An account of the ancient division of the English nation into hundreds and tithings: the happy effects of that excellent institution; ...Intended as an appendix to several tracts on national defence, &c. By Granville Sharp.

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- TRACT, Number II. An ABSTRACT from the preceding Account of the Hundreds and Tithings, presented by the author to the com mittee 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 monopoli zed, in the hands of a few individuals, as private property; a property avowedly estimated by the value of the seats in par liament, (instead of the only lawful pro perty therein, the real rentals of the tene ments,) and, at that unlawful and ex orbitant estimation, notoriously bought and sold, to the disgrace and perversion of parliamentary authority.

- TRACT, Number III. Being a Memorandum on a late Proposal for a New Settlement to be made on the Coast of AFRICA; recommend ing, to the Author of that Proposal, several Alterations in his Plan, and more especially the adoption of the an cient Mode of Government by Tithings (or Decenaries) and Hundreds as being the most useful and effectual Mode of Government for all Nations and Coun tries.

- TRACT, Number IV. An easy and practicable Plan for laying out Settlements on uncultivated Lands, in e qual Divisions of ten Tithings, or 100 Families each; whereby new Colonies may be most advantageously formed and extended in regular Districts of Hun dreds, agreeable to the ancient legal Di visions of our Anglo-Saxon Ancestors.

- TRACT, Number V. A farther Declaration of the ancient po pular, or congregational, Right to elect Bishops; intended to illustrate, more effectually, a Maxim of the Common Law, cited in p. 91, viz. Ordo Epis coporum est Robur Reipublicae. Jenk. Cent. p. 56.

- A very worthy member of parliament, having lately read as much of this tract as was then printed, was pleased to pro pose the following queries; in answer to which the following letter was sent to him by the author, viz. ANSWER.

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, [*] who is expressly said to have therein followed the prudent Council given by Jethro to Moses, [†] 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’ [*] 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. [†] ‘ 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" [*]: 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:’ [*] 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, [*] 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, [*] 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, ’ [*] 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" [*] (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, [*]) 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, [*] 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. [*] 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 non-Latin alphabet 〉, 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, ’—〈 in non-Latin alphabet 〉, "tell unto THE CHURCH," (not unto the Prelate of the Church, as Popish writers contend, therein grossly perverting [*]the divine command by their vain traditions,) but, 〈 in non-Latin alphabet 〉 "unto the congregation," including the Laity as well as Clergy. And the Apostle Paul reproved the Corinthians, for carrying their contests about worldly matters (〈 in non-Latin alphabet 〉, 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 〈 in non-Latin alphabet 〉, worldly matters, but also more especially of Ecclesiastical Cases, as being the FIRST, [*] 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 〈1 page duplicate〉 〈1 page duplicate〉 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, [*] 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; [*] 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 [*] 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, [*] 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, [*] and of their consequent fellowship with the Prince of this World, [†] 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, [*] 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, [*]
and "reason" justly deemed
a ray of the divine light, [†]
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, [*] 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. [†]

And, as the members of a christian community are required by the Scriptures to have their
senses exercised, through HABIT [‡]
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, [§]
be the particular circumstances of the case ever so new or uncommon; for justice [*] ought not to be foiled for the want of an express statute, or a precedent for proceeding, as at present; [†] but the law is required to be effective [*], 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; [†] and, surely, every thing that is immoral is "against reason;" and again, by another rule,
nothing that is inconvenient is lawful. [§]
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; [‡] 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 ‖ presbyters by the common suffrage of all the people [*] 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. [*] 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, [*] 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 [*] for VIEW OF FRANPLEDGE, made anno 18. Ed. 2. See Decennier, [†] Leete,
[§]
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. [*] 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] ‘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] ‘ If all the Free-men k of the HUNDRED, or of the Fee, ’ (Fief or Manour,) "be present."

3. [3] "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] ‘ 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 receivers n of others wittingly ’ or knowingly.

