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• Founded upon that spirit of fanaticism which always actuates the body of fuperftition, one of the tests expected the perpetual interpo-. fition of Divinity, and the regular fufpenfion of the strongest powers of nature, in protection of impeached truth and in vindication of challenged innocence. The accufed being previously carried through all the rites of religion, that could give folemnity to the afion and infpire the foul with horror, he grafped the glowing iron in his naked hand, or plunged his naked arm into the boiling caldron. And, if the iron had burnt or the water fcalded him, he was inftantly pronounced guilty of the charge, and punished according to the crime.

But there was another kind of ordeal, which was formed upon the fame principle of fanaticifm, and yet determined difputes in a different manner; as impertinently expecting God to fuper-add miraculous effects to merely phyfical caufes in detection of guilt, as the former did to counteract the ordinary principles of nature in juftification of innocence. This is mentioned in a French capitulary of 828, a law of Athelstan, and the Textus Roffenfis. And by it the culprit, having a rope tied about him, was plunged two eils and a half deep in a river or pond, after folemn adjuration of him and the water; of him, not to undergo the trial if he was confcious of his guilt, and of the water, not to receive him into it unless he was innocent. If he funk, as naturally he would, he was acquitted. And he was condemned only if he floated, being then confidered as wanting in weight of goodness. This ftrange practice was derived to the Saxons from their Celtic ancestors. The Gauls, when they suspected their wives of infidelity and their infants of baftardy, even in the days of Julian the apoftate, made the former throw the latter into the ftream of the Rhine; and the mother was put to death on their finking, and restored to favour only on their fwimming. And this is well known to have lately continued the popular telt of witchcraft among ourselves; and almoft fubjected the poor wretches, as it had done the culprits before, to be either drowned in the trial or put to death for the crime.

There was also a fourth method of adjudging causes in this me chanical manner, without the affiftance of knowledge or the trouble of thought; that was very different from all the reft, and is spoken of in the Textus Roffenfis and a law of Canute. And the accused took an ounce of barley-bread and cheese, properly exorcifed, and began to eat it in the prefence of the appointed officers. If he could not fwallow it, or inftantly afterwards was feized with paleness and a fhivering, he was condemned; and, if not, acquitted.

To thefe fupernatural ftandards of their actions the Saxons were fo obftinately attached, that they continued in their courts under the influence of Chriftianity, and against the remonftrances of the clergy, to the Conqueft. They were even continued beyond it, and defcended to the reign of Henry the Second. And the ordeals of iron and water were then appealed to by the courts, regularly on all ac cufations of maiming. But the former was reftrained, as it proba bly was in the time of the Saxons alfo, to fuch defendants as ranked in the line of gentlemen, And the latter was appropriated to the lower orders of life. • The

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The punishments of crimes were not left by the Saxons to the arbitrary decifion of the judges, but were accurately afcertained by the legislature. And many of them, as among the Britons before, and among all nations in the infancy of civil polity, confifted folely of mulets. A robbery was prudently punished by a fine. But, contrary to all propriety and the fuggeftions of the Deity, even a murder was punished in the fame manner. Several corrections, however, were bodily. And fome crimes were rewarded with lofs of limb, fome with a feverer fort of Indian fcalping, others with abfolute flavery, and others again with actual hanging or drowning. The law of the Saxons was generally fo much the wifer, as it was lefs fanguinary than that of the prefent period. It exprefsly forbad any to be put to death for a theft of less than twelve-pence, at a time when that fum was equivalent to three pounds at prefent. In this particular we adhere to the letter, but have utterly forgotten the Spirit, of the inftitute. In others, we have renounced equally the fpirit and the letter. And, in confequence of both, we offer up yearly fuch hecatombs of human facrifices to the law of property, as our Saxon forefathers would have fhuddered to behold, even amidst the period of their wildeft barbarism.'

Mr. Whitaker, in his notes on the foregoing chapter, has pointed out fome mistakes into which Mr. Juftice Blackstone feems to have fallen in his celebrated Commentaries on the Laws. Thefe muft excite the curiofity of the lawyer and the antiquary, and will fhew at the fame time, how much the ftudies of the latter, with regard to a precife knowledge of our laws in their original state, require the attention of the former :

• The learned and accurate Mr. Juftice Blackstone, in his late Commentaries upon the Laws, has alfo made feveral mistakes concerning tythings, which it may be proper to point out here, before we proceed to other fubjects.

