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"The longer thefe great officers had been establifhed, they rofe to higher degrees of confideration; and their authority was farther extended, from the fuperintendence of the king's houfhold, to the direction and management of the king dom. As, for the most part, they were originally chofen by the fovereign, upon account of their fuperior wealth, or abilities, which rendered them capable of fupport ing his dignity in the execution of the bufinefs committed to them; fo the truft and confidence which he repofed in them, together with the fhare of public adminiftration which they enjoyed, afforded them numberless opportunities of aug menting their private fortunes, and of increafing their influence. In proportion to their advances in wealth and power, they were in a condition to render their offices more permanent. They were originally nominated by the king during pleasure; but that fuperiority, which had been the inducement to their first promotion, became commonly more and more confpicuous during the continuance of their employments. It was, therefore, feldom found convenient to difplace them: and, even after their decease, the heir of that eftate which they had acquired was naturally regarded as the perfon beft. qualified, and who had a preferable claim to inherit their dignity. By long ufage, thefe offices were thus rendered hereditary in particular families. To this obfervation, however, the office of chancellor, in moft European countries, is an exception. As the chancellor was unavoidably a clergyman, who held his rank in the church, and the estate connected with it, only during life, he would commonly have neither any opportunity of fe1787.
curing the office to his family, nor any defire of annexing it to his ecclefiaftical dignity.
"Of the influence established by the great officers of the king's houfhold, the political conftitution of Germany affords a remarkable inftance. When the dominions of that empire, by the conquest of large territories in Italy, and in the Southern part of France, had been fo enlarged as to comprehend three distinct kingdoms, the empe ror was induced, in that fituation, to appoint three different fecretaries.
The officers of his houfhold were, upon this account, increafed to the number of feven. In the progrefs of the German government, the power of thefe great officers advanced, as that of the emperor declined; and after the im, perial dignity had become intimely elective, they affumed the privilege of propofing, to the national affembly, the fucceffor to the crown; from which they at length proceeded to claim a fole right of electing him. Hence the origin of that precife number of perfons who compofed the primitive German electors.
"The steward was generally the officer of greatest importance in the king's houfhold; because the fupiplying of his majelly's table with provifions was regarded as the chief concern of the family. We accordingly find that, in feveral countries of Europe, the person who enjoyed this hereditary office, attained a degice of rank and opulence which rendered him formidable to the fovereign. In France, the mayors of the palace, after having for a long time poffeffed the real power and authority of the crown, were at length emboldened to throw off the mafk, and openly to mount the throne.
"When the use of cavalry in war had become very extensive, and when that part of the feudal armies had the principal fare in deciding the fate of battles, the conftable, or marifhal, was frequently in a condition to difpute the fuperiority with the steward or mayor of the palace. Thus, in Germany, when the throne happened to be vacant the elector Palatine, the mayor of the palace, was anciently appointed, for preventing the bad confequences of an inter-regnum, to be the vicar of the empire. But in a fubfequent period, this high dignity was claimed by the elector of Saxony, the conftable; and, after violent difputes, and various determinations of the diet, was at last divided between those powerful competi
"In the ages of greater civility and improvement, when, from the complicated connections of fociety, its laws became numerous and of difficult interpretation, and when, from the anxiety of individuals to afcertain their rights, the charters and writings proceeding from the crown were multiplied in proportion, the fecretary, or chancellor, to whom the king committed that branch of business, was invefted with powers of the greatest confequence, and therefore was exalted to the highest rank.
"In those opulent and polifhed nations which have long been reduced under an equal and regular government; in which the impartial diftribution of justice is looked upon as almost a matter of course; and which the fovereign is accuf tomed to govern by influence, more than by the exertion of his prere gative; in fuch nations, the perfon who prefides over the public trea fury, who may be regarded as the fubilitute of the chamberlain, be
comes the great channel through which the revenue of the state is conveyed, and by which the autho rity of the crown is maintained.
