Class Book. iM<:i;sK.\Ti:i) hy Pof/on- sfCUp. VIEW THE STATE OF EUROPE THE MIDDLE AGES BY HENRY HALLAM, LL.D., F.R.A.S. INCORPORATING IN THE TEXT THE AUTHOR'S LATEST RESEARCHES WITH ADDITIONS FROM RECENT WRITERS, AND ADAPTED TO THE USE OF STUDENTS BY WILLIAM SMITH, D.C.L., LL.D. NEW YORK : 40 East 14th Street THOMAS Y. CROWELL & CO. BOSTON: 100 Purchase Street \tn\ GIFT •OL. G. M. TOWNSEND OCT. 22. 1940 PREFACE. The present edition of the " History of the Middle Ages " has been undertaken with the concurrence of Mr. HalLam's representatives, who consider tliat a great injustice has been done to his literary character by the rej^rint of the obsolete edition of 1810, after it had been superseded by the author's own careful revision, and had been enriched by many sup- plemental notes, which added one-third to the original size of the work. A few words are necessary to explain the plan which the editor has adopted in order to bring the work within one volume, available for the use of students. It must not be regarded as an abridgment ; for though some omissions have been made, for reasons stated below, they are few in amount, and nothing essential or important has been left out. In fact, the great bulk of the book remains unchanged. But it is necessary to recollect the plan which Mr. Hallam pur- sued in the later editions of his work, in order to judge of the necessity and expediency of the alterations and omissions made in this edition. He informed his readers, in the Pref- ace to his '^ Supplemental Notes," " that he was always reluctant to make such alterations as would leave to the pur- chasers of former editions a right to complain," and that, being anxious to bring his work " nearer to the boundaries of the historic domain as it had been enlarged within his own age," he published in a separate form various disqui- sitions, in which his object was *'to reconsider those portions of the Work which related to subjects discussed by eminent writers since its publication, to illustrate and enlarge some passages which had been imperfectly or obscurely treated, and to acknowledge with freedom his own errors." Now, however much Ave may respect the author's motives in adopting this method, and his candor in acknowledging his errors, the plan is attended with the obvious inconvenience iii IV PREFACE. of having two books to consult instead of one, and of finding statements in the Text not unfrequently contradicted or mod- ified by corrections in the Xotes. Accordingly, in preparing the book for the use of Students, it seemed to the editor ad- visable to incorporate in the text the corrections made in the Notes, omitting such views as the author had himself rejected, and only inserting in the Supplemental Notes at the end of each chapter the information Avhich could not conven- iently be interwoven with the text. By this means, and by giving the conclusions at Avhich the author had arrived, with- out, m all cases, enumerating the opinions of writers which he mentioned only to reject, much space has been saved. Moreover, a further saving has been effected by occasionally abbreviating some of the less important remarks, and by leaving out most of the notes at the foot of the pages con- taining reference to authorities, which, however serviceable to historical inquirers, can be of no use to students in schools and colleges. The editor has added to the chapter on the Constitutional History of England various original documents which will be of great service to the student. Of these, the most im- portant are, the Statutes of William the Conqueror, the Char- ter of Liberties of Henry I., the Constitution of Clarendon, and the Assize of Clarendon, the Magna Charta, and the Con- firmation of the Charters. He has also inserted genealogical and other tables, and has supplied some information from ■ important works treating of the subjects discussed by Mr. Hallam Avhich have appeared since the last edition of his book. But such alterations and additions have been made sparingly, and it has been the aim of the Editor to present the work as nearly as possible in the form in which he con- ceives the Author would have wished it to appear if he had himself prepared an edition for the special use of students. Wm. Smith. London, May 10, 1871. CONTENTS. CHAPTER. PAGE. I. The History of France, from its Conquest by Clovis to THE Invasion of Naples by Charles VIII.: Part 1 1 Part II. — From the Accession of Philip of Valois to the Invasion of Naples by Charles VIII 38 Notes to Chapter I. — Part I. I. The Armorican Republic Go II. The Franks (J5 III. The Consulship of Clovis 05 IV. The Mayor of the Palace G5 V. Aquitaine 66 VI. The Subjection of tliG Saxons 66 VII. Charlemagne, Emperor 67 VIII. The Kingdom of Burgundy 67 IX. Authorities for French History 68 II. On THE Feudal System, especially in France: Part 1 69 Part II 89 Notes to Chapter II. I. The Salic and other Laws of the Barbarians . . . l.'JS II. Trihntarii, Lidi, and Cohini i;J9 III. Municipal Government 139 HI. The History of Italy, from the Extinction of the Car- LoviNGiAN Emperors to the Invasion of Naples by Charles Vlll.: Part 1 140 Part II 171 Note to Chapter III. Authorities for Italian History 225 IV. The History of Spain to the Conquest of Granada . . 227 V. History of Germany to the Dirt of Worms, in 1495 . . 261 VI. History of the Greeks and Saracens 293 VII. History of Ecclesiastical Power during the Middle Ages : Part 1 308 Part II 341 VIII. The Anglo-Saxon Constitution: Part 1 376 Notes to Chapter VIII. — Part I. I. The Brotwaldas 393 II.- Saxon Kings of all Eni;land 394 III. Eorls and Ceorls 3t)4 IV. Tlie Witenagemot 396 V. Trial by Jury 397 v VI CONTENTS. CIIAPTEPv. PAGE. VIII. Part II. — The Anglo-Norman Constitution .... 400 Notes to Chapter VIII. — Part II. I. The Legislation of the Great Council 4ol II. Duration of Distinction between Norinan and Saxon 431 III. Statutes of William the Conqueror 432 Part III. — The English Constitution 434 Notes to Chapter VIII. — Part III.: I. Municipal Rights of London 539 II. Popular Poetry 540 IX. On the State of Society in Europe During the Middle Ages: Part 1 551 Part II 585 Notes to Chapter IX. — Part II. I. Domestic Architecture 678 II. Petrarch's Laura B78 III. Early Legislative use of English 079 ORIGINAL DOCUMENTS. I. Charter of Liberties of Henry 1 541 II. Constitutions of Clarendon 541 III. Assize of Clarendon 543 IV. Magna Charta 544 V. Confirmation of the Charters 549 VI. Summons to the Parliament of H2()5 550 GENEALOGICAL TABLES. Of the Successors of Louis the Debonair . . . Of tlu! Successors of Hugh Capet Of th(! House of Valois of France Of tlie Second Ducal House of T.urgundy . . Of the Kings of Naples of tlie House of Anjou Of the Kings of Sicily of tlie Hou.se of Aragou Of tlie Titular Kings of Naples of the Second House of Anjou Of the Respective Titles of the Competitors to the Crown of Aragon 12 19 37 58 212 212 210 249 LISTS. Of Emperors during the Middle Ages, Of Popes during the Middle Ages . 201 308 THE STUDENT'S HISTORY OF THE MIDDLE AGES. CHAPTER I. THE HISTORY OF FRANCE FROM ITS CONQUEST BY CLOVIS TO THE INVASION OF NAPLES BY CHARLES VIII. PAR r I. § 1. Fall of the Roman Empire. §2. Invasion of Clovis. §3. The MEROVINGIANS, or first Race of French Kings. Accession of Pepin. §4. Tlie Caklovingians. State of Italy. §5. Cliarlemagne. His reign. §6. His Coronation as Emperor. §7. His Cliaracler. §8. Louis the Debonair. § 9. His Successors. § 10. Remarks upon theCarlovingian Period. § 11. Calamitous State of the Empire in the Ninth and I'enth Centuries. §12. The Hungarians. §13. The Normans. § H. Accession of Hugh Capet. § 15. "His first Successors. § 16. Louis VII. § 17. Philip Augus- tus. Conquest ot Normandy. § 18. War in Ijansuedoc. § 11). Louis IX. His Character. §20. Digression upon the Crusades. §21. Philip III. §22. Philip IV. Aggrandizement of Frencli Monarchy under his Heign. § 23. Suppression of the Knights Templars. § 21. Reigns of his Children. Question of Salic Law. § 25. Claim of Edward III. § 1. Before the conclusion of the fifth century the mighty fabric of empire whicli valor and policy had founded upon the seven hills of Home was finally overthrown in all the west of Europe by the barbarous nations from the North, whose mar- tial energy and whose numbers Avere irresistible. A race of men, formerly unknown or despised, had not only dismem- bered that proud sovereignty, but permanently settled them- selves in its fairest provinces, and imposed their yoke upon the ancient possessors. The Vandals were masters of Africa ; the Suevi held part of Spain ; the Visigoths possessed the re- mainder, witli a large })orti()n of Gaul ; the lUirgundians occu- pied the provinces watered by the Rhone and Saone ; the Ostrogoths almost all Italy. The north-west of Gaul, between the Seine and the Loire, some writers have filled with an Armorican re^niblic ; ^ while the remainder was still nominally subject to the Roman Empire, and governed by a certain Syag- rius, rather with an independent than a deputed authority. ' See Note I., " The Armorican Itepublic." 2, INVASION OF CLOVIS. Chap. I. Part I. § 2. At this time Clovis, king of the Salian Franks,^ a tribe of Germans long connected with Kome, and originally settled upon the right bank of the Rhine, but who had latterly pene- trated as tar as Tournay and Cambray, invaded Gaul, and defeated Syagrius at Soissons (a.d. 486). The result of this victory was the subjugation of those provinces which had pre- viously been considered as Roman. But as their allegiance had not been very strict, so their loss was not very severely felt ; since Anastasius, the Emperor of Constantinople, was not too proud to confer upon Clovis the titles of consul and patrician, which he was too prudent to refuse.^ § 3. Clovis was the founder of the Merovixgian dynasty. But the history of this period is so intricate, that it may assist the memory to distribute it into the following divisions : — I. The Reign of Clovis (a.d. 481-511). — Some years after his recognition by the Emperor, Clovis defeated the Alemanni, or Suabians, in a great battle at Zulpich, near Cologne. In consequence of a vow, it was said, made during this engage- ment, and at the instigation of his wife Clotilda, a princess of Burgundy, he became a convert to Christianity (a.d. 496). It would be a fruitless inquiry whether he was sincere in this change ; but it is . certain, at least, that no policy could have been more successful. The Arian sect, which had been early introduced among the barbarous nations, was predominant, though apparently without intolerance, in the Burgundian and Visigoth courts ; but the clergy of Gaul were strenuously at- tached to the Catholic side, and, even before his conversion, had favored the arms of Clovis. They now became his most zealous supporters, and were rewarded by him Avith artful gratitude, and by his descendants Avith lavish munificence. Upon the pretence of religion he attacked Alaric, king of the Visigoths, and by one great victory near Poitiers, overthrowing their empire in Gaul, reduced them to the maritime province of Septimania, a narrow strip of coast between the Rhone and the Pyrenees (a.d. 507). The last exploits of Clovis were the reduction of certain independent chiefs of his own tribe and family, who were settled in the neighborliood of the Rhine. All these he put to death by force or treachery ; for he was cast in the true mould of conquerors, and may justly be ranked among the first of his class, both for the splendor and the guiltiness of his ambition. II. The Reigns of the four Sons of Clovis (a.d. 511-561). — 2 See NoTK II., " The Franks." ^ See NoTK III., " The Consulship of Clovis." France. THE MEROVINGIAN DYNASTY. 3 Clovis left four sons; one illegitimate, or at least born be- fore his conversion ; and three by his queen Clotilda. These four made, it is said, an equal partition of his dominions, which comprehended not only France, but the western and central parts of Germany, besides Bavaria, and perhaps Suabia, which were governed by their own dependent, but hereditary,' chiefs. Thierry, the eldest, had what was called Austrasia, the eastern or German division, and fixed his capital at Metz ; Clodomir, at Orleans ; Childebert at Paris ; and Clotaire, at iSoissons. During their reigns the monarchy was aggran- dized by the conquest of Burgundy, and Provence, in Gaul it- self, while Thuringia, Suabia, and Bavaria, on the other side of the Khine, were added to their dominions. Clotaire, the youngest brother, ultimately reunited all the kingdoms. III. From the Death of Clotaire L to the Accession of Clo- taire II. (a.d. 561-613). — Ui)on the death of Clotaire I. a second partition among his four sons ensued ; the four king- doms of Paris, Soissons, Orleans, and Austrasia revived ; but a new partition of these was required by the recent conquests, and Gontran of Orleans, without resigning tliat kingdom, removed his residence to IJurgundy. The four kingdoms were reduced to three by the death of Caribert, king of Paris ; one, afterwards very celebrated by the name of Neustria, between the Scheldt and the Loire, was formed under Cliilperic, com- prehending those of Paris and Soissons. Caribert of Paris had taken Aquitaine, which at his death was divided among the three survivors ; Austrasia was the portion of Sigebert. This generation was fruitful of still more crimes than the last, redeemed by no golden glory of conquest. Fredegonde, the wife of Chilperic, diffused a baleful light over this period. But while she tyrannized with little control in the west of France, her rival and sister in crime, Brunehaut, wife of Sige- bert and mother of Thierry II., his successor, had to encounter a powerful opposition from the Austrasian aristocracy ; and in this part of the monarchy a new feature developed itself ; the great proprietors, or nobility, acted systematically with a view to restrain the royal power. Brunehaut, after many vicissi- tudes, and after having seen her two sons on the tlirones of Austrasia and Ikirgundy, fell into the hands of Clotaire II., king of the other division, and was sentenced to a cruel death.* Clotaire united the three Frank kingdoms. 4 Tlie names of Fredegnnrte and Bruncliant :ire distingnished oven in lli;it iilcc for tlie magnitude of their crimes; of tlie ;iti-ocities of Fredegonde none liave iloubted; and IJruneliaut lias met witli advocates in modern times, less, perliaps, from any fair presumptions of lier innocence tluin from compassion for tlie cruel death which slie 4 THE MEROVINGIAN DYNASTY. Chap. I. Part I. IV. Reigns of Glotaire II. and his son Dagohert I. (a.d. 613 -638). — The royal power, though shaken by the Austrasian aristocracy, was still effective. Dagobert, a prince who seems to have rather excelled most of his family, and to whose munificence several extant monuments of architecture and the ■ arts are referred, endeavored to stem the current. He was the last of the jNIerovingians who appears to have possessed any distinctive character V. From the Accession of Clovis II., Son of Dagohert, to Pepin HeristaUs Victory over the Neustrians at Testrij (a.d. 638-687). — After Dagobert the kings of France dwindled into personal insignificance, and are generally treated by later his- torians as insensati, or idiots. The whole power of the king- dom devolved upon the mayors of the palace, originally officers of the household, through whom petitions or representations were laid before the king.^ The weakness of sovereigns rendered this office important, and still greater weakness suf- fered it to become elective ; men of energetic talents and ambition united it with military command ; and the history of France for half a century presents no names more conspicuous tlian those oi Ebroin and Grimoald, mayors of Neustria and Austrasia, the western and eastern divisions of the French monarchy.^ These, however, met witli violent ends ; but a more successful usurper of the royal authority was Pepin Heristal, firsti mayor, and afterwards duke, of Austrasia. After becoming the acknowledged head of this part of the kingdom, • he put an end to the independence of Neustria also by the decisive battle of Testry, fought in 687. The battle of Testry is one of the turning-points in French history. It gave the death-blow to Merovingian royalty : it brought to a termination unilerwent. Hrunehaut was no unimportant pcrsonnfro in this history. Slie liad bfconic hateful to the Austrasian aristocracy by licr (lothic blood, and still more by her Roman principles of government. There vvas evidently a combination to throw off the yoke of civilized tyranny. It was a great conflict, which ended in the virtual dethronement of the house of Clovis. Much, therefore, may have been exaggerated by Fredegarius, a Burgundian by birth, in relating the crimes of l.runehaut. Jiut, unhappily, the antecedent presumption, in the history of tliat age, is always on the worse side. She was unquestionably endowed with a masculine energy of mind, and very superior to such a mere imp of audacious wickedness as Fredegonde. Hrune- haut left a great and almost fabulous name ; j)ublic causeways, towers, castles, in different i)arts of France, are popularly ascrilx-d to her. It has even been suspected by some that she suggested the appellation of I'.riincchild in tlie Nibelungen Lied. That there is no resemblance in the story or in the character, courage excepted, of the two heroines, cannot be thought an objection. s See Note IV., » The Mayor of the Palace." ^ The original kingdoms of Soissons, Paris, and Orleans were consolidated into that denominated Neustria, to which Burgundy was generally appendant, though distinctly governed by a mayor of its own election. But Aquitaine was, from the time of Dagobert I., separated from the rest of the monarchy, under a ducal dynasty, sprung from Aribert, brother of that monarch. See Notk V., " Aquitaine." Fkanck. accession OF PEPIN. 5 the struggle between the two great members of the Frank empire ; it assured the preponderance of Teutonic over Koman Gaul. Pepin fixed his residence at Cologne, and his family seldom kept their court at Paris. The kingdoms of Austrasia and Neustria rested on different bases. In the former the Franks were more numerous, less scattered, and, as far as we can perceive, had a more considerable nobility. They had re- ceived a less tincture of Koman policy. They were nearer to the mother country, which had been, as the earth to Antieus, the source of perpetually recruited vigor. Burgundy, a member latterly of the Neustrian monarchy, had also a powerful aris- tocracy, but not in so great a degree, probably, of Frank, or even barbarian descent. It is highly important to keep in mind this distinction between Austrasia and Neustria, sub- sisting for some ages, and, in fact, only replaced, speaking without exact geographical precision, by that of Germany and France. VI. From the Battle of Testry to the Accession of Pepin le Bref (a.d. 687-752). — From this time the family of Pepin was virtually sovereign in France, though at every vacancy kings of the royal house were placed by them on the throne. Charles Martel, indeed, son of Pepin, was not acknowledged, even in Austrasia, for a short time after his father's death, and Neustria attempted to regain her independence ; but he was soon called to power, defeated, like his father, the west- ern Franks, and became, in almost as great a degree as his grandson, the founder of a new monarcliy. But in 732 he was called upon to encounter a new and terrible enemy. The Saracens, after subjugating Spain, had penetrated into the very heart of France. Charles Martel gained a complete victory over them between Tours and Poitiers, in which 300,000 Mohammedans are hyperbolically asserted to have fallen. The reward of this victory was the province of Septi- mania, wliich the Saracens had conquered from the Visigoths. '^ Such powerful subjects were not likely to remain long contented without the crown ; but the circumstances under 7 Tlie victory of Charles Martel lias immortalized Iiis name, and may be justly reck- oned among those few battles of wliich a contrary event would liave essentially varied the drama of the world in all its subsequent scenes ; with Marathon, Arbella, the Me- taurus, Cliiilons.and Leipsic. Yet do we not judge a little too m\ich by the event, and follow, as usual, in the wake of fortune? Has not more frequent experience con- demned those wlio set the fate of empires upon a single cast, and risk a general bat- tle witli invaders, whose greater peril is in delay? Was not this the fatal error by whicli Koderichad lost his kingdom? Was it possible that the Saracens could have retained any permanent possession of France, except by means of a victory? And did not the contest upon the broad champaign of Toitou alford them a considerable prospect of success, whicli a more cautious policy would have withheld? 6 THE CARLOVINGIANS. Chap. I. Part I. which it was transferred from the race of Clovis are connected with one of the most important revolutions in the history of Europe. The Mayor Pepin, surnamed le Bref, to distinguish him from his grandfather, inheriting his father Charles Mar- tel's talents and ambition, made, in the name and with the consent of the nation, a solemn reference to the pope Zacha- rias, as to the deposition of Chilperic III., under whose nominal authority he himself was reigning. The decision was favorable ; that he who possessed the power should also bear the title of king. The unfortunate Merovingian was dismissed into a convent, and the Franks, with one consent, raised Pepin to the throne, the founder of a more illustrious dynasty (a.d. 752). In order to judge of the importance of this revolution to the See of Rome as well as to France, we must turn our eyes upon the affairs of Italy. §4. The Carlovingians. — The dominion of the Ostrogoths was annihilated by the arms of Belisarius and Narses in the sixth century, and that nation appears no more in history. But not long afterwards the Lombards, a people for some time settled in Pannonia, not only subdued that northern part of Italy which has retained their name, but, extending themselves southward, formed the powerful duchies of 8\)o- leto and P>enevento. The residence of their kings was in Pavia ; but the hereditary vassals, who held those two duchies, might be deemed almost independent sovereigns. The rest of Italy was governed by exarchs, deputed by the Greek emperors, and fixed at Ravenna. In Rome itself neither the peo])le nor the bishops, who had already conceived in part their schemes of ambition, were much inclined to endure the superiority of Constantinople ; yet their disaffection was coun- terbalanced by the inveterate hatred, as well as jealousy, with which they regarded the Lombards. But an impolitic and intemperate persecution, carried on by two or three Greek emperors against a favorite superstition, the worship of images, excited commotions throughout Italy, of which the Lombards took advantage, and easily Avrested the exarchate of Ravenna from the Eastern empire (a.d. 752). It was far from the design of the popes to see their nearest enemies so much aggrandized ; and any effectual assistance from the Emperor, Constantine (^opronymus, would have kept Rome still faithful. But having no liope from his arms, and ])rovoked by his obsti- nate intolerance, the pontiffs had recourse to France, and the service they had rendered to Pepin led to reciprocal obligations of the greatest magnitude. At the request of Stephen LL the FuANCE. CHARLEMAGNE. < new king of France descended from the Alps, drove the Lom- baids from their recent con(|uests, and conferred tliem upon the pope. Tliis memorable donation nearly comprised the modern provinces of liomagna and the March of Ancona. §5. CiiARLKMAGNE (a.d. 768-814). — The State of Italy, which had undergone no change for nearly two centuries, was now ra^jidly verging to a great revolution. Under the shadow of a mighty name the Greek empire had concealed the extent of its decline. That charm was now broken; and the Lom- bard kingdom, which had hitherto appeared the only competi- tor in tlie lists, proved to have lost its own energy in awaiting the occasion for its display. France was far more than a match for the power of Italy, even if she had not been guided by the towering ambition and restless activity of the son of Pepin. It was almost the iirst exploit of Charlemagne, after the death of his brother Carloman had reunited the Frankish empire under his dominion, to subjugate the kingdom of Lom- bardy (a.d. 774). Neitlier Favia nor Verona, its most con- siderable cities, interposed any material delay to his arms ; and the chief resistance he encountered was from the dukes of Friuli and lienevento, the latter of whom could never be brought into thorough subjection to the conqueror. Italy, however, be the cause what it might, seems to have tempted Charlemagne far less than the dark forests of Germany. For neither the southern provinces nor Sicily could have withstood his power if it had been steadily directed against them. Even Spain hardly drew so much of his attention as the splendor of the prize might naturally have excited. He gained, however, a very important accession to his empire, by conquering from the Saracens the territory contained between the Pyrenees and the Ebro. This was formed into the Spanish March, governed by the Count of Barcelona, part of which at least must be con- sidered as appertaining to France till the twelfth century. But tlie most tedious and difficult achievement of Charle- magne was the reduction of the Saxons. The wars with this nation, who occupied nearly the modern circles of Westphalia and Lower Saxony, lasted for thirty years. Whenever the conqueror withdrew his armies, or even his person, the Saxons broke into fresh rebellion, Avhich his unparalleled rapidity of movement seldom failed to crush without delay. From such perseverance on either side, destruction of the weaker could alone result. A large colony of Saxons were finally trans- ])lanted into Flanders and Brabant, countries hitherto ill- peopled, in which their descendants preserved the same 8 CHARLEMAGNE. Chap. I. Pakt I. unconquerable spirit of resistance to oppression. Many fled to the kingdoms of Scandinavia, and, mingling with the North- men, who were just preparing to run their memorable career, revenged upon the children and subjects of Charlemagne the devastation of Saxony. Tlie remnant embraced Christianity, their aversion to which had been the chief cause of tlieir re- bellions, and acknowledged the sovereignty of Charlemagne — a submission which even Witikind, the second Arminius of Germany, after such irresistible conviction of her destiny, did not disdain to make. But they retained, in the main, their own laws ; they were governed by a duke of their own nation, if not of their own election ; and for many ages they were distinguished by their original character among the na- tions of Germany.^ The success of Charlemagne on the eastern frontier of his empire against the Sclavonians of liohemia and Huns or Avars of Pannonia, though obtained witli less cost, was hardly less eminent. In all his wars the newly conquered nations, or those whom fear had made de})endent allies, were employed to subjugate their neighbors, and the incessant waste of fatigue and the sword was supplied by a fresh population that swelled the expanding circle of dominion. The limits of tlie new AVestern empire are not very exactly defined by contemporary writers, nor would it be easy to appreciate the degree of sub- jection in which tlie Sclavonian tribes were held. As an organized mass of provinces, regularly governed by imperial officers, it seems to have been nearly bounded, in Germany, by the Elbe, the Saale, the Bohemian mountains, and a line drawn from thence crossing the Danube above Vienna, and prolonged to the Gulf of Istria, Part of Dalmatia was comprised in the Duchy of Friuli. In Italy the empire extended not much be- yond tlie modern frontier of Naples, if we exclude, as was the fact, the Duchy of Benevento from anything more than a titular subjection. The Spanish boundary, as has been said already, was the Ebro. § 6. A seal was put to the glory of Charlemagne when Leo III., in the name of the Roman people, placed upon his head the imperial crown (a.d. 800). His father, Pepin, had borne the title of Patrician, and he had himself exercised, with that title, a regular sovereignty over Rome. Money was coined in his name, and an oath of fidelity was taken by the clergy and people. But the appellation of Emperor seemed to phiee his authority over all his subjects on a new footing. It was full 8 See Note VI., " The Subjection of the Saxons." Fkance. CHAUACTER OF ClIAKLEMAGXE. 9 of high and indefinite pretension, tending to oversliadow the free election of the Fraidvs by a fictitious descent from Augus- tus. A fresh oatli of fidelity to him as emperor was demanded from his subjects.^ § 7. In analyzing the characters of heroes it is hardly pos- sible to separate altogether the share of fortune from their own. The epoch made by Charlemagne in the history of the world, the illustrious families which prided themselves in him as their progenitor, the very legends of romance, which are full of his fal)ul()us exploits, have cast a lustre around his head, and tes- tify the greatness that has embodied itself in his name. None, indeed, of Charlemagne's wars can be compared with the Saracenic victory of Charles Martel ; but that was a contest for freedom, his for conquest ; and fame is more ]jartial to success- ful aggression than to patriotic resistance. As a scholar, his acquisitions were probably little superior to those of his unre- spected son ; and in several points of view the glory of Cliarle- magne might be extenuated by an analytical dissection. But, rejecting a mode of judging equally uncandid and fallacious, we shall find that he possessed in everything that grandeur of conception which distinguishes extraordinary minds. Like Alexander, he seemed born for universal innovation : in a life restlessly active, we see him reforming the coinage and estab- lishing the legal divisions of money; gathering about him the learned of every country ; founding schools and collecting li- braries ; interfering, but with the tone of a king, in religious controversies ; aiming, though prematurely, at tlie formation of a naval force ; attempting, for the sake of commerce, the magnificent enterprise of uniting the Khine and Danube ; and meditating to nundd the discordant codes of Roman and bar- barian laws into a uniform system. The great qualities of Charlemagne were, indeed, alloyed by the vices of a barbarian and a conqueror. Nine wives, whom he divorced with very little ceremony, attest the license of his private life, which his temperance and frugality can hardly be said to redeem. Unsparing of blood, though not constitution- ally cruel, and wliolly indifferent to the means which his am- bition prescribed, he beheaded in one day four thousand Saxons — an act of atrocious butchery, after which his perse- cuting edicts, pronouncing the pain of death against those who refused baptism, or even who ate flesh during Lent, seem scarcely worthy of notice. This union of barbarous ferocity with elevated views of national improvement might suggest 9 See Note VII., " Charlemagne, Emperor." 10 LOUIS THE DEBONAlll. Cuap. I. Pakx I. tlie parallel of Peter the Great. But the degrading habits and l)rute violence of the Muscovite place him at an immense dis- tance from the restorer of the em])ire. A strong sympatliy for intellectual excellence was the lead- ing characteristic of Charlemagne, and this undoubtedly biased him in the chief political error of his conduct — that of en- conraging the power and pretensions of the Inerarchy. But, perhaps, his gi-eatest eulogy is written in the disgraces of suc- ceeding times and the miseries of Europe. He stands alone, like a beacon ui)on a waste, or a rock in the broad ocean. His sceptre was the bow of Ulysses, which could not be drawn by any weaker hand. In the Dark Ages of European history the reign of Charlemagne affords a solitary resting-place between two long periods of turbulence and ignominy, deriving the ad- vantages of contrast both from that of the preceding dynasty and of a posterity for whom he had formed an empire which they were unworthy and unequal to maintain. § 8. Louis THE Debonaik (a.d. 814-840). — Under this ])rince, called by the Italians the Pious, and by the Erench the l)el)onair, or good-natured, ^° the mighty structure of his father's power began rapidly to decay. I do not know that Louis deserves so much contempt as he has undergone; but historians have in general more indulgence for splendid crimes than for the weaknesses of virtue. There was no defect in Louis's understanding or courage ; he was accomplished in martial exercises, and in all the learning which an education, excellent for that age, could supply. No one was ever more anxious to reform the abuses of administration ; and whoever compares his capitularies with those of Charlemagne will per- ceive that, as a legislator, he was even superior to his father. The fault lay entirely in his heart ; and this fault was nothing but a temper too soft and a conscience too strict. It is not wonderful that the empire should have been speedily dissolved; a succession of such men as Charles Martel, Pepin, and Char- lemagne could alone have preserved its integrity ; but the mis- fortunes of Louis and his people were immediately owing to the following errors of his conduct. Soon after his accession Louis thought fit to associate his eldest son, Lothaire, to the empire, and to confer the provinces of Bavaria and Aquitaine, as subordinate kingdoms, upon the two younger, Louis and Pepin, a.d. 817. The step was, in appearance, conformable to his father's policy, who had acted i" These names meant the same tliinj;. Piiin IkuI. even in good Latin, the sense of mitis, meek, forbeariug, or what tlie French call debonnaire. Fkance. LOUIS THE DEUONAIII. 11 towards liimself in a similar manner. But such measures are not subject to general rules, and exact a careful regard to characters and circumstances. The principle, however, which regulated this division was learned from Charlemagne, and could alone, if strictly pursued, have given unity and perma- nence to the empire. The elder brother was to preserve his superiority over the others, so that they should neither make peace nor war, nor even give answer to ambassadors, without his consent. Upon the death of either no further partition was to be made ; but whichever of his children might become the popular choice was to inherit the whole kingdom, under the same superiority of the head of the family. This compact was, from the beginning, disliked 'by the younger brothers; and an event upon which Louis does not seem to have calcu- lated soon disgusted his colleague, Lothaire. Judith of Bavaria, the emperor's second wife, an ambitious woman, bore him a son, by name Charles, wlioni both parents were naturally anx- ious to place on an equal footing with his brothers. But this could only be done at the expense of Lothaire, who was ill disposed to see his enijjire still furtlier dismembered for this child of a second bed. Louis i)assed bis life in a struggle with three undutiful sons, who abused his paternal kindness by constant rebellions. These were rendered more formidable by the concurrence of a different class of enemies, whom it had been another error of the emperor to provoke. Cliarlemagne had assumed a thorough control and supremacy over the clergy ; and his son was per- haps still more vigilant in chastising their irregularities, and reforming their rules of discipline. But to this, which they had been compelled to bear at the hands of the first, it was not equally easy for the second to obtain their submission. Louis, therefore, drew on himself the inveterate enmity of men who united with the turbulence of martial nobles a skill in managing those engines of offence which were peculiar to their order, and to which the implicit devotion of his cliarac- ter laid him very open. Yet, after many vicissitudes of fortune, and many days of ignominy, his wishes were event- ually accomplished. § 9. Upon the death of Louis the Debonair, his youngest son, Charles, surnamed the Bald, obtained most part of France, while Germany fell to the share of Louis, and the rest of the imperial dominions, with the title, to the eldest, Lothaire. This partition was the result of a sanguinary, though short, contest ; and it gave a fatal blow to the Empire of the Franks. 12 SUCCESSORS TO LOUIS. Chap. I. Part I. For the treaty of Verdun in 843 abrogated the sovereignty tliat had been attached to the eldest brother and to the imperial name in former partitions : each held his respective kingdom as an independent right. Tliis is tlie epoch of a final separa- tion between the French and German members of the empire. Its millenary was celebrated by some of the latter nation in 1843.11 SUCCESSORS OF LOUIS THE DEBONAIR. Louis the Debonair. (814-840). I Lothaire, emperor (ob. 855). Louis II., emperor (ob. 875). Lothaire, Charles, li. of k. of Lorraine Burgundy (ob. 86'.t). and Provence (ob. 863). 1 Louis III. Carloman (ob. 882). (ob. 884). I Pepin (ob. 838). Pepin II., k. of Aquitaine. Louis the Charles the German Bald, (ob. 876). k. of France I (ob. 877). Charles the Fat, k. and emjjeror (ob. 88S) . Louis le Begue (ob. 879). Charles the Simple (ob. D-Zald, the Fat, and the Simple, had time to pull down what the great legislator and conqueror had erected. Encour- aged by their pusillanimity and weakness, the nobility strove to revive the spirit of the seventh century. They entered into a coalition with the bishops, though Charles the Bald had often sheltered himself behind the crosier; and they com- pelled his son, Louis the Stammerer, not only to confirm their own privileges and those of the Church, but to style himself "King, by the grace of God and election of the people;" which, indeed, according to the established constitution, was '2 See Note VIII., " On the kingdom of Burgundy." 14 CALAMITOUS STATE OF THE EMPIRE. Chap. I. Taut I. no more than truth, since the absolute right to succession was only in the family. The inability of the crown to protect its subjects from their invaders rendered this assumption of aris- tocratic independence absolutely necessary. In this age of agony, Sismondi well says, the nation began to revive ; new social bodies sprung from the carcass of the great empire. France, so defenceless under the Bald and the Fat Charleses, bristled with castles before 930. She renewed the fable of Deucalion ; she sowed stones, and armed men rose out of them. The lords surrounded themselves with vassals ; and had not the Norman incursions ceased before, they would have met with a much more determined resistance than in the preceding century. ^^ The tlieory propounded by Thierry, and accepted by many French writers, to elucidate the Carlovingian period, requires a brief notice. Thierry maintains that the key to all the revo- lutions in two centuries is to be found in the antipatliy of the Ivomans, that is, the ancient inhabitants, to the Franks or Germans. The latter were represented by the house of Charle- magne ; the former by that of Robert the ]>rave, through its valiant descendants, Eudes, Robert, and Hugh Capet. But though tlie differences of origin and language, so far as they existed, might be by no means unimportant in the great revo- lution near the close of tlie tenth century, they cannot be relied upon as sufficiently explaining its cause. The partisans of eitlier family were not exclusively of one blood. The house of Capet itself was not of Roman, but probably of Saxon de- scent. It is certainly probable that the Neustrian French had come to feel a greater S3'mpathy with the house of Capet than with a line of kings who rarely visited their country, and whom they could not but contemi:)late as in some adverse relation to their natural and popular chiefs, lint the national voice was not greatly consulted in those ages. It is remarkable that several writers of the nineteenth century, however they may sometimes place the true condition of the people in a vivid light, are constantly relapsing into a democratic theory. They do not by any means underrate the oppressed and almost ser- vile condition of the peasantry and burgesses, when it is their aim to draw a picture of society ; yet iu reasoning on a politi- cal revolution, such as the decline and fall of the German dynasty, they ascribe to these degraded classes both the will and the power to effect it. The proud nationality which spurned a foreign line of princes could not be felt by an im- poverished and afflicted commonalty. 13 Sismondi, " Hist, des Fran5ais," iii., 218, 378; iv.,9. Fkance. the SCLAVONIANS. 15 § 11. These were times of great misery to the people, and the worst, perhaps, that Europe has ever known. Even under Charlemagne, we have abundant proofs of the calamities which the people suffered. The light which shone around him was that of a consuming fire. The free proprietors, who had once considered themselves as only called upon to resist foreign invasion, were harassed by endless expeditions, and dragged away to the Baltic Sea, or the banks of the Drave. Many of them, as we learn from his Capitularies, became ecclesiastics to avoid military conscription. But far worse must have been their state under the lax government of succeeding times, when the dukes and counts, no longer checked by the vigorovis administration of Charlemagne, were at liberty to play the tyrants in their several territories, of which they now became almost the sovereigns. The poorer land-holders accordingly were forced to bow their necks to the yoke; and, either by compulsion or through hope of being better protected, sub- mitted their independent patrimonies to tlie feudal tenure. But evils still more terrible than these political abuses were the lot of those nations who had been subject to Charle- magne. They, indeed, may appear to ns little better than ferocious barbarians ; but they were exposed to the assaults of tribes, in comi^arison of whom they must be deemed humane and polished. Each frontier of the empire had to dread the attack of an enemy. The coasts of Italy were continually alarmed by the Saracens of Africa, who i)ossessed themselves of Sicily and Sardinia, and became masters of the Mediterra- nean Sea. Though the Greek dominions in the south of Italy were chiefly exposed to them, they twice insulted and ravaged the territory of Rome (a.d. 840-849); nor was there any se- curity even in the neighborhood of the maritime Alps, where, early in the tenth century, they settled a piratical colony. § 12. Much more formidal)le were the foes by whom Ger- many was assailed. Tlie Sclavonians, a widely extended peo- ple, whose language is still spoken npon half the surface of Europe, had occcupied the countries of Bohemia, Poland, and Pannonia,^* on the eastern confines of the empire, and from the time of Charlemagne acknowledged its superiority. P>ut at the end of the ninth century, a Tartarian tribe, the Hun- garians, overspreading that country which since has borne their name, and moving forward like a vast wave, brought a 11 I am sensible of the awkward effect of introducing tliis name from a more an- cient fjcograpliy, but it saves a circumloentiou still more awkward. Austria would convey an imperfect idea, and the Austrian dominions conld not be named without a tremendous anachrouisni. 16 THE NORMANS. Chap. I. Part I. dreadful reverse upon Germany. Their numbers were great, their ferocity untamed. They fought witli light cavalry and light armor, trusting to their showers of arrows, against whom the swords and lances of the European armies could not avail. The memory of Attila was renewed in the devastations of these savages, who, if they were not his compatriots, re- sembled them both in their countenances and customs. All Italy, all Germany, and the south of France, felt this scourge; till Henry the Fowler and Otho the Great drove them back by successive victories within their own limits, where, in a short time, they learned peaceful arts, adopted the religion and followed the policy of Christendom (a.d. 934-954). § 13. If any enemies could be more destructive than these Hungarians, they were the pirates of the north, known ccmu- monly by the name of Normans. The love of a predatory li.e seems to have attracted adventurers of different nations to the Scandinavian seas, from whence tliey infested, not only by maritime piracy, but continual invasions, the northern coasts both of France and Germany. The causes of their sudden appearance are inexplicable, or at least could only be sought in the ancient traditions of Scandinavia. For, un- doubtedly, tlie coasts of France and England were as little protected from depredations under the Merovingian kings, and those of the Heptarchy, as in subsequent times. Yet only one instance of an attack from this side is recorded, and that before the middle of the sixth century, till the age of Charlemagne. In 787 the Danes, as we call those northern plunderers, began to infest England, which lay most immedi- ately open to their incursions. Soon afterwards they ravaged the coasts of France. Charlemagne repulsed them by means of his fleets ; yet they pillaged a few places during his reign. It is said tliat, perceiving on(^ day, from a port in the Mediter- ranean, some Norman vessels wliicli had penetrated into that sea, he shed tears, in anticipation of the miseries which awaited his empire. In Louis's reign their de[)red:itions upon the coast were more incessant, but they did not penetrate into the inhuid country till that of Charles the Bald. The wars betAveen that prince and his family, which exhausted France of her noblest blood, the insubordination of the provincial governors, even the instigation of some of Charles's enemies, laid all open to their inroads. They adopted an uniform plan of warfare both in France and England; sailing up navigable rivers in their vessels of small burden, and fortifying the islands which they occasionally found, they made these intrenchments at once an France. THE NORMANS. 17 asylum for their women and children, a repository for their plunder, and a place of retreat from superior force. Alter pillaging a town, they retired to these strongholds or to their ships ; and it was not till 872 that they ventured to keep pos- session of Angers, which, however, they were compelled to evacuate. Sixteen years afterwards they laid siege to Paris, and committed the most ruinous devastations on the neighbor- ing country. As these Normans Avere unchecked by religious awe, the rich monasteries, which had stood harmless amidst the havoc of Ctu'istian war, were overwhelmed in the storm. Perhaps they may have endured some irrecoverable losses of ancient learning ; but their complaints are of monuments disfigured, bones of saints and kings dispersed, treasures car- ried away. St. Denis redeemed its abbot from captivity with six hundred and eighty-five pounds of geld. All the chief abbeys were stripped about the same time, either by the enemy, or for contributions to the public necessity. So impoverished was the kingdom, that in 860 Charles the P>ald had great difficulty in collecting three thousand pounds of silver to subsidize a body of Normans against their country- men. The kings of France, too feeble to prevent or repel these invaders, had recourse to the palliative of buying peace at their hands, or rather precarious armistices, to Avhicli reviv- ing thirst of plunder soon put an end. At length Charles the Simple, in 918, ceded a great province, which they had already partly occupied, jiartly rendered desolate, and which has derived from them the name of Normandy. Ignomini- ous as this appears, it proved no impolitic step. Polio, the Norman chief, with all his subjects, became Christians and Frenchmen ; and the kingdom was at once relieved from a terrible enemy, and strengthened by a race of hardy colo- nists. No measure was so conducive to the revival of France from her abasement in the ninth century as the cession of Normandy, The Normans had been distinguished by a pecul- iar ferocity towards priests ; yet when their conversion to Christianity was made the condition of their possessing Nor- mandy, they were ready enough to comply, and in another generation became among the most devout of the French nation. An explanation of the new zeal for Christianity which sprung up among the Normans may be found in the ini]ior- tant circumstance that, having few Avomen with them, they took Avives (they had made AvidoAvs enough) from the native inhabitants. These taught their own faith to their children. They taught also their oavu language ; and in no other manner IS ACCESSION OF HUGH CAPET. Chap. I. Part L can we so well account for the rapid extinction of that of Scandinavia in that province of France. § 14. The accession of Hugh Capet (a.d. 987) had not the immediate effect of restoring the royal authority over France. His own very extensive hef was now, indeed, united to the crown ; but a few great vassals occupied the remainder of the kingdom. Six of these obtained, at a subsequent time, the exclusive appellation of peers of France — the Count of Flanders, whose fief stretched from the Scheldt to the Somme ; the Count of Champagne ; the Duke of Normandy, to Avhom F)rittany did homage ; the Duke of Burgundy, on whom the Count of Nivernois seems to have depended ; the Duke of Aquitaine, wliose territory, though less than the ancient king- dom of that name, comprehended Foitou, Limousin, and most of Guienne, Avith the feudal superiority over the Angoumois, and some other central districts ; and, lastly, the Count of Toulouse, Avlio possessed Languedoc, with the small countries of Quercy and Kouergue, and the superiority over Auvergue. Besides these six, the Duke of Gascony, not long afterwards united with Aquitaine, the counts of Anjou, Ponthieu, and Vermandois, the Viscount of Bourges, the lords of Bourbon and Coucy, with one or two other vassals, held immediately of the last Carlovingian kings. This was the aristocracy, of which Hugh Capet usurped the direction ; for the suffrage of no general assembly gave a sanction to his title. On the death of Louis V. he took advantage of tin; absence of Charles, duke of Lorraine, who, as the deceased king's uncle, was nearest heir, and procured his own consecration at Rheims. At lirst he was by no means acknowledged in tlie kingdom; but his contest with Charles i)roving successful, the chief vassals ultimately gave at least a tacit consent to the usurpation, and ])ermitted the royal name to descend undisputed upon his ])()sterity. But this was almost the sole attributi^ of sover- eignty which the lirst kings of the third dynasty enjoyed. § 15. For a long period before and after the accession of that family, France has, properly speaking, no national his- tory. The character or fortune of those who were called its kings was little more imi)ortant to tlie majority of the nation than those of foreign ])rinc('s. Undoubtedly, the degree of influence which they exercised with respect to the vassals of the crown varied according to their power and their proximity. Over Guienne and Toulouse the hrst four Capets had very little axithority ; nor do they seem to liave ever received assist- ance from them either in civil or national wars. With prov- France. SUCCESSORS OF HUGH CAPET. 19 inces nearer to their own domains, such as Normandy and Planders, they were frequently engaged in alliance or hostility ; but each seemed rather to proceed from the policy of inde- pendent states than from tlie relation of a sovereign towards his subjects. It should be remembered that, when the fiefs of I'aris and Orleans are said to have been reunited by Hugh Capet to the SUCCESSORS OF HUGH CAPKT. Hugh Capet, king, 0S7-99G. Robert, king, OOG-1031. I Hugh, crowned in liis father's Heniy I., Robert, Duke of Burgundy, lifethne (ob. lu:iO). king, lo:jl-10GO. Philip I., king, 1060-noS. Louis Vr. (hi Gros), king, llOS-1137. I Louis Vir. (le Jeune), king, 1137-1180. Philip n. (Augustus), king, 1180-1223. Louis VIII., king, 1223-1220. Louis IX. (St. Louis), Charles, count of Anjou and Provence, king, 122G-1270. founder of the Itoyul House of Kaples. Philip III. (Ic ITardi), Robert, count of Clermont, king, 1270-1285. founder of the House of'liourbon. I I I Philip IV. (le Bel), Charles, count of Valois, king, 1285-1314. founder of the liouse of Valois. I (See table, J). 43.) I \ \ ^1 Louis X. (le Hntiu), Philip V. (le Long), Cliarles IV. (le I'.cl), Isabella. king, 1314-131G. king, 1316-1322. king, 1322-1328. ni. Edward II. of I England. Jeanne, ni Philip, Edward III. king of Na\ arre, of England. ob. i:!4'J. I Charles, king of Navarre. crown, little more is understood than the feudal superiority over the vassals of these provinces. As the kingdom of Charlemagne's posterity was split into a number of great iiefs, so each of these contained many barons, possessing exclusive immunities within their own territories, waging war at their pleasure, administering justice to their military tenants and other subjects, and free from all control beyond the conditions 20 LOUIS VI. — LOUIS VIL Chap. L Pakt L of the feudal compact. At the accession of Louis YI. in 1108, the cities of Paris, Orleans, and Bourges, with the immediately adjacent districts, formed the most considerable portion of the royal domain. A number of petty barons, with their fortified castles, intercepted the communication between these, and waged war against the king almost under the walls of his capital. It cost Louis a great deal of trouble to reduce the lords of Montriiery, and other places Avitliin a few miles of Paris. Under this prince, however, who had more activity than his predecessors, the royal authority considerably revived. •Prom his reign we may date the systematic rivalry of the Prench and English monarchies. Hostilities had several times occurred between Philip 1. and the two Williams ; but the wars that began under Louis YI. lasted, with no long interrup- tion, for three centuries and a half, and form, indeed, the most leading feature of French history during the Middle Ages. Of all the royal vassals the dukes of Normandy were the proudest and anost powerful. Though they had submitted to do homage, they could not forget that they came in origin- ally by force, and that in real strength they Avere fully equal to their sovereign. Nor had the con(|uest of England any ten- dency to diminish their pretensions. § IC). Louis A^II. ascended the throne (a.d. 1137) Avith bett{;r prosjjects than his father. He had married Eleanor, heiress of the great duchy of (iuienne. But this union, which promised an immense accession of strength to the crown, was rendered unhappy by the levities of that princess. Reimdiated by Louis, who felt rather as a husband than a king, Eleanor immediately married Henry II. of England, who, already inheriting Normandy from his mother and An- jou from his father, became possessed of more than one-half of France, and an overmatch for Louis, even if the great \i\s- sals of the crown had been always ready to maintain its su- premacy. One might venture, perlia]is, to conjecture that the sceptre of Prance would eventually have passed from the Capets to the Plantagenets, if the vexatious quarrel with Becket at one time, and the successive rebellions fomented by Louis at a later period, had not embarrassed the great talents and ambitious spirit of Henry. § 17. But the scene quite changed Avhen Philip Augustus, son of Louis VII., came upon the stage (a.d. 1180). No ])rince comparable to him in systematic ambition and military enter))rise had reigned in Prance since Charlemagne. From his reign the French monaicliy dates the recovery of its lustre. Fraitck. PHILIP AUGUSTUS. — LOUIS VIIL 21 He wrested from the Count of Flanders the Vermandois (that uart of Ficardy which borders on the Isle of France and Champagne),^* and, subsequently, the county of Artois. But the most important conquests of Philip were obtained against the kings of England. Even llichard I., with all his prowess, lost ground in struggling against an adversary not less active, and more politic, than himself. But when John not only took possession of his brother's dominions, but confirmed his i;surpa- tion by the murder, as Avas very probably surmised, of the heir, Philip, artfully taking advantage of the general indigna- tion, summnied him as his vassal to the court of his peers. John demanded a safe-conduct. Willingly, said Philij) ; let him come unmolested. And return ? inquired the English envoy. If the judgment of his peers permit him, replied the king. By all the saints of France, he exclaimed, when further pressed, he shall not return unless acquitted. The Bishop of Ely still remonstrated that the Duke of Normandy could not come without the King of England ; nor would tlie barons of that country permit their sovereign to run the risk of deatli or imprisonment. What of that, my lord bishop ? cried I'hili]). It is well known that my vassal the Duke of Normandy acquired England by force. But if a subject obtains any accession of dignity, shall his paramount lord therefore lose his rights ? John, not appearing at his summons, was declared guilty of felony, and his fiefs confiscated. The execution of this sen- tence was not intrusted to a dilatory arm. Philip poured his troops into Normandy, and took town after town, while the King of England, infatuated by his own wickedness and cow- ardice, made hardly an attempt at defence. In two years Normandy, Maine, and Anjou were irrecoveraby lost. Poitou and Guienne resisted longer ; but the conquest of the first was completed by Louis VIIL, successor of Philip (a.d. 1223), and the subjection of the second seemed drawing near, when the arms of Louis were diverted to different but scarcely less advantageous objects. § 18. The country of Langnedoc, subject to the counts of Toulouse, had been unconnected, beyond any other part of France, with the kings of the house of Capet. Louis VII., having married his sister to the reigning count, and travelled himself through the coiuitry, began to exercise some degree ( f authority, chiefly in confirming the rights of ecclesiastical bodies, who were vain, perha])s, of this additional sanction to 1^ The priucipal towns ol'tiie VcniiaudDis are St. QiRiitiu and rtiuiiue. 22 WAR IN LANGUEDOC. Chap. I. Part I. the privileges which they already jDossessed. But the remote- ness of their situation, with a difference in language and legal usages, still kept the people of this province apart from those of the north of France. About the middle of the twelfth centurj^, certain religious opinions, Avhich it is not easy, nor, for our present purpose, material to define, but, upon every supposition, exceedingly ad- verse to those of the Church,^^ began to spread over Languedoc. Those who imbibed them have borne the name of Albigeois, though they were in no degree peculiar to the district of Albi. In despite of much preaching and some persecution, these errors made a continual progress ; till Innocent III., in 1198, despatched commissaries, the seed of the inquisition, with ample powers both to investigate and to chastise. Eayrnond VI., count of Toulouse, whether inclined towards the innova- tors, as was then the theme of reproach, or, as is more probable, disgusted Avith the insolent interference of the pope and his missionaries, provoked them to pronounce a sentence of ex- comniTinication against him. Though this was taken off, he was still suspected ; and upon the assassination of one of the inquisitors, in which IJaymond had no concern, Innocent pub- lished a crusade both against the count and his subjects, calling upon the King of France, and the nobility of that kingdom, to take up the cross, with all the indulgences usually held out as allurements to religious warfare (a.d. 1208). Though Philip Avould not interfere, a prodigious number of knights undertook this enterprise, led partly by ecclesiastics, and partly by some of the first barons in France. It was prosecuted with every atrocious barbarity Avhicli superstition, the mother of crimes, could inspire. Languedoc, a country, for that age, flourishing and civilized, was laid waste by these desolators ; her cities burned; her inhabitants swept away by fire and the SAvord. The Crusaders Avere commanded by Simon de Montfort, a man like Cromwell, whose intrepidity, hypocrisy, and ambi- tion marked him for the hero of a holy Avar. The energy of such a mind, at the head of an army of enthusiastic Avarriors, may Avell account for the successes which then apjieared mii'acu- lous. lUit ]\Iontfort Avas cut off before he could realize his ultimate object, q^n independent principality ; and Eayrnond was able to bequeath the inheritance of his ancestors to his son. Eome, hoAvever, Avas not yet appeased ; ui)on some new pretence she raised up a still more formidable enemy against '" For the real teii(>ts of the T.anjriicdooian scrtarios I refer to tlie hist chapter of tlie present work, wlicre tlie subject will be taken up again. FuANCE. LOUIS IX. 23 tlie younger Raymond (a.d. 1222). Louis VIII. suffered him- self to be diverted from the cuncjuest of Griiienne, to take the cross against the supposed patron of heresy. After a short and successful war, Louis, dying prematurely, left the crown of France to a sou only twelve years old. l)ut the Count of Toulouse was still pursued, till, hopeless of safety in so un- eci per Francos, Hanover, 1011. 28 THE CRUSADES. Chap. I. Part I. were cliiefly comprised in the maritime parts of Syria. Except the state of Edessa beyond the Enphrates," which, in its Lest days, extended over great part of Mesopotamia, the Latin possessions never reached mure than a few leagues from tlie sea. AVithin the barrier of Mount Libanus their arms might be feared, but their power was never establislied ; and the pro})het was still invoked in the mosques of Aleppo and Damascus. The principality of Antiocli to the north, the kingdom of Jerusalem with its feudal dependencies of Tri])oli and Tiberius to the south, were assigned, the one to Boemond, a brother of Kobert Guiscard, count of Apulia, the other to Godfrey of Boulogne, Avhose extraordinary merit had justly raised him to a degree of influence with the chief Crusaders that lias been sometimes confounded Avith a legitimate author- ity, lu the course of a few years Tyre, Ascalon, and the other cities upon the sea-coast, were subjected by the successors of Godfrey on the throne of Jerusalem. But as their enemies had been stunned, not killed, by the AVestern storm, the Latins were constantly molested by the Mohammedans of Egy})t and Syria. They Avere expt)sed as the outposts of Christendom, with no respite and few resour(;es. A Second Crusade (a.j). 1147), in Avhich the Emperor Con- rad III. and Louis VII. of France were engaged, each with seventy thousand caA'^alry, nrade scarce any diversion ; and that vast army Avasted aAvay in the passage of Natolia. The decline of the Christian establishments in the East is ascribed by AYilliam of Tyre to the extreme vicioiisness of their manners, to the adoption of European arms by the Ori- entals, and to the union of the Mohammedan principalities under a single chief. Witlioiit denying the operation of these causes, and especially the last, it is easy to perceive one more radical than all the three — the inadequacy of their means of self-defence. The kingdom of Jerusalem Avas guarded only, exclusive of European volunteers, by the feudal service of 8()0 knights, attended each by four archers on horseback, by a militia of 5,075 burghers, and by a conscription, in great exigencies, of the remaining population. William of Tyre mentions an army of 1,300 horse and 15,000 foot, as the greatest Avhicli had ever been collected, and predicts the utmost success from it, if Avisely conducted. This was a little before the irruption of Saladin. Nothing can more strikingly evince the " Edessa was a little Christian principality, surrounded by, and tributary to, the Turks. The inhabitants invited I5:ildwin, on liis pros:ress in the first crusade, and lie niaile no fcreat S(ru])le of supplanting tlie reigning prince, who indeed is represented as a tyrant and usurper. France. THE CRUSADES. 29 ascendency of Europe than the resistance of these Frankish acquisitions in Syria during nearly two hundred years. Sev- eral of their victories over the Moslems were obtained against such disparity of numbers, that they may be compared with whatever is most illustrious in history or romance. These, perhaps, were less due to the descendants of the first Cru- saders, settled in the Holy Land, than to those volunteers from Europe whom martial ardor and religious zeal impelled to the service. It was the penance commonly imposed upon men of rank for the most heinous crimes, to serve a number of years under the banner of the cross. Thus a perpetual supi)ly of warriors was poured in from Europe ; and in this sense the Crusades may be said to have lasted without inter- mission during the whole period of the Latin settlements. Of these defenders the most renowned were the military orders of the Knights of the TemyJe and of the Hospital of St. John; instituted, the one in 1124, the other in 111r) jurJTi6o;); tlie (iod of the Gnostics and of the Manichteans." See Martin, " Hist, de France," vol. iv., p. 477. 34 REIGXS OF CHILDREN OF PHILIP IV. Chap. I. Part I. be credible in one, it becomes infinitely improbable in so many. One may here be mentioned, though among the slightest re- semblances. The Gnostic emblems exhibit a peculiar form of cross, T ; and this is common in the churches built by the Templars. But the Freemasons, or that society of architects to whom we owe so many splendid churches, do not escape M. von Hammer's ill opinion better than the Templars. Though he conceives them to be of earlier origin, they had drunk at the same foul spring of impious and impure Gnosticism. Still, this evidence has not been universally received. It was at- tempted to be refuted by Kaynouard,"^^ who had been partially successful in repelling some of his opponent's arguments, though it appears to me that he had left much untouched. "^^ It seems that the architectural evidence is the most positive, and can only be resisted by disproving its existence, or its connection with the Freemasons and Templars. § 24. Philip the Fair left three sons, who successively reigned in France : Louis X. (a.d. 1314), surnamed Hutin ; Philip v., surnamed the Long ; and Charles IV., surnamed the Fair ; with a daughter, Isabel, married to Edward II. of England.-^ Louis, the eldest, survived his father little more than a year, leaving one daughter and his queen |)regnant. The circumstances that ensued require to be accurately stated. Louis had possessed, in right of his mother, the kingdom of Navarre, with the counties of Champagne and Brie. Upon his death, Philip, his next brother, assumed tlie regency both of France and Navarre ; and not long afterwards entered into a treaty with Eudes, Duke of Burgundy, uncle of the princess Jane, Louis's daughter, by which her eventual rights to the succession were to be regulated. It was agreed that, in case the queen shoiild be delivered of a daughter, these two prin- cesses, or the survivor of them, should take the grandmother's inlieritance, Navarre and Champagne, on releasing all claim to the throne of France. But this was not to take place till their age of consent, when, if they should refuse to make such re- nunciation, their claim Avas to remain, and right to he done to them therein ; but in return, the release made by Philip of Navarre and Champagne was to be null. In the mean time, he was to hold the government of France, Navarre, and Chani- -' " Journal des S.avans " for 1810. " H. Martin, who has given at great length the history of the condemnation of the Templars (" Hist, dc France," vol. iv., ]ip. 4()7-4'.ir), says — " r>es lumieres rjiie I'etude des documents originaux a jetees siir la iiuestioii, scmblent perniettre aujoiird'hui de condamner moralenient I'ordre, niais avec de grandes reserves pour les iudividus." 23 See Genealogical Table, p. 19. France. QUESTION OF SALIC LAW. 35 pagne, receiving homage of vassals in all these countries as governor ; saving the right of a male heir to the late king, in the event of whose birth the treaty was not to take effect. This convention was made on the 17th of July, 1316 ; and on the 15th of November the queen brought into the world a son, John I. (as some called him), who died in four days. The conditional treaty was now become absolute ; in spirit, at least, if any cavil might be raised about the expression : and Philip was, by his own agreement, precluded from taking any other title than that of regent or governor, until the princess Jane should attain the age to concur in or disclaim the provis- ional contract of her uncle. Instead of this, however, he pro- cured himself to be consecrated at Rheims. Upon his return to Paris, an assembly composed of prelates, barons, and bur- gesses of that city, was convened, who acknowledged him as their lawful sovereign, and, if we may believe an historian, expressly declared that a woman was incapable of succeeding to the crown of France. The Duke of Burgundy, however, made a show of supporting his niece's interests, till, tempted by the prospect of a marriage with the daughter of Philip, he shamefully betrayed her cause, and gave up in her name, for an inconsiderable pension, not only her disputed claim to the whole monarchy, but her unquestionable right to Navarre and Champagne. In this contest, every way memorable, but especially on ac- count of that which sprung out of it, the exclusion of females from the throne of Prance was first publicly discussed. The Prench writers almost unanimously concur in asserting that such an exclusion was biiilt upon a fundamental maxim of their government. No written law, nor even, as far as I know, the direct testimony of any ancient writer, has been brought for- ward to confirm tliis position. Por as to the text of the Salic law, which was frequently quoted, and has indeed given a name to this exclusion of females, it can only by a doubtful and refined analogy be considered as bearing any relation to the succession of the crown. ^* It is certain, nevertheless, that, from the time of Clovis, no woman had ever reigned in France ; 2* The Salic law simply provided that Salic land [i.e., the allodial property of the tribe] should not descend to females, and is improperly applied to the law which ex- cluded females from the crown. But from the accession of Philip the Long this so- called " Salic law has been regarded as an essential constitutional principle in France. The advantages of such an enactment are great and obvious. It secured the consolida- tion of the royal authority in tlie hands of a line of native jirinces ; it tended to ex- clude foreign influence from tlie highest functions and affairs of state; and, by making it impossible that the crown of France should ever be acquired by marriage, it cut off a dangerous temptation, which, in other countries, has produced destructive con- sequeuces." See Martin, vol. iv., p. 536 ; " Student's Hist, of France," p. 190. 36 CLAIM OF EDWARD III. Chap. I. Pakt I. and although not an instance of a sole heii*ess liad. occurred before, yet some of the Merovingian kings left daughters, wlio might, if not rendered incapable by their sex, have shared with their brothers in partitions then commonly made. But, on the other hand, these times were gone quite out of memory, and France had much in the analogy of her existing usages to rec- oncile her to a female reign. The crown resembled a great fief; and the great fiefs might universally descend to women. Even at the consecration of Philip himself, Maud, countess of Artois, held the crown over his head among the other peers. And it was scarcely beyond the recollection of persons living that Blanche had been legitimate regent of France during the minority of St. Louis. For these reasons, and much more from the provisional treaty concluded between Philip and the Duke of Burgundy, it may be fairly inferred that the 8alic law, as it was called, was not so fixed a principle at that time as has been contended. But however this may be, it received at the accession of Philip the Long a sanction which subsequent events more thoroughly confirmed. Philip himself leaving only three daughters, his brother Charles (a.d. 1322) mounted the throne ; and upon his death (a.d. 1328) the rule was so unquestionably established, that his only daughter was excluded by the Count of Yalois, grandson of Philip the Bold. This prince first took the re- gency, the queen-dowager being pregnant, and, ui>on her giving birth to a daughter, was crowned king. No competitor or op- ponent appeared in France ; but one more formidable than any whom France could have produced was awaiting the occasion to jH'osecute his imagined right with all the resources of valor and genius, and to carry d<>solatioii over that great kingdom Avith as little scruple as if he were preferring a suit before a civil tribunal. § 25. From the moment of Charles IV.'s death, Edward III. of England buoyed himself up witli the notion of his title to the crown of France, in right of his mother Isabel, sister to the last three kings. We can have no hesitation in condemn- ing the -injustice of this pretension. Whether the Salic law were or were not valid, no advantage could be gained by Ed- ward. Even if he could forget the express or tacit decision of all France, there stood in his way Jane, the daughter of Louis X., three of Philip the Long, and one of Charles the Fair. Aware of this, Edward set up a distinction, that, although females were excluded from succession, the same rule did not apply to their male issue ; and thus, though his mother Isabel France. THE HOUSE OF VALOJS OF FPtA?^CE. 37 could not herself become Queen of France, she might transmit a title to him. But tliis was contrary to the commonest rules of inheritance ; and if it could have been regarded at all, Jane had a son, afterwards the famous King of IMavarre, who stood one degree nearer to the crown than Edward. GENEALOGICAL TABLE OF THE HOUSE OF V^ALOIS OP FRANCE. Charles, count of Valois, youugcr son of King Philip IIL (See Table, p. 19.) Philip VL, king, 1328-1350. I John (le Bon), king, 1250-1364. Charles V king, 13 . (le Sage), 34-1380. 1 Louis, duke of Anjou, founder of the 2d royal house of Naples. 1 1 John, duke Fliiliji, duke of Berry. of Burgundy, ob. 1404. " Jean Sanspeur, assassinated at Montereau, 1419 Charles V 1 I. (le Bien-ainie : Isabella of l?a 1 ), king, 1380-1422 Louis, duke of Orleans, •aria. assassinated at Paris, 1407, founder of tlie line of Valois-Orleans. III I I Louis, John, Cuarlks VII. Isabella Catheiiiie ob. 1415. ob. 1416. (le Victorieux), = 1. Bicliard II. of England. =Henrv V. king, 1422-1461. 2. Duke of OrK'ans. of England. \ I I I Louis XL, king. 1461-1483. Charles, duke of Berry. Four daughters. I I I Charles VIII., king, Anne= Jeanne = 1483-1498. Sire de Beaujeu. Duke of Orleans, afterwards Louis XII It is asserted in some Prencli authorities that Edward yive- ferred a claim to the regency immediately after the decease of Charles the Fair, and that the States-General, or at least the peers of F^rance, adjudged that dignity to Philip de Vnlois. Whether this be true or not, it is clear that he entertained projects of recovering his right as early, though his youth and the embarrassed circumstances of his government threw in- superable obstacles in the way of their execution. He did liege homage, therefore, to Phili]:) for Guienne, and for several years, while the affairs of Scotland engrossed his attention, gave no sign of meditating a more magniticent enterprise. As he advanced in manhood, and felt the consciousness of his strength, his early designs grew mature, and produced a series of the most important and interesting revolutions in the for- tunes of France. These will form the subject of the ensuing pages. 38 WAR OF EDWARD III. IN FRANCE. Chap. I. Part II. PART II. FROM THE ACCESSION OF PHILIP OF VALOIS TO THE INVASION OF NAPLES BY CHARLES VIII. § 1. War of Edward III. in France. § 2. Causes of his Success. § 3. Civil disturb- ances of France. § 4. Peace of Bretigni. § 5. Charles V. Renewal of tlie War. §6. Charles VI. His Minority and Insanity. §7. Civil dissensions of the Parties of Orleans and Burgundy. Assassination of Ijoth these Princes. § 8. Intrigues of their Parties with England under Henry IV. Henry V. invades Fraiicc. § 9. Treaty of Troyes. § 10. State of France in the tirst Years of Charles VII. § 11. Progress and subsequent Decline of the English Arms. § 1'2. Tlu ir Expul- sion from France. § 1.3. Change in the Political Constitution. § H. Louis .\l. His Cliaracter. Leagues formed against him. § 15. C'harles Duke of Burgundy. His Prosperity and Fall. •!} 10. Louis obtains possession of Burgundy. § 17. His death. § IS. Charles VIll. Acquisition of Brittany. § 1. jSTo war had broken out in Europe, since the fall of the Roman Empire, so memorable as that of Edward III. and his successors against France, whether we consider its duration, its object, or the magnitude and variety of its events. It was a struggle of 120 years, interrupted but once by a regular pacification, where the most ancient and extensive dominion in the civilized world was the prize, twice lost and twice recovered in the conflict, while individual courage was wrought up to that high pitch which it can seldom display since the regularity of modern tactics has chastised its enthusiasm and levelled its distinctions. There can be no occasion to dwell upon the events of this war, which are familiar to almost every reader : it is rather my aim to develop and arrange those cir- cumstances which, when rightly understood, give the clew to its various changes of fortune. § 2. France was, even in the fourteenth century, a kingdom of such extent and com]^actness of figure, such population and resources, and filled with so spirited a nobility, that the very idea of subjugating it by a foreign force must have seemed the most extravagant dream of ambition. Yet, in the course of about twenty years of war, this mighty nation was reduced to the lowest state of exhaustion, and dismembered of consider- able provinces by an ignominious peace. AVhat was the com- bination of political causes which brought about so strange a revolution, and, though not realizing Edward's hopes to their FuANCE. WAR OF EDWARD III. IN FRANCE. 39 extent, redeemed them from the imputation of rashness in the judgment of Ids own and succeeding ages ? Tlie first advantage Avhich Edward 111. possessed in this contest was derived from the splendor of liis personal character and from the still more eminent virtues of his son. Besides prudence and military skill, these great princes were endowed with qualities peculiarly fitted for the times in which they lived. Chivalry was then in its zenith ; and in all the virtues which adorned the knightly character, in courtesy, munificence, gallantry, in all delicate and magnanimous feelings, none were so conspicuous as Edward III. and the Black Prince. As later princes have boasted of being the best gentlemen, they might claim to be the prowest kniglits in Europe — a character not quite dissimilar, yet of more high pretension. Their court was, as it were, the sun of tliat system which embraced the valor and nobility of the Christian world ; and the respect which was felt for their excellences, while it drew many to their side, mitigated in all the rancor and ferociousness of hostility. This war was like a great tournament, where the combatants fought indeed a outra'nce, but with all the courtesy and fair play of such an entertainment, and almost as much for the honor of their ladies. In the school of the Edwards were formed men not inferior in any nobleness of dis])Osition to their masters — Manni and the Captal de Buch, Knollys and Calverley, Chandos and Lancaster. On the French side, especially after Du Guesclin came on the stage, these had rivals almost equally deserving of renown. If we could for- get, what never should be forgotten, the wretchedness and devastation that fell upon a great kingdom, too dear a price for the display of any heroism, we might count these English wars in France among the brightest periods in history. Philip of Valois, and John his son, showed but poorly in comparison with their illustrious enemies. Yet they both had considerable virtues ; they were brave, just, liberal ; and the latter, in particular, of unshaken fidelity to his word. But neither was beloved by his subjects ; the misgovernment and extortion of their predecessors during half a century had alien- ated the public mind, and rendered their own taxes and debasement of the coin intolerable. Philip was made by mis- fortune, John by nature, suspicious and austere ; and although their most violent acts seem never to have wanted absolute justice, yet they were so ill conducted, and of so arbitrary a complexion, that they greatly impaired the reputation, as well as interests, of these mouarchs. 40 CIVIL DISTUKBANCES OF FKANCE. Cuap. I. Pakt II, Next to tlie personal qualities of the King of England, his resources in tliis war must be taken into tlie account. It was after long hesitation that he assumed the title and arms of France, from wliich, uidess ujjon the best terms, he could not recede without loss of honor. In the meantime he streiigtli- ened himself by alliances with the emperor, with the cities of Flanders, and witli most of the princes in the IS etlierlands and on the lihine. Yet I do not know that he profited by these conventions, since he met with no success till the scene of the war was changed from the Flemish frontier to Kormandy and Poitou. The troops of Hainault alone were constantly distin- guished in his service. But his intrinsic strength was at home. England had been growing in riches since the wise government of his grandfather, Edward I., and through the market opened for her wool with the manufacturing towns of Flanders. She was tranquil within ; and her nortliern enemy, the Scotch, had been defeated and quelled. The Parliament, after some slight precautions against a very ])robable effect of Edward's conquest of France, the reduction of their own island into a province, entered, as warmly as ini])rovidently, into his quarrel. The people made it their own, and grew so intoxicated Avith the victories of this war, that for some centuries the injustice and folly of the enterprise do not seem to have struck the gravest of our countrymen. There is, indeed, am])lc room for national exultation at the names of Crecy, Poitiers, and Azincourt. So great was tlie disparity of numbers upon those famous days, that we cannot, with the French historians, attribute the discomfiture of their hosts merely to mistaken tactics and too impetuous valor. Tliey yielded rather to that intrepid steadiness in danger which had already become the characteristic of our English soldiers, and which, during five centuries, has insured their superiority, Avhenever ignorance or infatuation has not led them into tlie field. But these victories, and the qualities that secured them, must chiefly be ascribed to the freedom of our constitution, and to the superior condition of her people. Not the nobility of England, not the feudal tenants, won the battles of Crecy and Poitiers ; for these were fully matched in the ranks of France ; but the yeomen, who drew the bow with strong and steady arms, accustomed to use it in their native fields, and rendered fearless by personal competence and civil freedom. It is well known that each of the three great victories was due to our archers, who were chiefly of the middle class, and Fjjance, successes OF EDWARD III. 41 attached, according to the system of that age, to the kiiiglits and squires who fought in heavy armor with the lance. Even at tlae battle of .Poitiers, of which our country seems to have the least riglit to boast, since the greater part of the Black Prince's small army was composed of Gascons, the merit of the English bowmen is strongly attested by Froissart. § 3. Yet the glorious termination to which Edward was enabled, at least for a time, to bring the contest, was rather the work of fortune than of valor and prudence. Until the battle of Poitiers he had made no progress towards the con- quest of France. That country was too vast, and his army too small, for such a revolution. The victory of Crecy gave him nothing but Calais, a post of considerable im])ortance in war and peace, but rather ada])ted to annoy than to subjugate the kingdom. Put at Poitiers he obtained the greatest of prizes, by taking jirisoner the king of France. Not only the love of Freedom tem})ted that prince to ransom himself by the utmost sacrifices, but his ca])tivity left France defenceless, and seemed to annihilate the monarchy itself. The government was already odious ; a spirit was awakened in the people which might seem hardly to belong to the fourteenth century ; and the convulsions of our own time are sometimes strongly paralleled by those which succeeded the battle of Poitiers. Already the States-General had established a fundamental principle that no resolution could be passed as the opinion of the whole unless each of the three orders concurred in its adop- tion. The right of levying and of regulating the collection of taxes was recognized. But that assembly, which met at Paris immediately after the battle, went far greater lengths in the reform and control of government. From the time of Philip the Fair the abuses natural to arbitrary power had harassed the people. There now seemed an opportunity of redress ; and however seditious, or even treasonable, may have been the motives of those who guided this assembly of the States, especially the famous Marcel, it is clear that many of their reformations tended to liberty and the public good.^ But the tumultuous scenes which passed in the capital, some- times heightened into civil war, necessarily distracted men from the common defence against Edward. These tumults were excited, and the distraction increased, by Charles King of Navarre, surnamed the Bad. He was grandson of Louis 1 The reader is referred to tlie next chapter for more information on this subject. This separation is inconvenient, but it arose indispensably out of my arrangement, and prevented greater inconvenience. 42 SUFFERINGS OF FRANCE. Chap. 1. Pakt II. Hutin, by Lis daughter Jane, and, if Edward's pretence of claiming through females could be admitted, was a nearer heir to the crown; the consciousness of which seems to have sug- gested itself to his depraved mind as an excuse for his treach- eries, though he could entertain very little prospect of asserting the claim against either contending party. He entered into alliances with Edward, and fomented the seditious spirit of Paris. Eloquent and insinuating, he was the favorite of the people, whose grievances he affected to pity, and with whose leaders he intrigued. There is no affliction which did not fall upon France dur- ing tiiis miserable period. A foreign enemy was in the heart of the kingdom, the king a prisoner, the capital in sedition, a treacherous prince of the blood in arms against the sover- eign authority. Famine, the sure and terrible companion of war, for several years desolated the country. In 1348 a pes- tilence, the most extensive and unsparing of which we have any memorial, visited France as well as the rest of Europe, and consummated the work of hunger and the sword.^ The companies of adventure, mercenary troops in the service of John or Edward, finding no immediate occupation after the truce of 1357, scattered themselves over the country in search of pillage. No force existed sufficiently powerful to check these robbers in their career. Undismayed by supersti- tion, they compelled the pope to redeem himself in Avignon by the payment of forty thousand crowns. France was the passive victim of their license, even after the pacification concluded Avith England, till some were diverted into Italy, and others led by Du Guesclin to the war of Castile. Im- patient of this wretchedness, and stung by the insolence and luxury of their lords, the peasantry of several districts broke out into a dreadful insurrection (a.d. 1358). This was called the Jacquerie, from the cant phrase Jacques Bonhomme, applied to men of that class ; and was marked by all the circumstances of horror incident to the rising of an exasper- ated and unenlightened populace. 2 A full account of the ravajjes made by this memorable plngue mav be found in UFatteo Villain, the second of that family who wrote the history of Florence. His brother and predecessor, John Villani, was himself a victim to it. The disease began in the Levant about V-HG; from whence Italian traders brought it to Sicily, Pisa, and tJenoa. In 1348 it passed tlie Alps, spread over France and Spain ; in the next year it reached Britain, and in 1350 laid waste Germany and other northern states; lasting generally about five months in each country. At Florence more than three out of live died. The stories of Boccaccio's Decamerone, as is well known, are supposed to be related by a society of F"lorentiue ladies and gentlemen retired to the country during this pestilence. Aiiotlier pestilence, only less destructive than the former, wasted both France and England in 1361. The plague caused a truce of sevu'a.1 WQUtLls. The war was iufact carried ou with less vigor for some years. Feanck. CHARLES V. — PEACE OF BRETIGNI. 43 § 4. Subdued by these misfortunes, though Edward had made but slight progress towards the conquest of the coun- try, the regent of France, afterwards Charles V., submitted to the peace of Bretigni (a.d. 1360). By this treaty, not to mention less important articles, all Guienne, Gascony, Poitou, Saintonge, the Limousin, and the Angoumois, as well as Calais, and the country of Ponthieu, were ceded in full sov- ereignty to Edward; a price abundantly compensating his renunciation of the title of France, which was the sole con- cession stipulated in return. At Calais this treaty was re- newed by John, who, as a prisoner, had been no party to the former compact, and who now returned to his dominions. When the peace of Bretigni was to be carried into effect the nobility of the south remonstrated against the loss of the king's sovereignty, and showed, it is said, in their charters granted by Charlemagne, a promise never to transfer the right of protecting them to another. The citizens of liochelle im- plored the king not to desert them, and protested their readi- ness to pay half their estates in taxes, rather than fall under the power of England. John with heaviness of heart per- suaded these faithful people to comply with that destiny which he had not been able to surmount. At length they sullenly submitted : we will obey, they said, the English with our lips, but our hearts shall never forget their allegiance. Such un- willing subjects might perhaps have been won by a prudent government; but the temper of the Prince of Wales, which was rather stern and arbitrary, did not conciliate their hearts to his cause. After the expedition into Castile, a most inju- dicious and fatal enterprise, he attempted to impose a heavy tax upon Guienne. This was extended to the lands of the nobility, who claimed an immunity from all impositions. Many of the chief lords in Guienne and Gascony carried their complaints to the throne of Charles V., who had succeeded his father in 13G4, appealing to him as the prince's sovereign and judge. After a year's delay the king ventured to summon the Black Prince to answer these charges before the peers of France, and the war immediately recommenced between the two countries (a.d. 1368). § 5. Though it is impossible to reconcile the conduct of Charles upon this occasion to the stern principles of rectitude which ought always to be obeyed, yet the exceeding injustice of Edward in the former war, and the miseries which he in- flicted upon an unoffending people in the prosecution of his claim, will go far towards extenuating this breach of the treaty 44 KENEWAL OF THE WAR. Chap. I. Pakt II. of Bretigni. The measures of Charles had been so sagaciously taken, that, except through that perverseness of fortune, against which, especially in Avar, there is no security, he could hardly fail of success. The elder Edward was declining through age, and the younger through disease; the ceded provinces were eager to return to their native king, and their garrisons, as Ave may infer by their easy reduction, feeble and ill-supplied. France, on the other hand, had recovered breath after her losses ; the sons of those who had fallen or fled at Poitiers Avere in the field; a king, not personally Avarlike, but emi- nently Avise and popular, occupied the throne of the rash and intemperate John. She Avas restored by the policy of Charles V. and the valor of Du Guesclin. This hero, a Breton gentle- man Avithout fortune or exterior graces, Avas the greatest ornament of France during that age. Though inferior, as it seems, to Lord Chandos in military skill, as Avell as in the polished virtues of chivalry, his uuAvearied activity, his talent of inspiring confidence, his good fortune, the generosity and frankness of his character, have preserved a fresh recollec- tion of his name, Avhich has hardly been the case with our countryman. In a fcAv campaigns the English Avere deprived of almost all their conquests, and even, in a great degree, of their original possessions in "Guienne. They were still formidable enemies, not only from their courage and alacrity in the Avar, but on ac- count of the keys of France which they held in their hands — Bordeaux, Bayonne, and Calais, by inheritance or conquest ; ]>rest and Cherbourg, in mortgage from their allies, the Duke of Brittany and King of Navarre. But the successor of Edward III. Avas Ivichard II. ; a reign of feebleness and sedition gave no opportunity for prosecuting schemes of ambition. The Avar, protracted Avith few distinguished events for several years, Avas at length suspended by repeated armistices, not, indeed, very strictly observed, and Avhich the animosity of the English Avould not permit to settle in any regular treaty. Nothing less than the terms obtained at Bretigni, emphatically called the Great Peace, Avould satisfy a frank and courageous people, Avho deemed themselves cheated by the manner of its infraction. The war was therefore always popular in England, and the credit Avhich an ambitious prince, Thomas duke of Gloucester, obtained in that country, Avas chiefly owing to the determined opposition which he showed to all French connections. But the politics of Richard 11. Avere of a different cast ; and Henry IV. Avas equally anxious to avoid hostilities with France ; so Fkance. accession OF CHARLES VI. 45 that, before the unhappy condition of that kingdom tempted his son to revive the claims of Edward in still more favorable circumstances, there had been thirty years of respite, and even some intervals of friendly intercourse between the two nations. § 6. Charles V., surnanied the Wise, after a reign which, if we overlook a little oblicpiity in the rupture of the peace of Bretigni, may be deemed one of the most honorable in French history, dying i)rematurely, left the crown to his son, Charles VI. (a.d. 1380), a boy of thirteen, under the care of three ambitious uncles, the dukes of Anjou, Berry, and Bur- gundy. Charles V. had retrieved the glory, restored the tranquillity, revived the spirit, of his country ; the severe trials wdiich exercised his regency after the battle of Poitiers had disciplined his mind ; he became a sagacious statesman, an encourager of literature, a beneficent lawgiver. But all the fruits of his wisdom were lost in the succeeding reign. During the forty years that Charles VI. bore the name of king, rather than reigned, in France, that country was re- duced to a state far more deplorable than during the captivity of John. A great change had occurred in the political condition of France during the fourteenth century. As the feudal militia became unserviceable, the expenses of war were increased through the necessity of taking troops into constant pay. Hence taxes, hitherto almost unknown, were levied incessantly, and with all those circumstances of oppression which are natural to the fiscal proceedings of an arbitrary government. The ill faith with which the new government imposed sub- sidies, after promising their abolition, provoked the people of Paris, and sometimes of other places, to repeated seditions. The States-General not only compelled the government to revoke these impositions and restore the nation, at least according to the language of edicts, to all their liberties, but, with less wisdom, refused to make any grant of money. In- deed a remarkable spirit of democratical freedom was then rising in those classes on whom the crown and nobility had so long trampled. An example was held out by the Flemings, who, always tenacious of their privileges, because conscious of their ability to maintain them, were engaged in a furious con- flict with Louis, count of Flanders. The court of France took part in this war ; and after obtaining a decisive victory over the citizens of Ghent, Charles V. returned to chastise those of Paris. Unable to resist the royal army, the city was treated as the spoil of conquest ; its immunities abridged ; its most 46 CIVIL DISSENSIONS OF THE PAIITIES. Chap. I. Paiit II, active leaders put to death ; a fine of uiicouimon severity im- posed ; and the taxes renewed by arbitrary prerogative. But the people preserved their indignation for a favorable moment ; and were unfortunately led by it, when rendered subservient to the ambition of others, into a series of crimes, and a long alienation from the interests of their country. Though Charles VI. was considered from the time of his coronation as reigning with full personal authority, the actual exercise of government was divided between Anjou, Berry, and Burgundy, together with the king's maternal uncle, the Duke of Bourbon. The first of these soon undertook an expe- dition into Italy, to possess himself of the crown of Najjles, in which he perished. Berry was a profuse and voluptuous man, of no great talents ; though his rank, and the middle position which he held between struggling parties, made him rather conspicuous throughout the revolutions of that age. The most respectable of the king's uncles, the Duke of Boiir- bon, being farther removed from the royal stem, and of an unassuming character, took a less active part than his three coadjutors. Burgundy, an ambitious and able prince, main- tained tlie ascendancy, until Charles, weary of a restraint whicli had been protracted by his uncle till he Avas in his twenty-tirst year, took the reins into his own hands (a.d. 1387). The dukes of Burgundy and Berry retired from court, and the administration was committed to a different set of men, at the head of wliom appeared the constable de Clisson, a soldier of great fame in the English wars. The i)eople rejoiced in the fall of the princes by whose exactions they had been plun- dered ; but the new ministers soon rendered themselves odious by similar conduct. Charles VI. had reigned five years from his assumption of power, when he was seized with a derangement of intellect (a.d. 1303), which continued, through a series of recoveries and rela})ses, to his death. He passed thirty years in a ])iti- able state of suffering, neglected by his family, particularly by the most infamous of women, Isabel of Bavaria, his queen, to a degree Avhich is hardly credible.^ The ministers were immediately disgraced ; the princes reassumed their stations. 3 Sisiiiondi inclines to speak more favorably of this fjiieen than most have done. He discredits the suspicion of a criTiiitial iutercours" with the duke of Orleans, and represents her as merely an indolent woman fond of good cheer. Yet he owns that the king was so neglected as to sutler from an excessive want of cleanliness, some- times even from hunger (xii., 218, 225). Was tins no iniputation on his wife? Martin says that contemporary writers do not mention expressly the criminal intercourse between Isabel and the duke of Orleans, but he adds, " ce qu'on salt des nupurs du due et de sa belle-soeur permet difficilemeut de croire en I'inuoceuce de leur iutimite" (v., 471). France. OF ORLEANS AND BURGtJNDY. 47 § 7. For several years the Duke of lUirgiiiuly conducted tlie govermiient. But this was in opposition to a formidable rival, Louis, duke of Orleans, the king's brother. It was impossible that a prince so near to the throne, favored by the queen perhaps with criminal fondness, and by the people on account of his external graces, should not acquire a share of power. He succeeded at length in obtaining the whole management of affairs ; wherein the outrageous dissoluteness of his con- duct, and still more the excessive taxes imposed, render liim altogether odious. The Parisians compared his administration with that of the Duke of Burgundy ; and from that time ranged themselves on the side of the latter and his family, throughout the long distractions to which the ambition of these princes gave birth. The death of the Duke of Burgundy, in 1404, after several fluctuations of success between him and the Duke of Orleans, by no means left Ids party without a head. Equally brave and ambitious, but far more audacious and unprincipled, his son John, surnamed Sanspeur, sustained the same contest. A reconciliation had been, however, brought about with the Duke of Orleans; they had sworn reciprocal friendship, and participated, as was the custom, in order to render these obli- gations more solemn, in the same communion. In the midst of this outward harmony, the Duke of Orleans was assassinated in the streets of Paris (a.d. 1407). After a slight attempt at concealment, Burgundy avowed and boasted of the crime. From this fatal moment the dissensions of the royal family began to assume the complexion of civil war. The queen, the sons of the Duke of Orleans, with the dukes of Berry and Bourbon, united against the assassin. But he possessed, in addition to his own appanage of Burgundy, the county of Flanders as his maternal inheritance ; and the people of Pa,ris, Avho hated the Duke of Orleans, readily forgave, or rather exulted in, his murder. He soon obtained the management of affairs, and drove his adversaries from the capital. The princes, headed by the father-in-law of the young Duke of Orleans, the Count of Armagnac, from whom their party was now denominated, raised their standard against him ; and the north of France was rent to pieces by a protracted civil war, in which neither party scrupled any extremity of pillage or massacre. The dauphin, aware of the tyranny which the two parties alternately exercised, was forced, even at the expense of perpetuating a civil war, to balance one against the other, and permit neither to be wholly subdued. In 1417 the Count 48 CHARLES VI. Chap. I. Part II. of Armagnac, now constable of France, was in possession of the government. But his severity, and the weight of taxes, revived the Burgundian party in Paris, wliicli a rigid proscrip- tion had endeavored to destroy. He brought on his head the implacable hatred of the queen, whom he had not only shut out from pviblic affairs, but disgraced by the detection of her gallantries. Notwithstanding her ancient enmity to the Duke of Burgundy, she made overtures to him, and, being delivered by his troops from confinement, declared herself openly on his side. A few obscure persons stole the city keys, and admitted the Burgundians into Paris. The tumult which arose showed in a moment the disposition of the inhabitants ; but this was more horribly displayed a few days afterwards, when the populace, rushing to the prisons, massacred the constable D' Armagnac and his partisans (a.d. 1418). Between three and four thousand persons were murdered on this day, which has no parallel but what the last age witnessed, in the massa- cre perpetrated by the same ferocious populace of Paris under circumstances nearly similar. Not long afterwards an agree- ment took place between the Duke of Burgundy, who had now the king's person as well as the capital in his hands, and the dauphin, whose party was enfeebled by the loss of almost all its leaders. This reconciliation, which mutual interest should have rendered permanent, had lasted a very short time, when the Duke of Burgundy was assassinated at Montereau, at an interview with Charles, in his presence, and by the hands of his friends, though not, perhaps, with his previous knowledge (a.d. 1419). From whomsoever the crime proceeded, it was a deed of infatuation, and plunged France afresh into a sea of ])erils, from which the union of these factions had just afforded a hope of extricating her. § 8. It has been mentioned already that the English war had almost ceased during the reigns of Richard II. and Henry IV. A long commercial connection had subsisted between England and Flanders, which the dukes of Burgundy, when they became sovereigns of the latter country upon the death of Count Louis, in 1384, were studious to preserve by separate truces. They acted upon the same pacific policy when their interest predominated in the councils of France. Henry had even a negotiation pending for the marriage of his eldest son with a princess of Burgundy, when an unexpected proposal from the opposite side set more tempting views before his eyes. The Armagnacs, pressed hard by the Duke of Burgundy, offered, in consideration of only 4,0(10 troops, the pay of which Prance. BATTLE OF AZINCOURT. 49 tliey would themselves defray, to assist him in the recovery of Guienne and l*oitou. Four princes of the blood — Berry, Bourbon, Orleans, and Alenyon — disgraced their names by signing this treaty (May, 1412). Henry broke off his alliance with Burgundy, and sent a force into France, which found, on its arrival, that the princes had made a separate treaty, with- out the least concern for their English allies. After his death, Henry V. engaged for some time in a series of negotiations with the French court, where the Orleans party now prevailed, and with the Duke of Burgundy. He even secretly treated at the same time for a marriage witli Catherine of France (which seems to have been his favorite, as it was ultimately his suc- cessfvd, project), and with a daughter of the duke — a duplicity not creditable to his memory. But Henry's ambition, which aimed at the highest quarry, was not long fettered by negotia- tion ; and, indeed, his proposals of marrying Catherine were coupled with such exorbitant demands as France, notwith- standing all her weakness, could not admit, though she would have ceded Guienne, and given a vast dowry with the princess. He invaded jSTormandy, took Harfleur, and won the great battle . of Azincourt, on his march to Calais (a.d. 1415). The flower of French chivalry was mowed down in this fatal day ; but especially the chiefs of the Orleans party, and the princes of the royal blood, met with death or captivity. Burgundy had still suffered nothing ; but a clandestine nego- tiation had secured the duke's neutrality, though he seems not to have entered into a regular alliance till a year after the battle of Azincourt, when, by a secret treaty at Calais, he ac- knowledged the right of Henry to the crown of France, and his own obligation to do him liomage, though its performance was to be suspended till Henry should become master of a considerable part of the kingdom. In a second invasion the English achieved the conquest of Normandy ; and this, in all subsequent negotiations for peace during the life of Henry, he would never consent to relinquish. After several confer- ences, which his demands rendered abortive, the French court at length consented to add Normandy to the cessions made in the peace at Bretigni ; and the treaty, though laboring under some ditilculties, seems to have been nearly completed, when the Duke of Burgundy, for reasons unexplained, suddenly came to a reconciliation with the dauphin (July 11, 1419). This event, which must have been intended adversely to Henry, would probably have broken off' all parley on the sub- ject of peace, if it had not been speedily followed by one still 50 THE TREATY OF TROYES. Chap. I. Part II. more surprising — the assassination of the Dnke of Burgundy at Montereau already mentioned (Sept. 10, 1419). § 9. An act of treachery so apparently unprovoked inflamed the minds of that powerful party which had looked up to the duke as their leader and patron. The city of Paris, especially, abjured at once its respect for the supposed author of the miirder, though the legitimate heir of the crown. A solemn oath Avas taken by all ranks to revenge the crime ; the nobility, the clergy, the Parliament, vying with the populace in their invectives against Charles, whom they now styled only pre- tended (soi-disant) dauphin. Philip, son of the assassinated duke, who, with all the popularity and much of the ability of his father, did not inherit all his depravity, was instigated by a pardonable excess of filial resentment to ally himself with the King of England. These passions of the people, and the Duke of Burgundy, concurring with the imbecility of Charles VI. and the rancor of Isabel towards her son, led to the treaty of Troyes (May, 1420). This compact, signed by the queen and duke, as proxies of the king, who had fallen into a state of unconscious idiotcy, stipulated that Henry V., upon his marriage with Catherine, should become immediately regent of France, and, after the death of Charles, succeed to the king- dom, in exclusion not only of the dauphin, but of all the royal family. It is unnecessary to remark that these flagitious pro- visions were absolutely invalid. But they had at tlie time the strong sanction of force ; and Henry might plausibly flatter himself with a hope of establishing his own usurpation as flrmly in France as his father's had been in England. What not even the comprehensive policy of Edward III., the energy of the Black Prince, the valor of their Knollyses and Chan- doses, nor his own victories, could attain, now seemed, by a strange vicissitude of fortune, to court his ambition. During two years that Henry lived after the treaty of Troyes, he gov- erned the north of France with unlimited authority in the name of Charles VI. The latter survived his son-in-law but a few weeks ; and the infant Henry VI. was immediately pro- claimed King of France and England, under the regency of his uncle, the Duke of Bedford. § 10. Notwithstanding the disadvantage of a minority, the English cause was less weakened by the death of Henry than might have been expected. The Duke of Bedford partook of the same character, and resembled his brother in faults as well as virtues ; in his hauglitincss and arbitrary temper as in his energy and address. At the accession of Charles VII. (a.d. I France. PROGRESS OF ENGLISH ARMS IN FRANCE. 51 1422) the usurper was acknowledged by all the northern prov- inces of France, except a few fortresses, by most of Guienne, and the dominions of Burgundy. The Duke of Brittany soon afterwards acceded to the treaty of Troyes, but clianged his party again several times within a few years. Tlie central provinces, with Languedoc, Poitou, and Dauphine, were faith- ful to the king. For some years the war continued without any decisive result ; but the balance was clearly swayed in favor of England. For this it is not difficult to assign several causes. The animosity of the Parisians and the Duke of Bur- gundy against the Armagnac party still continued, mingled in the former with dread of the king's return, whom they judged themselves to have inexpiably offended. The war had brought forward some accomplished commanders in the English army ; surpassing not, indeed, in valor and enterprise, but in military skill, any whom France could oppose to them. Of these the most distinguished, besides the Duke of Bedford himself, were Warwick, Salisbury, and Talbot. Their troops, too, were still very superior to the' French. But this, we must in candor allow, proceeded in a great degree from the mode in which they were raised. The war was so popular in England, that it was easy to pick the best and stoutest recruits, and their high pay allured men of respectable condition to the service. We find in Kynier a contract of the Earl of Salisbury to sup- ply a body of troops, receiving a shilling a day for every man- at-arms, and sixpence for each archer.* This is, perhaps, equal to fifteen times the sum at our present value of money. Tiiey were bound, indeed, to furnish their own equipments and horses. But France was totally exhausted by her civil and foreign war, and incompetent to defray the expenses even of the small force which defended the wreck of the monarchy. Charles VII. lived in the utmost poverty at Bourges. The nobility had scarcely recovered from the fatal slaughter of Azincourt ; and the infantry, composed of peasants or burgesses, which had made their army so numerous upon that day, whether from inability to compel their services, or experience of their inefii- cacy, were never called into the field. It was, however, in the temper of Charles VII. that his enemies found their chief advantage. This prince is one of tlie few whose character has been improved by prosperity. 4 Rym. t. X., p. 302. Tliis contract was for 000 men-at-arms, including six bannerets and thirty-four bachelors; and for. 1,700 archers ;bi('U et surtisaniment moutez.armez, et arraiez coinnie a leurs cstats appartient. I'he ])ay was, for the earl, fl.s'. Hd. a day; for a banneret, 4s. ; for a bachelor. 2s. ; for every other man-at-arms, Is. ; and for each archer, M. Artillerymen were paid liiglier than men-at-arms. 52 THE MAID OF ORLEANS. Chap. I. Part II. During the calamitous morning of iiis reign he shrunk from fronting the storm, and. strove to forget himself in pleasure. Though brave, he was never seen in war ; though intelligent, he was governed by flatterers. Those who had. committed the assassination at Montereau under his eyes were his first favo- rites ; as if he had determined to avoid the only measure through which he could hope for better success — a reconciliation with the Duke of Burgundy. § 11. It cannot, therefore, surprise us that, with all these advantages, the regent Duke of Bedford, had almost completed the capture of the fortresses north of the Loire when he in- vested Orleans in 1428. If this city had fallen, the central provinces, which were less furnished with defensible places, would have lain open to the enemy ; and it is said that Charles VII. in despair was about to retire into Dauphine. At this time his affairs were restored, by one of the most marvellous revolutions in history. A coimtry girl overthrew the power of England. We cannot pretend, to explain the surprising story of the Maid of Orleans ; for, however easy it may be to suj)- pose that a heated and. enthusiastic imagination produced her own visions, it is a much greater problem to account for the credit they obtained, and for the success that attended her. Nor will this be solved by the hypothesis of a concerted strat- agem ; which, if we do not judge altogether from events, must appear liable to so many chances of faihire that it could not have suggested itself to any rational person. However, it is certain that the appearance of Joan of Arc ^ turned the tide of war, which from that moment flowed Avithout interruption in Charles's favor. A superstitious aAve enfeebled the sinews of the English. They hung back in their own country, or de- serted from the arms, through fear of the incantations by which alone they conceived so extraordinary a person to suc- ceed. As men always make sure of Providence for an ally, whatever untOAvard fortune appeared to result from preternat- ural causes Avas at once ascribed to infernal enemies ; and such bigotry may be pleaded as an excuse, though a very miserable one, for the detestable murder of this heroine. The spirit which Joan of Arc had roused did not subside. France recovered confidence in her oavu strength, Avhich had been chilled by a long course of adverse fortune. The king, 5 I have followed the common practice of translating Jeanne d'Arc by Joan of Arc. It does not appear, however, tliat any such place as Arc exists in tliat neighborhood, tliough there is a town of that name at a considc lalile distance. Joan was, as is known, a native of tlie village of Domremy, in Lorraine. The correct orthography of her name is Dare, as is shown by Michelet and H. Martin. Fkance. condition OF FRANCE. 53 too, shook off his intlolence,^ and permitted Richemont, brother of the Duke of Brittany, to exclude his unwortliy favorites from the court. This led to a very important consequence. The Duke of Burgundy, whose alliance with England had been only the fruit of indignation at his father's murder, fell naturally, as that passion wore out, into sentiments more con- genial to his birth and interests, A prince of the house of Capet could not willingly see the inheritance of his ancestors transferred to a stranger. Yet the union of his sister with Bedford, the obligations by Avhich he was bound, and, most of all, the favor shown by Charles VII. to the assassins of his father, kept him for many years on the English side, altliough rendering it less and less assistance. But at length he con- cluded a treaty at Arras (a.d. 1435), the terms of which he dictated rather as a conqueror than a subject negotiating with his sovereign. Charles, however, refused nothing for such an end ; and, in a very short time, the Burgundians were ranged with the French against their old allies of England. § 12. It was now time for the latter to abandon those mag- nificent projects of conquering France which temporary cir- cumstances alone had seemed to render feasible. As foreign enemies, they were odious even in that part of France which had acknowledged Henry ; and when the Duke of Burgundy deserted their side, Paris and every other city were impatient to throw off the yoke. A feeble monarchy, and a selfish coun- cil, completed their ruin : the necessary subsidies were raised with difficulty, and, when raised, misapplied. It is a proof of the exhaustion of France, that Charles was unable, for several years, to reduce Normandy or Guienne, which were so ill-pro- vided for defence. At last he came with collected strength to the contest, and, breaking an armistice upon slight pretences, 8 It is a current piece of history that Agnes Sorel, mistress of Charles VII., liad the merit of dissuading; liim from K'^'i"" "P the kinj!;doni as lost at tlie time when Orleans was besicjjcd in 14-'s. Mozeray, Daniel, Villaret, .and, I believe, every other modern historian, have mentioned this circumstance; and some of them, amonf; whom Is Hume, with the addition that Agnes threatened to leave the court of Charles for that of Henry, affirming that she was born to be the mistress of a great l^ing. The latter part of this tale is evidently a fabrication, Henry VI. being at the time a child of seven years old. But the story is not mentioned by contemporary writers, and Martin has shown (vi., 321) that Charles did not become acquainted witli Agnes Sorel before H3.3; consequently five years after tlie siege of Orleans. 'I'he tradition, however, is as an- cient as Francis I., who made in her honor a quatrain which is well known. This probably may have brought the story more into vogue, and led Mezeray, who was not very critical, to insert it in his history, from which it has passed to his followers. Its origin was apparently the popular character of Agnes. She was the Nell Gwyn of France, and justly beloved, not only for her charity and courtesy, but for bring- ing forward men of merit and turning her infiuence, a virtue very rare in her class, towanls the public interest. From tiience it was natural to bestow upon lier, in after times, a merit not ill suited to her character, but which an accurate observation of dates renders impossible. 54 CONDITIOK OF FRANCE. Chap. I. Part II. within two years overwhelmed the English garrisons in each of these provinces (a.d. 1449). All the inheritance of Henry II. and Eleanor, all the conquests of Edward III. and Henrj- V. except Calais and a small adjacent district, were irrecover- ably torn from the crown of England. A barren title, that idle trophy of disappointed ambition, was preserved with strange obstinacy to our own age. § 13. At the expulsion of the English, France emerged from the chaos with an altered character and new features of government. The royal authority and supreme jurisdiction of the Parliament Avere universally recognized. Yet there was a tendency towards insubordination left among the great nobility, arising in part from the remains of old feudal privileges, but still more from that lax administration which, in the convul- sive struggles of the war, had been suffered to prevail. In the south were some considerable vassals, the houses of Foix, Albret, and Armagnac, who, on account of their distance from the seat of empire, had always maintained a very independent conduct. The dukes of Brittany and Burgundy were of a more formidable character, and might rather be ranked among foreign powers than privileged subjects. The princes, too, of the royal blood, who, during the late reign, had learned to partake or contend for the management, were ill-inclined towards Charles VII., himself jealous, from old recollections, of their ascendency. They saw that the constitution was verging rapidly towards an absolute monarchy, from the direc- tion of which they would studiously be excluded. This ap- prehension gave rise to several attempts at rebellion during the reign of Charles YII. Among the pretences alleged by the revolters in each of these, the injuries of the peojile were not forgotten ; but from tlie people they received small support. Weary of civil dissension, and anxious for a strong govern- ment to secure them from depredations, the French had no inducement to intrust even their real grievances to a few mal- content princes, whose regard for the common good they had much reason to distrust. Every circumstance favored Charles VII. and his son in the attainment of arbitrary power. The country was pillaged by military ruffians. Charles established his companies of ordonnance, the basis of the French regular army, in order to protect the country from such depredators. They consisted of about 9,000 soldiers, all cavalry, of whom 1,500 were heavy-armed ; a force not very considerable, but tlie first, except mere body-guards, which had been raised in any part of Europe as a national standing army. These troojis Fkance. LOUIS XI. 55 were paid out of the produce of a permauent tax, called the taille ; an innovation still more ini})ortant than the former. But the present benefit cheating the people, now prone to sub- missive habits, little or no opposition was made, except in Guienne, the inhabitants of which had speedy reason to regret the mild government of England, and vainly endeavored to return to its protection. § 14. It was not long before the new despotism exhibited itself in its harshest character. Louis XI., son of Charles VII., who, during his father's reign, had been connected with the discontented princes, came to the throne (a.d. 1461) greatly endowed with those virtues and vices which conspire to the success of a king. Laborious vigilance in business, contempt of pomp, affability to inferiors, were his excellences ; quali- ties especially praiseworthy in an age characterized by idle- ness, love of pageantry, and insolence. To these virtues he added a perfect knowledge of all persons endnent for talents or influence in the countries with which he was connected, and a Avell-judged bounty, that thought no expense wasted to draw them into his service or interest. In the fifteenth century this political art had hardly been known, except perhaps in Italy ; the princes of Europe had contended with each other by arms, sometimes by treachery, but never with such compli- cated subtlety of intrigue. Of that insidious cunning, which has since been brought to perfection, Louis XL may be deemed not absolutely the inventor, but the most eminent improver ; and its success has led, perhaps, to too high an estimate of his abilities. Like most bad men, he sometimes fell into his own snare, and was betrayed by his confidential ministers, because his confidence was generally reposed in the wicked. And his dissimulation was so notorious, his tyrainiy so oppressive, that he was naturally surrounded by enemies, and had occasion for all his craft to elude those rebellions and confederacies which might perhaps not have been raised against a more upriglit sovereign. At one time the monarchy was on the point of sinking before a combination which would have ended in dis- membering France. This was the league denominated of the Public Weal (a.d. 1461), in which all the princes and great vassals of the French crown were concerned ; the dukes of Brittany, Burgundy, Alen9on, Bourbon, the Count of Dunois, so renowned for his valor in the English wars, the families of Foix and Armagnac ; and at the head of all, Charles, duke of Berry, the king's brother and presumptive h.cir. S t iraai:i- mous a combination was not formed without a strong provoca- 56 APPANAGES. Chap. I. Paut II. tion from the king, or at least without weighty grounds for distrusting his intentions ; but the luore remote cause of this confederacy, as of those which had been raised against Charles VII., was the critical position of the feudal aristocracy from the increasing jiower of the crown. This war of the Public Weal Avas, in fact, a struggle to preserve their independence ; and from the weak character of the Duke of Berry, whom they would, if successful, have placed upon the throne, it is possible that France might have been in a manner partitioned among them in the event of their success, or, at least, that Burgundy and Brittany would have thrown off the sovereignty that galled them. The strength of the confederates in this war much exceeded that of the king; but it was not judiciously employed; and after an indecisive battle at Montlhery they failed in the great object of reducing Paris, which would have obliged Louis to fly fi'om his dominions. It Avas his policy to promise every thing, in trust that fortune would afford some opening to repair his losses and give scope to liis siiperior prudence. Accord- ingly, by the treaty of Conflans, he not only surrendered afresh the towns upon the Somme, wliich he had lately redeemed from the Duke of Burgundy, but invested his brother with the duchy of Normandy as his appanage. The term aj^panage denotes the provision made for the younger children of the King of Prance. This always con- sisted of lands and feudal superiorities held of the crown by the tenure of peerage. It is evident that this usage, as it pro- duced a new class of powerful feudatories, was hostile to the interests and policy of the sovereign, and retarded the subju- gation of the ancient aristocracy. But an usage coeval with the monarchy was not to be abrogated, and the scarcity of money rendered it impossible to provide for the younger branches of the royal family by any other means. It was restrained, however, as far as circumstances would permit. Philip IV. declared that the county of Poitiers, bestowed by him on his son, should revert to the crown on the extinction of male heirs. But this, though an important precedent, was not, as has often been asserted, a general law. Charles V. limited the appanages of his own sons to twelve thousand livres of annual value in land. By means of their appan- ages, and through the operation of the Salic law, which made their inheritance of the crown a less remote contingency, the princes of the blood royal in France Avere at all times (for the remark is applicable long after Louis XL) a distinct an^ FiiANCE. APPANAGES. 57 formidable class of men, whose influence was always disad- vantageous to the reigning monarch, and, in general, to the people. No appanage had ever been granted to France so enormous as the duchy of Normandy. One-third of the whole national revenue, it is declared, was derived from that rich province. Louis could not, therefore, sit down under such terms as, with his usual insincerity, he had accepted at Conttans. In a very short time he attacked Normandy, and easily compelled his brother to take refuge in Brittany ; nor were his enemies ever able to procure the restitution of Charles's appanage. During the rest of his reign Louis had powerful coalitions to with- stand; but his prudence and compliance with circumstances, joined to some mixture of good fortune, brought him safely through his perils. The Duke of Brittany, a prince of mod- erate talents, was unable to make any formidable impression, though generally leagued with the enemies of the king. The less powerful vassals were successfully crushed by Louis with decisive vigor ; the duchy of Alen9on was confiscated ; the Count of Armagnac was assassinated ; the Duke of Nemours, and the constable of St. Poll, a politician as treacherous as Louis, who had long betrayed both him and the Duke of Burgundy, suffered upon the scaffold. The king's brother Charles, after disquieting him for many years, died suddenly in Guienne, which had finally been granted as his appanage (a.d. 1472). Edward IV. of England was too dissipated and too indolent to be fond of war ; and, though he once entered France with an army more considerable than could have been expected after such civil bloodshed as England had witnessed, he was induced, by the stipulation of a large pension, to give up the enterprise. So terrible was still in France the appre- liension of an English war, that Louis prided himself upon no part of his policy so much as the warding this blow (a.d. 1475). Edward showed a desire to visit Paris ; but the king gave him no invitation, lest, he said, his brother should find some handsome woman there, who might tempt him to re- turn in a different manner. Hastings, Howard, and other of Edward's ministers, were secured by bribes in the interest of Louis, which the first of these did not scruple to receive at the same time from the Duke of Burgundy. § 15. This Avas the most powerful enemy whom the craft of Louis had to counteract. In the last days of the feudal system, when the house of Capet had almost acliieved the subjugation of those proud vassals among whom it had been 58 THE HOUSE OF BURGUNDY. Chap. I. Pakt II. originally numbered, a new antagonist sprang up to dispute the field against the crown. John, king of France, granted the duchy of Burgundy, by way of appanage, to his third son, Philip. By his marriage with Margaret, heiress of Louis, count of Flanders, Philip acquired that province, Artois, the county of Burgundy '' (or Franche-comte), and the Nivernois. Philip the Good, his grandson, who carried the prosperity of this family to its height, possessed himself, by various titles, of the several other provinces which composed the Nether- lands. These were fiefs of the empire, but latterly not much dependent upon it, and alienated by their owners without its consent. At the peace of Arras the districts of Macon and GENEALOGICAL TABLE OF THE SECOND DUCAL HOUSE OF BUUGUNDY. John, king of France, inherits tlie duchy as nearest lieir male of the late Duke Philippe de Kouvre, l.'iOl. Philip, fourth sou of King John, creat<'d Duke of Burgundy, 136-1, ob. 1404. I Jean Sanspeur, killed at Moulereau, Ml'J. I Philip (le Bon), ob. 1407. 1 Charles (le Tenieraire), ob. 1477. Mary, duchess of Burgundy=Ma.xiniilian, arcluKike of Austria. Philip, archduke of Austria, = Juana, heiress of Castile and Aragon. and sovereign of the Netherlands, I ob. 1506. Charles V., king of Spain, sovereign of the Netherlands, and emperor, 1519. Auxerre were absolutely ceded to Philip, and great part of Picardy conditionally made over to him, redeemable on the payment of four hundred thousand crowns. These extensive, though not compact dominions, were abundant in population and wealth, fertile in corn, wine, and salt, and full of com- mercial activity. Thirty years of peace which followed the treaty of Arras, with a mild and free government, raised the subjects of Burgundy to a degree of prosperity quite unpar- alleled in these times of disorder; and this was displayed in general sumptuousness of dress and feasting. The court of Philip and of his son Charles was distinguished for its pomp and riches, for pageants and tournaments ; the trappings of chivaliy, perliaps without its spirit; for the military character of Burgundy had been ini})aired by long tranquillity. ' See Note VIIL, p. 68. France. CHARLES THE BOLD. 59 During the lives of Philip and Charles VII. each under- stood the other's rank, and their amity was little interrupted. But their successors, the most opposite of human kind in character, had one common quality, ambition, to render their antipathy more powerful. Louis was eminently timid and suspicious in policy ; Charles intrepid beyond all men, and blindly presumptuous ; Louis stooped to any humiliation to reach his aim ; Charles was too haughty to seek the fairest means of strengthening his party. An alliance of his daugh- ter with the Duke of Guienne, brother of Louis, was what the malcontent French princes most desired and the king most dreaded; but Charles, either averse to any French con- nection, or willing to keep his daughter's suitors in depend- ence, would never directly accede to that or any other proposition for her marriage. On Philij)'s death, in 1467, he inherited a great treasure, which he soon wasted in the prosecution of liis schemes. These were so numerous and vast, that he had not time to live, says Comines, to complete them, nor would one-half of Eurojie have contented him. It was his intention to assume the title of king ; and the em- peror Frederick III. was at one time actually on his road to confer this dignity, when some suspicion caused him to retire, and tlie project was never renewed. It is evident that, if Charles's capacity had borne any proportion to liis pride and courage, or if a prince less politic than Louis XL had been his contemporary in France, the province of Burgundy must have been lost to the monarchy. For several years these great rivals were engaged, sometimes in open hostility, sometimes in endeavors to overreach each other ; but Charles, though not much more scrupulous, was far less an adept in these mysteries of politics than the king. Notwithstanding the power of Burgundy, there were some disadvantages in its situation. It presented (I speak of all Charles's dominions under the common name, Burgundy) a very exposed frontier on the side of Germany and Switzer- land, as well as France ; and Louis exerted a considerable influence over the adjacent princes of the empire, as well as the united Cantons. The people of Liege, a very populous city, had for a long time been continually rebelling against their bishops, who were the allies of Burgundy ; Louis was of course not backward to foment their insxirrections, which sometimes gave the dukes a great deal of trouble. The Flem- ings, and especially the people of Ghent, had been during a century noted for their republican spirit and contumacious CO DEATH OF CHARLES THE BOLD. Chap. I. Paut II. defiance of their sovereign. Liberty never wore a more im- aniiable countenance than among these burghers, who abused the strength slie gave them by cruelty and insolence. Ghent was absolutely impregnable at a time when artillery was very imperfect both in its construction and management. Hence, though the citizens of Ghent were generally beaten in the field with great slaughter, they obtained tolerable terms from their masters, who knew the danger of forcing them to a desperate defence. An almost uninterrupted success had attended the duke's enterprises for a length of time, and rendered his disposition still more overweening. His first failure was before Neuss, a little town near Cologne (a.d. 1474), the possession of which would have made him nearly master of the whole course of the Khine, for he had already obtained the landgraviate of Alsace. Though compelled to raise the siege, he succeeded in occupying, next year, the duchy of Iforraine. But his overthrow was reserved for an enemy whom he despised, and whom none could have thouglit equal to the contest. The Swiss had given him some slight provocation, for which they were ready to atone; but Cluirles was unused to forbear; and perhaps Switzerland came within his projects of conquest. At Granson, in the Fays de Vaud, he was entirely routed, with more disgrace than slaughter. But having reassembled his troops and met the confederate army of Swiss and Ger- mans at Morat, near Friburg, he was again defeated with vast loss. On this day the power of Burgundy was dissipated: deserted by his allies, betrayed by his mercenaries, he set his life u])on another cast at Nancy, desperately giving battle to the Duke of Lorraine with a small dispirited army, and perished in the engagement (a.d. 1477). § 1(5. Now was the moment when Louis, who had held back wlule his enemy was breaking his force against the rocks of Switzerland, came to gather a harvest which his labor had not reaped. Charles left an only daughter, undoubted heiress of Flanders and Artois, as well as of his dominions out of France, but whose right of succession to the duchy of Bur- gundy was more questionable. Originally the great fief of the crown descended to females, and this was the case with respect to the two first mentioned. But John had granted Burgundy to his son Philip by way of appanage ; and it was contended that the appanages reverted to the crown in defaiilt of male heirs. In the form of Philip's investiture, the ducliy was granted to him and his lawful heirs, without designation France. LOUIS XI.— HIS ILLNESS. 61 of sex. The construction, therefore, must be left to the estab- lished course of law. This, however, was by no means ac- knowledged by Mary, Charles's daughter, who maintained both that no general law restricted appanages to male heirs, and that Burgundy had always been considered as a feminine fief, John himself having possessed it, not by reversion as king (for descendants of the first dukes were then living) but by inheritance derived through females. There was one obvious mode of preventing all further con- test, and of aggrandizing the French monarchy far more than by the reunion of Burgundy. This was the marriage of Mary with the dauphin, which was ardently wished in France. Whatever obstacles might occur to this connection it was nat- ural to expect on the o])posite side — from Mary's repugnance to an infant husband, or from the jealousy which her sul)jectswere likely to entertain of being incorporated with a country worse governed than their own. The arts of Louis would have been well employed in smoothing these impediments. But he chose to seize upon as many towns as, in those critical circumstances, lay exposed to him, and strip})ed the young duchess of Artois and Franche-comte. Expectations of the marriage he some- times held out, but, as it seems, without sincerity. Indeed, he contrived irreconcilably to alienate Mary by a shameful perfidy, betraying the ministers whom she had intrusted upon a secret mission to the people of Ghent, who put them to the torture, and afterwards to death, in the presence and amidst the tears and supplications of their mistress. Thus the French alliance becoming odious in France, this princess married (a.d. 1477) Maximilian of Austria, son of the Emperor Frederick — a connection which Louis strove to prevent, though it was im- possible then to foresee that it was ordained to retard the growth of France and to bias the fate of Europe during three hundred years. This war lasted till after the death of Mary, who left one son, Philip, and one daughter, Margaret. By a treaty of ])eace concluded at Arras, in 1482, it was agreed that this daughter should become the dauplun's wife, with Franche- comte and Artois, which Louis held already, for her dowry, to be restored in case the marriage should not take effect. The homage of Flanders was reserved to the crown. § 17. Meanwhile Louis was lingering in disease and tor- ments of mind, the retribution of fraud and tyranny. Two years before his death he was struck with an a])oplexy, from wl'icli he never wliolly recovered. As he felt his disorder in- creasing, he shut himself up in a palace near Tours, to hide 62 LOUIS XI. — HIS CHARACTER. Chap. I. Paiit II. from the world the knowledge of his decline.^ His solitude was like that of Tiberius at Caprete, full of terror and suspi- cion, and deep consciousness of universal hatred. All ranks, he well knew, had their several injuries to remember : the clergy, whose liberties he had sacrificed to the Bee of Rome, by revoking the Pragmatic Sanction of Charles VII. ; the princes, whose blood he had poured upon the scaffold ; the Par- liament, whose course of justice he had turned aside ; the commons, who groaned under his extortion, and were plundered by his soldiery.^ The palace, fenced with portcullises and spikes of iron, was guarded by archers and cross-bow-men, who shot at any that approached by night. Few entered this den ; but to them he showed himself in magnificent apparel, contrary to his former custom, hoping thus to disguise the change of his meagre body. He distrusted his friends and kindred, his daughter and his son, the last of whom he had not suffered even to read or write, lest lie should too soon become his rival. No man ever so much feared death, to avert which he stooped to every meanness and sought every remedy. His physician had sworn that if he were dismissed the king woiild not sur- vive a week ; and Louis, enfeebled by sickness and terror, bore the rudest usage from this man, and endeavored to secure his services by vast rewards. Always credulous in relics, though seldom restrained by superstition from any crime, he eagerly bought up treasures of this sort, and even procured a Calabrian hermit, of noted sanctity, to journey as far as Tours in order to restore his health. Philip de Comines, who attended him during his infirmity, draws a parallel between the torments he then endured and those he had formerly inflicted on others. Indeed the whole of his life was vexation of spirit. '' I have known him," says Comines, " and been his servant in the flower of his age, and in the time of his greatest prosperity ; but never did I see him Avithout uneasiness and care. Of all amusements he loved only the chase, and hawking in its sea- son. And in this he had almost as much xmeasiness as pleasure ; for he rode hard and got up early, and sometimes went a great way, and regarded no weather ; so that he used to return very weary, and almost ever in wrath with some one. I think that 8 Plessis, his last residence, about an English mile from Tours, is now a dilapidated farm-house, and can never have been a very large building. The vestiges of royalty about it are few ; but the principal apartrnents have been destroyed, either iii the course of ages or at tlie revolution. 'J See !i remarkable chapter in riiilip de Comines, 1. iv. c. 19, wherein he tells us that Charles VII. had never raised more than 1,800,000 francs a year in taxes ; but Louis XI. at the time of his death, raised 4,700,000, exclusive of some military impositions; et suremeut c'estoit compassion de voir et scavoir la pauvrete du peuple. France. AFFAIRS OF BRITTANY. 63 from his childhood he never had any respite of labor and trouble to his death. And I am certain that if all the happy days of his life, in which he had more enjoyment than uneasi- ness, were numbered, they would be found very few ; and at least that they would be twenty of sorrow for every one of pleasure." § 18. Charles VIII. was about thirteen years old when he succeeded his father Louis (a.d. 1483). Though the law of France fixed the majority of her kings at that age, yet it seems not to have been strictly regarded on this occasion, and at least Charles was a minor by nature, if not by law. A con- test arose, therefore, for the regency, which Louis had intrusted to his daughter Anne, Avife of the Lord de Beaujeu, one of the Bourbon family. The Duke of Orleans, afterwards Louis XIL, claimed it as presumptive heir of the crown, and was seconded by most of the princes. Anne, however, maintained her ground, and ruled France for several years in her brother's name with singular spirit and address, in spite of the rebellions which the Orleans party raised up against her. These were supported by the Duke of Brittany, the last of the great vassals of the crown, whose daughter, as he had no male issue, was the object of as many suitors as Mary of Burgundy. The duchy of Brittany was peculiarly circumstanced. The inhabitants, whether sprung from the ancient republicans of Armorica, or, as some have thought, from an emigration of Britons during the Saxon invasion, had not originally belonged to the body of the French monarchy. They were governed by their own princes and laws, though tributary, perhaps, as the weaker to the stronger, to the Merovingian kings. In the ninth century the dukes of Brittany did homage to Charles the Bold, the right of which was transferred afterwards to the dukes of iSTormandy. This formality, at that time no token of real subjection, l<^d to consequences beyond the views of either party. For when the feudal chains that had liung so loosely upon the shoulders of the great vassals began to be straightened by the dexterity of the court, Brittany found itself drawn among the rest to the same centre. The old privi- leges of independence were treated as usurpation; the dukes were menaced with confiscation of their fief, their right of coining money disputed, their jurisdiction impaired by appeals to the Parliament of Paris, However, they stood boldly upon their right, and always refused to pay liege homage, which implied an obligation of service to the lord, in contradistinc- tion to simple homage, which was a mere symbol of feudal 64 THE FRENCH MONARCHY. Chap. I. Part II. dependence. In Francis II., the fhen duke, the male line of that family Avas about to be extinguished. His daughter Anne was naturally the object of many suitors, and was at length mar- ried by proxy to Maximilian, king of the Komans (a.d. 1489). But France was resolved at all events to break off so dangerous a connection. And as IMaximilian himself was unable, or took not sufficient pains, to relieve Ins betrotlied wife from her em- barrassments, she Avas ultimately compelled to accept the hand of Charles VIII. He had long been engaged by the treaty of Arras to marry the daughter of Maximilian, and that princess was educated at the French court. But this engagement had not prevented several years of hostilities, and continual in- trigues with the towns of Flanders against Maximilian. The double injury which the latter sustained in the marriage of Charles with the heiress of Brittany seemed likely to excite a protracted contest; but the King of France, who had other objects in vicAv, and perhaps was conscious that he had not acted a fair part, soon came to an accommodation, by which he restored Artois and Franche-comte. Both these provinces had revolted to Maximilian ; so that Charles must have continued the Avar at some disadvantage (a.d. 1492). France Avas noAV consolidated into a great kingdom: the feudal system was at an end. The vigor of Bliilip Augustus, the paternal Avisdom of St. Loiiis, the policy of Philip the Fair, had laid the foundations of a poAverfid monarchy, Avhich neither the arms of England, nor seditions of Paris, nor re- bellions of the princes, Avere able to shake. Besides the origi- nal tiefs of the French crown, it had acquired tAvo countries beyond the Rhone, which properly depended only upon the empire — Dauphine, under Philip of Valois, by the bequest of Humbert, tlie last of its princes ; and Provence, under Louis XI., by that of Charles of Anjou.^" Thus having conquered herself, if I may use the phrase, and no longer apprehensive of any foreign enemy, France Avas prepared, under a monarch flushed with sanguine and)ition, to carry her arms into other countries, and to contest the ])rize of glory and pOAver upon the am})le theatre of Europe." 1" Tlic (•ountry now crillcd Oatipliiiic' formefl part of the kingdom of Arlos or Pro- vence, l)i'ijiie;itlii(l hy Uodoliih III. to tluM'niporor, Conrad I. But tlic dominion of the empire over tliese new aciiuisitions l)eing little more tlian nominal, a few of the chief nobility converteil tlnir resijcelive fiefs into independent pvineipalities. One of these was the lord or dauphin of Vicnne, whose family became ulfimately masters of the whole province, rrovenee, like Dauphine, waschanged from afeudal depend- ency to a sovereignty, in the weakness and dissolution of the kingdom of Aries, about the early part of the eleventh century. !• See NoTi'; IX., " Authorities for French History." NOTES TO CHAPTER I. 65 NOTES TO CHAPTER I. I. THE ARJIORICAN REPUBLIC. The existence of an Armorican Kepub- lic is now admitted by most French his- torians. Early in tlie fiftli century, ac- cording to Zosinuis (vi. 5), about the time when Constantine usurped tlie tlirone of Britain and Gaul, or, as the sense shows, a little later, in consequence of the incursions of the barbarians from be- yond the Rhine, the natives of Britain, taking up arms for themselves, rescueil their cities from these baibarians; and the whole Armorican territory, and otlier provinces of Gaul, in imitation of the Britons, liberated themselves in the same manner, expelling the Roman rulers, and establishing an internal government. Martin considers tliat this confederation extended as far as Aquitaine, and em- braced some cities of the central provinces, as well as Armorica proper. — (" Histoire de France," vol. i. p. 339.) II. THE FRANKS. The Franks are not among the German tribes mentioned by Tacitus, nor do they appear in history before the year 240. They were probably a confederation of the tribes situa'ted between tlie Rhine, the AVeser, and the Main; as the Alemanni were a similar league to the south of the last river. Their origin may be derived from the necessity of defemling their in- dependence against Rome; but tliey had become the aggressors in the jieriod when we read of them in Roman history; and, like other Inirhariaiis in that age, were often the purchased allies of the declining empire. M. Lehuerou conceives them to have been a race of exiles or outlaws from other German tribes, taking the name Franc from fircli, fierce or bold, and set- tling at first, by necessity, near the month of the En)e, wlience they moved onward to seek better habitation's at the expense of less intrepid, though more civilized, na- tions. — (" Institutions Merovingiennes," vol. i. p. 91.) Although the Prankish tribes were nominally independetit of each other, each possessing its own chieftain, yet in pro- cess of time a certain predominance was acquired by one or two overthe rest. The warlike Snlians, who towards the close of the third century obtained a fixed settle- ment in the north of Gaul, became, in consequence of this success and other ad- vantages, the dominant tribe; and it was from one of their families, that of the Me.rominiis or children of Merowig, that the confederation chose its military lead- ers, as occasion arose. Such is the ori- gin of what is commonly called the Mero- vingian line of kings. III. THE CONSULSHIP OF CLOVIS. The theory of Dubos, who considers Clovis as a sort of lieutenant of the em- peror's, and as governing the Roman part of his subjects by no other title, is partly counteiKinced by (iibbon, and has been revived, in almost its fullest extent, by a learned and spirited investigator of early history. Sir Francis Palgrave, in his " Rise and I'rogress of the English Common- wealth," i. 300. The truth seems to be that the investiture of Clovis with the consular dignity by the Eastern emperor, although it added nothing to his real pow- er, was a fortunate circumstance of which the coiKiueror gladly took advantage to ratify and consolidate his already ac- quired sovereignty. It is plain, from the account given by Gregory of Tours, that both Clovis himself and his subjects, bar- barian and Roman, attached considerable importance to the fact. M. I-,chuc'ron, in his " Institutions Merovingiennes," ar- rives at the following conclusions; 'J'liat the definitive establishment of theFianks in Roman Gaul resulted at the same time from the voluntary concessions of the emperors and from their violent aggres- sions. That the Merovingians reigned I)artly by legitimate .succession and partly by right of conquest. That Clovis, whose reign did not comnience till after the fall of the Western Empire, nevertheless rec- ognized, like the Visigoths of Sj)ain, the Cstrogoths of Italy, and the liuignndians of Gaul, the superiority, and up to a cer- tain point the siizcrttiiisliip, of the em- perors of the East. That the Gallo-Ro- man pro\'incials coincided in this view, and that consequently their acipiiescence in the government of Clovis became more willing and more complete from the mo- nient of his nomination as f^onsnl and Patrician, acknowledged dignities of the ancient empire. Lastly, that, long after Clovis and his posterity had become inde- pendent masters of Gaiil, the Merovingian princes looked upon \ln' Eastern emper- ors as their xiiperiors, and addressed them, when occasion arut this could not have been an absolute al)andonment of land once cultivated, which Horace ascribes to the migratory Scythians. The Germans had fixed though not contiguous dwellings, and the inhabitants, of the gau or township must have continued to till the same fields, though it might be with varying rights of separate property. They had kings elected out of partic- ular families ; and other chiefs, both for war and administra- tion of justice, whom merit alone recommended to the public choice. But the power of each was greatly limited ; and the decision of all leading questions, though subject to the previ- ous deliberations of the chieftains, sprung from the free voice of a popular assembly. The principal men, however, of a German tribe fully partook of tliat estimation which is always the reward of valor, and commonly of birth. I'hey were sur- rounded by a cluster of youths, the most gallant and ambitious of tlie nation, their pride at home, their protection in the field ; whose ambition was flattered, or gratitude conciliated, by such presents as a leader of barl)arians could confer. These were the institutions of the people who overtlu-ew the empire of TO PARTITION OF CONQUESTS. Chap. II. Paet I. Rome, congenial to the spirit of infant societies, and such as travellers have found among nations in the same stage of manners throughout the world. And although, in the lapse of four centuries between the ages of Tacitus and Clovis, some change Avas wrought by long intercourse with the Romans, yet the foundations of their political system were unshaken. If the Salic laws were in the main drawn up before the occupa- tion of Gaul b}^ the Franks, as seems the better opinion, it is manifest that lands were held by them in determinate several possession: and in other respects it is impossible that the manners described by Tacitus should not have imdergone some alteration. § 2. When these tribes from Germany and the neighboring countries poured down upon the empire, and began to forjn permanent settlements, they made a partition of the lands in the conquered provinces between themselves and the original possessors. Tlie Burgimdians and Visigoths took two-thirds of their respective conquests, leaving the remainder to the Roman proprietor. Each Burguudian Avas quartered, under the gentle name of guest (hospes), upon one of the former ten- ants, whose reluctant hospitality confined him to the smaller portion of his estate. The Vandals in Africa, a more furious race of plunderers, seized all the best lands. The Lombards of Italy took a third part of the produce. We cannot discover any mention of a similar arrangement in the laAvs or history of the Franks. It is, hoAvever, clear that they occupied, by public allotment or individual pillage, a great portion of the lands of France. § 3. The estates possessed by the Franks as their property were termed allodial ; a AA^ord which is sometimes restricted to such as had descended by inheritance.^ These Avere subject to no burden except that of pidjlic defence. They passed to all the children equally, or, in their failure, to the nearest kindred. But of these allodial possessions there was a partic- ' Allodi.il lands are commonly opposed to beneficiary or feudal; the former being stricLly proprietary, while the latter depended upon a superior. In this sense tlie word is of continual recurrence in ancient histories, laws, and instruments. It some- times, however, bears the sense of inheritance. Hence, in the charters of the eleventh century, hereditary tiefs are frequently termed allodia. The word allod or alod, in Latin aloi/is, in Freiieli nlleu, is of uncertain etymology. It has usually been thought to be conii)()unded videntlv composed of tliose who spoke the rustic Roman tongue — the corrupt language which, in the tenth or eieventii century, became worthy of the name of French: and this was the case, as we have just seen, iu part of Austrasia, as Champagne and Lorraine 74 CLOVIS. Chap. II. Pakt I. ancient usages, the latter by the Eoman law down to the French revolution ; the laws of Justinian, in the progress of learning, having naturally taken the place of the Theodosian.6 § 7. The kingdom of Clovis was divided into a number of districts, each under the government of a count, a name famil- iar to Roman subjects, by Avdiich they rendered the graf oi the Germans.^ The authority of this officer extended over all the inhabitants, as well Franks as natives. It was his duty to administer ji;stice, to preserve tranquillity, to collect the royal revenues, and to lead, when required, the free proprietors into the field. The title of a duke implied a higher dignity, and commonly gave authority over several counties. ^ These offi- ces were originally conferred during pleasure ; but the claim of a son to succeed his father Avould often be found too plausible or too formidable to be rejected, and it is highly i)robable that, even under the Merovingian kings, these provincial governors had laid the foundations of that indei^endence which was des- tined to change the countenance of Europe. The Lombard dukes, those especially of Spoleto and Benevento, acquired very early an hereditary right of governing tlieir provinces, and that kingdom became a sort of federal aristocracy. The throne of France was always filled by the royal house of Meroveus. However com])lete we may imagine the elec- tive rights of the Franks, it is clear that a fundamental law restrained them to this family. Such, indeed, had been the monarchy of their ancestors the Germans ; such long continued to be those of Spain, of England, and perhaps of all European nations. The reigning family was immutable ; but at every vacancy the heir awaited the contirmation of a })opular elec- tion, Avhether that were a substantial privilege or a mere cere- mony. Exceptions, however, to the lineal succession are rare in the history of any country, unless where an infant heir was thought unfit to rule a nation of freemen. But, in fact, it is vain to expect a system of constitutional laws rigidly observed in ages of anarchy and ignorance. Those antiquaries who have maintained the most opposite theories upon such points are sel- dom in want of particular instances to support their respective conclusions. 8 This subject is fully treated in Savigiiy's work, " History of the Roman Law in the ]\Ii(idle Ages." ' The word graf was not always equivalent to comes ; it took in some countries, as in Kngland, the form gerefa, and stood for the vicecomes or sheriff, the count or alderman's deputy. 8 Some have supposed these titles to have been applied indifferently. But the contrary is easily proved, and especially by a line of Kortunatus: Qui modo dat Comitis, det libi jura Ducis. Feudal System. CLOVIS. — KINGLY TOVVER. 75 Clovis was a leader of barbarians, who respected his valor and the rank which they liad given him, but were incapable of servile feelings, and jealous of their common as well as indi- vidual rights. In order to appreciate the power which he pos- sessed, it has been customary with French writers to bring forward the well-known story of the vase of Soissons. When the plunder taken in Clovis's invasion of Gaul was set out in this ])lace for distribution, he begged for himself a precious vessel belonging to the Church of iiheims. The army having expressed their willingness to consent, " You shall have noth- ing here," exclaimed a soldier, striking it with his battle-axe, " but Avliat falls to your share by lot." Clovis took the vessel Avithout marking any resentment, but found an opportunity, next year, of revenging himself by the death of the soldier. The whole behavior of Clovis appears to be that of a barbarian chief, not daring to withdraw any thing from the rapacity, or to chastise the rudeness, of his followers. But if such was the liberty of the Franks when they first became conquerors of Gaul, we have good reason to believe that they did not long preserve it. A people not very numer- ous spread over the spacious provinces of Gaul, wherever lands were assigned to or seized by them. It became a burden to attend those general assemblies of the nation which were annually convened in the month of March, to deliberate upon public business, as well as to exhibit a muster of military strength. After some time it appears that these meetings drew together only the bishops, and those invested with civil offices. ■ The ancient inhabitants of Gaul, having little notion of political liberty, were unlikely to resist the most tyrannical conduct. Many of them became officers of state, and advisers of the sovereign, whose ingenuity might teach maxims of des- potism unknown in the forests of Germany. We shall scarcely wrong the bishops by suspecting them of more pliable courtli- ness than was natural to the long-haired warriors of Clovis. Yet it is probable that some of the Franks were themselves instrumental in this change of their government. The court of the Merovingian kings was crowded with followers, who have been plausibly derived from those of the German chiefs de- scribed by Tacitus ; men forming a distinct and elevated class in the state, and known by the titles of Fideles, Leudes, and Antrustiones. They took an oath of fidelity to the king upon their admission into that rank, and were commonly remuner- ated Avith gifts of land. Under different appellations Ave find, as some antiquaries think, this class of courtiers in the early 76 THE NOBILITY. Cu.u\ II. Pakt I. records of Lonibardy and England. The general name of Yassals (from Givas, a Celtic word for a servant) is applied to them in every country. By the assistance of these faithful su})porters it has been thought that the regal authority of Clovis's successors was insured. However this may be, the annals of his more immediate descendants exhibit a course of oppression, not merely displayed, as will often happen among uncivilized people, though free, in acts of private injustice, but in such general tyranny as is incompatible with the exist- ence of any real checks upon the sovereign. But before the middle of the seventh century the kings of this line had fallen into that contemptible state which has been described in the last chapter. The mayors of the-palace, who from mere officers of the court had now become masters of the kingdom, were elected by the Franks, not indeed the whole body of that nation, but the provincial governors and considerable proprietors of land. Some inequality there prob- ably existed from the beginning in the partition of estates, and this had been greatly increased by the common changes of property, by the rapine of those savage times, and by royal munificence. Thus arose that landed aristocracy which be- came the most striking feature in tlie political system of Europe during many centuries, and is, in fact, its great distinc- tion both from the despotism of Asia and tlie equality of republican governments. § 8. There has been some dispute about the origin of nobil- ity in France, which might perhaps be settled, or at least better understood, by fixing our conception of the te-rm. In our modern acceptation it is usually taken to imply certain distinctive privileges in the political order, inherent in the blood of the possessor, and conserpiently not transferable like those which property confers. Limited to tliis sense, nobility, I conceive, was unknown to the conquerors of Gaul till long after the downfall of the Roman Empire. They felt, no doubt, the common prejudice of mankind in favor of those whose an- cestry is conspicuous, when comi)ared with persons of obscure birth. This is the primary meaning of nobility, and jjerfectly distinguishable from the ])Ossession of exclusive civil rights. Those who are acquainted with the constitution of the Roman republic will recollect an instance of the difference between these two species of hereditary distinction, in the j^atricii and the nohilefi. Though I do not think that the tribes of German origin paid so much regard to genealogy as some Scandinavian and Celtic nations (else the beginnings of the greatest houses Fkudal System. FISCAL LANDS. — BENEFICES. 77 would not have been so enveloped in doul)t as we find them), there are abundant traces of the respect in which families of known antiquity were held among them. But the essential distinction of ranks in France, perhaps also in Spain and Lombardy, was founded upon the possession of land, or u])on civil employment. The aristocracy of wealth preceded that of birth, which indeed is still chiefly dependent upon tlie other for its importance. A Frank of large estate was styled a noble ; if he wasted or was despoiled of his wealth, his descendants fell into the mass of the people, and the new ])Ossessor became noble in his stead. Families were noble by descent, because they were rich by the same means. Wealth gave them power, and power gave them pre-eminence. But no distinction was made by the Salic or Lombard codes in the composition for homicide, the great test of political station, except in favor of the king's vassals. It seems, however, by some of the barbaric codes, those namely of the Burgundians, Visigoths, Saxons, and the English colony of the latter nation, that the free men were ranged by them into two or three classes, and a difference made in the price at which their lives were valued : so that there certainly existed the elements of aristocratic privileges, if we cannot in strictness admit their completion at so early a period. The Antrustiones of the kings of the Franks were also noble, and a composition was paid for their murder treble of that for an ordinary citizen ; but this was a personal, not an hereditary, distinction. A link was wanting to connect their eminent privileges with their posterity ; and this liidv was to be supplied by hereditary benefices. § 9. Besides the lands distributed among the nation, others were reserved to the crown, partly for the support of its dig- nity, and partly for the exercise of its munificence. These are called Fiscal Lands ; they were dispersed over different parts of the kingdom, and formed the most regular source of revenue. But the greater portion of them were granted out to favored subjects, under the name of benefices, subsequently called FiEFs,^ the nature of wliich is one of the most important points in the policy of these ages. Benefices were, it is prob- 9 The ierxn fief { feodum, fei(,dum)ho^an to be applied to benefices when tliey became hereditary, and first occurs in a capitulary of tlie reign of the Emperor Cliarles tlie Fat, A. 11. S84. Different etymologies are given of tliis word ; that which seems most prol)able derives it from feh, salary or pay, and odh, property — implying that it was land conferred as a reward or recompense of services. Others refer it to the Latin fides ; others again, among whom is Lehuerou, prefer the Teutonic rooX foden, nutrire. Sir F. I'nlgrave deduces it ingeniously, but with slight probability, from the Jtoman law-term emphijteusis. 78 SUB-IXFEUDATION^. Chap. II. Takt I. able, most frequently bestowed upon the professed courtiers, the Antrustiones or Leudt'S, and upon the provincial gov- ernors. It by no means appears that any conditions of military service were expressly annexed to these grants : but it may justly be presumed that such favors were not conferred with- out an expectation of some return ; and we read both in law and history that beneficiary tenants were more closely con- nected with the crown than mere allodial proprietors. Whoever possessed a benefice was expected to serve his sovereign in the field. But of allodial proprietors only the owner of three mansi ^° Avas called upon for personal service. Where there were three possessors of single mansi, one went to the army, and the others contributed to his equipment. jSIost of those who have written upon the feudal system lay it down that benefices Avere originally precarious, and revoked at pleasure by the sovereign ; that they were afterwards granted for life ; and at a subsequent period became heredi- tary. No satisfactory proof, however, appears to have been brought of the first stage in this progress. The ordinary duration of benefices was at least the life of the possessor, alter which tliey reverted to the fisc ; but they soon became hereditaiy. Cliildren would naturally put in a very strong claim to what their father had enjoyed ; and the weakness of the crown in the seventh century must have rendered it diffi- cult to reclaim its property. A natural consequence of hered- itary benefices was that those who possessed them carved out portions to be held of themselves by a similar tenure. Abun- daut proofs of this custom, best known by the name of Sub- Infcudation, occur even in the capitularies of Pepin and Charlemague. At a later period it became universal ; and what had begun perhaps through ambition or pride was at last dictated by necessity. In that dissolution of all law which ensued after the death of Charlemagne, the powerful leaders, constautly engaged in domestic warfare, placed their chief dependency upon men whom they attached by gratitude, and bound by strong conditions. The oath of fidelity which they had taken, the homage which they had paid to the sover- eign, they exacted from their own vassals. To render military service became the essential obligation which the tenant of a benefice undertook ; and out of those ancient grants, now be- come for the most part hereditary, there grew up in the tenth !•> The precise area of a niansus i^ uncertain It consisted, according to Du Cange, of twelve jiigera ; but what lie meant by a juger, is not stated. The ancient Roman juger was about five-eighths of an acre ; the raiisianarpcut was a fourth more thun yue. This would make a dillereuce as two to ouc. Feudal System. MILITARY SERVICE. 79 century, botli iu name and reality, the system of feudal tenures. This revohition "vras accompanied by another still more important. The provincial governors, the dukes and counts, to whom we may add the marquises or margraves intrusted with, the custody of the frontiers, had taken the lead in all public measures after the decline of the Merovingian kings. Charlemagne, duly jealous of their ascendency, checked it by suffering the duchies to expire without renewal, by granting very few counties hereditarily, by removing the administra- tion of justice from the hands of the counts into those of his own itinerant judges, and, if we are not deceived in his policy, by elevating the ecclesiastical order as a counterpoise to that of the nobility. But iu the t?ntli century there followed an entire prostration of the royal authority, and the counts usurped their governments as little sovereignties, with the domains and all regalian rights, subject only to the feudal superiority of the king. They now added the name of the county to their own, and their wives took the appellation of countess. In Italy, the independence of tlie dukes was still more complete ; and although Otho the Great and his descend- ants kept a stricter rein over those of Germany, yet we find the great fiefs of their empire, throughout the tenth century, granted almost invariably to the male and even female heirs of the last possessor. Meanwhile, the allodial proprietors were exposed to the ra- pacity of the counts, who, whether as magistrates or gov- ernors, or as overbearing lords, had it always in their power to harass them. Every district was exposed to continual hostilities ; sometimes from a foreign enemy, more often from the owners of castles and fastnesses, which in the tenth cen- tury, under pretence of resisting the Kormans and Hunga- rians, served the purposes of private war. Against such a system of rapine the military compact of lord and vassal was the only effectual shield ; its essence was the reciprocity of service and protection. But an insulated allodialist had no support. Without law to redress his injuries, without the royal power to sup])ort his right, he had no course left but to compromise with oppression, and subject himself, in return for protection, to a feudal lord. This was usually called comviendatlon, which created a personal relation between lord and vassal, closely resembling that of ])atron and client in the Roman republic. Though originally this comviendatlon had no relation to land, but created a merely personal tie — fidelity so CHANGE OF TENURES. Chap. II. Part T. in return for prutectiuii — it is easy to conceive that the allodialist who obtained this privilege, as it might justly ap- pear in an age of rapine, must often do so by subjecting himself to the law of tenure. In this way, during the tenth and eleventh centuries, allodial lands in France had chiefly become feudal. There is a famous edict of the emperor Conrad II., sur- named the Salic, at Milan, in the year 1037, which, though immediately relating only to Lombardy, marks the full ma- turity of the feudal system, and the last stage of its progress. Four regulations of great importance are established tliere- in : that no man should be deprived of his fief, Avhether held of the emperor or a mesne lord, but by the laws of the empire and the judgment of his peers ; and that from svich judgment an immediate vassal might appeal to his sover- eign ; that fiefs should be inherited by sons and their children, or, in their failure, by brothers, provided they were fevda paterna, such as had descended from the father ; and that the lord should not alienate the fief of his vassal without his consent. Such Avas the progress of these feudal tenures, which de- termined the political character of every European monarchy where they prevailed, as well as formed the foundations of its jurisprudence. It is imi)ortant to keep in mind that the feudal system Avas the general establishment of a peculiar relation between the sovereign (not as king, but as lord) and his immediate vassals ; between these again and others stand- ing to them in the same relation of vassalage, and thus fre- quently through several links in the chain of tenancy. If this relation, and especially if the latter and essential element, sub-infeudation, is not to be found, there is no feudal system, though there are many analogies to it, more or less remark- able or strict. If the reader asks what were the immediate causes of establishing this polity we must refer him to three alone — to the grants of beneficiary lands to the vassal and his heirs, without which there could hardly be sub-infeudation ; to the analogous grants of official honors, particularly that of count or governor of a district ; and, lastly, to the voluntary conversion of allodial into feudal tenure, through free land- holders submitting their persons and estates, by way of com- mendation, to a neighboring lord or to the count of a district. All tliese — though several instances, especially of the first, occurred much earlier — belong generally to the ninth century, and may be supposed to have been fully accomplished about Feudal System. PRIKCIPLES OF FEUDAL RELATION. SI the beginning of the tenth ; to which period, therefore, and not to an earlier one, we refer the feudal system in France. It is now time to describe the legal qualities and effects of this relation, so far only as may be requisite to understand its influence upon the political system. § 10. The essential principle of a fief was a mutual contract of support and fidelity. Whatever obligations it laid upon the vassal of service to his lord, corresponding duties of pro- tection were imposed by it on the lord towards his vassal. If these were transgressed on either side, the one forfeited his land, the other his seigniory or rights over it. Nor were mo- tives of interest left alone to operate in securing the feudal connection. The associations founded upon ancient custom and friendly attachment, the impulses of gratitude and honor, the dread of infamy, the sanctions of religion, were all em- ployed to strengthen these ties, and to render them equally powerful with the relations of nature, and far more so than those of political society. It was a question agitated among tlie feudal lawyers, whetlier a vassal was bound to follow the standard of his lord against the king. In the works of those who wrote when the feudal system was declining, or who were anxious to maintain the royal authority, this is commonly decided in the negative. But it was not so during the heiglit of the feudal system in France. The vassals of Henry II. and Richard I. never hesitated to adhere to them against the sovereign, nor do they appear to have incurred any blame on that account. § 11. The ceremonies used in conferring a fief were princi- pally three — Homage, Fealty, and Investiture. 1. The first was designed as a significant expression of the submission and devotedness of the vassal towards his lord. In perform- ing Homage,^^ his head was uncovered, his belt ungirt, his sword and spurs removed ; he placed liis hands, kneeling, be- tween those of the lord, and promised to become his man from henceforward ; to serve him with life and limb and worldly honor, faithfully and loyally, in consideration of the lands which he held under him. Xone but tlie lord in person could accept homage, which was commonly concluded by a kiss. 2. An oath of Fealty ^'^ was indispensable in every fief ; but the ceremony was less peculiar than that of homage, and it might be received by proxy. It was taken by ecclesiastics, but not by minors ; and in language differed little from the form of homage. 3. Itivestiture ^^ or the actual conveyance of " Homagmm, hominium,, '- FUlpJilas. '^ Investura. 82 TER]kI OF MILITARY SERVICE. Chap. tl. Part I. feudal lands, was of two kinds ; proper and improper. The first was an actual putting in possession upon the ground, either by the lord or his deputy ; which is called, in our law, livery of seisin. The second was symbolical, and consisted in the delivery of a turf, a stone, a wand, a branch, or whatever else might have been made visual by the caprice of local custom. § 12. Upon investiture, the duties of the vassal com- menced. These it is impossible to define or enumerate ; be- cause the services of military tenure, which is chiefiy to be considered, were in their nature uncertain, and distinguished as such from those incident to feuds of an inferior description. It was a breach of faith to divulge the lord's counsel, to con- ceal from him the machinations of others, to injure his person or fortune, or to violate the sanctity of his roof and the honor of his family. In battle he was bound to lend his horse to his lord when dismounted ; to adhere to his side, while fight- ing ; and to go into captivity as a hostage for him, when taken. His attendance was due to the lord's courts, sometimes to witness, and sometimes to bear a part in, the administration of justice. The measure, however, of military service was generally settled by some usage. Forty days was the usual term during which the tenant of a knight's fee Avas bound to be in the field at his own expense. This was extended by 8t. Louis to sixty days, except when the charter of infeudation expressed a shorter period. But the length of service diminished with the quantity of land. For half a knight's fee but twenty days were due ; for an eighth part but five ; and when this was commuted for an escuage or pecuniary assessment, the same proportion was observed, ^* Men turned of sixty, public magistrates, and, of course, women, were free from personal service, but obliged to send their substitutes. A failure in this primary duty incurred perhaps strictly a forfeiture of the fief. But it was usual for the lord to inflict an amercement, known in England by the name of escuage. The regulations as to the place of service were less uniform than those which regarded time. In some places the vassal was not bound to go beyond the lord's territory, or only so far as that he might return the same day. Other customs compelled him to follow 1* The knight's fee was fixed in England at the annual value of £20. Every estate supposed to be of tliis value, and entered as such in the rolls of the exchequer, was bound to contribute the service of a soldier, or to pay an escuage to the amount assessed upon knights' fee. Feitdal System. FEUDAL INCIDENTS. 83 Lis chief upon all his expeditions. These inconvenient and varying usages betrayed the origin of the feudal obligations, not founded upon any national policy, but springing from the chaos of anarchy and intestine war, which they were well cal- culated to perpetuate. For the public defence their machinery was totally unserviceable, until such changes were wrought as destroyed the character of the fabric. § 13. Independently of the obligations of fealty and ser- vice, which the nature of the contract created, other advantages were derived from it by the lord, which have been called feu- dal incidents: these were, 1. Keliefs. 2. Fines upon aliena- tion. 3. Escheats. 4. Aids ; to which may be added, though not generally established, 5. Wardship, and 6. Marriage. (1.) A Relief was a sum of money (unless where charter or custom introduced a different tribute) due from every one of full age, taking a fief by descent. This was in some countries arbitrary, and the exactions practised under this pretence both upon superior and inferior vassals, ranked among the greatest abuses of the feudal policy. Henry I. of England promises in his charter that they shall in future be just and reasonable ; but the rate does not appear to have been finally settled till it was laid down in Magna Charta at about a fourth of tlie annual value of the fief. By a law of St. Louis, in 1245, the lord was entitled to enter upon the lands, if the heir could not pay the relief, and possess them for a year. This right existed unconditionally in England under the name of primer seisin, but was confined to the king. (2.) Closely connected with reliefs were the Fines vpon alienation — tliat is, the fines paid to the lord upon the alien- ation of his vassal's • feud ; and indeed we frequently find them called by the same name. The spirit of feudal tenure established so intimate a connection between the two parties that it could be dissolved by neither without requiring the other's consent. If the lord transferred his seigniory, the tenant was to testify his concurrence ; and this ceremony was long kept up in England under the name of attornment. The assent of the lord to his vassal's alienation was still more essential, and more difficult to be attained. He had received his fief, it was supposed, for reasons peculiar to himself or to his family ; at least his heart and arm were bound to his supe- rior ; and his service was not to be exchanged for that of a stranger, who might be unable or unwilling to render it. By the law of France the lord was entitled, upon every alienation made by his tenant, either to redeem the fief by paying the 84 RELIEFS, FI:N"ES, ESCHEATS, AIDS. Chap. II. Part I. purchase-money, or to claim a certain part of the vahie, by- way of fine, upon the change of tenancy. -^^ (3.) Escheats. — As fiefs descended but to the posterity of the first taker, or at the utmost to his kindred, they necessarily became sometimes vacant for Avant of heirs ; especially where, as in England, there was no power of devising them by will. In this case it was obvious that they ought to revert to the lord, from whose property they had been derived. These re- versions became more frequent through the forfeitures occa- sioned by the vassal's delinquency, either towards his superior lord or the estate. Various cases are laid down in the " Assises de Jerusalem," where the vassal forfeits his land for a year, for his life, or forever. But under rapacious kings, siTch as the Norman line in England, absolute forfeitures came to pre- vail, and a new doctrine was introduced — the corruption of blood, by which the heir was effectually excluded from dedu- cing his title at any distant time through an attainted ancestor. (4.) lieliefs, fines upon alienation, and escheats, seem to be natural reservations in the lord's bounty to his vassal. He had riglits of another class which principally arose out of fealty and intimate attachment. Such were the aids Avhich he was entitled to call for in certain j'trescribed circumstances. These depended a great deal \\\)0\\ local custom, and were often extorted unreasonably. Hence by Magna Gharta three only were retained in England — to make the lord's eldest son a knight, to marry his eldest daughter, and to redeem his person from prison. They were restricted to nearly the same description by a law of AVilliam I. of Sicily, and by the customs of France. These feudal aids are deserving of our attention, as the beginnings of taxation, of which- for a long time they in a great measure answered the purpose, till the craving ne- cessities and covetous ])olicy of kings substituted for them more durable and onerous burdens. I might here, perhaps, close the enumeration of feudal in- cidents, but that the two remaining, wardship and marriage, though only ]iartial customs, were those of our own country, and tend to illustrate the rapacious character of a feudal aristocracy. "' In Eiifjland oven the practicp of siil) infouilation, which was more conformable to the hiw of liefs ami the military genius of tlie svsteni, but injurious to tlie suzer- ains, who lost thereljy their escheats and otlier advantages of seigniory, was checked by I\Iagna Cliarta, and forbidden i)y the statute Is Kdward 1., called Quia Rmptores, which at the same time gave the liberty of alienating lands to be holden of the grantor's immediate lord. The tenants of tlie crown were not included in this act; but that of 1 Kdward III., c. 1'-', enabled them to alienate, upon the payment of a composition into chancery, which was tixed at one-third of the annual value of the lands. Feudal System. WARDSHIP, MARRIAGE. 85 (5.) In England, and in Normandy, whicli either led tlie way to, or adopted, all these English institutions, the lord had the xvardship of his tenant during minority. By virtue of this right he had both the care of his person and received to his own use the profits of the estate. There is something in this custom very conformable to the feudal spirit, since none was so fit as the lord to train up his vassal to arms, and none could put in so good a claim to enjoy the fief, while the military service for which it had been granted was suspended. This privilege of guardianship seems to have been enjoyed by the lord in some parts of Germany ; but in the law of France the custody of the land was intrusted to the next heir, and that of the person, as in socage tenures among us, to the nearest kindred of that blood which could not inherit. By a gross abuse of this custom in England, the right of guardian- ship in chivalry, or temporary possession of the lands, was assigned over to strangers. This was one of the most vexa- tious i:)arts of our feudal tenures, and was never, perhaps, more sorely felt than in their last stage under the Tudor and Stuart families. (6.) Another right given to the lord by the Norman and English laws was that of Marriage, or of tendering a husband to his female wards while under age, whom they could not reject without forfeiting the value of the marriage — that is, as much as any one would give to the guardian for such an alliance. This was afterwards extended to male wards, and became a very Incrative source of extortion to the crown, as well as to mesne lords. This custom seems to have had the same extent as that of wards]iii)S. It is found in the ancient books of Germany, but not of France. The kings, however, and even inferior lords, of that country, required their con- sent to be solicited for the marriage of their vassals' daugh- ters. Several proofs of this occur in the history as well as in the laws of France; and the same prerogative, existed in Germany, Sicily, and England. These feudal servitudes distinguish the maturity of the system. No trace of them ap[)ears in the capitularies of Charlemagne and his family, nor in the instruments by which benefices were granted. I l)elieve that they did not make part of the regular feudal law before the eleventh, or, perhaps, the twelfth century, though doubtless partial usages of this kind had grown up antecedently to either of those periods. Indeed, that very general commutation of allodial property into tenure which took place between the middle of the ninth and eleventh 86 PROPER AJiTD IMPROPER FEUDS. Chap. II. Part I. centuries would hardly have been effected if fiefs had then been liable to such burdens and so much extortion. In half- barbarous ages the strong are constantly encroaching upon the weak ; a truth Avhich, if it needed illustration, might find it in the ])rogress of the feudal system. § 14. We have thus far coniined our inquiry to fiefs holden on terms of military service ; since those are the most ancient and regular, as well as the most consonant to the sjiirit of the system. They alone are called ])roper feuds, and all were pre- sumed to be of this description until tlie contrary was proved by the charter of the investiture. A proper feud was bestowed without price, without fixed stipulation, upon a vassal capable of serving personally in the held. But gradually, with the help of a little legal ingenuity, improper fiefs of the most va- rious kinds were introduced, retaiidng little of the character- istics, and less of the spirit, which distinguished the original tenures. Women, if indeed that Avere an innovation, were admitted to inherit them ; they were granted for a price, and without reference to military service. The language of the feudal law was applied by a kind of metaphor to almost every transfer of property. Hence pensions of money and allowance of provisions, however remote from right notions of a hef, were sometimes granted under that name ; and even where land was the subject of tlie donation, its conditions were often lucrative, often honorar}', and sometimes ludicrous. There is one extensive species of feudal tenure which may be distinctly noticed. The pride of wealth in the Middle Ages Avas principally exhibited in a multitude of dependents. The court of Charlemagne was crowded with officers of every rank, some of the most eminent of whom exercised functions about the royal person which would have been thought fit only for slaves in the palace of Augustus or Antonine. The free-born Franks saw notliing menial in the titles of cup- bearer, steward, marshal, and master of the horse, which are still borne by the noblest families in many parts of Europe, and, till lately, by sovereign princes in the empire. From the court of the king this favorite piece of magnificence descended to tliose of the prelates and barons, who surrounded themselves with household officers called ministerials ; a name equally ap- ])lied to those of a servile and of a liberal description. The latter of these were rewarded witli grants of lands, which they held under a feudal tenure by the condition of performing some domestic service to the lord. What was called in our Feudal System. FEUDAL INCIDENTS. 87 law grand sergeantiy affords an instance of this species of These imperfect feuds, however, belong more properly to the liistory of the law, and are chiefly noticed in the present sketch because they attest the partiality manifested during the Middle Ages to the name and form of a feudal tenure. In the regular military lief we see the real principle of the system, which might originally have been defined an alliance of free land-holders arranged in degrees of subordination according to their respective capacities of affording mutual support. § 15. The peculiar and varied attributes of feudal tenures naturally gave rise to a new jurisprudence, regulating terri- torial rights in those parts of Europe which had adopted the system. For a length of time this rested in traditionary customs observed in the domains of each jjrince or lord, without much regard to those of his neighbors. Laws were made occasionally by the emperor in Germany and Italy, which tended to fix the usages of those countries. About the year 1170, Girard and Ubertus, two Milanese lawyers, published two books of the law of fiefs, which obtained a great authority, and have been regarded as the groundwork of that jurisprudence. A number of subsequent commenta- tors swelled this code with their glosses and opinions, to en- lighten or obscure the judgment of the imperial tribunals. These were chiefly civilians or canonists, who brought to the interpretation of old barbaric customs the principles of a very different school. Hence a manifest change was wrought in the law of feudal tenure, which they assimilated to the usu- fruct or the emphyteusis of the Roman code ; modes of ])rop- erty somewhat analogous in appearance, but totally distinct in principle, from the legitimate fief. These Lombard lawyers propagated a doctrine which has been too readily received, that the feudal system originated in their country. But whatever weight it may have possessed within the limits of the empire, a different guide must be followed in the ancient customs of of France and England. These were fresh from the fountain that curious polity with which the stream of Roman law had never mingled its waters. In England we know that the i« " This tenure," says Littleton, " is where a man holds his lands or tenements of our sovereign lord the king by sucli services as he ought to do in his proper person to the king, as to carry the banner of the king, or his lance, or to lead his array, or to be Ills marshal, or to carry his sword before liim at his coronation, or to be his sewer at his coronation, or his carver, ur his butler, or to be one of liis chamberlains at the receipt of his exchequer, or to do other like services." — Sect. 153. 88 COMMON LAW. Chap. II. Pakt I. Norman system establislied between the Conquest and the reign of Henry II. was restrained by regular legislation, by paramount courts of justice, and by learned writings, from breaking into discordant local usages, exce})t in a comparatively small number of places, and has become the principal source of our common law. But the independence of the French nobles produced a much greater variety of customs. The whole number collected and reduced to certainty in the sixteenth century amounted to two hundred and eighty-live, or omitting those inconsiderable for extent or peculiarity, to sixty. The earliest written customary in France is that of Beam, which is said to have been confirmed by Viscount Gaston IV. in 1088. Many others were written in the two subsequent ages, of which the customs of Beauvoisis, compiled by Beaumanoir under Philip III., are the most celebrated, and contain a mass of information on the feudal constitution and manners. Under Charles VII. an ordinance was made for the formation of a general code of customary law, by ascertaining forever in a written collection those of each district; but the work was not completed till the reign of Charles IX. This was what may be called the common law of the pays coutumiers, or northern division of France, and the rule of all their tribu- nals, unless where controlled by royal edicts. Feudal System. ANALYSIS OF FEUDAL SYSTEM. 89 PART II. § - Analysis of the Feudal System. § 2. Its Local Extent. § 3. View of the dif- ferent Orders of Societ" during the Feudal Ages. Nobility. Their Ranks and Priv- ileges. § 4. Clergy. § 5. Freemen. § 6. Serfs or Villeins. § 7. Comparative State of France and Germany. §8. Privileges enjoyed by the French Vassals. Right of coining Money. §9. Right of Private War. §10. Immunity from Taxation. His- torical View of tlie Royal Revenue in France. Methods adopted to augment it by Depreciation of till- (Join, etc. §11. Legislative Power. Its State under the Mero- vingian Kings, ;niil charlcnuign*'. His Councils. § 12. Suspension of any general le- gislative Authority (luring the Prevaknceof Feudal Principles. The King's Council. § 13. Jleans adopted to supply tlie \V;int of a National Assembly. § 14. Gradual Pro- gress of the King's Legislative Power. § 15. Philip IV. assembles the States-Gen- eral. Their Powers limited to Taxation. §10. States under the Sons of Philip IV. §17. States of l.i55 and KiaO. They nearly etfect an entire Revolution. §18. The Crown recovers its Vigor. § 19. States of 1380, and Charles VI. Subsequent As- semblies under Charles VI. and Charles VII. §20. 'i'he Crown becomes more and more absolute. Louis XL § 21. States of Tours in 1484. §22. Historical View of Jurisdiction in France. Its earliest Stage under the first Race of Kings, and Charle- magne. §23. Territorial Jurisdiction. Feudal t'ourts of Justice. § 24. Trial by Combat. § 25. Code of St. Louis. §20. The territorial Jurisdictions give way. Pro- gress of the Judicial Power of theCrown. § 27. I'arliament of Paris. § 28. Peers of France. §29 Increased Authority of the Parliament. Registration of Edicts. § 30. Causes of the Decline of the Feudal System. Acquisitions of Domain by the Crown. §31. Charters of Incorporation granted to Towns. First Charters in the Twelfth Century. §32. Privileges contained in them. §.33. Military Service of Feudal Tenants commuted for Money. Hired Troops. Change in the Military System of Europe. §34. Decay of Feudal Principles. §35. General View of the Advantages and Disadvantages attending the Feudal System. § 1. The advocates of a Roman origin for most of the in- stitutions which we find in the kingdoms erected on the ruins of the empire are naturally prone to magnify the analogies to feudal tenure which Rome presents to us, and even to deduce it either from the ancient relation of patron and client, and that of personal commendation, which was its representative in a later age, or from the frontier lands granted in the third cen- tury to tlie Laeti, or barbarian soldiers, who held them, doubt- less, subject to a condition of military service. The usage of commendation especially, so frequent in the fifth century, be- fore the conquest of Gaul, as well as afterwards, does certainly bear a strong analogy to vassalage, and I have already pointed it out as one of its sources. It wanted, however, that definite relation to the tenure of land which distinguished the latter. The royal Antrustio (whether the word commendatus were ap- plied to him or not) stood bound by gratitude and loyalty to his sovereign, and in a very different degree from a common subject; but he was not perhaps strictly a vassal till he had 90 EXTENT OF FEUDAL SYSTEM. Chap. II. Part II. received a territorial benefice.