dignitatem ecclesiasticam.
p. 100.
But, whether the submission of these Irish sees to the province of Canterbury commenced only after the establishment of the
Normans in England,
is not certain: though it is most probable that the custom might have been founded on a more ancient connection of those cities with the province of Canterbury under the Anglo-Saxon conquerors; especially as the burgesses and clergy of Dublin, in their letter, dated A. D. 1121, last cited, assert that
their voluntary submission
to that see had
"been preserved a long time,"
multo tempore;
for they warn
Sciatis vos reverâ, quod Episcopi
Hiberniae
maximum zelum erga nos habent, et maximè ille Episcopus qui habitat
Ardimachae;
quia nos nolumus obedire eorum ordinationi, sed semper sub vestro dominio esse volumus. Iccircò vestra suffragia supplices petimus, quatenus
Gregorium
ad sacrum ordinem Episcopatus promoveatis; si ampliùs illam parochiam, quam MULTO TEMPORE vobis servavimus, retinere volueritis. Vale.
the Archbishop of Canterbury, that
the Bishops of Ireland have great zeal (say they, or wrath) against us, and chiefly the Bishop that dwells at Armagh, because we are unwilling to obey their ordination, but we are always desirous to be under your government, and therefore we request your suffrages, so far that you may advance
GREGORY
(whom they call, in the former part of the epistle
NOSTRUM ELECTUM
)
to the sacred order of episcopacy, if you shall be willing, any longer, to retain that see, which, for
ALONG TIME,
("multo tempore,")
we have preserved to you
Epist. 40. p. 100. The 25th epistle, An. 1074, is from
the
clergy and people of the church of Dublin
to Lanfranck, Metropolitan of Canterbury; in the address of which, they tender their
"debitam subjectionem".
See p. 68.
Venerando sanctae Cantuariensis ecclesiae metropolitano Lanfranco, clerus et populus ecclesiae Dublinensis debitam subjectionem.
Vestrae Paternitati est cognitum; quòd ecclesia
Dublinensis
(quae
Hiberniae
insulae metropolis est) suo sit viduata pastore, ac destituta rectore. Propt
rea eligimus Presbyterum, nomine
Patricium,
nobis sufficientissimè cognitum, natalibus et moribus nobilem, Apostolicâ & Ecclesiasticâ cisciplinâ imbutum, fide Catholicum, in scripturarum sensibus cautum, in dogmatibus ecclesiasticis exercitatum. Quem nobis quantocius petimus ordinari episcopum: quatenus, auctore Deo, regulariter nobis praeesse valeat et prodesse; et nos sub ejus regimine salubriter militare possumus. Quia integritas praesidentium salus est subditorum: et ubi est incolumitas obedientiae, ibi sana est forma doctrinae.
They inform him that
the church of Dublin is widowed of its Pastor, and destitute of a Ruler, therefore
WE
(say the clergy and people)
HAVE ELECTED A PRESBYTER,
by name,
PATRICK,
to us very sufficiently known, noble in birth and morals, &c. whom we request, as soon as may be, to be ordained our bishop,
&c.
The 33d epistle, A.C. 1095, p. 89. is from Anselm, Archbishop of Canterbury, to the Bishops of Ireland, informing them, that, on the death of his predecessor, Archbishop Lanfranc, the King, the Bishops, and the great men, of the kingdom had dragged him violently to the episcopal chair,
the clergy and people
calling out for the same purpose
—
Defuncto beatae memoriae praedecessore meo
Lanfranco
Archiepiscopo, cum in Normanniâ
Beccensis
monasterii abbas extitissem, (unde et praefatus antecessor meus ad regendam ecclesiam, cui Deo auctore praesi
eo, ante me processerat,) occulto Dei judicio, pro utilitatibus ecclesiasticis in Angliam veni. Quò venientem tam Rex quàm pontifices regnique optimates, adcathedram pontisicalem, non vocando, non rogando, (ut fieri assolet,) immo violenter rapiendo pertrahunt: clero et populo acclamantibus in id ipsum; ut nec unus cui quod gerebatur displiceret, visus fuerit interesse.
(p. 90.)
. This seems to have been
an election by the parliament,
like many other examples about that time, viz. by
the King, the Bishops, the Lords of the kingdom, the clergy, and people;
and, therefore, though it affords evidence of the
popular right
to elect, yet it is not a proper example for imitation in episcopal elections, which should be made only by
the clergy and people of each particular diocese,
according to the ancient canons and practice of the primitive church.
