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luxury, the measure of which is never full, and which cannot fail of impoverishing them, and bringing them into the moft flavilh dependance upon the will of the court; if they would act thus, they would find money flow into their coffers in a far greater abundance than they can ever hope to receive from the smiles of minifters ; at the same time that they would reside where a fhilling goes as far as a pound. In the profusion of a capital, the greateit estates are spent without making any unusual figure; but in the country, half the income would enable them to build and furnith coitly palaces, and raise whole cities around them to be witnesses of their splendour. It is a a moft happy thing to any country, when a sovereign gives all the encouragement in his power to promote this rural attention in nobles, which cannot fail of turning out highly beneficial to the whole community.' Our Traveller's account of Vienna gives us no very
advana tageous idea of that city; indeed, though he had letters of recommendation to several persons from whom he hoped to have received some interesting and valuable information, he was, he tells us, ftrangely disappointed, as he found a haughty reserve in every man of the least consequence, which, he adds, renders a retidence in any but a public character very disagreeable at Vienna. However, he accidentally met with a field-officer, a native of Milan, who was very tensible and communicative, from whom he learned many particulars, which he here delivers to the public,
We shall here close our review of a publication which hath afforded us considerable entertainment, and some information ; but we cannot help wishing that the Author had been more attentive to his language, which is extremely defective : although, in other respects, we think he has made a valuable adcition to the public stock of this kind of books ; and that his work may contribute both to the amusement of his readers, and the improvement of his country.
ART. VI. Sullivan's Treatise on the Feudal Law. and the Confli.
tution and Laws of England, &c. concluded. T HAT the power of our Kings, was in the earlieft times
precarious and limited, our learned Author has fhewn with much perspicuity; but as they came to assume a power superior to the laws, it was necessary that he hould inark the steps by which they arrived at it, and his enquiries on this delicate subject immediately follow his vindication of the original freedom of our constitution *.
See the former part of our account of this work in the last Month's Review.
The feudal laws kept monarchs under such subjection and restraint, that, till the age of Henry l. no perfect idea was entertained of an absolute monarchy ; but in the reign of this prince, a copy of the Pandects having been founi At Amalfi, the fovereigns of Europe, struck with the dignity of the Imperial despotism, fighed after the honours of an unbounded authority. Tney wittied no longer to be chief magistrates, and to have men for their subjects ; they were dispoled to be tyrants, and to domineer over fiaves. The excellency of the civil law was every where incuicated with zeal; and though it met not in England with so cordial a reception as in some other countries of Europe, it was yet a fource of power to several of its princes. Dr. Sullivan, accordingly, has very properly considered its influence in this light, and we must observe, that he has given a matterly account of the struggles which it occafioned. It seems, however, an omission in our ingenious Profeffor, that while he strongly remarks iis arbitrary tendency, he has failed to point out the advantages it produced. To an age involved in ignorance and barbarity, it presented enlarged ideas concerning the principles of jurisprudence, and the administration of justice. It inade law to be considered as a science. Hence judges became ambitious to think with precision, and to distinguish with accuracy.
In enumerat ng the other sources which contributed to give power to our princes, with the actual encroachments which many of them made on the rights of the people, our Author is neicher obfcure nor superficial; and before he leaves this subject, he explains the real prerogatives which they have a title to exercise.
From the King, or head of the community, he proceeds to consider the other orders of which it was composed. Here the history and nature of the differen: ranks of nobility attract his attention; and in unfolding and illustrating these topics, he communicates much historical information. It is obvious, from his details, that history is the best interpreter of law; and yet, what may appear fingular, there is perhaps no branch of knowledge with which lawyers are so little acquainted. This divifion of his work he concludes with an enquiry concerning Palatinates in Ireland, which the enlightened Antiquary will read with particular pleasure.
The state and history of the Commons are next explained by this judicious Writer. This subject is particularly interesting; and from his observations upon it we shall give our Readers the following extract.
• Having come, he observes, to the constitution of the house of commons as it stands at present, it will not be amiss to look back,
and see how far its present form agrees with, or differs from the feudal principles. These principles, we have seen, were principles of liberty ; but not of liberty to the whole nation, nor even to the conquerors; I mean as to the point I am now upon, of having a share in the legislation. That was reserved to the military tenants, and to such of them only as held immediately of the king. And the lowest and poorest of these allo, finding it too burthensome to attend these parliaments, or assemblies, that were held fo frequently, soon, by difuse, lost their privileges ; so that the whole legislature centered in the king, and his rich immediate tenants, of his barony. And it is no wonder the times were tempestuous, when there was no mediator, to balance between two fo great contending powers, and were it not that the clergy, who, though sitting as barons, were in fome degree a separate body, and had a peculiar interest of their own, performed that office, sometimes, by throwing themselves into the lighter scale, the government muft foon have ended either in a deiputical monarchy, or tyrannical oligarchy.
