VIEW OF THE STATE OF EUROPE DURING THE MIDDLE AGES. BY HENRY HALLAM, LL.D., F.R.A.S., FOBEIOGN ASSOCIATE OF THE INSTITUTE OF FRANCE. IN THREE VOLUMES. VOLUME II NEW YORK: W. J. WIDDLETON, PUBLISHER. 1866. CAMBRIDGE: STEREOTYPED BY WELCH, BIGELOW, AND COMPANY. Presswork by John Wilson and Sons. CONTENTS op OF THE SECOND VOLUME. CHAPTER IV. THE HISTORY OF SPAIN TO THE CONQUEST OF GRANADA. Kingdom of the Visigoths-Conquest of Spain by the Moors - Gradual Revival of the Spanish Nation -Kingdoms of Leon, Aragon, Navarre, and Castile successively formed-Chartered Towns of Castile-Military Orders-Conquest of Ferdinand III. and James of AragonCauses of the Delay in expelling the Moors -History of Castile continued-Character of the Government-Peter the Cruel -House of Trastamare-John II.-Henry IV.-Constitution of Castile —National Assemblies or Cortes - Their constituent Parts- Right of Taxation-Legislation - Privy Council of Castile - Laws for the Protection of Liberty -Imperfections of the Constitution -Aragon -its History in the fourteenth and fifteenth Centuries - Disputed Succession - Constitution of Aragon - Free Spirit of its Aristocracy -Privilege of Union -Powers of the Justiza -Legal Securities - Illustrations- Other Constitutional Laws-Valencia and Catalonia-Union of two Crowns by the Marriage of Ferdinand and Isabella-Conquest of Granada. Page 7 NOTE TO CHAPTER IV................................... 63 CHAPTER V. HISTORY OF GERMANY TO THE DIET OF WORMS IN 1495. Sketch of German History under the Emperors of the House of Saxony — House of Franconia-Henry IV.-House of Suabia-Frederic Barbarossa-Fall of Henry the Lion -Frederic II. -Extinction of House of Suabia-Changes in the Germanic Constitution-Electors - Territorial Sovereignty of the Princes-Rodolph of Hapsburgh —State of the Empire after his Time —Causes of Decline of Imperial Power — iv CONTENTS OF THE SECOND VOLUME. House of Luxemburg - Charles IV. - Golden Bull- House of Austria -Frederic III. -Imperial Cities -Provincial States -MaximilianDiet of Worms - Abolition of private Wars - Imperial Chamber- Aulic Council - Bohemia — Hungary - Switzerland............... Page 67 CHAPTER VI. HISTORY OF THE GREEKS AND SARACENS. Rise of Mohammedism-Causes of its Success-Progress of Saracen Arms-Greek Empire-Decline of the Khalifs-The Greeks recover Part of their Losses-The Turks-The Crusades-Capture of ConstantinQple by the Latins -its Recovery by the Greeks - The Moguls -The Ottomans-Danger at Constantinople - Timur - Capture of Constantinople by Mahomet II. —Alarm of Europe.............. 112 CHAPTER VII. HISTORY OF ECCLESIASTICAL POWER DURING THE MIDDLE AGES. PART I. Wealth of the Clergy-its Sources-Encroachments on Ecclesiastica. Property - their Jurisdiction - arbitrative - coercive - their political Power-Supremacy of the Crown- Charlemagne -Change after his Death, and Encroachments of the Church in the Ninth CenturyPrimacy of the See of Rome- its early Stage- Gregory I. -Council of Frankfort- False Decretals- Progress of Papal Authority- Effects of Excommunication -Lothaire -State of the Church in the Tenth Century-Marriage of Priests -Simony-Episcopal Elections -Imperial Authority over the Popes —Disputes concerning Investitures — Gregory VII. and Henry IV. -Concordat of Calixtus- Election by Chapters- General System of Gregory VII.- Progress of Papal Usurpations in the Twelfth Century —Innocent III. —his Character and Schemes...................................................... 136 PART H. Continual Progress of the Papacy-Canon Law- Mendicant Orders — Dispensing Power —Taxation'of the Clergy by the Popes - Encroachments on Rights of Patronage -Mandats, Reserves, &c. - General Disaffection towards the See of Rome in the Thirteenth Century - Progress of Ecclesiastical Jurisdiction-Immunity of the Clergy in Criminal Cases -Restraints imposed upon their Jurisdiction- upon their Acquisition of Property —Boniface VIII. -his Quarrel with Philip the Fair —its Termination- Gradual Decline of Papal Authority-Louis of Bavaria -Secession to Avignon and Return to Rome- Conduct of CONTENTS OF THE SECOND VOLUME. v Avignon Popes-Contested Election of Urban and Clement produces the great Schism - Council of Pisa - Constance - Basle —Methods adopted to restrain the Papal Usurpations in England, Germany, and France- Liberties of tJie Gallican Church - Decline of the Papal Influence in Italy........................................... Page 193 NOTES TO CHAPTER VII........................................ 249 CHAPTER VIII. THE CONSTITUTIONAL HISTORY OF ENGLAND. PART I. The Anglo-Saxon Constitution — Sketch of Anglo-Saxon History- Succession to the Crown-Orders of Men-Thanes and Ceorls-Witenagemot-Judicial System-Division into Hundreds -County-Court - Trial by Jury - its Antiquity investigated - Law of Frank-pledge - its several Stages-Question of Feudal Tenures before the Conquest. 255 PART II. THE ANGLO-NORMAN CONSTITUTION The Anglo-Norman Constitution - Causes of the Conquest - Policy and Character of William -his Tyranny - Introduction of Feudal Services -Difference between the Feudal Governments of France and England -Causes of the great Power of the first Norman Kings- Arbitrary Character of their Government-Great Council-Resistance of the Barons to John- Magna Charta -its principal Articles —Reign of Henry III. -The Constitution acquires a more liberal character - Judicial System of the Anglo-Normans -Curia Regis, Exchequer, &c. — Establishment of the Common Law —its Effect in fixing the Constitution-Remarks on the Limitation of Aristocratical Privileges in England.................................................... 286 NOTES TO CHAPTER VIII., PARTS I. and II....................... 332 VIEW or THE STATE OF EUROPE DURING THE MIDDLE AGES. CHAPTER IV. THE HISTORY OF SPAIN TO. THE CONQUEST OF GRANADA. Kingdom of the Visigoths- Conquest of Spain by the Moors- Gradual Revival of the Spanish Nation - Kingdoms of Leon Aragon, Navarre, and Castile, successively formed - Chartered Towns of Castile -Military Orders-Conquest of Ferdinand III. and James of Aragon - Causes of the Delay in expelling the MoorsHistory of Castile continued- Character of the Government- Peter the CruelHouse of Trastamare - John II. - Henry IV. - Constitution of Castile - National Assemblies or Cortes -their constituent Parts -Right of Taxation-Legislation -Privy Council of Castile -Laws for the Protection of Liberty -Imperfections of the Constitution - Aragon -its History in the fourteenth and fifteenth Centuries - disputed Succession - Constitution of Aragon -Free Spirit of its Aristocracy-Privilege of Union - Powers of the Justiza-Legal Securities -Illustrations -other Constitutional Laws- Valencia and Catalonia- Union of two Crowns by the Marriage of Ferdinand and Isabella —Conquest of Granada. THE history of Spain during the middle ages ought to commence with the dynasty of the Visigoths; a ingdom of nation among the first that assaulted and over- Visigoths in threw the Roman Empire, and whose establish- spa'. ment preceded by nearly half a century the invasion of Clovis. Vanquished by that conqueror in the battle of Poitiers, the Gothic monarchs lost their extensive dominions in Gaul, and transferred their residence from Toulouse to Toledo. But I will not detain the reader by naming one sovereign of that obscure race. It may suffice to mention that the Visigothic monarchy differed in several respects from that of the Franks during the same period. The crown was less hereditary, or at least the regular succession was more frequently disturbed. The prelates had a still more commanding influence in temporal government. The distinction of 8 CONQUEST BY THE SARACENS. CHAP. IV Romans and barbarians was less marked, the laws more uniform, and approaching nearly to the imperial code. The power of the sovereign was perhaps more limited by an aristocratical council than in France, but it never yielded to the dangerous influence of mayors of the palace. Civil wars and disputed successions were very frequent, but the integrity of the kingdom was not violated by the custom of partition. Spain, after remaining for nearly three centuries in the Conquest possession of the Visigoths, fell under the yoke of by the the Saracens in 712. The fervid and irresistible Saraens. enthusiasm which distinguished the youthful period of Mohammedism might sufficiently account for this conquest, even if we could not assign additional causes —the factions which divided the Goths, the resentment of disappointed pretenders to the throne, the provocations, as has been generally believed, of count Julian, and the temerity that risked the fate of an. empire on the chances of a single battle.1 It is more surprising that a remnant of this ancient monarchy should not only have preserved its national liberty and name in the northern mountains, but waged for some centuries a successful, and generally an offensive warfare against the conquerors, till the balance was completely turned in its favor, and the Moors were compelled to maintain almost as obstinate and protracted a contest for a small portion of the peninsula. But the Arabian monarchs of Cordova found in their success and imagined security a pretext for indolence; even in the cultivation of science and contemplation of the magnificent architecture of their mosques and palaces they forgot their poor but daring enemies in the Asturias; while, according to the nature of despotism, the fruits of wisdom or bravery in one generation were lost in the follies and effeminacy of the next. Their kingdom was dismembered by successful rebels, who formed the states of Toledo, Huesca, Saragosa, and others less eminent; and these, in their own mutual contests, not only relaxed their natural enmity towards the Christian princes, but sometimes sought their alliance.2 The last attack which seemed to endanger the reviving Kingdom monarchy of Spain was that of Almanzor, the of Leon. illustrious vizir of Haccham II., towards the end 1 [NOTE.] 2 Cardonne, Histoire de l'Afrique et de 1'Espagne. SPAIN. LEON, NAVARRE, ARAGON. 9 of the tenth century, wherein the city of Leon, and even the shrine of Compostella, were burned to the ground. For some ages before this transient reflux, gradual encroachments had been made upon the Saracens, and the kingdom originally styled of Oviedo, the seat of which was removed to Leon in 914, had extended its boundary to the Douro, and even to the mountainous chain of the Guadarrama. The province of Old Castile, thus denominated, as is generally supposed, from the castles erected while it remained a march or frontier against the Moors, was governed by hereditary counts, elected originally by the provincial aristocracy, and virtually independent, it seems probable, of the kings of Leon, though commonly serving them in war as brethren of the same faith and nation.1 While the kings of Leon were thus occupied in recovering the western provinces, another race of Christian Kingdoms princes grew up silently under the shadow of the of Navarre Pyrenean mountains. Nothing can be more ob- and Aragon. scure than the beginnings of those little states which were formed in Navarre and the country of Soprarbe. They might perhaps be almost contemporaneous with the Moorish conquests. On both sides of the Pyrenees dwelt an aboriginal people, the last to undergo the yoke, and who had never acquired the language, of Rome. We know little of these intrepid mountaineers in the dark period which elapsed under the Gothic and Frank dynasties, till we find them cutting off the rear-guard of Charlemagne in Roncesvalles, and maintaining at least their independence, though seldom, like the kings of Asturias, waging offensive war against the Saracens. The town of Jaca, situated among long narrow valleys that intersect the southern ridges of the Pyrenees, was the capital of a little free state, which afterwards expanded into the monarchy of Aragon.2 A territory rather more extensive be1 According to Roderic of Toledo, one at least from the time of Ferdinand Gonof the earliest Spanish historians, though salvo about the middle of the tenth cennot older than the beginning of the thir- tury. Ex quo iste suscepit suae patrime teenth century, the nobles of Castile, in comitatum, cessaverunt regesAsturiarum the reign of Froila, about the year 924, insolescere in Castellam, et a flumine sibi et posteris providerunt, et duos Pisorica nihil amplius vindicarunt, 1. v. milites non de potentioribus, sed de pru- c. 2. Marina, in his Ensayo Historicodentioribus elegerunt, quos et judices Critico, is disposed to controvert this statuerunt, ut dissensiones patriae et que- fact. relantium causie suo judicio sopirentur. 2 The Fueros, or written laws of Jaca, 1. v. c. 1. Several other passages in the were perhaps more ancient than any local same writer prove that the counts of customary in Europe. Alfonso III. conCastile were nearly independent of Leon, firms them by name of the ancient usages 10 CAPTURE OF TOLEDO AND SARAGOSA. CHAP. IV. longed to Navarre, the kings of which fixed their seat at Pampelona. Biscay seems to have been divided between this kingdom and that of Leon. The connection of Aragon or Soprarbe and Navarre was very intimate, and they were often united under a single chief. At the beginning of the eleventh century, Sancho the Kingdom of Great, king of Navarre and Aragon, was enabled Castile. 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 complete than ever, though with a reversed supremacy. Bermudo II., 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 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 superior 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 Capture of ancient metropolis of the monarchy, the city of ToToledo, ledo. 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 quarter. 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 of Jaca. They prescribe the descent of magis remoti, invenerint in villa magis lands and movables, as well as the elec- proximS appellito, [deest aliquid?] omnes tion of municipal magistrates. The fol- qui nondum fuerint egressi tune villai lowing law, which enjoins the rising in illam, quse tardius secuta estappellitum, arms on a sudden emergency, illustrates, pecent [solvant] unam baccam [vaccam]; with a sort of romantic wildness, the et unusquisque homo ex illis qui tardius mannersof a pastoral but warlike people, secutus est appellitum, et quem magis and reminds us of a well-known passage remoti prmecesserint pecet tres solidos, in the Lady of the Lake. De appellitis quomodo nobis videbitur, partiendos. ita statuimus. Cum homines de villis, Tamen in JacA et in allis villis, sint vel qui stant in montanis cum suis ganatis aliqui nominati et certi, quos elegerint [gregibus], audierint appellitum; omnes consules, qui remaneant ad villas custocapiant arma, et dimissis ganatis, et om- diendas et defendendas. Biancoe Comnibus allis suis faziendis [negotiis] se- mentaria, in Schotti Hispania Illustrata, quantur appellitum. Etsiilli qui fuerint p. 595. SPAIN. MODE OF SETTLING CONQUESTS. 11 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 another, till, in 1118, exposed and weakened by the reduction of all these places, the city of Saragosa, in which a line of Mohammedan princes had flour- and Saraished for several ages, became the prize of Al- gosa fonso I. and the capital of his kingdom. The southern parts of what is now the province of Aragon were successively 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 Alfonso VI. Although the feudal system cannot be said to have obtained in the kingdoms of Leon and Castile, their pecu- Mode o liar situation gave the aristocracy a great deal of settling the the same power and independence which resulted new conin France and Germany from that institution. The q territory successively recovered from the Moors, like waste lands reclaimed, could have no proprietor 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. In their new conquests they built 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 880; another fixed his seat at Osma; a third at Sepulveda; a fourth at Salamanca. These cities were not free from incessant peril of a sudden attack till the union of the two kingdoms under Ferdinand I., and consequently the necessity of keeping in exercise a numerous and armed population, gave a character of personal freedom and privilege to the inferior classes which they hardly possessed at so early a period in any other monarchy. Villeinage seems never to have been established in the Hispano-Gothic kingdoms, Leon and Castile; though I confess it was far from being unknown in that of Aragon, which had formed its institutions on a different pattern. Since nothing makes us forget the arbitrary distinctions of rank so much as participation in any common calamity, every man who had escaped the great shipwreck of liberty and religion in the mountains of Asturias was invested with a personal dignity, which gave him value in his own eyes and 12 CHARTERED TOWNS CHAP. IV. those of his country. It is probably this sentiment transmitted to posterity, and gradually fixing the national character, that has produced the elevation of manner remarked by travellers in the Castilian peasant. But while these' acquisitions of the nobility promoted the grand object of winning back the peninsula from its invaders, they by no means invigorated the government or tended to domestic tranquillity. A more interesting method of securing the public defence was by the institution of chartered towns or comtownsor munities. These were established at an earlier communi- period than in France and England, and were, in some degree, of a peculiar description. Instead of purchasing their immunities, and almost their personal freedom, at the hands of a master, the burgesses of Castilian towns were invested with civil rights and extensive property on the more liberal condition of protecting their country. The earliest instance of the erection of a community is in 1020, when Alfonso V. in the cortes at Leon established the privileges of that city with a regular code of laws, by which its magistrates should be governed. The citizens of Carrion, Llanes, and other towns were incorporated by the same prince. Sancho the Great gave a similar constitution to Naxara. Sepulveda had its code of laws in 1076 from Alfonso VI.; in the same reign Logroio and Sahagun acquired their privileges, and Salamanca not long afterwards. The fuero, or original charter of a Spanish community, was properly a compact, by which the king or lord granted a town and adjacent district to the burgesses, with various privileges, and especially that of choosing magistrates and a common council, who were bound to conform themselves to the laws prescribed by the founder. These laws, civil as well as criminal, though essentially derived from the ancient code of the Visigoths, which continued to be the common law of Castile till the fourteenth or fifteenth century, varied from each other in particular usages, which had probably grown up and been established in these districts before their legal confirmation. The territory held by chartered towns was frequently very extensive, far beyond any comparison with corporations in our own country or in France; including the estates of private landholders, subject to the jurisdiction and control of the municipality as well as its inalienable demesnes, allotted to the maintenance of the magistrates and other public expenses. SPAIN. OR COMMUNITIES. 13 In every town the king appointed a governor to receive the usual tributes and watch over the police and the fortified places within the district; but the administration of justice was exclusively reserved to the inhabitants and their elected judges. Even the executive power of the royal officer was regarded with jealousy; he was forbidden to use violence towards any one without legal process; and, by the fuero of Logrofo, if he attempted to enter forcibly into a private house he might be killed with impunity. These democratical customs were altered in the fourteenth century by Alfonso XI., who vested the municipal administration in a small number of jurats, or regidors. A pretext for this was found in some disorders to which popular elections had led; but the real motive, of course, must have been to secure a greater influence for the crown, as in similar innovations of some English kings. In recompense for such liberal concessions the incorporated towns were bound to certain money payments, and to military service. This was absolutely due from every inhabitant, without dispensation or substitution, unless in case of infirmity. The royal governor and the magistrates, as in the simple times of primitive Rome, raised and commanded the militia; who, in a service always short, and for the most part necessary, preserved that delightful consciousness of freedom, under the standard of their fellow citizens and chosen leaders, which no mere soldier can enjoy. Every man of a certain property was bound to serve on horseback, and was exempted in return from the payment of taxes. This produced a distinction between the caballeros, or noble class, and the pecheros, or payers of tribute. But the distinction appears to have been founded only upon wealth, as in the Roman equites, and not upon hereditary rank, though it most likely prepared the way for the latter. The horses of these caballeros could not be seized for debt; in some cases they were exclusively eligible to magistracy; and their honor was protected by laws which rendered it highly penal to insult or molest them. But the civil rights of rich and poor in courts of justice were as equal as in England.1 11 am indebted for this account of Marina, a canon of the church of St municipal towns in Castile to a book Isidor, entitled, Ensayo Historico-Critico published at Madrid in 1808, immedi- sobre la antigua legislacion y principales ately after the revolution, by the Doctor cuerpos legales de los reynos de Lyon y 14 MILITARY ORDERS. CHAP. IV. The progress of the Christian arms in Spain may in part Military be ascribed to another remarkable feature in the orders. constitution of that country, the military orders. These had already been tried with signal effect in Palestine; and the similar circumstances of Spain easily led to an adoption of the same policy. In a very few years after the first institution of the Knights Templars, they were endowed with great estates, or rather districts, won from the Moors, on condition of defending their own and the national territory. These lay chiefly in the parts of Aragon beyond the Ebro, the conquest of which was then recent and insecure.1 So extraordinary was the respect for this order and that of St. John, and so powerful the conviction that the hope of Christendom rested upon their valor, that Alfonso the First, king of Aragon, dying childless, bequeathed to them his whole kingdom; an example of liberality, says Mariana, to surprise future times and displease'his own.2 The states of Aragon annulled, as may be supposed, this strange testament; but the successor of Alfonso was obliged to pacify the ambitious knights by immense concessions of money and territory; stipulating even not to make peace with the Moors against their will.8 In imitation of these great military orders common to all Christendom, there arose three Spanish institutions of a similar kind, the orders of Calatrava, Santiago, and Alcantara. The first of these was established in 1158; the second and most famous had its charter from the pope in 1175, though it seems to have existed previously; the third branched off from that of Calatrava at a subsequent time.4 These were military colleges, having their walled towns in different parts of Castile, and governed by an elective grand master, whose influence in the state was at least equal to that of any of the nobility. In the civil dissensions of the fourteenth and fifteenth centuries, the chiefs of these incorporated knights were often very prominent. Finalunion The kingdoms of Leon and Castile were unof Leon and wisely divided anew by Alfonso VII. between his Castile. sons Sancho and Ferdinand, and this produced not Castilla, especialmente sobre el codigo burgh Review, No. XLIII., will convey de D. Alonso el Sabio, conocido con el a sufficient notion of its contents. nombre de las Siete Partidas. This work 1 Mariana, Hist. Hispan. 1. x. c. 10. is perhaps not readily to be procured in 21. x. c. 15. England: but an article in the Edin- s 1. x. c. 18. 41. xi. c. 6,13; 1. xii. c. 8. SPAIN. EXPULSION OF THE MOORS. 15 only a separation but a revival of the ancient jealousy with frequent wars for near a century. At length, in 1238, Ferdinand III., king of Castile, reunited forever the two branches of the Gothic monarchy. He employed their joint strength against the Moors, whose dominion, though it still embraced the finest provinces of the peninsula, was sinking by internal weakness, and had never recovered a tremendous defeat at Banos di Toloso, a few miles from Baylen, in Conquest of 1210.1 Ferdinand, bursting into Andalusia, took Andalusia. its great capital the city of Cordova, not less en- A.D.. nobled by the cultivation of Arabian science, and by the names of Avicenna and Averroes, than by the splendid works of a rich and munificent dynasty.2 In a few years more Seville was added to his conquests, and the Moors lost their favorite regions on the banks of the Guad- and Valenalquivir. James I. of Aragon, the victories of cia. whose long reign gave him the surname of Conqueror, reduced the city and kingdom of Valencia, the Balearic isles, and the kingdom of Murcia; but the last was annexed, according to compact, to the crown of Castile. It could hardly have been expected about the middle of the thirteenth century, when the splendid conquests of Ferdinand and James had planted the Chris- of the tian banner on the three principal Moorish cities, Moors long that two hundred and fifty years were yet to elapse before the rescue of Spain from their yoke should be completed. Ambition, religious zeal, national enmity, could not be supposed to pause in a career which now seemed to be obstructed by such moderate difficulties; yet we find, on the contrary, the exertions of the Spaniards begin from this time to relax, and their acquisitions of territory to become more 1 A letter of Alfonso IX., who gained however, must be greatly exaggerated, as this victory, to Pope Innocent III., puts numerical statements generally are. The the loss of the Moors at 180,000 men. mines of gold and silver were very proThe Arabian historians, though without ductive. And the revenues of the khalifs specifying numbers, seem to confirm this of Cordova are said to have amounted to immense slaughter, which nevertheless 130,000,000 of French money; besides it is difficult to conceive before the in- large contributions that, according to the vention of gunpowder, or indeed since. practice of oriental governments, were Cardonne, t. ii. p. 327. paid in the fruits of the earth. Other 2 If we could rely on a Moorish author proofs of the extraordinary opulence and quoted by Cardonne (t. i. p. 337), the splendor of this monarchy are dispersed city of Cordova contained I know not in Cardonne's work, from which they exactly in what century, 200,000 houses, have been chiefly borrowed by later 600 mosques, and 900 public baths. writers. The splendid engravings in There were 12,000 towns and villages on Murphy's Moorish Antiquities of Spain the banks of the Guadalquivir. This, illustrate this subject. 