^ The complexity of sub-iufeii- datioii could have no analogy in commendation. The grants to veterans and to the Lajti are so far only analogous to fiefs, that they establish the principle of holding hands on a condition of military service. But this service was no more than what, both under Charlemagne and in England, if not in other times and places, the allodial freeholder was bound to render for the defence of the realm ; it was more commonly required, because the lands were on a barbarian frontier ; but the duty was not even very analogous to that of a feudal tenant. The essence of a fief seems to be, that its tenant owed fealty to a lord, and not to the state or the sovereign ; the lord might be the latter, but it was not, feudally speaking, as a sovereign that he was obeyed. This is, therefore, sufficient to warrant us in tracing the real theory of feuds no higher than the Merovingian his- tory in France; their full establishment, as has been seen, is considerably later. But the preparatory steps in the constitu- tions of the declining empire are of considerable importance, not merely as analogies, but as predisposing circumstances, and even germs to be subsequently developed. The beneficiary tenure of lands could not well be brought by the conquerors from Germany ; but the donatives of arms or precious metals bestowed by the chiefs on their followers were also analogous to fiefs ; and, as the Koman institutions were one source of the law of tenure, so these were another. It is of great importance to be on our guard against seeming analogies which vanish away when they are closely observed. We should speak inaccurately if Ave were to use the word feudal for the service of the Irish or Highland clans to their chieftain ; their tie was that of imagined kindred and respect for birth, not the spontaneous compact of vassalage. Much less can we extend the name of feud, though it is sometimes strangely misapplied, to the polity of Poland and Russia. All the Polish nobles were equal in rights, and independent of each other; all who were less than noble were in servitude. No government can be more op})osite to the long gradations and mutual duties of the feudal system. § 2. The regular machinery and systematic establishment of feuds, in fact, may be considered as almost confined to the dominions of Charlemagne, and to those countries which after- wards derived it from thence. In England it can hardly be 1 This word " vassal " is uspfl very inclefinitoly ; it means, in its original sense, only a servant or riependent. IJiit in the Coutinentul records of histories we com- monly find it applied to feudal tenants, Feudal System. ORDERS OF SOCIETY. 91 tliouglit to have existed in a complete state before the Con- quest. Scotland, it is supposed, borrowed it soon after from her neighbor. The Lombards of Benevento had introduced feudal customs into the Neapolitan provinces, which the Nor- man conquerors afterwards perfected. Feudal tenures were so general in the kingdom of Aragon, that I reckon it among the monarchies which were founded upon that basis. Charle- magne's enipire, it must be remembered, extended as far as the Ebro. Bu.t in Castile and Portugal they were very rare, and certainly could produce no political effect. Benefices for life were sometimes granted in the kingdoms of Denmark and Bohemia. Neither of these, however, nor Sweden nor Hun- gary, comes under the description of countries influenced by tlie feudal system. That system, however, after all these limita- tions, was so extensively diffused, that it might produce con- fusion as well as prolixity to pursue collateral branches of its history in all the countries where it prevailed. But this em- barrassment may be avoided without any loss, I trust, of important information. The English constitution will find its place in another portion of this volume ; and the political con- dition of Italy, after the eleventh century, was not much af- fected, except in the kingdom of Naples, by the laws of feudal tenure. I shall confine myself, therefore, chiefly to France and Germany ; and far more to the former than the latter country. But it may be expedient first to contemplate the state of society in its various classes during the prevalence of feudal principles, before we trace their influence upon the national government. § 3. It has been laid down already as most probable that no proper aristocracy, except that of wealth, was known under the early kings of France ; and it was hinted that hereditary bene- fices, or, in other words, fiefs, might supply the link that was wanting between personal privileges and those of descent. The possessors of beneficiary estates were usually the richest and most conspicuous individuals in the estate. Tliey were immediately connected with the crown, and partakers in the exercise of justice and royal counsels. Their sons now canie to inherit this eminence; and, as fiefs were either inalienable, or at least not very frequently alienated, rich families were kept long in sight ; and, whether engaged in public affairs, or living with magnificence and hospitality at home, naturally drew to themselves popular estimation. The dukes and counts, who had changed their quality of governors into that of lords over the provinces intrusted to them, were at the head of this 92 THE NOBILITY. Cuap. II. Pakt II. noble class. And in imitation of tliem, tlieir own vassals, as well as those of the crown, and even rich allodialists, assnmed titles from their towns or castles, and thns arose a nnmber of petty counts, barons, and viscounts. This distinct class of nobility became co-extensive with the feudal tenures. For the military tenant, however poor, Avas subject to no tribute ; no prestation, but service in the held ; he was the companion of his lord in the sports and feasting of his castle, the peer of his court ; he fought on horseback, he was clad in the coat of mail, while the commonality, if summoned at all to war, came on foot, and witli no armor of defence. As everything in the habits of society conspired with that prejudice which, in spite of moral philosophers, will constantly raise the profession of arms above all others, it was a natural consequence tliat anew species of aristocracy, founded upon the mixed considerations of birth, tenure, and occupation, sju'ung out of the feudal sys- tem. Every possessor of a fief was a gentleman, though he owned but a few acres of land, and furnished his slender con- tribution towai'd the equipment of a knight. There still, however, wanted something to ascertain gen- tility of blood Avhere it was not marked by the actual tenure of land. This was supplied by two innovations devised in the eleventh and twelfth centuries — the adoption of surnames and of armorial bearings. The first are commonly referred to the former age, when the nobility began to add the names of their estates to their own, or, having any way acquired a dis- tinctive appellation, transmitted it to their ])osterity. As to armorial bearings, there is no doubt that emblems some- what similar have been immemorially used both in war and peace. The shields of ancient warriors, and devices upon coins or seals, bear no distinct resemblance to modern blazonry. But the general introduction of such bearings, as hereditary distinctions, has been sometimes attributed to tournaments, wherein the cliam])ions were distingidshed l)y fanciful devices ; sometimes to the Crusades, where a multitude of all nations and languages stood in need of some visible token to denote the banners of their respective chiefs. In fact, the peculiar symbols of heraldry point to both these sources, and have been borrowed in part from each. Hereditary arms were perhaps scarcely used by private families before the beginning of the thirteenth century, ^'rom that time, however, they became very general, and have contributed to elucidate that branch of history which regards tiie descent of illustrious families. When the privileges of birth had thus been rendered capable Feudal Systkm. THE NOBILITY. 93 of legitimate proof, they were enhanced in a great degree, and a line drawn between the high-born and ignoble classes almost as broad as that which separated liberty from servitude. All offices of trust and power were conferred on the former ; those excepted which appertain to the legal profession. A plebeian could not possess a hef.^ Such at least was the original strict- ness ; but as the aristocratic principle grew weaker, an indul- gence was extended to heirs, and afterwards to purchasers. They were even permitted to become noble by the acquisition, or at least by its possession for three generations. But not- withstanding this ennobling quality of the land, which seems rather of an equivocal description, it became an established right of the crown to take, every twenty years, and on every change of the vassal, a hue, known by the name of franc-fief, from plebeians in possession of land held by a noble tenure.' A gentleman in France or Germany could not exercise any trade without derogating, that is, losing the advantages of his rank. A few exceptions were made, at least in the former country, in favor of some liberal arts and of foreign commerce. But in nothing does the feudal haughtiness of birth more show itself than in the disgrace which attended unequal marriages. No children could inherit a territory held immediately of the empire unless both their parents belonge 1 to the higher class of nobility. In France the offspring of a gentleman by a ple- beian mother were reputed noble for the purposes of inherit- ance, and of exemption from tribute.* But they coidd not be received into any order of chivalry, though capable of simple knighthood ; nor were they considered as any better than a bastard class deeply tainted with the alloy of their maternal extraction. Many instances occur where letters of nobility have been granted to reinstate them in their rank. For several purposes it was necessary to prove four, eight, sixteen, or a greater number of quarters — that is, of coats borne by paternal and maternal ancestors ; and the same practice still subsists in Germany. It appears, therefore, that the original nobility of the Conti- nent were Avhat we may call self-created, and did not derive - We have no English word that coiweys the full sense of roturier. How glorious is this delicii'iicy in our political language", and how ditTerent are the ideas suggested by commoner ! Roturier, according to Du Cange, is derived from rupturarious, a peasant, ab agrum rumpendo. 3 The right, originally perhaps usurpation, called franc-fief, began under Philip the Fair. " Ordonnances des Rois," t. i., p. 324; Uenisart, art. " Franc-fief." * Nobility, to a certain degree, was communicated througli the mother alone, not oiilv hv the custom of riiampagne, but in all parts of France; that is, tlie issue were " irentillioiiimes du fait de leur corps," and could possess tiefs ; but, says Heaumanoir, " la gentilesse par laquelle ondevient chevalier doit veuir de par le pere," c. 45. 94 PRIVILEGES OF THE NOBILITY. Chap. II. 1'akt II. their rank from any such concessions of their respective sover- eigns as have been necessary in subsequent ages. In England the baronies by tenure miglit belong to the same class, if the lands upon which they depended had not been granted by the crown. But the kings of France, before the end of the thir- teenth century, began to assume a privilege of creating nobles by their own authority, and without regard to the tenure of land. Philip the Hardy, in 1271, was the first French king who granted letters of nobility ; under the reigns of Philip the Fair and his children they gradually became frequent. This effected a change in the character of nobility, and had as obvi- ous a moral, as other events of the same age had a political, influence in diminishing the power and independence of the territorial aristocracy. The privileges originally connected with ancient lineage and extensive domains became common to the low-born creatures of a court, and lost consequently part of their title to respect. The lawyers, as I have observed above, pretended that nobility could not exist without a royal conces- sion. They acquired themselves, in return for their exaltation of prerogative, an official nobility by the exercise of magistracy. The institutions of chivalry again gave rise to a vast increase of gentlemen, knighthood, on whomsoever conferred by the sovereign, being a sufficient passport to noble privileges. It was usual, perliaps, to grant previous letters of nobility to a plebeian for whom the honor of knighthood was designed. In this noble or gentle class there were several gradations. All those in France who held lands immediately depending upon the crown, whatever titles they might bear, were com- prised in the order of Barons. These were originally the peers of the king's court ; they possessed the higher territorial jurisdiction, and had the right of carrying their own banner into the field. To these corresponded the Valvassores majores and Capitanei of the Empire. In a subordinate class were the vassals of this high nobility, who, ujion the Continent, were usually termed Varassors — an appellation not unknown, though rare, in England.^ The Chatelains (Castellani) belonged to the order of Vavassors, as tliey held only arriere fiefs ; but, having 5 Chaucer conclndps his picturesque descrfjition of the Franklin, in tlie prologue to the " Canterbury Tales," thus : " Was never such a worthy Vavassor." This has perplexed some of our commentators, who, not knowing well what was meant by a franklin or by a vavassor, fancied the latter to be of much higher quality than the former. The poet, however, was strictly correct; his acquaintance with French manners showed him that the country squire, for his franklin is no other, pre- cisely corresponded to the vavassor in France. Feudal System. STATUS OF THE CLERaY. 95 fortified houses, from which they derived their name (a dis- tinction very important in tliose times), and possessing ampler riglits of territorial justice, they rose above the level of tlieir fellows in the scale of tenure.^ But after the personal nobility of chivalry became the object of pride, the Vavassors who ob- tained knighthood were commonly styled bachelors ; tliose who had not received that honor fell into the class of squires,'^ or Damoiseaux. § 4. It will be needless to dwell upon the condition of the inferior clergy, whether secular or professed, as it bears little upon the general scheme of polity. The prelates and abbots, however, it must be understood, were completely feudal nobles. They swore fealty for their lands to the king or other superior, received the homage of their vassals, enjoyed the same immu- nities, exercised the same jurisdiction, maintained the same authority, as the lay lords among whom they dwelt. Military service does not appear to have been reserved in the beneficiary grants made to cathedrals and monasteries. But when other vassals of the crown were called upon to repay the bounty of their sovereign by personal attendance in war, the ecclesiasti- cal tenants were supposed to fall within the scope of this feudal duty, which men little less uneducated and violent than their compatriots were not reluctant to fulfil. Charlemagne ex- empted or rather proliibited them from personal service by several capitularies. The practice, however, as every one who has some knowledge of history will be aware, prevailed in suc- ceeding ages. Both in national and private warfare we find very frequent mention of martial prelates. But, contrary as this actual service might be to the civil as well as ecclesiastical laws, the clergy Avho held military fiefs Avere of course bound to fulfil the chief obligation of that tenure and send their vassals into the field. We have many instances of their accom- " Whoever hart .-iriirlit to a castle hart la haute justice r tliis being so incirteiit to tlie castle that it was transferred along with it. I'licre might, however, be a seigneur haut-justicier below the chatehiin; anrt a ridiculous distiiietion was made as to the number of posts by which their gallows might be supported. A baron's instrument of execution stood on four posts; a chatelain's on three; while the inferior lord who liappened to possess la haute justice was forced to hang his subjects on a two-legged machine. " Cofltumes de Poitou; Du Cange, v. Furca." Ijauri^re quotes from an old manuscript the following sliort scale of r.anks : Due est la premiere dignite, puis comtes. jiuis viscomtes, et puis baron, et puis chatelain, et puis vavasseur, et puis citaen, et puis villain. — "Ordonnaaces des Rois," t. i. p. v:77. ' The sons of knights, and giiithnien not yet knighted, took the appellation of squires in the twelfth century. That of Damoiseau came into use in the thirteenth. The latter was more usual in I'^rance. Squire w.as not used as a title of distinction in England till the reign of Edward III., and then but sparingly. Though by Henry VI. 's time it was grown more common, yet none assumed it but the sons and heirs of knights and some military men, except offlcers in courts of justice, who, by patenter prescription, had obtained that addition. 96 FREEMEN. Chap. II. Part II. panying the army, tliougU not mixing in the conflict ; and even the parish priests headed the militia of their viUages. The prelates, however, sometimes contrived to avoid this military service, and the payments introduced in commutation for it, by holding lands in frank-almoigne, a tenure wliich exempted them from every species of obligation except that of saying masses for the benefit of the grantor's family. But, notwithstanding the warlike disposition of some ecclesiastics, their more usual inability to protect the estates of their churches against rapa- cious neighbors suggested a new species of feudal relation and tenure. The rich abbeys elected an advocate, whose business it was to defend their interests both in secular courts, and, if necessary, in the field. Pepin and Charlemagne are styled Advocates of the Roman Church. This, indeed, was on a magnificent scale; but in ordinary practice the advocate of a monastery was some neighboring lord, who, in return for his protection, possessed many lucrative privileges, and very fre- quently considerable estates, by way of fief from his ecclesias- tical clients. Some of those advocates are reproached with violating their obligation, and b;^coming the plunderers of those whom tliey had been retained to defend. § 5. The classes below the gentry may be divided into free- men and villeins. Of the first were the inhabitants of char- tered towns, the citizens and burghers, of whom more will be said presently. As to those who dwelt in the country, we can have no ditticulty in recognizing, so far as England is concerned, the socagers, whose tenure was free, though not so noble as knight's service, and a numerous body of tenants for term of life, who formed that ancient basis of our strength the English yeomanry. Hut the mere freemen are not at first sight so dis- tinguishal)l(! in other countries. In French records and law- books of feudal times, all besides the gentry are usually confounded \uider the names of villeins or honimes de pooste (gens potestatis).* This proves the slight estimation in which all persons of ignoble birth were considered. For undoid^tedly there existed a great many proprietors of land and others, as free, tliough not as privileged, as the nobility. In the south of France, and especially Provence, the number of freemen is remarked to have been greater than in the parts on the right bank of tlie Loire, where the feudal tenures were almost uni- versal. I shall quote part of a passage in Peaumanoir, which points out this distinction of ranks pretty fully. " It should 8 Homo potestMtis, non nobilis — It.i nunciipantiir, quod in potestate doiiiiiii sunt — Opponuntur viris nobilibus. — Du Cauge, v, " Potestasi." Feudal System. SERFS, OR VILLEINS. 97 be kiiowu," he says,^ " that there are three conditions of men in this world ; the tirst is that of gentlemen ; and the second is that of such as are naturally free, being born of a free mother. All who have a right to be called gentlemen are free, but all who are free are not gentlemen. Gentility comes by the father, and not by the mother ; but freedom is derived from the mother only ; and whoever is born of a free mother is himself free, and has free power to do any thing that is lawful." 10 § 6. In every age and country, until times comparatively recent, personal servitude appears to have been the lot of a large, perhaps the greater, portion of mankind. We lose a good deal of our sympathy with the spirit of freedom in Greece and Rome, when the importunate recollection occurs to us of the tasks which might be enjoined, and the punishments which might be inflicted, without control either of law or opinion, by the keenest patriot of the Comitia, or the Council of Five Thousand. A similar, though less powerful, feeling will often force itself on the mind when we read the history of the Middle Ages. The Germans, in tlieir primitive settle- ments, were accustomed to the notion of slavery, incurred not only by captivity, but by crimes, by debt, and especially by loss in gaming. When they invaded the lloman Empire they found the same condition established in all its provinces. Hence, from the beginning of the era now under review, servi- tude, under somewhat different modes, was extremely common. There is some difficulty in ascertaining its varieties and stages. In the Salic laws, and in the Capitularies, we read not only of Servi, but of Tributarii, Lidi, and Coloni, who were c\iltivators of the earth, and subject to residence upon their lord's estate, though not destitute of. property or civil rights. Those who appertained to the demesne lands of the crown were called Fis- calini. The composition for the murder of one of these was much less than that for a freeman. The number of these servile culti- vators was undoubtedly great, yet in those early times I should conceive, much less than it afterwards became. Property was for the most part in small divisions, and a Frank who could hardly support his family iipon a petty allodial patrimony was not likely to encumber himself with many servants. But the accumulation of overgrown private wealth had a natural tend- ency to make slavery more fretpient. Where the small pro- prietors lost their lands by mere rapine, we may believe that 9 " Cofltutnes de Beauvoisis," c. 45, p. 25fi. 1" See Note II., " Tlie Tributarii, Lidi, and Coloni." 98 SERFS, OR VILLEIKS. Chap. II. Pabt II. their liberty was liardly less endangered. Even where this was not the case, yet, as the labor either of artisans or of free husbandmen was but sparingly in demand, they were often compelled to exchange their liberty for bread. In seasons also of famine, and they were not infrequent, many freemen sold themselves to slavery." A capitulary of Charles the Bald in 864 permits their redemption at an equitable price. Others became slaves, as more fortunate men became vassals, to a powerful lord, for the sake of his protection. IVIany were reduced to tliis state through inability to pay those pecuniary compositions for offences which were numerous and sometimes heavy in the barbarian codes of law; and many more by neglect of attendance on military expeditions of the king, the penalty of which was a fine called Heribann, with the alternative of perpetual servitude. A source of loss of liberty, which may strike us as more extraordinary, was su- perstition ; men were infatuated enough to surrender them- selves, as well as their properties, to churches and monasteries, in return for such benefits as they might reap by the prayers of their new masters. The characteristic distinction of a villein was his obliga- tion to remain upon his lord's estate. He was not only pre- cluded from selling the lands upon which he dwelt, but his person was bound, and the lord might reclaim him at any time, by a suit in a court of justice, if he ventured to stray. But, equally liable to this confinement, there were two classes of villeins, whose condition was exceedingly different. In England, at least from the reign of Henry II., one only, and that the inferior species, existed ; incapable of property, and destitute of redress, except against the most outrageous in- juries. The lord could seize whatever they acquired or in- herited, or convey them, apart from the land, to a stranger. " The poor parly felt the necessity of selling themselves for subsistence in times of famine. " Sulxliilcruiit se paupcrcs servitio," says Gregory of Tours, A. l). 585, " lit oh>gia," vol. xxx., p. 22:5, has extracted an'entrv from an Anglo-Saxon manu- script, where a lady, al)out the time of the Conquest, manumits some slaves, "whose heads," as it is sinipl\ and forcibly expressed, " she liad taken from their meat in the evil days." K\ il, indeed, were those days in France, when out of seventy-three years, the reigns of Hugh Capet and his two successors, forty-eight were years of fannne. Evil were the days for five years from 1015, in the whole Wiestern World, when not a countrv could Ix; named tliat was not destitute of bread. Tliese were famines, as l{:idnlfus (jabler and other contemporary writers tell us, in wliicli mothers ate their children, and cliildren their parents; and luunan flesh was sold, with soni<' pretence of concealment, in the markets. It is probable that England snlt'eied less than France; but so long and frequent a scarcity of necessary food must lun e affected, in the latter country, the whole organic frame of society. Feudal System. CHARACTERISTICS OF VILLENAGE. 99 Their tenure bound them to what were called villein services, ignoble in their nature and indeterminate in their degree; the felling of timber, the carrying of manure, the repairing of roads for their lord, who seems to have possessed an equally unbounded right over their labor and its fruits. But by the customs of France and Germany, persons in this abject state seem to have been called serfs, and distinguished from vil- leins, who were only bound to fixed payments and duties in respect of their lord, though, as it seems, without any legal redress if injured by him. " The third estate of men," says Keaumanoir, in the passage above quoted, " is that of such as are not i'ree ; and these are not all of one condition, for some are so subject to their lord that lie may take all they have, alive or dead, and imprison them whenever he pleases, being accountable to none but Grod ; while others are treated more gently, from whom the lord can take nothing but customary payments, though at their death all they have escheats to him." Under every denomination of servitude, the children fol- lowed their mother's condition; except in England, where the father's state determined that of the children ; on which account bastards of female villeins were born free, the law presuming the liberty of their father. The proportion of freemen, therefore, would have been miserably diminished if there had been no reflux of the tide which ran so strongly towards slavery. But the usage of manumission made a sort of circulation between these two states of mankind. This, as is well known, was an exceedingly common practice Avith the Romans ; and is mentioned, with certain ceremonies pre- scribed, in the Frankish and other early laws. The clergy, and especially several popes, enforced it as a duty upon lay- men ; and inveighed against the scandal of keejnng Chris- tians in bondage. As society advanced in Europe the manu- mission of slaves grew more frequent. By tlie indulgence of custom in some places, or perhaps by original convention, villeins might possess property, and thus ])urchase their own redemption. Even where they had no legal title to projierty, it was accounted inhuman to divest them of their little possession (the peculium of Roman law) ; nor was their pov- erty, perhaps, less toleral)le, upon the whole, than that of the modern peasantry in most countries of Europe. It was only in respect of his lord, it must be remembered, that the villein, at least in England, was without rights ; he might inherit, purchase, sue in the courts of law ; though, as defendant in a 100 ABOLITION OF VILLENAGE. Chap. II. Part II. real action or suit wherein land was claiuied, he might shelter himself under the plea of villenage. The peasants of this con- dition were sometimes made use of in war, and rewarded with enfranchisement ; especially in Italy, where the cities and the petty states had often occasion tt) defend themselves with their own p(jpulation ; and in peace the industry of free laborers must have been found more productive and better directed. Hence the eleventh and twelfth centuries saw the number of slaves in Italy begin to decrease ; early in the tifteenth a writer quoted by Muratori speaks of them as no longer existing. The greater part of the peasants in some countries of Germany had acquired their liberty before the end of the thirteenth century ; in other parts, as well as in all the northern and east- ern regions of Europe, they remained in a sort of villenage till the present age. Some very few instances of predial servitude have been discovered in England so late as the time of Eliza- beth, and perhaps they might be traced still lower. Louis Hutin, in France, after innumerable particular instances of manumission had taken place, by a general edict in 1.S15, reciting that his kingdom is denominated the kingdom of the Franks, that he would have the fact to correspond with the name, emancipates all persons in the royal domains upon pay- ing a just composition, as an exam})le for other lords possessing villeins to follow. Philip the Long renewed the same edict three years afterwards — a proof that it had not been carried into execution. ^^ § 7. At the final separation of the French from the Ger- man side of Charlemagne's em]nre by the treaty of Verdun in 843, there was perhaps hardly any difference in the constitution of the two kingdoms. If any might have been conjectured to have existed, it would be a great(n" independence and fuller rights of election in the nobility and people of Germany. l>ut in the lapse of another century Franco had lost all her political unity, and her kings all their authority ; while the Germanic empire was entirely unl)roken under an effectual, though not absolute, control of its sovereign. No com]:)arison can be made between the power of Charles the Simple and Conrad the First, though the former liad tlie shadow of an hereditary right, and the latter ^vas chosen from among his equals. A '= Prefliiil servitude was not, however, abolished in all parts of France till the Revo- lution. Throughout almost the whole jurisdiction of the Parliament of Besan^on the l>easants were attached to the soil, not being capable of leaving it without the lord's consent ; and that in some places he even inherited their goods in exclusion of the kindred. I recollect to have read in some part of Voltaire's correspondence an anec- dote of his interference, with that zeal against oppression which is the shining side of his moral character, in behalf of some of these wretched slaves of Franche-comte. Feudal System. STATE OF FRANCE AND GEPtMANY. 101 long succession of feeble princes or usurpers, and destructive incursions of the Normans, reduced France almost to a dissolu- tion of society ; while (J-ermany, under Conrad, Henry, and the Othos, found their arms not less prompt and successful against revolted vassals than external enemies. The high dignitaries were less completely hereditary than they had become in France ; they were granted, indeed, pretty regularly, but they were solicited as well as granted ; while the chief vassals of the French crown assumed them as patrimonial sovereignties, to which a royal investiture gave more of ornament than sanc- tion. In the eleventh century these imperial prerogatives began to lose part of their lustre. The long struggles of the princes and clergy against Henry IV. and his son, the revival of more effective rights of election on the extinction of the house, of Franconia, the exhausting contests of the iSwabian emperors in Italy, the intrinsic weakness produced by a law of the empire, according to which the reigning sovereign could not retain an imperial fief more than a year in his hands, gradu- ally prepared that independence of the German aristocracy wliich reached its height about the middle of the thirteenth century. During this period the French crown had been in- sensibly gaining strength ; and as one monarch degenerated into the mere head of a confederacy, the other acquired un- limited power over a solid kingdom. It would be tedious, and not very instructive, to follow the details of German public law during the Middle Ages ; nor are the more important parts of it easily separable from civil history. In this relation they will find a place in a subsequent chapter of the present work. France demands a more minute attention; and in tracing the character of the feudal system in that coun- try, we shall iind ourselves developing the progress of a very different polity. § 8. To understand in what degree the peers and barons of France, during the prevalence of feudal principles, were in- de])endent of the crown, we must look at their leading priv- ileges. These may be reckoned : I. The right of coining money; II. Tliat of waging private war ; III. The exemption from all public tributes, except the feudal aids ; IV. The free- dom from legislative control ; and V. The exclusive exercise of original judicature in their dominions. Privileges so enormous, and so contrary to all principles of sovereignty, might lead us, in strictness, to account France rather a collection of states, partially allied to each other, tlian a single monarchy. I. Silver and gold were not very scarce in the lii'st ages of 102 PRIVILEGES OF FRENCH VASSALS. Chap. II. Part II. the French mouarchy ; but they passed more b}^ weight tlian by tale. A lax and ignorant government, which had not learned the lucrative mysteries of a royal mint, was not par- ticularly solicitous to give its subjects the security of a known stamp in their exchanges. In some cities of France money appears to have been coined by private authority, before the time of Charlemagne ; at least one of his capitularies for- bids the circulation of any that had not been stamped in the royal mint. His successors indulged some of their vo,s- sals with the privilege of coining money for the use of their own territories, bu.t not without the royal stamp. About the beginning of the tenth century, however, the lords, among their other assumptions of independence, issued money with no marks but their own. At the accession of Hugh Capet as many as a hundred and fifty are said to have exercised this power. Even under St. Louis it was possessed by about eighty, who, excluding as far as possible the royal coin from circulation, enriched themselves at their subjects' expense by high duties (seigniorages), which they imposed upon every new coinage, as well as by debasing its standard. Philip the Fair established royal officers of inspection in every private mint. It was asserted in his reign, as a general truth, that no subject might coin silver money. In fact, the adulteration practised in those baronial mints had reduced their pretended silver to a sort of black metal, as it was called (vioneta nigra), into which little entered but copper. Silver, however, and even gold, were coined by the dukes of Brit- tany so long as that lief continued to exist. No subjects ever enjoyed the right of coining silver in England without the royal stamp and superintendence ^^ — a remarkable proof of the restraint in which the feudal aristocracy was always held in this country. § 9. — II. The passion of revenge, always among the most ungovernable in human nature, acts with such violence iipon barbarians, that it is utterly beyond the control of their im- perfect arrangements of polity. It seems to them no part of the social compact to sacrifice the privilege which nature has placed in the arm of valor. Gradually, however, these fiercer feelings are blunted, and another passion, hardly less powerful than resentment, is brought to play in a contrary direction. The earlier ol)ject, accordingly, of jurisprudence is to estab- lish a fixed atonement for injuries, as much for the preserva- 13 I do not extend this to the fact; for in the .anarchy of Stephen's reign botli bisliops and barons coined money for tliemselves. — Hoveden, p. 4iK), Fkudal System. WAR. — TAXATION. 103 tion of tranquillity as the prevention of crime. Snch were the weregilcls of the barbaric codes, which, for a different purpose, I have already mentioned. But whether it were that the kindred did not always accept, or the criminal offer, the legal composition, or that other causes of quarrel occurred, private feuds (faida) Avere perpetually breaking out, and many of Charlemagne's capitularies are directed against them. After his time all hope of restraining so inveterate a practice was at an end ; and every man who owned a castle to shelter him in case of defeat, and a sufficient number of dei^endents to take the field, Avas at liberty to retaliate upon his neighbors when- ever he thought himself injured. It must be kept in mind that there was frequently either no jurisdiction to which he could appeal, or no power to enforce its awards ; so that we may consider the higher nobility of France as in a state of nature with res})ect to each other, and entitled to avail them- selves of all legitimate grounds of hostility. The right of waging private Avar was moderated by Louis IX., checked by Philip IV., suppressed by Charles VI. ; but a few vestiges of its practice may be found still later. § 10. — III. In the modern condition of governments tax- ation is the chief engine of the well-compacted machinery which regulates the system. But the early European king- doms knew neither the necessities nor the ingenuity of mod- ern finance. From their demesne lands the kings of France and Lombardy supplied the common expenses of a barbarous court. Even Charlemagne regulated the economy of his farms Avith the minuteness of a stcAvard, and a large portion of his capitv;laries are directed to this object. Their actual revenue Avas chiefly derived from free gifts, made, according to an ancient German custom, at the annual assemblies of the na- tion, from amercements by allodial proprietors for default of military service, and from the freda, or fines, accruing to the judge out of compositions for murder. These amounted to one-third of the Avhole Averegild; one-third of this Avas paid over by the count to the royal Exchequer. After the feudal government prevailed in France, and neither the heribannum nor the Averegild continued in use, there seems to have been hardly any source of regular revenue besides the domanial estates of the crown; unless Ave may reckon as such, that during a journey the king had a prescriptive right to be sup- plied Avith necessaries by the toAvns and abbeys through Avhich he passed ; commuted sometimes into petty regular payments, called droits de gist et de chevauche. Hugh Capet Avas nearly 104 ROYAL REVENUE IN FRANCE. Chap. II. Part II. indigent as king of France, though, as count of Paris and Orleans, he might take the feudal aids and reliefs of his vas- sals. Several other emoluments of himself and his successors, whatever they may since have been considered, were in that age rather seigniorial than royal. The rights of toll, of customs, of alienage (aubaine), generally even the regale or enjoyment of the temporalities of vacant episcopal sees and other ecclesiastical benefices, were possessed within their own domains by the great feudatories of the crown. They con- tributed nothing to their sovereign, not even those aids which the feudal customs enjoined. The liistory of the royal revenue in France is, however, too important to be slightly passed over. As the necessities of government increased, several devices were tried in order to replenish the Exchequer. One of these was by extorting money from the Jews. It is almost incredible to what a length this was carried. Usury, forbidden by laAV and superstition to Christians, was confined to this industrious and covetous peo- ple. It is now no secret that all regulations interfering with the interest of money render its terms more rigorous and bur- densome. The chiklren of Israel grew rich in despite of in- sult and oppression, and retaliated upon their Christian debtors. If an historian of Philip Augustus may be believed, they pos- sessed almost one-half of Paris. Unquestionably they must have had support both at tlie court and in the halls of justice. The policy of the kings of France was to employ them as a sponge to suck their subjects' money, which they might after- wards express with less odium than direct taxation would incur. Philip Augustus released all Christians in his domin- ions from their debts to the Jews, reserving a fifth part to himself. He afterwards ex])elled tlie wliole nation from France. But they appear to have returned again — whether by stealth, or, as is more probable, by purchasing permission. St. Louis twice banished and twice recalled the Jews. A series of alter- nate persecution and tolerance was borne by this extraordinary people with an invincible perseverance, and a talent of accu- mulating riches which kept pace with their plunderers ; till, new schemes of finance supplying the turn, they w^ere finally expelled under Charles VI., and never afterwards obtained any legal establishment in France. A much more extensive plan of rapine was carried on by lowering the standard of coin. Originally the pound, a money of account, was equivalent to twelve ounces of silver; and divided into twenty pieces of coin (sous), each equal, conse- Feudal System. TAXATION. 105 quently, to nearly three shillings and four pence of our new English money. At the Kevolution the money of France had been depreciated in the proportion of seventy-three to one, and the sol was about equal to an English halfpenny. This Avas the effect of a long continuance of fraudulent and arbi- trary government. The abuse began under Philip I. in 1103, who alloyed his silver coin with a third of copi)er. So g0(jd an example was jiot lost upon subsequent princes ; till, under St. Louis, the mark-weight of silver, or eight ounces, was equivalent to fifty sous of the debased coin. jSTevertheless these changes seem hitherto to have produced no discontent ; whether it were that a peo})le neither commercial nor enliglit- ened did not readily perceive their tendency ; or, as has been ingeniously conjectured, that these successive dinunutions of the standard were nearly counterbalanced by an augmentation in the value of silver, occasioned by the drain of money dur- ing the Crusades, with which they were about contemporane- ous. But the rapacity of Philip the Fair kept no measures with the public ; and the mark in his reign had become equal to eight livres, or a hundred and sixty sous of money. Dissat- isfaction, and even tumults, arose in consequence, and he was compelled to restore the coin to its standard under St. Louis. His successors practised the same arts of enriching their treas- ury ; under Philip of Valois the mark was again worth eight livres. But the film had now dropjjed from the eyes of the people ; and these adulterations of money, rendered more vex- atious by continued recoinages of tlie current pieces, upon which a fee was extorted by the moneyers, showed in their true light as mingled fraud and robbery. These resources of government, however, by no means su- perseded the necessity of more direct taxation. The kings of France exacted money from the roturiers, and particularly the inhabitants of towns, within their domains. In this they only acted as proprietors, or suzerains ; and the barons took the same course in their own lands. Philip Augustus first ventured upon a stretch of prerogative, which, in the words of his biographer, disturbed all France. He deprived by force both his own vassals, who had been accustomed to boast of their immunities, and their feudal tenants, of a third part of their goods. Such arbitrary taxation of the nobility, who deemed that their military service discharged them from all pecuniary burdens, France was far too aristocratical a country to bear. It seems not to have been repeated ; and his suc- cessors generally pursued more legitimate courses. Upon 106 NO SUPREME LEGISLATION. Chap. II. Part II. obtaining any contribution, it was usual to grant letters patent, declaring that it had been freely given, and should not be turned into precedent in time to come. But in the reign of Philip the Fair a great innovation took place in the French constitution, which, though it principally affected the method of levying money, may seem to fall more naturally under the next head of consideration. § 11. — IV. There is no part of the French feudal policy so remarkable as the entire absence of all supreme legislation. We find it difficult to conceive the existence of a political so- ciety, nominally one kingdom and under one head, in which, for more than three hundred years, there was wanting the most essential attributes of government. It will be requisite, how- ever, to take this up a little higher, and inquire what was the original legislature of the French monarchy. Arbitrary rule, at least in theory, was uncongenial to the character of the Northern nations. Neither the power of mak- ing laws, nor that of applying them to the circumstances of particular cases, was left at the discretion of the sovereign. The Lombard kings held assemblies every year at Pavia, where the chief officers of the crown and proprietors of lands deliber- ated upon all legislative measures, in the presence, and, nomi- nally at least, with the consent of the multitude. Frequent mention is made of similar public meetings in France by the historians of the Merovingian kings, and still more unequivo- cally by their statutes. These assemblies have been called Parliaments of the Champ de Mars, having originally been held in the month of March. But they are supposed by many to have gone much into disuse under the later Merovingian kings. That of Glo, the most important of which any traces remain, was at the close of the great revolution which punished Brunehaut for as})iring to despotic power. Whether these as- semVjlies were com})osed of any except prelates, great land- holders, or what we may call nobles, and the Antrustions of the king, is still an unsettled point. It is probable, however, not only that the bishops took part in them, but also that the presence of the nation was traditionally required in conformity to the ancient German usage, which had not been formally abolished; while the difficulty of prevailing on a dispersed people to meet every year, as well as the enhanced influence of the king through his armed Antrustions, soon reduced the free- men to little more than spectators from the neighboring dis- tricts. Although no legislative proceedings of the Merovingian Feudal System. LEGISLATIVE ASSEMBLIES. 107 line are extant after 615, it is estimated by early writers that Pepin Heristal and liis son Charles Martel restored the na- tional council after some interruption ; and if the language of certain historians be correct, they rendered it considerably popular. Pepin the younger, after his accession to the throne, changed the month of this annual assembly from March to May ; and we have some traces of what took place at eight sessions dur- ing his reign. Of his cajjitularies, however, one only is said to be made in generali popvli conventu; the rest are enacted in synods of bishops, and all without exception relate merely to ecclesiastical affairs. And it must be owned that, as in those of the first dynasty, Ave find generally mention of the oi)ti- mates who met in these conventions, but rarely any word that can be construed of ordinary freemen. Such, indeed, is the imju'ession conveyed by a remarkal,)le passage of Hincmar, archbishop of Rheims during the time of Charles the Bald, who has preserved, on the authority of a writer contemporary with Charlemagne, a sketch of the Prankish government under that great prince. Two assemblies (placita) were annually held. In the first, all regulations of importance to the public weal for the ensuing year were enacted ; and to this, he says, the whole body of clergy and laity repaired ; the greater, to deliberate upon what was fitting to be done; and the lesser, to confirm by their voluntary assent, not through deference to power, or sometimes even to discuss, the resolutions of their superiors. In the second annual assembly, the chief men and oificers of state were alone admitted, to consult upon the most urgent affairs of government. They debated, in each of these, upon certain capitularies, or short ])ro- posals, laid before them by the king. The clergy and nobles met in separate chambers, though sometimes united for tl;e purposes of deliberation. In these assemblies, principally, I presume, in the more numerous of the two annually summoned, that extensive body of laws, the capitularies of Charlemagnts were enacted. And tliough it would contradict the testimony just adduced from Hincmar to suppose that the lesser free- holders took a very effective share in public counsels, yet their ]n-esence, and the usage of requiring their assent, indicate the liberal principles upon which the system of Charlemagne was founded. It is continually expressed in his capitularies and those of his family that they were enacted by general consent. In one of Louis the Debonair we even trace the first germ of representative legislation. Every count is directed to bring 108 POPULAR RIGHTS. Chap. II. Pakt II. with him to the general assembly twelve Scabini, if there should be so many in his county ; or, if not, should fill up the number out of the most respectable persons resident. These Scabini were judicial assesso^rs of the count, chosen by the allodial proprietors, in the county court, or mallus, though gen- erally on his nomination.^* The circumstances, however, of the French Empire for sev- I'ral subsequent ages were exceedingly adverse to such en- larged schemes of polity. The nobles contemned the imbecile descendants of Charlemagne ; and the people, or lesser free- holders, if they escaped absolute villenage, lost their imme- diate relation to the supreme government in the subordination to their lord established by the feudal law. Yet we may trace the shadow of ancient popular rights in one constitutional function of high importance, the choice of a sovereign. His- torians who relate the election of an emperor or king of France seldom omit to specify the consent of the multitude, as well as of tlie temporal and spiritual aristocracy ; and even in solemn instruiuMits that record such transactions we find a sort of import UKte attached to the popular suffrage. It is surely less probable that a recognition of this elective right should have been introduced as a mere ceremony, than that the form should have survived after length of time and revolutions of govern- ment had almost obliterated the recollection of its meaning. It must, however, be impossible to ascertain even the theo- retical privileges of the subjects of Charlemagne, much more to decide how far they were substantial or illusory. We can only assert, in general, that there continued to be some mix- ture of democracy in the French constitution during the reigns of Charlemagne and his first successors. The primeval Ger- man institutions were not eradicated. In the capitularies the consent of the people is frequently expressed. Fifty years after Charlemagne, his grandson Charles the Bald succinctly expresses the theory of legislative power. A law, he says, is made by the people's consent and the king's enactment. It would hardly be warranted by analogy or precedent to inter- pret the word peo[)le so very narrowly as to exclude any allo- dial proprietors, among whom, however unequal in opulence, no legal inequality of rank is supposed to have yet arisen. " The Scabini are not to be confoiuuied, as sometimes has been the case, with tlie Uachimburgii, who were not chosen by tlie allodial proprietors, but were themselves such, or sometimes, periiaps, beneficiaries, summoned by the court as jurors were in England. They answered to the pritd'homrnes, boni homines, of biter times ; they formed the county or the liuudred court, for the determination of civil and criminal causes. Feudal System. ASSEMBLIES OF BARONS. 109 § 12. But by whatever aiitliority laws were enacted, who- ever were the constituent members of national assemblies, they ceased to be held in about seventy years from the death of Charlemagne. The latest capitularies are of Carloman in 882. From this time there ensues a long blank in the history of French legislation. The kingdom was as a great lief, or rather as a bundle of tiefs, and the king little more than one of a number of feudal nobles, differing rather in dignity than in power from some of the rest. The royal council was composed only of barons, or tenants in chief, prelates, and household officers. These now probably deliberated in private, as we hear no more of the consenting multitude. Political functions were not in that age so clearly separated as we are taught to fancy they should be ; this council advised the king in matters of government, conhrmed and consented to his grants, and judged in all civil and crindnal cases where any peers of their court were concerned. But, notwithstanding the want of any permanent legislation during so long a period, instances occur in wliich the kings of France appear to have acted with tlie concurrence of an assem- bly more numerous and more particularly summoned than the royal council. At such a congress held in 1146 the crusade of Louis VII. was undertaken. We find also an ordinance of the same prince in some collections, reciting that he had con- voked a general assembly at Soissons, where many prelates and barons then present had consented and requested that private wars might cease for the term of ten years. Tlie famous Saladine tithe was imposed upon lay as well as eccles- iastical revenues by a similar convention in 1188. And Avhen Innocent IV., during his contest with the Emperor Frederick, requested an asylum in France, St. Louis, though much in- clined to favor him, ventured only to give a conditional per- mission, provided it were agreeable to his barons, whom, he said, a king of France was bound to consult in such circum- stances. Accordingly he assembled the French barons, who unanimously refused their consent. It was the ancient custom of the kings of France as well as of England, and indeed of all those vassals who affected a kind of sovereignty, to hold general meetings of their barons, called Cours Plenieres, or Parliaments, at the great festivals of the year. These assemblies were principally intended to make a display of magnificence, and to keep the feudal tenants in good-humor ; nor is it easy to discover that they passed in anything but pageantry. Some respectable antiquaries have. 110 LEGISLATIVE SUBSTITUTES. Chap. II. Pakt II. however, been of opinion that affairs of state were occasionally discussed in them ; and this is certainly by no means incon- sistent with probability, though not suthciently established by evidence. Excepting a few instances, most of which have been men- tioned, it does not appear that the kings of the house of Ca- pet acted according to the advice and deliberation of any national assembly, such as assisted the Norman sovereigns of England ; nor was any consent required for the validity of their edicts, except that of the ordinary council, chiefly formed of their household officers and less powerful vassals. This is at first sight very remarkable. For there can be no doubt that the government of Henry I. or Henry II. was inconi{)aral)ly stronger than that of Louis VI. or Louis VII. But this apparent absoluteness of the latter was the result of their real weakness and the disorganization of the mon- archy. The peers of France were infrequent in their attend- ance upon the king's council, because they denied its coercive authority. It was a fundamental principle that every feudal tenant was so far sovereign within the limits of his tief, that he could not be bound by any law without his consent. The king, says 8t. Louis in his Establishments, cannot make proclamation, that is, declare any new law, in the territory of a baron, without Ids consent, nor can the baron do so in that of a vavassor. Thus, if legislative jDOwer be essential to sovereignty, we cannot in strictness assert the King of France to have been sovereign beyond the extent of his domainal territory. Nothing can more strikingly illustrate the dissimilitude of the French and English constitutions of government than the sentence above cited from tlie code of St. Louis. § 13. U})on occasions when the necessity of common de- liberaticm, or of giving to new provisions more extensive scope tlian the limits of a single fief, was too glaring to be overlooked, congresses of neighboring lords met in order to agree upon resolutions which each of them undertook to ex- ecute within his own domains. The king was sometimes a contracting party, but without any coercive authority over tlie rest. Thus we have what is called an ordinance, but, in reality, an agreement, between the king (Philip Augustus), the Countess of Troyes or Champagne, and the Lord of Dam- pierre, relating to the Jews in their domains ; which agree- ment or ordinance, it is said, should endure " until ourselves aud the Countess of Troyes, and Guy de Dampierre, who Fkudal Ststem. increase OF REGAL POWER. Ill make this contract, shall dissolve it with the consent of such of our barons as we shall suniuion for that purpose." Ecclesiastical councils were another substitute for a regu- lar legislature; and this defect in the political constitution rendered their encroachments less obnoxious, and almost un- avoidable. That of Troyes in 878, composed perhaps in part of laymen, imposed a tine upon the invaders of church prop- erty. And the Council of Toulouse, in 1229, prohibited the erection of any new fortresses, or the entering into any leagues, except against the enemies of religion ; and ordained that judges should administer justice gratuitously, and pub- lish the decrees of the council four times in the year. § 14. The original exemption of the vassals of the crown from legislative control remained unimpaired at the date of the Establishments of St. Louis, about 1269 ; and their ill- judged confidence in this feudal privilege still led them to absent themselves from the royal council. It seems impos- sible to doubt that the barons of France might have asserted tlie same right which those of England had obtained, that of being duly summoned by special writ, and thus have ren- dered their consent necessary to every measure of legisla- tion. But the nobility did not long continue safe in their immunity from the king's legislative power. The ultimate source of this increased authority will be found in the commanding attitude assumed by the kings of France from the reign of Philip Augustus, and particularly in the annexation of the two great fiefs of I^ormandy and Toulouse. St. Louis, in his scrupulous moderation, forbore to avail him- self of all the advantages presented by the circumstances of his reign; and his Establishments bear testimony to a state of political society which, even at the moment of their pro- mulgation, was passing away. The next thirty years after his death, with no marked crisis, and with little disturbance, silently demolished the feudal system, such as had been es- tablished in France during the dark confusion of the tenth century. PlLili]i tlie Fair, by helj) of his lawyers and liis financiers, found himself, at the beginning of the fourteenth century, the real master of his subjects. § 15. There was, however, one essential privilege which he could not hope to overturn by force — the immunity from tax- ation enjoyed by his barons. This, it will be rem'::'mbered, embraced the whole extent of their fiefs, and their tenantry of every description — the king having no more right to impose a tallage upon the demense towns of his vassals than upon them- 112 RIGHTS OF THE STATES-GENERAL. Chap. II. Pakt II. selves. Thus his resources, in point of taxation, were limited to his own domains ; including certainly, under Pliilip the Fair, many of the noblest cities in France, but by no means sufficient to meet his increasing necessities. We have seen already the expedients employed by this rapacious monarch — a shameless depreciation of the coin, and what was much more justifiable, the levying taxes within the territories of his vassals by their consent. Of these measures, the first was odious, the second slow and imperfect. Confiding in his sovereign authority — though recently, yet almost completely, established — and little apprehensive of the feudal principles, already grown obso- lete and discountenanced, he was bold enough to make an ex- traordinary innovation in the French constitution. This was the convocation of the States-General, a representative body, composed of the three orders of the nation. They were first convened in 1302, in order to give more weiglit to the king's cause in his great quarrel with Boniface VIII. ; but their earliest grant of a subsidy is in 1314. Thus the nobility sur- rendered to the crown their last privilege of territorial indepen- dence; and, having first submitted to its appellant jurisdiction over their tribunals, next to its legislative supremacy, now suf- fered their own dependents to become, as it were, immediate, and a third estate to rise up almost co-ordinate with them- selves, endowed with new franchises, and bearing a new relation to the monarchy. It is impossible not to perceive the motives of Pliilip in embodying the deputies of towns as a separate estate in the national representation. He might, no question, have con- voked a j)arliament of his barons, and obtained a pecuniary contribution, which they would have levied upon their bur- gesses and other tenants. But, besides the ulterior })olicy of diminishing the control of the barons over tlieir de})endents, he had good reason to expect more liberal aid from the im- mediate representatives of the people than through the con- cession of a dissatisfied aristocracy. § 16. It is very difficult to ascertain the constitutional rights of the States-General, claimed or admitted, during forty years after their first vocation; but if, indeed, we could im- plicitly confide in an historian of the sixteenth century, who asserts that Louis Hutin bound liimself and his successors not to levy any tax witliout the consent of tlie three estates, the problem would find its solution. This ample charter does not appear in the French archives ; and though by no means to be rejected on that account, when we consider the strong motives Feudal System. RIGHTS OF THE STATES-GEXERAL. 113 fur its destruction, cannot fairly be adduced as an authentic fact. Nor can we altogether infer, perhaps, from the collec- tion of ordinances, that the crown had ever intentionally di- vested itself of the right to impose tallages on its domanial tenants. All others, however, were certainly exempted from that prerogative ; and there seems to have been a general sentiment that no tax whatever could be levied without free consent of the estates. Louis Hutin, in a charter granted to the nobles and burgesses of Picardy, promises to abolish the unjust taxes (maltotes) imposed by his father ; and in another instrument, called the charter of Normandy, declares that he renounces for himself and his successors all undue tallages and exactions, except in case of evident utility. This exception is doubtless of perilous ambiguity ; yet, as the charter was literally wrested from the king by an insurrectionary league, it might be ex- pected that the same spirit would rebel against liis royal in- ter})retation of state necessity. His successor, Philip the Long, tried the experiment of a gabelle, or exercise upon salt. But it produced so much discontent that lie was com|)elled to assemble the States-General, and to publish an ordinance de- claring that the impost was not designed to be perpetual, and that, if a sufficient supply for the existing war could be found elsewhere, it should instantly determine. Whether this was done I do not discover ; nor do I conceive that any of the sons of Philip the Fair, inheriting much of his rapacity and ambi- tion, abstained from extorting money without consent. Philip of Valois renewed and augmented the duties on salt by his own prerogative, nor had the abuse of debasing the current coin been ever carried to such a height as during his reign and the first years of his successor. These exactions, aggravated by tlie smart of a hostile invasion, produced a very remarkable concussion in the government of France. § 17. I have been obliged to advert, in another ])lace, to the memorable resistance made by the States-General of 1355 and 1356 to the royal authority, on account of its in- separable connection with the civil history of France. ^^ In the present chapter the assumption of political influence by those assemblies deserves particular notice. Not tluit they pretended to restore the ancient constitution of the Northern nations, still flourishing in Spain and England, the ])artici- pation of legislative power with the crown. Five hundred year's of anarchy and ignorance had swept away all remem- brance of those general diets in which the capitularies of the « Ch.ap. i.,p- 4". 114 THE STATES-GENERAL. Chap. II. fART 11. Carloviugiaii dynasty had been established by common con- sent. Charlemagne himself was hardly known to the French of the fourteenth century, except as the hero of some silly romance or ballad. The States-General remonstrated, in- deed, against abuses, and especially the most flagrant of all, the adulteration of money ; but the ordinance granting re- dress emanated altogether from tlie king, and without the least reference to their consent, which sometimes appears to be studiously omitted. But the privilege upon wiiich the States under John solely relied for securing the redress of grievances was that of granting money, and of regulating its collection. The latter, indeed, though for convenience it may be devolved upon the executive government, appears to be incident to every assembly in which the right of taxa- tion resides. That, accordingly, which met in 1355 nomi- nated a committee chosen out of the three orders, which was to sit after their separation, and which the king bound him- self to consult, not only as to the internal arrangements of his administration, but upon every proposition of peace or armistice with England. Deputies were despatched into each district to superintend the collection and receive the produce of the subsidy granted by the States. These assump- tions of power would not long, we may be certain, have left the sole authority of legislation in the king, and might, per- haps, be censured as usurpation, if the peculiar emergency in which France was then placed did not furnish their defence. § 18. But whatever opportunity might now be afforded for establishing a just and free constitution in France was entirely lost. Charles, inexperienced and surrounded by evil counsellors, thought the States-General inclined to en- croach upon his rights, of which, in the best part of his life, he was always abundantly careful. He dismissed, therefore, the assembly, and had recourse to the easy but ruinous ex- pedient of debasing the coin. This led to seditions at Paris, by which his authority, and even his life, were endangered. In February, 1357, three months after the last meeting had been dissolved, he was obliged to convoke the States again, and to enact an ordinance conformable to the ])etitions ten- dered by the former assembly. This contained many excellent provisions, both for the redress of abuses and the vigorous prosecution of the war against Edward ; and it is ditticult to conceive that men who advised measures so conducive to the public weal could have been the blind instruments of the King of Navarre. But this is a problem in history that we Feudal SystexM. THE STATES-GENERAL. 115 cannot liope to resolve. It appears, however, that in a few Aveeks after the promulgation of this ordinance the proceed- ings of the reformers fell into discredit, and their commission of thirty-six, to whom the collection of the new subsidy, the redress of grievances, and, in fact, the whole administration of government had been intrusted, became unpopular. The subsidy produced much less than they had led the people to expect : briefly, tlie usual consequence of democratical emo- tions in a monarchy took place. Disappointed by tlie failure of hopes unreasonably entertained and improvidently encour- aged, and disgusted by the excesses of the violent demagogues, the nation, especially its privileged classes, who seem to have concurred in the original proceedings of the States-General, attached themselves to the part}^ of Charles, and enabled him to quell opposition by force. Marcel, provost of the traders, a municipal magistrate of Paris, detected in the overt execu- tion of a traitorous conspiracy with the King of Navarre, was put to death by a private hand. Whatever there had been of real patriotism in the States-General, artfully con- founded, according to the practice of courts, with these schemes of disaffected men, shared in the common obloquy ; whatever substantial reforms liad been projected the govern- ment thrcAV aside as seditious innovations. Charles, who had assumed the title of regent, found in the States-General, assembled at Paris in 1359, a very different disposition from that which their predecessors had displayed, and publicly re- stored all councillors whom in the former troubles he had been compelled to discard. Thus the monarchy resettled itself on its ancient basis, or, more properly, acquired additional stability. § 19. Both John, after the peace of Bretigni, and Cliarles V. imposed taxes without consent of the States-General. The latter, indeed, hardly ever convoked that assembly. Upon his death the contention between the crown and rep- resentative body was renewed ; and, in the first meeting held after the accession of Charles VI., the government was compelled to revoke all taxes illegally imposed since the reign of Philip IV. This is the most remedial ordinance, perhaps, in the history of French legislation. '' We will, or- dain, and grant," says tlie king, " that the aids, subsidies, and impositions, of whatever kind, and however imposed, that have had course in the realm since the reign of our prede- cessor, Philip the Fair, shall be repealed and abolished ; and we will and decree that, by the course which the said imposi- 116 THE STATES-GENERAL. Chap. II. Part II. tions have had, we or our successors shall not have acquired any right, nor shall any prejudice be wrought to our people, nor to their privileges and liberties, which shall be re-estab- lished in as full a manner as they enjoyed them in the reign of Philip the Fair, or at any time since ; and we will and decree that, if any thing has been done contrary to them since that time to the present hou.r, neither we nor our successors shall take any advantage therefrom." If circumstances had turned out favorably for the cause of liberty, this ordinance might have been the basis of a free constitution, in respect, at least, of immunity from arbitrary taxation. But the coer- cive measures of the court and tumultuous spirit of the Parisians jiroduced an open quarrel, in which the popular party met with a decisive failure. It seems, indeed, impossible that a number of deputies, elected merely for the purpose of granting money, can possess that weight or be invested in the eyes of their constituents with that awfulness of station which is required to withstand the royal authority. The States-General had no right of re- dressing abuses, except by petition — no share in the exercise of sovereignty, which is inseparable from the legislative power. Hence, even in their proper department of imposing taxes, they were supposed incapable of binding their constitu- ents without their special assent. Whether it were the timid- ity of the deputies, or false notions of freedom, which produced this doctrine, it was evidently repugnant to the stability and dignity of a representative assembly. Nor was it less ruinous in practice than mistaken in tlieory. For as the necessary sub- sidies, after b(nng provisionally granted by the States, were often rejected l)y their electors, the king found a reasonable pretence for dispensing with the concurrence of his subjects when he levied contributions upon them. The States-General were convoked but rarely under Charles VI. and VII., both of Avliom levied money witliout tlieir concur- rence. Yet there are remarkal)le testimonies under tlie latter of these princes that the sanction of national representatives was still esteemed strictly requisite to any ordinance imposing a general tax, however the emergency of circumstances might excuse a more arbitrary procedure. Thus Charles VII., in 1436, declares that he has set up again the aids which had been previously abolished hy the consent of the three estates. And in the important edict establishing the companies of ordonnance. which is recited to be done by the advice and counsel of the States-General assembled at Orleans, the forty- Feudal System. PROVINCIAL ESTATES. 117 first section appears to bear a necessary construction that no tallage could lawfully be imposed without such consent. It is maintained, indeed, by some writers, that the perpetual taille established about the same time was actually granted by these States of 1439, though it does not so appear upon the face of any ordinance. And certainly this is consonant to the real and recognized constitution of that age. But the crafty advisers of courts in the fifteenth century, enlightened by experience of past dangers, were averse to encountering these great political masses, from which there were, even in peaceful times, some disquieting interferences, some testimonies of public spirit, and recollections of liberty ten apprehend. The kings of France, indeed, had a resource which generally enabled them to avoid a convocation of the States-General without violating the national franchises. From provincial assemblies, composed of the three orders, they usually obtained more money than they could have ex- tracted from the common representatives of the nation, and heard less of remonstrance and demand. Languedoc, in ])ar- ticular, had her own assembly of states, and was rarely called upon to send deputies to the general body, or representatives of what was called the Languedoil. But Auvergne, Normandy, and other provinces belonging to the latter division, had frequent convocations of their respective estates during the intervals of the States-General — intervals which by this means were ])rotracted far beyond that duration to wliich the exigencies of the crown would otherwise have confined them. This was one of the essential differences between the constitu- tions of France and England, and arose out of the original disease of the former monarchy — the distraction and want of unity consequent upon the decline of Charlemagne's family, which separated the different provinces, in respect of their in- terests and domestic government, from each other. § 20. But the formality of consent, whether by general or provincial states, now ceased to be reckoned indispensable. Tli.e lawyers had rarely seconded any efforts to restrain arl)i- trary power : in their hatred of feudal principles, especially those of territorial jurisdiction, every generous sentiment of freedom was proscribed ; or, if they admitted that absolute prerogative might require some checks, it was such only as themselves, not the national representatives, should impose. Charles VII. levied money by his own authority. Louis XL carried this encroachment to the higliest pitch of exaction. It was the boast of courtiers that he first released the king:s 118 STATES-GENERAL OF TOURS. Chap. II. Part II. of France from dependence {hors de ^J«^e) ; or, in other Tvords, that he effectually demolished those barriers, which, however im})erfect and ill-placed, had imposed some impediment to the establishment of despotism. § 21. The States-General met but twice during the reign of Louis XI., and on neither occasion for the purpose of grant- ing money. But an assembly in tlie ilrst year of diaries VIII., the States of Tours in 1484, is too important to be overlooked, as it marks the last struggle of the French nation by its legal representatives for immunity from arbitrary taxa- tion. A warm contention arose for the regency upon the acces- sion of Charles VIII., between his aunt, Anne de Beaujeu, whom the late king had appointed by testament, and the princes of the blood, at the head of whom stood the Duke of Orleans, afterwards Louis XII, The latter combined to de- mand a convocation of the States-General, which accordingly took place. The king's minority and the factions at court seemed no unfavorable omens for liberty. But a scheme was artfully contrived which had the most direct tendency to break the force of a popular assembly. The deputies were classed in six nations, who debated in separate chambers, and consulted each other only \\\)o\\ the result of their respective deliberations. It was easy for the court to foment the jealous- ies natural to such a partition. Two nations, the Xorman and Burgundian, asserted that the right of providing for the re- gency devolved, in the king's minority, upon the States-General ; a claim of great boldness, and certainly not much founded upon precedents. In virtue of this, tliey proposed to form a council, not only of the princes, but of certain deputies to be elected by the six nations who composed the States. But the other four, those of Paris, Aquitaine, Languedoc, and Langue- doil (whicli last comprised the central provinces), rejected this plan, from wliich the two former ultimately desisted, and the choice of councillors was left to the princes. A firmer and more unanimous spirit was displayed upon the subject of public reformation. The tyranny of Louis XL had been so unbounded, that all ranks agreed in calling for redress, and the new governors were desirous, at least by punishing his favorites, to show their inclination towards a change of system. They were very far, however, from ajj- proving the propositions of the States-General. These went to points which no court can bear to feel touched, though there is seldom any other mode of redressing public abuses ; Feudal System. SCHEME OF JURISDICTION. 119 the profuse expense of the royal household, the number of pensions and improvident grants, the excessive establishment of troops. The States explicitly demanded that the taille and all other arbitrary imposts should be abolished, and that from henceforward, " according to the natural liberty of France," no tax should be levied in the kingdom without the consent of the States. It was with great difficulty, and through the skilful management of the court, that they con- sented to the collection of the taxes payable in the time of Charles VII., with the addition of one-fourth as a gift to the king upon his accession. This subsidy they declared to be granted "by way of gift and concession, and not otherwise, and so as no one should from henceforward call it a tax, but a gift and concession." And this was only to be in force for two years, after which they stipulated that another meeting should be convoked. But it was little likely that the govern- ment would encounter such a risk ; and the princes, whose factious views the States had by no means seconded, felt no tem}ttation to urge again their convocation, l^o assembly in the annals of France seems, notwithstanding some party selhsh- ness arising out of the division into nations, to have conducted itself with so much public spirit and moderation ; nor had that country, perhaps, ever so fair a prospect of establishing a legitimate constitution. § 22. — V. The right of jurisdiction has undergone changes in France and in the adjacent countries still more remarka- ble than those of the legislative power; and passed through three very distinct stages, as the popular, aristocratic, or regal influence predominated in the ]iolitical system. The Franks, Lombards, and Saxons seem alike to have been jeal- ous of judicial authority, and averse to surrendering what concerned every man's private right out of the hands of his neighbors and his equals. Every ten families are supposed to have had a magistrate of their oAvn election; the tithing- man of England, the Decanus of France and Lombardy. Next in order was the Centenarius or Hundredary, Avhose name expresses the extent of his jurisdiction, and who, like the decanus, was chosen by those subject to it. But the authority of these petty magistrates was gradually confined to the less important subjects of legal inquiry. No man, by a capitulary of Charlemagne, could be impleaded for his life, or liberty, or lands, or servants, in the hundred court. In such weighty matters, or by Avay of appeal from the lower jurisdiction, the count of the district was judge. He, indeed, 120 TERRITORIAL JURISDICTION. Chap. II. Part IL was appointed by the sovereign ; bnt his power was checked by assessors, called Scabini, who liehl their office by the elec- tion, or at least the concurrence, of the people. An idtimate appeal seems to have lain to the Count Palatine, an officer of the royal household ; and sometimes causes were decided by the sovereign himself. Such was the original model of judicature; but as complaints of injustice and neglect were frequently made against the counts, Charlemagne, desirous on every account to control them, appointed special judges, called Missi Regii, who held assizes from place to place, inquired into abuses and maladministration of justice, enforced its execution, and expelled inferior judges from their offices for misconduct. § 23. This judicial system was gradually superseded by one founded upon totally opposite principles, — those of feudal privilege, which led to territorial jurisdiction. An allodial freeholder could own no jurisdiction but that of the king. It was the general prevalence of sub-infeudation which gave importance to tlie territorial jurisdictions of the nobility. For now the military tenants, instead of repairing to the county court, sought justice in that of their immediate lord; or rather the count himself, become the suzerain instead of the governor of his district, altered the form of his tribunal upon the feudal model. A system of procedure so congenial to the spirit of the age spread universally over France and Germany. The tribunals of the king were forgotten, like his laws ; the one retaining as little authority to correct, as the other to regulate, the decisions of a territorial judge. The rules of evidence were superseded by that monstrous birth of ferocity and superstition, the judicial combat, and the maxims of law reduced to a few capricious customs, Avhich varied in almost every barony. These rights of administering justice were possessed by the owners of fiefs in very different degrees ; and, in France, were divided into the high, the middle, and the low jurisdic- tion. The first species alone (la haute justice) conveyed the power of life and death ; it was inherent in the baron and the chatelain, and sometimes enjoyed by the simple vavas- sor. The lower jui'isdictions were not competent to judge in capital cases, and consequently forced to send such criminals to the court of the superior. But in some places a thief taken in the fact might be punished with deatli by a lord who had only the low jurisdiction. In England this privilege was known by the uncouth terms of Infangthef and Outfangthef. Feudal System. TKIAL BY COMBAT. 121 The high jurisdiction, however, was not very common in this countiy, except in the chartered towns. Several customs rendered these rights of jurisdiction far less instrumental to tyranny than we might infer from their extent. While the counts were yet officers of the crown, they frequently appointed a deputy, or viscount, to admin- ister justice. Ecclesiastical lords, who were prohibited by the canons from inflicting capital punishment, and supposed to be unacquainted with the law followed in civil courts, or unable to enforce it, had an officer by name of advocate, or vidame, whose tenure was often feudal and hereditary. The viguiers (vicarii), bailiffs, provosts, and seneschals of lay lords were similar ministers, though not in general of so permanent a right in their offices, or of such eminent station, as the advo- cates of monasteries. It seems to have been an established maxim, at least in later times, that the lord could not sit ])ersonally in judgment, but must intrust that function to his bailiff and vassals. According to the feudal rules, the lord's vassals or peers of his court were to assist at all its proceed- ings. And indeed the presence of these assessors was so essential to all territorial jurisdiction, that no lord, to what- ever rights of justice his fief might entitle him, was qualified to exercise them, unless he had at least two vassals to sit as peers in his court. § 24. These courts of a feudal barony or manor required neither the knowledge of positive law nor the dictates of natural sagacity. In all doubtful cases, and especially where a crime not capable of notorious proof was charged, the com- bat was awarded ; and God, as they deemed, was the judge. ^^ The nobleman fought on horseback, with all his arms of at- tack and defence ; the plebeian on foot, with his club and target. The same were the weapons of the chami)ions to whom women and ecclesiastics were permitted to intrust their rights. If tlie combat was intended to ascertain a civil right, the vanquished party of course forfeited his claim and paid a fine. If he fought by proxy, the cliampion was liable to have his hand struck off ; a regiilation necessary, perhaps, to obviate the corruption of these hired defenders. In criminal cases the appellant suffered, in the event of defeat, tlie same punishment which the law awarded to the offence of which he accused his adversary. Even where the cause was more IS Trial bj' combat does not seom to have cstabli^lu'd itself completely in France till ordeals went into disuse, which Charlemagne rather encouraged, and which in his age, the clergy for the most part approved. 122 CODE OF ST. LOUIS. Chap. II. Pakt II. peaceably tried, and brought to a regular adjudication by the court, an appeal for false judgment might, indeed, be made to the suzerain, but it could only be tried by battle. And in this the appellant, if he would impeacli the concurrent judgment of the court below, was compelled to meet successively in combat every one of its members ; unless he should vanquish them all within the day, his life, if he escaped from so many hazards, was forfeited to the law. If fortune or miracle should make him conqueror in every contest, the judges were equally subject to death, and their court forfeited their juris- diction forever, A less perilous mode of a[)peal was to call the first judge who pronounced a hostile sentence into the field. If the appellant came off victorious in this challenge, the decision was reversed, but the court was not impeached. But for denial of justice, tliat is, for a refusal to try his suit, the plaintiff repaired to the court of the next superior lord, and supported his appeal by testimony. Yet even here the witnesses might be defied, and the pure stream of justice turned at once into the torrent of barbarous contest. § 25. Such was the judicial system of France when St. Louis enacted that great code wliich bears tlie name of his Establishments. The rules of civil and criminal procedure, as well as the principles of legal decisions, are there laid down with much detail. But that incomjjarable ])rince, unable to overthrow the judicial combat, confined himself to discourage it by the example of a wiser jurisprudence. It was abolished tliroughout the royal domains. The bailiffs and seneschals who rendered justice to the king's immediate subjects were bound to follow his own laws. He not only received appeals from their sentences in his own court of peers, but listened to all complaints with a kind of patriarchal simplicity. " Many times," says Joinville, " I have seen the good saint, after hear- ing mass, in the summer season, lay himself at the foot of an oak in the wood of Vincennes, and make us all sit round him ; wlien those who would, came and spake to liim without let of any officer, and he would ask aloud if there were any present who had suits ; and when they ap|)eared, would bid two of his bailiffs determine their cause upon the spot." Tlie influence of this new jurisprudence established by St. Louis, combined with the great enhancements of the royal prerogatives in every other respect, produced a rapid change in the legal administration of France. It was, in all civil suits, at the discretion of the litigant parties to adopt the law of the Establishments, instead of resorting to combat. As Feudal System. EOYAL COURTS. I'-^o gentler manners prevailed, especially among those who did not make arms their profession, the wisdom and equity of the new code was naturally preferred. The superstition which had originally led to the latter lost its weight through expe- rience and the uniform opposition of the clergy. The same superiority of just and settled rules over fortune and violence, which had forwarded the encroachments of the ecclesiastical courts, was now manifested in those of the king. § 26. Philip Augustus, by a famous ordinance in 1190, first established royal courts of justice, held by the officers called bailiffs or seneschals, who acted as the king's lieutenants in his domains. Every barony, as it became reunited to the crown, was subjected to the jurisdiction of one of these officers, and took the name of a bailliage or seneschaussee ; the former name prevailing most in the northern, the latter in the south- ern, provinces. The vassals whose lands depended upon, or, in feudal language, moved from the superiority of this fief, were obliged to submit to the ressort or supreme appellant jurisdiction of the royal court established in it. This began rapidly to encroach upon the feudal rights of justice. In a variety of cases, termed royal, the territorial court was pro- nounced incompetent ; they were reserved for the judges of the crown ; and in every case, unless the defendant excepted to the jurisdiction, the royal court might take cognizance of a suit, and decide it in exclusion of the feudal judicature. The nature of cases reserved under the name of royal was kept in studied ambiguity, under cover of which the judges of the crown perpetually strove to multiply them. Vassals were permitted to com])lain, in the first instance, to the king's court, of injuries committed by tlieir lords. These rapid and violent encroachments left the nobility no alternative but armed com- binations to support their remonstrances. Philip the Fair bequeathed to his successor the task of appeasing the storm which his own administration had excited. Leagues were formed in most of the northern provinces for the redress of grievances, in which the third estate, oppressed by taxation, united with the vassals, whose feudal privileges had been infringed. Separate charters were granted to each of these confederacies by Louis Hutin, which contain many remedial provisions against the grosser violations of ancient riglits, though the crown persisted in restraining territorial jurisdic- tions. Appeals became more common for false judgment, as well as denial of right ; and in neither was the combat per- mitted. It was still, however, preserved in accusations of 124 PARLIAMENT OF TAKIS. Chap. II. Pakt II. heinous crimes, unsupported by any testimony but that of the prosecutor, and was never abolished by any positive law, either in France or England. But instances of its occurrence are not frequent even in the fourteenth century. § 27. The supreme council, or court of peers, to whose de- liberative functions I have already adverted, was also the great judicial tribunal of the French crown from the accession of Hugh Capet. By this alone the barons of France, or ten- ants-in-chief of the king, could be judged. To this court ap})eals for denials of justice were referred. It was originally composed, as has been observed, of the feudal vassals, co- equals of those who were to be tried by it ; and also of the household officers, whose right of concurrence, however anom- alous, was extremely ancient. But after the business of the court came to increase through the multiplicity of appeals, especially from the bailiffs established by Philip Augustus in the royal domains, the barons found neither leisure nor capa- city for the ordinary administration of justice, and reserved their attendance for occasions where some of their own orders were implicated in a criminal process. St. Louis, anxious for regularity and enlightened decisions, made a considerable alteration by introducing some councillors of inferior rank, chiefly ecclesiastics, as advisers of the court, though, as is supposed, Avithout any decisive suffrage. The court now be- came known by the name of Parliament. Registers of its proceedings were kept, of which the earliest extant are of the year 1254. It was still, perhaps, in some degree ambulatory ; but by far the greater part of its sessions in the thirteenth century were of Paris. The councillors nominated by the king, s(mae of them clerks, others of noble rank, but not peers of the ancient baronage, acquired insensibly a right of suffrage. An ordinance of Philip the Fair, in 1302, is generally sup- })osed to have fixed the seat of Parliament at Paris, as well as altered its constituent parts. Perhaps a series of progressive changes has been referred to a single epoch. But whether by virtue of this ordinance, or of more gradual events, the char- acter of the whole feudal court was nearly obliterated in that of the Parliament of Paris. A systematic tribunal took the place of a loose aristocratic assembly. It was to hold two sittings in the year, each of two months' duration ; it was eonq^osed of two prelates, t*wo counts, thirteen clerks, and as many laymen. Great changes were made afterwards in this constitution. The nobility, who originally sat there, grew weary of an attendance which detained them from war, and Fkudai. System. PARLIAMENT OF PARIS. 125 from tlieir favorite pursuits at home. The bishops were dis- missed to their necessary residence upon their sees. As they withdrew, a cLass of reguhir hiwyers, originally employed, as it appears, in the preparatory business, without any decisive voice, came forward to the higlier places, and established a complicated and tedious system of procedure, wliich was always characteristic of French jurisprudence. They intro- duced at the same time a new theory of absolute power and unlimited obedience. All feudal privileges were treated as encroachments on the imprescriptible rights of monarchy. With the natural bias of laAvyers in favor of prerogative con- spired that of the clergy, who fled to the king for refuge agaiast the tyranny of the barons. In the civil and canon laws a system of political maxims was found very uncongenial to the feudal customs. The French lawyers of the fourteenth and tifteenth centuries frecpiently give their king the title of emperor, and treat disobedience to him as sacrilege. § 28. But among these lawyers, although the general ten- ants of the crown by barony ceased to appear, there still con- tinued to sit a more eminent body, the lay and spiritual peers of France, representatives, as it were, of that ancient baronial aristocracy. It is a very controverted question at what time this exclusive dignity of peerage, a word obviously ai)plicable by the feudal law to all persons co-equal in degree of tenure, was reserved to twelve vassals. At the coronation of Philip Augustus, in 1179, we first perceive the six great feudatories, dukes of Burgundy, Normandy, Guienne, counts of Toulouse, Flanders, Champagne, distinguished by the offices they per- formed in that ceremony. It was natural, indeed, that, by their princely splendor and importance, they should eclipse such petty lords as Bourbon and Coney, however equal in quality of tenure. During the reign of Philip Augustus, six ecclesiastical peers, the duke-bishops of Rheims, Laon, and Langres, the count-bishops of Beauvais, Chalons, and Noyon, were added as a sort of parallel or counterpoise. Their prece- dence does not, however, appear to have carried with it any other privilege, at least in judicature, than other barons en- joyed. But their pre-eminence being fully confirmed, Philip the Fair set the precedent of augmenting their original num- ber, by conferring the dignity of peerage on the Duke of Brit- tany and the Count of Artois. Other creations took place subsequently ; but these were confined, during the period com- prised in this work, to princes of the royal blood. The peers were constant members of the Parliament, from which other 126 JUIIISDICTION OF PAliLlAMENT. Chap. II. Taut IT. vassals holding in chief were never, perhaps, excluded by law, but their attendance was rare in the fourteentli century, and soon afterwards ceased altogether. § 29. A judicial body composed of the greatest nobles in France, as well as of learned and eminent lawyers, must natu- rally have soon become politically important. Notwithstand- ing their disposition to enhance every royal prerogative, as opposed to feudal privileges, the Parliament was not disin- clined to see its own protection invoked by the subject. During the tempests of Charles VI. 's unhappy reign the Parliament acquired a more decided authority, and held, in some de- gree, the balance between the contending factions of Orleans and Burgundy. This influence was partly owing to one re- markable function attributed to the Parliament, which raised it much above tlie level of a merely political tribunal, and has at various tim^s wrought striking effects in the French mon- archy. The few ordinances enacted by kings of France in the twelfth and thirteenth centuries were generally by the advice of their royal council, in which probably they were solemnly declared as well as agreed upon. But after the gradual revo- lution of government, which took away from the feudal aris- tocracy all control over the king's edicts, and substituted a new magistracy for the ancient baronial court, these legislative or- dinances were commonly drawn up by the interior council, or, what we may call the ministry. They were in some instances promulgated by the king in Parliament. Others were sent thitlier for registration or entry upon their records. This for- mality was by degrees, if not from the beginning, deemed essential to render them authentic and notorious, and therefore indirectly gave them the sanction and validity of a law. In course of time it claimed to itself the right of judging the ex- pediency of edicts proceeding from the king, and we find it as early as the fifteenth century manifesting pretensions of this nature : first, by registering ordinances in such a manner as to testify its own unwillingness and disapprobation, and after- wards by remonstrating against and delaying the registration of laws which it deemed inimical to the public interest. A conspicuous proof of this spirit was given in their opposition to Louis XL when repealing the Pragmatic Sanction of his father — an ordinance essential, in their opinion, to the liber- ties of the Galilean Church. In this instance they viltimately yielded; but at another time they persisted in a refusal to enregister letters containing an alienation of the royal domain. Feudal System. JURISDICTION OF PARLIAMENT. 127 The councillors of Parliament were originally appointed by the king ; and they were even changed according to circum- stances. But in 1468 Louis XI. published a most important ordinance, declaring the presidents and councillors of Parlia- ment immovable, except in case of legal forfeiture. This extraordinary measure of conferring independence on a body Avhich had already displayed a consciousness of its eminent privilege by opposing the registration of his edicts, is perhaps to be deemed a proof of that short-sightedness as to points of substantial interest so usually found in crafty men. But, be this as it may, there was formed in the Parliament of Paris an independent power not emanating from the royal will, nor liable, except through force, to be destroyed by it; which in later times became almost the sole depository, if not of what we should call the love of freedom, yet of public spirit and attach- ment to justice. Prance, so fertile of great men in the six- teenth and seventeenth centuries, might better spare, perhaps, from her annals any class and description of them than her lawyers. Doubtless the Parliament of Paris, with its preju- dices and narrow views, its high notions of loyal obedience so strangely mixed up with remonstrances and resistance, its anomalous privilege of objecting to edicts, hardly approved by the nation who did not participate in it, and overturned with facility by the king whenever he thought fit to exert the sinews of his prerogative, was but an inadequate substitute for that co-ordinate sovereignty, that equal concurrence of national representatives in legislation, which has long been the exclu- sive pride of our government, and to which the States-General of France, in their best days, had never aspired. No man of sane understanding would desire to revive institutions ])otli nncongenial to modern opinions and to the natural ordtn- of society. Yet the name of the Parliament of Paris must ever be respectable. It exhibited xipon various occasions virtues from Avhieh human esteem is as inseparable as the sliadow from the substance — a severe adherence to principles, an un- accommodating sincerity, individual disinterestedness and con- sistency." § 30. The principal causes that operated in subverting the feudal system may be comprehended under three distinct 1^ A work has appoared within a few years which throws an abundant lisflit on the judicial system, and indeed on the wholraban9ons, enlisted from the Netherlands. These were always disbanded on cessation of hostilities ; and, unht for any habits but of idleness and license, oppressed the peasantry and ravaged the country with- out control. In the French wars of Edward III., the whole, I, think, of his army served ^'or pay, and was raised by contract with men of rank and influence, who received wages for every soldier according to his station and the arms he bore. The rate of pay was so remarkably high, that, unless we im- agine a vast profit to have been intended for the contractors, the private lancers and even archers must have been chiefly taken from the middling classes, the smaller gentry, or rich yeomanry of England.^" This part of Edward's military sys- tem was probably a leading cause of his superiority over the French, among whom the feudal tenantry were called into the field, and swelled their unwieldy armies at Crecy and Poitiers. Both parties, however, in this war employed mercenary troops. Philip had 15,000 Italian crossbow-men at Crecy. It had for some time before become the trade of soldiers of fortune to enlist under leaders of the some descrip- tion as themselves in com|)anies of adventure, passing from one service to another, unconcerned as to the cause in which '» Tlie wages alloweil by contract, in 1340, were for an carl, Cs. Sd. per day; for barons and baronets, 4.S.; for knigbts, 2s. ; for squires. Is.; for archers and liobelers (liglit cavalry), 6rf. ; for arcliers on foot, .3rf. ; for Welslimen, 2d. These sums, mul- tiplied by about 24, to bring them on a level with the present value of money, will show the (lay to have been extremely high. The cavalry, of course, furnished them- selves with horse and equipments, as well as arms, which were very expensive. 134 DECLINE OF FEUDAL SYSTEM. Chap. II. Pakt II. tliey were retained. These military adventurers played a more remarkable part in Italy than in France, though not a little troublesome to the latter country. The feudal tenures had at least furnished a loyal native militia, whose duties, though much limited in the extent, were defined by usage and enforced by principle. They gave place — in an evil hour for the |)eo- ple, and eventually for sovereigns — to contracts Avith muti- nous hirelings, generally strangers, whose valor in the day of battle inadequately redeemed their bad faith and vexatious rapacity. France, in her calamitous period under Charles VI. and Charles VII., experienced the full effects of military licentiousness. At the expulsion of the English, robbery and disorder were substituted for the more specious plundering of war. Perhaps few measures have ever been more popular, as few certainly have been more politic, than the establishment of regular companies of troops by an ordinance of diaries VII. in 1444. These may justly pass for the earliest institution of a standing army in Europe, though some Italian princes had re- tained troops constantly in their pay, but prospectively tc hostilities, which were seldom long intermitted. Fifteen com- panies were composed each of a hundred men-at-arms, or lancers ; and, in the language of that age, the whole body was 1500 lances. But each lancer had tliree archers, a coutiller, or soldier armed with a knife, and a page or valet attached to him, all serving on horseback — so that the fifteen companies amounted to 9000 cavalry. From these small beginnings, as they must appear in modern times, arose the regular army of France, which every succeeding king was solicitous to aug- ment. The ban was sometimes convoked, that is, the posses- sors of fiefs were called upon for military service in subsequent ages ; but with more of ostentation than real efficiency. § 34. Tlie feudal compact, thus deprived of its original ef- ficacy, soon lost the respect and attachment which had attended it. Homage and investiture became unmeaning ceremonies ; the incidents of relief and aid were felt as burdensome exac- tions. And indeed the rapacity with which these were levied, especially by our Norman sovereigns and their barons, was of itself sufficient to extinguish all the generous feelings of vassal- age. Thi;s galled, as it were, by the armor which he was compelled to Avear, but not to use, the military tenant of Eng- land looked no longer with contempt upon the owner of lands in socage, who held his estate with almost the immunities of an allodial proprietor. Buttlie profits wliich the crown reaped from wardships, and perhaps tlie prejudices of lawyers, pre- Feudal System. EFFECTS OF FEUDAL SYSTEM. 135 vented the abolition of military tenures till the restoration of Charles II. In France the tiefs of noblemen were very un- justly exempted from all territorial taxation, though the failles of later times had, strictly speaking, only superseded the aids to which they had been always liable. The distinction, it is well known, was not annihilated till that event which annihi- lated all distinctions, the French Revolution. It is remarkable that, although the feudal system estab- lished in England upon the Conquest broke in very much upon our ancient Saxon liberties — though it was attended with harsher servitudes than in any other country, particularly those two intolerable burdens, wardship and marriage — yet it has in general been treated with more favor by English than French writers. The hardiness with which the ancient barons resisted their sovereign, and the noble struggles which they made for civil liberty, especially in that Great Charter, the basement at least, if not the foundation, of our free constitu- tion, have met with a kindred sympathy in the bosoms of Eng- lishmen ; while, from an opposite feeling, the French have been shocked at that aristocratic independence which cramped the prerogatives and obscured the lustre of their crown. Yet it is precisely to this feudal policy that France is indebted for that which is ever dearest to her children, their national sjdendor and power. That kingdom would have been irretriev- ably dismembered in the tenth century, if the laws of feudal dependence had not preserved its integrity. Empires of un- wieldy bulk, like that of Charlemagne, have several times been dissolved by the usurpation of provincial governors, as is re- corded both in ancient history and in that of the Mohammedan dynasties in the East. What question can there be that the powerful dukes of Guienne or counts of Toulouse would have thrown off all connection with the crown of France, when usurped by one of their equals, if the slight dependence of vassalage had not been substituted for legitimate subjection to a sovereign ? It is the previous state of society, under the grandchildren of Charlemagne, which we must always keep in mind, if we would appreciate the effects of the feudal system upon the welfare of mankind. The institutions of the eleventh cen- tury must be compared with those of- the ninth, not with the advanced civilization of modern times. If the view that I have taken of those dark ages is correct, the state of anarchy which we usually term feudal was the natural result of a vast and barbarous empire feebly administered, and the cause 136 EFFECTS OF FEUDAL SYSTEM. Chap. II. Takt II. rather than effect of the general establishment of feudal ten- ures. These, by preserving the mutual relations of the whole, kept alive the feeling of a common country and common duties, and settled, after the la})se of ages, into the free constitution of England, the firm monarchy of France, and the feudal union of Germany. The utility of any form of polity may be estimated by its effect upon national greatness and security, upon civil liberty and private rights, u])on the tranquillity and order of society, upon the increase and diffusion of wealth, or upon the general tone of moral sentiment and energy. The feudal constitution was certainly, as has been observed already, little adapted for the defence of a mighty kingdom, far less for schemes of con- quest. But as it prevailed alike in several adjacent countries, none had anything to fear from the military su])eriority of its neighbors. It was this inetticiency of the feudal militia, perhaps, that saved Euro})e during the Middle Ages froiu the danger of universal monarchy. If an em])ire eqiuilly extensive witli that of Charlemagne, and supported by military despot- ism, had been formed about the twelfth or thirteenth cen- turies, the seeds of commerce and liberty, just then beginning to shoot, would have perished, and Europe, reduced to a bar- barous servitude, might have fallen before the free barbari- ans of Tartary. If we look at the fevidal polity as a scheme of civil freedom, it bears a noble countenance. To the feudal law it is owing that the very names of right and privilege were not swept away, as in Asia, by the desolating hand of power. The tyranny which, on every favorable moment, was breaking through all barriers, would have rioted Avithout control, if, wlien the peoi)le were poor and disunited, the nobility had not been brave and free. 80 far as tlie sphere of feudality ex- tended, it diffused the spirit of liberty and the notions of pri- vate right. Every one, I think, will acknowledge this who considers the limitations of the services of vassalage, so cau- tiously marked in those law-books which are tlie records of customs, the reciprocity of obligation between the lord and liis tenant, the consent required in every measure of a legislative or a general nature, the security, above all, which every vassal found in the administration of justice by his peers, and even (we may in this sense say) in the trial by combat. The bulk of the people, it is true, were degraded by servitude ; but tliis had no connection with the feudal tenures. The peace and good order of society were not promoted by Feudal Systkm. EFFECTS OF FEUDAL SYSTEM. 137 tliis system. Though private wars did not originate in the feudal customs, it is im})ossible to doubt that tliey were per- petuated by so convenient an institution, wliich indeed owed its universal establishment to no other cause. And as predom- inant liabits of warfare are totally irreconcilable with those of industry, not merely by the immediate works of destruction which render its efforts unavailing, but through that contempt of peaceful occupations which they produce, the feudal system must have been intrinsically adverse to the accumulation of wealth and the improvement of those arts which mitigate the evils or abridge the labors of mankind. But as a school of moral discipline the feudal institutions were perhaps most tb be valued. Society had sunk, for sev- eral centuries after the dissolution of the Roman Emjjire, into a condition of utter depravity, where, if any vices could be selected as more eminently cliaracteristic than others, they were falsehood, treachery, and ingratitude. In slowly purging off the lees of this extreme corruption, the feudal spirit exerted its ameliorating influence. Violation of faith stood first in the catalogue of crimes, most repugnant to the very essence of a feudal tenure, most severely and promptly avenged, most branded by general infamy. The feudal law-books breathe throughout a spirit of honorable obligation. The feudal course of jurisdiction promoted — what trial by peers is peculiarly calculated to promote — a keener feeling and readier percep- tion of moral as well as of legal distinctions. And as the judgment and sympathy of mankind are seldom mistaken, in these great points of veracity and justice, except through the temporary success of crimes, or the want of a definite standard of right, they gradually recovered themselves when law pre- cluded the one and supplied the other. In the reciprocal ser- vices of lord and vassal there was ample scope for every mag- nanimous and disinterested energy. The heart of man, when placed in circumstances which have a tendency to excite them will seldom be deficient in such sentiments. No occasions could be more favorable than the protection of a faithful sup- porter, or the defence of a beneficent suzerain, against such powerful aggression as left little prospect except of sharing in his ruin. From these feelings engendered by the feudal relation has sprung up the peculiar sentiment of personal reverence and attachment towards a sovereign which we denominate loyalty, alike distinguishable from the stupid devotion of Eastern slaves and f roin the abstract respect with which free citizens 138 NOTES TO CHAPTER II. regard their chief magistrate. IMen who had been used to swear fealty, to profess subjection, to follow, at home and in the field, a feudal superior and his family, easily transferred the same allegiance to the monarch. It was a very powerful feeling which could make the bravest men put up with slights and ill-treatment at the hands of their sovereign ; or call forth all the energies of disinterested exertion for one whom they never saw, and in whose character there was nothing to esteem. In ages when the rights of the community were unfelt, this sentiment was one great preservative of society; and, thougli collateral or even subservient to more enlarged principles, it is still indispensable to tlie tranquillity and permanence of every monarchy. In a moral view loyalty has scarcely, perliaps, less tendency to refine and elevate tiie lieart than patriotism itself; and holds a middle place in the scale of human motives, as they ascend from the grosser inducements of self-interest to the furtherance of general happiness and conformity to the purposes of Infinite Wisdom. NOTES TO CHAPTER XL I. THE SALIC AND OTHKK LAWS OF THE BAUUAKLVNS. Tlie Salic law exists in two texts; one purely Latin, of which there are lifteen manuscripts; the other mingled with Ger- man words, of which tliere are three. Most have considered the latter to be the original; the manuscripts containing it are entitled Lex Salica nntiejuissimn, or vetustior ; the others generally run Lex Sdlica recentiur, or emetuldta. This seems to create a presuniplion. But others think the pure Latin older than the other. But thougli the Salic law in its present text is probably not older than the seventh century, it must be referred, in all its substance, to Gernniny for its birthjjlace, and to the period of heathen- ism for its date. — (Lehuerou, InslUutions Mcrovui qiennes , p. S3.) The Kipuarian Franks, Guizot, with some apparent reason, takes for the pro- genitors of the Austrasians; the Salian, of the Neustrians. The former were set- tled onthe left bank of the Rhine, as T^oiti, or defenders of the frontier, under the Empire. These tribes were united under one government through the assassination of Sigebert at Cologne, in the last years of Clovis, who assumed his crown. Such a theory might tend to explain the subse- quent rivalry of these great portions of the Frank monarchy, though it is hardlv required for that purpose. The Ripuarian code of law is referred by Guizot to the reign of Dagobert. In this code we liiid, says Guizot, "more of the Roman law, more of the royal and eccles- iastical power ; its provisions are more precise, more extensive, less barbarous ; it indicates a farther step in the transition from the German to the Roman form of social life." — (" Civil, en France," Lecon 10) The Burgundian law, though earlier than either of these in their recensions, displays a far more advanced state of manners. The Burgundinn and Roman are placed on the same footing; more is borrowed from the civil law ; the royal pow- er is more develoi»ed. This code remnineu in force after Charlemagne; but Hincmar says that few continued to live by it. In the Visigothic laws enacted in Spain, to the exclusion of the Roman, in 04^, all the barbarous elements havedisai)peared; it is the work of the clergy, half ecclesias- tical, half imperial. It has been remarked by acute writers, Guizot and Troja, that the Salic law does not answer the purpose of a code, being silent on some of the most important reg- ulations of civil society. The rules of the Salic code principally relate to the punish- ment or compensation of crimes; and the same will be found in our earliest Anglo- .'^axon laws. The object of such written laws, with a free and barbarous people, was not to record their usages, or to lay NOTES TO CHAPTER II. 139 down rules which natural t'qiiity would sugj;cst as the occasion rui,u;lit arise, but to prevent the arbitrary iuliictiou of pen- alties. Chapter Ixii., '' On >Successious," may have been inserted tor the sake of the novel provisicfn about Salic lands, which could not have formed a part of old Teu- tonic customs. II. THUiUTAKII, LIDI, AND COLONI. These names, though in a general sense occupying similar positions in the social scale, denote ditl'erent j)ersons. The Cdo- ni were Romans, in the sense of the word then usual ; that is, they were the cultiva- tors of land under the 10m])ire, of wlioui we lind abundant notice bolh intheTheo- dosian (jode and that of .Justinian. 'J'lie Koman colonus was free; he could marry a free woman, and have legitimate chil- dren ; he could serve in the army, and was cai)ahle of property; his peculium, unlike that of the absolute slave, could not be touched by his master. Nor could his li.xed rent or duty be enhanced. He could even sue his master for any crime com- mitted with respect to iiim, or for undue exaction. He was attached, on the other haiui, to the soil, and might in certain cases receive corporal punishment. Ue paid a capitation tax or census to the state, the frequent enhancement of which contributed to that decline of the agricul- tural population whioli preceded the bar barian conquest. The documents of the Middle Ages furnish abundant proofs of the continuance of the coloni in this mid- dle state between entire freedom and ser vitude. And these were doubtless reck- oned among the Tributarii of the Salic law, whose composition was fixed at for- ty-five solidi; for a slave had no composi tion due to his kindred; he was his mas- ter's chattel, and to be paid for as such. But the tributary was not necessarily a colonus. All who possessed no lands were subjected by the imperial fisc to a personal capitation. To these Iloraaii tributaries the barbarian Lidi seem near- ly to have corresponded. This was a class not quite free born, so that " Francus in- genuus" was no tautology, as some have fancied, yet far from slaves; without po- litical privileges or rights of administer- ing justice in the county court, and so little favored, that, wliile the Frank ac- cused of a theft was to be brought before his peers, the lidus, under the name of " (lebilior persona," which probably in- cluded the Roman tributary, was to be hang<'d on the spot. Throughout the Salic and Ripuarian codes the ingenuus is opposed both to the lidns and to the ser- vus; so that the threefold division is in- contestable. It corresponds in a certain degree to the eilelinr/i, frilinr/i, and lazzi, or tlie enrl, cvorl, and thrall of the North- ern nations. III. MUNICIPAL GOVERNMENT. The privileges of tlie municipal cities of Italy were originally founded on the re- jHibilcan institutions of Rome herself ; the su])icme power, so far as it was conceded, and the choice of nuigislrates, rested with the assembly of the citizens. But after Tiberius took this away from the Roman comilia to vest it in tlie .Senate, it appears that this example was followed in every provincial city. We lind everywhere a class nanu'd " curiales," or " decuriones" (synonymous words), in whom, or in those elected by them, residearty existed among the Lombard princes and bishops, to which his insolent demeanor soon gave a pretext for in- viting Henry II., the new king of Germany, collaterally re- lated to their late sovereign. Ardoin was deserted by most of the Italians, but retained his former subjects in Piedmont, and disputed the crown for many years with Henry, who passed very little time in Italy. During this period there Italy. CONRAD II. 143 was hardly any recognized government ; and tlie Lombards became more and mure accustomed, through necessity, to protect themselves, and to provide for their own internal police. Meanwhile the German nation had become odious to the Italians. The rude soldiery, insolent and addicted to intoxication, were engaged in frequent disputes with the citizens, wherein the latter, as is nsual in similar cases, were exposed hrst to the summary vengeance of the troops, and afterwards to penal chastisement for sedition. In one of these tumults, at the entry of Henry II. in 1004, the city of Pavia was burned to the ground, wliich inspired its inhabit- ants with a constant animosity against the emperor. Upon his death in 1024, the Italians were disposed to break once more their connection with Germany, which had elected as sovereign Conrad, duke of Franconia. They offered tlieir crown to Robert, king of France, and to William, duke of Guienne ; but neither of them was imprudent enough to in- volve himself in the difficult and faithless politics of Italy. Eribert, archbishop of Milan, accompanied by some other chief men of Lombardy, repaired to Constance, and tendered the crown to Conrad, which he was already disposed to claim as a sort of dependency upon Germany (a.d. 1024). It does not appear that either Conrad or his successors were ever regularly elected to reign over Italy ; but whether this cere- mony took place or not, we may certainly date from that time the subjection of Italy to the Germanic body. It became an unquestionable maxim that the votes of a few German princes conferred a right to the sovereignty of a country which had never been conquered, and which had never formally recog- nized this superiority. But it was an equally fundamental rule that the elected king of Germany could not assume the title of Roman Emperor until his coronation by the pope. The middle appellation of King of the Romans was invented as a sort of a})proximation to the imperial dignity. Rut it was not till the reign of Maximilian that the actual coronatic^i at Rome was dispensed with, and the title of emperor taken immediately after the election. § 4. The period between Conrad of Franconia and Frederick Barbarossa, or from about the middle of the eleventh to that of the twelfth century, is marked by three great events in Italian history ; the struggle between the em])ire and the pa- pacy for ecclesiastical investitures, the establishment of the Norman kingdom in Na])les, and the formation of distinct and nearly iudepeudent republics among the cities of Lombardy. 144 THE NORMANS AT AYERSA. Chap. III. Part I. The first of these will liiid a more appropriate place in a sub- sequent chapter, where I shall trace the progress of ecclesias- tical power. But it produced a long and almost incessant state of disturbance in Italy ; and should be mentioned at present as one of the main causes which excited in that country a systematic opposition to the imperial authority. The southern provinces of Italy, in the beginning of the eleventh century, were chiefly subject to the Greek empire, which had latterly recovered part of its losses, and exhibited some ambition and enterprise, though without any intrinsic vigor. They were governed by a lieutenant, styled Catapan,^ who resided at Bari, in Apnlia. On the Mediterranean coast three duchies, or rather republics, of Naples, Gaeta, and Amalfi, had for several ages preserved their connection with the Greek empire, and acknowledged its nominal sovereignty. The Lombard principalities of Benevento, Salerno, and Capua, had much declined from their ancient splendor. The Greeks were, however, not likely to attempt any further conquests : the Court of Constantinople had relapsed into its usual indo- lence; nor had they much right to boast of successes rather due to the Saracen auxiliaries whom they hired from Sicily. No momentous revolution, apparently, threatened the south of Italy, and least of all could it be anticipated from what quarter the storm Avas about to gather. § 5. The followers of Rollo, who rested from plunder and piracy in the quiet possession of Normandy, became devout professors of the Christian faith, and jmrticularly addicted to the custom of pilgrimage, which gratified their ciiriosity and spirit of adventure. In small bodies, well armed on ac- count of the lawless character of the countries through which they passed, the Norman pilgrims visited the shrines of Italy and even the Holy Land. Some of the^e, very early in the eleventh century, were engaged by a Lombnrd prince of Salerno against the Saracens, who had invaded his terri- tory ; and through that siiperiority of valor, and i)erhaps of corporal strength, which this singular peo})le seem to have possessed above all other Europeans, they made surprising havoc among the enemy. This exploit led to fresh engage- ments, and these engagements drew new adventurers from Normandy ; they founded the little city of A versa, near Capua, and were employed by the Greeks against the Sar- acens of Sicily. But, though performing splendid services in this war, they were ill repaid by their ungrateful employers ; - Catapnnus, from Kara nai', one employed in general administration of affairs. Italy. SUCCESSES OF THE NORMAN'S 145 and being by no means of a temper to ])ear with injury, tliey revenged themselves by a sudden invasion of Apulia. This province was speedily subdued, and divided among twelve Norman counts ; but soon afterwards Robert Guiscard, one of twelve brothers, many of whom were renowned in these Ital- ian wars, acquired the sovereignty ; and, adding Calabria to his conquests, put an end to the long dominion of the Eastern emperors in Italy. He reduced the principalities of Salerno and Benevento ; in the latter instance sharing the spoil with the pope, who took the city to himself, while Robert retained the territory. His conquests in Greece, which he invaded with the magnificent design of overthrowing the Eastern Empire, were at least equally splendid, though less durable (a.d. 1061). Roger, his younger brother, undertook, meanwhile, the romantic enterprise of conquering tlie island of Sicily with a small body of Norman volunteers. But the Saracens were broken into petty states, and discouraged by the bad success of their brethren in Spain and Sardinia. After many years of war Roger became sole master of Sicily, and took the title of count. The son of this prince, upon the extinction of Robert Guiscard's posterity, united the two Norman sovereignties, and, subjugating the free republics of Naples and Amalfi, and the principality of Capua, established a boundary which has hardly been changed since his time (a.d. 1127). The first successes of these Norman leaders were viewed un- favorably by the popes. Leo IX. marched in person against Robert Guiscard with an army of German mercenaries, but was beaten and made prisoner in tliis unwise enterprise, the scan- dal of which nothing but good-fortune could have lightened. He fell, however, into the hands of a devout peo})le, who im- plored liis absolution for the crime of defending themselves ; and, whether through gratitude or as the price of his libera- tion, invested them with tlieir recent conquests in Apulia, as fiefs of the Holy See. This investiture was repeated and en- larged as the popes, especially in their contention with Henry IV. and Henry V., found the advantage of using tlie Normans as faithful auxiliaries. Finally, Innocent II., in 1139, con- ferred upon Roger the title of King of Sicily. It is difficult to understand by wliat pretence these countries could be claimed by the See of Rome in sovereignty, unless by virtue of the pretended donation of Constantine, or that of Louis the Debo- nair, which is hardly less suspicious ; and least of all liow Inno- cent II. could surrender the liberties of the city of Naples, whether that was considered as an independent republic or as 146 SUCCESSES OF THE NORMANS. Chap. III. Part I. a portion of the Greek empire. But the JSTorraans, who had no title but their swords, were naturally glad to give an ap- pearance of legitimacy to their conquest ; and the kingdom of Naples, even in the hands of the most powerful J>rinces in Europe, never ceased to pay a feudal acknowledgment to the chair of St. Peter. § 6. The revolutions which time brought forth on the op- posite side of Italy were still more interesting. Under the Lombard and French princes every city with its adjacent district was subject to the government and jurisdiction of a count, who Avas himself subordinate to the' duke or marquis of the ])rovince. From these counties it was the practice of the first German emperors to dismember particular towns or tracts of country, granting them upon a feudal tenure to rural lords, by many of whom, also, the same title was assumed. Tluis by degrees the authority of the original officers was con- fined almost to the walls of their own cities ; and in many cases the bishops obtained a grant of the temporal govern- ment, and exercised the functions which had belonged to the count. It is impossible to ascertain the time at which the cities of Lombardy began to assume a republican form of government, or to trace with precision the gradations of their ]>rogress. These cities were far more populous and better defended than those of France ; they had learned to stand sieges in the Hun- garian invasions of the tenth century, and had acquired the right of protecting themselves by strong fortifications. Those which had been placed under the tem])oral government of their bishops had peculiar advantages in struggling for emancipation. This circumstance in the state of Lombardy I consider as higlily important towards exjilaining the s\ibsequent revolu- tion. Notwithstanding several exceptions, a Churchman was less likely to be bold and active in command than a soldier ; and the sort of election which was always necessary, and sometimes more than nominal, on a vacancy of the See, kept up among the citizens a notion that the authority of their bisho}) and chief magistrate emanated in some degree from themselves. In many instances, especially in the Church of Milan, the earliest, perhaps, and certainly the most famous of Lombard republics, there occurred a disputed election ; two, or even three, competitors claimed the archiepiscopal functions, and were compelled, in the absiMice of the emi)crors, to obtain the exercise of them by means of their own faction among the citizens. Italy. PROGRESS OF LOMBARD CITIES. 147 These were the general causes which, operating at various times during the eleventh century, seem gradually to have produced a republican form of government in the Italian cities. But this part of history is very obscure. The ar- chives of all cities before the reign of Frederick Barbarossa have perished. We perceive, however, throughout the elev- enth century, that the cities were continually in warfare with each other. This, indeed, was according to the manners of that age, and no inference can absolutely be drawn from it as to tlieir internal freedom. But it is observable that their chronicles speak, in recording these transactions, of the peo- ple, and not of their leaders, which is the true republican tone of history. Thus, in the Annals of Pisa, we read, under the years 1002 and 1004, of victories gained by the Pisans over the people of Lucca; in 1006, that the Pisans and Genoese conquered Sardinia. These annals, indeed, are not by a contemporary writer, nor perhaps of much authority. But we have an original account of a war that broke out in 1057, between Pavia and Milan, in which the citizens are said to have raised armies, made alliances, hired foreign troops, and in every respect acted like independent states. There was, in fact, no power left in the empire to control them. The two Henrys IV. and V. were so much embar- rassed during the quarrel concerning investitures, and the continual troubles of Germany, that they were less likely to interfere with the rising freedom of the Italian cities than to purchase their assistance by large concessions. Henry IV. granted a charter to Pisa, . in 1081, full of the most impor- tant privileges, promising even not to name any marquis of Tuscany without the people's consent ; and it is possible that althoiigh the instruments have perished, other places might obtain similar advantages. However this may be, it is cer- tain that before the death of Henry V., in 1125, almost all the cities of Lomhardy, and many among those of Tuscany, were accustomed to elect their own magistrates, and to act as independent communities in waging war and in domestic government. The territory subjected originally to the count or hisliop of these cities had been reduced, as I mentioned above, l)y numerous concessions to the rural nobility. But the new re- publics, deeming themselves entitled to all which their former governors had once possessed, began to attack their nearest neighbors, and to recover the sovereignty of all their ancient territory. They besieged the castles of the rural counts, 148 LOMBAED ACQUISITIONS. Chap. III. Part I. and successively reduced tliem into siibjection. They sup- pressed some minor communities, which had been formed in imitation of themselves by little towns belonging to their district. Sometimes they purchased feudal superiorities or territorial jurisdictions, and, according to a policy not unu- sual with the stronger party, converted the rights of property into those of government. Hence, at the middle of the twelfth century, we are assured by a contemporary writer that hardly any nobleman could be found, except the Mar- quis of jVIontferrat, who had not submitted to some city. We may except also, I should presume, the families of Este and Malaspina, as well as that of Savoy. Muratori produces many charters of mutual compact between the nobles and the neighboring cities ; whereof one invariable article is, that the former should reside within the walls a certain number of months in the year. Tlie rural nobility, thus de- prived of the independence which had endeared their castles, imbibed a new ambition of directing the municipal govern- ment of the cities, Avhieh consequently, during this period of the republics, fell chiefly into the hands of the superior fam- ilies. It was the sagacious policy of the Lombards to invite settlers by throwing open to them the privileges of citizen- ship, and sometimes they even bestowed them by compulsion. Sometimes a city, imitating the Avisdom of ancient Rome, granted these privileges to all the inhabitants of another. Thus the principal cities, and especially Milan, reached, before the middle of the twelfth century, a degree of jiopulation very far beyond that of the capitals of the great kingdoms. Within their strong walls and deep trenches, and in the midst of their Avell-peopled streets, the industrious dwelt secure from the license of armed pillagers and the o})])ressions of fcnidal tyrants. Artisans, whom .the military land-holders contemned, acquired and deserved the right of bearing arms for their own and the public defence. Their occupations became liberal, because they were the foundation of their political franchises ; the citizens were classed in companies according to their respective crafts, each of Avhich had its tribune or standard-bearer (gonfalonier), at whose command, when any tumult arose or enemy threatened, they rushed in arms to muster in the market-place. But, unhappily, we cannot extend the sympathy which in- stitutions so full of liberty create to the national conduct of these little republics. The love of freedom was alloyed by that restless spirit, from which a democracy is seldom ex- Italy. THEIR MUTUAL ANIMOSITIES. 149 empt, of tyrannizing over weaker neighbors. They played over again tlie tragedy of ancient Greece, with all its cir- cumstances of inveterate hatred, unjust ambition, and atro- cious retaliation, though with less consummate actors upon the scene. Among all the Lombard cities, Milan was the most conspicuous, as well for power and popidation as for the abuse of those resources by arbitrary and ambitious conduct. Thus, in 1111, they razed the town of Lodi to the ground, distributing the inhabitants among six villages, and subject- ing them to an unrelenting despotism. Thus, in 1118, they commenced a war of ten years' duration with the little city of Como ; but the surprising perseverance of its iidiabitants pro- cured for them better terms of capitulation, though they lost their original independence. The Crenionese treated so harshly the town of Crema that it revolted from them, and put itself under the ])rotection of Milan. Cities of more equal forces carried on interminal)le hostilities by wasting each other's territory, destroying the harvests, and burning the villages. The sovereignty of the emperors, meanwhile, though not very effective, was in theory always admitted. Their name was used in public acts, and appeared upon the coin. When they came into Italy they had certain customary supplies of provisions, called fodrum regale, at the expense of the city where they resided ; during their presence all inferior magis- tracies were suspended, and the right of jurisdiction devolved upon them alone. But such was the jealousy of the Lombards that they built the royal palaces outside their gates ; a pre- caution to which the empei'ors were compelled to submit. This was at a very early time a subject of contention between the inliabitants of I'avia and Conrad XL, whose palace, seated in the heart of the city, they had demolished in a sedition, and were unwilling to rebuild in that situation. § 7. Such was the condition of Italy when Frederick Bar- barossa, duke of Suabia, and nephew of the last emperor, Con- rad III., ascended the throne of Germany (a.d. 1152). His accession forms the commencement of a new period, the dura- tion of which is about one hundred years, and which is ter- minated by the death of Conrad IV., the last emperor of the house of Suabia. It is characterized, like the former, by three distinguishing features in Italian history ; the victorious struggle of the Lombard and other cities for independence, the final establishment of a temporal sovereignty over the middle provinces by the popes, and the union of the kingdom of Naples to the dominions of tlie liouse of Sual)ia. 150 FREDERICK BARBAROSSA. Chap. III. Part I. Ill Frederick Barbarossa the Italians found a very different sovereign from the two last emperors, Lothaire and Conrad III., who had seldom appeared in Italy, and with forces quite inadequate to control such insubordinate subjects. The dis- tinguished valor and ability of this prince rendered a severe and arbitrary temper, and a haughty conceit of his imperial rights, more formidable. He believed that, as successor of Augustus, he inherited the kingdoms of the world. In the same right, he more powerfully, if not more rationally, laid claim to the entire prerogatives of the E-oman emperors over their own subjects ; and in this the professors of the civil law — which was now diligently studied — lent him their aid with the utmost servility. To such a disposition the self-government of the Lombard cities appeared mere rebellion. Milan es- pecially, the most renowned of them all, drew down upon her- self his inveterate resentment. He found, unfortunately, too good a pretence in her beliavior towards Lodi. Two natives of that ruined city threw themselves at the emperor's feet, im- [doring him, as the ultimate source of justice, to redress the wrongs of their country. It is a striking ])roof of the terror insi)ired by Milan that the consuls of Lodi disavowed the coni[)laints of their countrymen, and the inhabitants trembled at the danger of provoking a summary vengeance, against which the imperial arms seemed no protection. The Milanese, however, abstained from attacking the people of Lodi, though they treated with contempt the emperor's order to leave them at liberty. Frederick meanwhile came into Italy, and held a diet at Roncaglia, wdiere complaints poured in from many quarters against the Milanese. Pavia and Cremona, their an- cient enemies, were impatient to renew hostilities under the imperial auspices. Brescia, Tortona, and Crema were allies, or rather dependents, of Milan. Frederick soon took occasion to attack the latter confederacy. Tortona was compelled to surrender, and levelled to the ground. But a feudal army was soon dissolved ; the emperor had much to demand his attention at Rome, where he was on ill terms with Adrian IV. ; and when the imperial troops were withdrawn from Lombardy, the Milanese rebuilt Tortona, and exijelled the citizens of Lodi from their dwellings. Frederick assembled a fresh army, to whicli almost every city of Lombardy, willingly or by force, contributed its militia. It is said to have exceeded a hundred thousand men. The Milanese shut themselves up within their walls; and perhaps might have dehed the imperial forces, if their immense population, which gave them confidence in Italy. CAPTURE OF MILAN. 151 arms, had not exposed them to a different enemy. Milan was obliged by hnnger to capitulate upon conditions not very severe, if a vanquished peo})le could ever safely rely upon the convention that testifies their submission. Frederick, after the surrender of Milan, held a diet at Ron- caglia, where the effect of his victories was fatally perceived (a.d. 1158). The bishops, the higher nobility, the lawyers, vied with one another in exalting his ])rerogatives. He defined the regalian rights, as they were called, in such a manner as to exclude the cities and private proprietors from coining money, and from tolls or territorial dues, which they had for many years possessed. These, however, he permitted them to retain for a pecuniary stipulation. A more important innovation was the appointment of magistrates, with the title of podesta, to administer justice concurrently with the consuls ; but he soon proceeded to abolish tlie latter office in many cities, and tD throw the whole government into the hands of his own magis- trates. He prohibited the cities from levying war against each other. It may be presumed that he sliowed no favor to Milan. The ca})itulation was set at naught in its most express provis- ions ; a podesta was sent to supersede the consuls, and part of the territory taken away. Whatever might be the risk of resist- ance, and the Milanese had experience enough not to undervalue it, they were determined rather to see their liberties at once overthrown than gradually destroyed by a faithless tyrant. They availed themselves of the absence of his army to renew the war. Its issue was more calamitous than that of the last. Almost all Lombardy lay patient under subjection. The small town of Crema, always the faithful ally of Milan, stood a mem- orable siege against the imperial army ; but the inhabitants were ultimately compelled to capitulate for their lives, and the vindictive Cremoneze razed their dwellings to the ground. But all smaller calamities were forgotten when the great city of Milan, worn out by famine rather than subdued by force, was reduced to surrender at discretion. Lombardy stood in anxious suspense to know the determination of Frederick respecting this ancient metropolis, the seat of the early Christian emperors, and second only to Rome in the hierarchy of the Latin Church. A delay of three weeks excited fallacious hopes ; but at tlie end of that time an order was given to the Milanese to evacuate their habitations. The deserted streets were instantly occupied by the imperial army ; the people of Pavia and Cremona, of Lodi and Como, were commissioned to revenge themselves on the respective quarters of the city assigned to them ; and in a few 152 LEAGUE OF LOMBARDY. Chap. III. Part I. days the pillaged cliurches stood alone amidst the ruins of what had been Milan (a.d. 11(;2). There was now little left of that freedom to which Lombardy had aspired : it was gone like a pleasant dream, and she awoke to the fears and miseries of servitude. Frederick obeyed the dictates of his vindictive temper, and of the jjolicy usual among statesmen. He abrogated the consular regimen in some even of the cities which had supported him, and established his podesta in their place. This magistrate was always a stranger, fre- quently not even an Italian ; and he came to his office Avith all those prejudices against the people he was to govern which cut off every hope of justice and humanity. The citizens of Lom- bardy, especially the Milanese, who had been dispersed in the villages adjoining their ruined capital, were unable to meet the ])eri)etual demands of tribute. In some parts, it is said, two- thirds of the i)roduce of their lands, the only wealth that re- mained, were extorted from them by the imperial officers. It was in vain that they prostrated themselves at the feet of Fred- erick. He gave at the best only vague promises of redress ; they were in his eyes, rebels ; his delegates had acted as faith- ful officers, whom, even if they had gone a little beyond his intentions, he could not be expected to punish, § 8. But there still remained at the heart of Lombardy, the strong principle of national liberty, imperishable among the perishing armies of her patriots, inconsumable in the confla- gration of her cities. Those whom private animosities had led to assist the German conqueror, blushed at the degradation of their country, and at the sliare they had taken in it. A league was secretly formed, in which Cremona, one of the chief cities on the imperial side, took a prominent part. Those beyond the Adige, hitlierto not much engaged in the disputes of Cen- tral Lombardy, had already formed a separate confederacy, to secure themselves from encroacliments which appeared the more unjust, as they had never borne arms against the em])eror. Their flrst successes corresponded to the justice of tlieir cause; Frederick was repulsed from the territory of Verona — a fortu- nate augury for the rest of Lond)ardy (a.d. 1164). These two clusters of cities on the east and west of the Adige now united themselves into the famous Lombard league, the terms of which were settled in a general diet. Their alliance was to last twenty years, during which they pledged themselves to mutual assistance against any one who should exact more from them than they had been used to perform from the time of Henry to the first coming of Frederick into Italy ; implying Italy. LEAGUE OF LOMBARDY. 153 in this the recovery of their elective ma,gistracies, their rights of war and peace, and those lucrative privileges whicli, under the name of regalian, had been Avrested from them in the diet of Roncaglia. § 9. This union of the Lombard cities was formed at a very- favorable juncture. Frederick had, almost ever since his ac- cession, been engaged in open hostility with the See of Rome, and was pursuing the fruitless policy of Henry IV., who had endeavored to substitute an anti-pope of his own faction for' the legitimate pontiff. In the prosecution of this scheme he had besieged Rome with a great army, which, the citizens resisting longer than he expected, fell a prey to the autumnal pestilence which visits the neighborhood of that capital. The flower of German nobility was cut off by this calamity, and the emperor recrossed the Alps, entirely unable for the present to withstand the Lombard confederacy. Their first overt act of insurrec- tion was the rebuilding of Milan ; the confederate troops all joined in this undertaking ; and the Milanese, still numerous, though dispersed and persecuted, revived as a powerful repulj- lic. Lodi was conii)elled to enter into the league ; Pavia alone continued on the imperial side. As a check to Pavia and to the Marquis of Montferrat, the most potent of the independent nobility, the Lombards planned the erection of a new city be- tween the confines of these two enemies in a rich plain to the south of the Po, and bestowed upon it, in compliment to the pope, Alexander III., the name of Alessandria. Though, from its hasty construction, Alessandria was even in that age deemed rude in appearance, it rapidly became a thriving and populous city. The intrinsic energy and resources of Lombardy were now made manifest. Frederick, who had triumphed by their disunion, was unequal to contend against their league. After several years of indecisive war, the emperor invaded the Milanese territory ; but the confederates gave him battle, and gained a complete victory at Legnano (a.d. 1176). Frederick escaped alone and disguised, from the field, with little hope of raising a fresh army, though still reluctant, from shame, to ac- quiesce in the freedom of Lombardy. He was at length per- suaded, through the mediation of the republic of Venice, to consent to a truce of six years, the provisional terms of which were all favorable to the league. It was weakened, however, by the defection of some of its own members ; Cremona, which had never cordially united with her ancient enemies, made sep- arate conditions with Frederick, and suffered herself to be named among the cities on the imperial side in the armistice. 154 PEAGE OF CONSTANCE. Chap. III. Paut I. Tortona and even Alessandria followed the same course during the six years of its duration — a fatal testimony of unsubdued animosities, and omen of the calamities of Italy. At the ex- piration of the truce, Frederick's anxiety to secure the crown for his son overcame his jjride, and the famous peace of Con- stance established tlie Lombard republics in real independence (A.D. 1183). By the treaty of Constance the cities were maintained in the enjoyment of all the regalian rights, whether within their walls or in their district, which they could claim by usage. Those of levying war, of erecting fortiiications, and of administering civil and criminal justice, were specially mentioned. The noni- imition of their consuls, or other magistrates, was left abso- lutely to the citizens ; but they were to receive the investiture of their office from an imperial legate. The customary tributes of ])rovision during the emperor's residence in Italy were l)reserved ; and he was authorized to appoint in every city a judge of appeal in civil causes. The Lombard league was con- lirmed, and the cities were permitted to renew it at their own discretion ; but they Avere to take, every ten years, an oath of lidelity to the emperor. This just compact preserved, along with every security for the liberties and welfare of the cities, as much of the imperial prerogatives as could be exercised by a foreign sovereign consistently with the people's happiness. § 10. Frederick did not attempt to molest the cities of Loml)ardy in tlie enjoyment of those privileges conceded by the treaty of Constance. His ambition was diverted to a new scheme for aggrandizing the house of Suabia by the marriage of his eldest son Henry with Constance, the aunt and heiress of William II., king of Sicily. That kingdom, which the first monarch Iloger had elevated to a high pitch of renown and ])ower, fell into decay through the misconduct of his son William, surnamed the Bad, and did not recover mucli of its lustre under the second William, though styled the Good. His death without issue was apparently no remote event ; and Constance was the sole legitimate survivor of the royal family. It is a curious circumstance that no hereditary kingdom appears absolutely to have excluded females from its throne, except that which from ifs magnitude was of all the most secure from falling into the condition of a province. The Sicilians felt too late tiie defect of their constitution, which permitted an inde- pendent people to be transferred, as the dowry of a woman, to a foreign prince, by whose ministers they might justly ex- pect to be insulted and oppressed. Henry, whose marriage Italy. AFFAIKS OF SICILY. 155 with Constance took place in 11S6, and who succeeded in her right to the throne of Sicily three years afterwards, was exas- perated by a courageous but unsuccessful effort of the Norman barons to preserve the crown for an illegitimate branch of the royal family ; and his reign is disgraced by a series of atrocious cruelties. The power of the house of Suabia was now at its zenith on each side of the Alps ; Henry received the imperial crown the year after his father's death in the third crusade, and even prevailed upon the princes of Germany to elect his infant son Frederick as his successor. But his own premature decease clouded the prospects of his family : Constance survived him but a year ; and a cliild of four years old was left with the inheritance of a kingdom which his father's severity had ren- dered disaffected, and whicli the leaders of German merce- naries in his service desolated and dis]iuted. § 11. During the minority of Frederick IT., from 1106 to lUlG, the papal chair was filled by Innocent III., a name second only, and hardly second, to that of Gregory VII. Young, noble, and intre])id, he united with the accustomed spirit of ecclesiastical usurpation, which no one had ever carried to so high a point, the more worldly ambition of con- solidating a separate principality for the Holy See in the centre of Italy. The real or spurious donations of Con- stantine, Pepin, Charlemagne, and Louis, had given rise to a perpetual claim on the part of the popes to very extensive dominions ; but little of this had been effectuated, and in Rome itself they were thwarted by the prefect — an officer who swore fidelity to the emperor — and by the insubordinate spirit of the people. In the very neighborhood the small cities owned no subjection to the capital, and were ju'obably as much self-governed as those of Lombardy. One is trans- ported back to the earliest times of the re])ublic in reading of the desperate wars between Rome and Tiljur or Tusculum ; neither of which was subjugated till the latter part of the twelfth century. At a farther distance were the duchy of Spoleto, the march of Ancona, and what had been the ex- archate of Ravenna, to all of which the popes had more or less grounded pretensions. Early in the last-mentioned age, the famous Countess Matilda, to whose zealous protection Gregory VII. had been eminently indebted during his long dispute with the emperor, granted the reversion of all her possessions to the Holy See, first in the lifetime of Gregory, and again under the pontificate of Paschal III. These were very extensive, and held by different titles. Uf her vast imperial fiefs, 156 INNOCENT III. Chap. III. Part I. Mantua, Modena, and Tuscany, she certainly could not dispose. The duchy of Spoleto and march of Ancona were supposed to rest upon a different footing. These had been formerly among the great fiefs of the kingdom of Italy. They are commonly considered as her allodial or patrimonial property ; yet it is not easy to see how, being herself a subject of the empire, she could transfer even her allodial estates from its sovereignty. Nor, on the other hand, can it apparently be maintained that she was lawful sovereign of countries which had not long since been imperial fiefs, and the suzerainty over which had never been renounced. The original title of the Holy See, therefore, does not seem incontestable even as to this part of Matilda's donation. It is certain, however, that the emperors kei)t })ossession of the whole during the twelfth century, and treated both S[)oleto and Ancona as parts of the empire, not- withstanding continual remonstrances from the Iloman pon- tiffs. Frederick Barbarossa, at the negotiations of Venice in 1177, promised to restore the ])atrimony of Matilda in fifteen years ; but at the close of that period Henry VI. was not dis- posed to execute tliis arrangement, and granted the county in fief to some of his German followers. Upon his death, the circumstances were favorable to Innocent HI. The infant King of Sicily had been intrusted by Constance to his guard- iansliip. A double election of Philip, brother of Henry VI., and of Otho, duke of Brunswick, engaged the princes of Ger- many, who had entirely overlooked the claims of young Frederick, in a doubtful civil war. Neither party was in a condition to enter Italy ; and the imperial dignity was vacant for several years, till, the death of Bhilip removing one com- petitor, Otlio IV., whom the pope had constantly favored, was crowned emperor. During this interval the Italians had no superior, and Innocent availed himself of it to maintain the pretensions of the See. These he backed by the production of rather a questionable document, the will of Henry VL, said to have been found among the baggage of Marquard, one of the German soldiers who had been invested with fiefs by the late emperor. The cities of what we now call the ecclesiastical state had in the twelfth century their own municipal govern- ment like those of Lombardy ; but they were far less able to assert a complete independence. They gladly, therefore, put themselves under the protection of the Holy See, which held out some prospect of securing them from Marquard and other rapacious partisans, without disturbing their internal regula- tions. Thus the duchy of Spoleto and march of Ancona sub- Italy. GUELFS AND GHIBELINS. 157 mitted to Innocent III. ; but he was not strong enough to keep constant possession of such extensive territories, and some years afterwards adopted the prudent course of granting An- cona in fief to the Marquis of Este. He did not, as may be supposed, neglect his authority at home ; the Prefect of Home was now compelled to swear allegiance to the pope, which put an end to the regular imperial supremacy over that city, and the privileges of the citizens were abridged. This is the proper era of that temporal sovereignty which the bishops of Rome possess over their own city, though still prevented by various causes, for nearly three centuries, from becoming unquestioned and unlimited. § 12. In the wars of Frederick Barbarossa against Milan and its allies, we have seen the cities of Londjardy divided, and a considerable number of them firmly attached to the im- perial interest. The jealousies long existing between the dif- ferent classes, and only suspended by the national struggle which terminated at Constance, gave rise to new modifications of interests, and new relations towards the empire. About the year 1200, or perhaps a little later, the two leading parties which divided the cities of Lombardy, and whose mutual an- imosity — having no general subject of contention — required the association of a name to direct rescia and I^iacenza. Parma, however, and Cremona, were unshaken defenders of the em})ire. (2.) In the second class we may place the cities of the march of Verona, between the Adige and the frontiers of Germany. Of these there were but four worth mentioning: Verona, Vicenza, Padua, and Treviso. Tlie citizens of all the four were inclined to the Guelf interests ; but a powerful body of rural nobility, who had never been compelled, like those upon the u])])er Po, to quit their fortresses in the hilly country, or reside within the walls, attached themselves to the opposite denomination. Some of them obtained very great authority in the civil feuds of these four republics ; and especially two brothers, Eccelin and Alberic da Romano, of a rich and distinguished family, known for its devotion to the Empire. By extraordinary vigor and decision of character, by dissimulation and breach of oaths, by the in- 162 SECOND LOMBARD WAR. Chap. III. Part I. timidating effects of almost unparalleled cruelty, Eccelin da Romano became after some years the absolute master of three cities — Padua, Verona, and Vicenza ; and the Guelf party, in consequence, was entirely subverted beyond the Adige during the continuance of his tyranny. (3.) Another cluster was composed of the cities in Romagna : Bologna, Imola, Faenza, Ferrara, and several others. Of these Bologna was far the most powerful, and, as no city was more steadily for the inter- ests of the Church, the Guelfs usually predominated in this class ; to which, also, the influence of the house of Este not a little contributed. Modena, though not geographically within the limits of this division, may be classed along with it from her constant wars with Bologna. (4.) A fourth class will comprehend the whole of Tuscany, separated almost entirely from the politics of Lombardy and Eomagna. Florence headed the Guelf cities in this province, Pisa the Ghibelin. The Tus- can xmion was formed by Innocent III., and was strongly in- clined to the popes ; but gradually the Ghibelin party acquired its share of influence ; and the cities of Siena, Arezzo, and Lucca shifted their policy, according to external circumstances or the fluctuations of their internal factions. The petty cities in the region of Spoleto and Ancona hardly, perhaps, deserve the name of republics ; and Genoa does not readily fall into any of our four classes, unless her wars with Pisa may be thought to connect her with Tuscany.^ § IG. After several years of transient hostility and precari- ous truce, the Guelf cities of Lombardy engaged in a regular and protracted war with Frederick II., or more })roperly with their Ghibelin adversaries. Few events of this contest deserve particular notice. Neither party ever obtained such decisive advantages as had alternately belonged to Frederick Barbarossa and the Ijom])ard confederacy during the war of the preceding century. A defeat of the Milanese by the emperor, at Corte Nuova, in 1237, was balanced by his unsuccessful siege at Brescia the next year. The Pisans assisted Fredcn-ick to gain a great naval victory over the (ireuoese fleet, in 1241 ; but he was obliged to rise from the blockade of Parnaa, which had left the standard of Ghibelinism, in 1248. Ultimately, however, 3 I have taken no notice of Piedmont in this division. Tlie liistory of that country seems to be less ehieidated by ancient or niodirn writers than that of other pnrts of Italy. It was at this time divided between the counts of .Savoy and nianiuises of INIontferrat. But Asti, Cliieri, and I iirin. especially the two former, aiipear to liave had a republican form of {government, they were, however, not absolutely indepen- dent. The only I'iedmontese city that can properly be consjss reason will appear for surprise. Nor did the kingdom of Na- ])les, almost always in agitation, yield any material aid to tlie second Frederick. The main caiise, however, of that triumph wliich attended Londiardy was the intrinsic energy of a free government. From the eleventh century, when the cities be- came virtually repul)lican, they put out those vigorous shoots which are the growth of freedom alone. Their domestic feuds, Italy. LOMBARD CITIES. 165 their mutual wars, their fierce assaults of their national enemies, checked not their strength, their wealth, or their population ; hut ratliev, as the limbs are nerved by labor and hardship, the repul)lics of Italy grew in vigor and courage through the conflicts they sustained. We have few authentic testimonies as to the domestic im- provement of the free Italian cities, while they still deserve the name. But we may perceive by history that their power and population, according to their extent of territory, were almost incredible. In Galvaneus Flamma, a Milanese writer, we find a curious statistical account of that city in 1288, which, though of a date about thirty years after its liberties had been overthrown by usurpation, must be considered as implying a high degree of previous advancement, even if we make allow- ance, as probably we should, for some exaggeration. The in- habitants are reckoned at 200,()()0 ; the private houses 13,000; the nobility alone dwelt in sixty streets ; 8000 gentlemen or heavy cavalry (milites) might be mustered from the city and its district, and 210,000 men capable of arms — a force suf- ficient, the writer observes, to crush all the Saracens. There were in Milan six hundred notaries, two hundred physicians, eighty school-masters, and fifty transcribers of manuscripts. In the district were one hundred and fifty castles with adjoin- ing villages. At this period the territory of Milan was not, perhaps, more extensive than the county of Surrey ; it was bounded at a little distance, on almost every side, by Lodi, or Pavia, or Bergamo, or Como. It is possible, however, that Flamma may have meant to include some of these as depend- encies of Milan, though not strictly united with it. How flour- ishing must the state of cultivation have been in such a country, which not only drew no supplies from any foreign land, but exported ])art of her own produce ! It was in the best age of their liberties, immediately after the liattle of Legnano, that the Milanese commenced the great canal which conducts the waters of the Tesino to their capital, a work very extraordinary for that time. During the same period the cities gave proofs of internal prosperity that in many instances have descended to our own observation, in the solidity and magnificence of their architecture. Ecclesiastical structures were perhaps more splendid in France and England ; but neither country could pretend to match the palaces and pul)lic buildings, the streets flagged with stone, the bridges of the same material, or the commodious ]n'ivate houses of Italy. The couraije of these cities was wrought sometimes to a tone 166 LOMBAED CITIES. Chap. III. Pakt I. of insolent defiance through the security inspired by their means of defence. From tlie time of the Romans to that when the use of gunpowder came to prevail, little change was made, or perhaps could be made, in that part of military science which relates to the attack and defence of fortified places. We find precisely the same engines of offence ; the cumbrous towers, from which arrows were shot at the besieged, the machines from which stones were discharged, the battering- rams which assailed the walls, and the basket-work covering (the vinea or testudo of the ancients, and the gattus or chat- chateil of the Middle Ages) under which those who pushed the battering-engines were protected from the enemy. On the other hand, a city was fortified with a strong wall of brick or marble, with towers raised upon it at intervals, and a deep moat in front. Sometimes the antemural or barbacan was added — a rampart of less height, which impeded the approach of the hostile engines. The gates were guarded with a port- cullis ; an invention which, as well as the barbacan, was bor- rowed from the Saracens. With such advantages for defence, a numerous and intrepid body of burghers might not unreason- ably stand at bay against a powerful army ; and as the conse- quences of capture were most terrible, while resistance was seldom hopeless, we cannot wonder at the desperate bravery of so many besieged towns. Indeed it seldom happened that one of considerable size was taken, except by famine or treachery. § 19. Of the government which existed in the republics of Italy during the twelfth and thirteenth centuries no definite sketch can be traced. The magistrates elected in almost all of them, when they first began to shake off the jurisdiction of their count or bishop, were styled Consuls — a word very expressive to an Italian ear, since, in the darkest ages, tradi- tion must have preserved some acquaintance with the re])ul)li- can government of Rome. The consuls were ahvays annual ; and tlicir office comprehended the command of tlio national militia, in war, as well as the administration of justice and ])reservation of public order ; but their number was vaiious — two, four, six, or even twelve. In their legislative and delib- erative councils the Lombards still copied the Roman constitu- tion, or i)erliaps fell naturally into the- form most calculated to unite sound discretion with the exercise of popular sovereignty. A council of trust and secrecy (della credenza) was composed of a small number of persons, who took the management of public affairs, and may be called the ministers of the state. l>ut the decision upon matters of general importance, treaties Italy. LOMBARD CITIES. 167 of alliance or declarations of war, the choice of consuls or am- bassadors, belonged to the general council. This appears not to have been unilbrmly constituted in every city; and accord- ing to its composition the government was more or less demo- cratical. An ultimate sovereignty, however, was reserved to the mass of the peo[)l(; ; and a Parliament or general assembly was held to deliberate on any change in the form of constitution. About the end of the twelfth century a new and singular species of magistracy was introduced into the Lombard cities. During the tyranny of Frederick I. he had appointed officers of his own, called Fodestus, instead of the elective consuls. It is remarkable that this memorial of despotic power should not have excited insuperable alarm and disgust in the free repub- lics. But, on the contrary, they almost universally, after the peace of Constance, revived an office which had been abrogated when they first rose in rebellion against Frederick. From experience, as we must presume, of the partiality which their domestic factions carried into the administration of justice, it became a general practice to elect, by the name of podesta, a citizen of some neighboring state as their general, their crim- inal judge, and preserver of the peace. The last duty was frequently arduous, and required a vigorous as well as an up- right magistrate. Offences against the laws and security of the commonwealth were during the Middle Ages as often, per- haps more often, committed by the rich and powerful than by the inferior class of society. The sentence of a magistrate against a powerful offender was not pronounced without dan- ger of tumult ; it was seldom executed without force. A con- victed criminal was not, as at present, the stricken deer of society, whose disgrace his kindred shrink from participating, and whose memory they strive to forget. The law was to be enforced not against an individual, but a family — not against a family, but a faction — not perhaps against a local faction, but the whole Guelf or Ghibelin name, which might become interested in the quarrel. The podesta was to arm the repub- lic against her refractory citizen ; his house was to l)e besieged and razed to the ground, his defenders to be quelled by vio- lence : and thus the people, become familiar with outrage and homicide under the command of tlieir magistrates, were more disposed to repeat such scenes at the instigation of their passions. The podesta was sometimes chosen in a general assembly, sometimes by a select number of citizens. His office was annual, though prolonged in peculiar emergencies. He was 168 LOMBARD CITIES. Chap. 111. Pakt I. invariably a man of noble family, even in those cities which excluded their own nobility from any share in the government. He received a fixed salary, and was compelled to remain in the city after the expiration of his office for the purpose of answering such charges as might be adduced against his con- duct. He could neither marry a native of the city, nor have any relation resident within the district, nor even, so great was their jealousy, eat or drink in the house of any citizen. The authority of these foreign magistrates was not by any means alike in all cities. In some he seems to have superseded the consuls, and commanded tlie armies in war. In others, as Milan and Florence, his authority was merely judicial. We find in some of the old annals the years headed by the names of the podestas, as by those of the consuls in the history of Home. § 20. The effects of the evil spirit of discord that had so fatally breathed upon the repid)lics of Lombardy were by no means confined to national interests, or to the grand distinction of Guelf and Ghibelin. Dissensions glowed in the heart of every city, and as the danger of foreign war became distant, these grew move fierce and unappeasable. The feudal system had been established upon the principle of territorial aristoc- racy ; it maintained the authority, it encouraged the pride of rank. Hence, when the rural nobility were compelled to take up their residence in cities, they preserved the ascendency of birth and riches. From the natural respect which is shown to these advantages, all offices of trust and command were shared among tliem ; it is not material whether this were by positive right or continual usage. A limited aristocracy of this descrip- tion, where the inferior citizens possess the right of selecting their magistrates by free suffrage from a numerous body of nobles, is not among the worst forms of government, and affords no contiunptible security against op|n'ession and anar- chy. This regimen appears to have prevailed in most of the Lombard cities during the eleventh and twelfth centuries ; but gradually dissensions arose between the nobility and the ple- beian burgesses, which at length broke out into civil war in most of the Italian cities. About the year 1220 the ques- tion of aristocratical or popular command was tried by arms in Milan, Piacenza, Modena, Cremona, and Bologna. There is a natural preponderance in the popular scale, which, in a fair trial, invariably gaiias on that of tlie less numerous class. The artisans, who composed the bulk of the population, were arranged in companies, according te. - An illustrious female writer has drawn with a single stroke the ch.iracter of Rienzi, Crescentius, ami Arnold of Hrescia, the flace to a new form of supreme magistracy, Avhich lasted till the extinc- tion of the republic. Six Priors, elected every two months, one from each of the six quarters of the city, and from each of the greater arts, except that of lawyers, constituted an executive magistracy. They lived during their continuance in office in a palace belonging to the city, and were nuiintained at the public cost. The actual priors, jointly with the chiefs and councils (usually called la Cupitudlne) of the seven greater arts, and with certain adjuncts (arroti) named by themselves, elected by ballot their successors. Such was the practice for about forty years after this government was es- tablished. But an innovation, begun in 1324, and perfected four years afterwards, gave a peculiar character to the consti- tution of Florence. A lively and and)itious people, not merely jealous of their public sovereignty, but deeming its exercise a matter of personal enjoyment, aware at the same time that the will of the whole body could neither be immediately expressed on all occasions, nor even through chosen representatives, without the risk of violence and partiality, fell upon the singular idea of admitting all citizens not unworthy by their station or conduct to offices of magistracy by rotation. Lists were separately made out by the ]u-iors, the twelve buonuo- mini, the chiefs and councils of arts, the bannerets and other respectable persons, of all citizens, Guelfs by origin, turned of thirty years of age, and, in their judgment, worthy of public trust. The lists thus formed were then united, and those who had composed them, meeting together, in number ninety-seven, Italy. GOVERNMENT OF FLORENCE. 183 proceeded to ballot upon every name. Whoever obtained sixty- eight black balls was placed upon the reformed list ; and all the names it contained being put on separate tickets into a bag or purse (imborsati), were drawn successively as the magis- tracies were renewed. As there were above fifty of these, none of which could be held for more than four months, several hun- dred citizens were called in rotation to bear their share in the government within two years. But at the expiration of every two years the scrutiny was renewed, and fresh names were mingled with those which still continued undrawn ; so that ac- cident might deprive a man for life of his portion of magistracy. Four councils had been established by the constitution of 12G6 for the decision of all propositions laid before them by the executive magistrates, whether of a legislative nature or relating to public policy. These were now abrogated ; and in their places were substituted one of 300 members, all })lebe- ians, called consiglio di popolo, and one of 250, called consiglio di commune, into wliicli the nobles might enter. These were changed by the same rotation as the magistracies, every four months. A Parliament, or general assembly of the Florentine ])eople, was rarely convoked ; but the leading principle of a democratical republic, the ultimate sovereignty of the multi- tude, was not forgotten. This constitution of 1324 was fixed by the citizens at large in a Parliament ; and the same sanction was given to those temporary delegations of the seigniory to a prince which occasionally took place. What is technically called by their historians /a?'si popolo was the assembly of a Parliament, or a resolution of all derivative powers into the immediate operation of the popular will. The ancient government of this republic appears to have been chiefly in the hands of its nobility. These were very numerous, and possessed large estates in the district. But by the constitution of 126G, which was nearly coincident Avith the triumph of the Guelf faction, the essential powers of magistracy as well as of legislation Avere throAvn into the scale of the commons. The colleges of arts, whose functions became so eminent, Avei'e altogether commercial, and it Avas necessary to belong to one or other of the greater arts in order to be admitted into the executive college of the priors. Many, indeed, of the nobles enrolled themselves in these companies, and were among the most conspicuous merchants of Florence ; but the majority of the ancient families saAV themselves pushed aside from the helm, Avhich Avas intrusted to a class Avliom they had habitually held in contempt. 184 GOVERNMENT OF FLORENCE. Chap. III. Pakt II. § 10. The nobility, however, set tlie new constitution at defiance, and dwelling in strong and lofty houses among their kindred, and among the fellows of their rank, committed all sorts of outrages with impunity. At length in 1295, Giano della Bella, a man of ancient lineage, but attached to the ])0|)ular side, introduced a series of enactments exceedingly disadvantageous to the ancient aristocracy. The first of these was the ap})Ointment of an executive officei*, the gonfalonier of justice, whose duty it was to enforce the sentences of the podesta and capitano del popolo in cases where the ordinary officers were insufficient. A thousand citizens, afterwards increased to four times that number, were bound to obey his commands. They were distributed into companies, the gon- faloniers or captains of which became a sort of corporation or college, and a constituent part of the Government. This new nulitia seems to have superseded that of the companies of arts. The gonfalonier of justice was part of the seigniory along with the priors, of whom he was reckoned the president, and changed, like them, every two months. He was, in fact, the first magistrate of Florence. If Giano della TJella had trusted to the efficacy of this new security for justice, his fame would have been beyond reproach. But he followed it up by harsher provisions. The nobility were now made absolutely ineligible to the office of prior. For an offence committed by one of a noble family, his relations were declared responsible in a penalty of 3000 pounds. And, to obviate the difficulty arising from the frequent intimidation of witnesses, it was provided that common fame, attested by two credible persons, should be sufficient for the condemnation of a nobleman. These are the famous ordinances of justice which passed at Florence for the great cluxrter of her democracy. The nobility were soon aware of the position in which they stood. For half a century their great object was to procure the relaxation of the ordinances of justice. But they had no success with an elated enemy. The sort of proscni)tion which attended the ancient nobles lowered their spirit ; while a new aristocracy began to raise its head, the aristocracy of families, who, after filling the highest magistracies for two or three gen- erations, obtained an hereditary importance, Avhich answered the purpose of more unequivocal nobility ; just as in ancient Rome ])lebeian families, by admission to curule offices, acquired the character and appellation of nobility, and were only distin- guishable by their genealogy from the original patricians. Florence had her plebeian nobles (popolani grandi) as well as Italy. GOVERNMENT OF FLORENCE. 185 Rome ; the Peruzzi, the Ricci, the Albizi, the Medici, corre- spoud to the Catus, the Foinpeys, the Brutuses, and the Anto- iiies. But at Rome the two orders, after an equal partition of the highest othces, were content to respect their mutual privi- leges ; at Florence the commoners preserved a rigorous monop- oly, and the distinction of high birth was, that it debarred men from political franchises and civil justice. This second aristocracy did not obtain much more of the pop- ular affection than that which it superseded. In order to keep the nobles under more control the governing party more than once introduced a new foreign magistrate, with the title of captain of defence (della guardia), whom they invested with an almost unbounded criminal jurisdiction. One Gabrielli of Agob- bio was twice fetched for this purpose (a.d. 1336, 1340) ; and in each case he behaved in so tyrannical a manner as to ticcasion a tumult. His office, however, was of short duration, and the title at least did not import a sovereign command. But very soon afterwards Florence had to experience one taste of a cup which her neighbors had drunk off to the dregs, and to animate her magnanimous love of freedom by a knowledge of the calam- ities of tyranny. § 11. A war with Pisa, unsuccessfully, if not unskilfully, conducted, gave rise to such dissatisfaction in the city that the leading commoners had recourse to an appointment something like tiiat of Gabrielli, and from similar motives. Walter de Brienne, duke of Athens, was descended from one of the French Crusaders who had dismembered the Grecian empire in the preceding century ; but his father, defeated in battle, had lost the principality along with his life, and the titular duke was an adventurer in the Court of France. He had been, how- ever, slightly known at Florence on a former occasion. There was an uniform maxim among the Italian republics that ex- traordinary powers should be conferred upon none but stran- gers. The Duke of Athens was accordingly pitched upon for the military command, which was united with domestic juris- diction. This appears to have been promoted by the governing party in order to curb the nobility ; but they were soon unde- ceived in their expectations. The first act of the Duke of Athens was to bring four of the most eminent commoners to capital punishment for military offences. These sentences, whether just or otherwise, gave much pleasure to the nobles, who had so frequently been exposed to similar severity, and to the pojjulace, who are naturally pleased with the humiliation of their superiors. Both of these were caressed by the duke, ISG GOVERNMENT OF FLOIIENCE. Chap. 111. Pakt II. and both conspired, witli blind passion, to second his ambitions views. It was proposed and carried in a full Parliament, or assembly of the people, to bestow upon him the seigniory for life (a.d. 1342). The real friends of their country, as well as the oligarchy, shuddered at this measure. Throughout all the vicissitudes of party, Florence had never yet lost sight of republican institutions. But happily the reign of tyranny was very short. The Duke of Athens had neither judgment nor activity for so difficult a station. He launched out at once into excesses which it would be desirable that arbitrary power should always commit at the outset. The taxes were consider- ably increased ; their produce was dissipated. The honor of the state was sacrificed by an inglorious treaty with Pisa ; her territory was diminished by some towns throwing off their dependence. Severe and multiplied punishments spread terror through the city. Ten months passed in this manner, when three; separate conspiracies, embracing most of the nobility and of tlie great commoners, were planned for the recovery of freedom. Tlie city was barricaded in every direction ; and after a contest of some duration the Duke of Athens consented to abdicate his seigniory. § 12. Thus Florence recovered her liberty. Her constitu- tional laws now seemed to revive of themselves. But the nobility, who had taken a very active part in the recent libera- tion of their country, tliought it hard to be still placed under the rigorous ordinances of justice. The populace of Florence, with its characteristic forgetfulness of benefits, was tenacious of those proscriptive ordinances. A new civil war in the city streets decided their quarrel ; after a desperate resistance, many of the principal houses were pillaged and burned ; and the per])etual exclusion of the nobility was confirmed by fresh laws. But the people, now sure of their triumph, relaxed a little upon this occasion the ordinances of justice ; and, to make some distinction in favor of merit or innocence, effaced certain families from the list of nobility. Five hundred and thirty persons were thus elevated, as we may call it, to the rank of commoners. Conversely, several unpopular commoners were ennobled, in order to disfranchise them. Nothing was more usual in subsequent times than such an arbitrary change of rank, as a penalty or a benefit. Those nobles who were rendered plebeian by favor, were obliged to change their name and arms. The constitution now underwent some change. From six the priors were increased to eight ; and instead of being chosen from each of the greater arts, they were taken Italy. GOVERNMENT OF FLOKENCE. 187 from the four quarters of the city. The gonfaloniers of com- panies were reduced to sixteen. And these, along with the seigniory and the twelve buonuomini, formed the college, where every proposition was discussed before it coidd be offered to the councils for their legislative sanction. But it could only originate, strictly speaking, in the seigniory, that is, the gon- falonier of justice, and eight priors, tlie rest of the college having merely the function of advice and assistance. Several years elapsed before any material disturbance arose at Florence ; but in 1357 a spring was set in motion wliicli gave quite a different character to the domestic history of Florence. At the time when the Guelfs, with the assistance of Charles of Anjou, acquired an exclusive domination in the republic, the estates of the Ghibelins were confiscated. One- third of these confiscations was allotted to the state ; another went to repair the losses of Guelf citizens ; but the remainder became the property of a new corporate society, denominated the Guelf party (parte Guelf a), with a regular internal organ- ization. The Guelf party had two councils, one of fourteen and one of sixty members ; three, or afterwards four, captains, elected by scrutiny every two months, a treasury, and common seal — a little republic within the republic of Florence. Their primary duty was to watch over the Guelf interest ; and for this purpose they had a particular ofiicer for the accusation of suspected Ghibelins. We hear not much, however, of the Guelf society for near a century after their establishment ; but they now began to execute a preponderating infiuence in the state. In this society the ancient nobles retained a considerable infiu- ence. The laws of exclusion had never been applied to that corporation. Two of the captains Avere always noble, two were commoners. The people, in debarring the nobility from ordi- nary privileges, were little aware of the more dangerous chan- nel which had been left open to their ambition. With the nobility some of the great commoners acted in concert, and esix^cially the family and faction of the Albizi. Tliey carried a law by which every person accepting an oifice who should be convicted of Ghibelinism or of Ghibelin descent, upon tes- timony of public fame, became liable to punishment, caj)ital or pecuniary, at the discretion of the priors. To this law they gave a retrospective effect. Many citizens who had been ma- gistrates within a few years were cast in heavy fines on this indefinite charge. But the more usual practice was to warn (ammonire) men beforehand against undertaking public trust. If they neglected this hint, they were sure to be treated as con- 188 GOVEKNMENT OF FLOKENCE. Chap. III. Part II. victed Ghibelins. Thus a very numerous class, called Ammo- niti, was formed of proscribed and discontented persons, eager to throw off the intolerable yoke of the Guelf society; for the imi)utation of Ghibelin connections was generally an unfounded pretext for crushing the enemies of the governing faction. Men of approved Guelf principles and origin were every day warned from their natural privileges of sharing in magistracy. This spread an universal alarm through the city ; but the great advantage of union and secret confederacy ren- dered the Guelf society, who had also the law on their side, irresistible by their opponents. MeanAvhile the public honor was well supported abroad ; Florence had never before been so distinguished as during the prevalence of this oligarchy. § 13. The Guelf society had governed with more or less ab- soluteness for near twenty years, when the republic became involved, through the perfidious conduct of the papal legate, 111 a war with the Holy See. Though the Florentines were by no means superstitious, this hostility to the Church ajDpeared almost an absurdity to determined Guelfs, and shocked those prejudices about names which make up the politics of vulgar minds. The Guelf society, though it could not openly resist the popular indignation against Gregory XI., was not heartily inclined to this war. Its management fell, therefore, into the hands of eight commissioners, some of them not well affected to the society ; whose administration was so successful and popular as to excite the utmost jealousy in the Guelfs. They began to renew their warnings, and in eight months excluded fourscore citizens. The civil dissensions which followed need not be described at length. The seven greater arts were generally attached to the Guelf Society, while the fourteen lesser arts, composed of retail and mechanical traders, were eager to make Florence a democracy in fact as well as in name, by participating in the executive government. While the lesser arts were murmuring at the exclusive privileges of the commercial aristocracy, there was yet an inferior class of citizens avIio thought tlieir own claims to equal privileges irrefragable. The arrangement of twenty-one trading companies had still left several kinds of artisans unincorporated, and consequently unprivileged. These had been attached to the art with which their craft had most connection in a sort of dependent relation. Thus to the company of drapers, the most wealthy of all, the various occu- pations instrumental in the manufacture, as wool-combers, dyers, and weavers, were appendant. Besides the sense of Italy. GOVERNMENT OF FLORENCE. 18D political exclusion, these artisans alleged that they were op- pressed by their employers of the art. A still lower order of the coinuiunity was the mere populace, who did not practise any regular trade, or who only worked for daily hire. These were called Ciompi, a corruption, it is said, of the French com- pere. The inferior tradesmen demanded the establishment of two new arts for themselves, and one for the lower people. After various seditions, a violent insurrection, in which the ciompi, or lowest populace, were alone concerned, broke out. The gates of the palace belonging to the seigniory were forced open, tlie priors compelled to tly, and no appearance of a constitu- tional magistracy remained to throw the veil of law over the excesses of anarchy. The re[)ublic seemed to rock from its foundations; and tlie circumstance to which historians ascribe its salvation is not the least singular in this critical epoch. One Michel di Lando, a wool-comber, half-dressed and without shoes, hap[)ened to hold the standard of justice, wrested from the proper officer when the populace burst into the palace. Whether he was previously cons[)icuous in the tumult is not recorded; but the wild, ca[)ricious mob, who had destroyed what they had no conce[)tion how to rebuild, suddenly cried out that Lando should be gonfalonier or signer, and reform the city at his pleasure. A choice, arising probably from wanton folly, could not have been better made by wisdom. Lando was a man of courage, moderation, and integrity. He gave immediate proofs of these qualities by causing his office to be respected. The eight commissioners of the war, who, though not instiga- tors of the sedition, were well pleased to see the Guelf party so entirely prostrated, now fancied themselves masters, and began to nominate priors. But Lando sent a message to them that he was elected by the people, and that he could dispense with their assistance. He then proceeded to the choice of priors. Three were taken from the greater arts ; three from the lesser ; and three from the two new arts and the lower people. This eccentric college lost no time in restoring tran- quillity, and compelled the populace, by threat of punishment, to return to their occupations. But the ciompi were not dis- posed to give up the pleasures of anarchy so readily. They were dissatisfied at the small share allotted to them in the new distribution of offices, and murmured at their gonfalonier as a traitor to the popular cause. Lando was aware that an insur- rection was prjoected ; he took measures with the most respect- 190 GOVERNMENT OF FLORENCE. Cuap. III. Pakt II. able citizens; the insi;rgents, when they showed themselves, were quelled by force, and the gonfalonier retired from office with an approbation which all historians of Florence have agreed to perpetuate. The ciompi, once checked, were soon defeated. The next gonfalonier was, like Lando, a wool- comber; but, wanting the intrinsic merit of Lando, his mean station excited universal contempt. None of the arts could endure their low coadjutors ; a short struggle was made by the populace, but they were entirely over])owered with consider- able slaughter, and the government was divided between the seven greater and sixteen lesser arts in nearly equal propor- tions. The party of the lesser arts, or inferior tradesmen, which had begun this confusion, were left winners when it ceased. r>ut at tlie end of three years the aristocratical party regained its ascendency. They did not revive the severity practised towards the Ammoniti ; but the two new arts, created for the small trades, were abolished, and the lesser arts reduced to a third part, instead of something more than one-half, of public offices. For half a century after this time no revolution took place at Florence. The Guelf aristocracy, strong iu ojjulence and antiquity, and rendered prudent by experience, under the guidance of the Albizi family, maintained a preponderating in- fluence without much departing, the times considered, from mod- eration and respect for the laws. § 14. Though fertile and populous, the proper district of Florence was by no means extensive. The republic made no acquisition of territory till 1351, when she annexed the small city of Prato, not ten miles from her walls. Pistoja, though still nominally independent, received a Florentine garrison al)out the same time. Several additions were made to the district by lair purchase from the nobility of the Ap]>enines, and a few by main force. The territory was still very little proportioned to the frame and power of Flor- ence. The latter was founded upon her vast commercial opulence. Every Italian state employed mercenary troops, and the richest was, of course, the most powerful. In 1336 the revenues of Florence are reckoned by Villani at 300,000 florins, which, as he observes, is more than tlie king of Na- ples or Aragon possesses.^ The expenditure went at that time very much beyond the receipt, and was defrayed by loans from the principal mercantile firms, which were se- 3 The gold florin was worth about ten shillings of our money. The district of Florence was not then much larger tliau Middlesex. Italy. PISA. 191 cured by public funds — the earliest instance, I believe, of that financial resource. Her population was computed at ninety thousand souls. Viilani reckons the district at eighty thousand men, 1 suppose those only of military age ; but this calculation must have been too large, even though he included, as we may presume, the city in his estimate. Tus- cany, though well cultivated and flourishing, does not con- tain by any means so great a number of inhabitants in that space at present. § 15. The first eminent conquest made by Florence was that of Pisa, early in the fifteenth century. Pisa had been distin- guished as a commercial city ever since the age of the Otlios. From her ports, and those of Genoa, the earliest naval arma- ments of the Western nations were fitted out against the Sara- cen corsairs who infested the Mediterranean coasts. In the eleventh century she undertook, and, after a pretty long strug- gle, completed, the important, or at least the splendid, conquest of Sardinia, an island long subject to a JMoorish chieftain. Her naval prowess was supported by her commerce. A writer of the twelfth century reproaches her with the Jews, the Ara- bians, and other " monsters of the sea," who thronged in her streets. The crusades poured fresh wealth into the lap of the maritime Italian cities. In some of those ex^jeditions a great portion of the armament was conveyed by sea to l*alestine, and freiglited the vessels of Pisa, Genoa, and Venice. When the Christians had bought with their blood the sea-coast of Syria, these republics procured the most extensive privileges in the new states that were formed out of their slender conquests, and became the conduits through Avhich the produce of the East flowed in upon the ruder nations of Europe. Pisa main- tained a large share of this commerce, as well as of maritime greatness, till near the end of the thirteenth century. In 1282 she was in great power, ]iossessing Sardinia, Corsica, and Jillba, from whence the republic, as Avell as private persons, derived large revenues, and almost ruled the sea with their ships and merchandise, and beyond sea were very powerful in the city of Acre, and much connected with its principal citizens. The prosperous era of Pisa is marked by her public edifices. She was the first Italian city that took a pride in architectural magnificence. Her cathedral is of the eleventh century ; the baptistery, the famous inclined tower, or belfry, the arcades that surround the Campo Santo, or cemetery of Pisa, are of the twelfth, or, a.t latest, of the thirteenth. It would have been no slight anomaly in the annals of Italy, 192 GENOA. Chap. III. Part II. or, we might say, of mankind, if two neighboring cities, com- petitors in every naval enterprise, had not been perpetual enemies to each otlier. One is more surprised, if the fact be true, that no war broke out between Pisa and Genoa till 1119. From this time, at least, they continually recurred. An equal- ity of forces and of cour;ige kept the conflict uncertain for the greater part of two centuries. Their battles were numerous, and sometimes, taken separately, decisive; but the public spirit and resources of each city were called out by defeat, and we generally And a new armament replace the losses of an unsuc- cessful combat. In this respect the naval contest between Pisa and Genoa, though much longer jirotracted, resembles that of Rome and Cartliage in the first Punic war. But Pisa was re- served for her ^Egades. In one fatal battle, off the little isle of Meloria, in 1284, her whole navy was destroyed. Several vinfortunate and expensive armaments had almost exhausted the state, and this was the last effort, by private sacrifices, to equip one more fleet. After this defeat it was in vain to con- tend for empire. Eleven thousand Pisans languislied for many years in prison ; it was a current saying that whoever would see Pisa should seek her at Genoa. A treacherous chief, that Count Ugolino whose guilt was so terribly avenged, is said to have purposely lost the battle, and prevented the ransom of the captives, to secure his power ; accusations that obtain easy credit with an unsucceissful people. From the epoch of the battle of Meloria, Pisa ceased to be a maritime power. Forty years afterwards she was stripped of her ancient colony, the island of Sardinia, which was annexed to the crown of Aragon. Her commerce now dwindled with her greatness. During the fourteenth century l*isa almost re- nounced the ocean, and directed her main attention to the })olitics of Tuscany. Ghibelin by invariable predilection, she was in constant opposition to the Guelf cities which looked up to Florence. ]>ut in the fourteenth century the names of free- man and Ghibelin were not easily united ; and a city in that interest stood insulated between the republics of an o]iposite faction and the tyrants of her own. Pisa fell several times imder the yol^e of usurpers ; she was included in the wide- spreading accpiisitions of Gian Galeazzo Visconti. At his death one of his family seized the dominion, and finally the Floren- tines purchased for 400,000 florins a rival and once equal city. The Pisans made a resistance more according to what they had been than what they were. § 16. The early history of Genoa, in all her foreign relations, Italy. WARS OF GENOA. 