In vol. i. p. 133, he fays, that "Alfred,-to prevent the rapines and diforders which formerly prevailed in the realm, inftituted tythings; fo called, because ten freeholders with their families compofed one." And in p. 115, he adds, that "the institution of hundreds-he rather introduced than invented."

I have already fhewn in the text, that tythings were not inftituted by Alfred, and that hundreds were neither invented nor introduced by him. They were both parts of the great economy of the Germans. They both appear equally in France two or three centuries before the reign of Alfred. And the tything particularly, which is here attributed without hesitation to that monarch, and affirmed to be his own invention, while the hundred is fuppofed to be only introduced by him; this actually occurs in our own laws as early as the feventh century, though the hundred does not make its appearance till a confiderable time afterwards.

Nor did the tything, when it was inftituted, consist of ten freeholders only and their families. I have fully fhewn above the abfurdity of fuch an opinion. And on the beft ground, I think, I have converted the mere freeholder of our lawyers and historians

into a much more important perfonage, the actual lord of a township.

P. 114. "One of the principal inhabitants of the tything is annually appointed to prefide over the reft, being called the tythingman, the head borough (words which fpeak their own etymology, and in fome countries the borfholder, or borough's ealder, being fuppofed to be the difcreeteft man in the borough, town, or tything. Tythings, towns, or vills are of the fame fignification in law."

The worthy Judge has here afferted a tything to be the fame with a township. And his endeavour to fhew the truth of his pofition is attended with fuch an embarrassment of terms and fuch a confufion of ideas, as will appear very extraordinary to every admirer of this justly celebrated author.

The general affertion is plainly a mistake. And the ancient tything and township were very different divifions of our country. This appears very plain upon the face of thofe laws, which are our great and original authority for the inftitution of tythings. And the thirty fecond declares the prefident of a deanery to have had a jurif diction, not merely over a fingle township, but over feveral of them : ftatuerunt juftitiarios fuper quofque decem friborgos, quos Decanos poffumus appellare ;-ifti inter villas et vicinos caufas tractabant.

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But, had there been no fuch declaration in the laws of the Confeffor, yet the difference between a township and a tything would have been very apparent. The officer here meant by Sir William, as one of the principal inhabitants of the tything, annually appointed to prefide over the reft, and called tything-man, headborough, or borfholder," is a conftable; as appears from the terms ufed by him here and his exprefs declaration in p. 356. And the great and leading characteristic of a tything is this, That it should have a judicial authority lodged in the governor of it, and exercifed regularly in his own court of judicature. Statuerunt, fays the above-cited law concerning the Saxons, Juftitiarios fuper quofque decem friborgos; ifti-caujas tractabant. But where is the judicial authority of the mere head of a townfhip? And where is the judicature of a con. ftable? Is he the jufticiary of his diftrict? And is there a court convened by him, in which he prefides and the inhabitants plead? The very stating fuch questions is a decifive anfwer to fuch a pofition. The conftable is only the recent creation of our ftatute-book. And the whole of his office is to act minifterially in the execution of the law. He has not, and he never had, any judicial authority. And the court of a constable would be a folœcifm in polity.

P. 114-115. "Tythings, towns, or vills have the fame fignification in law.Thefe towns-contained each originally but one parish and one tything."

In the extract immediately before, our author had made the tything the fame with a township and alfo with a borough. And he has here made it the fame with a parish too. How are thefe pofitions to be reconciled? Has he not previously declared every tything, township, or borough to confift only of ten freeholders and their families? But did every borough confift only of ten fuch families? Was every borough and township inhabited exactly by the fame number of houfholds? Was every town and township in the kingdom

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formed into a diftinct parish? And did parishes originally contain only ten freeholders and their houfholds in each ?'

Chap. VI. treats of the genius and conftitution of the Saxon royalty, and of the nature and regimen of the Saxon lordships and towns. In the notes to this chapter Mr. Hume is charged with feveral mistakes:

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Mr. Hume afferts the Saxons to have been " divided into three ranks of men, the noble, the free, and the flaves" (p. 223—224).— "The nobles," he fays, "were called Thanes, and were of two kinds, king's thanes and leffer thanes. The latter feem to have been dependant upon the former, and to have received lands, for which they paid rent, fervices, or attendance in peace and war" (p. 224). Below the nobles" there were no middle rank of men" (Ibid.). "The lower rank of freemen were denominated Ceorles" (p. 226), and the upper were merchants or traders (p. 225-226). "But the most numerous rank by far feems to have been the slaves or villains" (p. 226).