It is hardly neceffary to re mark, that this diftribution of the bufinefs in the king's houthold, into five departments, reaches.fat below the fimple period of the Anglo-Saxon government which we are now confidering. But, on the other hand, it merits attention, that when the exaltation of the fovereign had multiplied the occupations be longing to these different branches, it became expedient, in fome of them, to appoint a variety of de puties; many of whom, in parti. cular kingdoms, rose by degrees to fuch confideration and rank, as to appear no longer in a fubordinate ftation, and even to make the ori gin of their appointment be forgot ten. This circumstance must not be overlooked in perufing the enumeration, given by many hiftorians, of the principal officers in the court, or houthold of particular princes.
"From the foregoing imperfect fketch of the powers of the forereign, as well as of the constitution and privileges of the Wittenagemote, we may be enabled, notwithstanding the darkness of our ancient hiftory, to form an idea of the original English constitution. How remote this was from an abfolute monarchy, must be apparent to every one, who confiders that the privilege of legislation, toge ther with that of determining peace and war, and even that of con trouling the executive power, was lodged in the national affembly. Neither can this government be deemed in a high degree, aristocra tical; fince the national council was compofed, not of a small junto of nobles, but of all the landed proprietors, comprehending a great
proportion of the whole people. It feems in fact, to be that fort of political fyftem which is likely to be established in all rude and extenfive countries; before a few individuals have accumulated fo Imuch wealth as enables them to domineer over their inferiors; and before the king, in confequence of his high ftation and prerogatives, has had leisure to acquire a revenue fufficient to overthrow and bear down any oppofition that can be apprehended from the moft opulent of his fubjects. It cannot, however, escape obfervation, that, although the powers committed to the monarch by the early Saxon conftitution, were fmall, they were not accurately defined; and that in the exercife of them he enjoyed, upon this account, a good deal of latitude. Accurate limitations of power, and a regular fyftem of fubordination, the fruit of experience and forefight, cannot be expected to characterize the inftitutions of a fimple people; who are ufually guided by their feelings more than by reflection, and who at tend more to the immediate effects of any measure, than to its remote confequences. As the Anglo-Sax
on princes were entrusted with every branch of public administration, in which the Wittenagemote did not think proper to interfere; their conduct was directed in a great meafure, by particular conjunctures, and by the different unforefeen events which accidentally required their interpofition. We need not be furprised, therefore, if in perufing the hiftory of that period, while we difcover ftrong marks of the weakness of the crown, we should also meet with fome extraordinary exertions of the prerogative; and fhould at the fame time obferve, that these were fuffered to pafs without cenfure, or even without notice. It is a common fource of mistake, among political writers, to confider thefe extraordinary exertions as proofs of the ordinary state of the government; and to adduce as an illuftration of the general practice, what is only the random and cafual exercife of a power, not yet brought to a regular standard. We fhall now examine the changes produced in the English conftitution from the reign of Egbert to the Norman conqueft."
Of the ORIGIN of the PETTY JURY, and the GRAND JURY,
have arrived at their complete efta blishment, a review of the circumftances from which they proceeded, and of the steps by which they were introduced, may not be improper.
"1. I had formerly occafion to obferve, that, under the govern ment of the Anglo-Saxon princes, the chief magiftrate of a county, or of a hundred, found it unneceflary, in the determination of law-fuits, to call a full meeting of the courts over which they prefided; and, for the greater difpatch of the bufinefs, as well as for the ease and convenience of the people, were accustomed to felect a certain number of the freemen, or allodial proprietors, in each particular caufe, to affift in giving a decifion. Hence the first idea of the petty jury was probably fuggested.
"In a fubfequent period, a fimi lar practice was adopted in the courts of a barony. When the vaffals of a fuperior had acquired hereditary fiefs, they were no longer under the neceffity of fubmitting to his arbitrary will; and in regulating their conduct, as well as in diftributing juftice among them, he found it expedient to act with their advice and concurrence. To have aflembled the whole of his vaffals, for the determination of every law-fuit, would have been too great a hardship upon them; but a moderate number were convened, in order to fatisfy the parties, and to give weight and authority to the fentence.