16 EXPULSION OF THE MOORSt CHAP. IV. slow. One of the causes, undoubtedly, that produced this unexpected protraction of the contest was the superior means of resistance which the Moors found in retreating. Their population, spread originally over the whole of Spain, was now condensed, and, if I may so say, become no further compressible, in a single province. It had been mingled, in the northern and central parts, with the Mozarabic Christians, their subjects and tributaries, not perhaps treated with much injustice, yet naturally and irremediably their enemies. Toledo and Saragosa, when they fell under a Christian sovereign, were full of these inferior Christians, whose long intercourse with their masters has infused the tones and dialect of Arabia into the language of Castile.l But in the twelfth century the Moors, exasperated by defeat and jealous of secret disaffection, began to persecute their Christian subjects, till they renounced or fled for their religion; so that in the southern provinces scarcely any professors of Christianity were left at the time of Ferdinand's invasion. An equally severe policy was adopted on the other side. The Moors had been permitted to dwell in Saragosa as the Christians had dwelt before, subjects, not slaves; but on the capture of Seville they were entirely expelled, and new settlers invited from every part of Spain. The strong fortified towns of Andalusia, such as Gibraltar, Algeciras, Tariffa, maintained also a more formidable resistance than had been experienced in Castile; they cost tedious sieges, were sometimes recovered by the enemy, and were always liable to his attacks. But the great protection of the Spanish Mohammedans was found in the alliance and ready aid of their kindred beyond the Straits. Accustomed to hear of the African Moors only as pirates, we cannot easily conceive the powerful dynasties, the warlike chiefs, the vast armies, which for seven or eight centuries illustrate the annals of that people. Their assistance was always afforded to the true believers in Spain, though their ambition was generally dreaded by those who stood in need of their valor.2 Probably, however, the kings of Granada were most indebted to the indolence which gradually became characteristic of their enemies. By the cession of Murcia to Castile, the kingdom of Aragon shut itself out from the possibility of l Mariana, 1. xi. c. 1; Gibbon, c. 51. 2 Cardonne, t. ii. and iii. passim. SPAIN. ALFONSO X. 17 extending those conquests which had ennobled her earlier sovereigns; and their successors, not less ambitious and enterprising, diverted their attention towards objects beyond the peninsula. The Castilian, patient and undesponding in bad success, loses his energy as the pressure becomes less heavy, and puts no ordinary evil in comparison with the exertions by which it must be removed. The greater part of his country freed by his arms, he was content to leave the enemy in 9 single province rather than undergo the labor of making his triumph complete. If a similar spirit of insubordination had not been found compatible in earlier ages with the aggrandizement of the Castilian monarchy, we might ascribe its want of Alfonso X. splendid successes against the Moors to the con- AD. 1252. tinued rebellions which disturbed that government for more than a century after the death of Ferdinand HI. His son, Alfonso X., might justly acquire the surname-of Wise for his general proficiency in learning, and especially in astronomical science, if these attainments deserve praise in a king who was incapable 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; 1 and his philosophy sunk below the level of ordinary prudence when he permitted the phantom of an imperial crown in Germany to seduce his hopes for almost twenty years. For the sake of such an illusion he would even have withdrawn himself from Castile, if the states had not remonstrated against an expedition that would probably 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 succession the nearer was always preferred to the more remote, the son to the grandson. Alfonso X. had established the different maxim of representation by his code of the Siete Partidas, the authority of which, however, was not universally acknowledged. The question soon came to an issue: on the death of his elder son Ferdinand, leaving two male children, Sancho their uncle asserted his claim, founded upon the ancient Castilian right of succession; and Marina, Ensayo Historico-Crltico, p. 272, &o. VOL. n. 2 18 CIVIL DISTURBANCES OF CASTILE. CHAP. IV. this, chiefly no doubt through fear of arms, though it did not want plausible arguments, was ratified by an assembly of the cortes, and secured, notwithstanding 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, continued 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 SancholIV. and his two immediate succesCrvildie sors, Ferdinand IV. and Alfonso XI., present a turbances series of unhappy and dishonorable civil dissennf Castile. sions with too much rapidity to be remembered A.D. 1284. or even understood. Although the Castilian nordInd bility had no pretence to the original independence A.D. 1295. of the French peers, or to the liberties of feudal Alfonso XI. A.D. 1312. tenure, they assumed the same privilege 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.1 A very few families composed an oligarchy, the worst and most ruinous condition of political society, alternately 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 perhaps their religion. Nothing is more common in the Castilian history than instances of such defection. Mariana remarks coolly of the family of Castro, that they were much in the habit of revolting to the Moors.2 This house and that of Lara were at one time the great rivals for power; but from the time of Alfonso X. the former seems to have declined, and the sole family that came in competition with the Laras during the tempestuous period that followed was that of Haro, which possessed the lordship of Biscay by an hereditary title. The evils of a weak gov1 Mariana, 1. xiii. c. 11. tria gens per hsec tempora ad Mauros 2 Alvarus Castrius patri aliquanto ssepe defecisse visa est. 1. xii. c. 12. Seo antea, uti moris erat, renunciatA.-Cas- also chapters 17 and 19. SPAIN. PETER THE CRUEL. 19 ernment were aggravated by the unfortunate circumstances in which Ferdinand IV. and Alfonso XI. ascended the throne; both minors, with a disputed regency, and the interval too short to give ambitious spirits leisure to subside. There is indeed some apology for the conduct of the Laras and Hares in the character of their sovereigns, who had but one favorite method of avenging a dissembled injury, or anticipating a suspected treason. Sancho IV. assassinates Don Lope Haro in his palace at Valladolid. Alfonso XI. invites to court the infant Don Juan, his first-cousin, and commits a similar violence. Such crimes may be found in the history of other countries, but they were nowhere so usual, as in Spain, which was far behind France, England, and even Germany, in civilization. But whatever violence and arbitrary spirit might be imputed to Sancho and Alfonso was forgotten in the Peter the unexampled tyranny of Peter the Cruel. A sus- Cruel. picion is frequently intimated by Mariana, which A.D. 1350. seems, in more modern times, to have gained some credit, that party malevolence has at least grossly exaggerated the enormities of this prince.1 It is difficult, however, to believe that a number of atrocious acts unconnected with each other, and generally notorious enough in their circumstances, have been ascribed to any innocent man. The history of his reign, chiefly derived, it is admitted, from the pen of an inveterate enemy, Lope de Ayala, 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; besides continual outrages of licentiousness, and especially a pretended marriage with a noble lady of the Castrian family. At length a rebellion was headed by his illegitimate brother, 1 There is in general room enough for day, within the recollection of many perscepticism as to the characters of men sons living when he wrote? There may who are only known to us through their be a question whether Richard III. enemies. History is full of calumnies, smothered his nephews in the Tower; apd of calumnies that can never be but nobody can dispute that Henry VIII. ffaced. But I really see no ground for cut off Anna Boleyn's head. thinking charitably of Peter the Cruel. The passage from Matteo Villani above Proissart, part i. c. 230, and Matteo Vil- mentioned is as follows:-Cominci6 aspralani (in Script. Rerum Italic. t.'xiv. mente a se far ubbidire, perche temendo p 568) the latter of whom died before the de' suoi baroni, trovo modo di far inamare rebellion of Henry of Trastamare, speak 1' uno 1' altro, e prendendo cagione, gli of him much in the same terms as the cominci6 ad uccidere con le sue mani. E Spanish historians. And why should in brieve tempo ne fece morire 26 e tre Ayala be doubted, when he gives a long suoi fratelli fece morire, &c. list of murders committed in the face of 20 HOUSE OF TRASTAMARE. CHAP. IV. 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 companies of adventure, who, after the pacification between France and England, had lost the occupation of war, and retained only that of plunder. With mercenaries so disciplined it was in vain for 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 Castile; and at A.D. 1867. the great battle of Navarette he continued lord of the ascendant over those who had so often already been foiled by his prowess. Du Guesclin was made prisoner; Henry fled to Aragon, and Peter remounted the throne. But a second revolution was at hand: the Black Prince, whom he had ungratefully offended, withdrew into Guienne; and he lost his kingdom and life in a second short contest with his brother. A more fortunate period began with the accession of House of Henry. His own reign was hardly disturbed by Trastamare. any rebellion; and though his successors, John I. Henry II. A.D. "68. and Henry HI., were not altogether so unmolested, John I87 especially the latter, who ascended the throne in Henrv II. his minority, yet the troubles of their time were.D. 1890. slight in comparison 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 Sancho IV.'s elder brother, and, by the extinction of the younger branch, unquestioned heiress of the royal line. Some years afterwards, by the marriage of Henry HI. with Catherine, daughter of John of Gaunt and Constance, an illegitimate child of Peter the Cruel, her pretensions, such as they were, became merged in the crown. No kingdom could be worse prepared to meet the disorders John II. of a minority than Castile, and in none did the A.D. 140. circumstances so frequently recur. John II. was but fourteen months old at his accession; and but for the SPAIN. ALVARO DE LUNA. 21 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 first jointly with Ferdinand, and solely after his accession to the crown of Aragon, administered the government 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 themselves more strictly than their predecessors to the constitutional laws of Castile, which were never so well established as during this period. In external affairs their reigns were not what is considered as glorious. They were generally at peace with Aragon and A.D. 18M5 Granada; but one memorable defeat by the Portuguese at Aljubarrota disgraces the annals of John I., whose cause was as unjust as his arms were unsuccessful. 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 extensive 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 kingdom of Navarre, stood in a double relation to Castile, as a neighboring sovereign, and as a member of the native oligarchy. These conspiracies oweran were all ostensibly directed against the favorite of fall of A1John II., Alvaro de Luna, who retained for five- valrode and-thirty years an absolute control over his feeble master. The adverse faction naturally ascribed to this powerful minister every criminal intention and all public mischiefs. He was certainly not more scrupulous than the generality of statesmen, 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 sycophants who usually rise by the favor of weak princes; and Castile probably would not have been happier under the administration 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 22 HENRY IV CHAP. IV. 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 understanding 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 resemblance in character. John II. did not' long survive his minister, dying in 1454, Henr IV after a reign that may be considered as inglorious, compared with any except that of his successor. If the father was not respected, the son fell completely into contempt. He had been governed by Pacheco, marquis of Villena, as implicitly as John by Alvaro de Luna. This influence lasted for some time afterwards. But the king inclining to transfer his confidence to the queen Joanna of Portugal, and to one Bertrand de Cueva, upon whom common fame had fixed as her paramour, a powerful confederacy of disaffected nobles was formed against the royal authority. In what degree Henry IV.'s government had been improvident or oppressive towards the people, it is hard to deterrine. The chiefs of that rebellion, Carillo archbishop of Toledo, the admiral of Castile, a veteran leader of faction, and the marquis of Villena, so lately the king's favorite, were undoubtedly actuated only by selfish ambition and revenge..D. 146. They deposed Henry in an assembly of their fac-'tion at Avila with a sort of theatrical pageantry which has often been described. But moder historians, struck by the appearance of judicial solemnity in this proceeding, are sometimes apt to speak of it as a national act; while, on the contrary, it seems to have been reprobated by the majority of the Castilians as an audacious outrage upon a sovereign who, with many defects, had not been guilty of any excessive tyranny. The confederates set up Alfonso, the king's brother, and a civil war of some duration ensued, SPAIN. HENRY IV. 23 in which they had the support of Aragon. The queen of Castile had at this time borne a daughter, whom the enemies 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. This arrangement was not long.D. 1469. afterwards followed by the union of that princess with Ferdinand, son of the king of Aragon. This marriage was by no means acceptable 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 daughter, 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. Joanna had on her side the common presumptions of law, the testamentary disposition of the late king, the support of Alfonso king of Portugal, to whom she was betrothed, and of several considerable leaders among the nobility, as, the young marquis of Villena, the family of Mendoza, and the archbishop of Toledo, who, charging Ferdinand with ingratitude, had quitted a party which he had above all men contributed to strengthen. For Isabella were the general belief of Joanna's illegitimacy, the assistance of Aragon, the adherence of a majority both among the nobles and people, and, more than all, the reputation of ability which both she and her husband had deservedly acquired. The scale was however 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 by themselves, and successively made their submission to Ferdinand and Isabella. The Castilians always considered themselves Constituas subject to a legal and limited monarchy. For tion of several ages the crown was elective, as in most ctileio. nations of German origin, within the limits of one of the royal family.l In general, of course, the public crown' 1 Defuncto in pace principe, primates cessorum regni concilio communi contotius regni un6 cum sacerdotibus suc- stituant. Concil. Toletan. IV. c. 75, 24 NATIONAL COUNCILS. CHAP. IV 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. But the form of recognizing the heir apparent's title in an assembly of the cortes has subsisted until our own time.1 In the original Gothic monarchy of Spain, civil as well as ecclesiastical affairs were decided in national councils, the National acts of-many of which are still extant, and have councils. been published in ecclesiastical collections. To these assemblies the dukes and other provincial governors, and in general the principal individuals of the realm, were summoned along with spiritual persons. This double aristocracy of church and state continued to form the great council of advice and consent in the first ages of the new kingdoms of Leon and Castile. The prelates and nobility, or rather some of the- more 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 magnats reAdmission cited as present. According to the General Chronof deputies icle of Spain, deputies from the Castilian towns from town formed a part of cortes in 1169, a date not to be rejected as incompatible with their absence in 1178. However, in 1188, the first year of the reign of Alfonso IX., they are expressly mentioned; and from that era were constant and necessary parts of those general assemblies.2 It has been seen already that the corporate towns or districts of apud Marina, Teoria de las Cortes, t. ii. Pelayo downwards to the twelfth cen. p. 2. This importantwork, by the author tury. of the Ensayo Historico-dritico, quoted 1 Teoria de las Cortes, t. ii. p. 7. above, contains an ample digest of the 2 Ensayo Hist.-Crit. p. 77; Teoria de parliamentary law of Castile, drawn from las Cortes, t. i. p. 66. Marina seems original and, in a great degree, unpub- to have somewhat changed his opinion lished records. I have been favored since the publication of the former work, with the use of a copy, from which I am where he inclines to assert that the comthe more disposed to make extracts, as mons were from the earliest times adthe book is likely, through its liberal mitted into the legislature. In 1188, principles, to become almost as scarce in the first year of the reign of Alfonso IX., Spain as in England. Marina's former we find positive mention of la muchework (the Ensayo Hist.-0rit.) furnishes dumbre de las cibdades 6 embiados de a series of testimonies;c. 66) to the cada cibdat. elective character of the monarchy from $PrAI. NATIONAL COUNCILS. 25 Castile had early acquired considerable importance, arising less from commercial wealth, to which the towns of other kingdoms were indebted for their liberties, than from their utility in keeping up a military organization among the people. To this they probably owe their early reception into the cortes as integrant portions of the legislature, since we do not read that taxes were frequently demanded, till the extravagance of later kings, and their alienation of the domain, compelled them to have recourse to the national representatives. Every chief town of a concejo or corporation ought perhaps, by the constitution of Castile, to have received its regular writ for the election of deputies to cortes.1 But there does not appear to have been, in the best times, any uniform practice in this respect. At the cortes of Burgos, in 1315, we find one hundred and ninety-two representatives from more than ninety towns; at those of Madrid, in 1391, one hundred and twenty-six were sent from fifty towns; and the latter list contains names of several places which do not appear in the former.2 No deputies were present from the kingdom of Leon in the cortes of Alcala in 1348, where, among many important enactments, the code of the Siete Partidas first obtained a legislative recognition.8 We find, in short, a good deal more irregularity than during the same period in England, where the number of electing boroughs varied pretty considerably, at every parliament. 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 Trastamare had acted in all points 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 assembly of the nation. Their writs were directed only to certain towns- an abuse for which the looseness of preceding usage had given a pretence.4 It must be owned that the people bore it in general very patiently. Many of the corporate towns, impoverished Teoria de las Cortes, p. 139. Sepades (says John II. in 1442) que 2Id. p. 148. Geddes gives a list of en el ayuntamiento que yo flee en Is one hundred and twenty-seven deputies noble villa de Valladolid... los profiom forty-eight towns to the cortes at curadores de ciertas cibdades 6 villas de Madrid in 1890. - Miscellaneous Tracts, mis reynos que por mi mandado fueron vol. iii. llamadps. This language is repeated as 8 Id. p. 154. to subsequent meetings. p. 156 26 NATIONAL COUNCILS. CAP. IV. by civil warfare and other causes, were glad to save the cost of defraying their deputies' expenses. Thus, 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 Palencia, and the provinces of Estremadura and Galicia.1 It might have been easy perhaps 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 securing it, by a restoration of elective franchises to their fellow-citizens. The cortes of 1506 assert, with one of those bold falsifications upon which a popular body sometimes ventures, 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 1512.2 From the reign of Alfonso XI., who restrained the government 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 election among themselves.8 The people therefore had no direct share 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 influence and to intimidation. John II. and Henry IV. often invaded the freedom of election; the latter even named some of,the deputies.4 Several energetic remonstrances were made in cortes against this flagrant grievance. Laws were enacted and other precautions devised to secure the due re1 The cities which retained their rep- adjacent towns. Thus Toro voted for Paresentation in cortes were Burgos, To- lencia and the kingdom of Galicia, before ledo (there was a constant dispute for they obtained separate votes; Salamanca precedence between these two), Leon, for most of Estremadura; Guadalaxara Granada, Cordova, Murcia, Jaen, Zamora, for Siguenza and four hundred other Toro, Soria, Valladolid, Salamanca, Se- towns. Teoria de las Cortes, p. 160, 268. govia, Avila, Madrid, Guadalaxara, and 2 Idem, p. 161. Cuenca. The representatives of these 8 Idem, p. 86 197. were supposed to vote not only for their 4 Idem, p. 199. immediate constituents, but for other SPAIN CONSTITUTION OF CORTES. 27 turn of deputies. In the sixteenth century the evil, of course, was aggravated. Charles and Philip corrupted the members by bribery.1 Even in 1573 the cortes are bold enough to complain that creatures of government were sent thither, "who are always held for suspected by the other deputies. and cause disagreement among them."2 There seems to be a considerable obscurity about the con stitution of the cortes, so far as relates to the two.ital higher estates, the spiritual and temporal nobility. and tempoIt is admitted that down to the latter part of the a nobility thirteenth century, and especially before the introduction of representatives from the commons, they were summoned in considerable numbers. But the writer to whom I must almost exclusively refer for the constitutional history of Castile contends that from the reign of Sancho IV. they took much less share and retained much less influence in the deliberation of cortes.8 There is a remarkable protest of the archbishop of Toledo, in 1295, against the acts done in cortes, because neither he nor the other prelates had been admitted to their discussions, nor given any consent to their resolutions, although such consent was falsely recited in the laws enacted therein.4 This protestation is at least a testimony to the constitutional rights of the prelacy, which indeed all the early history of Castile, as well as the analogy of other governments, conspires to demonstrate. In the fourteenth and fifteenth centuries, however, they were more and more excluded. None of the prelates were summoned to the cortes of 1299 and 1301; none either of the prelates or nobles to those of 1370 and 1373, of 1480 and 1505. In all the latter cases, indeed, such members of both orders as happened to be present in the court attended the cortes - a fact which seems to be established by the language of the statutes. 1 Teoria de las Cortes, p. 213. tados et estrannados et secados expresa 2 p. 202. mente nos et los otros perlados et ricoo 8p. 67. homes et los fijosdalgo; et non fue hi 4 Protestamos que desde aqui venimos cosa fecha con nuestro consejo. Otrosi non fuemos llamados a consejo, ni A los protestamos por razon de aquello que tratados Soore los fechos del reyno, ni dice en los previlegios que les otorgaron, sobre las otras cosas que hi fueren trac- que fueren los perlados llamados, et que tadas et fechas, et senraladamente sobre eran otorgados de consentimiento et de los fechos de los consejos de las her- voluntad dellos, que non fuemos hi premandades et de las peticiones que ueron sentes ni llamados nin fue fecho con fechas de su parte, et sobre los otorga- nuestra voluntad, nin consentiemos, nin. mentos que les ficieron, et sobre los pre- consentimos en ellos, &c. p. 72. vilegios que por esta nazon les fueron 5 Teoria de las Cortes, p. 74. otorgados; mas ante fuemos eide apar 28 CONSTITUTION OF CORTES. CHAP. IV. Other instances of a similar kind may be adduced. Nevertheless, the more usual expression in the preamble of laws reciting those summoned to and present at the cortes, though subject to considerable variation, seems to imply that all the three estates were, at least nominally and according to legitimate forms, constituent members of the national assembly. And a chronicle mentions, under the year 1406, the nobility and clergy as deliberating separately, and with some difference of judgment, from the deputies of the commons.1 A theory, indeed, which should exclude the great territorial aristocracy from their place in cortes, would expose the dignity and legislative rights of that body to unfavorable inferences. But it is manifest that the king exercised very freely a prerogative 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 ricoshombres, 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 t. ii. p. 234. Marina is influenced by villas 6 logares de los nuestros reynos. a prejudice in favor of the abortive (Ordinances of Toro in 1371.) Estanho Spanish constitution of 1812, which ex- hi con 61 el infante Don Ferrando, &c., 6 eluded the temporal and spiritual aristoc- otros perlados 6 condes 6 ricos homes 6 racy from a place in the legislature, to otros caballeros 6 escuderos, 6 los procuimagine asimilar form of government in radores de las cibdades 6 villas 6 logares ancient times. But his own work fur- de sus reynos. (Cortes of 1391.) Los nishes abundant reasons, if I am not tres estados que deben venir d las cortes mistaken, to modify this opinion very 6 ayuntamientos segunt se debe facer 6 es essentially. A few out of many instances de buena costumbre antigua. (Cortes may be adduced from the enacting words of 1393.) This last passage is apparently of statutes which we consider in England conclusive to prove that three estates, as good evidences to establish a constitu- the superior clergy, the nobility, and the tional theory. Sepades que yo hube commons, were essential members of the mio acuerdo 6 mio consejo con mios her- Legislature in Castile, as they were in manos b los arzobispos, 6 los obispos, 6 France and England; and one is astoncon los ricos homes de Castella, 6 de ished to read in Marina that no faltaron Leon, 6 con homes buenos de lasvillas de 6 ninguna de las formalidades de derecho Castella, 6 de Leon, que fueron conmigo los monarcas que no tuvieron por oporen Valladollt, sobre muchas cosas, &c. tuno llamar cortes parasemejantes actos Alfonso X. in 1258.) Mandamos enviar ni al clero ni 6 la nobleza ni 6 las perllama por cartas del rei 6 nuestras 6 los sonas singulares de uno y otro estado. infantes 6 perlados 6 ricos homes 6 in- t.i.p. 69. That great citizen, Jevellanos, fanzones 6 caballeros 6 homes buenos de appears to have had much wiser notions las cibdades 6 de las villas de los reynos of the ancient government of his country, de Castilia et de Toledo 6 de Leon 6 de as well as of the sort of reformation las Estramaduras, 6 de Gallicia 6 de las which she wanted: as we may infer from Asturias 6 del Andalusia. (Writ of sum- passages in his Memoria 6 sus compatrimons to cortes of Burgos in 1315.) Con otas, Coruna, 1811, quoted by Marina for acuerdo de los perlados 6 de los ricos the purpose of censure. homes 6 procuradores de las cibdades 6 SPAIN. RIGHT OF TAXATION. 