The 34th epistle, A. C. 1099, p. 92, is from
the clergy and people of the town of Waterford, with King Murchertag and Bishop Donald,
to Archbishop Anselm, wherein they say
—
Nos et Rex noster
Murchertachus,
et Episcopus
Domnaldus,
et
Dermeth
Dux noster, frater Regis, ELEGIMUS HUNC PRESBYTERUM
Malchum, Walchelini
Wintoniensis episcopi monachum, nobis sufficientissimè cognitum, &c. &c. Hunc nobis petimus a vestr
paternitate ordinari pontificem: quatenus regulariter nobis praeesse valeat et prodesse, et nos sub ejus regimine salubriter Domino militare possimus,
&c.
,
We and our King Murchertach, and Bishop Donald, and Dermeth, our Duke, brother of the King, have
ELECTED THIS PRESBYTER, MALCHUS,
the monk of Walchelin, Bishop of Winchester,
to us very sufficiently known, &c.
him we request to be ordained our Bishop
by your paternity, &c.
The 41st epistle (in p. 101.) is from Henry I. K. of England, to Radulph, Archbishop of Canterbury, as follows
Henricus, Rex Angliae, Radulpho Cantuariensi Archiepiscopo salutem.
Mandavit mini Rex
Hiberniae
per breve suum, et Burgenses
Dublinae,
quod elegerunt hunc
Gregorium
in episcopum, et eum tibi mittunt consecrandum. Unde tibi mando, ut, petitioni eorum satisfaciens, ejus consecrationem sine dilatione expleas. Teste Ranulpho Cancellario apud Windelsor,
p. 101.
,
the King of
IRELAND
hath informed me by his brief, and the Burgesses of
DUBLIN,
that
THEY HAVE ELECTED
this
GREGORY,
[who was probably the bearer of the King's letter, as well as of the former (No . 40.) from the
burgesses and clergy
of Dublin,]
and send him to thee to be consecrated, wherefore I command thee, that, satisfying their petition, thou mayest complete his consecration without delay.
At Windsor, witness, Ranulph, Chancellor.
Thus it appears that the conquest of
Ireland
by King Edgar did not affect the just liberties of the
church of Ireland;
for the
Norman
colonies therein still enjoyed the uninfluenced
election
of their own Bishops: and though they acknowledged the jurisdiction of the province of Canterbury in
ecclesiastical matters,
even when they were become
independent,
and separated from us, under a King of their own, yet that submission was perfectly
voluntary
and
free,
and was continued for no other reason than because they had originally received
episcopal ordination
from the Archbishops of that see. Nevertheless they declared themselves at liberty to receive consecration from the Archbishop of Armagh, and other Irish Bishops, (who earnestly desired to confer it on them.) in case the prelates of Canterbury should be negligent in their superintendency. And the Bishops also of the
native Irish
and their flocks were equally free and independent in
ecclesiastical matters,
having preserved a due succession of the sacred order of episcopacy from the early times of their
first
conversion (
before
the time of the
first Patrick
) down to the barbarous times of our K. Henry II. who invaded their island, under the delusive sanction of a
papal commission,
to compel the submission of the
church of Ireland
to the jurisdiction and doctrines of the
church of Rome,
and to pay an annual tribute to the pope of one penny for every house; and all this on the delusive pretence of
instructing
the Irish,
reforming their manners,
&c. Henry obtained his first commission for these purposes from pope Adrian IV. A. D. 1155, which Archbishop Usher has inserted in his said collection of ancient epistles, p. 109. And he informs us, in p. 152. (from
Trivettus,
) that Henry treated with his parliament at Winchester concerning the
conquest of Ireland,
but, because it did not please his mother the empress, that expedition was postponed to another time. The empress, probably, was shocked with the
injustice
of the proposal, notwithstanding the
popish dispensation
for it.
Afterwards, however, in the year 1172, Pope Alexander III. revived the former wicked and presumptuous grant of Adrian, for invading and usurping the
temporal rights
as well as spiritual jurisdiction of the
clergy and people of Ireland,
(whereby "
the dominion of the Irish kingdom was
INDULGED
to
" Henry,) and, in the plenitude of his
unlimited
and
unlawful
power, this
man of sin,
, presumptuously ratified and confirmed
"—
Concessionem ejusdem
" (i. e. Adriani Papae)
super Hibernici regni dominio vobitindulto
(falvâ beato
Petro
et sacrosanctae ROMANAE
ecclesiae, sicut in
ANGLIA,
sic et in
HIBERNIA,
de singul
s domibus
annuâ unius denarii pensione) ratam habemus et confirmamus,
&c. p. 111.
the
iniquity!
The
usurping
Popes may therefore most justly be deemed the most cruel enemies and destroyers of the
temporal
as well as
ecclesiastical
RIGHTS
of the people of Ireland;
yet, so great was the darkness occasioned by the future
papal
jurisdiction therein, that the
mist
is not yet entirely dispelled, so that multitudes of well-meaning
Irish
people cannot yet perceive that the corrupted and usurping
church of Rome
ought to be ranked amongst the most inveterate and dangerous enemies of the
church of Ireland.
