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ment, and to that purpose subordination, Scarce had these northern conquerors was necessary. Every receiver of lands, established themselves in their new domior feudatory, was therefore bound, when nions, when the wisdom of their constitucalled upon by his benefactor, or imme- tions, as well as their personal valour, diate lord of his feud or fee, to do all in alarmed all the princes of Europe; that his power to defend him. Such benefactor is, of those countries which had formerly or lord was likewise subordinate to and been Roman provinces, but had revolted, under the command of his immediate be, or were deserted by their old masters, in nefactor or superior; and so upwards to the general wreck of the empire. Wherethe prince or general himself. And the fore moit, if not all, of them, thought ir leveral lords were also reciprocally bound, neceffary to enter into the fame, or a fimiin their respective gradations, to protect lar plan of policy. For whereas, before, the poliestions they had given. Thus the the posseflions of their subjects were perfeodal connection was established, a proper fectly allodial (that is, wholly independent, military subjection was naturally intro. and held of no superior at all) now they duced, and an army of feudatories were parcelled out their royal territories, or always ready inlitted, and mutually pre- persuaded their subjects to surrender up pared to muster, not only in defence of and retake their own landed property, uneach man's own several property, but also der the like feodal obligation of military in defence of the whole, and of every part fealty, And thus, in the compass of a of this their newly-acquired country: the very few years, the feodal conititution, or prudence of which conftitution was foon the doctrine of tenure, extended itself over fufficiently visible in the strength and spi- all the weitern world. Which alteration rit with which they maintained their con of landed property, in so very material a quests.
point, necessarily drew after it an alteraThe universality and early use of this tion of laws and customs; so that the feofeodal plan, among all those nations which, dal laws soon drove out the Roman, which in complaisance to the Romans, we still had universally obtained, but now became call Barbarous, may appear from what is for many centuries loft and forgotten; recorded of the Cimbri and Tutones, na and Italy itself (as some of the civilians, tions of the same northern original as those with more spleen than judgement, have, whom we have been describing, at their expresied it) belluinas, atque ferinas, immafirit irruption into Italy about a century nefque Longobardorum leges accepit. before the Christian æra. They demand But this feodal polity, which was thus ed of the Romans,“ ut marrius populus ali- by degrees established over all the contiquid sibi terræ daret quasit ftipendium: cæte nent of Europe, seems nos to have been rum, ut vellet, manibus atque ar mis juis ute received in this part of our ifland, at least retur.” The sense of which may be thus not universally, and as a part of the narendered: “ they desired ftipendary lands tional constitution, till the reign of William (that is, feuds) to be allowed them, to be the Norman. Not but that it is reasonheld by military and other personal ser- able to believe, from abundant traces in vices, whenever their lords' fhould call our history and laws, that even in the times upon them.” This was evidently the fame of the Saxons, who were a swarm from conftitution, that displayed itself more fully what Sir William Temple calls the same about seven hundred years afterwards; northern hive, something similar to this when the Salii, Burgundians, and Franks, was in use: yet not so extensively, nor atbroke in upon Gaul, the Visigoths on Spain, tended with all the rigour, that was afterand the Lonbards upon Italy, and intro- wards imported by the Normans. For duced with themselves this northern plan the Saxons were firmly settled in this of polity, serving at once to distribute, and island, at least as early as the year
600 : 10 protect, the territories they had newly and it was not till iwo centuries after, that gained. And from hence it is probable, feuds arrived to their full vigour and mathat the emperor Alexander Severus tock turity, even on the continent of Europe. the hint, of dividing lands conquered from This introduction however of the feodal the enemy, among his generals and viéto. tenures into England, by king William, rious soldiery, on condition of receiving does not seem to have been effected immilitary service, from them and their heirs mediately after the conquelt, nor by the for ever,
mere arbitrary will and power of the conÔ K
queror; but to have been consented to by very year the king was attended by all the great council of the nation long after his nobility at Sarum; where all the prinhis title was established. Indeed from the cipal landholders submitted their lands to prodigious flaughter of the English no the yoke of military tenure, became the bility at the battle of Hastings, and the king's vassals, and did homage and fealty fruitless insurrections of those who survive to his person. This seems to have been ed, such numerous forfeitures had accrued, the æra of formally introducing the feodal that he was able to reward his Norman tenures by law; and probably the very followers with very large and extensive law, thus made at the council of Sarum, posleflions: which gave a handle to the is that which is still extant, and couched monkish historians, and such as have im- in these remarkable words: “ ftatuimus, plicitly followed them, to represent him ut omnes liberi bomines fædere & sacramento as having, by the right of the sword, seized affirment, quod intra & extra univerfum regon all the lands of England, and dealt num Angliæ Wilhelmo regi domino fuo fideles them out again to his own favourites. A elje volunt; terras & honores illius omni fidesupposition, grounded upon a mistaken litate ubique fervare cum eo, et contra inimicos sense of the word conqueft; which, in its et alienigenas defendere.” The terms of feodal acceptation, fignifies no more than this law (as Sir Martin Wright has obacquisition : and this has led many hafty served) are plainly feodal: for, first, it rewriters into a strange historical mistake, quires the oath of fealty, which made, in and one which, upon the slightest exami the sense of the feudifts, every man that nation, will be found to be most untrue. took it a tenant or vassal; and, secondly, However, certain it