29 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. The primary and most essential characteristic of a limited monarchy is that money can only be levied upon Right of the people through the consent of their represent- taxation. atives. This principle was thoroughly established in Castile; and the statutes which enforce it, the remonstrances which protest 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 taxation - 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 large extent of territory subordinate to the principal town, were bound by their charter to a stipulated annual payment, the price of their franchises, called moneda forera.1 Beyond this sum nothing could be demanded without the consent of the cortes. - 41fonso VIII., in 1177, applied for a subsidy towards carrying on the siege of Cuenca. Demands of money do not however seem to have been very usual before the prodigal reign of Alfonso X. That prince and his immediate successors were not much inclined to respect the rights of their subjects; but they encountered a steady and insuperable resistance. Ferdinand IV., in 1307, promises to raise no money beyond his legal and customary dues. A more explicit law was enacted by Alfonso XI. 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, without the previous grant of all the deputies convened to the cortes.2 This abolition of illegal impositions was several times confirmed by the same prince. The cortes, in 1393, having made a grant to 1 Marina, Ensayo Hist.-Crit. cap. 158; et, mihi cum bond voluntate vestri feceTeoria de las Cortes, t. ii. p. 387. This ritis, nullum servitium faciatis. is expressed in one of their fueros, or 2 De los con echar nin mandar pagar charters: Liberi et ingenui semper ma- pecho desaforado ninguno, especial nin neatis, reddendo mihi et successoribus general, en toda mi tierra, sin ser llamameis in unoquoque anno in die Pente- dos primeramente & cortes 6 otorgado por costes de unaquaque domo 12 denarios; todos los procuradores que hi venieren. p. G88. 30 RIGHT OF TAXATION. CHAP. IV Henry HI., annexed this condition, that "since they had granted him enough for his present necessities, and even to lay up a part for a future exigency, he should swear before one of the archbishops not to take or demand any money, service, or loan, or anything else, of the cities and towns, nor of individuals belonging to them, on any pretence of necessity, until the three estates of the kingdom should first be duly summoned and assembled in cortes according to ancient usage. And if any such letters requiring money have been written, that they shall be obeyed and not complied with." His son, John II., having violated this constitutional privilege on the allegation of a pressing necessity, the cortes, in 1420, presented a long remonstrance, couched in very respectful but equally firm language, wherein they assert "the good custom, founded in reason and in justice, that the cities and towns of your kingdoms shall not be compelled to pay taxes or requisitions, or other new tribute, unless your highness order it by advice and with the grant of the said cities and towns, and of their deputies for them." And they express their apprehension lest this right should be infringed, because, as they say, "there remains no other privilege or liberty which can be profitable to subjects if this be shaken."2 The king gave them as full satisfaction as they desired that his encroachment should not be drawn into precedent. Some fresh abuses during the unfortunate reign of Henry IV. produced another declaration in equally explicit language, forming part of the sentence awarded by the arbitrators to whom the differences between the king and his people had been referred at Medina del Campo in 1465.8 The catholic kings, as they are eminently called, Ferdinand and Isabella, never violated this Obedecidas 6 non cumplidas. This previlegio ni libertad de que los subditos expression occurs frequently in pro- puedan gozarni aprovechar quebrantado visions made against illegal acts of the el sobre dicho. t. iii. p. 30. crown; and is characteristic of the singu- 3 Declaramos 6 ordenamos, que el lar respect' with which the Spaniards dicho senor rei nin los otros reyes que always thought it right to treat their despues del fueren non echan nin reparsovereign, while they were resisting the tan nin pidan pedidos nin monedas en sus abuses of his authority. reynos, salvo por gran necessidadj 6 sey2 La buena costumbre 6 possession endo primero accordado con los perlados fundada en razon 6 en justicia que las 6 grandes de sus reynos, 6 con los otros cibdades 6 villas de vuestros reinos tenian que i la sazon residierin en su consejo, 6 de no ser mandado coger monedas 6 pe- seyendo para ello llamados los procuradidos nin otro tribute nuevo alguno en dores de las cibdades 6 villas de sus reylos vuestros reinos sin que la vuestra se- nos, que para las tales cosas se suelen 6 Soria lo faga 6 ordene de consejo 6 con acostumbran llamar, 6 seyendo per los otorgamiento de las cibdades 6 villas de dichos procuradores otorgado el dicho los vuestros reinos 6 de sus procuradores pedimento 6 monedas. t. ii. p. 891. en su nombre.... no queda otro SPAIN. POWER OF THE CORTES. 31 part of the constitution; nor did even Charles I., although sometimes refused money by the cortes, attempt to exact it without their consent.1 In the Recopilacion, or code of Castilian law published by Philip II., we read a positive declaration against arbitrary imposition of taxes, which remained unaltered on the face of the statute-book till the present age.2 The law was indeed frequently broken by Philip II.; but the cortes, who retained throughout the sixteenth century a degree of steadiness and courage truly admirable when we consider their political weakness, did not cease to remonstrate with that suspicious tyrant, and recorded their unavailing appeal to the law of Alfonso XI., " 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 Control of form. It was connected with other essential rights cortes over indispensable to its effectual exercise; those of ex- expendit.ure amining 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.4 They refused a subsidy in 1390 because they had already given so much, and, "not knowing how so great a sum had been expended, it would be a great dishonor and mischief to promise any more." In 1406 they stood out a long time, and at length gave only half of what was demanded.6 Charles I. attempted to obtain money in 1527 from the nobility as well as commons. But the former protested that " their obligation was to follow the king in war, wherefore to contribute money 1 Marina has published two letters leyes reales, y que ne se impusiessen from Charles to the city of Toledo, in nuevas rentas sin su asistencia; pues 1642 and 1548, requesting them toinstruct podria v. m. estar satisfecho de que el their deputies to consent to a further reino sirve en las cosas necessarias con grant of money, which they had refused toda lealtad y hasta ahora no se ha proto do without leave of their constituents. veido lo susodicho; y el reino por la t. iii. p. 180 187. obligacion que tiene A pedir A v. m. 2 t. ii. p. 393. guarde la dicha lei, y que no solamente 8 En las cortes de ano de 70 y en las han cessado las necessidades de los subde 76 pedimos a v. m. fuese servide de no ditos y naturales de v. m. pero antes poner nuevos impuestos, rentas, pechos, crecen de cada dia: vuelve. suplicar A ni derechos ni otros tributes particulares v. m. sea servido concederle lo susodicho, ni generales sin junta del reyno en cortes. y que las nuevas rentas pechos y derecomo esti dispuesto por lei del senor rel chos se quiten, y que de aqui adelante Don Alonso, y se signifidc6 v. m. el dano se guarde la dicha lei del senor rei Don grande que con las nuevas rentas habia Alonso, como tan antigua y justa y que rescibido-el reino, suplicando A v. m. tanto tiempo se us6 y guardS. p. 395 fuese servido de mandarle aliviar y des- This petition was in 1579. eargar, y que en lo de adelante se lea 4 Marina, t. ii. p. 40, 406. hiciesse merced de guardar las dichas 6 p. 409. 32 POWER OF THE CORTES. CHAP. IV was totally against their privilege, and for that reason they could not acquiesce in his majesty's request." 1 The commons also refused on this occasion. In 1538, on a similar proposition, the superior and lower nobility (los grandes y caballeros) "begged with all humility that they might never hear any more of that matter." 2 The contributions granted by cortes were assessed and collected by respectable individuals (hombres buenos) of the several towns and villages.8 This repartition, as the French call it, of direct taxes is a matter of the highest importance in those countries where they are imposed by means of a gross assessment 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, granted 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 Ferdinand, 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 object of procuring the crown of Aragon; but the queen first obtained not only a release from her oath by the pope, but the consent of the cortes. They continued to insist upon this appropriation, though ineffectually, under the reign of Charles I.4 The cortes did not consider it beyond the line of their duty, notwithstanding the respectful manner in which they always addressed the sovereign, to remonstrate against profuse expenditure even in his own household. They told Alfonso X. in 1258, in the homely style of that age, that they thought it fitting that the king and his wife should eat at the rate of a hundred and fifty maravedis a day, and n6 more; and that the king should order his attendants to eat more moderately than they did.6 They remonstrated more forcibly against the prodigality of John II. Even in 1559 they spoke with an undaunted Castilian spirit to Philip II.: -" Sir, the expenses of your royal establishment 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, 1 Pero que contribuir 6 la guerra con 2 Marina, t. ii. p. 411. ciertas sumas era totalmente opuesto A 3 Marina, t. ii. p. 398. sus previlegios, 6 asi que no podrian 4 p. 412. acomodarse i lo que s. m. deseaba.- 5 p. 417. p. 411. SPAN. THEIR FORMS. 33 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." 1 The forms of a Castilian cortes were analogous to those of an English parliament in the fourteenth century. Forms of They were summoned by a writ almost exactly co- the cortes. incident in expression with that in use among us.2 The session was opened by a speech from the chancellor or other chief officer of the court. The deputies were invited to colsider certain special business, and commonly to grant money. After the principal affairs were despatched they conferred together, and, having examined the instructions of their respective constituents, drew up a schedule of petitions. These were duly answered one by one; and from the petition and answer, if favorable, laws were 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 I., the crown began to neglect answering the petitions of cortes, or to use unsatisfactory generalities 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 enacting that the king should answer all their petitions before he dissolved the assembly.4 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.5 According to the ancient fundamental constitution of Castile, the king did not legislate for his subjects without Right of their consent. The code of the Visigoths, called cortes in in Spain the Fuero Jusgo, was enacted in public legislation. councils, as were also the laws of the early kings of Leon, which appears by the reciting words of their preambles.6 This 1 Senhor, los'gastos de vuestro real desorden y excessos que hacen en las estado y mesa son muy crescidos, y en- cosas sobredichas. p. 437. tendemos que convernia mucho al bien 2 Marina, t. i. p. 175; t. iii. p. 103. ie estos reinos que v. m. los mandasse 8 t. i. p. 278. moderar, asi para algun remedio de sus 4 p. 801. necessidades, como para que de v. m. to- 6 p. 288-304. men egempl6 totos los grandes y cabal- 6 t. ii. p. 202. The acts of the cortes leros y otros subditos de v. m. en la gran of Leon in 1020 run thus: Omnes ponVOL. II. 3 34 LEGISLATIVE RIGHT CHAP. IV. consent was originally given only by the higher estates, who might be considered, in a large sense, as representing the nation, though not chosen by it; but from the end of the twelfth century by the elected deputies of the commons in cortes. The laws of Alfonso X. in 1258, those of the same prince in 1274, and many others in subsequent times, are declared to be made with the consent (con acuerdo) of the several orders of the kingdom. More commonly, indeed, the preamble of Castilian statutes only recites their advice (consejo); but I do not know that any stress is to be laid on this circumstance. The laws of the Siete Partidas, 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.1 Whether they were in fact received before that time has been a matter controverted among Spanish antiquaries, and upon the question of their legal validity at the time of their promulgation depends an important point in Castilian history, the disputed right of succession between Sancho IV. and the infants of la Cerda; the former claiming under the ancient customary law, the latter under the new dispositions of the Siete Partidas. If the king could not legally change the established laws without consent of his cortes, as seems most probable, the right of representative succession did not exist in favor of his grandchildren, and Sancho IV. cannot be considered as an usurper. It appears, upon the whole, to have been a constitutional principle,.that laws could neither be made nor annulled except in cortes. In 1506 this is claimed by the deputies as an established right.2 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.8 For the kings of Castile had adopted the English tifices et abbates et optimates regni His- publication of these two works, in the panime jussu ipsius regis talia decreta de- former of which he contends for the precrevimus quse firmiter teneantur futuris vious authority of the Siete Partidas, and temporibus. So those of Salamanca, in in favor of the infants of la Cerda. 1178: Ego rex Fernandus inter caetera 2 Los reyes establicieron que cuando quse cum episcopis et abbatibus regni hubiesen de hacer leyes, para que fuesen nostri et quamplurimis aliis religiosis, provechosas 6 sus reynos y cada provincum eomitibus terrarum et principibus cias fuesen proveidas, se llamasen cortes et rectoribus provinciarum, toto posse y procuradores que entendiesen en ellas, tenenda statuimus apud Salamancam. y por esto se establecio lei que no se I Ensayo Hist.-Crit. p. 353; Teoria de hiciesen ni renovasen leyes sino en cortes. las Cortes, t. ii. p. 77. Marina seems to Teoria de las Cortes, t. ii. p. 218. have changed his opinion between the 3 Lo que es fecho por cortes 6 por SPAIN. OF THE CORTES. 35 practice of dispensing with statutes by a non obstante clause in their grants. But the cortes remonstrated more steadily against this abuse than our own parliament, who suffered it to remain in a certain degree till the Revolution. It was several times enacted upon their petition, especially by ad explicit statute of Henry II., that grants and letters-patent dispensing with statutes should not be obeyed.l Nevertheless, John II., trusting to force or the servility of the judges, had the assurance to dispense explicitly with this very law.2 The cortes of Valladolid, in 1442, obtained fresh promises and enactments against such an abuse. Philip I. and Charles I. began to legislate without asking the consent of cortes; this grew much worse under Philip II., and reached its height under his successors, who entirely abolished all constitutional privileges.8 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 1619, and still afterwards, the patriot representatives of Castile continued to lift an unavailing voice against illegal ordinances, though in the form of very humble petition; perhaps the latest testimonies to the expiring liberties of their country.4 The denial of exclusive legislative authority to the crown must, however, be understood to admit the legality of particular ordinances designed to strengthen the king's executive government.6 These, no doubt, like the royal proclamations in England, extended sometimes very far, and subjected the people to a sort of arbitrary coercion 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 consequences of a scanty code and short sessions 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. Of this we find several instances from the middle of the thirayuntamientos que non se pueda disfacer 4 Ha suplicado el reino a v. m. no se por las tales cartas, salvo por ayunta- promulguen nuevas leyes, ni en todo ni mientos 6 cortes. Teoria de las Cortes, en parte las antiguas se alteren, sin que t. ii. p. 215. sea por cortes.... y por ser de tanta 1 p. 215. importancia vuelve el reino a suplicarlo 2 p. 216; t. iii. p. 40. humilmente 6 v. m. p. 220. 8t. ii. p. 218. 6 p. 207. 36 RIGHTS OF THE CORTES. CHAP. IV. teenth century, and the practice continued till the time of John II., who, in 1433, on being requested to swear to the laws then enacted, answered that he intended to maintain them, and consequently no oath was necessary; an evasion in which the cortes seem unaccountably to have acquiesced.1 The guardians of Alfonso XI. not only swore to observe all that had been agreed on at Burgos in 1315, but consented that, if any one of them did not keep his oath, the people should no longer be obliged to regard or obey him as regent.2 It was customary to assemble the cortes of Castile for Otherrights many purposes besides those of granting money of the and concurring in legislation. They were sumcortes. moned in every reign to acknowledge and confirm the succession of the heir apparent; and upon his accession to swear allegiance.8 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.4 And the frequent minorities of Castilian kings, which were unfavorable enough to tranquillity and subordination, served to confirm these parliamentary privileges. The 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."5 A cortes of John II., in 1419, claimed this right of being consulted in all matters of importance, with a warm remonstrance against the alleged violation of so wholesome a law by the reigning prince; who answered, that in weighty matters he had acted, and would continue to act, in conformity to it.6 What should be intended by great and weighty affairs might be not at all agreed 1 Teoria de las Cortes, t. i. p. 306. 4 p. 230. 2 t. iii. p. 62. 6 t. i. p. 31. t.i.p. 33;t.ii.p.24. 6 p. 34. SPAIN. COUNCIL OF CASTILE. 37 upon by the two parties; to each of whose interpretations these words gave pretty full scope. However, the current usage of the monarchy certainly permitted much authority in public deliberations to the cortes. Among other instances, which indeed will continually be found in the common civil histories, the cortes of Ocana, in 1469, remonstrate with Henry IV. for allying himself with England rather than France, and give, as the first reason of complaint, that, " according to the laws of your kingdom, when the kings have anything of great importance in hand, they ought not to undertake it without advice and knowledge of the chief towns and cities of your kingdom." This privilege of general interference was asserted, like other ancient rights, under Charles, whom they strongly urged, in 1548, not to permit his son Philip to depart out of the realm.2 It is hardly necessary to observe, that, in such times, they had little chance of being regarded. The kings of Leon and Castile acted, during the interval of the cortes, by the advice of a smaller council, council of answering, as it seems, almost exactly to the Castile. 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 appear rather of a legislative nature, all grants and charters, are declared to be with the assent of the court (curia), or of the magnats of the palace, or of the chiefs or nobles.8 This privy council was an essential part of all European monarchies; and, though the sovereign might be considered 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 constitutional 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, which it is not necessary to enumerate. It was justly deemed 1 Porque, segunt leyes de nuestros 2 t. iii. p. 183. reynos, cuando los reyes han de facer 8 Cum assensu magnatum palatii: Cum alguna cosa de gran importaucia, non lo consilio curiae mese: Cum consilio et benedeben facer sin consejo 6 sabiduria de las placito omnium principummeorum, nullo cibdades e villas principales de vuestros contradicente nec reclamente. Teoria de reynos. Teoria de las Cortes, t. ii. p. 241. las Cortes, t. iii. p. 325. 38 ADMINISTRATION OF JUSTICE. CHAP. IV. 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 guarantee for the due execution of laws after their own dissolution. Several times, especially in minorities, they even named its members or a part of them; and in the reigns of Henry III. and John II. they obtained the privilege 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 the court during the interval of cortes and watch over the due observance of the laws.l 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 ihcluded the whole executive government, was distributed with considerable accuracy into what might be despatched by the council alone, under their own seals and signatures, and what required the royal seal.2 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.8 But the council did not exercise any judicial authority, if we may believe the well-informed author from whom I have learned these particulars; 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.4 Civil and criminal justice was administered, in the first Adminis- instance, by the alcaldes, or municipal judges of tration of towns; elected within themselves, originally, by justice. 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 feudal system was more thoroughly established, as incident to his own territorial superiority The kings, however, began in the thirteenth century to appoint judges of their own, called corregidores, a name which seems to express concurrent jurisdiction with the regidores, or ordinary magistrates.6 The cortes frequently remonstrat1 Teoria de las Cortes, t. ii. p. 346. 4 t. ii. p. 375, 379. 2 p. 54 5 Alfonso X. says, Ningun ome sea osado p. 360, 362, 372. juzgar pleytos, se no fuere alcalde puesto SPAIN. ACTIONS OF CASTILIAN KINGS. 39 ed against this encroachment. Alfonso XI. consented to withdraw his judges from all corporations by which he had not been requested to appoint them.1 Some attempts to interfere with the municipal authorities of Toledo produced serious disturbances under Henry III. and John II.2 Even where the king appointed magistrates at a city's request, he was bound to select them from among the citizens.8 From this immediate jurisdiction an appeal lay to the adelantado or governor of the province, and from thence to the tribunal of royal alcaldes.4 The latter, however, could not take cognizance of any cause depending before the ordinary judges; a contrast to the practice of Aragon, where the justiciary's right of evocation (juris firma) was considered as a principal safeguard of public liberty.5 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.6 They have continued to the present day as a criminal tribunal; but civil appeals were transferred by the ordinances of Toro in 1371 to a new court, styled the king's audience, which, though deprived under Ferdinand and his successors of part of its jurisdiction, still remains one of the principal judicatures in Castile.7 No people in a half-civilized state of society have a full practical security against particular acts of arbi- iolent trary power. They were more common perhaps actions of in Castile than in any other European monarchy someakigs iprofessed to be free. Laws indeed were not ag to protect men's lives and liberties, as well as their,perties. Ferdinand IV., in 1299, agreed to a petition that "justice shall be executed impartially according to law and right; and that no one shall be put to death or imprisoned, or deprived of his possessions, without trial, and that this be better observed than heretofore." 8 He renewed the same law in 1307. Nevertheless, the most remarkable circumstance of this monarch's history was a violation of so sacred pol el rey. Id. fol. 27. This seems an many other passages, will not confuse encroachment on the municipal mag- the attentive reader. istrates. 8 Que mandase facer la justicia en 1 Teoria de las Cortes, t. ii. p. 251. aquellos que la merecen comunalmente 2 p. 255. Mariana, 1. xx. c. 13. con fuero 6 con derecho 6 los homes que 8 p. 255. non sean muertos nin presos nin tomados 4 p. 266. lo que han sin ser oidos por derecho 6 5 p. 260. por fuero de aquel logar do acaesciere, 6 p. 287. 304. 6 que sea guardado mejor que se guard6 7 Teoria de las Cortes, t. ii. p. 292-302. fasta aqui. Marina, Ensayo Hist.-Critico, The use of the present tense, in this and p. 148 40 CONFEDERACIES OF NOBILITY. CHAP. IV, and apparantly so well-established a law. Two gentlemen having been accused of murder, Ferdinand, without waiting for any process, ordered them to instant execution. They summoned him with their last words to appear before the tribunal of God in thirty days; and his death within the time, which has given him the surname of the Summoned, might, we may hope, deter succeeding sovereigns from iniquity so flagrant. But from the practice of causing their enemies to be assas — sinated, neither law nor conscience could withhold them. Alfonso XI. was more than once guilty of this crime. Yet he too passed an ordinance in 1325 that no warrant should issue for putting any one to death, or seizing his property, till he should be duly tried by course of law. Henry II. repeats the same law in very explicit language.1 But the civil history of Spain displays several violations of it. An extraordinary prerogative of committing murder appears to have been admitted in early times by several nations who did not acknowledge unlimited power in their sovereign.2 Before any regular police was established, a powerful criminal might have been secure from all punishment, but for a notion, as barbarous as any which it served to counteract, that he could be lawfully killed by the personal mandate of the king. And the frequent attendance of sovereigns in their courts of judicatlre might lead men not accustomed to consider the indispensable necessity of legal forms to confound an act of assassination with the execution of justice. Though it is very improbable that the nobility wf oede considered as essential members of the cortf Confedsacias of the certainly attended in smaller numbers than nobility. should expect to find from the great legislative and deliberative authority of that assembly. This arose chie'v from the lawless spirit of that martial aristocracy which placed less confidence in the constituti,.al methods of resisting arbitrary encroachment than in its own armed combinations.8 Such confederacies to obtain redress of grievances by force, of which there were five or six remarkable instances, were called Hermandad (brotherhood or union), and, though not 1 Que non mandemos matar nin pren- 2 Si quis hominem per jussionem regis der nin lisiar nin despechar nin tomar a vel ducis sui occiderit, non requiratur alguno ninguna cosa de lo suyo, sin ser ei, neO sit faidosus, quia jussio domini sui ante llamado 6 oido 6 vencido por fuero fuit, et non potuit contradicerejussionem. 6 por derecho, por querella nin por que- Leges Bajuvariorum, tit. ii. in P rellas que i nos fuesen dadas, segunt que Capitularibus. esto esta ordenado por el rei don Alonso 3 Teoria de las Cortes, t. ii. p. 465. nuestro padre. Teoria de las Cortes, t. ii. p. 287. SPAIN. CONFEDERACIES OF NOBILITY. 