, in his excellent little tract,
De episcoporum et metropolitanorum origine,
and Dr.
Cave,
in his learned and laborious
Dissertation concerning the government of the
ANCIENT CHURCH
by Bishops, Metropolitans, and Patriarchs,
) or else have expressed a great degree of prejudice against all ancient testimonies, which tend to justify any claim of
popular
or
congregational right
in the choice of
Bishops;
and zealously opposing thereto a multitude of
precedents,
wherein the
imperial
or
royal
power has been exercised in the
appointment
of
Bishops,
and, like the
indiscriminate
Herecourt before quoted,
not discerning
that the latter are
precedents
only of
usurpation,
not of
right!
Those of the opposite party, the
presbyterians,
(who attribute the dignity and function of
Bishops
to their
Presbyters
The learned author of
An Enquiry into the Constitution, Discipline, Unity, and Worship, of the Primitive Church,
&c. (a work commonly attributed to the late lord-chancellor
King,
) has laboured hard to level the
primitive Bishops
to the degree of mere
Rectors of parishes,
and to elevate the
Presbyters
to the rank of
Bishops,
though there are clear proofs of the superiority of
Bishops
(and of the ordinary residence, in each place, but of
one
Bishop, with
several
Presbyters and Deacons at the same time) included even in some of the citations which he has collected to favour a contrary doctrine. His opinion seems to have been built principally on a peculiar explanation of the word
ordination.
"That
ordination,
" (says he,)
that I shall speak of, is this, the grant of a peculiar commission and power, which remains indelible in the person to whom it is committed, and can never be obliterated or rased out, except the person himself cause it by his heresie, apostacy, or most extremely gross and scandalous impiety.
(Thus far there is no need to oppose his sense of
ordination;
but he adds,) "Now this sort of
ordination
" (says he)
was conferred
only upon Deacons and Presbyters,
or
on Deacons and Bishops, Presbyters and Bishops being here to be considered as all one,
as Ministers of the church universal,
p. 115. This appears to be the key-stone, whereby the whole fabric of the doctrine throughout his work is suspended and held up, and consequently, the whole building must fall by the removal of it! Very happily, for the determination of the dispute, he has produced (within a few pages after the place from whence this quotation was taken) some clear and unquestionable examples of the
ordination
of some persons to the degree of
Presbyters,
who really
were not Bishops,
and never had
episcopal
dignity in the ordinary ecclesiastical sense of the word
episcopal,
so that they could not, consistently with truth,
"be considered as all one"
with
Bishops,
according to this learned writer's hypothesis.
He cites (in p. 133.) the express testimony of Eusebius for the
ordination
of ORIGEN to be a
Presbyter,
that the Bishops of Caesarea and Jerusalem
ordained
(or laid hands upon)
"him into the presbytery,"
i. e. to make
him a Presbyter,
,
Euseb. lib. 6. c. 8. p. 209. Here then is a clear proof of the ordination of a person to be a
Presbyter,
by the hands of
Bishops,
and yet no man, that has any regard to the testimony and truth of ecclesiastical history, will presume to say that
Origen
was a
Bishop,
though he was unquestionably ordained to be a
Presbyter;
and, consequently, it cannot be true, that the ordination of "
Presbyters
and
Bishops
" is
"to be considered as all one."
By another quotation, in p. 135, from Eusebius, this learned writer proves also that
Novatian was ordained a
PRESBYTER
by imposition of hands,
i.e. the hands of a BISHOP, as Eusebius declares:
. Cornel. apud Euseb. lib. 6. cap. 43. p. 245.
And that this is a clear example of
the ordination of a mere Presbyter,
manifestly distinct from
ordination to the episcopal dignity,
is demonstrated by the same chapter of Eusebius, which relates the wicked fraud of
this same Presbyter,
Novatian, at a time when he was already a
Presbyter,
to obtain a
farther ordination
for the
episcopal
dignity, by inveigling three simple country Bishops to
ordain him a Bishop
by the imposition of their hands. And therefore, though
all Bishops
are certainly
Presbyters,
yet these examples, cited by the learned writer, clearly demonstrate that
all Presbyters are
NOT
Bishops,
and, consequently, that their
ordination
is NOT
to be considered as all one.