is, that the Normans the tenants obliged themselves to defend now began to gain very large possessions their lords territories and titles against all in England: and their regard for their enemies foreign and domeftic. But what feodal law, under which they had long puts the matter out of dispute, is another lived, together with the king's recom law of the same collection, which exacts mendation of this policy to the English, the performance of the military feodal as the best way to put themselves on a services, as ordained by the general counmilitary footing, and thereby to prevent cil: « Omnes comites, & barones, & milites, any future attempts from the continent, & servicntes, & univerfi liberi bomines, towere probably the reasons that prevailed tius regni nostri prædicti, babeant & teneant to effect his establishment here. And per- se femper bene in armis & in equis, ut decet haps we may be able to ascertain the time & oportet: & fint femper prompti & bene of this great revolution in our landed pro- parati ad servitium suum integrum nobis experty, with a tolerable degree of exactness. plendum peragendum cum opus fuerit; jeFor we learn from the Saxon Chronicle, cundum quod nobis debent de fadis & tenethat in the nineteenth year of king Wil- mentis fius de jure facere; & ficut illis ftaliam's reign, an invasion was apprehend. tuimus per commune concilium totius regni ed from Denmark; and the military conti- noftri prædicti." tution of the Saxons being then laid aside, This new polity therefore seems not to and no other introduced in its stead, the have been imposed by the conqueror, but kingdom was wholly defenceless: which nationally and freely adopted by the geoccafioned the king to bring over a large neral allembly of the whole realm, in the army of Normans and Bretons, who were same manner as other nations of Europe quartered upon every landholder, and had before adopted it, upon the fame greatly oppressed the people. This ap. principle of self-security. And, in parti. parent weakness, together with the griev- cular, they had the recent example of the ances occasioned by a foreign force, might French nation before their eyes, which co-operate with the king's remonttrances, had gradually surrendered up all its alloand the better incline the nobility to listen dial or free lands into the king's hands, to his prposals for putting them in a porn who restored them to the owners as a beneture of defence. For as toon as the dan- ficium or feud, to be held to them and such ger was over, the king held a great coun. of their hcirs as they previously nominated cil to enquire into the state of the nation; to the king : and thus, by degrees, all the the immediate consequence of which was, allodial estates of France were converted the compiling of the great survey called into feuds, and the freemen became the Domesday-book, which was finished in the varials of the crown. The only difference next year; and in the latter end of that between this change of tenures in France,
and that in England, was, that the former a reftitution of the laws of king Edward was effected gradually, by the consent of the Confeffor, or ancient Saxon ty item; and private persons; the latter was done at accordingly, in the first year of his reign, once, all over England, by the common granted a charcer, whereby he gave up the consent of the nation.
greater grievances, but still reserved the In consequence of this change, it be- fiction of feodal tenure, for the same milicame a fundamental maxim and necessary tary purposes which engaged his father to principle (though in reality a mere fiction) introduce it. But this charter was graduof our English tenures, “ that the king is ally broke through, and the former grievthe universal lord and original proprietor ances were revived and aggravated, by of all the lands in his kingdom; and that himself and fucceeding princes; till, in the no man doth or can possess any part of it, reign of king John, they became lo intolebut what has mediately or immediately rable, that they occafioned his barons, or been derived as a gift from him, to be principal feudatories, to rise up in arms held upon feodal services.” For, this be- againit him : which at length produced the ing the real case in pure, original, proper famous great charter at Running- mead, feuds, other nations who adopted this syf- which, with some alterations, was confirmed tem were obliged to act upon the same by his fon Henry III. And though its imfuppofition, as a substruction and founda- munities (especially as altered on its last tion of their new polity, though the fact edition by his fon) are very greatly short was indeed far otherwise. And, indeed, of those granted by Henry I. it was justly by thus confenting to the introduction of esteemed at the time a vast acquisition to feodal tenures, our English ancestors pro. English liberty. Indeed, by the further bably meant no more than to put the alteration of tenures, that has fince hapkingdom in a state of defence by a mili- pened, many of these immunities may now tary system: and to oblige themselves (in appear, to a common observer, of much respect of their lands) to maintain the les consequence than they really were king's title and territories, with equal via when granted: but this, properly configour and fealty, as if they had received dered, will fhew, not that the acquisitions their lands from his bounty upon these under John were small, but that those express conditions, as pure, proper, bene- under Charles were greater. And from ficiary feudatories. But, whatever their hence also arises another inference; that meaning was, the Norman interpreters, the liberties of Englishmen are not (as some killed in all the niceties of the feodal con- arbitrary writers would represent them) titutions, and well understanding the im mere infringements of the king's prero. port and extent of the feodal terms, gave gative, extorted from our princes by taka very different conitruction to this pro- ing advantage of their weakness; but a ceeding; and thereupon took a handle to reitoration of that ancient constitution, of introduce, not only the rigorous doctrines which cur ancestors had been defrauded which prevailed in the duchy of Norman- by the art and finesle of the Norman law. dy, but also such fruits and dependencies, yers, rather than deprived by the force of such hardships and services, as were never the Norman arms. known to other nations; as if the English
Blackstone's Commentaries. had in fact, as well as theory, owed every thing they had to the bounty of their ro
§ 61. Of British Juries. vereign lord.