193 is involved in that of Pisa. As allies against the Saracens of Africa, Spain, and the Mediterranean islands, as co-rivals in commerce with these very Saracens or with the Chris- tians of the East, as co-operators in the great expeditions under the banner of the cross, or as engaged in deadly warfare with each other, the two republics stand in continual parallel. From the beginning of the thirteenth century Genoa was, I think, the more prominent and flourishing of the two. She had conquered the island of Corsica at the same time that Pisa reduced Sardinia ; and her acquisition, though less consider- able, was longer preserved. Her territory at home, the ancient Liguria, was much more extensive, and, what was most impor- tant, contained a greater range of sea-coast than that of Pisa. But the commercial and maritime prosperity of Genoa may l)e dated from the recovery of Constantinople by the Greeks in 1261. Jealous of the Venetians, by whose arms the Latin em- perors had been placed, and were still maintained, on their throne, the Genoese assisted Palseologus in overturning that usurpation. They obtained in consequence the suburb of Pera or Galata, over against Constantinople, as an exclusive settle- ment, where their colony was I'uled by a magistrate sent from home, and frequently defied the Greek capital with its armed galleys and intrepid seamen. From this convenient station Genoa extended her commerce into the Black Sea, and estab- lished her principal factory at Caffa, in the Crimean peninsula. This commercial monopoly, for such she endeavored to render it, aggravated the animosity of Venice. As Pisa retired from the field of waters, a new enemy appeared ujwn the horizon to dispute the maritime dominion of Genoa. Her first war with Venice was in 1258. The second was not till after the victory of Meloria had crushed her more ancient enemy. It broke out 111 12V)3, and was prosecuted with determined fury and a great display of naval strength on both sides. One Genoese arma- ment consisted of 155 galleys, each manned with from 200 to 300 sailors. It was, however, beyond any other exertion. The usual fleets of Genoa and Venice were of seventy to ninety galleys. But the most remarkable war, and that productive of tlie greatest consequences, was one that commenced in 1.378, after several acts of liostility in tlie Levant. Genoa did not stand alone in this war. A formidable confederacy was raised against Venice, who had given provocation to many enemies. Of this Francis Carrara, signor of Padua, and the King of Hungary were the leaders. But the principal struggle was, as usual, 194 WARS OF GENOA. Chap. III. Part II. upon the waves. During the winter of 1378 a Genoese fleet ke])t the sea, and ravaged the shores of Dalmatia. The Vene- tian arnianient had been weakened by an epidemic disease, and when Vittor Pisani, their admiral, gave battle to the enemy, he was compelled to fight with a liasty conscription of lands- men against the best sailors in the world. Entirely defeated, and taking refuge at Venice with only seven galleys, Pisani was cast into prison, as if his ill-fortune had been his crime. Meanwhile the Genoese fleet, augmented by a strong reinforce- ment, rode before the long natural ramparts that separate the lagunes of Venice from the Adriatic. Six passages intersect tlie islands which constitute this barrier, besides the broader outlets of Brondolo and Fossone, through which the waters of the Brenta and the Adige are discharged. The lagune itself, as IS well known, consists of extremely shallow water, \innav- igable for any vessel except along the coiirse of artificial and intricate passages. Notwithstanding the apparent ditticulties of such an enterprise, l*ietro Doria, the Genoese admiral, de- termined to reduce the city. His first successes gave him reason to hope. He forced the passage, and stormed the little town of Chioggia, built upon the inside of the isle bearing that name, about twenty-five miles south of Venice. Nearly four thousand prisoners fell here into his hands — an augury, as it seemed, of a more splendid trium})h. In the consternation tliis misfortune inspired at Venice, the first im])ulse was to ask for peace. The ambassadors carried with them seven Genoese prisoners, as a sort of peace-ofl'cring to the admiral, and were empowered to make large and humiliating concessions, re- serving nothing V)ut tlie liberty of Venice. Francis Carrara strongly urged his allies to treat for peace. But tlu; Genoese were stimulated by long hatred, and intoxicated by this un- expected opportunity of revenge. Doria, calling the ambassa- dors into council, tlius addressed them : " Ye shall obtain no jieace from us, I swear to you, nor from tlie lord of Baduii, till first we have put a curb in the mouths of those wild horses that stand upon the place of St. Mark. When they are bridled you shall have enough of peace. Take back with you your Genoese captives, for I am coming within a few days to release both them and their companions from your prisons." When this answer was reported to tlie Senate, they prepared to de- fend themselves with the characteristic firmness of their Gov- ernment. Every eye was turned towards a great man unjustly punished, their admiral Vittor Pisani. He was called out of prison to defend his country amidst general acclamations. Italy. WARS OF GENOA. 195 Under his vigorous command the canals were fortified or oc- cupied by large vessels armed with artillery ; thirty-four galleys were equipped; every citizen contributed according to his power ; in the entire want of commercial resources (for Venice had not a merchant-ship during this war) private plate was melted ; and the Senate held out the promise of ennobling thirty families who should be most forward in this strife of patriotism. The new fleet was so ill provided with seamen that for some months the admiral employed them only in manoeuvring along the canals. From some unaccountable supineness, or more probably from the insuperable difficulties of the undertaking, the Genoese made no assault upon the city. They had, indeed, fair grounds to hope its reduction by famine or despair. Every access to the continent was cut oft' by the troops of Padua; and the King of Hungary had mastered almost all the Venetian towns in Istria and along the Dalmatian coast. The Doge Contarini, taking the chief command, appeared at length with his fleet near Chioggia, before the Genoese were aware. They were still less aware of his secret design. He pushed one of the large round vessels, then called cocche, into the narrow passage of Chioggia which connects the lagune with the sea, and, mooring her athwart the channel, interrupted that com- munication. Attacked with fury by the enemy, this vessel went down on the spot, and the doge improved his advantage by sinking loads of stones until the passage became absolutely unnavigable. It was still possible for the Genoese fleet to follow the principal canal of the lagune towards Venice and the northern passages, or to sail out of it by the harbor of Brondolo; but, whether from confusion or from miscalculating the dangers of their position, they suffered the Venetians t(j close tlie canal upon them by the same means they had used at Chioggia, and even to ])lace their fleet in the entrance of Brondolo so near to the lagune that the Genoese could not form their ships in line of battle. The circumstances of the two combatants were thus entirely changed. But the Genoese fleet, though besieged in Chioggia,, was impregnable, and their command of the land secured them from famine. Venice, not- withstanding her unex})ected success, was still very far from secure : it was difficult for the doge to keep his position through the winter ; and if the enemy could a})pear in open sea, the risks of combat were extremely hazardous. It is said that the Senate deliberated upon transporting the seat of their liberty to Candia, and that the doge had announced his intention to 196 GOVERNMENT OF GENOA. Chap. III. Part II, raise the siege of Chioggia, if expected succors did not arrive by the 1st of January, 1380. On that very day Carlo Zeno, an admiral who, ignorant of the dangers of his country, had been supporting the honor of lier flag in the Levant and on the coast of Liguria, appeared with a reinforcement of eighteen galleys and a store of provisions. From that moment the con- fidence of Venice revived. The fleet, now superior in strength to the enemy, began to attack them with vivacity. After sev- eral months of obstinate resistance, the Genoese — Avhom their republic had ineffectually attempted to relieve by a fresh arma- ment — blocked up in the town of Chioggia, and pressed by hunger, were obliged to surrender. Nineteen galleys only, out of forty-eight, were in good condition ; and the crews were equally diminished in the ten months of their occupation of Chioggia. The pride of Genoa was deemed to be justly hum- bled ; and even her own historian confesses that God would not suffer so noble a city as Venice to become the spoil of a conqueror. Though the capture of Chioggia did not terminate the war, both parties were exhausted, and willing, next year, to accept the mediation of the Duke of Savoy, By the peace of Turin, Venice surrendered most of her territorial possessions to the King of Hungary, That prince and Francis Carrara were the only gainers. Genoa obtained the isle of Tenedos, one of the original subjects of dispute — a poor indemnity for her losses. Though, upon a hasty view, the result of this war appears more unfavorable to Venice, yet in fact it is the epoch of the decline of Genoa. From this time she never commanded the ocean with such navies as before ; her commerce gradually went into decay ; and the fifteenth century — the most splendid in the annals of Venice — is, till recent times, the most igno- minious in those of Genoa. But this was partly owing to internal dissensions, by which her liberty, as well as glory, was for a while sixspendcd. § 17. At Genoa, as in other cities of Lombardy, the princi- pal magistrates of the republic were originally styled consuls. Tlieir number varied from four to six, annually elected by the people in their full Parliament. These consuls joresided over the republic, and commanded the forces by land and sea; while another class of magistrates, bearing the same title, were an- nually elected by the several companies into which the people were divided, for the administration of civil justice. This was the regimen of the twelfth century ; but in the next Genoa fell into the fashion of intrusting the executive power to a foreign Italy. GOVERNMEN'i: OF GENOA. 197 podesta. The podesta was assisted by a council of eight, cho- sen by the eight companies of nobility. This institution gave not only an aristocratic, but almost an oligarchical character to the constitution, since many of the nobility were not inem- bers of these eight societies. Of the Senate or Councils we hardly know more than their existence ; they are very little mentioned by historians. Everything of a general nature, everything that required the expression of public will, was reserved for the entire aud unrepresented sovereignty of the people. In no city was the Parliament so often convened — for war, for peace, for alliance, for change of government. These very dissonant elements were not likely to harmonize. The people, sufficiently accustomed to the forms of democracy to imbibe its spirit, repined at the practical influence which was thrown into the scale of the nobles. Among the nobility themselves, four houses v/ere distinguished beyond all the rest — the Grimaldi, the Fieschi, the Doria, the Spinola; the two former of Guelf politics, the latter adherents of the Empire. Perhaps their equality of forces, and a jealousy which even the families of the same faction entertained of each other, pre- vented any one from usurping the signiory at Genoa. Neither the Guelf nor Ghibelin party obtaining a decided preponder- ence, continual revolutions occurred in the city. The most cel- ebrated was in 1339, which led to the election of the first doge. A large fleet in want of pay broke out in open insur- rection. Savona and the neighboring towns took arms avow- edly against the aristocratical tyranny ; and the capital was itself on the point of joining the insurgents. There was, by the Genoese constitution, a magistrate named the abbot of the people, acting as a kind of tribune for their i)iotection against the oppression of the nobility. This office had been abolished by the present government, and it was the first demand of tlie malcontents that it sliould l)e restored. This was acceded to, and twenty delegates were appointed to make the choice. While they delayed, and the pojmlace was grown weary with waiting, a nameless artisan called out from an elevated station that he could direct them to a fit person. When the people, in jest, bade him speak on, he uttered the name of Simon Boccane- gra. This was a man of noble birth, and well esteemed, who was then present among the crowd. The word was suddenly taken up ; a cry was heard that Boceanegra should be abbot : he was instantly brought forward, and the sword of justice forced into his hand. As soon as silence could be obtained he modestly thanked them for their favor, but declined an office 198 REVOLUTION OF GENOA. Chap. III. Part II. which his nobility ciisqualitiecl him from exercising. At tliis a single voice out of the crowd exclaimed, " Signor ! " and this title was reverberated from every side. Fearful of worse con- sequences, the actual magistrates urged him to comply with the people and accept the office of abbot. P>ut Boccanegra, ad- dressing the assembly, declared his readiness to become their abbot, signor, or whatever they would. The cry of " Sig- nor ! " was now louder than before ; while others cried out, " Let him be duke ! " The latter title was received with greater approbation ; and Boccanegra was conducted to the palace, the first duke, or doge, of Genoa. Caprice alone, or an idea of more pomp and dignity, led the populace, we may conjecture, to prefer this title to that of signor ; but it produced important and highly beneficial con- sequences. In all neighboring cities an arbitrary government had been already established under their respective signors ; the name was associated Avith indefinite power, while that of doge had only been taken by the elective and very limited chief magistrate of another maritime republic. Neither Boc- canegra nor his successors ever rendered their authority un- limited or hereditary. The constitution of Genoa, from an oppressive aristocracy, became a mixture of the two other forms, with an exclusion of the nobles from power. Those four great families who had domineered alternately for almost a century lost their intiuence at home after the revolution of 1339. Yet, what is remarkable enough, thf^y were still selected in preference for the highest of trusts ; tlieir names are still identified with the glory of Genoa; her fleets hardly sailed but under a Doria, a Spinola, or a Grimalda — such confidence could the re])ublic bestow upon their patriotism, or that of those wliom they coiumanded. Meanwhile two or three new families, a plel)eian oligarchy, filled their place in domestic honors ; the Adorni, the Fregosi, the Montalti, contended for the ascendant. From their com]>etition ensued revolutions too numerous almost for a separate history; in four years, from 1390 to 1394, the doge was ten times changed — swept away or brought back in the fluctuations of popular tumult. Antoniotto Adorno, four times doge of Genoa, had sought the friendsliip of Gian Galeazzo Visconti ; but that crafty tyrant meditated the subjugation of the republic, and played her fac- tions against one another to render her fall secure. Adorno perceived that there was no hope for ultimate independence but by making a temporary sacrifice of it. His own power, ambitious as he had been, he voluntarily resigned ; and placed Italy. VENICE. 199 the republic undei- the protection or signiory of the King of France. Terms were stipuhited very favorable to her liberties ; but, with a French garrison once received into the city, they were not always sure of observance. § 18. While Genoa lost even her political independence, Venice became more conspicuous and jjowerful than before. That famous republic deduces its original, and even its lib- erty, from an era beyond tlie commencement of the Middle Ages. The Venetians boast of a perpetual emancipation from the yoke of barbarians. From that ignominious servitude some natives of Acpiileia and neighboring towns fled to the small cluster of islands that rise amidst the shoals at the mouth of the Brenta. Here they built the town of llivoalto, the modern Venice, in 421 ; but their chief settlement was, till the beginning of the ninth century, at Malamocco. Both the Western and the Eastern empire alternately pretended to exercise dominion over her ; she was conquered by l*e[)in, sou of Charlemagne, and restored by him, as the chroniclers say, to the Greek emperor, Nicephorus. Tliere is every appearance that the Venetians had always considered themselves as sub- ject to the Eastern Empire. And this connection was not broken in the early part, at least, of the tenth century. But, for every essential purpose, Venice might long before be deemed an independent state. Her doge was not confirmed at Constantinople ; she paid no tribute, and lent no assistance in war. Her own navies, in the ninth century, encountered the Normans, the Saracens, and the Sclavonians in the Adriatic Sea. Upon the coast of Dalmatia were several Greek cities, which the Empire had ceased to protect, and which, like Venice itself, became republics for want of a master, ilagusa was one of these, and, more fortunate than the rest, survived as an independent city till our own age. In return for the assistance of Venice, these little sea-ports put themselves under her gov- ernment; the Sclavonian pirates were repressed; and after acquiring, partly by consent, partly by arms, a large tract of maritime territory, the doge took the title of Duke of Dalma- tia. Three or four centuries, however, elapsed before the republic became secure of these conquests, which were fre- quently wrested from lier by rebellions of the inhabitants, or by her powerful neighbor, the King of Hungary. A more important source of Venetian greatness was com- merce. In the darkest and most barbarous period, before Genoa or even Pisa had entered into mercantile pursuits, Venice car- ried on an extensive traffic both with the Greek and Saracen 200 HEIl GOVERNMENT. Ciiap. III. Pakt II. regions of the Levant. The Crnsades enriched and aggrandized Venice more, perhaps, than any other city. Her splendor may, however, be dated from the taking of Constantinople by the Latins in 1204. In this famous enterprise, which diverted a great armament destined for the recovery of Jerusalem, the French and Venetian nations were alone engaged ; but the former only as private adventurers, the latter with the whole strength of their reyniblic under its doge, Henry Dandolo. Tliree-eighths of the city of Constantinople, and an equal pro- ])ortion of the provinces, were allotted to them in the partition of the spoil, and the doge took the singular but accurate title, Duke of three-eighths of the Roman Empire. Their share was increased by purchases from less opulent crusaders, especially one of much im])ortance, tlie island of Candia, which they retained till the middle of the sevententh century. These foreign acrpiisitions were generally granted out in lief to pri- vate Venetian nobles under the su])remacy of the re]:)ublic. It was thus that the Ionian islands, to ado})t the vocabulary of our da}'^, came under the dominion of Venice, and guaranteed that sovereignty which slie now began to affect over the Adri- atic. Those of the Archijielago were lost in the sixteenth cen- tury. This political greatness was sustained by an increasing commerce. No Christian state preserved so considerable an intercourse with the Mohammedans. While Genoa kept the keys of the Black Sea by her colonies of Pera and Caffa, Venice directed her vessels to Acre and Alexandria. These connec- tions, as is the natural effect of trade, deadened the sense of religious antipathy ; and the Venetians were sometimes charged witli obstructing all efforts towards a new crusade, or even any partial attacks upon the Mohammedan nations. § 19. The earliest form of government at Venice, as we collect from an epistle of Cassiodorus in the sixteenth cen- tury, was by twelve annual tribunes. Perliaps the union of the different islanders was merely federative. However, in 697, they resolved to elect a chief magistrate by name of duke, or, in their dialect. Doge of Venice. No councils ap- pear to have limited his power, or represented the national will. The doge was general and judge ; he was sometimes permitted to associate his son with him, and thus to prepare the road for hereditary power ; his government had all the prerogatives, and, as far as in such a state of manners was possible, the pomp, of a monarchy. But he acted in impor- tant matters with the concurrence of a general assembly, though, from the want of positive restraints, his executive Italy. GOVERNMENT OF VENICE. 201 government might be considered as nearly absolnte. Time, however, demonstrated to the Venetians the imperfections of such a constitution. Limitations were accortlingly im- posed on the doge, and at length, in 1172, the Great Council was established. It was at first elective, and annually re- newed ; but it became gradually, by successive changes, an exclusive hereditary aristocracy, and, in 1319, all elective forms were abolished. By the constitution of Venice as it was then settled, every descendant of a member of the Great Council, on attaining twenty-tive years of age, entered as of right into that body, which, of course, became unlimited in its numbers. But an assembly so numerous as the Great Council could never have conducted the jjublic affairs with that secrecy and steadiness which were characteristic of Venice ; and without an intermediary power between the doge and the patrician multitude the constitution would have gained noth- ing in stability to compensate for the loss of popular freedom. The executive goveriiment was committed to a Senate, con- sisting of sixty members, in which the doge presided, and to which tlie care of the state in all domestic and foreign relations, and the previous deliberation upon proposals sub- mitted to the Great Council, was confided. It was enlarged in the fourteenth century by sixty additional members ; and as a great part of tlie magistrates had also seats in it, the whole number amounted to between two and three hundred. Though the legislative power, properly speaking, remained with the Great Council, the Senate used to impose taxes, and had the exclusive riglit of making peace and war. It was annually renewed, like almost all other councils at Venice, by the Great Council. But since even this body was too numerous for the preliminary discussion of business, six coun- cillors, forming, along with the doge, the Signiory, or visil)le re])resentative of the republic, were empowered to despatch orders, to correspond with ambassadors, to treat with foreign states, to convoke and preside in the councils, and ])erform other duties of an administration. It might be imagined that a dignity so shorn of its lustre as that of doge would not excite an overweening ambition. But the Venetians were still jealous of extinguished power; and while their constitution was yet immature the Great Council planned new methods of restricting their chief magistrate. An oath was taken by the doge on his election, so comprehensive as to embrace every possible check upon undue influence. He 202 GOVERNMENT OF VENICE. Chap. III. Taut II, was bound not to correspond with foreign states, or to open their letters, except in the presence of tlie signiory ; to acquire no pro})erty beyond the Venetian dominions, and to resign what he might already possess ; to interpose, directly or indirectly, in no judicial process; and not to permit any citizen to use tokens of subjection in saluting him. As a further security, they devised a remarkably complicated mode of suppl^dng the vacancy of his office. As many balls as there were members of the Great Council present were placed in an urn. Thirty of these were gilt. The holders of gilt balls were reduced by a second ballot to nine. The nine elected forty, whom lot reduced to twelve. The twelve chose twenty-five by se})arate nomina- tion. The twenty-five were reduced by lot to nine ; and eacli of the nine chose five. These forty-five were reduced to (dcven, as before; the eleven elected forty-one, who were the idtimate voters for a doge. This intricacy apj)ears useless, and conse- quently absurd ; but the original i)rinciple of a Venetian elec- tion (for something of the same kind was applied to all their councils and magistrates) may not always be unworthy of imitation. An hereditary prince could never have remained quiet in such trammels as were imposed upon the Doge of Venice. But early prejudice accustoms men to consider restraint, even upon tliemselves, as advantageous ; and tlie limitations of ducal ])ower appeared to every Venetian as fundamental as the great laws of the English constitution do to ourselves. For life the chief magistrates of their country, her noble citizens forever, they might thank her in their own name for what she gave, and in that of their posterity for what she withheld. Once only a doge of Venice was tempted to betray the freedom of the republic. INIarin Falieri, a man far advanced in life, en- gaged, for some petty resentment, in a wild intrigue to overturn the government. The conspiracy was soon discovered, and the doge avowed his guilt. An aristocracy so firm and so severe did not hesitate to order his execution in the ducal palace (A.D. 1355). The commonalty, however, did not quietly acquiesce in their exclusion from the Great Council. Several commotions took place about the beginning of the fourteenth century, with the object of restoring a more popular regimen. Upon the suppression of the last, in 1310, the aristocracy sacrificed their own individual freedom along with that of the people, to the preservation of an imaginary privilege. Tliey established the famous Council of Ten, that most remarkable part of the Vene- Italy. GOVERNMENT OF VENICE. 203 tiaii constitution. This council, it should be observed, con- sisted in fact of seventeen, comprising the signiory, or the doge and his six councillors, as Avell as the ten pro])erly so called. The Council of Ten had by usage, if not by right, a controlling and dictatorial power over the Senate and other magistrates, rescinding their decisions, and treating separately with foreign princes. Their vast influence strengthened the executive government, of which they formed a part, and gave a vigor to its movements which the jealousy of the councils would possibly have impeded. But they are chiefly known as an arbitrary and inquisitorial tribunal, the standing tyranny of Venice. Excluding the old council of forty, to which had been intrusted the exercise of criminal justice, not only from the in- vestigation of treasonable charges, but of several other crimes of magnitude, they inquired, they judged, they punished, ac- cording to what they called reason of state. The ]»ublic eye never penetrated the mystery of their proceedings ; the accused was sometimes not heard, never confronted with witnesses ; the condemnation was secret as tlie inquiry, the jjunishment undivulged like both. The terrible and odious machinery of a police, the insidious spy, the stipendiary informer unknown to the carelessness of feudal governments, found their natural soil in the republic of Venice. Tumultuous assemblies were scarcely possible in so peculiar a city ; and private conspiracies never failed to be detected by the vigilance of the Council of Ten. Compared with the Tuscan republics, the tranquillity of Venice is truly striking. The names of Guelf and Ghibelin hardly raised any emotion in her streets, though the Govern- ment was considered in the first part of the fourteenth century as rather inclined towards the latter party. But the wildest excesses of faction are less dishonoring than the stillness and moral degradation of servitude. § 20. Until almost the middle of the fourteenth century Venice had been content without any territorial possessions in Italy ; unless we reckon a very narrow strip of sea-coast, bor- dering on her lagunes, called the Dogato. Neutral in the great contests between the Church and the Empire, between the free cities and their sovereigns, she was respected by both parties, while neither ventured to claim her as an ally. But the rapid progress of Mastino della Scala, lord of Verona, with some particular injuries, led the Senate to form a league with Flor- ence against him. The result of this combination was to annex the district of Treviso to the Venetian dominions. But they made no further conquests in that age. On the contrary, they 204 WARS OF MILAN AND VENICE. Chap. III. Tart II. lost Treviso in the unfortunate war of Cliiogga, and did not regain it till 1389. Nor did they seriously attempt to with- stand the progress of Gian Galeazzo Visconti, who, after over- throwing the family of Scala, stretched almost to the Adriatic, and altogether subverted for a time the balance of power in Lombardy. But upon tlie death of this prince, in 1404, a remarkable crisis took place in that country. He left two sons, Giovanni Maria and Filippo Maria, both young, and under the care of a mother who was little fitted for her situation. Through her nusconduct and the selfish ambition of some military leaders, who had commanded Gian Galeazzo's mercenaries, that exten- sive dominion was soon broken into fragments. Bergamo, Como, Lodi, Cremona, and other cities revolted, submitting themselves in general to the families of their former princes, tlie earlier race of usurpers, Avho had for nearly a century been crushed by the Visconti. A Guelf faction revived after the name had long been proscribed in Lombardy. Francesco da Carrara, lord of Padua, availed himself of this revolution to get possession of Verona, and seemed likely to unite all the cities beyond the Adige. No family was so odious to the Vene- tians as that of Carrara. Though they had seemed indifferent to the more real danger in Gian Galeazzo's lifetime, they took up arms against this inferior enemy. Both I'adua and Verona were reduced, and, the Duke of Milan ceding Vicenza, the republic of Venice came suddenly into the possession of an ex- tensive territory. Francesco da Carrara, who had surrendered in his capital, was put to death in prison at Venice. Notwithstanding the deranged condition of the Milanese, no further attempts were made b}^ the Senate of Venice for twenty years. They had not yet acquired that decided love of war and conquest which soon began to influence them against all the rules of their ancient policy. Meantime the dukes of Milan had recovered a great part of their dominions as rapidly as they had lost them. Giovanni IVIaria, the elder brother, a monster of guilt even among the Visconti, having been assassinated, Filippo Maria assumed tlie government of Milan and Pavia, almost his only possessions. But though weak and unwarlike himself, he had the good-fortune to em- \)\oj Carmagnola, one of the greatest generals of that military age. Most of the revolted cities were tired of their new mas- ters, and, their inclinations conspiring with Carmagnola's eminent talents and activity, the house of Visconti reassumed its former ascendency from the Sessia to the Adige. Its for- Italy. WARS OF MILAN AND VENICE. 205 tunes might have been still more prosperous if Filippo Maria had not rashly as well as ungratefully ott'endecl Carmagnola. That great captain retired to Venice, and inflamed a disposi- tion towards war which the Florentines and the Duke of Savoy had already excited. The Venetians had previously gained some important advantages in another quarter, by re- ducing the country of Friuli, with part of Istria, which had for many centuries de[)ended on the temporal authority of a neigliboring prelate, the patriarch of Aquileia. They entered into this new alliance. No undertaking of the republic had been more successful. Carmagnola led on their armies, and in about two years Venice acquired Brescia and Bergamo, and extended her boundary to the river Adda, which she was des- tined never to pass (a.d. 1426). § 21. Such conquests could only be made by a city so pecu- liarly maritime as Venice through the help of mercenary trooi)S. But, in employing them, she merely conformed to a fashion which states to whom it was less indispensable had long since established. A great revolution had taken ])laee in the system of military service through most parts of Europe, but especially in Italy. During the twelfth and thirteenth centuries, whether the Italian cities were engaged in their contest with the emperors or in less arduous and general hos- tilities among each other, they seem to have poured out almost their whole population as an armed and loosely organized militia. This militia was of course principally com[)ose(l of infantry. Gentlemen, however, were always mounted ; and the superiority of a heavy cavalry must have been })rodigiously great over an undisciplined and ill-armed populace. In the tliirteenth and following centuries armies seem to have been considered as formidable nearly in proportion to the number of men-at-arms or lancers. A charge of cavalry was irresisti- ble ; battles were continually won by inferior numbers, and vast slaughter was made among the fugitives. As the comparative inefficiency of foot-soldiers became evident, a greater proportion of cavalry was employed, and armies, though better equipped and disciplined, were less numerous. This we find in the early part of the fourteenth century. The main point for a state at war was to obtain a sufficient force of men-at-arms. As few Italian cities could muster a large body of cavalry from their own population, the obvious resource was to hire mercenary troops. Many soldiers of fortune from Germany, France, and Hungary, en- gaged in the service of the Italian states. Their services were 206 MILITARY SYSTEM OF ITALY. Chai'. 111. Pakt II. anxiously solicited and abundantly repaid. An unfortunate prejudice in favor of strangers prevailed among the Italians of that age. They ceded to them, one knows not wliy, cer- tainly without having been vantiuished, the palm of military skill and valor. The word Transalpine (Oltramontani) is frequently applied to hired cavalry by the two Villani as an epithet of excellence. The experience of every fresh campaign now told more and more against the ordinary militia. It has been usual for modern writers to lament the degeneracy of martial spirit among the Italians of tliat age. But the contest was too un- ec^ual between an absolutely invulnerable body of cuirassiers and an infantry of peasants or citizens. Tlie cavalry had about this time laid aside the hauberk, or coat of mail, tlieir ancient distinction from the unprotected populace ; which, tliough incapable of being cut through by the sabre, afforded no defence against the pointed sword introduced in the thir- teenth century, nor repelled the impulse of a lance or the crushing blow of a battle-axe. Plate-armor was substituted in its place ; and the man-at-arms, cased in entire steel, the several pieces firmly riveted, and proof against every stroke, his charger protected on the face, chest, and shoulders, or, as it was called, barded with plates of steel, fought with a security of success against enemies inferior perhaps only in these adventitious sources of courage to himself. § 22. It could hardly be expected that stipendiary troops, chiefly composed of Germans, would conduct themselves with- out insolence and contempt of the effeminacy which courted their services. Indifferent to the cause they supported, the highest pay and tlie richest plunder were their constant mo- tives. As Italy was generally the theatre of war in some of her numerous states, a soldier of fortune, witli his lance and charger for an inheritance, passed from one service to another without regret and without discredit. But if peace hapj)ened to be pretty universal, he might be thrown out of his only occupation, and reduced to a very inferior condition, in a coun- try of which he was not a native. It naturally occurred to men of their feelings, that, if money and honor could only be had while the}^ retained their arms, it was their own fault if they ever relinquished them. Upon this principle they first acted in 1343, when the republic of Pisa disbanded a large body of German cavalry whicli had been employed in the war with Florence. A partisan, whom the Italians call the Duke Guariiieri, engaged these dissatisfied mercenaries to remain Italy. SIR JOHN HAWKWOOD. 207 united under liis command. His plan was to levy contributions on all countries wliicli he entered with his company, without aiming at any conquests. This was the first of the companies of adventure, which continued for many years to be the scourge and disgrace of Italy. Guarnieri, after some time, withdrew his troops, satiated with plunder, into Germany ; but he served in the invasion of Naples by Louis, king of Hungary, in 1348, and, forming a new company, ravaged the ecclesiasti- cal state. A still more formidable band of disciplined robbers appeared in 1353, under the command of ' Fra Moriale, and afterwards of Conrad Lando. This was denominated the Great Company, and consisted of several thousand regular troops, besides a multitude of half-armed ruffians, who assisted as spies, pioneers, and plunderers. The rich cities of Tuscany and Romagna paid large sums that the Great Company, which was perpetually in motion, might not march through their territory. None of the foreign partisans who entered into the service of Italian states acquired such renown in that career as an Englishman whom contemporary writers call Aucud or Agutus, but to whom we may restore his national appellation of Sir John Hawkwood. This very eminent man had served in the war of Edward III., and obtained his knighthood from that sovereign, though originally, if we may trust common fame, bred to the trade of a tailor. After the peace of Bretigni, France was ravaged by the disbanded troops, whose devastations Edward was accused, perhaps unjustly, of secretly instigating. A large body of these, under the name of the White Comjiany, passed into the service of the Marquis of Montferrat. They were sometime afterwards employed by the Pisans against Florence ; and during this latter war Hawkwood appears as their commander. Fov thirty years he was continually engaged in the service of the Visconti, of the pope, or of the Floren- tines, to whom he devoted himself for the latter part of his life with more lidelity and steadiness than he had shown in his first campaigns. The republic testified her gratitude by a pub- lic funeral, and by a monument in the Duomo, which still per- petuates his memory. The name of Sir John Hawkwood is worthy to be remem- bered as that of the first distinguished commander who had appeared in Europe since the destruction of the Roman Em- pire. It would be absurd to suppose that any of the constitu- ent elements of military genius which nature furnishes to energetic characters were wanting to the leaders of a barbarian 208 SIR JOHN HAWKWOOD. Chap. III. Part II. or feudal army : untroubled perspicacity in confusion, firm decision, rapid execution, providence against attack, fertility of resource and stratagem — these are in quality as much required from the chief of an Indian tribe as from the accom- plished commander. But we do not find them in any instance so consummated by habitual skill as to challenge the name of generalship. Hawkwood appears to me the first real general of modern times — the earliest master, however imperfect, in the science of Turenne and Wellington. Every contemporary Italian historian speaks with admiration of his skilful tactics in battle, his stratagems, his well-conducted retreats. Praise of this description is hardly bestowed, certainly not so continu- ally, on any former captain. Hawkwood was not only the greatest but the last of the foreign condottieri, or captains of mercenary bands. While he was yet living, a new military school had been formed in Italy, which not only superseded, but eclipsed, all the strangers. This important reform was ascribed to Alberic di Barbiano, lord of some petty territories near Bologna. He formed a company altogether of Italians about the year 1379. It is not to be supposed that natives of Italy had before been abso- lutely excluded from service. But this was the first trading company, if I may borrow the analogy, the first regular body of Italian mercenaries, attached only to their commander with- out any consideration of party, like the Germans and English of Lando and Hawkwood. Alberic di Barbiano, though him- self no doubt a man of military talents, is principally distin- guished by the school of great generals which tlie company of St. George under his command produced, and which may be deduced, by regular succession, to tlie sixteenth century. Tavo of tlie most distinguished members of this sc1k)o1 were Braccio di JNIontone, a noble Perugian, and Sforza Attendolo, originally a peasant in the village of Cotignuola. Nearly equal in reputation, unless perhaps Braccio may be reckoned the more consummate general, they were divided by a long rivalry, which descended to the next generation, and involved all the distinguished leaders of Italy. The distractions of Naples, and the anarchy of the ecclesiastical state, gave scope not only to their military but political ambition. Sforza was invested with extensive fiefs in the kingdom of Naples, and with the office of Great Constable. Braccio aimed at inde- pendent acquisitions, and formed a sort of principality around Perugia. This, however, was entirely dissipated at his death. When Sforza and Braccio were no more, their respective Italy. FRANCESCO SFORZA. 209 parties were headed by the son of the former, Francesco Sforza, and by Nicolas Piccinino, who for more than twenty years fought, with few exceptions, under opposite banners. Picci- nino, was constantly in the service of Milan. Sforza married Bianca, the natural daughter and only child of Filippo Maria, duke of Milan, and last of his family, But upon the death of Filippo Maria in 1447, the citizens of Milan revived their re- publican government. A republic in that part of Lombardy might, with the help of Venice and Florence, have withstood any domestic or foreign usurpation. But Venice was hostile, and Florence indifferent. Sforza became the general of this new state, aware tliat such would be the probable means of becoming its master. No politician of that age scrupled any breach of faith for his interest. Sforza, with his army, de- serted to the Venetians ; and the republic of Milan, being both incapable of defending itself and distracted by civil dissen- sions, soon fell a prey to his ambition. In 1450 he was pro- claimed duke, rather by right of election, or of conquest, than in virtue of his marriage with Bianca, whose sex, as well as illegitimacy, seemed to preclude her from inheriting. § 23. Whatever evils might be derived, and they were not trifling, from the employment of foreign or native mercena- ries, it was impossible to discontinue the system without general consent ; and too many states found their own advantage in it for such an agreement. The condottieri were, indeed, all notorious for contempt of engagements. Their rapacity was equal to their bad faith. Besides an enormous pay, for every private cuirassier received much more in value than a subaltern officer at present, they exacted gratifications for every success. But every thing was endured by ambitious governments who wanted their aid. Florence and Venice were the two states which owed most to the companies of adventure. The one loved war without its perils ; the other could never have ob- tained an inch of territory with a population of sailors. But they were both almost inexhaustibly rich by commercial in- dustry ; and as the surest pay-masters, were best served by those they employed. The Italian armies of the fifteenth century have been re- marked for one striking peculiarity. War has never been conducted at so little personal hazard to the soldier. Coiiibats frequently occur, in the annals of that age, wherein success, though warmly contested, cost very few lives even to the vanquished. This innocence of blood, which some historians turn into ridicule, was no doubt owing in a great degree to 210 INVENTION OF GUNPOWDEE. Chap. III. Part II. the rapacity of the companies of adventure, who, in expecta- tion of enriching themselves by the ransom of prisoners, were anxious to save their lives. But it was rendered more practi- cable by the nature of their arms. For once, and for once only, in the history of mankind, the art of defence liad outstripped that of destruction. In a charge of lancers many fell, un- horsed by the shock, and might be suffocated or bruised to death by the pressure of their own armor ; but the lance's point could not penetrate the breastplate, the sword fell harm- less on the helmet, the conqueror, in the first impulse of pas- sion, could not assail any vital part of a prostrate but not exposed enemy. Still less was to be dreaded from the archers or cross-bowmen, who composed a large part of the infantry. The bow indeed, as drawn by an English foot-soldier, was the most formidable of arms before the invention of gunpowder. It was a peculiarly English weapon, and none of the other principal nations adopted it so generally or so successfully. The cross-bow, which brought the strong and weak to a level, was more in favor upon the Continent. But both the arrow and the quarrel glanced away from plate-armor, such as it became in the fifteenth century, impervious in every point, except when the visor was raised from the face, or some part of the body accidentally exposed. The horse, indeed, was less completely protected. Meanwhile a discovery accidentally made had prepared the way not only for a change in the military system, but for po- litical effects still more extensive. There seems little reason to doubt that gunpowder was introduced through the means of the Saracens into Europe. Its use in engines of war, though they may seem to have been rather like our fire-works tlian artillery, is mentioned by an Arabic writer in the Escurinl col- lection about the year 1249. It was known not long after- wards to our philos()[)her Roger Bacon, though he concealed, in some degree, the secret of its composition. In the first part of the fourteenth century, cannon, or rather mortars, were invented, and the applicability of gunpowder to purposes of war was understood. Edward III. employed some pieces of artillery with considerable effect at Crecy. But its use was still not very frequent ; a circumstance which will surprise us less when we consider the unscientific construction of artil- lery ; the slowness with which it could be loaded ; its stone balls, of uncertain aim and imperfect force, being commonly fired at a considerable elevation ; and especially the difficulty of removing it from place to place during an action. In sieges Italy. KINGS OF NAPLES. 211 iind ill naval engagements, as I'ur exampl-e, in the war of Chi- oggia, it was more frequently em})loyed. Gradually, however, the new artifice of evil gained ground. The French made the principal improvement. They cast their cannon smaller, placed them on lighter carriages, and used balls of iron. They invented portable arms for a single soldier, which, though clumsy in comparison with their ])resent state, gave an augury of a prodigious revolution in the military art. John, duke of Burgundy, in 1411, had 4000 hand-cannons, as they were called, in his army. They are found, under different names and modifications of form, in most of the wars that historians of the fifteenth century record, but less in Italy than beyond the Alps. The Milanese, in 1449, are said to have armed their militia with 20,000 muskets, which struck terror into the old generals. But these muskets, supported on a rest, and charged with great delay, did less execution than our sanguinary science would require ; and, uncombined with the admirable invention of the bayonet, could not in any degree resist a charge of cavalry. The pike had a greater tendency to sub- vert the military system of the Middle Ages, and to demon- strate the efficiency of disciplined infantry. Two free nations had already discomfited, by the help of such infantry, those ar- rogant knights on whom the fate of battles had depended — the Bohemians, instructed in the art of war by their great master, John Zisca ; and the Swiss, who, after winning their independence inch by inch from the house of Austria, had lately established their renown by a splendid victory over Charles of Burgundy. Louis XI. took a body of mercenaries from the United Cantons into pay. Maximilian had recourse to the same assistance. And though the importance of infan- try was not, perhaps, decidedly established till the Milanese wars of Louis XII. and Francis I., in the sixteenth century, yet the last years of the Middle Ages, according to our division, indicated the commencement of that military revolu- tion in the general employment of pikemen and musketeers. § 24. I have not alluded for some time to the domestic his- tory of a kingdom which bore a considerable part, during the fourteenth and fifteenth centuries, in the general combinations of Italian policy, not wishing to interrupt the reader's atten- tion by too frequent transitions. We must return again to a more remote age in order to take up the history of Naples. Charles of Anjou, after tlie deatlis of Manfred and Conradin had left him without a competitor, might be ranked in the first class of European sovereigns. (See p. 172.) Master of 212 KINGS OF NAPLES AND SICILY. Chap. III. Part II. Provence and Naples, and at the head of the Guelf faction in Italy, he had already prepared a formidable attack on tlie KINGS OF NAPLES OF THE HOUSE OF ANJOU. Charles I. of Anjou, son of Louis VJIL, king of France, and brother of Louis IX., king of France, becomes king of Naples and Sicily, A. D. 1:^65. Loses Sicily 1283, d. 1285. Charles II., m. daughter of King of Hungary, 1285-1305. Charles Martel, king of Hungary, d. Iz96. Carobert, king of Hungary, d. 1342. Robert, 1305-1343. I John, duke of Durazzo. Louis, king of Hungary. Andrew, m. Joanna I. strangled 1345. Charles, duke of C.alabria, d. 1328. I Joanna I., n. Andrew of Hungary and other husbands, 1343-1378. Charles, duke of Durazzo. I Margaret, m. Charles III. king of Naples. Louis. Charles III., king 1382-1386, m. Margaret of Durazzo. Ladislaus, king of Naples, 1386-1414. Joanna II. 1414-1435., Greek empire, when a memorable revolution in Sicily brought humiliation on his latter years. John of I'rocida, a Neapoli- tan, whose patrimony had been confiscated for his adherence to the party of Manfred, retained, during long years of exile KINGS OF SICILY OF THE HOUSE OF ARAGON. 1. Peter III. (king of Aragon), m. Constance, daughter of Conradin of Suabia [see p. 172], and becomes king of Sicily after the Sicilian Vespers, A. D. 1283, d. 1285. Alfonso III., king of Aragon. James II., king of Aragon and king of Sicily, abdicates in favor of Charles II., king of Naples, 1295. I Frederick I., elected king of Sicily, 1296-1336. Peter II., king of Sicily, 1336-1342. Louis, king of Sicily 1342-1355. Frederick II., king of Sicily, 1355-1377- I Maria, queen of Sicily, 1377-1402, m. Martin, prince of Aragon. an implacable resentment against the house of Anjon. From the dominions of Peter III., king of Aragon, who had Italy. WAR BETWEEN FRANCE AND ARAGON. 213 bestowed estates upon liim in Valencia, he kept his eye contin- ually fixed on ISTaples and Sicily. The former held out no favorable prospects ; the Ghibelin party had been entirely sub- dued, and the principal barons were of French extraction or inclinations. But the island was in a very different state. Unused to any strong government, it was now treated as a conquered country. A large body of French soldiers garri- soned the fortified towns, and the systematic oppression was aggravated by those insults upon the honor of families which are most intolerable to an Italian temperament. John of Procida, travelling in disguise through the island, animated the barons with a hope of deliverance. In like disguise he repaired to the pope, Nicholas III., who was jealous of the new Neapolitan dynasty, and obtained his sanction to the projected insurrection ; to the Court of Constantinople, from which he readily obtained money ; and to the King of Aragon, who em- ployed that money in fitting out an armament, that hovered upon the coast of Africa, under pretext of attacking the Moors. It is, however, difficult at this time to distinguish the effects of preconcerted conspiracy from those of casual resent- ment. Before the intrigues so skilfully conducted had taken eifect, yet after they were ripe for development, an outrage committed upon a lady at Palermo, during a procession on the vigil of Easter, provoked the people to that terrible massacre of all the French in their island which has obtained the name of Sicilian Vespers. Unpremeditated as such an ebullition of popular fury must appear, it fell in, by the happiest coinci- dence, with the previous conspiracy. The King of Aragon's fleet was at hand ; the Sicilians soon called in his assistance ; he sailed to Palermo, and accepted the crown (a.d. 1283). § 25. The long war that ensued upon this revolution in- volved or interested the greater part of civilized Europe. Philip III. of France adhered to his uncle, and the King of Aragon was compelled to fight for Sicily within his native dominions. This, indeed, was the more vulnerable point of attack. Upon the sea he was lord of the ascendant. His Catalans, the most intrepid of Mediterranean sailors, were led to victory by a Calabrian refugee, Roger di Loria, the most illustrious and successful admiral whom Europe pro- duced till the age of Blake and De Ruyter. In one of Loria's battles the eldest son of the King of Naples was made prisoner, and the first years of his own reign were spent in confinement. But notwitlistanding these advantages, it was found impracticable for Aragon to contend against the arms 214 ROBERT. — JOANXA. Chap. III. Part II. of France, and latterly of Castile, sustained by tlie rolling thunders of the Vatican. Peter III. had bequeathed Sicily to his second son, James; Alfonso, the eldest, King of Ara- gon, could not fairly be expected to ruin his inheritance for his brotlier's cause ; nor were the barons of that free country disposed to carry on a war without national objects. He made peace, accordingly, in 1295, and engaged to withdraw all his subjects from the Sicilian service. Upon his own death, which followed very soon, James succeeded to the kingdom of Aragon, and ratified the renunciation of Sicily. But the natives of that island had received too deeply the spirit of independence to be thus assigned over by the letter of a treaty. After solemnly abjuring, by their ambassadors, their allegiance to the King of Aragon, they placed the crown upon the head of his brother, Frederick. They maintained the war against Charles II. of Naples, against James of Ara- gon, their former king, who had bound himself to enforce their submission, and even against the great lioger di Loria, who, upon some discontent with Frederick, deserted their banner, and entered into the Neapolitan service. Peace was at length made in 1300, upon condition that Frederick should retain during his life the kiugdom, which was afterwards to revert to the crown of Naples : a condition not likely to be fulfilled. Upon the death of Charles II., king of Naples, in 1305, a question arose as to the succession. His eldest son, Charles Martel, had been called by maternal inheritance to the throne of Hungar}^, and had left at his decease a son, Carobert, the reigning sovereign of that country. According to the laws of representative succession, which were at this time tolerably settled in private inheritance, the crown of Naples ought to have regularly devolved upon that prince. But it was con- tested by Ids uncle, Robert, the eldest living son of Charles II., and tlie cause was pleaded by civilians at Avignon before Pope Clement V., the feudal sujKU'ior of the Neapolitan king- dom. Reasons of public utility, rather than of legal analogy, seems to have prevailed in the decision which was made in favor of Robert. The course of his reign evinced the wisdom of this determination. Robert, a wise and active, though not personally a martial ]:»rince, maintained the ascendency of the Guelf faction, and the papal influence connected with it, against the formidable comlnnation of Ghibelin usurpers in Lombardy, and the two emperors Henry VII. and Louis of Bavaria. No male issue survived Robert, whose crown de- Italy. HOUSE OF ANJOU. 215 scended to his granddaughter Joanna. She had been es- poused, while a chihl, to her cousin Andrew, son of CaroLert, king of Hungary, who was educated with lier in tlie court of Naples. Auspiciously contrived as this union might seem to silence a subsisting claim upon the kingdom, it proved event- ually the source of civil war and calamity for 150 years. Andrew's manners were barbarous, more worthy of his native country than of that polished court wherein he had been bred. He gave himself up to the society of Hungarians, who taught him to believe that a matrimonial crown and derivative royalty were derogatory to a prince who claimed by a para- mount hereditary right. In fact, he was pressing the Court of Avignon to permit his own coronation, which woi;ld have jjlaced in a very hazardous condition the rights of the queen, with whom he was living on ill terms, when one night he was seized, strangled, and thrown out of a window. Public rumor, in tlie absence of notorious ])roof, imputed the guilt of this mysterious assassination to Joanna. Whether historians are authorized to assume her particii)ation in it so confidently as they have generally done, may perhaps be doubted ; but the circumstances of Andrew's death were undoubtedly ])regnant with strong suspicion. Louis, king of Hungary, his brother, a just and stern prince, invaded Naples, partly as an avenger, partly as a conqueror. The queen and her second husband, Louis of Tarento, fled to Provence, where her acquittal, after a solemn, if not an impartial, investigation, was jn-onounced by Clement VI. Louis, meanwhile, found it more difficult to retain tlian to acquire the kingdom of Naples ; his own domin- ion required his presence; and Joanna soon recovered her crown. She reigned for thirty years more without the attack of any enemy, but not intermeddling, like her progenitors, in the general concerns of Italy. Childless by four husbands, the succession of Joanna began to excite ambitious specula- tions. Of all the male descendants of Charles I. none re- mained but the King of Hungary, and Cliarles, duke of Durazzo, who had married the queen's niece, and was regarded by her as the presumptive heir to the crown. But, offended by her marriage with Otho of Brunswick, he procured the assistance of a Hungarian army to invade the kingdom, and, getting the queen into his power, took possession of the throne. In this enterprise he was seconded by Urban VI., against whom Joanna had unfortunately declared in the great schism of the Church. She was smothered with a pillow, in jjrisoUj by the order of Charles. 216 LADISLAUS. Chap. III. Taut IL § 26. In the extremity of Joanna's distress she had sought assistance from a quarter too remote to aiford it in time for her relief. Slie ado])ted Louis, duke of Anjou, eklest uncle of the young king of France, Charles VI., as her heir in the kingdom of Naples and county of Provence. This bequest took eifect Avithout difficulty in the latter country. Naples was entirely in the possession of Charles of Durazzo. Louis, however, entered Italy with a very large army, consisting at least of 30,000 cavalry, and, according to some writers, more than double that number. He was joined by many Neapolitan barons attached to tlie late queen. But, by a fate not unusual in so imperfect a state of military science, their armament produced no adequate effect, and mouldered away through disease and want of provisions. Louis himself dying not long afterwards, the government of Charles III. appeared secure, and he was tempted to accept an offer of the crown of Hun- gary. This enterprise, equally unjust and injudicious, ter- TITULAR KINGS OF NAPLES OF THE SECOND HOUSE OP ANJOU. I.oris I., duke of Anjou, son of John, kinj^ of France, and uncle of Charles VI., king of France, was adopted by Joanna I. as kinj; of Naples, d. 1384. Louis IT., titular king of Naples, 13S4-H17. \ Louis III., Regnier, titular king of Naples, titular king of Naples, H17-H3i. H34-14S0. minated in his assassination. Ladislaus, his son, a child ten years old, succeeded to the throne of Naples, under the guardianship of his mother, Margaret, whose exactions of money producing discontent, the party which had supported the late Duke of Anjou became ])owerful enough to call in his son. Louis 1 1., as he was called, reigned at Naples, and possessed most part of the kingdom, for several years ; the young king Ladislaus, who retained some of the northern provinces, fixing his residence at Gaeta. If Louis had prose- cuted the war with activity, it seems probable that he would have subdued his adversary. But his character was not very energetic ; and Ladislaus, as he advanced to manhood, display- ing much superior qualities, gained ground by degrees, till tlie Angevin barons, perceiving tlie turn of the tide, came over to his banner, and he recovered his whole dominions. The kingdom of Naples, at the close of the fourteenth cen- tury, was still altogether a feudal government. This had been Italy. JOANNA II. 217 introduced by the first ISTorman kings, and the system had ratlier been strengthened than impaired under the Angevin line. The princes of the blood, who were at one time numer- ous, obtained extensive domains by way of appanage. Tlfe principality of Tarento was a large portion of the kingdom. The rest was occupied by some great families, whose strength, as well as pride, was shown in the number of men-at-arms whom they could muster under their banner. At the corona- tion of Louis II., the Sanseverini appeared with 1800 cavalry completely equi[)2:)ed. This illustrious house, which had filled all tlie high offices of state, and changed kings at its pleas- ure, was crushed by Ladislaus, whose bold and unrelenting spirit well fitted him to bruise the heads of the aristocratic hydra. After thoroughly establishing his government at home, this ambitious monarcli clirected his powerful resources towards foreign conquests. The ecclesiastical territories had never been secure from rebellion or usur[)ation; but legitimate sover- eigns had hitherto respected the patrimony of the head of the Church. It was reserved for Ladislaus, a feudal vassal of tlie Holy See, to seize upon Rome itself as his spoil. For several years, while tlie disordered state of the Church, in consequence of the schism and the means taken to extinguish it, gave him an opportunity, the King of Naples occupied great i)art of the ])apal territories. He was disposed to have carried his arms farther north, and attacked the republic of Florence, if not the states of Lombardy, when his death relieved Italy from the danger of this new tyranny. § 27. An elder sister, Joanna II., reigned at Naples after Ladislaus. Under this queen, destitute of courage and under- standing, and the slave of apj)etites which her age rendered doubly disgraceful, the kingdom relapsed into that state of an- archy from which its late sovereign had rescued it. She adopted first, as her heir and successor, Alfonso, king of Aragon and Sicily, but subsequently revoked her adoj)tion, and substituted in liis room another, Louis of Anjou, third in descent of that unsuccessful dynasty. Upon his death, the queen, who did not long survive him, settled the kingdom on his brother Reg- nier. The Neapolitans were generally disposed to execute this bequest. But Regnier was unluckily at that time a prisoner to the Duke of Burgundy ; and tliough his wife maintained the cause with great spirit, it was difficult for her, or even for himself, to contend against the King of Aragon, who immedi- ately laid claim to the kingdom. After a contest of several years, Regnier, having experienced the treacherous and selfish 218 ALFONSO. CuAP. III. Tart II. abandonment of his friends, yielded the game to his adversary ; and Alfonso founded the Aragonese line of sovereigns at Naples, deriving pretensions more splendid than just from Manfred, from the house of Suabia, and from Roger Guiscard. § 28. Sicily, after the reign of its deliverer, Frederick I., had unfortunately devolved upon weak or infant princes. The marriage of Maria, queeu of iSicily, with Martin, son of the King of Aragon, put an end to the national inde]jendence of her country. (See Genealogical Table, p. 212.) Dying with- out issue, she left the crown to her husband. This was conso- nant, perhai)S, to the received law of some European kingdoms. But, upon the death of Martin, in 1409, his father, also named Martin, king of Aragon, took possession as heir to his son, witlunit any election by the Sicilian Parliament. Thus was Sicily united to the crown of Aragon. Alfonso now enjoyed the three crowns of Aragon, Sicily, and Najjles. In the first year of Alfonso's Neapolitan war, he was defeated and taken i)risoner by a fleet of the Genoese, who, as constant enemies of the Catalans in all the naval warfare of the Medi- terranean, had willingly lent their aid to the Angevin party. Genoa was at this time subject to Filippo Maria, duke of Milan, and her royal captive was transmitted to his court. But here the brilliant graces of Alfonso's character won over his con- queror, who had no reason to consider the war as his own concern. The king persuaded him, on the contrary, that a strict alliance Avith an Aragonese dynasty in Naples against the pretensions of any French claimant would be the true policy and best security of Milan. That city, which he had entered as a prisoner, he left as a friend and ally. From this time Filippo Maria Visconti and Alfonso were firmly united in their Italian i)olitics and formed one weight of the balance whicli the republics of Venice and Florence kept in equipoise. Afti'r the succession of Sforza to the duchy of Milan the same alliance was generally preserved. Sforza had still more i)Ower- ful reasons than his predecessors for excluding the French from Italy, his own title being contested by the Duke of Or- leans, who derived a claim from his mother Valentine, a daugh- ter of (lian Galeazzo Visconti. But the two rei)ublics were no longer disposed towards war. Florence had sj)ent a great deal wdtliout any advantage in her contest with Filippo Maria; and the new duke of Milan had been the constant personal friend of Cosmo de' Medici, wdio altogether influenced that republic. At Venice, indeed, he had been at first regarded with very dif- ferent sentiments ; the Senate had prolonged their war against Italy. ALFONSO. 219 Milan with redoubled animosity after his elevation, deeming him a not less ambitious and more formidable neighbor than the Visconti. But they were deceived in the character of Sforza. Conscious that he had reached an eminence beyond his early hopes, he had no care but to secure for his family the possession of Milan, without disturbing the balance of Lom- bardy. Venice had little reason to expect further conquests in Lombardy ; and if her ambition had inspired the hope of them, she was summoned by a stronger call, that of self-preservation, to defend her numerous and dispersed possessions in the Levant against the arms of Mohammed II. All Italy, indeed, felt the peril that impended from that side ; and these various motions occasioned a quadru])le league in 1455, between the King of ISTajjles, the Duke of Milan, and the two republics, for the })res- ervation of peace in Italy. One object of this alliance, and the prevailing object with Alfonso, was the implied guaranty of his succession in the kingdom of Naples to his illegitimate son Ferdinand. He had no lawful issue ; and there seemed no reason why an acquisition of his own valor should pass against his will to collateral heirs. The pope, as feudal superior of the kingdom, and the Neapolitan Parliament, the sole competent tribunal, confirmed the inheritance of Ferdinand. Alfonso, surnamed the Magnanimous, was by far the most accomplished sovereign whom the fifteenth century produced. The virtues of chivalry were combined in him with the patron- age of letters, and with more than their patronage, a real enthusiasm for learning, seldom found in a king, and espe- cially in one so active and ambitious. This devotion to litera- ture, was, among the Italians of that age, almost as sure a passport to general admiration as his most chivalrous perfec- tion. Magnificence in architecture and the pageantry of a splendid court gave fresh lustre to his reign. The Neapolitans perceived with grateful pride that he lived almost entirely among them, in preference to his patrimonial kingdom, and forgave the heavy taxes which faults nearly allied to his vir- tues, profuseness and ambition, compelled him to impose. But they remarked a very different character in his son. Fer- dinand was as dark and vindictive as his father was affable and generous. The barons, who had many opportunities of ascertaining his disposition, began immediately upon Alfonso's death, to cabal against his succession, turning their eyes first to the legitimate branch of the family, and on finding that prospect not favorable, to John, titular duke of Calabria, son of Regnier of Anjou, who survived to protest against the revo- 220 GENOA.— FLORENCE. Chap. III. Part II. lution that had dethroned him. John was easily prevailed upon to undertake an invasion of Naples, but he underwent the fate that had always attended his family in their long compe- tition for that throne. After some brilliant successes, his want of resources, aggravated by the defection of Genoa, on Avhose ancient enmity to the house of Aragon he had relied, was perceived by the barons of his party, who, according to the jn-actice of their ancestors, returned one by one to the allegiance of Ferdinand. § 29. Tlie peace of Italy was little disturbed, except by a few domestic revolutions, for several years after this Neapoli- tan war. Even the most short-sighted politicians were some- times withdrawn from selfish objects by the appalling progress of the Turks, though there was not energy enough in their councils to form any concerted plans for their own security. Venice maintained a long but unsuccessful contest with JVIohammed II. for her maritime acquisitions in Greece and Albania ; and it was not till after his death relieved Italy from its immediate terror that the ambitious republic endeavored to extend its territories by encroaching on the house of Este. Nor had Milan shown much disposition towards aggrandize- ment. Francesco Sforza had been succeeded — such is the condition of despotic governments — by his son Galeazzo, a tyrant more execrable than the worst of the Visconti. His extreme cruelties, and the insolence of a debauchery that gloried in the public dishonor of families, excited a few daring spirits to assassinate him. The Milanese profited by a tyran- nicide the perpetrators of which they had not courage or grati- tude to protect. The regency of Bonne of Savoy, mother of the infant duke Gian Galeazzo, deserved the praise of wisdom and moderation. But it was overthrown in a few years by Ludovico Sforza, surnamed the Moor, her husband's brother; who, while he i)roclaimed his nephew's majority, and affected to treat hira as a sovereign, hardly disguised in his conduct towards foreign states that he had usurped for himself the sole direction of government. The annals of one of the few surviving republics, that of Genoa, present to us, during the fifteenth as well as the pre- ceding century, an unceasing series of revolutions, the shortest enumeration of which would occupy several pages. The latest revolution within the compass of this work was in 1488, when the Duke of Milan became sovereign, an Adorno holding the office of doge as his lieutenant. § 30. Florence, the most illustrious and fortunate of Italian Italy. RISE OF THE MEDICI. 221 republics, was now rapidly descending from her rank among free commonwealths, though surrounded with more than usual lustre in the eyes of Europe. We must take up the story of that city from the revolution of lo82, which restored the ancient Guelf aristocracy, or party of the Albizi, to the ascen- dency of wldch a i)Opular insurrection had stripped tliem. Fifty years elapsed during which this jiarty retained the gov- ernment in his own hands with few attempts at disturbance. Their ])rincipal adversaries had been exiled, according to the invarial)le and jjerhaps necessary custom of a republic ; the populace and inferior artisans were dispirited by their ill-suc- cess. But, while crushing with deliberate severity their avowed adversaries, the ruling party had left one family whose pru- dence gave no reasonable excuse for persecuting them, and whose popularity, as well as wealth, rendered the experiment hazardous. The Medici were among the most considerable of the new or plebeian nobility. From the first years of the four- teenth century their name not very unfrequently occurs in the domestic and military annals of Florence. Throughout the long depression of the popular faction the house of Medici was always regarded as their consolation and their hope. That house was now represented by Giovanni, whose immense wealth, honorably acquired by commercial dealings, which had already rendered the name celebrated in Europe, was expended with liberality and magniticence. Of a mild temper, and averse to cabals, Giovanni de' Medici did not attempt to set up a party, and contented himself with repressing some fresh encroach- ments on the popular part of the constitution which the Albizi were disposed to make. They, in their turn, freely admitted him to that share in public councils to which he was entitled by his eminence and virtues ; a proof that the spirit of their administration was not illiberally exclusive. But, on the death of Giovanni, his son Cosmo de' Medici, inheriting his father's riches and estimation, with more talents and more ambition, thought it time to avail himself of the popularity belonging to his name. By extensive connections with the most eminent men in Italy, especially with Sforza, he came to be considered as the tirst citizen of Florence. The oligarchy were more than ever unpopular. Their administration since 1382 had indeed been in general eminently successful; the acquisition of Pisa and of other Tuscan cities had aggrandized the republic, while from the port of Leghorn her ships had begun to trade with Alexandria, and sometimes to contend with the Genoese. But an unprosperous war with Lucca 222 LORENZO DE' MEDICI. Chap. III. Part II. diminished a reputation which was never siistained by public affection. Cosmo and his friends aggravated the errors of the government, which, liaving lost its wise and temperate leader, Nicola di Uzzano, had fallen into the rasher hands of Einaldo degl' Albizi. He incurred the blame of being the first aggres- sor in a struggle which had become inevitable. Cosmo was arrested by command of a gonfalonier devoted to the Albizi, and condemned to banishment (a.d. 1433). But the oligarchy had done too much or too little. The city was full of his friends ; the lionors conferred upon him in his exile attested the senti- ments of Italy. Next year he was recalled in triumph to Florence, and the Albizi were completely overthrown. It is vain to expect that a victorious faction will scruple to retaliate u[)on its enemies a still greater measure of injustice than it ex})erienced at their hands. The Albizi had in general respected the legal forms of their free republic, which good citizens, and perha])S themselves, might hope one day to see more effective. Tlie Medici made all their government con- ducive to hereditary monarchy. A multitude of noble citizens were driven from their country ; some were even put to death. A balia* was appointed for ten years to exclude all the Albizi from magistracy, and for the sake of this security to the rul- ing faction, to supersede the legitimate institutions of the republic. Aftm- the expiration of tliis period, the dictatorial ])o\ver was renewed on |)retence of fresh danger, and this was rejieated constantly. Cosmo died at an advanced age, in 14G4. His son, Piero de' Medici, though not deficient either in virtues or abilities, seemed too infirm in health for the administration of public affairs. A strong opposition was raised to the family ]n'('tensions of tlie Medici. Like all Florentine factions, it trusted to violence ; and the cluxnce of arms was not in its favor. From this revolution in 14r)6, when some of the most considerable citizens were banished, we may date an acknowl- edged supremacy in the house of Medici, the chief of which nominated the regular magistrates, and drew to himself the whole conduct of the republic. § 31. The two sons of Piero, Lorenzo and Julian, especially the former, though young at their father's death, assumed, by the request of their friends, the reins of government (a.d. 1469). It was impossible that, among a people who had so many rect)llections toattacli to the name of liberty, among * A baiin was a temporary delegation of sovereignty to a number, ironerally a con- siderable number of citizens, who during the period of tlieir dictalorsliip named tlie magistrates, iustcud of drawing- tliero by lot, and banislied suspected individuals. Italy. LORENZO DE' MEDICI. 223 so many citizens whom their ancient constitution invited to public trust, the control of a single family should, excite no dissatisfaction. But, if the people's wish to resign their freedom gives a title to accept the government of a country, the Medici were no usurpers. That family never lost the aifections of the populace. The cry of Falle, Palle (their ar- morial distinction), would at any time rouse the Florentines to defend the chosen patrons of the republic. If their sub- stantial influence could before be questioned, the conspiracy of the Pazzi, wherein Julian perished, excited an enthusiasm for the surviving brother that never ceased during his life. Nor was this any thing unnatural, or any severe reproach to Florence. All around, in Lombardy and Eomagna, the lamp of liberty had long since been extinguished in blood. The freedom of Sienna and Genoa was dearly purchased hy revolutionary proscriptions ; that of Venice was only a name. The repul)lic Avhich liad jjreserved longest, and with greatest purity, that vestal fire, had at least no relative degradation to fear in surrendering herself to Lorenzo de' Medici. I need not in this place expatiate upon what the name instantly suggests — the patronage of science and art, and the constellation of scholars and poets, of architects and painters, whose reflected beams cast their radiance around his head. His political rep- utation, though far less durable, was in his own age as conspic- uous as that which he acquired in the history of letters. Equally active and sagacious, he held his way through the varying combinations of Italian policy, always with credit, and generally with success. Florence, if not enriched, was, upon the whole, aggrandized during his administration, which was exposed to some severe storms from the unscrupulous adversa- ries, Sixtus IV. and Ferdinand of Is^aples, whom he was com- pelled to resist. As a patriot, indeed, we never can bestow upon Lorenzo de' Medici the meed of disinterested virtue. He completed that subversion of the Florentine republic which his two immediate ancestors had so well prepared. The two coun- cils, her regular legislature, he superseded by a permanent Senate of seventy persons ; while the gonfalonier and priors, become a mockery and pageant to keep up the illusion of lib- erty, were taught that in exercising a legitimate authority without the sanction of their prince — a name now first heard at Florence — they incurred the risk of punishment for their audacity. Even the total dilapidation of his commercial wealth was repaired at the cost of the state ; and tlie republic disgracefully screened the bankruptcy of the Medici by her 224 FRANCE LAYS CLAIM TO NAPLES. Ch. IIL Part IL own. But, compared with the statesmen of his age, we can reproach Lorenzo with no heinous crime. He had many ene- mies ; his descendants had many more ; but no unequivocal charge of treachery or assassination has been substantiated against his memory. So much was Lorenzo esteemed by his contemporaries, that his premature death lias frequently been considered as the cause of those unhappy revolutions tliat speedily ensued, and which his foresight would, it is imagined, have -been able to prevent ; an opinion which, whether founded in probability or otherwise, attests the common sentiment about his character (a.d. 1492). § 32. If, indeed, Lorenzo de' Medici could not have changed the destinies of Italy, however premature his death may ap- pear if we consider the ordinary duration of human exist- ence, it must be admitted that for his own welfare, perhaps for his glory, he had lived out the full measure of his time. An age of new and uncommon revolutions was about to arise, among the earliest of which the temporary downfall of his family was to be reckoned. The long-contested suc- cession of Naples was again to involve Italy in war. The ambition of strangers was once more to desolate her plains. Ferdinand, king of Naples, had reigned for thirty years after the discomfiture of his competitor with success and ability, but with a degree of ill faith as well as tyranny towards his subjects that rendered his government deservedly odious. His son Alfonso, whose succession seemed now near at hand, was still more marked by these vices than himself. Meanwhile, the pretensions of the house of Anjou had legally descended, after the death of old Regnier, to Regnier, duke of Lorraine, his grandson by a daughter ; whose marriage into the house of Lorraine had, however, so displeased her father, that he be- queathed his Neapolitan title, along with his real patrimony, the county of I'rovence, to a count of Maine ; by whose testa- ment they became vested in the crown of France. Louis XL, while he took possession of Provence, gave himself no trouble about Naples. But Charles VIII., inheriting liis father's am- bition witliout that cool sagacity which restrained it in general from impractible attempts, and far better circumstanced at home than Louis had ever been, was ripe for an expedition to vindicate his pretension upon Naples, or even for more exten- sive projects. It was now two centuries since the kings of France had begun to aim, by intervals, at conquests in Italy. The long English wars changed all views of the court of France to self-defence. But in the fifteenth century its plans Italy. NOTE TO CnAPTER III. 225 of aggrandizement beyond the Alps began to revive. Several times, as I have mentioned, the republic of Genoa put itself under the dominion of France. The dukes of Savoy, possess- ing most part of Piedmont, and masters of the mountain-passes, were, by birth, intermarriage, and habitual policy, completely dedicated to the French interests. Ludovico Sforza, who had usurped the guardianship of his nephew, the Duke of Milan, found, as that young man advanced to maturity, that one crime required to be completed by another. To depose and murder his ward was, however, a scheme that prudence, though not conscience, bade him hesitate to execute. He had rendered Ferdinand of Naples and Piero de' Medici, Lorenzo's heir, his decided enemies. A revolution at Milan would be the probable result of his continuing in usurpation. In these circumstances Ludovico Sforza excited the King of France to undertake the conquest of Naples (a.d. 14.3*.)). But in reliev- ing liimself from an immediate danger, Ludovico Sforza over- looked the consideration that the presumptive heir of the King of France claimed by an ancient title that principality ^of Milan which he was compassing by usurpation and murder. But neither Milan nor Naples was free from other claimants than France, nor was she reserved to enjoy unmolested tlie spoil of Italy. A louder and a louder strain of warlike dissonance will be heard from the banks of the Danube, and from the Mediterranean Gulf. The dark and wily Ferdinand, the rash and lively Maximilian, are preparing to hasten into the lists; the schemes of ambition are assuming a more comprehensive aspect; and the controversy of Neapolitan succession is to ex- ])and into the long rivalry between the houses of France and Austria. But here, while Italy is still untouched, and before as yet the first lances of France gleam along the defiles of the Alps, we close the history of the Middle Ages. NOTE TO CHAPTER IIL AUTHORITIES FOR ITALIAN HISTORY. The authorities upon which the preced ing chapter is founded are cliietly tlie following: 1. Muratori's Annals of Italy (twelve volumes in 4to, or eighteen in 8vo) comprehend a summary of its history from the beginning of the ('hristian era to the peace of AixIaCliapelle. The volumes relating to the Middle Ages, into wiiicli lie has digested the original writers contained in his great collection, " Scrip tores Rerum Italicarum," are by much '.he best; and of these, the i>art which exUnids from the seventh or eighth to the cud of the twelfth century is the fulh-st and most useful. Muratori's accuracy is in general almost implicitly to be trusted, and his plain integrity speaks in all his writings; but his mind was not iihilosophical enough to diseiiiiiinale the wheat from the chaff, and his halntsof life induced him to annex an imaginary importance to the dates of diplomas and other inconsiderable mat- 226 NOTE TO CHAPTER III. ters. His narrative presents a mere skel- eton, devoid of juices; and besides its in- tolerable aridity, it labors under tliat con- fusion which a merely chronological ar- rangement of concurrent and independent events must always produce. 2. The IJis- scrtations on Italian Antiquities, by the same writer, may be considered either as one or two works. In Latin they form six volumes in folio, enriched with a great number of original documents. In Italian tliey are freely translated by Muratori himself, abridged, no doubt, and without most of the original instruments, but well fiunislied with quotations, and abundant- ly sutliciint lor most purposes. They form three voliiiiics in quarto. .3. St. Marc, a learned and laborious Frenchman, has written a chronological abridgment of Italian history, somewhat in the manner of Henault, but so strangely divided by several parallel columns in every page, that I could hardly name a book more in- convenient to the reader. His knowledge, like Muratori's, lay a good deal in jioints of minute inquiry; and he is chiefly to be valued in ecclesiastical history. The work descends only to the thirteenth centurj;. 4. Denina'fi " Kivoluzioni d' Italia," ori- ginally published in 1701), is a perspicuous and lively book, in which the princi[)al circumstances are well selected. It is not, perhaps, free from errors in fact, and still less from those of opinion; but, till lately, I do not know from what source a general ac(|uaintance with the history of Italy could have been so easily derived. 5. The publication of M. Sismondi's " Historic des Kepubliques Italiennes" has thrown a blaze of light around the most interest- ing, at least, in many respects, of Euro- pean countries during the Middle Ages. I am happy to bear witness, so far as my own studies have enabled me, to the learn- ing and diligence of this writer, qualities which the world is sometimes apt not to suppose where they perceive so much elo- quence and philosophy. I cannot express my opinion of M. Sismondi in this respect more strongly than by saying that his work has almost superseded the Annals of Muratori; I mean from the twelfth century, before which period his labor hardly begins. Though doubtless not more accurate than Muratori, he has con- sulted a much more extensive list of authors ; and, considered as a register of facts alone, his history is incomparably more useful. These are combined in so skilful a manner as to diminish, in a great degree, that inevitable confusion which arises from frequency of transition and want of general unity. It is much to be regretted that, from too redundant details of unnecessary circumstances, and some- times, if I may take the liberty of saying so, from unnecessary reflections, M. Sis- mondi has run into a proli.\ity which will probably intimidate the languid students of our age. It is the more to be regretted, because the History of Italian Uepublics is calculated to produce a good far more important than storing the memory with historical facts — that of communicating to the reader's bosom some sparks of the dignified philosophy, the love for truth and virtue, which lives along its eloquent pages. 6. To Muratori's collection of original writers, the " Scriptores Rerum Italicarum," in twenty-four volumes in folio, I have paid considerable attention; perhajis there is no volume of it which I have not more or less consulted. Spain. HISTORY OF SPAIN. 227 CHAPTER IV. THE HISTORY OF SPAIN TO THE CONQUEST OF GRANADA. § 1. Kinjidom of thp Visigotlis. § 2. Conquest of Spain by the Moors. G r ad u.il Re- vival of the S]iaiiisli nation. § .3. Kingdoms of Leon, Aragon, Navarre, and Cas- tile, successively foniuMl. § 4.' Chartered Towns of Castile. § 5. Military Orders. § 6. Conquests of Ferdinand III. and James of Aragon. § 7." Causes of the Delay in expelling the Moors. §8. History of Castile continued. Character of the Gov- ernment. Peter the Cruel. § r a single chief. At the beginning of the eleventh century, Sancho the Great, king of Navarre and Aragon, was enabled to render his second son Ferdinand count, or, as he assumed the title, king of Castile. This effectually dismembered that province from the kingdom of Leon; but their union soon became more com})lete than ever, though with a reversed supremacy. Permudo TIL, king of Leon, fell in an engagement with the new king of Castile, who had married his sister ; and Ferdinand, in her right, or in 2 The Fueros, or written laws of.Jae.i, were perliaps more ancient than any local customary in Europe. Alfonso III. conlirnis tlicm by name of " tlic, ancient usages of .laca." They prescribe the descent of lands and movables, as well as the election of municipal magistrates. 230 MODE OF SETTLING CONQUESTS. Chap. IV. that of conquest, became master of the united monarchy. This cessation of hostilities between the Christian states enabled them to direct a more unremitting energy against their ancient enemies, who were now sensibly weakened by the various causes of decline to which I have already alluded. During the eleventh century the Spaniards were almost always supe- rior in the field : the towns which they began by pillaging, they gradually possessed ; their valor was heightened by the customs of chivalry, and inspired by the example of the Cid ; and before the end of this age Alfonso VI. recovered the ancient metropolis of the monarchy, the city of Toledo. This was the severest blow which the Moors had endured, and an unequivocal symptom of that change in their relative strength, which, from being so gradual, was the more irretrievable. Calamities scarcely inferior fell upon them in a different quar- ter. The kings of Aragon (a title belonging originally to a little district upon the river of that name) had been cooped up almost in the mountains by the small Moorish states north of the Ebro, especially that of Huesca. About the middle of the eleventh century, they began to attack their neighbors with success ; the Moors lost one town after anotlier, till, in 111(S, exposed and weakened by the reduction of all these places, the city of Saragossa, in which a line of Mohammedan ])rinces had flourished for several ages, became the prize of Alfonso I. and the capital of his kingdom. The southern parts of what is now the province of Aragon were suc- cessively reduced during the twelfth century; while all New Castile and Estremadura became annexed in the same gradual manner to the dominion of the descendants of Al- fonso VI. Although the feudal system cannot be said to have obtained in the kingdoms of Leon and Castile, their peculiar situation gave the aristocracy a great deal of the same power and inde- ])endence which resulted in France and Germany from that institution. The territory successively recovered from the Moors, like waste lands reclaimed, could have no projirietor but the conquerors, and the prospect of such acquisitions was a constant incitement to the nobility of Spain, especially to those who had settled themselves on the Castilian frontier. Ill their new conquests they Imilt towns, and invited Christian settlers, the Saracen inhabitants being commonly expelled, or voluntarily retreating to the safer provinces of the south. Thus Burgos was settled by a count of Castile about a- ble of preserving his subjects in their duty. As a legislator, Alfonso, by his code of the Siete Partidas, sacrificed the ecclesiastical rights of his crown to the usurpation of Rome ; and his philosophy sunk below the level of ordinary })ru(l(^nce when he permitted the phantom of an imperial crown in Ger- many to seduce his hopes for almost twenty years. For the sake of such an illusion he would even have withdrawn him- self from Castile, if the states had not remonstrated against an exijedition that would i)roba.bly have cost him the kingdom. In the latter years of his turbulent reign, Alfonso had to contend against his son. The right of representation was hitherto unknown in Castile, which had borrowed little from the customs of feudal nations. By the received law of suc- cession the nearer was always preferred to the m^re remote, the son to the grandson. Alfonso X. had established the different maxim of representation by his code of the Siete Fartidas, the authority of which, however, was not universally acknowledged. The question soon came to an issue ; on the death of his eldest son, Ferdinand, leaving two male children, 8ancho, their uncle, asserted his claim, founded upon the ancient Castilian right of succession ; and this chiefly, no doubt, through fear of arms, though it did not want plausible arguments, was ratified by an assembly of the cortes, and 236 CIVIL DISTUEBANCES OF CASTILE. Cuap. IV. secured, notwitlistanding the king's reluctance, by the courage of Sancho. But the descendants of Ferdinand, generally called the infants of la Cerda, by the protection of France, to whose royal family they were closely allied, and of Aragon, always prompt to interfere in the disputes of a rival people, continvied to assert their pretensions for more than half a century, and, though they were not very successful, did not fail to aggravate the troubles of their country. The annals of Sancho IV. (a.d. 1284), and his two immedi- ate successors, Ferdinand IV. (a.d. 1295) and Alfonso XI. (a.d. 1132), present a series of unhappy and dishonorable civil dissensions with too much rapidity to be remembered or even understood. Although the Castilian nobility had no pre- tence to the original independence of the French peers, or to the liberties of feudal tenure, they assumed the same })rivilege of rebelling upon any provocation from their sovereign. When such occurred, they seem to have been permitted, by legal custom, to renounce their allegiance by a solemn instrument, which exempted them from the penalties of treason. A very few families composed an oligarchy, the worst and most ruinous condition of political society, alternatel}' the favorites and ministers of the prince, or in arms against him. If unable to protect themselves in their walled towns, and by the aid of their faction, these Christian patriots retired to Aragon or Granada, and excited an hostile power against their country, and perhai)S their religion. There is indeed some apology for the conduct of the nobles in the character of their sovereigns, who had but one favorite method of avenging a dissembled injury, or antici])ating a suspected treason. But whatever vi(deuce and arbitrary s])irit might be imputed to Sancho and Alfonso was forgotten in the unexampled tyranny of Peter the Cruel (a.d. 1350). The history of his reign charges him with the murder of his wife, Blanche of Bourbon, most of his brothers and sisters, with Eleanor Gusman, their mother, many Castilian nobles, and multitudes of the commonalty; be- sides continual outrages of licentiousness, and especially a pretended nuirriage with a noble lady of the Castrian family. At length a rebellion was headed by his illegitimate brother, Henry, count of Trastamare, with the assistance of Aragon and Portugal. This, however, would probably have failed of dethroning Peter, a resolute prince, and certainly not destitute of many faithful supporters, if Henry had not invoked the more powerful succor of Bertrand du Guesclin, and the com- panies of adventure who, after the pacification between France Spain. HOUSE OF TKASTAMAKE. 237 and England, had lost the occupation of war, and retained only that of plunder. With mercenaries so disciplined it was in vain fof Peter to contend; but, abandoning Spain for a moment, he had recourse to a more powerful weapon from the same armory. Edward the Black Prince, then resident at Bordeaux, was induced by the promise of Biscay to enter Spain as the ally of C;istile ; and at the great battle of Nava- rette he continued lord of the ascendant over those who had so often already been foiled by his prowess (a.d. 1367). Du Guesclin was made })ris()ner; Henry tied to Aragon, and Peter remounted the tlirone. But a second revolution was at hand : the Black Prince, whom he had ungratefully offended, with- drew into Guienne ; and lie lost his kingdom and life in a second short contest with his brother. § 9. A more fortunate period began with the accession of Henry II. (a.d. 1308). His own reign was hardly disturbed by any rebellion ; and thougli his successors, John I. (a.d. 1379) and Henry III. (a.d. 1390), were not altogether so un- molested, especially the latter, who ascended the throne in his minority, yet the troubles of their time were slight in com- parison with those formerly excited by the houses of Lara and Haro, both of which were now happily extinct. Though Henry II.'s illegitimacy left him no title but popular choice, his queen was sole representative of the Cerdas, the offspring, as has been mentioned above, of Sanclio IV.'s elder brother, and, by the extinction of the younger branch, un(iuestioned heiress of the royal line. Some years afterwards, by the marriage of Henry III. with Catherine, daughter of John of Gaunt and of Constance, an illegitimate child of Peter the Ch-uel, her pretensions, such as they were, became merged in the crown. Ko kingdom could be worse prepared to meet the disorders of a minority than Castile, and in none did the circumstances so freciueutly recur. John II. was but fourteen months old at his accession (a.d. 1406), and but for the disinterestedness of his uncle Ferdinand, the nobility would have been inclined to avert the danger by placing that prince upon the throne. In this instance, however, Castile suffered less from faction during the infancy of her sovereign than in his maturity. The queen dowager, at iirst jointly with Ferdinand, and solely after his accession to the crown of Aragon, administered the govern- ment with credit. Fifty years had elapsed at her death, in 1418, since the elevation of the house of Trastamare, who had entitled themselves to public affection by conforming them- 238 HOUSE OF TllASTAMARE. Chap. IV. selves more strictly than their predecessors to the constitu- tional laws of Castile, wliicli were never so well established as during this period. This comparatively golden period ceases at the majority of John II. His reign was filled up by a series of conspiracies and civil wars, headed by his cousins John and Henry, the infants of Aragon, who enjoyed very ex- tensive territories in Castile, by the testament of their father Ferdinand. Their brother, the king of Aragon, frequently lent the assistance of his arms. John himself, the elder of these two princes, by marriage with the heiress of the king- dom of Navarre, stood in a double relation to Castile, as a neighboring sovereign, and as a member of the native oli- garchy. These conspiracies were all ostensibly directed against the favorite of John II., Alvaro de Luna, who retained for five-and-thirty years an absolute control over his feeble master. The adverse faction naturally ascribed to this powerful minis- ter every criminal intention and all public mischiefs. He was certainly not more scrupulous than the generality of states- men, and appears to have been rapacious in accumulating wealth. But there was an energy and courage about Alvaro de Luna which distinguishes him from the cowardly sycoi)h:ints who usually rise by the favor of weak princes ; and Castile probably would not have been happier under the administra- tion of his enemies. His fate is among the memorable lessons of history. After a life of troubles endured for the sake of this favorite, sometimes a fugitive, sometimes a prisoner, his son heading rebellions against him, John II. suddenly yielded to an intrigue of the palace, and adopted sentiments of dislike towards the man he had so long loved. No substantial charge appears to have been brought against Alvaro de Luna, except that general malversation which it was too late for the king to object to him. The real cause of John's change of affection was, most probably, the insupportable restraint which the weak are apt to find in that spell of a commanding under- standing which they dare not break — the torment of living- subject to the ascendant of an inferior, which has produced so many examples of fickleness in sovereigns. That of John II. is not the least conspicuous. Alvaro de Luna was brought to a summary trial and beheaded ; his estates were confiscated. He met his death with the intrepidity of Strafford, to whom he seems to have borne some reseniblance in character. John 11. did not long survive his minister, dying in 1454, after a reign that may be considered as inglorious compared with any except that of his successor. li the father was not Spain. NATIONAL COUNCILS. 239 respected, the son fell completely into contempt. A powerful confederacy of disaffected nobles was formed against the royal authority, and Henry IV. was deposed in an assembly of their faction at Avila with a sort of theatrical pageantry which has often been described (a.d. 14G5). The confederates set up Alfonso, the king's brother, and a civil war of some duration ensued, in which they had the support of Aragon. The Queen of Castile had at this time borne a daughter, whom the ene- mies of Henry IV., and indeed no small part of his adherents, were determined to treat as spurious. Accordingly, after the death of Alfonso, his sister Isabel was considered as heiress of the kingdom. She might have aspired, with the assistance of the confederates, to its immediate possession ; but, avoiding the odium of a contest with her brother, Isabel agreed to a treaty, by which the succession was absolutely settled upon her (a.d. 14C9). This arrangement was not long afterwards followed by the union of that princess with Ferdinand, son of the King of Aragon. This marriage was by no means accept- able to a part of the Castilian oligarchy, who had preferred a connection with Portugal. And as Henry had never lost sight of the interests of one whom he considered, or pretended to consider, as his daughteir, he took the first opportunity of revoking his forced disposition of the crown and restoring the direct line of succession in favor of the princess Joanna. Upon his death, in 1474, the right was to be decided by arms. The scale between the two parties was pretty equally balanced till, the King of Portugal having been defeated at Toro in 1476, Joanna's party discovered their inability to prosecute the war l)y themselves, and successively made their submis- sion to Ferdinand and Isabella. § 10. The Castilians always considered themselves as sub- ject to a legal and limited monarchy. For several ages the crown was elective, as in most nations of German origin, within the limits of one royal family. In general, of course, the public choice fell upon the nearest heir ; and it became a prevailing usage to elect a son during the lifetime of his father, till about the eleventh century a right of hereditary succession was clearly established. In the original Gothic monarchy of Spain, civil as well as ecclesiastical affairs were decided in national councils, the acts of many of which are still extant, and have been pub- lished in ecclesiastical collections. To these assemblies the dukes and other proviucial governors, and in general the principal individuals of the realm, were summoned along with 240 NATIONAL COUNCILS. Chap. IV. spiritual persons. This double aristocracy of Church and State continued to form the great council of advice and con- sent in the tirst ages of the new kingdoms of Leon and Cas- tile. The prelates and nobility, or rather some of the mors distinguished nobility, appear to have concurred in all general measures of legislation, as we infer from the preamble of their statutes. It would be against analogy, as well as without evidence, to suppose that any representation of the commons had been formed in the earlier period of the monarchy. In the preamble of laws passed in 1020, and at several subsequent times during that and the ensuing century, we find only the bishops and magnates recited as present. But in IISS, the tirst year of the reign of Alfonso IX., deputies from Castilian towns are expressly mentioned ; and from that era were con- stant and necessary parts of those general assemblies. Every chief town of a concejo or cor})oration ought perha])S, by the constitution of Castile, to have received its regular writ for the election of deputies to Cortes. But there does not ap- pear to have been, in the best times, any iniiform practice in this respect. We find, in short, a good deal more irregularity than during the same period in England, where the number of electing borouglis varied pretty considerably at every Parlia- ment. Yet the Cortes of Castile did not cease to be a numerous body and a fair representation of the people till the reign of John II. The first princes of the house of Trasta- mare had acted in all ])oints with the advice of their Cortes. But John II., and still more his son Henry IV., being conscious of their own unpopularity, did not venture to meet a full as- sembly of the nation. Their writs were directed only to certain towns — an abuse for wliicli the looseness of preceding usage liad given a pretence. It must be owned tliat the peo- ])le bore it in general very ])atiently. Many of the corporate towns, impoverished by civil warfare and other causes, were glad to save the cost of defraying their deputies' expenses. Tims, by the year 1480, only seventeen cities had retained privilege of representation. A vote was afterwards added for Granada, and three more in later times for Falencia, and the provinces of Estremadura and Galicia.^ It miglit have been easy, per- 3 The cities which retained their represcnt.ition in Cortes were BurRos, Toletlo (there was a constant dispule for precedence between these two), lioon, (Jranada, Cordova, Murci:i, Jaen, Zaniora, Toro, Soria, Valladolid, Sahiinanca, Segovia, Avila, Madrid, Guadalaxara, and Cneiica. The representatives of tln'se were supposed to vote not only for their iimiiediate constituents, but for other adjacent towns. 'J'hus Toro voted for I'alencia and the kingdom of Gal icia, before they obtained separate votes; Salamanca for most of Ustremadura; (Juadalaxara for Siguenza and four hundred other towns. Spain. CONSTITUTION OF CORTES. 241 haps, to redress this grievance while the exclusion was yet fresh and recent. But the privileged towns, with a mean and preposterous selfishness, although their zeal for liberty was at its height, could not endure the only means of effectually se- curing it, by a restoration of elective franchises to their fellow-citizens. The Cortes of 1506 assert, with one of those bold falsilications upon which a popular body sometimes ven- tures, that " it is established by some laws, and by immemorial usage, that eighteen cities of these kingdoms have the right of sending deputies to Cortes, and no more ; " remonstrating against the attempts made by some other towns to obtain the same privilege, which they request may not be conceded. This remonstrance is repeated in 1512. From the reign of Alfonso XI., who restrained the govern- ment of corporations to an oligarchy of magistrates, the right of electing members of Cortes was confined to the ruling body, the bailiffs or regidores, whose number seldom exceeded twenty -four, and whose succession was kept up by close elec- tion among themselves. The people therefore had no direct sliare in the choice of representatives. Experience proved, as several instances in these pages will show, that even upon this narrow basis the deputies of Castile were not deficient in zeal for their country and its liberties. But it must be confessed that a small body of electors is always liable to corrupt influ- ence and to intimidation. John II. and Henry IV. often invaded the freedom of election ; the latter even named some of the deputies. Several energetic remonstrances Were made in Cortes against this flagrant grievance. Laws were enacted and other precautions devised to secure the due return of dep- uties. In the sixteenth century the evil, of course, was aggravated. Charles and Philip cornipted the members by bribery. Even in 1573 the Cortes are bold enough to com- l)lain that creatures of government were sent thither, " who were always held for suspected by the other deputies, and cause disagreement among them." There seems to be a considerable obscurity al)out the consti- tion of the Cortes, so far as relates to the two higher estates, the spiritual and temporal nobility. It is admitted that down to the latter part (jf the thirteenth century, and especially be- fore the introduction of representatives from tlie commons, they were summoned in considera,ble numbers. I>ut from the reign of Sancho IV. they took much less share and retained much less influence in the deliberation of Cortes. In the four- teenth and fifteenth centuries they were more and more excluded. 242 RIGHT OF TAXATION. Chap. IV. It is manifest that tlie king exercised very freely a prerog- ative of calling or omitting persons of both the higher orders at his discretion. The bishops were numerous, and many of their sees not rich ; while the same objections of inconvenience applied perhaps to the ricoshondjres, but far more forcibly to the lower nobility, the hijosdalgo or caballeros. Castile never adopted the institution of deputies from this order, as in the States-General of France and some other countries, much less that liberal system of landed representation, which forms one of the most admirable peculiarities in our own constitution. It will be seen hereafter that spiritual and even temporal peers were summoned by our kings with much irregularity : and the disordered state of Castile through almost every reign was likely to prevent the establishment of any fixed usage in this and most other points. § 11. The primary and most essential characteristic of a limited monarchy is that money can only be levied upon the people through the consent of their representatives. This prin- cijile was thoroughly established in Castile ; and the statutes which enforce it, the remonstrances which })rotest against its violation, bear a lively analogy to corresponding circumstances in the history of our constitution. The lands of the nobility and clergy were, I believe, always exempted from direct taxa- tion — an immunity which perhaps rendered the attendance of the members of those estates in the Cortes less regular. The corporate districts or concejos, which, as I have observed already, differed from the communities of France and England by possessing a larga extent of territory subordinate to the principal town, were bound by their charter to a stii)ulated annual payment, the price of their franchises, called moneda forera. Beyond this sum nothing could be demanded without the consent of the Cortes. Demands of money do not seem to have been very usual before the prodigal reign of Alfonso X. That prince and his immediate successors were not miieh inclined to respect the rights of their subjects ; but they encountered a steady and insuperable resistance. An explicit law was enacted by Alfonso XL in 1328, who bound himself not to exact from his people, or cause them to pay any tax, either partial or general, not hitherto established by law, with- out the previous grant of all the deputies convened to the Cor- tes. This abolition of illegal im])ositions was several times confirmed by the same jn-ince, and his successors. The Catho- lic kings, as they are eminently called, Ferdinand and Isabella, never violated this part of the constitution. In the Recopila- Spain. RIGHT OF TAXATION". 243 cioii, or code of Castilian law luiblished by Philip II., we read a positive declaration against arbitrary imposition of taxes, which remained unaltered on the statute-book till the present age. The law was indeed frequently broken by Philip II. ; but the Cortes, who retained througliout the l()th century a degree of steadiness and courage truly admirable when we con- sider their political weakness, did not cease to remonstrate with that suspicious tyrant, and recorded their unavailing appeal to the law of Alfonso XL, " so ancient and just, and which so long time has been used and observed." The free assent of the people by their representatives to grants of money was by no means a mere matter of form. It was connected with other essential rights indispensable to its effectual exercise ; those of examining public accounts and checking the expenditure. The Cortes, in the best times at least, were careful to grant no money until they were assured that what had been already levied on their constituents had been properly employed. The contributions granted by Cortes were assessed and col- lected by respectable individuals (hombres buenos) of the seve- ral towns and villages. The rej^trtition, as the French call it, of direct taxes is a matter of the highest importance in those countries where they are imposed l)y means of a gross assess- m(mt on a district. The produce was paid to the royal council. It could not be applied to any other purpose than that to which the tax had been appropriated. Thus the Cortes of Segovia, in 1407, gi-anted a subsidy for the war against Granada, on condition " that it should not be laid out on any other service except this war ; " which they requested the queen and Ferdi- nand, both regents in John II. 's minority, to confirm by oath. Part, however, of the money remaining unexpended, Ferdinand wished to apply it to his own ol)ject of procuring the crown of Aragon ; but the queen first obtained not only a release from her oath l)y the pope, but the consent of the Cortes. The Cortes did not consider it beyond the line of their duty, notAvithstanding the respectful manner in which they always addressed the sovereign, to i-emonstrate against profuse expen- diture even in his own household. They told Alfonso X. in 1258, in the homely style of that age, that they thought it fit- ting that the king and his wife should eat at the rate of a hun- dred and fifty maravedis a day, and no more ; and that the king should order his attendants to eat more moderately than they did. Even in 1559 they spoke with an undaunted Casti- lian spirit to Philip II : " Sir, the expenses of your royal estab- 244 POWER AND FORMS OF THE CORTES. Chap. IV. lisliment and household are much increased ; and we conceive it would much redound to the good of these kingdoms that your majesty should direct them to be lowered, both as a relief to your wants, and that all the great men and other subjects of your majesty may take example therefrom to restrain the great disorder and excess they commit in that respect." § 12. The forms of a Castilian Cortes were analagous to those of an English Parliament in the fourteenth century. They were summoned by a writ almost exactly coincident in expression with that in use among us. The session was opened by a speech from the chancellor or other chief officer of the court. The deputies were invited to consider certain special business, and commonly to grant money. After the principal affairs were des})atched they conferred together, and, having examined the instructions of their respective con- stituents, drew up a schedule of i>etitions. These were duly answered one by one ; and from the petition and answer, if favorable, laws afterwards drawn up where the matter required a new law, or promises of redress were given if the petition related to an abuse or grievance. In the struggling condition of Spanish liberty under Charles T., the crown began to neglect answering the petitions of (Jortes, or to use unsatisfactory gen- eralities of expression. This gave rise to many remonstrances. The deputies insisted in 1523 on having answers before they granted money. They repeated the same contention in 1525, and obtained a general law inserted in the Recopilacion enact- ing tliat the king should answer all their petitions before he dissolved the assembly. This, however was disregarded as before ; but the Cortes whose 'intrepid honesty under Philip II. so often attracts our admiration, continued as late as 1586 to appeal to the written statute and lament its violation. § 13. According to the ancient fundamental constitution of Castile, the king did not legislate for his subjects witliout their consent. This consent was originally given only by the higher estates, who might be considered, in a large sense, as represent- ing the nation, though not chosen by it ; i)ut from the end of the twelfth century by the elected dei)uties of the commons in Cortes. The laws of the Siete l^artidas, compiled by Alfonso X., did not obtain any direct sanction till the famous Cortes of Alcala, in 1348, when they were confirmed along with several others, forming altogether the basis of the statute-law of Spain. It appears, upon the whole, to have been a consti- tutional principle, that laws could neither be made nor annulled except in Cortes. In 150() this is claimed by the deputies as Spain. LEGISLATIVE RIGHT. 245 an established right. John I. had long before admitted that what was done by Cortes and general assemblies could not be undone by letters missive, but by such Cortes and assemblies alone. For the kings of Castile had adopted the English prac- tice of dispensing with statutes by a non obstante clause in their grants. But the Cortes remonstrated more steadily against this abuse than our Parliament, who suffered it to remain in a certain degree till the Revolution. It was several times enacted upon their petition, especially by an explicit statute of Henry II., that grants and letters patent dispensing with statutes should not be obeyed. Nevertheless, John II., trusting to force or the servility of the judges, had the assur- ance to dispense explicitly with this very law. The Cortes of Valladolid, in 1442, obtained fresh promises and enactments against such an abuse. Philip I. and Charles I. began to legis- late without asking the consent of Cortes ; this grew mi;ch worse under Philip II., and reached its height under his suc- cessors, who entirely abolished all constitutional privileges. In 1555 we find a petition that laws made in Cortes should be revoked nowhere else. The reply was such as became that age : " To this we answer, that we shall do what best suits our government." But even in 1G19, and still afterwards, the patriot representatives of Castile continued to lift an unavail- ing voice against illegal ordinances, though in the form of very humble petition; perhaps the latest testimonies to the expir- ing liberties of their country. The denial of exclusive legis- lative authority to the crown must, however, be understood to admit the legality of particular ordinances designed to strengthen the king's executive government. These, no doubt, like the royal proclamations in England, extended sometimes very far, and subjected the people to a sort of arbitrary coer- cion, much beyond what our enlightened notions of freedom would consider as reconcilable to it. But in the Middle Ages such temporary commands and prohibitions were not reckoned strictly legislative, and passed, perhaps rightly, for inevitable conserpiences of a scanty code and short session of the national council. The kings were obliged to swear to the observance of laws enacted in Cortes, besides their general coronation oath to keep the laws and preserve the liberties of their people. § 14. It was customary to assemble the Cortes of Castile for many purposes besides those of granting money and con- curring in legislation. They were summoned in every reign to acknowledge and confirm the succession of the heir-apparent; 246 COUNCIL OF CASTILE. Chap. IV. and upon liis accession to swear allegiance. These acts were, however, little more than formal, and accordingly have been preserved for the sake of parade after all the real dignity of the Cortes was annihilated. In the fourteenth and fifteenth centuries they claimed and exercised very ample powers. They assumed the right, when questions of regency occurred, to limit the prerogative, as well as to designate the persons who were to use it. And the frequent minorities of Castilian kings, which were unfavorable enough to tranquillity and sub- ordination, served to confirm these parliamentary privileges. Tlie Cortes were usually consulted upon all material business. A law of Alfonso XI. in 1328, printed in the Recopilacion or code published by Philip II., declares, " Since in the arduous affairs of our kingdom the counsel of our natural subjects is necessary, especially of the deputies from our cities and towns, therefore we ordain and command that on such great occasions the Cortes shall be assembled, and counsel shall be taken of the three estates of our kingdoms, as the kings our forefathers have been used to do." § 15. The kings of Leon and Castile acted, during the in- terval of the Cortes, by the advice of a smaller council, answer- ing, as it seems, almost exactly to the king's ordinary council in England. In early ages, before the introduction of the commons, it is sometimes difficult to distinguish this body from the general council of the nation; being composed, in fact, of the same class of persons, though in smaller numbers. A similar difficulty applies to the English history. The nature of their proceedings seems best to ascertain the distinction. All executive acts, including those ordinances which may ap- pear rather of a legislative nature, all grants and charters, are declared to be with the assent of the court (curia) or of the magnates of the palace, or of the chiefs or nobles. This yirivy council was an essential part of all European monarchies ; and, though the sovereign might be considei-ed as free to call in the advice of whomsoever he pleased, yet, in fact, the princes of the blood and most powerful nobility had anciently a con- stitutional right to be members of such a council, so that it formed a very material check upon his personal authority. The council underwent several changes in progress of time wliich it is not necessary to enumerate. It was justly deemed an important member of the constitution, and the Cortes showed a laudable anxiety to procure its composition in such a manner as to form a guaranty for the due execution of laws after their own dissolution. Several times, especially in mi- Spain. ADMINISTRATION OF JUSTICE. 247 iiorities, they even named its members, or a part of tliem ; and in the reigns of Henry III. and John II. they obtained the privik^ge of adding a permanent deputation, consisting of four persons elected out of their own body, annexed as it were to the council, who were to continue at tlie court during the interval of Cortes and watch over the due observance of the laws. This deputation continued as an empty formality in the sixteenth century. In the council the king was bound •to sit personally three days in the week. Their business, which included the whole executive government, was distrib- uted with considerable accuracy into what might be despatched by the council alone, under their own seals and signatiires, and what required the royal seal. The consent of this body was necessary for almost every act of the crown ; for pensions or grants of money, ecclesiastical and political promotions, and for charters of pardon, the easy concession of which was a great encouragement to the homicides so usual in those ages, and was restrained by some of our own laws. But the council did not exercise any judicial authority, unlike in this to the ordinary council of the kings of England, It was not until the days of Ferdinand and Isabella that this, among other innovations, was introduced. § 16. Civil and criminal justice was administered, in the first instance, by the alcaldes, or municipal judges of towns ; elected within themselves, originally, by the community at large, but, in subsequent times, by the governing body. In other places a lord possessed the right of jurisdiction by grant from the crown, not, what we find in countries where the feu- dal system was more thoroughly established, as incident to his own territorial superiority. The kings, however, began in the tldrteenth century to appoint judges of their own, called corregidores, a name which seems to express concurrent juris- diction with the regidores, or ordinary magistrates. The Cortes frequently remonstrated against this encroachment. Even where the king appointed magistrates at a city's request, he was bound to select them from among the citizens. From this immediate jurisdiction an appeal lay to the adelantado or governor of the province, and from thence to the tribunal of royal alcaldes. As a court of appeal, the royal alcaldes had the supreme jurisdiction. The king could only cause their sentence to be revised, but neither alter nor revoke it. § 17. Castile bore a closer analogy to England in its form of civil polity than France or even Aragon. But the frequent disorders of its government and a barbarous state of manners 248 AFFAIRS OF AKAGON. Chap. IV. rendered violations of law much more continual and flagrant that tliey were in England under the Plantagenet dynasty.- And besides these practical mischiefs, there were two essen- tial defects in the constitution of Castile, through which, perhaps, it was ultimately subverted. It wanted those two brilliants in the coronet of British liberty, the representation of freeholders among the commons, and trial by jury. The Cortes of Castile became a congress of deputies from a few cities, public-spirited indeed and intrepid, as we find them in bad times, to an eminent degree, but too much limited in number, and too unconnected with the territorial aristocracy, to maintain a just balance against the crown Yet, with every disadvantage, that country possessed a liberal form of govern- ment, and was animated with a noble spirit for its defence. § 18. Though the kingdom of Aragon was very inferior in extent to that of Castile, yet the advantages of a better form of government and wiser sovereigns, with those of industry and commerce along a line of sea-coast, rendered it almost ecpial in importance. Castile rarely intermeddled in the civil dissensions of Aragon ; the kings of Aragon frequently carried their arms into the heart of Castile. During the sanguinary outrages of Peter the Cruel, and the stormy rev- olutions which ended in establishing the house of Trastamare, Aragon was not indeed at peace, nor altogether well gov- erned; but her political consequence rose in the eyes of Eu- rope through the long reign of the ambitious and wily Peter IV., whose sagacity and good-fortune redeemed, according to the common notions of mankind, the iniquity with which he stripped his relation, the King of Majorca, of the Balearic Islands, and the constant pertidiousness of his character. I have mentioned in another place the Sicilian war, prosecuted with so much eagerness for many years by Peter III. and his son Alfonso III.* After this object was relinquished, James II. undertook an enterprise less splendid, but not much less diflicult, the conquest of Sardinia. That island, long accus- tomed to inde})endence, cost an incredible expense of blood and treasure to the kings of Aragon during the whole four- teenth century. It was not fully subdued till the commence- ment of the next, under the reign of Martin. At the death of Martin, king of Aragon, in 1410, a memo- rable question arose as to the right of succession. Though Petronilla, daughter of Ramiro II., had reigned in her own right from llo7 to 1172, an opinion seems to have gained * See p. 213. Spain. AFFAIRS OF AIIAGON. 249 ground from the thirteenth century that fema.es could not inherit the crown of Aragon. I'eter IV. had excited a civil war by attetnjjtiug to settle the succession upon his daughter, to the exclusion of his next brother. The birth of a son about tlie same time suspended the ultimate decision of this ques- tion ; but it was tacitly understood that what is called the Salic law ought to prevail. Accordingly, on the death of John I. in 139o, his two daughters were set aside in favor of his brother Martin, though not without opposition on the part of the elder, whose husband, the Count of Foix, invaded the kingdom, and desisted from his pretension only through want of force. Martin's son, the King of Sicily, dying in his father's lifetime, the nation was anxious that the king should fix upon his successor, and would probably have acquiesced in his choice. But his dissolution occurring more rapidly than was expected, the throne remained absolutely vacant. The Count of Urgel had obtained a grant of the lieutenancy, which was the right of the heir-apparent. This nobleman possessed an extensive territory in Catalonia, bordering on the Tyrenees. He was grandson of James, next brother to Peter IV., and according to our rules of inheritance, certainly stood in the first place. The other claimants were the Duke of Gandia, grandson of James 11,^ who, though descended from a more distant ancestor, set up a claim founded on proximity to the royal stock, which in some countries was preferred to a repre- sentative title ; the Duke of Calabria, son of Violante, younger daughter of John I. (the Countess of Foix being childless) ; 6 The subjoined pedigree will show more clearly the respective titles of the com- petitors : James II., died 1327. I Alfon-SO IV., d. 1336. D. of Gandia. Peter IV., d. 1337. I James, C. of Urgel. Eleanor, Q. of Castile. John I., d. 1395 I I Henry III., K. of Castile. John II., K. of Castile. Ferdinand. I\1.\i:tin, Peter, d. HIO. C. of Urgel. I C. of Urgel Martin, K. of Sicily, 1409. Joanna, Violante, Countess Q. of Kaples. of Foix. I Louis, D. of Calabria. Frederick. C. of Luna. D. of Gandia. 250 AFFxilltS OF ARAGON. Chap. IV. Frederick, count of Luna, a natural son of the younger Martin, King of Sicily, legitimated by the pope, but with a reservation excluding him from royal succession ; and finally, Ferdinand, infant of Castile, son of the late king's sister. The Count of Urgel was favored in general by tlie Catalans, and he seemed to have a powerful support in Antonio de Luna, a baron of Aragon, so rich that he might go through his own estate from France to Castile. But this apparent superiority frustrated his hopes. The justiciaiy and other leading Aragonese were determined not to suifer this great constitutional question to be decided by an ap[)eal to force, which might sweep away their liberties in the struggle. Urgel, confident of his right, and surrounded by men of ruined fortunes, was unwilling to submit his pretensions to a civil tribunal. His adherent, Antonia de Luna, committed an extraordinary outrage, the assassination of the Archbishop of Saragossa, which alienated the minds of good citizens from his cause. On the other hand, neither the Duke of Gandia, who was very old, nor the Count of Luna seemed lit to succeed. The party of Ferdinand, there- fore, gained ground by degrees. It was determined, however, to render a legal sentence. The Cortes of each nation agreed upon the nomination of nine persons, three Aragonese, three Catalans, and three Valencians, who were to discuss the pre- tensions of the several competitors, and by a plurality of six votes to adjudge the crown. Nothing could be more solemn, more peaceful, nor, in appearance, more equitable than the proceedings of this tribunal. They summoned the claimants l)efore them, and heard them by counsel. A month was passed in hearing arguments ; a second was allotted to con- sidering them ; and at the expiration of tlie prescribed time it was announced to the people, by the mouth of St. Vincent Ferrier, that Ferdinand of Castile had ascended the throne (A. D. 1412). In this decision it is impossible not to suspect that the judges were swayed rather by politic considerations than a strict sense of hereditary right. It was, therefore, by no means universally popular, especially in Catalonia, of which ])rincipality the Count of Urgel was a native; and perhaps the great rebellion of the Catalans fifty years afterwards may be traced to the disaffection which this breach, as they thought, of tlie lawful succession had excited. Ferdinand, however, was well received in Aragon. Ferdinand's successor was his son, Alfonso V. (a.d. 1416), more distinguished in the history of Italy than of Spain. F'or all the latter years of his life he Si'AiN. CONSTITUTION OF AKACON. 251 never quitted the kingdom that lie had acquired by his arms ; and, enchanted by the delicious air of Naples, intrusted the government of his iiatrimonial territories to the care of a brother and an heir, John II., upon whom they devolved by the death of Alfonso without legitimate ])rogeny. § 19. It is consonant with the })rinciple of this work to pass over the common details of history, in order to fix the reader's attention more fully on subjects of philosophical incjuiry. I'erhaps in no European monarchy exce})t our own was tlu; form of government more interesting than in Aragon, as a, fortunate temperament of law and justice with the royal authority. So far as anything can be pronounced of its earlier period before the capture of Saragossa in 1118, it w%as a kiud of regal aristocracy, where a small number of powerful l)arons elected their sovereign on every vacancy, though, as usual in other countries, out of one family ; and considered him as little more than the chief of their confederacy. These were the ricoshombres, or barons, the first order of tlie state. Among these the kings of Aragon, in subsequent times, as they extended their dominions, shared the conquered territory in grants of honors on a feudal tenure. For this system was fully established in the kingdom of Aragon. A ricohombre was obliged to hold of the king an lionor or barony capable of supporting more than three knights ; and this he was bound to distribute among his vassals in military fiefs. Once in the year he might be summoned with his feudatories to serve the sovereign for two or three months ; and he was to attend the royal court, or general assembly, as a counsellor, whenever •called upon, assisting in its judicial as well as deliberative business. In the towns and villages of his barony he might appoint bailiffs to administer justice and receive penalties ; but the higher criminal jurisdiction seems to have been re- served to the crown. Below these superior nobles were' the mesnadaries, corre- sponding to our mere tenants in chief, holding estates not baronial immediately from the crown ; and the military vas- sals of the high nobility, the knights and mfanzones : a word which may be rendered by gentlemen. These had consider- able privileges in that aristocratic government; they were exempted from all taxes, they could only be tried by the royal judges for any crime ; and offences committed against them were punished with additional severity. The ignoble classes were, as in other countries, the burgesses of towns, and the villeins or peasantry. The peasantry seen; to 252 PRIVILEGES OF A II AGON. Chap. IV. have been subject to territorial servitude, as in France and England. § 20. Though from the twelfth century the principle of hereditary succession to the throne su])erseded, in Aragon as well as Castile, the original right of choosing a sovereign with- in the royal family, it was still founded upon one more sacred and fundamental, that of compact. No king of Aragon was entitled to assume that name until he had taken a coronation oath, administered by the justiciary at Saragossa, to observe the laws and liberties of the realm. Blancas quotes a noble passage from the acts of Cortes in 1451. " We have always heard of old time, and it is found by experience, that, seeing the great barrenness of this land, and the poverty of the realm, if it were not for the liberties there- of, the folk would go hence to live and abide in other realms and lands more fruitful." This high spirit of freedom had long animated the Aragonese. After several contests with the crown, they compelled Peter III., in 1283, to grant a law, called the General Privilege, the Magna Charta of Aragon, and perhaps a more full and satisfactory basis of civil liberty than our own. It contains a series of provisions against arbi- trary tallages, spoliations of property, secret process after the manner of the Inquisition in criminal charges, sentences of the justiciary without assent of the Cortes, appointment of for- eigners or Jews to judicial offices ; trials of accused persons in places beyond the kingdom, the use of torture, except in charges of falsifying the coin, and the bribery of jvulges. These are claimed as the ancient liberties of their country. " Absolute })ower, it is declared, never was the constitution of Aragon, nor of Valencia, nor yet of IlibagorQa, nor shall there be in time to come any innovation made ; but only the law, custom, and privilege which had been anciently used in the aforesaid kingdoms." The concessions extorted by our ancestors from John, Henry III., and Edward I. were secured by the only guaranty those times could afford, the determination of the barons to enforce them by armed confederacies, and, except in the fa- mous commission of twenty-five conservators of Magna Charta, in the last year of John, were certainly uuAvarranted by law. But the Aragonese established a positive right of maintaining their liberties by arms. This was contained in the Privilege or Union granted by Alfonso III. in 1287, after a violent con- flict with his siibjects ; but which was afterwards so com- pletely abolished, and even eradicated from the records of the Spain. OFFICE OF JUSTICIAllY. 253 kingdom, that its yjrecise words have never been recovered. It appears to have consisted of two articles ; tixst, that, in the case of the king's proceeding forcibly against any member of the union without ])revious sentence of the justiciary, the rest should be absolved from their allegiance ; secondly, that he should hold Cortes every year in Saragossa. During the two subsequent reigns of James II. and Alfonso IV., little pretence seems to have been given for the exercise of this right. But dissensions breaking out under Peter V. in 1347, rather on ac- count of his attempt to settle the crown upon his daughter than of any specific public grievances, the nobles had recourse to the Union. They assembled at Saragossa, and used a re- markable seal for all their })ublic instruments — an engraving from which may be seen in the historian Blancas. It r(_'})rt'sents the king sitting on his throne, with the confederates kneeling in a suppliant attitude around, to denote their unwillingness to offend. But in the background tents and lines of s})ears are discovered, as a hint of their ability and resolution to defend themselves. The legend is " Sigillum Unionis Aragonum." This respectful demeanor towards a sovereign against whom tliey were waging war reminds us of the language held out by our Long Parliament before the Presbyterian party was over- thrown. These confederates were defeated by the king at Epila in 1348. But his prudence and the remaining strength of his opponents inducing him to pursue a moderate course, there ensued more legitimate and permanent balance of the constitution from this victory of the Royalists. The privilege of Union was abrogated, Peter himself cutting to pieces with his sword the original instrument. But in return many excel- lent laws for the security of the subject were enacted ; and their preservation was intrusted to the greatest officer of the kingdom, the justiciary, whose authority and pre-eminence may in a great degree be dated from this period. That watchful- ness over public liberty, which originally belonged to the aris- tocracy of ricoshombres, always apt to thwart the crown or to oppress the people, and which was afterwards maintained by the dangerous Privilege of Union, became the duty of a ci\'il magistrate accustomed to legal rules and responsible for his actions, whose office and functions are the most pleasing fea- ture in the constitutional history of Aragon. § 21. The functions of the Justiza or Justiciary of Aragon did not differ, in any essential respect, from those of the Chief-justice of England, divided, from the time of Edward I., among the judges of the King's Bench. But in the practical 254 PROCESSES OF Chap. IV. exercise, indeed, of this power, there was an abundant differ- ence. Our English judges, more timid and pliant, left to the remonstrances of Parliament that redress of grievances which very frequently lay within the sphere of their jurisdiction. There is, I believe, no recorded instance of a habeas corpus granted in any case of illegal imprisonment by the crown or its officers during the continuance of the Plantagenet dynasty. We shall speedily take notice of a very different conduct in Aragon. The office of justiciary, whatever conjectural antiquity some have assigned to it, is not to be traced beyond the capture of Saragossa in 1118, when the series of magistrates commences. But for a great length of time they do not appear to have been particularly important; the judicial authority residing in the conncil of ricoshombres, whose suffrages the justiciary collected, in order to pronounce their sentence rather than his own. Gradually, as notions of liberty became more detinite, and laws more numerous, the reverence paid to their permanent inter- preter grew stronger, and there was fortunately a succession of prudent and just men in that high office, tlirough whom it ac- quired dignity and stable influence. Still, it was not perhaps looked upon as fully equal to maintain public liberty against the crown, till in the Cortes of 1^348, after the Privilege of Union was forever abolished, such laws were enacted, and such authority given to the justiciary, as proved eventually a more adequate barrier against oppression than any other country could boast. All the royal as well as territorial judges were bound to apply for his opinion in case of legal difficulties aris- ing in their courts, which he was to certify within eight days. By subsequent statutes of the same reign, it was made jjenal for any one to obtain letters from the king impeding the exe- cution of the justiza's process, and they were declared null. Inferior courts were forbidden to proceed in any business after his prohibition. Many other laws might be cited corroborating the authority of this great magistrate ; but there are two parts of his remedial jurisdiction which deserve special notice. These are the processes of Jurisfirma, or flrma del derecho, and of Mdnifestntion. The former bears some analogy to the writs of po7ie and certiorari in England, through which the Court of King's Bench exercises its right of withdrawing a suit from the jurisdiction of info'ior tribunals. But the Ara- gonese jiirisfi/nna was of more extensive operation. Its object was not only to bring a cause commenced in an inferior court before the justiciary, but to prevent or inhibit any process Spain. JURISFIRMA AND MANIFESTATIOK. 255 from issuing against the person who applied for its benefits, or any molestation from being offered to him ; so that, as Blancas expresses it, when we have entered into a recognizance before the justiciary of Aragon to abide the decision of law, our for- tunes shall be protected, by the interposition of his prohibition, from the intolerable inupiity of the royal judges. The pro- cess termed vianlfestation afforded as ample security for per- sonal liberty as that of jurislirma did for property. " To manifest any one is to wrest him from the hands of the royal officers, that he may not suffer any illegal violence ; not that he is at liberty by this process, because the merits of his case are still to be inquired into; but because he is now detained publicly, instead of being, as it were, concealed, and the charge against him is investigated, not suddenly or with passion, but in calmness and according to law, therefore this is called man- ifestation." The power of this writ (if I may apply our term) was such, that it would rescue a man Avhose neck was in the halter. A particular prison was allotted to those detained for trial under this process. Several proofs that such admirable provisions did not remain a dead letter in the law of Aragon appear in the two historians, Blancas and Zurita, whose noble attachment to liberties, of which they had either witnessed or might foretell the extinc- tion, continually displays itself. I cannot help illustrating this subject by two remarkable instances. The heir-a})parent of the kingdom of Aragon had a constitutional right to the lieu- tenancy or regency during the sovereign's absence from the realm. The title and ofHce, indeed, were permanent, though tlie functions must of course have been sujierseded during the personal exercise of royal authority. But as neither Catalonia nor Valencia, which often demanded the king's presence, were considered as parts of tlie kingdom, tliere were pretty frequent occasions for tins anticiiiated reign of the eldest ])rince. Sucli a regulation was not likely to diminish the mutual and almost inevitable jealousies between kings and their heirs-a})parent, which have so often disturbed the tranquillity of a court and a nation. Peter TV. removed his eldest son, afterwards John I.. from the lieutenancy of the kingdom. The prince entered into a firma del derecho before the justiciary, Dominic de Cerda, who, pronouncing in his favor, enjoined the king to replace liis son in the lieutenancy as the undoubted right of the eldest born. Peter obeyed, not only in fact, to which, as Blancas observes, the law compelled him, but with apparent cheerfulness. There are, indeed, no private persons who have so strong au -5(> JURISFIRMA AND MANIFESTATION. Chap. IV. interest in maintaining a i'vee constitution and the eivil liber- ties of their countrymen as the members of royal families, since none are so much exposed, in absolute governments, to the resentment and suspicion of a reigning monarch. John I., who had experienced the protection of law in his weakness, had afterwards occasion to find it interposotl against his power. This king had sent some citizens of iSaragossa to prison without form of law. They applied to Juan de Cerda, tlie justiciary, for a manifestation. He issued his writ accord- ingly ; nor, says Blancas, could he do otherwise without being subject to a heavy fine. The king, pretending that the justici- ary was partial, named one of his own judges, the vice-chan- cellor, as coadjutor. This raised a constitutional question, whether, on suspicion of partiality, a coadjutor to the justici- ary could be appointed. The king sent a private order to the justiciary not to proceed to sentence upon this interlocutory point until he should receive instructions in the council, to which he was directed to repair. But he instantly pronounced sentence in favor of his exclusive jurisdiction without a coad- jutor. He then repaired to the palace. Here the vice-chan- cellor, in a long harangue, enjoined him to suspend sentence till he had heard the decision of the council. Juan de Cerda answered that, the case being clear, he had already pronounced upon it. This produced some expressions of anger from the king, who began to enter into an argument on the merits of the question. But the justiciary answered that, with all def- erence to his majesty, he was bound to defend his conduct before^ the Cortes, and not elsewhere. On a subsequent day the king, having drawn the justiciary to his country palace on pretence of hunting, renewed the conversation with the assist- ance of his ally, the vice-chancellor ; but no impression was made on the venerable magistrate, whom John at length, though much pressed by his advisers to violent courses, dis- missed with civility. Tlie king was ]n'obably misled through- out this transaction, which I have thought fit to draw from obscurity, not only in order to illustrate tlie privilege of mani- festation, but as exhibiting an instance of judicial firmness and integrity, to which, in the fourteenth century, no country perhaps in Europe couhi otTer a parallel. Before the Cortes of 1348 it seems as if the justiciary might have been displaced at the king's pleasure. From that time he held his station for life. But lest these high lowers, imparted for the prevention of abuses, should themselves be abused, the justiciary was responsible, in case of an unjust Spaix. KTGirj-.S OF f^KfUSLA'JIOX, KTO. 257 sf^ntfiice, to the extent of tlifi injiiry iiifiictfid ; and was also subjected, by a statute of V-V.iO, to a coui-t of inquiry, composed of four pejsons cliosen by the king out of eiglit named by the Cortes ; whose office appears to liave been that of examining and Hiporting to the four estates in Coi-tes, V>y whom he was ultimatr;ly to Vx; a<^;quitted or condemned. This superintend- ence of the Coi-tes, however, fxjing tliought dilatory and incon- venient, a court of seventeen persons was appointed in 14G1 to hear complaints against the judiciary. Some alt^^rations were afterwards made in this tribunal/' The justiciary was always a knight, chosen from the second order of nobility, tlie barons not Ijcing liable to personal punishment. lie administered the coronation oath to the king ; and in the Coi-tf:!S of Aiagon the justiciary acted as a sort of royal commissioner, opening or proroguing the assembly by the king's direction. § 22. No laws could be ena/^;ted or rejjealed, nor any tax imposed, without the consent of the estates duly assembled. It may easily be supposed that the Aragonese were not behind other nations in statutf^s to secure these privileges, which upon the whole appf;ar to have been more respected than in any other monarchy. The General l^rivilege of ]2S.':> formed a sort of groundwoik for this legislation, like the Great Chai-tfa* in England. Vtj a clause in this law, Cortes were tfj be held every year at Haragossa. I'ut under James II. their time of meeting Avas reduced Uj onwi in two years, and the place was left to the king's discretion. Xor Avere the CoilXiS of Aragon less vigilant tlian those of Castile in claiming a right to be consulted in all important deliV^erations of the executive jKnver, or in remonstrating against abuses of government, or in super- intending the proper expenditure of public money. Four estates, or, as they Avere calh-d, arms (hrazos), formed the Cortes of Aragon — the prelates and commanders of mili- taiy orders, Avho passed for ecclesiastics ; and barons, or ricosf- homJ/res ; the equestrian order, or rnfanzonesi, and the deputies of royal towns. The two former had a right of ajjpearing by proxy. There Avas no representation of tlie infanzones, or loAver nobility. But it miLst be remembered that they were not numerous, nor Avas the kingdom large. Thirty-five are reckoned by Zurita as present in the Cortes of l.'Wo, and " Thfr=e rf-;rijIation3 wef v«;rv acc'-ptabU: to thrr nation. In fact, the justiza of Aragon ha/l poHaesMf-rl much more unlirnife'l powf^rs than oujrlit to \)t- intrus-t'-rl to any .-iii{rk; tfiajfi-trat'-. Thf; Court of Kin <;'» IJencli in VA\\i\;\\v\,\»A<\<-* it* conifiat- in{» of livf <:'>-<)rilinatt; jiidjjf;*, is cliecked bv tlift appellant juri?«liction-f of the Kx- chequer Chamber anr] Hoaac of I^^r(l•^, any the marriage of Ferdinand with Isabella, and by the death of John II. in 1479. the two ancient and rival king- doms of Castile and Aragon were forever consolidated in the Spain. UNION OP^ CASTILE AND ARAGON. 259 monarchy of Spain. There had been some diiticulty m ad- justing the respective rights of the liusband and wife over Castile. In the Middle Ages it was customary for the more powerful sex to exercise all the rights which it derived from the weaker, as much in sovereignties as in private possessions. But the Castilians were determined to maintain the positive and distinct prerogatives of their queen, to which they at- tached the independence of their nation. A compromise, therefore, was concluded, by which, though, according to our notions, Ferdinand obtained more than a due share, he might consider himself as more strictly limited than his father had been in Navarre. The names of both were to appear jointly in their style and upon the com, the king's taking the prece- dence in respect of his sex. But in the royal scutcheon the arms of Castile were preferred on account of the kingdom's dignity. Isabella had the appointment to all civil offices in Castile ; the nomination to spiritual benefices ran in the name of both. The government was to be conducted by the two conjointly when they were together, or by either singly in the province where one or other might happen to reside. This partition was well preserved throughout the life of Isabel without mutual encroachments or jealousies. So rare an unanimity between persons thus circumstanced must be at- tributed to the superior qualities of that princess, who, while she maintained a constant good understanding with a very ambitious husband, never relaxed in the exercise of" her pa- ternal authority over the kingdoms of her ancestors. § 25. Ferdinand and Isabella had no sooner quenched the flames of civil discord in Castile than they determined to give an unequivocal proof to Europe of the vigor whieli tlie Spanish monarchy was to display under their government. For many years an armistice with the Moors of Granada had been uninterrupted. Neither John II. nor Henry IV. had been at leisure to think of aggressive hostilities ; and the Moors themselves — a i)rey, like their Christian enemies, to civil war and the feuds of their royal family — were content with the unmolested enjoyment of the finest province in the peninsula. If we may trust historians, the sovereigns of Granada were generally usurpers and tyrants. But I know not how to account for that vast populousness, that grandeur and magnificence, which distinguished the Mohammedan king- dom of Spain, without ascribing some measure of wisdom and beneficence to their governments. These southern provinces have dwindled in later times ; and in fact Spain itself is 260 CONQUEST OF GEANADA. Chap. IV. chiefly interesting to many travellers for the monuments which a foreign and odious race of conquerors have left be- hind them, Granada was, however, disturbed by a series of revolutions about the time of Ferdinand's accession, which naturally encouraged his designs. The Moors, contrary to what might have been expected from their relative strength, were the aggressors by attacking a town in Andalusia. Pred- atory inroads of this nature had hitherto been only retaliated by the Christians. But Ferdinand was conscious that his resources extended to the conquest of Granada, the consumma- tion of a struggle protracted through nearly eight centuries. Even in the last stage of the Moorish dominion, exposed on every side to invasion, enfeebled by a civil dissension that led one party to abet the common enemy, Granada was not sub- dued without ten years of sanguinary and unremitting contest. Fertile beyond all the rest of Spain, that kingdom contained seventy walled towns ; and the capital is said, almost two cen- turies before, to have been peopled by 200,()(>() inhabitants. Its resistance to such a force as that of Ferdinand is perhaps the best justification of the apparent negligence of earlier monarchs. But Granada was ultimately to undergo the yoke. The city surrendered on the 2d of January, 1492 — an event glorious not only to Spain but to Cliristendom — and wliioh in the political combat of the two religions, seemed almost to counterbalance the loss of Constantino})le. It raised the name of Ferdinand and of the new monarchy which he governed to high estimation throughout Europe. Spain a[)peared an equal com]>etitor with France in the lists of ambition. These great kingdoms liad for some time felt the jealousy natural to em- ulous neiglibors. The house of Aragon loudly complained of the troachorous ])olicy of Louis XI. He had fomented the troubles of Castile, and given, not indeed an cfi'ectual aid, but all ])romises of support, to the i)rincess Joanna, the competitor of Isabel. Rousillon, a province belonging to Aragon, had been pledged to France by Jolin II. for a sum of money. It would be tedious to relate "the subsequent events, or to discuss tlieir respective claims to its possession. At the accession of Ferdinand, Louis XL still held Rousillon, and showed little intention to resign it. l>ut Charles VII I., eager to smooth every impediment to his Italian expedition, restored the province to Ferdinand in 1493. Whether, by such a sacrifice, he was able to lull the King of Aragon into acquiescence, while he detlironed his relation at Naples, and alarmed for a moment all Italy with the apprehension of French dominion, it is not witliin the limits of the present work to inquire. Gebmant. SEPARATIOK FROM FRANCE. 261 CHAPTER V. HISTORY OF GEKMANY TO THE DIET OF WORMS IN 1495. § 1. Sketch of German Historj'. §2. The Emperors of the House of Snxony. §3. House of Franconia. § 4. Lotliaire II., the Saxon. § 5. House of Siiabia. Fred- erick Barbarossa. Fall of Henry the Lion. Frederick II. Extinction of House ofSuabia. §6. Clianges in the Germanic (Jonstitiition. Electors. Territorial Sovereignty of the Princes. § 7. Rodolph of llapshurg. § 8. State of tlie Empire after liis Time. Causes of Decline of Imperial Tower. § '.). House of Luxem- burg. Charles IV. § 19. House of Austria. Frederick III. § 11. Imperial Cities. § VZ. Provincial States. § 13. Imperial Domain. § 14. Jlaximilian. Diet of Worms. Abolition of private Wars. § l.i. Imperial Chamber, § 10. Aulic Coun- cil. § 17. Limits of the Empire. § 18. Bohemia. § 10. Hungary. § 20. Switzer- land. LIST OF EMPERORS DURING THE MIDDLE AGES. Philip, Otho IV. (rivals). Otho IV. Frederick XL Conrad IV., William (rivals). Interregiiuin. Richard (Earl of Cornwall). Alfonso (King of Castile) rivals). Rodolph I. (of Ilapsburg). Adolphns (of Nassau). Albert I. Henry VII. (of Luxemburg). Louis IV. (of Bavaria). (Frederick of Austria, rival). Charles IV. ((Jiinther of Schwartzburg, rivals). Wenceslaus. Rupert. Sigismund. (Jobst of Moravia, rival). Albert II. Frederick III. Maximilian I. Charles V. § 1. After the deposition of Charles the "Fat, wliich finally severed the connection between France and Germany, Arnulf^ Tear of Accesaioc Tear of Accession A. D. A. b. 800 Charles I. (the Great). 1198 Charlemagne. 1208 814 Louis I. (the Pious). 1212 840 Lothaire I. 1250 855 Louis II. 12.54 875 ChaBles II. (the Bald). 1257 881 Charles III. (the Fat). S9C) Arnulf. 899 Louis (the Child). 1272 901 Louis 111. (of Provence). 1292 911 (?) Conrad I. 1298 915 Berengar. 1308 918 Henry I. (the Fowler). 1314 93(5 Otho I. (the Great). 973 Otho II. 1347 983 Otho III. 1002 Henry II. (the Saint). 1024 Conrad II. (the Salic). 1378 1039 Henry III. 1400 1056 Henry IV. 1410 1106 Henry V. 1125 Lothaire II. (the Saxon). 1438 1138 Conrad III. 1440 1152 Frederick I. (Barbarossa). 1493 1190 Henry VI. 1519 262 HOUSE OF SAXONY. Chap. T. ' an illegitimate descendant of Charlemagne, obtained the throne of the latter country, in which he was succeeded by his son Louis. But upon the death of this prince in 911, the German branch of that dynasty became extinct. There remained, in- deed, Charles the Simple, acknowledged as king in some parts of France, but rejected in others, and possessing no personal claims to respect. The Germans, therefore, wisely determined to choose a sovereign from among themselves. They were at this time divided into five nations, each under its own duke, and distinguished by difference of laws, as well as origin ; (1) the Franks, whose territory, comprising Franconia and the modern Palatinate, w^as considered as the cradle of the empire, and who seemed to have arrogated some superiority over the rest, (2) tlie Suablans, (3) the Bavarians, (4) the Saxons, under which name the inhabitants of Lower Saxony alone and West- phalia were included, and (5) the Lorrainers, who occupied the left bank of the Rhine as far as its termination. The choice of these nations in their general assembly fell upon Conrad, duke of Franconia, according to some writers, or at least a man of high rank, and descended through females from Charlemagne (a. d. 911). § 2, House of Saxony. — Conrad dying without male issue, the crown of Germany was bestowed upon Henry the Fowler, duke of Saxony, ancestor of the three Othos, who followed him in direct succession. To Henry, and to the first Otho, Germany was more indebted than to any sovereign since Charlemagne. The conquest of Italy, and recovery of the imperial title, are indeed the most brilliant trophies of Otho the Great ; but he conferred far more unequivocal benefits upon his OAvn country by completing what his father had be- gun, her liberation fi'om the inroads of the Hungarians. Two inarches, that of Misnia, erected by Henry the Fowler, and that of Austria, by Otho, were added to the Germanic terri- tories by their victories. A lineal succession of four descents without the least op- position seems to show that the Germans were disposed to consider their monarchy as fixed in the Saxon family. Otho II. and III. had been chosen each in his father's lifetime, and during legal infancy. The formality of election subsisted at that time in every European kingdom, and the imperfect rights of birth required a ratification by public assent. If at least France and England were hereditary monarchies in the tenth century, the same may surely be said of Germany ; since we find the lineal succession fully as well observed in the last as Germany. HOUSE OF FltANCONIA. 263 in the former. But upon the early and unexpected decease of Otho III., a momentary op})osition was offered to Henry, duke of Bavaria, a collateral branch of the reigning family (a. d. 1002). He obtained the crown, however, by what contempo- rary historians call an hereditary title, and it was not until his death, in 1024, that the house of Saxony was deemed to be extinguished. § 3. House of Franconia. — No person had now any pre- tensions that could interfere with the unbiased suffrages of the nation ; and accordingly a general assembly was deter- mined by merit to elect Conrad, surnamed the Salic, a noble- man of Franconia (a. d. 1024). From this prince sprang three successive emperors, Henry III., IV., and V. Perhaps the imperial prerogatives over that insubordinate confederacy never reached so high a point as in the reign of Henry III., the second emperor of the house of Franconia. It had been, as was natural, the object of all his predecessors, not only to render their throne hereditary, which, in effect, the nation was willing to concede, but to surround it with authority sufficient to control the leading vassals. These were the dukes of the four nations of Germany, Saxony, Bavaria, Suabia, and Franconia, and the three archbishops of the Rhenish cities, Mentz, Treves, and Cologne, Originally, as has been more fully shown in another place, duchies, like counties, were temporary governments bestowed at the pleas- ure of the crown. From this lirst stage they advanced to hereditary offices, and finally to patrimonial fiefs. But their progress was much slower in Germany than in France. Under the Saxon line of emperors, it appears probable that, although it was usual, and consonant to the prevailing notions of equity, to confer a duchy upon the nearest heir, yet no positive rule enforced this upon the emperor, and some instances of a con- trary proceeding occurred. Henry III. put an end altogether to the form of popular concurrence, which had been usual when the investiture of a duchy was conferred ; and even de- posed dukes by the senten-ce of a few princes, without the con- sent of the Diet. If we combine with these proofs of authority in the domestic administration of Henry III. his almost un- limited control over papal elections, or rather the right of nomination that he acquired, we must consider him as the most absolute monarch in the annals of Germany. These ambitious measures of Henry III. prepared fifty years of calamity for his son. It is easy to perceive that the misfortunes of Henry IV. were primarily occasioned by the 2G4 HOUSE OF FlvANCONIA. Chap. V. jealousy with which repeated viuhitiuns of their constitutional usages had inspired the nobility. The mere circumstance of Henry IV.'s minority, under the guardianship of a woman, was enough to dissipate whatever power his father had ac- quired. Through the neglect of his education, Henry grew up with a character not well fitted to retrieve the mischief of so unprotected a minority; brave indeed, well-natured, and affable, but dissolute beyond measure, and addicted to low and debauched company. He was soon involved in a desper- ate war with the Saxons, a nation valuing itself on its populousness and riches, jealous of the house of Franconia, who wore a crown that had belonged to their own dukes, and indignant at Henry's conduct in erecting fortresses through- out their country. In the middle of tliis contest another far more memorable broke out with the lioman See, concerning ecclesiastical in- vestitures (a.d. 1077). The motives of this famous quarrel will be ex})lained in a different chapter of the present work. Its effect in Germany was ruinous to Henry. A sentence, not only of excommunication, but of deposition, which Greg- ory VII. pronounced against him, gave a i)retence to all Ifis enemies, secret as well as avowed, to withdraw their allegiance. At the head of these was Eodolph, duke of Suabia, whom an assembly of revolted princes raised to the thi'one. We may perceive, in the conditions of liodolph's election, a symptom of the real principle that animated the German aristocracy against Henry IV. It was agreed that the kingdom should no longer be hereditary, not conferred on the son of a reigning monarch, unless his merit should challenge the popular appro- bation. The pope strongly encouraged this plan of rendering the empire elective, by which he hoped either eventually to secure the nomination of its chief for the Holy See, or at least, by sowing the seed of civil dissensions in Germany, to ren- der Italy more independent. Henry IV., however, displayed greater abilities in his adversity than his early conduct had promised. In the last of several decisive battles, Eodolph, though victorious, was mortally wounded ; and nobody cared to take up a gauntlet which was to be won with so much trouble and uncertainty (a.d. 1080.) The Germans were sufficiently disposed to submit ; but Rome persevered in her unrelenting hatred. At the close of Henry's long reign she excited against him his eldest son, and, after more than thirty years of hos- tility, had the satisfaction of wearing him down with misfor- tune, and casting out his body, as excommunicated, from its sepulchre. Gekmany. house of SUABIA. 265 § 4. In the reign of his sun Henry V. there is no event worthy of much attention, except the termination of the great contest about investitures. At his death, in 11U5, the male line of the Franconian emperors was at an end. Frederick, duke of Suabia, grandson by his mother of Henry IV., had inherited their patrimonial estates, and seemed to represent their dynasty. But both the last emperors had so many ene- mies, and a disposition to render the crown elective jjrevailed so strongly among the leading princes, that Lothaire, duke of Saxony, was elevated to the throne. Lothaire, who had been engaged in a revolt against Henry V., and the chief of a nation that bore an inveterate hatred to the house of Franconia, was the natural enemy of the new family tliat derived its impor- tance and pretensions from that stock. It was the object of his reign, accordingly, to oppress the two brothers, Frederick and Conrad, of the Hohenstaufen or Suabian family. By this means he expected to secure tlie succession of the empire for his son-in-law, Henry, surnamed the Proud, who was de- scended from a distinguished family, the AVelfs of Altorf, in Suabia. From this family he inlierited the duchy of Bavaria. The wife of Lothaire transmitted to her daughter the patri- mony of Henry the Fowler, consisting of Hanover and Bruns- wick. Besides this great dowry, Lothaire bestowed upon his son-in-law the duchy of Saxony in addition to that of Bavaria. §. 5. House of Suabia, ok Hohenstaufen.^ — This amaz- ing preponderance, however, tended to alienate the princes of Germany from Lothaii-e's views in favor of Henry. On the death of Lothaire, in 1138, the partisans of the house of Suabia made a hasty and irregular election of Conrad, in which the Saxon faction found itself obliged to acquiesce. The new emperor availed himself of the jealousy which Henry the Proud's aggrandizement had excited. Under pretence that two duchies could not legally be held by the same person, Henry was summoned to resign one of them ; and on his re- fusal, the Diet pronounced that he had incurred a forfeiture of both. Henry made but little resistance, and before liis death, which happened soon afterwards, saw himself stri])ped of all his hereditary as well as acquired possessions. Upon this occasion the famous names of Guelf and Ghibelin were first heard, Avhich were destined to keep alive the flame of civil dissension in far distant countries, and after their mean- ing had been forgotten. The Guelfs, or Welfs, were, as I • Hohenstaufen is a castle in what is now the kingdom of Wurtemberg, about four miles from the Goppingeu station of the railway from Stuttgart to Ulm. 266 HOUSE OF ttUABIA. Cuap. V. have said, the ancestors of Henry, and the name has become a sort of patronymic in his family. The word Ghibelin is derived from AVibelung, a town in Franconia, whence the emperors of that line are said to have sprung. The house of Suabia was considered in Gerjuany as representing that of Franconia ; as the Guelfs may, without much impropriety, be deemed to represent the Saxon line.. Though Conrad III. left a son, the choice of the electors fell, at his own request, upon his nephew, Frederick Barba- rossa. The most conspicuous events of this great emperor's life belong to the history of Italy. At home he was feared and respected ; the imperial prerogatives stood as high dur- ing his reign as, after their previous decline, it was possible for a single man to carry them. But the only circumstance which appears memorable enough for the present sketch is the second fall of the Guelfs. Henry the Lion, son of Henry the Proud, had been restored by Conrad III. to his father's duchy of Saxony, resigning his claim to that of Bavaria, which had been conferred on the margrave of Austria. This renunciation, which indeed was only made in his name dur- ing childhood, did not prevent him from urging the Emperor Frederick to restore the whole of his birthright ; and Fred- erick, his first cousin, whose life he had saved in a sedition at Rome, was induced to comply with this request in 1156. Far from evincing that political jealousy which some writers impute to him, the emperor seems to have carried his gener- osity beyond the limits of prudence. For many years their union was apparently cordial. But, whether it was that Henry took umbrage at part of Frederick's conduct, or that mere ambition rendered him ungrateful, he certainly aban- doned his sovereign in a moment of distress, refusing to give any assistance in that expedition into Lombardy which ended in the unsuccessful battle of Legnano. Frederick could not forgive this injury, and taking advantage of complaints which Henry's power and haughtiness had produced, summoned him to answer charges in a general Diet. The duke refused to appear, and, being adjudged contumacious, a sentence of con- fiscation, similar to that which ruined his father, fell upon his head ; and the vast imperial fiefs that he possessed were shared among some potent enemies. He made an ineffectual resistance : like his father, he appears to have owed more to fortune than to nature ; and after three years' exile, was obliged to remain content with the restoration of his allodial estates in Saxony. These, fifty years afterwards, were con- Geiimany. FREDEKICK II. 267 verted into imperial fiefs, and became the two duchies of the house of Brunswick, the lineal representatives of Henry the Lion, and inheritors of the name of Guelf. Notwithstanding the prevailing spirit of the German oli- garchy, Frederick Barbarossa had found no difficulty in ])ro- curing the election of his son Henry, even during infant-y, as his successor. The fall of Henry the Lion had greatly weakened the ducal authority in Saxony and Bavaria ; the princes wlio acquired that title, especially in the former country, finding that the secular and spiritual nobility of the first class had taken the opportunity to raise themselves into an immediate dependence upon the empire. Henry VI. came, therefore, to the crown, (a.d. 111)0) with considerable advan- tages in respect of prerogative; and these inspired him with the bold scheme of declaring the empire hereditary. One is more surprised to find that he had no contemptible pros- pect of success in this attempt ; fifty-two princes, and even what appears hardly credible, the See of Rome, under Clem- ent III., having been induced to concur in it. But the Saxons made so vigorous an opj)Osition that Henry did not think it advisable to persevere. He procured, however, the election of his son Frederick, an infant only two years old. But, the emperor dying almost immediately, a powerful body of princes, supported by Pope Innocent III., were desirous to withdraw their consent. Philip, duke of Suabia, the late king's brother, unable to secure his nephew's succession, brought about his own election by one party, while anotlier chose Otho of Brunswick, younger son of Henry the Lion (a.d. 1198). This double election renewed the rivalry be- tween Guelfs and Ghibelins, and threw Germany into con- fusion for several years. Philip, whose pretensions ap})ear to be the more legitimate of the two, gained ground upon his adversary, notwithstanding the opposition of the pope, till he was assassinated in consequence of a private resent- ment. Otho IV. reaped the benefit of a crime in which he did not participate (a.d. 1208), and became for some years undisi)uted sovereign. But, having offended the pope by not entirely abandoning his imperial rights over Italy, he had, in the latter part of his reign, to contend against Frederick, son of Henry VI., who, having grown up to manhood, came into Germany as heir of the house of Suabia, and, what was not very usual in his own history, or that of his family, the favored candidate of the Holy See. Otho IV. had been almost entirely deserted except by his natural subjects, when his death, in 268 THE INTERREGNUM. 1218 removed every difficulty, and left Frederick II. in the peaceable possession of Germany. The eventful life of Frederick II. was chiefly passed in Italy. To preserve his hereditary dominions, and chastise the Lombard cities, were the leading objects of his political and military career. He paid, therefore, but little attention to Germany, from which it was in vain for any emperor to expect effectual assistance towards objects of his own. Care- less of prerogatives which it seemed hardly worth an effort to preserve, he sanctioned the independence of the princes, which may be properly dated from his reign. In return, they readily elected his son Henry king of the Romans ; and on his being implicated in a rebellion, deposed him with equal readiness, and substituted his brother Conrad at the em- peror's request. But in the latter part of Frederick's reign the deadly hatred of Rome penetrated beyond the Alps. After his solemn deposition in the council of Lyons, he was incapable, in ecclesiastical eyes, of holding the imperial scep- tre. William, Count of Holland, was chosen by the party adverse to Frederick and his son Conrad; and after the em- peror's death he had some success against the latter. It is hard, indeed, to say that any one was actually sovereign for twenty-two years that followed the death of Frederick II. ; a period of contested title and universal anarchy, which is usually denominated the grand interregnum (a.d. 1250- 1272). On the decease of William of Holland, in 1257, a scliism among the electors produced the double choice of Richard, earl of Cornwall, and Alfonso X., king of Castile. It seems not easy to determine which of these candidates had a legal majority of votes ; but the subsequent recognition of almost all Germany, and a sort of possession evidenced by public acts, which have been held valid, as well as the general consent of contemporaries, may justify us in adding Richard to the imperial list. The choice, indeed, was ridiculous, as he possessed no talents which could compensate for his want of power ; but the electors attained their objects — to perpetuate a state of confusion by which their own independence was consoli- dated, and to plunder without scruple a man like Didiusat Rome, rich and foolish enough to purchase the first place upon earth. § 6. That place, indeed, was now become a mockery of greatness. For more than two centuries, notwithstanding the temporary influence of Frederick Barbarossa and his son, the imperial authority had been in a state of gradual decay. From the time of Frederick II. it had bordered upon absolute insig- Gekmany. GERMANIC CONSTITUTION. 269 nificance ; and the more prudent German princes were slow to canvass for a dignity so little accompanied by respect. The changes wrought in the Germanic constitution during the period of the Suabian emperors cliiefly consist in the establish- ment of an oligarchy of electors, and of the territorial sov- ereignty of the princes. (1.) At the extinction of the Franconian line by the death of Henry V. it was determined by the German nobility to make their empire practically elective, admitting no right, or even natural pretension, in the eldest son of a reigning sovereign. Their choice upon former occasions had been made by free and general suffrage. But it may be presumed that each nation voted unanimously, and according to the disj^osition of its duke. It is probable, too, that the leaders, after discussing in previous deliberations the merits of the several candidates, submitted their own resolutions to the assembly, which would generally concur in them witliout hesitation. At the election of Lothair, in 1124, we find an evident instance of this previ- ous choice, or, as it was called, pra'taxatio7i, from which the electoral college of Germany has been derived. In the course of the twelfth century the other princes lost all voice in the election of the emperor, and the right of pra'taxation was conlined to Seven Electors. But it is not easy to account for all the circumstances that gave to seven spiritual and tem- poral ijrinces this distinguished pre-eminence. The three arclibishops, Mentz, Treves, and Cologne, were always, indeed, at the head of the German Church. But the secular electors should naturally have been the dukes of four nations — Sax- ony, Franconia, Suabia, and Bavaria. We find, however, only the first of these in the undisputed exercise of a vote. It seems ])robable tliat, when the electoral princes come to be distinguished from the rest, their privilege was considered as peculiarly connected with the discharge of one of the great offices in the imperial court. These were attached as early as the Diet of Mentz in 1184, to the four electors, who afterwards possessed them ; the Duke of Saxony having then officiated as arch-marshal, the Count Palatine of the Rhine as arch-steward, the Jving of Bohemia as arch-cupbearer, and the Margrave of Brandenburg as arch-chamberlain of the empire.^ But it still 2 The names and offices of the seven are eonciselv piven in these lines, which ap- pear in the treatise of Marsilius Patavinus, De Imperio Uoiiumo: " Mop;untinensis, Trevirensis, Coloniensis, Qullibet Imperii sit Cancellarius horum; Et Pahifinus dapifer, Dux portitor ensis, Urarcliio pr:ppositus camera?, pincerna Bohemus, Uistatuunt dominum cunctis per sKcula summum." liryce's " Holy Roman Empire," p. 258, 270 GERMANIC CONSTITUTION. Chap. V. continues a problem why the three latter offices, with the electoral capacity as their incident, should not rather have been granted to the dukes of Franconia, Suabia, and Bavaria. Tlie final extinction of two great original duchies, Franconia and Suabia, in the thirteenth century, left the electoral rights of the count palatine and the margrave of Brandenburg beyond dispute. But the dukes of Bavaria continued to claim a vote in opposition to the kings of Bohemia. At the election of Kodolph, in 1272, the two brothers of the house of AVittelsbach voted separately, as count palatine and duke of Lower Bavaria. Ottocar was excluded upon this occasion ; and it was not till 12U() that the suffrage of Bohemia was fully recognized. The Palatine and Bavarian branches, however, continued to enjoy their family vote conjointly, by a determination of llodolph; upon which Louis of Bavaria slightly innovated, by render- ing the suffrage alternate. But the Golden Bull of Charles IV. (a.d. 1356) put an end to all doubts on the rights of electoral houses, and absolutely excluded Bavaria from voting. This Bull, which became the corner-stone of the German constitu- tion, finally ascertained the i)rerogatives of the electoral college. The number was absolutely restrained to seven. The place of legal imperial elections was fixed at Frankfort ; of coronations, at Aix-la-Chapelle ; and the latter ceremony was to be per- formed by the archbishop of Cologne. These regulations, though consonant to ancient usage, had not always been ob- served, and their neglect had sometimes excited questions as to the validity of elections. The dignity of elector was enhanced by the Golden Bull as highly as an imperial edict could carry it ; tliey were declared equal to kings, and conspiracy against their persons incurred the j)enalty of high treason. (2.) It might appear natural to expect that an oligarchy of seven persons, who had thus excluded their equals from all share in the election of a sovereign, would assume still greater autliority, and trespass furtlier upon the less powerful vassals of the empire. But while the electors were establishing their peculiar privilege, the class immediately inferior raised itself by important acquisitions of power. The German dukes, even after they became hereditary, did not succeed in compelling the chief nobility within their limits to hold their lands in fief so completely as the peers of France had done. The nobles of Suabia refused to follow their duke into the field against the Emperor Conrad II. Of this aristocracy, the superior class were denominated princes ; an a])])ellation wliich, after the eleventh century, distinguished them from the untitled uobil- Germany. RODOLPH OF HAPSBURG. 271 ity, most of whom were tlieir vassals. Tliey were constituent parts of all Diets ; and tliougli gradually deprived of tlieir original participation in electing an emperor, possessed, in all other respects, the same rights as the dukes or electors. Some of them were fully equal to the electors in birth as well as extent of dominions ; such as the princely houses of Austria, Hesse, Brunswick, and Misnia. By the division of Henry the Lion's vast territories, and by the absolute extinction of the Suabian family in the following century, a great many princes acquired additional weight. Of the ancient duchies, only Sax- ony and Bavaria remained ; the former of which especially was so dismembered, that it was vain to attempt any renewal of the ducal jurisdiction. That of the emperor formerly exer- cised by the counts palatine, went almost equally into disuse during the contest between Philip and Otho IV. The princes accordingly had acted with sovereign independence within their own liefs before the reign of Frederick II. ; but the legal recognition of their immunities was reserved for two edicts of that emperor ; one, in 1220, relating to ecclesiastical, and the other, in 1232, to secular princes. By these he engaged neither to levy the customary imperial dues, nor to permit tlie juris- diction of the palatine judges, within the limits of a state of tlie empire ; concessions that amounted to little less than an abdication of his own sovereignty. From this epoch the terri- torial independence of the states may be dated. A class of titled nobility, inferior to the princes, were the counts of the empire, who seem to have been separated from the former in the twelfth century, and to h'ave lost at the same time their right of voting in the Diets. ^ In some }iarts of Ger- many, chiefly in Franconia and upon the Rhine, there always existed a very numerous body of lower nobility ; untitled at least till modern times, but subject to no superior except the emperor. These are su])posed to have become immediate, ^iiev the destruction of the house of Suabia, within whose duchies they had been comprehended. § 7. A short interval elapsed after the death of Richard of Corn Avail before the electors could be induced, by the dejilora- ble state of confusion into which Germany had fallen, to All the imperial throne. Their clioice was, however, the best that could have been made. It fell upon Rodolph, count of Haps- burg, a prince of very ancient family, and of considerable pos- 3 In tlip instruments reliiting to the election of Otho IV. the princes sign their names, Ego N. elegi et subscripsi. But the counts only as follows : Ego N. consensi et subscripsi. 272 THE EMPIRE AFTER RODOLPH. Chap. V. sessions as well in Switzerland as upon each bank of the Upper Rhine, but not sufficiently powerful to alarm the elec- toral oligarchy (a.d. 1272). Eoclolph was brave, active, and just ; but his characteristic quality appears to have been good sense, and judgment of the circumstances in which he was placed. Of this he gave a signal proof in relinquishing the favorite project of so many preceding emperors, and leaving Italy altogether to itself. At home he manifested a vigilant spirit in administering justice, and is said to have destroyed seventy strongholds of noble robbers in Thuringia and other parts, bringing many of the criminals to capital punishment. But he wisely avoided giving offence to the more powerful princes ; and during his reign there were hardly any rebellions in Germany. It was a very reasonable object of every emperor to aggran- dize his family by investing his near kindred with vacant fiefs ; but no one was so fortunate in his opportunities as Rodolph. At his accession, Austria, Styria, and Carniola were in the hands of Ottocar, king of Bohemia. These exten- sive and fertile countries had been formed into a march, or margraviate, after the victories of Otho the Great over the Hungarians. Frederick Barbarossa erected them into a duchy, with many distinguished privileges, especially that of female succession, hitherto unknown in the feudal principalities of Germany. Upon the extinction of the house of Bamberg, which had enjoyed this duchy, it was granted by Frederick II. to a cousin of his^ own name ; after whose death a disputed succession gave rise to several changes, and ultimately enabled Ottocar to gain possession of the country. Against this King of Bohemia Rodolph waged two successful Avars, and recovered the Austrian provinces, which, as vacant fiefs, he conferred, with the consent of the Diet, upon his son Albert. § 8. Notwithstanding the merit and popularity of Rodolph, the electors refused to choose his son king of the Romans in his lifetime ; and, after his death, determined to avoid the appearance of hereditary succession, put Adolphus of Nassau upon the throne (a.d. 1292). There is very little to attract notice in the domestic history of the empire during the next two centuries. From Adolphus to Sigismund every emperor had either to struggle against a competitor claiming the majority of votes at his election, or against a combination of the electors to dethrone him. The imperial authority became more and more ineffective ; yet it was frequently made a subject of reproach against the emperors that they did not Geemany. custom of partition. 273 maintain a sovereignty to which no one was disposed to submit. It may appear surprising that the Germanic confederacy under the nominal supremacy of an emperor should have been preserved in circumstances apparently so calculated to dissolve it. But, besides the natural effect of prejudice and a famous name, there were sufficient reasons to induce the electors to preserve a form of government in which they bore so decided a sway. Accident had in a considerable degree restricted the electoral suffrages to seven princes. Without tlie college there were houses more substantially powerful than any within it. 'J'he duchy of Saxony had been subdivided by repeated partitions among children, till the electoral right was vested in a prince who possessed only the small territory of Wittenberg. The great families of Austria, Bavaria, and Luxemburg, though not electoral, were the real heads of the German body ; and though the two former lost much of their influence for a time through the pernicious custom of partition, the empire seldom looked for its head to any other house than one of these three. While the duchies and counties of Germany retained their original character of offices or governments, they were of course, even though considered as hereditary, not subject to partition among children. When they acquired the nature of fiefs, it was still consonant to the principles of a feudal tenure that the eldest son should inherit according to the law of primogeniture ; an inferior provision or appanage, at most, being reserved for the younger children. The law of England favored the eldest exclusively ; that of France gave him great advantages. But in Germany a different rule began to prevail about the thirteenth century. An equal partition of the in- heritance, without the least regard to priority of birth, was the general law of its principalities. Sometimes this was effected by undivided possession, or tenancy in common, the brothers residing together, and i-eigning jointly. This tended to preserve the integrity of dominion ; but as it was frequently incommodious, a more usual practice was to divide the terri- tory. From such partitions are derived those numeroiis inde- pendent principalities of the same house, many of which still subsist in Germany. In 1589 there were eight reigning princes of the Palatine family ; and fourteen, in 1G75, of that of Saxony. Originally tliese partitions were in general abso- lute and without reversion, but, as their effect in weakening families became evident, a practice was introduced of making 274 HOUSE OP LUXEMBURG. Chap. V. compacts of reciprocal succession, by which a fief was pre- vented from escheating to the empire, until all the male pos- terity of the first feudatory should be extinct. Thus, while the German empire survived, all tlie princes of Hesse or of Saxony had reciprocal contingencies of succession, or what our lawyers call cross-remainders, to each other's dominions. A different system was gradually adopted. By the Golden Bull of Charles IV. the electoral territory, that is, the particular district to which the electoral suffrage was inseparably at- tached, became incapable of partition, and was to descend to the eldest son. In the fifteenth century the present house of Brandenburg set the first example of establishing primogeniture by law ; the principalities of Anspach and Bayreuth were dis- membered from it for the benefit of younger branches ; but it was declared that all the other dominions of the family should for the future belong exclusively to the reigning elector. This politic measure was adopted in several other families ; but, even in the sixteenth century, the prejudice was not removed, and some German princes denounced curses on their posterity, if they should introduce the impious custom of primogeniture. Notwithstanding these subdivisions, and the most remarkable of those which I have mentioned are of a date rather subse- quent to the Middle Ages, the antagonist principle of consoli- dation by various means of acquisition was so actively at Avork that several princely houses, especially those of Holien- zollern or Brandenburg, of Hesse, Wirtemberg, and the Palatin- ate, derive their importance from tlie same era, the fourteenth and fifteenth centuri(>s, in which the prejudice against primo- geniture was tlie strongest. And thus it will often be found in private patrimonies ; the tendency to consolidation of prop- erty works more rapidly than that to its disintegration by a law of gavelkind. § 9. House of Luxemburg. — Weakened by these subdivis- ions, the principalities of Germany in the fourteenth and fif- teenth centuries shrink to a more and more diminutive size in the scale of nations. But one family, the most illustrious of the former age, was less exposed to this enfeebling system. Henry VII., count of Li^xemburg, a man of much more per- sonal merit than hereditary importance, was elevated to the empire in 1308. Most part of his short reign he passed in Italy ; but he had a fortunate opportunity of obtaining the crown of Bohemia for his son. John, king of Bohemia, did not himself wear the imperial crown ; but three of his descend- ants possessed it, with less interruption than could have been Germany. HOUSE OF LUXEMBURG. 275 expected. His son Charles IV. succeeded Louis of Bavaria in 1347 ; not indeed without opposition, for a double election and a civil war were matters of course in Germany. Charles IV. has been treated with more derision by his contemporaries, and consequently by later writers, than almost any prince in history ; yet he was remarkably successful in the only objects that he seriously pursued. Deficient in personal courage, in- sensible of humiliation, bending without shame to the pope, to the Italians, to the electors, so poor and so little reverenced as to be arrested by a butcher at Worms for want of paying his demand, Charles IV. affords a proof that a certain dexterity and cold-blooded perseverance may occasionally supply, in a sovereign, the want of more respectable qualities. He has been reproached with neglecting the empire. But he never designed to trouble himself about the empire, except for his private ends. He did not neglect the kingdom of Bohemia, to which he almost seemed to render Germany a province. Bo- hemia had been long considered as a fief of the empire, and indeed could pretend to an electoral vote by no other title. Charles, however, gave the states by law the right of choosing a king, on the extinction of the royal family, which seems de- rogatory to the imperial prerogative. It was much more mate- rial that, upon acquiring Brandenburg, partly by conquest, and partly by a compact of succession in 1373, he not only invested his sons with it, which was conformable to usage, but tried to annex that electorate forever to the kingdom of ])0- hemia. He constantly resided at Prague, where he founded a celebrated university, and embellished the city with buildings. This kingdom, augmented also during his reign by the acquisi- tion of Silesia, he bequeathed to his son Wenceslaus, for wlumi, by ])liancy towards the electors and the court of Eome, he had procured, against all recent example, the imperial succession. The reign of Charles IV. is distinguished in the constitu- tional history of the empire by his Golden Bull. (See p. 270.) The next reign evinced the danger of investing the electors with such preponderating authority. Wenceslaus, a supine and voluptuous man, less respected, and more negligent of Germany, if possible, than his father, was regularly de])osed by a majority of the electoral college in 1400. This right, if it is to be considered as a right, they had already used against Adolphus of Nassau in 1208, and against Louis of Bavaria in 1346. They cliose Robert count palatine instead of Wences- laus ; and though the latter did not cease to have some adher- ents, Robert has generally been counted among the lawful 276 HOUSE OF AUSTRIA. Chap. V. emperors. Upon his death the empire returned to the house of Luxemburg ; Wenceshius himself waiving his rights in favor of his brother Sigismund of Hungary. § 10. The HOUSE OF Austria had hitherto given but two emperors to Germany, Rodolph, its founder, and his son Albert, whom a successful rebellion elevated in the place of Adolphus. Upon the death of Henry of Luxemburg, in 1313, Frederick, son of Albert, disputed the election of Louis, duke of Bavaria, alleging a majority of genuine votes. This pro- duced a civil war, in which the Austrian party were entirely Avorsted. Though they advanced no pretensions to the impe- rial dignity -during the rest of the fourteenth century, the princes of that line added to their possessions Carinthia, Istria, and the Tyrol. As a counterbalance to these acquisitions, they lost a great part of their ancient inlieritance by unsuc- cessful wars with the Swiss. According to the custom of par- tition, so injurious to princely houses, their dominions were divided among three branches ; one reigning in Austria, a sec- ond in Styria and the adjacent provinces, a third in the Tyrol and Alsace. This had in a considerable degree eclipsed the glory of the house of Hapsburg. But it was now its destiny to revive and to enter upon a career of prosperity which has never since been permanently interrupted. Albert, duke of Austria, who had married Sigismund's only daughter, the queen of Hungary and Boliemia, was raised to the imperial throne upon the death of his father-in-law in 1438. He died in two years, leaving his wife pregnant Avith a son, Ladislaus Posthvimus, who afterwards reigned in the two kingdoms just mentioned ; and the choice of the electors fell upon Frederick, duke of Styria, second-cousin of the last emperor, from whose posterity it never departed, excei)t in a single instance, upon the extinction of his nuih; line in 1740. Frederick III. reigned Hfty-three years (a.d. 1440-1493), a longer period than any of his predecessors ; and his ])ers()nal character was more insignificant. He reigned during an inter- esting age, full of remarkable events, and big with others of more leading importance. The destruction of the Greek Em- pire, and the ai)pearance of the victorious crescent upon the Danube, gave an unlia])])y distinction to the earlier years of liis reign, and displayed his mean and pusillanimous character in circumstances which demanded a hero. At a later season he was drawn into contentions with France and Burgundy, wliich ultimately produced a new and more general combina- tion of European politics. Frederick, always poor, and scarcely Gekmany. FREDERICK III. 277 able to protect himself in Austria from the seditions of his subjects, or the inroads of the King of Hungary, was yet another founder of his family, and left their fortunes incomparably more prosperous than at his accession. The marriage of his son Maximilian with the heiress of Burgundy began that ag- grandizement of the house of Austria which Frederick seems to have anticipated.