41 so explicitly sanctioned as they were by the celebrated Privilege of Union in Aragon, found countenance in a law of Alfonso X., which cannot be deemed so much to have voluntarily emanated from that prince as to be a record of original rights possessed by the Castilian nobility. "The duty of subjects towards their king," he says, "enjoins them not to permit him knowingly to endanger his salvation, nor to incur dishonor and inconvenience in his person or family, nor to produce mischief to his kingdom. And this may be fulfilled in two ways: one by good advice, showing him the reason wherefore he ought not to act thus; the other by deeds, seeking means to prevent his going on to his own ruin, and putting a stop to those who give him ill counsel: forasmuch as his errors are of worse consequence than those of other men, it is the bounden duty of subjects to prevent his committing them.1 To this law the insurgents appealed in their coalition against Alvaro de Luna; and indeed we must confess that, however just and admirable the principles which it breathes, so general a license of rebellion was not likely to preserve the tranquillity of a kingdom. The depuies of towns in a cortes of 1445 petitioned the king to declare that no construction should be put on this law inconsistent with the obedience of subjects towards their sovereign: a request to which of course he willingly acceded. Castile, it will be apparent, bore a closer analogy to Englsj1 i;n its form of civil polity than France or even Aragon. whicl,,frequent disorders of its government and a barbarwantiT: of manners rendered violations of law much more Pr^nual and flagrant than they were in England under the Plantagenet dynasty. And besides these practical mischiefs, thrre were two essential defects in the constitution of Castile, til'ugh which perhaps it was ultimately subverted. It wanted those two brilliarts' 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'." tral form of government, and was animated with a noble spirit for its defence. Spain, in her late memorable though 1 Ensayo Hist.-Critico, p. 812. 42 AFFAIRS OF ARAGON. CHAP. IV. short resuscitation, might well have gone back to her ancient institutions, and perfected a scheme of policy which the great example of England would have shown to be well adapted to the security of freedom. What she did, or rather attempted, instead, I need not recall. May her next effort be more wisely planned, and more happily terminated! Though the kingdom of Aragon was very inferior in exAffairs of tent to that of Castile, yet the advantages of a Aragon. better form of government and wiser sovereigns, with those of industry and commerce along a line of seacoast, rendered it almost equal 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 revolutions which ended in establishing the house of Trastamare, Aragon was not indeed at peace, nor altogether well governed; but her political consequence rose in the eyes of Europe 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 perfidiousness 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 difficult: the conquest of Sardinia. That island, long accustomed to independence, cost an incredible expense of blood and treasure to the kings of Aragon during the whole fourteenth century. It was not fully subdued till the commencement of the next, under the reign of Martin. At the death of Martin king of Aragon, in 1410, a memDisputed orable question arose as to the right of succession. succession Though Petronilla, daughter of Ramiro II., had after the death of reigned in her own right from 1137 to 1172, an Martin. opinion seems to have gained ground from the thirteenth century that females could not inherit the crown of Aragon. Peter IV. had excited a civil war by attempting to settle the succession upon his daughter, to the exclusion of his next brother. The birth of a son about the same time suspended the ultimate decision of this question; but it was tacitly understood that what is called the Salic law ought to 1 The first edition of this work was published in 1818. SPAIN. DISPUTED SUCCESSION. 43 prevail.1 Accordingly, on the death of John I. in 1395, 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 Pyrenees. 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 II., 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 representative title; the duke of Calabria, son of Violante, younger daughter of John I. (the countess of Foix being childless); Frederic 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.2 The count of 1 Zurita, t. ii. f. 188. It was pretended that women were excluded from the crown in England as well as France: and this analogy seems to have had some influence in determining the Aragonese to adopt a Salic law. a The subjoined pedigree will show more clearly the respective titles of the competitors:JAMES II. died 1327. ALFONSO IV. d. 1336. D. of Gandla. I l i PETER IV. d. 1337. James D. of Gandia. C. of Urgel. Eleanor Q. of Castile. JOHN I. d. 1395. MARTIN, Peter l|_______ d. 1410. C. of Urgel. Henry IM. Ferdinand. C. of Urgel. K. of Castile. Martin l jl[ |I K. of Sicily, 1409. i Joanna Violante John II. Countess Q. of Naples. K. of Castile. of Foix. Frederic C. of Luna. Louis D. of Calabria. 44 DISPUTED SUCCESSION. CHAP. IV. Urgel was favored in general by the 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 justiciary and other leading Aragonese were determined not to suffer this great constitutional question to be decided by an appeal 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, Antonio de Luna, committed an extraordinary outrage, the assassination of the archbishop of Saragosa, which alienated the minds of good citizens from his cause. On the other hand, neither the duke of Gandia, who was very old,1 nor the count of Luna, seemed fit to succeed.' The party of Ferdinand, therefore, 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 pretensions 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 before them, and heard them by counsel. One of these, Frederic of Luna, being ill defended, the court took charge of his interests, and named other advocates to maintain them. A month was passed in hearing arguments; a second was allotted to considering them; and at the expiration of the prescribed time it was announced to the people, by the mouth of St. Vincent Ferrier, that Ferdinand of Castile had ascended the throne.2 1 This duke of Gandia died during the vote. Zurita, t. iii. f. 71. It is curious interregnum. His son, though not so enough that John king of Castile was alobjectionable on the score of age, seemed together disregarded; though his claim to have a worse claim; yet he became a was at least as plausible as that of his competitor., uncle Ferdinand. Indeed upon the prin2 Biancse Commentaria, in Schotti His- ciples of inheritance to which we are acpania Illustrata, t. ii. Zurita, t. iii. f. customed, Louis duke of Calabria had a 1-74. Vincent Ferrier was the most dis- prior right to Ferdinand, admitting the tinguished churchman of his time in rule which it was necessary for both of Spain. His influence, as one of the nine them to establish; namely, that a right of judges, is said to have been very instru- succession might be transmitted through mental in procuring the crown for Ferdi- females, which females could not personnand. Five others voted the same way; ally enjoy. This, as is well known, had one for the count of Urgel; one doubt- been advanced in the preceding age by fully between the count of Urgel and Edward III. as the foundation of his duke of G(andia; the ninth declined to claim to the crown of France. SPAIN. KINGS OF ARAGON. 46 In this decision it is impossible not to suspect that the judges were swayed rather by politic considera- Decisionin tions than'a strict sense of hereditary right. It erdifud was, therefore, by no means universally popular, of Castile. especially in Catalonia, of which principality the AD. 1412. 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 the lawful succession had excited. Ferdinand however was well received in Aragon. The cortes generously recommended the count of Urgel to his favor, on account of the great expenses he had incurred in prosecuting his claim. But Urgel did not wait the effect of this recommendation. Unwisely attempting a rebellion with very inadequate means, he lost his estates, and was thrown for life into prison. Ferdinand's successor was his son, Alfonso V., more distinguished in the his- Alfonso v. tory of Italy than of Spain. For all the latter A.D.1410. years of his life he never quitted the kingdom that he had acquired by his arms; and, enchanted by the delicious air of Naples, intrusted the government of his patrimonial territories to the care of a brother and an heir. John II., JohnII. upon whom they devolved by the death of Alfonso A.D. 1468. without legitimate progeny, had been engaged during his youth in the turbulent revolutions of Castile, as the head of a strong party that opposed the domination of Alvaro de Luna. By marriage with the heiress of Navarre he was entitled, according to the usage of those times, to assume the title of king, and administration of government, during her life. But his ambitious retention of power still longer produced events which are the chief stain on his memory. Charles prince of Viana was, by the constitution of Navarre, entitled to succeed his mother. She had requested him in her testament not to assume the government without his father's consent. That consent was always withheld. The prince raised what we ought not A 442 to call a rebellion; but was made prisoner, and remained for some time in captivity. John's ill disposition towards his son was exasperated by a step-mother, who scarcely disguised her intention of placing her own child on the throne of Aragon at the expense of the eldest-born. After a life of perpetual oppression, chiefly passed in exile or captivity, the prince of Viana died in Catalonia, at a moment when that province 46 CONSTITUTION OF ARAGON. CHAP. IV. was in open insurrection upon his account. Though it hardly A 141 seems that the Catalans had any more general provocations, they persevered for more than ten years with inveterate obstinacy in their rebellion, offering the sovereignty first to a prince of Portugal, and afterwards to Regnier duke of Anjou, who was destined to pass his life in unsuccessful competition for kingdoms. The king of Aragon behaved with great clemency towards these insurgents on their final submission. It is consonant to the principle of this work to pass lightly over the common details of history, in order to fix the reader's Constitu- attention more fully on subjects of philosophical intion of quiry. Perhaps in no European monarchy except Aragon. our own was the form of government more interesting than in Aragon, as a fortunate temperament of law and justice with the royal authority. So far as anything Originally a can be pronounced of its earlier period before the sort of regal capture of Saragosa in 1118, it was a kind of aristocracy. regal aristocracy, where a small number of powerful barons 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.l These were the ricoshombres or barons, the first of the ricos- order of the state. Among these the kings of hombres 0r Aragon, in subsequent times, as they extended their dominions, shared the conquered territory in grants of honors on a feudal tenure.2 For this system was fully established in the kingdom of Aragon. A ricohombre, as we read in Vitalis bishop of Huesca, about the middle of the thirteenth century,8 must hold of the king an honor or barony capable of supporting more than three knights; and 1 Alfonso III. complained that his bar- tenian del rey, eran obligados de seguir ons wanted to bring back old times, al rey, si yva en persona i la guerra, y quando havia en el reyno tantos reyes residir en ella tres meses en cadaun ano. como ricos hombres. Biancae Commen- Zurita, t. i. fol. 43. (Saragosa, 1610.) A taria, p. 787. The form of election sup- fief was usually called in Aragon an posed to have been used by these bold honor, que en Castilla llamavan tierra, y barons is well known. "We, who are en el principado de Cataluna feudo. fol. as good as you, choose you for our king 46. and lord, provided that you observe our 3 I do not know whether this work of laws and privileges; and if not, not." Vitalis has been printed; but there are But I do not much believe the authen- large extracts from it in Blancas's history, ticity of this form of words. See Rob- and also in Du Cange, under the words ertson's Charles V. vol. i. note 31. It Infancia, Mesnadarius, &c. Several illusis, however, sufficiently agreeable to the trations of these military tenures may be spirit of the old government. found in the Fueros de Aragon, especial 2 Los ricos hombres, por los feudos que ly lib. 7. SPAIN. CONSTITUTION OF ARAGON. 47 this he was bound to distribute among his vassals in military fiefs. Once in the year he might be summoned with his feudataries to serve the sovereign for two months (Zurita says three); 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 reserved to the crown. According to Vitalis, the king could divest these ricoshombres of their honors at pleasure, after which they fell into the class of mesnadaries, or mere tenants in chief. But if this were constitutional in the reign of James I., which Blancas denies, it was not long permitted by that high-spirited aristocracy. By the General Privilege or Charter of Peter III. it is'declared that no barony can be taken away without a just cause and legal sentence of the justiciary and council of barons.1 And the same protection was extended to the vassals of the ricoshombres. Below these superior nobles were the mesnadaries, corresponding to our mere tenants in chief, holding Lower estates not baronial immediately from the crown; nobility. and the military vassals of the high nobility, the knights and infanzones; a word which may be rendered by gentlemen. These had considerable 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 addi- Burgesses tional severity.2 The ignoble classes were, as in and other countries, the burgesses of towns, and the peasantry. villeins or peasantry. The peasantry seem to have been subject to territorial servitude, as in France and England. Vitalis says that some villeins were originally so unprotected that, as he expresses it, they might be divided into pieces by sword among the sons of their masters, till they were provoked to an insurrection, which ended in establishing certain stipulations, whence they obtained the denomination of villeins de parada, or of convention.8 Though from the twelfth century the principle Liberties of the of hereditary succession to the throne superseded, Argonese in Aragon as well as Castile, the original right kingdom. 1 Bianoe Comm. p. 730. 2 p. 732. 8 Biancse Comm. p. 729. 48 PRIVILEGES OF ARAGON. CHAP. IV. of choosing a sovereign within 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 Saragosa, to observe the laws and liberties of the realm.1 Alfonso III., in 1285, being in France at the time of his father's death, named himself king in addressing the states, who immediately remonstrated on this premature assumption of his title, and obtained an apology.2 Thus, too, Martin, having been called to the crown of Aragon by the cortes in 1395, was specially required not to exercise any authority before his coronation.8 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 thereof, the folk would go hence to live and abide in other realms and lands more fruitful." 4 This high spirit of freedom had long animated the Aragonese. After several contests with the crown in the reign of James I., not to go back General to earlier times, they compelled Peter III. in 1283 Privilege to grant a law, called the General Privilege, the of 1283. 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 arbitrary 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 foreigners or Jews to judicial offices; trials of accused persons in places beyond the kingdom, the use of torture, 1 Zurita, Anales de Aragon, t. i. fol. 104, Aragon was, in fact, a poor country, t. iii. fol. 76. barren and ill-peopled. The kings were 2 Biancse Comm. p. 661. They ac- forced to go to Catalonia for money, and knowledged, at the same time, that he indeed were little able to maintain exwas their natural lord, and entitled to pensive contests. The wars of Peter IV. reign as lawful heir'to his father-so in Sardinia, and of Alfonso V. with oddly were the hereditary and elective Genoa and Naples, impoverished their titles jumbled together. Zurita, t. i. people. A hearth-tax having been imfol. 303. posed in 1404, it was found that there 3 Zurita, t. ii. fol. 424. were 42,683 houses in Aragon, which, 4 Siempre havemos oydo dezir antiga- according to most calculations, will give ment, 6 se troba por esperiencia, que at- less than 300,000 inhabitants. In 1429, tendida la grand sterilidad de aquesta a similar tax being laid on, it is said that tierra, 6 pobreza de aqueste regno, si the number of houses was diminished in non fues por las libertades de aquel, se consequence of war. Zurita, t. iii. fol. 189. yrian A bivir, y habitar las gentes a otros It contains at present between 600,000 regnos, 6 tierras mas frutieras. p. 571. and 700,000 inhabitants. SPAIN. REVOLT AGAINST PETER IV. 49 except in charges of falsifying the coin, and the bribery of judges. These are claimed as the ancient liberties of their country. "Absolute power (mero imperio e mixto), it is declared, never was the constitution of Aragon, nor of Valencia, nor yet of Ribagorga, nor shall there be in time to come any innovation made; but only the law, custom, and privilege which has been anciently used in the aforesaid kingdoms.l The concessions extorted by our ancestors from John, Henry III., and Edward I., were secured by the Privilege only guarantee those times could afford, the deter- of Union. mination of the barons to enforce them by armed confederacies. These, however, were formed according to emergencies, and, except in the famous commission of twenty-five conservators of Magna Charta, in the last year of John, were certainly unwarranted by law. But the Aragonese established a positive right of maintaining their liberties by arms. This was contained in the Privilege of Union granted by Alfonsq III. in 1287, after a violent conflict with his subjects; but which was afterwards so completely abolished, and even eradicated from the records of the kingdom, that its precise words have never been recovered.2 According to Zurita, it consisted of two articles: first, that in the case of the king's proceeding forcibly against any member of the union without previous sentence of the justiciary, the rest should be absolved from -their allegiance; secondly, that he should hold cortes everyyear in Saragosa.8 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 IV. in 1347, rather on account of his attempt to settle the crown upon his daughter than of any specific public grievances, the nobles had recours to the Union, that last voice, says Blancas, of an Revolt almost expiring state, full of weight and dignity, against to chastise the presumption of kings.4 They as- Peter IV. 1 Fueros de Aragon, fol. 9; Zurita, t. i. 8 Zurita, t. i. fol. 322. fol. 265. 4 Priscam illam Unionis, quasi mo 2 Blancas says that he had discovered rientis reipublicae extremam vocem, auca copy of the Privilege of Union in the toritatis et gravitatis pleuam, regum inarchives of the see of Tarragona, and solentice apertum vindicem excitarunt, would gladly have published it, but for summS ac singulari bonorum omnium his deference to the wisdom of former consensione. p. 669. It is remarkable ages, which had studiously endeavored that such strong language should have to destroy all recollection of that dan- been tolerated under Philip II. gerous law. p. 662. VOL. II. 4 50 PRIVILEGE OF UNION ABOLISHED. CHAP. IV. sembled at Saragosa, and used a remarkable seal for all their public instruments, an engraving from which may be seen in the historian I have just quoted. It represents the king sitting on his throne, with the confederates kneeling in a suppliant attitude around, to denote their loyalty and unwillingness to offend. But in the background tents and lines of spears 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 they were waging war reminds us of the language held out by our Long Parliament before the Presbyterian party was overthrown. And although it has been lightly censured as inconsistent and hypocritical, this tone is the safest that men can adopt, who, deeming themselves under the necessity of withstanding the reigning monarch, are anxious to avoid a change of dynasty, or subversion of their constitution. These confederates were defeated by the king at Epila in 1348.1 But his prudence and the remaining strength of his opponents inducing him to pursue a moderate course, there ensued a more legitimate and permanent balance of the constitution from this victory of the royalists. The Privilege Privilege of Union was abrogated, Peter himself of Union cutting to pieceswith his sword the original instruabolished. ment. But in return many excellent laws for the provisions security of the subject were enacted;2 and their instituted preservation was intrusted to the greatest officer of the kingdom, the justiciary, whose authority and preeminence may in a great degree be dated from this period.8 That watchfulness over public liberty, which originally belonged to the aristocracy 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 civil magistrate, accustomed to legal rules and responsible for his actions, whose office and func1 Zurita observes that the battle of from thence the name of Union was, by Epila was the last fought in defence of common consent, proscribed. t. ii. fol. public liberty, for which it was held law- 226. Blancas also remarks that nothing ful of old to take up arms, and resist the could have turned out more advantageous king, by virtue of the Privileges of Union. to the Aragonese than their ill fortune at For the authority of the justiciary being Epila. afterwards established, the former con- 2 Fueros de Aragon. De iis, quse Dotentions and wars came to an end; means minus rex. fol. 14, et alibi passim. being found to put the weak on a level 3 Bianc. Comm. p. 671, 811; Zurita, with the powerful, in which consists the t. ii. fol. 229. peace and tranquillity of all states; and SPAIN. OFFICE OF JUSTICIARY. 5 tions are the most pleasing feature in the constitutional history of Aragon. The justiza or justiciary of Aragon has been treated by some writers as a sort of anomalous magistrate, ffice of created originally as an intermediate power be-justiciary. tween the king and people, to watch over the exercise of royal authority. But I do not perceive that his functions were, in any essential respect, different from those of the chief justice of England, divided, from the time of Edward I., among the judges of the King's Bench. We should undervalue our own constitution by supposing that there did not reside in that court as perfect an authority to redress the subject's injuries as was possessed by the Aragonese magistrate. In the practical exercise, indeed, of this power, there was an abundant difference. 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 Saragosa in 1118, when the series of magistrates commences.1 But for a great length of time they do not appear to have been particularly important; the judicial authority residing in the council of ricoshombres, whose suffrages the justiciary collected, in order to pronounce their sentence rather than his own. A passage in Vitalis bishop of Huesca, whom I have already mentioned, shows this to have been the practice during the reign of James I.2 Gradually, as notions of liberty became more definite, and laws more numerous, the reverence paid to their permanent interpreter grew stronger, and there was fortunately a succession of prudent and just men in that high office, through whom it acquired dignity and stable influence. Soon after the accession of James II., on 1 Biancae Comment. p. 638. ing of Vitalis, his testimony seems to be 2 Id. p. 772. Zurita indeed refers the beyond dispute. By the General Privijusticiary's preeminence to an earlier lege of 1283, the justiciary was to advise date, namely, the reign of Peter II., who with the ricoshombres, in all cases where took away a great part of the local juris- the king was a party against any of his dictions of the ricoshombres. t.i. fol. 102. subjects. Zurita, f. 281. See also f. But if I do not misunderstand the mean- 180. b2 PROCESSES OF CHAP. IV. some dissensions arising between the king and his barons, he called in the justiciary as a mediator whose sentence, says Blancas, all obeyed.1 At a subsequent time in the same reign the military orders, pretending that some of their privileges were violated, raised a confederacy or union against the king. James offered to refer the dispute to the justiciary, Ximenes Salanova, a man of eminent legal knowledge. The knights resisted his jurisdiction, alleging the question to be of spiritual cognizance. He decided it, however, against them in full cortes at Saragosa, annulled their league, and sentenced the leaders to punishment.2 It was adjudged also that no appeal could lie to the spiritual court from a sentence of the justiciary passed with assent of the cortes. James II. is said to have frequently sued his subjects in the justiciary's court, to show his regard for legal measures; and during the reign of this good prince its authority became more established.8 Yet it was not perhaps looked upon as fully equal to maintain public liberty against the crown, till in the cortes of 1348, 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 arising in their courts, which he was to certify within eight days. By subsequent statutes of the same reign it was made penal for any one to obtain letters from the king, impeding the execution of the justiza's process, and they were declared null. Inferior courts were forbidden to proceed in any business after his prohibition.4 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. Processes of These are the processes of jurisfirma, or firma del anurfirman derecho, and of manifestation. The former bears festation. some analogy to the writs of pone and certiorari 1 Zurita, p. 663. surname of Just, el Justiciero, by his fair 2Zurita, t. i. f. 403; t. ii. f. 34; Bian. dealings towards his subjects. Zurita p. 666. The assent of the cortes seems t. ii. fol. 82. El Justiciero properly deto render this in the nature of a legis- notes his exercise of civil and criminal lative, rather than a judicial proceeding; justice. but it is difficult to pronounce anything 4 Fueros de Aragon: Quod in dubiis about a transaction so remote in time, noncrassis. (A.D. 1348.) Quod impetrans and in a foreign country, the native his- (1372), &c. Zurita, t. ii. fol. 229. Bianc torians writing rather concisely. p. 671 and 811. Bianc. p. 663. James acquired the SPAIN. JURISFIRMA AND MANIFESTATION. 