Here is a number of mistakes. I fhall note them very briefly. The thanes were not all nobles. Only the royal ones or great feudatories were. And there was a middle rank below the nobles. The leffer thanes, or fub-feudatories, formed it. The lower order of freemen was not merely ceorles, or the upper merchants and traders. The upper confifted of the leffer thanes. And both the traders and ceorles, the free-foccagers of town and country, composed the lower. Nor did the villains and flaves form the laft clafs of all. They did not unite to form any. The villains were one order of men, and the flaves another. There were therefore five ranks of men inftead of three, in the gradations of the Saxon polity. And these were the nobles, the gentlemen, the freeholders, the villains, and the flaves.

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Nor did the thanes pay any rents for their lands. Nor did they perform any fervices for them, distinct from their attendances in peace and war. And, to fuppofe with Mr. Hume that they did either. one or the other, is to confound the military and free-foccage tenures together, and reduce the thane to a level with his ceorle.

The churls" feem to have been removeable at pleasure.-The flaves or villains were incapable of all property" (p. 226).

The churls, as free-foccagers, were the fame with our prefent freeholders, and therefore could not have been removable at pleafure. And even the villains were not, as I have already proved. But Mr. Hume has again confounded the villain with the flave, though fo ftrikingly distinguished from each other. Aad I have fhewn even the flaves to have been capable of property.

"The Saxons, who fubdued Britain, as they enjoyed great liberty in their own country, obftinately retained that invaluable posfeffion in their new fettlement" (p. 213).—“ A fierce and bold diberty" marked " thefe founders of the English government" (p. 213)♪ "The feeming liberty, or rather licentioufnefs, of the Saxons, &c." (p. 223).

Yet in p. 217, 219, 221, 224, 225, 226, and 227, all below the nobles are represented as in a state of abject dependence, subject

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to the tyranny of the others. And in p. 245 "the ceorles and.com mon people" are faid to have been "removeable at pleasure" from their lands, as being only "tenants during the will of their lords." How ftrangely carelefs, and how grofsly inconfiftent, are these accounts!

In p. 112. v. 2. fpeaking of the Norman polity, Mr. Hume fays thus. Below the military vassals were "what in a proper fense we call the people. A great part of them were ferfs, and lived in a ftate of abfolute flavery or villainage. The other inhabitants of the country paid their rent in fervices which were in a great measure arbitrary." And in p. 113 he goes on thus. "The towns were fituated either within the demeines of the king or the lands [the demefne lands] of the great barons, and were almost entirely fubjected to the abfolute will of their master."

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The flave and the villain are here confounded as before. other inhabitants were the free-foccagers, who paid no rent in fervices at all. And, if they had, thefe could not have been in a great measure arbitrary, as even thofe of the villain foccagers were determinate. The inhabitants of the towns held equally by free foccage. They paid ftated rents. And therefore they could not poffibly be almost entirely fubjected to the abfolute will of their mafter.' [To be concluded in our next.]

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L. ART. VIII. The School for Daughters: or, the Hiftory of Mifs Charlotte Sidney. In a Series of original Letters between Perfons in genteel Life. 12mo. 2 Vols. 5s. fewed. Bew.

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T is a common remark, that the ladies greatly excel the men in epiftolary writing. Though the prefent novel by no means confirms this remark, the perufal of it has fuggefted to us a method of accounting for the fact, without infinuating any thing to the difparagement of the lords of the creation Love, the firft fentiment that enters the heart of the fair, is the firft fubject of their correfpondence. On this darling theme, the young writer at firft tries her ftrength in short excurfions; confining herself to a real correfpondence with fome fair friend, and perhaps to the few interefting facts that occur in her own experience. Having thus gradually inured herfelf to flight, fhe at laft ventures into the regions of fancy and fiction, and perhaps draws up a feries of original letters for the entertainment of her friends and the public. It is not at all to be wondered at, that being thus regularly inftructed' and practifed in the fchool of love, the fair fex fhould become fuch adepts in the art of letter-writing. And perhaps it is owing chiefly to this circumftance, that the fupply of entertaining novels never fails to be equal to the demand. We think it very probable that this publication is the first production of fome female pen, which has lately been confecrated to love and friendship. Inftead of terrifying the young adventurer by furling the critic's wrinkled front,' and crying out, What

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