* The electors, who had lost a good deal of their former spirit, and were grown sensible of the necessity of choosing a powerful sovereign, made no opposition to Maxi- milian's becoming king of the Romans in his father's lifetime. The Austrian provinces were re-united either under Frederick or in the first years of Maximilian ; so that, at the close of that period which we denominate the Middle Ages, the German Empire, sustained by the })atrimonial dominions of its chief, became again considerable in the scale of nations, and capable of preserving a balance between the ambitious monarchies of France and Spain. § 11. The period between Rodolph and Frederick III. is distinguished by no circumstance so interesting as the pros- perous state of the free imperial cities, which had attained their maturity about the commencement of that interval. We find the cities of Germany, in the tenth century, divided into such as depended immediately upon the empire, which were usually governed by their bishop as imperial vicar, and such as were included in the territories of the dukes and counts. Gradually they began to elect councils of citizens, as a sort of Senate and magistracy. They were at first only assistants to the ini])erial or eitiscopal bailiff, who probably continued to administer criminal justice. But in the thirteenth century the citizens, grown richer and stronger, either purchased the jurisdiction,, or usurped it through the lord's neglect, or drove out the bailiff by force. The great revolution in Franconia and Suabia occasioned by the fall of the Hohenstaufen family com])leted the victory of the cities. Those which had de- pended upon mediate lords became immediately connected with the empire ; and with the empire in its state of feeble- ness, when an occasional present of money would easily induce its chief to acqiiiesce in any claims of immunity which the citizens might prefer. It was a natural consec|;uence of the importance which the free citizens had reached, and of their immediacy, that they * The famous device of Austria, A. E. I. O. U., was first used by Frederick III. who adopted it on his plate, books, and buildings. These initials stand for, Austriae Est Imperare Orbi Universe; or, in German, Alles Erdreich Jst Ocsterreieh Unter- thau : a bold assumption for a man who was not Safe in an inch of his dominions. 278 FEEE IMPERIAL CITIES. Chap. V. were admitted to a place in the Diets, or general meetings of the confederacy. They were tacitly acknowledged to be equally sovereign with the electors and princes, and under the emperor Henry VII. there is unequivocal mention of the three orders composing the Diet — electors, princes, and depu- ties from cities. The inhabitants of these free cities always preserved their respect for the emperor, and gave him much less vexation than his other subjects. He was indeed their natural friend. But the nobility and prelates were their natural enemies ; and the western parts of Germany were the scenes of irrecon- cilable warfare between the possessors of fortified castles and the inhabitants of fortified cities. Each party was frequently the aggressor. The nobles were too often mere robbers who lived upon the plunder of travellers. But the citizens were almost equally inattentive to the rights of others. It was their policy to offer the privileges of burghership to all strangers. The peasantry of feudal lords, flying to a neigh- boring town, found an asylum constantly open. A multitude of aliens, thus seeking, as it were, sanctuary, dwelt in the suburbs, or liberties, between the city walls and the palisades which bounded the territory. Hence they were called Pfa.hl- biirger, or burgesses of the palisades ; and this encroachment on the rights of the nobility was positively, bi;t vainly, pro- hibited by several imperial edicts, especially the Golden Bull. Another class were the Ausbiirger, or outburghers, who had been admitted to privileges of citizenship, though resident at a distance, and pretended in consequence to be exempted from all dues to their original feudal superiors. If a lord resisted so unreasonable a claim, he incurred the danger of bringing down upon himself the vengeance of the citizens. These out- burghers are in general classed under the general name of I'fahlbiirger by contemporary writers. As tlie towns were conscious of the hatred which the no- bility bore towards them, it was their interest to make a common cause, and render mutual assistance. They with- stood the bishops and barons by confederacies of their own, framed expressly to secure their commerce against rapine, or unjust exactions of toll. More than sixty cities, with three ecclesiastical electors at their head, formed the leagiie of the Rhine, in 1255, to repel the inferior nobility, who, hav- ing now become immediate, abused that independence by j)erpetual robberies. The Hanseatic Union owes its origin to uo other cause, and may be traced perhaps to rather a higher Gkkmany. FKOVINCIAL STATES. 279 date. About the year 1370 a league was formed which, though it did not continue so long, seems to have produced more striking effects in Germany. The cities of Suabia and the Rhine united themselves in a strict confederacy against the princes, and especially the families of Wirtemburg and Bavaria. It is said that the Emperor Wenceslaus secretly abetted their projects. The recent successes of tlie Swiss, who had now almost established their republic, inspired their neighbors in the empire with expectations which the event did not realize ; for they were defeated in this war, and ulti- mately compelled to relinquish their league. Counter-associa- tions were formed by the nobles, styled Society of St. George, St. William, the Lion, or the Panther. § 12. Tlie spirit of political liberty was not confined to the free immediate cities. In all the German principalities a form of limited monarchy prevailed, reflecting, on a reduced scale, tlie general constitution of the empire. As the emperors sliared their legislative sovereignty witli the Diet, so all the princes who belonged to that assembly had their own pro- vincial states, composed of their feudal vassals and of their mediate towns within tlicir territory. No tax could be im- posed without consent of the states ; and, in some countries, the prince was obliged to account for the proper distribution of the money granted. In all matters of importance affect- ing the principality, and especially in case of partition, it was necessary to consult them ; and they sometimes decided be- tween competitors in a disputed succession, though this indeed more strictly belonged to the emperor. The provincial states concurred with the prince in making laws, except such as were enacted by the general Diet. § 13. The ancient imperial domain, or possessions which belonged to the chief of the empire as such, had originally been very extensive. Besides large estates in every province, the territory upon each bank of the Rhine, afterwards oc- cupied by the counts palatine and ecclesiastical electors, was, until the thirteenth century, an exclusive property of the emperor. This imperial domain was deemed so adequate to the support of his dignity that it was usual, if not obliga- tory, for him to grant away his patrimonial domains upon his election. But the necessities of Frederick II., and the long confusion that ensued upon his death, caused the domain to be almost entirely dissipated. Rodolph made some efforts to retrieve it, but too late; and the poor remains of what had belonged to Cliarlemagne and Otho were alienated by 280 PUBLIC PEACE. Chap. V. Charles IV. This produced a necessary change in that part of the constitution which deprived an emperor of heredita- ry possessions. It was, however, some time before it took place. Even Albert I. conferred the duchy of Austria upon his son, when he was chosen emperor. Louis of Bavaria was the first who retained his hereditary dominions, and made them his residence. Charles IV. and Wenceslaus lived almost wholly in Bohemia, Sigismund chiefly in Hungary, Frederick III. in Austria. This residence in their hereditary countries, while it seemed rather to lower the imperial dignity, and to lessen their connection with the general confederacy, gave them intrinsic power and influence. If the emperors of the houses of Luxemburg and Austria were not like the Conrads and Fredericks, they were at least very superior in importance to the Williams and Adolphnses of the thirteenth century. § 14. The accession of Maximilian nearly coincides with the expedition of Charles VIII. against Naples ; and I should here close the German history of the Middle Age, were it not for the great epoch which is made by the Diet of Worms in 1495. This assembly is celebrated for the establishment of a perpetual pul)lic peace, and of a })aramount court of justice, the Ini})erial Cliamber. The same causes which produced continual hostilities among the French nobility were not likely to operate less powerfully on the Germans, equally warlike with their neighbors, and rather less civilized. But while the imperial government was still vigorous, they were kept under some restraint. We find Henry III., the most powerful of the Franconian emperors, forbidding all private defiances, and establishing solemnly a general peace. After his time the natural tendency of man- ners overpowered all attempts to coerce it, and private Avar raged without limits in the empire. Frederick I. endeavored to repress it by a regulation which admitted its legality. This was the law of defiance (^jns d/ffidationis), which required a solemn declaration of war, and three days' notice, before the commencement of hostile measures. All persons contravening tliis provision were deemed robbers and not legitimate enemies. War, indeed, legally undertaken, was not the only nor the severest grievance. A very large proportion of the rural nobility lived by robbery. Their castles, as the ruins still bear witness, were erected upon inaccessible hills, and in de- files that command the public road. An archbishop of Cologne having built a fortress of this kind, the governor inquired how he was to maintain himself, no revenue having been assigned Gekmany. IMrEUlAL ClIAMBEK. 281 for that purpose : the prehite only desired him to remark that the castle was situated near the junction of four roads. As commerce increased, and the example of French and Italian civilization rendered the Germans more sensible to their own rudeness, the preservation of public peace was loudly de- manded. Every Diet under Frederick III. professed to occu})y itself with the two great objects of domestic reformation, peace and law. Temporary cessations, during which all pri- vate hostility was illegal, were sometimes enacted; and, if observed, which may well be doubted, might contribute to accustom men to habits of greater tranquillity. The leagues of the cities were probably more efficacious checks upon the disturbers of order. In 1486 a ten years' peace was pro- claimed, and before tlie expiration of this period the i)erpetual abolition of the right of defiance was happily accomplished in the Diet of Worms. § 15. The next object of the Diet was to provide an effect- ual remedy for private Avrongs which might supersede all pre- tence for taking u}) arms. The Imperial Chamber, such was the name of the new tribunal, consisted, at its original institu- tion, of a chief judge, who was to be chosen among the princes or counts, and of sixteen assessors, partly of noble or eques- trian rank, partly professors of law. They were named by the emperor with the approbation of the Diet. The functicms of the Imperial Chamber were chiefly the two following: (1.) They exercised an appellant jurisdiction over causes that had been decided by the tribunals established in states of the empire. But their jurisdiction in private causes was merely appellant. They were positively restricted from taking cog- nizance of any causes in the first instance, even where a state of the empire was one of the parties. It was enacted, to ob- viate the denial of justice that appeared likely to result from the regulation in the latter case, that every elector and })rinee should establish a tribunal in his own dominions, where suits against himself might be entertained. (2.) The second part of their jurisdiction related to disputes between two states of the em[)ire. But these two could only come before it by way of appeal. During the period of anarchy which preceded the establishment of its jurisdiction, a custom was introduced, in order to prevent the constant recurrence of hostilities, of re- ferring the quarrels of states to certain arbitrators, called Austregues, chosen among states of the same rank. This con- ventional reference became so popular that the princes would not consent to abandon it on the institution of the Imperial 282 LIMITS OF THE EMrillE, Chap. V. Chamber ; but, on the contrary, it was changed into an invari- able and universal law,, that all disputes between different states must, in the tirst instance, be submitted to the arbitra- tioa of Austregues. Tlie sentences of the Chamber would have been very idly prouounced, if means had not been devised to carry them into execution. The empire, with the exception of the elect- orates aud the Austrian dominioiis, was divided into six circles, each of which had its council of states, its director, whose pr(jviuce it was to convoke them, and its military force to com[>el obedience. lu 1512 four more circles were added, eom- prelieuding those states which had been excluded in the first division. § l6. As the judges of the Imperial Chamber were ap- pointed with the consent of the Diet, and held their sittings in a free imperial city, its establishment seemed rather to encroach on the ancient prerogatives of the emperors. Max- iiailian expressly reserved these in consenting to the new tribunal. And, in order to revive them, he soon afterwards instituted an Aulic Council at Vienna, composed of judges ai)])()iuted by himself, and under the political control of the Austrian government. Though some German patriots re- garded this tribunal with jealousy, it continued until the dissolution of the empire. The Aulic Council had, in all cases, a concurrent jurisdiction with the Imperial Chamber; an exclusive one in feutlal and some other causes, lint it was equally confined to cases of appeal ; and these, by mul- ti[)lied privileges, de non appellando, granted to the electoral and superior princely houses, were gradually reduced into moderate compass. The Germanic constitution may be reckoned complete, as to all its essential characteristics, in the reign of Maximilian. In later times, and especially by the treaty of Westphalia, it underwent several modifications. Whatever might be its defects, and many of them seem to have been susceptible of reformation without destroying the system of government, it had one invaluable excellence : it protected the rights of the weaker against the stronger powers. The law of nations was tirst taught in Germany, and grew out of the public law of the empire. To narrow, as far as' possible, the rights of war and of conquest, was a natural principle of those who belonged to petty states, and had nothing to tempt them in amliition. § 17. At the accession of Conrad I., Germany had by no Gekmany. constitution OF BOHEMIA. -'83 means readied its present extent on the eastern frontier. Henry the Fowler and the Othos made great acquisitions upon that side. But tribes of Schivonian origin, generally called Venedic, or, less properly. Vandal, occupied the north- ern coast from the Elbe to the Vistula. These were inde- pendent and fcjrmidable bcjth to the kings of Denmark and princes of Germany, till, in the reign of Frederick Barbarossa, two of the latter, Henry the Lion, duke of Saxony, and Al- bert the Bear, margrave of Brandenburg, subdued Mecklen- burg and Pomerania, which afterwards became duchies of the emjiire. Bohemia was undoubtedly subject, in a feudal sense, to Frederick I. and his successors ; though its connec- tion with Germany was always slight. The emperors some- times assumed the sovereignty over Denmark, Hungary, and Poland. But what they gained upon this quarter was com- pensated by the gradual separation of the Netlierlands from their dominion, and by the still more complete loss of the kingdom of Aries. The house of Burgundy possessed most part of the former, and paid as little regard as possible to the imperial supremacy ; though the German Diets in the reign of Maximilian still continued to treat the Netherlands as equally subject to their lawful control with the states on the right bank of the Ehine. But the provinces between the Rhone and the Alps were absolutely separated ; Switz- erland had completely succeeded in establishing her own in- dependence ; and the kings of France no longer sought even the ceremony of an imperial investiture for Dauphine and Provence. § 18. Bohemia, which received the Christian faith in the tenth century, was elevated to the rank of a kingdom near the end of the twelfth. The dukes and kings of Bohemia were feudally dependent upon the emperors, from whom they received investiture. They possessed, in return, a suffrage among the seven electors, and held one of the great offices in the imperial court. But separated by a rampart of moun- tains, by a difference of origin and language, and perhaps by natural prejudices, from Germany, the Bohemians withdrew as far as possible from the general politics of the confederacy. The kings obtained dispensations from attending the Diets of the empire, nor were they able to reinstate themselves in the privilege thus abandoned till the beginning of the last century. The government of this kingdom, in a very slight degree partaking of the feudal character, bore rather a re- semblance to that of Poland ; but the nobility were divided 284 THE HUSSITES. Chap. V. into fcAvo classes, the baronial and the equestrian, and the burghers formed a third state in the national Diet. For the peasantry, they were in a condition of servitude, or 2)redial vil- lenage. The royal authority was restrained by a coronation oath, by a permanent Senate, and by frecpient assemblies of the Diet, where a numerous and armed nobility appeared to secure their liberties by law or force. The scejitre passed, in ordinary times, to the nearest heir of the royal blood ; but the right of election was only suspended, and no king of Bo- hemia ventured to boast of it as his inlieritance. This mix- ture of elective and hereditary monarchy was common, as we have seen, to most European kingdoms in their original con- stitution, though few continued so long to admit the participa- tion of pf)pular suffrages. The reigning dynasty having become extinct in loOG, by the death of Wenceshms, son of that Uttocar, who, after extend- ing his conquests to the Baltic kSea, and almost to the Adriatic, had lost his life in an unsuccessful contention with the Emperor Bod(^l]ih, the Bohemians chose John of Luxemburg, son of Plenry VII. Under the kings of this family in the fourteenth century, and especially Charles IV., whose charac- ter appeared in a far more advantageous light in his native domains than in the empire, Bohemia imbibed some portion of refinement and science. A university erected by Charles at Prague became one of the most celebrated in Europe. John Huss, rector of the university, who had distinguished himself by opposition to many abuses then prevailing in the Church, repaired to the council of Constance, under a safe-conduct from tiie Emperor Sigismund (a.d. 1410). In violation of this pledge, to the indelible infamy of that prince and of the coun- cil, he was condemned to be burned ; and his disci})le, Jerome of Prague, underwent afterwards the same fate. His country- men, aroused by this atrocity, flew to arms. They found at their head one of those extraordinary men whose genius, created by nature and called into action by f(U'tuitous events, appears to borrow no reflected light from that of others. Jolm Zisca had not been trained in any school which could have initiated him in the science of war ; that indeed, except in Italy, was still rude, and nowhere more so than in Boliemia. But self- taught, he became one of the greatest captains who had hitherto appeared in Europe. It renders liis exploits more marvellous that he was totally deprived of sight. Zisca has been called tlie inventor of the modern art of fortification ; the famous mountain near Prague, fanatically called Tabor, Germany. HUNGARY. 285 became by his skill an impregnable intrencliment. For his stratagems he has been compared to Hannibal. In battle, being destitnte of cavalry, he disposed at intervals ramparts of carriages filled with soldiers, to defend his troops from the enemy's horse. His own station was by the chief standard ; where, after hearing the circnmstanees of the situation ex- plained, he gave his orders for the disposition of the army. Zisca was never defeated ; and his genius ins})ired the Hussites with such enthusiastic affection, that some of those who had served under him refused to obey any other general, and de- nominated themselves Or})hans, in commemoration of his loss. He was indeed a ferocious enemy, though some of his cruelties might, perhaps, be extenuated by the law of retaliation ; but to his soldiers affable and generous, dividing among them all the spoil. Even during the lifetime of Zisca, the Hussite sect was dis- united ; the citizens of Prague and many of the nobility con- tenting themselves with moderate demands, wliile the Tabor- ites, his peculiar followers, were actuated by a most fanatical frenzy. The former took the name of Calixtins, from their retention of the sacramental cup, of which the priests had latterly thought fit to debar laymen ; an abuse so totally Avith- out pretence or a])ology, tliat nothing less than the determined obstinacy of the Romish Church could have maintained it to this time. The Taborites, though no longer led by Zisca, gained some remarkable victories, but were at last wholly de- feated; while the Catholic and Calixtin parties came to an accommodation, by which Sigismund Avas acknowledged as King of Bohemia, which he had claimed by the title of heir to his brother Wenceslaus, and a few indulgences, especially the use of the sacramental cup, conceded to the moderate Hussites (a.d. 1433). But this compact, though concluded by the Council of Basle, being ill observed, through the perfidious bigotry of the See of Rome, the reformers armed again to defend their religious liberties, and ultimately elected a noble- man of their own party, by name George Podiebrad, to tlie throne of Bohemia, which he maintained during his life with great vigor and prudence (a.d. 1458). Upon his death they chose Wladislaus, son of Casimir, king of Poland (a.d. 1471), who afterwards obtained also the kingdom of Hungary. Both these crowns were conferred on his son, Louis, after whose death in the unfortunate battle of Mohacz, Ferdinand of Austria became sovereign of the tAvo kingdoms. § 19. The Hungarians, that terrible people avIio laid waste 286 HUNGARY. Chap. V. the Italian and Gernian provinces of the empire .n the tenth century, became proselytes soon afterwards to the religion of Europe, and their sovereign, St. Stephen, was admitted by the pope into the list of Christian kings. Though the Hungarians were of a race perfectly distinct from either the Gothic or the Sclavonian tribes, their system of government was in a great measure analogous. None indeed could be more natural to rude nations who had but recently accustomed themselves to settled possessions, than a territorial aristocracy, jealous of unlimited or even hereditary power in their chieftain, and sub- jugating the inferior people to that servitude which, in such a state of society, is the unavoidable consequence of poverty. The marriage of a Hungarian princess with Charles II., king of Naples, eventually connected her country, far more than it had been, with the affairs of Italy. I have mentioned in a different place the circumstances which led to the inva- sion of Naples by Louis, king of Hungary (see p. 215). By marrying the eldest daughter of Louis, Sigismund, afterwards emperor, acquired the crown of Hungary, which upon her death without issue he retained in his own right, and was even able to transmit to the child of a second marriage, and to her husband Albert, duke of Austria. From this commencement is deduced the connection between Hungary and Austria. In two years, however, Albert dying left his widow pregnant ; but the states of Hungary, jealous of Austrian influence, and of the intrigiies of a minority, without waiting for her delivery, bestowed the crown upon Wladislaus, king of Poland (a.d. 1440). The birth of Albert's posthumous son, Ladislaus, pro- duced an opposition in behalf of the infant's right ; but the Austrian party turned out the weaker, and Wladislaus, after a civil war of some duration, became undisputed king. Mean- while a more formidable enemy drew near. The Turkish arms had subdued all Servia, and excited a just alarm throughout Christendom. Wladislaus led a considerable force, to which the presence of the Cardinal Julian gave the appeai'ance of a crusade, into Bulgaria, and, after several successes, concluded an honorable treaty with Amurath II. But this he was un- happily persuaded to violate, at the instigation of the cardinal, who abhorred the impiety of keeping faith with infidels. Heaven judged of this otherwise, if the judgment of Heaven Avas pronounced upon the field of Warna. In that fatal battle Wladislaus was killed, and the Hungarians utterly routed (a.d. 1444). The crown was now permitted to rest on the head of young Ladislaus ; but the regency was allotted by the states Germany. EARLY HISTORY OF SWITZERLAND. 287 of Hungary to a native warrior, John Hunniades. This hero stood in the breacli for twelve years against the Turkish power, frequently defeated, but unconquered in defeat. If the renown of Hunniades may seem exaggerated by the ])ar- tiality of writers who lived under the reign of his son, it is confirmed by more unequivocal evidence, by the dread and hatred of the Turks, whose children were taught obedience by tlireatening them with his name, and by the deference of a jealous aristocracy to a man of no distinguished birth. He surrendered to young Ladislaus a trust that he had exercised with perfect fidelity ! but his merit was too great to be for- given, and the court never treated him with cordiality. The last and the most splendid service of Hunniades was tiie relief of Belgrade (a.d. 1456). That strong city was besieged by Mohammed II. three years after the fall of Cojistantinople ; its capture would have laid open all Hungary. A tumultuous army, chiefly collected by the preaching of a friar, was in- trusted to Hunniades ; he penetrated into the city, and, having repulsed the Turks in a fortunate sally wherein IVIohammed was wounded, had the honor of compelling him to raise the siege in confusion. The relief of Belgrade was more impor- tant in its effects than in its immediate circumstances. It re- vived the spirits of Europe, which had been appalled by the unceasing victories of the infidels. Mohammed himself seemed to acknowledge the importance of the blow, and seldom after- wards attacked the Hungarians. Hunniades died soon after this achievement, and was followed by the king, Ladislaus. The states of Hungary, although the Emperor Frederick III. had secured to himself, as he thought, the reversion, were justly averse to his character, and to Austrian connections. They conferred their crown on Matthias Corvinus, son of their great Hunniades (a.d. 14r)(S). Tliis prince reigned above thirty years with considerable reputation, to which his ])atron- age of learned men, wlio rej)aid his munificence with very ])ro- fuse eulogies, did not a little contribute. Hungary, at least in his time, was undoubtedly formidable to her neighbors, and held a respectable rank as an independent power in the re})ub- lic of Europe. § 20. Switzerland. — The kingdom of Burgundy or Aries comprehended the whole mountainous region which we now call Switzerland. It was accordingly reunited to the Ger- manic empire by the bequest of Rodolph along with the rest of his dominions. A numerous and ancient nobility, vassals one to another, or to the empire, divided the possessions with 288 EARLY HISTORY OF SWITZERLAND. Chap. V. ecclesiastical lords liardly less powerful than themselves. Of the former we find the counts of Zahringen, Kyburg, Haps- burg, and Tokenburg most conspicuous ; of the latter, the Bishop of Coire, the Abbot of St. Gall, and Abbess of Sec- kingen. Every variety of feudal riglits was early found and long preserved in Helvetia ; nor is there any country Avhose his- tory better illustrates tliat ambiguous relation, half property and half dominion, in which the territorial aristocracy, under the feudal system, stood Avith I'espect to their dependents. In the twelfth century the Swiss towns rise into some degree of importance. Zurich was eminent for commercial activity, and seems to have had no lord but the emperor. Basle, though subject to its bishop, possessed the usual privileges of muni- cipal government. Berne and Friburg, founded only in that century, made a rapid progress, and the latter was raised, along with Zurich, by Frederick II., in 1218, to the rank of a free imperial city. Several changes in the principal Helvetian families took place in the thirteenth century, before the end of which the house of Hapsburg, under the politic and enterpris- ing Kodolph and his son Albert, became possessed, through various titles, of a great ascendency in Switzerland. Of these titles none was more tempting to an ambitious chief than tliat of advocate to a convent. That sjjecious name conveyed with it a kind of indefinite guardiansliip, and right of interference, which frequently ended in reversing the conditions of the ecclesiastical sovereign and its vassal. But during times of feudal anarchy there was perha})S no other means to secure the rich abbeys from absolute spoliation; and the free cities in their early stage sometimes adopted the same policy. Among other advocacies, Albert obtained that of some convents which had estates in the valleys of Schweitz and Underwald. These sequestered regions in the heart of the Alps had been for ages the habitation of a pas- toral race, so happily forgotten, or so inaccessible in their fastnesses, as to have acquired a virtual independence, regu- lating their own affairs in their general assembly with a per- fect equality, though they acknowledged the sovereignty of the empire. The people of Schweitz had made Kodolph their advocate. They distrusted Albert, whose succession to his father's inheritance spread alarm through Helvetia. It soon appeared that their sus])icions were well founded. Besides the local rights Avhich his ecclesiastical advocacies gave him over part of the forest cantons, he ])retended, after his election to the empire, to send imperial bailiffs into their Germany. SWISS CONFEDERACY. 289 valleys, as administrators of criminal justice. This oppres- sion of a people unused to control, whom it was plainly the design of Albert to reduce into servitude, excited those gen- erous emotions of resentment which a brave and simple race have seldom the discretion to repress. Three men, Stauf- facher of Schweitz, Furst of Uri, Melchthal of Underwald, each with ten chosen associates, met by night in a seques- tered held, and swore to assert tlie common cause of their lib- erties, without bloodshed or injury to the rights of others. Their success was answerable to the justice of their under- taking ; the three cantons unanimously took up arms, p,nd expelled their oppressors without a contest. All)ert's as- sassination by his nephew, which followed soon afterwards, fortunately gave them leisure to consolidate their union (a.d. 1308). He was succeeded in the empire by Henry VII., jealous of the Austrian family, and not at all displeased at proceedings which had been accompanied with so little vio- lence or disrespect for the empire. But Leopold, duke of Austria, resolved to humble the peasants, who had rebelled against his father, led a considerable force into tlieir coun- try. The Swiss, commending themselves to Heaven, and de- termined rather to perish than undAgo that yoke a second time, though ignorant of regular discipline, and unprovided with defensive armor, utterly discomhted the assailants at Morgarten (a.d. I.'JIS). Tliis great victory, the Marathon of Switzerland, confirmed the independence of the three original cantons. After some years, Lucerne, contiguous in situation and alike in interests, was incorporated into their confederacy. It was far more materially enlarged about the middle of the fourteenth cen- tury by the accession of Zurich, Glaris, Zug, and Berne, all which took place within two years. The first and last of these cities had already been engaged in frequent wars with the Helvetian nobility, and their internal polity was alto- gether republican. They acquired, not independence, which they already enjoyed, but additional security, by this union with the Swiss, properly so called, who in deference to their power and rejmtation ceded to them the first rank in tlie league. The eight already enumerated are called the ancient cantons, and continued, till the late reformation of the Hel- vetic system, to possess several distinctive privileges and even rights of sovereignty over subject territories, in which the five cantons of Friburg, Soleure, IJasle, Schaft'hausen, and Appenzell did not participate. From this time the united 290 SWISS CONFEDERACY. ' Chap. V. cantons, but especially those of Berne and Zurich, began to extend their territories at the expense of the rural nobility. The same contest between these ])arties, with the same ter- mination, which we know generally to have taken place in Lombardy during the eleventh and twelfth centuries, may be traced with more minuteness in the annals of Switzerland. Like the Lombards, too, the Helvetic cities acted with policy and moderation towards the nobles whom they overcame, admitting them to the franchises of their community as co- burghers (a })rivilege Avhich virtually implied a defensive alliance against any assailant), and uniformly respecting the legal rights of property. Many feudal superiorities they ob- tained from the owners in a more peaceable manner, through purchase or mortgage. Thus the house of Austria, to which the extensive domains of the counts of Kyburg had devolved, abandoning, after repeated defeats, its hopes of subduing the forest cantons, alienated a great part of its possessions to Zurich and Berne And the last remnant of their ancient Helvetic territories in Argovia was wrested, in 1417, from Frederick, count of Tyrol, who, imprudently supporting Pope John XXIII. against the Council of Constance, had been put to the ban of the empfre. These conquests Berne could not be induced to restore, and thus com])leted the independence of the confederate republics. The other free cities, tliough not yet incorporated, and the few remaining nobles, whether lay or sjjiritual, of whom the Abbot of St. Gall was the principal, entered into separate leagues with different cantons. Switzer- land became, therefore, in the first part of the fifteenth cen- tury a free country, acknowledged as such by neighboring states and subject to no external control, though still compire- hended within the nominal sovereignty of the empire. The affairs of Switzerland occupy a very small space in the great chart of European history. But in some respects they are more interesting than the revolutions of mighty kingdoms. Nowhere besides do we find so many titles to our sympathy, or the union of so much virtue with so comj^lete success. In the Italian re})ublics a more splendid temple may seem to have been erected to liberty ; but, as we a[)i)roach, the ser- pents of faction hiss around her altar, and the form of tyranny flits among the distant shadows behind the shrine. Switzer- land, not absolutely blameless (for what re})ublic has been so?), but comparatively exempt from turbulence, usurpation, and injustice, has well deserved to emi)loy the native pen of an historian accounted the most eloquent of tlie last age, I Germany. SWISS TEOOPS. 291 Juliaun Muller. Other nations iisplayed an insuperable reso- lution in the defence of walled towns ; but the steadiness of the Swiss in the field of battle was without a parallel, unless we recall the memory of Lacedsemon. It was even established as a law that Avhoever returned from battle after a defeat should forfeit his life by the hands of the executioner. Six- teen hundred men, who had been sent to oppose a predatory invasion of the French in 1444, though they might have re- treated without loss, determined rather to perish on the spot, and fell amidst a far greater heap of the hostile slain. At the famous battle of Sempach in 1385, the last which Austria presumed to try against the forest cantons, the enemy's knights, dismounted from their horses, presented an impreg- nable barrier of lauces, which disconcerted the Swiss ; till Winkelried, a gentleman of Underwald, commending his wife and children to his countrymen, threw himself upon the oj^po- site ranks, and, collecting as many lances as he could gras]), forced a passage for his followers by burying them in his bosom. The burghers and peasants of Switzerland, ill provided with cavalry, and better able to dispense with it than the natives of champaign countries, may be deemed the principal restorers of the Greek and Roman tactics, which place the strength of armies in a steady mass of infantry. Besides their splendid victories over the dukes of Austria and their own neighboring nobility, they had repulsed, in the year 1375, one of those predatory bodies of troops, the scourge of Europe in that age, and to whose licentiousness kingdoms and free states yielded alike a passive submission. They gave the dauphin, after- wards Louis XL, who entered their country in 1444 with a similar body of ruffians, called Armagnacs, the disbanded mercenaries of the English war, sufficient reason to desist from his invasion and to respect their valor. That able prince formed, indeed, so high a notion of the Swiss, that he sedulously cultivated their alliance during the rest of his life. He was made abundantly sensible of the wisdom of this policy when he saw his greatest enemy, the Duke of Bur- gundy, routed at Granson and Morat, and his affairs irrecover- ably ruined, by these hardy republicans. The ensuing age is the most conspicuous, though not the most essentially glorious, in the history of Switzerland. Courted for the excellence of their troops by the rival sovereigns of Europe, and themselves too sensible both to ambitious schemes of dominion and to the thirst of money, the united cantons came to play a very prom- 292 SWISS INDEPENDENCE. Chap. V. inent part in the wars of Lombardy, Avith great military re- nown, but not without some impeachment of that sterlino- probity which had distinguished their earlier efforts for inde- pendence. These events, however, do not fall within my limits ; but the last year of the fifteenth century is a leading epoch, with which I shall close this sketch. Though the house of Austria had ceased to menace the liberties of Hel- vetia, and had even been for many years its ally, the Emperor Maximilian, aware of the important service he might derive from the cantons in his projects upon Italy, as well as of the disadvantage he sustained by their partiality to French in- terest, endeavored to revive the unextinguished supremacy of the empire. That supremacy had just been restored in Ger- many by the establishment of the Imperial Cliamber, and of a regular pecuniary contribution for its support, as well as for other purposes, in the Diet of Worms. The Helvetic cantons were summoned to yield obedience to these imperial laws ; an innovation, for such the revival of obsolete prerogatives must be considered, exceedingly hostile to their republican indepen- dence, and involving consequences not less material in their eyes, the abandonment of a line of policy which tended to en- rich, if not to aggrandize them. Their refusal to comply brought on a war, wherein the Tyrolese subjects of Maximiliah, and the Suabian league, a confederacy of cities in that prov- ince lately formed under the emperor's auspices, were princi- pally engaged against the Swiss. But the success of the latter was decisive; and after a terrible devastation of the frontiers of Germany, ])eace was concluded upon terms very honorable for Switzerland. The cantons were declared free from the jurisdiction of the Imperial Chamber, and from all contributions imposed by the Diet. Their right to enter into foreign alliance, even hostile to the empire, if it was not ex- pressly recognized, continued unimpaired in practice ; nor am I aware that they were at any time afterwards supposed to incur the crime of rebellion by such proceedings. Though, perhaps, in the strictest letter of public law, the Swiss cantons were not absolutely released from their subjection to the empire imtil the treaty of AVestphalia, their real sovereignty must be dated by an historian from the year when every prerog- ative which a government can exercise was finally abandoned. Gbeeks.Etc. commencement OF MODERN HISTORY. 293 CHAPTER VI. HISTORY OF THE GREEKS AND SARACENS. § 1. Rise of Mohammedism. § 2. Progress of Saracen Arms. § 3. Greek Empire. Decline of the Calii)hs. § 4. The Greeks recover Part of their Losses § 5. Tlie Turks. § 6. The Crusades. Capture of Constantinople by the Latins. Its Recov- ery by the Greeks. § 7. The Moguls. Tlie Ottoiiiaus. Timur. § 8. Capture of Constantinople by Mohammed II. §9. Alarm of Europe. § 1. The difficulty which occurs to us in endeavoring to fix a natural commencement of modern history even in the Western countries of Europe is much enhanced when we direct our attention to the Eastern Empire. But the ap[)earance of Mohammed, and the concj^uests of his disciples, present an epoch in the history of Asia still more important and more definite than the subversion of the Roman Empire in Europe ; and hence the boundary line between the ancient and modern divisions of Byzantine history will intersect the reign of Heraclius. That prince may be said to have stood on the verge of both hemis[)heres of time, whose youth was crowned with the last victories over the successors of Artaxerxes, and whose age was clouded by the first calamities of Mohammedan invasion.^ The ]n"evalence of Islam in the lifetime of its prophet, and duriug the first ages of its existeuce, was chiefly owing to the spirit of martial energy tliat he infused into it. The religion of Mohammed is as essentially a military system as the institu- tion of chivalry in the west of Europe. The peo})le of Aral)ia, a race of strong passions and sanguinary temper, inured to habits of pillage and murder, found in the law of their native prophet not a license, but a command, to desolate tlie world, and the promise of all that their glowing imaginations could anticipate of Paradise annexed to all in which they most de- lighted upon earth. Death, slavery, tribute, to unbelievers, were the glad tidings of the Arabian prophet. To the idol- aters, indeed, or those who acknowledged no special revelation, one alternative only was proposed, conversion or the sAvord. 1 For a fuller account of the events, briefly narrated in this chapti-r. see " Stu- dent's Gibbon," cli. xxy'ii., seq. 294 STATE OF THE GREEK EMPIRE. Chap. VI. The people of the Book, as they are termed in the Koran, or four sects of Christians, Jews, Magians, and Sabians, were permitted to redeem their adherence to their ancient law by the payment of tribute, and other marks of humiliation and servitude. But the limits which Mohammedan intolerance had prescribed to itself were seldom transgressed ; the word l)ledged to unbelievers was seldom forfeited ; and wdth all their insolence and oppression, the Moslem conquerors were mild and liberal in comparison with those who obeyed the pontiffs of Rome or Constantinople. § 2. At the death of Mohammed in 632 his temporal and religious sovereignty embraced, and was limited by, the Arabian peninsula. The Roman and Persian empires, en- gaged in tedious and indecisive hostility upon the rivers of Mesojjotamia and the Armenian mountains, were viewed by the ambitious fanatics of his creed as their quarry. In the very lirst year of Mohammed's immediate successor, Abu- beker, each of these mighty empires Avas invaded. The lat- ter opposed but a short resistance. The crumbling fabric of Eastern despotism is never secure against rajjid and total subversion ; a few victories, a few sieges, carried the Arabian arms from the Tigris to the Oxus, and overthrew, with the Sassanian dynasty, the ancient and famous religion they had professed. Seven years of active and unceasing wai-fare suf- ficed to subjugate the rich province of Syria, though defended by numerous armies and fortified cities (a.d. ()32-6."j9) ; and the caliph Omar had scarcely returned thanks for the accom- plishment of this conquest, when Amrou, his lieutenant, an- nounced to him the entire reduction of Egy])t. After some interval the Saracens won their way along the coast of Africa as far as the I'illars of Hercules, and a third province was ir- retrievably torn from the Greek erai)ire (a.d. C47-698). These Western conquests introduced them to fresh enemies, and ushered in more splendid successes ; encouraged by the dis- union of the Visigoths, and perhajis invited by treachery, Musa, the general of a master who sat beyond the opposite extremity of the IVIediterranean Sea, passed over into Spain, and Avithin about two years the name of JNIohammed was in- voked under the Pyrenees (a.d. 710). § 3. These conqiiests, wliich astonish the careless and superficial, are less per])lexing to a calm inquirer than their ces- sation ; the loss of half the Roman Empire, than the pres- ervation of the rest. The fame of Heraclius had withered in the Syrian war ; and his successors ai)peared as incapable GitKEKS, Etc. CALirilS OF BAGDAD. 295 to resist as they were unworthy to govern. But this de- praved people were preserved from destruction by the vices of their enemies, still more than by some intrinsic resources which they yet possessed. A rapid degeneracy enfeebled the victorious Moslem in their career. That irresistible en- thusiasm, that earnest and disinterested zeal of the com])an- ions of Mohammed, was in a great measure lost, even before the first generation had passed away. In the fruitful val- leys of Damascus and Bassora the Arabs of the desert forgot their abstemious habits. Rich from the tributes of an en- slaved people, the Mohammedan sovereigns knew no em})loy- ment of riches but in sensual luxury, and paid the price of volnptiious indulgence in the relaxation of their strength and energy. Under the reign of Moawiah, the fifth caliph, an he- reditary succession was substituted for the free choice of the faithful, by which the first representatives of the prophet had been elevated to power ; and this regulation, necessary, as it plainly was, to avert in some degree the dangers of schism and civil war, exposed the kingdom to the certainty of being often governed by feeble tyrants. But no regulation could be more than a temporary preservative against civil war. The dissensions which still sey)arate and render hostile the followers of Mohammed may be traced to the first events that ensued upon his death, to the rejection of his son-in-law Ali by the electors of Medina. Two reigns, those of Abu- beker and Omar, passed in external glory and domestic rev- erence ; but the old age of Othman was weak and imprudent, and the cous})irators against him established the first among a hundred precedents of rebellion and regicide. Ali was now chosen ; but a strong faction disputed his right ; and the Saracen empire was, for many years, distracted with civil war, among competitors who appealed, in reality, to no other decis- ion than that of the sword. The family of Ommiyah succeeded at last in establishing an unresisted, if not an undoubted, title. But rebellions were perpetually afterwards breaking out in that vast extent of dominion, till one of these revolters ac- quired by success a better name than rebel, and founded the dynasty of the Abbassides (a.d. 750). Damascus had been the seat of empire under the Ommi- ades ; it was removed by the succeeding family to their new city of Bagdad. There are not any names in the long line of caliphs, after the companions of Mohammed, more re- nowned in history than some of the earlier sovereigns who reigned in this capital — Almansor, Haroun Alraschid, and 29G DECLINE OF THE CALiniS. Cuap. VI. Alinumtiii. Their splendid ])alaces, their numerous guards, their treasures of gold and silver, the i)opulousness and wealth of their cities, fornii d a striking contrast to the rude- ness and poverty of the Western nations in the same age. In their court, learning, which the first Moslem had des})ised as unwarlike or rejected as profane, was held in honor. The Caliph Abnamtin especially was distinguished for his pat- ronage of letters ; the philosophical writings of Greece were eagerly sought and translated; the stars Avere numbered, the course of the planets was measured. The Arabians im- ])roved ui)on the science they borrowed, and returned it with abundant interest to Euroj)e in the communication of numeral figures and the intellectual language of algebra. Yet the merit of the Abbassides has been exaggerated by adulation or gratitude. After all the vague praises of hireling poets, which have sometimes been rejjeated in Europe, it is very rare to read the history of an Eastern sovereign unstained by atrocious crimes. No Christian government, exce})t perha])s that of Constantinople, exhibits such a series of tyrants as the caliphs of Bagdad, if deeds of blood, wrought through unbridlrd passion or jealous policy, may challenge the name of tyr- anny. Though the Abbassides have acquired more celebrity, they never attained the real strength of their predecessors. tJnder the last of the house of Ommiyah, one command was obeyed almost along the whole diameter of the known world, from the banks of the Sihon to the utmost promontory of Portugal. But the revolution which changed the succession of cali})lis pro- duced another not less im[)ortant. A fugitive of the van- (juished family, by name Abdalrahman, arrived in Spain ; and the ]\Ioslem of that country, not sharing in the prejudices Avhich had stirred n\) the Persians in favor of the line of Abbas, and conscious that their remote situation entitled them to indepen- dence, })roclaimed him Caliph of Cordova. There could be little hope of reducing so distant a dependency ; and the example was not unlikely to be imitated. In the reign of Haroun Alraschid two principalities were formed in Africa — of the Aglabites, who reigned over Tunis and Tripoli; and of the Edris'ites, in the western jjarts of Barbary. These yielded in about a century to the Fatimites, a more powerful dynasty, Avho afterwards established an empire in Egypt. The h)ss, however, of Spain and Africa was the inevitable effect of that immensely extended dominion, which their sepa- ration alone would not have enfeebled. But other revolutions Gkeeks, Etc. FATAL POLICY. 297 awaited it at home. In tlie history of the Abbassides of Bag- dad we read over again the decline of European monarchies, through their various systems of ruin ; and tind successive analogies to the insults of the barbarians towards imperial Home in the fifth century, to the ])ersonal insignihcance of the Merovingian kings, and to the feudal usurpations that dismem- bered the inheritance of Charlemagne. 1. Beyond the north- eastern frontier of the Saracen empire dwelt a warlike and })0\verful nation of the Tartar family, who defended the inde- Ijendence of Turkestan from the Sea of Aral to the great cen- tral chains of mountains. In the wars which the caliphs or their lieutenants waged against them many of these Turks were led into cg,ptivity, and dis})ersed over the em|)ire. Their strength and courage distinguished them among a peo})le grown effeminate by luxury ; and that jealousy of disaffection among his subjects so natural to an Eastern monarch might be an additional motive with the Caliph Motassem to form bodies of guards out of these prisoners. But his policy was fatally erroneous. More rude and even more ferocious than the Arabs, they contemned the feebleness of the caliphate, while they grasped at its riches. The son of Motassem, Mot- awakkel, was murdered in his palace by the barbarians of the North ; and his fate revealed the secret of the empire, that the choice of its sovereign had passed to their slaves. Degradation and death were frequently the lot of succeeding caliphs; but in the East the son leaps boldly on the throne which the blood of his father had stained, and the })r8etorian guards of Bagdad rarely failed to render a fallacious obedience to the nearest heir of the house of Abbas. 2. In about one hundred years after the introduction of the Turkish soldiers the sovereigns of Bagdad sunk almost into oblivion. Al Eadi, who died in 940, was the last of these that officiated in the mosque, that com- manded the forces in person, that addressed the people from the pul})it, that enjoyed the })omp and splendor of royalty. But he was the first who appointed, instead of a vizier, a new officer — a mayor, as it were, of the palace — with the title of Emir al Omra, commander of commanders, to whom he dele- gated by compulsion the functions of his office. This title was usually seized by active and martial spirits ; it was sometimes hereditary, and in effect irrevocable by the caliphs, whose names hardly ap})ear after this time in Oriental annals. 3. During these revolutions of the palace every province succes- sively shook oft' its allegiance ; new principalities were formed in Syria and Mesopotamia, as well as in Ivhorassan and Persia, 298 REVIVAL OF THE GREEK EMPIRE. Chap. VI. till the dominion of the Commander of the Faithful was liter- ally confined to the city of Bagdad and its adjacent territory. For a time some of these princes, who had been ap})ointed as governors by the caliphs, ])rofessed to respect his supremacy by naming him in the public jn-ayers and upon the coin ; but these tokens of dependence were gradually obliterated. § 4. Such is the outline of Saracenic history for three cen- turies after Mohammed ; one age of glorious conquest ; a second of stationary, but rather precarious, greatness ; a third of rapid decline. The Greek empire meanwhile survived, and almost recovered from the shock it had sustained. The posi- tion of Constantinople, chosen with a sagacity to which the course of events almost gave the appearance^ of prescience, secured her from any immediate danger on the side of Asia, and rendered her as little accessible to any enemy as any city which valor and patriotism did not protect. Yet in the days of Arabian energy she was twice attacked by great naval arm- aments. The first siege, or rather blockade, continued for seven years (a.d. 668-G75) ; the second, though shorter, was more terrible, and her walls, as well as her port, were actually invested by the combined forces of the Caliph Waled, under his brother Moslema (a.d. 71G-718). The final discomfiture of these assailants showed the resisting force of the empire, or rather of its capital ; but perhaps the abandonment of such maritime enterprises by the Saracens may be in some measure ascribed to the removal of their metropolis from Damascus to Bagdad. But the Greeks in their turn determined to dispute the" command of the sea. By possessing the secret of an inex- tinguishal)le fire, they fought on sujjerior terms : their wealth, l)erha})s their skill, enabled them to employ larger and better ai)pointed vessels ; and they ultimately exijelled their enemies from the islands of Crete and Cyprus. By land they were less desirous of encountering the Moslem. But the increasing dis- tractions of the East encouraged two brave usurpers, Nicepho- rus Phocas and John Zimisces to attempt the actual recovery of the lost provinces (a.d. 903-975). They carried the Koman arms (one may use the term with less reluctance than usual) over Syria ; Antioch and Aleppo were taken by storm ; Damas- cus submitted; even the cities of Mesopotamia, beyond the ancient boundary of the Euphrates, were added to the trophies of Zimisces, who unwillingly spared the capital of the caliph- ate. From such distant conquests it was expedient, and indeed necessary, to withdraw ; but Cilicia and Antioch were perma- nently restored to the empire. At the close of the tenth, century GbekivS, Etc. liEVIVAL OF THE GlIEEK EiMPIUE. 299 the emperors of Constantinople possessed the best and greatest portion of the modern king'dom of Naples, a part of ^Sicily, the whole European dominions of the Ottomans, the province of Anatolia or Asia Minor, with some part of Syria and Armenia. § o. These successes of the Greek empire were certainly much rather due to the weakness of its enemies than to any revival of national courage and vigor ; yet they would j^robably have been more durable if the contest had been only with the caliphate, or the kingdoms derived from it. But a new actor was to apjjear on the stage of Asiatic tragedy. The same Turkish nation, the slaves and captives from which had be- come arbiters of the sceptre of Bagdad, passed their original limits of the laxartes or Sihon. The sultans of Ghazna., a dynasty whose si)lendid conquests were of very short duration, had deemed it politic to divide the strength of these formidable allies by inviting a part of them into Khorassan. Tliey cov- ered that fertile province with their pastoral tents, and beck- oned tliei)- compatriots to share the riches of the South. The Ghaznevides fell the earliest victims (a.d. 1038) ; but Persia, violated in turn by every conqueror, Avas a tempting and un- resisting prey. Togrol Bek, the founder of the Seljukian dy- nasty of Turks, overthrew the family of Bowides, wlio had long reigned at Is^jahan, respected the i)ageant of Mohamme- dan sovereignty in the Caliph of Bagdad, embraced, witli all his tribes, the religion of the van(|uished, and commenced the attack upon Christendom by an irruption into Armenia (a.d. 1038-lOGo). His nephew and successor. Alp Arslan, defeated and took prisoner the Em})eror Romanus Diogenes (a.d. 1071); and the conquest of Asia INIinor was almost completed by princes of the same family, the Seljukians of llum,^ who were permitted by Malek Shah, the third sultan of the Turks, to form an independent kingdom, of Avhich Iconium Avas the capital. Through their own exertions, and the sellish impolicy of rival competitors for the throne of Constantinople, who bartered the strength of the empire for assistance, the Turks became masters of the Asiatic cities and fortified passes ; nor did there seem any obstacle to the invasion of Eurojje. § G. In this state of jeopardy, the Greek Em})ire looked for aid to the nations of the West, and received it in fuller meas- ure than was expected, or perhaps desired. The deliverance of Constantinople was, indeed, a very secondary object with the crusaders. But it was necessarily included in their scheme of operations, which, though they all tended to the recovery 2 RQm, i.e., country of tlie Konians. 000 C02s'QUEttT« OV TUE TURKS. CuAP. VI. of Jerusalem, must commence witli the first enemies that lay on their line of march. The Turks were entirely defeated, their capital of Nice restored to the empire. As the Franks passed onward, the Emperor Alexius Comnenus trod on their footsteps, and secured to himself the fruits for which their en- thusiasm disdained to wait. He regained possession of the strong ])laces on the ^gean shores, of the defiles of Bithynia, and of the entire coast of Asia Minor, both on the Euxine and Mediterranean seas, which the Turkish armies, composed of cavalry and unused to regular warfare, could not recover. So much must undoubtedly be ascribed to the first crusade. But 1 taink that the general effect of these expeditions has been overrated by those who consider them as having permanently retarded the progress of the Turkish ])ower. The Christians in I'alestine and Syria were hardly in contact with the Sel- jukian kingdom of Rum, the only enemies of the empire. '( )ther causes are adecjuate to ex])lain the equipoise in which the balance of dominion in Anatolia Avas kept during the twelfth century ; the valor and activity of the two Comneni, John and Manuel, especially the former ; and the frequent partitions and internal feuds, through which the Seljukians of Iconium, like all other Oriental governments, became incapable of foreign aggression. But whatever obligation might be due to the first crusaders from the Eastern Empire was cancelled by their descendants one hundrinl years afterwards, when the fourth in numV-er of those expeditions was turned to the subjugation of Constanti- nople its(4f. One of those domestic revolutions which occur periietually in Byzantine history had placed an usurper on the imperial tlirone. The lawful monarch was condemned to l)lindness and a prison; but the heir escaped to recount his misfortunes to the fleet and army of crusaders assembled in the Dalmatian port of Zara. This armament had been col- lected for the usual purposes, and through the usual motives, temporal and spiritual, of a crusade; the military force chiefly consisted of French nobles ; the naval Avas sup})lied by the Republic of Venice, whose doge commanded personally in the expedition. It was not, apparently, consistent with the primary object of retrieving the Christian affairs in Palestine to interfere in the government of a Christian empire ; but the temptation of punishing a faithless people, and the hoj)e of assistance in their subsequent operations, prevailed. They turned their prows up the Archipelago, and notwithstanding the vast population and defensible strength of Constantinople, Greeks, Etc. PARTITION OF THE EMPIRE. oOl comi)elled. the usurper to fly, and tlie citizens to surrentler. But animosities springing from religious schism and national jealousy were not likely to be allayed by such remedies ; the Greeks, wounded in their pride and bigotry, regarded the legitimate emperor as a creature of their enemies, ready to sacrifice their Church, a sti})ulated condition of his restoration, to that of liome. In a few months a iicav sedition and con- spiracy raised another usurper in defiance of the crusaders' army encamped without the walls. The siege instantly re- commenced, and after three months the city of Constantinople was taken by storm (a.d. 1204). The lawful emperor and his son had peiished in the rebel- lion that gave occasion to this catastroi)he, and there remained no right to interfere with tliat of conquest. But the Latins were a promiscuous multitude, and what their independent valor had earned was not to be transferred to a single master. Though the name of emperor seemed necessary for the gov- ernment of Constantinople, the unity of despotic ])ower was very foreign to the principles and interests of the crusaders. In their selfish schemes of aggrandizement they tore in pieces the Greek empire. One-fourth only was allotted to the em- peror, three-eighths were the share of the llepublic of Venice, and the remainder was divided among the chiefs. Baldwin, count of Flanders, obtained the imperial title, with the feudal sovereignty over the minor principalities. A monarchy thus dismembered had little prospect of honor or durability. The Latin emperors of Constantinople were more contemptible and unfortunate, not so much from personal character as i)olitical weakness, than their predecessors ; their vassals rebelled against sovereigns not more powerful than themselves ; the Bulgarians, a nation who, after being long formidable, had been subdued by the imperial arms, and only recovered inde- pendence on the eve of the Latin con(|uest, insulted their capi- tal ; the Greeks viewed them with silent hatred, and hailed the dawning deliverance from the Asiatic coast. On that side of the Bosporus the Latin usurpation was scarcely for a moment acknoAvledged ; Nice became the seat of a Greek dynasty, who reigned with honor as far as the Mseander ; and, crossing into Europe, after having established their dominion throughout Eoumania and other provinces, ex})elled the last Latin emjjerors from Constantinople in less than sixty years from its capture (a.d. 12()1). § 7. During the reign of these Greeks at Nice they had fortunately little to dread on the side of their former enemies, 302 INVASION OF ASIA. Chap. VI. and were generally on terms of friendship with the Seljukians of Iconium. That monarcliy, indeed, had sufficient objects of appreliension for itself. Their own example in changing the upland plaiils of Tartary for the cultivated valleys of the south was imitated in the thirteentli century by two succes- sive hordes of Northern barbarians. The Karismians, whose tents had been pitched on the lower Oxus and Caspian Sea, availed themselves of the decline of the Turkish power to establish their dominion in Persia, and menaced, though they did not overthrow, the kingdom of Iconium. A more tremen- dous storm ensued in the irruption of Moguls under the sons of Zingi.3 Khan. From the farthest regions of Chinese Tar- tary issued a race more fierce and destitute of civilization than those who had preceded, whose numbers were told by hundreds of thousands, and whose only test of victor}^ was devastation. All Asia, from the Sea of China to the Euxine, wasted beneath the locusts of the North. They annihilated the phantom of authority which still lingered with the name of caliph at Bagdad. They reduced into dependence, and finally subverted, the Seljukian dynasties of Persia, Syria, and Iconium. The Turks of the latter kingdom betook them- selves to the mountainous country, where they formed several petty princii)alities, which subsisted by incursions into the territory of the INIoguls or the Greeks. The chief of one of these, named Othman, at the end of the thirteenth century, penetrated into the province of Bithynia, from which his pos- terity was never withdrawn. The em})ire of Constantinople had never recovered the blow it received at the hands of the Latins. Most of the islands in the Archipelago, and the provinces of proper Greece, from Tliessaly southward, were still possessed by those invaders. The wealth and naval power of the empire had passed into the hands of the maritime republics ; Venice, Genoa, Pisa, and Barcelona were enriched by a commerce which they carried on as independent states within the precincts of Constantino] )le, scarcely deigning to solicit the permission or recognize the supremacy of its master. In a great battle fought under the walls of the city, between the Venetian and Genoese fleets, the weight of the Roman Empire, in Gibbon's expression, was scarcely felt in the balance of these opulent and powerful republics (a.d. 1352). Eight galleys Avere the contribution of the Emperor Cantacuzene to his Venetian allies ; and upon their defeat he submiLted to the ignominy of excluding them forever from trading in his dominions. Meantime the remains Greeks, Etc. THE TARTARS OR MOGULS. 303 of tlie empire in Asia were seized by the independent Turkish dynasties, of which the most ilhistrious, that of the Ottomans, occupied the province of Bithynia (a.d. 1431). Invited by a Byzantine faction into Europe about the middle of the four- teentli century, they fixed themselves in the neighborhood of the capital, and in the thirty years' reign of Amurath I. sub- dued, with little resistance, the province of Roumania and the small Christian kingdoms that had been formed on the lower Danube. Bajazet, the successor of Amurath, reduced the independent emirs of Anatolia to subjection, and, after long threatening Constantinople, invested it by sea and land (a.d. I.'5y6). The Greeks called loudly upon their brethren of the West for aid against the common enemy of Christendom ; but the flower of French chivalry had been slain or taken in the battle of Nicopolis, in Bulgaria, where the King of Hungary, notwithstanding the heroism of these volunteers, was entirely defeated by Bajazet. The Emperor Manuel left his capital with a faint hope of exciting the courts of Europe to some decided efforts by personal representations of the danger ; and, during his absence, Constantinople was saved, not by a friend indeed, but by a power more formidable to her enemies than to herself. The loose masses of mankind, that, without laws, agricul- ture, or fixed dwellings, overspread the vast central regions of Asia, have, at various times, been impelled by necessity of subsistence, or through the casu-al appearance of a command- ing genius, upon the domain of culture and civilization. Two principal roads connect the nations of Tartary with those of the west and south ; the one into Europe, along the Sea of Azoff and northern coast of the Euxine ; the other across the interval between the Bukharian Mountains and the Caspian into Persia. Four times at least within the period of authentic history the Scythian tribes have taken the former course, and poured themselves into Europe, but each wave was less effect- ual than the preceding. The first of these was in tlie fourth and fifth centuries, for we may range those rapidly successive migrations of the Goths and Huns together, when the Roman Empire fell to the ground, and the only boundary of barbarian conquest was the Atlantic Ocean upon the shores of Portugal. The second wave came on with the Hungarians in the tenth century, whose ravages extended as far as the southern prov- inces of France. A third attack was sustained from the Moguls, under the children of Zingis, at the same ]ieriod as that which overwlielmed Persia. The Russian monarchy was 304 DANGER OF CONSTANTINOPLE. Chap. XL destroyed in this invasion, and for two hundred years that great country hiy prostrate under the yoke of the Tartars. As they advanced, Pohind and Hungary gave little opposition, and the farthest nations of Europe were appalled by the tem- pest. But Germany was no longer as she had been in the anarchy of the tenth century ; tlie Moguls were unused to resistance, and still less inclined to regular warfare ; they retired before the Emperor Frederick II., and the utmost points of their western invasion were the cities of Lignitz, in Silesia, and Neustadt, in Austria (a.d. 1245). In the fourth and last aggression of the Tartars their progress in Europe is hardly perceptible ; the Moguls of Timur's army could only boast the destruction of Azoff and the pillage of some Russian prov- inces. Timur, the sovereign of these Moguls and founder of their second dynasty, which has been more permanent and cel- el)rated than that of Zingis, had been the prince of a small tribe in Transoxiana, between the Gihon and Sirr, the doubt- ful frontier of settled and pastoral nations. His own energy and the weakness of his neighbors are sufficient to explain the revolution he effected. Like former conquerors, Togrol Kek and Zingis, he chose the road through Persia ; and, meeting little resistance from the disordered governments of Asia, extended his empire on one side to the Syrian coast, while by successes still more renowned, though not belonging to this place, it reached, on the other, to the heart of Hindttstan. In his old age the restlessness of ambition impelled him against the Turks of Anatolia. Bajazet hastened from the siege of Constantinople to a more perilous contest ; his defeat and cap- tivity in the plains of Angora clouded for a time the Ottoman crescent, and preserved the wreck of the Greek Eni|)ire for fifty years longer (a.d. 1402). § 8. The Moguls did not improve their victory ; in the western parts of Asia, as in Ilindostan, Timur was but a bar- barian destroyer, though at Samarcand a sovereign and a legis- lator. He gave up Anatolia to the sons of Bajazet ; but the unity of their power was broken ; and the Ottoman kingdom, like those which had preceded, experienced the evils of par- tition and mutual animosity. Eor about twenty years an opportunity Avas given to the (Jreeks of recovering part of their losses ; but they were incapable of making the best use of this advantage, and when Amurath II. reunited under his vigorous sceptre the Ottoman monarchy, Constantinople was exposed to another siege and to fresh losses (a.d. 1421). Her walls, how- ever, repelled the enemy ; and during the reign of Amurath Greeks, Etc. ALARM IN EUROPE. ' 305 she had leisure to repeat those signals of distress which the princes of Christendom refused to observe. Every province was in turn subdued — every city opened her gates to the con- queror : the limbs were lojjped off one by one ; but the pulse still beat at the heart, and the majesty of the Roman uame was idtimately confined to the walls of Constantinople. Be- fore Mohammed II. i)lanted his cannon against them, he had completed every smaller conquest and deprived the expiring empire of every hope of succor or delay. It was necessary that Constantinople should fall ; but the magnanimous resignation of her emperor bestows an honor upon her fall which her pros- perity seldom earned. The long deferred but inevitable moment arrived, and the last of the Caesars (I will not say of the Palaeologi) folded round him the imperial mantle, and re- membered the name which he represented in the dignity of heroic death (a.d. 14r),'>). It is thus that the intellectual principle, when enfeebled by disease or age, is found to rally its energies in the presence of death, and pour the radiance of unclouded reason around the last striiggles of dissolution. § 9. Though the fate of Constantinople had been protracted beyond all reasonable expectation, the actual intelligence oper- ated like that of sudden calamity. A sentiment of consterna- tion, perhaps of self-reproach, thrilled to the heart of Christendom. There seemed no longer any thing to divert the Ottoman armies from Hungary ; and if Hungary should be subdued, it was evident that both Italy and the German Em- pire were exposed to invasion. A general union of Christian powers was required to withstand this common enemy. But the popes, who had so often armed them against each other, wasted their spiritual and political counsels in attempting to restore unanimity. War was proclaimed against the Tiirks at the Diet of Frankfort, in 1454 ; but no efforts were made to carry the menace into execution. Xo prince could have sat on the imperial throne more unfitted for the emergency than Frederick III. ; his mean spirit and narrow capacity exposed him to the contempt of mankind — his avarice and duplicity insured the hatred of Austria and Hungary. During the pa- pacy of Pius II., whose heart was thoroughly engaged in this legitimate crusade, a more specious attempt was made by con- vening a European congress at Mantua. Almost all the sov- ereigns attended by their envoys : it was concluded that 50,000 men-at-ai-ms should be raised, and a tax levied for three years of one-tenth from the revenues of the clergy, one-thirtieth from those of the laity, and one-twentieth from the capital of 306 • OTTOMAN CONQUESTS SUSPENDED. Chap. VI. the Jews (a.d. 1459). Pius engaged to head this armament in person ; but when he appeared next year at Ancona, the ap- pointed place of embarkation, the princes had failed in all their promises of men and money, and he found only a headlong crowd of adventurers, destitute of every necessary, and expect- ing to be fed and paid at the pope's expense. It was not by such a body that Mohammed could be expelled from Constanti- nople. If the Christian sovereigns had given a steady and sin- cere co-operation, the contest would still have been arduous and uncertain. In the early crusades the superiority of arms, of skill, and even of discipline, had been uniformly on the side of Europe. But the present circumstances were far from similar. An institution, begun by the first and perfected by the second Amurath, had given to the Turkish armies what their enemies still wanted, military subordination and veteran experience. Aware, as it seems, of the real superiority of Europeans in war, these sultans selected the stoutest youths from their Bulgarian, Servian, or Albanian captives, who were educated in habits of martial discipline, and formed into a reg- ular force with the name of Janizaries. After conquest had put an end to personal captivity, a tax of every fifth male child was raised upon the Christian population for the same i)urpose. The arm of Europe was thus turned upon herself; and the Western nations must have contended with troops of hered- itary robustness and intrepidity Avhose emulous enthusiasm for the country that had adopted them was controlled by habitual obedience to their commanders. Yet forty years after the fall of Constantinople, at the epoch of Cliarles VIII. 's expedition into Italy, the just ap- prehensions of European statesmen might have gradually subsided. Except the Morea, Negropont, and a few other unimportant conquests, no real progress had been made by the Ottomans. Mohammed II. had been kept at bay by the Hungarians ; he had been repulsed with some ignominy by tlio knights of St John from the island of Ehodes. A petty cliieftain defied this mighty conqueror for twenty years in the mountains of Epirus ; and the persevering courage of his desultory warfare with such trifling resources, and so little pros])ect of ultimate success, may justify the exaggerated ad- miration with which his contemporaries honored the name of Scanderbeg. Once only the crescent was displayed on the Calabrian coast; but the city of Otranto remained but a year in the jwssession of Mohammed (a.d. 14 et antecessoruin suorum, Uni et Trino Deo immoUivit." (Gale, XV., Script, iii., 156.) It is really difticult to infer anything from such a passage; but whatever the writer may have meant, or whatever truth there may be in his story, it seems impossible to strain his words into a grant of tithes. 3 The Church was often compelled to grant leases of her lands, under the name of precari(B, to laymen who probably rendered little or no service in return, though a rent or ce7isus was expressed in the instrument. These /irecflrio; seem to have been for life, but were frequently renewed. They are not to be confounded with' terrcB censuales, or lands let to a tenant at rack-rent, which of course formed a considera- ble branch of revenue. The grant was called prerarbi from being obtained at the prayer of the grantee : and the uncertainty of its renewal seems to have given rise to the adjective precarious. In the ninth century, though the pretensions of the bish- ops were never higher, the Church itself was more pillaged under pretext of these vrecarice, and in other ways, than at any former time. EccLES. PowEU. ECCLESIASTICAL AUTHOEITY. 313 lamentation over the plunder of ecclesiastical possessions. The parochial tithes, especially, as the hand of robbery falls heaviest upon the weak, were exposed to unlawful seizure. In the tenth and eleventh centuries nothing was more common than to see the revenues of benefices in the hands of lay im- ^n-opriators, who employed curates at the cheapest rate, an abuse that has never ceased in the Church. Both the bishops and convents were obliged to invest powerful lay protectors, under the name of advocates, with considerable fiefs, as the price of their assistance against depredators. But these advo- cates became too often themselves the spoilers, and oppressed the helpless ecclesiastics for whose defence they had been en- gaged. If it had not been for these drawbacks, the clergy must, one would imagine, have almost acquired the exclusive ])roperty of the soil. They did enjoy, according to some authorities, nearly one half of England, and, I believe, a greater proportion in some countries of Europe. They had reached, })erhaps, their zenith in respect of territorial property about the conclusion of the twelfth century.^ After that time the disposition to enrich the clergy by pious donations grew more languid, and was put under certain legal restraints, to which I shall hereafter advert ; but they became rather more secure from forcible usurpations. § 3. The acquisitions of wealth by the Church were hardly so remarkable, and scarcely contributed so much to her great- ness, as those innovations upon the ordinary course of justice which fall under the head of ecclesiastical jurisdiction and immunity. Episcopal jurisdiction, properly so called, may be considered as depending upon the choice of litigant parties, ui)on tlnnr condition, and upon the subject-matter of their differences. 1. ArhltrativG Aiiilioriti/. — The arljitrative authority of eccle- siastical i^astors, if not coeval with Christianity, grew up very early in the Cluirch, and was natural, or even necessary, to an insulated and persecuted society.^ Accustomed to feel a strong aversion to the imperial tribunals, and even to consider a recurrence to them as hardly consistent with their profession, the early Christians retained somewhat of a similar prejudice, even after the establishment of their religion. The arbitra- tion of their bishops still seemed a less objectionable mode of settling differences. And this arbitrative jurisdiction was powerfully supported by a law of Constantine, which directed * Tlie great age of monasteries in England was the reigns of Henry I., Stephen, and Henry II. 5 See 1 Corinth, vi.,4. 314 ECCLESIASTICAL AUTHOIUTY. Chap. VII. Tart L the civil magistrate to enforce the execution of episcopal awards. But the Church had no jurisdiction in questions of a temporal nature, except by means of the joint reference of con- tending parties. 2. Coercive Authoriti/. — If it Avas considered almost as a general obligation upon the primitive Christians to decide their civil disputes by internal arbitration, much more would this be incumbent upon the clergy. The canons of several councils, in the fourth and lifth centuries, sentence a bishop or priest to deposition who should bring any suit, civil or even criuunal, before a secular magistrate. This must, it should appear, be confined to causes where the defendant was a clerk ; since tlie ecclesiastical court had hitherto no coercive jurisdic- tion over the laity. But the early Merovingian kings adopted the exclusive jurisdiction of the bishop over causes wherein clerks were interested, without any of the checks which Jus- tinian had provided. Many laws enacted during their reigns, and under Charlemagne, strictly prohibit the temi)oral magis- trates from entertaining complaints against the children of the Church. This jurisdiction over the civil causes of clerks was not immediately attended with an equally exclusive cognizance of criminal offences imputed to them, wherein the state is so deeply interested, and the Church could inflict so inadequate a })unishnient. Justinian a})pears to have reserved such offences for trial before the imperial magistrate, though with a material provision that the sentence against a clerk should not be exe- cuted without the consent of the bishop or the final decision of the emperor. The bishop is not expressly invested with this controlling power by the laws of the IMerovingians ; but they enact that lie must be present at the trial of one of his clerks ; which probably was intended to declare the necessity of his concurrence in the judgment. The episcopal order was, indeed, absolutely exempted from secular jurisdiction by Justinian ; a ])rivilege which it had vainly endeavored to establish under the eaidier emperors. France permitted the same immunity ; Chili)eric, one of tlie most arbitrary of her kings, did not ven- ture to charge some of his bishops with treason, except before a council of their brethren. Finally, Charlemagne seems to have extended to the whole body of the clergy an absolute exemption from the judicial authority of the magistrate. 3. The character of a cause, as well as of the parties engaged, might bring it within the limits of ecclesiastical jurisdiction. In all questions simply religious the Church had an original EccLKS. Power. rOLITICAL POWER OF CLERGY. 315 right of decision ; in those of a temporal nature the civil magistrate had, by the imperial constitution, as exclusive an authority. Later ages witnessed strange innovations in this respect, when the spiritual courts usurped, under sophistical pretences, almost the wliole administration of justice. But these encroachments were not, 1 ap)})rehend, very striking till the twelfth century ; and as about the same time measures, more or less vigorous and successful, began to be adopted in order to restrain them, I shall defer this j)art of tlie subject for the present. § 4. In this sketch of the riches and jurisdiction of the hierarchy, I may seem to have imj)lied their political iuHu- ence, which is naturally connected with the two former. They possessed, however, more direct means of acquiring temporal power. Even under the lloman emperors they had found their roads into palaces ; but they assumed a far more decided influence over the new kingdoms of the West. They were en- titled, in the first place, by the nature of those free govern- ments, to a privilege unknown under the imperial despotism, that of assisting in the deliberative assemblies of the nation. Councils of bishops, such as has been convoked by Constantine and his successors, were limited in their functions to decisions of faith or canons of ecclesiastical discipline. But the North- ern nations did not so well preserve the distinction between secular and spiritual legislation. The laity seldom, perliaps, gave their suffrage to the canons of the Church ; but the Church was not so scrupulous as to trespassing upon the prov- ince of the laity. Many provisions are found in the canons of national and even provincial councils which relate to the tem- poral constitution of the state. Thus one held at Calcluith (an unknown place in England), in 787, enacted that none but legitimate princes sliould be raised to the throne, and not svich as were engendered in adultery or incest. But it is to be observed that, although this synod was strictly ecclesiastical, being summoned by the pope's legate, yet the kings of IMercia and Northumberland, with many of their nobles, confirmed tlie canons by their signature. The bishops acquired and retained a great part of their as- cendency by a very respectable instrument of power — intel- lectual superiority. As they alone were acquainted with the art of writing, they were naturally intrusted with political correspondence, and Avith the ft^aming of the laws. As they alone knew the elements of a few sciences, the education of royal families devolved iipon them as a necessary duty. lu 316 SUPREMACY OF THE STATE. Chap. VII. Part I. the fall of Rome, their influence upon the barbarians wore down the asperities of conquest, and saved the provincials half the shock of that tremendous revolution. As captive Greece is said to have subdued her Roman conqueror, so Rome, in her own turn of servitude, cast the fetters of a moral captivity upon the fierce invaders of the North. Chiefly through the exertions of the bishops, w^hose ambition may be forgiven for its ett'ects, her religion, her language, in part even her laws, were transplanted into the courts of Paris and Toledo, which became a degree less barbarous by imitation. § 5. jSTotwithstanding, however, the great authority and privileges of the Church, it was decidedly subject to the su- premacy of the crown, both during the continuance of the Western Empire and after its subversion. The emperors con- voked, regulated, and dissolved universal councils ; the kings of France and Spain exercised the same right over the synods of their national churches. The Ostrogoth kings of Italy fixed by their edicts the limits within which matrimony was pro- hibited on account of consanguinity, and granted dispensations from them. Though the Roman emperors left episcopal elec- tions to the clergy and people of the diocese, in which they were followed by the Ostrogoths and Lombards, yet they often interfered so far as to confirm a decision or to determine a contest. The kings of France went farther, and seem to have invariably either nominated the bishops, or, what was nearly tantamount, recommended their own candidate to the electors. § 6. But the sovereign who maintained with the greatest vigor his ecclesiastical supremacy was Charlemagne. Most of the capitularies of his reign relate to the discipline of the Church; principally, indeed, taken from the ancient canons, but not the less receiving an additional sanction from his au- thority. Some of his regulations, which appear to have been original, are such as men of High-Church principles would, even in modern times, deem infringements of spiritual inde- pendence ; that no legend of doubtful authority should be read in the churches, but only the canonical books, and tliat no saint should be honored whom tlie whole Church did not ac- knowledge. These were not passed in a synod of bishops, but enjoined by the sole authorit}' of the emperor, who seems to have arrogated a legislative power over the Church which he did not possess in temporal affairs. Mam' of his other laws relating to the ecclesiastical constitution are enacted in a gen- eral council of the lay nobility as well as of prelates, and are so blended with those of a secular nature, that the two orders EccLES. PowEii. PRETENSIONS OF THE HIERARCHY. 317 may appear to have equally consented to the whole. His father Pepin, indeed, left a remarkable precedent in a council held in 744, where the Nicene faith is declared to be estab- lished, and even a particular heresy condemned, with the consent of the bishops and nobles. But whatever share we may imagine the laity in general to have had in such matters, Charlemagne himself did not consider even theological decis- ions as beyond his province ; and, in more than one instance, manifested a determination not to surrender his own judgment, even in questions of that nature, to any ecclesiastical authority. § 7. It is highly probable, indeed, that an ambitious hie- rarchy did not endure without reluctance this imperial su- premacy of Charlemagne, though it was not expedient for them to resist a prince so formidable, and from whom they had so much to expect. l>ut their dissatisfaction at a scheme of government incompatible with their own objects of perfect independence produced a violent recoil under Louis the Debo- nair, who attempted to act the censor of ecclesiastical abuses with as much earnestness as his father, though with very inferior qualifications for so delicate an undertaking. The bishops, accordingly, were among the chief instigators of tliose numerous revolts of his children which harassed this emperor. They set, upon one occasion, the first example of an usurpation which was to become very dangerous to society — the deposi- tion of sovereigns by ecclesiastical authority. Louis, a prisoner in the hands of his enemies, had been intimidated enough to undergo a public penance ; and the bishops pretended that, according to a canon of the Church, he was incapable of return- ing afterwards to a secular life or preserving the character of sovereignty. Circumstances enabled him to retain the emjiire in defiance of this sentence ; but the Church had tasted the pleasure of trampling upon crowned heads, and was eager to repeat tlie experiment. Under the disjointed and feeble ad- ministration of his posterity in their several kingdoms, the bishops availed themselves of more than one opportunity to exalt their temjioral power. Those weak Carlovingian princes, in their mutual animosities, encouraged the pretensions of a common enemy. Thus Charles the Bald and Louis of Bavaria, having driven their brother Lothaire from his dominions, held an assembly of some bisliops, vrho adjudged him unworthy to reign, and, after exacting a promise from the two allied brothers to govern better than he had done, permitted and commanded them to divide his territories. After concurring in this unprecedented encroachment, Charles the Bald had 318 ENCROACHMENTS OF THE CHURCH. Ch. VII. Tt. I. little right to complain when, some years afterwards, an assem- bly of bisliops declared himself to have forfeited his crown, released liis subjects from their allegiance, and transferred his kingdom to Louis of Bavaria. But, in truth, he did not pre- tend to deny the principle which he had contributed to main- tain. Even in his own behalf he did not appeal to the rights of sovereigns, and of the nations whom they represent. " No one," says this degenerate grandson of Charlemagne, " ought to have degraded me from the throne to which I was con- secrated, until at least I had been heard and judged by the bishops, through whose ministry I was consecrated, who are called the thrones of God, in which God sitteth, and by whom he dispenses his judgments ; to whose paternal chastisement I was willing to submit, and do still submit myself." These passages are very remarkable, and afford a decisive proof that the power obtained by national churches, through the superstitious prejudices then received, and a train of favor- able circumstances, was as dangerous to civil government as the subsequent usurpations of the Roman j^ontiff, against which Protestant writers are apt too exclusively to direct their animadversions. Voltaire, I think, has remarked that the ninth century was the age of the bishops, as the eleventh and twelfth were of the popes. It seemed as if Europe was about to pass under as absolute a domination of the hierarchy as had been exercised by the priesthood of ancient Egypt or the Druids of Gaul. Thus the Bishop of Winchester, presiding as papal legate at an assembly of the clergy in 1141, during the civil war of Stephen and Matilda, asserted the right of electing a king of England to appertain principally to that order ; and by virtue of this unprecedented claim, raised Matilda to the throne. England, indeed, has been obseqiuous, beyond most other countries, to the arrogance of her hierarchy, especially during the Anglo-Saxon period, when the nation was sunk in ignorance and effeminate superstition. Every one knows the stor}' of King Edwy in some form or other, though I believe it impossible to ascertain the real circumstances of that contro- verted anecdote. But, upon the supposition least favorable to the king, the behavior of Archbishop Odo and Dunstan Avas an intolerable outrage of spiritual tyranny.^ § 8. But, while the prelates of these nations, each Avithin '• Catholic writers, for the most part, contend that Elgiva was the mistress and not the wife of Edwy; but it is impossible with the extant evidence to arrive at any cer- tain conchision upon tlie subject. Wliat is manifest alone is, tliat a young Iting was persecuted and dethroned by the insoleuce of monkery exciting a superstitious peo- ple against him. EccLES. Power. RISE OF THE PAPAL POWER. 319 his respective sphere, were prosecuting their system of en- croachment upon the laity, a new scheme was secretly form- ing within the bosom of the Church, to inthral both that and the temporal governments of the world under an ecclesiastical monarch. Long before the earliest epoch that can be fixed for modern history, and, indeed, to speak fairly, almost as far back as ecclesiastical testimonies can carry us, the bishops of Rome had been venerated as first in rank among the rulers of the Church. The nature of this primacy is doubtless a very controverted subject. It is, however, reduced by some moder- ate Catholics to little more than a precedency attached to the See of Rome in consequence of its foundation by the chief of the apostles, as well as the dignity of tlie imperial city. A sort of general superintendence was admitted as an atti'ibute of this primacy, so that the bishops of Rome Avere entitled, and indeed bound, to remonstrate, when any error or irregu- larity came to their knowledge, especially in the Western churches, a greater part of which had been planted by them, and were connected, as it were by filiation, Avitli the common capital of the Roman Empire and of Christendom. Various causes had a tendency to prevent the bishops of Rome from augmenting their authority in the East, and even to diminish that which they had occasionally exercised ; the institution of patriarchs at Antioch, Alexandria, and afterwards at Constan- tinople, with extensive rights of jurisdiction ; the difference of rituals and discipline ; but, above all, the many disgusts taken by the Greeks, which ultimately produced an irreparable schism between the two churches in the ninth century. But within the pale of the Latin Church every succeeding age en- hanced the power and dignity of the Roman See. By the constitution of the Churcli, such at least as it became in the fourth century, its divisions being arranged in conformity to those of the Empire, every province ought to have its metro- politan, and every vicariate its ecclesiastical exarch or primate. The Bishop of Rome presided, in the latter ca])acity, over the Roman vicariate, comprehending Southern Italy, and the three chief Mediterranean islands. But as it happened, none of the ten provinces forming this division had any metropol- itan ; so that the popes exercised all metropolitical functions within them, such as the consecration of bishops, the convoca- tion of synods, the ultimate decision of appeals, and many other sorts of authority. These provinces are sometimes called the Roman patriarchate, the bishops of Rome having always been reckoned one, generally indeed the first, of the patriarclis ; 320 GREGORY I. Chap. VII. Part I. each of whom was at the head of all the metropolitans within its limits, but without exercising those privileges whicli by the ecclesiastical constitution appertained to the latter. Though the Roman patriarchate, properly so called, was comparatively very small in extent, it gave its cliief, for the reason mentioned, advantages in point of authority which the others did not possess. I may perhaps appear to have noticed circumstances inter- esting only to ecclesiastical scholars. But it is important to apprehend this distinction of the patriarchate from the pri- macy of Rome, becau.se it was by extending the boundaries of the former, and by applying the maxims of her administration in the south of Italy to all the Western churches, that she accomplished the first object of her scheme of usurpation, in subverting the provincial system of government under the metropolitans. Their first encroachment of this kind was in the province of Illyricum, which they annexed in a manner to their own patriarchate, by not permitting any bishops to be consecrated Avithout their consent.' This was before the end of the fourth century. Their subsequent advances were, how- ever, very gradual. About the middle of the sixth century we find them confirming the elections of archbishops of Milan. They came by degrees to exercise, though not always success- fully, and seldom without opposition, an appellant jurisdiction over the causes of bishops deposed or censured in provincial synods. But, upon the whole, the papal authority had made no decisive progress in France, or perhaps anywhere beyond Italy, till the pontificate of Gregory I. (a.d. 50(")-604). § 9, This celel)rated person was not distinguished by learn- ing, which he affected to depreciate, nor by his literary per- formances, which the best critics consider as below mediocrity, Imt by qualities more necessary for his purpose, intrepid ambition and unceasing activity. He maintained a perpetual correspondence with the empei'ors and their ministers, with the sovereigns of the Western kingdoms, with all the hierarchy of the Catholic Church — employing, as occasion dictated, the language of devotion, arrogance, or adulation. Claims hitherto disputed, or half preferred, assumed under his hands a more definite form ; and nations too ignorant to compare pre- cedents or discriminate principles -yielded to assertions con- fidently made by the authority which they most respected. Gregory dwelt more than his predecessors upon the power of 7 The ecclesiastical province of Illyricum included Macedonia. Siricius, the author of this encroachment, seems to have been one of the first usurpers. EccLES. Power. COUNCIL OF FRANKFORT. 321 the keys, exckisively, or at least principally, committed to St. Peter, which had been supposed in earlier times, as it is now by the Galilean Catholics, to be inherent in the general body of bishops, joint sharers of one indivisible episcopacy. And thus the patriarchal rights, being manifestly of mere ecclesias- tical institutions, were artfully confounded, or, as it were, merged, in the more paramount supremacy of a papal chair. From the time of Gregory the po])es appear in a great measure to have thrown aAvay that scaffolding, and relied in preference on the pious veneration of the people, and on the opportunities which might occur for enforcing their dominions with the pre- tence of divine authority. § 10. It cannot, I think, be said that any material acquisi- tions of ecclesiastical power were obtained by the successors of Gregory for nearly 150 years. As none of them possessed vigor and reputation equal to his own, it might even appear that the papal influence was retrograde. But in effect the principles whicli supported it were taking deeper root, and acquiring strength by occasional, though not very frequent, exercise. Appeals to the pope were sometimes made by prel- ates dissatished with a local sentence. National councils were still provoked by i)rinces, and canons enacted under their authority by the bishops who attended. The Church of France, and even that of England, planted as the latter had been by Gregory, continu.ed to preserve a tolerable measure of indepen- dence. The first striking infringement of this was made through the influence of an Englishman, Winf rid, better known as St. Boniface, the apostle of Germany. Having undertaken the conversion of Thuringia, and other still heathen countries, he a})plied to the pope for a commission, and was consecrated bishoi) without any determinate see. Upon this occasion he took an oath of obedience, and became ever afterwards a zeal- ous upholder of the apostolical chair. His success in the con- version of Germany Avas great, his reputation eminent, which enabled him to effect a material revolution in ecclesiastical government. At a synod of the French and German bishops, held at Frankfort in 742 by Boniface as legate of Pope Zacliarv, it was enacted that, as a token of their willing subjection to the See of Eome, all metropolitans should request the palliuui at the hands of the pope, and obey his lawful comniiinds. This was construed by the popes to mean a jaromise of dlicdi- ence before receiving the pall, which was changed in after times by Gregory VII. into an oath of fealty. § 11. This Council of Frankfort claims a leading place as an 322 FALSE DECRETALS. Chap. VII. Part L epoch in the history of the papacy. I shall but just glance at the subsequent political revolutions of that period ; the inva- sion of Italy by Pepin, his donation of the exarchate to the Holy See, the conquest of Lombardy by Charlemagne, the patriarchate of liome conferred upon both these princes, and the revival of the Western Empire in the person of the latter. These events had a natural tendency to exalt the papal suprem- acy, which it is needless to indicate. But a circumstance of a very different nature contributed to this in a still greater degree. About the conclusion of the eighth century there appeared, under the name of one Isidore, an unknown person, a collection of ecclesiastical canons, now commonly denomi- nated the False Decretals. These purported to be rescripts or decrees of. the early bishops of Rome ; and their effect was to diminish the authority of metropolitans over their suffragans, by establishing an appellant jurisdiction of the Roman See in all causes, and by forbidding national councils to be holden without its consent. Every bishop, according to the decretals of Isidore, was amenable only to the immediate tribunal of the pope ; by which one of the most ancient rights of the provin- cial synod was abrogated. Every accused person might not only appeal from an inferior sentence, but remove an unfin- ished process before the supreme pontiff. New sees were not to be erected, nor bishops translated from one see to another, nor their resignations accepted, Avithout the sanction of the pope. They were still, indeed, to be consecrated by the metro- politan, but in the pope's name. It has been plausibly sus- pected that these decretals were forged by some bishop in jeal- ousy or resentment ; and their general reception may at least be partly ascribed to STich sentiments. The archbishops were exceedingly ])Owerful, and might often abuse their superiority over inferior prelates ; but the whole episcopal aristocracy had abundant reason to lament tlieir acquiescence in a system of which the metropolitans were but the earliest victims. Upon these spurious decretals was built the great fabric of papal su])remacy over the different national churches — a fabric which has stood after its foundation crumbled beneath it ; for no one has pretended to deny, for the last two centuries, that the imposture is too palpable for any but the most ignorant ages to credit. § 12. The Galilean Church made for some time a spirited though unavailing struggle against this rising despotism. In the reign of .Charles the Bald a bold defender of ecclesiastical independence was found in Hincmar, archbishop of Rheims, EccLES. Power. PAPAL ENCROACHMENTS. 323 the most distinguished statesman of his age. Equal in ambi- tion, and almost in public estimation, to any pontiff, he some- times came off successfully in his contentions with Rome. But time is fatal to the unanimity of coalitions ; the French bishops were accessible to superstitious prejudice, to corrupt influence, to mutual jealousy. Above all, they were conscious that a per- suasion of the pope's omnipotence had taken hold of the lait3\ Though they complained loudly, and invoked, like patriots of a dying state, names and principles of a freedom that was no more, they submitted almost in every instance to the continual usur[)ations of the Holy See. Cue of those which most annoyed their aristocracy was the concession to monasteries of exemp- tion from episcopal authority. These had been very uncom- mon till about the eighth century, after which they were studi- ously multiplied. It was naturally a favorite object with the abbots ; and sovereigns, in those ages of blind veneration for monastic establishments, were pleased to see their own founda- tions rendered, as it would seem, more respectable by privi- leges of independence. The popes had a closer interest in granting exemptions, which attached to them the regular clergy, and lowered the dignity of the bishops. In the eleventh and twelfth centuries whole orders of monks were declared exempt at a single stroke ; and the abuse began to awaken loud complaints, though it did not fail to be aggravated afterwards. § 13. The principles of ecclesiastical supremacy were read- ily applied by the popes to support still more insolent usurpa- tions. Chiefs by divine commission of the whole Church, every earthly sovereign must be subject to their interference. The first instance where the Roman pontiffs actually tried the force of their arms against a sovereign Avas the excom- munication of Lothaire, king of Lorraine, and grandson of Louis the Debonair. This prince had repudiated his wife, upon unjust pretexts, but with the approbation of a national council, and had subsequently married his concubine. Nich- olas L, the actual pope, despatched two legates to investigate this business, and decide according to the canons. They hold a council at Metz, and confirm the divorce and marriage. En- raged at this conduct of his ambassadors, the pope summons a council at Rome, annuls the sentence, deposes the arch- bishops of Treves and Cologne, and directs the king to discard his mistress. After some sliuffling on the part of Lothaire he is excommunicated ; and in a short time we find both the king and his prelates, who had begun with expressions of pas- 324 EXCOMMUNICATIONS. Chap. VII. Paet I. sionate contempt towards the pope, suing humbly for absolu- tion at the feet of Adrian II., successor of Nicholas, which was not granted without ditficulty. Excommunication, whatever o})inions may be entertained as to its religious efficacy, was originally nothing more in appearance than the exercise of a right wdiich every society claims, the expulsion of refractory members from its body. No direct temporal disadvantages attended this penalty for several ages ; but as it was the most severe of spiritual cen- sures, and tended to exclude the object of it not only from a participation in religious rites, but in a considerable degree from the intercourse of Christian society, it was used spar- ingly and upon the gravest occasions. Gradually, as the Church became more powerful a.nd more im|)erious, excom- munications were issued upon every provocation, rather as a weapon of ecclesiastical warfare than with any regard to its original intention. Princes who felt the inadequacy of their own laws to secure obedience called in the assistance of more formidable sanctions. Several capitularies of Charlemagne denounce the penalty of excommunication against incendiaries or deserters from the army. Charles tlie Bald procured simi- lar censures against his revolted vassals. Thus the boundary between temporal and spiritual offences grew every day less distinct ; and the clergy were encouraged to fresh encroach- ments as they discovered the secret of rendering them suc- cessful. The civil magistrate ought, undoubtedly, to protect the just rights and lawful jurisdiction of the Church. It is not so evident that he should attach temporal penalties to her cen- sures. Excommunication has never carried such a presump- tion of moral turpitude as to disable a man, upon any solid principles, from the usual privileges of society. Su])erstition and tyranny, however, decided otherwise. The sujjport due to Church censures by temporal judges is vaguely declared in the ca|)itularies of Pepin and Charlemagne. It became in later ages a more established ])rinciple in France and Eng- land, and, I presume, in other countries. Py our common law, an excommunicated person is incapable of being a witness or of bringing an action, and he may be detained in prison until he obtains absolution. By the Estal)lishments of St. Louis, his estate or person might be attached by the magis- trate. These actual penalties were attended by marks of abhorrence and ignominy still more calculated to make an impression on ordinary minds. They were to be shunned like EccT,ES. Power. INTERDICTS. 325 men infected with leprosy, by their servants, their friends, and their families. Two attendants only, if we may trust a current history, remained with Robert, king of France, who, on account of an irregular marriage, Avas put to this ban by Gregory V., and these threw all the meats which had passed his table into the fire. Indeed, the mere intercourse with a proscribed person incurred what is called the lesser excom- munication, or privation of the sacraments, and required penitence and absolution. In some places a bier was set before the door of an excommunicated individual, and stones thrown at his windows ; a singular method of compelling his su-bmission ! Everywhere the excommunicated were debarred of a regular sepulture, which, though obviously a matter of police, has, through the superstition of consecrating burial- grounds, been treated as belonging to ecclesiastical control. § 14. But' as excommunication, which attacked only one, and perhaps a hardened sinner, was not always efficacious, the Church had recourse to a more comprehensive punishment. For the offence of a nobleman she put a county, for that of a prince his entire kingdom, under an Interdict or suspension of religious offices. No stretch of her tyranny was, perhaps, so outrageous as this. During an interdict the churches were closed, the bells silent, the dead unburied, no rite but those of baptism and extreme unction performed. The penalty fell upon those who had neither partaken nor could have prevented the offence ; and the offence was often but a private dispute, in which the pride of a pope or bishop had been wounded. Interdicts were so rare before the time of Gregory VII., that some have referred them to him as their author; instances may, however, be found of an earlier date, and especially that which accompanied the above-mentioned excommunication of Robert, king of France. They were afterwards issued not un- frequently against kingdoms ; but in particular districts they continually occurred. This was the mainspring of the machinery that the clergy set in motion, the lever by which they moved the world. From the moment that these interdicts and excommunications had been tried the powers of the earth might be said to have existed only by sufferance. iSTor was the validity of such de- nunciations supposed to depend upon their justice. The im- poser, indeed, of an unjust excommunication was guilty of a sin ; but the party subjected to it had no remedy but submis- sion. The received theory of religion concerning the indis- pensable obligation and mysterious efficacy of the rites of 326 CORRUPTION OF MORALS. Chap. VII. Part I. coniuiunion and confession mnst have induced scrupnkms minds to make any temporal sacrifice rather than incur their priva- tion. One is rather surprised at the instances of failure than of success in the employment of these spiritual weapons against sovereigns or the laity in general. It was, perhaps, a fortu- nate circumstance for Europe that they were not introduced upon a large scale during the darkest ages of superstition. In tlie eightli or ninth centuries they would probably have met with a more implicit obedience. § 15. So high did the popes carry their pretensions, that John VIII. (a.d. 872-882) asserted very plainly a right of choosing the emperor, and seems indirectly to liave exercised it in the election of Charles the Bald, who had not primogen- iture in his favor. This prince, whose restless ambition was united with meanness as well as insincerity, consented to sign a capitulation, on his coronation at Rome, in favor of the pope and Church, a precedent which was improved upon in subsequent ages. Rome was now prepared to rivet her fet- ters upon sovereigns, and at no period have the condition of society and the circumstances of civil government been so favorable for her ambition. But the consummation was still suspended, and even her progress arrested, for more than 150 years. This dreary interval is hlled up, in the annals of the papacy, by a series of revolutions and crimes. Six popes were deposed, two murdered, and one mutilated. Frequently two or even three competitors, among whom it is not always possible by any genuine criticism to distinguish the true shepherd, drove each other alternately from the city. A few respectable names appear thinly scattered through this darkness ; and sometimes, perhaps, a pope who had acquired estimation by his private virtues may be distinguished by some encroachment on the right of princes or the privileges of national cliurches. But in general the pontiffs of that age had neither leisure nor capacity to perfect the great system of temporal supremacy, and looked rather to a vile profit from the sale of episcopal confirmations, or of exem})tions to mon- asteries. The corruption of the head extended naturally to all other members of the Churcli. All writers concur in stigmatizing tlie dissoluteness and neglect of decency that prevailed among the clergy. The bishojis, indeed, who were to enforce them had most occasion to dread their severity. They were ob- truded upon their sees, as the supreme pontiffs were upon that of Rome, by force or corruption. A child of live years old EccLES. PoAVEii. CELIBACY. 327 was made Archbishop of Rheims. The See of Narbonne was purchased for another at the age of ten. By this relaxation of morals the priesthood began to lose its hold upon the preju- dices of mankind. These are nourished chietly, indeed, by shining exam^des of piety and virtue, but also, in a superstitious age, by ascetic observances, by the fasting and watching of monks and hermits. The regular clergy accordingly, or mo- nastic orders, retained at all times a far greater portion of respect than ordinary priests, though degenerated themselves, as was admitted, from their primitive strictness. § 16. Two crimes, or at least violations of ecclesiastical law, had become almost universal in the eleventh century, and ex- cited general indignation — the marriage or concubinage of priests, and the sale of benetices. Celibacy had been, from very early times, enjoined as an obligation upon the clergy. It was perhaps permitted that those already married for the first time and to a virgin, might receive ordination ; and this, after prevailing for a length of time in the Greek Churcli, was sanctioned by the Council of Trullo, in 691.^ and has ever since continued one of the distinguishing features of its disci- pline. Tlie Latin Church, however, did not receive these canons, and has uniformly persevered in excluding the three orders of priests, deacons, and subdeacons, not only from con- tracting matrimony, but from cohabiting with wives espoused before their ordination. The prohibition, however, during some ages existed only in the letter of her canons. In every country the secular or parochial clergy kept women in their houses, upon more or less acknowledged terms of intercourse, by a connivance of their ecclesiastical superiors, which almost amounted to a positive toleration. The sons of priests Avere capable of inheriting by the law of France and also of Castile. Some vigorous efforts had been made in England by Dunstan, with the assistance of King Edgar, to dispossess the married canons, if not the parochial clergy, of their benefices ; but the abuse, if such it is to be considered, made incessant progress till the middle of the eleventh century. There was certainly much reason for the rulers of the Church to restore this part of their discipline, since it is by cutting off her members from the charities of domestic life that she secures their entire affection to her cause, and renders them, like veteran soldiers, independ- ent of every feeling but that of fidelity to their commander and 8 Tliis council was held at Constantinople in the dome of the palace, called Trul- lus by the Latins. Tlie nominative Trullo, though solecistical, is used by ecclesiasti- cal writers in English. Bishops are not "jthin this permission, and cannot retain their wives by the discipline of the Greek CUurch. 328 SIMONY. Chap. YII. Part I, regard to the interests of their body. Leo IX. accordingly, one of the first pontiffs avIio retrieved the honor of the apos- tolic chair, after its long period of ignominy, began in good earnest the difficult work of enforcing celibacy among the clergy. His successors never lost sight of this essential point of discipline. It was a struggle against the natural rights and strongest affections of mankind, which lasted for several ages, and succeeded only by the toleration of greater evils than those it was intended to remove. The laity, in general, took part against the married priests, who were reduced to infamy and want, or obliged to renounce their dearest connections. In many parts of Germany no ministers were left to p)erform di- vine services. But perhaps there was no country where the rulers of celibacy met with so little attention as in England. It was acknowledged in the reign of Henry I. that the greater and better part ot the clergy were married, and that prince is said to have permitted them to retain their wives. ^ But the hierarchy never relaxed in their efforts ; and all the councils, general or provincial, of the twelfth century, utter denuncia- tions against concuhinarij })riests. After that age we do not iind them so frequently mentioned ; and the abuse by degrees, though not suppressed, was reduced within limits at which the Church might connive. § 17. Simony, or the corrupt purchase of spiritual benefices, was the second characteristic reproach of the clergy in the eleventh century. The measures taken to repress it deserve particular consideration, as they produced effects of the high- est importance in the history of the Middle Ages. According to the primitive custom of the Church, an episcopal vacancy was filled up by election of the clergy and people belonging to the city or diocese. The subject of their choice was, after the establishment of the federate or ])rovincial system, to be ap- proved, or rejected by the metropolitan and his suffrages ; and, if approved, he was consecrated by them. It is probable that, in almost every case, the clergy took a leading part in the selection of their bishops ; but the consent of the laity was ab- solutely necessary to render it valid. They were, however, by degrees excluded from any real participation, first in the Greek, and finally in the Western Church. But this was not effected till pretty late times ; the people fully preserved their elective rights at Milan in the eleventh century, and traces of 9 Giraldus Cambrensis, about the end of Henry II. 's reipn {apud Wright's " Po- litical Son.s;>< of England," p. 353), mentions the marriage of the parochial clergy as almost universal. They were called /ocr7;-/>, as living at the same hearth, on pre- teuce of service; but the fellowship, we perceive, was not confined to the fireside. EccLES, PoWEK. EPISCOPAL ELECTIONS. 329 their concurrence may be found both in France and Germany in the next age. It does not appear that the early Christian emperors inter- posed with tlie freedom of choice any further than to make their own confirmation necessary in the great patriarchal sees, such as Ivome and Constantinople, which were frequently the objects of violent competition, and to decide in controverted elections. The Gothic and Lombard kings of Italy followed the same line of conduct. But in the French monarchy a more extensive authority was assumed by the sovereign. Though the practice was subject to some variation, it may be said gen- erally that the Merovingian kings, the line of Charlemagne, and the German emperors of the house of Saxony, conferred bishoprics either by direct nomination, or, as was more regular, by recommendatory letters to the electors. In England, also, before the conquest, bishops were appointed. in the witenage- mot ; and even in the reign of William it is said that Lanfranc was raised to the See of Canterbury by consent of I'arlianient. But, independently of this p>rerogative, which length of time and the tacit sanction of the people have rendered unquestion- ably legitimate, the sovereign had other means of controlling the election of a bishop. Those estates and honors which com- pose the temporalities of the see, and without which the naked spiritual privileges would not have tempted an avaricious gen- eration, hatl chiefly been granted by former kings, and were assimilated to lands held on a beneficiary tenure. As they seemed to partake of the nature of fiefs, they required similar formalities — investiture by the lord, and an oath of fealty by the tenant. Cliarlemagne is said to have introduced this prac- tice ; and, by way of visible symbol, as usual in feudal institu- tions, to have put tlie ring and crosier into the hands of the newly consecrated bishop. And this continued for more than two centuries afterwards without exciting any scandal or re- sistance. The Church has undoubtedly surrendered part of her in- dependence in return for ample endowments and temporal power ; nor could any claim be more reasonable than that of feudal superiors to grant the investiture of dependent fiefs. But the fairest right may be sullied by abuse ; and the sover- eigns, the lay-patrons, the prelates of the tenth and eleventh centuries, made their powers of nomination and investiture subservient to the grossest rapacity. According to the ancient canons, a benefice was avoided by any simoniacal payment or stipulation. If these were to be enforced, the Church must 330 CONFIRMATION OF POPES. Chap. VII. Pakt I. almost be cleared of its ministers. Either tlirougii bribery in places where elections still prevailed, or through corrupt agree- ments with princes, or at least customary presents to their wives and ministers, a large proportion of the bishops had no valid tenure in their sees. The case was perhaps worse with inferior clerks ; in the Churcli of Milan, which was notorious for tliis corruption, not a single ecclesiastic could stand the test, the archbishop exacting a price for tlie collation of every benetice. § 18. The bishops of Rome, like those of inferior sees, were regularly elected by the citizens, laymen as well as ecclesias- tics. But their consecration was deferred until the popular choice had received the sovereign's sanction. The Romans regularly despatched letters to Constantinople or to the exarch of Ravenna, praying that their election of a pope might be con- firmed. Exceptions, if any, are infrequent while Rome was sul)ject to the Eastern Empire. This, among other imperial prerogatives, Charlemagne might consider as his own. He possessed the city, especially after his coronation as emperor, in full sovereignty ; and even before that event had investi- gated, as su])reme chief, some accusations preferred against tlie Pope Leo III. iSTo vacancy of the pa})acy took place after Charlemagne became emperor; and it must be confessed, tliat in the first which happened under Louis the Debonair, Stephen IV. was consecrated in haste, without that prince's approbation. But Gregory IV., his successor, waited till his election had been confirmed, and, upon the whole, the Carlovingian em- perors, though less uniformly than their predecessors, retained that mark of sovereignty. But during the disorderly state of Italy which followed the last reigns of Charlemagne's posterity, while the sovereignty and even the name of an emj)eror were in abeyance, the supreme dignity of Christendom was conferred only by the factious rabble of its capital. Otho the great, in receiving the imperial crown, took upon him the prerogatives of Charlemagne. There is even extant a decree of Leo VIII., which grants to him and his successors the right of naming future popes. But the authenticity of this instrument is denied by the Italians. It does not appear that the Saxon em- perors went to siich a length as nomination, except in one in- stance (that of Gregory V., in 996) ; but tliQy sometimes, not uniformly, confirmed the election of a pope, according to ancient custom. An explicit right of nomination was, however, conceded to the Em])eror Henry III., in 1047, as the on!y means of rescuing the Roman Church from the disgrace and EccLES. Power. ECEEE OF NICHOLAS II. 331 depravity into which it liad fallen. Henry appointed two or three very good popes ; acting in this against the warnings of a selfish policy, as fatal experience soon proved to his family. This high prerogative was }ierliaps not designed to extend beyond Henry himself. Pint, even if it haa been transmissil)le to his successors, the infancy of his son, Henry IV., and the factions of that minority, i)recluded the possibility of its exercise. Nicholas II., in 1051), i)ublished a decree which re- stored the right of election to the Komans, but with a remark- able variation from the original form. The cardinal bishops (seven in number, holding sees in the neighborhood of Rome, and consequently suffragans of the pojje as patriarch or metro- politan) were to choose the supreme pontiff', with the concur- rence first of the cardinal priests and deacons (or ministers of the parish churches of Rome), and afterwards of the laity. Thus elected, the new pope was to be presented for confirma- tion to Henry, " now king, and hereafter to become emperor," and to such of his successors as should personally obtain that privilege. This decree is the foundation of that celebrated mode of election in a conclave of cardinals which has ever since determined the headship of the Church. It was intended not only to exclude the citizens, who had, indeed, justly for- feited their primitive right, but as far as possible to jn-epare the way for an absolute emancipation of the papacy from the imperial control ; reserving only a precarious and person-al concession to the emperors instead of their ancient legal prerogative of confirmation. The real author of this decree, and of all other vigorous measures adopted by the popes of that age, whether for the assertion of tlieir independence or the restoration of discipline, was Hildebrand, archdeacon of the Church of Rome, by far the most conspicuous person of the eleventh century. Acquir- ing by his extraordinary qualities an unbounded ascendency over the Italian clergy, they regarded him as their chosen leader and the hope of their common cause. He had been empowered singly to nominate a pope on the part of the Romans after the death of Leo IX., and compelled Henry III. to acquiesce in his choice of Victor TI. No man could i)roceed more fearlessly towards his object than Hildebrand, nor with less attention to conscientious impediments. Though the decree of Nicholas II., his OAvn work, had expressly reserved the right of confirmation of the young king of Germany, yet on the death of that pope Hildebrand procured the election and consecration of Alexand(^r IT., without waiting for any oo2 DIFFEKENCES OF GREGOKY VII. Chap. VII. Part I. authority. During this pontihcate he was considered as some- thing greater than the pope, who acted entirely by Ids coun- sels. On Alexander's decease, Hildebrand, long since the real head of the Church, was raised with enthusiasm to its chief dignity, and assumed the name of Gregory VII. (a.d. 1073). § It). Notwithstanding the late precedent at the election of Alexander II., it appears that Gregory did not yet consider Ids plans sufficiently mature to throw off the yoke altogether, but declined to receive consecration until he had obtained the consent of the King of Germany. This moderation was not of long continuance. The situation of Germany speedily afforded him an opportunity of displaying his ambitious views. Henry IV., through a very bad education, was arbi- trary and. dissolute; the Saxons were engaged in a desperate rebellion ; and secret disaffection had spread among the princes to an extent of which the pope was much better aware than the king. He began by excommunicating some of Henry's ministers on pretence of simony, and made it a ground of rejuonstrance that they were not instantly dismissed. His next step was to publish a decree, or rather to renew one, of Alexander II., against lay investitures. The abolition of these was a favorite object of Gregory, and formed an essential part of his general scheme for emanci])ating the spiritual and sub- jugating the temporal power. The ring and crosier, it was asserted by the papal advocates, were the emblems of that power which no monarch could bestow. Though the estates of bishops might, strictly, be of temporal right, yet, as they had been inseparably annexed to their spiritual office, it be- came just that what was first in dignity and importance should carry with it those accessory parts. The contest about investitures, though begun by Gregory VII., did not occu})y a very prominent ^tlace during his. pon- tificate, its interest being suspended by other more extraor- dinary and im})ortant dissensions between the Church and Empire. The i)ope, after tampering some time with the dis- affected party in Germany, summoned Henry to appear at Rome and vindicate himself from the charges alleged by his subjects. Such an outrage naturally exasperated a young and passionate monarch. Assembling a number of bishops and other vassals at Worms, lie procured a sentence that Gregory should no longer be obeyed as lawful pope. But the time was past for those arbitrary encroachments, or at least high pre- rogatives, of former emperors. The relations of dependency between Church and State were now about to be reversed. EccLES. PowEK. WITH HENRY IV. 333 Gregory had no sooner received accounts of the proceedings at AVornis than he summoned a council in the Lateran pahxce, and by a solemn sentence not only excommunicated Henry, but de- prived him of the kingdoms of Germany and Italy, releasing his subjects from their allegiance, and forbidding them to obey him as sovereign. Thus Gregory VII. obtained the glory of leaving all his i^redecessors behind, and astonishing mankind by an act of audacity and ambition which the most emulous of his successors could hardly surpass." The first impulses of Henry's mind on hearing this denun- ciation were indignation and resentment. But, like otlier inexperienced and misguided sovereigns, he had formed an erroneous calculation of his own resources. A conspiracy, long prepared, of which the dukes of Suabia and Carinthia were the chiefs, began to manifest itself. kSonie were alien- ated by his vices, and others jealous of his family. The rebellious Saxons took courage ; the bishops, intimidated by excommunication, withdrew from his side, and he suddenly found himself almost insulated in the midst of his dominions. In this desertion he had recourse, through panic, to a miser- able expedient. He crossed the Alps with the avowed deter- mination of submitting, and seeking absolution from the pope. Gregory was at Canossa, a fortress near Eeggio, belonging to his faithful adherent, the Countess Matilda. It was in a winter of unusual severity. The emperor was admitted, with- out his guards, into an outer court of the castle, and three successive days remained from morning till evening in a woollen shirt and Avith naked feet, while Gregory, shut up with the countess, refused to admit him to his presence. On the fourth day he obtained absolution ; but only on condition of appearing on a certain day to learn the pope's decision whether or no he should be restored to his kingdom, until which time he promised not to assume the ensigns of royalty (A.D. 1077). This base humiliation, instead of conciliating Henry's ad- versaries, forfeited the attachment of his friends. In his contest with the pope he had found a zealous support in the 10 The sentence of Gregory VII. against the Emperor Henry was directi'd, we should always remember, to persons already well disposed to reject his authority. Men are glad to be told that it is their duty to resist a sovereign agiiinst whom they are in rebellion, and will not be very scrupulous in examining conclusions which fall in with their inclinations and interests. Allegiance was in those turbulent ages easily thrown ott', and the right of resistance was in continual exercise. To the Gernians of the eleventh century a prince unfit for Christian couiniunion would easily appear unfit to reign over them; and though Henry had not given much real provocation to the pope, his vices and tyranny might seem to challenge any spiritual censure of temporal chastisement. 334 DISPUTE ABOUT INVESTITUIIES. Cuap. VII. Part L principal Lombard cities, among Avhom the married and si- moniacal elei-gy had great influence. Indignant at his sub- mission to Gregory, whom they affected to consider as an usurper of the papal chair, they now closed their gates against the emperor, and spoke openly of deposing him. In this singular position between opposite dangers, Henry retrod his late ste})s, and broke off his treaty with the pope ; preferring, if he must fall, to fall as the defender rather than the betrayer of his imperial rights. The rebellious princes of Germany chose another king, liodolph, duke of Suabia, on whom Greg- ory, after some delay, bestowed the crown, with a Latin verse importing that it was given by virtue of the original commis- sion of St. Peter. But the success of this pontiff' in his immediate designs was not answerable to his intrepidity. Henry both subdued the German rebellion, and carried on the war with so much vigor, or rather with so little resistance, in Italy, that he was crowned in Rome by the antipope Guibert, whom he had raised in a council of his partisans to the government of the Church instead of Gregory. The latter fonnd an asylum under the protection of Ivoger Guiscard at Salerno, where he died an exile. His mantle, however, de- scended upon his successors. But Henry V. being stronger in the support of his German vassals than his father had been, none of the popes with whom he was engaged, had the bold- ness to repeat the measures of Gregory VII. At length, each party grown weary of this ruinous contention, a treaty was agreed upon between the emperor and Calixtus II., which put an end by compromise to the question of ecclesiastical inves- titures (a.d. 1122). By this compact the emperor resigned foi'cver all pretence to invest bisho])S by the ring and crosier, and recognized the liberty of elections. But in return it was agreed tliat elections should be made in his presence or that of his officers, and that the new bishop should receive his temporalities from the emperor by the sceptre. Both parties in the concordat at Worms receded from so much of their pretensions, that we might almost hesitate to determine which is to be considered as victorious. On the one hand, in restoring the freedom of episcopal elections the emperors lost a prerogative of very long standing, and almost necessary to the maintenance of authority over not the least turbulent part of their subjects. And though the form of investiture by the ring and crosier seemed in itself of no im- ])ortance, yet" it had been in effect a collateral security against the election of obnoxious persons. For tlie emperors, detain- EcCLES. PowEK. CAPITULAR ELECTIONS. 335 lag this necessary part of the pontiticals until they should confer investiture, prevented a hasty consecration of the new bishop, after which, the vacancy being legally filled, it would not be decent for them to withhold the temporalities. But then, on the other hand, they preserved by the concordat their feudal sovereignty over the estates of the Church, in defiance of the language Avliich had recently been held by its rulers. It is evident that a general immunity from feudal obligaticjiis for an order who possessed nearly half the lands in Europe struck at the root of those institutions by which the fabric of society was j)rincipally held together. This complete indepen- dency had been the aim of Gregory's disciples ; and by yield- iug to the continuance of lay investitures in any shape Calixtus may, in this point of view, appear to have relinquished the principal object of contention. The emperors were not the only sovereigns Avhose practice of investiture excited the hostility of Rome, although they sustained the principal brunt of the war. A similar contest broke out under the pontificate of Paschal II. with Henry I. of England; for the circumstances of which, as they contain nothing peculiar, I refer to our own historians. It is remark- able that it ended in a compromise not unlike that adjusted at Worms ; the king renouncing all sorts of investitures, while the pope consented that the bishop should do homage for his temporalities. Tliis was exactly the custom of France, where investiture by the ring and crosier is said not to have prevailed ; and it answered the main end of sovereigns by keeping up the feudal dependency of ecclesiastical estates. But the kings of Castile were more fortunate than the rest ; discreetly yielding to the pride of Rome, they obtained what was essential to their own authority, and have always possessed, by the con- cession of Urban ll., an absolute privilege of nomination to bishoprics in their dominions. An early evidence of that in- difference of the ])opes towards the real independence of national churches to which subsequent ages were to lend abundant confirmation. § 20. When the emperors had surrendered their pretensions to interfere in episcopal elections, the primitive mode of col- lecting the suffrages of clergy and laity in conjunction, or at least of the clergy with the laity's assent and ratilieation, ought naturally to have revived. But in the twelfth century neither tlie people, nor even the general body of the diocesan clergy, were considered as worthy to exercise this function. It soon developed altogether upon the chapters of cathedral 336 GENERAL CONDUCT Chap. VII. Pakt I. churches. The original of these may be traced very high. In the earliest ages we find a college of presbytery consisting of the priests and deacons, assistants as a council of advice, or even a kind of parliament, to their bishops. Parochial divis- ions, and fixed ministers attached to them, were not estab- lished till a later period. But the canons, or cathedral clergy, acquired afterwards a more distinct character. They were subjected by degrees to certain strict observances, little differ- ing, in fact, from those imposed on monastic orders. They lived at a common table, they slept in a common dormitory, their dress and diet were regulated by })eculiar laws. But they were distinguished from monks by the riglit of ]jossessing individual property, which was afterwards extended to the enjoyment of separate prebends or benefices. These strict regvdations, chiefly imposed by Louis the Debonair, went into disuse through relaxation of discipline ; nor were they ever effectually restored. Meantime the chapters became extremely rich, and as they monopolized the privilege of electing bishops, it became an object of ambition with noble families to obtain canonries for their younger children as the surest road to ecclesiastical honors and opulence. Contrary, therefore, to the general policy of the Cluirch, persons of inferior birth have been rigidly excluded from these foundations. § 21. The object of Gregory VII., in attempting to redress those more flagrant abuses which for two centuries had de- formed the face of the Latin Church, is not incapable, perhaps, of vindication, though no sufficient apology can be offered for the means he emi)loyed. But the disinterested love of reformation, to which candor might ascribe the contention against investitures, is belied by the general tenor of his con- duet, exhibiting an arrogance without ])arallel, and an ambi- tion that grasj)ed at universal and unlimited monarchy. He may be called the common enemy of all sovereigns, whose dignity as well as independence mortified his infatuated pride. Thus we find him menacing Philip I. of France, who had con- nived at the pillage of some Italian merchants and pilgrims, not only with an interdict, but a sentence of deposition. Thus, too, he asserts, as a known historical fact, that the kingdom of Spain had formerly belonged, by special right, to St. Peter ; and by virtue of this imprescriptible claim he grants to a cer- tain Count de Rouci all territories which he should reconquer from the Moors, to be held in fief from the Holy See by a stipulated rent. A similar pi'etension he makes to the king- dom of Hungary, and bitterly reproaches its sovereign, Solo- EccLES. PoAVER. OF GREGORY VII. 337 moil, who had done homage to the emperor, in derogation of St. Peter, his legitimate lord. It was convenient to treat this apostle as a great feudal suzerain, and the legal' principles of that age were dexterously applied to rivet more forcibly the fetters of superstition. While temporal sovereigns were opposing so inadequate a resistance to a system of usurpation contrary to all precedent and to the common principles of society, it was not to be ex- pected that national churches should persevere in opposing pretensions for which several ages had paved the way. Greg- ory VII. completed the destruction of their liberties. The principles contained in the decretals of Isidore, hostile as they were to ecclesiastical independence, were set aside as insuih- cient to establish the absolute monarchy of Kome. By a consti- tution of Alexander II., during whose pontificate Hildebrand himself was deemed tlie effectual pope, no bishop in the Cath- olic Church was permitted to exercise his functions until he had received the confirmation of the Holy See : a jirovision of vast importance, through wliich, beyond perhaps any other means, liome has sustained, and still sustains, her temporal in- fluence, as well as her ecclesiastical supremacy. The national churches, long abridged of their liberties by gradual encroach- ments, now found themselves subject to an undisguised and irresistible despotism. Instead of affording protection to bishops against their metropolitans, under an insidious pre- tence of which the popes of the ninth century had subverted the autliority of the latter, it became the favorite policy of their successors to harass all prelates with citations to Rome. Gregory obliged the metropolitans to attend in person for the pallium. Bishops were summoned even from England and the ]S"ort]iern kingdoms to receive the commands of the spiritual monarch. William the Conqueror having made a difficulty about permitting his prelates to obey these citations, Gregory though in general on good terms with that prince, and treating him with a deference whicli marks the effect of a firm chai'ac- ter in repressing the ebullitions of overbearing pride, complains of this as a persecution unheard of among pagans. The great quarrel between Archbishop Anselm and his two sovereigns, William Rufus and Henry I., was originally founded upon a similar refusal to permit his departure for Rome. § 21i. This perpetual control exercised by the popes over ecclesiastical, and in some degree over temporal affairs, was maintained by means of their legates, at once the ambassadors and the lieutenants of the Holy See. Previously to the latter 338 ADRIAN IV. Chap. VII. Part I. part of the tenth age these had been sent not frequently and upon special occasions. The legatiue or vicarial commission had generally been iutrusted to some eminent metropolitan of the nation within which it was to be exercised ; as the Arch- bishop of Canterbury was perpetual legate in England. But the special commissioners, or legates a latere, suspending the pope's ordinary vicars, took ujjon themselves an unbounded authority over the national churches, holding councils, promul- gating canons, deposing the bishops, and issuing interdicts at their discretion. They lived in splendor at the expense of the bishops of the province. This was the more galling to the hierarchy, because simple deacons were often invested with this dignity, which set them above primates. As the sover- eigns of France and England acquired more courage, they considerably abridged this prerogative of the Holy See, and resisted the entrance of any legates into their dominions with- out their consent. From the time of Gregory VII. no pontiff thought of await- ing tlie confirmation of the emperor, as in earlier ages, before he was installed in the throne of St. Peter. On the contrary, it was pretended that the emperor was himself to be conhrmed by the pope. This had, indeed, been broached by John VIII. two hundred years before Gregory. It was still a doctrine not calculated for general reception ; but the popes availed them- selves of every opj^ortunity which the temporizing policy, the negligence or bigotry of sovereigns threw into their hands. Lothaire coming to receive the imperial crown at Rome, this circumstance was commemorated by a picture in the Lateran palace, in which, and in two Latin verses subscribed, he was represented as doing homage to the pope. When F^-ederick Barbarossa came upon the same occasion, he omitted to hold the stirrup of Adrian IV., who, in his turn, refused to give him the usual kiss of peace ; nor was the 'contest ended but by the emperor's acquiescence, who was content to follow tlie pre- cedents of his predecessors. The same Adrian, exjiostulating with Frederick upon some slight grievance, reminded him of the imperial crown which lie had conferred, and declared his willingness to bestow, if possible, still greater benehts. But the phrase employed (majora beneficia) suggested the idea of a fief ; and the general insolence which pervaded Adrian's letter confirming this interpretation, a ferment arose among the Ger- man princes, in a congress of whom this letter was delivered. " From whom, then," one of the legates was rash enough to saj^, " does the emperor hold his crown, except from the pope ? " EccLES. Power. INNOCENT III. 339 which so irritated a prince of Wittelsbach that he was with difficulty prevented from cleaving the priest's head witli his sabre. Adrian IV. was the oidy Englishman that ever sat in the papal chair. It might, perhaps, pass for a favor bestowed on his natural sovereign, when he granted to Henry II. the kingdoni of Ireland ; yet the language of this donation, where- in he asserts all islands to be the exclusive property of St. I*eter, should not have had a very pleasing sound to an insular nionarch. § 23. I shall not wait to comment on the support given to Becket by Alexander III., which must be familiar to the Eng- lish reader, nor on his speedy canonization ; a reward which the Church has always held out to its most active friends, and which may be compared to titles of nobility granted by a tem- poral sovereign. Uut the epoch when the spirit of papal usur- pation was most strikingly displayed was the pontificate of Innocent III. (a.d. 1198-1210). In each of the three leading objects which Kome has pursued — independent sovereignty, supremacy over the Christian Church, control over the princes of the earth — it was the fortune of this pontiff to conquer. He realized, as we have seen in another place, that fond hope of so many of his predecessors, a dominion over Rome and the central parts of Italy. During his pontificate Constantinople was taken by the Latins ; and however much he might seem to regret a diversion of the Crusaders which impeded the recovery of the Holy Land, he exulted in the obedience of the new patri- arch, and the reunion of the Greek Church, Never, perhaps, either before or since, was the great Eastern schism in so fair a way of being healed; even the kings of Bulgaria and of Armenia acknowledged the supremacy of Innocent, and permitted his interference with their ecclesiastical institutions. The maxims of Gregory VII. were now matured by more than a hundred years, and the right of trampling u|)on the necks of kings had been received, at least among Churchmen, as an inherent attribute of the papacy. " As the sun and the moon are placed in the firmament " (such is the language of Innocent), "the greater as the light of the day, and the lesser of the night, thus are there two powers in tiie Church — the pontifical, which, as having the charge of souls, is the greater ; and the royal, which is the less, and to which the bodies of men only are intrusted." Intoxicated with these conceptions (if we may apply such a word to successful ambition), he thought no quarrel of princes beyond the sphere of his juris- diction. On every side the thunder of Rome broke over tlie 340 INNOCENT III. Chap. VII. Part I. heads of princes. A certain Swero is excommnnieated for usurping the crown of Norway. A legate, in passing through Hungary, is detained by the king : Innocent writes in tolera- bly mild terms to this potentate, but fails not to intimate that he might be compelled to prevent his son's accession to the throne. The King of Leon had married his cousin, a princess of Castile. Innocent subjects the kingdom to an interdict. The king gave way, and sent baek his wife. But a more illus- trious victory of the same kind was obtained over Philip Augus- tus, who, having repudiated Isemburga of Denmark, had contracted another marriage. The conduct of the king, though not without the usual excuse of those times, nearness of blood, was justly condemned; and Innocent did not hesitate to visit his sins upon the people by a general interdict. This, after a short demur from some bishops, was enforced throughout France ; the dead lay unburi'xl, and tlie living were cut off from the offices of religion, till Philip, thus subdued, took baek his divorced wife. The submission of such a prince, not feebly superstitious, like his predecessor Robert, nor vexed with sedi- tions, like the Emperor Henry IV., but brave, firm, and victo- rious, is perhaps the proudest trophy in the scutcheon of Eome. Compared with this, the subsequent triumph of Inno- cent over our pusillanimous John seems cheaply gained, though the surrender of a powerful kingdom into the vassalage of the pope may strike us as a proof of stupendous baseness on one side, and audacity on the other." I have mentioned already that among the new pretensions advanced by the Eoman See was that of confirming the election of an emi)eror. It liad, however, been asserted rather inci- dentally than in a peremptory manner. But the doubtful elections of I'liilip and Otlio after the death of Henry VI. gave Innocent III. an opportunity of maintaining more positively this pretended right. In a decretal ejtistle addressed to the Duke of Ziihringen, the object of which is to direct him to transfer his allegiance from Philip to the other competitor, Innocent, after stating the mode in which a regular election ought so be made, declares the pope's immediate authority to examine, confirm, anoint, crown, and consecrate the elect emperor, provided he sliall be worthy; or to reject liim if ren- " The stipulated annuiil ))avnipnt of 1000 marks was seldom made by the kin^^'s of Eiifjfland; but oiio is ulinost ushaiiied tliat it should ever have been so. Hemy 111. paid it occasionally when lie had any object to obtain, and even Edward I. for some years: the latest payment on record'is in the seventeenth of his reijrn. After a long discontinuance, it was demanded in tlie fortieth of Edward III. (i:i()()), but the I'arlia- ment unanimously declared that .lohn bail no right to subject tlie kingdom to a su- perior without their consent; wliieh put an end forever to the applications. EccLES. Power. PAPAL AUTHOPJTY. 341 dered unfit by great crimes, sucli as sacrilege, heresy, perjury, or persecution of the Church ; in default of election, to supply the vacancy ; or, in the event of equal suffrages, to bestow the empire upon any person at his discretion. The princes of Germany were not much influenced by this hardy assumption, which manifests the temper of Innocent III. and of his court, rather than their power. But Otho IV., at his coronation by the pope, signed a capitulation, which cut off several privileges enjoyed by the emperors, ever since the concordat of Calixtus, in respect of episcopal elections and investitures. PART II. § 1. Continual Progress of the Papacy. § 2. Canon Law. § 3. Mendicant Orders. § 4. Dispensing Power. § 5. Encroachments on Rights of Patronage, Mandats, Reserves, etc. § 6. Taxation of tlie Clergy. § 7. General Disaffection towards the See of Rome in the Tliirteenth Century. §8. Progress of EcclesiasticalJuris- diction. §9. Immunity of tlie Clergy in Criminal Cases. §10. Restraints im- posed upon their Jurisdiction. §11. Upon their Acquisition of I'roperty. § It!. Boniface VIII. His Quarrel witli Philip tlie Fair. Its Termination. § 13. Grad- ual Decline of Papal Authority. Removal of the Papal Court to Avisfuon. § 14. Louis of Bavaria. § 15. Conduct of Avignon Popes. § 16. Return to Rome. Contested Election of Urban and Clement produces the great Schism. § 17. Councils of Pisa and Constance. § 18. Council of Basle. § 19. Methods adopted to restrain the Papal Usurpations in England, Germany, and France. Liberties of the Gallicau Church. § 20. Decline of the Papal Influence in Italy. § 1. The noonday of papal dominion extends from the pon- tificate of Innocent III., inclusively, to that of Boniface VIII ; or, in otlier words, through the thirteenth century. Rome in- spired during this age all the terror of her ancient name. She was once more the mistress of the world, and kings were her vassals. I have already anticipated the two most conspicuous instances when her temporal ambition displayed itself, both of which are inseparal)le from tlie civil history of Italy.^ In the first of these, her long contention with the house of Suabia, she finally triumphed. After his deposition l)y the Council of Lyons, the affairs of Frederick II. went rapidly into decay. With every allowance for the enmity of the Lombards and the jealousies of Germany, it must be confessed that his proscrip- tion by Innocent IV. and Alexander IV. was the main cause of the ruin of his family. There is, however, no other instance, to the best of my judgment, where the pretended right of de- posing kings has been successfully exercised. Martin IV. ab- solved tlie subjects of Peter of Aragon from their allegiance, and transferred his crown to a prince of France ; but they did 1 See above, chapter iii. 342 CANON LAW. Chap. VII. Part II. not cease to obey their lawful sovereign. I'liis is the second instance which the thirteenth century presents of interference on the part of the popes in a great temporal quarrel. As feudal lords of Naples and Sicily, they had, indeed, some pre- text for engaging in the hostilities between the houses of Anjou and Aragon, as well as for their contest with Frederick II. But the pontiffs of that age, improving upon the system of Innocent III., and sangu.ine with j)ast success, aspired to render every European kingdom formally dependent upon the See of Rome. Thus Boniface VIII., at the instigation of some emissaries from Scotland, claimed that monarchy as paramount lord, and interposed, though vainly, the sacred panoply of ecclesiastical rights to rescue it from the arms of Edward I. § 2. This general supremacy effected by the Roman Church over mankind, in the twelfth and thirteenth centuries, de- rived material support from the promulgation of the canon law. The foundation of this jurisprudence is laid in the de- crees of councils, and in the rescripts or decretal epistles of popes to questions propounded upon emergent doubts relative to matters of discipline and ecclesiastical economy. As the jurisdiction of the spiritual tribunals increased and extended to a variety of persons and causes, it became almost necessary to establish a uniform system for the regulation of their decis- ions. After several minor compilations had appeared, Gratian, an Italian monk, published, about the year 1140, his Decretinyi, or general collection of canons, papal epistles, and sentences of fathers, arranged and digested into titles and chapters, in imitation of the Pandects, which very little before had begun to be studied again with great diligence. This work of Gra- tian, thougli it seems rather an extraordinary performance for tlie age when it appeared, has been censured for notorious in- correctness as well as inconsistency, and especially for the autliority given in it to the false decretals of Isidore, and, con- sequently, to the papal supremacy. It fell, however, short of wliat Avas required in the progress of that usurpation. Greg- ory IX. caused the five books of Decretals to be pu])lished l)y Raimond de Fennafort, in 1234. These consist almost entirely of rescripts issued by the later popes, especially Alexander III., Innocent III., Ilonorius III., and Gregory himself. They form the most essential ])art of the canon law — the Decretum of Gratian being comparatively obsolete. In these books we find a regular and copious system of jurisprudence, derived, in a great measure, from the civil law, but with, considerable deviation, and possibly improvement. Boniface VIII. added EccLES. rowEK. CANON LAW. 343 a sixth part, thence called the Sext, itself divided into five books, in the nature of a supplement to the other five, of whieli it follows the arrangement, and composed of decisions prom- ulgated since the pontificate of Gregory IX. New constitutions wei-e subjoined by Clement V. and John XXII., under the name of Clementines and Extravar/antes Joliannis ; and a few more of later pontiffs are included in the body of canon law, arranged as a second supplement, after the manner of the Sext, and called Extravarjantes Communes. The study of this code became, of course, obligatory upon ecclesiastical judges. It produced a new class of legal prac- titioners, or canonists, of whom a great number added, like their brethren, the civilians, their illustrations and commen- taries, for which the obscurity and discordance of many pas- sages, more especially in the Decretum, gave ample scope. From the general analogy of the canon law to that of Jus- tinian, the two systems became, in a remarkable manner, col- lateral and mutually intertwined — the tribunals governed by either of them borrowing their rules of decision from the other in cases where their peculiar jurisprudence is silent or of dubious interpretation. But the canon law was almost entirely founded on the legislative authority of the pope ; the decretals are, in fact, but a new arrangement of the bold epistles of the most usurping pontiffs, and especially of Inno- cent III., with titles, or rubrics, comprehending the substance of each in the compiler's language. The superiority of ec- clesiastical to temporal power, or at least the absolute inde- pendence of the former, may be considered as a sort of key-note which regulates every passage in the canon laAv. It is ex- pressly declared that subjects owe no allegiance to an ex- communicated lord, if after admonition he is not reconciled to the Church. And the rubric prefixed to the declaration of Frederick II. 's deposition in the Council of Lyons, asserts that the pope may dethrone the emperor for lawful causes. These rubrics to the decretals are not, perhaps, of direct authority as part of the law ; but they express its sense, so as to be fairly cited instead of it. By means of her new juris- prudence, Rome acquired in every country a powerful body of advocates, who though many of them were laymen, would with the usual bigotry of lawyers, defend every pretension or abuse to which their received standard of authority gave sanction. § 3. Xext to the canon law, I should reckon tlie institution of the mendicant orders among those circumstances which 344 MENDICANT ORDERS. Cuap. VII. Paist II. principally contributed to the aggrandizement of Rome. By the acquisition, and in some respects tlie enjoyment, or at least ostentation, of immense riches, the ancient monastic orders had forfeited much of the public esteem. Austere prin- ciples as to the obligation of evangelical poverty were incul- cated by the numerous sectaries of that age, and eagerly received by the people, already much alienated from an es- tablished hierarchy. No means appeared so efficacious to counteract tliis effect as the institution of religious societies strictly debarred from the insidious temptations of wealth. Upon this principle were founded the orders of mendicant friars, incapable, by the rules of their foundation, of possessing estates, and maintained only by alms and pious remunerations. Of these the two most celebrated were formed by St. Dominick and St. Francis of Assisi, and established by the authority of Honorius III. in 1216 and 1223. These great reformers who have produced so extraordinary an effect vipon mankind, were of very different characters ; the one, active and ferocious, had taken a prominent part in the crusade against the unfortunate Albigeois, and was amoug the tirst who bore the terrible name of incpiisitor ; while the other, a harmless enthusiast, pious and sincere, but hai-dly of sane mind, Avas much rather accessory to the intellectual than to the moral degradation of his species. Various other mendicant orders Avere instituted in the thir- teenth century ; but most of them were soon suppressed, and, besides the two principal, none remain but the Augustin and the Carmelite. These new preachers were received with astonishing appro- bation by the laity, whose religious zeal usually depends a good deal upon their opinion of sincerity and disinterestedness in their pastors. And the progress of the Dominican and Fran- ciscan friars in the thirteenth century bears a remarkable an- alogy to that of our English Methodists. Not deviating from the faith of the Church, but professing rather to teach it in greater purity, and to observe her ordinances with greater reg- ularity, while they imputed supineness and corruption to the secular clergy, they drew round their sermons a multitude of such listeners as in all ages are attracted by similar means. They practised all the stratagems of itinerancy, preaching in public streets, and administering the communion on a portable altar. Thirty years after their institution an historian com- plains that the ])arish churches were deserted, that none con- fessed except to these friars — in short, that the regular discipline was subverted. This uncontrolled privilege of per- EccLES. PowEK. PAPAL DISPENSATIONS. 345 forming sacerdotal functions, which their modern anti-types assume for themselves, was conceded to the mendicant orders by the favor of Rome. Aware of the powerful support they might receive in turn, the pontilfs of the thirteenth century accumulated benefits u[)on the disciples of Francis and Dom- inick. They were exem})ted from episcopal authority ; they were permitted to preach or hear confessions without leave of the ordinary, to accept of legacies, and to inter in their churches. Such privileges could not be granted without resist- ance from the other clergy ; the bishops remonstrated, the University of Paris maintained a strenuous opposition; but their reluctance served only to. protract the final decision. Boniface VIII. appears to have peremptorily established the privileges and immunities of the mendicant orders in 1295. It was naturally to be expected that the objects of such ex- tensive favors would repay their benefactors by a more than usual obsequiousness and alacrity in their service. Accord- ingly, tlie Dominicans and Franciscans vied with each other in magnifying the i)apal supremacy. Many of these monks became eminent in canon law and scholastic theology. The great lawgiver of the schools, Thomas Aquinas, wliose opin- ions the Dominicans especially treat as almost infallible, went into the exaggerated principles of his age in favor of the See of Rome. And as the professors of those sciences took nearly all the learning and logic of the times to their own share, it was hardly possible to repel their arguments by any direct reasoning. But this partiality of the new monastic orders to the popes must chiefly be understood to apply to the thirteenth century, circumstances occurring in the next which gave in some degree a different complexion to their dispositions in re- spect of the Holy See. § 4. We should not overlook, among the causes that con- tributed to the dominion of the popes, their prerogative of dis- pensing with ecclesiastical ordinances. The most remarkable exercise of this was as to the canonical impediments of matri- mony. Such strictness as is prescribed by the Christian religion with respect to divorce was very unpalatable to the barbarous nations. They, in fact, paid it little regard ; under the Merovingian dynasty, even private men put away their wives at pleasure. In many capitidaries of Charlemagne we find evidence of the prevailing license of repudiation and even polygamy. The principles wliich the Church inculcated were in a})})earance the very reverse of this laxity ; yet they led in- directly to the same effect. Marriages were forbidden, not 346 PArAL DISPENSATIONS. Cuap. VII. Part II. merely within the limits which nature, or those inveterate associations which we call nature, have rendered sacred, but as far as the seventh degree of collateral consanguinity, com- puted from a common ancestor. Not only was attinity, or relationship by marriage, put upon the same footing as that by blocjd, but a fantastical connection, called spiritual affinity, Avas invented in order to prohibit marriage between a sponsor and godchild. A union, however innocently contracted, be- tween parties thus circumstanced might at any time be dis- solved, and their subsequent cohabitation forbidden. One readily a})prehends the facilities of abuse to which all this led; and history is full of dissolutions of marriage, ol)tained by fickle passion or cold-hearted ambition, to which the Church has not scrupled to pander on some suggestion of relationship. It was not until the twelfth century that either these laws as to marriage or any other established rules of discipline were su[)posed liable to arbitrary dispensation ; at least tlie stricter Churchmen had always denied that the pope couhl infringe canons, nor liad he asserteil any right to do so. But Iiniocent III. laid down as a maxim, that out of the ])lenitude of his power he might lawfully dispense with the law ; and accord- ingly granted, among other instances of his prerogative, dis- pensations froni impediments of marriage to the Emperor Otlio IV. Similar indulgences were given by his successors, though they did not become usual for some ages. The fourth Lateran Council, in 1215, removed a great part of the restraint, by permitting marriages beyond the fourth degree, or what we call third-cousins ; and dispensations have been made more easy, when it was discovered that they might be converted into a source of profit. They served a more important pur- pose by rendering it necessary for the princes of Europe, who S(ddom could marry into one another's houses without trans- gressing the canonical limits, to keep on good terms with the Court of Home, which, in several instances that have been mentioned, fulminated its censures against sovereigns who lived without permission in what was considered an incestuous union. The dispensing ]>ower of the popes was exerted in several cases of a tem})oral natiire, particularly in the legitinuition of children, for purposes even of succession. This Innocent III. claimed as an indirect consequence of his right to remove the canonical impediment which bastardy offered to ordination ; since it would be monstrous, he says, that one who is legiti- mate for spiritual functions should continue otherwise in any EccLES. Power. PAPAL ENCROACHMENTS. 347 civil matter. But the most important and miscluevous species of dispensations was from the observance of promissory oaths. Two principles are laid down in the decretals — that an oath disadvantageous to the Church is not binding ; and that one extorted by force was of slight obligation, and might be an- nulled by ecclesiastical authority, As the first of these maxims gave the most unlimited privilege to the popes of breaking all faith of treaties which thwarted their interest or passion, a privilege which they continually exercised, so the second was equally convenient to princes weary of observing engagements towards their subjects or their neighbors. They protested with a bad grace against the absolution of their people from allegiance by an authority to which they did not scruple to repair in order to bolster up their own perjuries. Thus Edward I.; the strenuous asserter of his temporal rights, and one of the iirst who opposed a barrier to the encroach- ments of the clergy, sought at the hands of Clement V. a dis- pensation from his oath to observe the great statute against arbitrary taxation. § 5. In all the earlier stages of papal dominion the supreme head of the Church had been her guardian and protector : and this beneficent character appeared to receive its consummation in the result of that arduous struggle which restored the ancient practice of free election to ecclesiastical dignities. Not long, however, after this triumph had been obtained, the popes began by little and little to interfere with the regular constitution. Their first step was conformable, indeed, to the prevailing system of spiritual independency. By the con- cordat of Calixtus it appears that the decision of contested elections was reserved to the emperor, assisted by the metro- politan and suffragans. But it was consonant to the prejudices of that age to deem the supreme pontiff a more natural judge, as in other cases of appeal. The point was early settled in England, where a doubtful election to the archbishopric of York, under Stephen, was referred to Rome, and there kept five years in litigation. Otho IV. surrendered this, among other rights of the empire, to Innocent III. by his capitula- tion; and from that pontificate the papal jurisdiction over such controversies became thoroughly recognized. But the real aim of Innocent, and perliaps of some of his predeces- sors, was to dispose of bishoprics, under pretext of determin- ing contests, as a matter of patronage. So many rules were established, so many formalities required by their constitutions, incorporated afterwards into the canon law, that the Court of 348 MANDATS. Chap. VII. Paut II. Rome might easily find means of annulling what had been done by the chapter, and bestowing the see on a favorite can- didate. The popes soon assumed not only a right of decision, but of devolution ; that is, of supplying the want of election, or the unfitness of the elected, by a nomination of their own. Thus Archbishop Langton, if not absolutely nominated, was at least chosen in an invalid and compulsory manner by the order of Innocent III., as we may read in our English his- torians. And several succeeding archbishops of Canterbury equally owed their promotion to the papal prerogative. Some instances of the same kind occurred in Germany, and it became the constant practice in Naples. While the popes were thus artfully depriving the chapters of their right of election to bishoprics, they interfered in a more arbitrary manner with the collation of inferior benefices. This began, though in so insensible a manner as to deserve no notice but for its consequences, with Adrian IV., who requested some bishops to confer the next benefice that should become vacant on a particular clerk. Alexander III. used to solicit similar favors. These recommendatory letters were called Mandats. But though such requests grew more frequent than was acceptable to patrons, they were preferred in moderate language, and could not decently be refused to the apostolic chair. But, as we find in the history of all usurping govern- ments, time changes anomaly into system, and injury into right ; examples beget custom, and custom ripens into law ; and the doubtful precedent of one generation becomes the fundamental maxim of another. No country was so intoler- ably treatetl by the po})es as England throughout the ignomini- ous reign of Henry III. Her Church seemed to have been so richly endowed only as the free pasture of Italian priests, who were placed by the mandatory le.tters of Gregory IX. and Innocent IV., in all the best benefices. If we may trust a solemn remonstrance in the name of the whole nation, they drew from England, in the middle of the thirteenth century, sixty or seventy thousand marks every year — a sum far ex- ceeding the royal revenue. This was asserted by the English envoys at the Council of Lyons. But the remedy was not to be sought in remonstrances to the Court of Rome, which exulted in the success of its encroachments. There was no defect of spirit in the nation to oppose a more adequate re- sistance ; but the weak-minded individual upon the throne sacrificed the public interest sometimes through habitual ti- midity, sometimes through silly ambition. If England, how- EccLES. Power. PROVISIONS AND RESERVES. 349 ever, suffered more remarkably, yet other countries were far from being untouched. A German writer about the beginning of the fourteenth century mentions a cathedral where, out of about thirty-five vacancies of prebends that had occurred within twenty years, the regular patron had filled only two. The case was not very different in France, where the continual usurpations of the popes produced the celebrated Pragmatic Sanction of St. Louis (a.d. 1268). This edict contains three important provisions ; namely, that all prelates and other patrons shall enjoy their full rights as to the collation of bene- fices, according to the canons ; that churches shall possess freely their rights of election ; and that no tax or pecuniary exaction shall be levied by the pope, without consent of the king and of the national Church. We do not find, however, that the French government acted up to the spirit of this ordinance ; and the Holy See continued to invade the rights of collation with less ceremony than they had hitherto used. Clement IV. published a bull in 12G6, Avhich, after asserting an absolute prerogative of the supiteme pontiff to dispose of all preferments, whether vacant or ifi reversion, confines itself in the enacting words to the reservation of such benefices as belong to persons dying at Eome (vacantes in curia). These had for some time been reckoned as a part of the pope's special patronage ; and their number, when all causes of im- portance were drawn to his tribunal, when metropolitans were compelled to seek their pallium in person, and even, by a recent constitution, exempt abbots were to repair to Home for confirmation, not to mention the multitude who flocked thither as mere courtiers and hunters after promotion, must have been very considerable. Boniface VIII. repeated this law of Clement IV. in a still more positive tone ; and Clement V. laid down as a maxim, that the pope might freely bestow, as universal patron, all ecclesiastical benefices. In order to render these tenable by their Italian courtiers, the canons against pluralities and non-residence Avere dispensed with ; so that individuals were said to have accumulated fifty or sixty preferments. It was a consequence from this extravagant principle, that the pope might prevent the ordinary collator upon a vacancy ; and, as this could seldom be done with suf- ficient expedition in places remote from his court, that he might make reversionary grants during the life of an incum- bent, or reserve certain benefices specifically for his own nomination. § 6. The persons as well as estates of ecclesiastics were 350 PAPAL TAXATION. Chap. VII. PAirr 11. secure from arbitrary taxation in all kingdoms founded upon the ruins of the empire, both by the common liberties of free- men and more particularly by their own immunities and the horror of sacrilege. Such, at least, was their legal security, whatever violence might occasionally be practised by tyran- nical princes. l>ut this exemptiom was compensated by an- nual donatives, probably to a large amount, which the bishops and monasteries were accustomed, and as it were compelled, to make to their sovereigns. They were subject also, generally speaking, to the feudal services and prestations. Henry I. is said to have extorted a sum of money from the English Church. But the first eminent instance of a general tax required from the clergy was the famous Saladine tithe — a tenth of all mov- able estate, imposed by the kings of France and England upon all their subjects, with the consent of their great councils of prelates and barons, to defray the expense of their intended crusade. Yet even this contribution, though called for by the imminent peril of the Holy Land after the capture of Jeru- salem, was not paid without reluctance, the clergy doubtless anticipating the future extension of such a precedent. Many years had not elapsed when a new demand was made upon them, but from a different quarter. Innocent III. (the name continually recurs when we trace the commencement of an usurpation) imposed in 1199 upon the whole Church a tribute of one-fortieth of movable estate, to be paid to his own collect- ors ; but strictly pledging himself that the money should only be applied to the purposes of a crusade. This crusade ended, as is well known, in the capture of Constantinople. But the word had lost much of its original meaning ; or rather, that meaning had been extended by ambition and bigotry. Greg- ory IX. preached a crusade against the Emperor Frederick, in a quarrel which only concerned his temporal principality ; and the Church of England was taxed, by his authority, to carry on this holy Avar. After some opposition the bishops sub- mitted, and from that time no bounds were set to the rapacity of papal exactions. The usurers of Cahors and Lombardy, residing in London, took up the trade of agency for tlie pope ; and in a few years he is said, partly by levies of money, partly by the revenues of benefices, to have plundered the kingdom of 950,000 marks ; a siim equivalent, perhaps, to not less than fifteen millions sterling at present. Henry III.'s pusillanimity would not permit any effectual measures to be adopted ; and in- deed he sometimes shared in the booty, and was indulged with the produce of taxes imposed upon his own clergy to defray EccLES. Power. DISAFFECTION TO THE CHURCH. 351 the cost of his projected wai- against Sicily. A nobler exam- ple was set by the kingdom of Scotland : Clement IV. having, in 1267, granted the tithes of its ecclesiastical revenues for one of his mock crusades, King Alexander III., with the con- currence of the Church, stood up against this encroachment, and refused the legate permission to enter his dominions. § 7. These gross invasions of ecclesiastical property, how- ever submissively endured, produced a very general disaffec- tion towards the Court of Rome. Pillaged upon every slight pretence, without law and without redress, the clergy came to regard their once patery^al monarch as an arbitrary oppressor. All writers of the thirteenth and following centuries complain, in terms of unmeasured indignation, and seem almost ready to reform the general abuses of the Ciiurch. They distinguished, however, clearly enoiigh between the abuses which oppressed them and those which it was their interest to preserve, nor had the least intention of waiving their own immunities and authority. But the laity came to more universal conclusions. A spirit of inveterate hatred grew up among them, not only towards the papal tyranny, but the wdiole system of ecclesias- tical independence. The rich envied and longed to plunder the estates of the superior clergy ; the poor learned from the Waldenses and other sectaries to deem such opulence incom- patible with the character of evangelical ministers. The itinerant minstrels invented tales to satirize vicious priests, which a predisposed multitude eagerly swallowed. If the thirteenth century was an age of more extravagant ecclesiasti- cal pretensions than any which had preceded, it was certainly one in which the disposition to resist them acquired greater consistence. § 8. To resist had, indeed, become strictly necessary, if the temporal governments of Christendom would occupy any bet- ter station than that of officers to the hierarchy. About the beginning of the twelfth century the ecclesiastical jurisdiction had rapidly encroached upon the secular tribunals, and seemed to threaten the usurpation of an exclusive supremacy over all persons and causes. The bishops gave the tonsure indiscrim- inately, in order to swell the list of their subjects. This sign of a clerical state, though below the lowest of their seven degrees of ordination, implying no spiritual office, conferred the privileges and immunities of the profession on all who wore an ecclesiastical habit and had only once been married. Orphans and widows, the stranger and the poor, the pilgrim and the leper, under the appellation of persons in distress 352 ECCLESIASTICAL JURISDICTION Chap. VII. Part IL (miserabiles personae), came within the peculiar cognizance and protection of the Ciiurch ; nor could they be sued before any lay tribunal. And tlie whole body of crusaders, or such as merely took the vow of engaging in a crusade, enjoyed the same clerical privileges. But wliere the character of the litigant parties could not, even with this large construction, be brought within their pale, the bishops found a pretext for their jurisdiction in the nature of the dispute. Spiritual causes alone, it was agreed, could appertain to the spiritual tribunal. But the word was indefinite ; and according to the interpreters of the twelfth century the Church was always bound to prevent and chastise the commission of sin. By this sweeping maxim, which we have seen Innocent III. apply to vindicate his control over national quarrels, the common differences of individuals, which generally involve some charge of wilful injury, fell into the hands of a religious judge. One is almost surprised to find that it did not extend more universally, and might praise the moderation of the Church. Real actions, or suits relating to tlie property of land, were always the exclusive province of the lay court, even where a clerk was the defendant. But the ecclesiastical tribunals took cognizance of breaches of contract, at least Avhere an oath had been pledged, and of personal trusts. They had not only an exclusive jurisdiction over questions immediately matrimonial, but a concurrent one with the civil magistrate in France, though never in England, over matters incident to the nuptial contract, as claims of marriage- portion and of dower. They took the execution of testaments into their hands, on account of the legacies to pious uses which testators were advised to bequeath. In process of time, and under favorable circumstances, they made still greater strides. They pretended a right to supply the defects, the doul)ts, or the negligence of temporal judges ; and invented a class of mixed causes, whereof the lay or ecclesiastical juris- diction took possessicm according to priority. Besides this extensive authority in civil disputes, they judged of some offences which naturally belong to tlie criminal law, as well as of some others which participate of a civil and criminal nature. Such were perjury, sacrilege, usury, incest, and adul- tery, from the punisliment of all which the secular magistrate refrained, at least in England, after tliey had become the ])rovince of a separate jurisdiction. Excommunication still continued the only chastisement which the Church could directly inflict. But the bishops acquired a right of having EccLES. Power. AND IMMUNITY. 353 their own prisons fur lay offenders, and the monasteries were the appropriate prisons of clerks. Their sentences of excom- munication were enforced by the temporal magistrate by imprisonment or sequestration of effects ; in some cases by confiscation or death. § 9. The clergy did not forget to secure along with this jurisdiction their own absolute exemption from the criminal justice of the state. This had been conceded to them by Charlemagne ; and this privilege was not enjoyed by clerks in England before the Conquest ; nor do we find it proved by any records long afterwards ; though it seems, by what we read about the constitutions of Clarendon, to have grown into use before the reign of Henry II. About the middle of the twelfth century the principle obtained general reception, and Innocent III. decided it to be an inalienable right of the clergy, whereof they could not be divested even by their own consent. Much less were any constitutions of princes, or national usages, deemed of force to abrogate such an important privilege. These, by the canon law, were invalid when they affected the rights and liberties of Holy Church. But the spiritual courts were charged with scandalously neglecting to visit the most atrocious offences of clerks with such punishment as they could inflict. The Churcli could always absolve from her own ceneures ; and confinement in a monastery, the usual sentence upon criminals, was frequently slight and temporary. Several instances are mentioned of heinous outrages that remained nearly unpunished through the shield of ecclesiastical privi- lege. And as the temporal courts refused their assistance to a rival jurisdiction, the clergy had no redress for their own injuries, and even the murder of a priest, at one time, as we are told, was only punishable by excomm;inication. § 10. Such an incoherent medley of laws and magistrates, upon the symmetrical arrangement of which all social economy mainly depends, could not fail to produce a violent collision. Every sovereign was interested in vindicating the authority of the constitution wliich had been formed by his ancestors, or by the peo})le whom he governed. But the first who undertook this arduous work, the first who appeared openly against eccle- siastical tyranny, was our Henry II. That king, in the consti- tutions of Clarendon, attempted in three respects to limit the jurisdiction assumed by the Church ; asserting for his own judges the cognizance of contracts, however confirmed by oath, and of rights of advowson, and also that of offences committed by clerks, whom, as it is gently expressed, after conviction or 354 ENDEAVORS TO REPRESS Chap. VII. Part II. confession the Cliurch ought not to protect. These constitu- tions were the leading sul)ject of difference between the king and Thomas a Becket. Most of them were annulled by the pope, as derogatory to ecclesiastical liberty. It is not improb- able, however, that, if Louis VII. had played a more dignified part, the See of Rome, which an existing schism rendered dependent upon the favor of those two monarchs, might have receded in some measure from her pretensions. But, France implicitly giving way to the encroachments of ecclesiastical power, it became impossible for Henry completely to with- stand them. The constitutions of Clarendon, however, produced some effect, and in the reign of Henry III. more unremitted and successful efforts began to be made to maintain the indepen- dence of temporal government. The judges of the King's Court had until that time been themselves principally ecclesi- astics, and consequently tender of spiritual privileges. But now, abstaining from the exercise of temporal jurisdiction, in obedience to the strict injunctions of their canons, the clergy gave place to common lawyers, professors of a system very discordant from their own. These soon began to assert the supremacy of their jurisdiction by issuing writs of prohibition whenever the ecclesiastical tribunals passed the boundaries which approved use had established. Little accustomed to such control, the proud hierarchy chafed under the bit ; seve- ral provincial synods protest against the pretensions of lay- men to judge the anointed ministers whom they were bound to obey ; the cognizance of rights of patronage and breaches of contract is boldly asserted ; but firm and cautious, favored by the nobility, though not much by the king, the judges receded not a step, and ultimately fixed a barrier which the Church was forced to respect. In the ensuing reign of Edward I., an archbishop acknowledges the abstract right of the King's Bench to issue })rohibitions ; and the statute entitled Circvm- specte ar/atis,^ in the thirteenth year of that prince, while by its mode of expression it seems designed to guarantee the actual privileges of spiritiial jurisdiction, had a tendency, espec- ially with the disposition of the judges, to preclude tlie asser- tion of some which are not therein mentioned. Neither the right of advowson nor any temporal contract is specified in this act as pertaining to the Church ; and accordingly the tem- 2 Tlie statute Circiimxpecte nff/i/is, for it is ncknowleiljipd as a statute, tlii)n.i;1i not dr:iwii up in the form of one, is fnundid upon an answer of Edward 1. to tlie pielates wlio bad petitioned for some modilication ofproliibitions. EccLES. Power. ECCLESIASTICAL JURISDICTION". 355 poral courts have ever since niaiutaiued an undisputed juris- diction over them. Tliey succeeded also partially in prevent- ing the impunity of crimes perpetrated by clerks. It was enacted by the statute of Westminster, in 1275, or rather a construction was put upon that act, which is obscurely worded, that clerks indicted for felony should not be delivered to their ordinary until an inquest had been taken of the matter of accusation ; and, if they were found guilty, that their real and personal estate should be forfeited to the crown. § 11. The vast accpiisitions of landed wealth made for many ages by bishops, chapters, and monasteries, began at length to excite the jealousy of sovereigns. They perceived that, al- though the prelates might send their stipulated proportion of vassals into the field, yet there could not be that active co- operation Avhicli the spirit of feudal tenures required, and th-it the national arm was palsied by the diminution of military nobles. Again, the reliefs \ipon succession, and similar dues upon alienation, incidental to fiefs, were entirely lost when they came into the hands of these undying corporations, to the serious injury of the feudal superior. ISTor could it escape reflecting men, during the contest about investitures, that, if the Church peremptorily denied the supremacy of the state over her temporal wealth, it was but a just measure of retalia- tion, or rather self-defence, that the state should restrain her further acquisitions. Prohibitions of gifts in mortmain, thougli unknown to the lavish devotion of the new kingdoms, had been established by some of the Roman emperors to check the overgrown wealth of the hierarchy. The first attempt at a limitation of this description in modern times was made by Frederick Barbarossa Avho, in 1158, enacted that no fief should be transferred, either to the Church or otherwise, without the permission of the superior lord. Louis IX. inserted a provision of the same kind in his Estal)lishments. Castile had also laws of a similar tendency. A license from the crown is said to have been necessary in England, before the Conquest, for alienation in mortmain ; but however that may be, there seems no reason to imagine that any restraint was put upon them by the common law before Magna Charta — a clause of which statute was construed to prohibit all gifts to religious houses without the consent of the lord of the fee. And by the 7th Edward I. alienations in mortmain are absolutely taken away ; though the king might always exercise his prerogative of grant- ing a license, which was not supposed to be affected by the statute. 356 BONIFACE VIII. Chap. YII. Part II. § 12. It nii;st appear, I think, to every careful inquirer that the papal authority, though manifesting outwardly more show of strength every year, had been secretly undermined, and lost a great deal of its hold upon public 0})inion, before the accession of Boniface VIII., in 1294, to the pontilical throne. The clergy were rendered sullen by demands of money, invasions of the legal right of patronage, and unreasonable partiality to the mendicant orders ; a part of the mendicants themselves had begun to declaim against the corruptions of the papal court ; while the laity, subjects alike and sovereigns, looked upon both the head and the members of the hierarchy with jealousy and dislike. Boniface, full of inordinate arrogance and am- bition, and not sufficiently sensible of this gradual change in human opinion, endeavored to strain to a higher pitch the despotic pretensions of former pontiffs. As Gregory VII. appears the most usurping of mankind till we read the history of Innocent III., so Innocent III. is thrown into shade by the superior audacity of Boniface VIII. But independently of the less favorable dispositions of the public, he wanted the most essential quality for an ambitious pope — reputation for integrity. He was suspected of having procured through fraud the resignation of his ju-edecessor, Celestine V.. and his harsh treatment of that worthy man afterwards seems to justify the reproach. His actions, however, display the intoxication of supreme self-contidence. If we may credit some historians, he appeared at the Jubilee in 1300 — a festival successfully instituted by himself to throw lustre around his court and fill his treasury^ — dressed in imperial habits, with the two swords borne before him, emldems of his temporal as w^ell as spiritual dominion over tlie earth. It was not long after his elevation to the pontificate before Boniface displayed his temper. The two most powerful sov- ereigns of Europe, l*hilip the Fair and Edward I., began at tlie same moment to attack in a very arbitrary manner the revenues of the Cliurch. The English clergy had, by their oavu volun- tary grants, or at least those of the prelates in their iiame, paid frequent subsidies to the crown from the beginning of the reign of Henry III. They had nearly in effect waived the ancient exemption, and retained only the common privilege of Englisli freemen to tax themselves in a constitutional manner. But Edward I. came upon them with demands so frequent and 3 The .Jubilee was a centenary commemoration in honor of St. Peter and St. Paul, establislied by Boniface VIII. on tlie faith of an imaginary precedent a century be- fore. The period was soon reduced to fifty years, and fri)ni llicnce to twenty-live, as it still continues. EccLES. Power. DISPUTES OF BONIFACE VIII. •^•'^7 exorbitant, that tliey were compelled to take advantage of a bull issued by Boniface, forbidcling them to pay any contribu- tion to the state. The king disregarded every pretext, and seizing their goods into his hands, with other tyrannical pro- ceedings, ultimately for(>,ed them to acquiesce in his extortion. It is remarkable that the pope appears to have been })assive throughout tliis contest of Edward I. with his clergy. But it was far otherwise in France. Philip the Fair had imposed a tax on the ecclesiastical order without their consent, a measure perhaps unprecedented, yet not more odious than the similar exactions of the King of England. Irritated by some previous differences, the pope issued his bull known by the initial words Clericis laicos, absolutely forbidding the clergy of every king- dom to pay, under whatever })retext of voluntary grant, gift, or loan, any sort of tribute to their government, without his special permission. Though France was not particularly named, the king understood himself to be intended, and took his re- venge by a prohibition to export money from the kingdom. This produced angry remonstrances on the part of Boniface ; but the Galilean Church adhered so faithfully to the crown, and showed, indeed, so much willingness to be spoiled of their money, that he could not insist upon the most unreasonable propositions of his bull, and ultimately allowed that the French clergy might assist their sovereign by voluntary contributions, though not by way of tax. For a very few years after these circumstances the pope and king of France appeared reconciled to each other ; and the latter even referred his disputes with Edward I. to the arbi- tration of Boniface, " as a private person, Benedict of Gaeta (his proper name), and not as pontiff ; " an almost nugatory precaution against his encroachment i;pon temporal authority. But a terrible storm broke out in the first year of the four- teenth century. A bishop of Bamiers, who had been sent as legate from Boniface with some complaint, displayed so much insolence and such disrespect towards tlie king, that IMiili}x considering him as his own subject, was provoked to put him under arrest, with the view to institute a criminal process. Boniface, incensed beyond measure at this violation of ecclesi- astical and legatine privileges, published several bulls ad- dressed to the king and clergy of France, charging the former with a variety of offences, some of them not at all concerning the Church, and commanding the latter to attend a council which he had summoned to meet at Rome. In one of these instruments, the genuineness of which does not seem li;d)le to 358 DISPUTES OF BONIFACE VIII. Chap. VII. Part II. inueli exception, he declares in concise and clear terms that the king was subject to him in temporal as well as spiritual matters. This proposition had not hitherto been explicitly advanced, and it was now too late to advance it. Philip re- plied by a short letter in the rudest language, and ordered his bulls to be publicly burned at Paris. Determined, how- ever, to show the real strength of his opposition, he summoned representatives from the three orders of his kingdom. This is commonly reckoned the iirst assembly of the States-General. The nobility and commons disclaimed with firmness the tem- poral authority of the pope, and conveyed their sentiments to Rome through letters addressed to the college of cardinals. The clergy endeavored to steer a middle course, and were re- luctant to enter into an engagement not to obey the pope's summons ; yet they did not hesitate unequivocally to deny his temporal jurisdiction. The council, lioAvever, opened at Rome ; and notwithstand- ing the king's absolute prohibition, many French prelates held themselves bound to be present. In this assembly Poniface l)romulgated his famous constitution, denominated Unam sanc- tam. The church is one body, he therein declares, and has one head. Under its command are two swords, the one spirit- ual, the other temporal ; that to be used by the supreme pon- tiff himself ; this by kings and knights, by his license and at his will. But the lesser sword must be subject to the greater, and the temporal to the spiritual authority. He concludes by declaring the subjection of every human being to the See of Rome to be an article of necessary faith. Another bull pro- nounces all persons of whatever rank obliged to appear when personally cited before the audience or apostolical tribunal at Rome ; " since such is our pleasure, who, by divine permission, riile the world." Finally as the rupture of Philip grew more evidently irreconcilai)le, and the measures pursued by that monarch more hostile, he not only excommunicated him, but offered the crown of France to the Emperor Albert I. This arbitrary transference of kingdoms was, like many other pre- tensions of that age, an improvement upon the right of depos- ing excommunicated sovereigns. Gregory VII. would not have denied that a nation released by his authority from its alle- giance must re-enter upon its original right of electing a new sovereign. But Martin IV. had assigned the crown of Aragon to Charles of Valois ; the first instance, I think, of such an usurpation of power, but which was defended by the homage of Peter II., who had rendered his kingdom feudally depend- EccLES. Power. WITH THE KING OF FKANCE. 