5. [5] "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] ‘ 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] "Of" Christians (that are) ‘ usurers and of all their goods. ’

8. [8] "Of treasure trove," (i. e. found,) ‘ wrecks, waifes, estreyes, and of every purpresture and encroachment o upon the King, p or upon his dignity. ’

9. [9] ‘ Of all wrongs done by the King's officers and others to the common people. ’

10. [10] "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] ‘ Of boundaries removed to the common nusance of the people. ’

12. [12] ‘ 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] ‘ And of those who have bought by one kind of measure, and sold by another kind in deceit of merchants, or buyers. ’

14. [14] ‘ Of the disturbers of framing lawfull judgements, and of the framers of wrongfull judgements, and of the abbettors, and consenters thereunto. ’

15. [15] "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] "Of every false judgement given," for the other view,• (meaning, perhaps, a retrospect to the preceding view,) ‘ in the Hundred or Fee. ’

17. [17] ‘ Of every fore-stallment done in the common highway. ’

18. [18] "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] "Of" all "wrongful recousses," or rescues.u

20. [20] ‘ Of every outragious distresse in another fee, ’ (or manour,) ‘ or in the market for a forraign contract. ’

21. [21] ‘ Of all bridges broken, and causies, wayes, common bridges, and who ought for to repaire them. ’

22. [22] ‘ 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, [y] and no article of enquiry ought to be formed on a doubtful question.

23. [23] "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] ‘ Of all those who sell corrupt wine for sound wine. ’

25. [25] "And" (of those who sell) "beer" (or) ‘ ale, raw, and not well brewed, for that which is good and wholsome. ’

26. [26] "Of small larcines," or thefts, commonly called "petit larceny," when the goods stolen do not exceed the value of twelve-pence.

27. [27] "Of cutters of purses."

28. [28] ‘ Of those who suffer people to use any mysterie for reward or fee. ’

29. [29] "Of receivers of thief-boot," i. e. receivers of "stolen goods."

30. [30] ‘ Of makers and haunters of false dice. ’

31. [31] "Of outrageous tole-takers," i. e. those who take more toll than the law directs.

32. [32] "Of all other" cheaters (or trickers) and "deceivers."

33. [33] "Of all manner of conspirators."

34. [34] ‘ 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.’ [*]

‘ 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, [†] is the number expressed in the original,) ‘ man or woman, [§] 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 [*] 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 [*], 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 [*];" 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 [*] 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 [*] 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 [*]) ‘ 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 [*]. 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 [*].

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 [*] 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 [*] 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
[*]
: 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 [*]. To these I must now add a farther excellent clause of K. William's statute [†], 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 [*], or ORFGYLD[*].
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[†]) 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. ’ [*]

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, [‡] conjectur a est, eaque non levis, haud it a multis scatuisse prisca tempora sceleribus, quippe quibus rapinae, furto, coedi [*], 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.

〈 in non-Latin alphabet 〉,

〈 in non-Latin alphabet 〉,

〈 in non-Latin alphabet 〉.

Glory in the highest to GOD,

And on Earth PEACE,

Towards Men GOODWILL!

Notes

*
See Mr. Lambard's explication of words prefixed to his Archaionomia, on the word Centuria.
↵

†

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,’ (〈 in non-Latin alphabet 〉) 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.

↵

*

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.

↵

†

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.’

↵

*
—
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.
↵

*

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.’

↵

*
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.
↵

*

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.

↵

*

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.’

↵

*
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.

↵

*

Otherwise it is if tenant for yeares, which knoweth the end of his terme, doth sowe the land, &c.
Ibid.

↵

*

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."

↵

*
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.

↵

*
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.
↵

*

Agantur itaque PRIMO debita verae Christianitatis Jura: Secundo Regis placita: POSTREMO causae singulorum dignis satisfactionibus expleantur.
4 Inst. p. 260.

↵

*
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.
↵

*
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 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; [*] 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.

↵

*

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.
↵

*
—
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.
↵

*

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.

↵

†
—"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.
↵

*
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. [*] 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.

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*
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," (

〈 in non-Latin alphabet 〉

or exercitation—which was only
〈 in non-Latin alphabet 〉
—"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,
〈 in non-Latin alphabet 〉
, (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,
(
〈 in non-Latin alphabet 〉
)
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,
—
〈 in non-Latin alphabet 〉
. 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,
〈 in non-Latin alphabet 〉
)
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
〈 in non-Latin alphabet 〉
, 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,

〈 in non-Latin alphabet 〉
;" (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,"—
〈 in non-Latin alphabet 〉
. 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!
↵

*
"Lex est dictamen rationis." Jenk. Cent. p. 117.
↵

†
"Ratio est radius divini luminis." Co. Lit. 232. b.
↵

*
See the 1st, 2d, 5th, and 8th, chapters of Doctor and Student.
↵

†
See Doctor and Student, chaprs 3 and 6.
↵

‡

〈 in non-Latin alphabet 〉
. Heb. V. 14.

