period of our hiftory. He has not expreffed the manner in which the Saxon militia were called out into the field; nor, indeed, do we find any proper folution of this matter in the writings of our hiftorians and antiquaries,

To those who are fond of investigations into antiquity, it will appear an object of much curiofity to afcertain how the military force of our ancestors was regulated; and it may not, perhaps, be thought, that we exceed the bounds of our province, if we hazard a few reflections on this subject.

In conformity to our Author's fentiments, we fhall fuppofe, that property, among the Anglo-Saxons, was partly feudal-and partly allodial; and, on this foundation, we fhall build our realoning. In fupplying an omiffion in any author, it is proper to reafon from the principles he has adopted.

In those counties, which were purely feudal, there can be little doubt, but that the command of the militia was claimed by thofe Eails to whom they had been granted. But the bulk of the territory of the kingdom was, in thofe times, poffeffed by men over whom the Earls had no jurifdiction; by men, who enj yed their eftates entirely to their own ufe, and who were amenable to no fuperior. In divifions then, chiefly occupied by allodial proprietors, the command of the militia could not be exercifed by the feudal Lords. A great jealousy, it may also be remarked, fubfifted naturally between feudal and allodial proprietors. Those who held by tenure would not chufe to fubmit but to their fuperior Lord; nor would their Lord or Earl be willing to fee them fubmit to any other officer. Thofe, on the other hand, who poffeffed free lands, would be averle from all fubmiffion to a feudal commander, as he was of a different order from themselves; and as, at a time, when there were few charters, and when property was not very well fecured, fuch fubmiffion might be constructed into a holding; and their lands be thus ravished from them.

J

It seems, therefore, perfectly obvious, that the allodial and feudal militia were governed by different officers. But while we know with certainty the commanders of the latter, has history preferved no memorial by which we may form a probable conjecture concerning thofe of the former ?

The compiler of the laws, afcribed to Edward the Confeffor, has affirmed, in general, that the Saxon militia were commanded by an annual officer, under the denomination of Heretoch, who was chofen into that office by the freeholders of the Folkmotes, or county courts. These laws, we well know, are of doubtful authority, and must not be regarded as entirely conclufive on any subject. But their compiler had

See Wilkins's edition of the Saxon Laws, p. 205.

certainly

certainly fome foundation for what he has afferted on the prefent occafion; and we fhould think, that he has ignorantly applied to all the counties of England, what was only appli cable to a certain number of them. The Earl poffeffed the military fway over his tenants and vaffals; and the Heretochs muft have commanded the allodial proprietors. This we are difpofed to confider as a solution of the matter: in relation to topics where the obfcurities of time do not allow us to arrive at demonftration, we must be satisfied with probability.

Sir Henry Spelman, who is always commended, because he is feldom read, has fuppofed, that, during the Norman period, the militia was conftantly commanded by the Earls. He does hot, however, affign the reason of this alteration: he perceived not, that in the times to which he refers, the allodial lands had been converted into feuds. All the counties had become feudal, and were governed in a feudal manner; that is, by Earls.

But to return to our Author. In the defcription he has given of the hiftory of the laws of England, we are perpetually led to admire the extent of his knowledge, and the fignal perfpicuity with which he expreffes himself. It is impoffible, however, that we can attend him through his details on this extenfive fubject. They would conduct us beyond the limits we preferibe to ourfelves. It may be fufficient, that we give them the fanction of our warmest approbation.

There is one question, notwithstanding, in the course of his difcuffions, which he treats with a degree of candour, and in a ftrain fo masterly, that we cannot but tranfcribe his obfervations on it. The point we allude to has been the subject of the keeneft altercation: it is Whether the rights and liberties contained in Magna Charta, and Charta de Forefta are to be confidered as the ancient rights and liberties of the nation, or as the fruits of rebellion, and, of confequence, revokable?'

The manner of obtaining thefe charters, fays our Author, and the right the people have to the liberties contained in them, has been the fubject of much controverfy between the favourers of arbitrary power and the affertors of freedom; the one, contending that they were the fruits of rebellion, extorted by force and fraud, from a prince unable to refift, and therefore revocable by him or his fucceffors; and the others, that they were the antient privileges of the nation, which John had, con trary to his coronation oath, invaded, and which they therefore had a right to reclaim by arms. That they were obtained by force, is undoubted, and that John and many of his fucceffors looked upon them, therefore, as of no validity is as clear, even from the argument Lord Coke brings for their great weight, their being confirmed above twenty times by act of parliament. To what purpose so many confirmations, if the

kings had not thought them invalid, and had not, on occafions, broke through them; and were it as clear that they were not the antient rights of the people, it must be owned they were extorted by rebellion. But that they were no other than confirmations appears very plainly from the fhort detail I have heretofore given of the conftitution, and fpirit of the monarchy of the Saxons, and all the other northern nations.

As to any new regulations introduced in them, as fome there are, they are only precautions for the better fecuring those liberties the people were before entitled to, and it is a maxim of all laws, that he who has a right to a thing, hath a right to the means without which he cannot enjoy that thing.

The friends, therefore, to abfolute power, fenfible that the original constitution is against them, choose to look no farther back than the Conqueft. Then, fay they, the Saxon government and laws were extinguifhed, the English by the Conqueft loft their rights, the foreigners had no title to Englith liberties, and the Conqueror and his fon William acted as defpotic monarchs. Therefore, their fucceffors had the fame right, and it was treafon to think of controuling them. But how little foundation there is for this doctrine, may appear from what I obferved on the reign of the Conqueror. He claimed to be king on the fame footing as his predeceffors; he confirmed the Saxon laws, and confequently both Saxons and foreigners, when fettled in the kingdom, had a right to them. If he oppreffed the English, that oppreffion did not extend to all; and to those it did, it was not exercised as upon conquered flaves, but as upon revolted rebels. But, for argument fake, to allow that the English became flaves, and that the foreign lords had no right to the Saxon privileges, both which are falfe, how came the king to be defpotic fovereign over them? They were partly his own fubjects, freemen, according to the feudal principles, who ferved him as volunteers, for he had no right to command their fervice in England; or volunteers from other princes dominions, and to fay that freemen and their pofterity became flaves, because they are fo kind as to conquer a kingdom for their leader, is a moft extraordinary paradox.