359 ent, like Naples, upon the Holy See. Albert felt no eagerness to realize the liberal promises of Boniface ; who was on the point of issuing a bull absolving the subjects of Philip from their allegiance, and declaring his forfeiture, when a very un- exj)ected circumstance interrupted all his projects. Philip gave too much the air of a personal quarrel with Boniface to what should have been a resolute opposition to the despotism of Rome. Accordingly, in an assembly of his states at Paris, he preferred virulent charges against the pope, denying him to have been legitimately elected, imputing to him various heresies, and ultimately appealing to a general council and a lawful head of the Church. These measures were not very happily planned; and experience had always shown that Europe would not submit to change the common chief of her religion for the purposes of a single sovereign. But Philip succeeded in an attempt apparently more bold and singular. Nogaret, a minister who had taken an active share in all the proceedings against Boniface, was secretly despatched into Italy, and, joining with some of the Colonna family, pro- scribed as Ghibelins, and rancorously persecuted by the pope, arrested him at Anagnia, a town in the neighborhood of Rome, to which he had gone without guards. This violent action was not, one would imagine, calculated to place the king in an advantageous light ; yet it led accidentally to a favorable termination of his dispute. Boniface was soon rescued by the inhabitants of Anagnia ; but rage brought on a fever which ended in his death ; and the first act of his successor, Benedict XL, was to reconcile the King of France to the Holy See. § 13. The sensible decline of the papacy is to be dated from the pontificate of Boniface VIII. , who had strained its author- ity to a higher pitch than any of his predecessors. There is a spell wrought by uninterrupted good-fortune, which capti- vates men's understandings, and persuades them, against reasoning and analogy, that violent ])Ower is immortal and irresistible. The spell is broken by the first change of suc- cess. The tacit submission of the successors of Boniface VIII. to the King of France miglit have been hailed by Europe as a token that their influence was beginning to abate. Imprisoned, insulted, deprived eventually of life by the vio- lence of Philip, a prince excommunicated, and wlio had gone all lengths in defying and despising the papal jurisdiction, Boniface had every claim to be avenged by the inheritors of the same spiritual dominion. When Benedict XI. rescinded 360 DECLINE OF THE PAPACY. Chap. VII. Pakt II. the bulls of Ills predecessor, and admitted Philip the Fair to communion, without insisting on any concessions, he acted perhaps prudently, but gave a fatal blow to the temporal authority of Home. Benedict XI. lived but a few months, and his successor, Clement V., at the instigation, as is commonly supposed, of the King of France, by whose influence he had been elected, took the extraordinary step of removing the papal chair to Avignon (a.d. loOo). In this city it remained for more than seventy years ; a period which Petrarch and other writers of Italy compare to that of the Babylonish captivity. The major- ity of the cardinals was always French, and the popes were uniformly of the same nation. Timidly dependent upon the Court of France, they neglected the interests and lost the affections of Italy. Rome, forsaken by her sovereign, nearly forgot her allegiance ; what remained of papal authority in the ecclesiastical territories was exercised by cardinal legates, little to the honor or advantage of the Holy See. Yet the series of Avignon pontiffs Avere far from insensible to Italian politics. These occupied, on the contrary, the greater part of their attention. But engaging in them from motives too mtmi- festly selfish, and being regarded as a sort of foreigners from birth and residence, they aggravated that unpopularity and bad reputation which from various other causes attached itself to their court. § 14. Though none of the supreme pontiffs after Boniface VIII. ventured upon such explicit assumptions of a general jurisdiction over sovereigns by divine right as he had made in his controversy with Philip, they maintained one memorable struggle for temporal power against the Emperor Louis of Bavaria. His predecessor, Henry VII., Avhose measures, much to the alarm of the Court of Avignon, were directed towards the restoration of his imperial rights in Italy, had conferred tlie rank of vicar of the empire upon Matteo Visconti, lord of Milan. The popes had for some time pretended to possess that vicariate, during a vacancy of the empire ; and after Henry's death insisted upon Visconti's surrender of the title. A war ensued between the pope's legate and the Visconti family. The Emperor Louis sent assistance to the latter, as heads of the Ghibelin or imperial party. This interference cost him above twenty years of trouble. John XXIL, a man as passionate and ambitious as Boniface himself, immediately piiblished a bull in which he asserted the right of administer- ing the empire during its vacancy (even in Germany, as it EccLES. PowEK. PAPAL COUIIT AT AVIGNON, 3Gl seems from the generality of Lis expression), as well as of deciding in a donbtvful choice of the electors, to appertain to the Holy See ; and commanded Louis to lay down liis pre- tended authority until the supreme jurisdiction should deter- mine upon his election. Louis's election had, indeed, been questionable ; but that controversy was already settled in the held of Muhldorf, where he had obtained a victory over his competitor, the Duke of Austria ; nor had the pope ever inter- fered to appease a civil war during several years that Germany had been internally distracted by the dispute. The emperor, not yielding to this peremptory order, was excommunicated ; his vassals were absolved from their oath of fealty, and all treaties of alliance between him and foreign princes annulled (a.d. 1323). Germany, however, remained firm ; and if Louis himself had manifested more decision of mind and uniformity in his conduct, the Court of Avignon nn;st have signally failed in a contest from which it did not, in fact, come out very suc- cessful. But while at one time he went intemperate lengths against John XXIL, publishing scandalous accusations in an assembly of the citizens of Rome, and caused a Franciscan friar to be chosen in his room, after an irregular sentence of deposition, he was always anxious to negotiate terms of accom- modation, to give up his own active jjartisans, and to make concessions the most derogatory to his independence and dignity. From John, indeed, he had nothing to expect ; but Benedict XII. would gladly have been reconciled, if he had not feared the kings of France and Xaples, political adversa- ries of the emperor, who kept the Avignon pope's in a sort of servitude. His successor, Clement VI., inherited the implac- able animosity of John XXII. towards Louis, who died Avithout obtaining the absolution he had long abjectly solicited. § 15. Though the want of firmness in this emperor's char- acter gave sometimes a momentary triumph to the popes, it is evident that their authority lost ground during the continu- ance of this struggle. Their right of confirming imperial elec- tions was expressly denied by a Diet held at Frankfort in 1338, which established as a fundamental jDrinciple that the im])erial dignity depended upon God alone, and that whoever should be chosen by a majority of the electors became immediately both king and emperor, with all prerogatives of that station, and did not require the ap})robation of the pope. This law, con- firmed as it was by subsequent usage, emancijiated the German Empire, which was immediately concerned in opposing the papal claims. But some who were actively engaged in these 362 KAPACITY OF AVIGNON POPES. Chap. VII. Pabt II. transactions took more extensive views, and assailed tlie wlaole edifice of temporal poAver wliicli the Roman See had been con- structing for more than two centuries. Several men of learn- ing, among whom Dante, Ockham, and Marsilius of Padua are the most conspicuous, investigated the foundations of this superstructure, and exposed their insufficiency. Literature, too long the passive handmaid of spiritual despotism, began to assert her nobler birthright of ministering to liberty and truth. Though the writings of these opponents of Rome are not always reasoned upon very solid principles, they at least taught man- kind to scrutinize what had been received with implicit re- spect, and prepared the way for more philosophical discussions. About this time a new class of enemies had unexpectedly risen up against the rulers of the Church. These were a part of the Franciscan order who had seceded from the main body on ac- count of alleged deviations from the rigor of their primitive nile. Their schism was chiefly founded upon a quibble about the right of property in things consumable, which they maintained to be incompatible with ■^^.le absolute poverty prescribed to them. This frivolous sophistry was united with the wildest fanaticism; and as John XXII. attemi)ted to repress their follies by a cruel persecution, they proclaimed aloud the cor- ruption of the Church, fixed the name of Antichrist upon the papacy, and warmly supported the Emperor Louis throughout all his contention with the Holy See.^ Meanwhile, the popes who sat at Avigncn continued to in- vade with surprising rapaciousness the patronage and revenues of the Church. The mandats, or letters, directing a particular clerk to be preferred seem to have given place in a great degree to the more effectual method of appropriating benefices by reservation or provision, which was carried to an enormous extent in the fourteenth century. John XXII. , the most insa- tiate of pontiffs, reserved to himself all the bishoprics in Christendom. Benedict XII. assumed the privilege for his own life of disposing of all benefices vacant by cession, depri- vation, or translation. Clement VI. naturally thought that his title was ecpially good with his predecessors', and continued the same right for his own time ; which soon became a per- manent rule of the Roman Chancery. Hence the appointment of a prelate to a rich bishopric was generally but the first link in a chain of translation which the pope could regulate accord- * The schism of the rigid Franciscans or Fraticelli is one of the most singvihir parts of ecclesiastical history, and had a material tendency both to depress the temporal authority of the papacy and to pave the way for the Reformation. EccLES. Power. RArACITY OF AYIGNON TOPES. 363 ing to liis interest. Another capital innovation was made by John XXII. in the establishment of the famous tax called An- nates, or tirst-fniits of ecclesiastical benefices, Avhicli he im- posed for his own benefit. These were one year's value, estimated according to a fixed rate in the books of the Roman Chancery, and payable to the papal collectors throughout Europe. Various other devices were invented to obtain money, which these degenerate popes, abandoning the magnificent schemes of their predecessors, were content to seek as their principal object. John XXII. is said to have accumulated an almost incredible treasure, exaggerated perhaps by the ill-will of his contemporaries ; but it may be doubted Avhether even his avarice reflected greater dislioiK)r on the Church than the licen- tious profuseness of Clement VI. These exactions were too much encouraged by the kings of France, who participated in the plunder, or at least required a mutual assistance of the popes for their own imposts on the clergy. A manlier spirit was displayed by our ancestors. It was the boast of England to have placed the first legal barrier to the usurpations of Rome, if we except the insulated Prag- matic .Sanction of St. Louis, from which the practice of suc- ceeding ages in France entirely deviated. The English barons had, in a letter addressed to Boniface VIII., absolutely dis- claimed his temporal supremacy over their crowii, which he had attempted to set up by intermeddling in the quarrel of Scotland. This letter, it is remarkable, is nearly coincident in point of time with that of the French nobility ; and the two combined may be considered as a joint protestation of both kingdoms, and a testimony to the general sentiment among the superior ranks of the laity. A very few years afterwards the Parliament of Carlisle wrote a strong remonstrance to Clement V. against the system of provisions and other extor- tions, including that of first-fruits, which it was rumored, they say, he Avas meditating to demand. But the Court of Avignon was not to be moved by remonstrances ; and the feeble admin- istration of Edward II. gave way to ecclesiastical usurpations at home as well as abroad. His magnanimous son took a bolder line. After complaining ineffectually to Clement VI. of the enormous abuse which reserved almost all English benefices to the pope, and generally for the benefit of aliens, he passed, in 1350, the famous Statute of Pro'visors. This act, reciting one supposed to have been made at the Parliament of Carlisle, which, however, does not appear, and comjilaining in strong language of the mischief sustained through continual 364 KETURN OF POPES TO PvOME. Chap. VII. Pakt II. reservations of benefices, enacts that all elections and colla- tions shall be free, according to law, and that, in case any provision or reservation should be made by the Court of Rome, the king should for that turn have the collation of such a benefice, if it be of ecclesiastical election or patronage. This devolution to the crown, which seems a little arbitrary, was the only remedy that could be effectual against the connivance and timidity of chapters and spiritual jiatrons. We cannot assert that a statute so nobly planned was executed with equal steadiness. Sometimes by royal dispensation, sometimes by neglect or evasion, the papal bulls of provision were still obeyed, though fresh laws were enacted to the same effect as the former. It was found, on examination in 1307, that some clerks enjoyed more than twenty benefices by the pope's dis- pensation. And the Parliaments both of this and of Eichard II. 's reign invariably complain of tlie disregard shown- to the statute of provisors. This led to other measures, which I shall presently mention. § 1(). The residence of the popes at Avignon gave very general offence to Europe, and they could not themselves avoid perceiving the disadvantage of absence from their proper diocese, the city of St. I'eter, the source of all their claims to sovereign authority. But Eome, so long aban- doned, offered but an inhosi)itable reception ; Urban V. re- turned to Avignon, after z short experiment of the capital ; and it was not till 1376 that the promise, often repeated, and long delayed, of restoring the papal chair to the metropolis of Christendom, Avas ultimately fidfilled by Gregory XI. His death, which ha])pened soon afterwaids, prevented, it is said, a second fiiglit that he wac preparing (a.d. 1378). Tliis was followed by the great schism, one of the most remark- able events in ecclesiastical history. It is a difficult and by no means an interesting cpiestion to determine the validity of that contested election wliich distracted the Latin Church for so many years. In one fact, however, tliere is a common agreement, that the cardinals, of whom the majority were French, having assembled in conclave for the election of a successor to Gregory XI., were disturbed by a tumultuous populace, who demanded, with menaces, a Roman, or at least an Italian, pope. This tumult a])]3ears to have been sufficiently violent to excuse, and in fact did produce, a considerable de- gree of intimidation. After some time the cardinals made choice of the Archbishop of Bari, a Neapolitan, who assumed the name of Urban VI. His election satisfied the populace, EccLES. Power. ORIGIN OF THE GREAT SCHISM. 365 and traiKjuillity was restored. The cardinals announced their choice to the absent members of their coUege, and behaved towards Urban as their pope for several weeks. But his uncom- mon harshness of temper giving them offence, they withdrew to a neighboring town, and, protesting that his election had been compelled by the violence of the Koman populace, annulled the whole proceeding, and chose one of their own number, who took the pontilical name of Clement VII. Such are the leading circumstances which produced the famous schism. The two competitors shared the obedience of Europe in nearly equal proportions. Urban remained at Home, Clement re- sumed the station of Avignon. To the former adhered Italy, the empire, England, and the nations of the North ; the latter retained in his allegiance France, Spain, Scotland, and Sicily. Fortunately for the Church, no question of religious faith intermixed itself with this schism ; nor did any other impedi- ment to reunion exist than the obstinacy and selfishness of the contending parties. As is was impossible to come to any agreement on the original merits, there seemed to be no means of healing the wound but by the alxlication of both popes and a fresh undisputed election. This was the general wish of Europe, but urged with particular zeal by the Court of France, and, above all, by the university of Paris, which esteems this period the most honorable in her annals. The cardinals, liow- ever, of neither obedience would recede so far from their party as to suspend the election of a successor upon a vacancy of the pontificate, which would have at least removed one-half of the obstacle. The Eoman conclave, accordingly, placed three pontiffs successively — Boniface IX., Innocent VI., and Greg- ory XII. — in the seat of Urban VI. ; and the cardinals at Avignon, upon the death of Clement in 1394, elected Benedict XIII. (Peter de Luna), famous for his inflexible obstinacy in prolonging the schism. He repeatedly promised to sacrifice his dignity for the sake of union. But there was no subter- fuge to which this crafty pontiff had not recourse in order to avoid compliance with his word, though importuned, threat- ened, and even besieged in his palace at Avignon. Fatigued by his evasions, France withdrew her obedience, and the Gal- ilean Church continued for a few years without acknowledg- ing any supreme head. But this step, which was rather the measure of the University of Paris than of the nation, it seemed advisable to retract ; and Benedict was again obeyed, though France continued to urge his resignation. A second subtraction of obedience, or at least declaration of neutrality, 3G6 COUNCILS OF PISA AND CONSTANCE. Ch. VII. Pt. II. was resolved upon, as preparatory to the convocation of a general council. On the otlier hand, those who sat at Rome displayed not less insincerity. Gregory XII. bound himself by oath, on his accession, to abdicate when it should appear necessary. But while these rivals were loading each other with the mutual reproach of scliism, they drew on themselves the suspicion of at least a virtual collusion in order to retain their respective stations. At length the cardinals of both parties, wearied with so much dissimulation, deserted their masters, and summoned a general council to meet at Pisa. § 17. The council assembled at Pisa (1409), deposed both Gregory and Benedict, without deciding, in any respect, as to their pretensions, and elected Alexander V. by its own su- preme authority. This authority, however, was not univer- sally recognized ; the schism, instead of being healed, became more desperate ; for, as Spain adhered firmly to Benedict, and Gregory was not without supporters, there were now three contending pontiffs in the Church. A general council was still, however, the favorite, and indeed the sole remedy ; and John XXIII., successor to Alexander V., was reluctantly prevailed upon, or perhaps trepanned, into convoking one to meet at Constance (1414). In this celebrated assembly he was himself deposed — a sentence which he incurred by that tenacious clinging to his dignity, after repeated promises to abdicate, which had already proved fatal to his competitors. Tlie deposition of John, confessedly a legitimate pope, may strike us as an extraordinary measure. But, beside the op- portunity it might afford of restoring union, the council found a pretext for this sentence in his enormous vices, which indeed they seem to have taken upon common fame, without any judi- cial process. The true motive, however, of their proceedings against him was a desire to make a signal display of a new system, which had rapidly gained ground, and which I may venture to call the whig principles of the Catholic Church. A great question was at issue — whether the polity of that es- tablishment should be an absolute or an exceedingly limited monarchy. The papal tyranny, long endured, and still in- creasing, had excited an active spirit of reformation which the most distinguished ecclesiastics of France and other countries encouraged. They recurred, as far as their knowledge allowed, to a more primitive discipline than the canon law, and elevated the supremacy of general council. But in the formation of these they did not scruple to introduce material innovations. The bishops have usually been considered the sole members EccLES. Tower. COUNCIL OF CONSTANCE. 367 of ecclesiastical assemblies. At Constance, however, sat and voted not only the chiefs of monasteries, but the ambassadors of all Christian princes, the deputies of universities, with a multitude of inferior theologians, and even doctors of law. These were naturally accessible to the pride of sudden eleva- tion, which enabled them to control the strong and humiliate the lofty. In addition to this, the adversaries of the Court of Rome carried another not less important innovation. The Italian bishops, almost universally in the papal interests, were so numerous that, if suffrages had been taken by the head, their preponderance would liave impeded any measure of trans- alpine nations towards reformation. It was determined, there- fore, that the council should divide itself into four nations, the Italian, the German, the French, and the English, each with equal rights ; and that, every proposition having been separately discussed, the majority of the four sliould prevail. This revolutionary spirit was very unacceptable to the cardi- nals, who submitted reluctantly, and with a determination that did not prove altogether unavailing, to save their papal monar- chy by a dexterous policy. They could not, however, prevent the famous resolutions of the fourth and fifth sessions, which declare that the council has received, by Divine right, an authority to which every rank, even the papal, is obliged to submit, in matters of faith, in the extirpation of the present schism, and in the reformation of the Church, both in its head and its members; and that every person, even a pope, who shall obstinately refuse to obey that council, or any other law- fully assembled, is liable to such punishment as shall be neces- sary. These decrees are the great pillars of that moderate theory, with respect to the papal authority, which distinguished the Grallican Church. The purpose for which these general councils had been re- quired, next to that of healing the schism, was the reformation of abuses. All the rapacious exactions, all the scandalous ve- nality of which Europe had complained, while unquestioned pontiffs ruled at Avignon, appeared light in comparison of the practices of both rivals during the schism. Tenths repeatedly levied upon the clergy, annates rigorously exacted, and enhanced by new valuations, fees annexed to the complicated formalities of tlie papal chancer}^, were the means by which each half of the Church was compelled to reimburse its chief for the sub- traction of the other's obedience. Boniface IX., one of the Roman line, whose fame is a little worse than that of his an- tagonists, made a gross traffic of his patronage — selling the S68 COUNCIL OF COKSTAXCE. Chap. VII. Part IT. privileges of exeni})tion from ordinary jurisdiction, of holding benefices in commendam, and other dispensations, invented for the benefit of the Holy See. Nothing had been attempted at Pisa towards reformation. At Constance the majority Avere ardent and sincere ; the representatives of the French, German, and English Churches met with a determined and, as we have seen, not always unsuccessful resolution to assert their ecclesiastical liberties. They appointed a committee of refor- mation, whose recommendations, if carried into effect, would have annihilated almost entirely that artfully constructed machinery by which Rome had absorbed so much of the rev- enues and patronage of the Church. But men interested in perpetuating these abuses, especially the cardinals, improved tlie advantages which a skilful government always enjoys in playing against a popular assembly. They availed themselves of the jealousies arising out of the division of the council into nations, which exterior political circumstances had enhanced. France, then at war with England, whose pretensions to be counted as a fourth nation she had warmly disputed, and not well-disposed towards the Emperor Sigismund, joined with the Italians against the English and German members of the council in a matter of the utmost importance — tlie immediate election of a pope before the articles of reformation should be finally concluded. These two nations, in return, united with the Italians to choose the Cardinal Colonna, against the advice of the French divines, who objected to any member of the sacred college. The Court of Rome were gainers in both ques- tions. Martin V., the new pope, soon evinced liis determina- tion to elude any substantial reform. After publishing a few constitutions, tending to redress some of the abuses that had arisen during the schism, he contrived to make separate con- ventions with the several nations, and as soon as possil)le dis- solved the council. § 18. By one of the decrees passed at Constance, another general council was to be assembled in five years, a second at the end of seven more, and from that time a similar repre- sentation of the Church was to meet every ten years. Mar- tin V. accordingly convoked a council at Pavia, which, on account of the plague, was transferred to Siena ; but nothing of importance was transacted by this assembly. That which he summoned seven years afterwards to the city of P>asle had very different results (a.d. 14.33). The pope, dying before the meeting of this council, Avas succeeded by Eugenius IV., who, anticipating the spirit of its discussions, attempted to crush. EccLES. Power. COUNCIL OF BASLE. 369 its independence in the outset, by transferring the place of session to an Italian city. Ko point was reckoned so mate- rial in the contest between the popes and reformers as whether a council should sit in Italy or beyond the Alps. The Council of Basle began, as it proceeded, in open enmity to the Court of Rome. Eugenius, after several years had elapsed in more or less hostile discussions, exerted his prerogative of remov- ing the assembly to Ferrara, and from thence to Florence. For this he had a specious pretext in the negotiation, then apparently tending to a prosperous issue, for the reunion of the Greek Church ; a triumph, however transitory, of which his council at Florence obtained the glory. On the other hand, the assembly at Basle, though much weakened by the defection of those who adhered to Eugenius, entered into com- pacts with the Bohemian insurgents more essential to the interests of the Church than any union with tlie Greeks, and completed the work begun at Constance by abolishing the annates, the reservations of benefices, and other abuses of papal authority. In this it received the approbation of most princes ; but when, provoked by the endeavors of the pope to frustrate its decrees, it ])roceeded so far as to suspend and even to depose him, neither France nor Germany concurred in the sentence. Even the Council of Constance had not absolutely asserted a right of deposing a lawful pope, except in case of heresy, though their conduct towards John could not other- wise be justified. This question, indeed, of ecclesiastical pub- lic law seems to l)e still undecided. The fathers of Basle acted, however, with greater intrepidity than discretion, and, not ])erhaps sensible of the change that was taking place in public opinion, raised Amadeus, a retired duke of Savoy, to the pontifical dignity by the name of Felix V. They thus re- newed the schism, and divided the ol)edience of the Catholic Church for a few years. The empire, however, as well as France, observed a singular and not very consistent neutrality ; respecting Eugenius as a lawful pope, and the assemljly at Basle as a general council. England warmly supported Eugenius, and even adhered to his council at Florence ; Ara- gon and some coiintries of smaller note acknowledged Felix. But the partisans of Basle became every year weakt'r ; and Nicolas v., the successor of Eugenius, found no great difficulty in obtaining the cession of Felix, and terminating this schism. This victory of the Court of Rome over the Council of Basle nearly counterbalanced the disadvantageous events at Con- stance, and put an end to tlie project of fixing permanent 370 COUNCIL OF BASLE. Chap. VIL Pakt IL limitations upon the head of the Church by means of gener.J councils. Though the decree tliat prescribed the convocation of a council every ten years was still unrepealed, twice alone has the Catholic Church been convoked since the Council of Basle. It is a natural subject of speculation, what would have been ^ the effects of these universal councils, which were so po}>ular in the fifteenth century, if the decree passed at Con- stance for their periodical assembly had been regularly ob- served. Many Catholic writers, of the moderate or Cisalpine school, have lamented their disuse, and ascribed to it that irreparable breach which the Reformation has made in the fabric of their Church. But beyond the zeal, unquestionably sincere, which animated their members, especially at Basle, Jor the abolition of papal abuses, there is nothing to praise in their conduct, or to regret in their cessation. The statesman who dreaded the encroachments of priests upon the civil gov- 'ernment, the Christian who panted to see his rites and faith purified from the corruption of ages, found no hope of improve- ment in these councils. They took upon themselves the pre- tensions of the popes whom they attempted to supersede. V>j a decree of the fathers at Constance, all persons, including princ^es, who should oppose any obstacle to a journey under- taken by the Emperor Sigismund, in order to obtain the cession of Benedict, are declared excommunicated, and de- prived of their dignities, whether secular or ecclesiastical. Their condemnation of Huss and Jerome of Prague, and the scandalous breach of faith which they induced Sigismund to commit on that occasion, are notorious. But perhaps it is not equally so that this celebrated assembly recognized by a solemn decree the flagitious ])rinciple which it had practised, declaring that Huss was unworthy, through his obstinate ad- herence to heresy, of any privilege ; nor ought any faith or promise to be kept with him, by natural, divine, or human law, to the prejudice of the Catholic religion.^ It will be easy to estimate the claims of this congress of theologians to our veneration, and to weigh the retrenchment of a few abuses against the formal sanction of an atrocious maxim. B This proposition is tlio great disgrace of tlie council in tlie affair of Huss. But the violation of his safe-conduct being a famous event in ecclesiastical hi>t<>ry, and whicli has h(>en very much disputed with some degree of erroneous statement on botli sides, it mav be proper to give briefly an impartial summary. 1. Huss came to Constance with a safe-conduct of the emperor very loosely worded, and not directed to any individuals. Lenfant, t. i., p. 50. 2. This pass, however, was binding upon the emperor himself, and was so considered by him, when he remonstrated against the arrest of Huss. Id., p. 73, 83. ."1 It was not binding on tlie council, who pos- sessed no temporal power, but had a right to decide upon the question of heresy. EccLES. PowKR. STAND AGAINST PAPAL DESPOTISM. 371 § 19. It Avas nut, however, necessary for any government of tolerable energy to seek the reform of those abuses which affected the independence of national churches, and the in- tegrity of their regular discipline, at the hands of a general council. Whatever difficulty there might be in overturning the principles founded on the decretals of Isidore, and sanc- tioned by the prescription of many centuries, the more flagrant encroachments of papal tyranny were fresh innovations, some within the actual generation, others easily to be traced up, and continually disputed. The principal European nations determined, with different degrees indeed of energy, to make a stand against the despotism of Eome. In this resistance England was not only the first engaged, but the most con- sistent ; her free parliament preventing, as far as the times permitted, that wavering p':^licy to which a court is liable. We have already seen that a foundation was laid in the statute of provisors uncler Edward III. In the next reign many other measures tending to repress the interference of Rome were adopted, especially the great statute of praemunire, which sub- jects all persons bringing papal bulls for translation of bishops, and other enumerated purposes, into the kingdom to the pen- alties of forfeiture and perpetual imprisonment. This act received, and probably was designed to receive, a larger inter- pretation than its language appears to warrant. Combined with the statute of provisors, it put a stop to the pope's usur- pation of patronage, which had impoverished the church and kingdom of England for nearly two centuries. Several at- tempts were made to overthrow these enactments ; the first Parliament of Henry IV. gave a very large power to the king over the statute of provisors, enabling him even to annul it at his pleasure. This, however, does not appear in the statute- book. Henry indeed, like his predecessors, exercised rather largely his prerogative of dispensing with the law against papal provisions ; a prerogative which, as to this point, was itself taken away by an act of his own, and another of his son, Henry V. But the statute always stood unrepealed ; and 4. It is not manifest by what civil authority Huss was arrested, nor can I determine liow far the imperial safeguard was a legal protection within the city of Con- stance. 5. Sigismund was persuaded to acquiesce in the capital punisliment of Huss, and even to make it his own act (Lenfant,p. 409); by which he manifestly broke his engagement. 6. It is evident that in tliis he acted by the aiivice and sanc- tion of tlie council, who thus became accessory to the guilt of liis treacliery. The great moral to be drawn from the story of John Huss's condemnation is, that no breach of faith can be excused bv our opinion of ill-desert in tlie party, or by a narrow interpretation of our own engagements. Every capitulation ought to bo construed favorably for the weaker side. In such cases it is emphatically true that if the letter killethi the spirit should give life. 372 EFFORTS TO RESTRAIN Chap. VII. Part II. it is a satisfactory proof of the ecclesiastical supremacy of the legislature that in the concordat made by Martin V., at the Council of Constance, with the English nation, we find no mention of reservation of benefices, of annates, and the other princi])al grievances of that age ; our ancestors disdaining to accept by compromise with the pope any modification, or even confirmation of their statute law. They had already restrained another flagrant abuse, the increase of first-fruits by Boniface IX. ; an act of Henry IV. forbidding any greater sum to be paid on that account than had been formerly accustomed. It will appear evident to every person acquainted with the contemporary historians, and the proceedings of Parliament, that, besides partaking in the general resentment of Europe against the papal court, England was under the influence of a peculiar hostility to the clergy, arising from the dissemination of the yu-inciples of Wiclitf. All ecclesiastical possessions were marked for spoliation by the system of this reformer ; and the House of Commons more than once endeavored to carry it into effect, pressing Henry IV. to seize the temporali- ties of the Church for public exigencies. This recommenda- tion, besides its injustice, was not likely to move Henry, whose policy had been to sustain the prelacy against tiieir new adver- saries. Ecclesiastical jurisdiction was kept in better control than formerly by tlie judges of common law, who through rather a strained construction of the statute of praemunire, extended its penalties to the spiritual courts when they trans- gressed their limits. The privilege of clergy in criminal cases still remained ; but it was acknowledged not to comprehend higli treason. Germany, as well as England, was disappointed of her hopes of general reformation by the Italian party at Con- stance ; Init she did not supply tlie wants of the council's de- crees with suflicient decision. The concordats of Aschaffen- burg, in 1448, siirrendered great part of the independence for which Germany had contended. The pope retained his annates, or at least a sort of tax in their place ; and instead of reserving benefices arbitrarily, he oV)tained the positive right of collation during six alternate months of every year. Epis- copal elections were freely restored to the chapters, except in case of translation, when the pope still continued to nominate ; as he did also if any person, canonically unfit, were presented to him for confirmation. Rome, for the remainder of the fif- teenth century, not satisfied with the terms she had imposed, is said to have continually encroached upon the right of EccLES. Power. PAPAL USURPATIONS. 373 election. But she purchased too dearly her triumph over the weakness of Frederick III., and the Hundred Grievances of Germany, presented to Adrian VI. by the Diet of Xuremberg in 1522, manifested the working of a long-treasured resent- ment, that had made straight the path before the Saxon reformer. France, dissatisfied with the abortive termination of her exertions during the schism, rejected the concordat offered by Martin V., which held out but a promise of imperfect reforma- tion. She suffered in consequence the papal exactions for some years, till the decrees of the Council of Basle prompted her to more vigorous efforts for independence, and Charles VII. enacted the famous Pragmatic Sanction of Bourges. Tliis has been deemed a sort of JMagna Charta of the Galilean Church ; for though the law was speedily abrogated, its principle has remained fixed as tlie basis of ecclesiastical liberties. By the Pragmatic Sanction a general council was declared superior to the pope ; elections of bishops were made free from all con- trol ; mandats or grants in expectancy, and reservations of benefices, were taken away ; first-fruits were abolished. This defalcation of wealth, which had now become dearer than power, could not be patiently borne at Rome. Pius II., the same ^neas Sylvius who had sold himself to oppose the Coun- cil of Basle, in whose service he had been originally distin- guished, used every endeavor to procure the repeal of this ordinance. With Charles VII. he had no success ; but Louis XI., partly out of blind hatred to his father's memory, partly from a delusive expectation that the pope would support the Angevin faction in Naples, repealed the Pragmatic Sanction. This may be added to other proofs that Louis XL, even ac- cording to the measures of worldly wisdom, was not a wise politician. His people judged from better feelings ; the Parlia- ment of Ir'aris constantly refused to enregister the revocation of that favorite law, and it continued in many respects to be acted upon until tlie reign of Francis I. At tlie States-General of Tours, in 14(S4, the inferior clergy, seconded by the two other orders, earnestly requested that the Pragmatic Sanction might be confirmed ; but the prelates were timid or corrupt, and the regent Anne was unwilling to risk a quarrel with the Holy See. This unsettled state continued, the Pragmatic Sanction neither quite enforced nor (j^uite repealed, till Francis I., having accommodated the differences of his predecessor with Rome, agreed upon a final concordat with Leo X., the treaty that subsisted for almost three centuries between the 874 THE GALLTCAN" CHURCH. Chap. VIT. Part II. papacy and the kingdom of France. Instead of capitular elec- tion or papal provision, a new method was devised for tilling the vacancies of episcopal sees. The king was to nominate a fit person, whom the pope was to collate. The one obtained an essential patronage, the other preserved his theoretical su- premacy. Annates were restored to the pope ; a concession of great importance. He gave up his indefinite prerogative of reserving benefices, and received only a small stipulated patron- age. This convention met with strenuous opposition in France ; the Parliament of Paris yielded only to force ; the university hardly stopped short of sedition ; the zealous Galileans have ever since deplored it as a fatal wound to their liberties. There is much exaggeration in this, as far as the relation of the Gal- ilean Church to Rome is concerned ; but the royal nomination to bislioprics impaired of course the independence of the hier- archy. From the principles established during the schism, and in the Pragmatic Sanction of Bourges, arose the far-famed lib- erties of the Gallican Church, which honorably distinguished her from other members of the Roman communion. These liberties do not strictly fall within my limits; and it will be suthcient to observe tliat they depended upon two maxims ; one, that the pope does not possess any direct or indirect tem- poral authority ; the other, that his spiritual jurisdiction can only be exercised in conformity with such parts of the common law as are received by the kingdom of France. Hence the Gallican Church rejected a great part of the Sext and Clemen- tines, and paid little regard to modern papal bulls, which in fact obtained validity only by the king's approbation. The pontifical usurpations which were thus restrained af- fected, at least in their direct operation, rather the Cluirch than the State ; and temporal governments would only have been half emancipated, if their national hierarchies had pre- served their enormous jurisdiction. England, in this also, be- gan the work, and had made a considerable progress, while the mistaken piety or policy of Louis IX. and his successors had laid France open to vast encroachments. But the Parlia- ment of Paris, instituted in 1304, gradually establishod a para- mount authority over ecclesiastical as well as civil tribunals. Their progress was indeed very slow, and it was not till the beginning of the sixteenth century that they devised their famous form of procedure, the "appeal because of abuse." This, in the course of time, and through the decline of eccle- siastical power, not only proved an effectual barrier against EccLES. PowEU. DECLINE OF PAPAL INFLUENCE. 375 encroachments of spiritual jurisdiction, but drew back again to the lay court the greater part of those causes which by pre- scription, and indeed by law, had appertained to a different cognizance. Thus test?anentary, and even, in a great degree, matrimonial causes were decided by the Parliament; and in many other matters that body, being the judge of its own com- petence, narrowed, by means of the appeal because of abuse, the boundaries of the opposite jurisdiction. This remedial process appears to have been more extensively applied than our English writ of prohibition. The latter merely restrains the interference of the ecclesiastical courts in matters which the law has not committed to them. But the Parliament of Paris considered itself as conservator of the liberties and discipline of the Gallican Church ; and interposed the appeal because of abuse, whenever the spiritual court, even in its proper prov- ince, transgressed the canonical rules by which it ought to be governed. § 20. While the bisho})s of Rome were losing their general influence over Europe, they did not gain more estimation in Italy. It is indeed a problem of some difficulty, whether they derived any substantial advantage from their temporal princi- pality. From the termination of the schism, as the popes found their ambition tliAvarted beyond the Alps, it was diverted more and more towards schemes of the temporal sovereignty. In these we do not perceive that consistent policy which re- markably actuated their conduct as supreme heads of the Church. Men generally advanced in years, and born of noble Italian families, made the papacy subservient to the elevation of their kindred, or to the interests of a local faction. For such ends they mingled in the dark conspiracies of that bad age, distinguished only by the more scandalous tur})itude of their vices from the petty tyrants and intriguers with whom they were engaged. In the latter part of the fifteenth century, when all favorable prejudices were worn away, those who oc- cupied the most conspicuous station in Europe disgraced their name by more notorious profligacy than could be paralleled in the darkest age that had preceded ; and at the moment beyond which this work is not carried — the invasion of Italy by Charles VIII. — I must leave the pontifical throne in the pos- session of Alexander VI. 376 ANGLO-SAXON CONSTITUTION. Chap. Vill. Taut 1. CHAPTER VIII. THE ANGLO-SAXON CONSTITUTION. PART I. § 1. Sketch of Anglo-Saxon History. § 2. Succession to the Crown. § 3. Influence of Provincial Governors. § 4. Orders of Men. Thanes and Ceorls. § 5. British Natives and Slaves. § 0. "VVitenageniot. § 7. Judicial System. Division into Hundreds. County Court. § 8. Trial by Jury. Its Antiquity investigated. § 9. Law of Frank-pledge. Its several Stages. §10 Question of Feudal Tenures before the Conquest. § 1. The seven very unequal kindonis of the Saxon Heptar- chy, formed successively out of the countries wrested from the Britons, were originally independent of each other. Several times, however, a powerful sovereign acquired a preponderating influence over his neighbors, marked perhaps by the payment of tribute. Seven are enumerated by Bede as having thus reigned over the whole of Britain ; an expression which must be very loosely interpreted.^ Three kingdoms became at length pre- dominant — those of Wessex, Mercia, and Northumberland. The first rendered tributary the small estates of the South- east, and the second that of tlie Eastern Angles. But Egbert, king of Wessex, not only incorporated with his own monarchy the dependent kingdoms of Kent and Essex, but obtained an acknowledgment of his su])eriority from Mercia and Northum- berland ; the latter of which, though the most extensive of any Anglo-Saxon state, was too much weakened by its internal di- visions to offer any resistance. Still, however, the kingdoms of Mercia, East Anglia, and Northumberland remained under their ancient line of sovereigns ; nor did either Egbert or his five immediate successors assume the title of any other crown than Wessex. The destruction of those minor states was reserved for a dif- ferent enemy. About the end of the eighth century the Northern pirates began to ravage the coast of England. Scan- dinavia exhibited in that age a very singular condition of society. Her population, continually redundant in those bar- ren regions which gave it birth, was cast out in search of plunder upon the ocean. Those who loved riot rather than 1 See NoTii I., " The Bretwaldas." ENG1.1SH Const. DANISH INVASIONS. 377 famine embarked in large armaments under chiefs of legitimate authority as well as approved valor. Such were the Sea-kings, renowned in the stories of the North — the younger branches, commonly, of royal families, who inherited, as it were, the sea for their patrimony. Without any territory but on the bosom of the waves, without any dwelling but their ships, these princely pirates were obeyed by numerous subjects, and inti- midated ]nighty nations. Their invasions of England became continually more formidable ; and, as their confidence in- creased, they began first to winter, and ultimately to form per- manent settlements in the country. By their command of tlie sea, it was easy for them to harass every part of an island presenting such an extent of coast as Britain ; the Saxons, after a brave resistance, gradually gave way, and were on the brink of the same servitude or extermination which their own arms had already brought upon the ancient possessors. From this imminent peril, after the three dependent king- doms, Mercia, Northumberland, and East Anglia, had been overwhelmed, it was the glory of Alfred to rescue the Anglo- Saxon monarchy. Nothing less than the appearance of a hero so undespondiug, so enterprising, and so jtist, could have pre- vented the entire conquest of England. Yet he never sub- dued the Danes, nor became master of the whole kingdom. The Thames, the Lea, the Ouse, and the Roman road called Watling Street, determined the limits of Alfred's dominion. To the north-east of this boundary were spread the invaders, still denominated the armies of East Anglia and Northumber- land; a name terribly expressive of foreign conquerors, who retained their warlike confederacy, without melting into the mass of their subject population. Three able and active sov- ereigns, Edward, Athelstan, and Edmund, the successors of Alfred, pursued the course of victory, and not only rendered the English monarchy co-extensive with the present limits of England, but asserted at least a supremacy over the bordering nations.^ Yet even Edgar, the most powerful of the Anglo- Saxon kings, did not venture to interfere with the legal cus- toms of his Danish subjects.^ Under this prince, whose rare fortune as Avell as judicious conduct procured him tlie surname of Peaceable, the kingdom appears to have reached its zenith of prosperity. But his premature death changed the scene. The minority and feeble 2 See Note II., " Saxon Kiiifj.s of all Kiifrland." 3 It seems now to be ascertained, by the comparison of dialects, that the inhabit- ants from the Humber, or at least the Tyue, to the Firth of Forth, were chiefly Danes. 378 ANGLO-SAXON CONSTITUTION. Chap. VIII. Part I. character of Ethelred II. provoked fresh incursions of onr enemies beyond the German Sea. A long series of disasters, and the inexplicable treason of those to whom the public safety was intrusted, overthrew the Saxon line, and established Canute of Denmark upon the throne. The character of the Scandinavian nations was in some measure changed from what it had been during their first in- vasions. They had embraced the Christian faith ; they were consolidated into great kingdoms ; they had lost some of that predatory and ferocious spirit which a religion invented, as it seemed, for pirates had stimulated. Those, too, wlio had long been . settled in England became gradually more assimilated to the natives, whose laws and language were not radically dif- ferent from their own. Hence the accession of a Danish line of kings produced neither any evil nor any sensible change of polity. But the English still outnumbered their conquerors, and eagerly returned, when an opportunity arrived, to the ancient stock. Edward the Confessor, notwithstanding his Norman favorites, was endeared by the mildness of Ids charac- ter to the English nation, and subsequent miseries gave a kind of postliumous credit to a reign not eminent either for good- fortune or wise government. § 2. In a stage of civilization so little advanced as that of the Anglo-Saxons, and under circumstances of such incessant peril, the fortunes of a nation chiefly depend upon the wisdom and valor of its sovereigns. No free people, therefore, would intrust their safety to blind chance, and permit an uniform observance of hereditary succession to prevail against strong public expediency. Accordingly, the Saxons, like most other European nations, while they limited the inheritance of the crown exclusively to one royal family, were not very scrupulous about its devohition upon the nearest heir. It is an unwar- ranted assertion of Carte, that the rule of the Anglo-Saxon monarchy was "lineal agnatic succession, the blood of the second son having no right until the extinction of that of the eldest." * Unquestionably the eldest son of the last king, being of full age, and not manifestly incompetent, was his natural and probable successor ; nor is it, perhaps, certain that he always waited for an election to take upon himself tlie rights of sovereignty, although the ceremony of coronation, according to tlie ancient form, appears to imply its necessity. But the public security in those times was tliought incompatible with * Vol. i., p. .365. Blackstone has labored to prove the same proposition : but his knowledge of English history was rather superticial. English Const. SUCCESSION TO CKOWN. 379 a minor king ; and tlie artificial substitution of a regency, which stricter notions of hereditary right have introduced, had never occurred to so rude a people. Thus, not to mention those instances which the obscure times of the Heptarchy ex- hibit, Ethelred I., as some say, but certainly Alfred, excluded the progeny of their elder brother from the throne. Alfred, in his testament, dilates upon his own title, which he builds upon a triple foundation, the will of his father, the compact of his brother Ethelred, and the consent of the West-Saxon nobility. A similar objection to the government of an infant seems to have rendered Athelstan, notwithstanding his reputed illegitimacy, the public choice upon the deatJQ of Edward the Elder. Thus, too, the sons of Edmund I. were postponed to their Uncle Eldred, and again, preferred to his issue. And happy might it have been for England if this exclusion of infants had always obtained. But upon the death of Edgar, the royal family wanted some prince of mature years to pre- vent the crown from resting upon the head of a child; and hence the minorities of Edward II. and Ethelred II. led to misfortunes which overwhelmed for a time both the house of Cedric and the English nation. § 3. The Anglo-Saxon monarchy, during its earlier period, seems to have suffered but little from that insubordination among the superior nobility Avhich ended in dismembering the empire of Charlemagne. Such kings as Alfred and Athelstan were not likely to permit it. And the English counties, each under its own alderman, were not of a size to encourage the usurpation of their governors. But when the whole kingdom was subdued, there arose, unfortunately, a fashion of intrust- ing great provinces to the administration of a single earl. Notwithstanding their union, Mercia, Northumberland, and East Anglia were regarded in some degree as distinct parts of the monarchy. A difference of laws, though pr(*bably but slight, kept up this separation. Alfred governed Mercia by the hands of a nobleman who had married his daughter Etliel- fleda ; and that lady after her husband's death held the reins with a masculine energy till her own, when her brother Edward took the province into his immediate command. But from the era of Edward II. 's succession the provincial govern- ors began to overpower the royal authority, as they had done upon the Continent. England under this prince was not far removed from the condition of France under Charles the Bald. In the time of Edward the Confessor the wholf^ kingdom seems to have been divided among five earls ; ^ three of whom were 6 See p. 393. 380 ANGLO-SAXON CONSTITUTION. Chap. YIIl. Pakt I. Godwin and liis sons Harold and Tostig. It cannot be won- dered at that the royal line was soon supplanted by the most powerful and popular of these leaders, a prince well worthy to have founded a new dynasty, if his eminent qualities had not yielded to those of a still more illustrious enemy. § 4. The proper division of freemen was into Eorls and Ceoels, a division corresponding to the phrase '^ gentle and simple " of later times. The eorl was a gentleman, the ceorl a yeoman, but both freemen. The eorl did not become a title of office till the eleventh century, when it was used as synony- mous to alderman for the governor of a county or province. After the word became used in this restricted sense, the class of persons which it originally designated was called Thanes, and accordingly we have the twofold division of freemen into Thanes and Ceorls. Among all the Northern nations, as is well known, the were- gild, or compensation for murder, was the standard measure of the gradations of society. In the Anglo-Saxon laws we find two ranks of freeholders ; the first, called King's Thanes, whose lives were valued at 1200 shillings ; the second, of in- ferior degree, whose composition was half that siim. Tliat of a ceorl was 200 shillings. If this proportion to the value of a thane points out the subordination of rank, it certainly does not exhibit the lower freemen in a state of complete abase- ment. The ceorl was not bound, at least universally, to the land which he cultivated. He was occasionally called upon to bear arms for the public safety; he was protected against personal injuries, or trespasses on his land ; he was capable of property, and of the privileges which it conferred. If he came to possess five hydes of land (or about 600 acres), with a church and mansion of his own, he was entitled to tlie name and riglits of a thane. And if by owning five hydes of land he became a thane, it is plain that he might possess a less quan- tity without reaching that rank. There were, therefcu-e, ceorls with land of their own, and ceorls without land of their own ; ceorls who might commend themselves to what lord they pleased, and ceorls who could not qiut the hmd on which they lived, owing various services to the lord of the manor, but always freemen, and capable of becoming gentlemen. Nobody can doubt that the vilhmi and hordarii of Dooms- day-book, who are always distinguished from the serfs of the demesne, were the ceorls of Anglo-Saxon law. And I presume that the socmen, who so frequently occur in that record, though far more in some counties than in others, were ceorls English Const. OEDEKS OF MEN. 381 more fortunate than tlie rest, who, by purchase, had acquired freeholds, or, by prescription and the indulgence of their lords, had obtained such a property in the outlands allotted to them that they could not be removed, and in many instances might dispose -of them at pleasure. They are the root of a noble plant, the free socage tenants, or English yeomanry, whose independence has stamped with peculiar features both our constitution and our national character.^ § 5. Beneath the ceorls in political estimation were the con- quered natives or Britons. In a war so long and so obstinately maintained as that of tlie Britons against their invaders, it is natural to conclude that in a great part of the country the original inhabitants were almost extirpated, and that the re- mainder were reduced into servitude. This, till lately, has been the concurrent opinion of our antiquaries ; and, with some qualification, I do not see why it should not still be received. In every kingdom of the Continent which was formed by the Nortliern nations out of the Roman Empire, the Latin language preserved its superiority, and has much more been corrupted through ignorance and want of a standard than intermingled with their original idiom. But our own language is, and has been from the earliest times after the Saxon con- quest, essentially Teutonic, and of the most obvious affinity to those Low-German dialects which are spoken along the coast from Flanders to Holstein. With such as are extravagant enough to controvert so evident a truth it is idle to contend ; and those who believe great part of our language to be bor- rowed from the Welsh may doubtless infer that great part of our population is derived from the same source. If we look through the subsisting Anglo-Saxon records, there is not very frequent mention of British subjects. But some undoubtedly there were in a state of freedom, and possessed of landed estate. A Welshman (that is, a Briton) who held five hydes was raised, like a ceorl, to the dignity of thane. In the com- position, however, for their lives, and consequently in their rank in society, they were inferior to the meanest Saxon free- man. The slaves, who were frequently the objects of legis- lation, rather for the purpose of ascertaining their punishments than of securing their rights, may be presumed, at least in early times, to have been part of the conquered Britons. For though his own crimes, or the tyranny of others, might pos- sibly reduce a Saxon ceorl to this condition, it is inconceivable that the lowest of those avIio won England with their swords 6 For furtlicr information upon these points, see Note III., " Eorl and Ceorl." 382 ANGLO-SAXON CONSTITUTION. Chap. YIII. Pakt I. should, in the establishment of the new kingdoms, have been left destitute of personal liberty. § 6. The great council by which an Anglo-Saxon king was guided in all the main acts of government bore the appella- tion of AViTENAOEMOT, or the Assemhlij of the Wise Men. All their laws express the assent of this council ; and there are instances where grants made without its concurrence have been revoked. It was composed of prelates and abbots, of the aldermen of shires, and, as it is generally expressed, of the noble and wise men of the kingdom. Whether the lesser thanes, or inferior proprietors of lands, were entitled to a place in the national council, as they certainly were in the Shirgemot, or County Court, is not easily to be decided. If, however, all the body of thanes or freeliolders were admissible to the Witenagemot, it is unlikely that the privilege should have been fully exercised. Very few, I believe, at present imagine that there was any representative system in that age ; much less that tlie ceorls or inferior freemen had the smallest share in the deliberations of the national assembly. Every argument which a spirit of controversy once pressed into this service has long since been victoriously refuted.'^ § 7. It has been justly remarked by Hume that, among a people who lived in so simple a manner as these Anglo-Saxons, the judicial power is always of more consequence than the legislative. The liberties of these Anglo-Saxon thanes were chiefly secured, next to their swords and their free spirits, by the inestimable right of deciding civil and criminal suits in their own County Court ; an institution which, having sur- vived the Conquest, and contributed in no small degree to fix the liberties of England upon a broad and pojDular basis, by limiting the feudal aristocracy, deserves attention in following the history of the British constitution. The division of the kingdom into counties, and of these into hundreds and decennaries, for the pur])ose of administering justice, was not peculiar to England. In the early laws of France and Lombardy, frequent mention is made of the Hun- dred-court, and, now and then, of those petty village magis- trates Avho in England were called tithing-men. It has been usual to ascribe the establishment of this system among our Saxon ancestors to Alfred, upon the authority of Ingulfus, a writer contemporary with the Conquest, but the work Avhich bears his name is now usually considered a forgery. Neither the biographer of Alfred, Asserius, nor the existing laws of that 7 Note IV., " The Witenagemot." English Const. JUDICIAL SYSTEM. 383 prince, attribute the system to Alfred. With respect, indeed, to tlie division of counties, and their government by aldermen and sheriffs, it is certain that both existed long before his time ; and the utmost that can be supposed is, that he might in some instances have ascertained an unsettled boundary. There does not seem to be equal evidence as to the antiquity of the minor divisions. Hundreds, I think, are hrst mentioned in a law of Edgar, and tithings in one of Canute. But as Alfred, it must be remembered, was never master of more than half the kingdom, the complete distribution of England into these districts cannot, upon any supposition, be referred to him. There is, indeed, a circumstance observable in this division which seems to indicate that it could not have taken place at one time, nor upon one system ; I mean the extreme inequal- ity of hundreds in different parts of England. Whether the name be conceived to refer to the number of free families, or of land-holders, or of petty '. Ills, forming so many associations of mutual assurance or frank-pledge, one can hardly doubt that, when the term was first applied, a hundred of one or other of these were comprised, at an average reckoning, within the dis- trict. But it is impossible to reconcile the varying size of hundreds to any single hypothesis. The county of Sussex contains sixty-five, that of Dorset forty-three ; while Yorkshire has only twenty-six, and Lancashire but six. No difference of population, though the south of England was u.ndoubtedly far the best peopled, can be conceived to account for so prodigious a disparity. I know of no better solution than that the divis- ions of the North, properly called Avapentakes, were planned upon a different system, and obtained the denomination of hundreds incorrectly after the union of all England under a single sovereign. Assuming, therefore, the name and partition of hundreds to have originated in the southern counties, it will rather, I think, appear probable that they contained only a hundred free families, including the ceorls as well as their landlords. If we suppose none but the latter to have been numbered, we should find GOOO thanes in Kent, and G500 in Sussex — a reckoning totally inconsistent with any probable estimate. But though we have little direct testimony as to the population of tliose times, there is one passage which falls in very sufficiently with the former supposition. Bede says that the kingdom of the South Saxons, comprehending Surrey as well as Sussex, con- tained 7000 families. The county of Sussex alone is divided 384 ANGLO-SAXON CONSTITUTION. Chap. VIII. Part I. into sixty-five liundreds, which comes at least close enough to prove that free families, rather than proprietors, were the sub- ject of that numeration. The Court of the Hundred was held, as on the Continent, by its own eentenarius, or hundred-man, more often called alderman, and, in the Norman times, bailiff or constable, but under the sheriff's writ. It is, in the language of the law, the sheriff's tourn and leet. And in the Anglo-Saxon age it was a court of justice for suitors within the hundred, though it could not execute its process beyond that limit. It also pun- ished small offences, and was intrusted with the "view of frank-pledge," and the maintenance of the great police of mu- tual surety. In some cases — that is, when the handred was competent to render judgment — it seems that the County Court could only exercise an appellate jurisdiction for denial of right in the lower tribunal. But, in course of time, the for- mer and more celebrated court became the real arbiter of im- portant suits ; and the court-leet fell almost entirely into disuse as a civil jurisdiction, contenting itself with punishing petty offences and keeping up a local police.^ It was to the County Court that an English freeman chiefly looked for the maintenance of his civil rights. In this assembly, held twice in the year by the bishop and the alderman,^ or, in his absence, the sheriff, the oath of allegiance was administered to all free- men, breaches of the peace were inquired into, crimes were investigated, and claims were determined. In this court alone, the thanes, to the exclusion of inferior freemen, were the judges of civil controversies. The latter, indeed, were called upon to attend its meetings, or, in the language of our present law, were suitors to the court, and it was penal to be absent. But this was on account of other duties, the oath of allegiance which they were to take, or the frank-pledges into which they were to enter, not in order to exercise any judicial power ; un- less we conceive that the disputes of the eeorls were decided by judges of their own rank. Ko appeal could be made to the royal tribunal, unless justice was denied in the County Court. 8 Sir F. Palfrrave, in the "Edinburp:b Roviow"for 1822 (xxxvi , 287), deduces the liuiulred from the hcerdd of the Soiiiidiiiiiviau kingdoms, tlie integral unit of the Sciindinavian commonwealths. He points out tliat the hundr('(l was as mucli tlie or- ganic germ of tlie Anglo-Saxon commonweidth as the ha'rad was of the Scandinavian. Thus, the leet, held every month, and composed of the tithinj,' -men or head-boroughs, representing the inhahifants, were both the inquest and tlie jury, possessing juris- di(!tion, as he con<'eives, in all cases, civil, criminal, and ecclesiastical, though this was restrained after the Conquest. 9 The alderman was the highest rank after the royal family, to which he some- times belonged. Every county had its alderman; but the njiine is not aiiplied in written documents to magistrates of boroughs before the Conquest. Engtjsh Const. TRIAL BY JURY. 3S5 There were, however, royal judges, who, either by Avay of ap- peal from the lower courts, or in excepted cases, formed a paramount judicature ; but how their court was composed un- der the Anglo-Saxon sovereigns, I do not pretend to assert. § 8. It had been a prevailing opinion that trial by jury may be referred to the Anglo-Saxon age, and common tradition has ascribed it to the wisdom of Alfred ; but this opinion is now universally abandoned. The only passage in the laws of Al- fred bearing upon this ])oint is as follows : " If any one accuse a king's thane of homicide, if he dare to purge himself, let him do it along with twelve king's thanes." " If any one accuse a thane of less rank than a king's thane, let him purge himself along with eleven of his equals, and one king's thane." This law, which some contend to mean nothing but trial by jury, really refers to that ancient usage of compurgation, where the accused sustained his own oath by those of a number of his friends, who pledged their knowledge, or at least their belief, of his innocence. Other passages in the Saxon laws which have been cited in favor of the antiquity of trial by jury equally refer to compurgators. Their numbers were some- times twelve, at other times twenty-four, and occasionally thirty-six. The principle of the whole law of compurgation is to be found in that stress laid upon general character which per- vades the Anglo-Saxon jurisi)rudence. The law of frank-})ledge proceeded upon the maxim that the best guaranty of every man's obedience to the government was to be sought in tlie confidence of his neighbors. The seeds of our present form of trial by jury may be dis- covered in a law of Ethelred II., by which a court was to be held in every wapentake, where the sheriff and twelve princi- pal thanes should swear that they would neither acquit any criminal nor convict any innocent person. It seems more prob- able that these thanes were permanent assessors to the sheriff, lice the scabini, so frequently mentioned in the early laws of France and Italy, than jurors indiscriminately selected. Their duties were to present offenders, and they bear analogy to our grand juries. They must be clearly distinguished from the compurgators already mentioned. The nearest approach to a regular jury wliich has been pre- served in our scanty memorials of the Anglo-Saxon age occurs in the- history of the monastery of Ramsey. A controversy relating to lands between that society and a certain nobleman was brouglit into the Coimty Court, when each party was heard 386 ANGLO-SAXON CONSTITUTION. Chap. VIII. Part I. in his own behalf. After this commencement, on account, probably, of the length and difficulty of the investigation, it was referred by the court to thirty-six thanes, equally chosen by both sides. And here we begin to perceive the manner in which those tumultuous assemblies — the mixed body of free- holders in their County Court — slid gradually into a more steady and more diligent tribunal. But this was not the work of a single age. In the Conc^ueror's reign we hnd a proceeding very similar to the case of Ramsey, in which the suit had been commenced in the County Court before it was found expedient to remit it to a select body of freeholders. In the reign of William Rufus, and down to that of Henry II., when the trial of writs of right by the Grand Assize was introduced, there are other instances of the original usage. It is impossible not to be struck with the preference given to twelve, or some multiple of it, in fixing the number either of judges or compurgators. This was not peculiar to England — there are several instances of it in the early German laws ; and that number seems to have been regarded with equal ven- eration in Scandinavia. It is very immaterial from what ca- price of superstition this predilection arose, but its general prevalence shows that, in searching for the origin of trial by jury, we cannot rely for a moment upon any analogy which the mere number affords. I am induced to make this observa- tion, because some of the passages wliich have been alleged by eminent men for the purpose of establishing the existence of that institution before the Conquest seem to have little else to support them.^'* § 9. There is certainly no part of the Anglo-Saxon polity which has attracted so much the notice of modern times as the law of frank-pledge, or mutual responsibility of the members of a tithing for each other's abiding the course of justice. This, like the distribution of hundreds :md tithings themselves, and like trial by jury, has been generally attributed to Alfred ; and of this, I suspect, we must also deprive him. The peculiar system of frank-pledges seems to have passed through the following very gradual stages : At first, an accused person was obliged to find bail for standing his trial. At a subsequent period, his relations were called upon to become sureties for payment of the composition and other fines to which he was "liable. They were even subject to be impris- oned until payment was made, and this imprisonment was com- mutable for a certain sum of money. The next stage was, to i» Note V., " Trial by Jury." English Const. FKANK-PLEDGE. 387 make persons already convicted, or of suspicious repute, give sureties for their future behavior. It is not till the reign of Edgar that we find the first general law, wliich places every man in the condition of the guilty or suspected, and compels him to find a surety, who shall be responsible for his appear- ance when judicially summoned. This is perpetually repeated and enforced in later statutes, during his reign and that of Ethelred. Finally, the laws of Canute declare the necessity of belonging to some hundred and tithing, as well as of providing sureties ; and it may, perhaps, be inferred that the custom of rendering every member of a tithing answerable for the ap- pearance of all the rest, as it existed after the Conquest, is as old as the reign of this Danish monarch. It is an error to suppose, as some have stated, that " the members of every tithing were resj^onsible for the conduct of one another ; and that the society, or their leader, might be prosecuted and compelled to make reparation for an injury committed by any individual." In fact, the members of a tithing were no more than perpetual bail for each other. '' The greatest security of the public order (say the laws as- cribed to the Confessor) is that every man must bind himself to one of those societies which the English in general call freeborgs, and the people of Yorkshire ten men's tale." This consisted in the responsibility of ten men, each for the other, throughout every village in the kingdom ; so that, if one of the ten committed any fault, the nine should produce him in justice ; where he should make reparation by his own property or by personal punishment. If he fled from justice a mode was provided according to which the tithing might clear them- selves from participation in his crime or escape ; in default of such exculpation, and the malefactor's estate proving deficient, they were compelled to make good the penalty. And it is equally manifest, from every other passage in which mention is made of this ancient institution, that the obligation of the tithing was merely that of permanent bail, responsible only indirectly for the good behavior of their members. Every freeman above the age of twelve years was required to be enrolled in some tithing. In order to enforce this essen- tial part of police, the courts of the tourn and leet were erected, or rather, perhaps, separated from that of the county. The periodical meetings of these, whose duty it was to inquire into the state of tithings, whence they were called the view of frank-pledge, are regulated in Magna Charta. But this cus- tom, which seems to have been in full vigor when Bracton 388 ANGLO-SAXON CONSTITUTION. Chap. VIII. Part I. wrote, and is enforced by a statute of Edward II., gradually died away in succeeding times. § 10. It remains only, before we conclude tliis sketch of the Anglo-Saxon system, to consider the once famous question respecting the establishment of feudal tenures in England before the Conquest. The distribution of landed property m England by the Anglo- Saxons is clearly explained by Mr. Allen, in his inquiry into the *' Rise and Growth of the Royal Prerogative." " Part of the lands they acquired was converted into estates of inherit- ance for individuals ; part remained the property of the pub- lic, and was left to the disposal of the state. The former was called Bocland ; the latter Foldand. " Foldand, as the word imports, was the land of the folk, or people. It was the projjerty of the community. It might be occupied in common, or possessed in severalty. P>ut, while it continued to be folcland, it could not be alienated in perpe- tuity ; and therefore, on the expiration of the term for which it had been granted, it reverted to the community, and was again distributed by the same authority. " Bodand was held by book, or charter. It was land tliat had been severed by an act of government from the folcland, and converted into an estate of perpetual inheritance. It might belong to the Church, to the king, or to a subject. It might be alienable and devisable at the will of the proprietor. It might be limited in its descent without any power of aliena- tion in the possessor. It was often granted for a single life, or for more lives than one, with remainder in perpetuity to the Church. It was forfeited for various delin(iuencies to tlie state. ''Folcland was subject to many burdens and exactions from which bocland was exempt. 'J'he possessors of folcland Avere bound to assist in the re])aration of royal vills and in other pub- lic works. They were liable to have travellers and others quartered on them for subsistence. They were required to give hospitality to kings and great men in their })rogresses through the country, to furnish them with carriages and relays of horses, and to extend the same assistance to their messengers, followers, and servants, and even to the persons who had charge of their haAvks, horses, and hounds. Such, at least, are the bur- dens from which lands are liberated when converted by charter into bocland. ''Bocland was liable to none of these exactions. It was released from all services to the public, with the exception of English Const. FEUDAL TENURES. 389 contributing to military expeditions, and to the reparation of castles and bridges. These duties or services were comprised in the phrase of trrnoda necessitas, which were said to be in- cumbent on all persons, so that none could be excused from them. The Church indeed contrived, in some cases, to obtain an exemption from them ; but in general its lands, like those of others, were subject to them" (p. 142). The obligations of the trinoda necessitas, and especially that of military service, have been sometimes thought to denote a feudal tenure. There is, however, a confusion into which we may fall by not sufficiently discriminating the rights of a king as chief lord of his vassals, and as sovereign of his subjects. In every country the supreme power is entitled to use the arm of each citizen in the public defence. The usage of all nations agrees with common reason in establishing this great principle. There is nothing, therefore, peculiarly feudal in this military service of land-holders ; it was due from the allodial pro- prietors upon the Continent ; it was derived from their Ger- man ancestors ; it had been fixed, probably, by the legislatures of the Heptarchy upon the first settlement in Britain. It is material, however, to observe that a thane forfeited his hereditary freehold by misconduct in battle — a penalty more severe than was inflicted upon allodial proprietors on the Con- tinent. We even find in the earliest Saxon laws that the sithcundman, who seems to have corresponded to the inferior thane of later times, forfeited his land by neglect of attendance in war ; for which an allodialist in France would only have paid his heribannum, or penalty. ISTevertheless, as the policy of different states may enforce the duties of subjects by more or less severe sanctions, I do not know that a law of forfeiture in such cases is to be considered as positively implying a feudal tenure. But a much stronger presumption is afforded by passages that indicate a mutual relation of lord and vassal among the free proprietors. The most pow^erful subjects have-not a natural right to the service of other freemen. But in the laws enacted during the Heptarchy we find that the sithcundman, or petty gentleman, might be dependent on a superior lord. This is more distinctly expressed in some ecclesiastical canons, apparently of the tenth century, which distinguished the king's thane from the land-holder, who depended upon a lord. Other proofs of this might be brought from the Anglo-Saxon laws. It is not, however, sufficient to prove a mutual relation be- tween the higher and lower order of gentry, in order to estab- 390 ANGLO-SAXON CONSTITUTION. Chap. VIII. Pakt I. lish the existence of feudal tenures. For this rehition was often personal, and bore the name of commendation. And no nation was so rigorous as the English in compelling every man, from the king's thane to the ceorl, to place himself under a lawful superior. Hence the question is not to be hastily de- cided on the credit of a few passages that express this grada- tion of dependence ; feudal vassalage, the object of our inquiry, being of a real, not a personal nature, and resulting entirely from the tenure of particular lands. But it is not unlikely that the personal relation of client, if I may use that word, might in a multitude of cases be changed into that of vassal. And, certainly, many of the motives Avhich operated in France to produce a very general commutation of allodial into feudal tenure, might have a similar influence in England, where the disorderly condition of society made it the interest of every man to obtain the protection of some potent lord. The word thane corresponds in its derivation to vassal ; and the latter term is used by Asserius, the contemporary biog- rapher of Alfred, in s})eaking of the nobles of that prince. In their attendance, too, upon the royal court, and the fidelity which was expected from them, the king's thanes seem exactly to have resembled that class of followers who, under different appellations, were the guards, as well as courtiers, of the Frank and Lombard sovereigns. But I have remarked that the word thane is not applied to the whole body of gentry in the more ancient laws, where the word earl is opposed to the ceorl, or roturier, and that of sithcxmdman to the royal thane. It would be too much to infer, from the extension of this latter word to a large class of persons, that we should interpret it with a close attention to etymology, a very uncertain guide in almost all investigations. For the age immediately preceding the Norman invasion we cannot have recourse to a better authority than Doomsday- book. That incomparable record contains the names of every tenant; and the conditions of his tenure, under the Confessor, as well as at the time of its compilation, and seems to give little countenance to the notion that a radical change in the system of our laws had been effected during the interval. In almost every page we meet with tenants either of the crown or of other lords, denominated thanes, freeholders (liberi homines), or socagers (socmanni). Some of these, it is stated, might sell their lands to whom they pleased ; others were re- stricted from alienation. Some, as it is expressed, might go with their lands whither they would ; by which I understand English Const. FEUDAL TENURES. 391 the right of commending themselves to any patron of their choice. Tliese, of course, couhl not be feudal tenants in any proper notion of that term. Others could not depart from tlie lord whom they served ; not, certainly, that they were per- sonally bound to the soil, but that, so long as they retained it, the seigniory of the superior could not be defeated. But I am not aware that military service is specified in any instance to be due from one of these tenants ; though it is difficult to speak as to a negative proposition of this kind with any confidence. No direct evidence appears as to the ceremony of homage, or the oath of fealty, before the Conquest. The feudal exac- tion of aid, in certain prescribed cases, seems to have been unknown. Still less could those of wardship and marriage prevail, whicli were no general parts of the great feudal sys- tem. The English lawyers, through an imperfect acquaintance with the history of feuds upon the Continent, have treated these unjust innovations as if they had formed essential parts of the system, and sprung naturally from the relation between lord and vassal. And, with reference to the present question, Sir Henry Spelman has certainly laid too much stress upon them in concluding that feudal tenures did not exist among the Anglo-Saxons, because their lands were not in ward, nor their persons sold in marriage. It has been shown in another place how the right of terri- torial jurisdiction was generally, and at last inseparably, con- nected with feudal tenure. Of this right we meet frequent instances in the laws and records of the Anglo-Saxons. And Doomsday -book is full of decisive proofs that the English lords had their courts wherein they rendered justice to their suitors, like the Continental nobility — privileges which are noticed with great precision in that record, as part of the statistical survey. For the right of jurisdiction, at a time when punishments were almost wholly pecuniary, was a matter of property, and sought from motives of rapacity as well as pride. Whether, therefore, the law of feudal tenures can be said to have existed in England before the Conquest, must be left to every reader's determination. Perhaps any attempt to decide it positively would end in a verbal dispute. In tracing the history of every political institution, three things are to be considered — the principle, the form, and the name. The last will probably not be found in any genuine Anglo-Saxon record. Of the form, or the peculiar ceremonies and incidents 392 NOTES TO CHAPTER VIII. Part I. of a regular fief, there is some, though not much, appearance. But those who reflect upon the dependence in which free and even noble tenants held their estates of other subjects, and upon the privileges of territorial jurisdiction, will, I think, perceive much of the intrinsic cliaracter of the feudal relation, though in a less mature and systematic sha[)e than it assumed after the Norman Conquest." 11 It will probably be never disputed again that lands were granted by a military tenure before the Cdnquest. But the general tenure of lands was still allodial. We may jirobably not err very much in su]i|iiising tliat the state of tenures in England under Canute or the Confessor was a good deal like those in France under Charle- magne or Charles the Bald — an allodial trunk with numerous branches of feudal benetice grafted into it. But the conversion of the one mode of tenure into the other, so frequent in France, does not appear by evidence to have prevailed on this side of the Channel. On this question Professor Stubbs remarks (" Select Charters," etc., p. i:i) : " From the end of the tenth century a change sets in which might ultimately, by a slow and steady series of causes and consequences, have produced something like Continental feudalism. The great position taken by iidgar and Canute, to whom the princes of the other king(loms of the island submitted as vassals, had the efl'ect of centralizing the government and increasing the power of the king. Early in the eleventh century he seems to have entered on the right of disposing of the public land without reference to the witan, and of calling up to his own court by writ suits which had not yet exhausted the powers of the lower tribunals. The number of royal vassals was thus greatly increased, and with them the power of royal and noble jurisdictions. Canute proceded so far in the direction of imperial feudalism as to rearrange the kingdom under a very small number of great earls, who were strong enough in some cases to transmit'their autliority to their children, though not without new investiture, and who, had time been given for the system to work, would have no doubt develoi)ed tliesame sort of feudality as prevailed abroad. Already by subinfeudation or by commendation great portions of the land of the country were being held by a feudal tenure, and tlie allodial tenure, which had once been universal, was heconiing the privilege of a few great nobles too strong to be unseated, or a local usage in a class of land-owners too humble to be dangerous." NOTES TO CHAPTEK Vlll. 393 NOTES TO CHAPTER VIII. — Part I. I. THE BRETWALDAS. These seven princes emimeratei.1 by Bede have been called Bietwaldas, an was an Englishman, but passed at ten years old, a.d. 1084, into Normandy, where he became professed inthe monastery of Eu. English Const. HIS CHARACTER. 403 portion of nearly 8000 mesne tenants. And we may presume that they were in a very much greater proportion among tlie "liberi homines," who held lands, subject only to free services, seldom or never very burdensome. It may be added that many Normans, as we learn from liistory, married English heiresses, rendered so, frequently, no doubt, by the violent deaths of their fathers and brothers, but still transmitting ancient rights, as well as native blood, to their jDosterity. This might induce us to suspect that, great as the spolia- tion must appear in modern times, and almost completely as the nation was excluded from civil power in the Common- wealth, there is some exaggeration in the language of those writers who represent them as universally reduced to a state of penury and servitude. But, whatever may have been the legal condition of the English mesne tenant, by knight-ser- vice or socage — for the case of villeins is of course not here considered during the first two Norman reigns — it seems evi- dent that he was protected by the charter of Henry I. in the hereditary possession of his lands, subject only to a " laAvful and just relief towards his lord ; " for this charter is addressed to all the liege men of the crown, " French and English," and purports to aljolish all the evil customs by which the kingdom had been oppressed, extending to the tenants of the barons as well as those of the crown. The vast extent of the Norman estates in capite is apt to de- ceive us. In reading of a baron who held forty or fifty or one hundred manors, we are prone to fancy his wealth something like what a similar estate would produce at this day. But if we look at the next words, we shall continually find that some one else held of him ; and this was a holding by knight's ser- vice, subject to feudal incidents, no doubt, but not leaving the seigniory very lucrative, or giving any right of possessory ownership over the land. The real possessions of the tenant of a manor, whether holding in chief or not, consisted in the demesne lands, the produce of which he obtained without cost by the labor of the villeins, and in whatever other payments they might be bound to make in money or kind. It will be re- membered, what has been more than once inculcated, that at this time the villani and bordarii, that is, ceorls, were not, like the villeins of a later time, destitute of rights in their prop- erty ; their condition was tending to the lower stage, and, with a Norman lord, they were in much danger of oppression ; but they were " law-worthy " — they had a civil status (to pass from one technical style to another) for a century after the Conquest. 404 WILLIAM I. Chap. VIII. Pakt II. Yet I would not extenuate the calamities of this great rev- olution, true though it be that mueli good was brought out of them, and that we owe no trifling part of what inspires self- esteem to the IS'orman element of our population and our polity. England passed under the yoke — she endured the ar- rogance of foreign conquerors — her children, even though their loss in revenue may have been exaggerated, and still it was enormous, became a low race, not called to the councils of their sovereign, not sharing his trust or his bounty. They were in a far different condition from the provincial Romans after the conquest of Gaul, even if, which is hardly possible to determine, their actual deprivation of lands should have been less extensive. For not only they did not for several reigns occu])y the honorable stations which sometimes fell to the lot of the Roman subject of Clovis or Alaric, but they had a great deal more freedom and importance to lose. Nor had they a protecting Church to mitigate barbarous superiority ; their bishops were degraded and in exile ; the footstep of the invader was at their altars ; their monasteries were plundered, and the native monks insulted. Rome herself looked with little favor on a Church which had preserved some measure of independ- ence : strange contrast to the triumphant episcopate of the Merovingian kings ! * § 3. Besides the severities exercised upcm the English after every insurrection, two instances of William's unsparing cru- elty are well know — the devastation of Yorkshire and of the New Forest. In the former, which had the tyrant's plea, necessity, for its pretext, an invasion being threatened from Denmark, the whole country between the Tyne and the Hum- ber was laid so desolate that for nine years afterwards there was not an inhabited village, and hardly an inhabitant left — the wasting of this district haviug been followed by a famine which swept away the whole popidation. That of the New Forest, though undoubtedly less calamitous in its effects, seems more monstrous from the frivolousness of the cause. He afforested several other tracts. And these favorite de- mesnes of the Norman kings were protected by a system of iniquitous and cruel I'egulations, called the Forest Laws, wliich it became afterwards a great object with tlie asserters of liberty to correct. The penalty for killing a stag or a boar was loss of eyes ; for William loved the great game, says the Saxon Chronicle, as if he had been their father. * The oppression of the English during the first reigns after the Conquest is fully described by the Norman historians themselves, as well as by the Saxon Chronicle. Their testimonies are well collected by M. Thierry in the second volume of his val- uable history. English Const. HIS TYRANNY. 405 A more general proof of the ruinous oppression of William the Conqueror may be deduced from the comparative condition of the English towns in the reign of Edward the Confessor and at the compilation of Doomsday. At the former epoch, there w^ere in York 1GU7 inhabited houses ; at the latter, 967 : at the former, there were in Oxford 721 ; at the latter, 243 : of 172 houses in Dorchester, 100 were destroyed ; of 243 in Derby, 103 ; of 487 in Chester, 205. Some other towns had suffered less, but scarcely any one fails to exhibit marks of a decayed population.^ The demesne lands of the crown, extensive and scattered over every county, were abundantly sufficient to support its dignity and magnificence ; ^ and William, far from wasting this revenue by prodigal grants, took care to let them at tlie highest rate to farm, little caring how much the cultivators were racked by his tenants. Yet his exactions, both feudal and in the way of tallage, from his burgesses and the tenants of his vassals, were almost as violent as his confiscations. No source of income was neglected by him, or, indeed, by his suc- cessors, however trifling, unjust, or unreasonable. His reve- nues, if we could trust Ordericus Vitalis, amounted to £1000 a day. This, in mere weight of silver, would be equal to nearly £1,200,000 a year at present. But the arithmetical statements of these writers are not implicitly to be relied upon. He left at his death a treasure of £60,000, which, in conformity, to his dying request, his successor distributed among the Church and poor of the kingdom, as a feeble ex- piation of the crimes by which it had been accumulated ; an act of disinterestedness which seems to prove that llufus, amidst all his vices, was not destitute of better feelings than historians have ascribed to him. It might appear that Wil- liam had little use for his extorted wealth. By the feudal constitution, as established during his reign, he commanded the service of a vast army at its own expense, either for do- mestic or Continental warfare. But this was not sufficient for his purpose; like other tyrants, he put greater trust in mercenary obedience. Some of his predecessors had kept bodies of Danish troops in pay ; partly to be secure against their hostility, partly from the convenience of a regular army, and the love which princes bear to it. But William carried this to a much greater lengtli. He had always stipendiary 6 The population recorded in Doomsday is about 283,000; which, in round num- bers, .allowing for women and children, may be called about a million. 6 They consisted of H22 manors. 406 FEUDAL SERVICES. Chap. VIII. Part II. soldiers at his command. Indeed, his army at the Conquest could not have been swollen to such numbers by any other means. They were drawn, by the allurement of high pay, not from France and Brittany alone, but Flanders, Germany, and even Spain. When Canute of Denmark threatened an in- vasion in 1085, William, too conscious of his own tyranny to use the arms of his English subjects, collected a mercenary force so vast, that men wondered, says the Saxon Chronicle, how the country could maintain it. This he quartered upon the people, according to the proportion of their estates. § 4. Whatever may be thought of the Anglo-Saxon tenures, it is certain that those of the feudal system were thoroughly established in England under the Conqueror. It has been ob- served, in another part of this work, that the rights, or feudal incidents, of wardship and marriage were more, common in England and Kormandy than in the rest of France. They certainly did not exist in the former before the Conquest ; but wliether they were ancient customs of the latter cannot be ascertained, unless we had more incontestable records of its early jurisprudence. There appears, however, reason to think that the seizure of the lands in wardship, the selling of the heiress in marriage, were originally deemed rather acts of violence than conformable to law. For Henry I.'s charter expressly promises that the mother, or next of kin, shall have the custody of the lands as well as person of the heir. And as the charter of Henry II. refers to and confirms that of his grandfather, it seems to follow that what is called guardianship in chivalry had not yet been established. At least it is not till the assize of Clarendon, confirmed at Northampton in 1176, that the custody of the heir is clearly reserved to the lord. With respect to the right of consenting to the marriage of a female vassal, it seems to have been, as I have elsewliere ob- served, pretty general in feudal tenures. But the sale of her person in marriage, or the exaction of a sum of money in lieu of this scandalous tyranny, was only the law of England, and was not, perhaps, fully authorized as such till the statute of Merton, in 1236. One innovation made by William upon the feudal law is very deserving of attention. By the leading principle of feuds, an oath of fealty Avas due from the vassal to the lord of wliom he immediately held his land, and to no other. The King of France, long after this period, had no feu.dal, and scarcely any royal authority over the tenants of his own vassals. But William received at Salisbury, in 1085, the fealty of all land- English Const. FEUDAL SERVICES. 407 holders in England, both those who held in chief and their tenants ; thus breaking in upon the feudal compact in its most essential attribute, the exclusive dependence of a vassal upon his lord. And this may be reckoned among the several causes which prevented the Continental notions of independ- ence upon the crown from ever taking root among the English aristocracy. § 5. The system of feudal policy, though derived to Eng- land from a French source, bore a very different appearance in the two countries. France, for about two centuries after the house of Capet had usurped the throne of Charlemagne's posterity, could hardly be deemed a regular confederacy, nuich less an entire monarciiy. But m England a government feudal, indeed, in its form, but arbitrary in its exercise, not only maintained . subordination, but almost extinguished liberty. Several causes seem to have conspired towards this radical difference. In the first place, a kingdom comparatively small is much more easily kept under control than one of vast extent. And the fiefs of Anglo-Norman barons after the Con- quest were far less considerable, even relatively to the size of the two countries, than those of France. The Earl of Chester held, indeed, almost all that county ; "^ the Earl of Shrews- bury nearly the whole of Salop. But these domains bore no comparison with the dukedom of Guienne, or the county of Toulouse. In general, the lordships of William's barons, whether this were owing to policy or accident, were exceed- ingly dispersed. Eobert, Earl of Moreton, for example, the most richly endowed of his followers, enjoyed 248 manors in Cornwall, 54 in Sussex, 196 in Yorkshire, 99 in Northampton- shire, besides many in other counties. Estates so disjoined, however immense in their aggregate, were ill calculated for supporting a rebellion. It is observed by Madox that the knight's fees of almost every barony were scattered over various counties. In the next place, these baronial fiefs were held under an actual derivation from the crown. The great vassals of France had usurped their dominions before the accession of Hugh Capet, and barely submitted to his nominal sovereignty. 7 This was, upon the whole, more like :i great French fief tlian nny English earl- dom. Hugh de Abrincis, nephew of William I., had barons of his own, cue of whom held forty-six and another thirty manors. Chester was first called a county-palatine under Henry II.; but it previously possessed all regalian rights of jurisdiction. Al- ter the forfeitures of the house of Jlontgomery, it acquired all the country between the Mersey and Ribble. Several eminent men inherited the earldom; but upon the death of the most distinguished, Ranulf, in l'-!.TJ, it fell into a female line, and soon escheated to the crown. 408 THE NOKMAN KINGS. Chap. VIII. Part II. They uever intended to yield the feudal tril)utes of relief and aid, nor did some of them even acknowledge the supremacy of his royal jurisdiction. But the Conqueror and his succes- sors imposed what conditions they would upon a set of barons who owed all to their grants ; and as mankind's notions of right are generally founded upon prescriptions, these peers grew accustomed to endure many burdens, reluctantly indeed, but without that feeling of injury which would have resisted an attempt to impose them upon the vassals of tlie French crown. For the same reasons the barons of England were regularly summoned to the great council ; and by their attend- ance in it, and concurrence in the measures which were there resolved upon, a compactness and unity of interests was given to the monarchy which was entirely wanting in that of France. We may add to the circumstances that rendered tlie crown powerful during the first century after the Conquest, an ex- treme antipathy of the native English towards their invaders. l>()th William Rufus and Henry I. made use of the former to strengthen themselves against the attempts of their brother Kobert, though they forgot their promises to the English after attaining their object. A fact mentioned by Ordericus Vitalis illustrates the advantage which the government found in this national animosity. During the siege of Bridgenorth, a town belonging to Robert de Belesme, one of the most turbulent and powerful of the Norman barons, by Henry I. in 1102, the rest of the nobility deliberated together, and came to the con- clusion that if the king could expel so distinguished a subject he would be able to treat them all as his servants. They endeavored, therefore, to bring about a treaty ; but the Eng- lish part of Henry's army, hating Robert de Belesme as a Norman, urged the king to proceed with the siege, which he did, and took the castle. § 6. Unrestrained, therefore, comparatively spenking, by the aristocratic principles which influenced other feudal countries, the administration acquired a tone of rigor and arbitrariness under William the Conqueror Avhich, though sometimes per- haps a little mitigated, did not cease during a century and a half. For the first three reigns we must have recourse to historians whose language, though vague, and perhaps exagger- ated, is too uniform and impressive to leave a doubt of the tyrannical character of the government. The intolerable exactions of tribute, the rapine of purveyance, the iniquity of royal courts, are continually in their mouths. " God sees the English Const. GOVERNMENT OF NORMAN KINGS. 409 wretched people," says the Saxon chronicler, " most unjustly oppressed ; first they are despoiled of their possessions, then butchered. This Avas a grievous year (1124). Whoever had any property lost it by heavy taxes and unjust decrees." The same ancient chronicle, which a})pears to have been continued from time to time in the Abbey of Peterborough, frequently utters similar notes of lamentation. From the reign of Stephen, the miseries of which are not to my immediate purpose, so far as they proceeded from anarchy and intestine war,** we are able to trace the character of gov- ernment by existing records.^ These, digested by the industri- ous Madox into his History of the Exchequer, give us far more insight into the spirit of the constitution, if we may use such a word, than all our monkish clironicles. It was not a sanguin- ary despotism. Henry II. was a piince of remarkable clem- ency ; and none of the Conqueror's successors were as grossly tyrannical as himself. But the system of rapacious extortion from their subjects prevailed to a degree which we should rather expect to find among Eastern slaves than tliat high-spir- ited race of Normandy whose renown then filled Europe and Asia. The right of wardshij) was abused by selling the heir and his land to the highest bidder. That of marriage was carried to a still grosser excess. The kings of France, indeed, claimed the prerogative of forbidding the marriage of their vassals' daughters to such persons as they thought unfriendly or dan- gerous to themselves ; but I am not aware that they ever com- pelled them to marry, much less that they turned this attribute of sovereignty into a means of revenue. But in England, women, and even men, simply as tenants-in-chief, and not as wards, fined to the crown for leave to marry whom they would, or not to be compelled to marry any other. Towns not only fined for original grants of franchises, but for repeated confir- mations. The Jews paid exorl)itant sums for every common right of mankind, for protection, for justice. In return they were sustained against their Christian debtors in demands of usury 8 Tlie following simple picture of that reisrii from the Saxon Chronicle may be worth inserting: " The nobles and bishops built castles, and lilled them witli devil- ish and wiclved men, and opjiressed tlie people, cruelly torturing men for tlieir money. They imposed taxes upon towns, and, when they had exhausted them of every tiling, set them on fire. You might travel a day and not find one man living in a town, nor any land in cultivation. Never did the country sufTer greater evils. If two or tliree men were seen riding up to a town, all its inhabitants left it, taking them for plun- derers. And tills lasted, growing worse and worse, throughout Stephen's reign. Men said openly that Christ and his saints were asleep" (p. 2'A9). '•> The earliest record in the Pipe-office is tliat which Madox, in conformity to a usage of others, cites by the name of IMagiium Rotulum quinto Stephani. But in a particular dissertation subjoined to his History of the Exchequer he inclines, though not decisively, to refer this record to the reigii of Henry I. 410 GENERAL TAXES. Chap. VIU. 1'akt II. which superstition and tyranny reudered enormous. Men fined for the king's good-will ; or that he would remit his anger ; or to have his media-ti(jn with their adversaries. Many fines seem, as it w^ere, imposed in sport, if we look to the cause; though their extent, and the solemnity with which they were recorded, prove the humor to have been differently relished by the two parties. Thus the Bishop of Winchester paid a tun of good wine for not reminding the king (John) to give a girdle to the Countess of Albemarle ; and Robert de Vaux five best palfreys, tiiat the same king might hold his peace about Henry Pinel's wife. Another paid four marks for leave to eat (pro licentia comedendi). But of all the abuses which deformed the Anglo-Norman government, none was so flagitious as the sale of judicial redress. The king, we are often told, is the fountain of justice ; but in those ages it was one which gold alone could unseal. Men fined to have right done them ; to sue in a certain court ; to implead a certain person ; to have restitution of land which they had recovered at law. From the sale of that justice which every citizen has a right to de- mand, it was an easy transition to withhold or deny it. Fines were received for the king's help against the adverse suitor ; that is, for perversion of justice, or for delay. Sometimes they were paid b}^ opposite parties, and, of course, for opposite ends. These were called counter-fines. -^^ § 7. Among a people imperfectly civilized the most out- rageous injustice towards individuals may pass without the slightest notice, while in matters affecting the community the powers of government are exceedingly controlled. It becomes, therefore, an important question what prerogative these Nor- man kings were used to exercise in raising money and in gen- eral legislation. By the prevailing feuclal customs the lord was entitled to demand pecuniary aid of his vassals in certain cases. These were, in England, to make his eldest son a knight, to marry his eldest daughter, and to ransom himself from captivity. Accordingly, when such circumstances occurred, aids were levied by the crown u])on its tenants, at the rate of a mark or a pound for every knight's fee.^-' These aids, being stdctly due in the prescribed cases, were taken without requir- ing tiie consent of Parliament. Escuage, which was a commu- 1" The most oppoi5ite instances of these exactions are well selected from Madoxby Hume, Appendix II. " The reasonable aid was fixed by the st.atute of Westminster 1, 3 Edw. I., c. 36, at twenty shillings for every knijjlit's fee, and as much for every £l!0 value of laud held by socage. The aid pour faire Htz chevalier might be raised when he entered into his tifteeutli year; pour lille marier wheu she reached the age of seven. English Const. LEGISLATlOISr. 411 tation for the personal service of military tenants in war, having ratlier tlie appearance of an indulgence than an imposi- tion, might reasonably be levied by the king. It was not till the charter of John that escuage became a parliamentary as- sessment ; the custom of commuting service having then grown general, and the rate of commutation being variable. None but military tenants could be liable for escuage ; but the inferior subjects of tlie crown were oppressed by tallages. The demesne lands of the king, and all royal towns, were lia- ble to tallage ; an imposition far more rigorous and irregular than those which fell upon the gentry. Tallages were con- tinually raised upon different towns during all the Norman reigns without the consent of Parliament, which neither rep- resented them nor cared for their interests. The itinerant justices in their circuit usually set this tax. Sometimes the tallage was assessed in gross upon a town, and collected by the burgesses; sometimes individually at the judgment of the justices. There was an apjieal from an excessive assessment to the barons of the Exchequer. Inferior lords miglit tallage their own tenants and demesne towns, though not, it seems, without the king's permission. Customs upon the import and export of merchandise, of which the prisage of wine — that is, a right of taking two casks out of each vessel — seems the most material, were imraemorially exacted by the crown. There is no appearance that these originated with Parliament. Another tax, extending to all the lands of the kingdom, was Danegeld, the ship-money of those times. This name had been originally given to the tax imposed under Ethelred II., in order to raise a tribute exacted by the Danes. It was after- wards applied to a permanent contribution for the public de- fence against the same enemies. But after the Conquest this tax is said to have been only occasionally required ; and the latest instance on record of its payment is in the 20th of Henry II. Its imposition appears to have been at the king's discretion. § 8. The right of general legislation was undoubtedly placed in the king, conjointly with his Great Council, or, if the expression be thought more proper, with their advice. So little opposition was found in these assemblies by the early Norman kings, that they gratified their own love of pomp, as well as the pride of their barons, by consulting them in every important business. But the limits of legislative power were extremely indefinite. ^^ New laws, like new taxes, affecting '2 See Note I., " The Legislation of the Great Council." 412 CHARTERS. Chap. Vill. PAiix 11. the community, required tlie sanction of that assembly which was supposed to represent it ; but tliere was no security for individuals against acts of prerogative which we should justly consider as most tyrannical. Henry II., the best of these mouarchs, banished from England the relations and friends of Becket, to the number of four hundred. At another time he sent over from Normandy an injunction that all the kindred of those who obeyed a papal interdict should be banished and their estates conhscated. § 9. The statutes of those reigns do not exhibit to us many provisions calculated to maintain public liberty on a broad and general foundation. And although the laws then enacted have not all been preserved, yet it is unlikely that any of an extensively remedial nature should have left no trace of their existence. We find, however, what has sometimes been called the Magna Charta of Williain the Conqueror. " We will, en- join, and grant," says the king, " that all freemen of our king- dom shall enjoy their lands in peace, free from all tallage, and from every unjust exaction, so that nothing but their service lawfully due to us shall be demanded at their hands." ^^ It is remarkable that no reference is made to this concession of William the Conqueror in any subsequent charter. A charter of Henry I., the authenticity of which is undisputed, though it contains notliing specially expressed but a remission of un- reasonable reliefs, wardships, and other feudal burdens," pro- ceeds to declare that he gives his subjects the laws of Edward the Confessor, with the emendations made by his father with consent of his barons. The charter of Stephen not only con- firms that of his predecessor, but adds, in fuller terms than Henry had used, an express concession of the laws and cus- toms of Edward. Henry II. is silent about these, although he repeats the confirmation of his grandfather's charter. The people, however, had begun to look back to a more ancient standard of law. The Norman Conquest, and all that ensued " This charter contains a clause — " Hoc quoque prsecipio et volo ut omnes liab- eaiit et teiieant legem Echvardi Regis in omnibus rebus, adauctis his quse constitui ad utilitatem populi Aiiglorum." This cliarter seems to be fully establislied; it de- serves to be accounted the first remedial concession by the crown; for it indicates, especially taken in connection with the public Iiistory, an arbitrary exercise of royal power which neither the new nor the old subjects of "the English monarchy reckoned lawful. It is also the earliest recognition of the Anglo-Saxon laws, such as they sub- sisted under the Confessor, and a proof both that the English were now endeavoring to raise their heads from servitude, and that the Normans had discovered some im- munities from taxation, or some securities from absolute power, among the con- quered people, in which they desired to participate. '* Ihe accession of Henry inspired hopes into the English nation," which were not well nalized. His marriage with Matilda, "of the rightful English kin" is men- tioned with apparent pleasure by the Saxon chronicler under the year 1100. English Const. CHAKTEKS. 413 upon it, had endeared the memory of their Saxon government. Its disorders were forgotten, or, ratlier, were less odious to a rude nation than the coercive justice by which tliey were after- wards restrained. Hence it became the favorite cry to demand the laws of Edward the Confessor ; and the Normans tiiem selves, as they grew dissatisfied with the royal administration, fell into these English sentiments. ^^ But what these laws were, or more properly, perhaps, these customs subsisting in the Confessor's age, was not very distinctly understood. So far, however, was clear, that the rigorous feudal servitude, the weighty tributes upon poorer freemen, had never prevailed be- fore the Conquest. In claiming the laws of Edward the Con- fessor, our ancestors meant but the redress of grievances whicli tradition told them had not always existed. It is highly probable, independently of the evidence sup- j)lie(l by the charters of Henry I. and his two successors, that a sense of oppression had long been stimulating the subjects of so arbitrary a government before they gave any demonstra- tions of it sufficiently palpable to find a place in history. But there are certainly no instances of rebellion, or even, as far as we know, of a constitutional resistance in Parliament, down to the reign of Richard I. The revolt of the earls of Leicester and Norfolk against Henry II., which endangered his throne and comprehended his children with a large part of his barons, appears not to have been founded even upon the pretext of public grievances. Under Richard I. something more of a national spirit began to show itself. For the king having left his chancellor, William Longchamp, joint regent and justiciary with the Bishop of Durham during his crusade, the foolish in- solence of the former, who excluded his coadjutor from any share in the administration, provoked every one of the nobil- ity. A convention of these, the king's brother placing himself at their head, passed a sentence of removal and banishment upon the chancellor. Though there might be reason to con- ceive that this would not be unpleasing to tlie king, who was already apprised how much Longchamp had abused his trust, it was a remarkable assumption of power by that assembly, 1'' Tlie distinction between tlie two nations was pretty well obliterated at the end of Henry II. 's reign, as we learn from the Dialogue on the Exchequer, then writtin : Jam cohabitantibus Anglicis et Normannis, et alterutrdm uxores ducentibus vel iiu- bentibus, sic permixtae sunt nationes, ut vix discerni possit liodie, de liberis loquor, quis Anglicus, quis Normaiinns sit genero; exccptis dnntaxat ascriptitiis qui villani dicuntnr, quibus nmi est libcrum obstantibus doniinis suis a sui status conditione discedere. Kapropter pene quicunque sic liodie occisus reperitur, ut murdrum puni- tur, exceptis his quibus certa sunt nt diximus servilis conditionis indicia (p. 26). See Note II., " On the Duration of Distinction between Aornian and Saxon." 414 KING JOHN. Chap. VIII. Pakt II. and the earliest authority for a leading principle of our con- stitution, the responsibility of ministers to Parliament. § 10 In the succeeding reign of John all the rapacious ex- actions usual to these Norman kings were not only redoubled, but mingled with other outrages of tyranny still more intoler- able. These, too, were to be endured at the hands of a prince utterly contemptible for his folly and cowardice. One is sur- prised at tlie forbearance displayed by the barons, till they took up arms at length in that confederacy which ended in establishing the Great Charter of Liberties. As this Avas the first effort towards a legal government, so is it beyond com- parison the most important event in our history, except that Revolution without Avhich its benefits would have been rapidly annihilated. The constitution of England has indeed no single date from which its duration is to be reckoned. The institu- tions of positive law, the far more important changes which time has wrought in the order of society, during six hundred years subsequent to the Great Charter, have undoubtedly les- sened its direct application to our present circumstances. But it is still the key-stone of English liberty. All that has since been obtained is little more than as confirmation or commen- tary ; and if every subsequent law were to be swept away, there would still remain the bold features that distinguish a free from a despotic monarchy. It has been lately the fashion to depreciate the value of Magna Charta, as if it had sprung from the private ambition of a few selfish barons, and redressed only some feudal abuses. It is indeed of little importance by what motives those who obtained it were guided. The real characters of men most distinguished in the transactions of that time are not easily determined at present. Yet if we bring these ungrateful suspicions to the test, they prove desti- tute of all reasonable foundation. An equal distribution of civil rights to all classes of freemen forms the peculiar beauty of the charter. In this just solicitude for the people, and in the moderation which infringed upon no essential prerogative of the monarchy, we may perceive a liberality and patriotism very unlike the selfishness which is sometimes rashly imputed to those ancient barons. And, as far as we are guided by his- torical testimony, two great men, the pillars of our Church and State, may be considered as entitled beyond the rest to the glory of this moment — Ste])Jien Langton, archbishop of Can- terbury, and William, earl of Pembroke. To .their temperate zeal for a legal government, England was indebted during that critical period for the two greatest blessings that patriotic English Const. MAGNA CHARTA 415 statesmen could confer — the establishment of civil liberty upon an immovable basis, and the preservation of national in- dependence under the ancient line of sovereigns, which rasher men were about to exchange for the dominion of France. By the Magna Charta of John reliefs were limited to a cer- tain sum according to the rank of the tenant, the waste com- mitted by guardians in chivalry restrained, the disparagement in matrimony of female wards forbidden, and widows secured from compulsory marriage. These regulations, extending to the sub-vassals of the crown, redressed the worst grievances of every military tenant in England. The franchises of the city of London and of all towns and boroughs were declared in- violable. The freedom of commerce was guaranteed to alien merchants. The Court of Common Pleas, instead of following the king's person, was fixed at Westminster. The tyranny exercised in the neighborhood of royal forests met with some check, which was further enforced by the Charter of Forests under Henry III. But the essential clauses of Magna Charta are those which protect the personal liberty and property of all freemen, by giving security from arbitrary imprisonment and arbitrary spoliation. "No freeman (says the 29th chapter of Henry III.'s charter, which, as the existing law, I quote in preference to that of John, the variations not being very material) shall be taken or imprisoned, or be disseized of his freehold, or liberties, or free customs, or be outlawed, or exiled, or any otherwise destroyed ; nor will we pass upon him, nor send upon him, but by lawful judgment of his peers, or by the law of the land.^^ We Avill sell to no man, we will not deny or delay to any man, justice or right." It is obvious that these words, interpreted by any honest court of law, convey an ample security for the two main riglits of civil society. From the era, therefore, of King John's charter, it jnust have been a 16 Nisi per legale. judicium pariiini suoium.re^ per legem terr». Several explana- tions have been offered of the alternative clause, which some have referred tu judg- ment by default or demurrer — others to the process of attachment for contempt. Certainly there are numy legal procedures besides trial by jury, through which n party's goods or person may "be taken. Hut one may doubt whether these were in contemplation of the franiers of Magna Charta. In an entry of the charter of 1217 by a contemporary haiul, preserved in a book in the town-clerk's office in London, called Liber Custumarum et Kegum antiquoruiii, a various reading, ei per legem terra\ occurs. — Blackstone's Charters, p. 42. And the word we/ is so frequently used for et, that I am not wholly free from a suspicion that it was so intended in this place. Tlie meaning will be that no person shall be disseized, etc., except upon a lawful cause of action or indictment found by the verdict of a jury. This really seems as good as any of the disjunctive interpretations, but I do not offer it with much confidence. But ])erliaps the best sense of the disjunctive will be perceived by remembering that judicium parium was generally opposed to the combat or the ordeaJ, which were equally lex ierree. The Magna Charta is printed at length on p. oii seq. 416 MAGNA CHARTA. Chap. VIII. Part II. clear principle of our constitution that no man can be detained in prison without trial. Whether courts of justice framed the writ of Habeas Corpus in conformity to the spirit of t'.is clause, or found it already in their register, it became from tliat era the right of every subject to demand it. That writ, rendered more actively remedial by the statute of Charles II., but founded upon the broad basis of Magna Charta, is the principal bulwark of English liberty ; and if ever temporary circumstances, or the doubtful plea of political necessity, shall lead men to look on its denial with apathy, the most distin- guishing characteristic of our constitution will be effaced. A.S the clause recited above protects the subject from any absolute spoliation of his freehold rights, so others restrain the excessive amercements which had an almost equally ruinous operation. The magnitude of his offence, by the 14tli clause of Henry III.'s charter, must be the measure of his fine ; and in every case the contenement (a word expressive of chattels necessary to each man's station, as the arms of a gentleman, the mercliandise of a trader, the plough and wagons of a peasant) was exempted from seizure. A provision was made in the charter of John tliat no aid or escuage should be im- posed, excejit in the three feudal cases of aid, without consent of Parliaiuont. And this was extended to aids paid by the city of London. But the clause was omitted in the three charters granted by Henry III., though rarliament seem to have acted upon it in most part of his reign. It had, however, no reference to tallages imposed upon towns without their consent. Fourscore years were yet to elapse before the great principle of parliamentary taxation was explicitly and abso- lutely recognized. § 11. From this era a new soul was infused into the people of England. Her liberties, at the best long in abeyance, be- came a tangible possession, and those indefinite aspirations for the laws of Edward the Confessor were changed into a steady regard for the Great Charter. Pass but from the history of Roger de Hoveden to that of Matthew Paris, from the second Henry to the third, and judge whether the victorious struggle had not excited an energy of public spirit to which the nation was before a stranger. The strong man, in the sublime lan- guage of Milton, was aroused from sleep, and shook his in- vincible locks. Tyranny, indeed, and injustice will, by all historians not absolutely servile, be noted with moral reproba- tion ; but never shall we find in the English writers of the twelfth century that assertion of positive and national rights English Const. MAGNA CHARTA. 417 which distinguishes those of the next age, and particularly the monk of St. Alban's. From his prolix history we may collect three material propositions as to the state of the Eng- lish constitution during the long reign of Henry III. ; a prince to whom the epithet of worthless seems best applicable ; and who, without committing any flagrant crimes, was at once in- sincere, ill-judging, and pusillanimous. The intervention of such a reign was a very fortunate circumstance for public liberty, which might possibly have been crushed in its infancy if an Edward had immediately succeeded to the throne of John. 1. The Great Charter was always considered as a funda- mental law. But yet it was supposed to acquire additional security by frequent confirmation. This it receives, with some not inconsiderable variation, in the first, second and ninth years of Henry's reign. The last of these is in our present statute-book, and has never received any alterations ; but Sir E. Coke reckons thirty-two instances wherein it has been solemnly ratified. Several of these were during the reign of Henry III., and were invariably purchased by the grant of a subsidy. This prudent accommodation of Parlia- ment to the circumstances of their age not only made the law itself appear more inviolable, but established that corre- spondence between supply and redress which for some centu- ries was the balance-spring of our constitution. Tlie charter, indeed, was often grossly violated by their administration. Even Hul)ert de Burgh, of whom history speaks more favor- ably than of Henry's later favorites, though a faithful servant of the crown, seems, as is too often the case with sucli men, to have thought the king's honor and interest concerned in maintaining an unlimited prerogative. The government was, however, much worse administered after his fall. From the great diificulty of compelling the king to observe the bounda- ries of law, the English clergy, to whom we are much indebted for their zeal in behalf of liberty during this reign, devised means of binding his conscience and terrifying his imagination by religious sanctions. The s(^lemn excommunication, accom- panied witli the most awful threats, pronounced against the violators of Magna Charta, is well known from our common histories. The king was a party to this ceremony, and swore to observe the charter. Ikit Henry III., though a very devout person, had his own notions as to the validity of an oath that affected his power, and indeed passed his life in a series of perjuries. According to tlie creed of that age, a i)apal dis- 418 MAGNA CHARTA. Cuap. VIII. Part II. pensation might annul any prior engagement ; and lie was generally on sufficiently good terms with Rome to obtain such an indulgence. 2. Though the prohibition of levying aids or escuages with- out consent of Parliament had been omitted in all Henry's charters, yet neither one nor the other seems, in fact, to have been enacted at discretion throughout his reign. On the con- trary, the barons frequently refused the aids, or rather subsi- dies, which his prodigality was always demanding. Indeed it would probably have been impossible for the king, however frugal, stripped-as he was of so many lucrative though oppres- sive prerogatives by the Great Charter, to support the expen- diture of government from his own resources. Tallages on his demesnes, and especially on the rich and ill-affected city of London, he imposed without scruple ; but it does not appear that he ever pretended to a right of general taxation. We may, therefore, take it for granted that tlie clause in John's charter, though not expressly renewed, was still considered as of binding force. The king was often put to great inconven- ience by the refusal of supply ; and at one time was reduced to sell his plate and jewels, wliich the citizens of London buying, he was provoked to exclaim with envious spite against their riches, which he had not been able to exhaust. 3. The power of granting money must of course imply the power of withholding it ; yet this has sometimes been little more than a nominal privilege. But in this reign the Iilnglish Parliament exercised their right of refusal, or, what was much better, of conditional assent. Great discontent was ex})ressed at the demand of a subsidy in 1237; and the king alleging that he had expended a great deal of money on his sister's marriage with the emperor, and also upon his own, the barons answered that he had not taken their advice in those affairs, nor ought they to share the punishment of acts of imprudence they had not committed. In 1241, a subsidy having been demanded for the war in Poitou, the barons drew up a remon- strance, enumerating all the grants they had made on former occasions, but always on condition tliat the imposition shoidd not be turned into precedent. Their last subsidy, it appears, had been paid into the hands of four barons, who were to expend it at their discretion for the benefit of the king and kingdom — an early instance of parliamentary control over public expenditure. Finally, the barons positively refused any money, and he extorted 1500 marks from the city of Lon- don. Some years afterwards they declared their readiness to English Const. UNDER HENRY III. 419 burJeu themselves more than ever if they could secure the observance of the charter ; and re(|uested that the justiciary, chancellor, and treasurer might be appointed with consent of Parliament, according, as they asserted, to ancient custom, and might hold their offices during good behavior. Forty years of mutual dissatisfaction had elapsed, when a single act of Henry's improvidence brought on a crisis which endangered his throne. Innocent IV., out of mere animosity against the family of Frederick II., left no means untried to raise up a competitor for the crown of ISTaples, which Manfred had occupied. Richard, Earl of Cornwall, having been pru- dent enough to decline this speculation, the pope offered to support Henry's second son. Prince Edmund. Tempted by such a prospect, the silly king involved himself in irretriev- able embarrassments by prosecuting an enterprise which could not possibly be advantageous to England, and upon which he entered without the advice of his Parliament. Destitute him- self of money, he Avas compelled to throw tlie expense of this new crusade upon the pope ; but the assistance of liome was never gratuitous, and Henry actually pledged his kingdom for the money which she might expend in a war for her advantage and his own. He did not even want the effrontery to tell Par- liament in 1257, introducing his son Edmund as king of Sicily, that they were bound for the repayment of 14,000 marks with interest. The pope had also, in furtherance of the N"eapolitan project, conferred upon Henry the tithes of all benefices in England, as well as the first-fruits of such as should be vacant. Such a concession drew upon the king the implacable resent- ment of his clergy, already complaining of the cowardice or connivance that had during all his reign exposed them to the shameless exactions of Rome. Henry had now, indeed, cause to regret his precipitancy. Alexander IV., the reigning pon- tiff, threatened him not only with a revocation of the grant to his son, but with an excommunication and general interdict, if the money advanced on his account should not be immediately repaid, and a Roman agent explained the demand to a Parliament assembled in London. The sum required was so enormous, we are told, that it struck all the hearers with astonishment and horror. The nobility of the realm were in- dignant to think that one man's supine folly should thus bring them to ruin. Who can deny that measures beyond the ordinary course of the constitution were necessary to control so prodi- gal and injudicious a sovereign ? Accordingly, the barons in- sisted that twenty -four persons should be nominated, half by 420 STATE OF THE CONSTITUTION Chap. VIII. Part II. the king and half by themselves, to reform the state of the kingdom. These were appointed on the meeting of the Par- liament at Oxford, after a prorogation. The seven years that followed are a revolutionary period, the events of which we do not find satisfactorily explained by the historians of the time. A king divested of prerogatives by his people soon appears even to themselves an injured party. And as the baronial oligarchy acted with that arbi- trary temper which is never pardoned in a government that has an air of usurpation about it, the Royalists began to gain ground, chiefly through the defection of some who had joined in the original limitations imposed on the crown, usually called the provisions of Oxford. An ambitious man, confident in his talents and popularity, ventured to display too marked a supe- riority above his fellows in the same cause. But neither his character nor the battles of Lewes and Evesham, fall strictly within the limits of a constitutional history. It is, however, important to observe that, even in the moment of success, Henry III. did not presume to revoke any part of the Great Charter. His victory had been achieved by the arms of the English nobility, who had, generally speaking, concurred in the former measures against his government, and whose oppo- sition to the Earl of Leicester's usurpation was compatible with a steady attachment to constitutional liberty. § 12. The opinions of eminent lawyers are, undoubtedly, wliere legislative or judicial authorities fail, the best evidence that can be adduced in constitutional history. It will, there- fore, be satisfactory to select a few passages from Bracton, himself a judge at the end of Henry III.'s reign, by which the limitations of prerogative by law will clear 1}^ appear to have been fully established. " The king," says he, " must not be subject to any man, but to God and the law ; for the law makes him king. Let the king, therefore, give to the law what the law gives to him — dominion and power ; for there is no king where will, and not law, bears rule." " The king (in another place) can do nothing on earth, being the minister of God, l)ut what he can do by law; nor is what is said (in the I'andects) any objection, that whatever the prince pleases shall be law ; because by the words that follow in that text it a])pears to design not any mere will of the prince, but that which is established by the advice of his councillors, the king giving his authority, and deliberation being had upon it." This i)assage is, undoubtedly, a misrepresentation of the fa- mous Lex Kegia, which has ever been interi)reted to convey English Const. UNDER HENRY III. 421 the unlimited power of the ])eo|)le to their emperors. But the very circumstance of so perverteil a gloss put upon this text is a proof that no other doctrine could be admitted in the law of England. In another passage Bracton reckons as superior to the king, " not only God and the law, by which he is made king, but his court of earls and barons ; for the former (co- mites) are so styled as associates of the king, and whoever has an associate has a master ; so that, if the king were without a bridle, that is, the law, they ought to put a bridle upon him." Several other passages in Bracton might be produced to the same import ; but these are sufficient to demonstrate the im- portant fact that, however extensive or even indefinite miglit be the royal prerogative in the days of Henry III., the law was already its superior, itself but made part of the law, and was incompetent to overthrow it. It is true that in this very reign the practice of dispensing with statutes by a non-ob- stante was introduced, in imitation of the papal dispensations. But this prerogative could only be exerted within certain limits, and, however pernicious it may be justly thought, was, when thus understood and defined, not, strictly speaking, in- compatible with the legislative sovereignty of I'arliament. § 13. In eomformity with the system of France and other feudal countries, there was one standing council, which as- sisted the kings of England in the collection and management of their revenue, the administration of justice to suitors, and the despatch of all public business. This was styled Curia Regis (the King's Court), and held in his palace, or wherever he was personally present. It was composed of the great officers ; the chief justiciary,^'' the chancellor, the constable, marshal, chamberlain, steward, and treasurer, with any others whom the king miglit appoint. Of this great court there was, as it seems, from the beginning, a particular branch, in which all matters relating to the revenue were exclusively trans- acted. This, though composed of the same persons, yet, being held in a different part of the palace, and for different business, " Tlie chief justiciary {capitalis justiciariua) was the greatest subject iu Kiifrlaiui. Besides presiding in the Iviug's Court, and in the Excliequer, he was originally, by virtue of liis otiice, the regent of the kingdom during the absence of the sovereign, wliich, till tiie loss of Normandy, occurred very frequently. The first time when the dignify of this office was impaired was at the death of John, when the justiciary, Hu- bert de lUugli, being lio,-.iigcd in IJover Castle, those who proclaimed Henry III. at (iloucester constituted the Karl of I'embroke governor of the king and kingdom, Hubert still retaining his ofliee. In l'J-11 the Archbishop of York was !ipi)i)iiitiMi to the regency during Henry's absence in I'oitou, without the title of justiciary. Still the office was so considerable that the barons who met in the Oxford I'arliament of 11^58 insisted that the justiciary should be annually chosen with their approbation. But tlie subsequent succes.ses of Henry prevented this being established, and Ed- ward I. discoutiuued tlie ofWce altogether. 422 LAW COURTS. Chap. VIII. Pakt II. was distinguislied from the king's Court by the name' of the Exchequer — a separation which became complete when civil pleas were decided and judgments recorded in this second court. In the Exchequer the justices were called barones, or barones scaccarii. Henry II., in 1176, reduced the justices in the Curia Regis from eighteen to five, and ordered that they should hear and determine all writs of the kingdom. From this "time, and probable from none earlier, we may date the commencement of the Court of King's Bench, which very soon acquired, at hrst indifferently with the council, and then exclusively, the appellation of Curia Regis. ^* It is probable that in the age next after the Conquest few causes in which the crown had no interest were carried before the royal tribunals, every man finding a readier course of jus- tice in the manor or county to which he belonged. But by de- grees this supreme jurisdiction became more familiar; and, as it seemed less liable to partiality or intimidation than the pro- vincial courts, suitors grew willing to submit to its expensive- ness and inconvenience. It was obviously the interest of the King's Court to give such equity and steadiness to its decisions as might encourage this disposition. But because few, com- paratively si)eaking, could have recourse to so distant a tribunal as that of the King's Court, and perhaps also on account of the attachment which the English felt to their ancient right of trial by the neighboring freeholders, Henry II. established itinerant justices to decide civil and criminal pleas within each county. -"^ To this excellent institution we have owed the uniformity of our common law, which would have otherwise been split, like that of France, into a multitude of local cus- toms ; and we still owe to it the assurance, wliich is felt by the poorest and most remote inhabitant of England, that his right is weighed by the same incorrnpt and acute understand- ing upon wliich the decision of the highest cpiestions is re- posed. The justices of assize seem originally to have gone their circuits annually ; and as part of their duty was to set 18 For much information about tlio Curia T\('ja;is, and especially this branch of it, the student of our constitutional history shoiiM iuive recourse to JIadox's History of the ExcluMiui'r, and to the Dialogus de Scuccario, written in the time of Henry II. by " Richard, liislii.p of London, Treasurer of the Exchequer, son of iS'igel, bishop of Ely, bis |ii(i|(i(-sor in tlie oliice," — [Stubbs.] The reader must still keep in mi)id the threefold nicaninj,' of Curia Resjis : the common council of the realm ; the select council for judicial as well as adTuinistrative purposes; and the Court of King's Hench separated from the last in tlie rei;;n of Henry II., and soon afterward acquir- ing, exclusively, tlie denomination C'uria Regis. 1" Justices ill eyre, or, as we now call them, of assize, do not appear to have gone their circuits regularly before 22 Henry II. (1170). English Const. JUSTICES OF ASSIZE. 423 tallages upon royal towns, and superintend the collection of the revenue, we may be certain tliat there could be no long interval. This annual visitation was expressly confirmed by the twelfth section of Magna CJiarta, wliich provides also that no assize of novel disseizin, or niort d'ancestor, sliould be taken except in the shire where the lands in controversy lay. Hence this clause stood opposed, on the one hand, to the encroach- ments of the King's Court, which might otherwise, by drawing pleas of land to itself, have defeated the suitor's right to a jury from the vicinage ; and, on the other, to those of the feudal aristrocracy, who hated any interference of the crown to chas- tise their violations of law, or control their own jurisdiction. Accordingly, while the confederacy of barons against Henry III. was in its full power, an attempt was made to prevent the regular circuits of the judges. Long after the sej^aration of the Exchequer from the King's Court, another brancli was detached for the decision of private suits. This had its beginning, in Madox's opinion, as early as tlie reign of Eichard I. But it was comj^letely established by Magna Charta. " Common Pleas," it is said in the fourteenth clause, " shall not follow our court, but be held in some certain place." Thus was formed the Court of Common Bench at Westminster, ^° with full and, strictly speaking, exclusive juris- diction over all civil disputes, where neither the king's interest, nor any matter savoring of a criminal nature, was concerned. For of such disputes neither the Court of King's Bench nor that of Exchequer can take cognizance, except by means of a legal fiction, which, in the one case, supposes an act of force, and in the other a debt to the crown. § 14. The principal officers of state, who had originally been effective members of the King's Court, began to witlidraw from it, after this separation into three courts of justice, and left their places to regular lawyers, though the treasurer and chancellor of the Exchequer have still seats on the equity side of that court, a vestige of its ancient constitution. It would, indeed, have been difficult for men bred in camps or palaces to fulfil the ordinary functions of judicature under such a system of law as had grown up in England. The rules of legal decis- ion among a rude people are always very simple ; not serving much to guide, far less to control, the feelings of natural equity. Such were those which prevailed among the Anglo- 2" After the erection of the Common Bench the style of the Superior Court began to alter. It ceased by degrees to be called the King's Court. Pleas were said to be held coram rege, or coram rege ubicunque fuerit. And thus the Court of King's Bench was formed out of the remains of the ancient Curia llegis (see above, p. 422). 424 ORIGIN OF COMMON LAW. Chap. VIII. Paut II. Saxons ; requiring no subtler intellect or deeper learning than the earl or sheriff at the head of his County Court might be expected to possess. But a great change was wrought in about a century after the Concpiest. Our English lawyers, prone to magnify the aiiti(iuity like the other merits of their system, are apt to carry up the date of the common law, till, like the pedigree of an illustrious family, it loses itself in the obscurity of ancient time. Even Sir Matthew Hale does not hesitate to say that its origin is as undiscoverable as that of the Nile. 15ut though some features of the common law may be distin- guishable in Saxon times, while our limited knoAvledge prevents us from assigning many of its peculiarities to any deternunable period, yet the general character and most essential parts of the system were of much later growth. The laws of the Anglo- Saxcm kings a,re as different from those collected by Glanvil as the laws of two different nations. The pecuniary compositions for crimes, especially for homicide, which run through the Anglo-Saxon code down to the laws ascribed to Henry I., are not mentioned by Glanvil. Death seems to have been the reg- ular punisliment of murder, as Avell as robbery. Though the investigation by means of ordeal was not disused in his time, yet trial by combat, of which we find no instance before the Conquest, was evidently j^referred. Under the Saxon govern- ment, suits appear to have commenced, even before the king, by verbal or written complaint ; at least, no trace remains of the original writ, the foundation of our civil procedure. The descent of lands before the Conquest was according to the cus- tom of gavel-kind, or equal partition among the children ; in the age of Henry I., the eldest son took the principal fief to his own share ; in that of Glanvil, he inherited all the lands held by knight-service ; but the descent of socage lands de- pended on the ])articular ci;stom of the estate. By the Saxon laws, upon the death of the son without issue, the father in- herited; by our common law, he is absolutely, and in every case, excluded. Lands were, in general, devisable by testa- ment before the Conquest, but not in the time of Henry II., exce])t by particular custom. These are sufficient samples of the differences between our Saxon and Norman jurisprudence ; but the distinct character of the two will strike more forcibly every one who peruses successively the laAvs published by Wil- kins, and the treatise ascribed to Glanvil. The former re- semble the barbaric codes of the Continent, and the capitularies of Charlemagne and his family, minute to an excess in appor- tioning punishments, but sparing and ind-efinite in treating of English Const. CIIAKACTEK OF ENGLISH LAW. 425 civil rights ; while the other, copious, discriminating, and technical, disi)lays the characteristics, as well as nnfolds the principles, of English law. It is difficult to assert anything decisively as to tlie period between tlie Conquest and the reign of Henry II. which presents fewer materials for legal history than the preceding age ; but the treatise denominated the Laws of Henry I., compiled at the soonest about the end of Stephen's reign, bears so much of a Saxon character, that I should be inclined to ascribe our present common law to a date, so far as it is capable of any date, not much antecedent to the publication of Grlanvil. At the same time, since no kind of evidence attests any sudden and radical change in the juris- prudence of England, the question must be considered as left in great obscurity. Terhaps it might be reasonable to con- jecture that the treatise called Leges Henrici Primi contains the ancient usages still prevailing in the inferior jurisdictions, and that of Glanvil the rules established by the Norman law- yers of the King's Court, which would of course acquire a general recognition and efficacy, in consequence of the institu- tion of justices holding their assizes periodically throughout the country. The capacity of deciding legal controversies was now only to be found in men who had devoted themselves to that pecu- liar study ; and a race of such men arose, whose eagerness, and even enthusiasm, in the profession of the law were stimulated by the self-complacency of intellectual dexterity in threading its intricate and thorny mazes. The Normans are noted in their own country for a shrewd and litigious temper, which may have given a character to our courts of justice in early times. Something, too, of that excessive subtlety, and tliat preference of technical to rational principles which runs through our system, may be imputed to the scholastic philosophy wldch was in vogue during the same period, and is marked by the same features. But we have just reason to boast of the leading causes of these defects — an adherence to fixed rules, and a jealousy of judicial discretion, which have in no country, I believe, been carried to such a length. Hence, precedents of adjudged cases, becoming authorities for the future, have been constantly noted, and form, indeed, almost the sole ground of argument in questions of mere law. But, these authorities being frequently unreasonable and inconsistent — partly from the infirmity of all human reason, partly from the imperfect manner in which a number of unwarranted and incorrect re- porters have handed them down — later judges grew anxious 426 CHARACTER OF ENGLISH LAW. Chap. VIII. Part IL to elude by impalpable distinctions what they did not venture to overturn. In some instances this evasive skill has been applied to acts of the legislature. Those who are moderately conversant with the history of our law will easily trace other circumstances that have co-operated in j^roducing that technical and subtle system which regulates the course of real property — for, as that formed almost the whole of our ancient juris- prudence, it is there that we must seek its original character. But much of the same spirit pervades every part of the law. No tribunals of a civilized people ever borrowed so little, even of illustration, from the writings of philosophers, or from the institutions of other countries. Hence law has been studied, in general, rather as an art than a science — with more solici- tude to know its rules and distinctions than to perceive their application to that for wliich all rules of law ought to have been established — the maintenance of public and private rights. § 15. Whatever may be thought of the effect which the study of the law had upon the rights of the subject, it conduced materially to the security of good order by ascertaining the hereditary succession of the crown. Five kings out of seven that followed William the Conqueror were usurpers, according, at least, to modern notions. Of these, Stephen alone encoun- tered any serious opposition upon that ground ; and, with re- spect to him, it must be remembered that all the barons, himself included, had solemnly sworn to maintain the succession of Matilda. Henry II. procured a parliamentary settlement of the crown upon his eldest and second sons — a strong pre- sumption that their hereditary right was not absolutely secure. A mixed notion of right and choice, in fact, prevailed as to the succession of every European monarchy. The coronation oath,^^ and the form of popular consent then required, were considered as more material, at least to perfect a title, than we deem them at present. They gave seizin, as it were, of the crown, and, in cases of disputed pretensions, had a sort of judicial efficacy. The Chronicle of Dunstable says, concerning Richard I., that he was " elevated to the throne by hereditary right, after a solemn election by the clergy and people : " words that indicate the current principles of that age. It is to be observed, however, that Eichard took upon him the ex- ercise of royal prerogatives without waiting for his coronation. The succession of John has certainly passed, in modern times, 21 The early kings always date their reign from their coronation, and not from the decease of their predecessors. English Const. IIEEEDITARY RIGHT TO CROWN. 427 for an usurpation : I do not find that it was considered as such hy his own contemporaries on this side of the Channel. The question of inheritance between an uncle and the son of his deceased elder brother was yet unsettled, as we learn from Glanvil, even in private succession. In the case of sovert ign- ties, which were sometimes contended to require different rules from ordinary patrimonies, it was, and continued long to be, the most uncertain point in public law. John's pretensions to the crown might, therefore, be such as the English were justi- fied in admitting, especially as his reversionary title seems to have been acknowledged in the reign of his brother Richard. In a charter of the first year of his reign John calls himself king " by hereditary right, and through the consent and favor of the Church and peo])le." It is deserving of remark that, during the rebellions against this prince and his son Henry III., not a syllable was breathed in favor of Eleanor, Arthur's sister, who, if the present rules of succession had been established, was the undoubted heiress of his right. The barons chose rather to call in the aid of Louis, with scarcely a shade of title, though with mucli better means of maintaining himself. One should think tliat men whose fathers had been in the field for Matilda could make no diffi- culty about female succession. But I doubt whether, notwith- standing that precedent, the crown of England was universally acknowledged to be capable of descending to a female heir. Great averseness had been shown by the nobility of Henry I. to his proposal of settling the kingdom on his daughter. And from a remarkable ])assage which I shall jjroduce in a note, it appears that even in the reign of Edward III. the succession was supposed to be confined to the male line.-- At length, about the middle of the thirteenth century, the lawyers applied to the crown the same strict principles of descent which regulate a private inheritance. Edward I. was proclaimed immediately upon his father's death, though absent in Sicily. Something, however, of the old principle may be traced in this proclamation, issued in his name by the guardians 2= This is intimated by tlie treaty made in 1339 for a marriage between tlie eldest son of Edward III. and the Duke of Brabant's daughter. Edward therein promises that, if his son should die before him, leaving male issue, he will procure the consent of liis barons, nobles, and cities (that is, of I'urlianient ; nobles here meaning l( engaged, conjointly with tlie Count of Flan- ders, in a war witli Philip the Fair. I?ut a Parliament had been held at London, when the barons insisted on these concessions. The circumstances are not wholly unlike tliese of Magna Charta. The Contirmatio Chartarum is printed on page 549. English Const. TEMPORAL PEERS. 437 And all of them, exc(>pt, ])erliaps, the Lombards, invited the superior ecclesiastics to their councils ; not upon any feudal notions, which at that time had hardly begun to prevail, but chiefly as representatives of the Church and of religion itself ; next, as more learned and enlightened councillors than the lay nobility ; and in some degree, no doubt, as rich proprietors of land. It will be remembered, also, that ecclesiastical and temporal affairs Avere originally decided in the same assem- blies, both upon the Continent and in England. The Norman Conquest, which destroyed the Anglo-Saxon nobility, and sub- stituted a new race in their stead, could not affect the immor- tality of Church possessions. The bishops of William's age were entitled to sit in his councils by the general custom of Europe, and by the common law of England, which the Con- quest did not overturn. § 5. The Temporal Peers. — Next to these spiritual lords are the earls and barons, or lay peerage of England. The former dignity was, perhaps, not so merely official as in the Saxon times, although the earl was entitled to the third penny of all emoluments arising from the administration of justice in the County Courts, and might, ])erhaps, command the militia of his county, when it was called forth. Every earl was also a baron, and held an honor or barony of the crown ; for which he paid a higher relief than an ordinary baron, probably on account of the profits of his earldom. It is universally agreed that the only baronies known for two centuries after the Conquest were incident to the tenure of land held immediately from the crown. There are, how- ever, material difficulties in the way of rightly understanding their nature which reciuire careful examination. All tenants- in-chief of the crown, by knight-service, were summoned to the king's council, and were peers of his court. To all of these tlie term Baron was originally applied, a word of very wide significance.^ But in course of time a distinction arose between the Greater Barons and Lesser Barons, the former holding their lands by barony {per haroniani), and the latter simply by knight-service ; and gradually the name of baron was confined to the former class. It is difficult to determine the characteristic differences of tbe two, or the way in which the distinction arose ; but it would seem that the Greater Barons held, under one title, a number of knight's fees — that 3 The word bnro originally meant only a man, and is not unfrequently applied to common freeholders, as in the phrase of court-baron. It was used too for the magis- trates or chief men of cities, as it is still for the judges of the Exchequer, and the representatives of the Cinque Ports. 438 ORIGIN AND PROGRESS OF Chap. VIII. Part III. is, of estates, from each of wluch the Feudal service of a knight was due. There is, however, complete proof of the separation between the two classes of barons before the reign of John, and the term baron came to be applied exclusively to the greater barons. Tenants-in-chief are enumerated distinctly from earls and barons in the charter of Henry I. (See p. 541.) Knights, as well as barons, are named as present in the Parliament of Northampton in 11G5, in that held at the same town in 1176, and upon other occasions. We learn from the Great Charter that the greater barons were summoned to the king's council by particular writs ; the other tenants-in-chief by one general summons through the sheriffs of their several counties, whenever an aid or sciitage was required.'' The consent of all the tenants-in-chief was required for taxation ; and there appears sufficient evidence that they were occasionally present for other important pur- poses. It is, however, very probable that writs of summons were actually addressed only to those of distinguished name, to those resident near the place of meeting, or to the servants and favorites of the crown. This seems to be deducible from the words in the Great Charter, which limit the king's engage- ment to summon all tenants-in-chief, through the sheriff, to the case of his requiring an aid or scutage, and still more from the withdrawing of this promise in the first year of Henry III. The privilege of attending on such occasions, though legally general, may never have been generally exer- cised. The result of the whole inquiry into the constitution of I'arliament, down to the reign of John, seems to be — 1. That the Norman kings explicitly renounced all prerogative of levying money on the immediate military tenants of the crown, without their consent given in a great council of the realm ; this immunity extending, also, to their sub-tenants and dependents. 2. That all these tenants-in-cliief liad a constitu- tional right to attend, and ought to be summoned ; but whether they coidd attend without a siimmons is not manifest. 3. That the summons w^as usually directed to the higher barons, and to such of a second class as the king pleased, many being omitted for different reasons, though all had a right to it. 4. That on occasions when money was not to be demanded, but alterations made in the law, some of these second barons, or •* "Facipmus siimmoncri arcliiepiscnpos, episoopos, abbates, comites et majores barones regni .siaiillatim per literas nostras. Et prieterea faciemus siimnioneri in generali per vicecomites et ballivos nostros omnes alios qui in capite teuent de nobis." English Const. rARLIAMENl'AllY REPRESENTATION. 439 tenants-in-chief, were at least occasionally summoned, but whether by strict right or usage does not fully appear. 5. Tliat the irregularity of passing many of them over when coun- cils were held for the purpose of levying money, led to the provision in the Great Charter of John by which the king promises that they shall all be summoned through the sheriff on such occasions; but the promise does not extend to any other subject of parliamentary deliberation. (J. That even this concession, though but the recognition of a known right, ap- peared so dangerous to some in the government that it was withdrawn in the first charter of Henry III. But this attendance in Parliament of inferior tenants-in- chief, some of them too poor to have received knighthood, grew insupportably vexatious to themselves, and was not well liked by the king. He knew them to be dependent upon the barons, and dreaded the confluence of a multitude who assumed the privilege of coming in arms to the appointed place. So inconvenient and mischievous a scheme could not long subsist among an advancing people, and fortunately the true remedy was discovered with little difficulty. § 6. The principle of representation, in its widest sense, can hardly be unknown to any government not purely democrati- cal. The system of ecclesiastical councils, considered as organs of the Church, rested upon the principle of a virtual or an ex- press representation, and had a tendency to render its applica- tion to national assemblies more familiar. We find nothing that can arrest our attention, in searching out the origin of county representation, till we come to a writ in the fifteenth year of John, directed to all the sheriffs in the following terms : " Rex Vicecomiti N., salutem. Prfficipimus tibi quod omnes milites ballivae tute qui summoniti fuerunt esse apud Oxoniam ad Nos a die Omnium Sanctorum in quin- decim dies venire facias cum arniis suis : corpora vero baronum sine armis singulariter, et quatuor discretos milites de comitatu tuo, illuc venire facias, ad eundem terminum, ad loquendum nobiscum de negotiis regni nostri." Still it remains problem- atical whether these four knights (the only clause which concerns our purpose) were to be elected by the county or re- turned in the nature of a jury, at the discretion of the sheriff. Since there is no sufficient proof whereupon to decide, we can only say with hesitation that there mny have been an instance of county representation in the fifteenth year of Jolm. We may next advert to a practice, of which there is very clear proof in the reign of Henry III. Subsidies granted in 440 PARLIAMENTARY REPRESENTATION. Ch. VIII. Pt. III. Parliament were assessed, not as in former times by the jus- tices npon their circuits, hut hy knights freely chosen in tlie County Court. This a})pears by two writs, one of the fourtli and one of the ninth year of Henry III. At a subsequent period, by a provision of the Oxford Parliament in 1258, every county elected four knights to inquire into grievances, and deliver their inquisition into Parliament. The next writ now extant, that wears the appearance of par- liamentary representation, is in the thirty-eighth of Henry 111. This, after reciting that the earls, barons, and other great men (cteteri magnates) were to meet at London, three weeks after Easter, with horses and arms, for the purpose of sailing into Gascony, requires the sheriff to compel all within his jurisdic- tion, who hold twenty pounds a year of the king in chief, or of those in ward of the king, to aj)pear at the same time and place. And that, besides those mentioned, he shall cause to come before the king's council at AVestminster, on the fifteenth day after Easter, two good and discreet knights of his county, wliom the men of the county shall have chosen for this pur- pose, in the stead of all and each of them, to consider, along with the knights of other counties, what aid they will grant the king in such an emergency. In the principle of election, and in the object of the assembly, which was to grant money, this certainly resembles a summons to Parliament. There are, indeed, anomalies suificiently remarkable upon the face of the writ which distinguish this meeting from a regular Parliament. But when the scheme of obtaining money from the commons of shires through the consent of their representatives had once been entertained, it was easily applicable to more formal coun- cils of the nation. A few years later there appears another writ analogous to a summons. During the contest between Henry III. and the confederate barons in lUGl, they presumed to call a sort of Parliament, summoning three kniglits out of every county, " secum tractaturos super communibus negotiis regni." This we learn only by an opposite writ issued by the king, directing the sheriff to enjoin these knights wlio had been convened by the earls of Leicester and Gloucester to their meeting at St. Alban's, that they should repair instead to the king at Wind- sor, and to no other place, " nobiscum super prsemissis collo- quium habituros." It is not absolutely certain that these knights were elected by their respective counties. But even if they were so, this assembly has much less the appearance of a Parliament than that in the thirty-eighth of Henry III. English Const. PKOGKESS OF TOWNS. 441 At length, in the year 1265, the forty-ninth of Henry III., while he was a captive in the hands of Simon de Montfort, writs were issued in his name to all the sheriffs, directing them to return two knights for the body of their county, with two citizens or burgesses for every city and borough contained with- in it. This, therefore, is the epoch at which the representa- tion of the comr.ions becomes indisputably manifest ; even should we reject altogether the more equivocal instances of it which have just been enumerated. Whether the knights were still elected by only the king's military tenants, to spare them the inconvenience of personal attendance, or by the freeholders in general, is a difficult ques- tion. The legal antiquaries are divided. Prynne does not seem to have doubted but that the knights were "elected m tlie full county, by and for tlie whole county," without respect to the tenure of the freeholders. But Brady and Carte are of a different opinion. Yet their disposition to narrow the basis of the constitution is so strong, tliat it creates a sort of prejudice against their authority. And if I might offer an opinion on so obscure a subject, I should be much inclined to believe that, even from the reign of Henry III., the election of knights by all freeholders in the County Court, without regard to tenure, was little, if at all, different from what it is at present.^ § 7. The progress of towns in several Continental countries, from a condition bordering upon servitude to wealth and lib- erty, has more than once attracted our attention in other parts of the present work. Their growth in England, both from general causes and imitative policy, was very similar and near- ly coincident. Some of tlie greater towns, and London in par- ticular, enjoyed the right of electing magistrates with a certain jurisdiction before the Conquest.*^ But at the time of the Conquest we find the burgesses or inhabitants of towns living under the superiority or protection of the king, or of some other lord, to whom tliey paid annual rents, and deter- minate dues or customs. Besides these regular payments, which were in general not heavy, they were liable to tallages at the discretion of their lords. One of the earliest and most important changes in the con- dition of the burgesses was the conversion of their individual tributes into a perpetual rent from the whole borough. The town was then said to be affirmed, or let in fee-farm, to the = This question has been discussed witli much ability in the "Edinburgh Review," vol. xxvi., p. :yi. 6 Ou the Municipal Rights of Loudon, see Note I. 442 CHARTERS OF INCORPORATION. Chap. VIII. Pakt III. burgesses and their successors forever. Previously to such a grant the lord held the toAvn in his demesne, and was the legal proprietor of the soil and tenements ; though I by no means apprehend that the burgesses were destitute of a certain estate in their possessions. But of a town in fee-farm he only kept the superiority and the inheritance of the annual rent, which lie might recover by distress. The burgesses held their lands by burgage-tenure, nearly analogous to, or rather a species of, free socage. Perhaps before the grant they might correspond to modern copyholders. It is of some importance to observe that the lord, by such a grant of the town in fee- farm, whatever we may think of its previous condition, di- vested himself of his property, or lucrative dominion over the soil, in return for the perpetual rent ; so that tallages subse- quently set at his own discretion upon the inhabitants, how- ever common, can hardly be considered as a just exercise of the rights of proprietorship. Under such a system of arbitrary taxation, however, it was evident to the most selfish tyrant that the wealth of his bur- gesses was his wealth, and their prosperity his interest ; much more were liberal and sagacious monarchs, like Henry II., inclined to encourage them by privileges. From the time of AVilliani Eufus there was no reign in which charters were not granted to ditt'erent towns of exemption from tolls on rivers and at markets — those lighter manacles of feudal tyranny ; or of commercial franchises ; or of immunity from the ordinary jurisdictions; or, lastly, of internal self-regulation. Thus the original charter of Henry I. to the city of London concedes to the citizens, in addition to valuable commercial and fiscal immunities, the right of choosing their own sheriff and justice, to the exclusion of every foreign jurisdiction. These grants, however, were not in general so extensive till the reign of John. Before that time the interior arrangement of towns had received a new organization. In the Saxon j^eriod we find voluntary associations, sometimes religious, sometimes secular ; in some cases for mutual defence against injury, in others for mutual relief in poverty. These were called guilds, from the Saxon word gildan, to pay or contribute, and exhibited the nat- ural, if not the legal, character of cor2:»orations. At the time of the Conquest, sucli voluntary incorporations of the bur- gesses possessed in some towns either landed property of their own, or rights of superiority over that of others. An internal elective government seems to hnve been required for the administration of a common revenue, and of other business Englisu Const. PROSPERITY OF EXGLISII TOWNS. 443 incident to their association. Tliey became more numerous and more peculiarly commercial after that era, as well from the increase of trade as through imitation of similar fraterni- ties existing in many towns of France. The spirit of monopoly gave strength to those institutions, each class of traders form- ing itself, into a body, in order to exclude competition. Thus were established the companies in corporate towns, that of the Weavers in London being perhaps the earliest ; and these were successively consolidated and sanctioned by charters from the crown. In toAvns not large enough to admit of dis- tinct companies, one merchant guild comprehended the traders in general, or the chief of them ; and this, from the reign of Henry II. downward, became the subject of incorporating charters. The management of their internal concerns, previ- ously to any incorporation, fell naturally enough into a sort of oligarchy, which the tenor of the charter generally preserved. Though the immunities might be very extensive, the powers were more or less restrained to a small number. Except in a few places, the right of choosing magistrates was first given by King John ; and certainly must rather be ascribed to his poverty than to any enlarged policy, of which he was utterly incapable. § 8. From the middle of the twelfth century to that of the thirteenth, the traders of England became more and more prosperous. The towns on the southern coast exported tin and other metals in exchange for the wines of France ; those on the eastern sent corn to Norway ; the Cinque Ports bar- tered wool against the stuffs of Flanders. Though bearing no comparison with the cities of Italy or the Empire, they increased sufficiently to acquire importance at home. That vigorous prerogative of the Norman monarchs which kept down the feudal aristocracy compensated for whatever inferi- ority there might be in the population and defensible strengtli of the English towns, compared with those on the Continent. They had to fear no petty oppressors — no local hostility ; and, if they could satisfy the rapacity of the crown, were secure from all other grievances. London, far above the rest — our ancient and noble capital — might, even in those early times, be justly termed a member of the political system. This great city, so admirably situated, was rich and populous long before the Conquest. Bede, at the beginning of the eighth century, speaks of London as a great market, which traders frequented by land and sea. It paid £15,000 out of £82,000 raised by Canute upon the kingdom. If we believe Roger 444 PEOSPEIIITY OF ENGLLSH TOWNS. Cii. Vlll. Pt. III. Hoveden, the citizens of London, on the death of Ethelred II., joined with part of the nobility in raising Edmnnd Iron- side to the throne; Harold I., according to better authority — the Saxon Chronicle and William of Malmsbury — was elected by their concurrence. Descending to later history, we find them active in the civil war of Stephen and Matilda. The famous Bishop of Winchester tells the Londoners that they are almost accounted as noblemen on account of the greatness of their city — into the community of which it appears that some barons had been received. Indeed, the citizens them- selves, or at least the principal of them, were called barons. It was certainly by far the greatest city in England. There have been different estimates of its population, some of which are extravagant ; but I think it could hardly have contained less than thirty or forty thousand souls within its walls, and the suburbs were very populous. These numbers, the enjoy- ment of privileges, and the consciousness of strength, infused a free and even a mutinous spirit into their conduct. The Loudoners were always on the barons' side in their contests with the crown. They bore a part in deposing William Long- champ, the chancellor and justiciary of Richard L They were distinguished in the great struggle for Magna Charta — the privileges of their city are expressly confirmed in it, and the Mayor of London was one of the twenty-five barons to whom the maintenauce of its provisions was delegated. In the sub- sequent reign the citizeus of London were regarded with much dislike and jealousy by the court, and sometimes suffered pretty severely at its hands, especially after the battle of Evesham. Notwithstanding the influence of London in these seasons of disturbance, we do not perceive that it was distinguished from the most insignificant town by greater participation in national councils. Eicli, powerful, honorable, and high-spirited as its citizens had become, it was very long before they found a regular place in Parliament. The prerogative of imposing tallages at pleasure, unsparingly exercised by Henry IIL, even over London, left the crown no inducement to summon the inhabitants of cities and boroughs. As these, indeed, were daily growing more considerable, they were certain, in a mon- archy so limited as that of England became in the thirteenth century, of attaining, sooner or later, this eminent privilege. Although, therefore, the object of Simon de Montfort in calling them to his Parliament, after the battle of Lewes, was merely to strengthen his own faction, which prevailed among the English Const. DEPUTIES FROM BOROUGHS. 445 commonalty, yet their permanent admission into the Legislature may be ascribed to a more general cause ; for otherwise it is not easy to see why the innovation of an usurper should have been drawn into precedent, though it might, perhaps, accelerate what the course of affairs was gradually i)rei)aring. § 9. It is well known that the earliest writs of summons to cities and boroughs, of which we can prove the existence, are those of Simon de Montfort, earl of Leicester, bearing date 12th of December, 1264, in the forty-ninth year of Henry III. (See page 558.) After a long controversy, almost all judicious inquirers seem to have acquiesced in admitting this origin of popular representation. The argument may be very concisely stated : we find, from innumerable records, that the king im- posed tallages upon his demesne towns at discretion. No public instrument, previous to the forty-ninth of Henry III., names the citizens and burgesses as constituent parts of I'arlia- ment, though prelates, barons, knights, and sometimes free- holders, are enumerated ; while, since the undoubted admission of the Commons, they are almost invariably mentioned. No historian speaks of representatives appearing for the people, or uses the word citizen or burgess in describing those present in Parliament. Such convincing, though negative, evidence is not to be invalidated by some general and ambiguous phrases, whether in writs and records or in historians. Those monkish annalists are poor authorities upon any point where their language is to be delicately measured. But it is hardly pos- sible that, writing circumstantially, as Eoger de Hoveden and Matthew Paris sometimes did, concerning proceedings in Par- liament, they could have failed to mention the Commons in unequivocal expressions, if any representatives from that order had actually formed a part of tlie assembly. § 10. There is no great difficulty in answering the question why the deputies of boroughs were tinally and permanently iugrafted upon Parliament by Edward I. The Government was becoming constantly more attentive to the wealth that commerce brought into the kingdom, and the towns were becoming more flourishing and more independent. But chiefly there was a much stronger spirit of general liberty, and a greater discontent at violent acts of prerogative from the era of Magna Charta ; after which authentic recognition of free principles, many acts which had seemed before but the regular exercise of authority were looked upon as infringements of the subject's right. Among tliese, the custom of setting tallages at discretion would naturally appear the most intolerable ; and men were unwilling 446 DEPUTIES FliOM BOKOUGHS. Chap. VIII. Pakt III. to remember that the burgesses who paid them were indebted for the rest of their possessions to the bounty of the crown. In Edward I.'s reign, even before the great act of Confirmation of the Charters had rendered arbitrary impositions absolutely unconstitutional, they might, perhaps, excite louder murmurs than a discreet administration would risk. Though the neces- sities of the king, therefore, and his imperious temper often led him to this course, it was a more prudent counsel to try the willingness of his people before he forced their reluctance. And the success of his innovation rendered it worth repetition. Whether it were from the complacency of the Commons at be- ing thus admitted among the peers of the realm, or from a per- suasion that the king would take their money if they refused it, or from inability to withstand the plau.sible reasons of his ministers, or from the private influence to which the leaders of every ])opular assembly have been accessil)le, much more was granted in subsidies after the representation of the towns com- menced than had ever been extorted in tallages. To grant money was, therefore, the main object .of their meeting ; and if the exigencies of the administration could have been relieved without subsidies, the citizens and burgesses might still have sat at home and obeyed the laws which a coun- cil of prelates and barons enacted for their government. But it is a difficult question whether the king and the peers designed to make room for them, as it were, in legislation ; and whether the power of the purse drew after it immediately, or only by degrees, those indispensable rights of consenting to laws which they now possess. There are no sufficient means of solving this doubt during the reign of Edward I. ;'' but it must be highly questional)le whether the Commons, who had so recently taken their place in Parliament, gave anything more than a construc- tive assent to the laws enacted during this reign. They are not even named in the preamble of any statute till the last year of Edward I. Upon more than one occasion the sheriffs were ' The writ in 22 Edward I. directs two knights to be chosen " cum plena potestate pro se et tota conimunitate coniitatfls prjedicti ad consulenduin ct consentieuduni pro se et cuininunitate ilia, his rjiia:? coniites, burones, et proceres prjedicti concorditer ordinaveiiiit in pneniissis." I luit of the next year runs, " ad faciendum tunc quod de communi consilio ordinabitur in prsmissis." The same words are inserted in the writ of 26 Edward I. In tliat of 2f< Edward I. the knights are directed to be sent " cum l)lena potestate audiendi et faciendi quae ibidem ordinari contigerent pro communi coTTiniodo." Several others of tlie sniiie reign have the words " ad faciendum." The difficulty is to pronounce wliether this term is to be interpreted in the sense of per- formiiKi or of emicting; whether llie representatives of the Commons were merely to iearu from the f/ords what was to be done, or to bear their part in advising upon it. The earliest writ, that of 22 Edward I., certainly implies the latter; and I do not know that any of the rest are conclusive to the contrary. In the reign of Edward II. the words " ad ronsentiendum " alone, or " ad faciendum et consentiendum," begin; and from that of Edward III. this form has been constantly used. English Const. DIVISION" OF PARLIAMENT, 447 directed to return the same members who had sat in the hist Parliament, unless prevented l)y death or inhrmity. § 11. It has been a very prevailing opinion that Parliament was not divided into two houses at the first admission of the Commons. If by this is only meant that the Commons did not occupy a separate chamber till some time in the reign of Edward III., the proposition, true or false, will be of little im- portance. They may have sat at the bottom of Westminster Hall, while the Lords occupied the upper end. But tliat they were ever intermingled m voting appears inconsistent with like- lihood and authority. The usual object of calling a Parliament was to imjDOse taxes ; and these, for many years after the in- troduction of the Commons, were laid in different proportions upon the three estates of the realm. Thus, in 23 Edward I., the earls, barons, and knights gave the king an eleventh, the clergy a tenth ; while he obtained a seventh from the citizens and burgesses : in the twenty-fourth of the same king the two former of these orders gave a twelfth, the last an eighth : in the thirty-third year a thirtieth was the grant of the barons and knights and of the clergy, a twentieth of the cities and towns. In the first of Edward II. the counties paid a twen- tieth, the towns a fifteenth. In the sixth of Edward III. the rates were a fifteenth and a tenth. These distinct grants imply distinct grantors ; for it is not to be imagined that the Commons intermeddled in those affecting the Lords, or the Lords in those of the Commons. In fact, however, there is abundant proof of their separate existence long before the seventeenth of Edward III., which is the epoch assigned by Carte, or even the sixth of that king, which has been chosen by some other writers. Thus the Commons sat at Acton Burnell in the eleventh of Edward I., while the upper house was at Shrewsbury. In the eighth of Edward II. "the Commons of England complain to the king and his council," etc. These must surely have been the Com- mons assembled in Parliament, for who else could thus have entitled themselves ? In the nineteenth of the same king Ave find several petitions, evidently proceeding from the body of the Commons in Parliament, and com})laining of public grievances. As the knights of shires correspond to the lower nobility of other feudal countries, we have less cause to be surprised that they belonged originally to the same branch of Parlia- ment as tlie barons, tlian at their subsequent intermixture with men so inferior in station as the citizens and burgesses. It is by no means easy to define the point of time when this distribution was settled ; but I think it may be inferred from 448 EDWARD III. Chap. VIII. Part III. the rolls of Parliament that the houses were divided as they are at present in the eighth, ninth, and nineteenth years of Edward II. This appears, however, beyond doubt in the first of Edward III. Yet in the sixth of the same prince, though the knights and burgesses are expressly mentioned to have consulted together, the former taxed themselves in a smaller rate of subsidy than the hitter. § 12. The proper business of the House of Commons was to petition for redress of grievances, as much as to provide for the necessities of the crown. In the prudent fiction of English law no wrong is supposed to proceed from the source of right. The throne is fixed upon a pinnacle which perpetual beams of truth and justice irradiate, though cor- ruption and partiality may occupy the middle region and cast their chill shade upon all below. In his high court of Parliament a king of England was to learn where injustice had been unpunished and where right had been delayed. The common courts of law, if they were sufficiently honest, were not sufficiently strong, to redress the subject's injuries where the officers of the crown or the nobles interfered. To Parliament he looked as the great remedial court for relief of ])rivate as well as public grievances. For this cause it was ordained in the fifth of Edward II. that the king should hold a Parliament once, or if necessary, twice every year; "that the pleas which have been thus delayed, and those where the justices have differed, may be brought to a close." And a short act of 4 Edward III., which was not very strictly regarded, provides that a Parliament shall be held " every year, or oftener, if need be." By what persons, and under what limi- tations, this jurisdiction in Parliament was exercised will come under our future consideration. The efficacy of a king's personal character in so imperfect a state of government was never more strongly exemplified than in the two first Edwai'ds. The father, a little before his death, had humbled his boldest opponents among the nobility ; and as for the Commons, so far from claiming a right of remonstrating, we have seen cause to doubt whether they were accounted effectual members of the legislature for any purposes but taxation. lUit in the very second year of the son's reign they granted tlie twenty-fifth penny of their goods, " upon this condition, that the king should take advice and grant redress upon certain articles wherein they are aggrieved." These were answered at the ensuing Parliament, and are entered with the king's respective promises of redress upon English Const. EDWARD III. 449 the roll. It will be worth while to extract part of this record, that we may see what were the complaints of the Commons of England, and their notions of right, in 1309. " The good people of the kingdom who are come hither to Parliament pray our lord the king that he will, if it please him, have regard to his poor subjects, who are much ag- grieved by reason that they are not governed as they should be, especially as to the articles of the Great Charter ; and for this, if it please him, they pray remedy. Besides which, they pray their lord the king to hear what has long ag- grieved his people, and still does so from day to day, on the part of those who call themselves his officers, and to amend it, if he pleases." The articles, eleven in number, are to the following purport : 1. That the king's surveyors seize great quantities of victuals without payment ; 2. That new cus- toms are set on wine, cloth, and other imposts ; 3. That the current coin is not so good as formerly ; 4, 5. That the stew- ard and marshal enlarge their jurisdiction beyond measure, to the oppression of the people ; 6. That the commons find none to receive petitions addressed to the council ; 7. That the collectors of the king's dues (pernours des prises) in towns and at fairs take more than is lawful ; 8. That men are delayed in their civil suits by writs of protection ; 9. That felons es- cape punishment by procuring charters of pardon ; 10. That the constables of the king's castles take cognizance of com- mon pleas ; 11. That the king's escheators oust men of lands held by good title, under pretence of an inquest of office. These articles display in a short compass the nature of those grievances which existed under almost all the princes of the Plantagenet dynasty, and are spread over the rolls of Parlia- ment for moi-e than a century after this time. Edward gave the amplest assurances of putting an end to them all, except in one instance, the augmented customs on imports, to whicli he answered, rather evasively, that he would take them off till he should perceive whether himself and his peo|)le derived advantage from so doing, and act thereupon as he should be advised. Accordingly, the next year, he issued writs to collect these new customs again. Put the Lords Ordainers superseded the writs, having entirely abrogated all illegal impositions. It does not ai)i)ear, however, that, regard had to the times, there was anything very tyrannical in Edward's government. He set tallages sometimes, like his father, on his demesne towns, without assent of Parliament. In the nineteenth year of his reign the Commons show that, " Whereas we and our ancestors 450 ILLEGALITY OF RAISING Chap. VIII. Part hi. have given many tallages to the king's ancestors to obtain the charter of the forest, which charter we have had contirmed by the present king, paying him largely on our part; yet the king's officers of the forest seize on lands, and destroy ditches, and oppress the people, for which they pray remedy, for the sake of God and his father's soul." They complain at the same time of arbitrary imprisonment, against the law of the land. To both these petitions the king returned a promise of redress ; and they complete the catalogue of customary grievances in this period of our constitution. During tlie reign of Edward II. the rolls of Parliament are imperfect, and we have not much assistance from other sources. The assent of the Commons, which frequently is not specified in the statutes of this age, appears in a remarkable and revolu- tionary proceeding, the appointment of the Lords Ordainers in 1312. In this case it indicates that the aristocratic party then combined against the crown were desirous of conciliating pop- rdarity. An historian relates that some of the Commons were consulted upon the ordinances to be made for the reformation of government. § 13. During the long and prosperous reign of Edward III. the efforts of Parliament in behalf of their country were re- warded with success in establishing upon a firm footing three essential principles of our Government — the illegality of raising money without consent ; the necessity that the two houses should concur for any alterations in the law ; and, lastly, the right of the Commons to inquire into public abuses, and to impeach public counsellors. By exhibiting proofs of each of these from Parliamentary records I shall be able to substantiate the progressive improvement of our free constitu- tion, which was principally consolidated during the reigns of Edward III. and his two next successors. I. IllegaUtij of raisinf/ Monei/ lalthont Consent. — In the sixth year of Eclward III. a Parliament was called to provide for the emergency of an Irish rebellion, wherein, " because the king could not send troops and money to Ireland without the aid of his people, the prelates, earls, barons, and other great men, and the knights of shire, and all the Commons, of their free will, for the said purpose, and also in order that the king might live of his own, and not vex his peoj>le by excessive prizes, nor in other manner, grant to him the fifteenth penny, to levy of the commons,^ and the tenth from the cities, toAvns, 8 " La commonaltee " srenis in this place to mean tlie tenants of land, or commons of the counties, in contradistinction to citizens and burgesses. English Const. MONEY WITHOUT CONSENT. 