The rite of ordination (i. e.
the laying on of hands by the Bishops, after solemn prayer of the whole congregation for the assistance of the Holy Spirit
) is, indeed,
"all one,"
as well in the ordaining of
Deacons,
as in the ordination of
Presbyters,
and in the consecration of Bishops, differing only in the
designation
to these respective offices of the Christian Ministry, as I have already remarked in p. 316 n; but then this single circumstance of
designation
is sufficiently effectual to occasion an
essential
difference in the three degrees of holy
orders;
for what are
orders
but
designations,
or declarations of the office conferred, or function to be discharged? insomuch that a person who hath been duly ordained by the
same solemn rite,
with a
designation
to the office of a
Deacon,
may not assume the office of a
Presbyter,
without a
repetition of that rite,
and an express
order,
or
designation,
to the office and duty of a
Presbyter;
and a
Presbyter,
who has
twice
received holy
orders
by the same solemn rite, cannot lawfully assume the dignity and office of a Bishop, until he hath been
first
duly
elected to be a Bishop;
and,
secondly,
(which is the
most essential
circumstance, by which
episcopal
authority is really conferred,) until he have been once more
ordered,
or
ordained,
(notwithstanding his two former
orders,
as a Deacon, and as a
Presbyter,
) and that with a repetition of the
same solemn rite,
(the laying on of hands with previous prayer,) but differing in this, that there is always an express
order,
or
designation,
to the
episcopal
function, previous to the prayers and laying on of hands. The example of
Novatian,
cited above, shews that the
re-ordination
of
Presbyters,
in order to obtain the degree and function of a
Bishop,
was
deemed necessary,
even early in the third century. Other examples, which I have quoted in pages 340-342 n. concerning the
re-ordination
of
Presbyters
that had been
elected
to be
Bishops,
prove that the same opinion as well as
practice
was preserved in the middle centuries of Christianity; and the
present
universal practice of the episcopal church, in giving
priests orders
always previous to
episcopal
consecration, is too well known and established, to need the citation of particular examples for illustration.
The learned Chancellor (if he was the writer of the said book) hath also
supposed,
that the petition of a
candidate for holy orders
was to the whole Presbytery, because
(says he, p. 115.)
a Bishop alone could not give those holy orders, as is most evident
(says he)
from
Cyprian,
who assures us, that
all clerical ordinations were performed by the common counsel of the whole Presbytery;
and, therefore,
(says he,)
when, upon a
most urgent and necessary occasion,
he had been forced to ordain one but a
Lector,
without the advice and consent of his
Presbytery,
which, one would be apt to think, was no great usurpation, he takes great pains to justify and excuse himself for so doing.
But all this supposition falls, at once, to the ground, as soon as the authority, which he has cited for it, (Cyprian's 24th Epist.) is more carefully examined; for it really contains no such doctrine, and doth
not at all
relate to
"clerical ordinations,"
which he has too hastily supposed; Cyprian had
not
given
"holy orders"
(the subject of the learned writer's argument) to the persons for whose appointment he thought it necessary to apologize in that epistle; for they were still
"sub clero,"
as he expressly declares,
under the degree of clergy;
so that the apology could not be for having
ordained
any one in the
ecclesiastical
sense of that word; but only for
having
MADE (or appointed) one man a
Lector,
or
Reader,
in the church, and for
having
MADE another man a
Subdeacon.
FECISSE
me autem sciatis
LECTOREM
Saturum,
et HYPODIACONUM
Optatum confessorem.
These were mere local functions in the church, at the disposal, not only of the
Presbyters
and Deacons, but also of the
laity,
or whole congregation, who have a
right
to elect to such offices, in many places, even to this day; so that an apology was really necessary in this case, for having acted
without their consent;
but no apology would have been due, had the case been a
mere ordination,
or
conferring of holy orders.
The example is entirely foreign to the question of
presbyters
having a right to
confer holy orders;
and, as a proof that it is so, be pleased to remark, that the apology is addressed
jointly to the Presbyters and Deacons;
and cannot, therefore, prove the right of the
former
to confer
holy orders,
without admitting, also, the
latter
to the same degree of authority, an idea which the learned writer never intended to promote.
Cyprian
has been as much misunderstood by some former advocates for the
Presbyterian
pretensions to the
right of ordaining;
who
to prove that
ordination by Bishops, without the assistance of
PRESBYTERS,
was always forbidden and opposed,
tell us
(says Dr. Hammond)
of
Aurelius
's being ordained by
Cyprian,
and his
collegues,
ep. 33. and then assure us, from ep. 58. that, by his
collegues,
he means his
Presbyters,
(where yet there is no other proof of it, but the using of these
words
in the
inscription
of the
epistie,
Cyprianus
cum collegis,
et
ego et collegae,
Cyprian
with his collegues,
and
I and my collegues.)
