On the ORIGIN and STRUCTURE of 



In Scotland, we know, that it was not till the latter part of the 

 fixteenth century, that freeholders were excluded from fitting 

 along with, their reprefentatives ; and though, during the pe- 

 riod of domeflic troubles that occurred between the reigns of 

 ROBERT I. and JAMES I. the feeblenefs of the crown appears 

 to have permitted fuch an ufurpation of fovereignty in the fub- 

 jec"l fuperiors, as to deprive their military vaflals of the title 

 and rights of freeholders, the indenture I have quoted proves 

 that they originally poiTefTed them. And the analogy of Eng- 

 land, where they never loft them *, but retain, at this day, 

 the name and privileges of freeholders, in common with the 

 tenants in capite, confirms powerfully the evidence which that 

 indenture affords. 



IT may further be remarked, as a circumftance extremely 

 favourable to the hypothefis 1 have offered, not only that all 

 freeholders owed military fervice, but that, in Saxon times, the 

 expeditio militaris formed an article of the trinoda neceffitas in- 

 cumbent 



* I KNOW Englifli antiquaries fiippofe there was a time when the vaflals of fubjedts 

 were admitted to the privileges of freeholders. But there is no veftigfc of evidence that 

 fuch an event ever took place, or that there was room for it, by their ever having been 

 deftitute of thofe privileges. The facl, I apprehend, was, that the vigorous admini- 

 flration of the Anglo-Norman princes prevented, in a great meafure, that ufurpation of 

 fovereignty in the fubjeft-fuperiors, which occurred in other countries. Hence, though 

 property was arranged in England according to feudal ideas, the vaflal preferved much 

 of his public privileges and natural equality as a citizen. Thus the valtiafor, or power- 

 ful vaflal of a feudal lord, was regarded as a fuperior perfon to a fimple miles, or petty 

 tenant in capite. Thus, the merifF alone could levy a diftrefs from vaflals, to compel 

 them to fulfil their obligations to their fuperiors. Thus the firft peer of the realm is 

 not only, in all civil cafes, fubjedt to the jurifdiftion of a jury of commoners, who may 

 be vaflals of fubjedls, but, in criminal cafes, is fubjecl to the grand jury, and, on an 

 appeal of felony or murder, may be convifted capitally by a petty jury of them. 

 And thus, too, the king always might have required the council of any free- 

 holder, by writ, commanding his attendance in parliament, where he consequently 

 might have fat and voted as an equal with his feudal lord. The ftatute HEN. III. 

 an. 9. cap. 14. feems to have arifen from the diftin&ion of ranks which the feudal law 

 had then rivetted. In the mandamus of that prince to the itinerant juftices, he directs 

 them to amerce all liable to be amerced, except earls and barons, " Qui coram concilio 

 " noftro amerciandi funt." By 27. Mag, Chart, they could be amerced only " per 

 " pares fuos." 