451 and royal demesnes. And the Icing at the re(|iiest of the same, in ease of his people, grants that the commissions lately made to certain persons assigned to set tallages on cities, towns, and demesnes throughout England shall be immediately repealed ; and that in time to come he will not set such tallage, except as it has been done in the time of his ancestors, and he may reasonably do." These concluding words are of dangerous implication ; and certainly it was not the intention of Edward, inferior to none of his predecessors in the love of power, to divest himself of that eminent prerogative which, however illegally since the Contirmatio Chartarum, had been exercised by them all. But the I'arliament took no notice of this reservation, and con- tinued with unshaken perseverance to insist on this incon- testable and fundamental right, wliich he was prone enough to violate. In the thirteenth year of this reign the Lords and Commons gave their answer to commissioners sent to open the Parliament, and to treat Avith them on the king's part, in separate sealed rolls. The Commons declared that they could grant no subsidy without consulting their constituents ; and therefore begged that another Parliament might be summoned, and in the mean- time they would endeavor, by using persuasion with the people of their respective counties, to procure the grant of a reasonable aid in the next Parliament. They demanded also that the im- position on wool and lead should be taken as it used to be in former times, " inasmuch as it is enhanced without assent of the Commons, or of the Lords, as we understand; and if it be otherwise demanded, that any one of the Commons may refuse it without being troubled on that account." Wool, liowever, the staple export of that age, was too easy and tempting a prey to be relinquished by a prince engaged in an impoverishing war. Seven 3'ears afterwards, in 20 Edward III., we find the Commons praying that the great sul)sidy of forty shillings upon the sack of wool be taken oft'; and the old custom paid as heretofore was assented to and granted. The Government spoke this time in a more authoritative tone. " As to this point," the answer runs, " the prelates and others, seeing in what need the king stood of an aid before his passage beyond sea, to recover his rights and defend his kingdom of England, consented, with the concurrence of the merchants, that he shovdd have in aid of his said war, and in defence of his said kingdom, forty shillings of subsidy for each sack of wool that should be exported beyond sea for two years to 452 CONCURRENCE OF BOTH HOUSES Chap. YIIT. Part III. come. And upon this grant divers merchants have made many advances to our lord the king in aid of his war ; for which cause this subsidy cannot be repealed without assent of the king and his lords." It is probable that Edward's counsellors wished to establish a distinction, long afterwards revived by those of James I., between customs levied on merchandise at the ports and in- ternal taxes. The statute entitled Contirmatio Chartarum had manifestly taken away the prerogative of imposing the latter, which, indeed, had never extended beyond the tenants of the royal demesne. But its language was not quite so explicit as to the former, although no reasonable doubt could be enter- tained that the intention of the legislature was to abrogate every species of imposition unauthorized by Parliament. The thirtieth section of Magna Charta had provided that foreign mercliants should be free from all tributes except the ancient customs ; and it Avas strange to suppose that natives were ex- cluded from the benefit of that enactment. Yet, owing to the ambiguous and elliptical style so frequent in our older laws, this was open to dispute, and could, perhaps, only be explained by usage. Edward I., in despite of both tliese statutes, had set a duty of threepence in the pound upon goods imi)orted by merchant-strangers. This imposition was noticed as a griev- ance in the tliird year of his successor, and repealed by the Lords Ordainers. It was revived, however, by Edward III., and continued to be levied ever afterwards. Edward was led by the necessities of his unjust and expen- sive war into another arbitrary encroachment, of which we find as many complaints as of his pecuniary extortions. The Commons pray, in the same Parliament of 20 Edward III., that commissions should not issue for the future out of chan- cery to charge the people with providing men-at-arms, hobelers (or light cavalry), archers, victuals, or in any other manner, without consent of Parliament. The king in reply alleges absolute necessity ; and the roll of Parliament in the next two years, the 21st and 22(1 of Edward III., is full of the same complaints on one side, and the same allegations of necessity on the other. In the latter year the Commons grant a sub- sidy, on condition that no illegal levying of money should take place, with several other remedial provisions ; " and that these conditions should be entered on the roll of Parliament, as a matter of record, by which they may have remedy, if any thing should be attempted to the contrary in time to come." From this year the complaints of extortion became rather English Const. IIS" LEGISLATION NECESSARY. 453 less frequent ; and soon afterwards a statute was passed, " that no man shall be constrained to find men-at-arms, hobe- lers, nor archers, other than those which hold by such services, if it be not by common assent and grant made in Parliament." ■ II. The Concurrence of both Houses in Legislation neces- sary. — The second constitutional principle established in the reign of Edward III. was tliat the king and two houses of Parliament, in conjunction, possessed exclusively the right of legislation. Laws were now declared to be made by the king at the request of the Commons, and by the assent of the lords and prelates. Such at least was the general form, though for many subsequent ages there was no invariable regularity in this respect. The Commons, who till this reign were rarely mentioned, were now as rarely omitted in the enacting clause. In fact, it is evident from the rolls of Parliament that statutes were almost always founded upon their petition. These peti- tions, with the respective answers made to them in the king's name, were drawn up after the end of the session in the form of laws, and entered upon the statute-roll. But here it must be remarked tliat the petitions were often extremely qualified and altered by the answer, insomuch that many statutes of this and some later reigns by no means express the true sense of the Commons. Sometimes they contented themselves with showing their grievance, and praying remedy from tlie king and his council. Of this one eminent instance is the great statute of treasons. In the petition whereon this act is founded it is merely prayed that, " whereas the king's justices in different counties adjudge persons indicted before them to be traitors for sundry matters not known by the Commons to be treason, it would please the king by his council, and by the great and wise men of the land, to declare what are treasons in this present Parliament." The answer to this petition contains the existing statute, as a declaration on the king's part. But there is no appearance that it received the direct assent of the lower house. In the next reign we shall find more remarkable instances of assuming a consent wliich was never positively given. The statute of treasons, however, was supposed to be de- claratory of the ancient law : in permanent and material in- novations a more direct concurrence of all the estates was proba))ly required. A new statute, to be perpetually incor- porated with the law of England, was regarded as no light matter. It was a very common answer to a petition of the Commons, in the early part of this reign, that it could not be 454 STATUTES DISTINGUISHED Chap. VIII. Part III. granted witliout making a new law. After the Parliament of 14 Edward III. a certain number of prelates, barons, and counsellors, with twelve knights and six burgesses, were ap- pointed to sit from day to day in order to turn such peti- tions and answers as were fit to be perpetual into a statute ; biit for such as were of a temporary nature the king issued his letters patent. This reluctance to innovate without ne- cessity, and to swell the number of laws which all were bound to know and obey with an accumulation of transitory enact- ments, led apparently to the distinction between statutes and ordinances. The latter are indeed defined by some lawyers to be regulations proceeding from the king and Lords witliout concurrence of the Commons. But if this be appli- cable to some ordinances, it is certain that the word, even when opposed to statute, with which it is often synonymous, sometimes denotes an act of the whole legislature. In the 37th of Edward III., when divers sumptuary regulations against excess of apparel were made in full Parliament, " it was demanded of the Lords and Commons, inasmuch as the matter of their petitions was novel and unheard of before, whether they would have them granted by way of ordinance or of statute. They ansAvei-ed tliat it would be best to have them by the way of ordinance and not of statute, in order that any thing which should need amendment might be amended at the next Parliament." So much scruple did they enter- tain about tampering with the statute law of the land. Ordinances which, if it were not for their partial or tem- porary operation, could not well be distinguished from laws,® Avere often established in great councils. These assemblies, which frequently occurred in Edward's reign, were hardly distinguishable, except in name, from Parliaments; being constituted not only of those who were regularly summoned to the House of Lords, but of deputies from counties, cities, and boroughs. Several places that never returned burgesses to Parliament, have sent deputies to some of these councils. The most remarkable of these was that held in the 27th of Edward III., consisting of one knight for each county, and of two citizens or burgesses from every city or borough wherein the ordinances of the staple were established. These were ])reviously agreed upon by the king and Lords, and copies given, one to the knights, another to the burgesses. 9 " If there be any difference between !\n ordinance and a statute, as some have collected, it is but only this, that an ordinance is but temporary till coniimied and made perpetual, but a statute is perpetual at first, and so Iiave some ordinances also been." — Wliitelocke on Parliamentary Writ, vol. ii., p. 297. English Const. FliOM ORDINANCES. 455 The roll tells us that they gave their opinion in writing to the council, after much deliberation, and that this was read and discussed by the great men. These ordinances fix the staple of wool in particular places within England, prohibit English merchants from exporting that article under pain of death, inflict sundry other penalties, create jurisdictions, and in short have the effect of a new and important law. After they were passed, the deputies of the Commons granted a subsidy for three years, complained of grievances, and received answers, as if in a regular Parliament. But they were aware that these proceedings partook of some irregu- larity, and endeavored, as was their constant method, to keep up the legal forms of the constitution. In the last petition of this council the Commons pray, " because many articles touching the state of the king and common profit of his kingdom have been agreed by him, the prelates. Lords, and Commons of his land, at this council, that the said articles may be recited at the next Parliament, and entered upon the roll ; for this cause, that ordinances and agreements made in council are not of record, as if they had been made in a general Parliament." This, accordingly, was done at the ensuing Parliament, whd»n these ordinances were expressly confirmed, and directed to be '* holden for a statute to endure always." It must be confessed that the distinction between ordinances and statutes is very obscure, and perhaps no precise and uni- form principle can be laid down about it. But it sufficiently appears that whatever provisions altered the common law or any former statute and were entered upon the statute-roll, transmitted to the sheriffs, and promulgated to tlie people as general enactments, were holden to require the positive assent of both houses of Parliament, duly and formally summoned. Before we leave this subject it will be pro])er to take notice of a remarkable stretch of prerogative which, if drawn into precedent, Avould have effectually subverted this principle of parliamentary consent in legislation. In the 15th of Edward III. petitions were presented of a bolder and more innovating cast than was acceptable to the court : that no peer should be put to answer for any trepass except before his peers ; that commissioners should be assigned to examine the accounts of such as had received public moneys ; that the judges and ministers should be sworn to observe the Great Charter and other laws ; and that they should be appointed in Parliament. The last of these was probably the most obnoxious ; but the 45G EIGHT OF COMMONS Chap. VIII. Part III. king, unwilling to defer a supply which was granted merely upon condition that these petitions should prevail, suffered them to ])ass into a statute with an alteration which did not take oft' much from their efficacy — namely, that these officers should indeed be appointed by the king with the advice of his council, but should surrender their charges at the next Parlia- ment, and be there responsible to any who should have cause of complaint against them. The chancellor, treasurer, and judges entered their protestation that they had not assented to the said statutes, nor could they observe them, in case they should prove contrary to the laws and customs of the kingdom, which they were sworn to maintain. This is the first instan(;e of a protest on the roll of Parliament against the passing of an act. Nevertheless they were compelled to swear on the cross of Canterbury to its observance. This excellent statute was attem])ted too early for complete success. Edward's ministers plainly saw that it left them at the mercy of future Parliaments, who would readily learn the wholesome and constitutional principle of sparing tlie sovereign while they punished his advisers. They had re- course, therefore, to a violent measure, but which was likely in those times to 'be endured. By a proclamation addressed to all the sheriffs the king revokes and annuls the statut(^ as contrary to the laws and customs of England and to his own just rights and prerogatives, which he had sworn to preserve ; declaring that he had never consented to its passing, but, hav- ing previously protested that he would revoke it, lest the Parliament should have been separated in wrath, had dissem- bled, as was his duty, and permitted the great seal to be affixed; and that it appeared to the earls, barons, and other learned persons of his kingdom with whom he had consulted, that, as the said statute had not proceeded from his own good- will, it was null, and could not have the name or force of law. This revocation of a statute, as the price of which a subsidy had been granted, was a gross infringement of law, and un- doubtedly passed for such as that time ; for the right was already clear, though the remedy was not always attainable. Two years afterwards Edward met his Parliament, when that obnoxious statute was formally repealed. Notwithstanding the king's unwillingness to permit this control of Parliament over his administration, he suffered, or rather solicited, their interference in matters which have since been reckoned the exclusive province of the crown. This was an unfair trick of his policy. He was desirous, in order to English Const. TO INQUIRE INTO ABUSES. 457 prevent any murmuring about subsidies, to throw the war ujjon Parliament as tlieir own act, though none could have been commenced more selfishly for his own benefit, or less for the advantage of the people of England. It is called " the war which our lord the king has undertaken against his adversary of France, by common assent of all the Lords and Commons of his realm in divers parliaments." And he several times referred it to them to advise upon the subject of peace. But the Commons showed their humility or discretion by treating this as an invitation wliich it would show good manners to de- cline, though in the eighteentli of the king's reign they had joined with the Lords in imploring the king to make an end of the war by a battle or by a suitable peace. III. Right of the Comvions to lnqui7-e into Puhlic Abuses. — A third important accpiisition of the House of Commons during this reign was the establishment of their right to in- vestigate and cliastise the abuses of administratiou. The most memorable example of the exercise of this riglit occurred in the fiftieth of Edward III. It will be remembered by every one who has read our history that in the latter years of Edward's life his fame was tarnished by the ascendency of the Duke of Lancaster and Alice Ferrers. The former, a man of more ambition than his capacity seems to have warranted, even incurred the suspicion of meditating to set aside the heir of the crown when the Black Frince should have sunk into the grave. Whether he were wronged or not by these conjectures, they certainly appear to have operated on those most con- cerned to take alarm at them. A Parliament met, in April, 1376, wherein the general unpopularity of the king's adminis- tration, or the infiuence of the Frince of Wales, led to very remarkable consequences. The Commons alleged three particular grievances ; the re- moval of the staple from Calais, Avhere it had been fixed by Parliament, through the ])rocurement and advice of the pri- vate counsellors about the king ; the participation of the same persons in lending money to the king at exorbitant usury ; and their purchasing at a low rate, for their own benefit, old debts from the crown, the whole of which they had afterwards induced the king to repay to themselves. For these and for many more misdemeanors the Commons accused and impeached the lords Latimer and Nevil, with four merchants, Lyons, Ellis, Peachey, and Bury. Latimer had been chamberlain, and Nevil held another ottice. The former was the friend and creature of the Duke of Lancaster. Nor was this Parliament 458 RICHARD III. Chap. VIII. Part III. at all nice in touching a point where kings least endure their interference. An ordinance was made that, " whereas many women prosecute the suits of others in courts of justice by way of maintenance, and to get profit thereby, which is dis- pleasing to the king, he forbids any woman henceforward, and especially Alice Ferrers, to do so, on pain of the said Alice forfeiting all her goods, and suffering banishment from the kingdom." The part which the Prince of Wales, who had ever been distinguished for his respectful demeanor towards Edward, bore in tliis unprecedented opposition, is strong evidence of the jealousy with which he regarded the Duke of Lancaster ; and it was led in the House of Commons by Peter de la Mare, a servant of the Earl of March, who, by his marriage with Philippa, heiress of Lionel, duke of Clarence, stood next after the young Prince Eichard in lineal succession to the croAvn. The proceedings of this session were, indeed, highly popular. But no House of Commons would have gone such lengths on the mere support of popular opinion, unless instigated and en- conraged by higher authority. Without this, their petitions might, i)erhaps, have obtained, for the sake of subsidy, an im- mediate consent ; but those who took the lead in preparing them must have remained unsheltered after dissolution, to abide the vengeance of the crown, with no assurance that an- other Parliament would espouse their cause as its own. Such, indeed, was their fate in the present instance. Soon after the dissolution of Parliament, the Prince of Wales, who, long sinking by fatal decay, had rallied his expiring energies for this domestic combat, left his inheritance to a child ten years old, Richard of Bordeaux. Immediately after this event Lan- caster recovered his influence, and the former favorites re- turned to court. Peter de la Mare was confined at Notting- ham, where he remained two years. The citizens, indeed, attempted an insurrection, and threatened to burn the Savoy, Lancaster's residence, if De la Mare were not released ; but the Bishop of London succeeded in appeasing them. A Par- liament met next year which overthrew the work of its prede- cessor, restored those who had been impeached, and repealed the ordinance against Alice Perrers. So little security will popular assemblies ever afford against arbitrary power, when deprived of regular leaders and the consciousness of mutual fidelity. The policy adopted by the I'rince of Wales and Earl of March, in employing the House of Commons as an engine English Const. CHARACTER OF RICIIAED II. 459 of attack against an obnoxions ministry, was perfectly novel, and indicates a sensible change in the character of our consti- tution. In the reign of Edward II., Parliament had little share in resisting the Government ; much more was effected by the barons through risings of their feudal tenantry. Fifty years of authority better respected, of law better enforced, had rendered these more perilous, and of a more violent ap- pearance than formerly. A surer resource presented itself in the increased weight of the lower house in Parliament. And this indirect aristocratical influence gave a surprising impulse to that assembly, and particularly tended to establish beyond question its control over public abuses. It is no less just to remark that it also tended to preserve the relation and har- mony between each part and the other, and to prevent that jarring of emulation and jealousy which, though generally found in the division of power between a noble and a popular estate, has scarcely ever caused a dissension, except in cases of little moment, between our two houses of Parliament. § 14. The Commons had sustained v/ith equal firmness and discretion a defensive war against arbitrary power under Ed- ward III. ; they advanced with very different steps towards his successor. Upon the king's death, though Richard's cor- onation took place without delay, and no proper regency was constituted, yet a council of twelve, whom the great officers of state were to obey, supplied its place to every effectual intent. Among these the Duke of Lancaster was not numbered, and he retired from court in some disgust. In the first Parliament of the young king a large proportion of the knights who had sat in that which impeached the Lancastrian party were returned. Peter de la Mare, now released from prison, was elected speaker. The prosecution against Alice Perrers was revived — not, as far as appears, by direct impeachment of the Commons ; but articles Avere exhibited against her in the House of Lords on the kin;;'s part, for breaking the ordinance made against her inter- meddling at court ; upon which she received judgment of banishment and forfeiture. At the request of the lower house, the Lords, in the king's name, appointed nine persons of different ranks — three bishops, two earls, two bannerets, and two bachelors — to be a permanent council about the king, so that no business of importance should be transacted without their unanimous consent. The king was even com- pelled to consent that, during his minority, the chancellor, treasurer, judges, and other chief officers should be made 460 POWER OJ' RICHARD II. Chap. VIII. Paiit III. in Parliament ; by wliicli provision, combined witli tliat of the Parliamentary council, the whole executive government was transferred to the two houses. For the first few years of Eichard's reign we find from the rolls, repeated demands of subsidy on one side, remon- strance and endeavors at reformation on the other. But the power of the Commons steadily increases. After the tremendous insurrection of the villeins in 1382, a Parliament was convened to advise about repealing the charters of general manumission, extorted from the king by the pressure of circumstances. In this measure all concurred; but the Commons were not afraid to say that the late risings had been provoked by the burdens which a prodigal court had called for in the preceding session. Tlie character of Richard II. was now developing itself, and the hopes excited by his remarkable presence of mind in confronting tlie rioters on Blackheath were rapidly de- stroyed. Not that he was wanting in capacity, as has been sometimes imagined. Por if Ave measure intellectual power by the greatest exertion it ever displays, rather than by its average results, Pichard II. was a man of considerable talents. He possessed, along with much dissimulation, a decisive promptitude in seizing the critical moment for action. Of this quality, besides his celebrated behavior towards the insurgents, he gave striking evidence in several circumstances which we shall have shortly to notice. But his ordinary con- duct belied the abilities which on these rare occasions shone forth, and rendered them ineffectual for his security. Ex- treme pride and violence, with an inordinate partiality for the most worthless favorites, were his predominant charac- teristics. Though no king could be less respectable than Eichard, yet the constitution invested a sovereign with such ample prerogative, that it was far less easy to resist his personal exercise of power than the unsettled councils of a minority. Though the Commons did not relax in tlieir importunities for the redress of general grievances, they did not venture to intermeddle as before with the conduct of administration. They did not even object to the grant of the marquisate of Dublin, with almost a princely dominion over Ireland ; which enormous donation was confirmed by act of Parliament to Vere, a favorite of the king. A petition that the ofiicers of state should annually visit and inquire into his household was answered that the king would do what he pleased. English Const. COMMISSION OF IIEFORM. 461 There is nothing, however, more deceitful to a monarch unsupported by an armed force, and destitute of wary ad- visers, tlian this submission of his people. A single effort was enough to overturn his government. l*arliament met in the tenth year of his reign, steadily determined to reform the administration, and especially to punish its chief leader, Michael de la Pole, earl of Suffolk and lord chancellor. The charges against this minister, without being wholly frivolous, were not so weighty as the clamor of the Commons might have led us to expect. Besides forfeiting all his grants from the croAvn, he was committed to prison, there to remain till he should have paid such fine as the king might impose — a sentence that would have been outrageously severe in many cases, though little more than nugatory in the present. This was the second precedent of that grand constitutional resource, Parliamentary impeachment ; and more remarkable, from the eminence of the person attacked, than that of Lord Latimer in the fiftieth year of Edward III. The Commons were content to waive the prosecution of any other ministers ; but they rather chose a scheme of reforming the administra- tion which should avert both the necessity of punishment and the malversations that provoked it. Tliey petitioned the king to ordain in Parliament certain chief officers of his council, with power to reform those abuses by which his crown was so much blemished that the laws were not kept, and his revenues were dilapidated, confirming by a statute a commission for a year, and forbidding, under heavy penalties, any one from o]>posing, in private or openly, what they should advise. With this the king complied, and a commission founded upon the prayer of Parliament, was established by statute. It comprehended fourteen persons of the highest eminence for rank and general estimation ; princes of the blood and ancient servants of the crown, by whom its prerogatives were not likely to be unnecessarily impaired. Still, the design as well as tendency of this commission was no doubt to throw the whole administra- tion into their hands during the period of their sway. Many have exclaimed against this Pa,rliamentary commis- sion as an unwarrantable violation of the king's sovereignty, and even impartial men are struck at first sight by a measure that seems to overset the natural balance of our constitution. P)ut it would be unfair to blame either those concerned in this commission, some of Avhose names at least have been handed 462 ANSWERS TO RICHAED'S QUESTIONS. Ch. VIll. Pt. III. down with unquestioned respect, or those high-spirited repre- sentatives of the people whose patriot firmness has been hitherto commanding all our sympathy and gratitude, unless we could distinctly pronounce by what gentler means they could restrain the excesses of government. Thirteen Parliaments had already met since the accession of Richard ; in all the same remon- strances had been repeated, and the same promises renewed. Subsidies, more frequent than iii any former reign, had been granted for the supposed exigencies of the Avar ; but this Avas no longer illuminated by those dazzling A'ictories Avhich give to fortune the mien of wisdom : the coasts of England Avere per- petually ra\'aged, and her trade destroyed, Avhile tiie adminis- tration incurred the suspicion of diverting to private uses that treasure Avhich they so feebly and vnisuccessfully applied to public service. No voice of his people, until it spoke in thun- der, would stop an intoxicated boy in the Avasteful career of dissipation. He loved festivals and pageants, the prevailing folly of his time, Avith unusual frivolity ; and his ordinary living is represented as beyond comparison more shoAvy and sumptuous tlian even that of his magnificent and chivalrous predecessor. Acts of Parliament were no adequate barriers to his misgovernment. By yielding to the Avill of his Parlia- ment and to a temporary suspension of ])rerogative, this unfor- tunate prince might probably have reigned long and peacefully ; the contrary course of acting led eventually to his dejDosition and miserable death. Before the dissolution of parliament, Richard made a ver- bal protestation that nothing done therein should be in preju- dice of his rights — a reserA^ation not unusual Avhen any remarkal)le concession Avas made, but which could not decently be interpreted, whatever he might mean, as a dissent from the statute just passed. Some months had inter A'ened wheji the king, Avho had already released Suffolk from prison and re- stored him to his favor, procured from the judges, whom he liaclssummoned to Nottingham, a most convenient set of answers to questions concerning the late proceedings in Parliament. Tresilian and Belknap, chief justices of the King's Bench and Common Pleas, Avith several other judges, gave it under seals that the late statute and commission Avere derogatory to the l)rerogative ; that all avIio procured it to be passed, or persuaded or compelled the king to consent to it, were guilty of treason ; that the king's biisiness must be proceeded upon before any other in Parliament ; that he may jmt an end to tlie session nt his pleasure ; that his ministers cannot be impeached without English Const. APPARENT HAEMONY. 463 his consent ; that any members of Parliament contravening the three last articles incur the penalties of treason, and especially he who moved for the sentence of deposition against Edward II. to be read ; and that the judgment against the Earl of Suffolk might be revoked as altogether, erroneous. These answers, perhaps extorted by menaces, as all the judges, except Tresilian, protested before the next Parliament, were for the most part servile and unconstitutional. The indignation which they excited, and the measures successfully taken to withstand the king's designs, belong to general history ; but I shall pass slightly over that season of turbu- lence, which afforded no legitimate precedent to our constitu- tional annals. Of the live lords appellants, as they were called — Gloucester, Derby, Nottingham, Warwick, and Arun- del — the three former, at least, have little claim to our es- teem ; but in every age it is the sophism of malignant and peevish men to traduce the cause of freedom itself, on account of the interested motives by which its ostensible advocates have frequently been actuated. The Parliament, wlio had the country thoroughly with them, acted no doubt honestly, but with an inattention to the rules of law, culpable indeed, yet from which the most civilized of their successors, in the heat of passion and triumph, have scarcely been exempt. Whether all .with whom they dealt severely, some of them apparently of good previous reputation, merited such punishment, is more than, upon uncertain evidence, a modern writer can profess to decide. Notwithstanding the death or exile of all Eichard's favor- ites, and the oath taken not only by Parliament, but by every class of the people, to stand by the lords appellants, we find him, after about a year, suddenly annihilating their preten- sions, and snatching the reins again witliout obstruction. The secret cause of this event is among the many obscurities that attend the history of his reign. It was conducted with a spirit and activity which broke out two or three times in the course of his imprudent life ; but we may conjecture that he had the advantage of disunion among his enemies. For some years after this the king's administration was prudent. The great seal, which he took away from Archbishop Arundel, he gave to Wykeham, bishop of Winchester, another member of the reforming commission, but a man of great moderation and political experience. Sometime after he restored the seal to Arundel, and reinstated the Duke of Gloucester in the council. The Duke of Lancaster, who had been absent during the trans- 464 DISUNION AMONG LEADING PEERS. Cu. VIII. Pt, III. actions 'of the tenth and eleventh years of the king, in prosecu- tion of his Castiiian war, formed a link between the parties, and seems to have maintained some share of public favor. There was now a more apparent harmony between the court and the Parliament. It seems to have been tacitlj^ agreed that they shonld not interfere with the king's household expenses ; and they gratified him in a point where his honor had been most wounded, declaring his prerogative to be as high and un- impaired as that of his predecessors, and repealing the pre- tended statute by virtue of which Edward II. was said to have been deposed. They were provident enough, however, to grant conditional subsidies, to be levied only in case of a royal expedi- tion against the enemy ; and several were accordingly remitted by proclamation, this condition not being fulfilled. Richard never ventured to recall his favorites, though he testified his unabated affection for Vere by a pompous funeral. Few com- plaints unequivocally affecting the ministry were ])resented by the Commons. In one Parliament, the chancellor, treasurer, and counsel resigned their offices, submitting themselves to its judgment in case any matter of accusation should be alleged against them. The Commons, after a day's deliberation, ])rob- ably to make their approbation apj)ear more solemn, declared in full Parliament that nothing amiss had been found in the conduct of these ministers, and that they held them to have faithfully discharged their duties. The king reinstated them accordingly, with a protestation that this should not be made a precedent, and that it was his right to change his servants at pleasure. But this summer season was not to last forever. Richard had but dissembled with those concerned in the transactions of 1388, none of whom he could ever forgive. Thfse lords, in lapse of time, were divided among each other. The earls of Derby and Nottingham were brought into the king's interest. The Earl of Arundel came to an open breach with the Duke of Lancaster, whose pardon he was compelled to ask for an un- founded accusation in Parliament. Gloucester's ungoverned ambition, elated by popularity, coidd not brook the ascendency of his brother Lancaster, who was much less odious to the king. And the latter had given keener provocation by speak- ing contemptuously of that misalliance with Katherine Swine- ford which contaminated the blood of Plantagenet. To the Parliament summoned in the 20th of Richard, one object of Avhieh was to legitimate the Duke of Lancaster's ante-nuptial children by this lady, neither Gloucester nor Arundel would English Const. PROSECUTION OF HAXEY. 465 repair. There passed in this assembly soiuethiug remarkable, as it exhibits not only the arbitrary temper of the king, a point by no means doubtful, but the inefficiency of the Commons to r(^ist it without support from political confederacies of the nobility. The circumstances are thus related in the record : During the session the king sent for the lords into Parlia- ment one afternoon, and told them how he had heard of cer- tain articles of complaint made by the Commons in conference with them a few days before, some of which appeared to the king against his royalty, estate, and liberty, and commanded the chancellor to niform him fully as to this. The chancellor accordingly related the whole matter, which consisted of four alleged grievances — namely, that sheriffs and escheators, not- withstanding a statute, are continued in their offices beyond a year ; ^° that the vScottish marches were not well kept ; that the statute against wearing great men's liveries was disre- garded; and, lastly, that the excessive charges of the king's household ought to be diminished, arising from the multitude of bishops and of ladies who are there maintained at his cost. Upon this information the king declared to the Lords that through God's gift he is by lineal right of inheritance King of England, and will have the royalty and freedom of his crown, from which some of these articles derogate. The first petition, that sheriffs should never remain in office beyond a year, he rejected ; but, passing lightly over the rest, took most offence that the Commons, who are his lieges, should take on themselves to make any ordinance respecting his royal person or household, or those whom he might please to have about him. He enjoined, therefore, the Lords to declare plainly to the Commons his pleasure in this matter ; and especially directed the Duke of Lancaster to make the speaker give up the name of the person who presented a bill for this last article in the lower house. The Commons were in no state to resist this unexpected promptitude of action in the king. They surrendered the obnoxious bill, with its proposer, one Thomas Haxey, and with great humility made excuse that they never designed to give offence to his majesty, nor to interfere with his liouse- 1" Hume has represented tliis :is if f lie Commons had petitioned for the continu- ance of sheriffs beyond ii year, and grounds upon tliis mistake part of liis defence of Hicliard 1 1. (Note to vol! ii., p. 270, 4to edit.) For this he refers to Cotton's Abridg- ment; wliether rightly or not I cannot say, being little acquainted with that inaccu- rate book, upon wiiich it Is unfortunate tlnit Hume relied so mucli. The passage from Walsingham in the s;inie note is also wliolly perverted; as the reader will dis- cover witliout further observation. An historian must be strangely warped who quotes a passage explicitly complaining of illegal acts in order to iiifer that those very acts were legal. 466 ARBITRARY MEASURES Chap. VIII. Pai:t III. hold, or attendants, knowing well that such tilings do not be- long to them, but to the king alone ; but merely to draw his attention, that he might act therein as should please him best. The king forgave these pitiful suppliaiits ; but Haxey was adjudged in Parliament to suffer death as a traitor. As, however, he was a clerk, ^^ the Archbishop of Canterbury, at the head, of the prelates, obtained of the king that his life might be spared, and that they might have the ci;stody of his })erson ; protesting that this was not claimed by way of right, but merely of the kmg's grace. ^^ This was an open defiance of Parliament, and a declaration of arbitrary power; for it would be impossible to contend that, after the repeated instances of control over public expenditure by the Commons since the 50th of Edward III., this principle was novel and unauthorized by the constitution, or that the right of free speech demanded by them in every Parliament was not a real and indisputable privilege. The king, however, was completely successful, and, having proved the feebleness of the Commons, fell next upon those he more dreaded. By a skilful piece of treachery he seized the Duke of Gloucester, and spread consternation among all his party. A Parliament was summoned, in which the only struggle was to outdo the king's wishes, and thus to efface their former transgressions. Gloucester, who had been murdered at Calais, was attainted after his death; Arundel was beheaded, his brother, the Archbishop of Canterbury, deposed and vanished, Warwick and Cobham sent beyond sea. The commission of the tenth, the proceedings in Parliament of the eleventh, year of the king were annulled. The answers of the judges to the questions put at Nottingham, which had been punished with death and exile, were pronounced by Parliament to be just and legal. It was declared high treason to procure the repeal of any judgment against persons therein impeached. Their issue male were disabled from ever sitting in Parliament or " The record calls him Sir Thomas Haxey, a title at that time regularly given to the parson of a parish. If tliis be so, it is a remarkable authority for the clergy's capacity of sitting in Parliamejit. 12 In Henry iV.'s first Parliament the Commons petitioned for Haxey's resto- ration, and truly say that his sentence was en aneantissement des custumes dela commune, p. 434. liis judgment was reversed by botli houses. There can be no doubt with any man wlio looks attentively at the passages relative to Haxey that he was a member of Parliament ; thougli tliis was questioned some years ago by the committee of the House of Commons, who made a report on the right of the clergy to be elected; a right whicli, I am inclined to believe, did exist down to the Reformation, as the grounds alleged for Nowell's expulsion in the first of Mary, besides this instance of Haxey, conspire to prove, though it has since been lost by disuse. English Const. OF RICHARD II. 467 holding place in council. These violent ordinances, as if the precedent they were then overturning had not shielded itself with the same sanction, were sv/orn to by Parliament iipon the cross of Canterbury, and contirmed by a national oath, witli the penalty of excommunication denou:iced against its in- fringers. Of those recorded to have bound .themselves by this adjuration to Eichard, far the greater part had touched the same relics for Gloucester and Arundel ten years before, and two years afterwards swore allegiance to Henry of Lancaster. In the fervor of prosecution this Parliament could hardly go beyond that whose acts they were annulling ; and each is alike unworthy to be remembered in the way of precedent. But the leaders of the former, though vindictive and turbu- ^lent, had a concern for the public interest ; and, after punish- ing their enemies, left the government upon its right founda- tion. In this all regard for liberty was extinct; and the Commons set the dangerous precedent of granting the king a subsidy upon wool during his life. Their remarkable act of severity was accompanied by anotlier, less unexampled, but, as it proved, of more ruinous tendency. The petitions of the Commons not having been answered during the session, which they were always anxious to conclude, a commission was granted for twelve peers and six commoners to sit after the dissolution, and " examine, answer, and fully determine, as well all the said petitions, and the matters therein com- prised, as all other matters and things moved in the king's presence, and all things incident thereto not yet determined, as shall seem best to them." The " other matters " mentioned above were, I sujipose, private petitions to the king's council in Parliament, which had been frequently despatched after a dissolution. For in the statute which establishes this com- mission, 21 R. II., c. 16, no poAvers are committed but those of examining petitions ; which, if it does not confirm the charge afterwards alleged against Richard, of falsifying the Parliament roll, must, at least, be considered as limiting and explaining the terms of the latter. Such a trust liad been committed to some lords of the council eight years before, in very peaceful times ; and it was even requested that the same might be done in future Parliaments. I>ut it is obvious what a latitude this gave to a prevailing faction. These eighteen commissioners, or some of them (for there were who disliked the turn of affairs), usurped the full rights of the legislature, which undoubtedly were only delegated in respect of busi- 468 HEKEFOKD AND NORFOLK QUARREL. Ch. VIII. Pt. III. ness already comnieiicecl. They imposed a perpetual oath on prelates and lords for all time to come, to be taken before obtaining livery of their lands, that they would maintain the statutes and ordinances made by this Parliament, or " after- wards by the lords and knights having power committed to them by the same." They declared it high treason to disobey their ordinances. They annulled the patents of the dukes of Hereford and Norfolk, and adjudged Henry Bowet, the former's chaplain, who had advised him to petition for his inheritance, to the penalties of treason. And thus, having obtained a revenue for life, and the power of Parliament being notoriously usurped by a knot of his creatures, the king was little likely to meet his people again, and became as truly absolute as his ambition could require. It had been necessary for this purpose to subjugate the an-, cient nobility ; for the English constitution gave them such paramount rights that it \vas impossible either to make them surrender their country's freedom or to destroy it without their consent. But several of the chief men had fallen or were in- volved with the party of Gloucester. Two, who, having once belonged to it, had lately plunged into the depths of infamy to ruin their former friends, were still perfectly obnoxious to the king, who never forgave their original sin. These two, Henry of Bolingbroke, earl of Derby, and Mowbray, earl of Notting- ham, now dukes of Hereford and Norfolk, the most powerful of the remaining nobility, were, by a singular conjuncture, thrown, as it were, at the king's feet. Of the political mys- teries which this reign affords, none is more inexplicable than the quarrel of these peers. In tlie Parliament at Shrewsbury, in 1398, Hereford was called upon by the king to relate Avhat had passed between the Duke of Norfolk and himself in slander of his majesty. He detailed a pretty long and not improbable conversation, in which Norfolk had asserted the king's intention of destroying them both for their old offence of impeaching his ministers. Norfolk had only to deny the charge and throw his gauntlet at the accuser. It was referred to the eighteen commissioners who sat after the dissolution, and a trial by com- bat was awarded. But when this, after many delays, was about to take place at Coventry, Richard interfered and settled the dispute by condemning Hereford to banishment for ten years and Norfolk for life. This strange determination, which treated both as guilty where only one could be so, seems to ad- mit of no other solution than the king's desire to rid himself of two peers, whom he feared and hated, at a blow. But it is English Const. TYRANNICAL GOVERNMENT. 469 difficult to understand by Avluit means lie drew the crafty Bol- ingbroke into his snare. However this might have been, he now threw away all appearance of moderate government. The indignities he had suffered in the eleventh year of his reign were still at his heart, a desire to revenge which seems to have been the mainspring of his conduct. Though a general pardon of those proceedings had been granted, not only at the time, but in his own last Parliament, he made use of them as a pre- tence to extort money from seventeen counties, to whom he imputed a share in the rebellion. He compelled men to confess under their seals that they had been guilty of treason, and to give blank obligations, which his officers filled up with large sums. Upon the death of the Duke of Lancaster, who had pas- sively complied throughout all these transactions, Richard refused livery of his inheritance to Hereford, whose exile im- plied no crime, and who had letters ])atent enabling him to make his attorney for that purpose during its continuance. In short, his government for nearly two years was altogether ty- rannical ; and, upon the same principles that cost James II. his throne, it was unquestionably far more necessary, unless our fathers would have abandoned all thought of liberty, to expel Richard 11. Far be it from us to extenuate the treachery of the Percies towards this unhappy prince, or the cruel circum- stances of his death, or in any way either to extol his successor or the cliief men of that time, most of whom were ambitious and faithless ; but after such long experience of the king's ar- bitrary, dissembling, and revengeful temper, I see no other safe course, in the actual state of the constitution, than what the nation concurred in pursuing. The reign of Richard II. is, in a constitutional light, the most interesting ])art of our earlier history ; and it has been the most imperfectly written. Some have misrepresented the truth through prejudice, and others through carelessness. It is only to be understood — and, indeed, there are great difficulties in the way of understanding it at all — by a peru- sal of the rolls of Parliament, with some assistance from the contemporary historians, Walsiiigliam, Knyghton, the anony- mous biographer published by Hearne, and Froissart. These, I must remark, except occasionally the last, are extremely hostile to Richard ; ^^ and although we are far from being 13 It is fair to observe tliat Froissart's testimony makes most in favor of tlie king, or rather against liis enemies, where it is most valuable; that is, in liis account of what he heard in the English court in 1305, 1. iv., c. 02, where lie gives a very indiffer- ent character of the Duke of Gloucester. In general this writer is ill-informed of Eng- lish affairs, and undeserving to be quoted as au authority. 470 CIRCUMSTANCES ATTEKDING Chap. VIII. Part III. bound to acquiesce in their opinions, it is at least unwarrantable in modern writers to sprinkle their margins Avith references to such authority in support of positions decidedly opposite. § 15. The revolution which elevated Henry IV. to the throne was certainly so far accomplished by force that the king was in captivity, and those who might still adhere to him in no condition to support his authority. But the sin- cere concurrence which most of the prelates and nobility, with the mass of the people, gave to changes that could not have been otherwise effected by one so unprovided with foreign support as Henry, proves this revolution to have been, if not an indispensable, yet a national act, and should prevent our considering the Lancastrian kings as usurpers of the throne. Nothing, indeed, looks so mueli like usurpation in the whole transaction as Henry's remarkable cliallenge of the croAvn, in- sinuating, though not avowing, as Hume has justly animad- verted upon it, a false and ridiculous title by right line of descent, and one equally unwarrantable by conquest. The course of proceedings is worthy of notice. As the renuncia- tion of Richard might well pass for the effect of compulsion, there was a strong reason for propping up its instability by a solemn deposition from the throne, founded upon specific charges of misgovernment. Again, as the right of dethroning a monarch was nowhere found in the law, it was equally requisite to support this assumption of power by an actual ab- dication. But as neither one nor the other filled up the Duke of Lancaster's wishes, who was not contented with owing a crown to election, nor seemed altogether to account for the ex- clusion of the house of March, he devised this claim, which was preferred in the vacancy of the throne, Richard's cession having been read and approved in Parliament, and the sentence of deposition, ''out of abundant caution, and to remove all scruple," solemnly passed by seven commissioners appointed out of the several estates. " After which challenge and claim," says the record, " the lords spiritual and temporal, and all the estates there present, being asked, separately and together, what they thought of the said challenge and claim, the said estates, with the whole people, without any difficulty or delay, consented that the said duke sliould reign over them." The claim of Henry, as opposed to that of the Earl of March, was, indeed, ridiculous ; but it is by no means evident that, in such cases of extreme urgency as leave no security for the common weal but the deposition of a reigning prince, there rests any positive obligation upon the estates of the English Const. HENRY IV.'S ACCESSION. 471 realm to fill his place with the nearest heir. A revolution of this kind seems rather to defeat and confound all prior titles ; though in the new settlenuMit it will commonly be prudent, as well as equitable, to treat them with some regard. Were this otherwise, it would be hard to say why William III. reigned to the exclusion of Anne, or even of tlie Pretender, who had surely committed no offence at that time ; or why (if such, indeed, be the true construction of the Act of Settlement) the more distant branches of the royal stock, descendants of Henry VII. and earlier kings, have been cut off from their hope of succession by the restriction to the heirs of the Princess Sophia. In this revolution of 1399 there was as remarkable an at- tention shown to the formalities of the constitution, allowance made for the men and the times, as in that of 1688. The Parliament Avas not opened by comndssion ; no one took the oflfi-ce of president; the Commons did not adjourn to their own chamber ; they chose no speaker ; the name of Parliament was not taken, but that only of estates of the realm. But as it would have been a violation of constitutional principles to assume a parliamentary character without the king's commis- sion, though summoned by his writ, so it was still more essential to limit their exercise of power to the necessity of circumstances. Upon the cession of the king, as upon his death, the Parliament was no more ; its existence, as the council of the sovereign, being dependent upon his will. The actual convention summoned by the writs of Richard could not legally become the Parliament of Henry ; and the validity of a statute declaring it to be siicli would probably have been questionable in that age, when the power of statutes to alter the original principles of the common law was by no means so thoroughly recognized as at the Restoration and Revolution. Yet Henry was too well pleased with his friends to part with them so readily ; and he had much to effect before the fervor of their spirits should abate. Hence an expedient was de- vised of issuing writs for a new Parliament, returnable in six days. These neither were nor could be complied with ; but the same meml)ers as had deposed Richard sat in the new Parliament, which vras regularly opened by Henry's commis- sioner as if they had been duly elected. In this contrivance, more than all the rest, we may trace the hand of lawyers. § 16. If we look back from the accession of Henry IV. to that of his predecessor, the constitutional authority of the House of Commons will be perceived to have made surprising 472 RIGHT OF TAXATION. Chap. YIII. TAiix III. progress during tlie course of tAventy-two years. Of the tliree capital points in contest while Edward reigned — that money could not be levied, or laws enacted, without the Commons' consent, and that the administration of Government was sub- ject to their inspection and control — the first was absolutely decided in their favor, the second was at least perfectly ad- mitted in principle, and the last was confirmed by frequent exercise. The Commons had acquired two additional engines of immense efficiency — one, the right of directing the applica- tion of subsidies, and calling accountants before them ; the other, that of impea(;hing the king's ministers for misconduct. All these vigorous shoots of liberty throve more and more un- der the three kings of the house of Lancaster, and drew such strength and nourishment from the generous heart of England that in after-times, and in a less prosperous season, though checked and obstructed in their growth, neither the blasts of arbitrary yjower could break them off, nor the mildew of servile o})iuion cause them to wither. I shall trace the progress of Parliament till the civil wars of York and Lancaster : 1, in maintaining the exclusive right of taxation ; 2, in directing and cliecking the public expenditure ; 3, in making supplies depend on the redress of grievances ; 4, in securing the people against illegal ordinances and interpolations of the statutes ; 5, in con- trulling the royal administration ; G, in punishing bad min- . isters ; and lastly, in establishing their own immunities and privileges. 1 Jiif/ht of Taxation. — The pretence of levying money with- out consent of Parliament expired with Edward III., who had asserted it, as we have seen, in the very last year of his reign. A great council of lords and prelates, summoned in the second year of liis successor, declared that tliey could advise no remedy for the king's necessities without laying taxes on the people, which could only be granted in Parliament. Kor was Ilichard ever accused of illegal tallages, the freqiient theme of remon- strance under Edward. Doubless his innocence in tliis respect was the effect of weakness ; and if the revolution of 1399 had not put an end to this newly-acquired despotism, this, like every other right of his people, would have been swept away. A less palpable means of evading the consent of the Commons was by the extortion of loans, and harassing those who refused to pay by summonses before the council. These loans, the frequent resource of arbitrary sovereigns in later times, are first com- plained of in an early l*arliament of Jlicliard II. ; and a petition is granted that no man shall be compelled to lend the king English Const. KEDIIESS OF GRIEVANCES. 473 money. But how little this was regarded we may infer from a writ directed, in I08G, to some persons in Boston, enjoining them to assess every person who had goods and chattels to the amount of twenty pounds, in his proportion of two hundred pounds, which the town had i)romised to lend the king, and giving an assurance that this shall be deducted from the next subsidy to be granted by rarliamcnt. After his triumph over the popular party, towards the end of his reign, he obtained large sums in this way. Under the Lancastrian kings there is much less appearance of raising money in an unparliamentary course. Henry IV. obtained an aid from a great council in the year 1400 ; but they did not pretend to charge any besides themselves, tliough it seems that some towns afterwards gave the king a contribution. A few years afterwards he directs the sheriffs to call on the richest men in their counties to advance the money voted by Parliament. This, if any compulsion was threatened, is an instance of overstrained prerogative, though consonant to the practice of the late reign. 2. Ajqjropriation of SiqyiJlies. — The right of granting supplies would have been very incomplete, had it not been accompanied with that of directing their a^jplication. The principle of ap- propriating public moneys began, as we have seen, in the minor- ity of Eichard, and was among the best fruits of that period. It was steadily maintained under the new dynasty. The Par- liament of 6 Henry IV. granted two-fifteenths and two-tentlis, with a tax on skins and wool, on condition that it should be expended in the defence of the kingdom, and not otherwise, as Thomas lord Furnival and Sir John Pelham, ordained treas- urers of war for this Parliament to receive the said subsidies, shall account and answer to the Commons at the next I*arlia- ment. These treasurers were sworn in Parliament to execute their trusts. A similar precaution was adopted in the next session. 3. Bedress of Grievances. — The Commons made a bold at- tempt in the second year of Henry IV. to give the strongest security to their claims of redress, by inverting the usual course of parliamentary proceedings. It was usual to answer their petitions on the last day of the session, which put an end to all further discussion upon them, and prevented their mak- ing the redress of grievances a necessary condition of supply. They now requested that an answer might be given before they made their grant of subsidy. This Avas one of the articles which Richard II. "s judges had declared it high 474 DISPENSING POWER Chai\ VIII. Part III. treason to attempt. Henry was not inclined to make a con- cession wliich would virtually have removed the chief im- pediment to the ascendency of Parliament. He first said that he Avould consult with the Lords, and answer according to their advice. On the last day of the session the Commons were informed that " it had never been known in the time of his ancestors that they should have their petitions answered before they had done all their business in Parliament, whether of granting money or any other concern ; wherefore the king will not alter the good customs and usages of ancient times." Notwithstanding the just views these Parliaments appear generally to have entertained of their power over the public purse, that of the third of Henry V. followed a precedent from the worst times of Richard II.. by granting the king a subsidy on avooI and leather during his life. This, an histo- rian tells us, Henry IV. had vainly labored to obtain; but the taking of Harfleur intoxicated the English with new dreams of conquest in France, which their good sense and constitu- tional jealousy were not firm enough to resist. The continued expenses of the war, however, prevented this grant from be- coming so dangerous as it might have been in a season of tranquillity. Henry V., like his father, convoked Parliament almost in every year of his reign. 4. Legislative Rights. — It had long been out of all question that the legislature consisted of the king, Lords, and Com- mons ; or in stricter language, that the king could not make or repeal statutes witliout the consent of Parliament. P)ut this fundamental maxim was still frequently defeated by various acts of evasion or violence : which though protested against as illegal, it was a difficult task to prevent. The king sometimes exerted a power of suspending the observance of statutes, as in the ninth of Richard II., Avhen a petition that all statutes might be confirmed is granted, with an exception as to one passed in the last Parliament, forbidding the judges to take fees or give counsel in cases where the king was a party ; which, " because it was too severe and needs declaration, the king would have of no effect till it should be declared in Parliament." The dispensing power-, as exercised in favor of individuals, is quite of a different character from this general suspension of statutes, but indirectly weakens the sovereignty of the legislature. This power was exerted, and even recognized, throughout all the reigns of the Plantagenets. In the first cf Henry V. the Commons pray that the statute for driving English Const OF TUE CROWN. ' 475 aliens out of the kingdom be executed. The king assents, saving his prerogative and his right of dispensing with it when he pleased. To which the Commons replied that their intention was never otherwise, nor, by God's help, ever should be. At the same time one llees ap Thomas petitions the king to modify, or dispense with, the statute prohibiting AV^elshmen from purchasing lands in England, or the* English towns in Wales ; which the king grants. In the same Parliament the Commons pray that no grant or protection be made to any one in contravention to the statute of provisors, saving the king's prerogative. He merely answers, "Let the statutes be observed ; " evading any allusion to his dispensing power. The practice of leaving statutes to be drawn up by the judges, from the petition and answer jointly, after a disso- lution of Parliament, presented an opportunity of falsifying the intention of the legislature, whereof advantage was often taken. Some very remarkable instances of this fraud occurred in the reigns of Kichard II. and Henry IV. An ordinance was put upon the roll of Parliament, in tlie fifth of Richard II., empowering sheriffs of counties to arrest ])reachers of heresy and their abettors, and detain them in prison till they should justify themselves before the Church. This was introduced into the statutes of the year ; but the assent of Lords and Commons is not expressed. In the next Parliainent the Commons, reciting this ordinance, declare that it was never assented to nor granted by them, but what had been proposed in this matter was without their con- currence (that is, as I conceive, had been rejected by them), and pray that this statute be annulled ; for it was never their intent to bind themselves or their descendants to the bishops more than their ancestors had been bound in times past. The king returned an answer agreeing to this ])etition. Nevertheless the ])retended statute was untouched, and remains still among our laws,^* unrepealed, except by desuetude, and by inference from the acts of much later times. This commendable reluctance of the Commons to let the clergy forge chains for them produced, as there is much ap- pearance, a similar violation of their legislative rights in the next reign. The statute against heresy in the second of " R. TI., Stat. 2, c. 5; Rot. Pari. 6 R. II., p. HI. Some other instances of the Commons attempting to prevent these unfair practices are adduced by Rutt'liead, in his preface to the Statutes, and in Prynne's preface to Cotton's Abridsment of t)ie Records. The net 1.3 R. II., stat. 1, c. 15, tliat the Icing's castles and jails which had been separated from the bodv of the adjoining counties should be reunited to them, is not founded upon any petition that appears on the roll; and probably, by making search, other instances equally flagrant might be discovered. 476 " CONTKOLLING TUE Cuap. Vlll. Pakt 111. Henry IV. is not grounded upon any petition of the Com- mons, but only upon one of the clergy. It is said to be en- acted by consent of the Lords ; but no notice is taken of the lower house in the Parliament roll, though the statute reciting the petition asserts the Commons to have joined in it. The petition and the statute are both in Latin, which is unusual in the laws of this time. In a subsequent petition of the Commons this act is styled " the statute made in the second year of your majesty's reign at the request of the prelates and clergy of your kingdom ; " which affords a presumption that it had no regular assent of I'arliament. And the spirit of the Commons daring this whole reign being remarkable hostile to the Church, it would have been hardly possible to obtain their consent to so penal a law against heresy. Several of their petitions seem designed indirectly to weaken its efficacy. These infringements of their most essential right were re- sisted by the Commons in various ways, according to the measure of their power. But even where there was no design to falsify the roll it Avas impossible to draw u}) statutes which should be in truth the acts of the whole legislature, so long as the king continued to grant petitions in part, and to ingraft new matter upon them. Such was still the case till the Com- mons hit upon an effectual expedient for screening themselves against these encroachments, Avhich has lasted without altera- tion to the present day. This was the introduction of com- plete statutes under the name of bills, instead of the old ]ietitions ; and these containing the royal assent and the whole form of a law, it became, though not quite immediately, a constant principle that the king must admit or reject them without qualification. This alteration, which wrought an ex- traordinary effect on the character of our constitution, was gradually intrf)duced in Henry VI. 's reign. From the first 3^ears of Henry V., though not. I think, earlier, the Commons began to concern themselves with the ])etitions of individuals to the Lords or Council. The nature of the jurisdiction exercised by the latter will be treated more fully hereafter ; it is only necessary to mention in this place that many of the requests preferred to them were such as could not be granted withoiit transcending the boundaries of law. A just inquietude as to the encroachments of the king's council had long been manifested by the Commons ; and find- ing remonstrances ineffectual, they took measures for prevent- ing such usurpations of legislative power l)y introducing their own consent to private petitions. These were now presented English Const. ROYAL EXPENDITURE. 477 by the hands of the Commons, and in very many instances passed in the form of statutes with the express assent of all parts of the legislature. Such was the origin of private bills, which occupy the greater part of the rolls in Henry V. and VI. 's Parliament. 5. Controlling the Royal Exjoenditure. — If the strength of the Commons had lain merely in the weakness of the crown, it might be inferred that such harassing interference with the administration of affairs as the youthful and frivolous Richard was compelled to endure would have been sternly repelled by his experienced successor. But, on the contrary, the spirit of Richard might have rejoiced to see that his mortal enemy suffered as hard usage at the hands of Parliament as himself. After a few years the governme'iit of Henry became extremely unpopular. Perhaps his dissension with the great family of Percy, which had placed him on the throne, and was regarded with partiality by the people, chiefly contributed to this aliena- tion of their attachment. The Commons requested, in the fifth of his reign, that certain persons might be removed from the court ; the Lords concurred in displacing four of these, one being the king's confessor. Henry came down to Parliament and excused these four persons, as knowing no special cause why they should be removed ; yet, well understanding that what the Lords and Commons should ordain would be for his and his kingdom's interest, and therefore anxious to conform himself to their wishes, consented to the said ordinance, and charged the persons in question to leave his palace ; adding, that he would do as much by any other about his person whom he should And to have incurred the ill affection of his people. But no Parliament came near, in the number and boldness of its demands, to that held in the eighth year of Henry IV. The Commons presented tliirty-one articles, none of which the king ventured to refuse, though pressing very severely upon his prerogative. He was to name sixteen counsellors, by whose advice he was solely to be guided, none of them to be dismissed without conviction of misdemeanor. The chancellor and privy seal to pass no grants or other matter contrary to law. Any persons about the court stirring up the king or queen's minds against their subjects, and duly convicted there- of, to lose their offices and be fined. The king's ordinary rev- enue was wholly a]ipro])riited to his houseliold and the pay- ment of his debts ; no grant of wardship or other profit to be made thereout, nor any forfeiture to be pardoned. The king, 478 ROYAL EXPENDlTUilE. Chap. VIII. Pakt III. " considering the wise government of other Christian princes, and confonuing himself thereto," was to assign two days in the week for petitions, " it being an honorable and necessary thing that his lieges, Avho desired to petition him, should be heard." No judicial officer, nor any in the revenue or house- hold, to enjoy his place for life or term of years. No petition to be presented to the king by any of his household at times when the council were not sitting. The council to determine nothing cognizable at common law, unless for a reasonable cause and with consent of the judges. The statutes regulating purveyance were affirmed — abuses of various kinds in the council and in courts of justice enumerated and forbidden — elections of knights for counties put under regulation. The council and officers of state were sworn to observe the common law and all statutes, those especially just enacted. It must strike every reader that these provisions were of themselves a noble fabric of constitutional liberty, and hardly perhaps inferior to the petition of right under Charles I. We cannot account for the submission of Henry to conditions far more derogatory than ever were imposed on Kichard, because the secret politics of his reign are very imperfectly under- stood. Power deemed to be ill gotten is naturally precarious ; and the instance of Henry IV. has been well quoted to prove that public liberty flourishes with a bad title in the sovereign. None of our kings seem to have been less beloved ; and indeed he had little claim to affection. But what men denied to the reigning king they poured in full measure upon the heir of his throne. The virtues of the I'rince of Wales are almost invidi- ously eulogized by those Parliaments who treat harshly his father ; and these records afford a strong presumption that some early petulance or riot lias been much exaggerated by the vulgar minds of our chroniclers. One can scarcely under- stand, at least, that a prince who was three years engaged in quelling the dangerous insurrection of Glendower, and who in the latter time of his father's reign presided at the council, was so lost in a cloud of low debauchery as common fame represents. Loved he certainly was throughout his life, as so intrepid, affable, and generoiis a temper well deserved ; and this sentiment was heightened to admiration by successes still more rapid and dazzling than those of Edward III. During his reign there scarcely appears any vestige of dissatisfaction in Parliament — a circumstance very honorable, whether we ascribe it to the justice of his administration or to the affection of his people. English Const. IMPEACHMENT OP MINISTERS. 479 The Pai'liament confirmed the league of Henry V. with the Emperor Sigi.smund ; and the treaty of Troyes, which was so fundamentally to change the situation of Henry and his suc- cessors, obtained, as it evidently required, the sanction of both houses of Parliament. These precedents conspiring with the weakness of the executive government, in the minority of Henry VI., to fling an increase of influence into the scale of the Commons, they made their concurrence necessary to all important business both of a foreign and domestic nature. Thus commissioners were appointed to treat of the deliverance of the King of Scots, the duchesses of Bedford and Gloucester were made denizens, and mediators were appointed to reconcile the dukes of Gloucester and Burgundy, by authority of the three estates assembled in l\arliament. Leave was given to the dukes of Bedford and Gloucester, and others in the king's behalf, to treat of peace with France, by both houses of Parlia- ment, in pursuance of an article in the treaty of Troyes, that no treaty should be set on foot with the dauphin Avithout con- sent of the three estates of both realms. This article was afterward repealed. Some complaints are made by the Commons, even during the first years of Henry's minority, that the king's subjects underwent arbitrary imprisonment, and were vexed by sum- monses before the council and by the newly-invented writ of subpoena out of chancery. But these are not so common as formerly ; and so far as the rolls lead us to any inference, there was less injustice committed by the government under Henry VI. and his father than at any former period. Waste- fulness, indeed, might justly be im])uted to the regency, who had scandalously lavished the king's revenue. This ultimately led to an act for resuming all grants since his accession, founded upon a public declaration of the great officers of the crown that his debts amounted to £372,000, and the annual expenses of the household amounted to £24,000, while the ordinary revenue was not more than £5000. 6. Im,2yeachmpnt of Ministers. — But before this time the sky had begun to darken, and discontent with the actual adminis- tration pervaded every rank. The causes of this are familiar — the unpopularity of the king's marriage with Margaret of Anjou, and her impolitic violence in the conduct of affairs, particularly the imputed murder of the people's favorite, the Duke of Gloucester. This provoked an attack u]ion her own creature, the Duke of Suffolk. Impeachment had lain still, like a sword in the scabbard, since the accession of Henry IV. 480 PRIVILEGE OF PARLIAMENT. Chap. VIII. Part IIL In Suffolk's case the Commons seem to have proceeded by bill of attainder, or at least to have designed the judgment against that minister to be the act of the whole legislature ; for they delivered a bill containing articles against liim to the Lords, with a request that they would pray the king's majesty to enact that bill in Parliament, and that the said duke might be proceeded against upon the said articles in Parliament according to the law and custom of England. These articles contained charges of high treason, chiefly relating to his con- duct in France, which, whether treasonable or not, seems to have been grossly against the honor and advantage of the crown. At a later day the Commons presented many other articles of misdemeanor. To the former he made a defence, in presence of the king as well as the Lords, both spiritual and temporal ; and indeed the articles of impeachment were directly addressed to the king, which gave him a reasonable pretext to interfere in the judgment. But from apprehension, as it is said, that Suffolk could not escape conviction upon at least some part of these charges, Henry anticipated with no slight irregularity the course of legal trial, and, summoning the peers into a private chamber, informed the Duke of Suffolk, by mouth of his chancellor, that, inasmuch as he had not put him- self upon his peerage, but submitted wholly to the royal pleas- ure, the king, acquitting him of the first articles containing matter of treason, by his own advice and not that of the Lords, nor by way of judgment, not being in a place where judgment could be delivered, banished him for five years from his domin- ions. The lords then present besought the king to let their protest appear on record, that neither they nor their posterity might lose their rights of peerage by this precedent. It was justly considered as an arbitrary stretch of prerogative, in order to defeat the privileges of I'arliament and screen a favor- ite minister from punishment. But the course of proceeding by bill of attainder instead of regular impeachment was not judiciously chosen by the Commons. Privilege of Parliament. — Privilege of Parliament, an ex- tensive and singular branch of our constitutional law, begins to attract attention under the Lancastrian princes. It is true, indeed, that we can trace long before by records, and may infer with probability as to times whose records have not sur- vived, one considerable immunity — a freedom from arrest for persons transacting the king's business in Ids national council. But in those rude times members of Parliament Avere not al- ways respected by the officers executing legal process, and still English Coi^st. TRIVILEGE OF PARLIAMENT. 481 less by the violators of law. After several remonstrances, which the crown had evaded, the Commons obtained the statute 11 Henry VI., c. 11, for the punishment of such as assault any on their way to the Parliament, giving double damages to the party. They had more difficulty in establish- ing, notwithstanding the old precedents in their favor, an im- munity from all criminal process except in charges of treason, felony, and breach of the peace, which is their present measure of privilege. The most celebrated, however, of these early cases of privilege is that of Thomas Thorp, speaker of the Commons in 31 Henry VI. This person, who was, moreover, a baron of the Exchequer, had been imprisoned on an execu- tion at suit of the Duke of York. The Commons sent some of their members to coni])lain of a violation of privilege to the king and Lords in Parliament, and to demand Thorp's release. It was alleged by the Duke of York's counsel that the trespass done by Thorp was since the beginning of the Parliament, and the judgment thereon given in time of vacation, and not during the sitting. The Lords referred the question to the judges, who said, after deliberation, that " they ought not to answer to that question, for it hath not be used aforetyme tliat the judges should in any wise determine the privilege of this high court of Parliament ; for it is so high and so mighty in his nature that it may make law, and that that is law it may make no law ; and the determination and knowledge of that privilege belongeth to the Lords of the Parliament, and not to the jus- tices." They went on, however, after observing that a general writ of supersedeas of all processes upon ground of privilege had not been known to say that, "if any person that is a member of tliis high court of Parliament be arrested in such cases as be not for treason, or felony, or surety of the peace, or for a condemnation had before the Parliament, it is used that all such persons should be released of such arrests and make an attorney, so that they may have their freedom and liberty freely to intend upon the Parliament." Notwithstanding this answer of the judges, it was con- cluded by the Lords that Thorp shoidd remain in prison, with- out regarding the alleged privilege ; and the Commons were directed in the king's name to proceed " with all goodly haste and speed " to the election of a new speaker. It is curious to observe that the Commons, forgetting their grievances, or con- tent to drop them, made such haste and speed according to this command that they presented a new speaker for approba- tion the next day. 482 PRIVILEGE OF PARLIAMENT. Chap. VIII. Pa ax IIL This case, as lias been strongly said, was begotten by the iniquity of the times. The state was verging fast towards civil war; and Thorp, who afterwards distinguished himself for the Lancastrian cause, was an inveterate enemy of the Duke of York. That jDrince seems to have been swayed a little from his usual temper in procuring so unwarrantable a determination. In the reign of Edward IV. the Commons claimed privilege against any civil suit during the time of their session ; but they had recourse, as before, to a particular act of Parliament to obtain a writ of supersedeas in favor of one Atwell, a member, who had been sued. The present law of privilege seems not to have been fully established, or at least effectually maintained, before the reign of Henry VIII. No privilege of the Commons can be so fiuidamental as liberty of speech. This is claimed at the opening of every Parliament by their speaker, and could never be infringed with- out shaking the ramparts of the constitution. Richard II. 's attack upon Haxey has been already mentioned as a flagrant evidence of his despotic intentions. No other case occurs until the 33d year of Henry VI., when Thomas Young, mem- ber for Bristol, complained to the Commons that, " for mat- ters by him showed in the house accustomed for the Commons in the said Parliaments, he was therefore taken, arrested, and rigorously in open wise led to the Tower of London, and tliere grievously in great duress long time imprisoned against the said freedom and liberty ; " Avith much more to the like effect. The Commons transmitted this petition to the Lords, and the king " willed that the lords of his council do and provide for the srid suppliant as in their discretions shall be thought con- venient and reasonable." This im])risonment of Young, how- ever, had happened six years before, in consequence of a motion made by him that, the king then having no issue, the Duke of York might be declared heir-a])parent to the crown. In the present session, when the Duke was pro- tector, he thought it well-timed to prefer his claim to re- muneration. There is a remarkable precedent in the 9th of Henry IV., and perhaps the earliest autliority for two eminent maxims of Parliamentary law — that the Commons possess an exclusive right of originating money bills, and that the king ought not to take notice of matters pending in Parliament. A quarrel broke out between the two houses upon this ground ; and as we have not before seen the Commons venture to clash openly Engt.iph Const. PRIVILEGE OF PARLIAMENT. 483 with their superiors, the circumstance is for this additional reason worthy of attention. As it has been little noticed, I shall translate the whole record. ^^ Every attentive reader will discover this remarkable pas- sage to illustrate several points of constitutional law. For hence it may be perceived — tirst, that the king was used in those times, to be present at debates of the Lords, personally 15 " Friday, the second day of December, wliich was flic last day of the Parliament, .the Commons came before the king and the Lords in I'arliament, and there, by com- mand of tlieking, a schedule of Indemnity touching a certain altercation moved be- tween the Lords and Commons was read; and on this it was commanded by our said lord tlie king that the said schedule should be entered of record in the roll of Parlia- ment; of which schedule the tenor is as follows : Be it remembered, that on Monday, the ~lst day of November, the king our sovereign lord being in the council-chamber, in the abbey of Gloucester, the lords spiritual and temporal for this present Parlia- ment assembled being then in his presence, a debate took place among them about the state of the kingdom, and its defence to resist the malice of the enemies who on every side prepare to molest the said kingdom and its faithful subjects, and how no man can resist this malice unless, for the safeguard and defence of his said kingdom, our sovereign lord the king has some notable aid and subsidy granted to him in his present Parliament. And tlierefore it was demanded of the said Lords by way of question what aid would be sudicient and requisite in these circumstances ? To which question it was answered by the said Lords severally, that, considering the necessity of the king on one side and the poverty of his people on the other, no less aid couid be sufficient than one-tenth and a half from cities and towns, and one-lif- teeuth and a half from all other lay persons; and, besides, to grant a continuance of the subsidy on wool, wool-fells, and leather, and of three shillings on the tun (of wine), and twelve pence on the pound (of other merchandise), from Michaelmas next ensuing for two years thenceforth. Whereupon by command of our said lord the king, a message was sent to tlie Commons of this Parliament to cause a certain number of their body to come before our said lord the king and the Lords, in order to hear and report to their comi)anions what they should be commanded by our said lord the king. And upon this the said Commons sent into the presence of our said lord the king and the said Lords twelve of tlieir companions; to whom, by command of our said lord the king, the said question was declared, with the answer by the said Lords severally given to it. Which answer it was tlie pleasure of our said lord the king that they should report to the rest of their fellows, to the end that they might take the sliortest course to comply with the intention of the said Lords. Wliich re- port being thus made to the said Commons, they were greatlv disturbed at it, saying and asserting it to be much to the jn-ejudice and derogation of their liberties. Anil after that our said lord the king had heard this, not willing that any thing should be done at present, or in time to come, that might anywise turn against the libertv of the estate for which they are come to Parliament, nor against the liberties of "the said Lords, wills and grants and declares, by the advice .andconsent of the said Lords, as follows : to wit, that it shall be lawful for the Lords to debate together in this pres- ent Parliament, and in every other for time to come, in the king's absence, concern- ing the condition of the kingdom, and the remedies necessary for it. And in like manner it shall be lawful for the Commons, on their part, to debate together concern- ing the said condition and remedies. Provided always that neither the Lords on their part, nor the Commons on theirs, do make any report to our said lord the king of any grant granted by the Commons, and agreed to by the Lords, nor of the communica- tions of the said grant, before tluat the said Lords and Commons are of one accord and agreement in this matter, and then in manner and form .accustomed— that is to say, by the mouth of the speaker of the said Commons for the time being— to the end that the said Lords and Commons may have what they desire (avoir puissent lour gree) of our said lord tlie king. Our said lord the king willing, moreover, bv the consent of the said Lords, that the communication had in this present Parliament as above be not drawn into precedent in time to come, nor be turned to the prejudice or deroga- tion of the liberty of the estate for wliich the said Commons are now come, neither in this present Parliament nor in any other time to come. But wills that himself and all the other estates should be as free as they were before. Also, the s.aid last day of Parliament, the said speaker prayed our said lord the king, on the part of the said Commons, that he would grant the said Commons that they should depart in .i.s great liberty as other ("ommons had done before. To which the king answered that this pleased him well, and that at all times it had been his desire." 484 PRIVILEGE OF PARLIAMENT. Chap. VIII. Part IIL advising with them upon the public business ; which also appears by many other passages on record ; and this practice, 1 conceive, is not abolished by the king's present declaration, save as to grants of money, which ought to be of the free-will of Parliament, and without that fear or mlluence Avhich the presence of so high a person might create : secondly, that it was already the established law of Parliament that .tlie Lords sliTDuld consent to the Commons' grant, and not the Commons to the Lords' ; since it is the inversion of tliis order whereof the Commons complain, and it is said expressly that grants are made by the Commons, and agreed to by the Lords : thirdly, that the lower house of Parliament is not, in proper language, an estate of the realm, but rather the image and representative of the Commons of England ; who, being the third estate, with the nobility and clergy make up and constitute the people of this kingdom and liege subjects of the crown.^^ It was not only m money bills that the originating power was supposed to reside m the Commons. The course of pro- ceedings in Parliament, as has been seen, from the commence- ment at least of Edward III.'s reign, was that the Commons presented petitions, which the Lords by themselves, or with the assistance of the council, having duly considered, the sanction of the king was notified or withheld. This was so much according to usage, that on one occasion, wlien the Commons requested the advice of the other house on a matter before them, it was answered that the ancient custom and form of Parliament had ever been for the Commons to report their own opinion to the king and Lords, and not to the contrary; and the king wovdd have the ancient and laudable usages of Parliament maintained. It is singular tliat, in tlie terror of innovation, the Lords did not discover how materially this usage of I'arliament took off from their own legislative influence. The rule, however, was not observed in succeeding times ; bills originated indiscriminately in either house ; and indeed some acts of Henry V., which do not appear to be grounded on any petition, may be suspected, from the manner of their insertion in the rolls of Parliament, to have been pro- posed on the king's part to tlie Commons. 1" A notion is entertained by many people, and not without the autliority of sonic very respectalsle names, that tlie khii; is one of the three estates of the realm, the lords spiritual and temporal forming tofrether the second, as the Commons in Parlia- ment do the third. This is contradicted by the general tenor of our ancient records and law-books; and indeed the analogy of other governments ought to have the greatest weight, even if more reason for doubt appeared upon tlie face of our own authorities. Mut the instances where the three estates are declared or implied to he the nobility, clergy, and commons, or at least their representatives in Parliament, are too numerous for insertion. English Const. RIGHT OF VOTING FOR KNIGHTS. 485 § IT. Whoever may have been the original voters for county representatives, the hrst statute tliat regulates their election, so far from limiting the privilege to tenants in capite, appears to place it upon a very large and democratical foundation. For (as I ratlier conceive, though not without much hesitation) not only all freeholders, but all persons whatever present at the County Court were declared, or rendered, capable of vot- ing for the knight of their shire. Such at least seems to be the inference from the expressions of 7 Henry IV., c. 15, " all who are there present, as well suitors duly summoned for that cause as others." And this acquires some degree of confirma- tion from the later statute, 8 Henry VI., c. 7, which, reciting that "elections of knights of shires have now of late been made by very great, outrageous, and excessive number of people dwelling within the same counties, of the wliich most part was people of small substance and of no value," confines the elective franchise to freeholders of lands or tenements to the value of forty shillings. The representation of towns in Parliament was founded upon two principles — of consent to public burdens, and of advice in public measures, especially such as related to trade and shipping. Ui3on both these accounts it was natural for the kings who first summoned them to Parliament, little fore- seeing that such half-emancipated burghers would ever clip the loftiest plumes of their prerogative, to make these assem- blies numerous, and summon members from every town of consideration in the kingdom. Thus the writ of 23 Edward I. directs the sheriffs to cause deputies to be elected to a general council from every city, borough, and trading-town. And although the last words are omitted in subsequent writs, yet their spirit was preserved ; many towns having constantly returned members to Parliament by regular summonses from the sheritt's, which were no chartered boroughs, nor had aj)- parently any other claim tlian their populousness or commerce. These are now called boroughs by prescription." Besides these respectable towns, there were some of a less eminent figure which had writs directed to them as ancient demesnes of the crown. During times of arbitrary taxation the crown had set tallages alike upon its chartered boroughs and upon its tenants in demesne. When Parliamentary con- sent became indispensable, the free tenants in ancient demesnes, or rather sucli of them as inhabited some particular vills, were " The majority of prescriptive boroughs liavp prescriptive corporations which carry the legal, wliich is not always the moral, presumption of an original charter. 486 POWER OF SHERIFF. Chap. VIII. Paut III. called to Parliament among the other representatives of the Commons. They are usually specified distinctly from the other classes of representatives in grants of subsidies throiigh- out the Parliaments of the first and second Edwards, till, about the beginning of the third's reign, they, they were confounded with ordinary burgesses. This is the foundation of that par- ticular sp'^cies of elective franchise incident to Avhat we de- nominate burgage tenure ; which, however, is not confined to the ancient demesne of the crown. The proper constituents, therefore, of the citizens and bur- gesses in Parliament appear to have been — 1. All chartered boroughs, whether they derived their i^rivileges from the crown or from a mesne lord, as several in Cornwall did from Richard, king of the Romans ; 2. All towns which were the ancient or the actual demesne of tlie crown ; 3. All considerable places, though iniincorporated, which could afford to defray the ex- penses of their representatives, and had a notable interest in the public welfare. F)ut no Parliament ever perfectly corre- sponded with this theory. The writ was addressed in general terms to the sheriff, requiring him to cause two knights to be elected out of the body of the county, two citizens from every city, and two burgesses from every borough. It rested alto- gether upon him to determine Avhat tOAvns should exercise this franchise ; and it is really incredible, with all the carelessness and ignorance of those times, what frauds the sheriffs ventured to commit in executing this trust. Though Parliaments met almost every year, and tliere could be no mistake in so notori- ous a fact, it was the continual practice of sheriffs to omit boroughs that had been in recent habit of electing members, and to return upon the writ that there were no more w'ithin their county. Tlius in the 12th of Edward III. the Sheriff of Wiltshire, after returning two citizens for Salisbury, and bur^ gesses for two boroughs, concludes with these words : " There are no other cities or boroughs witliin my bailiwick." Yet, in fact, eight other towns had sent members to preceding Par- liaments. So in the 6th of Edward II. the Sheriff of Bucks declared that he had no borough within his county except Wicomb ; though Wendover, Agmondesham, and Marlow had twice made returns since that king's accession. And from this cause alone it has happened that many towns called boroughs, and having a charter and constitution as such, never returned members to Parliament ; some of which are now among the most considerable in England — as Leeds, Birmingham, and Macclesfield. English Const. RELUCTANCE TO SEND MEMBERS. 487 It lias been suggested, indeed, that these returns may not appear so false and collusive if we suppose tlie sheriff to mean only that there were no resident burgesses within these bor- oughs tit to be returned, or that the expense of their wages would be too heavy for the place to support. And no doubt the latter plea, whether implied or not in the return, was very frequently an inducement to the sheriff to spare the smaller boroughs. The wages of knights were four shillings a day, levied on all freeholders, or at least on all holding by knight- service, within the county. Those of burgesses were half that sum ; ^* but even this pittance was raised with reluctance and difficulty from miserable burghers little solicitous about politi- cal franchises. Poverty, indeed, seems to have been accepted as a legal excuse. The elective franchise was deemed by the boroughs no privi- lege or blessing, but rather, during the chief part of this period, an intolerable grievance. Where they could not persuade the sheriff to omit sending his writ to them they set it at defiance by sending no return. And tJiis seldom failed to succeed, so that, after one or two refusals to comply, which brought no punishment upon them, they were left in quiet enjoyment of their insignificance. The partiality of sheriffs in leaving out boroughs, which were accustomed in old time to come to the Parliament, was re- pressed, as far as law could repress it, by a statute of Richard II., which imposed a fine on them for such neglect, and upon any member of Parliament who should absent himself from his duty. But it is, I think, highly probable that a great part of those wlio were elected from the boroughs did not trouble themselves with attendance in Parliament. The sheriff even found it necessary to take sureties for their execution of so burdensome a duty, whose names it was usual, down to the end of the fifteenth century, to indorse upon the writ along with those of the elected. This expedient is not likely to have been 18 The wages of knights and burgesses were first reduced to this certain sum by the writs De levandis expensis, 16 Edward II. These were issued at the request of those wlio had served, after the dissolution of Parliament, and included a certain number of days, according to tlie distance of the county wlience they came, for going and returning. It appears by these that thirty-five or forty miles were reckoned a day's journey; whicli may correct the exaggerated notions of bad roads and tardy locomotion tliat are sometimes entertained. The latest entries of writs for expenses in the close rolls are of 2 Henry V.; but they may be proved to have issued much longer ; and Prynne traces them to the end of Henry VIII's reign, p. 547. Witliout tlie formality of this writ a very few instances of towns remunerating their burgesses for attendance in Parliament are known to have occurred in later times. Andrew Marvel is commonly said to have been the last who received this honorable salary. 488 MEMBERS OF THE COMMONS. Chap. VIII. Paut III. very successful, and the statute of Richard II, produced no sensible effect. By Avhat persons the election of burgesses Avas usually made is a question of great obscurity. It appears to have been the feiomnion practice for a very fcAv of the principal members of the corporation to make the election in the County Court, and their names, as actual electors, are generally returned upon the writ by the sheriff. But we cannot surely be warranted by this to infer that they acted in any other caj^acity than as depu- ties of the whole body, and indeed it is frequently expressed that they chose such and such persons by the assent of the community ; by which word, in an ancient corporate borough, it seems natural to understand the freemen participating in its general franchises, rather than the ruling body, Avhich, in many instances at present, and always perhaps in the earliest age of corporations, derived its authority by delegation from the rest. The consent, however, of the inferior freemen we may easily believe to have been merely nominal ; and, from being nominal, it would in many places come by degrees not to be required at all — the corporation, specially so denominated, or municipal government, acquiring by length of usage an exclusive privilege m election of members of I'arliament, as they did in local ad- ministration. This, at least, appears to me a more probable hypothesis than that of Dr. Brady, who limits the original right of election in all corporate boroughs to the aldermen or other capital burgesses.^® The members of the House of Commons, from this occa- sional disuse of ancient boroughs as well as from the creation of new ones, underwent some fluctuation during the period subject to our review. Two hundred citizens and burgesses sat in the I'arliament held by Edward I. in his twenty-third year, the earliest epoch of acknoAvledged representation. But in the reigns of Edward III. and his three successors, about ninety j)laces, on an aA^erage, returned members, so that Ave may reckon this part of the Commons at one hundred and eighty. These, if regular in their duties, might appear an overbalance for the seventy-four knights Avho sat with them. But the dignity of ancient lineage, territorial wealth, and military character, in times when the feudal spirit was hardly extinct and that of chivalry at its height, made these burghers veil their heads to the landed aristocracy. It is pretty mani- fest that the knights, though doubtless with some support from the representatives of toAvns. sustained the chief brunt 19 Brady on Boroughs, p. 13'2, etc. English Const. MEMBERS OF THE COMMONS. 489 of battle against the crown. The rule and intention of our old constitution was, that each county, city, or borough should elect deputies out of its own body, resident among themselves, and consequently acquainted with their necessities and griev- ances. It would be very interesting to discover at what time, and by what degrees, the practice of election swerved from this strictness. But I have not been able to trace many steps of the transition. The number of practising lawyers who sat in Parliament, of which there are several complaints, seems to afford an inference that it had begun in the reign of Edward III. Besides several petitions of the Commons that none but knights or reputable squires should be returned for shires, an ordinance was made in the forty-sixth of his reign that no lawyer practising in the King's Court, nor sheriff during his shrievalty, be returned knight for a county, because these lawyers put forward many petitions in the name of the Com- mons Avhich only concerned their clients. This, probably, was truly alleged, as we may guess from the vast number of pro- posals for changing the course of legal process which till the rolls during this reign. It is not to be doubted, however, that many practising lawyers were men of landed estate in their respective counties. An act in the first year of Henry V. directs that none be chosen knights, citizens, or burgesses who are not resident within the place for which they are returned on the day of the date of the writ. This statute apparently indicates a point of time when the deviation from the line of law was frequent enough to attract notice, and yet not so established as to pass for an unavoidable irregularity. Even at the time when it was enacted, the law had probably, as such, very little effect. But still the plurality of elections were made according to ancient usage, as well as statute, out of the constituent body. Tlie contrary instances were exceptions to the rule, but exceptions increasing continually till they subverted the rule itself. Prynne has remarked that we chiefly find Cornish surnames among the representatives of Cornwall, and those of Northern families among the returns from the North. Nor do the mem- bers for shires and towns seem to have been much inter- changed — the names of the former belonging to the most ancient families, while those of the latter have a more ple- beian caste. In the reign of Edward IV., and not before, a very few of the burgesses bear the addition of esqiiire in the returns, which became universal in the middle of the suc- ceeding century. 490 HOUSE OF LOllDS. Chap. VII. Part III. Even county elections seem in general, at least in the four- teenth century, to have been ill attended, and left to the influence of a fcAv powerful and active persons. A petitioner against an undue return, in the 12th of EdAvard II., conijjlains that, whereas he had been chosen knight for Devon by Sir AVilliam Martin, bishop of Exeter, witli the consent of the county, yet the sheriff had returned another. In several in- dentures of a much later date a few persons only seem to have been concerned in the election, though the assent of the com- munity be expressed. These irregularities, which it would be exceedingly erroneous to convert, with Hume, into lawful cus- toms, resulted from the abuses of the sheriff's poAver, which, AAdien Parliament sat only for a fcAV weeks, with its hands full of business, were almost sure to escape Avith impunity. They Avere sometimes, also, countenanced, or rather instigated, by the crown, wliich, having recovered in EdAvard II. 's reign the prerogative of naming the sheriffs, surrendered by an act of Ids father, filled that office Avitli its creatures, and constantly disregarded the statute forbidding their continuance beyond a year. Without searching for every passage that might illus- trate the interference of the croAvn in elections, I Avill mention one or two leading instances. When Richard II. Avas medi- tating to overturn the famous commission of reform, he sent f (;r some of the sheriffs, and required them to permit no knight or burgess to be elected to the next Parliament Avithout the approbation of the king and his council. The sheriffs replied that the commons woidd maintain their ancient privilege of electing their OAvn representatives. The Parliament of 1397, Avliich attainted his enemies and left the constitution at his mercy, Avas cliosen, as Ave are told, by dint of intimidation and influence. § 18. The House of Lords, as Ave left it in the reign of Henry III., was entirely composed of such persons holding lands by barony as Avere summoned by particular Avrit of Par- liament.' Tenure and summons Avere both essential at this time in order to render any one a lord of Parliament — the first, by the ancient constitution of our feudal monarchy from the Conquest ; the second, by some regulation or usage of doubtful origin, Avhich Avas thoroughly established before the conclusion of Henry III.'s reign. This produced, of course, a very marked difference between the greater and the lesser, or unparliamentary barons. The tenure of the latter, hoAvever, still subsisted ; and, though too inconsiderable to be mem- bers of the legislature, they paid relief as barons, they might English Const. TENURE OF LORDS SPIRITUAL. 491 be challenged on juries, and, as I presume, by parity of reason- ing, were entitled to trial by their peerage. These lower barons, or more commonly tenants by parcel of baronies,-" may be dimly traced to the latter years of Edward III. IJut many of them were successively summoned to Parliament, and thus recovered the former lustre of their rank, while the rest fell gradually into the station of commoners, as tenants by simple knight-service. As tenure Avithout summons did not entitle any one to the privileges of a Lord of Parliament, so no spiritual person at least ought to have been summoned without baronial tenure. Great irregularities prevailed in the rolls of Chancery, from which the writs to spiritual and temporal peers were taken — arising in part, perhaps, from negligence, in part from wilful perversion ; so that many abbots and priors, who had no baronial tenure, were summoned at times and subsequently omitted, of whose actual exemption we have no record. Out of 122 abbots and 41 priors who at some time or other sat in l*arliament, but twenty-five of the former and tAvo of the latter were constantly summoned ; the names of forty occur only once, and those of thirty-six others not more than five times. Their want of baronial tenure, in all probability, prevented the repetition of writs which accident or occasion had caused to issue. -^ The ancient temporal peers are supposed to have been inter- mingled with persons who held nothing of the crown by bar- ony, but attended in Parliament solely by virtue of the king's prerogative exercised in the writ of summons. These have been called Bai-ons hy Writ ; and it seems to be denied by no one that, at least under the first three EdAvards, there were some of this description in Parliament. But, after all the labors of Dugdale and others in tracing the genealogies of our ancient aristocracy, it is a problem of much difficulty to distinguish these from the territorial barons. As the latter honors descended to female heirs, they passed into new fam- ilies and new names, so that we can hardly decide of one sum- 2f Baronies were often divided by descent among females into many parts, each retaining its cliaracter as a fractional member of a barouy. The tenants in such case were said to hold of the king by the third, fourth, or twentieth part of a barouy, and did service or paid relief in such proportion. 21 It is worthy of observation that the spiritual peers summoned to Parliament were in general considerably more numerous than the temporal. This appears, among other causes, to have saved the Church from that sweeping reformation of its wealth, and perhaps its doctrines, which the Commons were thoroughly inclined to make under Richard II. and Henry IV. Thus the reduction of the spiritual lords by tlie dissolution of monasteries was indispensably required to bring the ecclesiaa- tical order into due subjection to the state. 492 BARONS CALLED BY WRIT. Chap. VIII. Pakt III. moned for the first time to Parliament that he did not inherit the possession of a feudal barony. Husbands of baronial heiresses were frequently summoned in their wives' right, but by their own names. They even sat after the death of their wives, as tenants by the courtesy. If we judge, however, by the lists of those summoned, according to the best means in our power, it will appear that the regular barons by tenure were all along very far more numerous than those called by writ; and that from the end of Edward III.'s reign no spirit- ual persons, and few if any laymen, except peers created by patent, were summoned to Parliament who did not hold terri- torial baronies. With respect to those who were indebted for their seats among the Lords to the king's writ, there are two material (piestions — whether they acquired an hereditary nobility by virtue of the writ ; and, if this be determined against them, whether they had a decisive or merely a deliberative voice in the house. Now, for the first question, it seems that, if the writ of summons conferred an estate of inheritance, it must have done so either by virtue of its terms or by established construction and precedent. But the writ contains no words by which such an estate can in law be limited ; it summons the person addressed to attend in Parliament in order to give his advice on the public business, but by no means imj)lies that his advice will be required of his heirs, or even of him- self, on any other occasion.. We find that no less than ninety- eight laymen were summoned once only to Parliament, none of their names occurring afterwards ; and fifty others two, three, or four times. Some were constantly summoned during their lives, none of whose posterity ever attained that honor. The course of proceeding, therefore, previous to the accession of Henry VII., by no means warrants the doctrine which was held in the latter end of Elizabeth's reign, and has since been too fully established by repeated precedents to be shaken by any reasoning. The foregoing observations relate to the more ancient history of our constitution, and to the ])lain matter-of- fact as to those times, without considering what political cause there might be to. prevent the crown from introducing occa- sional counsellors into the House of Lords. It is manifest by many passages in these records that ban- nerets were frequently summoned to the upper house of Par- liament, constituting a distinct class inferior to barons, though generally named together, and ultimately confounded with them. Barons are distinguished by the appellation of Sire j English Const. BANNERETS IN THE LORDS. 493 bannerets have only that of JMonsieur, as le Sire de Berkeley, le Sire de Fitzwalter, Monsieur liichard Scrop, Monsieur Kich- ard Stafford. The distinction, however, between barons and bannerets died away by degrees. In the second of Henry VI., Scrop of Bolton is called le Sire de Scrop — a proof that he was then reckoned among the barons. The bannerets do not often appear afterwards by that appellation as members of the upper house. Bannerets, or, as they are' called, banrents, are enumerated among the orders of Scottish nobility in the 3^ear 1428, when the statute directing the common lairds or tenants in capite to send representatives was enacted ; and a modern historian justly calls them an intermediate order be- tween the peers and lairds. Perhaps a consideration of these facts, which have frecpiently been overlooked, may tend in some measure to explain the occasional discontinuance, or sometimes the entire cessation, of writs of summons to an in- dividual or his descendants ; since we may conceive that ban- nerets, being of a dignity much inferior to that of barons, had no such inheritable nobility in their blood as rendered their Parliamentary privileges a njatter of right. But whether all those who without any baronial tenure received their writs of summons to Parliament belonged to the order of bannerets, I cannot pretend to affirm ; though some passages in the rolls might rather lead to such a supposition. The second question relates to the right of suffrage pos- sessed by these temporary members of the upper house. It might seem plausible, certainly, to conceive that the real and ancient aristocracy would not permit their powers to be im- paired by numbering the votes of such as the king might jjlease to send among them, however they might allow them to assist in their debates. But I am much more inclined to suppose that they were in all respects on an equality with other peers during their actual attendance in Parliament. For, 1. They are summoned by the same writ as the rest, and their names are confused among them in the lists ; whereas tlie judges and ordinary counsellors are called by a separate writ, vobiscu.m et caeteris de consilio nostro, and their names are entered after those of the peers. 2. Some, who do not appear to have held land baronies, were constantly summoned from father to son, and thus became hereditary lords of Parliament through a sort of prescriptive right, which prob- ably was the foundation of extending the same privilege afterwards to the descendants of all who had once been sum- moned. There is no evidence that the family of Scrope, for 494 CREATION OF PEERS. Chap. VIII, Pakt III. example, which, was eminent under Edward III. and subse- quent kings, and gave rise to two branches, the lords of Bolton and Masham, inherited any territorial honor. 3. It is very difficult to obtain any direct proof as to the right of voting, because the rolls of Parliament do not take notice of any debates ; but there happens to exist one remarkable pas- sage in which the suffrages of the Lords are individually specified. " § 19. The next method of conferring an honor of peerage was by creation in Parliament. This was adopted by Edward III. in several instances, though always I believe for the higher titles of duke or earl. It is laid down by lawyers that whatever the king is said in an ancient record to have done in full Parliament must be taken to have proceeded from the wliole legislature. As a question of fact, indeed, it might be doubted whether, in many proceedings where this expression is used, and especially in the creation of peers, the assent of the Commons was specifically and deliberately given. It seems hardly consonant to the circumstances of their order under Edward III. to suppose their sanction necessary in what seemed so little to concern their interest. Yet there is an instance in the fortieth year of that prince where the Lords individually, and the Commons with one voice, are declared to have consented, at the king's request, that the Lord de Coney, who had married his daughter, and was already possessed of estates in England, might be raised to the dignity of an earl, whenever the king should determine what earldom he would confer upon him. Under Ilichard II. the marquisate =- III the first Parliament of Henrv IV. tlie Lords were requested by the Earl of Northiiniliirland to declare wliat should be done with the late King Richard. The lords then ])reseut ajfreed tliat lie should be detained in safe custody; anil on account of the iiiiportMiice of this matter it seems to have been thought necessary to enter their names upon the roll in tliese words : the names of the lords concurring in their answer to the said question here follow; to wit, the Arclibishop of Canterbury and fourteen other bislio|)s; seven abbots; the Prince of Wales, the Duke of York, and six earls; nineteen barons, styled thus — le Sire de Koos, or le Sire de Grey de Ruthyn. Thus far the entry has nothing singular; but then follow these nine name's : Jlonsieur Henry Percy, Monsieur Hicharerson presiding over a people is so qualified, St. Tlionias, in the hook "which he writ to the King of Cyprus, ' Do Regimine Principuui,' wishes that a kingdom could be so instituted as that the king might not be at liberty to tyrannize over his people; which only comes to pass in the present case: that is, when the sovereign jiower is restrained by jiolitical laws. Rejoice, therefore, my good prince, that such is the law of the kingdom which you are to inherit, because it will afford, both to yourself and subjects, the greatest security and satisfaction." -' The two great divisions of civil rule, the absolute, or regal as he calls it, and the political, Fortescue proceeds to deduce from the several originals of conquest and compact. Con- cerning the latter he declares emphatically a truth not always palatable to princes, that such governments Avere instituted by the people and for the people's good ; quoting St. Augustin for a similar definition of political society: " As the head of a body natural cannot change its nerves and sinews, can- not deny to the several parts their j)roper energy, their due projiortion and aliment of blood ; neither can a king, who is the head of a body politic, change the laws thereof, nor take from the jjeople what is theirs by right against their consent. Thus you have, sir, the formal institution of every political kingdom, from whence you may guess at the power which a king may exercise with respect to the laws and the subject. For he is appointed to protect liis subjects in their lives, properties, and laws: for this very end and purpose he has the delegation of power from the people, and he has no just claim to any other power but this. Wherefore, to give a brief answer to that question of yours, concerning the different powers which kings claim over their subjects, I am firmly of opinion that it arises solely from the different natures of tlieir original institution, as you may easily collect from what has been said. So tlie kingdom of England had its original from Brute, and tlie Trojans who attended him from Italy and Greece, and became a mixed kind of government, compounded of the regal and political.-** It would occupy too much space to quote every other pas- sage of the same nature in this treatise of Fortescue, and in that entitled, '* Of the Difference between an Absolute and Limited Monarchy," which, so far as these points are con- cerned, is nearly a translation from the former.^^ But these, corroborated as they are by the statute-book and by the rolls of Parliament, are surely conclusive against the notions which pervade JVIr. Hume's history. I have already remarked that a sense of the glaring prejudice by which some Whig A\'riters had been actuated, in representing the English constitution 2' Fortescue, " De Laudibus Legum Aiijrlia?," c. 9. -^ Ibid. c. 13. ^'•> Tlie latter treatise having been wril ten under Edward IV. — whom Fortescue as a restored Lancastrian, would be anxious not to otfend, and, whom, in fact, he took some pains to conciliate both in tliis iind other writings — it is evident that the principles of limited monarchy were as fully recognized in his reign, whatever paiticuhir acts of violence might occur, as they had been under the Lancastrian princes. English Const. ERRONEOUS VIEWS OF HUME. 511 from the earliest times as nearly arrived at its present per- fection, conspired with certain prepossessions of his own to lead this eminent historian into an equally erroneous system on the opposite side. And as he traced the stream backward, and came last to the times of the Plantagenet dynasty, with opinions already biassed and even pledged to the world in his volumes of earlier publication, he was prone to seize hold of, and even exaggerate, every circumstance that indicated imma- ture civilization, and law perverted or infringed. To this his ignorance of English jurisprudence, which certainly in some measure disqualilied him from writing our history, did not a little contribute ; misrepresentations frequently occurring in his work which a moderate acquaintance with the law of the land would have prevented. It is an honorable circumstance to England that the history of no other country presents so few instances of illegal con- demnations upon political charges. The judicial torture was hardly known, and never recognized by law. The sentence in capital crimes, fixed unalterably by custom, allowed nothing to vindictiveness and indignation. There hardly occurs an example of any one being notoriously put to death without form of trial, except in moments«pf flagrant civil war. If the rights of juries were sometimes evaded by irregular jurisdic- tions, they were at least held sacred by the courts of law ; and through all the vicissitudes of civil liberty, no one ever ques- tioned the primary right of every freeman, handed down from his Saxon forefathers, to the trial by his "^leers. A just regard for public safety prescribes the necessity of severe penalties against rebellion and conspiracy ; but the interpretation of these offences, when intrusted to sovereigns and their coun- sellors, has been the most tremendous instrument of despotic power. In rude ages, even though a general spirit of political liberty may prevail, the legal character of treason will com- monly be undefined ; nor is it the disposition of lawyers to give greater accuracy to this part of criminal jurisprudence. The nature of treason appears to have been subject to much uncertainty in England before the statute of Edward III. If that memorable law did not give all possible precision to the offence, which we must certainly allow, it prevented at least those stretches of vindictive tyranny which disgrace the annals of other countries. The praise, however, miist be understood as comparative. Some cases of harsh if not illegal convictions could hardly fail to occur in times of violence and during changes of the reigning family. Perhaps the circumstances 512 CAUSES TENDING TO FORM Chap. VIII. Part III. have noAv and then been aggravated by historians. Nothing couhl be more illegal than the conviction of the Earl of Cam- bridge and Lord Scrope in 1415, if it be true, according to Carte and Hume, that they were not heard in their defence. But whether this is to be absolutely inferred from the record is perhaps open to question. There seems at least to have been no sufficient motive for such an irregularity, their partici- pation in a treasonal)le conspiracy being manifest from their own confession. The proceedings against Sir John Mortimer in the 2d of Henry VI. are called by Hume highl3^ irreg- ular and illegal. They were, however, by act of attainder, which cannot well be styled illegal. Nor are they to be con- sidered as severe. Mortimer had broken out of the Tower, where he was confined on a charge of treason. This was a capital felony at common law ; and the chief irregularity seems to have consisted in having recourse to I'arliament in order to attaint him of treason, when he had already forfeited his life by another crime. § 25. By what means the English acquired and preserved this political liberty, which, even in the fifteenth century, was the admiration of judicious foreigners,^" is a very rational and interesting inquiry. Their ©vn serious and steady attachment to the laws must always be reckoned among the principal causes of this blessing. The civil equality of all freemen below the rank of peerage, and the subjection of peers them- selves to the impartial arm of justice and to a due share in contribution to public burdens — advantages unknown to other countries — tended to identify the interests and to assimilate the feelings of the aristocracy with those of the people ; classes wliose dissension and jealousy have been in many in- stances the surest hope of sovereigns aiming at arbitrary power. This freedom from the "oppressive su])eri()rity of a privileged order was peculiar to England. In many kingdoms the royal prerogative was at least equally limited. The statutes of Aragon are more full of remedial provisions. The right of opposing a tyrannical government by arms was more frequently asserted in Castile. But nowhere else did the people possess by law, and I thiiik upon the whole, in effect, so much security for their personal freedom and property. Accordingly, the middling ranks flourished remarkably, not only in com- mercial towns, but among the cultivators of the soil. " There is scarce a small village," says Sir J. Fortescue, " in which you 30 Philip (le Comines takes several opportunities of testifying his esteem for the English Government. See particularly in 1. iv., c. i., and 1. v., c. xix. English Const. . THE CON'S^ITUTIOlsr. 513 may not tiiid a knight, au esquire, or some substantial house- holder (paterfamilias), commonly called a frankleyn,^^ pos- sessed of considerable estate ; besides others who are called freeholders, and many yeomen of estates sufficient to make a substantial jury." I would, however, point out more particu- larly two causes which had a very leading efficacy in the gradual development of our constitution : first, the schemes of Continental ambition in which our government was engaged; the manner in which feudal principles of insubordination and resistance were modified by the prerogatives of the early Norman kings. 1. At the epoch when William the Conqueror ascended the throne, hardly any other power was possessed by the King of France than what he inherited from the great fiefs of the Capetian family. War with such a potentate was not exceed- ingly to be dreaded, and William, besides his immense revenue, could employ the feudal services of his vassals, which were extended by him to Continental expeditions. These circum- stances were not essentially changed till after the loss of Normandy ; for the acquisitions of Henry II. kept him fully on an equality with tlie French crown, and the dilapidation which had taken })lace in the royal demesne was compensated by several arbitrary resources that filled the exchequer of these monarchs. But in the reigns of John and Henry III., the position of England, or rather of its sovereign with respect to France, underwent a very disadvantageous change. The loss of Normandy severed the connection between the English nobility and the Continent ; they had no longer estates to defend, and took not sufficient interest in the concerns of Guienne to fight for that province at their own cost. Their feudal service was now commuted for an escnage, which fell very short of the expenses incurred in a protracted campaign. Tallages of royal towns and demesne lands, extortion of money from the Jews, every feudal abuse and oppression, were tried in vain to re- plenish the treasury, which the defence of Eleanor's inherit- ance against the increased energy of France was constantly exhausting. Even in the most arbitrary reigns a general tax upon land-holders, in any cases but those prescribed by tlie 31 By a frankleyn in this place we are to understand what we call a country squire, like the frankleyn of Chaucer; for the word esquire in Fortescue's time vvas only used in its limited sense, for the sous of jieers and knights, or such as had obtaineil the title by creation or some other legal means. The mention of Chaucer leads me to add that the prologue to his " Canterbury Tales " is of itself a continual testimony to the plenteous and comfortable situation of tlie middle ranks in England, as well as to that fearless independence and frequent oriLriuality of character among them which libertj' and competence have conspired to produce. 514 CAUSES TENDING TO F0R:SI Chap. VIII. Part III. feudal law, had not been ventured : and tlie standing bulwark of Magna Cliarta, as well as the feebleness and luipopidarity of Henry III., made it more dangerous to violate an estab- lished principle. Subsidies were therefore constantly required ; but for these it was necessary for the king to meet Parliament, to hear their complaints, and, if he could not elude, to ac- quiesce in their jietitions. These necessities came still more urgently upon Edward I., whose ambitious spirit could not patiently endure the encroachments of Pliilip the Fair, a rival not less ambitious, but certainly less distinguished by personal prowess, than himself. What advantage the friends of liberty rea})ed from this ardor for Continental warfare is strongly seen in the circumstances attending the Confirmation of the Charters. But after this statute had rendered all tallages without consent of Parliament illegal, though it did not for some time prevent their being occasionally imposed, it was still more difficult to carry on a war with France or Scotland, to keep on foot naval armaments, or even to preserve the courtly mag- nificence which that age of chivalry affected, without perpet- ual recurrence to the House of Commons. Edward III. very little consulted the interests of his prerogative when he stretched forth his hand to seize the phantom of a crown in France. It compelled him to assemble Parliament almost annually, and often to hold more than one session within the year. Here the representatives of England learned the habit of remonstrance and conditional supply ; and though, in the meridian of Edward's age and vigor, they often failed of im- mediate redress, yet they gradually swelled the statute-roll with provisions to secure their country's freedom ; and acquir- ing self-confidence by mutual intercourse and sense of the pub- lic opinion, they became aV)le, before the end of Edward's reign, and still more in that of his grandson, to control, prevent, and punish the abuses of administration. Of all these proud and sovereign privileges, the right of refusing supply was tiie key- stone. But for the long wars in which our kings were in- volved, at first by their possession of Guienne, and afterwards by their pretensions upon the crown of Fi'ance, it would have been easy to suppress remonstrances by avoiding to assemble Parliament. For it must be confessed that an authority was given to the king's proclamations, and to ordinances of the council, which differed but little from legislative power, and would very soon have been interpreted by complaisant courts of justice to give them the full extent of statutes. English Const. THE CONSTITUTION^. 515 It is common, indeed, to assert that the liberties of England were bought with the blood of our forefathers. This is a very magnanimous boast, and in some degree is consonant enough to the truth. But it is far more generally accurate to say that they were purchased by money. A great proportion of our best laws, including Magna Charta itself, as it now stands con- firmed by Henry III., were, in the most literal sense, obtained by a pecuniary bargain with the crown. In many Parliaments of Edward III. and Richard II. this sale of redress is chaffered for as distinctly, and with as little apparent sense of disgrace, as the most legitimate business between two merchants would be transacted. So little was there of voluntary benevolence in what the loyal courtesy of our constitution styles conces- sions from the throne ; and so little title have these sovereigns, though we cannot refuse our admiration to the generous virtues of Edward III. and Henry V., to claim the gratitude of posterity as the benefactors of their people ! 2. The relation established between a lord and his vassal by the feudal tenure, far from containing principles of any servile and implicit obedience, permitted the compact to be dissolved in case of its violation by either party. This extended as much to the sovereign as to inferior lords ; the authority of the former in France, where the system most flourished, being for several ages rather feudal than political. If a vassal were aggrieved, and if justice were denied him, he sent a defiance, that is, a renunciation of fealty, to the king, and was entitled to enforce redress at the point of his sword. It then became a contest of strength as between two independent potentates, and was terminated by treaty, advantageous or otherwise, ac- cording to the fortune of war. This privilege, suited enough to the situation of France, the great peers of which did not originally intend to admit more tlian a nominal su])remacy in the house of Capet, was evidently less compatible with the regular monarchy of England. The stern natures of William the Conqueror and his successors kept in control the mutinous spirit of their nobles, and reaped the profit of feudal tenures without submitting to their reciprocal obligations. They coun- teracted, if I may so say, the centrifugal force of that system by tlie application of a stronger power ; by preserving order, administering justice, checking the growth of baronial influ- ence and riches, with habitual activity, vigilance, and severity. Still, however, there remained the original principle that al- legiance depended conditionally upon good treatment, and that an appeal might be lawfully made to arms against an opj)res- 516 INFLUENCE OF THE NOBILITY. Chap. VIII. Part IIL sive government. Nor was this, we may be sure, left for extreme necessity, or thought to requ.ire a long-enduring for- bearance. In modern times a king compelled by his subjects' swords to abandon any pretension would be supposed to have ceased to reign ; and the express recognition of such a right as that of insurrection has been justly deemed inconsistent with the majesty of law. But ruder ages had ruder sentiments. Force was necessary to repel force ; and men accustomed to see the king's authority defied by private riot were not much shocked when it was resisted in defence of public freedom. The Great Charter of John was secured by the election of twenty -live barons as conservators of the compact. If the king, or the justiciary in his absence, should transgress any article, any four might demand reparation, and on denial carry their com^daiut to the rest of their body. " And those barons, with all the commons of the land, shall distrain and annoy us by every means in their power, that is, by seizing our castles, lands, and possessions, and every other mode, till the wrong shall be repaired to their satisfaction ; saving our person, and our queen and children. And when it shall be repaired they shall obey us as before." It is amusing to see the common law of distress introduced upon tliis gigantic scale, and the capture of the king's castles treated as analogous to impounding a neighbor's horse for breaking fences. These feudal notions, which placed the moral obligation of allegiance very low, acting under a weighty pressure from the real strength of the crown, were favorable to constitutional liberty. The great vassals of France and Germany aimed at living independently on their tiefs, with no further concern for the r(^st than as useful allies having a common interest against the ci'own. But in England, as there was no prospect of throwing off subjection, the barons endeavored only to lighten its burden, fixing limits to prerogative by law, and securing their observation by parliamentary remonstrances or by dmt of arms. Hence, as all rebellions in England were directed only to coerce the government, or at the utmost to change the succession of the crown, without the smallest tendency to sep- aration, they did not impair the national strength nor destroy the character of the constitution. In all these contentions it is remarkable that the people and clergy sided with the nobles against the throne. No individuals are so popular with the monkish annalists, who si)eak the language of the populace, as Simon, earl of Leicester, Thomas, earl of Lancaster, and Thomas, duke of Gloucester — all turbulent opposers of the royal English Const. PREVALENCE OF RAPINE. 517 authority, and probably little deserving of their panegyrics. Very few English historians of the Middle Ages are advocates of prerogative. This may be ascribed both to the equality of our laws and to the interest wliich the aristocracy found in courting popular favor, when committed against so formidable an adversary as the king. § 26. From the time of Edward I. the feudal system and all the feelings connected with it declined very rapidly. But what the nobility lost in the number of their military tenants was m some degree compensated by the state of manners. The higher class of them, who took the chief share in public affairs, were exceedingly opulent; and their mode of life gave wealth an incredibly greater etRcacy than it possesses at pres- ent. Gentlemen of large estates and good families who had attached themselves to these great peers, who bore offices which we should call menial in their households, and sent their children thither for education, were of course ready to follow their banner in rising, without much inquiry into the cause. Still less would the vast body of tenants and their re- tainers, >vho were fed at the castle in time of peace, refuse to carry their pikes and staves into the field of battle. Many devices were used to preserve this aristocratic influence, which riches and ancestry of themselves rendered so formidable. Such was the maintenance of suits, or confederacies for the purpose of supporting each other's claims in litigation, which was the subject of frequent complaints in Parliament, and gave rise to several prohibitory statutes. By help of such confed- eracies parties were enabled to make violent entries upon the lands they claimed, which the law itself could hardly be said to discourage. Even proceedings in courts of justice were often liable to intimidation and influence. A practice much allied to confederacies of maintenance, though ostensibly more harmless, was that of giving liveries to all retainers of a noble family ; but it had an obvious tendency to preserve that spirit of factious attachments and animosities which it is the general policy of a wise government to dissipate. From the first year of Richard II. we And continual mention of this custom, with many legal provisions against it, but it was never abolished till the reign of Henry VII. § 27. These associations under powerful chiefs were only in- cidentally beneficial as they tended to withstand the abuses of prerogative. In their more usual course they were designed to thwart the legitimate exercise of the king's government in the administration of the laws. All Europe was a scene of 518 PREVALENT HABITS Chap. VIII. Part III. intestine anarchy during the Middle Ages ; and though Eng- land was far less exposed to the scourge of private war than most nations on the Continent, we should find, could we re- cover the local annals of every county, such an accumulation of petty rapine and tumult as would almost alienate us from the liberty which served to engender it. This was the com- mon tenor of manners, sometimes so much aggravated as to find a place in general history, more often attested by records during the three centuries that the house of Plantagenet sat on the throne. Disseizin, or forcible dispossession of free- holds, makes one of the most considerable articles in our law- books. Highway robbery was from the earliest times a sort of national crime. Capital punishments, though very fre- C[uent, made little impression on a bold and licentious crew, who had at least the sympathy of those who had nothing to lose on their side, and flattering prospects of impunity. We know how long the outlaws of Sherwood lived in tradition — men who, like some of their betters, have been permitted to redeem by a few acts of generosity the just ignominy of ex- tensive crimes. These, indeed, were the heroes of vulgar applause ; but when such a judge as Sir John Fortescue could exult that more Englishmen were hanged for robbery in one year than French in seven, and that, " if an Englishman be poor, and see another having riches which may be taken from him by might, he will pot spare to do so," it may be perceived how thoroughly these sentiments had pervaded the public mind. Such robbers, I have said, had flattering prospects of impu- nity. Besides the general want of communication, which made one who had fled from his own neighborhood tolerably secure, they had the advantage of extensive forests to facili- tate their depredations and prevent detection. When out- lawed or brought to trial, the worst offenders could frequently purchase charters of pardon, which defeated justice in the moment of her blow. Nor were the nobility ashamed to pat- ronize men guilty of every crime. Several proofs of this occur in the rolls. '^'^ 32 A strange poHcv, for which no rafionnl cnnse can be alleged, kept Wales and even Cheshire ciistinct from the rest of tlie kinf,'iioi i. Nothing could be more injuri- ous to the adjacent counties. Upon the credit of tlieir immunity from the jurisdic- tion of the kintr's courts, the people of Clieshire broke with armed bands into the neighboring counties, and perpetr;ited all the crimes in their power. As to the Welsh frontier, it was constantly almost in a state of war, which a very little good sense and benevolence in any one of our sliepherds would have easily prevented, by admitting the conquered people to partake in equal privileges with their fellow-sub- jects. Instead of this, thev satisfied themselves with aggravating the mischief by granting legal reprisals upon Welshmen. Welshmen were absolutely excluded from English Const. OF RAPINE. 519 It is perhaps the most meritorious part of Edward I.'s gov- ernment tliat he bent all his power to restrain these breaches of tranquillity. One of his salutary provisions is still in con- stant use — the statute of coroners. Another, more extensive, and, though partly obsolete, the foundation of modern laws, is the statute of Winton, which enacts that hue and cry shall be made upon the commission of a robbery, and that the hundred shall remain answerable for the damage unless the felons be brought to justice. It may be inferred from this provision that the ancient law of frank-pledge, though retained longer in forni, had lost its efficiency. By the same act, no stranger or suspicious person was to lodge even in the suburbs of towns ; the gates were to be kept locked from sunset to sunrising ; every host to be answerable for his guest ; tlie highways to be cleared of trees and underwood for two hundred feet on each side, and every man to keep arms, according to his sul)stance, in readiness to follow the sheriff on hue and cry raised after felons. The last provisi(m indicates that the robbers plun- dered the country in formidable bands. One of these, in a subsequent part of Edward's reign, burned the town of Boston during a fair, and obtained a vast booty, though their leader had the ill fortune not to escape the gallows. The preservation of order throughout the country was originally intrusted not only to the sheriff, coroner, and con- stables, but to certain magistrates called conservators of the peace. These, in conformity to the democratic character of our Saxon government, were elected by the freeholders in their County Court. But Edward I. issued commissions to carry into effect the statute of Winton ; and from the be- ginning of Edward III.'s reign the appointment of conserva- tors was vested in the crown, their authority gradually en- larged by a series of statutes, and their titles changed to that of justices. They were empowered to imprison and punish all rioters and other offenders, and such as they should find by indictment or suspicion to be reputed thieves or vagabonds, and to take sureties for good behavior from persons of evil fame. Such a jurisdiction was hardly more arbitrary than, in a free and civilized age, it has been thought fit to invest in magistrates ; but it was ill endured by a people who placed their notions of liberty in personal exemption from restraint rather than any political theory. An act having been passed bearing offices in Wales. The English living in the English towns of Wales earnestly petition (23 Henry VI., Rot. I'arl., vol. v., p. 104, 154) that this exclusion may be kept in force. Complaints of the disorderly state of the Welsh frontier are repeated as late as 12 Edward IV., vol. vi., p. 8. 520 VILLENAGE OF Chap. VIII. Pakt III. (2 Richard II., stat. 2, c. 6), in consequence of unusual riots and outrages, enabling magistrates to commit the ringleaders of tiimidtuary assemblies without waiting for legal process till the next arrival of justices of jail delivery, the Commons petitioned next year against this " horrible grievous ordi- nance," by which " every freeman in the kingdom would be in bondage to these justices," contrary to the great charter, and to many statutes, which forbid any man to be taken with- out due course of law. So sensitive was their jealousy of arbitrary imprisonment, that they preferred enduring riot and robbery to chastising them by any means that might afford a ])recedent to oppression, or weaken men's reverence for Magna Charta. ' There are two subjects remaining to which this retrospect of the state of manners naturally leads us, and which I would not pass unnoticed, though not perhaps absolutely essential to a constitutional history ; because they tend in a very material degree to illustrate the progress of society, with which civil liberty and regular government are closely connected. These are, first, the servitude or villenage of the peasantry, and their gradual emancipation from that condition ; and, secondly, the continual increase of- commercial intercourse with foreign countries. But as the latter topic will fall more conveniently into the next part of this work, I shall postpone its considera- tion for the present. § 28. In a former passage I have remarked of the Anglo- Saxon ceorls that neither their situation nor that of their de- scendants for the earlier reigns after the Conquest appears to have been mere servitude. But from the time of Henry II., as we learn from Glanvil, the villein, so called, was absolutely dependent upon his lord's will, compelled to unlimited services, and destitute of property, not only in the land he held for his maintenance, but in his own acquisitions. If a villein pur- chased or inherited land, the lord might seize it ; if he accumu- lated stock, its possession was equally precarious. Against his lord he had no right of action ; because his indemnity in damages, if he could have recovered any, might have been immediately taken away. If he fled from his lord's service, or from the land Avhich he held, a writ issued de nativitate ])ro- banda, and the master recovered his fugitive by law. His children was born to the same state of servitude ; and, con- trary to the rule of the civil law, where one parent "was free and the other in villenage, the offspring followed their father's condition. English Const. THE PEASANTKY. 521 This was certainly a severe lot ; yet tliere are circumstances which materially distinguish it from slavery. The condition of villenage, at least in later times, was perfectly relative ; it formed no distinct order in the political economy. No man was a villein in the eye of law unless his master claimed him : to all others' he was a freeman, and might acquire, dispose of, or sue for property without impediment. This class was distinguished into villeins regardant^ who had been attached from time immemorial to a certain manor, and villeins in gross, where sucli territorial prescriptions had never existed, or had been broken. In the condition of these, what- ever has been said by some writers, I can find no manner of difference ; the distinction was merely technical, and affected only the mode of pleading. The term " in gross " is appro- priated in our legal language to ];)roperty held absolutely and without reference to any other. Thus it is applied to rights of advowson or of common when possessed simply and not as incident to any particular lands. And there can be no doubt that it was used in the same sense for the possession of a vil- lein. But there was a class of persons, sometimes inaccurately confounded with villeins, whom it is more important to separate. Villenage had a double sense, as it related to persons or to lands. As all men were free or villeins, so all lands were held by a free or villein tenure. As a villein might be en- feoffed of freeholds, though they lay at the mercy of his lord, so a freeman might hold tenements in villenage. In this case his ])ersonal liberty subsisted along with the burdens of terri- torial servitude. He was bound to arbitrary service at the will of the lord, and he might" by the same will be at any moment dispossessed ; for such was the condition of his ten- ure. But his chattels were secure from seizure, his person from injury, and he might leave the land whenever he pleased. From so disadvantageous a condition as this of villenage it may cause some surprise that the peasantry of England shoidd have ever emerged. The law incapacitating a villein from acquiring property placed, one would imagine, an insur- mountable barrier in the way of his enfranchisement. It followed from thence, and is positively said by Glanvil, that a villein could not buy his freedom, because the price he ten- dered would already belong to his lord. And even in the case of free tenants in villenage it is not easy to comprehend how their uncertain and unbounded services could ever pass into slight pecuniary commutations; much less how they could 522 VILLENAGE OF PEASANTRY. Chap. VIII. Paiit III. come to maintain themselves in their hxncls, and mock the lord with a nominal tenure according to the custom of the manor. This, like many others relating to the progress of society, is a very obscure inquiry ; but the following observations may tend a little to illustrate our immediate subject, the gradual extinction of villenage. The services of villenage were gradually rendered less on- erous and uncertain. Lords of generous tempers granted in- dulgences which were either intended to be or readily became perpetual. And thus, in the time of Edward I., we find the tenants in some manors bound only to stated services, as recorded in the lord's book. Some of these, perhaps, might be villeins by blood ; but free tenants in villenage were still more likely to obtain this precision in their services ; and, from claiming a customary right to be entered in the court- roll upon the same terms as their predecessors, prevailed at length to get copies of it, for their security. Proofs of this remarkable transformation from tenants in villenage to copy- holders are found in the reign of Heury III. ; and in that of Edward IV. the judges permitted the copy-holder to bring his action of trespass against the lord for dispossession. While some of the more fortunate villeins crept up into property as well as freedom under the name of copy-holders, the greater part enfranchised themselves in a different man- ner. The law which treated them so harshly did not take away the means of escape ; nor was this a matter of difficulty in such a country as England, To this, indeed, the unequal progression of agriculture and' population in different counties would have naturally contributed. Men emigrated, as they always must, in search of cheapness or employment, accord- ing to the tide of human necessities. But the villein, who had no additional motive to urge his steps away from his native |)lace, might well hope to be forgotten or undiscovered when he breathed a freer air, and engaged his voluntary labor to a distant master. The lord had indeed an action against him ; but there was so little communication between remote parts of the country that it might be deemed his fault, or singular ill-fortune, if he were compelled to defend himself. Even in that case the laAV inclined to favor him ; and so many obstacles were thi'own in the way of these suits to reclaim fugitive villeins, that they could not have operated materially to retard their general enfranchisement. In one case, indeed — tliat of unmolested residence for a year and a day within a walled English Const. liEGULATlON OF WAGES. 523 city or borough — the villein became free, and the lord was absolutely barred of his remedy. This provision is contained even in the laws of "William the Conqueror, as contained in Hoveden, and, if it be not an interpolation, may be supposed to have had a view to strengthen the j^upulatioii of those places which were designed for garrisons. This law, whether of William or not, is unequivocally mentioned by Glanvil. By such means, a large proportion of the peasantry before the middle of the fourteenth century had become hired la- borers instead of villeins. We first hear of them on a grand scale in an ordinance made by Edward III. in the twenty- third year of his reign. This was just after the dreadful pestilence of 1348, and it recites that, the number of work- men and servants having been greatly reduced by that ca- lamity, the remainder demanded excessive wages from their employers. Such an enhancement in the price of labor, though founded exactly on the same principles as regulate the value of any other commodity, is too frequently treated as a sort of crime by lawgivers, who seem to grudge the poor that transient melioration of their lot which the progress of population, or other analogous circumstances, will, without any interference, very rapidly take away. This ordinance, there- fore, enacts that every man in England of whatever condition, bond or free, of able body, and within sixty years of age, not living of his own, nor by any trade, shall be obliged, when required, to serve any master who is willing to hire him at such wages as were usually paid three years since, or for some time preceding ; provided that the lords of villeins or tenants in villenage shall have the preference of their labor, so that they retain no more than shall be necessary for them. IVIore than these old wages is strictly forbidden to be offered, as well as demanded. No one is permitted, under color of charity, to give alms to a beggar. And, to make some compensation to the inferior classes for these severities, a clause is inserted, as wise, just, and practicable as the rest, for the sale of provis- ions at reasonable prices. § 29. This ordinance met with so little regard that a statute was made in Parliament two years after, fixing the wages of all artificers and husbandmen with regard to the nature and season of their labor. From this time it became a frequent complaint of the Commons that the statute of laborers was not kept. The king had in this case, probably, no other reason for leaving their grievance uiiredressed than his inability to change the order of Providence. A silent alteration had been '524 POPULAR OUTBREAKS. Chap. VIII. Part III. wrought in the condition and character of the lower classes during the reign of Edward III. This was the effect of in- creased knowledge and refinement, which had been making a considerable progress for full half a century, though they did not readily permeate the cold region of poverty and ignorance. It was natural that the country people, or up- landish folk, as they were called, should re})ine at the exclu- sion from that enjoyment of competence and security for the fruits of their labor which the inhabitants of towns so fully possessed. The fourteenth century was, in many parts of Europe, tlie age when a sense of political servitude was most keenly felt. Thus the insurrection of the Jacquerie in France, about the year looS, had the same character, and resulted in a great measure from the same causes, as that of the English l^easants in 1382. And we may account in a similar manner for the democratical tone of the French and Flemish cities, and for the prevalence of a spirit of liberty in Germany and Switzerland.^" I do not know whether we should attribute part of this revolutionary concussion to the preaching of Wicliff's disci- ples, or look upon both one and the other as phenomena be- longing to that particular epoch in the j^rogress of society. New principles, both as to civil rule and religion, broke sud- denly upon the uneducated mind, to render it bold, presump- tuous, and turbulent. But at least I make little doubt that the dislike of ecclesiastical power, which spread so rapidly among the people at this season, connected itself with a spirit of insubordination and an intolerance of political subjection. ])Oth Avere nourished by the same teachers, the lower secular clergy ; and -however distinct we may think a religious refor- mation from a civil anarchy, there was a good deal common in the language by which the populace were inflamed to either one or the other. Even the scriptural moralities Avhich were then exhibited, and Avhich became the foundation of our theatre, afforded fuel to the spirit of sedition. The common original and common destination of mankind, Avith every other lesson of equality which religion supplies to humble or to console, Avere displayed with coarse and glaring features in these representations. The familiarity of such ideas has deadened their effects upon our minds ; but Avhen a rude peasant, surprisingly destitute of religious instruction during that corrupt age of the Church, was led at once to these impressive truths, Ave cannot be astonished at tlie intoxication of mind they produced. 33 Note II. " Popular Poetry." English Const. MANUMISSION OF VILLEINS. 525 The storm that almost swept away all bulwarks of civilized and regular society seems to have been long in collecting itself. Perhaps a more sagacious legislature might have contrived to disperse it ; but the Commons only presented complaints of the refractoriness with which villeins and tenants in villenage rendered their due services ; and the exigencies of government led to the fatal poll-tax of a groat, which was the proximate cause of the insurrection. By the demands of these rioters we perceive that territorial servitude was far from extinct ; but it should not be hastily concluded that they were all personal villeins, for a large proportion were Kentishmen, to whom that condition could not have applied ; it being a good bar to a writ de nativitate probanda that the party's father was born in the county of Kent. After this tremendous rebellion it might be expected that the legislature Avould use little indulgence towards the lower commons. Such unhappy tumults are doubly mischievous, not more from the immediate calamities that attend them than from the fear and hatred of the people which they gen- erate in the elevated classes. The general charter of manu- mission extorted from the king by the rioters of Blackheath was annulled by proclamation to the sheriffs, and this revo- cation approved by the Lords and Commons in Parliament ; who added, as was very true, that such enfranchisement could not be made Avithout their consent ; " which they would never give to save themselves from perishing all together in one day." Eiots were turned into treason by a law of the same Parliament. By a very harsh statute in the 12th of Richard II. no servant or laborer could depart, even at the expiration of his service, from the hundred in which he lived without per- mission under the king's seal ; nor might any who had been bred to husbandry till twelve years old exercise any other calling. A few years afterwards the Commons petitioned that villeins might not put their children to school in order to advance them by the Church ; " and this foi' the honor of all the freemen of the kingdom." In the same Parliament they complained that villeins fly to cities and boroughs, whence their masters cannot recover them, and, if they attempt it, are hindered by the people ; and prayed that the Lords might seize their vil- leins in such places without regard to the franchises thereof. But on both these petitions the king put in a negative. From henceforward we find little notice taken of villenage in Parliamentary records, and there seems to have been a rapid tendency to its entire abolition. 626 EEIGN OF llENliY VI. Chap. VIII. Takt III. § 30. I cannot presume to conjecture in what degree vol- untary manumission is to be reckoned among the means that contributed to the abolition of villenage. Charters of enfran- chisement were very common upon the Continent. They may j)erhaps have been less so in England. Instances, however, occur from time to time, and we cannot expect to discover many. One appears as early as the fifteenth year of Henry III., who grants to all persons born or to be born within his village of Contishall, tliat they shall be free from all villenage in body and blood, paying an aid of twenty shillings to knight tlie king's eldest son, and six shillings a year as a quitrent. So in the twelfth of Edward III. certain of the king's villeins are enfranchised on payment of a fine. In strictness of law, a fine from the villein for the sake of enfranchisement was nugatory, since all he could possess was already at his lord's disposal. But custom and equity might easily introduce dif- ferent maxims ; and it Avas plainly for tlie lord's interest to en- courage his tenants in the acquisition of money to redeem themselves, ratiier than to quench the exertions of their indus- try by availing himself of an extreme right. Deeds of enfran- chisement occur in the reigns of Mary and Elizabeth; and perhaps a commission of tlie latter princess in 1574, directing the enfrancldsement of her bondmen and bondwomen on certain manors upon payment of a fine, is the last unequivocal testimony to the existence of villenage ; though it is highly probable that it existed in remote parts of the country some time longer. § 31. From this general view of the English constitution, as it stood about the time of Henry VI., we must turn our eyes to tlie political revolutions which clouded the latter years of his reign. The minority of this prince, notwithstanding the vices and dissensions of his court and the inglorious dis- comfiture of our arms in France, was not perhaps a calamitous period. The country grew more wealthy ; the law was, on the whole, better observed ; the power of Parliament more com])lete and effectual than in preceding times. But Henry's weakness of understanding becoming evident as he reached manhood, rendered his reign a perpetual minority. His marriage with a princess of strong mind, but ambitious and vindictive, rather tended to weaken the government and to accelerate his down- fall — a certain reverence tliat had been paid to the gentleness of the king's disposition being overcome by her unpopularity. By degrees Henry's natural feebleness degenerated almost into fatuity ; and this unhappy condition seems to have overtaken English Const. HISTORICAL INSTANCES. 527 liim nearly about the time when it became an ardnons task to withstand the assult in preparation against his government. This may properly introduce a great constitutional subject, to which some peculiar circumstances in the reign of George III. imperiously directed the consideration of Parliament. Though the proceedings of 1788 and 1810 are undoubtedly precedents of far more authority than any that can be derived from our ancient history, yet, as the seal of the legislature has not yet been set upon this controversy, it is not perhaps altogether beyond the possibility of future discu^ion ; and at least it can- not be uninteresting to look back on those parallel or analo- gous cases by which the deliberations of Parliament upon the question of regency were guided. § 32. While the kings of England retained their Continental dominions, and were engaged in the wars to which those gave birth, they were of course frequently absent from this country. Upon such occasions the. administration seems at first to have devolved officially on the justiciary, as chief servant of the crown. But Henry III. began the practice of appointing lieutenants, or guardians of the realm (custodes regni), as they were more usually termed, by way of temporary substitutes. They were usually nominated by the king without consent of I^arliament ; and their office carried with it the right of exer- cising all the prerogatives of the crown. The most remarkable circumstance attending those lieutenancies was that they were sometimes conferred on the heir-apparent during his infancy. The Black Prince, then duke of Cornwall, was left guardian of the realm in 1339, when he was but ten years old ; and Rich- ard his son, when still younger, in 1372, during Edward III.'s last expedition into Prance. These do not, however, bear a very close analogy to re- gencies in the stricter sense, or substitutions during the natural incapacity of the sovereign. Of such there had been several instances before it became necessary to supply the de- ficiency arising from Henry's derangement. 1. At the death of John, William, earl of Pembroke, assumed the title of rec- tor regis et regni, with the consent of the royal barons who had just proclaimed the young king, and probably conducted the government in a great measure by their advice. But the circumstances were too critical, and the time is too remote, to give this precedent any material weight. 2. Edward I. being in Sicily at his father's death, the nobility met at the Temple Church, as we are informed by a contemporary writer, and, after making a new great seal, appointed the Archbisliop of 528 HISTORICAL INSTANCES Chap. VIII. Part III. York, Edward, earl of Cornwall, and the Earl of Gloucester, to be ministers and guardians of the realm ; who accordingly con- ducted the administration in the king's name until his return.^* It is here observable that the Earl of Cornwall, though nearest prince of the blood, was not supposed to enjoy any superior title to the regency, wherein he was associated witli two other persons. But while the crown itself was hardly acknowledged to be unquestionably hereditary, it would be strange if any notion of such a right to the regency had been entertained. 3. At the accession of Edward III., then fourteen years old, the Parliament, which was immediately summoned, nominated four bishops, four earls, and six barons as a standing council, at the head of which the Earl of Lancaster seems to have been placed, to advise the king in all business of government. It was an article in the charge of treason, or, as it was then styled, of accroaching royal power, against Mortimer, that he intermeddled in the king's household without the assent of his council. '-They may be deemed, tlierefore, a sort of Parlia- mentary regency, though the duration of their functions does not seem to be defined. 4. The proceedings at the commence- ment of the next reign are more worthy of attention. Edward III. dying June 31, 1377, the keepers of the great seal next day, in absence of the chancellor beyond sea, gave it into the young king's hands before his council. He immediately de- livered it to the Duke of Lancaster, and the duke to Sir Nicholas Bode, for safe custody. Eour days afterward the king in council delivered the seal to the Bishop of St. David's, who affixed it in the same day to divers letters patent, llichard was at this time ten years and six months old ; an age certainly very unfit for the personal execution of sovereign authority. Yet he was supposed cajiable of reigning witliout the aid of a regency. This miglit be in virtue of a sort of magic ascribed by lawyers to the great seal, the possession of which bars all furtlier intpury, and renders any government legal. The ju-actice of modern times requiring the constant exercise of the sign-manual has made a public confession of incapacity neces- sary in many cases where it might have been concealed or overlooked in earlier periods of the constitution. But though no one was invested with the office of regent, a council of twelve was named by the prelates and peers at the king's coronation, July 16, 1377, without whose concurrence no public measure was to be carried into effect. I have men- tioned in another place the modifications introduced from time S"" Matt. Westmonast. :ip Brady's History of England, vol. ii., p. 1. English Const. OF REGENCIES. 529 to time l)y Parliament, Avliich might itself be deemed a great council of regency during the first years of Richard. (See p. 459.) 5. The next instance is at the accession of Henry VI. This prince was but nine months old at his father's death; and whether from a more evident incapacity for the conduct of government in his case than in that of Richard II., or from the progress of constitutional principles in the forty years elapsed since the latter's accession, far more regularity and deliberation were shown in supplying the defect in the ex- ecutive authority. Upon the news arriving that Henry V. was dead, several lords spiritual and temporal assembled, on account of the imminent necessity, in order to preserve peace, and provide for the exercise of offices appertaining to the king. These peers accordingly issued commissions to judges, sheriffs, escheators, and others, for various purposes, and writs for a new Parliament. This was opened by commission under the great seal directed to the Duke of Gloucester, in the usual form, and with the king's teste. Some ordinances were made in this Parliament by the Duke of Gloucester as commissioner, and some in the king's name. The acts of the peers who had taken on themselves the administration, and summoned Par- liament, were confirmed. On the twenty-seventh day of its session, it is entered upon the roll that the king, " considering his tender age, and inability to direct in person the concerns of his realm, by assent of Lords and Commons, appoints the Duke of Bedford, or, in his absence beyond sea, the Duke of Gloucester, to be protector and defender of the kingdom and English Church, and the king's chief counsellor." Letters patent were made out to this effect, the appointment being, however, expressly during the king's pleasure. Sixteen coun- cillors were named in Parliament to assist the protector in his administration; and their concurrence was made necessary to the removal and a|)pointment of officers, except some inferior patronage specifically reserved to the protector. This arrange- ment was in contravention of the late king's testament, which had conferred the regency on the Duke of Gloucester, in ex- clusion of his elder brother. But the nature and spirit of these proceedings will be better understood by a remarkable passage in a roll of a later Parliament ; where the House of Lords, in answer to a request of Gloucester that he might know what authority he possessed as protector, remind him that in the first Parliament of the king — " Ye desired to have li ad ye governaunce of yis land; affermyng yat hit hclonged unto you of rygzt, as well by ye niene of your birth as by ye lasts 530 HISTORICAL REGENCIES. Chap. VIII. Part III. wylle of ye kyng yat was your broyer, whome God assoile; alleggyng for you such grouodes and moty ves as it was yought to your discretion made for your intent; wliereupon, the hirds spiritual and temjioral assembled there in Parliament, among which were there my lordes your uncles, the Bishop of Winchester that now liveth, and the Duke of Exeter, and your cousin the Earl of March that be gone to (Jod, and ol Warwick, and other in great number that now live, had great and long deliberation and advice, searched precedents of the governail of the land in time and case semblable, when kings of this land have been tender of age, took also information of the laws of the land, of such persons as be notably learned therein, and llnally found your said desire not caused nor grounded in precedent, nor in the law of the land; the which the king that dead is, in his life nor might by his last will nor otherwise altre, change, nor abroge, without the assent of the three estates, nor commit or grant to any person governance or rule of this land longer than lie lived; but on that other behalf, the said lords found your said desire not according with the laws of this land, and against the right and fredome of the estates of the same land. Howe were it that it be not thought that any such thing wittingly proceeded of your intent; and never- theless to keep peace and tranquillity, and to the intent to ease and appease you, it was advised and appointed by authority of the king, assenting the three estates of this land, that ye, in absence of my lord your brother of Bed- ford, should be chief of the king's council, and devised unto you a name dif- ferent from other counsellors, not the name of tutor, lieutenant, governor, nor of regent, nor no name that should import authority of governance of the land, but the name of protector and defensor, which Imiiorteth a personal duty of attendance to the actual defense of the land, as well against enemies outward, if case required, as against rebels inward, if any were, that God forbid; granting you therewith certain power, the which is specified and contained in an act of the said Parliament, to endure as long as it liked the king. In the which, if the intent of the said estates had been that ye more power and authority should have had, more should have been expressed therein: to the which appointment, ordinance, and act, ye then agreed you as for your person, making nevertlieless protestation that it was not your intent in any wise to deroge or do prejudice unto my lord your brother of Bedford by your said agreement, as toward any right that he would pretend or claim in the governance of this land; and as toward any pre-eminence that you might have or belong unto you as chief of council, it is jtlainly declared in the said act and articles, subscribed by my said lord of Bedford, by your- self and the other lords of the council. But as in I'arliament to which ye be called upon your faith and ligeance as Duke of Glocester, as other lords be, and not otherwise, wo know no power nor authority that ye have, other than ye as Duke of Glocester should have, the king being hi rarliament, at years of most discretion: "We marvailing with all our hearts that, consider- ing the open declaration of the authority and power lielonging to my lord of Bedford and to you in his absence, and also to the king's council sub- scribed purely and simply by my said lord of Bedford and by you, that you should in any wise be stirred or moved not to content you therewith or to pretend you any other: Namely, considering that the king, blessed be our lord, is, sith the lime of the said power granted unto you, far gone and grown in person, in wit, and understanding, and like with the grace of God to occupy his own royal {)ower within few years; and forasmuch considering the things and causes .abovesaid, and other many that long were to write, We lords aforesaid pray, exhort, and reqitire you to content you with the power above- said and declared, of the which my lord your brother of Bedford, the king's eldest tmcle, contented him : and that ye none larger power desire, will, nor use: giving you this that is aboven written for our answer to your foresaid demand, the which we will dwell and abide with, witliouten variance or changing. Over this beseeching and praying you in our most humble and lowly wise, and also requiring you in the king's name, that ye, according to the king's commandment, contained in his writ sent unto you in that behalf, come to this his present Parliament, and intend to the good effect and speed English Const. DUKE OP YORK PROTECTOR. 531 of matters to be cleinosned and treted in the same, like as of riglit ye owe to do." — Hot. Pari., 6 Henry VI., vol. iv., p. o2G. It is evident tliat this plain, or rather rude, address to the Duke of Gloucester was dictated by the prevalence of Car- dinal Beaufort's party in council and Parliament. But the transactions in the former Parliament are not unfairly repre- sented ; and, comparing them with the passage extracted above, we may perhaps be 'entitled to infer : 1. That the king does not possess any constitutional prerogative of appointing a regent during the minority of his successor ; and 2. That neither the heir presumptive, nor any other person, is entitled to exercise the royal prerogative during the king's infancy (or, by parity of reasoning, his infirmity), nor to any title that conveys them ; the sole right of determining the persons by whom, and fixing the limitations under which, the executive government shall be conducted in the king's name and behalf, devolving upon the great council of Parliament. In two years the party hostile to Gloucester's influence had gained ground enough to abrogate his office of pro- tector, leaving only the honorary title of chief counsellor. For this the king's coronation, at eight years of age, was thought a fair pretence. The government was conducted as before by a selfish and disunited council ; but the king's name was sufticient to legalize their measures, nor does any objec- tion appear to have been made in Parliament to such a mockery of the name of monarchy. In the year 1454, the thirty-second of Henry's reign, his unhappy malady, transmitted perhaps from his maternal grandfather, assumed so decided a character of derangement or imbecility, that Parliament could no longer conceal from itself the necessity of a more efficient ruler. An act was passed accordingly, constituting the Duke of York pro- tector of the Church and kingdom, and chief counsellor of the king, during the latter's pleasure ; or until the Prince of Wales should attain years of discretion, on whom the said dignity was immediately to devolve. It may be conjectured by the provision made in favor of the Prince of Wales, then only two years old, that the king's con- dition was supposed to be beyond hope of restoration. But in about nine months he recovered sufficient speech and recollec- tion to supersede the Duke of York's protectorate. The suc- ceeding transactions are matter of familiar, though not, perhaps, very perspicuous history. The king was a prisoner in his enemies' hands after the affair at St. Albans, when Parliament met, in July, 1455. In this session little was done except 532 YORK'S CLAIM TO THE CROWN. Chap. VIII. Pakt III. I'enewing tlie strongest oaths of allegiance to Henry and liis family. But tlie two houses meeting again after a prorogation to November 12, during which time the Duke of York had strengthened his party, he was reappointed to his charge of protector. It is worthy of notice that in this transaction the House of Peers assumed an exclusive right of choosing the pro- tector, though, in the act passed to ratify their election, the Commons' assent, as a matter of course, is introduced. The last year's precedent was followed in the present instance, except- ing a remarkable deviation ; instead of the words " during the king's pleasure," the duke was to hold his office "until he should be discharged of it by the Lords in Parliament." This extraordinary clause, and the slight allegations on which it was thought fit to substitute a vicegerent for the reigning monarch, are sufficient to prove, even if the common historians were silent, that whatever passed as to this second protectorate of the Duke of York was altogether of a revolu- tionary com])lexion. In the actual circumstances of civil blood already spilled, and the king in captivity, we may justly won- der that so much regard was shown to the regular forms and precedents of the constitution. But the duke's natural modera- tion will account for part of this, and the temper of the Lords for much more. That assenibly ai)pears for the most part to have been faithfully attached to the house of Lancaster. The partisans of Richard were found in the Commons and among the populace. Several months elapsed after the victory of St. Albans before an attempt was thus made to set aside a sov- ereign, not laboring, so far as we know, under any more notori- ous infirmity than before. It then originated in the Commons, and seems to have received but an uuAvilling consent from the upper house. Even in constituting the Duke of York pro- tector over the head of Henry, whom all men despaired of ever seeing in a state to face the dangers of s\\q\\ a season, the liOrds did not forget the rights of his son. By this latter instrument, as well as by that of the preceding year, the duke's office was to cease upon the Prince of Wales arriving at the age of discretion. § 33. But what had long been proitagated in secret soon became familiar to the public ear — that the Duke of York laid claim to the throne. He was unquestionably heir general of the royal line, through his mother, Anne, daughter of Roger Mortimer, earl of March, son of Phili])|)a, daughter of Lionel, duke of Clarence, third son of Edward III. Roger Mortimer's eldest son, Edmund, had been declared heir presumptive by English Const. YORK'S CLAIM TO THE CROWN. 533 Richard II.; but his infancy during tlie revolution that placed Henry IV. on the throne had caused his pretensions to be passed over in silence. The new king, however, was induced, by a jealousy natural to his situation, to detain the Earl of March in custody. Henry V. restored his liberty ; and, though he had certainly connived for a while at the conspiracy planned by his brother-in-law, the Earl of Cambridge, and Lord Scrope of Masham, to place the crown on his head, that magnanimous prince gave him a free pardon, and never testilied any dis- pleasure. The present Duke of York was honored by Henry VI. with the highest trusts iu France and Ireland, such as Beaufort and Gloucester could never have dreamed of confer- ring on him if his title to the crown had not been reckoned obsolete. It has been very pertinently remarked that the crime perpetrated by Margaret and her counsellors in tlie death of the Duke of Gloucester was the destruction of the house of Lancaster. Erom this time the Duke of York, next heir in presumption while the king was childless, might inno- cently contemplate the pros])ect of royalty ; and when such ideas had long been ]3assing through his mind, we may judge how reluctantly the birth of Prince Edward, nine years after Henry's marriage, would be admitted to disturb them. The queen's administration unpopular, careless of national interests, and partial to his inveterate enemy, the Duke of Somerset ; the king incapable of exciting fear or respect, himself conscious of powerful alliances and universal favor — all these circum- stances combined could hardly fail to nourish those opinions of hereditary right which he must have imbibed from his infancy. The Duke of York preserved through the critical season of rebellion such moderation and humanity that we may par- don him that bias in favor of his own pretensions to which he became himself a victim. Margaret, perhaps, by her san- guinary violence in the Coventry Parliament of 14()(), where the duke and all his adherents were attainted, left him not the choice of remaining a subject with impunity. P)ut with us, who are to weigh these ancient factions in the balance of wisdom and justice, there should be no hesitation in decid- ing that the house of Lancaster were lawful sovereigns of England. I am, indeed, astonished that not only such histo- rians as Carte, who wrote undisguisedly upon a Jacobite sys- tem, but even men of juster principles, have been inadvertent enough to mention the right of the house of York. If the original consent of the nation, if three descents of the crown, 534 WAR OF THE ROSES. Chap. VIII. PaetIII. if repeated acts of Parliament, if oaths of allegiance from tlie whole kingdom, and more particularly from those who now advanced a contrary pretension, if undisturbed, u.nquestioned possession during sixty years, could not secure the reigning family against a mere defect in their genealogy, when were the people to expect tranquillity ? Xo prejudice has less in its favor, and none has been more fatal to the peace of man- kind, than that which regards a nation of subjects as a family's private inheritance. The law of England has been held to annex the subject's fidelity to the reigning monarch, by whatever title he may have ascended the throne, and whoever else may be its claimant.^^ But the statute of the eleventh of Henry VII., c. 1, has furnished an uneqiuvocal commentary upon this principle, when, alluding to the con- demnations and forfeitures by which those alternate successes of the white and red roses had almost exhausted the noble blood of England, it enacts that " no man for doing true and faithful service to the king for the time being be convict or attaint of high treason, nor of other offences, by act of Par- liament or otherwise." Though all classes of men and all parts of England were divided into factions by this unhappy contest, yet the strength of the Yorkists lay in London and the neighboring counties, and generally among the middling and lower people. And this is what might naturally be expected. For notions of hereditary right take easy hold of the populace, who feel an honest sympathy for those whom they consider as injured; while men of noble birth and high station have a keener sense of personal duty to their sovereign, and of the baseness of deserting their allegiance. Notwithstanding the wide- spreading influence of the Nevils, most of the nobility were well affected to the reigning dynasty. They acquiesced re- luctantly in the second protectorate of the Duke of York after the battle of St. Albans. Thirty-two temporal peers took an oath of fealty to Henry and his issue in the Coventry Par- liament of 14G(), which attainted the Duke of York and the earls of Warwick and Salisbury. And in the memorable circumstances of the duke's claim personally made in Parlia- ment, it seems manifest that the Lords complied not only Avith hesitation but unwillingness, and iu fact testified their respect and duty for Henry by confirming the crown to him during his life. The rose of Lancaster blushed upon the ban- ners of the Staffords, the Percies, the Veres, the Hollands, and "5 Hale's Pleas of the Crown, vol. i., pp. 01, 101 (edit. 17.36). English Const. EDWAUD IV. 535 the Courtneys. All these illustrious families lay crushed for a time under the ruins of their party. But the course of for- tune, which has too great a mastery over crowns and sceptres to be controlled by men's affection, invested Edward IV. with a possession which the general consent of the nation both sanctioned and secured. This was effected in no slight degree by the furious spirit of Margaret, who began a system of extermination by acts of attainder and execution of prisoners that created abhorrence, though it did not prevent imitation. And the barbarities of her Northern army, whom she led towards London after the battle of Wakefield, lost the Lan- castrian cause its former friends, and might justly convince reflecting men that it were better to risk the cliances of a new dynasty than trust the kingdom to an exasperated faction. § 34. A period of obscurity and confusion ensues, during which we have as little insight into constitutional as general history. There are no contemporary chroniclers of any value, and the rolls of Parliament, by whose light we have hitherto steered, become mere registers of private bills, or of petitions relating to commerce. The reign of Edward IV. is the first during which no statute was passed for the redress of griev- ances or maintenance of the subject's liberty. Nor is there, if I am correct, a single petition of this nature upon the roll. The reign of Edward IV. was the reign of terror. One half of the noble families had been thinned by proscription ; and though generally restored in blood by the reversal of their at- tainders — a measure certainly deserving of much approbation — were still under the eyes of vigilant and inveterate enemies. Besides the severe proceedings against the Lancastrian party, which might be extenuated by the common pretences — retalia- tion of similar proscriptions, security for the actual govern- ment, or just punishment of rebellion against a legitimate heir — there are several reputed instances of violence and barbarity in the reign of Edward IV. which have not such plausible excuses. Every one knows the common stories of the citizen who was attainted of treason for an idle speech that he would make his son heir to the crown, the house where he dwelt ; and of Thomas Burdett, who wished the horns of his stag in the belly of him who had advised the king to shoot it. Of the former I can assert nothing, though I do not believe it to be accurately reported. But certainly the accusation against Bur- dett, however iniquitous, was not confined to these frivolous words ; which, indeed, do not appear in his indictment, or in a passage relative to his conviction in the roll of Parliament. 536 EDWARD IV. Chap. VIII. Pakt III. Burdett was a servant and friend of the Dnke of Clarence, and sacriticed as a preliminary victim. It was an article of charge against Clarence that he had attempted to persuade the people that " Thomas Burdett, his servant, which was laAvfully and truly attainted of treason, was wrongfully put to death." There could, indeed, be no more opi)ressive usage inflicted upon meaner persons than this attainder of the Duke of Clarence — an act for which a brother could not be pardoned, had he been guilty, and which deepens the shadow of a tyrannical age, if, as it seems, his offence towards Edward was but levity and rashness. But whatever acts of injustice we may attribute, from au- thority or conjecture, to Edward's government, it was very far from l3eing unpopular. His love of i)leasure, his affability, his courage and beauty, gave him a credit with his subjects which he had no real virtue to challenge. This restored him to the throue, even against the prodigious influence of Warwick, and compelled Henry VII. to treat his memory with respect, and acknowledge him as a lawful king. The latter years of his reign were passed in repose at home after scenes of unparalleled convulsions, and in peace abroad after more than a century of expensive warfare. He was the first who practised a new method of taking his subjects' money without consent of Par- liament, under the plausible name of benevolences. These came in place of the still more plausible loans of former mon- archs, and were principally levied on the wealthy traders. Though no complaint appears in the Parliamentary records of his reign, which, as has been observed, complain of nothing, the illegality was undoubtedly felt and resented. In Richard III.'s only Parliament an act was passed which, after reciting in the strongest terms the grievances lately endured, abrogates and annuls forever all exactions under the name of benevolence. The liberties of this country were at least not directly impaired by the usurpation of Richard ; but from an act so deeply tainted with moral gujlt, as well as so violent in all its circum- stances, no substantial benefit was likely to spring. Whatever difficulty there may be in deciding upon the fate of Richard's nephews after they were immured in the Tower, the more public parts of the transaction bear unequivocal testimony to his ambitious usurpation. ^^ Jt would, therefore, be foreign to 36 The long-debatt'd question as to the murder of Edward and his brother seems to me moro probably solved on the common supposition tliat it was really perpetrated by the orders of Richard, than on that of Walpole, Carte, Henry, and Laing, who maintain that the Dulve of Yorli, at least, was in some way released from the Tower, and reappeared as Perkin Warbeck. J3ut a very strong conviction either way is not readily attainable. English Const. CONCLUSION. 537 the purpose of this chapter to dwell ujion his assumption of the regency, or upon the sort of election, however curious and remarkable, Avhich gave a pretended authority to his visur- pation of the tlirone. Neither of these has ever been alleged by any party in the way of constitutional precedent. § 35. At this epoch I terminate these inquiries into the English constitution. From the accession of the house of Tudor a new period is to be dated in our history, far more prosperous in the diffusion of opulence and the preservation of general order than the preceding, but less distinguished by the spirit of freedom and jealousy of tyrannical power. We have seen, through the twilight of our Anglo-Saxon records, a form of civil policy established by our ancestors, marked, like the kindred governments of tlie Contiiient, with aboriginal Teu- tonic features ; barbarous indeed, and insufficient for the great ends of society, but capable and worthy of the improvement it has received, because actuated by a sound and vital si)irit. the love of freedom and of justice. From these principles arose that venerable institution, which none but a free and simiile people could have conceived, trial by peers — an institution common in some degree to other nations, but which, more widely extended, more strictly retained, and better modihed among ourselves, has become perhaps the first, certainly among the first, of our securities against arbitrary government. We have seen a foreign conqueror and his descendan'^s trample almost alike upon the prostrate nation and upon those who had been companions of their victory, introduce the servitudes of feudal law with more than their usual rigor, and establish a large revenue by continual precedents upon a system of univer- sal and prescriptive extortion. But the Norman and English races, each unfit to endure oppression, forgetting their animos- ities in a common interest, enforce by arms the concession of a great charter of liberties. Privileges wrested from one faith- less monarch are preserved with continual vigilance against the machinations of another; the rights of the people become more precise, and their spirit more magnanimous, during the long reign of Henry III. With greater ambition, and greater al)ilities than his father, Edward I. attempts in vain to govern in an arbitrary manner, and has the mortification of seeing his prerogative fettered by still more important limitations. The great council of the nation is opened to the representatives of the Commons. They proceed by slow and cautious steps to remonstrate against })ublic grievances, to check the abuses of administration, and sometimes to chastise public delinquency 538 CONCLUSION. Pabt IIL in the officers of the crown. A nnmber of remedial provisions are added to the statutes ; every Englishman learns to remem- ber that he is the citizen of a free state, and to claim the com- mon law as his birthright, even though the violence of power should interrupt its enjoyment. It were a strange misrepre- sentation of history to assert that the constitution had attained anything like a perfect state in the lifteenth century ; but I know not whether there are any essential privileges of our coun- trymen, any fundamental securities against arbitrary power, so far as they depend upon positive institution, which may not be traced to the time when the house of Plantagenet filled the English throne. NOTES TO CHAPTER VIII. 539 NOTES TO CHAPTER VIII. — Part III. I. MUNICIPAL RIGHTS OF LONDON. London was from a very early period, divided into wards, answering to liun- dreds in the county; eacli liaviug its own ward- mote, or leet, under its elected alder- man. " The city of London, as well with- in the walls, as its liberties without the walls, has been divided from time im- memorial into wards, bearing nearly the same relation to the city tliat the hundred anciently did to the shire. Each ward is, for certain purposes, a distinct jurisdic- tion. The organization of the existing municipal constitution of the city is, and always has been, as far as can be traced, entirely founded upon the ward system." (Introduction to the French Chronicle of London. — Camden Society, 1844.) But the portreeve of London, their principal ma- gistrate, appears to have been appointed by the crown. It was not till 1188, the year before the death of Henry II., that Henry Fitzalwyn, ancestor of the present Lord Beaumont,* became the first mayor of London. But he also was nominated by the crown, and remained twenty-four years in otfice. In the same year the first sheriffs are said to have been made {fac- ti). But Jolin, immediately after his" ac- cession in ll'J9, granted the citizens leave to choose their own sheriffs. And his charter of 1215 permits them to elect an- nually their mayor. (Maitland's Hist, of Loudon, pp. 74, 70.) We read, however, under the year 1200, in the ancient chron- icle previously quoted, that twenty-five of the most discreet men of the city were chosen and sworn to advise for the city, togetlier with the mayor. These were ev- idently different from the aldermen, and are the original common council of the city. They were perhaps meant in a later entry (1229) : " Omnes aldermanni et mag- nates civitatis per assensum universorum civium,"who are said to have agreed nev- er to permit a sheriff to remain iu office durhig two consecutive years. The city and liberties of London were not wholly under the jurisdiction of the several wardmotes and their aldermen. * Thia pedigree ia elaborately traced by Mr. Stapleton, in hia excellent introiluction to the old chronicle of London, al- ready quoted. The name Alwyn appears rather Saion than Norman, ao that we may presume the first mayor to have been of English descent ; but whether be were a merchant, or a land-owner living in the city, must he unilecided. Land-holders, secular and ecclesiastical, possessetl their exclusive sokes, or juris- dictions, in parts of both. One of these has left its name to the ward of Portso- ken. The prior of the Holy Trinity, in right of tills district, ranked as an alder- man, and held a regular ward-inote. The wards of Farringtion are denomi- nated from a family of that name, who held a part of them by hereditary right as their territorial franchise. These sokes gave way so gradually before the power of the citizens, with whom, as may be supposed, a perpetual conflict was main- tained, that there were nearly thirty of them in the early part of the reign of Henry III., and upward of twenty in that of Edward I. With the e.