This
(says Dr. Hammond)
is a great, but discernible,
fallacy,
put upon the
reader,
as will soon appear, 1. if we but observe that the 33d epistle, where he tells of Aurelius, was written by
Cyprian
to his
Presbyters,
and so THEY ARE the persons whom he advertiseth, what
he and his collegues
had done, and so, sure, WERE NOT those
collegues
that did it
with
him. Or, secondly, if, for the understanding
Cyprian
's notion of
collegues,
ep. 58. we shall but look forward to the next epistle, 59, for that will fully discover it, being this,
Cyprianus et caeteri collegae qui in concilio affuerunt numero
LXVI. where
Cyprian
's
colleagues
are evidently the 66 Bishops that were in
council
with him. And so St.
Austin,
in his 28th epistle to St.
Hierome,
mentioning this very
epistle,
saith,
Cyprianus cum Coepiscopis suis, Cyprian with his fellow Bishops;
an irrefragable evidence that these his
collegues
were
Bishops.
The like
(says he)
might be also observed of the
testimony
out of
Firmilian,
which they there subjoin, of the
Seniores
and
Praepositi
that have
power
of
ordaining,
by whom, say they, the
presbyters, as well as the Bishops, are understood;
but, again, it is clear, by the express words of the
epistle,
that by them are meant
the Bishops
in their
annual council; necessario apud nos fit ut, per
SINGULOS ANNOS, SENIORES
et
PRAEPOSITI
in unum conveniamus,
&c.
I should not have made so long a quotation from Dr.
Hammond,
had not the learned
Chancellor
(or author of the tract just before cited) once more held forth these very testimonies to justify
ordination by Presbyters,
though they had long before been so amply confuted by Dr. Hammond.
"It is a sad mistake" (says the rev. Mr. Tho Sa
mon, in his
Historical Collections relating to the Originals,
&c.
of the Inhabitants of Great Britain,
p. 445-449.)
of those who have a prejudice against episcopacy, that it is an invention of the
Popish
times, and that our
Reformers
so modelled the constitutions of our church, as they might be most agreeable to the humour of the
Romanists.
But, certainly, the history of Britain may convince any man of the contrary. The
Popish
times did not begin at the council of
Arles,
yet there we had our Bishops: The fathers of the council of
Nice
had spent their days under the severest persecutions of the heathen, and were just entered upon the morning of the christian empire, and shall we think that popery was then prevalent? Our church is now settled as it was at that time: Not only Bishops all over
Britain,
so far as it was christian, but very near the same number of Bishops. The three chief bishoprics were settled at three most distant and proper places to have jurisdiction over the rest,
London, York,
and
Caerleon:
There were in all 28 cities, and accordingly 28 bishoprics, as the number is given us both by
Gildas
and
Bede;
and, if we have now two less, yet so much of Britain as lies between
Berwick
and
Edinburgh,
now belonging to
Scotland,
may well be allowed for the making of two. At the council of
Nice,
the jurisdiction of their metropolitans was settled, and the union of all the Bishops of the Province provided for: Such was the order and harmony of the whole clergy, that, though the diocese was so large that it could not be particularly known and taught by the superior officers of the church, yet every one acting in his place, and being accountable to those above him, there was no defect either in the doctrine or discipline of those primitive times.
Certainly there is demonstration for episcopacy, in that there
were not only Bishops before popery,
but when the popish missionaries set up in the world,
the old Bishops were the very men that made the opposition against them.
Nothing can be more undoubted in history, than that the
British
Bishops met
Austin
and his companions at the famous oak upon the banks of
Severn,
and there utterly broke with them, peremptorily refusing subjection to the pope of Rome, It is also as certain that
Colman,
bishop of
Lindisfarn,
and his northern clergy, who had their original Christianity from
Britain,
maintained the grand dispute at
Streanshale
against
Agelbert, Wilfrid,
and the rest of the Romanists; that they retired and forsook their preferments rather than they would submit to the impositions of
Rome.
The laying aside their ancient observations, and receiving the papal tonsure, were looked upon by them both as innovations and badges of servitude to a foreign power, and therefore rejected by them, as they are by us at this day. We must maintain, like them, the customs of the church, which have been from the beginning; there
always was a commemoration of Christ and his apostles at certain times,
which we also observe without any he or she saints of the
Roman
make: There always was a submission to the authority of the church in matters of decency and order, which is all that we require, without the least subjection to the church of
Rome:
We yield no deference, we utterly renounce her authority over us. And, to suppose that our reformers either wanted judgement to distinguish between the ancient customs of the church and the later inventions of popery, or that they wanted integrity to the true christian religion, whose works and martyrdom bear witness in their favour, is such a pretence as cannot support itself under a sincere consideration.
We should be fond of episcopacy, if we did but review that opposition which the pope always made against it;
if we did but observe
how he could never compass his ends but by the destruction of its power.
He raised up the several orders of monks, that those who were employed in religion might depend
upon him, and not upon their Bishops;
he exempted the monasteries from the jurisdiction of the diocesans, that all those rich plantations might heartily espouse the tyranny and superstition of
Rome.