5. in England, through which the Court of King's Bench exercises its right of withdrawing a suit from the jurisdiction of inferior tribunals. But the Aragonese jurisfirma 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 from issuing against the person who applied for its benefit, or any molestation from being offered to him; so that, as Blancas expresses it, when we have entered into a recognizance (firme et graviter asseveremus) before the justiciary of Aragon to abide the decision of law, our fortunes shall be protected, by the interposition of his prohibition, from the intolerable iniquity of the royal judges.1 The process termed manifestation afforded as ample security for personal liberty as that of jurisfirma did for property. "To manifest any one," says the writer so often quoted, " 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 manifestation."2 The power of this 1 p. 751. Fueros de Aragon, f. 137. festationibus personarum. Independently 2 Est apud nos manifestare, reum of this right of manifestation by writ of subito sumere. atque e regiis manibus the justiciary, there are several statutes extorquere, ne qua ipsi contra jus vis in- in the Fueros against illegal detention, or feratur. Non quod tune reus judicio unnecessary severity towards prisoners, liberetur; nihilominus tamen, ut loqui- (De Custodia reorum, f. 163.) No judge mur, de meritis causse ad plenum cog- could proceed secretly in a criminal pronoscitur. Sed quod deinceps manifesto cess; an indispensable safeguard to pubteneatur, quasi antea celatus extitisset; lie liberty, and one of the most salutary, necesseque deinde sit de ipsius culpa, as well as most ancient, provisions in our non impetu et cum furore, sed sedatis own constitution. (De judiciis.) Torprorsus animis, et juxta constitutas leges ture was abolished, except in cases of judicari. Ex eo autem, quod hujusmodi coining false money, and then only in judicium manifesto deprehensum, omni- respect of vagabonds. (General Privibus jam patere debeat. Manifestationis lege of 1283.) sibi nomen arripuit. p. 675. Zurita has explained the two processes Ipsius Manifestationis potestas tam of jurisfirma and manifestation so persolida est et repentina, ut homini jam spicuously, that, as the subject is very collum in laqueum inserenti subveniat. interesting,and rather out of the common Illius enim praesidio, damnatus, dum per way, I shall both quote and translate the leges licet, quasi experiendi juris gratia, passage. Con firmar de derecho, que es de manibus judicum confestim extor- dar caution i estar a justicia, se conseden quetur, et in carcerem ducitur ad id aedi- literas inhibitorias por el justicia de ficatum, ibidemque asservatur tamdiu, Aragon, para que no puedan sur presos, quamdiu jurene, an injuril, quid in ea ni privados, ni despojados de su possescausa factum fuerit, judicatur. Prop-' sion, hasta que judicialmente se conozca, terea career hic vulgari lingua, la carcel y declare sobre la pretension, y justicia de de los manifestados nuncupatur. p. 751. las partes, y parezca por processo legitimo, Fueros de Aragon, fol. 60. De Mani- que se deve revocar la tal inhibition. 54 PROCESSES OF CHAP. IV. writ (if I may apply our term) was such, as he elsewhere asserts, that it would rescue a man whose 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 reInstanees main a dead letter in the law of Aragon appear of their in the two historians, Blancas and Zurita, whose application. noble attachment to liberties, of which they had either witnessed or might foretell the extinction, continually;lisplays itself. I cannot help illustrating this subject by tw(& remarkable instances. The heir apparent of the kingdom of Aragon had a constitutional right to the lieutenancy or regency during the sovereign's absence from the realm. The title and office indeed were permanent, though the functions must of course have been superseded 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 the kingdom, there were pretty frequent occasions for this anticipated reign of the eldest prince. Such a regulation was not likely to diminish the mutual and almost inevitable jealousies between kings and their heirs apparent, which have so often disturbed the tranquillity of a court and a nation. Peter IV. removed his eldest son, afterwards John I., from the lieutenancy of the kingdom. The Estafue la suprema y principal autoridad inhibiting all persons to arrest the party, del Justicia de Aragond esde que este or deprive him of his possession, until magistrado tuvo origen, y lo que llama the matter shall be judicially inquired manifestation; porque assi como la firma into, and it shall appear that such inhide derecho por privilegio general del bition ought to be revoked. This proreyno impide, que no puede ninguno ser cess and that which is called manifestapreso, 6 agraviado contra razon y jus- tion have been the chief powers of the ticia, de la misma manera la manifesta- justiciary, ever since the commencement cion, que es otro privilegio, y remedia of that magistracy. And as the firma de muy principal, tiene fuerca, quando al- derecho by the general privilege of the guno es preso sin preceder processo le- realm secures every man from being argitimo, 6 quando lo prenden de hecho sin rested or molested against reason and orden de justici&; y en estos casos solo justice, so the manifestation, which is el Justicia de Aragon, quando se tiene another principal and remedial right recurso al el, se interpone, manifestando takes place when any one is actually aril preso, que es tomarlo a su mano, de rested without lawful process; and in poder de qualquiera juez, aunque sea el such cases only the Justiciary of Aragon, mas supremo; y es obligado el Justicia when recourse is had to him, interposes de Aragon, y sus lugartenientes de pro- by manifesting the person arrested, that veer la manifestacion en el mismo in- is, by taking him into his own hands, out stante, que les es pedida sin preceder of the power of any judge, however high informacion; y basta que se pida por in authority; and this manifestation the qualquiere persona que se diga procura- justiciary, or his deputies in his absence, dor del que quiere que lo tengan por are bound to issue at the same instant it manifesto. t. ii. fol. 386. "Upon a is demanded, without further inquiry; firma de derecho, which is to give se- and it may be demanded by any one as curity for abiding the decision of the law, attorney of the party requiring to be the Justiciary of Aragon issues letters manifested." SPAIN. JURISFIRMA AND MANIFESTATION. 55 prince entered into a firma del derecho before the justiciary, Dominic de Cerda, who, pronouncing in his favor, enjoined the king to replace his 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.1 There are indeed no private persons who have so strong an interest in maintaining a free constitution and the civil liberties 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 interposed against his power. This king had sent some citizens of Saragosa to prison without form of law. They applied to Juan de Cerda, the justiciary, for a manifestation. He issued his writ accordingly; nor, says Blancas, could he do otherwise without being subject to a heavy fine. The king, pretending that the justiciary was partial, named one of his own judges, the vice-chancellor, as coadjutor. This raised a constitutional question, whether, on suspicion of partiality, a coadjutor to the justiciary 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 coadjutor. He then repaired to the palace. Here the vice-chancellor, 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 deference 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 assistance 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, dismissed with civility. The king was 1 Zurita, ubi supra. Blancas, p. 673. b6 RESPONSIBILITY OF JUSTICIARY. CHAP. IV probably misled throughout this transaction, which I have thought fit to draw from obscurity, not only in order to illustrate the privilege of manifestation, but as exhibiting an instance of judicial firmness and integrity, to which, in the fourteenth century, no country perhaps in Europe could offer a parallel.1 Before the cortes of 1348 it seems as if the justiciary Office of might have been displaced at the king's pleasure. justiciary From that time he held his station for life. But held for lifein order to evade this law,'the king sometimes exacted a promise to resign upon request. Ximenes Cerdan, the justiciary in 1420, having refused to fulfil this engagement, -Alfonso V. gave notice to all his subjects not to obey him, and, notwithstanding the alarm which this encroachment created, eventually succeeded in compelling him to quit his office. In 1439 Alfonso insisted with still greater severity upon the execution of a promise to resign made by another justiciary, detaining him in prison until his death. But the cortes of 1442 proposed a law, to which the king reluctantly acceded, that the justiciary should not be compellable to resign his office on account of any previous engagement he might have made.2 But lest these high powers, imparted for the prevention sponsi- of abuses, should themselves be abused, the justibility of this ciary was responsible, in case of an unjust senmagistrate. tence, to the extent of the injury inflicted; and was also subjected, by a statute of 1390, to a court of inquiry, composed of four persons chosen by the king out of eight named by the cortes; whose office appears to have been that of examining and reporting to the four estates in cortes; by whom he was ultimately to be acquitted or condemned. This superintendence of the cortes, however, being thought dilatory and inconvenient, a court of seventeen persons was appointed in 1461 to hear complaints against the justiciary. Some alterations were afterwards made in this tribunal.4 The justiciary was always a knight, chosen from the second 1 Biancae Commentar. ubi supra. Zu- tiza of Aragon had possessed much more rita relates the story, but not so fully. unlimited powers than ought to oe in2 Fueros de Aragon, fol. 22; Zurita, t. trusted to any single magistrate. The iii. fol. 140, 255, 272; Bianc. Comment. Court of King's Bench in England, bep. 701. sides its consisting of four coordinate 8 Fueros de Aragon, fol. 25. judges, is checked by the appellantjuris4 Blancas; Zurita, t. iii. fol. 321; t. iv. dictions of the Exchequer Chamber and f. 103. These regulations were very ac- House of Lords, and still more imporceptable to the nation. In fact, the jus- tautly by the rights of juries. SPAIN. RIGHTS OF LEGISLATION, ETC. 57 order of nobility, the barons not being liable to personal punishment. He administered the coronation oath to the king; and in the cortes of Aragon the justiciary acted as a sort of royal commissioner, opening or proroguing the assembly by the king's direction. No laws could be enacted or repealed, nor any tax imposed, without the consent of the estates duly assem- Rights of legislation bled.1 Even as early as the reign of Peter II., in latin 1205, that prince having attempted to impose a taxation. general tallage, the nobility and commons united for the preservation of their franchises; and the tax was afterwards granted in part by the cortes.2 It may easily be supposed that the Aragonese were not behind other nations in statutes to secure these privileges, which upon the whole appear to have been more respected than in any other monarchy.8 The general privilege of 1283 formed a sort of groundwork for this legislation, like the Great Charter in England. By a clause in this law, cortes were to be held every year at Saragosa. But under James II. their time of meeting was reduced to once in two years, and the place was left to the king's discretion.4 Nor were the cortes of Aragon less vigilant than those of Castile in claiming a right to be consulted in all important deliberations of the executive power, or in remonstrating against abuses of government, or in superintending the proper expenditure of public money.6 A variMajores nostri, quse de omnibus t. ii. f. 168 and 382. Blancas mentions statuenda essent, nolueruntjuberi, veta- that Alfonso V. set a tallage upon his rive posse, nisi vocatis, descriptisque towns for the marriage of his natural ordinibus, ac cunctis eorum adhibitis daughters, which he might have done suffragiis, re ipsa cognita et promulgata. had they been legitimate; but they apUnde perpetuumilludnobis comparatum pealed to the justiciary's tribunal, and est jus, ut communes et publicse leges the king receded from his demand. p. 701. neque tolli, neque rogari possint, nisi Some instances of tyrannical conduct prius universus populus una voce comitiis in violation of the constitutional laws institutis suum ea de re liberum suffra- occur, as will naturally be supposed, in gium ferat; idque postea ipsius regis the annals of Zurita. The execution of assensu comprobetur. Biancae, p. 761. Bernard Cabrera under Peter IV., t. ii. 2 Zurita, t. i. fol. 92. f. 336, and the severities infdicted on 3 Fueros. de Aragon: Quod sissse in queen Forcia by her son-in-law John I., Aragonia removeantur. (A.D. 1372.) De f. 391, are perhaps as remarkable as any. prohibitione sissarum. (1398.) De con- 4 Zurita, t. i. f. 426. In general the servatione patrimonii. (1461.) I have session lasted from four to six months. only remarked two instances of arbitrary One assembly was prorogued from time taxation in Zurita's history, which is to time, and continued six years, from singularly full of information; one, in 1446 to 1452, which was complained of as 1343, when Peter IV. collected money a violation of the law for their biennial from various cities, though not without renewal. t. iv. f. 6. opposition; and the other a remonstrance 5 The Sicilian war of Peter III. was of the cortes in 1383 against heavy taxes; very unpopular, because it had been un. and it is not clear that this refers to dertaken without consent of the barons, general unauthorized taxation. Zurita, contrary to the practice of the kingdom 58 CORTES OF ARAGON. CHAP. IV. ety of provisions, intended to secure these parliamentary privileges and the civil liberties of the subject, will be found dispersed in the collection of Aragonese laws,1 which may be favorably compared with those of our own statutebook. Four estates, or, as they were called, arms (brazos), formCortes of ed the cortes of Aragon-the prelates and comAragon. manders of military orders, who passed for ecclesiastics;2 the barons or ricoshombres; the equestrian order or infanzones, and the deputies of royal towns.8 The two former had a right of appearing by proxy. There was no representation of the infanzones, or lower nobility. But it must be remembered that they were not numerous, nor was the kingdom large. Thirty-five are reckoned by Zurita as present in the cortes of 1395, and thirty-three in those of 1412; and as upon both occasions an oath of fealty to a new monarch was to be taken, I presume that nearly all the nobility of the kingdom were present.4 The ricoshombres do not seem to have exceeded twelve or fourteen in number. The ecclesiastical estate was not much, if at all, more numerous. A few principal towns alone sent deputies to the cortes; but their representation was very full; eight or ten, and sometimes more, sat for Saragosa, and no town appears to have had less than four representatives. During the interval of the cortes a permanent commission, varying a good deal as to numbers, but chosen out of the four estates, was empowered to sit with very considerable authority, receiving porque ningun negocio arduo empren- summoned i los perlados, ricoshombres dian, sin acuerdo y consejo de sus ricos- y cavalleros, y procuradores de las ciuhombres. Zurita, t. i. fol. 264. The dades y villas, que le juntassen a cortes cortes, he tells us, were usually divided generales en la ciudad de Huesca. Zurita, into two parties, whigs and tories; estava t. i. fol. 71. So in the cortes of 1275, and ordinariamente dividida en dos partas. la on other occasions. una que pensava procurar el beneficio 3 Popular representation was more del reyno, y la otra que el servicio del ancient in Aragon than in any other rey.. iii. fol. 321. monarchy. The deputies of towns ap 1 Fueros y observancias del reyno de pear in the cortes of 1133, as Robertson Aragon. 2 vols. in fol. Saragosa, 1667. has remarked from Zurita. Hist. of The most important of these are collected Charles V. note 32. And this cannot by Blancas, p. 750. well be called in question, or treated as 2 It is said by some writers that the an anomaly; for we find them menecclesiastical arm was not added to the tioned in 1142 (the passage cited in the cortes of Aragon till about the year 1300. last note), and again in 1164, when ZuBut I do not find mention in Zurita of rita enumerates many of their names. any such constitutional change at that fol. 74. The institution of consejos, or time; and the prelates, as we might ex- corporate districts under a presiding pect from the analogy of other countries, town, prevailed in Aragon as it did in appear as members of the national coun- Castile. cil long before. Queen Petronilla, in 1142, 4 Zurita, t. ii. f. 490; t. iii. f. 76. SPIN. VALENCIA AND CATALONIA. 59 and managing the public revenue, and protecting the justi. ciary in his functions.1 The kingdom of Valencia, and principality of Catalonia, having been annexed to Aragon, the one by conquest, the other by marriage, were always kept of Valencia distinct from it in their laws and government. andeataEach had its cortes, composed of three estates, for loma. the division of the nobility into two orders did not exist in either country. The Catalans were tenacious of their ancient usages, and averse to incorporation with any other people of Spain. Their national character was high-spirited and independent; in no part of the peninsula did the territorial aristocracy retain, or at least pretend to, such extensive privileges,2 and the citizens were justly proud of wealth acquired by industry, and of renown achieved by valor. At the accession of Ferdinand I., which they had not much desired, the Catalans obliged him to swear three times successively to maintain their liberties, before they would take the reciprocal oath of allegiance.8 For Valencia it seems to have been,a politic design of James the Conqueror to establish a constitution nearly analogous to that of Aragon, but with such limitations as he should impose, taking care that the nobles of the two kingdoms should not acquire strength by union. In the reigns of Peter III. and Alfonso III., one of the principal objects contended for by the barons of Aragon was the establishment of their own laws in Valencia; to which the kings never acceded.4 They permitted, however, the possessions of the natives of Aragon in the latter kingdom to be governed by the law of Aragon.5 These three states, Aragon, Valencia, and Catalonia, were perpetually united by a law of Alfonso III.; and every king on his accession was bound to swear that he would never separate them.6 Sometimes general cortes of the kingdoms and principality were convened; but the members did not, even in this case, sit together, and were no otherwise united than as they met in the same city.7 1 Biancse, p. 762; Zurita, t. iii. f. 76, originally a justiciary in the kingdom of f. 182 et alibi. Valencia, f. 281; but this, I believe, did 2 Zurita, t. ii. f. 360. The villenage of not long continue. the peasantry in some parts of Cata- 5 Zurita, t. ii. f. 433. lonia was very severe, even near the end 6 t. ii. f. 91. of the fifteenth century. t. iv. f. 327. 7 Biancae, Comment. p. 760; Zurita, 3 Zurita, t. iii. f. 81. t. iii. fol. 239. 4 Id. t. i. f. 281, 310, 333. There was 60 UNION OF CASTILE AND ARAGON. CHAP. IV. I do not mean to represent the actual condition of society State of in Aragon as equally excellent with the constitupoliee. tional laws. Relatively to other monarchies, as I have already observed, there seem to have been fewer excesses of the royal prerogative in that kingdom. But the licentious habits of a feudal aristocracy prevailed very long. We find in history instances of private war between the great families, so as to disturb the peace of the whole nation, even near the close of the fifteenth century.l The right of avenging injuries by arms, and the ceremony of diffidation, or solemn defiance of an enemy, are preserved by the laws. We even meet with the ancient barbarous usage of paying a composition to the kindred of a murdered man.a The citizens of Saragosa were sometimes turbulent, and a refractory nobleman sometimes defied the ministers of justice. But owing to the remarkable copiousness of the principal Aragonese historian, we find more frequent details of this nature than in the scantier annals of some countries. The internal condition of society was certainly far from peaceable in other parts of Europe. By the marriage of Ferdinand with Isabella, and by the union of death of John II., in 1479, the two ancient and Castileand rival kingdoms of Castile and Aragon were forAragon. ever consolidated in the monarchy of Spain. There had been some difficulty in adjusting the respective rights of the husband 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 attached 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 coin, the king's taking the precedence 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 nom1 Zurita, t. iv. fol. 189. 2 Fueros de Aragon, f. 1660, &c. SPAIN. CONQUEST OF GRANADA. 61 ination 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 attributed 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 paternal authority over the kingdoms of her ancestors. Ferdinand and Isabella had no sooner quenched the flames of civil discord in Castile than they determined to Conquest of give an unequivocal proof to Europe of the vigor Granada. which the 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 prey, like their Christian enemies, to civil war and the feuds of their royal family, w ere 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. Bat I know not how to account for that vast populousness, that grandeur and magnificence, which distinguished the Monammedan kingdom 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 chiefly interesting to many travellers for the monuments which a foreign and odious race of conquerors have left behind 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.2 Predatory 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 consummation of a struggle protracted through nearly eight centuries. Even in the last stage of the Moorish dominion, exposed on I Zurita, t. iv. fol. 224; Marians, 1. xxiv. c. 5. 2 Zurita, t. iv. fol. 314. 62 CONQUEST OF GRANADA. CHAP. IV. every side to invasion, enfeebled by civil dissension that led one party to abet the common enemy, Granada was not subdued 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 centuries before, to have been peopled by 200,000 inhabitants.1 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 2nd of January 1492 —an event glorious not only to Spain but to Christendom - and which, in the political combat of the two religions, seemed almost to counterbalance the loss of Constantinople. It raised the name of Ferdinand and of the new monarchy which he governed to high estimation throughout Europe. Spain appeared an equal competitor with France in the lists of ambition. These great kingdoms had for some time felt the jealousy natural to emulous neighbors. The house of Aragon loudly complained of the treacherous policy of Louis XI. He had fomented the troubles of Castile, and given, not indeed an effectual aid, but all promises of support, to the princess Joanna, the competitor of Isabel. Rousillon, a province belonging to Aragon, had been pledged to France by John II. for a sum of money. It would be tedious to relate the subsequent events, or to discuss their respective claims to its possession.2 At the accession of Ferdinand, Louis XI. still held Rousillon, and showed little intention to resign it. But Charles VIII., 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 dethroned his relation at Naples, and alarmed for a moment all Italy with the apprehension of French dominion, it is not within the limits of the present work to inquire. 1 Zurita, t. iv. fol. 314. is the most impartial French writer I 2 For these transactions see Garnier, have ever read, in matters where his own Hist. de France, or Gaillard, Rivalite de country is concerned. France et d'Espagne, t. iii. The latter NOTES TO CHAP. IV. COUNT JULIAN. 63 NOTE TO CHAPTER IV. NOTE. Page 2. THE story of Cava, daughter of count Julian, whose seduction by Roderic, the last Gothic king, impelled her father to invite the Moors into Spain, enters largely into the cycle of Castilian romance and into the grave narratives of every historian. It cannot, however, be traced in extant writings higher than the eleventh century, when it appears in the Chronicle of the Monk of Silos. There are Spanish historians of the eighth and ninth centuries; in the former, Isidore bishop of Beja (Pacensis), who wrote a chronicle of Spain; in the latter, Paulus Diaconus of Merida, Sebastian of Salamanca, and an anonymous chronicler. It does not appear, however, that these dwell mfch on Roderic's reign. (See Masdeu, Historia Critica de Espafia, vol. xiii. p. 882.) The most critical investigators of history, therefore, have treated the story as too apocryphal to be stated as a fact. A sensible writer in the History of Spain and Portugal, published by the Society for the Diffusion of Useful Knowledge, has defended its probability, quoting a passage from Ferreras, a Spanish writer of the eighteenth century, whose authority stands high, and who argues in favor of the tradition from the brevity of the old chroniclers who relate the fall of Spain, and from the want of likelihood that Julian, who had hitherto defended his country with great valor, would have invited the Saracens, except through some strong motives. This, if we are satisfied as to the last fact, appears plausible; but another hypothesis has been suggested, and is even mentioned by one of the early writers, that Julian, being of Roman descent, was ill-affected to the Gothic dynasty, who had never attached to themselves the native inhabitants. This I cannot but reckon the less likely explanation of the two. Roderic, who became archbishop of Toledo in 1208, and our earliest au 64 COUNT JULLTA. SoTIE 1.0 thority after the monk of Silos, calls Julian "vir nobilis de nobili Gothorum prosapia ortus, illustris in officio Palatino, in armis exercitatus," &c. (See Schottus, Hispania Illustrata, ii. 63.) Few, however, of those who deny the truth of the story as it relates to Cava admit the defection of count Julian to the Moors, and his existence has been doubted. The two parts of the story cohere together, and we have no better evidence for one than for the other. Southey, in his notes to the poem of Roderic, says, " The best Spanish historians and antiquaries are persuaded that there is no cause for disbelieving the uniform and concurrent tradition of both Moors and Christians." But this is on the usual assumption, that those are the best who agree best with ourselves. Southey took generally the credulous side, and his critical judgment is of no superlative value. Masdeu, in learning and laboriousness the first Spanish antiquary, calls the story of Julian's daughter "a ridiculous tale, framed in the age of romance, when histories were thrust aside (arrinconadas) and any love-tale was preferred to the most serious truth." (Hist. Crit. de Espafia, vol. x. p. 223.) And when, in another passage (vol. xii. p. 6), he recounts the story at large, he says that the silence of all writers before the monk of Silos " should be sufficient in my opinion to expel from our history a romance so destitute of foundation, which the Arabian romancers doubtless invented for their ballads." A modern writer of extensive learning says, " This fable, which has found its way into most of the sober histories of Spain, was first introduced by the monk of Silos, a chronicler of the eleventh century. There can be no doubt that he borrowed it from the Arabs, but it seems hard to believe that it was altogether a tale of their invention. There are facts in it which an Arab could not have invented, unless he drew them from Christian sources; and, as I shall show hereafter, the Arabs knew and consulted the writings of the Christians." (Gayangos, History of the Mohammedan Dynasties of Spain, vol. i. p. 513.) It does not appear to be a conclusion from this passage that the story is a fable. For if a chronicler of the eleventh century borrowed it from the Arabs, and they again from Christian sources, we get over a good deal of the chasm of time. But if writers antecedent to the monk of Silos have related the Arabian invasion and the fall of Roderic without alluding to so important a point as the treachery CHAP. IV. COUNT JULIAN. 