Such were the general aslen blies abroad in the feudal countries, but such were not strictly the wittenagemots of the Saxons, for ibeir conftitution was not exactly feudal. I have observed that the most of their lands were allodial, and very little beld by tenure. The reason I take to be this : On their settlement in Britain they extirpated, or drove out, the old inhabitants, and therefore, being in no danger from them, they were under no necessity of forming a constitution com. pletely military. But then those allodial proprietors being equally freemen, and equal adventurers with these who had lands given them by tenure, if any in truth had such, they could not be deprived of their old German rights, of fitting in the public assemblies. From the old historians, who call these meetings infinita multitudo, it appears that they sat in person, not by representation.
6 This constitution, however, vanished with the conquest, when all the lands became feudal, and none but the immediate military tenants were admitted. We find, indeed, in the fourth year of William the First, twelve men summoned from every county, and Sir Matthew Hale will have this to be as effeétual a parliament as any in England; but, with deference to so great an authority, I apprehend that there were not members of the legislature, but only affiftants to that body. For if they were part thereof, how came they afierwards to be dircontinued till Henry the Third's time, where we firft find any account of the commons? The truth seems to be, that they were fummoned on a particular occasion, and for a purpose that none but they could answer, On his coronation he had
sworn to govern by Edward the Confessor's laws, which had been some of them reduced into writing, but the greater part were the immemorial cuftom of the realm ; and he having distributed his confiscations, which were almost the whole of England, into his followers' hands, who were foreigners, and Itrangers to what these laws and customs were, it was necefsary to have them ascertained ; and, for this purpose, he summoned these twelve Saxons from every county, to inform him and his lords what the ancient laws were. And that they were not legislators, I think appears from this, that when william wanted to revive the Danish Jaws, which had been abolished by the Confessor, as coming nearer to his own Norman laws, they prevailed against him, not by refufing their consent, but by tears and prayers, and adjurations, by the foul of Ed. ward bis benefador.
• Thus William's laws were no other than the Confessor's, except that by one new one, he dextrously, by general words, unperceived by the English, because couched in terms of the foreign feudal law, turned all the allodial lands, which had remained unforfeited in the proprietor's hands, into military tenures. From that time, until the latter end of Henry the Third's reign, our parliaments bore the exact face of those on the continent in that age ; but then, in order to do some justice to the leffer barons, and the lower military tenants, who were entitled by the principles of the conftitution to be present, but disabled by indigence to be so in person, they were allowed to appear by representation, as were the boroughs about the same time, or soon after. The persons entitled to vote in these clections for knights of the shire, were, in my apprehension, only the minor barons, and tenants by knight service, for they were the only persons that had been omitted, and had a right before, or perhaps with them, the king's immediate focage tenants in capite.
• But certain it is, the law that setiled this had soon, with regard to liberty, a great and favourable extension, by which all freemen, whether holding of the king mediately or immediately, by military tenure or otherwise, were admitted equally to vote ; and none were excluded from that privilege, except villains, copy-holders, and tenants in antient demerne. That fo great a deviation from the feudal principles of government happened in fo fhort a time, can only be accounted for by conjecture. For records, or history, do not inform us. I shall guess then, that the great barons, who, at the end of Henry the Third's reign, had been subject to forfeiture, and obliged to submit, and accept of mercy, were duly sensible of the de. sign the king had in introducing this new body of legislators, and sensible that it was aimed against then, could not oppose 6
it. But, however, they attempted, and for some time fucceeded to elude the effects of it, by infifting that all freemen, whether they held of the king, or of any other lord, should be equally admitted to the right of the representation.
• The king, whose profession was to be a patron of liberty, Edward the First, could not oppose this; and as he was a prince of great wisdom and foresight, I think it is not irrational to fuppose, that he might be pleased to see even the vallals of his lords, act in some sort independently of them, and look immediately to the king their lord's lord.' The effect was certainly this, by the power and influence their great fortunes gave them in the country, the majority of the commons were, for a long time, more in the dominion of the lords than of the crown; though, if the king was either a wise or a good prince, they were even then a considerable check upon the too mighty peers.
Every day, and by infenfible steps, their house advanced in reputation and privileges and power ; but since Henry the Seventh's time, the progress has been very great. The increase of commerce gave the commons ability to purchale ; the extravagance of the lords gave them an inclination, ibe laws of that king gave them a power to alienate their intailed estates; insomuch that, as the share of property which the commons have is so disproportionate to that of the king and nobles, and that power is said to follow property, the opinion of many is, that, in our present situation, our government Jeans too much to the popular side; while others, though they admit it is so in appearance, reflecting what a number of the house of commons are returned by indigent boroughs, who are wholly in the power of a few great men, think the weight of the government is rather oligarchical.'
Dr. Sullivan, proceeding naturally in his subject, now prefents his reader with an account of vilio nage, copyhold tenants, and tenants in ancient demesne ; a portion of his treatise by no means incurious, and in which he leads us to admire bis various erudition.
After he has exhibited a delineation of the orders of mer in a feudal monarchy, and of the other peculiarities which diftinguish it, he goes on, to describe the progress of the English law, and to express the variations it has undergone. But, in order to execute this difficult task with the greater perspicuity, he gives a previous view of the laws and civil polity of the Anglo-Saxons. In this discussion, where he had to encounter the obfcurity which results both from antiquity and barbarism, he proceeds with deliberate and cautious fteps. There appears to us, accordingly, but one circumstance of importance which he seems to have overlooked, in segard to this dark and intricate.