He did all he could to transform the bishops into monks, and prevailed so far, that every archbishop of
Canterbury
thought it necessary to put on that habit; which made his
episcopacy subservient to another sort of government.
He found that a diocesan Bishop, with his clergy in a cathedral church, was such a bulwark to the national establishment, that he could not dilate his empire; he therefore, by his interest with King
Egbert,
got the great
Oswald
law to pass,
by which the Presbyters were cast out, and monks put into their places.
How can episcopacy be a popish invention, when it has been all along
the great business of the pope to overthrow it?
We must ever own great honour and reverence due to
Columba,
who planted his monastery or university in the isle of
Hye,
upon the coasts of
Scotland,
which was a seminary for all the christian ministers of the north; but that the custom or education of this place should be against episcopacy is impossible, since they
not only had a Bishop in that little island,
but
Adamnanus,
one of the successors of
Columba,
gives us an account of the great deference they always paid to that order. Bishop
Aidan
came from thence, converted the
Northumbrians,
had his episcopal see in the island of
Lindisfarn,
which was afterwards removed to
Durham.
After he was dead, Bishop
Finan
was ordained by the
Scots,
and succeeded him; by
Finan
was
Diuma,
the first Bishop of
Litchfield,
ordained, whose successors were also from
Scotland,
and of the episcopal order. We meet also
Colman
from
Scotland,
that Bishop of the
Northumbrians,
who was ejected for the protestant cause. If
Columba
himself had such an affection of the monastic life, that he would not stir from
Hye,
and was of so great authority that it was thought fit the Bishops of the north should be accountable to him and his successors, to whom so much was committed of the royal power, this can be no argument against episcopacy itself; since it is declared, at the same time, that such a submission of Bishops to an abbot was a perverting that order which was established in the church. Those who read only the account of
Scotland
in the last century, may, perhaps, have an opinion that there was an ancient of Presbyterian government there; but all authentic histories testify that they had the same constitution of ecclesiastical orders, which were in the rest of
Britain,
and all other christian nations.
, and also more particularly the Independents, who, together with them, contend for the
congregational
or
popular right
to ELECT, are apt to lay
too much stress
(perhaps) on this external circumstance of FREE ELECTION; for they generally consider it as
essential
to the sacerdotal function; whereas, in fact, it is only
expedient
and
desirable,
but not absolutely necessary, being, indeed, the most prudent mode of
introduction
to the constituting
rite of consecration,
but no part of the
rite
itself, which consists only of
solemn prayer,
with the
laying on of hands;
in which latter, the
laity
can have no pretence to interfere
We may safely acknowledge, without injury to our
election-rights,
that the Bishops of the primitive church who succeeded immediately after the apostles, were not generally
elected
by the
people,
but were appointed either by the apostles themselves, as I have before remarked, or by
apostolic men,
for which see the evidence of Tertullian, p. 243.
Ceterum, si quae audent interserere se aetati apostolicae; ut ideo videantur ab apostolis traditae, quia sub apostolis fuerunt, possumus dicere: edant ergo origines ecclesiarum suarum:
evolvant erdinem episcoporum suorum, ita per successiones ab initio decurrentem, ut primus ille
EPISCOPUS
aliquem ex
APOSTOLIS,
vel
APOSTOLICIS VIRIS,
qui tamen cum apostolis perseveraverit, habuerit auctorem et antecessorem. Hoe enim modo ecclesiae apostolicae census suos deferunt: sicut Smyrnaeorum ecclesia Polycarpum ab Joanne conlocatum refert: sicut Romanorum, Clementem a Petro ordinatum itidem: perinde utique et ceterae exhibent quos ab Apostolis in Episcopatum constitutos apostolici seminis traduces habeant.
Confingant tale aliquid haeretici. Quid enim illis post blasphemiam inlicitum est? sed etsi confinxerint, nihil promovebunt. Ipsa enim doctrina eorum cum apostolica comparata, ex diversitate et contrarietate sua pronunciabit, neque apostoli alicujus auctoris esse, neque apostolici: quia sicut apostoli non diversa inter se docuissent, ita et apostolici non contraria apostolis edidissent. Nisi illi qui ab apostolis didicerunt, aliter praedicaverunt. Ad hanc itaque formam probabuntur ab illis ecclesiis, quae licet nullum ex apostolis, vel apostolicis, auctorem suum proferant, ut multo posteriores, quae denique quotidie instituuntur: tamen in eadem side conspirantes, non minus Apostolicae deputantur, pro consanguinitate doctrinae,
&c. p. 243. Paris edit. 1641.
. But this
primitive rite
of the church, the
laying on of hands,
is publicly rejected by many of the Independent and Socinian ministers.