\ception of Port- soken, they were not commensurate with the city wards, and we find the juries of the wards in the third of Edward I., pre- senting the sokes as liberties enjoyed by private persons or ecclesiastical corpora- tions to the detriment of the crown. But, though the lords of these sokes trenched materially on the exclusive privileges of the city, it is remarkable that, no condi- tion but inhabitancy being required in the thirteenth century for civic franchises, both they and their tenants were citizens, having individually a voice iu municipal affairs, though exempt from municipal ju- risdiction. I have taken most of this paragraph from a valuable thougli short notice of the state of Lonilon in the thir- teenth century, published in the fourth vol- ume of the Archajological Journal (p. 273). The inference whicli suggests itself from these facts is that London, for more than two centuries after the Conquest, was not so exclusively a city of traders, a demo- cratic municipality, as we have been wont to conceive. And as this evidently ex- tends back to the Anglo-Saxon period, it both lessens the improbability that the citizens bore at times a part in political affairs, and exhibits them in a new light, as lords and tenants of lords, as well as, what of course tliey were in part, engaged in foreign and domestic commerce. It will strike everyone in running over tlielistof mayors and sheriffs in the thirteenth cen- tury, that a large proportion of the names are French; indicating, perhaps, that the territorial proprietors whose sokes were intermingled with the citv had influence enougli, through birtli and wealth, to ob- 540 NOTES ON CHAPTEIl VIII. tain an election. The general polity, Sax- on and Norman, was aristocratic; what- ever infusion there might be of a more popular sclieme of government, and much certainly tliere was, could not resist, even if resistance had been always the people's desire, the joint predominance of ranlc, riches, military liabits, and common al- liance, whicli the great baronage of the realm enjoyed. London, nevertheless, from its populousness, and the usual cliaracter of cities, was the centre of a democratic power, wliich, bursting at times into precipitate and needless tumult easily rei)ressed by force, kept on its silent course till, near the end of tlie thirteenth century, tlie rights of the citizens and burgesses in the legislature were consti- tutionally established. II. POPULAR POETKY. ^ The public history of Europe in the Middle Ages inadequately represents the popular sentiment, or only wlien it is ex- pressed too loudly to escape the regard of writers intent sometimes on less impor- tant subjects. But when we descend below the surface, a sullen murmur of discontent meets the ear, and we perceive that man- kind was not more insensible to wrongs and sutlerings than at present. Besides tlie various outbreakings of the peojile in several counties, and their comphiints in I'arliament, after the Commons obtained a rej)resentation, we gain a conchisive in- siglit into the spirit of tlie times by tlieir popular poetry. Two very interesting col- lections of this kind have been published bv the Camden .Society : one, tlie poems attributed to Walter Mapes; the other, the Political .Songs of England, from John to Edward II. Mapes lived under Henry II., and has long been known as the reputed author of humorous Latin verses; but it seems much more probable that the far greater part of the collection lately printed is not from liis liand. They may pass, not for the production of a single person, but rather of a class, during many years, or, in general words, a century, ending witli the death of Ilenrv III. in IL'7'.'. Many of them are professedly written by an iinagi- liarv (iolias. " Phcx' are not the expressions of hos- tility of one man against an order of monks, but of the indignant patriotism of a considerable portion of the English nation ao-ainst the encroachments of civil and ec(•ll'^iastical tvranny." — (Introduc- tion to I'oems ascril)ed to Walter Mapes, p. 21.) Tlie poems in this collection reflect almost entirely on tlie pope and the higher clergv. They are all in rhvming Latin, and chiefly, though with exceptions, in the loose trochaic metre called Leonine. The authors, therefore, must have been clerks, actuated by the spirit which, in a church of great inequality in its endowments, and with a very numerous body of poor clergy, is apt to gain strength, but certainly, as ecclesiastical history bears witness, not one of mere envious malignity towards the prelates and the court of Konie. These deserved nothing better, in the thirteenth century, than biting satire and indignant reproof, and the poets were willing enough to bestow both. But this popular ])oetry of the Middle Ages did not contine itself to the Church. In the collection entitled "Political Songs " we have some reflecting on Henry III., some on the general administration. The famous song on the battle of Lewes, in 12C4, is the earliest in English ; but in the reign of Edward I. several occur in that language. Others are in French or in Latin ; one complaining of the ta.xes is in an odd mi.xtureof these two languages; which, indeed, is not without other exam- ples in media'val poetry. These Latin songs could not, of course, have been gen- erally understood. But what the priests sung in Latin, they said in English; the lower clergy fanned the flame, and gave utterance to what others felt. It may, perhaps, be remarked, as a proof of gen- eral sympathy with the democratic spirit wliich was then ferinenting, that we have a song of exultation on the great defeat which Philip IV. had just sustained at Courtrai, in 1302, by the burgesses of the Flemish cities, on whose liberties he had attempted to trample (p. 1S7). It is true that Edward I. was on ill terms with France, but the political interests of the king would not, perhaps, have dictated the popular ballad. Some of the political songs are written in France, though relating to our kings .John and Henry III. Deducting these, we have two in Latin for the former reign; seven in Latin, three in French (or what the editor calls Anglo-Norman, which is really the same thing), one in a mixture of the two, and one in English, for the reign of Henry III. In the reigns of Edward 1. and Edward II. we have eight in Latin, three in French, nine in English, and four in mixed languages — a style employed probably for amusement. It'must be observed that a large propor- tion of these songs contain panegyric and exultation on victory rather than satire; and that of the satire much is general, and much falls on the Church; so that the animadversions on the king and the no- bility are not very freipient, though with considerable boldness; hut this is more shown in the Latin than the English poems. NOTES ON CHAPTER VIII. 541 ORIGINAL DOCUMENTS. I. CHARTER OF LIBERTIES OF HENRY I. Anno Incarnationis Doniinicae jrCI". Hknuicus fu-ius \Vii,i,i;lmi itucis jiost obituni fratris sui W'illcliiii, Dt'i gratia rex Aiiglorum, omnibus lirius domiiius rex, si in terra fuerit, con- veniatur, vel .lustitia ejus, si fuerit extra regnum, ut rectum de ipso facial et ita ut ipiod pertiuebit ad curiam regiam ibidem terminetur, et de eo quod spectabit ad ecclesiasticam curiam, ad eaudem mitta- tur ut ibidem tractetur. Cap. viii. De appilhilionibus si emerse- rint, ab archidiai-oiM ilcbent jirocedere ad episcopum.ab episcojio ail aicliiepiscopum. Et si archiepiscopus defecerit in justitia exhibenda, ad domiuuin regem perveni- endum est postremo, ut praecepto ipsius in curia archiepiscopi controversia ter- minetur, ita quod non debet ulterius pro- cedere absque assensu domini regis. Cap. ix. .Si calumnia emerserit inter elericum et laicum, vel inter laicum et clericum, de ullo tenemento quod clericus ad eleemosinam velit attraliere, laicus vero ad laicum feudum, recognitione duodecim legalium homiiium, per eapitalis .Justitiae regiseoiisjderationem terniinabitur,utrum teneineiitiiin sit pertinens ad eleemosiiiain sive ad laicum feudum coram ipso .lustitia regis. Et si recognifum fuerit ad eleemo- sinam pertinere, iilacitum erit in curia ecclesiastica, si vero ad laicum feudum, nisi ambo de eodem episcopo vel barone advocaverint.erit placitum in curia regia. Sed si uterque advoc.averit de feudo illo ante eundem episcopum vel baroncm, erit placitum in curia i|)sius; ita quod propter factam recognitioneni seisinam non aniit- tat, qui prior seisitus fuerat, donee per placitum dirationatuiu fuerit. NOTES ON" CHAPTER VITT. 543 Cap. X. Qui de civitate, vel burgo, vel douiinlco niaiierio doiiiini regis fiiei'it, si ab arcliidiacono vel episcopo super aliquo delicto citatus fuerit, uiide debeat eisdem respondere et ad citationes eoruin satis- facere noluerit, bene licet eum sub iiiter- dicto pouere, sed non debet exconiinuiii- cari priusquani capitalis minister domini regis villae illius conveniatur, et justiciet eum ad satisfactionem venire. Et si mi nister regis inde defecerit, ipse erit in misericordia domini regis, et exinde pote- rit episcopus ipsum accusatum ecclesias- ticii justitia cohibere. Cap. xi. Archiepiscopi, episcopi, et uni- versae personae regni, qui de rege tenent in capita, habent possessiones suas de domino rege sicut baroniam, et' inde re- spondent justitiis et ministris regis, et sequuntur et faciunt omnes rectitudines et cousuetudines regias, et sicut barones ceteri, debent interesse judiciis curiae domini regis cum barouibus, usque dam perveniatur in judicio ad dimiiiutiouem membrorum vel mortem Cap. xii. Cum vacaverit arcliiepiscopa- tus, vel episcopatus, vel abbatia, vel prio- ratus de dominio regis, debet esse in manu ipsius, et inde percipiet omnes reditus et e.\itus sicut dominicos. Et cum ventum fuerit ad consulendum ecclesiae, debet dominus re.x mandare potiores personas ecclesiae, et in capella ipsius domini regis debet fieri electio assensu domini regis et consilio personarum regni, quas ad hoc faciendum vocaverit. Et ibidem faciet electus homaglum et fidelitatem domino regi sicut ligio domino, de vita sua et de membris et de lionore suo terreno, salvo ordine suo, priusquam sit consecratns. Cap xiii. Si quiscjuam de proceribus regni defortiaverit archiepiscopo, vel cjiis copo, vel archidiacono, de se xcl de suis justitiara exhibere,d(jminus rex delict eos justiciare. Et si forte uli(juis (icfditiasi-rit domino regi rectituiil)licalus jjro saisina quam liabet, eat ad aquam. 1:$. Et si aliquis fuerit recognoscens coram legal ibus hominibus vel hundred is de roberia vel niurdro vel latrocinio vel de reoeptione eorum, et postea negare voluerit, non habeat legem. 14. Vult etiam dominus rex quod ipsi qui facient legem suam et nniiiili erant |)cr legem, si ipsi fuerint de pessinio teslimo- nio, et piiblice et turpiter ditl'Mniati ti'sti- monio multoruin et iegalimn liominum, foras jureiit terras regis, ita quod intra viii. dies mare transibunt, nisi aura eos ilctinuerit; et cum prima aura (piam lia- bebuiit )>oste,i mare transibunt, et ultra in Angliam non revertentur nisi per miscri- cordiam doniini regis: et il)i sint utlagati et si redierent; et si redierint capiantur sicut utlagati. 15. Et prohibet dominus rex ne aliquis vaivus, id est vagus vel ignotus, hospite- tur alicubi nisi in burgo, et ibi non hospi- tetur nisi una nocte nisi ibi intirmetur, vel equus ejus, ita quod monstrare possit monstrabile essouium. 16. Et si ibi fuerit plusquam una nocte, capiatur ille et teneatur donee dominus ejus venerit ad eam plegiandum, vel donee ipse habeat salvos plegios; et ille similiter capiatur qui hospitatus fuerit. 17. Et si aliquis vicecomes mandaverit alii vicecomiti quod homines fugerint de comitatu suo in alium comilatum pro roberia vel pro murdro vel latrocinio vel receptione eorum, vel pro utlagia vel pro retta forestae regis, ille capiat eos : et etiam si per se vel per alios sciat quod ta- les homines fugerint in eomitatum suum, capiat eos et custodial donee deeis habeat salvos plegios. 18. Kt omnes vicecomites faciant inbre- viari omnes fugitivos, qui fugerint de suis comitatibus; et hoc faciant coram comi- tatibus, et illoruni nomina scripta porta- bunt ante .lustitias cum primo ad illos venerint, ut illi quaerantur per totam An- gliam, et eorum catalla capiantur ad opus regis. 19. Et vult dominus rex quod ex quo vicecomites susceperint summonitiones Justitiarura errantium, ut ipsi cum comi- tatibus suis sint ante illos, ipsi congrega- bunt comitatus suos et inquirent omnes qui de novo venerint in suos comitatus post banc assisani ; et illos mittent per plegios, quod erunt coram Justitias, vel illos custodient, donee Justitiae ad eos venerint, et tunc habebunt coram Justi- tias. 20. Prohibet etiam dominus rex ne mo- nachi vel canonici vel aliqua domus religi- onum reeipiant alicjueni de pojjulo minuto in monachiim vel oanonicum vel fratrem, donee sciatur de quali testimonio ipse fue- rit, nisi ipse fuerit iulirmus ad mortem. 21. Prohibet etiam dominus rex, quod nullus in tola .\nglia recei)tet in terra sua vel soca sua vel domo sub se, aliquem de secta illoruni renegatorum qui excommu- nicati et signal i fuerunt apud Oxeneforde. Rt si quis eos receperit, ipseerit inmiseri- cordia domini regis; et domus, in qua illi fuerint portetur extra villam et combura- tur. Et hoc junibit unus(|uisque viceco- mes quod hoc tenebit, et hoc jurare faciet omnes ministros suos, et dapiferos baro- num, et omnes milites et franco tenentes de comitatibus. 22. Et vult dominus rex quod haec assisa teneatur in regno suo (juamdiu ei placuerit. — (" M. S. Bodl. Kawlinson," C. 641.) IV. MAONA OHARTA. Johannes He! gratia rex Angliae, do- minus Hyberniae, dux Normanniae et A(|nitanniae, comes Andegaviae, archie- piscopis, e))iscopis, abbatibus, eomitibus, baronibus, justiciariis, forestariis, viceco- mitibus, praepositis, miuistris et omnibus NOTES ON CHAPTER VIII. 545 ballivis et fldelibus suis salutem. Sciatis nos intuitu Dei et pro salute auiiiiae uos- trae et oiiiuium antecessorum et haereduin nostrorum, ad lionorem Dei et exaltatio- uem sanctae ecclesiae, et emendationem regiii nostri, per concilium venerabilium patrum nostrorum, Stephaiii Oantuarien- sis archiepiscopi totius Angliae priuiatis et sanctae Komanae ecclesiae eardinalis, Henrici Dublinensis arcliiepisclle auxilium. 10. Nullus distringatur ad faciendum inajus servitium de feodo militis, nee de alio libero tenemento, (jtlam inde debetur. 17. Communia placita non seijuantur curiam nostram sed teneantur in aliquo loco certo. 18. Recognitiones de nova dissaisina, de morte antecessoris, et de ultima praesen- tatione, non capiantnr nisi in suis comi- tatiljus et hoc modo; nos, vel si extra rcgnnm fuerimus, capitalis justiciarius lioster, mitteinus duos justiciarios per unumquemque comitatum per qiiatuor vices in anno, qui, cum quatuor militibus cnjusllbet ooinitatus electis per comita- tum, capiaiit in comitatu et in die et loco comitatus assisas praedictas. ly. Et si in die comitatus assisae prae- dictae capi non possint, tot milites et libere tenentes remaneant de illis qui in- terfuerint comitatui die illo, per quos pos- sint judicia sufficienter fieri, secundum quod negotium fuerit majus vel minus. 20. Liber homo non amercietur ])ro parvo delicto, nisi secundum modum tle- licti; et pro magno delicto amercietur secundum magnitudinem delicti, salvo conteuemeuto suo; et mercator eodem modo salva mercandisa sua; et villanus eodem modo amercietur salvo wainnagio suo, si inciderint in misericordiam nos- tram; et nulla praedictarum misericordi- arum ponatur, nisi per sacramentum pro- borum hominum de visneto. 21. Comites et barones non amercientur nisi per pares suos, et non nisi secundum modum delicti. 22. Nullus clericus amercietur de laico tenemento suo, nisi secundum modum aliorum praedictorum, et non secundum quantitatem beneficii sui ecchsiastici. 23. Nee villa nee homo distringatur facere pontes ad riparias, nisi qui ab anti- quo et de jure facere debent. 24. Nullus vicecomes, constabularius, coronatores. vel alii ballivi nostri, teneaut placita eoronae nostrae. 25. Omnes comitatus, hundredi, wapen- takii, et trethingii siiit ad antiquas tirmas absque ullo incremento, exceptis domiui- cis maneriis nostris. 26. .Si aliquis tenens de nobis laicum feodum moriatur,et vicecomes vel ballivUs noster ostendat litteras nostras patentes de summonitione nostra de debito quod defuiictus nobis debuit, liceat viceconiiti vel ballivo nostro attachiare et inbreviare catalla defuncti inventa in laico feodo, ad vaU iiliaiM illius debiti, per visum legalium lioMiinum, ita tamen quod nihil inde amo- veatur, donee persolvatur nobis debitum quod clariim fuerit; et residuum relinqmu fur executoribus ad faciendum testanien- tum defuncti; et, si nihil nobis debeatur ab ipso, onmia catalla cedaiit defuncto, salvis uxori ipsius etpueris rationabilibus partibus suis. 27. Si aliquis liber homo intestatus de- cesserit, catalla sua per manus |)ropinquo- rum i)arentiim et amicoruin suoriim, per visum ecclc^iiae di.-^tribuantnr, salvis uni- cuique debitis quae defnnclus ei debebat. 28. Nullus constabularius, vel alius bal- livus noster, capiat blada vel alia catalla alicujus, nisi statim inde reddat denai ios, aut respectum inde liabere possit de voluu- tate venditoris. 29. Nullus constabtdarius distringat ali- quem militem ad dat negotium sine eo, ita quod, si aliquis vel aliqui de praedictis viginti quinque baioiiihus fuerint in si- mili ({uerela, amoveantur quantum ad hoc judicium, et alii loco illorum per residuos de eisdem viginti (iuinle that we have confirmed them in all poiids, and that our justices, sheriffs, mayors, and other ministers which under us have the laws of our land to guiile, shall allow the said charters pleaded before them in jiulg- ment in all their points ; that is, to wit, the Great Charter as the common law and the (Charter of the lorest according to the As- size of the Forest, for the wealth of our realm. II. And we will that if any judgment be given from henceforth, contrary to the points of the charters aforesaid, by the justices or by any other our ministers that hold plea before them against the points of the charters, it shall be undone and liolden for naught. III. And we will that the same charters shall be sent under our seal to cathedral churches throughout our realm, there to remain, and shall be read before the peo- ple two times by the year. IV. And that all archbishops and bishops shall pronounce the sentence of great ex- ccnnmnnication against all those that by wold, or deed, or counsel, do contrary to the foresaid charters, or that in any point break or undo them. And tliat the said curses be f wiee a vear denounced and pub- lished by the prelates aforesjiid. And if the same prelates or any of them be remiss in the denunciation of the said sentences, the Archbishoi)S of Canterbury and York for the time being, as is fitting, shall com- pel and distrain them to make tliat denun- ciation in form aforesaid. 550 NOTES ON CHAPTER VIII. V. And for so much as divers people of our realm are in fear that the aids and tasks which they have given to us before- time towards our wars and other business, of their own grant and good-will, howso- ever they were made, might turn to a bond- age to them and their heirs, because they miglit be at another time found in the rolls, and so likewise the prizes taken throiigliout the reahn by our ministers; we have granted for us and our heirs, that we shall not draw such aids, tasks, nor prizes into a custom, for anything that hatli been done heretofore or tliat may be found by roll or in any other manner. VI. Moreover, we have granted for us and our heirs, as well to archbishops, bishops, abbots, priors, and other folk of holy Church, as also to earls, barons, and to all the commonalty of the land, that for no business from henceforth will we take such mannerof aids, tasks, nor prizes, but by the common assent of the realm, and for the common profit thereof, saving the ancient aids and prizes due and accus- tomed. Vir. And for so much as the more part of the commonalty of the realm find them- selves sore grieved with the maletote of wools; that is, to wit, a toll of forty shil- lings for every sack of wool, and have made petition to us to release the same; we, at their requests, have clearly released it, and have granted for us and our heirs that we shall not take such thing nor any other without their common assent and good-will; saving to us and our heirs the custom of wools, skins, and leather grant- ed before by the commonalty aforesaid. In witness of which things we have caiisid these our letters to be made patent. Wit- ness Edward our son at London, the 10th day of October, the five and twentieth year of our reign. And be it remembered that this same charter in the same terms, word for word, was sealed in Flanders under the king's great seal, that is to say, at Ghent, the 5th day of November, in the 25t1i year of the reign of our aforesaid lord the king, and sent into England. — (" Statutes of the Reahn," i., 124, 125.) VI. SUMMONS TO THK PARLIAMENT OF 1265. Item mandatum est singulis vicecomiti- bus per Angliam quod venire faciant duos milites de legalioribus, probioribus et dis- cretioribus militibns sing:ulorum comita- tuum ad regem Londoniis in octavis prae- dictis in forma supradicta. Item in forma praedicta scribiturcivibus Eboraci, civibus, Lincolniae, et ceteris bur- gis Angliae, quod mittant in forma prae- dicta duos de discretioribus, legalioribus et probioribus tam civibus quam burgen- sibus. Item in forma praedict.i mandatum est baronibus et probis hominibus Quinque rortuum. . . . — (" Report on the Dignity of a Peer," App. 1., p. .33.) State of Society. INTKODUCTIOJ^". 551 CHAPTER IX. ON THE STATE OF SOCIETY IN EUROPE DURING THE MIDDLE AGES. PART I. § 1. Introduction. § 2. Decline of Literature in the latter period of the Roman Empire. § 3. Its Causes. § 4. Corruption of the Latin Laiijjuage : Means by wliicli it was effected. §5. Formation of new I^anguages. § 6. General Ignorance of the Darlc Ages. § 7. Causes tliat prevented the total Extinction of Learning. § s. l^revalence of Superstition and Fanaticism. §9. Enthusiastic Risings. §10. Pretended Jliracles. § 11. General Corruption of Religion. § 12. Monasteries: their ettects. § 13, Penances, Pilgrimages. § 14. Want of law', and Degredation of Morals. 15. § Love of Field Sports. § 16. .St.ate of Agriculture. § 17. Of In- ternal and Foreign Trade down to the End of the Eleventh Century. § 18. Improvement of Europe dated from that Age. § 1. The Middle Ages, according to the division I have adopted, comprise about one thousand years, from the invasion of France by ChDvis to that of Naples by Charles VIII. This period, considered as to the state of society, has been esteemed dark through ignorance, and barbarous through poverty and want of refinement. And although this character is much less applicable to the last two centuries of the period than to those which preceded its commencement, yet we cannot expect to feel, in respect of ages at best imperfectly civilized and slowly progressive, that interest which attends a more perfect develop- ment of human capacities, and more brilliant advances in im- provement. The first moiety, indeed, of these ten ages is almost absolutely barren, and presents little but a catalogue of evils. The subversion of the Roman Empire and devastation of its provinces by barbarous nations, either immediately pre- ceded, or were coincident with, the commencement of the middle period. We begin in darkness and calamity ; and though the shadows grow fainter as we advance, yet we are to break off our pursuit as the morning breathes upon us and the twilight reddens into the lustre of day. § 2. No circumstance is so prominent, on the first survey of society during the earlier centuries of this period, as the depth of ignorance in which it was immersed ; and as from this, more than any single cause, the moral and social evils 552 DECLINE OF LEARNING Chap. IX. Pakt I. which those ages experienced appear to have been derived and perpetuated, it deserves to occupy the first place in the arrange- ment of our present subject. We must not altogether ascribe the ruin of literature to the barbarian destroyers of the Roman Empire. So gradual and, apparently, so irretrievable a decay had long before spread over all liberal studies, that it is im- possible to pronounce whether tliey would not have been almost equally extinguished if the august throne of the Caisars had been left to moulder by its intrinsic weakness. Under the paternal sovereignty of Marcus Aurelius the approaching declension of learning might be scarcely perceptible to an in- curious observer. There was much, indeed, to distinguisli his times from those of Augustus ; much lost in originality of genius, in correctness of taste, in the masterly conception and consummate finish of art, in purity of the Latin, and even of the Greek language. But there were men who made the age famous ; grave lawyers, judicious historians, wise philoso- phers ; the name of learning was honorable, its professors were encouraged ; and along the vast surface of the Roman Empire there w^as perhaps a greater number whose minds were culti- vated by intellectual discipline than under the more brilliant reign of the first emperor. § 3. It is not, I think, very easy to give a perfectly satis- factory solution of the rapid downfall of literature between the ages of Antonine and of Diocletian. Perhaps the prosper- ous condition of the empire from Trajan to Marcus Aurelius, and the patronage which those good princes bestowed on letters, gave an artificial health to them for a moment, and suspcmded the operation of a disease which had already begun to undermine their vigor. Perhaps the intellectual energies of mankind can never remain stationary; and a nation that ceases to produce original and inventive minds, born to ad- vance the landmarks of knowledge or skill, will recede from step to step, till it loses even the secondary merits of imita- tion and industry. During the third century, not only there were no great writers, but even few names of indifferent writers, have been recovered by the diligence of modern in- (piiry. Law neglected, philosophy perverted till it became contemptible, history nearly silent, the Latin tongue growing rapidly barbarous, poetry rarely and feebly attempted, art more and more vitiated ; such were the symptoms by wdiich the age previous to Constantino announced the decline of human intellect. If we cannot fully account for this unhappy change, as I have observed, we must, however, assign much. State of Society. IN THE llOMAN EMPIRE. 553 weight to the degradation of Rome and Italy in the system of Severus and his successors, to the admission of barbarians into the military and even civil dignities of the empire, to the discouraging influence of provincial and illiterate sovereigns, and to the calamities which followed for half a century the first invasion of the Goths and the defeat of Decius. To this sickly condition of literature the fourth century supplied no permanejit remedy. If under the house of Constantine the Eoman world suffered rather less from civil warfare or bar- barous invasions than in the preceding age, yet every other cause of decline just enumerated prevailed with aggravated force ; and the fourth century set in storms, sufficiently de- structive in themselves, and ominous of those calamities which humbled the majesty of Home at the commencement of the ensuing period, and overwhelmed the Western Em})ire in absolute and final ruin before its termination. The diffusion of literature is ])erfectly distinguishable from its advancement ; and whatever the obscurity Ave may find in explaining the variations of the one, there are a few simple causes which seem to account for the other. KnoAvledge will be spread over the surface of a nation in proportion to the facilities of education ; to the free circulation of books ; to the emoluments and distinctions which literary attainments are found to produce ; and still more to the reward which they meet in the general respect and applause of society. This cheering incitement, the genial sunshine of approbation, has at all times promoted the cultivation of literature in small republics rather than large empires, and in cities compared with the country. If these are the sources which nourish literature, we should naturally expect that they must have become scanty or dry when learning languishes or expires. Accordingly, in the later ages of the Eoman Empire a general indifference towards the cultivation of letters became the characteristic of its inhabitants. Laws were, indeed, enacted by Constantine, Julian, Theodosius, and other emperors, for tlie encouragement of learned men and the promotion of liberal education. But these laws, which would not, perhaps, have been thought necessary in better times, were unavailing to counteract the lethargy of ignorance in which even the native citizens of the empire were contented to repose. This alienation of men from their national literature may doubtless be imputed in some measure to its own demerits. A jargon of mystical philosophy, half fanaticism and half imposture, a barren and inflated eloquence, a frivolous philology, were not 554 DECLINE OF LEARNING Chap. IX. Part I. among those charms of Avisdom by which man is to be diverted from pleasure or aroused from indolence. In this temper of the public mind there was little probability that new compositions of excellence would be produced, and much doubt whether the old would be preserved. Since the invention of printing, the absolute extinction of any consider- able work seems a danger too improbable for apprehension. The press pours forth in a few days a thousand volumes, which, scattered like seeds in the air over the republic of Europe, could hardly be destroyed without the extirpation of its inhabitants. But in the times of antiquity manuscripts were copied with cost, labor, and delay ; and if the diffusion of knowledge be measured by the multiplication of books — no unfair standard — the most golden ages of ancient learning could never bear the least comparison with the three last centuries. The destruction of a few libraries by accidental lire, the desolation of a few provinces by uns])aring and illit- erate barbarians, miglit annihilate every vestige of an author, or leave a few scattered copies, which, from the public indif- ference, there was no inducement to multiply, exposed to similar casualties in succeeding times. AVe are warranted by good authorities to assign as a col- lateral cause of this irretrievable revolution the neglect of heathen literature by the Christian Church. I am not versed enough in ecclesiastical writers to estimate the degree of this neglect ; nor am I disposed to deny that the mischief was be- yond recovery before the accession of Constantine. From the primitive ages, however, it seems that a dislike of pagan learning was pretty general among Christians. Many of the fathers undoubtedly were accomplished in liberal studies, and we are indebted to them for valuable fragments of authors whom we have lost. But the literary character of the Church is not to be measured by that of its more illustrious leaders. Proscribed and persecuted, the early Christians had not, perhaps, access to the public schools, nor inclination to studies which seemed, very excusably, uncongenial to the character of their profession. Their prejudices, however, sur- vived the establishment of Christianity. The Fourth Council of Carthage, in 398, prohibited the reading of secular books by bishops, Jerome plainly condemns the study of them except for pious ends. All physical science especially was held in avowed contempt, as inconsistent with revealed truths. Nor do there appi^ar to have been any canons made in favor of learning, or any restriction on the ordination of persons State OF Society. IN THE ROMAN EMPIRE. 555 absolutely illiterate. There was, indeed, abundance of what is called theological learning displayed in the controversies of the fourth and fifth centuries ; and those who admire such disputations may consider the principal champions in them as contributing to the glory, or, at least, retarding the decline, of literature. But I believe rather that polemical disputes will be found not only to corrupt the genuine spirit of religion, but to degrade and contract the faculties. What keenness and subtlety these may sometimes acquire by such exercise is more like that worldly shrewdness we see in men whose trade it is to outwit their neighbors than the clear and calm discrimina- tion of philosophy. However this may be, it cannot be doubted that the controversies agitated in the Church during these two centuries must have diverted studious minds from profane literature, and narrowed more and more the circle of that knowledge which they Avere desirous to attain. The torrent of irrational superstitions which carried all before it in the fifth century, and the progress of ascetic en- thusiasm, had an influence still more decidedly inimical to learning. I cannot, indeed, conceive any state of society more adverse to the intellectual improvement of mankind than one which admitted of no middle line between gross dissolute- ness and fanatical mortification. An equable tone of pul)lic morals, social and humane, verging neither to voluptuousness nor austerity, seems the most adapted to genius, or at least to letters, as it is to individual comfort and national prosperity. After the introduction of monkery, and its unsocial theory of duties, the serious and reflecting part of mankind, on whom science most relies, were turned to habits which, in the most favorable view, could not quicken the intellectual energies ; and it miglit be a difficult question whether the cultivators and admirers of useful literature were less likely to be found among the profligate citizens of Kome and their barbarian conquerors, or the melanclioly recluses of the wilderness. Su.ch, therefore, was the state of learning before the sub- version of the Western Empire. And we may form some notion how little probability there was of its producing any excellent fruits, even if that revolution had never occurred, by considering Avhat took place in Greece during tlie subsequent ages ; where, although there v-^as some attention shown to pre- serve the best monuments of antiquity, and diligence in com- piling from them, yet no one original writer of any superior merit arose, and learning, though plunged but for a short period into mere darkness, may be said to have languished in 556 COKKUPTION OF LATIN. Chap. IX. Takt I. the middle region of twilight for the greater part of a thousand years. But not to delay ourselves in this speculation, the final set- tlement of barbarous nations in Gaul, Spain, and Italy con- summated the ruin of literature. Their first irruptions were uniformly attended with devastation ; and if some of the Gothic kings, after their establishment, proved humane and civilized sovereigns, yet the nation gloried in its original rude- ness, and viewed with no unreasonable disdain arts which had neither preserved their cultivators from corruption nor raised them from servitude. Theodoric, the most famous of the Ostrogoth kings in Italy, could not write his name, and is said to have restrained his countrymen from attending those schools of learning by which he, or rather perhaps his minis- ter, Cassiodorus, endeavored to revive the studies of his Italian subjects. Scarcely one of the barbarians, so long as they con- tinued unconfused witli the native inhabitants, acipiired the slightest tincture of letters ; and tlie praise of equal ignorance was soon aspired to and attained by the entire mass of the Roman laity. They, however, could hardly have divested tliemselves so completely of all acquaintance with even the elements of learning, if the language in which books were written had not ceased to be their natural dialect. This re- markable change in the speech of France, Spain, and Italy, is most intimately connected with the extinction of learning ; and there is enough of obscurity as well as of interest m the subject to deserve some discussion. § 4. It is obvious, on tlie most cursory view of the French and Spanish languages, that they, as well as the Italian, are derived from one common source, the Latin. That must, therefore, have been at some period, and certainly not since the establishment of the barbarous nations in S])ain and Gaul, substituted in ordinary use for the original dialects of those countries which are generally supposed to have been Celtic, not essentially differing from those which are spoken in Wales and Ireland. Rome, says Augustin, imposed not only her yoke, but her language, upon conquered nations. The suc- cess of such an attempt is indeed very remarkable. Though it is the natural effect of conquest, or even of commercial intercourse, to ingraft fresh words and foreign idioms on the stock of the original language, yet the entire disuse of the latter, and adoption of one radically different, scarcely takes place in the lapse of a far longer period than that of the Roman dominion in Gaul. Thus, in part of Brittany the State of bociETV. ANCIENT LATIN rilONUNCIATION. 557 people speak a language which has perhaps sustained no es- sential alteration from the revolution of two thousand years ; and we know how steadily another Celtic dialect has kept its ground in Wales, notwithstanding English laws and govern- ment and the long line of contiguous frontier which brings the natives of that principality into contact with Englishmen. Nor did the Romans ever establish their language (I know not whether they wished to do so) in this island, as we per- ceive by that stul)born British tongue which has survived two conquests. In Gaul and in Spain, however, they did succeed, as the present state of the French and Peninsular huiguages renders undeniable, though by gradual changes, and not by a sudden and arbitrary innovation. This is neither possible in itself, nor agreeable to the testimony of Irenteus, bishop of Lyons at the end of the second century, who laments the necessity of learning Celtic. But although the inhabitants of these prov- inces came at length to make use of Latin so completely as their mother tongue that few vestiges of their original Celtic could perhaps be discovered in their common s])eech, it does not follow that they spoke with the pure pronunciation of Italians, far less with that conformity to the written sounds which we assume to be essential to the expression of Latin words. It appears to be taken for granted that the Eomans pro- nounced their language as we do at present, so far at least as the enunciation of all the consonants, however we may admit our deviations from the classical standard in propriety of sounds and in measure of time. Yet the example of our own language and of French might show us that orthogray)hy may become a very inadequate representative of pronunciation. It is, indeed, capable of proof that in the purest ages of Latinity some variation existed between these two. Those numerous changes in spelling which distinguished the same words in the poetry of Ennius and of Virgil are best explained by the sup- position of their being accommodated to the current pronuncia- tion. Harsh combinations of letters, softened down through delicacy of ear or rapidity of utterance, gradually lost their place in the written language. Thus exfrpf/it and adrorjavit assumed a form representing their more liquid sound ; and aurtor was latterly spelt atitor, which has been followed in French and Italian. Aufor was probably so pronounced at all times ; and the orthography was afterwards corrected or cor- rupted, whichever we please to say, according to the sound. 658 COHKUPTION OF Chap. IX. Taut I. We have the best authority to assert that the fiual m was very faintly pronounced, ratlier, it seems, as a rest and short inter- val between two syllables than an articulate letter ; nor, in- deed, can we conceive upon what other ground it was subject to elision before a vowel in verse, since we cannot suppose that the nice ears of Eouie would have submitted to a capri- cious rule of poetry for which Greece presented no analogy.^ A decisive proof, in my opinion, of the deviation which took place, through the ra})idity of ordinary elocution, from the strict laws of enunciation, may be found m the metre of Terence. His verses, which are absolutely refractory to the common laws of prosody, may be readily scanned by the appli- cation of this principle.^ The licenses mentioned in the note below are in all jiroba- bility chiefly collorpiial, and would not have been adopted in public harangues, to which the precepts of rhetorical writers commonly relate. But if the more elegant language of the Romans, since such we must suppose to have been copied by Terence for his higher characters, differed so much in ordinary discourse from their orthography, it is probable that the vul- gar went into much greater deviations. The popular pro- nunciation errs generally, we might say perhaps invariably, by abbreviation of words, and by liquofyiug (consonants, as is natural to the rapidity of colloquial speech.^ It is by their knowledge of orthography and etymology that the more ' Affino radoiti ilia litem, qunf ies ultima est, et vocalom vorhi spqiientis ita enntin- pit, lit in <>am traiisirc jjossit, ctiam si sorihitnr, taiiicn iiaruiii expriniitur, iit Multum ille. et Qvantiirn ernt : adeo iit ppiie ciijusdam iiova> liteiM' sonum rcddat. Neque eniin exiinitur, sed olispuratur. et taiitiun aliqua inter duos vocales velut nota est, ne ips;c coeant. — Quintilian, Institut.. 1 ix., c. 4, p. 585, edit. Capperonier. ' 2 Thus, in the tirst act of the " llcautniitiiuoruinenos," a part selected at random, I have found, F. Vowels contracted or drojiped so as 1o shorten the word bv a syllable ; in rei, rifi, rlhithiR, ei. soJiiix, earn, iinijis, sitnm, dirifinf:. srvex, vnhtptatem, iUiiis, scmel: IT. The proceleusmatic foot, or four shoi't s\ll:ibles, instead of the dnctyl ; seen, i., V. .W. 7n, 7fi, SS, 109; seen. ii.. v. .30: TTT. The elision of s in words endin? with US or ix short, and sometimes even of the whole svll.ablc, before the next word be.a-in- niuff with a vowel; in seen, i., v. 30, SI, OS. 101. 11 fi, 110; seen, ii., v. 2S : IV. The first svlhible of ille is repeatedly shortened, and indeed nothin.a' is more usual in Terence th.an this license ; whence we niav collect how rindv this word was for abbreviation into the French and Italian articles: V. The Inst letter of apiid is cut off, seen. i.. v. 120; and seen, ii., v. 8: VI. Uodie, is used as n pyrrhichius, in seen, ii., v. 11: VII. I.astl V, there is a clear instance of a short syll.nble, the ante|icmiltiniate of impulerim, lengthened on account of the accent at the 113th verse of the first scene. ■' The following passage of Quintilian is an evidence both of the omission of harsh or superfluous letters by the best speakers, and of the corrupt nbl)revi:itions usual with the worst. " Dilucida vero erit pronuneiatio primuni, si verba tota exegerit, quorum pars devorari, pars destitui solet. plerisque extremas sylhibas non profe- rentibus, dum priorum sono indulgent. Ut est autem necessaria verborum expla- nntio. ita omnes coiuputare et velut adnumerare litems, molestum et odiosum. Nam et vocales frequentissime coeunt, et eonsonantium qu.Tdam insequente vocali dis- simulautiir ; utriusque exemplum posuimus: IMultum ille et terris. Vitafur etiam duriorum inter se con.gressus, unde pellexii, et colic ff it et qua; alio loco dicta sunt." — L, ii., c. 3, p. 696. State OF SociETV. LATIN PRONUNCIATIOK. 559 educated part of the community is preserved from these corrupt modes of prouunciation. Tiiere is always, tlierefore, a standard by wliicli common speech may be rectified, and in })roportion to the diffusion of knowledge and politeness the deviations from it will be more slight and gradual. But in distant provinces, and especially where the language itself is but of recent introduction, many more changes may be ex- pected to occur. Even m France and England there are pro- vincial dialects which, if written with all their anomalies of pronunciation as well as idiom, would seem strangely out of unison with the regular language ; and in Italy, as is well known, the varieties of dialect are still more striking. Now, in an advancing state of society, and especially with such a vigorous political circulation as we experience in England, language will constantly ap})roximate to uniformity, as provin- cial expressions are more and more rejected for incorrectness or inelegance. But where literature is on the decline, and public misfortunes contract the circle of those who are solici- tous about refinement, as in the last ages of the Eoman Empire, there will be no longer any definite standard of living speech, nor any general desire to conform to it if one could be found ; and thus the vicious corruptions of the vulgar will entirely predominate. The niceties of ancient idiom will be totally lost, while new idioms will be formed out of violations of gram- mar sanctioned by usage, Avhich, among civilized people, would have been proscribed at their appearance. Such appears to have been the ])rogress of corruption in the Latin language. The adoption of words from the Teutonic dialects of the barbarians, which took })lace very freely, would not of itself have destroyed the character of that language, thougli it sullied its purity. The worst law Latin of the Middle Ages is still Latin, if its barbarous terms have been bent to the regular inflections. It is possible, on the other hand, to write whole pages of Italian wherein every word shall be of unequivocal Latin derivation, though the character and person- ality, if I may so say, of the language be entirely dissimilar. But, as I conceive, the loss of literature took away the only check upon arbitrary pronunciation and upon erroneous gram- mar. Each people innovated through caprice, imitation of their neighbors, or some of those indescribable causes wliich dispose the organs of different na,tions to different sounds. The French melted down the middle consonants, the Italians omitted the final. Corruptions arising out of ignorance were mingled with those of pronunciation. It would have been marvellous 560 PRONUNCIATION NOT REGULATED Chap. IX. Part I. if illiterate and h\'iiii-barl>arous pru\'iiu'ials had preserved that delicate precision in using the inflections of tenses which our best scholars do not clearly attain. The common speech of any people whose language is highly complicated will be full of solecisms. The French inflections are not comparable in num- ber or delicacy to the Latin, and yet the vulgar confuse their most ordinary forms. But, in all probability, the variation of these derivative lan- guages from popular Latin has been considerably less than it appears. In the purest ages of Latinity the citizens of Rome itself made use of many terms which we deem barbarous, and of many idioms which we should reject as modern. That highly complicated grammar which the best writers employed was too elliptical and obscure, too deficient in the connecting parts of speech, for general use. We cannot, indeed, ascertain in what degree the vulgar Latin differed from that of Cicero or Seneca. It would be higldy absurd to imagine, as some are said to have done, that modern Italian was spoken at Rome under Augustus. But I believe it may be asserted not only that much the greater part of those words in the present language of Italy which strike us as incapable of a Latin etymology are in fact derived from those current in the Augustan age, but that very many phrases which oifended nicer ears prevailed in the same ver- nacular speech, and have passed from thence into the modern French and Italian. Such, for example, was the frequent use of prepositions to indicate a relation between two parts of a sentence which a. classical writer would have made to depend on mere inflection.^ From the difficulty of retaining a right discrimination of tense seems to have proceeded the active auxiliary verb. It is possible that this was borrowed from the Teutonic languages of the barbarians, and accommodated both by them and by the natives to words of Latin origin. The passive auxiliary is ob- tained by a very ready resolution of any tense in that mood, and has not been altogether dispensed with even in Greek, while in Latin it is used much more frequently. It is not quite so easy to perceive the propriety of the active liaheo or teneo, one or both of which all modern languages have adopted as their auxiliaries in conjugating the verb. But in some in- ^ M. Bonamy, in an essay printed in Mem. de I'Academie des Insoriptions, t. xxiv., has produced several proofs of this from tlie classical writers on afrriculiuic and other arts, tliough some of his instances are not in point, asany school-l)o\' would have told liim. This essay contains the l)est view that I have seen of the jirocess of transition by which Latin was changed into French and Italian. Add, however, the preface to Tirabosclii's third volume and the thirty-second dissertation of Muratori. State OF SociKTY. BY QUANTITY. 561 stances this analysis is not improper ; and it may be supposed that nations careless of etymology or correctness applied the same verb by rude analogy to cases where it ought not strictly to have been employed. Next to the changes founded on pronunciation and to the substitution of auxiliary verbs for inflections, the usage of the definite and indefinite articles in nouns appears the most con- siderable step in the transmutation of Latin into its derivative languages. None but Latin, I believe, has ever wanted this part of speech ; and the defect to which custom reconciled the Romans would be an insuperable stumbling-block to na- tions who were to transla,te their original idiom into that lan- guage. A coarse expedient, of applying unus, ipse, or ille to the purposes of an article might perhaps be no infrequent vulgarism of the provincials ; and after the Teutonic tribes brought in their own grammar, it was natual that a corruption shoidd become universal, which in fact supplied a real and essential deficiency. That the quantity of Latin syllables is neglected, or rather lost, in modern pronunciation, seems to be generally admitted. Whether, indeed, the ancient Romans, in their ordinary speak- ing, distinguished the measure of syllables with such uniform musical accuracy as we imagine, giving a certain time to those termed long, and exactly half that duration to the short, might very reasonably be questioned ; though this was probably done, or attempted to be done, by every reader of poetry. Certainly, however, the laws of quantity were forgotten, and an accentual pronunciation came to predominate, before Latin had ceased to be a living language. A Christian writer named Commodi- anus, who lived before the end of the third century according to some, or, as others think, in the reign of Constantiue, has left us a philological curiosity, in a series of attacks on the pagan superstitions,^ composed in what are meant to be verses 5 No description can give so adequate a notion of tliis extraordinary performance as a short specimen. Tal^e the introductory lines, which really, prejudices of educa- tion apart, are by no means inharmonious : Prjefatio nostra viam erranti diMiioustrat, Eespectumque bonum, cum vi ncrit saculi meta, yEternum fieri, quod discrechnit iuscia corda. Ego sindliter erruAi tciniKirc multo, Fana pro.-iecjui'iKlo, i):ir('Utibus insciis ipsis. Abstuli me tanilcm inde, legcndo de lege, Testiticor Dominum, doleo, proh! civica turba Inscia quod perdit, pergens deos quKrere vanos. Ob ea perdoctus ignoros instruo verum. Commodianus is publi.slied by Dawes at the end of his edition of Jlinucius Felix. Some specimens are quoted in Harris's Philological Inquiries. 562 TEOCHAIC VERSE. Chap. IX. Part I. regulated by accent instead of quantity, exactly as we read Virgil at present. It is not improbable that Commodianus may have written in Africa, the province in which more than any the purity of Latin Avas debased. At the end of the fourth century'St. Augustin assailed his old enemies, the Donatists, with nearly the same arms tliat Commodian\is had wielded against heathen- ism. But as the refined and various music of hexameters was unlikely to be relished by the vulgar, he prudently adopted a diiferent measure.^ All the nations of Europe seem to love the trochaic verse. It was frequent on the Greek and Roman stage ; it is more common than any other in the popular poetry of modern languages. This proceeds from its simplicity, its liveliness, and its ready accommodation to dancing and music. In St. Augustin's poem he united to a trochaic measure the novel attraction of rhyme. As Africa must have lost all regard to the rules of measure in the fourth century, so it appears that Gaul was not more correct in tlie next two ages. A poem addressed by Auspicius, bishop of Toul, to Count Arbogastes, of earlier date probably than the invasion of Clovis, is written with no regard to quan- tity.'' The bishop by whom this was composed is mentioned by his contemporaries as a man of learning. Probably he did not choose to perplex the barbarian to whom he was writing (for Arbogastes is plainly a barbarous name) by legitimate Roman metre. In the next century Gregory of Tours informs us that Chilperic attempted to write Latin verses ; but the lines could not be reconciled to any division of feet, his ignor- ance having confounded long and short syllables together. Now Chilperic must have learned to speak Latin like other kings of the Franks, and was a smatterer in several kinds of literature. If Chilperic, therefore, were not master of these 6 Archaeologia, vol. xiv., p. 188. The following are the first lines : Abundantia peccatorum solet fratres conturbare; Propter hoc Doniinus noster voliiit nos prsemonere, Comf)arans regnum co-lorum reticulo misso in mare, Congrt'ganti multo.s pisces, omne genus hinc et iiule, Quos cuin traxissent arl littus, tunc ccrperunt separare, Bonos in vasa miserunt, rcli(iuos malos in mare. This trash is much below the level of Augustin; but it could not have been later than his age. 7 Kecueil des Historiens, t. i., h. 814; it begins in the following manner • Pra?celso expectabili bis Arbogasto comiti Auspicius, (jui diligo, saluteni dice plurimam. Magnas cirlesti Domino rependo corde gratias Quod te Tullensi proxime magnum in urbe vidimus. Multis me tuis artibus iKtiflcabas antea, Sed nunc fecisti maxlmo me exultare gaudio. I State of Society. LATLNT BECOMES ROMANCE. 563 distinctions, we may conclude that the bishops and otlier llo- mans with whom he conversed did not observe tliem ; and that his blunders in versification arose from ignorance of rules which, however fit to be preserved in poetry, were entirely obsolete in the living Latin of his age. Indeed, the frequency of false quantities in the poets even of the fifth, but much more of the sixth century, is palpable. Fortunatus is quite full of them. This seems a decisive proof that the ancient pronunciation was lost. Avitus tells us that few preserved the proper measure of syllables in singing. Yet he was lUshop of Vienne, where a purer pronunciation might be expected than in the remoter parts of Gaul. § 5. Defective, however, as it had become in respect of pronunciation, Latin was still spoken in France during the sixth and seventh centuries. We have compositions of that time, intended for the people, in grammatical language. A song is still extant in rhyme and loose accentual measure, written upon a victory of Clotaire II. over the Saxons in 022, and obviously intended for circulation among the people. Fortunatus says, in his life of St. Aubin of Angers, that he should take care not to use any expression unintelligible to the people. Baudemind, in the middle of the seventh century, declares, in his life of St. Amand, that he writes in a rustic and vulgar style, that the reader may be excited to imitation. Not that these legends were actually perused by the populace, for the very art of reading was confined to a few. But they were read publicly in the churches, and probably with a pro- nunciation accommodated to the corruptions of ordinary language. Still, the Latin syntax must have been tolerably understood ; and we may therefore say that Latin had not ceased to be a living language, in G-anl at least, before the latter part of the seventh century. Faults, indeed, against the rules of grammar, as well as unusual idioms, perpetually occur in the best writers of the Merovingian period, such as Gregory of Tours ; while charters drawn up by less expert scholars deviate much farther from purity. The corrupt provincial idiom became gradually more and more dissimilar to grammatical Latin ; and the lingua llo- mana rustica, as the vulgar patois (to borrow a word that I cannot well translate) had been called, acquired a distinct character as a new language in the eighth century. Latin orthography, which had been hitherto pretty well maintained in books, though not always in charters, gave way to a new spelling, conformably to the current pronunciation. Thus we 564 ITS CORRUPTION IN ITALY. Chap. IX. Part I. find liii for illius, in the Formularies of Marculfiis ; and Tu lo juva in a liturgy of Cliarlemague's age, for Tu ilium juva. When this barrier was once broken down, such a deluge of innovation poured in, that all the characteristics of Latin were effaced in writing as well as speaking, and the existence of a new language became undeniable. In a council held at Tours in 813, the bishops are ordered to have certain homilies of the fathers translated into the rustic Eoman, as well as the German tongue. • After this it is unnecessary to multiply proofs of the change which Latin had undergone. In Italy the progressive corruptions of the Latin language were analogous to those which occurred in France, though we do not find in writings any unequivocal specimens of a new formation at so early a period. But the old inscriptions, even of the fourth and fifth centuries, are full of solecisms and corru})t orthography. In legal instruments under the Lom- bard kings the Latin inflections are indeed used, but with so little regard to propriety that it is obvious the writers had not the slightest tincture of grammatical knowledge. This observation extends to a very large proportion of such docu- ments down to the twelfth century, and is as applicable to France and Spain as it is to Italy. In these charters the peculiar characteristics of Italian orthography and grammar frequently appear. Thus we find, in the eighth century, dive- atis for deheatis, da for de in the ablative, avendi for habendi, dava for dabat, cedo a deo , and ad ecdesia, among many sim- ilar corruptions. Latin was so changed, it is said by a writer of Chai'lemagne's age, that scarcely any part of it was popu- larly known. Italy, indeed, had suffered more than France itself by invasion, and was reduced to a lower state of barba- rism, though probably, from the greater distinctness of pro- nunciation habitual to the Italians, they lost less of their original language than the French. I do not find, however, in the writers who have treated this subject, any express evi- dence of a vulgar language distinct from Latin earlier than the close of the tenth century, when it is said in tlie epitaph of Pope Gregory V. (who died in 999), that he instructed the people in three dialects — the Frankish, or German, the vul- gar, and the Latin.* § 6. When Latin had thus ceased to be a living language, the whole treasury of knowledge was locked up from the eyes of the people. The few who might have imbibed a taste for 8 Usus Francisca, vulgari, et voce Latiiia Instituit populos eloquio tripici. State of Society. CONSEQUENT IGNORANCE. 565 literature, if books had been accessible to them, were reduced to abandon pursuits that could only be cultivated through a kind of education not easily within their reach. Schools, confined to cathedrals and monasteries, and exclusively de- signed for the purposes of religion, afforded no encourage- ment or opportunities to the laity. The worst effect was, that, as the ncAvly-formed languages were hardly made use of in writing, Latin being still preserved in all legal instruments and public correspondence, the very use of letters, as well as books, was forgotten. For many centuries, to sum up the account of ignorance in a word, it was rare for a layman, of whatever rank, to know how to sign his name ! Their char- ters, till the use of seals became general, were subscribed with the mark of the cross. Still more extraordinary it was to find one who had any tincture of learning. Even admitting every indistinct commendation of a monkish biographer (with whom a knowledge of church music would pass for literature), we could make out a very short list of scholars. None, cer- tainly, were more distinguished as such than Charlemagne and Alfred ; but the former, unless we reject a very plain tes- timony, was incapable of writing ; ^ and Alfred found difficulty in making a translation from the pastoral instruction of St. Gregory, on account of his imperfect knowledge of Latin. Whatever mention, therefore, we find of learning and the learned during these dark ages, must be understood to relate only to such as were within the pale of clergy, which, indeed, was pretty extensive, and comprehended many who did not exercise the offices of religious ministry. But even the clergy were, for a long period, not very materially superior, as a 9 Tlie passage in Eginhard, which has occasioned so much dispute, speaks for itself : Tentabat et scribere, tabulasque et codicillos ad lioc in lecticula sub cervicali- bus cireumferie solebat, ut, cum vacuum tempus esset, manum etfigiandis literis assuef'aceret ; sod panim prospere successit hibor prieposterus ac sero iuclioatus. Many are still unwilling to believe that Cliarlemagne could not write. JI. Ampere observes that the emperor asserts himself to have been the author of the Libri Caro- lini, and is said by some to have composed verses. Hist. Litt. de la France, iii., 37. But did not Henry VIII. claim a book against Luther, which was not written by him- self? Quifacit per alium,facit per se, is in ajl cases a royal prerogative. Even if the book were Charlemagne's own, might he not have dictated it ? I have been in- formed that there is a manuscript at Vienna with autograph notes of Charlemagne in the margin, fiut is tliere sufBcient evidence of their genuineness ? The great difficulty is to get over tlie words which I have quoted from Eginhard. M. Ampere ingeniously conjectures that the passage does not relate to simple common writing, but to caligraphy — the art of delineating characters in a beautiful manner, prac- tised by the covpists, and of which a contemporaneous specimen may be seen in the well-known Bible of the British Museum. Yet it must be remembered that Charle- magne's early ife passed in the deptlis of ignorance ; and Eginhard gives a fair reason why he fq,iled in acquiring the art of writing, that he began too late. Fingers of fifty are not made for a new skill. It is not, of course, implied by the words that he could not write his own name ; but that he did not acquire such a facility as he desired. 566 IGNORANCE CONSEQUENT ON Chap. IX. Part I. body, tc the uniustructecl laity. A cloud of ignorance over- spread the whole face of the Church, hardly broken by a few- glimmering lights, who owe much of their distinction to the surrounding darkness. In the sixth century the best writers in Latin were scarcely read; and perhaps from the middle of this age to the eleventh there was, in a general-view of literature, little difference to be discerned. If we look more accurately, there will appear certain gradual shades of twi- light on each side of the greatest obscurity. France reached her lowest point about the beginning of the eighth century ; but England was at that time respectable, and did not fall into complete degradation till the middle of the ninth. There could be nothing more deplorable than the state of letters in Italy and in England during the succeeding century ; but France cannot be denied to have been uniformly, though very slowly, progressive from the time of Charlemagne. Of this prevailing ignorance it is easy to produce abundant testimony. Contracts were made verbally, for want of notaries capable of drawing up charters ; and these, Avhen written, were frequently barbarous and ungrammatical to an incredible degree. For some considerable intervals scarcely any monument of literature has been preserved, except a few jejune chronicles, the vilest legends of saints, or verses equal- ly destitute of spirit and metre. In almost every council the ignorance of the clergy forms a subject for reproach. It is asserted by one held in 992 that scarcely a single person was to be found in Kome itself who knew the first elements of letters. Not one priest of a thousand in Spain, about the age of Charlemagne, could address a common letter of salutation to another. In England, Alfred declares that he could not recollect a single priest south of the Thames (the most civilized part of England), at the time of his accession, who understood the ordinary prayers, or could translate Latin into his mother tongue. Nor was this better in the time of Dunstan, when, it is said, none of the clergy knew how to write or translate a Latin letter. The homilies which they preached were compiled for their use by some bishops, from former works of the same kind, or the Avvitings of the fatliers. This universal ignorance was rendered unavoidable, among other causes, by the scarcity of books, which could only be procured at an immense price. From the conc^uest of Alexan- dria by the Saracens at the beginning of the seventh century, when the Egyptian papyrus almost ceased to be imported into Europe, to the close of the eleventh, about which time State OF Society. THE DISUSE OF LATIN". 567 the art of making paper from cotton rags seems to have been introduced, tliere were no materials for writing exce})t parchment, a substance too ex]iensive to be readily spared for mere purposes of literature. Hence an unfortunate practice gained ground, of erasing a manuscript in order to substitute another on the same skin. This occasioned the loss of many ancient authors, who have made way for the legends of saints, or other ecclesiastical rubbish. If we would listen to some literary historians, we should believe that the darkest ages contained many individuals, not only distinguished among their contemporaries, but positively eminent for abilities and knowledge. A proneuess to extol every monk of whose production a few letters or a devotional treatise survives, every bishop of whom it is related that he composed homilies, runs through the laborious work of the l)enedictines of St. Maur, the Literary History of France, and, in a less degree, is observable even in Tiraboschi, and in most books of this class. Bede, Alcuin, Hincmar, Raban, and a number of inferior names, become real giants of learning in their uncritical panegyrics. But one might justly say that ignorance is the smallest defect of the writers of these dark ages. Several of them were tolerably acquainted with books ; but that wherein they are uniformly deficient is original argu- ment or expression. Almost every one is a compiler of scraps from the fathers, or from such semi-classical aiithors as Boethius, Cassiodorus, or Martianus Capella. Indeed I am not aware that there appeared more than two really consider- able men in the republic of letters from the sixth to the middle of the eleventh century — John, surnamed Scotus or Erigena, a native of Ireland ; and Gerbert, who became pope by the name of Silvester II. : ^° the first endowed with a bold and i» .John Scotus, who, it is almost needless to say, must not be confounded with the still more famous metaphysician Duns Scotus, lived under Charles tlie Bald, in the middle of the ninth century. It admits of no doubt that John Scotus was, in a liter- ary and philosophical sense, the most remarkable man of the Dark Ages ; no one else had his boldness, his subtlety in threading tlie labyrinths of metajiliysical specula- tions which, in the west of Europe, had been .utterly disregarded. But it is another question whether he can be reckoned an original writer; those who have attended most to his treatise De Divisione Natura;, the most abstruse of his works, consider it as the development of an Oriental philosophy, acquired during his residence in Greece, and nearly coinciding with some of the later Platonism of the Alexandrian school, but witli a more equivocal tendency to pantheism. This manifests itself in some extracts Avliich have latterly been nindo from the treatise De I)ivisione Naturie; but tliough Scotus had not the reputation of unblemished ortluidoxy, the drift of his phi- losophy was not understood in that barbarous period. He might, indeed, liave ex- cited censure by his intrepid preference of reason to .authority. " Authority," lie says, " springs from reason, not reason from authority — true reason needs not be confirmed bv anv authoritv." Silvester' II. "died in 1003. Whether he first brought the Arabic numeration into Europe, as has been commonly said, seems uncertain; it was at least not much prac- tised for some centuries after his death, 568 WANT OF LITERARY EMINENCE. Chap. IX. Paut I. acute metaphysical genius ; the second excellent, for the time when he lived, in mathematical science and mechanical inven- tions. § 7. If it be demanded by Avhat cause it happened that a few sparks of ancient learning survived throughout this long winter, Ave can only ascribe their preservation to the estab- lishment of Christianity. Keligion alone made. a bridge, as it were, across the chaos, and has linked the two periods of ancient and modern civilization. Without this' connecting principle, Europe might indeed have awakened to intellectual pursuits, and the genius of recent times needed not to be in- vigorated by the imitation of antiquity. But the memory of Greece and Rome would have been feebly ])reserved by tradi- tion, and tlie monuments of those nations might have excited, on the return of civilization, that vague sentiment of specula- tion and Avonder Avith Avhich men noAv contemplate Perse])olis or the Pyramids. It is not, however, from religion simply that Ave have derived this advantage, but from religion as it was modified in the Dark Ages. Such is the complex recipro- cation of good and evil in the dispensations of Providence, that Ave may assert, with only an apparent paradox, that, had religion been more pure, it would have been less permanent, and that Christianity has been preserved by means of its cor- ruptions. Tlie sole hope for literature depended on the Latin language ; and I do not see why that should not have been lost, if three circumstances in the prevailing religious system, all of Avhich we are justly accustomed to disapprove, had not conspired to maintain it — the pai)al supremacy, the monastic institutions, and the use of a Latin liturgy. 1. A continual intercourse Avas kept up, in consequence of the first, betAveen Rome and the several nations of Europe ; her laws Avere re- ceived by the bishops, her legates presided in councils , so that a common language Avas as necessary in the Church as it is at present in t];e dij^lomatic relations of kingdoms. 2. Through- out the Avhole course of the Middle Ages there Avas no learning, and very little regularity of manners, among the i^arochial cler- gy. Almost every distinguished man was either the member of a chapter or of a convent. The monasteries were sul)jected to strict rules of discipline, and held out, at the Avorst, more opportunities for study than the secular clergy possessed, and fewer for worldly dissipations. But their most important service was as secure repositories for books. All our manvi- scripts haA^e been preserved in this manner, and could hardly hs^ve descended to us by any other channel ; at least there State of Society. PRESERVATION OF LEARNING. 569 were intervals when I do not conceive tliat any royal or private libraries existed. ^^ 3. Monasteries, however, would probably have contributed very little towards the preservation of learn- ing, if the Scriptures and the liturgy had been translated out of Latin when tliat language ceased to be intelligible. Every rational principle of religious woi'ship called for such a change ; but it would have been made at the expense of posterity. Moreover, the clergy did not want good pretexts, on the ground of convenience, for opposing innovation. They were habituated to the Latin words of the Church service, which had become, by this association, tlie readiest instruments of devotion, and with the majesty of which the Romance jargon could bear no comparison. Their musical chants were adapted to these sounds, and their hymns depended, for metri- cal effect, on the marked accents and powerful rhymes which the Latin language affords. The vulgate Latin of the Bible was still more venerable. It was like a copy of a lost original, and a copy attested by one of the most eminent fathers, and by the general consent of the Church. These are certainly no adequate excuses for keeping the people in ignorance ; and the gross corruption of the JMiddle Ages is in a great degree assign- able to tills policy. But learning, and consequently religion, have eventually derived from it the utmost advantage. § 8. In the shadows of this universal ignorance a thousand superstitions, like foul animals of night, were propagated and nourished. It would be very unsatisfactory to exhibit a few specimens of this odious brood, when the real character of those times is only to be judged by their accumulated multi- tude. There are many books from which a sufficient number of instances may be collected to show the absurdity and Ignorance of the Middle Ages in this respect. I shall only mention two, as affording more general evidence than any local or obscure superstition. In the tenth century an opinion prevailed everywhere that the end of the world was approacliing. Many charters begin with these words, " As the world is now drawing to its close." An army marching under the Emperor Otho I. was so terrified by an eclipse of the sun, which it conceived to announce this consummation, as to' disperse hastily on all sides. As this notion seems to have been founded on some confused theory of the millennium, it 11 Charlemagne had a library at Aix-Ia-Chapelle, which he directed to be sold at his death for tlie benefit of tliepoor. His son Louis is said to liave collected some books. But this rather confirms, on the whole, my supposition that, in some periods, no royal or private libraries existed, since there were not always princes or nobles with the spirit of Charlemagne, or even Louis the Debonair. 570 SUPERSTITIONS. Cuap. IX. Part I. naturally died away when the seasons proceeded in the eleventh century with their usual regularity. A far more remarkable and permanent superstition was the appeal to Heaven in judicial controversies, whether through the means of coml)at or of ordeal. The ])rinciple of these was the same ; but in the former it was mingled with feelings independent of religion — the natural dictates of resentment in a brave man unjustly accused, and the sym|)athy of a warlike people with the display of skill and intrepidity. These, in course of time, almost obliterated the primary character of judicial combat, and iiltimately changed it into the modern diiel, in which assuredly there is no mixture of superstition.^^ But, in the various tests of imiocence Avhich were called ordeals, this stood undisguised and unqualitied. It is not necessary to describe what is so well known — the ceremonies of trial by handling hot iron, by plunging the arm into boiling fluids, by floating or sinking in cold water, or by swallowing a piece of conse- crated bread. It is observable that, as the interference of Heaven was relied u])on as a matter of course, it seems to have been reckoned nearly indifferent whether such a test were adopted as must, humanly considered, absolve all the guilty, or one that must convict all the innocent. The ordeals of hot iron or water were, however, more commonly used ; and it has been a perplexing question by what dexterity these tre- mendous proofs were eluded. They seem at least to have placed the decision of all judicial controversies in the hands of the clergy, who must have known the secret, whatever that might b?, of satisfying the spectators that an accused person had held a mass of burning iron with impunity. For several centuries this mode of investigation was in great repute, though not Avithout opposition from some eminent bishops. It does discredit to the memory of Charlemagne that he was one of its warmest advocates. But the judicial combat, which, indeed, might l)e reckoned one species of ordeal, gradually jjut an end to the rest ; and as the Church acquired better notions of law, and a code of her own, she strenuously exerted herself against all these barbarous superstitions. 12 Duelling, in the modern sense of the word, exclusive of casual frays and single combat during war, was unknown before tlie sixteenth century. But we find one anecdote wliich seems to illustrate its derivation from tlie judicial combat. The dulces of Lancaster and lirunswick, having some difierences, iigrecd to decide them by duel before .Jolin, king of France. The lists were prepared witli the solemnity of a real trial by battle; but the king interfered to prevent tlie engagement. The bar- barous practice of wearing swords ns ;i part of domestic dress, wliich tended very niucli to tlie frequency of duelling, was not introduced till tlie latter part of tlie 15th century. State of Society. ENTHUSIASTIC RISINGS. 571 § 9. But the religious ignorance of the Middle Ages some- times burst out in ebullitions of epidemical enthusiasm, more remarkable than these superstitious usages, though proceeding in fact from similar causes. For enthusiasm is little else than superstition put in motion, and is equally founded on a strong conviction of supernatural agency, without any just conceptions of its nature. Nor has any denomination of Chris- tians produced, or even sanctioned, more fanaticism than the Church of Rome. These epidemical frenzies, however, to which I am alluding, were merely tumultuous, though certainly fostered by the creed of perpetual miracles which the clergy inculcated, and drawing a legitimate precedent for religious insurrection from the Crusades. For these, among other evil consequences, seem to have principally excited a wild fanati- cism that did not sleep for several centuries. The first conspicuous appearance of it was in the reign of Philip Augustus, when the mercenary troops dismissed from the pay of that prince and of Henry II. committed the great- est outrages in the south of France. One Durand, a carpen- ter, deluded, it is said, by a contrived appearance of the Vir- gin, put himself at the head of an army of the populace, in order to destroy those marauders. His followers were styled Brethren of the White Caps, from the linen coverings of their heads. They bound themselves not to play at dice nor fre- quent taverns, to wear no affected clothing, to avoid perjury and vain swearing. After some successes over the plunderers, they went so far as to forbid the lords to take any dues from their vassals, on pain of incurring the indignation of the brotherhood. It may easily be imagined that they were soon entirely discomfited, so that no one dared to own that he had belonged to them. During the captivity of St. Louis in Egypt, a more exten- sive and terrible ferment broke out in Flanders, and spread from tlience over great part of France. An impostor declared himself commissioned by the Virgin to preach a crusade, not to the rich and noble, who for their pride had been rejected of God, but the poor. His disciples were called Pastoureaux, the simplicity of shepherds having exposed them more readily to this delusion. In a short time they were swelled by the con- fluence of abundant streams to a moving mass of a hundred thousand men, divided into companies, with banners bearing a cross and a lamb, and commanded by the impostor's lieuten- ants. He assumed a priestly character, preaching, absolving, annulling marriages. At Amiens, Bourges, Orleans, and Paris 572 ENTHUSIASTIC RISINGS. Chat. IX. Pakt I, itself, he was received as a divine prophet. Even the Regent Blanche, for a time, was led away by the popnlar tide. His main topic Avas reproach of the clergy for tlieir idleness and corrnption — a theme well adapted to the ears of tlie people, who had long been uttering similar strains of complaint. In some towns his followers massacred the priests and plundered the monasteries. The Government at length began to exert itself ; and, the public sentiment turning against the authors of so much confusion, this rabble was put to the sword or dis- sipated. Seventy years afterwards an insurrection almost ex- actly parallel to this burst out under the same pretence of a crusade. These insurgents, too, bore the name of Pastou- reaux, and their short career was distinguished by a general massacre of the Jews. But though tlie contagion of fanaticism spreads much more rapidly among the populace, and in modern times is almost entirely confined to it, there were examples, in the Middle Ages, of an epidemical religious lunacy from which no class was exempt. One of these occurred about the year 12(30, when a multitude of every rank, age, and sex, marching two by two in procession along the streets and public roads, mingled groans and dolorous hymns with the sound of leathern scourges which they exercised u,pon their naked backs. From this mark of penitence, which, as it bears at least all the appear- ance of sincerity, is not uncommon in the Church of Borne, they acquired the name of Flagellants. Their career began, it is said, at Perugia, whence they spread over the rest of Italy, and into Germany and Poland. As this spontaneous fanati- cism met with no encoui-agement from the Church, and was prudently discountenanced by the civil magistrate, it died away in a very short time. But it is more surprising that, after almost a century and a half of continual im})rovement and illumination, another irruption of popular extravagance burst out under circumstances exceedingly similar. " In the month of August, 1399," says a contemporary historian, " there n,p[)eared all over Italy a description of persons, called Bian- chi, from the white linen vestment that they wore. They passed from province to province, and from city to city, crying out Misericordia ! with their faces covered and bent towards the ground, and bearing before them a great crucifix. Their constant song was, Stabat Mater dolorosa. This lasted three months ; and whoever did not attend their procession was reputed a heretic." Almost every Italian writer of the time takes notice of thege Bianchi; and Muratori ascribes a re- State of Socikty. PRETENDED MIRACLES. 573 markable reformation of manners (though certainly a very transient one) to their influence. Nor were they confined to Italy, thougli no such meritorious exertions are imputed, to tliem in other countries. In Erance their practice of covering the face gave such opportunity to crimes as to be prohibited by the government ; and we have an act on the rolls of tlie first Parliament of Henry IV., forbidding any one, "under ])ain of forfeiting all his worth, to receive the new sect in white clothes, pretending to great sanctity," which had recently ap- 2)eared in foreign parts. § 10. The devotion of the multitude was wrought to this feverish height by the prevailing system of the clergy. In that singular polytheism which had been grafted on Christian- ity, nothing was so conspicuous as the belief of perpetual miracles — if, indeed, those could properly be termed miracles which, by their constant recurrence, even upon trifling occa- sions, might seem within the ordinary dispensations of Prov- idence. These superstitions arose in what are called primitive times, and are certainly no part of popery, if in that word we include any especial reference to the Eoman See. But succes- sive ages of ignorance SAvelled the delusion to such an enormous pitch, that it was as difficult to trace, we may say without exaggeration, the real religion of the Gospel in the popular belief of the laity, as the real history of Charlemagne in the romance of Turpin. It must not be supposed that these ab- surdities were produced, as well as nourished, by ignorance. In most cases they were the work of deliberate imposture. Every cathedral or monastery had its tutelar saint, and every saint his legend, fabricated in order to enrich the churches under his protection by exaggerating his virtues, his miracles, and consequently his power of serving those who paid liberally for his patronage. Many of those saints were imaginary per- sons ; sometimes a blundered inscription added a name to tlie calendar, and sometimes, it is said, a heathen god was surprised at the company to which he was introduced, and the rites with which he was honored. § 11. It would not be consonant to the nature of the present work to dwell upon the erroneousness of this religion ; but its effect upon the moral and intellectual character of mankind was so prominent that no one can take a philosophical view of the Middle Ages without attending more than is at present fashionable to their ecclesiastical history. That the exclusive worship of saints, under the guidance of an artful though illit- erate priesthood, degraded the understanding, and begot a stu- 674 MISCHIEFS OF SUPERSTITION. Chap. IX. I'akt I. pid credulity and fanaticism, is sufficiently evident. But it was also so managed as to loosen the bonds of religion and pervert the standard of morality. If these inhabitants of heaven had been represented as stern avengers, accepting no slight atonement for heavy offences, and prompt to interpose their control over natural events for the detection and punish- ment of guilt, the creed, however impossible to be reconciled with experience, might have proved a salutary check upon a rude people, and would at least have had the only palliation that can be offered for a religious imposture, its political ex- pediency. In the legends of those times, on the contrary, they appeared only as perpetual intercessors, so good-natured and so powerful, that a sinner Avas more emphatically foolish than he is usually represented if he failed to secure himself against any bad consequences. For a little attention to the saints, and especially to the Virgin, with due liberality to their ser- vants, had saved, he would be told, so many of the most atro- cioiis delinquents, that he might equitably presume upon similar luck in his own case. This monstrous superstition grew to its height in the twelfth century. For the advance that learning then made was by no means sufficient to counteract the vast increase of monasteries, and the opportunities which the greater cultivation of modern languages afforded for the diffusion of legendary tales. It was now, too, that the veneration paid to the Virgin, in early times very great, rose to an almost exclusive idolatry. It is difficult to conceive the stupid absurdity and the disgusting })rofaneness of those stories which were invented by the monks to do her honor. § 12. At the same time, it must be admitted that the evils of superstition in the Middle Ages, though separately con- sidered very serious, are not to be weighed against the bene- fits of the religion with \vhich they were so mingled. In the original prinei])les of monastic orders, and the rules by which they ought at least to have been governed, there was a charac- ter of meekness, self-denial, and charity that could not wholly be effaced. These virtues, rather than justice and veracity, were inculcated by the religious ethics of the IMiddle Ages ; and in the relief of indigence it may, upon the whole, be as- serted that the monks did not fall short of their profession. This eleemosynary spirit, indeed, remarkably distinguishes both Christianity and Mohammedanism from the moral sys- tems of Greece and Eome, which were very deficient in general humanity and sympathy with suffering. Nor do we find in State of Society. VICES OF MONKS AND CLERGY. 575 any single instance during ancient times, if I mistake not, those public institutions lor the alleviation of human miseries which have long been scattered over every part of Europe. The virtues of the monks assumed a still higher character when they stood forward as protectors of the oppressed. By an established law, founded on very ancient superstition, the precincts of a church afforded sanctuary to accused persons. Under a due administration of justice this privilege Avould have been simply and constantly mischievous, as we properly consider it to be in. those countries where it still subsists. But in the rapine and tumult of the Middle Ages the right of sanctuary might as often be a shield to innocence as an im- munity to crime. We can hardly regret, in reflecting on the desolating violence which prevailed, that there should have been some green spots in the wilderness where the feeble and the persecuted could find refuge. How must this right have enhanced the veneration for religious institutions ! Hoav gladly must the victims of internal warfare have turned their eyes from the baronial castle, the dread and scourge of the neighbor- hood, to those venerable walls within which not even the clamor of arms could be heard to disturb the chant of holy men and the sacred service of the altar ! The protection of the sanctuary was never withheld. A son of Chilperie, king of France, having fled to that of Tours, his father threatened to ravage all the lands of the Church unless they gave him up. Gregory the historian, bishop of the city, rei)lied in the name of his clergy that Christians could not be guilty of an act un- heard of among pagans. The king was as good as his word, and did not spare the estate of the Church, but dared not in- fringe its privileges. He had, indeed, previously addressed a letter to St. Martin, which was laid on Ids tomb in the Church, requesting permission to take away his son by force ; but the honest saint returned no answer. The virtues, indeed, or supposed virtues, which had induced a credulous generation to enrich so many of the monastic orders, were not long preserved. We must reject, in the ex- cess of our candor, all testimonies that the Middle Ages pre- sent, from the solemn declaration of councils and reports of judicial inquiry to the casual evidence of common fame in the ballad or romance, if we would extenuate the general corrup- tion of those institutions. In vain new rules of discipline were devised, or the old corrected by refoi-ms. Many of their worst vices grew so naturally out of their mode of life, that a stricter discipline could have no tendency to extirpate 576 COMMUTATION OF PENANCES. Chap. IX. Part I. tliem. Such were the frauds 1 have already noticed, and the whole scheme of hypocritical austerities. Their extreme licen- tiousness was sometimes hardly concealed by the cowl of sanctity. 1 know not by what right we should disbelieve the reports of the visitation under Henry VIII., entering as they do into a multitude of specific cliarges both probable m their nature and consonant to the unanimous opinion of the world. Doubtless there were many communities, as well as individuals, to whom none of these reproaches Avould ap})ly. In the very best view, however, that can be taken of monasteries, their existence is deeply injurious to the general morals of a nation. They withdraw men of pure conduct and conscientious princi- ples from the exercise of social duties, and leave the common mass of human vice more unmixed. Such men are always in- clined to form schemes of ascetic perfection, which can only be fulfilled in retirement ; but in the strict rules of monastic life, and under the influence of a grovelling superstition, their virtue lost all its usefulness. Their frauds, however, were less atrocious than the savage bigotry with which they main- tained their own system and infected the laity. In Saxony, Poland, Lithuania, and the countries on the Baltic Sea, a san- guinary persecution extirpated the original idolatry. The Jews were everywhere the objects of popular insult and oppres- sion, frequently of a general massacre, though protected, it must be confessed, by the laws of the Church, as well as in general by temporal princes. Of the Crusades it is only neces- sary to repeat that they began in a tremendous eruption of fanaticism, and ceased only because that spirit could not be constantly kept alive. A similar influence produced the de- vastation of Languedoc, the stakes and scaffolds of tlie inqui- sition, and rooted in the religious theory of Europe those maxims of intolerance which it lias so slowly, and still Y)er- haps so imperfectly, renounced. § 13. It IS a frequent complaint of ecclesiastical writers that the rigorous penances imposed by the primitive canons upon delinquents were commuted in a laxer state of discipline for less severe atonements, and ultimately indeed for money. We must not, however, regret that the clergy should have lost the power of eom})elling men to abstain fifteen years from eat- ing meat, or to stand exposed to public derision at the gates of a church. Such implicit submissiveness could only have pro- duced superstition and hypocrisy among the laity, and pre- pared the road for a tyranny not less oppressive than that of India or ancient Egypt. Indeed the two earliest instances of State of Societt. WANT OF LAW. 577 ecelesiiistical interference with the rights of sovereigns — namely, tlie deposition of Wamba, in Spain, and tliat of Louis the Debonair — were founded upon this austere system of peni- tence. But it is true tliat a repentance redeemed by money or performed by a substitute could have no salutary effect on the sinner ; and some of the modes of atonement which the Church most approved were particularly hostile to public morals. None was so usual as pilgrimage, whether to Jeru- salem or Rome, which were the great objects of devotion, or to the shrine of some national saint — a James of Compostella, a David, or a Thomas a Becket. This licensed vagrancy was naturally productive of dissoluteness, especially among the women. Our English ladies, in their zeal to obtain the spiritual treasures of Rome, are said to have relaxed the necessary caution about one that was in their own custody. There is a capitulary of Charlemagne directed against itinerant peni- tents, who probably considered the iron chain around their necks an expiation of future as well as past offences. The Crusades may be considered as martial pilgrimages on an enormous scale, and their influence upon general morality seems to have been altogether pernicious. Those who served under the cross would not, indeed, have lived very virtuously at home ; but the coniidence m their own merits, wliicli the principle of such expeditions inspired, must have aggravated the ferocity and dissoluteness of their ancient habits. Sev- eral historians attested the depravation of morals which ex- isted both among the crusaders and in the states formed out of their conquests. § 14. While religion had thus lost almost every quality that renders it conducive to the good order of society, the control of human law was still less ethcacious. But this part of my subject has been anticipated in other passages of the present work ; and I shall only glance at the want of regular subordination which rendered legislative and judicial edicts a dead letter, and at the incessant private warfare rendered legitimate by the usages of most Continental nations. Such hostilities, conducted as they must usually have been with injustice and cruelty, could not fail to produce a degree of rapacious ferocity in the general disposition of a people. And this certainly was among the characteristics of every nation for many centuries. It is easy to infer the degradation of society during the Dark Ages from the state of religion and police. Certainly there are a few great landmarks of moral distinctions so deeply 578 DEGRADATION OF MORALS. Chap. IX. Part L fixed in human nature, that no degree of rudeness can destroy, nor even any superstition remove, them. Wherever an extreme corruption has in any particular society defaced these sacred archetypes that are given to guide and correct the sentiments of mankind, it is in the course of Providence that tlie society itself should perish by internal discord or the sword of a con- queror. In the worse ages of Europe there must have existed the seeds of social virtues, of fidelity, gratitude, and disinter- estedness, sufficient at least to preserve the public approbation of more elevated principles than the public conduct displayed. Without these imperishable elements there could have been no restoration of the moral energies ; nothing upon which reformed faith, revived knowledge, renewed law, could exercise their nourishing influences. But history, which reflects only the more prominent features of society, cannot exhibit the virtues that were scarcely able to struggle through the general depra- vation. I am aware that a tone of exaggerated declamation is at all times usual with those who lament the vices of their own time ; and writers of the Middle Ages are in abundant need of allowance on this score. Nor is it reasonable to found any inferences as to the general condition of society on single instances of crimes, however atrocious, especially when com- mitted under the influence of violent passion. Such enormities are the fruit of every age, and none is to be measured by them. They make, however, a strong impression at the moment, and thus find a place in contemporary annals, from which modern writers are commonly glad to extract whatever may seem to throw light upon manners. I shall, therefore, abstain from producing any particular cases of dissoluteness or cruelty from the records of the Middle Ages, lest I should weaken a general proposition by offering an imperfect induction to support it, and shall content myself with observing that times to which men sometimes appeal, as to a golden period, were far inferior in every moral comparison to those in which we are thrown. One crime, as more universal and characteristic than others, may be particularly noticed. All writers agree in the preva- lence of judicial perjury. It seems to have almost invariably escaped human punishment ; and the barriers of superstition were in this, as in every other instance, too feeble to prevent the commission of crimes. Many of the proofs by ordeal were applied to witnesses as well as those whom they accused ; and undoubtedly trial by combat was preserved in a considerable degree on account of the difficulty experienced in securing a just cause against the perjury of witnesses. Robert, king of State of Socikty. LOVE OF FIELD SPORTS. 579 Erauce, perceiving liow frequently men foreswore themselves upon the relics of saints, and less shocked apparently at the crime than at the sacrilege, caused an empty reliquary of crys- tal to be used, that those who touched it might incur less guilt in fact, though not in intention. Such an anecdote character- izes both the man and the times. § 15. The favorite diversions of the Middle Ages, in the in- tervals of war, were those of hunting and hawking. The for- mer must in all countries be a source of pleasure ; but it seems to have been enjoyed in moderation by the Greeks and Komans. With the Northern invaders, however, it was rather a predomi- nant appetite than an amusement ; it was their pride and their ornament, the theme of their songs, the object of their laws, and the business of their lives. Falconry, unknown as a diver- sion to the ancients, became from the fourth century an equally delightful occupation. From the Salic and other barbarous codes of the fifth century to the close of the period under our review, every age would furnish testimony to the ruling passion for these two species of chase, or, as they were sometimes called, the mysteries of woods and rivers. A knight seldom stirred from his house without a falcon on his wrist or a grey- hound that followed him. Thus are Harold and his attendants represented in the famous tapestry of Bayeux. And in the monuments of those who died anywhere Ijut on the field of battle, it is usual to find the greyhound lying at their feet, or the bird upon their wrists. Nor are the tombs of ladies with- out their falcon ; for this diversion, being of less danger and fatigue than the chase, was shared by the delicate sex. It was impossible to repress the eagerness with which the clergy, especially after the barbarians were tempted by rich bishoprics to take upon them the sacred functions, ruslied into these secular amusements. Prohibitions of councils, however frequently repeated, produced little effect. In some instances a particular monastery obtained a dispensation. Thus that of St. Denis, in 774, represented to Charlemagne that the flesh of hunted animals was salutary for sick monks, and that their skins would serve to bind the books in the library. Eeasons equally cogent, we may presume, could not be wanting in every other case. As the bishops and abbots were perfectly feudal lords, and often did not scruple to lead their vassals into the field, it was not to be expected that they should debar them- selves of an innocent pastime. It was hardly such indeed, when practised at the expense of others. Alexander III., by a letter to the clergy of Berksliirc, dispenses with their keejjing 580 BAD STATE OF AGRICULTURE Chap. IX. Part I. the archdeacon iu dogs and hawks dnring his visitation. This season gave joviiil ecclesiastics an opportunity of trying different countries. An archbishop of York, iu l'o21, seems to have car- ried a train of two hundred persons, who were maintained at the expense of tlie abbeys on liis road, and to have hunted with a pack of hounds from ])arish to parish. The Third Council of Lateran, in 1180, had prohibited this amusement on such journeys, and restricted bishops to a train of forty or fifty horses. Though hunting had ceased to be a necessary means of pro- curing food, it was a very convenient resource, on which the wholesomeness and comfort, as well as the luxury, of the table depended. Before the natural pastures were improved, and new kinds of fodder for cattle discovered, it was impossible to maintain the svimmer stock during the cold season. Hence a portion of it was regularly slaughtered and salted for winter provision. We may suppose that, when no alternative was offered but these salted meats, even the leanest venison was devoured with relish. There was somewhat more excuse, therefore, for the severit}^ with which the lords of forests and manors preserved the beasts of chase than if they had been considered as merely objects of sport. The laws relating to preservation of game were in every country uncommonly rigor- ous. They formed in England that odious system of forest laws which distinguished the tyranny of our Norman kings. Capital punishment for killing a stag or wild boar was frequent, and perhaps warranted by law, until the charter of John. The French code was less severe, but even Henry IV. enacted the pain of death against the repeated offence of chasing deer in tlie royal forests. The privilege of hunting was reserved to the nol)ility till the reign of Louis IX., who extended it in some degree to persons of lower birth. This excessive passion for the sports of the field produced those evils which are apt to result from it — a strenuous idle- ness which disdained all useful occupations, and an oppressive si)irit towards the peasantry' . The devastation committed xmder the pretence of destroying wild animals, Avhich had been already protected in their depredations, is noticed in serious authors, and has also been the to])ic of popular ballads. AVhat effect this must have had on agriculture it is easy to conjecture. The levelling of forests, the draining of morasses, and the extirpa- tion of mischievous animals which inhabit them, are the first objects of man's labor in reclaiming the earth to his use ; and these were forbidden by a landed aristocracy, whose control State of Society. AND OF INTERNAL TRADE. 581 over the progress of agricultural improvement was unlimited. and who had not } et learned to saerihce their pleasures to their avarice. § 16. These habits of the rich, and the miseral)le servitude of those who cultivated the land, rendered its fertility unavail- ing. Predial servitude, indeed, in some of its moditications, has always been the great bar to improvement. In the agri- cultural economy of Konie the laboring husbandman, a menial slave of some wealthy senator, had not even that qualitied in- terest in the soil which the tenure of villenage afforded to the peasant of feudal ages. Italy, therefore, a country presenting many natural impediments, was but imperfectly reduced into cultivation before the irruption of the barbarians. That revo- lution destroyed agriculture with every other art, and succeed- ing calamities during five or six centuries left the finest regions of Europe unfruitful and desolate. There are but two possible modes in which the ])roduce of the earth can be increased; one by rendering fresh land serviceable, the other by improving the fertility of that which is already cultivated. The last is only attainable by the application of capital and of skill to agriculture, neither of which could be expected in the ruder ages of society. The former is, to a certain extent, always practicable while waste land remains ; but it was checked by laws hostile to improvement, such as the manorial and com- monable rights in England, and by the general tone of manners. Till the reign of Charlemagne there were no towns in Ger- many, except a few that had been erected on the liliine and Danube by the Romans. A house with its stables and farm buildings, surrounded by a liedge or enclosure, was called a court, or, as we find it in our law-books, a curtilage; the toft, or homestead, of a more genuine English dialect. One of these, with the adjacent domains of arable fields and woods, had the name of a villa or manse. Several manses com})osed a march, and several marches formed a pagus or district. From these elements in the progress of population arose vil- lages and towns. In France undoubtedly there were always cities of some importance. Country parishes contained several manses or farms of arable land around a common ])asture, where every one was bound by custom to feed his cattle. § 17. The condition even of internal trade was hardly pref- erable to that of agriculture. There is not a vestige, perhaps, to be discovered for several centuries of any considerable manu- facture — I mean, of working up articles of common utility to 582 DEARTH OF MANUFACTURES. Chap. IX. Part I. ail extent beyond what the necessities of an adjacent district required. Kich men kept domestic artisans among tlieir ser- vants ; even kings, in tlie ninth century, had their clotlaes made by the Avomen upon tlieir farms; but tlie peasantry must have been supplied with garments and implements of labor by purchase ; and every town, it cannot be doubted, had its weaver, its smith, and its carrier. But there were almost in- superable impediments to any extended traffic — the insecurity of movable wealth, and difficulty of accumulating it ; the ignorance of mutual wants ; the peril of robbery in conveying merchandise, and the certainty of extortion. In the domains of every lord a toll was to be paid in passing his bridge, or along his highway, or at his market. These customs, equit- able and necessary in their principle, became in practice op- pressive, because they were arbitrary, and renewed in every petty territory which the road might intersect. Several of Charlemagne's capitularies repeat complaints of these exac- tions, and endeavor to abolish such tolls as were not founded on prescri[)tion. One of them rather amusingly illustrates the modesty and moderation of the land-holders. It is enacted that no one shall be compelled to go out of his way in order to pay toll at a particular bridge, when he can cross the river more conveniently at another place. These provisions, like most others of that age, were unlikely to produce much amendment. It was only the milder species, however, of feudal lords who were content with the tribute of merchants. The more ravenous descended from their fortresses to pillage the wealthy traveller, or shared in the spoil of inferior plun- derers, whom they both prote(;ted and instigated. Proofs occur, even in the later periods of the Middle Ages, when govern- ment had regained its energy, and civilization had made con- siderable progress, of public robberies systematically per- petrated by men of noble rank. In the more savage times, before the twelfth century, they were probably too frequent to excite mucli attention. It was a custom in some places to waylay travellers, and not only to plunder, but to sell them as slaves, or compel them to pay a ransom. Harold, son of God- win, having been wrecked on the coast of Ponthieu, was im- prisoned by the lord, says an historian, according to the custom of that territory. Germany a])pears to have been, upon the whole, the country where downright robbery was most unscrupulously practised by the great. Their castles, erected on almost inaccessible heights among the woods, became the secure receptacles of predatory bands, who spread terror over Statk of Socikty. state OF FOHEIGN COMMERCE. 583 the country. From these barbarian lords of the Dark Ages, as from a living model, the romances are said to have drawn their giants and other disloyal enemies of true chivalry. Robbery, indeed, is the constant theme both of the capitularies and of tlie Anglo-Saxon laws ; one has more reason to wx)nder at the intrepid thirst of lucre, which induced a very few mer- chants to exchange the products of different regions, than to ask why no general spirit of commercial activity prevailed. Under all these circumstances it is obvious that very little Oriental commerce could have existed in these western coun- tries of Europe. Destitute as they have been created, speak- ing comparatively, of natural productions fit for exportation, their invention and industry are the great resources from which they can supply the demands of the East. IJefore any manufactures were established in Europe, her commer- cial intercourse with Egypt and Asia must of necessity have been very trifling ; because, whatever inclination she might feel to enjoy the luxuries of those genial regions, she wanted the means of obtaining them. It is not, therefore, necessary to rest the miserable condition of Oriental commerce upon the Saracen conquests, because the poverty of Europe is an adequate cause ; and, in fact,- what little traffic remained was carried on with no material inconvenience through the chan- nel of Constantinople. Venice took the lead m trading with Greece and more eastern countries. Amalfi had the second place in the commerce of those dark ages. These cities im- ported, besides natural productions, the fine clothes of Con- stantinople ; yet, as this traific seems to have been illicit, it was not probably extensive. Their exports were gold and silver, by which, as none was likely to return, the circulating money of Europe was probably less in the eleventh century than at the subversion of the Roman Empire ; furs, which W'Cre obtained from the Sclavonian countries ; and arms, the sale of wdiich to pagans or Saracens was vainly prohibited by Charlemagne and by the Holy See. A more scandalous traffic, and one that still more fitly called for prohibitory laws, Avas carried on in slaves. It is a humiliating proof of the degradation of Christendom, that the Venetians were re- duced to purchase the luxuries of Asia by supplying the slave-market of the Saracens. Their apology would perhaps have been, that these were purchased from their heathen neighbors ; but a slave-dealer was probably not very inquisi- tive as to the faith or origin of his victim. This trade was not peculiar to Venice. In England it was very common, 584 GENERAL IMPROVEMENT. Chap. IX. Pabt I. even after the Conquest, to export slaves to Ireland, till, in the reign of Henry II., the Irish came to a non-importation agreement, which put a stop to the practice. § 18. From this state of degradation and poverty all the countries of Europe have recovered, with a progression in some respects tolerably uniform, in others more unequal; and the course of their improvement, more gradual and less dependent upon conspicuous civil revolutions than their de- cline, affords one of the most interesting subjects into which a philosophical mind can inquii-e. The commencement of tliis restoration has usually been dated from about the close of the eleventh century ; though it is unnecessary to observe that the subject does not admit of any thing approximating to chronological accuracy. It may, therefore, be sometimes not improper to distinguish the first six of the ten centuries which the present work embraces under the appellation of the Dark Ages — an epithet wliich I do not extend to the twelfth and thre^ following. In tracing the decline of so- ciety from the subversion of the lioman Empire, we have been led, not without connection, from ignorance to supersti- tion, from superstition to vice and lawlessness, and from thence to general rudeness and poverty. I shall pursue an inverted order in passing along the ascending scale, and class the various improvements Avhich took place between the twelfth and fifteenth centuries under three principal heads, as they relate to the wealth, the manners, or the taste and learning of Europe. Different arrangements might probably be suggested, equally natural and convenient ; but in the disposition of to])ics that have not always an unbroken connection with each other, no method can be prescribed as absolutely more scientific than the rest. That which I have adopted appears to me as philosophical and as little liable to transitions as any otliei'. State of Society. PKOGKESS OF iMPKOVEMENT. 585 PART II. § 1. Progress of Commercial Improvement in Flanders, Germany, and England. § 2. Baltic Trade: Hanseatic Towns. § 3. ItMpid Progress of English Trade. § i. Intercourse with the South of Europe. § 5. Progress of Commerce in the Countries upon the Mediterranean Sea. § (i. Their Manufactures. §7. Inven- tion of the Mariner's Compass. §8. Maritime L.aws. §9. Usury: Money Dealings of the Jews. §10. Banking Companies. §11. Progress of Kefinenient in Manners. § 12. Domestic Architecture. § 1.3. Ecclesiastical Architecture. § 14. State of Agriculture. § 15. Value of Money. § 10. Improvement of the Moral Character of Society : its Causes. § 17. Police. § IS. Changes in Reli- gious Opinion : various Sects. ^ It). Cliivalry : its Progress, Character, and InJiu ence. § 20. Causes of the Intellectual Improvement of European Societv. § 21 (I.) The Studv of Civil Law. § 22. (II.) Institution of Universities: their Celeb rity. § 23. .Scholastic Philosophy. § 24. (III.) Cultivation of Modern Lan guages. § 25. Provenijal Poets. § 26. Norman Poets : French Prose Writers § 27. Spanish. § 28. It.alian : early Poets in that Language. § 29. Dante. § .30 Petrarch. § 31. "English Language: its Progress. § .32. Chaucer. § .33. (IV.) Ke vival of Classical Learning : Latin Writers of the Twelfth Century : Literature of the Fourteenth Century. §34. Greek Literature: its Restoration in Italy. § 35. Invention of Printing. § 1. The geographical position of Europe naturally divides its maritime commerce into two principal regions — one com- prehending those countries which border on the Baltic, the German, and the Atlantic oceans ; another, those situated around the Mediterranean Sea. During the four centuries which preceded the discovery of America, and especially the two former of them, this sei)aration was more remarkable than at present, inasmuch as their intercourse, either by land ut in one hundred years more the maritime regions of Meck- lenburg and Fomerania, inhabited l)y a tribe of heathen Scla- vonians, were subdued by some German princes ; and the Teutonic order some time afterwards, having conquered Frus- sia, extended a line of at least com[)arative civilization as far as the Gulf of Finland. The first town erected on the coasts of the Baltic Avas Liibeck, which owes its foundation to fldol- ]ihus, count of Holstein, in 1140. After several vicissitudes it became independent of any sovereign but the emperor in the thirteenth century. Hamburg and Bremen, upon the other side of the Cimbric peninsula, emulated the prosperity of Lii- beck ; the former city purchased independence of its bishop in 1225. A colony from Bremen founded Riga, in Livonia, about 1162. The city of Dantzic grew into importance about the end of the following century. Konigsberg Avas founded by Ottocar, king of Bohemia, in the same age. But the real importance of these cities is to be dated from their famous iinion into the Haiiseatic^ confederacy. The origin of this is rather obscure, but it may certainly be nearly referred in point of time to the middle of the thirteenth century, and accounted for by the necessity of mutual defence, which piracy by sea and pillage by land had taught the merchants of Ger- many. The nobles endeavored to obstruct the formation of this league, which indeed was in great measure designed to withstand their exactions. It powerfully maintained the in- fluence which the free imperial cities were at this time acquir- ing. Eighty of the most considerable places constituted the ■* Adam Rremensis, df Situ I)aiii;i>, p. 13. (Klzcvir edit.) 5 Deri\'ed from the ancient (jeiiiiun word Hanse, signifying an association for mutual support. 590 BALTIC TRADE. Cuap. IX. Pakt II. Hanseatic Confederacy, divided into four colleges, whereof Liibeck, Cologne, Brunswick, and Dantzic were the leading towns. Liibeck held the chief rank, and became, as it were, the patriarchal see of the league ; whose province it was to ])reside in all general discussions for mercantile, political, or military purposes, and to carry them into execution. The league had four principal factories in foreign parts — at Lon- don, Bruges, Bergen, and Novgorod ; endowed by the sover- eigns of those cities with considerable privileges, to which every merchant belonging to a Hanseatic town was entitled. In England the German guildhall or factory was established by concession of Henry III. ; and in later periods the Hanse traders were favored among many others in the capri- cious vacillations of our mercantile policy. The English had also their factories on the Baltic coast as far as Prussia and in the dominions of Denmark. § 3. This opening of a Northern market poAverfully accel- erated the growth of our own commercial opulence, especially after the woollen manufacture had begun to thrive. From about the middle of the fourteenth ceiitury we find continual evidehces of a rapid increase in wealth. Thus, in 13(33, Pic- ard, wlio had been lord mayor some years before, entertained Edward III. and the Black Prince, the kings of Erance, Scot- land, and Cyprus, wath many of the nobility, at his oavu house in the Vintry, and presented them wdth handsome gifts. Philpot, another eminent citizen in Richard II. 's time, when the trade of England was considerably annoyed by privateers, hired lUUO armed men, and despatched them to sea, where they took fifteen Spanish vessels with their prizes. We find Richard obtaining a great deal from -private merchants and trading towns. In 1379 he got £5000 from London, 1000 marks from Bristol, and in proportion from smaller places. In 13(S() London gave £4000 more, and 10,000 marks in 131)7. The latter sum w^as obtained also for the coronation of Henry VI. Xor were the contributions of individuals conteni[)tible, considering the high value of money. Hinde, a citizen of London, lent to Henry lY. £2000 in 1407, and Whittington one-half of that sum. The merchants of the staple advanced £4000 at the same time. Our commerce continued to be regularly and rapidly progressive during the fifteenth century. The famous Canynges of I>ristol, under Henry VI. and Ed- Avard IV., had ships of 900 tons burden. The trade and even the internal wealth of England reached so much higher a pitch in the reign of the last-mentioned king than at any former State OF Society. COMMERCIAL INTERCOURSE. 591 period, that we may perceive the wars of York and Lancaster to have produced no very serious effect on national jjrosperity. Some battles were doubtless sanguinary ; but the loss of lives in battle is soon repaired by a flourishing nation ; and the devastation occasioned by armies was both partial and transi- tory. § 4. A commercial intercourse between these northern and southern regions of Europe began about the early part of the fourteenth century, or, at most, a little sooner. Until, indeed, the use of the magnet was thoroughly understood, and a com- petent skill in marine architecture as well as navigation acquired, the Italian merchants were scarce likely to attempt a voyage perilous in itself, and rendered more formidable by the imaginary difficulties which had been supposed to attend an expedition beyond the straits of Hercules. But the English, accustomed to their own rough seas, were always more intrepid, and probably more skilful navigators. Though it was ex- tremely rare, even in the fifteenth century, for an English trading-vessel to appear in the Mediterranean, yet a famous military armament, that destined for the crusade of Richard I., displayed at a very early time the seamanship of our countrymen. In the reign of Edward II. we find mention in Rymer's Collection of Genoese ships trading to Flanders and England. His son was very solicitous to preserve the friend- ship of that opulent republic ; and it is by his letters to his Senate, or by royal orders restoring ships unjustly seized, that we come by a knowledge of those facts which historians neg- lect to relate. Pisa shared a little in this traffic, and Venice more considerably ; but Genoa was beyond all competition at the head of Italian commerce in these seas during tlie four- teenth century. In the next, her general decline left it more open to her rival ; but I doubt whether Venice ever maintained so strong a connection with England. Through London and Bruges, their chief station in Flanders, the merchants of Italy and of Spain transported Oriental produce to the farthest ]iarts of the North. The inhabitants of the Baltic coast were stimu- lated by the desire of precious luxuries which they had never known ; and these wants, though selfish and frivolous, are the means by which nations acquire civilization, and the earth is rendered fruitful of its produce. As the carriers of this trade the Hanseatic merchants resident in England and FLanders derived profits through which eventually of course those coun- tries were enriched. It seems that the Italian vessels unloaded at the marts of London or Bruges, and that such part of their 692 COMMERCE OF THE Chap. IX. Part II. cargoes as were intended for a more northern trade came there into the hands of the German merchants. In the reign of Henr}^ VI. England carried on a pretty extensive traffic with the countries around the Mediterranean, for whose commodi- ties her wool and woollen cloths enabled her to pay. § 5. The commerce of the southern division, though it did not, I think, produce more extensively beneficial effects upon the progress of society, was both earlier and more splendid than that of England and the neighboring countries. Besides Venice, which has been mentioned already, Amalh kept up the commercial intercourse of Christendom with the Saracen coun- tries before the first crusade. It Avas the singular fate of this city to have filled up the interval between two periods of civili- zation, in neither of which she Avas destined to be distinguished. Scarcely known before the end of the sixth century, Amalfi ran a brilliant career as a free and trading republic, which was cliecked by the arms of a conqueror in the middle of the twelfth. Since her subjugation by Eoger, king of Sicily, the name of a people who for a while connected Europe Avith Asia has hardly been repeated, except for tAvo discoveries falsely imputed to them — those of the Pandects and of the compass. But the decline of Amalfi Avas amply compensated to the rest of Italy by the constant elevation of Pisa, Genoa, and Venice in the twelfth and ensuing ages. The Crusades led immediately to this growing prosperity of the commercial cities. Besides the profit accruing from so many naval arma- ments which they supplied, and the continual passage of private adventurers in their vessels, they Avere enabled to open a more extensive channel of Oriental traffic than had hitherto been knoAvn. These three Italian republics enjoyed immuni- ties in the Christian principalities of Syria ; possessing se])arate quarters in Acre, Tripoli, and otlier cities, where they were governed by their own laws and magistrates. Though the progress of commerce must, fi'om the condition of European industry, have been sIoav, it Avas uninterrupted ; and the settle- ments in Palestine were becoming important as factories, an use of Avhich Godfrey and Urban little dreamed, when they Avere lost through tlie guilt and imprudence of their inhabit- ants. Villani laments the- injury sustained by commerce in consequence of the capture of Acre ; but the loss Avas soon retrieved, not perhaps by Pisa and Genoa, but by Venice, Avho formed connections with the Saracen governments, and main- tained her commercial intercourse Avith Syria and Egypt by their license, though subject probably to heaA^ exactions. State of Society. MEDITERRANEAN COUNTRIES. 593 Saiiuto, a Venetian author at the beginning of the fourteenth century, has left a curious account of the Levant trade which his countrymen carried on at that time. Their imports it is easy to guess, and it appears that timber, brass, tin, and lead, as well as the precious metals, were exported to Alexandria, besides oil, saffron, and some of the productions of Italy, and even wool and woollen cloths. The European side of the account had therefore become respectable. The commercial cities enjoyed as great privileges at Con- stantinople as in Syria, and they bore an eminent part in the vicissitudes of the Eastern Empire. After the capture of Con- stantinople by the Latin crusaders, the Venetians, having been concerned in that conquest, became, of course, the favored traders under the new dynasty ; possessing their own district in the city, with their magistrate or podesta, appointed at Ven- ice, and subject to the parent republic. When the Greeks recovered the seat of their empire, the Genoese, Avho, from jealousy of their rivals, had contributed to that revolution, obtained similar immunities. This powerful and enterprising state, in the fourteenth century, sometimes the ally, sometimes the enemy, of the Byzantine Court, maintained its independent settlement at Pera. From thence she spread her sails into the Euxine, and, planting a colony at Calfa, in the Crimea, ex- tended a line of commerce with the interior regions of Asia which even the skill and spirit of our own times has not been able to revive. The French })ruvinces which border on the Mediterranean Sea partook in the advantages which it offered. Not only Marseilles, whose trade had continued in a certain degree througliout the worst ages, but Narbonne, Nismes, and espe- cially Montpellier, were distinguished for commercial prosper- ity. A still greater activity prevailed in Catalonia. From the middle of the thirteenth century Barcelona began to emu- late the Italian cities in lioth the branches of naval energy, war and commerce. Engaged in frequent and severe hostili- ties with Genoa, and sometimes with Constantinople, while their vessels traded to every part of the Mediterranean, and even of the English Channel, the Catalans miglit justly be reckoned among the first of maritime nations. The commerce of Barcelona has never since attained so great a height as in tlie fifteenth century. § 6. The introduction of a silk maiuifacture at Palermo by Roger Guiscard, in 1148, gave, perhaps, the earliest impulse to the industry of Italy. Nearly about the same time the 594 THE MARINER'S COMPASS. Chap. IX. Part II. Genoese plundered two ^loorisli cities of Spain, from which they derived tlie same art. In the next age tlas became a stai)le manufacture of the Lombard and Tuscan republics, and the cultivation of mulberries was enforced by their laws. Woollen stuffs, though the trade was, perhaps, less conspicu- ous than that of Flanders, and though many of the coarser kinds were imported from thence, employed a multitude of workmen in Italy, Catalonia, and the south of France. Among the trading companies into Avhich the middling ranks were distributed, those concerned in silk and woollens were most numerous and honorable. § 7. A pro})erty of a natural substance, long overlooked, even though it attracted observation by a different ]ieculiarity, has influenced by its accidental discovery the fortunes of man- kind more than all the deductions of philosophy. It is, per- haps, impossible to ascertain the epoch Avhen the polarity of the magnet was first known in Europe. The common opinion, which ascribes its discovery to a citizen of Amalfi in the four- teenth century, is undoubtedly erroneous. Guiot de Provins, a French poet, Avho lived about the year 1200, or at the latest under St. Louis, describes it in the most imequivocal language. James de Vitry, a bishop in I'alestine before the middle of the thirteenth century, and Guido Guinizzelli, an Italian poet of the same time, are equally explicit. The French as well as Italians claim the discovery as their own ; but whether it was due to either of these nations, or rather learned from their in- tercourse with the Saracens, is not easily to be ascertained. For some time, perhaps, even this wonderful improvement in the art of navigation might not be universally adopted by ves- sels sailing in the Mediterranean, and accustomed to their old S3'stem of observations. But when it became more established, it naturally inspired a more fearless spirit of adventure. It was not, as has been mentioned, till the beginning of the four- teenth century that the Genoese and other nations around that inland sea steered into the Atlantic Ocean towards England and Flanders. This intercourse with the Northern countries enlivened their trade with the Levant by the exchange of pro- ductions which Spain and Italy do not supply, and enriched the merchants by means of whose capital the exports of London and of Alexandria were conveyed into each other's harbors. § 8. The usual risks of navigation, and those incident to commercial adventure, produce a variety of questions in ev- ery system of jurisprudence, which, though always to be State OF Society. MARITIME LAWS. 595 determined, as far as possible, by prinf'i}»les of natural jus- tice, must in many cases depend upon established customs. These' customs of maritime law were anciently reduced into a code by the Rhodians, and the Roman emperors preserved or reformed the constitutions of that republic. It would be hard to say how far the tradition of this early jurisprudence survived the decline of commerce in the darker ages ; but after it began to recover itself, necessity suggested, or recol- lection proinpted a scheme of regulations resembling in some degree but much more enlarged than those of antiquity. This was formed into a written code, " 11 Consolato del Mare," not much earlier, probably, than the middle of the thirteenth cen- tury ; and its promulgation seems rather to have proceeded from the citizens of Barcelona than from those of Pisa or Venice, who have also claimed to be the first legislators of the sea. Besides regulations simply mercantile, this system has defined the mutual rights of neutral and belligerent vessels, and thus laid the basis of the positive law of nations in its most important and disputed cases. The King of France and Count of Provence solemnly acceded to this maritime code, which hence acquired a binding force within the Mediterra- nean Sea ; and in most respects the law merchant of Europe is at present conformable to its provisions. A set of regula- tions, chiefly borrowed from the " Consolato," was compiled in France under the reign of Louis IX., and prevailed in their own country. These have been denominated the laws of Oleron, fi'om an idle story that they were enacted by Richard I. while his expedition to the Holy Land lay at anchor in that island. Kor was the North without its peculiar code of mari- time jurisprudence — namely, the ordinances of Wisbuy, a town in the isle of Gothland, principally compiled from those of Oleron, before the year 1400, by which the Baltic traders were governed. There was abundant reason for establishing among mari- time nations some theory of mutual rights, and for securing the redress of injuries, as far as possible, by means of acknowl- edged tribunals. In that state of barbarous anarchy which so long resisted the coercive authority of civil magistrates the sea held out even more temptation and more impunity than the land ; and when the laws had regained their sovereignty, and neither robbery nor private warfare was any longer tolerated, there remained that great common of mankind, unclaimed by any king, and the liberty of the sea was another name for the security of plunderers. A pirate, in a well-armed quick-sail- 596 PIRACY. — LAW OF REPRISALS. Chap. IX. Pakt IL ing vessel, must feel, I suppose, the enjoyments of his exemp- tion from control more exquisitely than any other free-booter ; and darting along the bosom of tlie ocean, under the impartial radiance of the heavens, may deride the dark concealments and hurried flights of the forest robber. His occupation is, indeed, extinguished by the civilization of later ages, or con- lined to distant climates. But in the tliirteenth and fourteenth centuries a rich vessel was never secure from attack ; and neither restitution nor punishment of the criminals was to be obtained from governments who sometimes feared the plun- derer and sometimes connived at the offence. Mere piracy, however, was not the only danger. The maritime towns of Flanders, France, and England, like the free republics of Italy, prosecuted their own quarrels by arms, without asking the leave of their respective sovereigns. This practice, ex- actly analogous to that of private war in the feudal system, more than once involved the kings of France and England in hostility.® But where the quarrel did not proceed to such a length as absolutely to engage two opposite towns, a modifica- tion of this ancient right of revenge formed part of the regu- lar law of nations, under the name of reprisals. Whoever was plundered or injured by the inhabitant of another town ob- tained authority from his own magistrates to seize the property of any other person belonging to it, until his loss should be compensated. This law of reprisal was not confined to mari- time places; it prevailed in Lombardy, and probably in the German cities. Thus, if a citizen of Modena were robbed by a Bolognese, he complained to the magistrates of the former city, who represented the case to those of Bologna, demanding redress. If this were not immediately granted, letters of re- prisals were issued to plunder the territory of Bologna till the injured party should l)e reimbursed by sale of the spoil. Ed- ward III. remonstrates, in an instrument publislied by Rymer, against letters of marque granted by the king of Aragon to one Berenger de la Tone, who had been robbed by an English pirate of £2(100, alleging that, inasmuch as he had always been ready to give redress to the party, it seemed to liis coun- sellors that there was no just cause for reprisals upon the king's or his subjects' property. This passage is so far curi- s The Clinque Ports and other trading towns of Enghmd were in a constant state of Iiostility with their opposite neiglibors during tlie reigns of Edward I. and II. One nuglit ([iiote almost lialf the instruments in llynier in proof of these conflicts, and of those with the mariners of Norway and Denmark. Sometimes mutual envy produced frays between dillerent English towns. Thus in 125-1 the Wiuchelsea man- ners attacked a Yarmouth galley, and killed some of her men. State OF Society. GREAT PROFITS OF TRADE. 597 ous as it asserts the existence of a customary law of nations, the knowledge of which was already a sort of learning. Sir E. Coke speaks of this right of private reprisals as if it still existed; and, in fact, there are instances of granting such letters as late as the reign of Charles I. A practice founded on the same principles as reprisal, though rather less violent, was that of attaching the goods or persons of resident foreigners for the debts of their countrymen. This, indeed, in England, was not confined to foreigners until the statute of Westminster I., c. 23, which enacts that " no stranger who is of this realm shall be distrained in any town or market for a debt wherein he is neither principal nor surety." Henry III. had previously granted a charter to the burgesses of Liibeck that they should " not be arrested for the debt of any of their countryinen, unless the magistrates of Liibeck neglected, to compel payment." But, by a variety of grants from Edward II., the ])rivileges of English subjects under the statute of Westminster were extended to most foreign nations. This unjust responsibility had not been con- fined to civil cases. One of a company of Italian merchants, the Spini, having killed a man, the officers of justice seized the bodies and effects of all the rest. § 9. If under all these obstacles, whether created by bar- barous manners, by national prejudice, or by the fraudulent and arbitrary measures of princes, the merchants of different countries became so opulent as almost to rival the ancient nobility, it must be ascribed to the greatness of their commer- cial profits. The trading companies possessed either a positive or a virtual monopoly, and held the keys of those Eastern regions, for the luxuries of which the progressive refinement of manners produced an increasing demand. It is not easy to determine the average rate of profit ; but we know that the interest of money was exceedingly high throughout the Middle Ages. At Verona, in 1228, it was fixed by law at twelve and a half per cent ; at Modena, in 1270, it seems to have been as high as twenty. The republic of Genoa, towards the end of the fourteenth century, when Italy had grown wealthy, paid only from seven to ten per cent to her creditors. But in France and England the rate was far more oppressive. An ordinance of Philip the Eair, in 1311, allows twenty per cent after the first year of the loan. Under Henry III., according to Matthew Paris, the debtor paid ten per cent every two months ; but this is absolutely incredible as a general prac- tice. This was not merely owing to scarcity of money, but to 598 JEWS' MONET DEALINGS. Chap. IX. Part IT. tiie discouragement which a strange ])rejudiee opposed to one of the most useful and legitimate branches of commerce. Usury, or lending money for protit, was treated as a crime by tlie theologians of the ^liddle Ages ; and though the supersti- tion has been eradicated, some part of the prejudice remains in our legislation. This trade in money, and indeed a great part of inland trade in general, had originally fallen to the Jews, who were noted for their usury so early as the sixth century.'^ For several subsequent ages they continued to em- ploy their capital and industry to the same advantage, with little molestation from the clergy, who always tolerated their avowed and national infidelity, and often with some encourage- ment from princes. In the twelfth century we find them not only possessed of landed property in Languedoc, and cultivat- ing the studies of medicine and Rabbinical literature in their own academy at jNIontpellier, under the protection of tlie Count of Toulouse, but invested with civil olii(;es. In Spain they were placed by some of the municipal laws on the footing of Christians, witli respect to the composition for their lives, and seem in no other European country to have been so numerous or considerable. The diligence and expertness of this people in all ])ecuniary dealings recommended them to princes Avho were solicitous about the improvement of their revenue. Two kings of Castile, Alonzo XL and Peter the Cruel, incurred much odium by employing Jewish ministers in their treasury. But in other parts of Europe their condition had, before that time, begun to change for the worse — partly from the fanati- cal spirit of the Crusades, which jorompted the populace to massacre, and partly from the jealousy which their opulence excited. Kings, in order to gain money and popidarity at once, abolislied the debts due to tlie children of Israel, except a part which they retained as the price of their bounty. One is at a loss to conceive the process of reasoning in an ordinance of St. Louis, where, " for the salvation of his own soul and those of his ancestors, he releases to all Christians a tliird part of what was owing by them to Jews." Not content witii such edicts, the kings of France sometimes banished the whole nation from their dominions, seizing their effects at the same time ; and a season of alternative severity and toleration continued till, under Charles VI., they were finally expelled from the kingdom, where they never afterwards possessed any legal settlement. They were expelled from England under Edward I., and never 7 Greg. Turon., 1. iv. State OF Society. BANKS OF GENOA AND OTUEKS. 599 obtained any legal permission to reside till the time of Crom- well. This decline of the Jews was owing to the transference of their trade in money to other hands. In the early part of tlie thirteenth century the merchants of Lombardy and of the south of France took up the business of remitting money by bills of exchange, and of making proht upon loans. The utility of this was found so great, especially by the Italian clergy, wlio thus in an easy manner drew the income of their transalpine benefices, that, in spite of much obloquy, the Lombard usurers established themselves in every country, and the general progress of commerce wore off the bigotry that had obstructed their reception. A distinction was made be- tween moderate and exorbitant interest; and though the casuists did not accpiiesce in this legal regulation, yet it satis- fied, even in superstitious times, the consciences of provident traders,^ The Italian bankers were frequently allowed to farm the customs in England, as a security, perhaps, for loans which were not very punctually repaid. In 1345 the Bardi at Florence, the greatest company in Italy, became bankrupt, Edward III. owing them, in piincipal and interest, 900,000 gold florins. Another, the Peruzzi, failed at the same time, being creditors to Edward for 600,000 florins. The King of Sicily owed 100,000 florins to each of these bankers. Their failure involved, of course, a multitude of Florentine citizens, and was a heavy misfortune to the state. § 10. The earliest bank of deposit, instituted for the accom- modation of private merchants, is said to have been that of Barcelona, in 1401. The banks of Venice and Genoa were of a different description. Although the former of these two has the advantage of greater antiquity, having been formed, as we are told, in the twelfth century, yet its early history is not so clear as that of Genoa, nor its political importance so remark- able, however similar might be its origin. During the wars of Genoa in the fourteenth .century, she had borrowed large sums of private citizens, to whom the revenues were pledged for repayment. The republic of Florence had set a recent, though not a very encouraging, example of a public loan, to defray the 8 Usury was looked upon with horror by our English divines long after the Refor- mation. One species of usury, and that of the highest importance to commerce, was always permitted, on account of the ri.sk tliat attended it. This was marine insurance, whicli could not have existed until money was considered, in itself, as a source of profit. Tlie earliest regulations on the subject of insurance are those of Barcelona ill 14.33; but the practice was, of course, earlier tlian these, though not of great antiq- uity. It is not mentioned in the " Consolato del Mare," nor in any of the Hanseatic laws of the fourttcuth ceutury. 600 DOMESTIC EXPENDITUKE. Chap. IX. Pakt II. expense of lier war against Mastino della Scala, in 1336. The chief mercantile firms, as well as individual citizens, furnished money on an assignment of the taxes, receiving fifteen per cent interest, which appears to have been above the rate of private usury. The state was not unreasonably considered a worse debtor than some of her citizens, for in a few years these loans were consolidated into a general fund, or tnonte, with some deduction from the capital and a great diminution of interest ; so tliat an original debt of one hundred florins sold only for twenty-five. But I have not found that these creditors formed at Florence a corporate body, or took any part, as such, in the affairs of the re[)ublic. The case was different at Genoa. As a security, at least, for their interest, the subscribers to public loans were permitted to receive the produce of the taxes by their own collectors, paying the excess into the treasury. The number and distinct classes of these subscribers becoming at length inconvenient, they were formed, about the year 1407, into a single corporation, called the Bank of St. George, Avhich was from that time the sole national creditor and nujrtgagee. The government of this was intrusted to eight protectors. It soon became almost independent of the state. Every Senator, on his admission, swore to maintain the privileges of the bank, which were confirmed by the pope,, and even by the emperor. The bank interposed its advice in every measure of government, and generally, as is admitted, to the public advantage. It equipped armaments at its own expense, one of which subdued the island of Corsica ; and this acquisition, like those of our great Indian corporation, was long subject to a company of merchants, without any interference of the mother country. § 11. The increasing wealth of Europe, whether derived from internal ini})rovenient or foreign commerce, displayed itself in more expensive consumption, and greater refinements of domes- tic life. But these effects were for a long time very gradual. It is not till the latter half of the thirteenth century that an accelerated impulse appears to be given to society. The just government and suppression of disorder under St. Louis, and the peaceful temper of his brother Alfonso, count of Toulouse and Poitou, gave France leisure to avail herself of her admir- able fertility. England, that to a soil not greatly inferior to that of France united the inestimable advantage of an insular position, and was invigorated, above all, by her free constitu- tion and the steady industriousness of her people, rose with a pretty uniform motion from the time of Edward I. Italy, though the better days of freedom had passed away in most I State OF Society SUMPTUARY LAWS. 601 of her republics, made a rapid transition from simplicity to re- finement. " In tliose times," says a writer about the year loOO, speaking of the age of Frederick II., "the manners of the Ital- ians were rude. A man and his wife ate oft tlie same plate. There were no wooden-handled knives, nor more than one or two drinking-cups in a house. Candles of wax or tallow were unknown ; a servant held a torcli during supper. The clothes of men were of leather unlined : scarcely any gold or silver Avas seen on their dress. The common people ate flesh but three times a week, and kept their cold meat for supper. Many did not drink wine in summer. A small stock of coru seemed riches. The portions of women were small ; their dress, even after marriage, was simple. The pride of men was to be well 13rovided with arms and horses ; that of the nobility to have lofty towers, of which all the cities in Italy were full. But now frugality has been changed for sumptuousness ; everything exquisite is sought after in dress — gold, silver, pearls, silks, and rich furs. Foreign wines and rich meats are required. Hence usury, rapine, fraud, tyranny,'"^ etc. This passage is supported by other testimonies nearly of the same time. The conquest of iSTaples by Charles of Anjou, in 1266, seems to have been the epoch of increasing luxury througliout Italy. His Provencal knights, with their plumed helmets and golden col- lars, the chariot of his queen covered Avith blue velvet and sprinkled with lilies of gold, astonished the citizens of Naples. Provence had enjoyed a long tranquillity, the natural source of luxurious magnificence ; and Italy, now liberated from the yoke of the empire, soon reaped the same fruit of a condition more easy and peaceful than had been her lot for several ages. Througliout the fourteenth century there continued to be a rapid but steady progression in England of what we may de- nominate elegance, improvement, or luxury ; and if this was for a time suspended in France, it must be ascribed to the unusual calamities which befell that country under Philip of Valois and his son. Just before the breaking out of the En- glish Avars an excessive fondness for dress is said to have dis- tinguished not only the higher ranks, but the burghers, Avhose' foolish emulation at least indicates their easy circumstances. Modes of dress hardly, perhaps, deserve our notice on their OAvn account ; yet, so far as their universal prevalence Avas a symptom of diffused Avealth, we sliould not OA^erlook either the invectives bestoAved by tlie clergy on the fantastic extrava- 3 Ricobaklus Ferrarensis, apud Blurat. Dissert.^ 23. Fraucisc. Pippiuus, ibidem. 602 KEFINEMENT AND LUXURY. Chap. IX. Pakt II. gances of fashion, or the sumptuary laws by which it was endeavored to restrain them. Tiie principle of sumptuary laAvs was partly derived from the small republics of antiquity, which might, perhaps, require that security for puljlic spirit and equal rights — partly from the austere and injudicious theory of religion disseminated by the clergy. These prejudices united to render all increase of general comforts odious under tlie name of luxury ; and a third motive, more powerful than either, the jealousy with which the great regard anything like imitation in those beneath them, co-operated to produce a sort of restrictive code in the laws of Europe. Some of those regulations are more ancient ; but the chief part were enacted, both in France and England, during the fourteenth century, extending to expenses of the table as well as apparel. The lirst statute of this descrip- tion in our own country was, however, repealed the next year ; " and subsequent provisions were entirely disregarded by a na- tion wluch valued liberty and commerce too much to obey laws conceived in a spirit hostile to both. Laws, indeed, designed by those governments to restrain the extravagance of their subjects may well justify the severe indignation which Adam Smith has poured upon all such interference with private expenditure. Towards the latter part of the fourteenth century there was more refinement and luxury in Italy than in any other part of Europe. In France the burghers, and even the inferior gentry, were for the most part in a state of poverty at this period, which they concealed by an affectation of ornament ; while our English yeomanry and tradesmen were more anxious to invigo- rate their bodies by a generous diet than to dwell in well-fur- nished houses, or to find comfort in cleanliness and elegance. The German cities, however, had acquired with liberty the spirit of improvement and industry. From the time that Henry V. admitted their artisans to the privileges of free burghers they became more and more prosperous ; while the steadiness and frugality of the German character compensated for some disadvantages arising out of their inland situation. Spire, Nuremberg, Eatisbon, and Augsburg were not, indeed, like the rich markets of London and Bruges, nor could their burghers rival the princely merchants of Italy ; but they en- 1" 37 Edward HI., Hep. 3S Edwiird III. Several other .statute.s of a similar nature were passed in this and the ensuing reign. In France, there were sumptuary laws as old as Charlemagne, proliibiting or taxing tlie use of furs; but the first extensive regulation was under I'hilip tlie V:\\v. These attempts to restrain what cannot be restrained continued even down to 1700. State OF SociETi'. CIRCULxVR TOWEliS. 003 joyed the blessings of competence diffused over a large class of industrious freemen, and in the fifteenth century one of the politest Italians could extol their splendid and well-furnished dwellings, their rich apparel, their easy and affluent mode of living, the security of their rights and just equality of their laws.^^ § 12. No chapter in the history of national manners Avould illustrate so well, if duly executed, the progress of social life as that dedicated to domestic architecture. The fashions of dress and of amusements are generally capricious and irre- ducible to rule ; but every change in the dwellings of man- kind, from the rudest wooden cabin to the stately mansion, has been dictated by some principle of convenience, neatness, comfort, or magnificence. The most ancient buildings which we can trace in this island, after the departure of the llomans, were circular towers of no great size, whereof many remain in Scotland, erected either on a natural eminence or on an artificial mound of earth. Such are Conisborough Castle in Yorkshire, and Castleton in Derby- shire. To the lower chambers of those gloomy keeps tliere was no admission of light or air except through long narrow loop-holes and an aperture in the roof. Regular windows were made in the upper apartments. Were it not for the vast thickness of the walls, and some marks of attention both to convenience and decoration in these structures, we might be induced to consider them as rather intended for security during the transient inroad of an enemy tlian for a chieftain's usual residence. They bear a close resemblance, except by their circular form and more insulated situation, to the peels, or square towers of three or four stories, which are still found contiguous to ancient mansion-houses in the northern counties, and seem to have been designed for places of refuge, though many of them were also built for residence. In course of time, tlie barons who owned these castles began to covet a more comfortable dwelling. The keep was either much enlarged, or altogether relinquished as a place of resi- dence, except in time of siege ; while more convenient apart- ments were sometimes erected in the tower of entrance, over the great gate-way, Avhich led to the inner ballium, or court- yard. The windows in this class of castles were still little better than loop-holes on the basement story, but in the upper rooms often large and beautifully ornamented, though always " jEneas Sylvius, de Moiibus Gennanorum. This treatise is an amplified pane- gyric upon Germany, and contains several curious passages. 604 PROGRESS OF Chap. IX. Part II. looking in^yard to the court. Edward I. introduced a more s})lendid and convenient style of castles, containing many- habitable towers, with communicating apartments. Conway and Carnarvon will be familiar examples. The next innovation was the castle-palace — of which Windsor, if not quite the earliest, is the most magnificent instance. Alnivick, Naworth, Harewood, Spoft'orth, Kenilworth, and Warwick, were all built upon this scheme during the fourteenth century, but subse- quent enlargements have rendered caution necessary to distin- guish their original remains. The provision for defence became now, however, little more than nugatory ; large arched win- dows, like those of cathedrals, were introduced into halls, and this change in architecture manifestly bears witness to the cessation of baronial wars and the increasing love of splendor in the reign of Edward III. To these succeeded the castellated houses of the fifteenth century — such as Herstmonceux, in Sussex ; Haddon Hall, in Derbyshire ; and the older part of Knowle, in Kent.-^^ They resembled fortified castles in their strong gate-ways, their turrets and battlements, to erect which a royal license was necessary; but their defensive strength could onl}^ have availed against a sudden affray or attempt at forcible dispossession. They were alwaj'^s built round one or two courtyards, the cir- cumference of the first, when they were two, being occupied by the offices and servants' rooms, that of the second by the state apartments. Regular quadrangular houses, not castel- lated, were sometimes built during the same age, and under Henry VII. became universal in the superior style of domestic architecture. The quadrangular form, as well from security and convenience as from imitation of conventual houses, which were always constr\icted upon that model, was generally pre- ferred — even where the dwelling-house, as indeed was usual, only took up one side of the enclosure, and the remaining three contained the offices, stables, and farm-buildings, with walls of comnumication. Several very old parsonages apjiear to have been built in this manner. ^^ A great part of England affords no stone fit for building, and the vast, though unfortunately not inexhaustible, resources of her oak forests were easily applied to less durable and magnificent structures. A frame 1- The ruins of Herstnionceux arc, I believe, tolerably authentic remains of Henry VI. 's age, but only a part of Haddon Hall is of the tifteentli century. 13 The quadraniriiiar foini, however, was nut ancient — Aydon, Northumberland; Little Wenham Hall, SuHblk; JIarkenfield Hall, Yorkshire; and Great Chalfield, Wilts — ransin^ in date from the latter half of the thirteenth century to the latter lialf of the tifleeuth c^.'Utury — ^ire not quadrangular. Others might b. liuuied. State OF Society. CIVIL ARCniTECTUKE 605 of massive timber, independent of walls and resembling the inverted linll of a large ship, formed the skeleton, as it were, of an ancient hall — the principal beams springing from the ground naturally curved, and forming a Gothic arch overhead. The intervals of these Avere filled up with horizontal planks ; but in the earlier buildings, at least in some districts, no part of the walls was of stone. Stone houses are, however, men- tioned as belonging to citizens of London even in the reign of Henry II. ; and, though not often, perhaps, regularly heAvn stones, yet those scattered over the soil or dug from flint quar- ries, bound together with a very strong ana durable cement, were employed in the construction of manorial houses, espe- cially in the western counties and other parts where that material is easily procured. Gradually, even in timber-buildings, the intervals of the main beams, which now became perpendicular, not throwing oft" their curved springers till they reached a considerable heiglit, were occupied by stone walls, or, where stone was expensive, by mortar or plaster, intersected by hor- izontal or diagonal beams, grooved into the principal piers. This mode of building continued for a long time, and is still familiar to our eyes in the older streets of the metropolis and other towns, and in many parts of the country, but it did not come into general use till the reign of Henry VI. The use of brick in building seems to have fallen into comparative disuse ; but so simple an art as making bricks can hardly have been lost. We have an instance of an early edifice constructed chiefly of this material in Little Wenham Hall, in Suffolk, which was erected about 1270 ; but many considerable liouses as well as public buildings were erected with bricks during his reign and that of Edward IV., chiefly in the eastern counties, where the deficiency of stone was most experienced. Queen's College and Clare Hall, at Cambridge, and part of Eton Col- lege, are subsisting Avitnesses to the durability of the material as it was then employed. It is an error to suppose that the English gentry were lodged in stately or even in well-sized houses. Generally speaking, their dwellings were almost as inferior to those of their descend- ants in capacity as they were in convenience. The usual ar- rangement consisted of an entrance-passage running through the house, with a hall on one side, a parlor beyond, and one or two chambers above ; and on the opposite side, a kitchen, pan- try, and other offices. Sucli was the ordinary manor-house of the fifteenth and sixteenth centuries. Larger structures were erected by men of great estates after the wars of the Roses ; 606 INVENTION OF CHIMNEYS. CuAP. IX. Paiit II. but I should conceive it difficult to name a house in England, still inhabited by a gentleman and not belonging to tlie order- of castles, the princi})al apartments of which are older than the reign of Henry VII. The instances at least must be extremely few." France by no means appears to have made a greater progress than our own country in domestic architecture. Except forti- tied castles, I do not find any considerable dwellings mentioned before tlie reign of Charles VII., and very few of so early a date. Even in Italy, where, from the size of her cities and social refinements of her inhabitants, greater elegance and splendor in building were justly to be expected, the domestic architecture of the Middle Ages did not attain any perfection. In several towns the houses were covered with thatch, and suffered consequently from destructive fires. The two most essential improvements in architecture dur- ing this period, one of Avhich had been missed by the sagacity of Greece and Rome, were chimneys and glass windows. Noth- ing, apparently, can be more simple tlian the former ; yet the wisdom of ancient times had been content to let the smoke escape by an aperture in the centre of the roof; and a dis- covery, of which Vitruvius had not a glimpse, was made, per- haps in this country, by some forgotten semi-barbarian. About the middle of the fourteenth century the use of chimneys is distinctly mentioned in England and in Ita,ly ; but they are found in several of our castles which bear a much older date.^^ This country seems to have lost very early the art of making glass, Avhich was preserved in France, whence artificers were brought into England to furnish the windows in some new churches in the seventh century. It is said that in the reign of Henry III. a few ecclesiastical buildings had glazed windows. Suger, however, a century before, had adorned his great work, " For further details on Domestic Architecture in England, see NoTK I. "' Mr. Twopeny observes : " I'liere does not ai)i)ear to be anv evidence of the use of chimney-sliafts in England prior to the twelfth century. In Rochester Castle, which is in all probability the work of William ("orbyl, about 1130, there are complete fireplaces with semicircular backs, and a shaft in each jamb, supporting a semicircu- lar arch over the opening, and that is enriched with the zigzag moulding ; some of these project slightly from the wall ; the (lues, however, go only a few ieet up in the thickness of the wall, and are then turned out at the back, the ajiertures being small oblong holes. At the castle, Hedingham, Essex, which is of about the same date, there are fireplaces and chimneys of a similar kind. A few years later, the improve- niciit of can-ying tlie flue up the whole height of the wall appears ; as at Christ Church, Hants ; the keep at Newcastle ; Sherborne Castle, etc. The early chimney- shafts are of considerable height, and circular ; afterwards they assumed a great variety of forms, and during llie fourteenth century they are frecj'uenlly very short." — (ilo'ssary of Ancient Architecture, p. 100, edit. 1845. It is said, tt)o, here that chimneys were seldom used in halls till near the end of the fifteenth century ; the smoke took its course, if it pleased, through a hole in the roof. State OF Society. FURNITURE OF HOUSES. 607 the Al)bey of St. Denis, with windows, not only glazed but painted ; and I presume that other churches of the same class, both in France and England, especially after the lancet-shaped window had yielded to one of ampler dimensions, were gen- erally decorated in a similar manner. Yet glass is said not to have been employed in the domestic architecture of France before the fourteenth century; and its introduction into England was probably by no means earlier. Nor, indeed, did it come into general use during the period of the Middle Ages. Glazed windows were considered as movable furniture, and probably bore a high price. When the earls of Northumberland, as late as the reign of Elizabeth, left Alnwick Castle, the windows were taken out of their frames, and carefully laid by. But if the domestic buildings of the fifteenth century would not seem very spacious or convenient at present, far less would this luxurious generation be content with their internal accommodations. A gentleman's house containing three or four beds was extraordinarily Avell provided; few, probably, had more than two. The walls were commonly bare, without wainscot or even plaster ; except that some great houses were furnished with hangings, and that perhaps hardly so soon as the reign of Edward IV. It is unnecessary to add, that neither libraries of books nor pictures could have found a place among furniture. Silver plate was very rare, and hardly used for the table. A few inventories of furniture that still remain exhibit a miserable deficiency. And this was incomparably greater in private gentlemen's houses than among citizens, and especially foreign merchants. We have an inventory of the goods be- longing to Contarini, a rich Venetian trader, at his house in St. I>otolph's Lane, a.d. 1481. Tliere ajjpear to have been no less than ten IkhIs, and glass windows are es])ecially noticed as movable furniture. No mention, however, is made of chairs or looking-glasses. If we comj)are this account, however trifling in our estimation, with a similar inventory of furniture in Skipton Castle, the great honor of the earls of Cumberland, and among the most splendid mansions of the North, not at the same period — for I have not found any inventory of a nobleman's furniture so ancient — but in 1572, after almost a century of continual improvement, we shall be astonished at the inferior provision of the baronial residence. There were not more than seven or eight beds in this great castle ; nor had any of the chambers either chairs, glasses, or carpets. It is in this sense, probably, that w(^ must luiderstand ^neas Sylvius, if he meant anything more than to express a traveller's discon- 008 FARM-HOUSES. Chap. IX. Paet IT. tent, when he declares that the kings of Scotland would rejoice to be as well lodged as the second class of citizens at Nurem- berg. Few burghers of that town had mansions, I presume, equal to the palaces of Dunfermline or Stirling; but it is not vmlikely that they were better furnished. In the construction of farmhouses and cottages, especially the latter, there have probably been fewer changes ; and those it would be more difficult to follow. No building of this class can be supposed to exist of the antiquity to which the present work is confined ; and I do not know that we have any docu- ment as to the inferior architecture of England so valuable as one of which M. de Paulmy has quoted for that of France, though perhaps more strictly applicable to Italy, an illumi- nated manuscript of the fourteenth century, being a translation of Crescentio's work on agriculture, illustrating the customs and, among other things, the habitations of the agricultural class. According to Paulmy, there is no other difference be- tween an ancient and a modern farmhouse than arises from the introduction of tiled roofs. In the original work of Cres- centio, a native of Bologna, who composed this treatise on rural affairs about the year 1300, an Italian farmhouse, when built at least according to his plan, appears to have been commodious both in size and arrangement. Cottages in Eng- land seem to have generally consisted of a single room, with- out division of stories. Chimneys were unknown in such dwellings till the early part of Elizabeth's reign, when a very rapid and sensible improvement took place in the comforts of our yeomanry and cottages. § 13. It must be remembered that I have introduced this disadvantageous representation of civil architecture as a proof of general poverty and backwardness in the refinements of life. Considered in its higiier departments, that art is the principal boast of the Middle Ages. Tlie common bidldings, especially those of a public kind, were constructed with skill and attention to durability. The castellated style displays these qualities in great perfection ; the means are well ada]>ted to their objects, and its imposing grandeur, though chiefly resulting, no doubt, from massiveness and historical association, sometimes indicates a degree of architectural genius in the conception. Ikit the most remarkable works of this art are the religious edifices erected in the twelfth and three following centuries. These structures, uniting sublimity in general composition with the beauties of variety and form, intricacy of ]3arts, skilful or at least fortunate State of Society. ECCLESIASTICAL ARCHITECTURE. 609 effects of shadow and light, and m some instances with ex- traordinary mechanical science, are naturally apt to lead those antiquaries who are most conversant with them into too partial estimates of the times wherein they were founded. They certainly are accustomed to behold the fairest side of the picture. It was the favorite and most honorable employ- ment of ecclesiastical Avealth to erect, to enlarge, to repair, to decorate cathedral and conventual churches. An immense capital must have been expended upon these buildings in England between the Conquest and the Reformation. And it is pleasing to observe how the seeds of genius, hidden as it were under the frost of that dreary winter, began to bud in the first sunshine of encouragement. In the darkest period of the Middle Ages, especially after the Scandinavian incur- sions into France and England, ecclesiastical architecture, though always far more advanced than any other art, bespoke the rudeness and poverty of the times. It began towards the latter part of the eleventh century, when tranquillity, at least as to former enemies, was restored, and some degree of learn- ing reappeared, to assume a more noble . appearance. The Anglo-Norman cathedrals were perhaps as much distinguished above other works of man in their own age, as the more splendid edifices of a later period. The science manifested in them is not, however, very great ; and their style, though by no means destitute of lesser beauties, is, upon the whole, an awkward imitation of Iloman architecture, or perhaps more immediately of the Saracenic buildings in Spain and those of the lower Greek Empire. But about the middle of the twelfth century this manner began to give place to what is imj)ro})erly denominated the Gothic architecture ; of which the pointed arch, formed by the segments of two intersecting semicircles of equal radius and described about a common diameter, has generally been deemed the essential character- istic. We are not concerned at present to inquire whether this style originated in France or Germany, Italy or England, since it was certainly almost simultaneous in all these coun- tries ; nor from what source it was derived — a question of no small difficulty. I would only venture to remark that, whatever may be thought of the origin of the pointed arch, for which there is more than one mode of accounting, we must perceive a very Oriental character in the vast profusion of ornament, es})ecially on the exterior surface, which is as distinguishing a mark of Gothic buildings as their arches, and contributes in an eminent dearree both to their beauties 610 PROGRESS OF AGRICULTURE. Chap. IX, Paet II, and to their defects. This indeed is rather applicable to the later than the earlier stage of architecture, and rather to Conti- nental than English churches. Amiens is in a far more florid style than Salisbury, though a contemporary structure. The Gothic species of architecture is thouglit by most to have reached its perfection, considered as an object of taste, by the middle or perhaps the close of the fourteenth century, or at least to have lost something of its excellence by the corre- sponding part of the next age ; an effect of its early and rapid cultivation, since arts appear to have, like individuals, their natural progress and decay. The mechanical execution, however, continued to improve, and is so far beyond the ap- parent intellectual powers of those times, that some have ascribed the principal ecclesiastical structures to the fraternity of freemasons, depositaries of a concealed and traditionary science. There is probably some ground for this opinion ; and the earlier archives of that mysterious association, if they existed, might illustrate the progress of Gothic architecture, and perhaps reveal its origin. The remarkable change into this new style, that was almost contemporaneous in every part of Europe, cannot be explained by any local circum- stances, or the capricious taste of a single nation. § 14. It would be a pleasing task to trace with satisfactory exactness the slow and almost, perhaps, insensible progress of agriculture and internal improvement during the latter period of the Middle Ages. I have already adverted to the wretched condition of agriculture during the prevalence of feudal tenures, as well as before their general establishment. Yet even in the least civilized ages there were not wanting partial encouragements to cultivation, and the ameliorating principle of human industr}^ struggled against destructive revolutions and barbarous disorder. The devastation of war from the liftli to the eleventh century rendered land the least costly of all gifts, though it must ever be the most truly val- uable and permanent. Many of the grants to monasteries, which strike us as enormous, were of districts absolutely wasted, which would probably have been reclaimed by no other means. We owe the agricultural restoration of great l)art of Europe to the monks. They chose, for the sake of retirement, secluded regions, which they cultivated with the labor of their hands. Several charters are extant, granted to convents, and sometimes to laymen, of lands which they had recovered from a desert condition, after the ravages of the Saracens. Some districts were allotted to a body of Span- State of Society. AGRICULTURE IN ENGLAND. 611 ish cdlonists, who emigrated, in tlie reign of Louis the Debo- nair, to live under a Christian sovereign. Nor is this tlie only instance of agricultural colonies. Charlemagne trans- planted part of his conquered Saxons into Flanders, a coun- try at that time almost unpeopled ; and at a much later period there was a remarkable reflux from the same country, or rather from Holland to the coasts of the Baltic Sea. In the twelfth century, great numbers of Dutch colonists settled along the whole line between the Ems and the Vistula. • They obtained grants of uncultivated land on condition of hxed rents, and were governed by their own laws under magistrates of their own election. There cannot be a more striking proof of the low condition of English agriculture in the eleventh century than is exhib- ited by Doomsday -l30ok. Though almost all England had- been partially cultivated, and we find nearly the same manors, except in the north, which exist at present, yet the value and extent of cultivated ground are inconceivably small. We are lost in amazement at the constant recurrence of two or three carucates in demesne, with other lands occupied by ten or a dozen villeins, valued altogether at forty shillings, as the return of a manor, which now would yield a competent income to a gentleman. If Doomsday-book can be considered as even approaching to accuracy in respect of these estimates, agricul- ture must certainly have made a very material progress in the four succeeding centuries. By the statute of Merton, in the 20th of Henry III., the lord is permitted to approve, that is, to enclose the waste lands of his manor, provided he leave sufficient common of pasture for the freeholders. Higden, a writer who lived about the time of Richard II., says, in refer- ence to the number of hydes and vills of England at the Conquest, that by clearing woods and ploughing up wastes there were many more of each in his age than formerly. And it might be easily presumed, independently of proof, that woods were cleared, marshes drained, and wastes brought into tillage, during the long period that the house of Plantagenet sat on the throne. From manorial surveys indeed and similar instruments, it appears that in some places there was nearly as much ground cultivated in the reign of Edward III. as at the present day. The condition of different comities, however, was very far from being alike, and in general the northern and western parts of England were the most backward. The culture of arable land was very imperfect. Fleta re- marks, in the reign of Edward I. or II., that unless an acre 612 AGRICULTURE IN ENGLAND Chap. IX. Part II. yielded more than six bushels of corn, the farmer Avould be a loser, and the land yield no rent. And Sir John Cullum, from very minute accounts, has calculated that nine or ten bushels were a full average crop on an acre of Avheat. An amazing excess of tillage accompanied, and partly, I suppose, produced, this imperfect cultivation. In Hawsted, for example, under Edward I., there were thirteen or fourteen hundred acres of arable, and only forty-five of meadow ground. A similar dis- propo*'tion occurs almost invariably in every account we pos- sess. This seems inconsistent with the low price of cattle. But we must recollect that the common pasture, often the most extensive part of a manor, is not included, at least by any specific measurement, in these surveys. The rent of land differed of course materially ; sixpence an acre seems to have been .about the average for arable land in the thirteenth cen- tury, though meadow was at double or treble that sum. But the landlords were naturally solicitous to augment a revenue that became more and more inadequate to their luxuries. They grew attentive to agricultural concerns, and perceived that a high rate of produce, against which their less enlightened ancestors had been used to clamor, would bring much more into their coffers than it took away. The exportation of corn had been absolutely prohibited. But the statute of the 15th of Henry VI., c. 2, reciting that " on this account farmers and others who use husbandry cannot sell their corn but at a low price, to the great damage of the realm," permits it to be sent anywhere but to the king's enemies, so long as the quarter of wheat shall not exceed 6s. Sd. in value, or that of barley 3s. The price of wool was fixed in the thirty-second year of the same reign at a minimum, below which no person was suffered to buy it, though he might give more — a provision neither wise nor equitable, but obviously suggested by the same motive. Wliether the rents of land were augmented in any degree through these measures, I have not ]ierceived ; their great rise took place in the reign of Henry VIII., or rather afterwards. The usual price of land under Edward IV. seems to have been ten years' purchase. In Italy the rich Lombard plains, still more fertilized by irrigation, became a garden, and agriculture seems to have reached the excellence wliicli it still retains. The constant warfare, indeed, of neighboring cities is not very favorable to industry; and upon tliis account we might incline to place the greatest territorial improvement of Lombardy at an era rather posterior to that of her republican government ; but from tliis State OF Society. AND IN FRANCE AND ITALY. 613 it primarily sprung ; and without tiie subjugation of the feudal aristocrac}^, and that perpetual demand upon the fer- tility of the earth which an increasing population of citizens produced, the valley of the Po would not have yielded more to human labor than it had done for several preceding cen- turies. Though Lombardy was extremely populous in the thirteenth and fourteenth centuries, she exported large quan- tities of corn. But whatever mysterious influence of soil or climate has scattered the seeds of death on the western regions of Tuscany, had not manifested itself in the Middle Ages. Among uninhabitable plains, the traveller is struck by the ruins of innumerable castles and villages, monuments of a time when pestilence was either unfelt, or had at least not forbade the residence of mankind. Volterra, whose deserted walls look doAvn upon that tainted solitude, was once a small but free republic. Siena, round whom, though less dejDopulated, the malignant influence hovers, was once almost the rival of Florence. So melancholy and apparently irresistible a decline of culture and population through physical causes, as seems to have gradually overspread that portion of Italy, has not, perhaps, been experienced in any other part of Europe, unless we except Iceland. The Italians of the fourteenth century seem to have paid some attention to an art of which, both as related to culti- vation and to architecture, our own forefathers were almost entirely ignorant. Crescentius dilates upon horticulture, and gives a pretty long list of herbs, both esculent and medicinal. His notions about the ornamental department are rather beyond what we should expect, and I do not know that his scheme of a flower-garden could be much amended. His general arrangements, which are minutely detailed with evi- dent fondness for the subject, would of course ap])ear too formal at present ; yet less so than those of subse(]uent times ; and though acquainted with what is called tlje topiary art, that of training or cutting trees into regular flgures, he does not seem to run into its extravagance. Regular gardens, according to Paulmy, were not made in France till tlie sixteenth or even seventeenth century ; yet one is said to have existed at the Louvre of much older construction. England, I believe, had nothing of the ornamental kind, unless it were some trees regularly disposed in the orchard of a monastery. Even the common horticultural art for culinary purposes, though not entirely neglected, since the produce of gardens is sometimes mentioned in ancient deeds, had not 614 CHANGES IN THE Chap. IX. Pakt II. been cultivated Avitli much attention. The esculent vegeta- bles now most in use were introduced in the reign of Elizabeth, and some sorts a great deal later. § 15. I should leave this slight survey of economical history still more imperfect were I to make no observation on the relative values of money. Without something like precision in our notions upon this subject, every statistical inquiry becomes a source of confusion and error. In the reigns of Henry III. and Edward I., previously to the first debasement of the coin by the latter in 1301, the or- dinary price of a quarter of wheat appears to have been about four shillings, and that of barley and oats in proportion. A sheep was rather sold high at a shilling, and an ox might be reckoned at ten or twelve. The value of cattle is, of course, dependent upon their breed and condition, and we have un- luckily no early account of butcher's meat ; but we can hardly take a less multiple than about thirty for animal food, and eighteen or twenty for corn, in order to bring the prices of the thirteenth century to a level with those of the present day. Combining the two, and setting the comparative dearness of cloth against the cheapness of fuel and many other articles, we may, perhaps, consider any given sum under Henry III. and Edward I. as equivalent in general command over commodities to about twenty-four or twenty-five times their nominal value at present. Under Henry VI. the coin had lost one-third of its weight in silver, which caused a proportional increase of money prices ; but, so far as I can perceive, there had been no diminution in the value of that metal. We have not much information as to the fertility of the mines which supplied Europe during the Middle Ages ; but it is probable that the dram of silver towards the East, joined to the os- tentatious splendor of courts, might fully absorb the usual produce. By the statute 15 Henry VI., c. 2, the price up to which wheat might be exported is fixed at Os. Sd., a point no doubt above the average ; and the private documents of that period, which are sutticiently numerous, lead to a similar result.^^ Sixteen will be a proper multiple when we would " These will chiefly be found in Sir F. Eden's fnble of prices; the following may be added from the account-book of a convent between 1415 and H25. VVlieat varied from 4s. to 6s. —barley from 3s. 2d. to 4s. lOrf. — oats from Is. 8d. to 2s. 4(;. — oxen from 12s. to 16s. — sheep from Is 2rf. to Is. 4(1. — butter Jrf. per lb. — efifj.s twenty-five for \d. — cheese ^d. per lb. — Lansdowne MSS., vol. i, Nos. 2S and 29. These prices do not always agree with those given in other documents of equal authority in the same period; but the value of provisions varied in different counties, and still more so in different seasons of the year. State of Society. VALUE OF MONEY. 615 bring the general value of money in this reign to our present standard." But after ascertaining the proportional values of money at different periods by a comparison of the prices in several of the chief articles of expenditure, which is the only fair process, we shall sometimes be surprised at incidental facts of this class whicli seem irreducible to any rule. These difficulties arise not so much from the relative scarcity of particular commod- ities, which it is for the most part easy to explain, as from the change in manners and in the usual mode of living. We have reached in this age so high a pitch of luxury that we can hardly believe or comprehend the frugality of ancient times, and have in general formed mistaken notions as to the habits of expenditure which then prevailed. Accustomed to judge of feudal and chivalrous ages by works of fiction, or by his- torians who embellished their writings with accounts of occa- sional festivals and tournaments, and sometimes inattentive enough to transfer the manners of the seventeenth to the four- teenth century, we are not at all aware of the usual sim})licity with which the gentry lived under Edward I. or even Henry VI. They drank little wine ; they had no foreign luxuries ; tliey rarely or never kept male servants except for husbandry ; their horses, as we may guess by the price, were indifferent ; they sel- dom travelled beyond their county. And even their hospital- ity must have been greatly limited, if the value of manors were really no greater than we find it in many surveys. Twenty- four seems a sufficient multiple when we would raise a sum mentioned by a writer under Edward I. to the same real value expressed in our present money, but an income of £10 or £20 was reckoned a competent estate for a gentleman ; at least the lord of a single manor would seldom have enjo^-ed more. A knight who possessed £150 per annum passed for extremely 1^ I insert the following comparative table of English money from Sir Frederick Eden. Value of Value of pound Propor- pound sterling, Propor- present tion. present money. money. £ s. d. £. s. d. Conquest .lOfifi 2 IS \\ 2-906 .34 Henrv VIII. .1543 1 3 3\ 1163 28 Edward I. . . 1300 2 17 5 2-871 .36 Henrv VIII. .1545 13 Hi 698 IS Edward III.. .\-M-i 2 12 t\ 2 622 .37 Henrv VIII. .1546 9 3J 0-466 20 Edwiird III. .1.34fi 2 11 8 2-583 5 Edward VI.. .1.551 4 7i 0-J32 27 Edward III. . 1353 2 6 6 2-.3-25 [ 6 Edward VI.. . 1.552 1 6] 1 -0-J8 1.3 Henrv IV... .1412 1 IS 9 1-9.37 1 1 IMary 2 E;iizabeth ... 1553 1 5] l-0-!4 4 Edward IV.. .14()4 1 11 1-55 . 1560 1 8 1-03:' 18 Henry VIII. . 1527 1 7 6J 1-378 43 Elizabeth . . . .1601 1 1-000 61G TAT OF LABOKEES. Chap. IX. Pakt II. rich. Yet this was not equal in command over commodities to £4000 at present. But this income was comparatively free from taxation, and its expenditure lightened by the services of his villeins. Such a person, however, must have been among the most opulent of country gentlemen. Sir John Fortescue speaks of iive pounds a year as " a fair living for a yeoman," a class of whom he is not at all inclined to diminish the impor- tance. So, when Sir William Drury, one of the richest men in Suffolk, bequeaths, in 1493, tifty marks to each of his daugh- ters, we must not imagine that this was of greater value than four or five hundred pounds at this day, but remark the family pride and want of ready money which induced country gentle- men to leave their younger children in poverty. Or, if Ave read that the expense of a scholar at the university in 1514 was but five pounds annually, we should err in supposing that he had the liberal accommodation Avhich the ])resent age deems indispensable, but consider how much could be afforded for about sixty pounds, which will be not far from the proportion. And what would a modern lawyer say to the following entry in the church-warden's accounts of St. Margaret, Westminster, for 1476 : " Also paid to Roger Fylpott, learned in the law, for his counsel-giving, 3s. Sd., tvith foiirpence for Ms dinner " ? Though fifteen times the fee might not seem altogether inade- quate at present, five shillings would hardly furnish the table of a barrister, even if the fastidiousness of our manners would admit of his accepting such a dole. But this fastidiousness, which considers certain kinds of remuneration degrading to a man of liberal condition, did not prevail in those simple ages. It would seem rather strange that a young lady should learn needlework an(^- good breeding in a family of superior rank, paying for her board ; yet such was the laudable custom of the fifteenth and even sixteenth centuries, as we perceive by the Paston Letters, and even later authorities. There is one very unpleasing remark which every one who attends to the subject of prices will be induced to make — that the laboring classes, especially those engaged in agriculture, were better provided with the means of subsistence in the reign of Edward III. or of Henry VI. than they are at pres- ent. In the fourteenth century Sir John Cullum observes a harvest-man had fourpence a day, which enabled him in a week to buy a comb of wheat ; but to buy a comb of wheat a man must now (1784) work ten or twelve days. So, under Henry VI., if meat was at a farthing and a half the pound, which I suppose was about the truth, a laborer earning State of Society. PAY OF LABORERS. 617 threepence a day, or eighteen-peiice in the week, coukt buy a bushel of wheat at six shillings the quarter, and twenty- four pounds of meat for his family. Several acts of Parlia- ment regulate the wages that miglit be paid to laborers of different kinds. Thus the statute of laborers in 1350 fixed the wages of reapers during harvest at threepence a day without diet, equal to five shillings at present ; that of 23 Henry VI., c. 12, in 1444, fixed the reapers' wages at five- pence, and those of common workmen in building at 3hd., equal to 6s. Sd. and 4^. M. ; that of 11 Henry VII. , c. 22, in 1496, leaves tlie wages of laborers in harvest as before, but rather increases those of ordinary workmen. The yearly wages of a chief hind or shepherd by the act of 1444 were £1 4s., equivalent to about £20; those of a common servant inhusbandry, 18s. 4:d., with meat and drink: they were some- what augmented by the statute of 1496. Yet, although these wages are regulated as a maximum by acts of Parliament, which may naturally be supposed to have had a view rather towards diminishing than enhancing the current rate, I am not fully convinced that they were not rather beyond it ; private ac- counts at least do not always correspond with these statutable prices. And it is necessary to remember that the uncertainty of employment, natural to so imperfect a state of husbandry, must have diminished the laborers' means of subsistence. Ex- treme dearth, not more owing to adverse seasons than to im- provident consumption, was frequently endured. Put after every allowance of this kind I should find it difficult to resist the conclusion that,' however the laborer has derived benefit from the cheapness of manufactured commodities and from many inventions of common utility, he is much inferior in ability to support a family to his ancestors three or four cen- turies ago. I know not why some have supposed that meat was a luxury seldom obtained by the laborer. Doubtless he could not have procured as much as he pleased. Put, from the greater cheapness of cattle, as compared with corn, it seems to follow that a more considerable portion of his ordinary diet consisted of animal food than at ])resent. It was remarked by Sir John Fortescue that the English lived far more upon ani- mal diet than their rivals, the French ; and it was natural to ascribe their superior strength and courage to this cause. I should feel much satisfaction in being convinced that no de- terioration in the state of the laboring classes has really taken place ; yet it cannot, I think, appear extraordinary to those who re:4ect that the whole population of England in the year 618 POLICE. Chap. IX. Part II. 1377 did not much exceed 2,300,000 souls, about one-fifth of the results upon the last enumeration — an increase with which that of the fruits of the earth cannot be suj^posed to have kept an even pace. § 16. The second head to which I referred — the improve- ments of European society in the latter period of the Middle Ages — comprehends several changes, not always connected wdth each other, which contributed to inspire a more elevated tone of moral sentiment, or at least to restrain the commission of crimes. The first and perhaps the most important of these, was the gradual elevation of those whom u.njust systems of polity had long depressed — of the people itself, as opposed to the small number of rich and noble — by the abolition or desuetude of domestic and predial servitude, and by the privi- leges extended to corporate towns. The condition of slavery is, indeed, perfectly consistent with the observance of moral obligations ; yet reason and experience will justify the sentence of Homer, that he who loses his liberty loses half his virtue. Those who have acquired, or may hope to acquire, property of their own, are most likely to respect that of others ; those whom law protects as a i)arent are most willing to yield her a filial obedience ; those who have much to gain by the good-will of their fellow-citizens are most interested in the preservation of an honorable character. I have been led, in different parts of the present work, to consider these great revolutions in the order of society under other relations than that of their moral efficacy, and it will therefore be unnecessary to dwell upon them ; especially as this efficacy is indeterminate, though I think unquestionable, and rather to be inferred from general reflections than capable of much illustration by specific facts. § 17. We may reckon in the next place, among the causes of moral improvement, a more regular administration of justice according to fixed laws, and a more effectual police. Whether the courts of judicature were guided by the feudal customs or the Roman law, it was necessary for them to resolve litigated questions Avith precision and uniformity. Hence a more dis- tinct theory of justice and good faith was gradually appre- hended ; and the moral sentiments of mankind were corrected, as on such subjects they often require to be, by clearer and better grounded inferences of reasoning. Again, though it cannot be said that lawless rapine was perfectly restrained even at the end of the fifteenth century, a sensible amend- ment had been everywhere experienced. Private warfare, the licensed robbery of feudal manners, had been subjected to so State OF Society. RELIGIOUS SECTS. 619 many mortifications by the kings of France, and especially by St. Louis, that it can hardly be traced beyond the fourteenth century. In Germany and Spain it lasted longer; but the various associations for maintaining tranrjuillity in the former country had considerably diminished its violence before the great national measure of public peace adopted under Maxi- milian. Acts of outrage committed by powerful men became less frequent as the executive government acquired more strength to chastise them. We read that St. Louis, the best of French kings, imposed a fine upon the Lord of Vernon for permitting a merchant to be robbed in his territory between sunrise and sunset. For by the customary law, though in gen- eral ill observed, the lord was bound to keep the roads free from depredators in the tlaytime, in consideration of the toll he received from passengers. The same prince was with diffi- culty prevented from passing a capital sentence on Enguerrand de Coney, a baron of France, for a murder. Charles the Fair actually put to death a nobleman of Languedoc for a series of robberies, notwithstanding the intercession of the provincial nobility. The towns established a police of their own for in- ternal security, and rendered themselves formidable to neigh- boring plunderers. Finally, though not before the reign of Louis XL, an armed force was established for the preservation of police. Various means were adopted in England to prevent robberies, which indeed v^ere not so frequently perpetrated as they were on the Continent, by men of high condition. None of these, perhaps, had so much efficacy as the frequent sessions of judges under commissions of jail delivery. But the spirit of this country has never brooked that coercive police which can- not exist without breaking in upon personal liberty by irksome regulations and discretionary exercise of power ; the sure in- strument of tyranny, which renders civil privileges at once nugatory and insecure, and by which we should dearly pur- chase some real benefits connected with its slavish disci})line. § 18. I have some difficulty in adverting to another source of moral improvement during this period — the growth of re- ligious opinions adverse to those of the Established Church — both on account of its great obscurity, and because many of these heresies were mixed up with an excessive fanaticism. But they fixed themselves so deeply in the hearts of the infe- rior and more numerous classes, they bore, generally speaking, so immediate a relation to the state of manners, and they illus- trate so much that more visible and eminent revolution Avhich ultimately rose out of them in the sixteenth century, that I 620 RELIGIOUS SECTS. Chap. IX. Part II. must reckon these among the most interesting phenomena in the progress of European society. Many ages elapsed during which no remarkable instance occurs of a popular deviation from the prescribed line of be- lief ; and pious Catholics console themselves by reflecting that their forefathers, in those times of ignorance, slept at least the sleep of orthodoxy, and that their darkness was interrupted by no false lights of human reasoning. But from the twelfth century this can no longer be their boast. An inundation of heresy broke in that age upon the Church, which no perse«u- tion was able thoroughly to repress, till it finally overspread half the surface of Europe. Of this religious innovation we must seek the commencement in a different part of the globe. The Manicheans afford an eminent example of that durable attachment to a traditional creed which so many ancient sects, especially in the East, have cherished through the vicissitudes of ages, in spite of persecution and contempt. Their plausible and widely extended system had been in early times connected with the name of Christianity, however incompatible with its doctrines and its history. After a pretty long obscurity, the Manichean theory revived Avith some modification in the west- ern parts of Armenia, and was propagated in the eighth and ninth centuries by a sect denominated PauUcians. Their tenets are not to be collected with absolute certainty from the mouths of their adversaries, and no apology of their own sur- vives. There seems, however, to be sufficient evidence that the PauUcians, though professing to acknowledge and even to study the apostolical writings, ascribed tlie creation of the world to an evil deity, Avhom they su})])osed also to be the author of the Jewish law, and consequently rejected all the Old Testament. Believing, with the ancient Gnostics, that our Saviour was clothed on earth with an im])assive celestial body, they denied the reality of his death and resurrection.