But William the Conqueror, in fome inftances, and his fon in all, acted as defpotic princes; therefore they had a right fo to do. I answer, the triumvirs profcribed hundreds of the best Romans, therefore they had a right. It is as unfafe to argue from matter of fact to matter of right, as from matter of right to matter of fact. It is as abfurd to fay, Tarquin ruled abfolutely, therefore, the Romans were rightfully his flaves, as to fay the Romans had a right to liberty under him, therefore they were free.

• But

• But it may be faid the people quietly fubmitted, and new rights may be acquired, and new laws made, by the tacit confent of prince and people, as well as by exprefs legiflation. I allow it where the confent is undoubtedly voluntary, and hath continued uninterrupted for a long space of time; and how voluntary this fubmiffion was, we may judge from the terms they made with Henry the First, before they fuffered him to mount the throne. Befides, there are fome points of liberty, effential to human nature, that cannot, either by exprefs or tacit laws, be given up, fuch as the natural right that an innocent man has to his life, his perfonal liberty, and the guidance of his actions, provided they are lawful, when the public good doth not neceffarily require a reftraint. In fhort, never was there a worfe caufe, or worfe defended; and this maxim was what influenced the conduct of the Stuarts, and precipitated that unhappy houfe to their ruin.

John, who entertained the fame fentiments, had no refource to recover his loft rights, as he thought them, but the affiftance of the pope, and an army of foreigners. The first very cordially efpoufed his intereft. He was provoked, that he, who had humbled kings, fhould be controuled by petty lords, and that by thefe privileges he fhould be prevented from reaping that golden harveft he expected from England. He annulled the charters, commanded them to recede from them, and, on their difobedience, excommunicated them, first in general, and then, by name.

About the fame time arrived an army of veteran foreigners, that came to affift John, who had, in imitation of the Conqueror, diftributed to them the eftates of the barons. With these, and a few English lords, he took the field, and ravaged the country with a more than Turkish barbarity. The confederate barons faw the liberties they had contended for annulled; their lives and eftates in the most imminent danger, and, in a fit of defpair, invited Lewis, prince of France, to the crown, who, bringing over an army, faved them from immediate deftruction. However, this ftrengthened John. It was not for any to ftand neuter. Few chose to embark in an excommunicated party, and many, who faw flavery unavoidable, and nothing left but the choice of a mafter, preferred their countryman a king to a foreigner. The lofs of liberty now feemed certain, which ever prevailed; when the haughtiness of Lewis, and his want of confidence in the English noblemen who joined him, concurring with the death of John, and the innocence of his infant fon, providentially preferved the freedom of England.'

We have only farther to remark, that thofe of our Readers who have perufed the excellent Commentaries of Dr. Blackftone, and the Honourable Mr. Barrington's most learned and ingenious

3

ingenious obfervations on the ftatutes, chiefly the more ancient, will do well to turn likewife their attention to the prefent very valuable publication.

ART. VII. An Appeal to Common Senfe in Behalf of Religion. Vol. II. 8vo. 5 s. Boards. Cadell. 1772.

IN

N our Review for February 1767, we gave an account of the first volume of this ingenious and ufeful performance, and we are glad to see the continuation of it. The Author appears

in the agreeable light of a ferious and candid enquirer after truth, and feems extremely defirous of promoting the interefts of religion and virtue. The defign and the plan of his work are excellent; and though many of his Readers will undoubtedly differ from him in the application of his general principles. to fome particular points, yet, we are perfuaded, that every competent judge of the fubject will look upon the APPEAL TO COMMON SENSE as a work well calculated to bring fcepticism and infidelity into difcredit with the fober and thinking part of mankind, and will be glad to fee the Author's plan completed. The following advertisement is prefixed to the volume now before us :

• Some may think, that this Appeal ought to have fet out with a definition of Common Senfe; but the Author never meant an appeal to those who are destitute of this faculty, or need to be informed of its high authority. Common opinion, just or unjuft, may pass for common fenfe with the unthinking multitude; but a man of difcernment never admits vulgar prejudices or doubtful opinions into his idea of common fenfe; nor, in the multitude of appeals daily made to this tribunal, does he expect any other decision than what arifes neceffarily from the fimple authority of reafon, or that capacity of pronouncing on obvious truth and palpable abfurdity, by which rational beings are diftinguished from idiots and lower animals. In book 4. ch. 2. vol. 1. of this Appeal, there is exprefs mention of this characteristical power of the rational mind, which, on account of its quickness, clearness, and indubitable certainty, is there called fenfe; and on account of its being poffeffed in one degree or other by all of the rational kind, is called common fenfe. And in book 6. ch. 4. of the fame volume, inftances are given, not only of falfe, but nonfenfical, opinions, which commonly prevail, but cannot be imputed to common fenfe; and in that place, the right of appealing from common opinion, which is often on the fide of error, to common fenfe, which is always on the fide of truth, is largely infifted on; and this the Author thought fufficient to fuperfede the neceflity of a formal definition.

'Definitions have their ufe on difputable fubjects; but if one hould ask the judgment of another on the difference betwixt black and white, fweet and bitter, he would, in place of all definitions, fet black and white before him, and make him talte fweet and bitter: and in the present Appeal, the Author fhall content himself with fet