↵

§
"Lex semper dabit remedium." Prin. Leg. et Aeq p. 52.
↵

*
"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.
↵

†
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.
↵

*

Law will rather suffer things against the principles of law than that a man shall be without a remedy.
Grounds and Rudiments, p. 188.

↵

†
"Nihil quod est contra rationem est licitum." Co. Lit. 97, b. and Grounds and Rudiments, 228.
↵

§
"Nihil quod est inconveniens est licitum." Co. Lit. 97, b. and Grounds and Rudiments, 228.
↵

‡
"Summa ratio est quae PRO RELIGIONE facit." Jenk. Cent. p. 2. et 37. Noy, p. 1. Grounds and Rudiments, p. 318.
↵

‖

〈 in non-Latin alphabet 〉
, (1 Tim. 3, 2.) Quorum vitam carpere nemo jure potest; or

〈 in non-Latin alphabet 〉

, (Tit. 1, 7.) Inculpati.
↵

*
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 [*] 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.
↵

*
"Tarraconesis provinciae episcopi in urbem Barcinonensem, &c."
↵

*
"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; [*] 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.
↵

*
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.

↵

*
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 [*])
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.

↵

*
"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.
↵

*
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! [*] 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.
↵

*
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!

↵

†
From this head I have already, in the former part of the work, extracted what seemed to be most necessary.
↵

§

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, [*] comprehending THREE or FOUR of them, otherwise called THRYHING,
[in the said law, as published by Mr. Lambert, it is also called TRIHINGE, [†] 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.

↵

*
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.
↵

†
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.

↵

*

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 (〈 in non-Latin alphabet 〉) ‘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’ (〈 in non-Latin alphabet 〉) "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.)

↵

1.
1.
Vous nous dires par vous serements si tres tous sont qui la devoient venir a la jornee.

↵

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.

↵

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.)

↵

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.
(mTo 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: nand 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.)

↵

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.

↵

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.

↵

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.
↵

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.

↵

9.
9.
De chescun TORT fait per les ministres l' Roy, et autres al cominaltie del 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.

↵

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.

↵

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.

↵

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.
↵

14.
14.
Des distourbes des fornissements des loyalx judgements, et d' fornissors de forceous, et des ossessors, et consentants.

↵

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.
↵

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.

↵

17.
17. "De chescun forstall faits en le common chemin."
↵

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.

↵

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.

↵

20.
20.
D' chescun outragious distresse ou en autre fee, ou en market pur forrein 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.

↵

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. ’

↵

y
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.

↵

23.
23.
Des butchers et queux vendont chair suffenne pur sane, et gastre pur bien cit.
zThose 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.

↵

24.
24. "D' ceux qui vendont vine perry pur sanc."
↵

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."
↵

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."
↵

27.
27. "Des scissors de burses."
↵

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.

↵

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.

↵

30.
30. "D' sesors et hauntors d' faux dice."
↵

31.
31. "D' outrageous tolners."
↵

32.
32. "D' touts trecheors et deceivers."
↵

33.
33. "D' touts manners 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, [*] 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 [*] 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, [†] 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.’

↵

*
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▪
↵

*

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.

↵

†
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.
↵

*
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.
↵

†
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.
↵

§
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.
↵

*
I. e. proper Certificates of a legal excuse, or admissible reason for their absence from the View of Frankpledge.
↵

*
See Tracts on "National Defence by a Free Militia," p. 40 and 41.
↵

*
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.
↵

*

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, [*]" 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 [‡] ‘ 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] "NECESSITY has no law." [2] ‘ Necessity makes lawful what, otherwise, is not lawful. ’ [3] "The safety of the people" (which even bad ministers will pretend to regard) "is the supreme law." [4] "Necessity binds the law." [5] ‘ Necessity scorns the bands of law. ’ [6] ‘ 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 [*] 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," [†] 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 [‡], 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 [*]. 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 [*];" 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 [*] 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 ’ [†]; 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. 〈 in non-Latin alphabet 〉 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 [*], 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 [*]; 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 [*] 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, (〈 in non-Latin alphabet 〉, 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.