The ceremony of
THE IMPOSITION OF HANDS
(says one of them, for instance, in reporting the character of an eminent Socinian Preacher)
he also refused to submit to, because he considered it as void of any just meaning, where no extraordinary gifts are, or can be, imparted.
This opinion of
the imposition of hands,
must have been too hastily taken up, because it is certainly erroneous. The fact is, that this ceremony, like all other
outward rites,
that were instituted by Christ, or his Apostles,
may,
or
may not,
be efficacious, according to the
inward disposition,
or sincerity, of the person to whom the
outward rite
is administered.
Neither the administration of
baptism,
nor the participation of the
Lord's Supper,
can impart any good effect on those who receive them
unworthily,
without sincerity, without regard to the
internal
and
spiritual
GOD
is a
SPIRIT,
and they that worship him, must worship him
IN SPIRIT
and in truth.
John iv. 24.
There is nothing in this text which can fairly be construed
against
the use of external ceremonies, either of the
laying on of hands,
or of the
sacramental institutions of Christ,
though it is certainly applicable to enforce the necessity of a
sincere and spiritual devotion
in the use of them, as also in our daily
prayers:
but those men, who not only despise these institutions of Christ and his primitive church, but even neglect, for the most part, in their public meetings, Christ's positive injunctions TO PRAY ("
Ask and it shall be given to you,
&c. Mat. vii. 7.) and neglect more especially TO PRAY for the HOLY SPIRIT, (which is so clearly promised
to them that ask,
Luke xi. 9-13.) through a groundless persuasion that they do obtain that heavenly gift by other means; those men, I fear, are under
a very dangerous delusion of a contrary spirit;
for it would be unreasonable to admit their pretensions to
spiritual worship
in the sense of that text of John, (viz.
in spirit and in truth,
) whilst they prefer their own
novel
way of worship to that
true
worship which was so clearly commanded by Christ, and practised by the primitive Christians, and the universal church.
signification; but merely to please men by an
outward
conformity to the ceremonies for some worldly advantage, or favour, as many do by way of
test:
to such men
"no extraordinary gifts are, or can be, imparted"
by these
outward
rites, which, on the contrary, rather increase their condemnation. For though very worthy ministers, who officiate therein, or administer these
outward
rites, may be deceived by the outward deportment of the persons to be baptized, or communicating, yet God's
Holy Spirit
is not to be mocked, as we learn by the sad example of Ananias and Saphira, whose dissimulation was punished by an immediate stroke from God, to impress the infant church with a due sense of the Almighty Power, and the necessity of
sincerity
in all things pertaining to God's Service. Such extraordinary
outward
manifestations of God's Spirit are not now to be expected; it is sufficient that they continued until authentic historical accounts of our holy religion were dispersed, in writing, throughout the greatest part of the known world, and the canon of the sacred Scriptures completed, in which ample accounts of them are related; so that we may say of the New Testament, as our Lord said of the Old Testament, adding, to
the necessity of believing Moses and the Prophets,
the
necessary belief,
also, of the New Testament, that the men who believe not these additional testimonies, of Christ's Disciples and witnesses,
would not believe, even if one should rise from the dead!
Thus it appears, that the extraordinary
outward
manifestations of God's Spirit, in working miracles, are no longer
necessary
for the edification of the church; but we must not, therefore, say that
no extraordinary gifts are, or can be, imparted!
For miracles are not the only test of the real inspiration of
God's Holy Spirit,
but
love, good works, and holding fast the faith, which was once delivered to the Saints:
These are the
fruits
by which we are to judge of the tree; and, without these, even miracles are to be suspected of delusion, and are to be esteemed rather as the
lying wonders of Satan
than as the works of God! The power of
working miracles,
therefore, is not such an
"extraordinary gift,"
as we have any right to look for, or to expect under the present dispensation of the
christian religion;
and yet
the gift of God's spirit
(which every true Christian has a
right
to expect, according to the unquestionable promises of Christ) is certainly
"an extraordinary gift,"
and is as certainly
"imparted"
to all that
duly ask it
in the meritorious name of our Redeemer, if we may confide in the truth of the holy Scriptures! It is always
"an extraordinary gift,"
(though
imparted
according to
the ordinary
dispensation of our religion,) because it supports and endows pious and worthy men, on many occasions, far beyond their
ordinary,
or natural, abilities and strength. It is, I say, a real addition to the
ordinary
nature of man, and therefore always
an
extraordinary gift;
being nothing less than a real participation
of the
DIVINE NATURE,
of which we may, if we will, be
partakers
(
) through the
exceeding great and precious promises
of that divine person
that hath called us to glory and virtue.
See 2 Pet. i. 3, 4.