65 of a great Gothic noble, it seems difficult to resist the inference from their silence. Gayangos investigates in a learned note (vol. i. p. 537) the following points: -By whom and when was the name of Ilyan, the Arabic form of Julian, first introduced into Spanish history? Did such a man ever exist? What were his country and religion? Was he an independent prince, or a tributary to the Gothic monarchs? What part did he take in the conquest of Spain by the Arabs? The account of Julian in the Chronicon Silense appears to Gayangos indisputably borrowed from some Arabian authority; and this he proves by several writers from the ninth century downwards, " all of whom mention, more or less explicitly, the existence of a man living in Africa, and named Ilyan, who helped the Arabs to make a conquest of Spain; to which I ought to add that the rape of Ilyan's daughter, and the circumstances attending it, may also be read in detail in the Mohammedan authors who preceded the monk of Silos." The result of this learned writer's investigation is, that Ilyan really existed, that he was a Christian chief, settled, not in Spain, but on the African coast, and that he betrayed, not his country (except indeed as he was probably of Spanish descent), but the interests of his religion, by assisting the Saracens to'subjugate the Gothic kingdom.1 The story of Cava is not absolutely overthrown by this hypothesis, though it certainly may be the invention of some Christian or Arabian romancer. It is perfectly true that of itself it contains no apparent improbability. Injuries have been thus inflicted by kings, and thus resented by subjects. But for this very reason it was likely to be invented; and the unwillingness with which many seem to surrender so romantic a tale attests the probability of its obtaining currency in an uncritical period. We must reject it as false or not, according as we lay stress on the negative argument from the silence of very early writers (an argument, strong even as it is, and which would be insuperable if they were less brief and im1 The Arabian writer whom Gayangos residence of Julian on that side of the translates, one of late date, speaks of straits would not be incompatible with Ilyan as governor of Ceuta, but tells the his being truly a Spaniard. Ilyan is story of Cava in the usual manner. The evidently not an European form of the Goths may very probably have possessed name. some of the African coast; so that the VOL. II. 5 66 COUNT JULIAN. NOTE TO CHAP. IV. perfect) and on the presumptions adduced by Gayangos that Julian was not a noble Spaniard; but we cannot receive this celebrated legend at any rate with more than a very sceptical assent, not sufficient to warrant us in placing it among the authentic facts of history. GERMANY. SEPARATION FROM FRANCE. 67 CHAPTER V. HISTORY OF GERMANY TO THE DIET OF WORMS IN 1495. Sketch of German History under the Emperors of the House of Saxony - House of Franconia- Henry IV.-House of Suabia-Frederic Barbarossa -Fall of Henry the Lion-Frederic II. -Extinction of House of Suabia-Changes in the Germanic Constitution-Electors-Territorial Sovereignty of the Princes -Rodolph of Hapsburg-State of the Empire after his Time-Causes of Decline of Imperial Power —House of Luxemburg —Charles IV.- Golden Bull-House of Austria —Frederic III.-Imperial Cities-Provincial States - Maximilian - Diet of Worms - Abolition of Private Wars - Imperial Chamber - Aulic Council - Bohemia - Hungary - Switzerland. AFTER the deposition of Charles the Fat in 888, which finally severed the connection between France and Germany,1 Arnulf, an illegitimate descendant of Charlemagne, obtained the throne of the latter country, in which he was Separation succeeded by his son Louis.2 But upon the death of Germany of this prince in 911, the German branch of that from France. dynasty became extinct. There remained indeed 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 of origin; the Franks, whose territory, comprising Franconia and the modern Palatinate, was considered as the cradle of the empire, and who seem to have arrogated some superiority over the rest, the Suabians, the Bavarians, the Saxons, under which name the 1 There can be no question about this dependence of the crown in that age, in a general sense. But several German which had been established by the treaty writers of the time assert that both of Verdun in 843, but proves the weakEudes and Charles the Simple, rival ness of the competitors, and their want kings of France, acknowledged the feudal of patriotism. In Eudes it is more resuperiority of Arnulf. Charles, says Re- markable than in Charles the Simple, a gino, regnum quod usurpaverit ex manu man of feeble character, and a Carlovinejus percepit. Struvius, Corpus Hist. gian by birth. German. p. 202, 203 This acknowledg- 2 The German princes had some hesitament of sovereignty in Arnulf king of tion about the choice of Louis, but their Germany, who did not even pretend to partiality to the Carlovingian line prebe emperor, by both the claimants of vailed. Struvius, p. 208: quia reges the throne of France, for such it virtually Francorum semper ex uno genere prowas, though they do not appear to have cedebant, says an archbishop Hatto, in rendered homage, cannot affect the in- writing to the pope. 68 HOUSE OF SAXONY. CHAP. V. inhabitants of Lower Saxony alone and Westphalia were included, and the Lorrainers, who occupied the left bank of the Election of Rhine as far as its termination. The choice of Conrad. these nations in their general assembly fell upon D 9 Conrad, duke of Franconia, according to some writers, or at least a man qf high rank, and descended through females from Charlemagne.l Conrad dying without male issue, the crown of Germany House of was bestowed upon Henry the Fowler, duke of Saxony. Saxony, ancestor of the three Othos, who followed Henry the him in direct succession. To Henry, and to the Fowler. A.D. 919. first Otho, Germany was more indebted than to Otho36. any sovereign since Charlemagne. The conquest Otho II.'of Italy, and recovery of the imperial title, are inOthoI.973 deed the most brilliant trophies of Otho the Great; A.D.983. but he conferred far more unequivocal benefits upon his own country by completing what his father had begun, her liberation from the inroads of the Hungarians. Two marches, that of Misnia, erected by Henry the Fowler, and that of Austria, by Otho, were added to the Germanic territories by their victories.2 A lineal succession of four descents without the least opposition 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 in the former. But upon the early and unexpected decease of Otho III., a momentary opHenry II. position was offered to Henry duke of Bavaria, a A.D. 1002. collateral branch of the reigning family. He ob1 Schmidt, Hist. des Allemands, t. ii. dency to promote the improvement of p. 288. Struvius, Corpus Historiae Ger- that territory, and, combined with the manicae, p. 210. The former of these discovery of the gold and silver mines writers does not consider Conrad as duke of Goslar under Otho I., rendered it the of Franconia. richest and most important part of 2 Many towns in Germany, especially the empire. Struvius, p. 225 and 251. on the Saxon frontier, were built by Schmidt, t. ii. p. 322. Putter, Historical Henry I., who is said to have compelled Development of the German Constituevery ninth man to take up his residence tion, vol. i. p. 115. in them. This had a remarkable ten GERMANY. HOUSE OF FRANCONLA. 69 tained the crown, however, by what contemporary historians call an hereditary title,1 and it was not until his death in 1024 that the house of Saxony was deemed to be extinguished. No person had now any pretensions that could interfere with the unbiassed suffrages of the nation; and Houseof accordingly a general assembly was determined Franconia. by merit to elect Conrad, surnamed the Salic, a conrad I nobleman of Franconia.2 From this prince sprang A.D. 1024. three successive emperors, Henry III., IV., and enr1039. V. Perhaps the imperial prerogatives over that Henry IV insubordinate confederacy never reached so high a Henry V. point as in the reign of Henry III., the second em- A.D. 1106. peror 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 pleasure of the crown. From this first 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 contrary proceeding occurred.8 But, if the royal prerogative in this respect stood higher than in France, there was a countervailing principle that prohibited the emperor from uniting a fief to his domain, or even retaining one which he had possessed before his accession. Thus Otho the Great granted 1 A maxims multitudine vox una re- 3 Schmidt, t. ii. p. 393, 403. Struvius, spondit; Henricum, Christi adjutorio, et p. 214, supposes the hereditary rights of jure hsereditario, regnaturum. Ditmar dukes to have commenced under Conrad apud Struvium, p. 273. See other pas- I.; but Schmidt is perhaps a better ausages quoted in the same place. Schmidt, thority; and Struvius afterwards ment. ii. p. 410. tions the refusal of Otho I. to grant the 2 Conrad was descended from a daugh- duchy of Bavaria to the sons of the last ter of Otho the Great, and also from duke, which, however, excited a rebelConrad I. His first-cousin was duke of lion. p. 235. Franconia. Struvius; Schmidt; Pfeffel. 70 HOUSE OF FRcANCONIA. CHAP. V. away his duchy of Saxony, and Henry II. that of Bavaria. Otho the Great endeavored to counteract the effects of this custom by conferring the duchies that fell into his hands upon members of his own family. This policy, though apparently well conceived, proved of no advantage to Otho, his son and brother having mixed in several rebellions against him. It was revived, however, by Conrad II. and Henry III. The latter was invested by his'father with the two duchies of Suabia and Bavaria. Upon his own accession he retained the former for six years, and even the latter for a short time. The duchy of Franconia, which became vacant, he did not regrant, but endeavored to set a precedent of uniting fiefs to the domain. At another time, after sentence of forfeiture against the duke of Bavaria, he bestowed that great province on his wife, the empress Agnes.l He put an end altogether to the form of popular concurrence, which had been usual when the investiture of a duchy was conferred; and even deposed dukes by the sentence of a few princes, without the consent of the diet.2 If we combine with these proofs of authority in the domestic administration of Henry III. his almost unlimited 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 Unfortunate years of calamity for his son. It is easy to perreign of ceive that the misfortunes of Henry IV. were Henry IV. primarily occasioned by the jealousy with which repeated violations of their constitutional usages had inspired the nobility.8 The mere circumstance of Henry IV.'s minority, under the guardianship of a woman, was enough to dissipate whatever power his father had acquired. Hanno, archbishop of Mentz, carried the young king away by force from his mother, and governed Germany in his name; till another archbishop, Adalbert of Bremen, obtained greater influence over him. 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, 1 Schmidt, t. iii. p. 25, 37. of Aschaffenburg to have formed a con2 Id. p. 207. spiracy to depose him, out of resentment 8 In the very first year of Henry's for the injuries they had sustained from reign, while he was but six years old, the his father. Struvius, p. 306. St. Marc, princes of Saxony are said by Lambert t. iii. p. 248. GERMANY. HOUSE OF FRANCONIA. 71 well-natured, and affable, but dissolute beyond measure, and addicted to low and debauched company. He was AD. 1073 soon involved in a desperate 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 throughout their country. In the progress'of this war many of the chief princes evinced an unwillingness to support the emperor.l Notwithstanding this, it would probably have terminated, as other rebellions had done, with no permanent loss to either party. But in the middle of this contest another far more memorable broke out with the Roman see, concerning ecclesiastical investitures. The motives of this famous quarrel will be explained in a different chapter of the present work. Its effect in Germany was ruinous to Henry. A A.D. 1077. sentence, not only of excommunication, but of deposition, which Gregory VII. pronounced against him, gave a pretence to all his enemies, secret as well as avowed, to withdraw their allegiance.2 At the head of these was Rodolph duke of Suabia, whom an assembly of revolted princes raised to the throne. We may perceive, in the conditions of Rodolph'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 approbation.3 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 render 1 Struvius. Schmidt. manifests great dissatisfaction with the 2 A party had been already formed, court of Rome, which he reproaches with who were meditating to depose Henry. dissimulation and venality. His excommunication came just in time 3 Hoe etiam ibi consensu communi to confirm their resolutions. It appears comprobatum, Romani pontificis aucclearly, upon a little consideration of toritate est corroboratum, ut regia poHenry IV.'s reign, that the ecclesiastical testas nulli per haereditatem, sicut antea quarrel was only secondary in the eyes fuit consuetudo, cederet, sed filius regis, of Germany. The contest against him etiamsi valde dignus esset. per electionem was a struggle of the aristocracy. jealous spontaneam, non per successionis lineam, of the imperial prerogatives which Con- rex proveniret: si vero non esset dignus rad II. and Henry III. had strained to regis filius, vel si nollet eum populus, the utmost. Those who were in rebellion quem regem facere vellet, haberet in against Henry were not pleased with potestate populus. Bruno de Bello SaxGregory VII. Bruno, author of a histo, onico, apud Struvium, p. 327. ry of the Saxon war, a furious invective, 72 ELECTION OF LOTHAIRE. CHAP. V. 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, Rodolph, D. 1080. though victorious, was mortally wounded; and no one cared to take up a gauntlet which was to be won with so much trouble and uncertainty. 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 hostility, had the satisfaction of wearing him down with misfortune, and casting out his body, as excommunicated, from its sepulchre. In the reign of his son Henry V. there is no event worthy Extintion of of much attention, except the termination of the the house of great contest about investitures. At his death in Franconia. 1125 the male line of the Franconian emperors was at an end. Frederic duke of Suabia, grandson by 112 his mother of Henry IV., had inherited their patrimonial estates, and seemed to represent their dynasty. But both the last emperors had so many enemies, and a disposition to render the crown elective prevailed so Election of strongly among the leading princes, that Lothaire Lothaire. duke of Saxony was elevated to the throne, though rather in a tumultuous and irregular manner.1 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 that derived its importance and pretensions from that stock. It was the object of his reign, accordingly, to oppress the two brothers, Frederic and Conrad, of the Hohenstauffen or Suabian family. By this means he expected to secure the succession of the empire for his son-in-law. Henry, surnamed the Proud, who married Lothaire's only child, was fourth in descent from Welf, son of Azon marquis of Este, by Cunegonda, heiress of a distinguished family, the Welfs of Altorf in Suabia. Her son was invested with the duchy 1 See an account of Lothaire's election fundamental principle of the Germanic by a contemporary writer in Struvius, constitution from the accession of Lop. 857. See also proofs of the dissatis- thaire. Previously to that era, birth faction of the aristocracy at the Franco- seems to have given not only a fair title nian government. Schmidt, t. iii. p. to preference, but a sort of inchoate 328. It was evidently their determination right, as in France, Spain, and England. to render the empire truly elective (Id. Lothaire signed a capitulation at his acp. 335): and perhaps we may date that cession. GERMANY. HOUSE OF SUABIA. 73 of Bavaria in 1071. His descendant, Henry the Proud, represented also, through his mother, the ancient dukes of Saxony, surnamed Billung, from whom he derived the duchy of Luneburg. The wife of Lothaire transmitted to her daughter the patrimony of Henry the Fowler, consisting of Hanover and Brunswic. Besides this great dowry, Lothaire bestowed upon his son-in-law the duchy of Saxony in addition to that of Bavaria. This amazing preponderance, however, tended to alienate the princes of Germany from Lothaire's views in favor of Henry; and the latter does not seem to havi possessed abilities adequate to his eminent station. 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.2 The new emperor availed himself of the jealousy which Henry the Houseof Proud's aggrandizement had excited. Under pre- Suabia. tence that two duchies could not legally be held byonra the same person, Henry was summoned to resign A.D. 1l8. one of them; and on his refusal, the diet pronounced that he had incurred a forfeiture of both. Henry made but little resistance, and before his death, which happened soon after. wards, saw himself stripped of all his hereditary as well as acquired possessions. Upon this occasion the Origin of famous names of Guelf and Ghibelin were first Guelfsand heard, which were destined to keep alive the flame Ghibelins. of civil dissension in far distant countries, and after their meaning had been forgotten. The Guelfs, or Welfs, were, as I have said, the ancestors of Henry, and the name has become a sort of patronymic in his family. The word Ghibelin is derived from Wibelung, a town in Franconia, whence the emperors of that line are said to have sprung. The house of Suabia were considered in Germany as representing that of Franconia; as the Guelfs may, without much impropriety, be deemed to represent the Saxon line.8 Though Conrad III. left a son, the choice of the electors fell, at his own request, upon his nephew Frederic Federio Barbarossa.4 The most conspicuous events of this Barbarossa. great emperor's life belong to the history of Italy. At home 1 Pfeffel, Abr6g6 Chronologique de 2 Schmidt. l'Histoire d'Allemagne, t. i. p. 269. (Pa- 8 Struvius, p. 370 and 378. ris, 1777.) Gibbon's Antiquities of the IStruvius. House of Brunswic. 74 HOUSE OF SUABIA. CHAP. V. he was feared and respected; the imperial prerogatives stood as high during his reign as, after their previous decline, it was possible for a single man to carry them.1 But the only circumstance which appears memorable enough for the presFall of ent sketch is the second fall of the Guelfs. Henry Henry the the Lion, son of Henry the Proud, had been restored by Conrad III. to his father's duchy of A.D. 1178. 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 during childhood, did not prevent him from urging the emperor Frederic to restore the whole of his birthright; and Frederic, 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 generosity beyond the limits of prudence. For many years their union was apparently cordial. But, whether it was that Henry took umbrage at part of Frederic's conduct,2 or that mere ambition rendered him ungrateful, he certainly abandoned 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. Frederic 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 confiscation, 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.3 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 alodial estates in Saxony. These, fifty years afterwards, were converted into imperial fiefs, and became the two duchies of the house 1 Pfeffel, p. 341. ousy of the Guelfs, and as illegally pro2 Frederic had obtained the succession scribed by the diet. But the provocations of Wolf marquis of Tuscany, uncle of he had given Frederic are undeniable; Henry the Lion, who probably considered and, without pretending to decide on a himself as entitled to expect it. Schmidt, question of German history, I do not see p. 427. that there was any precipitancy or mani3 Putter, in his Historical Development fest breach of justice in the course of of the Constitution of the German Em- proceedings against him. Schmidt, Pfefpire, is inclined to consider Henry the fel, and Struvius do not represent the Lion as sacrificed to the emperor's jeal- condemnation of Henry as unjust. GEKMmAY. HOUSE OF SUABIA. 75 of Brunswic, the lineal representatives of Henry the Lion, and inheritors of the name of Guelf.1 Notwithstanding the prevailing spirit of the German oligarchy, Frederic Barbarossa had found no difficulty in procuring the election of his son Henry, even during infancy, as his successor.2 The fall of Henry the Lion HeDry vI. had greatly weakened the ducal authority in A.D.1190. Saxony and Bavaria; the princes who 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 with considerable advantages 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 prospect of success in this attempt: fifty-two princes, and even what appears hardly credible, the See of Rome, under Clement III., having been induced to concur in it. But the Saxons made so vigorous an opposition, that Henry did not think it advisable to persevere.8 He procured, however, the election of his. son Frederic, 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 Philip and duke of Suabia, the late king's brother, unable to Otho IV. secure his nephew's succession, brought about his A'D 1197. own election by one party, while another chose Otho of Brunswic, younger son of Henry the Lion. This double election renewed the rivalry between the Guelfs and Ghibelins, and threw Germany into confusion for several years. Philip, whose pretensions appear 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 resentment. Otho IV. reaped the benefit of a crime in which he did not participate, and became for some years undisputed sovereign. But, having offended the pope by not entirely abandoning his imperial AD 1208. rights over Italy, he had, in the latter part of his reign, to contend against Frederic, son of Henry VI., who, 1 Putter, p. 220. ter, distincta proximorum successione, 2 Struvius, p. 418. transiret, et sic in ipso terminus esset 3 Struvius, p. 424. Impetravit a sub- electionis, principiumque successivee digditis, ut cessante pristina Palatinorum nitatis. Gervas. Tilburiens. ibidem. electione, imperium in ipsius posterita 76 RICHARD OF CORNWALL. CHAP. V. 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 1218, removed every difficulty, and left Frederic II. in the peaceable possession of Germany. The eventful life of Frederic II. was chiefly passed in Prederic. 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. Careless 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 emperor's request.1 But in the latter part of Frederic's reign the deadly hatred of Rome penetrated beyond Conse. the Alps. After his solemn deposition in the counquencesof cil of Lyons, he was incapable, in ecclesiastical the council of Lyons. eyes, of holding the imperial sceptre. Innocent A.D. 12. IV. found, however, some difficulty in setting up a rival emperor. Henry landgrave of Thuringia.D. 1248. made an indifferent figure in this character. Upon his death, William count of Holland was chosen by the party adverse to Frederic and his son Conrad; and after the emperor'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 Frederic II.: Grand in- a period of contested title and universal anarchy, terregnum. which is usually denominated the grand interregD num. On the decease of William of Holland, in.D. 1272. 1256, a schism among the electors produced the Richard of double choice of Richard earl of Cornwall, and Cornwall. Alfonso X. king of Castile. It seems not easy to determine which of these candidates had a legal majority of votes;2 but the subsequent recognition of almost all Germany, 1 Struvius, p. 457. of Treves, having got possession of the 2 The election ought legally to have town, shut out the archbishops of Mentz been made at Frankfort. But the elector and'Cologne and the count palatine, on GERMANY. GERMANIC CONSTITUTION. 77 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 consolidated, and to plunder without scruple a man, like Didius at Rome, rich and foolish enough to purchase the first place upon earth. That place indeed was now become a mockery of greatness. For more than two centuries, notwithstanding the temporary influence of Frederic Barbarossa Germanic and his son, the imperial authority had been constituin a state of gradual decay. From the time of Frederic II. it had bordered upon absolute insignificance; 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 chiefly consist in the establishment of an oligarchy of electors, and of the territorial sovereignty of. the princes. 1. At the extinction of the Franconian line by the death of Henry V. it was determined by the German tors. 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 disposition 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,without hesitation. At the election of Lothaire, in 1124, we pretence of apprehending violence. They Ottocar had voted for Alfonso, and that met under the walls, and there elected he did not think fit to recognize their Richard. Afterwards Alfonso was chosen act. by the votes of Treves, Saxony, and There can be no doubt that Richard Brandenburg. Historians differ about was de facto sovereign of Germany; and the vote of Ottocar king of Bohemia, it is singular that Struvius should assert which would turn the scale. Some time the contrary, on the authority of an inafter the election it is certain that he strument of Rodolph, which expressly was on the side of Richard. Perhaps we designates him king, per quondam may collect from the opposite statements Richardum regem illustrem. Struv. p. in Struvius, p. 504, that the proxies of 502. 78 GERMANIC CONSTITUTION. CHAP. V. find an evident instance of this previous choice, or, as it was called, pretaxation, from which the electoral college of Germany has been derived. The princes, it is said, trusted the choice of an emperor to ten persons, in whose judgment they promised to acquiesce.' This precedent was, in all likelihood, followed at all subsequent elections. The proofs indeed are not perfectly clear. But in the famous privilege of Austria, granted by Frederic I. in 1156, he bestows a rank upon the newly-created duke of that country, immediately after the electing princes (post principes electores); 2 a strong presumption that the right of pretaxation was not only established, but limited to a few definite persons. In a letter of Innocent III., concerning the double election of Philip and Otho in 1198, he asserts the latter to have had a majority in his favor of those to whom the right of election chiefly belongs (ad quos principaliter spectat electio).8 And a law of Otho in 1208, if it be genuine, appears to fix the exclusive privilege of the seven electors.4 Nevertheless, so obscure is this important part of the Germanic system, that we find four ecclesiastical and two secular princes concurring with the regular electors in the act, as reported by a contemporary writer, that creates Conrad, son of Frederic II., king of the Romans.6 This, however, may have been an irregular deviation from the principle already established. But it is admitted that all the princes retained, at least during the twelfth century, their consenting suffrage; like the laity in an episcopal election, whose approbation continued to be necessary long after the real power of choice had been withdrawn from them.6 It is not easy to account for all the circumstances that gave to seven spiritual and temporal princes this distinguished preeminence. The three archbishops, 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: Saxony, Franconia, Suabia, and Bavaria. We find, however, only the first of these in the 1 Struvius, p. 857. Schmidt, t. iii. the style of the act of election from the p. 331. Chronicle of Francis Pippin. 2 Schmidt, t. iii. p. 390. 6 This is manifest by the various pas8 Pfeffel, p. 860. sages relating to the elections of Philip 4 Schmidt, t. iv. p. 80. and Otho, quoted by Struvius, p. 428, 6 This is not mentioned in Struvius, or 430. See, too, Pfeffel, ubi supra. Schmidt, the other German writers. But Denina t. iv. p. 79. (Rivoluzioni d'Italia, 1. ix. c. 9) quotes (ERMANY. GERMANIC CONSTITUTION. 