↵

*
Rom. xii. 2.
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‡
1 Cor. ii. 6. Jom. iv. 4.
↵

1.
(1.) "Necessitas non habet legem."
↵

2.
(2.) ‘Necessitas facit licitum quod alias non est licitum.’
↵

3.
(3.) "Salus populi suprema est lex."
↵

4.
(4.) "Necessitas vincit legem."
↵

5.
(5.)
Necessitas legum vincula irridet.

↵

6.
(6.) "Nihil magis justum est, quam quod necessarium est," &c. &c.
↵

*
See the protest of a private person against every suspension of law, &c. p. 25 to 44.
↵

†
It is better to endure ALL adversities, than to assent to ONE evil measure.
↵

‡
"He that soweth iniquity shall reap vanity: and the rod of his anger shall fall." Prov. xxii. 8.
↵

*
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,

〈 in non-Latin alphabet 〉

. 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!
↵

*

〈 in non-Latin alphabet 〉
, 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," (

〈 in non-Latin alphabet 〉

, 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 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!
↵

†
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!
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*
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 non-Latin alphabet 〉

, 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
(
〈 in non-Latin alphabet 〉
, 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."
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*
For,
what fellowship is there between RIGHTEOUSNESS and ILLEGALITY? (〈 in non-Latin alphabet 〉;) and what communion to LIGHT with DARKNESS? and what concord to Christ with Belial?
2 Cor. vi. 14.

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*
"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.

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*

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.

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*
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.’

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*

"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 [†], 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 [*] 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 [*] and DECURIAE [*]) 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 [†] 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[*].
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 [†]. 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 [*], 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.

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†
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.

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*
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.

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*

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?

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*

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.
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†

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.)

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*
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.
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†
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.
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*
See Rerum Anglicarum Scriptores post Bedam Piaecipui, &c. p. 343-348. London 1596.
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*
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.
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*

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. ’

↵

*
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.
↵

*
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 [*],
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.
↵

*
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.
↵

*

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.
↵

†
‘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.

↵

*
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

↵

*
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

↵

†
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.

↵

*

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.

↵

‡
Referring to Mr. Lambard's explanation of AesTIMATIO CAPITIS.
↵

*
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. [†]
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; [†] 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.
↵

†
"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.

↵

†

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.’
↵

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 [*], 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 [†].

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 [*], 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 [*], 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 [*]; 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.

Notes

*
"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.

↵

†
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
〈 in non-Latin alphabet 〉
, of which the learned Sheringham has given some instances in his tract de Anglorum Gentis origine, p. 278.

↵

*
See ‘Equitable Representation necessary to the Establishment of Law, Peace, and good government,’ &c. p. 22-29.
↵

*

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.

↵

*
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.

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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 [*] 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, (〈 in non-Latin alphabet 〉, "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 (〈 in non-Latin alphabet 〉, 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 [*], 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 [*], 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.

Notes

*

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 [*], 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.

↵

*
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.
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*
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.
↵

*

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.

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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 [*]; 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 [*], 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 [*], 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 [†], (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 [*] 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 [†], 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 [*], was elected archbishop of Canterbury by the king, annuente plebe & clero [†]; this was done in communi consilio apud Windsore [‡], 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 ‖, 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 [*], 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 [*]
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. [*] 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, [*] 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. 〈 in non-Latin alphabet 〉, 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.’ [*] 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. ’ [*] 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 [†] 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 [*]."

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.’ [*] 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 [†] 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 [*], 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 [†]. But the grand enemy to law and right, 〈 in non-Latin alphabet 〉, 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. ’ [*]

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 [*], 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.’ [*] 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. ’ [*] 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. ’ [*] 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. ’ [†]

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 [*]) 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 [*] 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. ’ [*] 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. ’ [*]

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 [*], 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 [*], 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 [*]. 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 [*] 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 (〈 in non-Latin alphabet 〉) 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.