The method of trials by juries, is geneOur ancestors, therefore, who were by rally looked upon as one of the molt exno means beneficiaries, but had barely cellent branches of our constitution. In consented to this fiction of tenure from the theory it certainly appears in that light. crown, as the basis of a military discipline, According to the original establishment, with reason looked upon those deductions the jurors are to be men of competent foras grievous impositions, and arbitrary con- tunes in the neighbourhood; and are to clulions from principles that, as to them, be fo avowedly indifferent between the had no foundation in truth. However, parties concerned, that no reasonable exşhis king, and his fon William Rufus, ception can be made to them on either kept up with a high hand all the rigours fide. In treason, the person accused has a of the feodal doctrines: but their successor, right to challenge five-and-thirty, and in Henry I, found it expedient, when he fet felony, twenty, without thewing caate of up his pretenfions to the crown, to promife challenge. Nothing can be more equitable.
No prisoner can desire a fairer field. But its nature, and not unfrequently even turns the misfortune is, that our juries are often to vice. The expences of society, of pre. composed of men of mean estates and low sents, of entertainments, and the other helps understandings, and many difficult points to cheasfulness, are actions merely indifferof law are brought before them, and sub- ent, when not repugnant to a better memitted to their verdiet, when perhaps they thod of disposing of our fuperfluities; but are not capable of determining, properly they become vicious, when they obstructor and judiciously, such nice matters of jut: exhaust our abilities from a more virtuous tice, although the judges of the court exa disposition of our circumftances. plain the nature of the case, and the law True generosity is a duty as indispenfawhich arises upon it. But if they are not bly necessary as those imposed on us by defective in knowledge, they are some. law. It is a rule imposed on us by reason, times, I fear, from their station and indi- which should be the sovereign law of a ragence, liable to corruption. This, indeed, tional being. But this generosity does not is an objection more to the privilege lodged consist in obeying every impulse of humawith juries, than to the institution itself. nity, in following blind paflion for our The point most liable to objection, is the guide, and impairing our circumstances by power which any one or more of the present benefactions, so as to render us intwelve have, to starve the rest into a com. capable of future ones. pliance with their opinion; so that the
Goldsmith's Ejays. verdict may possibly be given by strength of constitution, not by conviction of con
$63. Habit, the Difficulty of conquering. fcience; and wretches hang that jurymen There is nothing which we estimate so
Orrery. fallacioully as the force of our own resolu.
tions, nor any fallacy which we so unwil$ 62. Juftice, its Nature and real Infort lingly and tardily detect. He that has re. defined.
solved a thousand times, and a thousand Mankind, in general, are not sufficiently times deserted his own purpose, yet suffers acquainted with the import of the word no abatement of his confidence, but still justice: it is commonly believed to consist believes himself his own master, and able, only in a performance of those duties to by innate vigour of foul, to press forward which the laws of society can oblige us. to his end, through all the obitructions that This, I allow, is sometimes the import of inconveniences or delights can put in his the word, and in this sense justice is distin way. guilhed from equity; but there is a justice That this mistake fhould prevail for a till more extensive, and which can be then time is very natural. When conviction is. to embrace all the virtues united.
prefent, and temptation out of sight, we do Justice may be defined, that virtue which ilot easily conceive how any reasonable beimpels us to give to every person what is ing can deviate from his true intereit. his due. In this extended fente of the What ought to be done while it yet hangs word, it comprehends the practice of every only in speculation, is so plain and certain, virtue which reason prescribes, or society that there is no place for doubt; the whole should expect. Our duty to our Maker, foul yields itself to the predominance of to each other, and to ourselves, are fully truth, and readily determines to do what, answered, if we give them what we owe when the time of action comes, will be at them. Thus justice, properly speaking, is last omitted. the only virtue, and all the rest have their I believe most men may review all the origin in it.