If men are thus assured that this
extraordinary gift
may be obtained by
asking,
according to Christ's directions, they surely cannot doubt of its being
imparted
when they
ask it
in a more particular manner on great and solemn occasions, as at the
baptism
of adults, or the
confirmation
of persons that have been baptized in their infancy; and at the sacramental
commemoration of Christ's death,
according to our Lord's own institution: these
outward rites
cannot
impart the extraordinary gift;
but the goodness and truth of God are absolutely pledged (if I may use such an expression) to fulfil the
exceeding great and precious promises
in favour of
prayer
for that
extraordinary gift:
and such
prayer
(having this the object) doth always make a part of those
solemn rites;
whereby they are most certainly rendered efficacious, if
sincerity
be not wanting in those persons to whom they are administered.
And it is exactly the same thing with respect to
"the imposition of hands,"
(either in the consecration of Bishops, or in the ordination of Priests and of Deacons,) because that
ancient rite
of Christ's church is always performed with
solemn prayer,
in Christ's name, for the
Holy Spirit
to guide and assist the persons consecrated or ordained; and the prayers of the congregation are also desired on their behalf; and therefore, if the persons
elected
to be consecrated for the office and dignity of Bishops, and the candidates for Priests, or Deacons orders, are really
sincere
themselves in their
prayers
and undertakings, there is no doubt but
the laying on of hands,
thus accompanied with suitable prayer and devotion, is truly efficacious, and doth
impart the extraordinary gift
abovementioned. For the action of
"laying on hands"
hath nothing in it indecent, immoral, or contrary to God's laws, such as might be supposed to hinder the good effect of Christ's absolute
promises to them that ask;
but, on the contrary, is authenticated and sanctified by
apostolic usage,
declared in canonical Scripture, as well as by the constant subsequent practice of all the primitive churches of Christ; and ought not, therefore, to be laid aside on the groundless pretence that
no extraordinary gifts are, or can be, imparted.
GRANVILLE SHARP.
Old Jewry,
Oct. 1784.
A very worthy member of parliament, having lately read as much of this tract as was then printed, was pleased to propose the following queries; in answer to which the following letter was sent to him by the author, viz.
How could we divide this and other great towns into tithings?
Would not streets be a better division in cities? Parishes and streets, instead of tithings and hundreds?
ANSWER.
Dear SIR,
THE ancient mode of dividing great cities was by
wards;
each of which was governed by an
alderman,
the
ealdorman
of the Anglo-Saxons, an officer of great authority in the
common law;
being a JUSTICIARY, and having all the powers of our modern
justices of the peace;
and, what is more, was always elected by the
house-keepers
or
deciners
of the
ward over
which he presides. This antient mode of division by no means interferes with the lesser divisions of
tithings
and
hundreds;
so far from it, that the government of the
wards
is not complete without them. The Lord Mayor's precept, to the aldermen, orders them (to this day) to hold courts of
frankpledge
See Bohun's Privilegia Londini, p. 386. under the head of
Wardmote Courts
and the Lord Mayor's annual Precept to hold them; which latter, amongst other things, contains the following article.—No. 11.
And, for that, of late, there is more resort to the city of persons evil affected in religion, and otherwise, than in former times hath been; you shall diligently inquire if any man be received to dwell or abide within your Ward, that is not
put under
FRANKPLEDGE,
as he ought to be by the custom of the city:
&c.
; which were not without the regular divisions of
tithings
to give them effect. The wards are
local
divisions of various magnitude, and have been formed, (as you suggest,) some by
streets,
some by the intersection of
brooks,
now covered over; but those various dimensions of space required a regular
numerical
division of the
housekeepers,
in order to ascertain the due proportion of the representatives in the
common-council
of the city.
The average-rate of
common-councilmen
to the
housekeepers,
or
deciners,
is, at present, about one to 90. And as the city was, in antient times, more populous, and the houses smaller for each family, when men were restrained by law from building in the environs of the city, it is probable that the true proportion of
housekeepers,
to elect
one common-councilman,
should be 100; so that the common council has formerly been an assembly of
hundreders
or
high constables.
As the gates of the city have been removed so as to leave this most important place entirely exposed to the fatal consequences of any sudden riot, the attacks of any hardened banditti, and (especially in cases of any alarms by fire,) to the most dangerous confluence of multitudes of unknown people, many of whom plunder the distressed, and others hinder the necessary means of assistance, it is highly expedient that some means of defence should be devised. I have been told, that, in the great cities of Japan, the streets are barricadoed and shut up with
palisade
gates every night, and that the people are actually divided into
tithings
and
hundreds.
I have much to say on this subject; and, if you are not going out of town immediately, I will do myself the honour to wait on you and communicate my thoughts.
I remain, with great esteem, Dear SIR, Your most humble Servant, GRANVILLE SHARP.
Old Jewry,
Aug. 21, 1784.
* * * *, Esq.