79 undisputed exercise of a vote. It seems probable that, when the electoral princes came 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 ever afterwards possessed them: the duke of Saxony having then officiated as archmarshal, the count palatine of the Rhine as arch-steward, the king of Bohemia as arch-cupbearer, and the margrave of Brandenburg as arch-chamberlain of the empire.1 But it still 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. I have seen no adequate explanation of this circumstance; which may perhaps lead us to presume that the right of preelection was not quite so soon confined to the precise number of seven princes. The 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 Rodolph in 1272 the two brothers of the house of Wittelsbach voted separately, as count palatine and duke of Lower Bavaria. Ottocar was excluded upon this occasion; and it was not till 1290 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 Rodolph; upon which Louis of Bavaria slightly innovated, by rendering the suffrage alternate. But the Golden Bull of Charles IV. put an end to all doubts on the rights of electoral houses, and absolutely excluded Bavaria from voting. The limitation to seven electors, first perhaps fixed by accident, came to be invested with a sort of mysterious importance, and certainly was considered, until times comparatively recent, as a fundamental law of the empire.2 2. It might appear natural to expect that an oligarchy of seven persons, who had thus excluded their equals Princes and from all share in the election of a sovereign, would ferior o assume still greater authority, and trespass fur- bility. 1 Schmidt, t. iv. p. 78. 2 Ibid. p. 78, 568; Putter, p. 274; Pfeffel, p. 435, 565; Struvius, p. 511. 80 GERMANIC CONSTITUTION. CHAP. V. ther 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.1 Of this aristocracy the superior class were denominated princes; an appellation which, after the eleventh century, distinguished them from the untitled nobility, most of whom were their vassals. They were constituent parts of all diets; and though gradually deprived of their 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, Brungwic, and Misnia. By the division of Henry the Lion's vast territories,2 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 Saxony 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 exercised 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 fiefs before the reign of Frederic 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 the jurisdiction of the palatine judges, within the limits of a state of the empire; concessions that amounted to little less than an abdication of his own sovereignty. From this epoch the territorial 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 have lost at the same 1 Pfeffel, p. 209. quite a new face to Germany, in Pfeffel, 2 See the arrangements made in conse- p. 234; also p. 437. quence of Henry's forfeiture, which gave 3 Pfeffel, p. 384; Putter, p. 233. GERMANY. RODOLPH OF HAPSBURG. 81 time their right of voting in the diets.1 In some parts of Germany, 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 supposod to have become immediate, after the destruction of the house of Suabia, within whose duchies they had been comprehended.2 A short interval elapsed after the death of Richard of Cornwall before the electors could be induced, by the Election of deplorable state of confusion into which Germany Rodolph of had fallen, to fill the imperial throne. Their choice Hapsburg. was however the best that could have been made. It fell upon Rodolph count of Hapsburg, a prince of very ancient family, and of considerable possessions as well in Switzerland as upon each bank of the Upper Rhine, but not sufficiently powerful to alarm the electoral oligarchy. Rodolph 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.3 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 aggrandize his family by investing his near kindred Investment with vacant fiefs; but no one was so fortunate in of his son his opportunities as Rodolph. At his accession, duchy of Austria, Styria, and Carniola were in the hands of Austria. Ottocar king of Bohemia. These extensive and fertile countries had been formed into a march or margraviate, after the victories of Otho the Great over the Hungarians. Frederic Barbarossa erected them into a duchy, with many distinguish ed privileges, especially that of female succession, hithert 1 In the instruments relating to the 2 Pfeffel, p. 455; Putter, p. 254; Struelection of Otho IV. the princes sign vius. p. 511. their names, Ego N. elegi et subscripsi. 3 Struvius, p. 530. Coxels Hist. of But the counts only as follows: Ego N. House of Austria, p. 57. This valuable consensi et subscripsi. Pfeffel, p. 360. work contains a full and interesting account of Rodolph's reign. VOL. II. 6 82 THE EMPIRE AFTER RODOLPH. CHAP. V. unknown in the feudal principalities of Germany.1 Upon the extinction of the house of Bamberg, which had enjoyed this duchy, it was granted by Frederic 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 A.D 1283 Rodolph waged two successful wars, and recovered the Austrian provinces, which, as vacant fiefs, he conferred, with the consent of the diet, upon his son Albert.2 Notwithstanding the merit and popularity of Rodolph, State of the the electors refused to choose his son king of the empire after Romans in his lifetime; and, after his death, deRodolph. termined to avoid the appearance of hereditary succession, put Adolphus of Nassau upon the throne. There Adolphus. is very little to attract notice in the domestic history AlD 1292. of the empire during the next two centuries. From Albert I. A.D. 1298. Adolphus to Sigismund every emperor had either to Henrys VI. struggle against a competitor claiming the majority A.D. 1308. c m Louis IV. of votes at his election, or against a combination A.D. 1314. harles Iv. of the electors to dethrone him. The imperial AD. 1347. authority became more and more ineffective; Wenceslans. A.D. 1378. yet it was frequently made a subject of reproach Robert.4 against the emperors that they did not mainSigismnnd. tain a sovereignty to which no one was disposed to.D. 1414. 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 1 The privileges of Austria were granted vius, p. 463. The instrument runs as to the margrave Henry in 1156, by way follows: Ducatus Austriae et Styriae, of indemnity for his restitution of Bava- cum pertinentiis et terminis suis quot ria to Henry the Lion. The territory hactenus habuit, ad nomen et honorem between the Inn and the Ems was sepa- regium transferentes, te hactenus ducarated from the latter province, and an- tuum prsedictorum ducem, de potestatis nexed to Austria at this time. The nostrae plenitudine et magnificentia dukes of Austria are declared equal in speciali promovemus in regem, per liberrank to the palatine archdukes (archi- tates et jura pruedictum regnum tuum ducibus palatinis). This expression gave prsesentis epigrammatis auctoritate doa hint to the duke Rodolph IV. to as- nantes, quee regiam deceant dignitatem; sume the title of archduke of Austria. ut tamen ex honore quem ttbi libenter Schmidt, t. iii. p. 390. Frederic II. even addimus, nihil honoris et juris nostri created the duke of Austria king: a very diadematis ant imperii subtrahatur. curious fact though neither he nor his 2 Struvius, p. 525; Schmidt; Coxe. successors ever assumed the title. Stru GERMANY. CUSTOM OF PARTITION. 83 decided a sway. Accident had in a considerable degree restricted the electoral suffrages to seven princes. Without the college there were houses more substantially powerful than any within it. The 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 custom of were of course, even though considered as hered- partition. itary, 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.1 An equal partition of the inheritance, 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 reigning jointly. This tended to preserve the integrity of dominion; but as it was frequently incommodious, a more usual practice was to divide the territory. From such partitions are derived those numerous independent 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 1675, of that of Saxony.2 Originally these partitions were in general absolute and without reversion; but, as their effect in weakening families became evident, a practice was introduced of making compacts of reciprocal succession, by which a fief was prevented from escheating to the empire, until all 1 Schmidt, t. iv. p. 66. Pfeffel, p. 289, vided into two branches, Baden and maintains that partitions were not intro- Hochberg, in 1190, with rights of mutual duced till the latter end of the thirteenth reversion. century. This may be true as a general 2 Pfeffel, p. 289; Putter, p. 189. rule; but I find the house of Baden di 84 HOUSE OF LUXEMBURG. CHAP. V. the male posterity of the first feudatory should be extinct. Thus, while the German empire survived, all the 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 attached, 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 dismembered 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.1 Notwithstanding these subdivisions, and the most remarkable of those which I have mentioned are of a date rather subsequent to the middle ages, the antagonist principle of consolidation by various means of acquisition was so actively at work that several princely houses, especially those of Hohenzollern or Brandenburg, of Hesse, Wirtemburg, and the Palatinate, derive their importance from the same era, the fourteenth and fifteenth centuries, in which the prejudice against primogeniture was the strongest. And thus it will often be found in private patrimonies; the tendency to consolidation of property works more rapidly than that to its disintegration by a law of gavelkind. Weakened by these subdivisions, the principalities of Germany in the fourteenth and fifteenth centuries shrink to a more and more diminutive size in the scale of nations. But House of one family, the most illustrious of the former age, Luxemburg. was less exposed to this enfeebling system. Henry VII. count of Luxemburg, a man of much more personal 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 1 Pfeffel, p. 280. GERMANY. GOLDEN BULL. 85 wear the imperial crown; but three of his descendants possessed it, with less interruption than could have been 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, insensible 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. Bohemia 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 derogatory to the imperial prerogative.1 It was much more material 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 Bohemia.2 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 acquisition of Silesia, he bequeathed to his son Wenceslaus, for whom, by pliancy towards the electors and the court of Rome, he had procured, against all recent example, the imperial succession.8 The reign of Charles IV. is distinguished in the constitutional history of the empire by his Golden Bull; Golden Bull. an instrument which finally ascertained the pre- AD. 1355. rogatives of the electoral college. The Golden Bull terminated the disputes which had arisen between different 1 Struvius, p. 641. 2 Pfeffel, p. 575; Schmidt, t. iv. p. 595. 8 Struvius, p. 637. 86 DEPOSITION OF WENCESLAUS. CHAP. V. members of the same house as to their right of suffrage, which was declared inherent in certain definite territories. 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 performed by the archbishop of Cologne. These regulations, though consonant to ancient usage, had not always been observed, 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; they were declared equal to kings, and conspiracy against their persons incurred the penalty of high treason.1 Many other privileges are granted to render them more completely sovereign within their dominions. It seems extraordinary that Charles should have voluntarily elevated an oligarchy, from whose pretensions his predecessors had frequently suffered injury. But he had more to apprehend from the two great families of Bavaria and Austria, whom he relatively depressed by giving such a preponderance to the seven electors, than from any members of the college. By his compact with Brandenburg he had a fair prospect of adding a second vote to his own; and there was more room for intrigue and management, which Charles always preferred to arms, with a small number, than with the whole body of princes. The next reign, nevertheless, evinced the danger of inDeposition vesting the electors with such preponderating of Wences- authority. Wenceslaus, a supine and voluptuous lans. man, less respected, and more negligent of Germany, if possible, than his father, was regularly deposed 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 1298, and against Louis of Bavaria in 1346. They chose Robert count palatine instead of Wenceslaus; and though the latter did not cease to have some adherents, Robert has generally been counted among the lawful emperors.2 Upon his death the empire returned 1 Pfeffel, p. 565; Putter, p. 271; 2 Many of the cities besides some Schmidt, t. iv. p. 566. The Golden Bull princes, continued to recognize Wencesnot only fixed the Palatine vote, in ab- laus throughout the life of Robert; and solute exclusion of Bavaria, but settled the latter was so much considered as an a controversy of long standing between usurper by foreign states, that his amthe two branches of the house of Saxony, bassadors were refused admittance at the Wittenberg and Lauenburg, in favor of council of Pisa. Struvius, p. 658. the former. GERMANY. HOUSE OF AUSTRIA. 87 to the house of Luxemburg,; Wenceslaus himself waiving his rights in favor of his brother Sigismund of Hungary.1 The house of Austria had hitherto given but two emperors to Germany, Rodolph its founder, and his son House of Albert, whom a successful rebellion elevated in Austria. the place of Adolphus. Upon the death of Henry of Luxemburg, in 1313, Frederic, son of Albert, disputed the election of Louis duke of Bavaria, alleging a majority of genuine votes. This produced a civil war, in which the Austrian party were entirely worsted. Though they advanced no pretensions to the imperial 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 inheritance by unsuccessful wars with the Swiss. According to the custom of partition, so injurious to princely houses, their dominions were divided among three branches: one reigning in Austria, a second in Styria and Albert I. the adjacent provinces, a third in the Tyrol and AD. 143s. 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 Bohemia, was raised to the imperial throne upon the death of his father-in-law in 1437. He died in two years, leaving his wife pregnant with a son, Ladislaus Posthumus, who afterwards reigned in the two kingdoms just mentioned; and the choice of the electors fell upon Frederic duke of Styria, second-cousin of the last emperor, from whose posterity it never departed, except in a single instance, upon the extinction of his male line in 1740. Frederic III. reigned fifty-three years, a longer period than any of his predecessors; and his personal Reign of character was more insignificant. With better Frederic III. fortune than could be expected, considering both A 1440these circumstances, he escaped any overt attempt 1 This election of Sigismund was not was not crowned at Frankfort, has never uncontested: Josse, or Jodocus, margrave been reckoned among the emperors, of Moravia, having been chosen, as far though modern critics agree that his as appears, by a legal majority. Howev- title was legitimate. Struvius, p. 684; er, his death within three months re- Pfeffel, p. 612. moved the difficulty; and Josse, who 88 FREDERIC III. CHAP. V. to de ose him, though such a project was sometimes in agitation. He reigned during an interesting age, full of remarkable events, and big with others of more leading importance. The destruction of the Greek empire, and appearance of the victorious crescent upon the Danube, gave an unhappy distinction to the earlier years of his 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, which ultimately produced a new and more general combination of European politics. Frederic, always poor, and scarcely 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 aggrandizement of the house of Austria which Frederic seems to have anticipated.2 The electors, who had I Ranke has drawn the character of A character of such obstinate passive Frederic III. more favorably, on the resistance was well fitted for his station whole, than preceding historians, and in that age; spite of his poverty and with a discrimination which enables us weakness, he was hereditary sovereign to account better for his success in the of extensive and fertile territories; he objects which he had at heart. " From was not loved, feared, or respected, but his youth he had been inured to trouble he was necessary; he was a German, and and adversity. When compelled to yield, therefore not to be exchanged for a king he never gave up a point, and always of Hungary or Bohemia; he was, not as gained the mastery in the end. The Frederic of Austria, but as elected emmaintenance of his prerogatives was the peror, the sole hope for a more settled governing principle of all his actions, the rule, for public peace, for the maintemore because they acquired an ideal nance of a confederacy so ill held togethvalue from their connection with the im- er by any other tie. Hence he succeeded perial dignity. It cost him a long and in what seemed so difficult- in prosevere struggle to allow his son to be curing the election of Maximilian as crowned king of the Romans; he wished king of the Romans: and interested the to take the supreme authority undivided German diet in maintaining the Burgunwith him to the grave: in no case would dian inheritance, the western provinces of he grant Maximilian any independent the Netherlands, which the latter's marshare in the administration of govern- riage brought into the house of Austria. ment; but kept him, even after he was 2 The famous device of Austria, A. E. king, still as'son of the house'; nor I. 0. U., was first used by Frederic III., would he ever give him anything but who adopted it on his plate, books, and the countship of Cilli;'for the rest he buildings. These initials stand for, would have time enough.' His frugality Austrise Est Imperare Orbi Universo; bordered on avarice, his slowness on in- or, in German, Alles Erdreich Ist Osterertness, his stubbornness on the most reich Unterthan: a bold assumption for determined selfishness; yet all these a-man who was not safe in an inch of faults are removed from vulgarity by his dominions. Struvius, p. 722. He high qualities. He had at bottom a sober confirmed the archiducal title of his depth of judgment, a sedate and inflex- family, which might seem implied in the ible honor; the aged prince, even when original grant of Frederic I.; and bea fugitive imploring succor, had a per- stowed other high privileges above all sonal bearing which never allowed the princes of the empire. These are enumajesty of the empire to sink." Hist. merated in Coxe's House of Austria, Reformation (Trauslation), vol. ii. p. 103. vol. i. p. 263. GERMANY. FREE IMPERIAL CITIES. 89 lost a good deal of their former spirit, and were grown sensible of the necessity of choosing a powerful sovereign, made no opposition to Maximilian's becoming king of the Romans in his father's lifetime. The Austrian provinces were reunited either under Frederic, 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 patrimonial 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. The period between Rodolph and Frederic III. is distinguished by no circumstance so interesting as the prosperous state of the free imperial cities, which had attained their maturity about the commencement of that interval. Progress of We find the cities of Germany, in the tenth cen- free impetury, divided into such as depended immediately ial cites. 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.1 Some of the former, lying principally upon the Rhine and in Franconia, acquired a certain degree of importance before the expiration of the eleventh century. Worms and Cologne manifested a zealous attachment to Henry IV., whom they supported in despite of their bishops.2 His son Henry V. granted privileges of enfranchisement to the inferior townsmen or artisans, who had hitherto been distinguished from the upper class of freemen, and particularly relieved them from oppressive usages, which either gave the whole of their movable goods to the lord upon their decease, or at least enabled him to seize the best chattel as his heriot.8 He took away the temporal authority of the bishop, at least in several instances, and restored the cities to a more immediate dependence upon the empire. The citizens were classed in companies, according to their several occupations; an institution which was speedily adopted in other commercial countries. It does not appear that any German city had obtained, under this emperor, those privileges' of choosing its own magistrates, which were conceded 1 Pfeffel, p. 187. The Othos adopted to the lay aristocracy. Putter, p. 136; the same policy in Germany which they Struvius, p. 252. had introduced in Italy, conferring the 2 Schmidt, t. iii. p. 239. temporal government of cities upon the 3 Schmidt, p. 242; Pfeffel, p. 293; Dubishops; probably as a counterbalance mont, Corps Diplomatique, t. i. p. 64. 90 FREE IMPERIAL CITIES. CHAP. V. about the same time, in a few instances, to those of France.1 Gradually, however, they began to elect councils of citizens, as a sort of senate and magistracy. This innovation might perhaps take place as early as the reign of Frederic I.; 2 at least it was fully established in that of his grandson. They were at first only assistants to the imperial or episcopal 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.3 The great revolution in Franconia and Suabia occasioned by the fall of the Hohenstauffen family completed the victory of the cities. Those which had depended upon mediate lords became immediately connected with the empire; and with the empire in its state of feebleness, when an occasional present of money would easily induce its chief to acquiesce in any claims of immunity which the citizens might prefer. It was a natural consequence of the importance which the free citizens had reached, and of their immediacy, that they 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. No proof exists of any law by which they were adopted into the diet. We find it said that Rodolph of Hapsburg, in 1291, renewed his oath with the princes, lords, and cities. Under the emperor Henry VII. there is unequivocal mention of the three orders composing the diet; electors, princes, and deputies from cities.4 And in 1344 they appear as a third distinct college in the diet of Frankfort.5 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 irreconcilable warfare between the possessors of fortified castles 1 Schmidt, p. 245. 3 Schmidt, t. iv. p. 96; Pfeffel, p. 441. 2 In the charter granted by Frederic I. 4 Mansit ibi rex sex hebdom adibus to Spire in 1182, confirming and enlarg- cum principibus electoribus et aliis prining that of Henry V., though no express cipibus et civitatum nuntiis, de suo tran mention is made of any municipal juris- situ et de prsestandis servitiis in Italiam diction, yet it seems implied in the fol- disponendo. Auctor apud Schmidt, t. vi lowing words: Causam in civitate jam p. 31. lite contestatam non episcopus aut alia 5 Pfeffel, p. 552. potestas extra civitatem determinari compellet. Dumont, p. 108. GERMANY. LEAGUES OF THE CITIES. 91 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 neighboring 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 Pfahlbiirger, or burgesses of the palisades; and this encroachment on the rights of the nobility was positively, but vainly, prohibited by several imperial edicts, especially the Golden Bull. Another clas 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 outburghers are in general classed under the general name of Pfahlbiirger by contemporary writers.1 As the towns were conscious of the hatred which the nobility bore towards them, it was their interest Leagues of to make a common cause, and render mutual the cities. assistance. From this necessity of maintaining, by united exertions, their general liberty, the German cities never suffered the petty jealousies, which might no doubt exist among them, to ripen into such deadly feuds as sullied the glory, and ultimately destroyed the freedom, of Lombardy. They withstood 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 league of the Rhine, in 1255, to repel the inferior nobility, who, having now become immediate, abused that independence by perpetual robberies.2 The Hanseatic Union owes its origin to no other cause, and may be traced perhaps to rather a higher date. About the year 1370 a league was formed, 1 Schmidt, t. iv. p. 98; t. vi. p. 76; 2 Struvius, p. 498; Schmidt, t. iv. Pfeffel, p. 402; Du Cange, Gloss. v. p. 101; Pfeffel, p. 416. Pfahlbirger. Faubourg is derived from this word. 92 PROVINCIAL STATES. CHAP. V. 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 the 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 ultimately compelled to relinquish their league. Counter-associations were formed by the nobles, styled Society of St. George, St. William, the Lion, or the Panther.1 The spirit of political liberty was not confined to the free Provincial immediate cities. In all the German principalities states of the a form of limited monarchy prevailed, reflecting, empire. on a reduced scale, the general constitution of the empire. As the emperors shared their legislative sovereignty with the diet, so all the princes who belonged to that assembly had their own provincial states, composed of their feudal vassals and of their mediate towns within their territory. No tax could be imposed without consent of the states; and, in some countries, the prince was obliged to account for the proper disposition of the money granted. In all matters of importance affecting the principality, and especially in cases of partition, it was necessary to consult them; and they sometimes decided between 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. The city of Wurtzburg, in the fourteenth century, tells its bishop that, if a lord would make any new ordinance, the custom is that he must consult the citizens, who have always opposed his innovating upon the ancient laws without their consent.2 The ancient imperial domain, or possessions which beAlienatio longed to the chief of the empire as such, had of theim- originally been very extensive. Besides large perial do estates in every province, the territory upon each main. bank of the Rhine, afterwards occupied by the counts palatine and ecclesiastical electors, was, until the 1Struvius, p. 649; Pfeffel, p. 586; Schmidt, t. v. p. 10; t. vi. p. 78. Putter, p. 293 2 Schmidt, t. vi. p. 8. Putter, p. 236. GERMANY. DIET OF WORMS. 93 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 obligatory, for him to grant away his patrimonial domains upon his election. But the necessities of Frederic 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 Charlemagne and Otho were alienated by Charles IV.1 This produced a necessary change in that part of the constitution which deprived an emperor of hereditary 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.2 Louis of Bavaria was the first who retained his hereditary dominions, and made them his residence.8 Charles IV. and Wenceslaus lived almost wholly in Bohemia, Sigismund chiefly in Hungary, Frederic 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 Frederics, they were at least very superior in importance to the Williams and Adolphuses of the thirteenth century. The accession of Maximilian nearly coincides with the expedition of Charles VIII. against Naples; and Accession of I should here close the German history of the Maximilian. middle age, were it not for the great epoch which Worms. is made by the diet of Worms in 1495. This A.D.1495 assembly is celebrated for the establishment of a perpetual public peace, and of a paramount court of justice, the Imperial Chamber. The same causes which produced continual hostilities among the French nobility were not likely to Establishoperate less powerfully on the Germans, equally ment of warlike with their neighbors, and rather less public peace. 