"The calling, occafionally, a number of the vaffals, in each cafe, to affift the fuperior, was a more natural expedient, than the ap pointment of certain permanent affeffors. It was attended with no trouble or expence; for every vaffal was bound not only to fight for the fuperior, but alfo to per
form fuch other services as might be requifite, in order to fupport his authority and dignity. According to the fimple notions of that age, these persons were fufficiently qua lified to determine the points referred to their decifion; more especially as they might receive advice and direction from the magistrate. In fome refpects they were held even preferable to every other fort of judges; being men of the fame rank and condition with the parties; and, from their fituation, having frequently accefs to know the ftate of the controverfy, as well as the circumftances of the facts in question.
« The introduction of juries in the courts of a barony, arofe from the establishment of hereditary fiefs; for, fo long as vaffals held their land pecarioufly, or even were not fecure of tranfmitting it to their pofterity, they had too much dependence upon their fuperior, to difpute his authority, either in fettling their differences or punishing offences. We may eafily fuppofe, therefore, that, under the AngloSaxon government, this mode of procedure was not very common; because the custom of fecuring landed eftates to the heirs of a vaffal was then far from being general. It is from the reign of William the Conqueror, that we may date the remarkable extenfion of jury-trials; proceeding partly from the imitation of Norman or French cuftoms; but still more from the completion of the feudal fyftem, and the con. fequent multiplication of hereditary fiets.
"It merits attention, that this inftitution had been hitherto limited to the hundred and county courts, and to thofe of a feudal barony, but. never had taken place in the judi ciary proceedings of the national council. The causes which came
under the cognizance of the Wittenagemote were not fo numerous, as to create much trouble to its members, or to fuggeft the meafure of devolving that branch of business upon any fort of committee, or partial meeting, in place of the full affembly.
"Upon the establishment of the Anglo-Norman parliament, its ordi mary judicial bufinefs was, in a short time, committed to the aula regis; a court which at first conlifted of feveral members, but was afterwards held by a single magiftrate, the deputy judge of the fovereign. This tribunal was properly the ordinary baron-court of the king; and, being in the fame circumftances with the baron-courts of the nobility, it was under the fame ne, ceffity of trying caufes by the intervention of a jury. As the vaffals of the crown were ufually more independent of the king, than the rear-vassals were of their immediate, fuperior; it is not likely, that, while justice was administered by the pares curie to the latter, the former would fubmit to the decifions of a fingle magiftrate, named at pleasure by the fovereign. We ind, accordingly, that, by a geneFal law in the reign of Henry the Second, either party in a law fuit was allowed to decline the customary mode of trial by single combat, and to demand that his caufe fhould be determined by an affize or jury of twelve perfons. From this time forward, there can be no doubt that jury-trials were admitted in all the courts of ordinary jurifdiction. They are exprefsly recognized and eitablished by the great charters of king John, and of Henry the Third, ..
When the office of the grand justiciary was abolished, in the reign of Edward the First, and when the
powers of the aula regis were distributed to the king's bench, the com. mon pleas, and the exchequer, it was natural for thefe courts to follow the fame forms of procedure which had been obferved by that high tribunal to which they were fubítituted. The former practice of determining law-fuits by a jury, was doubtlefs viewed, at the fame time, in the light of a privilege, which the nation would not have been willing to refign. The number of judges, in each of the court of Weltminter-hall, was much inferior to that of the ordinary fize; and, as they were not men of the fame rank with the parties, it was not likely that the fame degree of confidence would be repofed in, then. To have transferred the powers of an inftitution fo popular as, that of juries, to a fet of courts conftituted in this manner, would, notwithstanding the late advances of prerogative, have been a dangecous measure. What is called the petty jury was therefore introduced into these tribunals, as well as into their auxiliary courts employed to diftribute justice in the circuits; and was thus rendered, eflentially neceffary in determining caufes of every fort, whether civil, criminal, or fiscal.
"But, previous to the profecu-, tion of offences, there must be information of their exiftence; and frequently, too, the immediate interpofition of the magistrate is neceffary, to apprehend and imprison the offender. In a rude nation, however, especially if it is of confiderable extent, many crimes are likely to be hid from the public eye, and to escape the examination of any court. It appears, accordingly, that, in modern Europe, this branch of police had early be come an object of general attention.