Notes

*
See second note in p. 92. "Leges Edgari," &c.
↵

*
For cleri.
↵

*
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.
↵

†
37, 39. 2 Inst. 15. Saxon Chron. sub anno 1099. p. 208, 210. Flor. Wig. &c. Mat. Par. 39.
↵

*
"The office of a court bishop."
↵

†
Rights of the kingdom, p. 118, 133, 140, &c.
↵

*
Sax. Chr. p. 306.
↵

†
Eadmer.
↵

‡
Hoveden.
↵

‖
Malmsb.
↵

*
Vide Sax. Chr. sub An. 1127.
↵

*

S. Valentinus Clari, et Flaviae nobiliss. Terracinensium filius, defuncto Avito, à CLERO et POPULO ejusdem civitutis episcopus electus,
&c.

↵

*
Non solum a clero, sed etiam ab universo populo solemniter ad PONTIFICATUS [*] 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.
↵

*
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!
↵

*
See p. 65.
↵

*

Aguellus Fundanus, episcopus, Tarracinensem ecclesiam administravit, EX IMPERIO MAGNI GREGORII,
&c. (tom. I. p. 1291.)

↵

*

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.)

↵

†
Gregorius MONACHUS Casinensis, a Paschali II. pontifice ELECTUS, &c.
↵

*

〈 in non-Latin alphabet 〉
(says Balsamon)

〈 in non-Latin alphabet 〉

, &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.
↵

*
"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!"

↵

†

Metropolitanus episcopus a comprovincialibus episcopis, clericis VEL populis electus,
&c. Howel's Synop. can. p. 241.

↵

*

De comprovincialibus vero ordinandis, cum consensu metropoliti cleri VEL civium,
&c. (Ibid. p. 245.)

↵

†
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.
↵

*
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 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 non-Latin alphabet 〉
) 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.

↵

*

Ne quis pecuniâ, aut SECULARIUM POTESTATUM ope, sed LIBERA-TANTUM CLERI POPULIQUE ELECTIONE promoveatur.
See his "Codex Canonum Ecclesiae primitivae vindicatus," &c. p. 209.

↵

*

〈 in non-Latin alphabet 〉
See bishop Beveridge's "Codex Canonum Primitivae Ecclesiae," can. 30. p. 442.

↵

*
See Capitularia Caroli Magni, lib. i. 83.
Ut episcopi PER ELECTIONEM CLERI et POPULI secundum statuta canonum de propria diocesi elegantur.

↵

†
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.)
↵

*
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!
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*
"—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.

↵

*

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.

↵

*
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.
↵

*

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. ’ [*] 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 [†] 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". [*] 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 [*]. 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 [†], ‘ 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 [*], ‘ 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, ’ 〈 in non-Latin alphabet 〉, presumptuously ratified and confirmed [*] 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.

↵

*

Antecessorum enim vestrorum magisterio semper NOSTROS LIBENTER SUBDIMUS, a quo recordamur nostros accepisse dignitatem ecclesiasticam.
p. 100.

↵

†
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.
↵

*

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.’

↵

*
—
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.)

↵

†
—
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.

↵

*

‘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.

↵

*
"—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 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, ‘ 〈 in non-Latin alphabet 〉,’ 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: 〈 in non-Latin alphabet 〉. 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.’

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*
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.

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*

‘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.

↵

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.
ANSWER.

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?

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 [*]; 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.

Notes

*
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.

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An account of the ancient division of the English nation into hundreds and tithings: the happy effects of that excellent institution; ...Intended as an appendix to several tracts on national defence, &c. By Granville Sharp.

Sharp, Granville, 1735-1813.

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1106023900

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9781106023902

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K114902.000

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CW3324480481

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0996200400

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— An account of the ancient division of the English nation into hundreds and tithings: the happy effects of that excellent institution; ...Intended as an appendix to several tracts on national defence, &c. By Granville Sharp., Sharp, Granville, 1735-1813.. 370p. ; 8⁰. London :: printed by Galabin and Baker,. 1784.. [Reproduction of original from the Harvard University Law Library.] [English Short Title Catalog, ESTCT148329.] [Electronic data. Farmington Hills, Mich. : Thomson Gale, 2003. Page image (PNG). Digitized image of the microfilm version produced in Woodbridge, CT by Research Publications, 1982-2002 (later known as Primary Source Microfilm, an imprint of the Gale Group).]

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