lives that have pailed within their observaThe qualities of candour, fortitude, cha- tion, without remembering one efficacious rity, and generosity, for instance, are not resolution, or being able to tell a single in their own nature virtues; and, if instance of a courle of practice suddenly they deserve the title, it is owing only to changed in consequence of a change of justice, which impels and directs them. opinion, or an establifhment of determinaWithout such a moderator, candour might tion. Many indeed alter their conduct, become indiscretion, fortitude obstinacy, and are not at fifty what they were at charity imprudence, and generosity mis- thirty, but they commonly varied impertaken profufion.
ceptibly from themselves, followed the train A disinterested action, if it be not con of external caules, and rather suffered reducted by justice, is, at best, indifferent information than made it.
It is not uncommon to charge the differ- shops. I had not been long in the world ence between promise and performance, be- before an ingenious transmuter of metals tween profession and reality, upon deep de- laid violent hands on me; and observing fignand ftudied deceit; but the truth is, that my thin shape and flat surface, by the help there is very little hypocrisy in the world; of a little quicksilver exalted me into a we do not so often endeavour or wish to thilling. Use however, foon degraded impose on others as ourselves; we re. me again to my native low station; and I solve to do right, we hope to keep our reso- unfortunately fell into the posledion of an lutions, we declare them to confirmour own urchin just breeched, who received me as a hope, and fix our own inconstancy by call- Christmas-box of his godmother. ing witnesses of our actions; but at last “ A love of money is ridiculously inhabit prevails, and those whom we invited filled into children so early, that before at our triumph, laugh at our defeat. they can possibly comprehend the use of it,
Custom is commonly too itrong for the they consider it as of great value: I lost most resolute resolver, though furnished for therefore the very essence of my being, in the assault with all the weapons of philofo- the custody of this hopeful disciple of avaphy. “ He that endeavours to free him- rice and folly; and was kept only to be
self from an ill habit,” says Bacon, looked at and admired: but a bigger boy " must not change too much at a time, after a while snatched me from him, and " leit he should be discouraged by ditfi- released me from my confinement. " culty ; nor too little, for then he will “ I now underwent various hardships “ make but flow advances.” This is a among his play-fellows, and was kicked precept which may be applauded in a book, about, hustled, tossed up, and chucked into but will fail in the trial, in which every holes; which very much battered and imchange will be found too great or too little. paired me; but I suffered most by the Thole who have been able to conquer ha- pegging of tops, the marks of which I have bit, are like those that are fabled to have borne about me to this day. I was in this returned from the realms of Pluto: ftate the unwitting cause of rapacity, strife, Pauci, quos æquus amavit
envy, rancour, malice, and revenge, among Jupiter, atque ardens evexit ad æthera virtus. the little apes of mankind; and became They are sufficient to give hope bat not the object and the nurse of those passions security, to animate the contelt but not to which disgrace human nature, while I appromise victory.
peared only to engage children in innocent Those who are in the power of evil ha- paitimes. At length I was dismissed from bits, muft conquer them as they can, and iheir service, by a throw with a barrowconquered they must be, or neither wisdom wornan for an orange. nor happiness can be attained; but those From her it is natural to conclude, I who are not yet subject to their influence, posted to the gin shop; where, indeed, it may, by timely caution, preserve their free is probable I should have immediately dom, they may effe&tually resolve to escape gone, if her husband, a foot-soldier, had the tyrant, whom they will very vainly re
not wrested me from her, at the expence Idler. of a bloody nose, black eye, scratched face,
and torn regimentals. By him I was car§ 64. Halfpenny, its Adventures.
ried to the Mall in St. James's Park, where « Sir,
I am ashamed to tell how I parted from “ I fhall not pretend to conceal from him-let it suffice that I was soon after deyou the illegitimacy of my birth, or the posited in a night-cellar. baseness of my extraction: and though I
“ From hence I got into the coat-pocket seem to bear the venerable marks of old of a blood, and remained there with feage, I received my being at Birmingham veral of my brethren for some days unno. not fix months ago. From thence I was ticed. But one evening as he was reeling transported with many of my brethren of home from the tavern, he jerked a whole different dates, characters, and configura- handful of us through a fath-window into tions, to a Jew pedlar in Duke's-place, the dining-room of a tradesman, who he re. who paid for us in specie scarce a fifth part membered had been so unmannerly to him of our nominal and extrinsic value. We the day before, as to desire payment of his were soon after separately difpofed of, at a bill. We repored in soft ease on a fine more moderate profit, to coffee-houses, Turkey carpet till the next morning, when chep-houses, chandlers-Shops, and gin- the maid swept us up; and some of us
solve to conquer.