^^ 1' The most authentic account of the Paulichins i.s found in a little treatise of I'etrus Siculus, who lived about cS70, under Basil the ^laccdouiMu. He had been employed on an embassy to Tephrica, the princijial town of these heretics, so that he might easily be well informed; and, though he is sulliciently liigoted, I do not see any reason to i|uestion the general truth of his testimony, especially as it tallies so well with what we learn of the jiredecessors and successors of the I'aulicians. Pe- trus Siculus enumerates six I'aulician heresies. 1. They maintained the existence of two deities — the one evil, and the creator of this world; the other good, called ira.T'r\p cTToi'pario? o;, the author of that which is to come. 2. They refused to worship the Virgin, and asserted that Christ brought his body from heaven. 3. Tliey rejected the I.ord's Supper. 4. And the adoration o( tlie Cross. 5. They denied the authority of the Old I'estament, but adnutted tin- New, except the epistles of St. J'eter, and, perhaps, the Apocalypse. 6. They did not acknowledge the order of priests. There seems every reason to suppose that the PauUcians, notwithstanding their mistakes, were endowed with sincere and zealous piety, and studious of the Scrip- tures. State of Society. WALDENSES. 621 These errors exposed them to a long and cruel persecution, during which a colony of exiles was planted by one of the Greek emperors in Bulgaria. From this settlement they si- lently promulgated their Manichean creed over the western regions of Cliristendom. A large part of the commerce of those countries with Constantinople was carried on for several centuries by the cliannel of the Danube. This opened an imme- diate intercourse with the Faulicians, who may be traced up that river through Hungary and 15avaria, or sometimes taking the route of Lombardy into Switzerland and France. In the last country, and especially in its southern and eastern provinces, they became conspicuous under a variety of names, such as Catharists, Picards, Faterins, but above all, Alhifjenses. It is beyond a doubt that many of these sectaries owed their origin to the Faulicians ; the appellation of Bulgarians was distinct- ively bestowed upon them ; and, according to some writers, they acknowledged a primate or i)atriarch resident in that country. The tenets ascribed to them by all contemporary authorities coincide so remarkably with those held by the Faulicians, and in earlier times by the INIanicheans, that I do not see how we can reasonably deny what is confirmed by separate and uncon- tradicted testimonies, and contains no intrinsic want of proba- bility. But though the derivation of these heretics, called Albigen- ses, from Bulgaria is sutRciently proved, it is by no means to be concluded that all who incurred the same imputation either derived their faith from the same country, or had adopted the Manichean theory of the Faulicians. From the very invectives of their enemies, and the acts of the Inquisition, it is manifest that almost every shade of heterodoxy was found among these dissidents, till it vanished in a simple protestation against the wealth and tyranny of the clergy. Those who were abso- lutely free from any taint of Manicheism are properly called Waldenses ; a name perpetually confounded in later times with that of Albigenses, but distinguishing a sect probably of separate origin, and at least of different tenets. These, accord- ing to the majority of writers, took their appellation from Peter Waldo, a merchant of Lyons, the parent, about the year 11(30, of a congregation of seceders from the church, who spread very rapidly over France and Germany. According to others, the original Waldenses were a race of uncorrupted shepherds, who in the valleys of the Alps had shaken off, or perhaps never learned, the system of superstition on which the Catholic Church depended for its ascendency. I am not G22 WIDE DIFFUSION OF NEW SECTS. Chap. IX. Part U. certain whether their existence can be distinctly traced beyond the preacliing of Waklo, but it is well known that the proper seat of the Waldenses, or Vaudois, has long continued to be in certain valleys of Piedmont. These pious and innocent secta- ries, of whom the very monkish historians speak well, appear to have nearly resembled the modern Moravians. They had ministers of their own appointment, and denied the lawfulness of oaths and of capital punishment. In other respects their opinions probably were not far removed from those usually called Protestant. A simplicity of dress, and especially the use of wooden sandals, was affected by this people. I have already had occasion to relate the severe persecution which nearly exterminated the Albigenses of Languedoc at the close of the twelfth century, and involved the counts of Tou- louse in their ruin. The Catharists, a fraternitj^ of the same Paulician origin, itiore dispersed than the Albigenses, had previously sustained a similar trial. Their belief Avas cer- tainly a compound of strange errors with truth ; but it was attended by qualities of a far superior lustre to orthodoxy, by a sincerity, a piety, and a self-devotion that almost purified the age in which they lived. It is always important to per- ceive that these high moral excellences have no necessary con- nection with speculative truths ; and upon this account I have been more disposed to state explicitly the real Manicheism of the Albigenses ; especially as Protestant writers, considering all the enemies of Rome as their friends, have been apt to place the opinions of these sectaries in a very false light. In the course of time, undoubtedly, the system of their Paulician teachers would have yielded, if the inquisitors had admitted the experiment, to a more accurate study of the Scriptures, and to the knowledge which they would have imbibed from the Church itself. And, in fact, we find that the peculiar tenets of Manicheism died away after the middle of the thir- teenth century, although a spirit of dissent from the estab- lished creed broke out in abundant instances during the two subsequent ages. We are in general deprived of explicit testimonies in tra- cing the revolutions of popular opinion. Much must, therefore, be left to conjecture; but I am inclined to attribute a very ex- tensive effect to the preaching of these heretics. They appear in various countries nearly during the same period — in Spain, Lombardy, Germany, Flanders, and England, as Avell as in Fr.mce. Thirty unhap|)y persons, convicted of denying the sacraments, are said to have perished at Oxford by cold and State of Society. TRANSLATION OF THE SCRIPTURES. 623 famine in the reign of Henry II. In every country the new sects appear to have spread chiefly among the lower people, which, whil^ it accounts for the imperfect notice of historians, indicates a more substantial influence upon the moral con- dition of society than the conversion of a few nobles or ecclesiastics. But even where men did not absolutely enlist under the banners of any new sect, they were stimulated by the temper of their age to a more zealous and independent discussion of their religious system. A curious illustration of this is fur- nished by one of the letters of Innocent III. He had been in- formed by the Bishop of Metz, as he states to the clergy of the diocese, that no small multitude of laymen and women, having procured a translation of the gospels, epistles of St. Paul, the Psalter, Job, and other books of Scrij^ture, to be made for them into French, meet in secret conviiiticles to hear them read and preach to each -other, avoiding the company of those who do not join in their devotion, and, having been reprimanded for this by some of their parish priests, have withstood them, alleging reasons from the Scriptures why they should not be so forbidden. Some of them, too, deride the ignorance of their ministers, and maintain that their own books teach them more than they could learn from the pulpit, and that they can express it better. Although the desire of reading the Scrip- tures, Innocent proceeds, is rather praiseworthy than reprehen- sible, yet they are to be blamed for frequenting secret assemblies, for usurping the office of preaching, deriding tlieir own minis- ters, and scorning the company of such as do not concur in their novelties. He presses the bishop and chapter to discover the author of this translation, which could not have been made without a knowledge of letters, and what were his intentions, and what degree of orthodoxy and res}iect for the Holy See those who used it possessed. This letter of Innocent III., how- ever, considering the nature of the man, is sufficiently temper- ate and conciliatory. It seems not to have answered its end ; for in another letter he complains that some members of this little association continued refractory, and refused to obey either the bishop or the pope.^^ In the eighth and ninth centuries, when the Vulgate had ceased to be generally intelligible, there is no reason to suspect any intention in the Gluirch to deprive the laity of the Scrip- 1' Opera Innocent III., pp. -JftS, 537. A translation of the Bible had been made by direction of Peter Waldo; but whether this used in I>orrain was the same does not appear. Metz was full of the Vaudois, as we lind by other authorities. 624 LOLLARDS. Chap. TX. Part IL tures. Translations were freely nuuL^ into the vernacular lan- guages, and, perhaps, read, in churches, altliough the acts of saints were generally deemed more instructive. Louis the Debonair is said to have caused a German version of the '^ew Testament to be made. Otfrid, in the same century, rendered the gospels, or rather abridged them, into German verse. This work is still extant, and is m several respects an object of curiosity. In the eleventh or twelfth century we find transla- tions of the Psalms, Job, Kings, and Maccabees into French. But after the diffusion of heretical opinions, or, what was much the same thing, of free inquiry, it became expedient to se- cure the orthodox faith from lawless interpretation. Accord- ingly, the Council of Toulouse, in 1229, prohibited the laity from possessing the Scriptures ; and this j)recaution was fre- quently repeated upon subsequent occasions.^" The ecclesiastical history of the thirteenth or fourteenth centuries teems with new sectaries and schismatics, various in their aberrations of opinion, but all concurring in detestation of the Established Church. They endured severe persecutions with a sincerity and firmness which in any cause ought to command respect. But in general we find an extravagant fanaticism among them ; and I do not know how to look for any amelioration of society from the Franciscan seceders, who quibbled about the property of things consumed by use, or from the mystical vis- ionaries of different appellations, whose moral practice was sometimes more than equivocal. Those who feel any curiosity about such subjects, which are by no means unimportant, as they illustrate the history of the human mind, will find them treated very fully by Mosheim. But the original sources of information are not always accessible in this country, and the research would, perhaps, be more fatiguing than profitable. I shall, for an opposite reason, pass lightly over the great revolution in religious oi)inion wrought in England by Wieliff, which will generally l)e familiar to the reader from our common historians. Nor am 1 concerned to treat of theological inquiries, or to write a history of the Church. Considered in its effects 2" The Anglo-Saxon versions nro deservin;? of piirlicnlar romark. It has been said that our Cliurch maintaincil the privilcjfe of having part of the daily service in the mother tongue. " Even tlic mass itself," says Lapi)enberg, " was not read entirely in Latin." — Hist, of Kngland. vol. i., p. 'JO'i. Tills, liowever, is denied bv Lintrard, whose authority is prol):ibly supiTior. — Hist of Ang.-Sax. Chiirch, i., 307. Hut he allows that the E))istle aiierg's proposition, which follows the above passage : " The numerous versions and paraphrases of the Old and New Testament made those books known to the laity and more fandliar to the clergy." State of Society. HUSSITES. 625 upon inannei's — the sole point wliich these pages have in view — the preaching of this new sect certainly produced an exten- sive reformation. But their virtues were by no means free from some unsocial qualities, m which, as well as in their superior attributes, the Lollards bear a very close resemblance to the Puritans of Elizabeth's reign ; a moroseness that pro- scribed all cheerful amusements, an uncharitable malignity that made no distinction in condemning the established clergy, and a narrow prejudice that applied the rules of the Jewish law to modern institutions. Some of their principles were far more dangerous to the good order of society, and cannot justly be ascribed to the Puritans, though they grew afterwards out of the same soil Such was the notion, which is imputed also to the Albigenses, that civil magistrates lose their right to govern by committing sin, or, as it was quaintly expressed in the sev- enteenth century, that dominion is founded in grace. These extravagances, however, do not belong to the learned and politic Wicliff, however they might be adopted by some of his enthu- siastic disciples. Fostered by the general ill-will towards the Church, his principles made vast progress in England, and, un- like those of earlier sectaries, were embraced by men of rank and civil influence. Notwithstanding the check they sustained by the sanguinary law of Henry IV., it is highly probable that nu;lti- tudes secretly cherished them down to the era of the Eefornuition. From England the spirit of religious innovation was prop- agated into Bohemia ; for though John Huss was very far from embracing all the doctrinal system of Wicliff, it is mani- fest that his zeal had been quickened by the writings of that reformer. Inferior to the Englishman in ability, but exciting greater attention by his constancy and sufferings, as well as by the memorable war which his ashes kindled, the Bohemian martyr was even more eminently the precursor of the Eefor- mation. But still, regarding these dissensions merely in a temporal light, I cannot assign any beneficial effect to the schism of the Hussites, at least in its immediate results, and in the country where it appeared. Though some degree of sympathy with their cause is inspired by resentment at the ill faith of their adversaries, and by the associations of civil and religious liberty, we cannot estimate the Taborites, and other sectaries of that description, but as ferocious and desperate fanatics. Perhaps, beyond the confines of Bohemia, more sub- stantial good may have been produced by the influence of its reformation, and a better tone of morals inspired into Ger- many. But I must again repeat that upon this obscure and 626 CHIVALRY. Chap. IX. Part II. ambiguous subject I assert nothing definitely, and little with confidence. The tendencies of religious dissent in the four ages before the Eeformation appear to have generally con- duced towards the moral improvement of mankind; and facts of this nature occupy a far greater s})ace in a philosophical view of society during tliat period than we might at first imagine ; but every one who is disposed to prosecute this inquiry will assign their character according to the result of Ids own investigations. § 19. But the best school of moral discipline which the Middle Ages afforded was the institution of chiyalry. There is something, perhaps, to allow for the partiality of modern writers upon this interesting subject; 3^et our most sceptical criticism must assign a decisive influence to this great source of human improvement. The more deeply it is considered, the more we shall become sensible of its importance. There are, if I may so say, three powerful spirits which have from time to time moved over the face of the waters, and given a predominant impulse to the moral sentiments and energies of mankind. These are the spirits of liberty, of religion, and of honor. It was the principal business of chiv- alry to animate and cherish the last of these three. And whatever high magnanimous energy the love of ]^berty or religious zeal has ever imparted was equalled by the exquisite sense of honor which this institution preserved. It appears probable that the custom of receiving arms at the age of manhood with some solemnity was of immemorial antiquity among the nations that overthrew the Roman Empire ; for it is mentioned by Tacitus to have prevailed among their German ancestors ; and his expressions might have been used with no great variation to describe the actual ceremonies of knighthood. There was even in that remote age a sort of public trial as to the fitness of the candidate, which, though perhaps confined to his bodily strength and activity, might be the germ of that refined investigation which was thought necessary in the perfect stage of chivalry. Proofs, though rare and incidental, might be adduced to show that in the time of Charlemagne, and even earlier, the sons of monarch s at least did not assume manly arms without a reg- ular investiture. And in the eleventh century it is evident that this was a general practice.-^ 21 Nihil neque publicae neque privatre rei nisi avTnati agunt. Sed arma siimere non ante culquam moris, quara civitas sufloctunini probaverit. 'J'uiii in ipso concilio, vel priucipum aliquis, vel pater, vel propinquus, scuto fiameaque juvenem oriiaiit; luxe apud eos toga, hie prinius juventas lionos; aute hoc doiniis pars videntur, luox rei- publicae. — De Moribus German, c. 13. State of Society. CHI VA LEY. 627 This ceremony, however, would perhaps of itself hr.ve done little towards forming that intrinsic principle which charac- terized the genuine chivalry. l!ut in the reign of Charlemagne we lind a military distinction that appears, in fact as well as in name, to have given birth to that institution. Certain feudal tenants, and I suppose also allodial proprietors, were bound to serve on horseback, equipped with the coat of mail. These were called Caballarii, from which the word chevaliers is an obvious corruption. But he who fought on horseback, and had been invested with peculiar firms in a solemn manner, wanted nothing more to render him a knight. Chivalry there- fore may, in a general sense, be referred to the age of Charle- magne. We may, however, go farther, and observe that these distinctive advantages above ordinary combatants were prob- ably the sources of tliat remarkable valor and that keen thirst for glory whicli became the essential attributes of a knightly character. For confidence in our skill and strength is the usual foundation of courage ; it is by feeling ourselves able to surmount common dangers that we become adventurous enough to encounter those of a more extraordinary nature, and to which more glory is attached. The reputation of superior per- sonal prowess, so difficult to be attained in the course of mod- ern warrare, and so liable to erroneous representations, was ■ always within the reach of tlie stoutest knight, and was founded on claims wdiicli could be measured with much accu- racy. Such is the subordination and mutual dependence in a modern army, that every man must be content to divide his glory with his comrades, his general, or his soldiers ; but the soul of chivalry was individual honor, coveted in so entire and absolute a perfection that it must not be shared with an army or a nation. Most of the virtues it inspired were what we may call independent, as opposed to those which are founded upon social relations. The knights-errant of romance perform their best exploits from the love of renown, or from a sort of abstract sense of justice, rather than from any solicitude to promote the happiness of mankind. If these springs of action are less generally beneficial, they are, however, more connected with elevation of character than the systematical prudence of men accustomed to social life. In the first state of chivalry, it was closely connected with the military service of fiefs. The Caballarii in the cajjitida- ries, the Milites of the eleventh and twelfth centuries, were land-holders who followed their lord or sovereign into the field. A certain value of land was termed in England a 628 CHIVALRY. Chap. IX. Part II. knight's fee, or in Normandy feuclum loriese, fief de hai;bert, from the coat of mail which it entitled and required the ten- ant to wear ; a military tenure was said to be by service in chivalry. To serve as knights, mounted and equipped, was the common duty of vassals ; it implied no personal merit, it gave of itself a claim to no civil privileges. But this knight- service founded upon a feudal obligation is to be carefully distinguished from that superior chivalry, in which all was independent and voluntary. The latter, in fact, could hardly flourish in its full perfection till the military service of feudal tenure began to decline, namely, in the thirteenth century. The origin of this personal chivalry I should incline to refer to the ancient usage of voluntary commendation, which I have mentioned in a former chapter. Men commended themselves, that is, did homage and professed attachment to a prince or lord ; generally, indeed, for protection or the hope of reward, but sometimes probably for the sake of distinguishing them- selves in his quarrels. When they received pay, which must have been the usual case, they were literally his soldiers, or stipendiary troops. Those who could afford to exert their valor Avithout recompense were like the knights of whom we read in romance, who served a foreign master through love, or thirst of glory, or gratitude. The extreme poverty of the lower nol)ility, arising from the subdivision of fiefs, and the politic generosity of rich lords, made this connection as strong as that of territorial dependence. A younger brother, leaving the paternal estate, in which he took a slender share, might look to wealth and dignity in the service of a powerful count. Knighthood, which he could not claim as his legal right, became the object of his chief ambition. It raised him in the scale of society, equalling him in dress, in arms, and in title, to the rich land-holders. As it was due to his merit, it did much more than equal him to those who had no pretensions but from wealth ; and the territorial knights be- came by degrees ashamed of assuming the title till they could challenge it by real desert. This class of noble and gallant cavaliers, serving commonly for ])ay, but on the most honorable footing, became far more numerous through the Crusades ; a great epoch in the history of European society. In these wars, as all feudal service was out of the question, it was necessary for the richer barons to take into their pay as many knights as they could afford to maintain ; speculating, so far as such motives operated, on an influence with the leaders of the expedition, and on a share State of Society. CHIVALRY. 629 of plunder, proportioned to tlie number of their followers. During the period of tlie Crusades we lind the institution of chivalry acquire its full vigor as an order of personal nobility ; and its original connection with feudal tenure, if not alto- gether effaced, became in a great measure forgotten in the splendor and dignity of the new form which it wore. The Crusaders, however, changed in more than one respect the character of chivalry. Before that epoch it appears to have had no particular reference to religion. We can hardly perceive, indeed, wliy tlie assumption of arms to be used in Isutchering mankind should be treated as a religious cere- mony. The clergy, to do them justice, constantly opposed the private wars in which the courage of those ages wasted itself ; and all bloodshed was subject in strictness to a canon- ical penance. But the purposes for wdiich men bore arms in a crusade so sanctified their use, that chivalry acquired the character as much of a religious as a military institution. For many centuries the recovery of the Holy Land was con- stantly at the heart of brave and superstitious nobility ; and every knight was supposed at his creation to pledge himself, as occasion should arise, to tliat cause. Meanwhile, the de- fence of God's law against infidels was his primary and stand- ing duty. A knight, whenever present at mass, held the point of his sword before him while the gospel was read, to signify his readiness to support it. Writers of the Middle Ages com- pare the knightly to the priestly character in an elaborate parallel, and the investiture of the one was supposed analo- gous to the ordination of the other. The ceremonies upon this occasion were almost wholly religious. The candidate passed nights in prayer among priests in a church; he re- ceived the sacraments ; he entered into a bath, and was clad with a white robe, in allusion to the presumed purification of his life ; his sword was solemnly blessed ; everything, in short, was contrived to identify his new condition with the defence of religion, or at least of the Church. To this strong tincture of religion which entered into the composition of chivalry from the twelfth century, was added another ingredient equally distinguishing. A great respect for the female sex had always been a remarkable characteris- tic of the Northern nations. The German women were high- spirited and virtuous, qualities which might be causes or consequences of the veneration with which they were regarded. I am not sure that we could trace very minutely the condition of women for the period between the subversion of the Roman 630 CHARACTERISTIC VIRTUES Chap. IX. Part II. Empire and the first Crusade; but apparently man did not grossly abuse liis superiority ; and in point of civil rights, and even as to the inheritance of property, the two sexes were placed perhaps as nearly on a level as the nature of such war- like societies would admit. There seems, however, to have been more roughness in the social intercourse between the sexes than we find in later periods. The spirit of gallantry, which became so animating a principle of chivalry, must be ascribed to the progressive refinement of society during the 12th and two succeeding centuries. In a rude state of man- ners, as among the lower people in all ages, woman has not full scope to display those fascinating graces by which nature has designed to counterbalance the strength and energy of mankind. Even where those jealous customs that degrade alike the two sexes have not prevailed, her lot is domestic seclusion. Nor is she fit to share in the boisterous pastimes of drunken merriment to which the intercourse of an unpolished people is confined. But as a taste for the more elegant enjoy- ments of wealth arises — a taste which it is always her policy and her delight to nourish — she obtains an ascendency at first in the lighter hour, and from thence in the serious occupations of life. She chases, or brings into subjection, the god of Avine — a victory which might seem more ignoble were it less diffi- cult, and calls in the aid of divinities more propitious to her anrbition. The love of becoming ornament is not, perhaps, to be regarded in the light of vanity ; it is rather an instinct which woman has received from nature to give effect to those charms that are her defence ; and when commerce began to minister more effectually to the wants of luxury, the rich furs of the North, the gay silks of Asia, the wrought gold of do- mestic manufacture, illumined the halls of chivalry, and cast, as if by the spell of enchantment, that ineffable grace over beauty which the choice and arrangement of dress is calculated to bestow. Courtesy had always been the ]n-oper attribute of knighthood ; protection of the weak its legitimate duty ; but these were heightened to a pitch of enthusiasm when woman became their object. There was little jealousy shown in the treatment of that sex, at least in France, the fountain of chiv- alry ; they were present at festivals, at tournaments, and sat promiscuously in the halls of their castle. The romance of Perceforest (and romances have always been deemed good wit- nesses as to manners) tells of a feast where eight hundred knights had each of them a lady eating off his plate. For to eat off the same plate was a usual mark of gallantry or friendship. State of Society. ON CHIVALRY. 631 Next, therefore, or even equal to devotion, stood gallantry among the principles of knighthood. But all comparison be- tween the two was saved by blending them together. The love of God and the ladies was enjoined as a single duty. He who was faithful and true to his mistress was held sure of salvation in the theology of castles, though not of cloisters. The gallantry of those ages, which was very often adulter- ous, had certainly no right to profane the name of religion ; but its union with valor was at least more natural, and became so intimate that the same word has served to express both quali- ties. In the French and English wars especially, the knights of each country brought to that serious conflict the s})irit of romantic attachment which had been cherished in the hours of peace. They fought at Poitiers or Verneuil as they had fought at tournaments, bearing over their armor scarfs and devices as the livery of their mistresses, and asserting the paramount beauty of her they served in vaunting challenges towards the enemy. Thus in the middle of a keen skirmish at Cherbourg, the squadrons remained motionless while one knight challenged to a single combat the most amorous of the adversaries. Such a defiance was soon accepted, and the battle only recommenced when one of the champions had lost his life for his love. In the first campaign of Edward's war some young English knights wore a covering over one eye, vowing, for the sake of their ladies, never to see with both till they should have signalized their prowess in the field. These ex- travagances of chivalry are so common that they form part of its general character, and prove how far a • course of action which depends upon the impulses of sentiment may come to deviate from common sense. But the morals of chivalry, we cannot deny, were not pure. In the amusing fictions Avhich seem to have been the only pop- ular reading of the Middle Ages, there reigns a licentious spirit, not of that slighter kind which is usual in such composi- tions, but indicating a general dissoluteness in the intercourse of the sexes. This has often been noticed of Boccaccio and the early Italian novelists ; but it equally characterized the tales and romances of France, whether metrical or in prose, and all the poetry of the Troubadours. The violation of mar- riage vows passes in them for an incontestable privilege of the brave and the fair ; and an accomplished knight seems to have enjoyed as undoubted j)rerogatives, by general consent of opinion, as were claimed by the brilliant courtiers of Louis XV. But neither that emulous valor which chivalry excited, nor 632 CHARACTERISTIC VIRTUES Chap. IX. Part II. the religion and gallantry which were its animating principles, alloyed as the latter were by the corruption of those ages, could have rendered its institution materially conducive to the moral improvement of society. There were, however, ex- cellences of a very high class which it equally encouraged. Three virtues may particularly be noticed as essential in the estimation of mankind to the character of a knight — loyalty, courtesy, and munificence. (i.) Loyalty. — The first of these, in its original sense, may be defined fidelity to engagements ; whether actual promises, or such tacit obligations as bound a vassal to his lord and a sub- ject to his prince. It was applied also, and in the utmost strict- ness, to the fidelity of a lover towards the lady he served. Breach of faith, and especially an express promise, was held a disgrace that no valor could redeem. False, perjured, disloyal, recreant, were the epithets which he must be compelled to endure who had swerved from a plighted engagement even to- wards an enemy. This is one of the most striking changes produced by chivalry. Treachery, the usual vice of savage as well as corrupt nations, became infamous during the vigor of that discipline. As personal rather than national feeling actu- ated its heroes, they never felt that hatred, much less that fear of their enemies, which bind men to the heinousness of ill faith. In the wars of Edward III., originating in no real animosity, the spirit of honorable as well as courteous behavior towards the foe seems to have arrived at its highest point. Though avarice may have been the primary motive of ransoming prisoners instead of putting them to death, their permission to return home on the word of honor in order to procure the stipulated sum — an indulgence never refused — could only be founded on experienced confidence in the principles of chivalry. (ii.) Courtesy. — A knight was unfit to remain a member of the order if he violated his faith ; he was ill acquainted Avith its duties if he proved wanting in courtesy. This word ex- pressed the most highly refined good-breeding, founded less upon a knowledge of ceremonious politeness — though this was not to be omitted — than on the spontaneous modesty, self-denial, and respect for others, which ought to spring from his heart. Besides the grace which this beautiful virtue threw over the habits of social life, it softened down the natural roughness of war, and gradually introduced that indulgent treatment of prisoners which was almost unknown to antiquity. Instances of this kind are continual in the later period of the Middle Ages. The behavior of Edward III. to Eustace de State OF Society. OF CHIVALKY. 633 Ribaumont, after the capture of Calais, and that, still more exquisitely beavitiful, of the Black Prince to his royal prisoner at I'oitiers, are such eminent instances of chivalrous virtue, that I omit to repeat them only because they are so well known. Those great princes, too, might be imagined to have soared far above the ordinary track of mankind. But in truth, the knights who surrounded them and imitated their excel- lences, were only inferior in opportunities of displaying the same virtue. (iii.) 3hmificence. — Liberality, indeed, and disdain of money, might be reckoned, as I have said, among the essential virtues of chivalry. All the romances inculcate the duty of scattering their Avealth with profusion, especially towards minstrels, pilgrims, and the poorer members of their own order. The last, who Avere pretty numerous, had a constant right to succor from the opulent ; the castle of every lord who respected the ties of knighthood was open with more than usual hospitality to the traveller whose armor announced his dignity, though it might also conceal his poverty. Valor, loyalt}^, courtesy, munificence, formed collectively the . character of an accom])lished knight, so far as was dis- played in the ordinary tenor of his life, reflecting these virtues as an unsullied mirror. Yet something more was required for the perfect idea of chivalry, and enjoined by its principles ; an active sense of justice, an ardent indignation against wrong, a determination of courage to its best end, the prevention or redress of injury. It grew up as a salutary antidote in the midst of poisons, while scarce any law but that of the strongest obtained regard, and the rights of territorial property, which are only rights as they conduce to general good, became the means of general oppression. The real condition of society, it has sometimes been thought, might suggest stories of knight- errantry, which were wrought up into the popular romances of the Middle Ages. A baron, abusing the advantage of an inac- cessible castle in the fastnesses of the Black Forest or the Alps, to pillage the neighborhood and confine travellers in Ids dungeon, though neither a giant nor a Saracen, was a monster not less formidable, and could perhaps as little be destroyed without the aid of disinterested bravery. Knight-errantry, indeed, as a profession, cannot rationally be conceived to have had any existence beyond the precincts of romance. Yet tliere seems no impro])ability in supposing that a knight, journeying through uncivilized regions in his way to the Holy Land, or to the court of a foreign sovereign, might find himself 634 EVILS PRODUCED BY CHIVALRY. Chap IX. PAiiT IL engaged in adventures not very dissimilar to those which are the theme of romance. We cannot, indeed, expect to find any historical evidence of such incidents. The characteristic virtues of cliivalry bear so much resem- blance to those which Eastern writers of the same period extol, that I am a little disposed to suspect Europe of having derived some improvement from imitation of Asia. Though the Cru- sades began m abhorrence of intidels, this sentiment wore off in some degree before their cessation ; and the regular inter- course of commerce, sometimes of alliance, between the Chris- tians of Palestine and the Saracens, must have removed part of the prejudice, while experience of their enemy's courage and generosity in war would with those gallant knights serve to lighten the remainder. The romancers expatiate with pleas- ure on the merits of Saladin, Avho actually received the honor of knighthood from Hugh of Tabaria, his prisoner. An ancient poem, entitled the " Order of Chivalry," is founded upon this story, and contains a circumstantial account of the ceremonies, as well as duties, which the institution required. One or two other instances of a similar kind bear witness to the veneration in which the name of knight was held among the Eastern nations. And certainly the Mohammedan chieftains were for the most part abundantly qualified to fulfil the duties of European chivalry. Their manners had been polished and courteous, while the Western kingdoms were comparatively barbarous. The principles of chivalry were not, I think, naturally pro- ductive of many evils ; for it is unjust to class those acts of oppression or disorder among the abuses of knighthood which were committed in spite of its regulations, and were only pre- vented by them from becoming more extensive. But some bad consequences may be more fairly ascribed to the very nature of chivalry. I have already mentioned the dissolute- ness which almost unavoidably resulted from the prevailing tone of gallantry. And yet we sometimes find in the writings of those times a spirit of pure but exaggerated sentiment ; and the most fanciful refinements of passion are mingled by the same poets with the coarsest immorality. An undue thirst for military renown was another fault that chivalry must have nourished ; and the love of war, sufficiently pernicious in any shape, was more founded, as I have observed, on personal feel- iiig3 of honor, and less on public spirit, than in the citizens of free states. A third reproach may be made to the character of knighthood, that it widened the separation between the State of Society. ENCOUHAGEMENT OF FRINGES. i)o5 different classes of society, and contirmed that aristoeratical spirit of high birth by wliich the large mass of mankind were kept in uajust degradation. Compare the generosity of Ed- ward III. towards Eustace de liibaumont at the siege of Calais with the harshness of his conduct towards tlie citizens. There is perhaps enough in the nature of this institution and its congeniality to the habits of a warlike generation to account for the respect in which it was held throughout Eu- rope. But several collateral circumstances served to invigo- rate its spirit. Besides the powerful efficacy with which the poetry and romance of the Middle Ages stimulated those sus- ceptible minds which were alive to no other literature, we may enumerate four distinct causes tending to the promotion of chivalry. The first of these was the regular scheme of education, according to which the sons of gentlemen from the age of seven years were brought up in the castles of superior lords, where they at once learned the whole discipline of their future profession, and imbibed its emulous and enthusiastic s];)irit. This was an inestimable advantage to the poorer nobility, who could hardly otherwise have given their children the accomplishments of their station. From seven to fourteen these boys were called pages or varlets ; at fourteen they bore the name of esquire. They were instructed in the man- agement of arms, in the art of horsemanship, to exercises of strength and activity. They became accustomed to obedience and courteous demeanor, serving their lord or lady in offices which had not yet become derogatory to honorable birth, and striving to please visitors, and especially ladies, at the ball or banquet. Thus placed in the centre of all that could awaken their imaginations, the creed of chivalrous gallantry, super- stition, or honor must have made indelible impressions. Pant- ing for the glory which neither their strength nor the established rules permitted them to anticipate, the young scions of chivalry attended their masters to the tournament, and even to the battle, and riveted with a sigh the armor they were forbidden to wear. It was the constant policy of sovereigns to encourage this institution, which furnished them with faithful supports, and counteracted the independent spirit of feudal tenure. Hence they displayed a lavish magniticence in festivals and tourna- ments, which may be reckoned a second means of keeping up the tone of chivalrous feeling. The kings of France and England held solemn or plenary courts at the great festivals, 03G KJMIGHTHOOD. Cuap. IX. Pakt II. or at other times, where the name of knight was always a title to admittance ; and the masque of cluvalry, if I may use the expression, was acted in pageants and ceremonies fantastical enough in our apprehension, but well calculated for those heated understandings. Here the peacock and the pheasant, birds of high fame in romance, received tlie homage of all true knights. The most singular festival of this kind was tliat celel)rated by Philip, duke of Burgundy, in 1453. In the midst of the banquet a pageant was introduced representing tlie calamitous state of religion, in consequence of the recent caf)ture of Constantinople. This was followed by the ap- pearance of a pheasant, which was laid before the duke, and to which the knights present addressed their vows to luider- take a crusade, in the following very characteristic preamble : " I swear before God my Creator, in the first place, and the glorious Virgin his mother, and next, before the ladies and the pheasant." Tournaments were a still more powerful incentive to emulation. These may be considered to have arisen about the middle of the eleventh century ; for though every martial people have found diversion in representing the image of war, yet the name of tournaments, and the laws that regulated them, cannot be traced any higher. Every scenic performance of modern times must be tame in comparison of these animat- ing combats. At a tournament the space enclosed within the lists was surrounded by sovereign princes and their noblest barons, by kniglits of established renown, and all that rank and beauty had most distinguished among the fair. Covered with steel, and known only by their emblazoned shield, or by' the favors of their mistresses, a still i)rouder bearing, the combatants rushed forward to a strife without enmity, but not without danger. Though their weapons were pointless, and sometimes only of wood ; though they were bound by the laws of tournaments to strike only upon the strong armor of the truidi, or, as it was called, between the four limbs, those impetuous conflicts often terminated in wounds and death. The Church uttered her excommunications in vain against so wanton an exposure to peril ; but it was more easy for her to excite than to restrain that martial enthusiasm. Vic- tory in a tournament was little less glorious, and perhaps at the moment more exquisitely felt, than in the field, since no battle could assemble such witnesses of valor. " Honor to the sons of the brave ! " resounded amidst the din of martial music from the lips of the minstrels, as the conqueror advanced to receive tlie prize from his queen or his mistress j while the State OF Society. MILITARY SERVICE. 637 surrounding multitude acknowledged in his prowess of that day an augury of triumphs that might in more serious contests be blended with those of Ids country. Both honorary and substantial privileges belonged to the condition of knighthood, and had of course a material tendency to preserve its credit. A knight was distinguished abroad by his crested helmet, his weighty armor, whether of mail or plate, bearing his heraldic coat, by his gilded spurs, his horse barded with iron, or clothed in liousing of gold ; at home, by richer silks and more costly furs than were permitted to squires, and by the appro})riated color of scarlet. He was addressed by titles of more respect. Many civil offices, by rule or usage, were confined to his order. But perlia})S its chief privilege was to form one distinct class of nobility, extending itself throughout great part of Europe, and almost independent, as to its rights and dignities, of any particular sovereign. Whoever had been legitimately dubbed a knight in one country became, as it were, a citizen of universal chivalry, and might assume most of its privileges in any other. Nor did he require the act of a sovereign to be thus dis- tinguished. It was a fundamental principle that any knight miglit confer the order ; responsible only in his own reputation if he used lightly so high a prerogative. But as all the distinctions of rank might have been confounded if this right had been without limit, it was an equally fundamental rule that it could only be exercised in favor of gentlemen. The privileges annexed to chivalry were of peculiar advan- tage to the vavassors, or inferior gentry, as they tended to counterbalance the influence wliich territorial wealth threw into the scale of their feudal suzerains. Knighthood brought these two classes nearly to a level ; and it is owing perhaps in no small degree to this institution that the lower nobility saved themselves, notwithstanding their poverty, from being con- founded with the common people. Lastly, the customs of chivalry were maintained by their connection with military service. After armies, which we may call comparatively regular, had superseded in a great degree the feudal militia, princes were anxious to bid high for the service of knights, the best equipped and bravest warriors of the time, on whose prowess the fate of battles was for a long period justly supposed to depend. War brought into relief the generous virtues of chivalry, and gave lustre to its distinctive privileges. The rank was sought Avith enthusiastic emulation through heroic achievements to which, rather thaa •C38 DECLINE OF CIIIVALEY. Cuap. IX. Taut IL to mere wealth and station, it was considered to belong. In the wars of France and England, by far the most splendid period of this institution, a promotion of knights followed every suc- cess, besides the innumerable cases Avhere the same honor rewarded individual bravery. It may here be mentioned that an honorary distinction was made between knights-bannerets and bachelors. The former were the richest and best accom- panied. No man could properly be a banneret unless he pos- sessed a certain estate, and could bring a certain number of lances into the held. His distinguishing mark was the square banner, carried by a squire at the point of his lance ; Avhile the knight-bachelor had only the coronet or j)ointed pendant. When a banneret was created, the general cut off this pendant to render the banner square. But this distinction, however it elevated the banneret, gave him no claim to military command, except over his own dependents or men-at-arms. Chandos Avas still a knight-bachelor when he led part of the prince of Wales's army into Spain. He first raised his banner at the battle of Navarette ; and the narration that Froissart gives of the ceremony will illustrate the manners of chivalry and the character of that admirable hero, the conqueror of Du Guesclin and pride of English chivalry, whose fame with posterity has been a little overshadowed 'by his master's laurels. What seems more extraordinary is, tliat mere squires had frequently the command over knights. Proofs of this are almost con- tinual in Froissart. But the vast estimation in which men held the dignity of knighthood led them sometimes to defer it for great part of their lives, in hope of signalizing their inves- titure by some eminent exploit. These appear to have been the chief means of nourishing, the princi[)les of chivalry among the nobility of Europe. But notwithstanding all encouragement, it underAvent the usual destiny of human institutions. St. Palaye, to whom we are indebted for so vivid a picture of ancient manners, ascribes the decline of chivalry in France to the profusion with which the order was lavished under Charles VI., to the establish- ment of the companies of ordonnance by Charles VII., and to the extension of knightly honors to lawyers, and other men of civil occupation, by Francis I. But the real principle of decay was something different from these three subordinate circum- stances, unless so far as it may bear some relation to the second. It was the invention of gunpowder that eventually overthrew chivalry. From the time when the use of fire-arms became tolerably perfect the weapons of former warfare lost State OF Society. DECLINE OF CHIVALRY. 639 their efficacy, and physical force was reduced to a very subor- dinate place in the accijinplishnients of a soldier. The advan- tages of a disciplined infantr^^ became more sensible ; and the lancers, who continued till almost the end of the sixteenth century to charge in a long line, felt the punishment of their presumption and indiscipline. Even in the wars of Edward III. the disadvantageous tactics of chivalry must have been l)erceptible ; but the military art had not been sufficiently studied to overcome the prejudices of men eager for individual distinction. Tournaments became less frequent ; and, after the fatal accident of Henry II., were entirely discontinued in France. Notwithstanding the convulsions of the religious wars, the sixteenth century was more tranquil than any that had preceded ; and thus a large part of the nobility passed their lives in pacific habits, and, if they assumed the honors of chivalry, forgot their natural connection with military prowess. This is far more applical)le to England, where, except from the reign of Edward III. to that of Henry VI., chivalry, as a military institution, seems not to have found a very congenial soil. To these circumstances, immediately affecting the military condition of nations, we must add the progress of reason and literature, which made ignorance discreditable even in a soldier, and exposed the follies of romance to a ridicule which they were very ill calculated to endure. The spirit of chivalry left behind it a more valuable suc- cessor. The character of knight gradually subsided in that of gentleman ; and the one distinguishes European society in the sixteenth and seventeenth centuries, as much as the other did in the preceding ages. A jealous sense of honor, less roman- tic, but equally elevated, a ceremonious gallantry and polite- ness, a strictness in devotional observances, a higli pride of birth and feeling of independence upon any sovereign for the dignity it gave, a sympathy for martial honor, though more sul)dued by civil habits, are the lineaments which prove an indisputable descent. The cavaliers of Charles I. were genu- ine successors of Edward's knights ; and the resemblance is much more striking if we ascend to the civil wars of the League. Time has effaced much also of this gentlemanly, as it did before of the chivalrous, character. From the latter part of the seventeenth century its vigor and purity have undergone a tacit decay, and yielded, perhaps, in every coun- try to increasing commercial wealth, more diffused instruction, the spirit of general liberty in some, and of servile obsequious- 640 CIVIL LAW. Chap. IX. Part IL ness in others, the modes of life in great cities, and the level- ling customs of social intercourse. § 20. It is now time to pass to a very different subject. The third head under which I classed the improvements of society during the four last centuries of the Middle Ages was that of literature. But I must apprise the reader not to ex- pect any general view of literary history, even in the most abbreviated manner. Such an epitome would not only be necessarily superficial, but foreign in many of its details to the purposes of this chapter, which, attempting to develop the circumstances that gave a new complexion to society, considers literature only so far as it exercised a general and powerful influence. I shall, therefore, confine myself to four points — the study of civil law ; the institution of universities ; the application of modern languages to literature, and espe- cially to poetry ; and the revival of ancient learning. § 21. (I.) The Study of Civil Law. — The Roman law had been nominally preserved ever since the destruction of the Empire ; and a great portion of the inhabitants of France and Spain, as well as Italy, were governed by its provisions. But this was a mere compilation from the Theodosian Code, which itself contained only the more recent laws promulgated after the establishment of Christianity, with some fragments from earlier collections. It was made by order of Alaric, king of the Visigoths, about the year 500, and it is frequently confounded with the Theodosian Code by writers of the Dark Ages. The Code of Justinian, reduced into system after the separation of the two former countries from the Greek empire, never obtained any authority in them ; nor was it received in the part of Italy subject to the Lombards. But that this body of laws was absolutely unknown in the West during any period seems to have been too hastily supposed. Some of the more eminent ecclesiastics, as Hincmar and Ivon of Chartres, occasionally refer to it, and bear witness to the regard Avhich the Iloman Churcli had uniformly paid to its decisions. The revival of the study of jurisprudence, as derived from the laws of Justinian, has generally been ascribed to the dis- covery made of a copy of the Pandects at Amalfi, in 1135, when that city was taken by the Pisans. This fact, though not improbable, seems not to rest upon sufficient evidence. But its truth is the less material, as it appears to be unequiv- ocally proved that the study of .Justinian's system had recom- menced before that era. Early in the twelfth century a professor named Irnerius opened a school of civil law at State OF Society. CIVIL LAW. 641 Bologna, where lie commented, if not on the Pandects, yet on the other books, the Institutes and Code, which were sufficient to teach the principles and inspire the love of that comprehensive jurisprudence. The study of law, having thus revived, made a surprising progress ; within fifty years Lom- bardy was full of lawyers, on whom Frederick Barbarossa and Alexander III., so hostile in every other respect, conspired to shower honors and privileges. The schools of Bologna were pre-eminent throughout this century for legal learning. There seem also to have been seminaries at Modena and Mantua ; nor was any considerable city without distinguished civilians. In the next age they became still more numerous, and their professors more conspicuous ; and universities arose at Naples, Padua, and other places, where the Roman law was the object of peculiar regard. The fame of this renovated jurisprudence spread very rapidly from Italy over other parts of Europe. Students flocked from all parts of Bologna ; and some eminent masters of that school repeated its lessons in distant countries. One of these, Placentinus, explained the Digest at Montpellier be- fore the end of the twelfth century ; and the collection of Justinian soon came to supersede the Theodosian Code in the dominions of Toulouse. Its study continued to flourish in the universities of both these cities ; and hence the Roman law, as it is exhibited in the system of Justinian, became the rule of all tribunals in the southern provinces of France. Its authority in Spain is equally great, or at least is only disputed by that of the canonists ; and it forms the acknowledged basis of decision in all the Germanic tribunals, sparingly modified by the ancient feudal customaries, Avhich the jurists of the empire reduc(^ within narrow bounds. In the northern parts of France, where the legal standard was sought in local customs, the civil law met naturally with less regard. But the Code of St. Louis borrows from that treasury many of its provisions, and it was constantly cited in pleadings before the Parliament of Paris, either as obligatory by way of authority, or at least as written wisdom, to which great deference was sliown. Yet its study was long prohibited in the University at Paris, from a disposition of the popes to establish exclusively their decre- tals, though the prohibition was silently disregarded. As early as the reign of Stephen, Vacarius, a lawyer of Bologna, taught at ( )xford with great success ; but the stu- dents of scholastic theolog}- opposed themselves, from some unexplained reason, to this new jurisprudence, and his lectures 642 INSTITUTION OF UNIVERSITIES. Chap. IX. Part II. were interdicted. About the time of Henry III. and Edward I. the civil law acquired some credit in England ; but a system entirely incompatible with it had established itself in our courts of justice ; and the Roman jurisprudence was not only soon rejected, but became obnoxious. Everywhere, how^ever, the clergy combined its study with that of their own canons : it was a maxim that every canonist must be a civilian, and that no one could be a good civilian unless he were also a canonist. In all universities degrees are granted in both laws conjointly ; and in all courts of ecclesiastical jurisdiction the authority of Justinian is cited, when that of Gregory or Clem- ent is wanting. § 22. (II.) The Institution of Universities. — The es- tablishment of public schools in France is owing to Charle- magne. At his accession we are assured that no means of obtaining a learned education existed in his dominions ; and, in order to restore in some degree the spirit of letters, he was compelled to invite strangers from countries where learning was not so thoroughly extinguished. Alcuin of England, Clement of Ireland, Theodulf of Germany, were the true Paladins who repaired to his court. With the help of these he revived a few sparks of diligence, and established schools in different cities of his empire ; nor was he ashamed to be the disciple of that in his own palace, under the care of Alcuin. His tAvo next successors, Louis the Debonair and Charles the Bald, were also encouragers of letters ; and the schools of Lyons, Fulda, Corvey, Rheims, and some other cities, might be said to flourish in the ninth century. In these were taught the trivium and quadrivium — a long-established division of sciences : the first, comprehending grammar, or what we now call philology, logic, and rhetoric ; the second, music, arithmetic, geometry, and astronomy. But in those ages scarcely anybody mastered the latter four ; and to be per- fect in the three former was exceedingly rare. All those studies, however, were referred to theology, and that in the narrowest manner; music, for exam})le, being reduced to church chanting, and astronomy to the calculation of Easter. Alcuin was, in his old age, against reading the poets ; and this discouragement of secular learning was very general ; though some, as for instance, Eaban, permitted a slight tincture of it, as subsidiary to religions instruction. About the latter part of the eleventh century a greater ardor for intellectual pursuits began to show itself in Europe, which in the twelfth broke out into a flame. This was manifested in State of Society. ABELARD. 643 the numbers who repaired to the j)ublic academies or schools of philosophy. None of these grew so early into reputation as that of Paris. This cannot, indeed, as has been vainly pre- tended, trace its pedigree to Charlemagne. The first who is said to have read' lectures at Paris was Remigius of Auxerre, about the year 900. For the two next centuries the history of this school is very obscure ; and it would be hard to prove an unbroken continuity, or at least a dependence and connection, of its ])rofessors. In the year 1100 we find William of Cham- peaux teaching logic, and apparently some higher parts of philosophy, with much credit ; but this preceptor was eclipsed by his disciple, afterwards his rival and adversary, Peter Abe- lard, to whose brilliant and hardy genius the University of Paris appears to be indebted for its rapid advancement. Abe- lard was almost the first who awakened mankind in the ages of darkness to a sympathy with intellectual excellence. His bold theories — not the less attractive, perhaps, for treading upon the bounds of heresy — his imprudent vanity, that scorned the regularly acquired reputation of older men, allured a multitude of disciples who would never have listened to an ordinary teacher. It is said that twenty cardinals and fifty bishoj)S had been among his hearers. Even in the wilderness, where he had erected the monastery of Paraclete, he was surrounded by enthusiastic admirers, relinquishing the luxuries, if so they might be called, of Paris for the coarse living and imperfect accommodation which that retirement could afford. But the whole oi' Abelard's life was the ship- wreck of genius, and of genius both the source of his own calamities and unserviceable to i^osterity. There are few lives of literary men more interesting or more diversified by success and adversity, by glory and humiliation, by the admiration of mankind and the persecution of eneinies ; nor from which, I may add, more impressive lessons of moral prudence may be derived.-^ One of Abelard's pupils was Peter Lombard, after- wards Archbisho]") of Paris, and author of a work called the '* Book of Sentences," which obtained the highest authority among the scholastic disputants. The resort of students to Paris became continually greater; they appear, before the year 11()9, to have been divided into nations ; and probably they had an elected rector and voluntary rules of discipline 22 Abelard's pliilosopliical writings were published in 1836 by M. Cousin. See also the excellent work of M. ile Remusat, in 1845, with the title Abelard, containing a copious account both of the life and writings of that most remarkable man, the father, perhaps, of the tlicory as to the nature of universal ideas, now so generally known by tile name of conceptualism. 644 UNIVERSITY OF BOLOGNA. Chap. IX. Part II, about the same tinie.-^ This, however, is not decisively proved; but in tlie last year of the twelfth century they obtained their earliest charter from Philip Augustus. The foundation of the University of Oxford is commonly ascribed to Alfred, but we have no proof of' its existence as a school of learning before the middle of the twelfth century. In the reign of Stephen, Vacarius read lectures there upon civil law ; and in that of Henry IL, or at least of Eichard I., Ox- ford became a very flourishing universit}-, and in 1201, accord- ing to Wood, contained 3000 scholars. The earliest charters were granted by John. If it were necessary to construe the Avord university in the strict sense of a legal incorporation, Bologna might lay claim to a higher antiquity than either Paris or Oxford. There are a few vestiges of studies pursued in that city even in the elev- enth century ; but early in the next the revival of the Roman jurisprudence, as has been already noticed, brought a throng of scholars round the chairs of its professors. Frederick Barba- rossa, in 1158, by his authentic or rescript, entitled Habita. took these i;nder his protection, and permitted them to be tried in civil suits by their own judges. This exemption from the ordi- nary tribunals, and even from those of the Church, was natu- rally coveted by other academies : it Avas granted to the University of Paris by its earliest charter from Philip Augus- tus, and to Oxford by John. Prom this time the golden age of universities comnuMiced ; and it is hard to say whether they were favored more by their sovereigns or by the See of Eome. Their history, indeed, is full of struggles with the municipal authorities and with the bishops of their several cities, where- in they were sometimes the aggressors, and generally the con- querors. From all parts of Europe students resorted to these renowned seats of learning Avith an eagerness for instruction Avhich may astonish those who reflect hoAV little of what Ave now deem useful could be imparted. At Oxford, under Henry III., it is said tliat there were 30,000 scholars; an exaggeration Avhich seems to iniply that the real number Avas very great. A respectable contemporary Avriter asserts that there Avere full 10,000 at Bologna about the same time. I have not observed any numerical statement as to I'aris during this age ; but there can be no doubt that it Avas move frequented than any other. 23 The faculty of arts in tlie Univorsity of Paris w!is diviiiod into four nations; those of France, I'icardy, Noniiandy, and England. Tliese had distinct .sufTrages in tile aiTairs of the university, and consequently, when united, outnumbered the three higher faculties of theology, law, and medicine. In 1269, Henry II. of England oilers to refer his dispute witli Becket to the provinces of the school of Paris. State of Society. ENCOURAGEMENT OF UNIVERSITIES. 645 At the death of Charles VII. in 1453, it is said to have con- tained 25,000 students. In the thirteenth century other uni- versities sprang up in different countries — Padua and Naples under the patronage of 'Frederick II., a zealous and useful friend to letters, Toulouse and Montpellier, Cambridge and Salamanca. Orleans, which had long been distinguished as a school of civil law, received the privileges of incorporation early in the fourteenth century, and Angers before the expira- tion of the same age. l^rague, the earliest and most eminent of German universities, was founded in 1350 ; a secession from thence of Saxon students, in consequence of the nationality of the Bohemians and the Hussite schism, gave rise to that of Leipsic. The fifteenth century produced several new academi- cal foundations in France and Spain. A large proportion of scholars in most of those institutions were drawn by the love of science from foreign countries. The chief universities had their o-wn particular departments of excellence. Paris was unrivalled for scholastic theology ; Bo- logna and Orleans, and afterwards Bourges, for jurisprudence ; Montpellier for medicine. Though national prejudices, as in the case of Prague, sometimes interfered with this free resort of foreigners to places of education, it was in general a wise policy of government, as well as of the universities themselves, to encourage it. The thirty-lifth article of tlie peace of Bre- tigni provides for the restoration of former privileges to stu- dents respectively in the French and English universities. Various letters patent will be found in Rymer's collection securing to Scottish as well as French natives a safe passage to their place of education. The English nation, including how- ever the Flemings and Germans, had a separate vote in the faculty of arts at Paris ; but foreign students were not, I be- lieve, so numerous in the English academies. If endowments and privileges are the means of quickening a zeal for letters, they were liberally bestowed in the last three of the INIiddle Ages. Crevier enumerates fifteen colleges founded in the University of Paris during the thirteenth century, be- sides one or two of a still earlier date. Two only, or at most three, existed in that age at Oxford, and but one at Cambridge. In the next tAvo centuries these universities could boast, as every one knows, of many splendid foundations, though much exceeded in number by those of Paris. Considered_ as ecclesi- astical institutions, it is not suri)rising that the universities obtained, according to the spirit of their age, an exclusive cog- nizance of civil or criminal suits affecting their members. This 646 SCHOLASTIC PHILOSOPHY. Chap. IX. Pakt II. jurisdiction was, however, local as well as personal, and in real- ity encroached on the regular police of their cities. At Paris the privilege turned to a flagrant abuse, and gave rise to many scandalous contentions. Still more valuable advantages were those relating to ecclesiastical preferments, of which a large proportion was reserved in France to academical graduates. Something of the same sort, though less extensive, may still be traced in the rules respecting plurality of beneflces in our English Church. § 23. This remarkable and almost sudden transition from a total indifference to all intellectual pursuits cannot be ascribed perhaps to any general causes. The restoration of the civil, and the formation of the canon law, were indeed eminently conducive to it, and a large proportion of scholars in most uni- vei'sities confined themselves to jurisprudence. But the chief attraction to the studious was the new scholastic philosophy. The love of contention, especially with such arms as the art of dialectics supplies to an acute understanding, is natural enough to mankind. That of speculating vipon the mysterious ques- tions of metaphysics and theology is not less so. These dis- putes and speculations, howevei", appear to have excited little interest till, after the middle of the eleventh century, Roscelin, a professor of logic, revived the old question of the Grecian schools respecting universal ideas, the reality of which he de- nied. This kindled a spirit of metaphysical discussion, which Lanfranc and Anselm, successively archbishops of Canterbury, kept alive ; and in the next century Abelard and Peter Lombard, especially the latter, completed the scholastic system of plii- losophizing. The logic of Aristotle seems to have been ])artly known in the eleventh century, although that of Augustin was perhaps in higher estimation ; in the twelfth it ol)tained more decisive influence. His metaphysics, to which the logic might be considered as preparatory, were introduced through transla- tions from the Arabic, and i)erhaps also from the Greek, early in the ensuing century. This work, condemned at first by thi' decrees of popes and councils on account of its supposed ten- dency to atheism, acquired by degrees an influence to which even popes and councils were ol)liged to yield. The Mendicant Friars, established throughout Europe in the thirteenth century, greatly contributed to promote the Aristotelian philosophy ; and its final reception into the orthodox system of the Church may chiefly be ascribed to Thonuis Aquinas, the boast of the Dominican order, and certainly the most distinguished meta- })hysician of the Middle Ages. His authority silenced all scru- State OF Society. SCHOLASTIC PHILOSOPHY. 647 pies as to that of Aristotle, and tlie two philosophers were treated with equally implicit deference by the later schoolmen. This scholastic philosophy, so famous for several ages, has since passed away and been forgotten. The history of litera- ture, like that of empire, is full of revolutions. Our public libraries are cemeteries of departed reputation, and the dust accumulating upon their untouched volumes speaks as forcibly as the grass that waves over the ruins of Babylon. Few, very few, for a hundred years i^ast, have broken the repose of the immense works of the school-men. Yet we cannot deny that lioscelin, Anselm, Abelard, Peter Lombard, Albertus Magnus, Thomas Aquinas, Duns Scotus, and Ockham were men of acute and even profound understandings, the giants of their OAvn generation. Even with the slight knowledge we possess of their tenets, there appear through the cloud of repulsive technical barbarisms rays of meta})hysical genius which this age ought not to despise. Thus in the works of Anselm is foun.d the cel- ebrated argument of Des Cartes for the existence of a Deity, deduced from the idea of an infinitely prefect being. One great object that most of the school-men had in view was to establish tlie principles of natural theology by abstract reason- ing. This reasoning Avas doubtless liable to great difficulties. But it would be difficult to mention any theoretical argument to prove the divine attributes, or any objection capable of being raised against the proof, which we do not find in some of the scholastic philosophers. The most celebrated subjects of dis- cussion, and those on which this class of reasoners were most divided, were the reality of universal ideas, considered as ex- trinsic to the human mind and the freedom of will. These have not ceased to occupy the thoughts of metaphysicians. But all discovery of truth by means of these controversies was rendered hopeless by two insurmountable obstacles — the authority of Aristotle and that of the Church. Wherever obsequious reverence is substituted for bold inquirj^, truth, if it is not already at hand, will never be attained. The" scholas- tics did not understand Aristotle, whose original writings they could not read; but his name was received with implicit faith. They learned his peculiar nomenclature, and fancied that he had given them realities. The authority of the Church did them still more harm. It has been said, and probably with much truth, that their metaphysics were injurious to their the- ology. But I must observe in return that their theology was equally injurious to their metaphysics. Their disputes con- tinually turned upon questions either involving absurdity and C48 SCHOLASTIC rillLOSOPIIY. Cuap. IX. Pakt II. contradiction, or at best inscrutable by human comprehension. Those who assert the greatest antiquity of the Roman Catholic doctrine as to the real }n'esence allow that both the word and the definition of transubstantiation are owing to the scholastic writers. Their subtleties were not always so well received. They reasoned, at imminent peril of being charged with her- esy, which Koscelin, Abelard, Lombard, and Ockham did not escai3e. In the virulent factions that arose out of their meta- physical quarrels, either party was eager to expose its adver- sary to detraction and persecution. The Nominalists were accused, one hardly sees why, with reducing, like Sabellius, the ])ersons of the Trinity to modal distinctions. The llealists, witli more i3retence, incurred the imputation of holding a lan- guage that savored of atheism. In the controversy which the Dominicans and Franciscans, disci])les respectively of Thomas Aquinas and Duns Scotus, maintained about grace and free- will, it was of course still more easy to deal in mutual re- proaches of heterodoxy. But the school-men were in general prudent enough not to defy the censures of the Church ; and the popes, in return for the support they gave to all exorbitant l)retensions of the Holy See, connived at this factious wran- gling, which threatened no serious mischief, as it did not pro- ceed from any independent spirit of research. Yet, with all their apparent conformity to the received creed, there was, as might be expected from the circumstances, a great deal of real deviation from orthodoxy, and even of infidelity. The scholas- tic mode of dispute, admitting of no termination and producing no conviction, was the sure cause of scepticism ; and the sys- tem of Aristotle, especially with the commentaries of Aver- roes, bore an aspect very unfavorable to natural religion. The Aristotelian i)hilosophy, even in the hands of the Master, was like a barren tree that conceals its want of fruit by profusion of leaves. But the scholastic ontology was much worse. What could be .more trifling than disquisitions about the nature of angels, their modes of operation, their means of conversing, or (for these were distinguished) the morning and evening state of their understandings? Into such follies the school-men appear to have launched, partly because there was less danger of running against a heresy in a matter where the Church had defined so little — partly from their presumption, which dis- dained all inquiries into the human mind, as merely a part of phj'sics — and in no small degree through a spirit of mystical fanaticism, derived from the Oriental philosophy and the later Platonists, which blended itself with the cold-blooded techni- State of Society. SCHOLASTIC rniLOSOPHY. 649 calities of the Aristotelian school. But tliis unproductive waste of the faculties could not last forever. Men discovered that they had given their time for the promise of wisdom, and been cheated in tlie bargain. What John of Salisbury observes of the Parisian dialecticians in his own time, that after several years' absence he found them not a step advanced, and still employed in urging and parrying the same arguments, was equally applicable to the period of centuries. After three or four hundred years, the scholastics had not untied a single knot, nor added one unequivocal truth to the domain of phi- losophy. As this became more evident, the enthusiasm for that kind of learning declined ; after the middle of the four- teenth century few distinguished teachers arose among the school-men, and at the revival of letters their pretended science had no advocates left but among the prejudiced or ignorant ad- herents of established systems. How different is the state of genuine philosophy, the zeal for which will never wear out by length of time or change of fashion, because the inquirer, un- restrained by authority, is ])erpetually cheered by the discovery of truth in researches, which the boundless riches of nature seem to render indefinitely ])rogressive ! Yet, upon a general consideration, the attention paid in the universities to scholastic philosophy may be deemed a source of im])rovement in the intellectual character, when we compare it with the ])erfect ignorance of some jireceding ages. AVhether the same industry would not have been more profitably di- rected if the love of metaphysics had not intervened, is an- other question. Philology, or the principles of good taste, degenerated through the prevalence of school-logic. The Latin compositions of the twelfth century are better than those of the three that followed — at least on the northern side of the Alps. I do not, however, conceive that any real correctness of taste or general elegance of style was likely to subsist in so imperfect a condition of society. These qualities seem to require a certain harmonious correspondence in the tone of manners before they can estal)lish a prevalent influence over literature. A more real evil Avas^the diverting of studious men from mathematical science. Early in the twelfth century sev- eral persons, chiefly English, had brought into Europe some of the Arabian writings on geometry and physics. In the thir- teenth the works of Euclid were commented upon by Campano, and Koger Bacon was fully acquainted with them.-* Algebra, as -* The resemblanre between Rofjer Bacon and his greater namesake is very re- inarliable. Whether Lord Bacou ever read the Opus Majus, 1 know not; but it is 650 MODERN LANGUAGES. Cuap. IX. Pakt II. far as the Arabians knew it, extending to qnadratic equations, was actually in the hands of some Italians at the commencement of the same age, and preserved for almost three hundred years as a secret, though without any conception of its importance. As abstract mathematics require no collateral aid, they may reach the highest perfection in ages of general barbarism ; and there seems to be no reason why, if the course of study had been directed that way, there should not have arisen a Newton or a Laplace, instead of an Aquinas or an Ockham. The knowledge displayed by Roger Bacon and by Albertus Magnus, even in the mixed mathematics, under every disad- vantage from the imperfection of instruments and the want of recorded experience, is sufficient to inspire us with regret that their contemporaries were more inclined to astonishment than to emulation. These inquiries, indeed, were subject to the ordeal of fire, the great purifier of books and men ; for if the metaphysician stood a chance of being burned as a heretic, the natural philosopher was in not less jeopardy as a magician. §24. (III.) Cultivatiojst OF Modern Languages. — Afar more substantial cause of intellectual improvement was the development of those new languages that sprang out of the corruption of Latin. For three or four centuries after what was called the Romance tongue was spoken in France, there remain but few vestiges of its employment in writing ; though we cannot draw an absolute inference from our want of proof, and a critic of much authority supposes trans- lations to have been made into it for religious purposes from the time of Charlemagne. During this period the language was split into two very separate dialects, the regions of which may be considered, though by no means strictly, as divided by the Loire. These were called the langue d'Oil and the langue d'Oc ; or, in more modern terms, the French and Proven9al dialects. In the latter of these I know of notliing which can even by name be traced beyond the year 1100. About that time Gregory de Bechada, a gentleman of Limousin, recorded the memorable events of the first Crusade, then recent, in a metrical history of great length. This poem has altogether perished ; which, considering the popularity of its subject, would probably not have been the singular that his favorite quaint expression, prmrogativm scientiarum, should be found in that worlv, though not used with the same allusion to the Roman comitia. And whoever reads the sixth part of the Opus Majus, upon experimental science, must be struck by it as the prototype, in spirit, of the Novum Organum. The same sanguine and sometimes rash confldenee in the elVect of physical discoveries, the same fondness for experiment, the same preference of inductive to abstract reasoning, pervade both works. State of Society. TROUBADOURS. (^51 case if it had possessed any merit. But very soon afterwards a niultitude of poets, like a swarm of summer insects, ap- peared in tl;e southern provinces of France. These were the celebrated troubadours, whose fame depends far less on their positive excellence than on the darkness of preceding ages, on the temporary sensation they excited, and their permanent influence on the state of European poetry. From William, count of Poitoii, the earliest troubadour on record, who died in 1126, to their extinction, about the end of the next century, there were probably several hundred of these versi- fiers in the language of Provence, though not always natives of France. Among those ])oets are reckoned a king of Eng- land (Richard L), two of Aragon, one of Sicily, a dauphin of Auvergne, a count of Foix, a prince of Orange, many noble- men, and several ladies. One can hardly pretend to account for this sudden and transitory love of verse ; but it is mani- festly one symptom of the rapid impulse which the human mind received in the twelfth century, and contemporaneous with the severer studies that began to flourish in the univer- sities. It was encouraged by the prosperity of Languedoc and Provence, undisturbed, comparatively with other coun- tries, by internal warfare, and disposed by the temper of their inhabitants to feel with voluptuous sensibility the charm of music and amorous poetry. But the tremendous storm that fell upon Languedoc in the crusade against the Albigeois shook off the flowers of Provencal verse ; and the final ex- tinction of the fief of Toulouse, with the removal of the counts of Provence to Naples, deprived the troubadours of their most eminent patrons. An attempt was made in the next century to revive them, by distributing prizes for the best composi- tion in the Floral Games of Toulouse, which have sometimes been erroneously referred to a higher antiquity ; but it did not establish the name of any Provencal poet. Nor can we deem these fantastical solemnities, styled Courts of Love, where ridiculous questions of metaphysical gallantry were debated by poetical advocates, under the presidency and arbitration of certain ladies, much calculated to bring forward any genuine excellence. They illustrate, however, what is more immediately my own object — the general ardor for poetry and the manners of those chivalrous ages. § 25. The great rei)utation acquired by the troubadours, and the panegyrics lavished on some of them by Dante and Petrarch, excited a curiosity- among literary men wliich has been a good deal disappointed by further acquaintance. 652 FRENCH METRICAL TRANSLATIONS. Cuap. IX. Pakt II. Translations from part of this collection, with memorials of tlie writers, were published by Millot ; and we certainly do not often meet with jjassages in his three volumes which give us any poetical pleasure. The troubadours chiefly con- fined themselves to subjects of love, or rather gallantry, and to satires (sirventes), which are sometimes keen and spirited. No romances of chivalry, and hardly any tales, are found among their works. There seems a general deficiency of im- agination, and especially of that vivid description which dis- tinguishes works of genius in the rudest period of society. In the poetry of sentiment, their favorite province, they sel- dom attain any natural expression, and consequently pro- duce no interest. It must be allowed, however, that we can- not judge of the troubadours at a greater disadvantage than through the prose translations of Millot. Their poetry was entirely of that class which is allied to music, and excites the fancy or feelings rather by the power of sound than any stimulancy of imagery and passion. Possessing a flexible and harmonious language, they invented a variety of met- rical arrangements perfectly new to the nations of Europe. The Latin hymns were striking but monotonous, the metre of the northern French unvaried; but in Proven9al poetry, almost every length of verse, from two syllables to twelve, and the ipost intricate disposition of rhymes, were at the choice of the troubadour. The canzoni, the sestine — all the lyric metres of Italy and Spain, were borrowed from his treasury. With such a command of poetical sounds, it was natural that he should inspire delight into ears not yet ren- dered familiar to the artifices of verse ; and even now the fragnients of these ancient lays, quoted by M. Sismondi and j\I. Ginguene, seem to possess a sort of charm that has evap- orated in translation. Upon this harmony, and upon the fa- cility Avith which mankind are apt to be deluded into an admiration of exaggerated sentiment in poetry, they depended for their influence ; and however vapid the songs of l*ro- vence may seem to our apprehensions, they were undoubtedly the source from which poetry for many centuries derived a great portion of its habitual language. § 26, It is probable that the Northern Romance, or what we properly call French, was not formed until the tenth century. Translations of some books of Scripture and acts of saints were made about 1100, or even earlier, and there are French sermons of St. Bernard, from which extracts have been published, in the royal library at Paris. In 1126, a State of Society. NOKMAN ROMANCES AND TALES. C53 charter was granted by Louis VI. to the city of Beaiivais in French. Metrical compositions are in general the first liter- ature of a nation, and even if no distinct })roof could be ad- duced, we might assume their existence before the twellth century. There is, however, evidence, not to mention the fraguieuts printed by Le lioeuf, of certain lives of saints translated into French verse by Thibault de Vernon, a canon of liouen, before the middle of the preceding age. And we are told that Taillefer, a Norman minstrel, recited a song or romance on the deeds of Roland, before the army of his countrymen, at the battle of Hastings in 1066. Philip de Than, a Norman subject of Henry L, seems to be the earliest poet whose works as well as name have reached us, unless we admit a French translation of the work of one Marbode upon precious stones to be more ancient. This de Than wrote a set of rules for computation of time and an account of different calendars. A happy theme for inspiration, without doubt ! Another performance of the same author is a treatise on liirds and beasts, dedicated to Adelaide, queen of Henry I. But a more famous votary of the muses was Wace, a native of Jersey, who, about the beginning of Henry II. 's reign, turned Geoffrey of Monmouth's history into French metre. Besides this poem, called le Brut d'Angleterre, he composed a series of metrical histories, containing the transactions of the dukes of Nor- mandy, from Hollo, their great progenitor, who gave name to the Roman de Ron, down to his own age. Other productions are ascribed to Wace, who was at least a prolific versifier, and, if he seem to deserve no higher title at present, has a claim to indulgence, and even to esteem, as having far excelled his contemporaries, without any superior advantages of knowledge. In emulation, however, of his fame, several Norman writers addicted themselves to composing chronicles of devotional treatises in metre. The ccnirt of our Norman kings was to the early poets in the Langue d'Oil what those of Aries and Tou- louse were to the troubadours. Henry I. was fond enough of literature to obtain the surname of Beauclerc; Henry II. was more indisputably an encourager of poetry ; and Richard I. has left compositions of his own in the two dialects spoken in France. If the poets of Normandy had never gone beyond historical and religious subjects, they would probably have had less claim to our attention than their brethren of Provence ; but a different and far more interesting species of composition began to be cultivated in the latter part of the t\velfth century. With- 654 NORMAN IIOMANCES AND TALES. Cuap. IX. Paut II. out entering upon the controverted question as to tlie origin of romantic tictions, referred by one party to tire Scandinavians, by a second to tlie Arabs, by otliers to tlie natives of P>rittany, it is manifest that tlie actual stories upon which one early and numerous class of romances was founded are related to the traditions of the last people. These are such as turn upon the fable of Arthur ; for though we are not entitled to deny the existence of such a personage, his story seems chiefly the creation of Celtic vanity. Traditions current in Brittany, though probably derived from this island, became the basis of Geoffrey of Monmouth's Latin prose, which, as has been seen, was transfused into French metre by Wace. ' The vicinity of Normandy enabled its poets to enrich their narratives with other Armorican fictions, all relating to the heroes who had surrounded the table of the son of XJther. An equally imagi- nary history of Charlemagne gave rise to a new family of romances. The authors of these fictions were called trouveurs, a name obviously identical with that of troubadours ; but except in name there was no resemblance between the min- strels of the northern and southern dialects. The invention of one class was turned to description, that of the other to senti- ment; the first were epic in their form and style, the latter almost always lyric. We cannot, i^erhaps, give a better no- tion of their dissimilitude than by saying that one school produced Chaucer, and the other Petrarch. Besides these romances of chivalry, the trouveurs displayed their powers of lively narration in comic tales or fabliaux (a name sometimes extended to the higher romance), which have aided the inuigination of Boccace and La Fontaine. These compositions are certainly more entertaining than those of the troubadours ; but, contrary to what I have said of the latter, they often gain by appearing in a modern dress. Their versification, which doubtless had its charm when listened to around the hearth of an ancient castle, is very languid and prosaic, and suitable enough to the tedious prolixity into which the narrative is apt to fall ; and though we find many sallies of that arch and sprightly simplicity Avhicli characterizes the old language of France as well as England, it requires, upon the whole, a factitious taste to relish these Norman tales, considered as poetry in the higher sense of the word, distinguished from metrical fiction. A manner very different from that of the fabliaux was adopted in the Koman de la Eose, begun by William de Loris about 1250, and completed by John cle Meun half a century State of Socikty. WORKS IN FRENCH PROSE. 655 later. This poem, which contains about 16,000 lines in the usual octosyllable verse, from which the early French writers seldom deviated, is an allegorical vision, wherein love and the other passions or qualities connected with it pass over the stage, Avithout the intervention, I believe, of any less abstract personages. Though similar allegories were not unknown to the ancients, and, which is more to the purpose, may be found in other productions of the thirteenth century, none had been constructed so elaborately as that of the Roman de la Rose. Cold and tedious as we now consider this species of poetry, it originated in the creative power of imagination, and appealed to more refined feeling than the common metrical narratives could excite. This poem Avas highly popular in the Middle Ages, and became the source of those numerous alle- gories which had not ceased in the seventeenth century. The French language was employed in prose as well as in metre. Indeed it seems to have had almost an exclusive privilege in this respect. " The language of Oil," says Dante, in his treatise on vulgar speech, prefers its claim to be ranked above those of Oc and Si (Provencal and Italian), on the ground that all translations or compositions in prose have been written therein, from its greater facility and grace, such as the books compiled from the Trojan and Roman stories, the delightful fables about Arthur, and many other works of history and science." I have mentioned already the sermons of St. Bernard and translations from Scripture. The laws of the kingdom of Jerusalem purport to have been drawn up immediately after the first crusade, and, though their lan- guage has been materially altered, there seems no doubt that they were originally compiled in French. Besides some charters, there are said to have been prose romances before the year 1200. Early in the next age Ville Hardouin, sen- eschal of Campagne, recorded the capture of Constantinople in the fourth crusade, an expedition the glory and reward of which he had personally shared, and, as every original work of prior date has either perished or is of small importance, may be deemed the father of French prose. The Establish- ments of St. Louis and the law treatise of Beaumanoir fill up the interval of the thirteenth century ; and before its conclu- sion we must suppose the excellent memoirs of Joinville to have been composed, since they are dedicated to Louis X. in 1315, when the author could hardly be less than iiinety years of age. Without prosecuting any further the history of French literature, I will only mention the translations of Livy and 656 EAKLY ITALIAN WRITERS. Chap. IX. Pakt II. Salhist, made in tlie reign and by the order of John, with tliose of Caesar, Suetonius, Ovid, and parts of Cicero, wliich are due to his successor, Charles V. § 27. I confess myself wholly uninformed as to the origi- nal formation of the Spanish language, and as to the epoch of its separation into the two principal dialects of Castile and Portugal or Gallicia ; nor should I perhaps have alluded to the literature of that peninsula, were it not for a remarkable poem which shines out among the minor lights of those times. This is a metrical life of the Cid Ruy Diaz, written in a barbarous style and with the rudest inequality of meas- ure, but with a truly Homeric warmth and vivacity of deline- ation. It is much to be regretted that the author's name has perished ; but its date has been referred by some to the middle of the twelfth century, while the hero's actions were yet recent, and before the taste of Spain had been corrupted by the Provencal troubadours, whose extremely different man- ner would, if it did not pervert the poet's genius, at least have impeded his popularity. A very competent judge has pro- nounced the poem of the Cid to be " decidedly and beyond comparison the finest in the Spanish language." It is at least superior to any that was written in Europe before the appearance of Dante. ^^ § 28. A strange obscurity envelops the infancy of the Ital- ian language. Though it is certain that grammatical Latin had ceased to be employed in ordinary discourse, at least from the time of Charlemagne, we have not a single passage of undisputed authenticity in the current idiom for nearly four centuries afterwards. Though Italian phrases are mixed up in the barbarous jargon of some charters, not an instrument is extant in that language before the year 1200. Nor is there a vestige of Italian poetry older than a few fragments of Ciullo d'Alcamo, a Sicilian, who must have written before 1193, since he mentions Saladin as then living. This may strike us as the more remarkable when we consider the politi- cal circumstances of Italy in the eleventh and twelfth cen- turies. From the struggles of her spirited re})ublics against the emperors and their internal factions Ave might, upon all general reasoning, anticipate the early use and vigorovis culti- vation of their native language. Even if it were not yet ripe for historians and philosophers, it is strange that no poet -^ An extract from tliis poem was published in 1808 by Mr. Soutliey, at tlie end of his " Chronicles of the Cid." M. Sismondi has given other passages in the third volume of his "History of Soutlniru Literature." State of society. BANTE. 657 should have been insi)irt'd witli songs of triumph or invective by the various fortunes of his country. But, on the contrary, the poets of Lombardy became troubadours, and wasted their genius in Provencal hive-strains at tlie courts of princes. The Mihmese and otlier Lombard dialects were, indeed, exceedingly rude ; but this rudeness separated them more decidedly from Latin ; nor is it jiossible that the Lombards could have em- ployed that language intelligibly for any public or domestic purpose. And indeed, in the earliest Italian compositions that have been published, the new language is so thoroughly formed, that it is natural to infer a very long disuse of that from which it was derived. The Sicilians claim the glory of having first adapted their own harmonious dialect to poetry. Frederick II. both encouraged their art and cultivated it ; among the very first essays of Italian verse we find his pro- ductions and those of his chancellor, Piero delle Vigne. Thus Italy was destined to owe the beginnings of her national literature to a foreigner and an enemy. These poems are very short and few ; those ascribed to St. Francis about the same time are hardly distinguishable from prose ; but after the middle of the thirteenth century the Tuscan poets awoke to a sense of the beauties which their native language, refined from the im])urities of vulgar speech, could display, and the genius of Italian literature Avas rocked upon the restless waves of the Florentine democracy. Ricordano Malespini, the first historian, and nearly the first prose writer in Italian, left memorials of the republic down to the year 1281, which was that of his death, and it was continued by Giaeehetto Males- pini to 128(). These are little inferior in purity of style to the best Tuscan authors ; for it is the singular fate of that language to have spared itself all intermediate stages of refine- ment, and, starting the last in the race, to have arrived al- most instantaneously at the goal. There is an interval of not much more than half a century between the short fragment of Ciullo d'Alcamo, mentioned above, and the poems of Guido Guinizzelli, Guitone d'Arezzo, and Guido Cavalcante, which, in their diction and turn of thought, are sometimes not unwortliy of Petrarch. § 20. But at the beginning of the next age arose a much greater genius, the true father of Italian poetry, and the first name in the literature of the Middle Ages. This was Dante, or Durante Alighieri, born in 1265, of a respectable family at Florence. Attached to the Guelf party, which had then obtained a final ascendency over its rival, he might justly 658 DANTE. Chap. IX. Pakt II. promise himself the natural reward of talents under a free government — public trust and the esteem of his compatriots. But the Guelfs unhappily were split into two factions, the Bianchi and the Nevi, with the former of whom, and, as it proved, the unsuccessful side, Dante was connected. In 1300 he filled the office of one of the priori, or chief magistrates, at Florence ; and having manifested in this, as was alleged, some partiality towards the Bianchi, a sentence of proscription passed against him about two years afterwards, when it became the turn of the opposite faction to triumph. Banished from his country, and baffled in several efforts of his friends to restore their fortunes, he had no resource but at the courts of the Scalas at Verona, and other Italian princes, attaching himself in adversity to the imperial interests, and tasting, ii; his own language, the bitterness of another's bread. In this state of exile he finished, if he did not commence, his great poem, the Divine Comedy — a representation of the three kingdoms of futurity. Hell, Purgatory, and Paradise, divided into one hundred cantos, and containing about 14,000 lines. He died at Ravenna, in 1321. Dante is among the very few who have created the national poetry of their country ; for notwithstanding the polished ele- gance of some early Italian verse, it had been confined to amorous sentiment, and it was yet to be seen that the language could sustain, for a greater length than any existing poem except the Iliad, the varied style of narration, reasoning, and ornament. Of all writers he is the most unquestionably original. Virgil was indeed his insi:»iring genius, as he declares himself, and as may sometimes be perceived in his diction ; but his tone is so peculiar and characteristic, that few readers would be willing at first to acknowledge any resem- blance. He possessed in an extraordinary degree a command of language, the abuse of which led to his obscurity and licentious innovations. No poet ever excelled him in concise- ness, and in the rare talent of finishing his pictures by a few bold touches — the merit of Pindar in his better hours. How prolix would the stories of Francesca or of Ugolino have become in tlie hands of Ariosto, or of Tasso, or of Ovid, or of Spenser ! This excellence, indeed, is most striking in the first part of his poem. Having formed his plan so as to give an equal length to the three regions of his spiritual world, he found himself \inable to vary the images of hope or beatitude, and the Paradise is a continual accumulation of descriptions, separately beautiful, but uniform and tedious. Though images State of Society. DANTE. 659 derived from light and music are the most pleasing, and can be borne longer in poetry than any others, their sweetness palls upon the sense by frequent repetition, and we require the intermixture of sharper flavors. Yet there are detached passages of great excellence in this third part of Dante's poem ; and even in the long theological discussions, which occupy the greater proportion of its thirty-three cantos, it is impossible not to admire the enunciation of abstract positions with remarkable energy, conciseness, and sometimes perspi- cuity. The first twelve cantos of Purgatory are an almost continual flow of soft and brilliant poetry. The last seven are also very splendid; but there is some heaviness in the inter- mediate parts. Fame has justly given the preference to the Inferno, which displays throughout a more vigorous and masterly conception ; but the mind of Dante cannot be thoroughly appreciated without a perusal of his entire poem. The most forced and unnatural turns, the most barbarous licenses of idiom, are found in this poem, whose power of ex- pression is at other times so peculiarly happy. His style is indeed generally free from those conceits of thought which discredited the other poets of his country ; but no sense is too remote for a word which he finds convenient for his measure or his rhyme. It seems, indeed, as if he never altered a line on account of the necessity of rhyme, but forced another, or per- haps a third, into company with it. For many of his faults no sufficient excuse can be made. But it is candid to remember that Dante, writing almost in the infancy of a language which he helped to create, was not to anticipate that words which he borrowed from the Latin and from the provincial dialects would by accident, or through the timidity of later writers, lose their ])lace in the classical idiom of Italy. If Petrarch, Bembo, and a few more, had not aimed rather at purity than copiousness, the phrases which now a])pear barbarous, and are at least obsolete, might have been fixed by use in poetical language. The great characteristic excellence of Dante is elevation of sentiment, to which his compressed diction and the emphatic cadences of his measure admirably correspond. We read him not as an amusing poet, but as a master of moral wisdom, with reverence and awe. Fresh from the deep and serious, though somewhat barren, studies of philosophy, and schooled in the severer discipline of experience, he has made of his poem a mirror of his mind and life, the register of his solicitudes and . sorrows, and of the speculations in which he sought to escape 660 DAKTE. Chap. IX. Part II. their recollection. The banished magistrate of Florence, the disciple of Brunetto Latini, the statesman accustomed to trace the varying fluctuations of Italian faction, is forever before our eyes. For this reason, even the prodigal display of erudi- tion, which in an epic poem would be entirely misplaced, in- creases the respect we feel for the poet, though it does not tend to the reader's gratitication. Except Milton, he is much the most learned of all the great poets, and, relatively to his age, far more learned than Milton. In one so highly endowed by nature, and so consummate by instruction, we may well sym- pathize with a resentment which exile and poverty rendered perpetually fresh. The heart of Dante was naturally sensible, and even tender ; his poetry is full of simple comparisons from rural life ; and the sincerity of his early passion for Beatrice pierces through the veil of allegory which surrounds her. But the memory of his injuries pursues him into the immensity of eternal light ; and, in the company of saints and angels, his unforgiving spirit darkens at the name of Florence. This great poem was received in Italy with that enthusiastic admiration which attaches itself to works of genius only in ages too rude to listen to the envy of competitors or the fastid- iousness of critics. Almost every library in that country con- tains manuscript copies of the Divine Comedy, and an account of those Avho have abridged or commented upon it would swell to a volume. It was thrice printed in the year 1472, and at least nine times within the fifteenth century. The city of Florence in 1373, with a magnanimity which almost redeems her original injustice, appointed a public professor to read lec- tures upon Dante ; and it was hardly less honoraljle to the poet's memory that the first person selected for this office was Boccac- cio. The universities of Pisa and I'iacenza imitated this ex- ample ; but it is probable that Dante's abstruse philosophy was often more regarded in their cliairs than his higher excellences. Italy indeed, and all Euro]ie, had reason to be ])roud of such a master. Since Claudian, tliere had been seen for nine hundred years no considerable body of ])oetry, except the Spanish ])oem of the Cid, of which no one liad heard beyond the peninsnla, that could be said to pass mediocrity ; and we must go much farther back than Claudian to find anyone capable of being com]iared with Dante. His appearance made an epoch in the intellectual history of modern nations, and banished the dis- couraging suspicion which long ages of lethargy tended to ex- cite, that nature had exhausted her fertility in the great poets of Greece and Rome. It was as if, at some of the ancient State of Society. PETRARCH. 661 games, a stranger had appeared upon the }dain, and thrown his quoit among the marks of former casts wliich tradition luid ascribed to the demigods. But the admiration of Dante, though it gave a general impulse to the human mind, did not produce imitators. I am unaware, at least, of any writer, in whatever language, who can be said to have followed the steps of Dante : I mean not so much in his subject as in the charac- ter of his genius and style. His orbit is still all his own, and the track of his wheels can never be confounded with that of a rival. § 30. In the same year that Dante was expelled from Flor- ence, a notary, by name Petracco, was involved in a similar banishment. Retired to Arezzo, he there became the father of Francis Petrarch. This great man shared, of course, during his early years, in the adverse fortune of his fainily, which he was invincibly reluctant to restore, according to his father's wish, by tlie profession of jurisprudence. The strong bias of nature determined him to polite letters and poetry. These are seldom the fountains of wealth ; yet they would perhaps have been such to Petrarch, if his temper could have borne the sacrilice of liberty for any worldly acquisitions. At the city of Avignon, where his parents had latterly resided, his grace- ful appearance and the reputation of his talents attracted one of the Colonna family, then P>ishop of Lombes, in Gascony. In him, and in other members of that great house, never so illustrious as in the fourteenth century, he experienced the union of patronage and friendship. This, however, was not confined to the Colonnas. Unlike Dante, no poet w^as ever so liberally and sincerely encouraged by the great ; nor did any, perhaps, ever carry to that perilous intercourse a spirit more irritably independent, or more free from interested adulation. He praised his friends lavishly because he loved them ardently ; but his temper was easily susceptible of offence, and there must have been much to tolerate in that restlessness and jealousy of re})utation which is perhaps the inevitable failing of a poet. But everything was forgiven to a man who was the acknowl- edged boast of his age and country. Clement VI. conferred one or two sinecure benefices upon Petrarch, and would prob- ably have raised him to a bishopric if he had chosen to adopt the ecclesiastical profession. But he never took orders, the clerical tonsure being a sufficient qualification for holding can- onries. The same pope even afforded him the post of apostol- ical secretary, and tliis was repeated by Innocent VL I know not whether we should ascribe to magnanimity or to a politic 662 PETRARCH. Chap. IX. Part II. motive the behavior of Clement VI. towards Petrarch, Avho had pursued a course as vexatious as possil)le to the PIul}- ISee; for not only he made the residence of the supreme poutitt's at Avignon, and the vices of their court, the topic of invectives, too well founded to be despised, but he had ostentatiously put himself forward as the supporter of Nicola di Rienzi in a pro- ject which could evidently have no other aim than to wrest the city of Rome from the temporal sovereignty of its bishop. Nor was the friendship and society of Petrarch less courted by the most respectable Italian princes ; by Robert, king of Naples, by the Visconti, the Correggiof Parma, the famous doge .of Venice, Andrew Dandolo, and the Carrara family of Padua, under whose protection he spent the latter years Of his life. Stories are related of the respect shown to him by men in humbler stations which are perhaps still more satisfactory. But the most conspicuous testimony of public esteem was bestowed by the city of Rome, in his solemn coronation as laureate poet in the Capitol. This ceremony took place in 1341 ; and it is remarkable that Petrarch had at that time composed no works which could, in our estimation, give him pretensions to so singular an honor. The moral character of Petrarch was formed of dispositions peculiarly calculated for a poet. An enthusiast in the emo- tions of love and friendship, of glory, of patriotism, of religion, he gave the rein to all their impulses ; and there is not, per- haps, a page in his Italian Avriting Avhich does not bear the trace of one or other of these affections. By far the most pre- dominant, and that which has given the greatest celebrity to his name, is his passion for Laura. Twenty years of unre- quited and almost unaspiring love were lightened by song ; and the attachment, which, having long survived the beauty of its object, seems to have at one time nearly passed from the heart to the fancy, was changed to an intenser feeling, and to a sort of celestial adoration, by her death. Laura, before the time of Petrarch's tirst accidental meeting with her, was united in marriage with another; a fact which, besides some more par- ticular evidence, appears to me deducible from the whole tenor of his poetry.^*' Such a passion is undoubtedly not capable of amoral defence ; nor would I seek its palliation so much in the prevalent manners of his age, by which, however, the conduct of even good men is generally not a little influenced, as in the infirmity of Petrarch's character, which induced him both to sr. See NoTic II., " I'etrarcirs Laiir.a." State of Society. ENGLISH LANGUAGE. 663 obey and to justify tlie emotions of his heart. The lady, too, whose virtue and }>rudence we are not to question, seeius to have tempered the liglit and shadow of her countenance, so as to preserve her admirer from despair, and consequently to prolong his sufferings and servitude. The general excellences of Petrarch are his command over the music of his native language, his correctness of style, scarcely two or three words that he has used having been rejected by later writers, his exquisite elegance of diction, improved l3y the perpetual study of Virgil ; but, far above all, that tone of pure and melancholy sentiment, which has something in it unearthly, and forms a strong contrast to the amatory poems of antiquity. Most of these are either licen- tious or uninteresting ; and those of Catullus, a man endowed by nature with deep and serious sensibility, and a poet, in my opinion, of greater and more varied genius than Petrarch, are contaminated above all the rest with the most degrading grossuess. Of this there is not a single instance in the poet of Vaucluse ; and his strains, diffused and admired as they have been, may have conferred a benefit that criticism cannot estimate in giving elevation and refinement to the imagina- tions of youth. The great defect of Petrarch was his want of strong original conception, which prevented him from throwing off the affected and overstrained manner of the Provencal troubadours, and of the earlier Italian poets. § 31. None of the principal modern languages was so late in its formation, or in its application to the purposes of literature, as the English. This arose, as is well known, out of the Saxon branch of the great Teutonic stock spoken in England till after the Conquest. From this mother dialect our English differs much less in respect of etymology than of syntax, idiom, and flexion. In so gradual a transition as probably took place, and one so sparingly marked by any existing evidence, we cannot well assign a definite origin to our present language. The question of identity is almost as perplexing in languages as in individuals. Put in the reign of John, a version of Wace's poeni of Brut, by one Layamon,^^ a priest of Ernly-upon-Severn, 2' The entire work of Layamon contains a small nuni)ier of words taken from the Frencli; about fifty in tlie original text, and about forty more in that of a manuscript perliaps half a century later, and very considerably altered in conseriuence of the progress of our language. Jfaiiy of these words derived from the l<'rench express new ideas, as adjiiiral, astronoinv, baron, mantel, etc. "The language of I>nyamon," says Sir Frederick Madden, " belongs to that transition period in which the ground- work of Anglo-Saxon pliniseology and grammar still existed, although grained with the vowel-changes, which are numcnius, though not altogether arbi- trary, will show at once the progress made in two centuries in departing from the ancient and purer grammatical forms, as found in Anglo-Saxon manuscripts." — Pre/ace, p. xxviii. State of Society. THE ENGLISH LANGUAGE. 665 French connections, and they began to pride themselves in the name of Englislimen, and in the inheritance of tradition- ary English privileges. Robert of Gloncester has a remark- able passage, which proves that in his time, somewhere about 1290, the superior ranks continued to use the French lan- guage. Ralpli Higden, about tlie early part of Edward III.'s reign, though his expressions do not go the same length, as- serts that " gentlemen's children are taught to speak French from the time they are rocked in their cradle ; and uplandish (country) or inferior men will liken themselves to gentlemen, and learn with great business for to speak French, for to be the more told of," Notwithstanding, however, this predom- inance of French among the higher class, I do not think that some modern critics are warranted in concluding that they were in general ignorant of the Englisli tongue. Men living upon their estates among thi'ir tenantry, wliom they welcomed in their halls, and whose assistance they were perpetually needing in war and civil frays, would liardly have permitted such a barrier to obstruct their intercourse. For we cannot, at the utmost, presume that French was so well known to tlie English commonalty in the thirteenth century as English is at present to the same class in Wales and the Scottish Highlands. It may be remarked, also, that the institution of trial by jury must have rendered a knowledge of English almost indispensa- ble to those who administered justice. There is a proclama- tion of Edward I., in Rymer, where he endeavors to excite his subjects against the King of France by imiuiting to him the intention of conquering the country and abolishing the English language (linguam delere Anglicanam), and this is frequently repeated in the proclamations of Edward III. In his time, or perhaps a little before, the native language liad become more familiar than French in common use, even with the court and nobility. Hence the numerous translations of metrical ro- mances, which are chietly referred to his reign. An important change Avas effected in 1362 by a statute, which enacts that all pleas in courts of justice shall be pleaded, debated, and judged in English. But Latin Avas by this act to be employed in \ drawing the record ; for there seems to have still continued a sort of prejudice against the use of English as a written lan- guage. The earliest English instrument known to exist is said to bear the date of 1343. And there are but few entries in our own tongue upon the rolls of Parliament before the reign of Henry VI., after whose accession its use becomes very common.^* '8 See Note III., " The Legislative Use of the English Language." G66 CHAUCER. Chap. IX. Pakt II. Sir John Mandeville, about 1356, may pass for tlie father of English prose, no original work being so ancient as his Travels. But the translation of tlie Bible and other writ- ings by \Meliff, nearly thirty years afterwards, taught us the copiousness and energy of which our native dialect was capa- ble ; and it was employed in the fifteenth century by two writers of distinguished merit, Bishop Becock and Sir John Fortescue. § 32. But the principal ornament of our English literature was Geoffrey Cliaucer, who, with Dante and Betrarch, tills up the triumvirate of great poets in the Middle Ages. Chaucer was born in 1328, and his life extended to the last year of the fourteenth century. That rude and ignorant generation was not likely to feel the admiration of native genius as warmly as the compatriots of l*etrarch ; but he enjoyed the favor of Edward III., and still more conspicuously of John, duke of Lancaster ; his fortunes were far more prosperous than have usually been the lot of poets ; and a reputation was established beyond competition in his lifetime, from wliich no succeeding generation has withheld its sanction. I cannot in my own taste go completely along with the eulogies that some have bestowed upon Chaucer, who seems to me to have wanted grandeur, where he is original, both in conception and in lan- guage. But in vivacity of imagination and ease of expression he is above all poets of the middle time, and comparable per- haps to the greatest of those who have followed. He invented, or rather introduced from France, and employed with facility the regular iambic couplet ; and though it was not to be ex- pected that he should ])orceive the capacities latent in that measure, his versification, to which he accommodated a very licentious and arbitrary pronunciation, is uniform and harmo- nious. It is chiefly, indeed, as a comic poet, and a minute ob- server of manners and circumstances, that Chaucer excels. In serious and moral poetry he is frequently languid and diffuse ; but he springs like Antaeus from the earth when his subject changes to coarse satire or merry narrative. Among his more ' elevated compositions, the Knight's Tale is al)undantly suffi- cient to immortalize Chaucer, since it would be difficult to find anywhere a story better conducted, or told with more anima- tion and strength of fancy. The second place may be given to his Troilus and Creseide, a beautiful and interesting poem, though enfeebled by expansion. But perliaps the most emi- nent, or at any rate the most characteristic, testimony to his genius will be found in the prologue to his Canterbury Tales ; State of Society. IIEVIVAL OF ANCIENT LEARNING. G67 a work entirely and exclusively liis own, Avhicli can seldom be said of liis poetry, and the vivid delineations of which per- haps very few writers but Shakspeare could have equalled. As the first original English poet, if we except Langland, as the inventor of our most approved measure, as an improver, though with too much innovation, of our language, and as a faithful witness to the manners of his age, Chaucer would deserve our reverence, if he had not also intrinsic claims for excellences which do not depend upon any collateral consid- erations. §33. (IV.) Revival of Ancient Learning. — The last circumstance which I shall mention, as having contributed to restore society from the intellectual degradation into which it had fallen during the Dark Ages, is the revival of classical learning. The Latin language, indeed, in which all legal in- struments were drawn up, and of which all ecclesiastics availed themselves in their e])istolary intercourse, as well as in their more solemn proceedings, had never ceased to be familiar. Though many solecisms and barbarous words occur in the writings of what were called learned men, they possessed a fluency of expression in Latin which does not often occur at present. During the Dark Ages, however, properly so called, or the period from the sixth to the eleventh century, we chiefly meet with quotations from the Vulgate or from theological writers. Nevertheless, quotations from the Latin poets are hardly to be called unusual. Virgil, Ovid, Statins, and Horace are brougiit forward by those who aspired to some literary reputation, especially during the better periods of tliat long twilight, the reigns of Charlemagne and his son in France, part of the tentli century in Germany, and the eleventh in both. The prose writers of Rome are not so familiar, but in quotations we are apt to find the poets preferred; and it is certain that a few could be named who were not ignorant of Cicero, Sallust, and Livy. A considerable change took place in the course of the twelfth century. The polite literature, as well as the abstruser science of anti(|uity, became the subject of cultivation. Several writers of that age, in different parts of Europe, are distinguished more or less for elegance, though not absolute purity, of Latin style, and for their acquaintance with those ancients who are its principal models. Such were John of Salisbury, the acute and learned author of the Poly- craticon, William of Malmsbury, Giraldus Cambrensis, Roger Hoveden, in England ; and in foreign countries, Otho of Fri- singen, Saxo Grammaticus, and the best perhaps of all I have 668 LIBRARIES. Chap. IX. Part IL named as to style, Falcandus, tlie historian of Sicily. In these we meet with frequent quotations from Livy, Cicero, Pliny, and other considerable writers of antiquity. The poets were now admired and even imitated. All metrical Latin before the latter part of the twelfth century, so far as I have seen, is of little value ; but at this time, and early in the succeeding age, there appeared several versifiers' who aspired to the renown of following the steps of Virgil and Statins in epic poetry. Joseph Iscanus, an Englishman, seems to have been the earli- est of these ; his poem on the Trojan war containing an address to Henry II. He wrote another, entitled Antiocheis, on the third crusade, most of wliich has perished. The wars of Fred- erick Barbarossa were celebrated by Gunther in his Ligurinus ; and not long afterwards Guillelmus Brito wrote the Philippis, in honor of l*hilip Augustus, and Walter de Chatillon the Alexandreis, taken from the popular romance of Alexander. None of these poems, I believe, have much intrinsic merit ; but their existence is a proof of taste that could relish, though not of genius that could emulate, antiquity. In the thirteenth century there seems to have been some decline of classical literature, in consequence probably of the scholastic philosophy, which was then in its greatest vigor ; at least we do not find so many good writers as in the preced- ing age. But about the middle of the fourteenth, or perhajjs a little sooner, an ardent zeal for the restoration of ancient learning began to display itself. The copying of books, for some ages slowly and sjoaringly performed in monasteries, had already become a branch of trade ; and their price was consequently reduced. Tiraboschi denies that the invention of making paper from linen rags is older than the middle of that century ; and although doubts may be justly entertained as to the accuracy of this position, yet the confidence with which so eminent a scholar advances it is at least a proof that ])aper manuscripts of an earlier date are very rare. Princes became far more attentive to literature when it was no longer confined to metaphysical theology and canon law. I have already mentioned the translations from classical authors, made by command of John and Charles V. of France. These French translations diffused some acquaintance with ancient history and learning among our own countrymen. The public libraries assumed a more respectable appearance. Louis IX. had formed one at Paris, in which it does not appear that any work of elegant literature was found. At tlie beginning of the fourteenth century, only four classical manuscripts existed State of Society. MANUSCEI1*TS. 669 in this collection — of Cicero, (3vicl, Lucan, and Boetliius. The academical library of Oxford, in 1300, consisted of a few tracts kept in chests under St. Mary's Church. That of Glastonbury Abbey, in 1240, contained four hundred volumes, among which were Livy, Sallust, Lucan, Virgil, Claudian, and other ancient Avriters. But no other, probably, of that age was so numerous or so valuable, liichard of Bury, chancellor of England, and Edward III., spared no expense in collecting a library, the first, perhaps, that any [u-ivate man had formed; but the scarcity of valuable books was still so great that he gave the Abbot of St. Albans fifty pounds' weight of silver for between thirty and forty volumes. Charles V. increased the royal library at Paris to nine hundred volumes, which the Duke of Bedford purchased and transported to London. His brother Humphrey, duke of Gloucester, presented the University of Oxford with six hundred books, which seem to have been of extraordinary value, one hundred and twenty of them having been estimated at one thousand pounds. This, indeed, was in 1440, at which time such a library would not have been thought remarkably numerous beyond the Alps ; but England had made compara- tively little progress in learning. Germany, however, was probably still less advanced. Louis, elector palatine, be- queathed, in 1421, his library to the University of Heidelberg, consisting of one hundred and fifty-two volumes. Eighty-nine of these related to theology, twelve to canon and civil law, forty-five to medicine, and six to philosophy. Those who first undertook to lay open the stores of ancient learning found incredible difficulties from the scarcity of manuscripts. So gross and supine was the ignorance of the monks within whose walls these treasures were concealed, that it was impossible to ascertain, except by indefatigable re- searches, the extent of what had been saved out of the great shipwreck of antiquity. To this inquiry Petrarch devoted continual attention. He spared no means to preserve the remains of authors who were perisliing from neglect and time. This danger was by no means past in the fourteenth century. A treatise of Cicero upon Glory, which had been in his pos- session, was afterwards irretrievably lost. He declares that he had seen in his youth the works of Varro ; but all his endeavors to recover these, and the second Decade of Livy, were fruitless. He found, however, Quintilian, in 1350, of which there was no copy in Italy. Boccaccio, and a man of less general fame, Colluccio Salutato, were distinguished in the same honorable task. The diligence of these scholars was 670 MANUSCRIPTS. Cuap. IX. Part II. not confined to searching for manuscripts. Transcribed by slovenly monks, or by ignorant persons who made copies for sale, they required the continual emendation of accurate critics. Though much, certainly, was left for the more enlightened sagacity of later times, we owe the first intelligible text of the Latin classics to Petrarch, Poggio, and their contemporary laborers in this vineyard for a hundred years before the inven- tion of printing. What Petrarch began in the fourteenth century was carried on by the new generation with unabating industry. The whole lives of Italian scholars in the fifteenth century were devoted to the recovery of manuscripts and the revival of philology. For this they sacrificed their native language, which had made such surprising shoots in the preceding age, and were content to trace in humble reverence the footsteps of antiquity. For this, too, they lost the hope of permanent glory, which can never remain with imitators, or such as trim the lamp of ancient sepulchres. No writer, perhaps, of the fifteenth cen- tury, excei)t Politian, can aspire at present even to the second class in a just marshalling of literary re])utation. Put Ave owe them our respect and gratitude for their taste and diligence. The discovery of an unknown manuscript, says Tiraboschi, was regarded almost as the conquest of a kingdom. The classi- cal writers, he adds, were chiefly either fcund in Italy, or at least by Italians ; they were first amended and first printed in Italy, and in Italy they were first collected in public libraries. This is subject to some exception, when fairly considered ; several ancient authors were never lost, and therefore cannot be said to have been discovered ; and we know that Italy did not always anticipate other countries in classical printing. But her superior merit is incontestable. Poggio Bracciolini, who stands, perhaps, at the head of the restorers of learning in the earlier part of the fifteenth century, discovered in the monastery of St. Gall, among dirt and rubbish, in a dungeon scarcely fit for condemned criminals, as he describes it, an entire copy of Quintilian and part of Valeiius Flaccus. This was in 1414; and soon afterwai'ds he rescued the poem of Silius Italicus, and twelve comedies of Plautus, in addition to eight that were previously known ; besides Lucretius, Co- lumella, TertuUian, Ammianus Marcellinus, and other writers of inferior note. A bishop of Lodi brought to light the rhe- torical treatises of Cicero. Not that we must suppose these books to have been universally unknown before; Quintilian. at least, is quoted by English writers much earlier. But so little State of Societv. GEEEK LANGUAGE. 671 intercourse prevailed among different countries, and tlie monks liad so little acquaintance vith the riches of their conventual libraries, that an autlior might pass for lost in Italy who was familiar to a few learned men in other parts of Europe. To the name of Foggio we may add a number of others, distin- guished in this memorable resurrection of ancient literature, and united, not always, indeed, by friendship, for their bitter animosities disgrace their profession, but by a sort of common sympathy in the cause of learning : Filelfo, Laurentius Valla, Niccolo Xicoli, Ambrogio Traversari, more commonly called II Camaldolense, and Leonardo Aretiuo. § 34. From the subversion of the Western Empire, or at least from the time when Rome ceased to pay obedience to the exarchs of Ravenna, the Greek language and literature had been almost entirely forgotten within the pale of the Latin Church. A very few exceptions might be found, especially in the earlier period of the Middle Ages, while the Eastern emperors retained their dominion over part of Italy. Thus Charlemagne is said to have established a school for Greek at Osnaburg. John Scotus seems to have been well acquainted with the language. And Greek characters may occasionally, though very seldom, be found in the writings of learned men ; such as Lanfranc, or William of Malmsbury. It is said that Roger Bacon understood Greek; and that his eminent con- temporary, Robert Grostete, bishop of Lincoln, had a suffi- cient intimacy with it to translate a part of Suidas. Since Greek was spoken with considerable purity by the noble and well-educated natives of Constantinople, we may wonder that, even as a living language, it was not better known by the Western nations, and especially in so neighboring a nation as Italy. Yet here the ignorance was, perhaps, even more com- plete than in France or England. In some parts, indeed, of Calabria, which had been subject to the Eastern Empire till near the year 1100, the liturgy was still performed in Greek; and a considerable acquaintance with the language was of course preserved. But for the scholars of Italy, Boccaccio positively assorts that no one understood so much as the Greek characters. Nor is there, probably, a single line quoted front any poet in that language from the sixth to the four- teenth century. The first to lead the way in restoring Grecian learning in Europe were the samo men who had revived the kindred muses of Latium, Petrarch, and Foccaccio. Barlaam, a Cala- brian by birth, during an embassy from the Court of Con- 672 LEARNING AMONG THE GREEKS. Chap. IX. Pakt II. stantinople in 1335, was persuaded to become the preceptor of the former, with whom he read tlie works of Plato. Leontius Pilatus, a native of Thessalonica, was encouraged some years afterwards by Boccaccio to give public lectures upon Homer at Florence. Whatever might be the share of general atten- tion that he excited, he had the honor of instructing both these great Italians in his native language. Neither of them, perhaps, reached an advanced degree of proficiency ; but they bathed their lips in the fountain, and enjoyed the pride of being the first who paid the homage of a new posterity to the father of poetry. For some time little fruit. api)arently, resulted from their example ; but Italy had imbibed the desire of acqui- sitions in a new sphere of knowledge, which, after some in- terval, she was abundantly able to realize. A few years before the termination of the fourteenth century, Emanuel Chryso- loras, whom the Emperor John Pala^ologus had previously sent into Italy, and even as far as England, upon one of those unavailing embassies by which the Byzantine Court strove to obtain sympathy and succor from Europe, returned to Florence as a public teacher of Grecian literature. His school was afterwards removed successively to Pavia, Venice, and Rome ; and during nearly twenty years that he taught in Italy most of those eminent scholars whom I have already named, and who distinguish the first half of that centur}', derived from his instruction their knowledge of the Greek tongue. Some, not content with being the disciples of Chrysoloras, betook them- selves to the source of that literature at Constantinople ; and returned to Italy not only with a more accurate insight into the Greek idiom than they could liave attained at home, but with copious treasures of manuscripts, few, if any, of which probably existed previously in Italy, where none had ability to read or value them ; so that the principal authors of Grecian antiquity may be considered as brought to light by these in- quirers, the most celebrated of whom are (iuarino of Verona, Aurispa, and Filelto. Tiie second of these brought home to Venice, in 1423, not less than two hundred and thirty-eight volumes. The fall of that Eastern Emjnre, which had so long out- lived all other pretensions to respect that it scarcely retained that founded upon its antiquity, Seems to have been provi- dentially delayed till Italy was ripe to nourish the scattered seeds of literature that woidd have perished a few ages ear- lier in the common catastroplie. From the commencement of the fifteenth century even the national pride of Greece could State OF Society. LEARNING AMONG THE GREEKS. 673 not blind her to the signs of approaching ruin. It was no longer possible to inspire the European republic, distracted by wars and restrained by calculating policy, with the gener- ous fanaticism of the Crusades ; and at tlie Council of Flor- ence, in 143'.), the court and church of Constantinople had the mortification of sacrificing their long-cherished faith, without experiencing ^ any sensible return of protection or security. The learned Greeks were perhaps the first to anti- cipate, and certainly not the last to avoid, their country's destruction. The Council of Florence brought many of them into Italian connections, and held out at least a temi)orary accommodation of their confiicting opinions. Though the Ko- nian pontiffs did nothing, and probably could have done notli- ing effectual for the empire of Constantinople, they were very ready to protect and reward the learning of individuals. To Eugenius IV., to jSTicolas V., to Pius II., and some other popes of this age, the Greek exiles were indebted for a patronage which they repaid by splendid services in the restoration of their native literature throughout Italy. Bessarion, a dispu- tant on the Greek side in the Council of Florence, was well content to renounce the doctrine of single procession for a cardinal's hat — a dignity wliich he deserved for his learning, if not for his pliancy. Theodore Gaza, George of Trel)izon(l, and Gemistus Pletho might equal Bessarion in merit, though not in honors. They all, however, experienced tlie ])atronage of those admirable protectors of letters, Nicolas V., Cosmo de' Medici, or Alfonso king of Naples. These men emigrated before the final destruction of the Greek Empire ; Lascaris Musurus, whose arrival in Italy was posterior to that event, may be deemed perhaps still more conspicuous ; but as the study of the Greek language was already restored, it is unne- cessary to pursue the subject any farther. The Greeks had preserved, through the course of the Middle Ages, their share of ancient learning with more fidelity and attention than was shown in the west of Europe. Genius, indeed, or any original excellence, could not well exist along with their cowardly despotism and their contemptible theology, more corrupted by frivolous subtleties than that of the Latin Church. The spirit of persecution, naturally allied to des]K)t- ism and bigotry, had nearly, during one period, extinguished the lamp, or at least reduced the Greeks to a level with the most ignorant nations of the West. In the age of Justinian, who expelled the last Platonic philosoidiers, learning began rapidly to decline; in that of Heraclius it had reached a much 674 CLASSIC LITERATURE. Chap. IX. Part XL lower point of degradation ; and for two centuries, especially while the worshippers of images were persecuted with unre- lenting intolerance, there is almost a blank in the annals of Grecian literature. But about the middle of the ninth century it revived pretty suddenly, and with considerable success. Though, as 1 have observed, we find in very few instances any original talent, yet it was hardly less important to have had compilers of such erudition as Photius, Suidas, Eustathius, and Tzetzes. With these, certainly, the Latins of the Middle Ages could not place any names in comparison. They possessed, to an extent which we cannot precisely appreciate, many of those poets, historians, and orators of ancient Greece, whose loss we have long regretted and must continue to deem irretrievable. Great havoc, however, was made in the libraries of Constanti- nople at its capture by the Latins — an epoch from which a rapid decline is to be traced in the literature of the Eastern Empire. Solecisms and barbarous terms, which sometimes occur in the old Byzantine Avriters, are said to deform the style of the fourteenth and fifteenth centuries. The Turkish ravages and destruction of monasteries ensued ; and in the cheerless intervals of immediate terror there was no longer any encour- agement to preserve the monuments of an expiring language, and of a name that was to lose its place among nations. That ardor for the restoration of classical literature which animated Italy in the first part of the fifteenth century was by no means common to the rest of Europe. Neither England, nor France, nor Germany, seemed aware of the approaching change. We are told that learning, by which I believe is only meant the scholastic ontology, had begun to decline at Oxford from the time of Edward IIL ; and the fifteenth cen- tury, from whatever cause, is particularly barren of writers in the Latin language. The study of Greek was only intro- duced by Grocyn and Linacer under Henry VIL, and met with violent opposition in the University of Oxford, where the unlearned ])arty styled themselves Trojans, as a pretext for abusing and insulting the scholars. Nor did any clas- sical work proceed from the respectable press of Caxton. France, at the beginning of the fifteenth age, had several eminent theologians ; but the reigns of Charles VII. and Louis XI. contributed far more to her political than her literary renown. A Greek professor was first appointed at Paris in 1458, before which time the language had not been indilicly taught, and was little understood. Much less had Germany tlirown otf her ancient rudeness. iEneas Sylvius, indeed, a Static of Societv. INVEXTIOX OF PRINTING. 675 deliberate flatterer, extols every circumstance in the social state of that country ; but Campano, the papal legate at Ratisbon in 1471, exclaims against the barbarism of a nation where very few possessed any learning, none any elegance. Yet the progress of intellectual cultivation, at least in the two former countries, was uniform, though silent ; libraries became more numerous, and books, after the happy invention of paper, though still very scarce, might be copied at less expense. Many colleges were founded in the English as well as foreign universities during the fourteenth and fifteenth centuries. Nor can I pass over institutions that have so emi- nently contributed to the literary reiaitation of this country, and that still continue to exercise- so conspicuous an influence over her taste and knowledge, as the two great schools of gram- matical learning, Winchester and Eton — the one founded by William of Wykeham, bishop of Winchester, in 1373 ; the other in 1432, by King Henry VI. § 35. But while the learned of Italy were eagerly ex])lor- ing their recent acquisitions of manuscripts, deciphered with difliculty and slowly circulated from hand to hand, a few obscure Germans had gradually perfected the most important discovery recorded in the annals of mankind. The invention of printing, so far from being the result of })hilosophical saga- city, does not appear to have been suggested by any regard to the higher branches of literature, or to bear any other relation than that of coincidence to their revival in Italy. The ques- tion why it was struck out at tliat particular time must be referred to that disposition of unknown causes which we call accident. Two or three centuries earlier, we cannot but acknowledge, the discovery Avould have been almost equally acceptable. lUit the invention of paper seems to have natu- rally preceded those of engraving and printing. It is gener- ally agreed that playing-cards, which have been traced far back in the fourteenth century, gave the flrst notion of taking off impressions from engraved flgures upon wood. The second stage, or rather second application of this art, was the repre- sentation of saints and otlier religious devices, several instances of which are still extant. Some of these are accompanied with an entire page of illustrative text, cut into the same wooden block. This process is indeed far removed from the invention that has given immortality to the names of Faust, Schreffer, and Gutenberg, yet it probal)ly led to the consideration of means wliertdiy it might be rendered less operose and incon- venient. Whether movable wooden characters were ever em- 676 REVIVAL OF LEARNING. Chap. IX. Tart II. ployed in any entire work, is very questionable — the opinion that referred their use to Laurence Coster, of Haarlem, not having stood the test of more accurate investigation. They appear, however, in the capital letters of some early printed books. But no expedient of tliis kind could have fulfilled the great purposes of this invention until it was perfected by founding metal types in a matrix or mould, the essential characteristic of printing, as distinguished from other arts that bear some analogy to it. The first book that issued from the presses of Faust and his associates at Mentz was an edition of tlie Vulgate, commonly called the Mazarine Bible, a copy having been discovered in the library that owes its name to Cardinal Mazarin at Paris. This is supposed to have been printed between the years 1450 and 1455. In 1457 an edition of the Psalter appeared, and in this the invention was announced to the world in a boasting colophon, though certainly not unreasonably bold. Another edition of the Psalter, one of an ecclesiastical book, Durand's account of liturgical offices, one of the Constitutions of Pope Clement V., and one of a popvdar treatise on general science, called the Catholicon, filled up the interval till 1462, when the second Mentz Bible proceeded from the same printers. This, in the opinion of some, is the earliest book in whicli cast types were employed — those of the Mazarine Bible having been cut with the hand. But this is a controverted point. In 3465 Faust and Schoeffer published an edition of Cicero's Offices, the first tribute of the new art to polite literature. Two pupils of their school, Sweynheim and I'annartz, migrated the same year into Italy, and i)rinted Donatus's grammar and the works of Lactautius at the monastery of Subiaco, in the neighborhood of Rome. Venice had the honor of extending lier j)atronage to John of Spira, the first who applied the art on an extensive scale to the publication of classical writers. Several authoi-s came forth from his press in 1470 ; and during the next ten years a multitude of editions were published in various parts of Italy. Thoi;gh, as we may judge from their present scarcity, these editions were by no means numerous in respect of im- pressions, yet, contrasted with the dilatory process .of copying manuscripts, they were like a new mechanical power in machinery, and gave a wonderfully accelerated impulse to the intellectual cultivation of mankind. From the era of these first editions proceeding from the kSpiras, Zarot, Janson, or Sweynheim and Pannartz, literature must be deemed to have altogether revived in Italy. The sun was now fully above the State OF Society. REVIVAL OF LEARNING. 677 horizon, though countries less fortunately circumstanced did not immediately catch his beams ; and the restoration of ancient learning in France and England cannot be considered as by any means effectual even at tlie expiration of the fifteenth century. At this point, however, I close the present chapter. The last twenty years of the Middle Ages, according to the date which I have fixed for their termination in treating of political history, might well invite me by their brilliancy to dwell upon that golden morning of Italian literature. But, in the history of letters, they rather appertain to the modern than the middle period ; nor would it become me to trespass upon the exhausted patience of my readers by repeating what has been so often and so recently told, the story of art and learning that has employed the comprehensive research of a Tiraboschi, a Ginguene, and a Roscoe. 678 NOTES TO CHAPTEK IX. NOTES TO CHAPTER IX. — Part IL I. DOMESTIC ARCHITECTUKE. Tlie best account of domestic architec- ture liitlierto given is in an article with this title in the Glossary of Ancient Arch- itecture by Mr. Twopeuy. " Tliere is am- ple evidence yet remaining of the domestic arcliitecture in this country during the twelfth century. The ordinary manor- houses, and even houses of greater con- sideration, appear to have been generally built in the form of a parallelogram, two stories high, the lower story vaulted, with no internal communication between I lie two, the upper story approached by a flight of steps on tlie outside; and in that story was sometimes the only fireplace in the whole building. It is more than probable that this was the usual style of houses in the preceding century." Instances of houses partly remaining are then given. We may add to those mentioned by Mr. Twopenyone, perhaps older than any, and better preserved tlian some, in his list. At Southampton is a Norman house, perhaps built in the first part of the twelfth cen- tury. It is nearly a square, the outer walls tolerably perfect; the princijinl rooms ap- pear to have been on the first (or ui)i)er) floor; it has in this also a fireplace and chimney, and four window^s, i)hiced so as to indicate a division into two. iiiiirtments; but there are no liglits below, nor any appearance of an inteiior staircase. The sides are about forty feet in length. An- other house of tlie same age is near to if, but much worse preserved. There were in tlie twelftli century otlier considerable houses not liiiilt in the form of a ))arallelo- gram, hut of these so few remains are to be found that nothing can be said of tlieir plan, except that there was on the ground floor a considerable hall, which was di- vided by columns and arclies into a centre and two side isles, an arrangement which was continued to a later period. The parallelogram house, seldom con- taining more tlian four rooms, with tio access frequently to the upix'r, wbicli the family occupied, except on tlie outside, was gradually replaced by one on a diU'er- ent type : th(> entrance was on the ground, the staircase within; a kitchen and other olhces, orininally detached, were usually connected with the hall by a passage run- ning through the house; one or more stpartmeiits on the lower floor exteirded beyond the hall ; there was seldom or never a third floor over the entire house, but detached turrets for sleeping-rooins rose at some of the angles. Tliis was tlie typical form which lasted, as we know, to the age of Elizabeth, or even later. The superior houses of this class were some- times quadrangular, that is, iiichidiiig a court-yard, but seldom, perliai)s,witli more than one side allotted to the main dwell- ing; ortices, stables, or mere walls filled the other three. Many dwellings erected in the fourteenth century may be found in England; but neither of that nor the next age are tlieie more than a very few- which are still, in their chief rooms, inhabited by gentry. But houses which, by their marks of deco- ration, or by external jiroof, are ascer- tained to have been formerly occiijiied by good families, though now in tlii' occu- pation of small farmers, and built ap- parently from the reign of the second to that of the fourth Edward, are common in many counties. They generally bear the name of court, hall, or ^ange; sometimes only the surname of some ancient occu- pant; and very frequently have been the residence of the lord of the manor. The most striking circumstance in the oldest houses is not so much their pre- cautions for defence in the outside stair- case, and, when that was disused, the bet- ter safeguard against robbery in the moat which frequently environed ihe walls, the strong gate-way, the small window broken by mullions, which are no more than we should expect in the times, as the paucity ofapartments.sothat both sexes, and that even in high rank, must have occupied the same room. The progress of a regard to decency in domestic architecture has been gradual, and in some respects has been in- creasing up to our own age. IJnt the me- dia'val period shows little of it; though, in the advance of wealth, a greater di- vision of apartments distinguishes the houses of the fourteenth and fifteenth centuries from those of an earlier period. II. PETItARCIl'S LAURA. The Ahh(j de Sade, in his memoirs of the life of I'etrarch, endeavored to establish his own descent from Laura, as the wife of Hughes de Sade, and b'orn in the family de Noves. This hypothesis has since been NO'J'ES TO CHAPTER IX. 679 received with genoral aciiuii'scence by lit- erary men; and Thiiijosolii in particular, wlio.se talent lay in these petty bioj;rapli- ical researches, and who had a prejudice against everything that came from France, seems to consider it as decisively proved. But it has been called in question in a modern publication by the late Lord Wood- houselee (" Kssay on the Life and Charac- ter of Petrarch,"" 1810). I shall not otier anyopinionsas to the identityof I'etrarch's mistress with Laura de .Sade; but the main positionof Lord W.'s essay, that Laura was an unmarried woman, and the object of an honorable attachment in her lover, seems irreconcilable witli tlie evidence that his writings supply. 1. There is no passage in I'etrarch, whether of poetry or prose, that alludes to the virgin character of Laura, or gives lier the usual appellations of unnnirried women — puella in fjatin, or donzella in Italian; even in the Trionfo della Castitii, where so obvious an oppor- tunity occurred. Yet this was naturally to be expected from so ethereal an imagi- nation as that of I'etrarch, always inclined to invest her with the halo of celestial purity. 2. The coldness of I^aura towards so passionate and deserving a lover, if no insui'mountable obstacle intervened dur- ing liis twenty years of devotion, would be at least a mark that his attachment was misplaced, and show him in rather a ridiculous light. It is not surprising that persons believing Laura to be unmarried, as seems to have been the case with the Italian commentators, should have thought his passion affected, and little more than poetical. But, upon the con- trary supposition, a thread runs through the whole of his poetry, and gives it con- sistency. A love on the one side, instan- taneously conceived, and retained by the susceptibility of a tender heart and ardent fancy; nourished by slight encourage- ment, and seldom presuming to hope for more ; a mixtuie of prudence and co(juetry on the other, kept within bounds eitlier by virtue or by the want of mutual at- tacliment, yet iiot dissatisfied with fame more brilliant and flattery more refined than had ever before been the lot of woman — tliese are surely pretty natural circumstances, and such as do not render the story less intelligible. Unquestionably such a passion is not innocent. But Lord Woodhouselee, who is so much scandal- ized at it, knew little, one would think, of the fourteenth century. His standard is taken, not from Avignon, but from Edin- burgh, a much better place, no doubt, and where the moral barometer stands at a very different altitude. In one passage (p. 188) he carries his strictness to an excess of prudery. From all we know of the age of I'etrarch, the only matter of astonishment is the persevering virtue of Laura. The troubadours boast of much better success with I'rovenQal ladies. 3. But a passage from Petrarch's dialogues with St. Augustin, the work, as is well known, where he most unbosoms hims"lf, leaves no doubt, 1 think, that his passion credilec- tions,53. And treaty with Charles VII , ib. Splen- dor of his court, 58. {Charles, duke of), char- acter and ambitious de- signs of, 59. His contuma- cious subjects, ib. His rash enterprises and fail- ures, 60. Is defeated and killed, ib. ■ {Mary, duchess of), de- fends her rights against Louis XL, 61. IMarries Maximilian of Austria; her death, ib. (kingdom of), 67. (law of), 138. Caballeros of Spain, privi- leges enjoved by the, 232. Calais, 41,44. Calixtins, tenets of the, 285. Calixtus II. (poi)e), comjiro- mise eti'ected by, 3.34. He abolishes feudal services by bishops, 335. Cambridge university, first mention of, 645. Canon law, promulgation of the, .342. Its study made imperative, 343. Capet (Hugh), usurpation of the French throne by, 13. State of France at his ac- cession, 17. His sources of revenue, 104. Carlovingian dynasty, ex- tinction of the, 13. Carrara (Francesco d.a), Ve- rona seized by, 204. Killed in prison, ib. Castile and Leon united into one kingdom, 229, 2.30. Their subsequent redivis ion and '•euniou, 233. Composition and cliarac ter of the Cortes of (';islilc (see Cortes), the council an. the Simple, policy of towards tlie Normans, 17. 1\'. (the Fair) ascends the tliidiie pursuant to the Salic law, 30. Conduct of Edward III. of England after his death, ib. V. (the AVise) submits to the peace of Bretigni, i 43. His summons to Ed- ward the Black Prince, ib. His successes against the English, 44. His prema ture death and character, 45. His conflicts with the States-General, 113. He imposes taxes without their consent, ib. Charles VI ., accession of, 45. State of France during his reign, ib. Defeats the cit- izens of Ghent, ib. 31is application of taxes dur lug his minority, 40. His seizure with insanity, ib. Disgraceful conduct of h queen, ib., and note. His death, ib. His submission to the remonstrances of the States-General, 114 VII., state of France at the accession of, 61. His impoverished exchequer ib. His character, and choice of favorites, 5~ Change wrought in his fortunes by .loan of Arc, ib. His connection with Agnes Sorel, 53, note. Re stores Richemont to pow er, ib. Is reconciled with the Duke of Burgundy, ib. Reconquers the provinces ceded to the English crown, 54. Consolidation of his power, ib. Insur- rection of Guienne against taxation, 55. His conduct relative to the States-Gen- eral, 110. He levies taxes of his own will, 117. He enacts the I'ragmatic Sanction of Bourges, 373. VII., accession of, 63. Contest for the regency during his minority, ib. Marries Amu; of Brittany, 04. I'roceedings of the States-General during his minority, 110. of Aiijou (I. of Naples), seizure of the crown of Naples by, 17'.!. He puts Conradin, the heir, to death, ib. He defeats the Ghibelins and governs Tuscany, (fi. Revolt of his subjects, 174. — 1 1 . of Naples, war of the Sicilians against, 214. His death, ib. of Durazzo (III. of Naples), 215. Ruts Queen Joanna to death, ib. His assassination, 21(5. — IV. of (Germany, singu- lar character of, 275. His Golden Bull, ilt. He aden- ates the lni)ii-rial domains, 270. Advancement.of Bo- hemia under his rule, 284. — Martel, conquest of the Saracens by, 6. His spo- liation of the Church, 73. Charks of Navarre (the Bad), tumults in France excited by, 41. His crimes, 42. Allies himself with Edward III., 43. Charter of Henry I. and his successors, 413. Text of the Charter of Henry I., 54S. The Great Charter, 422, 552. Chartered towns. {See Municipal Institutions, Towns.) Chaucer (Geoffrey), testi- mony borne by his writ- ings, 513, note. Character of Ills works, 600. Childebert (son of Clovis), dominions allotted to, 3. Chilperic, guilty conduct of Fredegonde, the queen of, 3. His attem])ts at poetry, 502. His attack on the sanctuary, 575. Chilperic III., deposition of, 0. Chimneys. (See Architec- ture.) Chivalry, as a school of moral discipline, 626. Re- moteness of its origin, ib. Individual honor its key- stone, 027. Types of chiv- alry, ib. Its original con- nection with feudal ser- vice, ib. Etlect of the Cru- sades, 62S. Its connection with religion, 02i.t. Enthu- siasm inspii-ed by galliuit- ry, 630-0:!2. Licentious- ness incident to chivalry, 631. Virtues inculcated by it, 032. Practice of courtesy, liberality, and justice, ib., 633 Obliga- tions of chivalrv to the Fast, 634. Its attendant evils, ib. Education pre- paratory to knighthood, 035. Chivalric festivals, ib. Tournaments and their dangers, 030. Privi- leges of knighthood, (;;i7. Who were admissible thereto, 638. Military service : knights and bach- elors, ib. Causes of the decline of chivalry, 639. Influences by which it was superseded, ib. Church, wealth of the, under the empire, 300. Its jjosi- tion after the irruption of the barbarians, ib. Source of its legitimate wealth, 310. Its religions extor- tions, 311. Privileges at- tached to its property, ib. CITIES. INDEX. 085 Institution of titlies, 311, 312, iind notes. Liabilily of C'liurch projiorty to spoliation, 312. Origin of precari(e, ih., note. Extent of tlie Cliurcli's landfd pos- sessions, ib., and nole. Its participation in tlieatlniin- istraliuu of justice, 313, 314. Limitations inter- posed by Justinian, 3H. its political intluence, 31.^. Source thereof, ib. Its subjection to tlie state, 316. (Jliarleniagne's edicts rela- tive to its atlairs, ib. Its assumption of autliority ovtr tlie Frencli )iings,31?. Obscijuiousness of Kng- land to its pretensions, 318. Investiture of its bislio))s witli tlieir temjioralities, 32U. Tlieir simoniacal practices, ib. CanoLis and cliapters, 3.55. Liberties of tlie Galilean Church, 374. I'rivileges of sanctuary, 575. (See Clergy, Monas- teries, I'apal I'ovver.) Cities. (See Municipal Insti- lutions and Towns.) Civil Law. {See Laws.) Clarence (dulce of), put to lenieres, character of tlie, 10'.>. Court, King's, 421. of Connnon I'leas, 423. of K;xche(|ucr, 422. of King's r.eiich, 422. Crecy, battle of, 40. Crusades, origin of the, 25. Knergetic api)eals of Peter the Hermit, 20. Induce- ments offered to those who joined in them, ih. Crimes and miseries attendant on them, 21). Ilesults of the first Crusade, 28. Second Crusade, ih. Its failure, ib. Origin of the third Cru- sade, 20. Its famous com- manders and inconclusive results, ib. Crusades of St. Louis and their miserable ending, 30. Cause of the cessation of Crusades, 576. Their demoralizing influ- ence, 577. Curia Regis, 421. D. Dagobert I., insignificance of the successors of, 4. Damascus, degeneracy of the caliphs of, 296. Danes, English first infested by the, 16. Dante Aligliieri expelled from Florence, 179. His birth, 607. Characteristics of his great i)oeni, 658-660. Enthusiasm wliich attend- ed its i)ublicution, 600. Dauphin^ annexed to the French crown, 04. Its or- igin, ib., note. Decuriones, 139. Defensor Civitatis, 1.39. Defiance, institution of the right of, 280. Its aboli- tion, 281. De la Hare (Peter), opposes the Duke of Lancaster, 458. Conduct of the citizens on his imjirisonment, ib. Elected speaker of the Commons, 459. Derby (earl of). (See Bol- ingbroke.) Diet. (See Council.) ])iet of Worms, important changes effected bv the, 280. Abolishes the" right of defiance, 281. Estab- lishes the imperial cham- ber, ib., 282. Domestic life in the Middle Ages, ()01-604. Income and style of living, 616. Doomsday-book 611. Duelling, introduction of the l)r;ictice of, 570, and note. Du (iuesclin (Bertrand), pro ceeds to Castile, 42. Hi; character, 44. He serves iigainst Peter the Cruel, 230. Is taken i^risoner, 237. Dunstau and Odo, and their treatment of Edwy and Elgiva, 318. E Earl, origin of the title of, 380. Ebroin, exercise of supreme power by, 4. Eccelin da Romano, tyran- nic exercise of power by, 161. Ecclesiastical jurisdiction. (See Church, Clergy, Papal Power.) Edward the Confessor, pop- ularity of the laws of, 412, 430. I. offends Philip IV. of France, 31. His brother Ednunid outwitted by Philip, 32. He curbs the power of the clergy, 354. His tyranny towards them, 357. His reign a constitu- tional epoch, 434. His des- pot ic tendencies, ib. He confirms the charters, 435, and note. Edward II. marries Isabel of France, 34, He yields to the pope, 303. III. lays claim to the Frencli throne, 30. Its in- justice shown, ifc. His pol- icy prior to resorting to arms, 37. Princijial fea- tures in his character, 39. Extent of his resources, 40. Excellence of his armies, ib. His aci|ui.oses the tyranny of the Church of Rome, 353. Cause of his dispute with Thomas a Becket, 354. in. allows Italian priests in English bene- tices, 348. Abets papal taxation on the clergy, .350. I'rovisions contained in his charter, 415. VVorth- lessness of his character, 47. His perjuries, ib His pecuniary difficulties and extortions, 418. His ex- pensive foreign projects, 4 ly. Demands of the pope and resolute conduct of the barons, ib. IV., policy and views of, towards France, 44,48 Circumstances attending his succession, 4(ii>. Inva- lidity of his hereditary title, 470. His tactics tow ards the Parliameni, 47! Aid granted to him ii 1400, 472. Policy of the Commons towards him, 473. Limitations imposed on him, 470. He comes to terms with them, 477. (See Bolingbroke.) v., his exorbitant de mands on proposing to marry Catherine of France, 4',). Invasion of France by, ib. His nego- tiations with the Duke of Burgundy, ib. His mar- riage and death,. 'iO. Life subsidies granted to him, 474. Improbability of liis alleged (lissohiteness, 478. His claims on popular af- fection, ib. Hi,-< clemency to the Earl of >Iarch, 53.3. VI., Parliamentary pol- icy during the minority of, 470. Unpopulaiity of his marriage, ib. His con- duct on Suffolk's impeach- ment, ib, 480, State of the kingdom during his minority, 520. His imbe- cility, i6. Solemnities ob- served in nominating a re- gency during his infancy, 529. Provisions in conse- quence of his mental in- firmities, ib. Henry VII., conduct of, to- wards tlie memory of his predecessors, 5.36. I., the Fowler, elected emperor of Germany, 202. II. of Bavaria, elected emperor of Germany, 263. III. of (iermany, im- perial influence extended by, 263. Instances of bis exercise of absolute pow- er, ib., 280. His judicious nomination of popes, 331. IV. of (iermany, primary cause of the nusfortunes of, 263. Conspiracy against him during his infancy, 264. His excommunica- tion and its consequences, ib. His contests with Gregory VI L, 332, 333. His humiliation by (Jregory, .33.3. The tables turned, 334. V^. of Germany, acces- sion and death of, 265. His compromise with the popes, 334. VI. of Germany, his ambitious project, 267. His death, ib. VII. of Germany, ac- qinres Bohemia for his son, 274. His opposition to the pajial power, 360. the Proud, ancestry and possession.s of, 266. Consequences of his diso bedienee to the emperor's summons, ib. the Lion restored to lii> birthright, 266. Fatal re suits of ids ingratitude, ib. Hereditarv succession, disrc garded by the Anglo- .Sax- ons, 378. Establishment of the principle in Eng- land, 426-428. Hereford (earl and duke of.) See Bohun, Boling- broke.) Hildehrand. (.See Gregory VII.) Honorius II I., establishment of medicant orders by, .344. Hugh Capet. (,Sce Capet.) Hungarians, ravages in Eu- rope by the, 15. Their con- version to Christianity, 286. Their wars with the Turks, ib., 2S7. Hungary, kings and chiefs of (See .Andrew, Corvi- nus, llunniades, Ladis- laus, Louis of Hungary, Sigismund, Wladi^laus.) Hunniades (John), heroic career of, 287. His death, ib. Huss (John), burned to death, 284. Characteris- tics of his schism and his follow'ers, 625. I. Innocent III., persecution of the All)igeois by, 22. His ambitious policy, 156. His significant production of the will of Henry \'I. of Germany, ib. Position of the Italian cities towards him, ib Use made by him of his guardianship of Frederick II., 158. In- crease of tenqxn-al authori- ty under him, 170. His ac- cession to the pajjal chair, 341. Extravagance of his pretensions, ib. His de- crees and interdicts, .342. His interference with the German emperors, J't. His claim to nominate bishops, 347. He levies taxes on the clergy, 350. His pretext for exercising jurisdic- tion, 352. Hee.xempts the clergy from crindnal pro- cess. 353. IV., outrageous pro- ceedings of, against Fred- erick 11., 163. He quarters Italian priests on England, 348. VI. elected pope, 305. Interdicts, 325. (See Papal Power.) Ireland a mediaeval slave de- pot, 584. Isabel of Bavaria (queen of Charles VI.), infamous conduct of, towards her husband, 46. Her hatred of Armagnac, and its con- sequences, 48. Joins in the treaty with Henry V., .50. Isabel of France, marries Edw.ard II. of England, 35. Isabella %f Castile. (.See Ferdinand II.) Isidore, publication of the False Decretals of, 322. Tlieir character and object, ib. Authority accorded to them by Gratian, 342. Italy, occupied by the Ostro- goths, 1. Its subjection by the Lond)ards, 6. (;()n- qnests of Pejjin and Charle- magne, 7. Its state at the JACQUERIE. INDEX. I-ADISLAUS. 691 end of the ninth century, HO. Authorities referred to for its liistory, '^i;o, nott Its monarchs IJereiiffer 1. and II., HO, HI, and note. Assumption of power by Otho the Great, HI. Exe- cution of Crescentius by Otlio III., HJ. Election an(i3. Ital- ian corruptions of the Lat- in, 564. Ellect of the dis- use of Latin, ib. Extent of Charlemagne's and Al- fred's learning, 565, and note. Ignorance of the clergy, 566, 567. Scarcity of books, 567. Erasure of manuscripts, ib. Lack of eminent learned men, ib. John Scotus and Silvester II., 567, and note. Pre- servative effects of reli- gion on the Latin tongue, 568. Non-existence of li- braries, 569, note. Preva- lence of superstitions, 569, 570. Revival of literature, 640. Study of civil law. 640, 641. Establishment of public schools, 642. Ab- elard and the Universitv of Paris, 643. Oxford Uni- versity and its founders, 644. Rapid increase of universities, 645. Cause; of their celebrity, 646 Spread of the scholastic philosophy, ib. Its emi nent disputants, 647. In. ttuence of Aristotle and of the Church, 647, 648. Unprofitableness of the scholastic discussions, 648. Labors of Roger Racon and Albertus Magnus, 649, 650, and note. Cultivation of the new languages, 650. Tlie troubaxlours and their productions, 650-652. Ori- gin of the French Ian guage, 6,52. Early French compositions, 652, 653 Norman tales and ro mances, 653. The Roman de la Rose, 654. Frencli prose writings, 655. For mation of the Sjianish Ian guage : tlie Cid 6.">(). Ra])id growth of the Italian Ian guage, 657. Dante and his Divine Comedy, 657, 65,s Petrarch and his writings. 661 -6()3. Dawn of tlie Ei'ig- lisli tongue, 663. Laya- nion's Brut, ib. Robert of Gloucester and other met- rical writers, 664. Merit of Piers Plowman's Vis- ion, ib. Cause of the slow progress of the English language, ib. Earliest com- positions in English, 665. Pre-eminence of Cliaucer, 666, 667. Hevival of clas- sical learning, 667. Emi- nent cultivators thereof, ib. Invention of paper, 668. Rarity and dear- ness of books, ib. I!e- covery of classical manu- scripts, 669, Eminent la- borers in tliis field, ih., 670. Revival of I lie stndv of Greek, 671, 672. State of learning in Greece, 672. Services rendered by the mediaeval Greeks, 673. Opposition to the study of Greek at Oxford, 674 Fame due to Eton and Winchester schools, 675. Invention of printing, ib. First books issued from the press, ib. First print- ing-presses in Italy, 676. Earliest use of the English language in public docu- ments, 679. Legislation under the earlv French kings, 106. The "Champ de Jlars," mans, 277. Ascends the German throne, 2^0. In stitiites the Aulic council. Mayor of the palace, impor- tance of the oflice of, 4, 05 67. (See Charles Martel, I'epiu, Heristal, Ehroin Mi'dici, rise of the family, 221. Character of Giovan ni, ib. Banishment and recall of Cosmo, 222. His death: his son IMero, ib. Death of Julian : popular- ity and princely career of l,()renzo, 223. Ills bank- rujilcv repaired at the cost of the state, ib. His title to esteem, 224. Mendicant friars, first ap- pearance of the, 344. Suc- cess of their preachings, ib. Their e.vtensive priv- ileges, 345. Mercenary troops. {See I\Iilitary Systems.) Merovingian dynasty, char- acter of the times during which it ruled, 2, 65, 66. Middle Ages, period com prised under tlie terin, 551 Milan, its siege bv Frederick I., 150. Destruction of the citv, 151. Its statistics in the 13th century, 105. It public works, ib. Creation of the duchy of Milan, 176. (.See l/ombards.) Military systems of the Mid- dle Ages, character of the English troops at Crecy, Poitiers, and Azincourt, 40, 49. Disadvantages of feudal obligations in long campaigns, 131. .Substitu- tion of mercenaries, 132. Canute's soldiers, and his institutes respecting them, 1.33. The mercenaries of the Anglo-Norman kings, ib. Advantages of merce- nary troops, 134. High rate of pay to English soldiers, 51, 133, and note. Estab- lishment of a regular force by Charles VII., 134. Mil- itary resources of the Ital- ian "cities, 205. Their for- eign auxiliaries, 206. Arms and armor, ib. Companies of adventurers : Guarnie- ri's systematic levies, ■<.07. Sir .John Hawkwood's ca reer (.see Hawkwood). Em- inent Italian generals and their services, 207, 208. Probable Hrst instance of lialf-|iay, ib. SnnUl loss of life in mediicval war- fai-e, 209. Long bows and cross-bows, 210. Advan tages and disadvanla.ifc; of armor, ib. Introduction of gui.i>o\vdcr, ib. Clum- siness of early artillery and tire-aruis, ib. Increased efficiency of infantry, 211. Mo.sruls, ravages of the, 302. .303. Their exploits under Timur, .304. Mohammed, advent of, 293. State of Arabia at the time, ib. Martial spirit of his svstem, ib. ("areer of his fo'llowers. {See Abbas sides. Moors, Ottomans Saracens, Turks.) II. attacks the Vene tians, 219. Failure of hi; assault upon Belgrade 287. He captures (Jonstan tinople, 30ti. Unrealized schemes for his cxpiilsiou, ib. His l%iiro|>iaii sue cesses and reverses, ih. Monasteries, cultivation of waste lands by, 310. Less pure sources of income, ib., 311. Their exemjitioii from Episcopal control, 323. Pre-ervation of books by them, 508. Extent of their charities, 575. Vices of their inmates, ib. Their anti-social influence, 574. Their agricultural exer- tions, 610. Money, high interest paid for," 597. Establishment of paper credit, 599. Banks of Italy, ib. Securities for public loans, ib. Changes in the value of money, 614, 615. Comparative table value, 615, «oecline of jiapal in- fluence in Italy, and its causes, ib. (.See Church, Clergy, Monasteries.) Pajier, from linen, when in- vented, 66S. Paris, seditions at, 45. De- feat and harsh treatment of its citizens, ib. (See Parliament of Paris.) Parliament of England, con- stituent elements of the, 436. Rijjht by which the spiritual peers sit, ib. Earls [ind barons, 4.37. Temmls-in-chief in Parlia- ment, 4.3S. First germ of representation, 439, 440. County representation, 441. Parliaments of Henrv III., ib. Knights of the shire, how elected, ib First summoiiiuj; of towns to Parliament, 445. The Parliament of Acton Bur- nell, 447. Cause of sum- moning deputies from bor- oughs, 445. Division of P a r 1 i a m e n t into two houses, 448. Proper busi- ness of the House of Com- mons, ib. Complaint of the Commons in 130'J, 44'.t. Rights established by them, 4.50. Their struggle with the king relative to ta.xation, 4411-453. Concur- rence of both Houses in le- gislation made necessary, 453. Distinction between statutes and ordinances, 453-4.54. Interference of Parliament in matters of war and peace, 456. Right to in<}uire into public abuses, 457. Increaseofthe power of the Commons un- der Richard II., 4C0. Their protests against lavish ex p e n d i t u r e, 461. Their charges against the ICarl of Sutfolk, ib. Submis- sion of Richard to their demands, 46::i. They come to an understanding with him, 464. They tall under his displeasure, 464, 465. Servility of their submis- sion, 465. Necessity for de- posing liichard,46y. Cau- tious proceedings of Par- liament thereupon, 470, 471. Rights acquired by the Commons during his reign, 47~. Their consti- tutional advances under the house of Lancaster, ib. Their exclusive right of taxation, ib. Their right of granting and control- ling supplies, 473. And to make same depend on re- dress of grievances, ib. Establishment of their le- gislative rights, 474, 47o. F'alsilication of then- in- tentious, how accom- plished, 475. Introduction of bills, |iublic and i)rivate, 476. Parliamentary inter- ference with royal expen- diture, 477. Limitations laid on Henry IV ,477,478. Re-establishment of a good understanding with him, 478. Harmony between Henry V. and the Parlia- ment, ib. Parliamentary advice sought on public af- fairs, 47'.». Their right to impeach ministers, ib. Henry \'l.'s mode of evad- ing. Suffolk's imi)each men t, 480. Assertion of the privi- lege of Parliament, ib. Principles involved in Thorp's case, 481, 48:.'. In- fringements on liberty of speech, 48'.>. Privilege of originating monev-bills, 482-484. The three es- tates of the realm, 484, note. Course of proceed- ings on other bills, ib. County franchise, in whom invested, 485. Represen- tation of towns, ib. Par- tial omission of boroughs, 486, 487, and votes. Reluc- tance of boroughs to send members, 487. In whom theright to vote was vested, 488, and note. Status of the meinbers, ib. Exclu-| sion of lawyers from thei Commons' House, 489. Members originally com- pelled to be residents, ib. Election irregularities and crown interference, 490. Constitution of the House of Lords, ib. Qualiflca- t ion of spiritual barons, 491. Barons by writ, ib., 492. Distinction between barons and bannerets, 492, 493. Creation of peers by statute and by patent, 495. Clergy summoned to send representatives, 496-500. Remonstrances of the Commons against the en- croachments of the Coun- cil, 501,502. Parliament of Paris, consti- tution and sittings of the, 124. Progress of its juris- diction, 126. Enregistra- tion of royal decrees con- tided to it, ib. Its spirited conduct in reference thereto, 127. Interference of the kings with its privi- leges, ib. Establishment of its independence by Louis XI., 127. Its claims on the respect of posterity, ib. Pa.schal IL (pope), opposi- tion to investitures by, 3.35. Pastoureaux. (See Super- stitious.) Paulicians. (See Religious Sects.) Peers ol England. See No bility, Parliament.) Peers of France, original constitution of the, 124. People, their lawlessness, 577. Their general im- morality, ib. Pepin Heristal, usurpation of supremacy by, 4. He restores the national coun- cil, 107. Pepin (son of Charles Mar- tel), deposes Chilperic III., 6. Ascends the throne, ib. Subdues the Lom- bards, 7. His legislative assemblies, 107. Perjurv, prevalence of, in the Middle Ages, 578. Perrers (Alice). (See Ed- ward III.) Peter the Cruel, succession of, crimes perpetrated by, 236. His discomfiture and death, 237. Peter the Hermit. (See Crusades.) Peter II. of Aragon surren- ders his kingdom to the pope, 341, .342. 111. of Aragon, assists .John of Procida, 213. He accepts the crown of Sici- Iv, 214. IV. of Aragon. charac- ter and reign of, 248. Con- sequences of his attempts to settle the crown on his daughter, 249. PETIIAUCH. INDEX. 697 Petrarch, liis personal char acti'ristics, (iOl. His great jiopuhuity, ib. Jlis pas- sicMi for Laura, ()(!_. Char- actej' of his poetry, 06:3. His elibrts for tlie ijreser- vation of iiiaiiuseripis, Oro. Was Laura luarrieLl or siii.nle y 67S, 07'J. rhilii) Augustus, accessiou of, 'JO. He cites John king of England before him, ■^1. Deprives the English crown of its French pos- sessions, ib. Joins in the third crusade, 2'J. Pope Gregory's menaces tow- ards him, 336. His fear of Hmocent III., 340. Takes back his repudiated wife, ib. III. (the Bold), acces- sion of, 30. IV. (the Fair), accession of, 31. Policy adoi)ted by him, ib. His reseulnicut against the English king, ib. His fraudulent con- duct towards him, 32. Successful resistance of the Flemings against liis attacks, «6. His further ac- quisitions, ib. And siege of Lyons, ib. He taxes the clergy, 356. He arrests the pope's legate, 357. He burns the pope's bulls, 358. Retaliation of the pope, ib. His stratagem against the pope, 351). Its consequences, ib. Philip V. (the Long), as- sunijition of the regency of France by, 34. Violates his treaty with his broth- er's widow, .35. Salic law contirmed in his reign, 36. Result of his attempt at an excise on salt, 113. VI. (of Valois), regency and coronation of, 36. .Sketch of his character, .30. His debasements of the coin, 105. of Suubia elected em- )ieror of Germany, 267. His assassination, ib. Piedmont, comparative ob- scurity of the history of, 162, 7iote. Piracy, temptations to the practice of, 5'.to. Difficulty of repressing it, 604. Pisa, early naval and com- mercial importance of, 101. Her wars witli Genoa, 192. Her reverses and sale to Florence, ib. Effect of the Crusades on her pros- perity, 592. Pisani (Vittor) defeated by the Genoese, and impri.'^ oned by the Venetians, 104. His triumphant re call from prison, ib. Pius II. {See jSiueas Syl vius.) Podestii, peculiarities of the oflice of, 107, 16S. Podiebrail ((ieorge), vigor ous rule of Boliemia by, 285. Poetry, popular, 539. Poggio Bracciolini, services of, in the revival of learn- ing, 670. Poitiers, battle ol. {See Ed ward III.) Pole (Micliael de la, earl of Sutt'olk), lord chancellor, 401. His impeachment and sentence, (6. Pragnuitic .Sanction of Bour- ges, 373. Repealed by Louis XI., ib. Its pojju- larity with the people, ih. Liberties secured by it, 374, 375. Sanction of St. I^ouis, enactment of the, 349. Prague University , 284. Fate of its rector, ib. Prerogative of the kings of England, observations on the, 505, 506. (,S'ee English Constitution.) Prices of commodities, C14, 615. Printing, invention of, 675. First books printed, 676. Italian presses, ib. {See Learning.) Provence annexed to the Frencli dominions, 64. Note upon its history, ib. Public weal, origin of the war of the, 55. Purveyance, oppressive op- eration of the prerogative of, 506. R. Rachiniburgii, difference be- tween them and the sca- bini, lOS, note. Raymond VI. (count of Tou- louse) e.xcommunicated by Innocent III., 22. Re- verses of bis son Ray- mond, 23. Regencies, instances of re- gencies in England, and principles deducible there- from, 527-520. Religious sects, moral im- provement accelerated [by the growth of, 610. Ten- ets of the Manicheans and Paulicians, 620, and note. The Albigenses,and controversies respecting tliem, 621. Origin of the Walilenses, ib. Maniche- ism of the Albigenses, 622, Persecutions at Oxford, ib. Secret readings of the Scriptures, 623. Permis- sions and prohibitions concerning the sacred writings, ib. (Continued spread of heresies, 624. Strictnesses of Lollard- ism, 025. Schism of the Hussites, ib. Representation of the towns. (.See Parliament, States General.) Representative legislation, lirst germ of, 108. {See Parliament.) Revenues of the kings of France, how derived, 104. (,S'ee Ta.vation.) Richard I., non-success of, against Philip Augustus, 21. Joins with Philip in the Crusades, 29. His prowess ; terror excited by his name, ib. Depo- sition of his chancellor, 413. Enactment of the laws of Oleron imputed to him, 595. His character as a troubadour, 651. — II loses ground in France, 44. His corona- tion, 450. His council during his minority, ib. His struggles with Parlia- ment, 460. Sketch of his character, ib. His depend- ence on favorites, ib. Determined conduct of the Commons towards him, 464. He yields to their demands, J6. His further attempts at independent rule, 463. His complaint against the Commons, 405. Their submission, ib. His seizure of the Duke of Gloucester, and other ar- bitrary ac^s, 466-468. Ne- cessity for his deposition, ib. Progress of the consti- tution during liis reign, 471. Extent of his mal- practices relative to the raising of money, 472. His attack upon Haxey, 4(55, 482. Richard (earl of Cornwall), chosen emperor of Ger- many, 268. Absurdity of the choice, ib. — (duke of York) (see York). Rienzi (Nicola di), sudden accession to pow- er of, 179. His e.xile, re- call, and death, 180. 698 ROBERT. INDEX. SPORTS. Robert of Gloucester, and other metrical writers, 004. of N:iple.s, wise rule of, 214. (count palatine) super seiles VV^euceslaus as eni- peior of (jierinany, 275. lloclielle, patriotism of the citizens of, 4;i. Uodoli)h of Hapsburg elect ed emperor of Germany, 271. Austria conferred upon his son, 272. His as cendency iu Switzerland 287. Kollo of Normandy, conver sion of, 17. Komance language. (See Learning.) Romano (Eccelin da). {See Kccelin.) Rome, subversion of the em jilre of, 1. Portion which remained subject to it, ib. I'artition of its i)rovinces among their concpierors, 70. Internal state in the tenth century, 141. Infa- mous conduct of can of the temporal authority of the pojii's, 177. E.xpulsiou of po])es by the citizens, 178. The senators and their ju- risdiction, i6. Mutual an imosities of the nobles, ib. Rise and fall of Rien zi, 17'.>, ISO. Transient re- vival of the republican spirit, ib. (See Papal Rower.) Saint Boniface. (See Win- frid.) Denis, sum paid for r dec iiuMg the abbot of, 17. .lolm of Jerusalem, knights of, 2'.). Their enor- mous possessions, ib. Louis. (See Louis IX.) Poll (count of) executed on the scHllold, 57. Saladin, conipiest of Jerusa- lem by, 2'.). Salic lands, characteristics of, 70, 71, and note. Salic law, circumstances which led to tlie contirnui- tion of the, :i5, liO. Date of its enactment, 1.38. Its incompleteuess as a code, ib. Sancho the (ireat bestows Castile on his secuud son, 22'.). Sanclio IV., 237. Sanctuary, institution of tlie privilege of, 575. Saracens, expulsion of tlie, from France, 5. Their inroads upon Italy, 15 Kndon's great victory over them, 00. Their conflicts with tile Cliristiau:) (see Crusades). They concpier Spain, 227, 228. Encroach- ments of the Christians on their territories, 228. JMainspring of their liero- isni, 2113. Their Eastern conquests, 2'.t4. Their tri uniphs in the AVest, ib Ellect of their successes, 205. Their internal dis- sensions, ih. (See Cru- sades, JMoors.) Saragossa taken from the Moors, 230. Sardinia conquered by the Risans, 101. Its cession to the king of Aragon, 102. Saxons, obstinate resistance to Charlemagne by the, 7. Enormous number be- headed by him, 0. True cause of their wars witli the Franks, 06. (-See An glo-Saxons.) .Scabini, rei)resentative cliar acter of the, 108. Differ- ence between them and the Rachind)urgii, ih., note. Their funclii)ns, 120, Scaccario, Dialogus de, 422. .Scanderbeg, protracted op position to the Turks by, 30G. Scandinavia and her sea kings, 370, 377. Sclavonians, territories oc- cupied by the, 15. ■Scotus (Duns), notices of, 047, 048. Scotus (John), an exception to the ignorance of his times, 5()7, and note. Scrope (lord), 512. Serfdom and villenage, dis- tinctive features of, 90, 09. (See Villeins.) Sforza Attendolo, rise to dis- tinction of, 208. Sforza ( Fra nccscn), powerful position achieved by, 200. Becomes Duke of Milan, ib. Joins in the quadru- ple league, 218. Accession and assassination of liis sou Galeazzo, 220. I'olii'v of Ludovico Sforza, ih. He directs the French king's attention towards Naples, 225. Short-sight- edness of his views, ih Sheriffs, partiality of, in elec- tions, 480, H o w originally apjioiuted, 400. Sicily, conquest of , by Roger Guiscard, 145. Its subsc- quent fortunes, 154, 155. Its rebellion against Charles of Anjou, 213. The 8icil- ian A'espers, ib. Oppo- sition of the Sicilians to Cliarles II. ot Naples, 214. Settlement of. the crown on Frederick, ib. Union of Juicily with Aragon, 218. Sigismund elected emjieror of Germany, 276. His safe- conduct violated, 284. Ac- quires the crown of Hunga- ry, 280. Ilisconduct at the Council of Constance, 284. Silk mtinufacture establish- ed in Palermo, 503. Sylvester Tl. (pope), scien- tilic acquirements of, 567, note. Sinionv. (See Church, Cler- gy-) Slavery, existence of, in an- cient times, 97. Subndt- ted to by the poor for sub- sistence' sake, 98. Vene- tian and English slave- trading, 583, 584. Society, state of. (See Archi- tecture, Chivalry, Clergy, Feudal System, Learning, Superstition, Trade, Vil- lenage.) .Spain, character of the Visi- gothic kingdoms in, 227. Its conquest by the Sara- cens, i?). Kingdoms of Le- on, Navarre, Aragon, and Castile, 229 Reverses of the Saracens, 230. Charter- ed towns, 231. Establish- ment of military orders, 232. Non-expulsion of the Moors, 234. Its probable cause,??) Alfonso A. and his short-comings, 235. Frequent defection of the nobles, 230. Peter the Cru- el, ib. Accession of the Trastaniare line, ib. Dis- grace and execution of Al- varo de Luna, 2.38. Con- tests after Henry IV. 's death, 239. Constitution of the national councils. 239, 240. Composition of the Cortes, ih. Its trade relations with England, 5'.)1. (See Aragon, Castile, Cortes.) Sports of the field, popular- STATES GENERAL. INDEX. TUSCANY. (599 ity of, 579. Addiction of the clergy thereto, ib. Evils atteudaiit thereou, 580. States-General of France memorable resistance to taxation by the, 41. Con- voked by Philip IV., 112. Probability of their earlier convocation canvassed, ib Philip's politic reason for summoning them, (6. Ex tent of their rights as to taxation, 112, 113. Their resolute proceedings in 1.355 and 1356, 113, 114 Tlieir protest against the debasement of the coin, 113. Disappointment oc casioned by their proceed ings in 1357, 114, 115. They compel Charles VI. to re- voke all illegal taxes, 115 Effect of their limited functions, 116. Theoretical respect attached to their sanction, ib. Provincia' estates and their jurisdic- tion, 117. Encroachments of Louis XI., 118. The States-General of Tours, ib. lleans by which their deliberations were jeopar- dized, ib. Unpalatable nature of their remon- strances, 119. Stephen (king), cruel treat- ment of the people in his reign, 409, note. Succession to kingly and other dignities. (See He- reditary Succession.) Suevi, part of the Roman empire held by the, 1. Sutl'olk (duke of), impeach- ment of, 479. (earl of). (See Pole.) Sumptuary laws, enactment and disregard of, (502, note. Superstition, learning dis- couraged by, 554. Its uni- versal prevalence, 569. In- stances of its results, ib. Ordeals, 570. Fanatical gatherings : the Wliite Caps, 571. The Pastou- reau.x,i6. The Flagellants, 572. The Bianchi, ib. Pre tended miracles, and their attendant evils, 573. Mira- cles ascribed to the Virgin, 574. Redeeming feature; of tlie system, ?6., 575. Pen ances and Pilgrimages, 576, 577. (See Religious Sects.) Swineford (Katherine), pro ceedings relative to the marriage of, 464. Switzerland, early history of, 287. Ascendency of Rodolph, ib. Expulsion and defeat of Albert and Leopold, 289. Formation of the Swiss confedera- tion, ib. Indomitable hero ism of the Swiss, 291, 292 Their military excellence, 291. Failure of Maximil ian's attempt to subjugate them, 292. Syagrius, Roman provinces governed by, 2. Defeated iby Clovis, ib. Taborites, fanaticism and courage of the, 285, 625 Tartars. (See Moguls.) Taxation : clumsy substi- tutes for taxes in the Mid- dle Ages, 104. Conditions annexed by the States General to a grant of ta.xes, 115. Tuxes under the Anglo-Norman kings 419, 420, and notes. (See States-General.) Temple, knights of the. (See Knights Templars.) Tenure of land under the Anglo-Saxons and Anglo- Normans, 388-391. (See Feudal System.) Teutonic knights, establish- ment of the order of, 29 Theodoric, disregard of learning bv, 556. Thierry (son of Clovis), ter- ritories possessed by, 3. Timur, conquering career of, 304. rithes, establishment of, 311. Charlemagne's capit- ulary relative thereto, 311, 312. Toledo taken from the Moors, 230. Torriani. (.See Visconti.) Toulouse, non-submission of the counts of, to the kings of P'rance, 21. Their fall, 23. (See Raymond VI.) Towns and cities, earliest charters granted to, 128 Privileges of incorporated towns, 129, 130. Their re lationship towards the crown, 130. Independence of maritime towns, 131 Chartered towns of Spain, 231. Their privileges and duties, 232. Cause of their importance, 240. Cities of Germany (see Germanv). Cities of Italy, ( See Flor- ence, Genoa, Milan, Pisa, Venice.) — of England, progress of the, 441. Conversion of in dividual tributes into bor- ough rents, ib. Incorpo- ration of towns by charter, 442,443. Prosperity of the towns, 443. Early impor- tance and populousness of London, ib. Participa- tion of its citizens in con- stitutional struggles, 444. First summoning of towns to Parliament, ib. (See Municipal Institutions.) Trade and commerce, me- diaeval nonexistence of, 581. Barriers to their progress, 582. E-xteut of foreign commerce, 583. Home traffic in slaves, 586. Woollen manufactures and vacillating policy of the English kings relative thereto, 585-587. Opening of the Baltic trade, 589. Growth of English com- merce, 590 Opulence of English merchants, (6 In- crease of maritime traflic, 591. Commercial emi- nence of the Italian states, 591. Invention of the mari- ner's compass, 594. Com- pilation of maritime laws, 594-595. Frequency and irrepressibility of piracy, 595-596 Practice of re- prisals, 596. Liability of aliens for each other's debts, 597. Trade profits and rates of interest, ib. Price of corn and cattle, 612. Trial by combat, ceremoni- als attending, 121, note. Trial by jury and its ante- cedents, 385-386. Early modes of trial, 397. Abo- lition of trial by ordeal, 398. Ditference between ancient and modern trial by jury, ib. Original func- tions of juries, ib. Origin of the modern system, 399. Troubadours (the) and their productions, 651-653. Troves, conditions of the treaty of, 50. Turks, Italian fears of the, 220. Triumphant progress of their arms, 299. Their defeat by the Crusaders and Alexius, 300. Their settlement under Othman, .302. War declared against them at Frankfort, 305. The .Janizaries, 306. (See Ottomans.) Tuscany, espousal of the pa- pal cause, 162. Progress of its cities. (See Flor- ence.) roo INDEX. ZISCA. U. Urban II., encouragement of the Crusades by, '^iO. His couoession to the kiugs of Castile, 335. V. retraiisfers tfie papal court to Avignon, 361. VI. aids diaries of Du- razzo in his designs on Jo- anna of Naples, '.^15 His contest with Clement VII., 305. Urgel (count of) lays claim to the crown of Aragon, 250. Rejection of his pre- tensions, lb. Usury treated as a crime, 5yy, note. Valencia, constitution of the kingdom of, 258. Vandals, portions of the Ro man Empire possessed by the, 1. Vase of Soissons, story of the, 75. Vassals and Vassalage. (See Feudal System.) Vavassors, privileges attach- ing to the rank of, &4, note Venice, conflicts of, with Ge- noa, 193. Defeat of her admiral by the Genoese, 194. Insolenceof the latter towards her ambassadors, ib. Successful tactics of her doge, 195. Triumph of her fleet, 196. Her alleged early independence, 199. Her subjection to the em- perors, ib. Her Dalmatian and Levantine acquisi- tions, ib. Her govern- ment : powers of the doge, 200, 201. The great coun- cil, 201. Checks to undue i'ltluence onthe part of the doge, tb. Singular com- plication in ballots for the dogeship, 202. Marin Fa- lieri's treason, ib. The council of ten and its se- cret proceedings, ib. Ter- ritorial acquisitions of Venice, 203. Venetian comiuests under Carmag- nola, 204. Wars of the Re- public with Mohammed 11., 219. Verdun, treaty of, 12. Vere, favoritism of Richard II. towards, 460. His fu- neral, 464. Verona, seized by Francesco da Carrara, 204. Villeins and villenage : con- ditions of villeins, 97, 98. Consequences of their marriages with free per- sons, 99. Privileges ac quired by them, 100, and note. Villenage never es tablished in Leon and Cas- tile, 231. Dependence of the villein on his lord, 520 Condition of liis property, and children, .ib. Legal distinctions, ib. Difficul- ties besetting the abolition of villenage, 521. Gradual softening of its features, 522,523. Merger of villeins into hired laborers, 523 Eflectsof the anti-poll-tax insurrection, 525. Disap pearauce of vUlenage, 526, 527. Virgin, absurd miracles as cribed to the, 574. Visconti and I'orriani fami lies, rivalry of the, 174 Triumph of the Visconti, 176. Giovanni Visconti's assassination, 204. Filip po Visconti's accession, ib His ingratitude to Car- m;ignola, ib. His alliance with Alfonso, 218, 219. Quarrels of the family with the popes, 360 Visigoths, portions of the Roman provinces possess ed by the, 1. Their mode of dividing conquered Erovinces, 70. Dirterence etween the Frank mon archy and theirs, ib. W. Wages, futility of laws for the regulation of, 523. (See Laborers.) Waldenses. (.See Religious Sects.) War, private exercise of the right of, 103. By whom checked and suppressed, ib. Its prevalence among the German nobles, 280, 281. Warna, circumstances which led to the battle of, 286. Warwick (earl of) made a lord appellant, 463. Be- headed by Richard II., 474. Water-Ordeal, (.SeeOrdeals.) Wenceslaus, confirmed in the Imperial succession, 275. His deposition, ib. He abets the league of the Rhine, 380. Weregild, or compensation for murder. (See Murder.) WiclifT (John), influence of the tenets of, 372, 524. 624. William of Holland elected emperor of Germany, 268. William the Conqueror : po- sition of England at its conquest by him, 400. Al- leged inadequacy of the military forces of the Sax- ons, ib. Their fruitless re- bellions against him, 401. Instances of his oppressive conduct, ib., 402. His dev- astating clearances for forests, 404. And iidm- nian forest laws, ib. His enormous revenues, 405. His feudal innovations, 406. Policy of his ma- norial grants, ib. Tyranny of his government, 408. Statutes of, 4.32, 4.33. Windsor Castle, laborers for the erection of, how pro- cured, 507. Winfrid (St. Boniface), im- portance of the ecclesi- astical changes effected by, 321. Winkelried, the Swiss pa- triot, heroic death of, 291. Wisbuy, ordinances of, 595. Witikind, acknowledgment of Charlemagne's author- ity by, 8. Witenagemot' its charac- teristics, .382 How often assembled, 431. (See An- glo-.Saxons.) Wladislaus crowned king of Hungary, 286. Viobiteshis treaty with the Turks, ib. Its fatal results, (6. Woollen manufacture estab- lished in Flanders, 535. E.xport of wool from Eng- land, 586. English wool- len manufacture, 587. Pol- icy adojited towards the Flemings, ib. Law.s rela- tive to the trade, 5S8. Worms, Diet of (See Diet.) Wykeham (bishop of \\ in- chester) invested with the great seal, 463. Y. Vork (Richard, duke of) ap- pointed protector to Hen- ry VI., 531. His claim to the throne, 533, 5.34. His cautious policy, (6. Yorkists and Lancastrians, wars of the, 634, 535. Z. Zimisces (John), military exploits of, 298 Zisca (.John), the blind hero, victories of the Bohemians under, 211. His exploits; enthusiasm of his follow- ers, 284, 285.