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, 1 Pfeffel, p. 580. he should retain any escheated fief for 2 Id. p. 494. Struvius, p. 546. the domain, instead of granting it away; 8 Struvius, p. 611. In the capitulation so completely was the public policy of of Robert it was expressly provided that the empire reversed. Schmidt, t. v. p. 44 94 PUBLIC PEACE. CHAP. V. forbidding all private defiances, and establishing solemnly a general peace.1 After his time the natural tendency of manners overpowered all attempts to coerce it, and private war raged without limits in the empire. Frederic I. endeavored to repress it by a regulation which admitted its legality. This was the law of defiance (jus diffidationis), which required a solemn declaration of war, and three days' notice, before the commencement of hostile measures. All persons contravening this provision were deemed robbers and not legitimate enemies.2 Frederic II. carried the restraint further, and limited the right of self-redress to cases where justice could not be obtained. Unfortunately there was, in later times, io sufficient provision for rendering justice. The German empire indeed had now assumed so peculiar a character, and the mass of states which composed it were in so many respects sovereign within their own territories, that wars, unless in themselves unjust, could not be made a subject of reproach against them, nor considered, strictly speaking, as private. It was certainly most desirable to put an end to them by common agreement, and by the only means that could render war unnecessary, the establishment of a supreme jurisdiction. War indeed, legally undertaken, was not the only nor the severest grievance. A very large proportion of the rural nobility lived by robbery.8 Their castles, as the ruins still bear witness, were erected upon inaccessible hills, and in defiles 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 for that purpose: the prelate only desired him to remark that the castle was situated near the junction of four roads.4 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 demanded. Every diet under Frederic III. professed to occupy itself with the two great objects of domestic reformation, peace 1 Pfeffel, p. 212. sent. Pet. de Andlo. apud Schmidt, t. v 2 Schmidt, t. iv. p. 108, et infra; Pfeffel, p. 490. p. 340; Putter, p. 205. 4 Quem cum officiatus suus interro3 Germani atque Alemanni, quibus gans, de quo castrum deberet retinere, census patrimonii ad victum suppetit, et cum annuis careret reditibus, dicitur hos qui procul urbibus, aut qui castellis respondisse; Quatuor vise sunt trans et oppidulis dominantur, quorum mag- castrum situatae. Auctorapud Schmidt, na pars latrocinio deditur, nobiles cen- p. 492. GERMANY. IMPERIAL CHAMBER. 95 and law. Temporary cessations, during which all private 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 proclaimed, and before the expiration of this period the perpetual abolition of the right of defiance was happily accomplished in the diet of Worms.1 These wars, incessantly waged by the states of Germany, seldom ended in conquest. Very few princely houses of the middle ages were aggrandized by such means. That small and independent nobility, the counts and knights of the empire whom the revolutions of our own age have annihilated, stood through the storms of centuries with little diminution of their numbers. An incursion into the enemy's territory, a pitched battle, a siege, a treaty, are the general circumstances of the minor wars of the middle ages, as far as they appear in history. Before the invention of artillery, a strongly fortified castle or walled city, was hardly reduced except by famine, which a besieging army, wasting improvidently its means of subsistence, was full as likely to feel. That invention altered the condition of society, and introduced an inequality of forces, that rendered war more inevitably ruinous to the inferior party. Its first and most beneficial effect was to bring the plundering class of the nobility into control; their castles were more easily taken, and it became their interest to deserve the protection of law. A few of these continued to follow their old profession after the diet of Worms; but they were soon overpowered by the more efficient police established under Maximilian. The next object of the diet was to provide an effectual remedy for private wrongs which might supersede Imperial all pretence for taking up arms. The administra- Chamber. tion of justice had always been a high prerogative as well as bounden duty of the emperors. It was exercised originally by themselves in person, or by the count palatine, the judge who always attended their court. In the provinces of Germany the dukes were intrusted with this duty; but, in order to control their influence, Otho the Great appointed provincial counts palatine, whose jurisdiction was in some respects 1 Scnmidt, t. iv. p. 116; t. v. p. 338, 371; t. vi. p. 34; Putter, p. 292, 348. 96 IMPERIAL CHAMBER. CHAP. V. exclusive of that still possessed by the dukes. As the latter became more independent of the empire, the provincial counts palatine lost the importance of their office, though their name may be traced to the twelfth and thirteenth centuries.1 The ordinary administration of justice by the emperors went into disuse; in cases where states of the empire were concerned, it appertained to the diet, or to a special court of princes. The first attempt to reestablish an imperial tribunal was made by Frederic II. in a diet held at Mentz in 1235. A judge of the court was appointed to sit daily, with certain assessors, half nobles, half lawyers, and with jurisdiction over all causes where princes of the empire were not concerned.2 Rodolph of Hapsburg endeavored to give efficacy to this judicature; but after his reign it underwent the fate of all those parts of the Germanic constitution which maintained the prerogatives of the emperors. Sigismund endeavored to revive this tribunal; but as he did not render it permanent, nor fix the place of its sittings, it produced little other good than as it excited an earnest anxiety for a regular system. This system, delayed throughout the reign of Frederic III., was reserved for the first diet of his son.8 The Imperial Chamber, such was the name of the new tribunal, consisted, at its original institution, of a chief judge, who was to be chosen among the princes or counts, and of sixteen assessors, partly of noble or equestrian rank, partly professors of law. They were named by the emperor with the approbation of the diet. The functions of the Imperia) Chamber were chiefly the two following. 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 According to the original law of Germany, no man could be sued except in the nation or province to which he belonged. The early emperors travelled from one part of their dominions to another, in order to render justice consistently with this fundamental privilege. When the Luxemburg emperors fixed their residence in Bohemia, the jurisdiction of the im perial court in the first instance would have ceased of itself 1 Pfeffel, p. 180. 2 Idem, p. 386; Schmidt, t. iv. p. 56. 3 Pfeffel, t. ii. p. 66. GERMANY. ESTABLISHMENT OF CIRCLES. 97 by the operation of this ancient rule. It was not, however, strictly complied with; and it is said that the emperors had a concurrent jurisdiction with the provincial tribunals even in private causes. They divested themselves, nevertheless, of this right by granting privileges de non evocando; so that no subject of a state which enjoyed such a privilege could be summoned into the imperial court. All the electors possessed this exemption by the terms of the Golden Bull; and it was specially granted to the burgraves of Nuremberg, and some other princes. This matter was finally settled at the diet of Worms; and the Imperial Chamber was positively restricted from taking cognizance of any causes in the first instance, even where a state of the empire was one of the parties. It was enacted, to obviate the denial of justice that appeared likely to result from the regulation in the latter case, that every elector and prince should establish a tribunal in his own dominions, where suits against himself might be entertained. The second part of the chamber's jurisdiction related to disputes between two states of the empire. 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 referring the quarrels of states to certain arbitrators, called Austregues, chosen among states of the same rank. This conventional reference became so popular that the princes would not consent to abandon it on the institution of the Imperial Chamber; but, on the contrary, it was changed into an invariable and universal law, that all disputes between different states must, in the first instance, be submitted to the arbitration of Austregues.2 The sentences of the chamber would have been very idly pronounced, if means had not been devised to carry Establishthem into execution. In earlier times the want of ment of coercive process had been more felt than that ofcircles' actual jurisdiction. For a few years after the establishment of the chamber this deficiency was not supplied. But in 1501 an institution, originally planned under Wenceslaus, and attempted by Albert II., was carried into effect. The 1 Schmidt, t. v. p. 373; Putter, p. 372. 2 Putter, p. 361; Pfeffel, p. 452. VOL. u. 7 58 AULIC COUNCIL. CHAP. V. empire, with the exception of the electorates and the Austrian dominions, was divided into six circles; each of which had its council of states, its director whose province it was to convoke them, and its military force to compel obedience. In 1512 four more circles were added, comprehending those states which had been excluded in the first division. It was the business of the police of the circles to enforce the execution of sentences pronounced by the Imperial Chamber against re fractory states of the empire.1 As the judges of the Imperial Chamber were appointed Auli with the consent of the diet, and held their sittings Council. in a free imperial city, its establishment seemed rather to encroach on the ancient prerogatives of the emperors. Maximilian 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 appointed by himself, and under the political control of the Austrian government. Though some German patriots regarded 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 feudal and some other causes. But it was equally confined to cases of appeal; and these, by multiplied privileges de non appellando, granted to the electoral and superior princely houses, were gradually reduced into moderate compass.2 The Germanic constitution may be reckoned complete, as to all its essential characteristics, in the reign of MIaximilian. 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 first 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 ambition. No revolution of our own eventful age, except the fall of the ancient French system of government, has been so 1 Putter, p. 355, t. ii. p. 100. 2 Putter, p. 357; Pfeffel, p. 102. GERMANY. LIMITS OF THE EMPIRE. 99 extensive, or so likely to produce important consequences, as the spontaneous dissolution of the German empire. Whether the new confederacy that has been substituted for that venerable constitution will be equally favorable to peace, justice, and liberty, is among the most interesting and difficult problems that can occupy a philosophical observer.1 At the accession of Conrad I. Germany had by no means reached its present extent on the eastern frontier. Limits of Henry the Fowler and the Othos made great ac- the empire. quisitions upon that side. But tribes of Sclavonian origin, generally called Venedic, or less properly, Vandal, occupied the northern coast from the Elbe to the Vistula. These were independent, and formidable both to the kings of Denmark and princes of Germany, till, in the reign of Frederic Barbarossa, two of the latter, Henry the Lion, duke of Saxony, and Albert the Bear, margrave of Brandenburg, subdued Mecklenburg and Pomerania, which afterwards became duchies of the empire. Bohemia was undoubtedly subject, in a feudal sense, to Frederic I. and his successors; though its connection with Germany was always slight. The emperors sometimes assumed a sovereignty over Denmark, Hungary, and Poland. But what they gained upon this quarter was compensated by the gradual separation of the Netherlands from their dominion, and by the still more complete loss of the kingdom of Arles. 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 Rhine. But the provinces between the Rhone and the Alps were absolutely separated; Switzerland had completely succeeded in establishing her own independence; and the kings of France no longer sought even the ceremony of an imperial investiture for Dauphine and Provence. Bohemia, which received the Christian faith in the tenth century, was elevated to the rank of a kingdom Bohemianear the end of the twelfth. The dukes and kings its constituof Bohemia were feudally dependent upon the em- tion. perors, from whom they received investiture. They possessed, in return, a suffrage among the seven electors, and held one 1 The first edition of this work was published early in 1818. 100 HOUSE OF LUXEMBURG. CHAP. V. of the great offices in the imperial court. But separated by a rampart of mountains, by a difference of origin and language, and perhaps by national 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.1 The government of this kingdom, in a very slight degree partaking of the feudal character,2 bore rather a resemblance to that of Poland; but the nobility were divided into two 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 predial villeinage. The royal authority was restrained by a coronation oath, by a permanent senate, and by frequent assemblies of the diet, where a numerous and armed nobility appeared to secure their liberties by law or force.8 The sceptre passed, in ordinary times, to the nearest heir of the royal blood; but the right of election was only suspended, and no king of Bohemia ventured to boast of it as his inheritance. This mixture of elective and hereditary monarchy was common, as we have seen, to most European kingdoms in their original constitution, though few continued so long to admit the participation of popular suffrages. The reigning dynasty having become extinct in 1306, by House of the death of Wenceslaus, son of that Ottocar who, Luxemburg. after extending his conquests to the Baltic Sea, and almost to the Adriatic, had lost his life in an unsuccessful contention with the emperor Rodolph, the Bohemians chose John of Luxemburg, son of Henry VII. Under the kings of this family in the fourteenth century, and especially Charles IV., whose character appeared in a far more advantageous light in his native domains than in,the empire, Bohemia imbibed some portion of refinement and science.6 An university 1 Pfeffel, t. ii. p. 497. of the kings, about the year 1300, sent 2 Bona ipsorum totS Bohemia plera- for an Italian lawyer to compile a code. que omnia haereditaria sunt seu alodi- But the nobility refused to consent to alia, perpauca feudalia. Stransky, Resp. this: aware, probably, of the conseBohemica, p. 392. Stransky was a Bo- quences of letting in the prerogative nemian protestant, who fled to Holland doctrines of the civilians. They opposed, after the subversion of the civil and re- at the same time, the institution of an ligious liberties of his country by the university at Prague; which, however, fatal battle of Prague in 1621. took place afterwards under Charles IV. 3 Dubravius, the Bohemian historian, 4 Stransky, Resp. Bohem. Coxe's relates (lib. xviii.) that, the kingdom House of Austria, p. 487. having no written laws, Wenceslaus, one 5 Schmidt; Coxe GERMANY. THE HUSSITES. 101 erected by Charles at Prague, became one of the most celebrated in Europe. John Huss, rector of the uni- John Huss. versity, who had distinguished himself by opposi- AD. 1416. tion to many abuses then prevailing in the church, repaired to the council of Constance, under a safe-conduct from the emperor Sigismund. In violation of this pledge, to the indelible infamy of that prince and of the council, he was condemned to be burned; and his disciple, Jerome of Prague, underwent afterwards the same fate. His countrymen, aroused by this atrocity, flew to arms. They found at their head Hussitear. one of those extraordinary men whose genius, created by nature and called into action by fortuitous events, appears to borrow no reflected light from that of others. John Zisca had not been trained in any school JohnZisa. which could have initiated him in the science of war; that indeed, except in Italy, was still rude, and nowhere more so than in Bohemia. But, self-taught, he became one of the greatest captains who had appeared hitherto in Europe. It renders his exploits more marvellous that he was totally deprived of sight. Zisca has been called the inventor of the modern art of fortification; the famous mountain near Prague, fanatically called Tabor, became, by his skill, an impregnable entrenchment. For his stratagems he has been compared to Hannibal. In battle, being destitute 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 circumstances of the situation explained, he gave his orders for the disposition of the army. Zisca was never defeated; and his genius inspired the Hussites with such enthusiastic affection, that some of those who had served under him refused to obey any other general, and denominated themselves Orphans 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.l Even during the lifetime of Zisca the Hussite sect was disunited; the citizens of Prague and many of the Calixtins. nobility contenting themselves with moderate de- A-D 1424. mands, while the Taborites, his peculiar followers, were actu1 Lenfant, Hist. de la Guerre des Hussites; Schmidt; Coxe 102 HUNGARY. CHAP. V ated 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 without pretence or apology, that 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 defeated; while the Catholic and Calixtin parties came to an accommodation, by which Sigismund was acknowledged as king of Bohemia, which he had claimed by the title of heir to his brother Wenceslaus, and a few indulD 1 gences, especially the use of the sacramental cup, conceded to the moderate Hussites. 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 nobleman of their own party, by A 1458. name George Podiebrad, to the throne of Bohemia, which he maintained during his life with great vigor and prudence.' Upon his death they chose Uladislaus, A. 1471. son of Casimir king'of Poland, who afterwards obtained also the kingdom of Hungary. Both AD 1527. these crowns were conferred on his son Louis, after whose death, in the unfortunate battle of Mohacz, Ferdinand of Austria became sovereign of the two kingdoms. The Hungarians, that terrible people who laid waste the Hungary Italian and German provinces of the empire in the tenth century, became proselytes soon afterwards to the religion of Europe, and their sovereign, St. Stephen, was admitted by the pbpe 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 subjugating the inferior people to that servitude which, in such a state of society, is the unavoidable consequence of poverty. The marriage of an Hungarian princess with Charles II. 1 Lenfant; Schmidt; Coxe. GERMANY. BATTLE OF WARNA. 103 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 invasion of Naples by Louis king of Hungary, and the wars of that powerful monarch with Venice. By marrying the eldest daughter of Louis, Sigismund, afterwards emperor, Sigismund. acquired the crown of Hungary, which upon her A.D. 1392. 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 D 1437 his widow pregnant; but the states of Hungary, Uladislaus. jealous of Austrian influence, and of the intrigues of a minority, without waiting for her delivery, bestowed the crown upon Uladislaus king of Poland. The birth of Albert's posthumous son, Ladislaus, produced an opposition in behalf of the infant's right; but the Austrian party turned out the weaker, and Uladislaus, after a civil war of some duration, became undisputed king. Meanwhile a more formidable enemy drew near. The Turkish arms had subdued all Servia, and excited a just alarm throughout Christendom. Uladislaus led a considerable force, to which the presence of the cardinal Julian gave the appearance of a crusade, into Bulgaria, and, after several successes, concluded an Battle of honorable treaty with Amurath II. But this he Warna. was unhappily persuaded to violate, at the instiga-A.D. 1444. tion of the cardinal, who abhorred the impiety of keeping faith with infidels.1 Heaven judged of this otherwise, if the judgment of Heaven was pronounced upon the field of Warna. In that fatal battle Uladislaus was killed, and the Hungarians utterly routed. The crown was now permitted to rest on the head of young Ladislaus; but the regency was allotted by the states of Hungary to a native warrior, John Hunniades Hunniades.2 This hero stood in the breach for 1 MEneas Sylvius lays this perfidy on vius, p. 898.) And the Greeks impute Pope Eugenius IV. Scripsit cardinali, the same to him, or at least desertion of nullum valere foedus, quod se inconsulto his troops, at Cossova, where he was decum hostibus religionis percussum esset, feated in 1448. (Spondanus, ad ann. p. 397. The words in italics are slipped 1448.) Probably he was one of those In, to give a slight pretext for breaking prudently brave men who, when victory the treaty. is out of their power, reserve themselves 2 Hunniades was a Wallachian, of a to fight another day; which is the charsmall family. The poles charged hin acter of all partisans accustomed to with cowardice at Wara. (BEneas Syl- desultory warfare. This is the apology 104 RELIEF OF BELGRADE. CHAP. V. twelve years against the Turkish power, frequently defeated but unconquered in defeat. If the renown of Hunniades may seem exaggerated by the partiality 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 threatening 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 forgiven, and the court never treated him with cordiality. The last and the most splendid service of Relief of Hunniades was the relief of Belgrade. That strong Belgrade. city was besieged by Mahomet II. three years after.D. 1456. the fall of Constantinople; its capture would have laid open all Hungary. A tumultuary army, chiefly collected by the preaching of a friar, was intrusted to Hunniades: he penetrated into the city, and, having repulsed the Turks in a fortunate sally wherein Mahomet was wounded, had the honor of compelling him to raise the siege in confusion. The relief of Belgrade was more important in its effect than in its immediate circumstances. It revived the spirits of Europe, which had been appalled by the unceasing victories of the infidels. Mahomet himself seemed to acknowledge the importance of the blow, and seldom afterwards attacked the Hungarians. Hunniades died soon after this achievement, and was followed by the king Ladislaus.l The states of Hungary, although the emperor Frederic III. had secured to himself, as he thought, the reversion, were justly averse to his character, Matthias and to Austrian connections. They conferred their Corvinus. crown on Matthias Corvinus, son of their great 1458 Hunniades. This prince reigned above thirty years with considerable reputation, to which his patronage made for him by aneas Sylvius: for- amplified this original authority in his tasse rei militaris perito nulla in pugna three decads of Hungarian history. salus visa, et salvare aliquos quam omnes 1 Ladislaus died at Prague, at the age perire maluit. Poloni acceptam eo prselio of twenty-two, with great suspicion of cladem Hunniadis vecordiae atque ignavise poison, which fell chiefly on George tradiderunt; ipse sua concilia spreta con- Podiebrad and the Bohemians. Eneas questus est. I observe that all the writers Sylvius was with him at the time, and in upon Hungarian affairs have a party bias a letter written immediately after plainly one way or other. The best and most hints this; and his manner carries with authentic account of Hunniades seems to it more persuasion than if he had spoken be, still allowing for this partiality, in out. Epist. 324. Mr. Coxe, however, inthe chronicle of John Thwrocz, who forms us that the Bohemian historians lived under Matthias. Bonfinius, an have fully disproved the charge. Italian compiler of the same age, has GERMANY. EARLY HISTORY OF SWITZERLAND. 105 of learned men, who repaid his munificence with very profuse eulogies, did not a little contribute.1 Hungary, at least in his time, was undoubtedly formidable to her neighbors, and held a respectable rank as an independent power in the republic of Europe. The kingdom of Burgundy or Arles comprehended the whole mountainous region which we now call Switzerland. It was accordingly reunited to the Germanic 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 possession with ecclesias- Switerland tical lords hardly less powerful than themselves. -its early Of the former we find the counts of Zahringen, history. Kyburg, Hapsburg, and Tokenburg, most conspic-uous; of the latter, the bishop of Coire, the abbot of St. Gall, and abbess of Seckingen. Every variety of feudal rights was early found and long preserved in Helvetia; nor is there any country whose history better illustrates that ambiguous relation, half property and half dominion, in which the territorial aristocracy, under the feudal system, stood with respect 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 municipal government. Berne and Friburg, founded only in that century, made a rapid progress; and the latter was raised, along with Zurich, by Frederic 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 enterprising Rodolph and his son Albert, became possessed, through various titles, of a great ascendency in Switzerland.2 Of these titles none was more tempting to an ambitious 1 Spondanus frequently blames the an Italian littrateur, De dictis et factis Italians, who received pensions from Mathiae, though it often notices an ordiMatthias, or wrote at his court, for ex- nary saying as jocose or facete dictum, aggerating his virtues, or dissembling gives a favorable impression of Matthias's his misfortunes. And this was probably ability, and also of his integrity. the case. However, Spondanus has 2 Planta's History of the Helvetic rather contracted a prejudice against the Confederacy, vol. i. chaps. 2-5. Corvini. A treatise of Galeotus Martius, 106 THE SWISS. CHAP. V. Albert of chief than that of advocate to a convent. That Austria. specious name conveyed with it a kind of indefinite guardianship, 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 perhaps 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 The lwi. 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 pastoral race, so happily forgotten, or so inaccessible in their fastnesses, as to have acquired a virtual independence, regulating their own affairs in their general assembly with a perfect equality, though they acknowledged the sovereignty of the empire.1 The people of Schweitz had made Rodolph their advocate. They distrusted Albert, whose succession to his father's inheritance spread alarm through Helvetia. It soon appeared that their suspicions were well founded. Besides the local rights which his ecclesiastical advocacies gave him over part of the forest cantons, he pretended, after his election to the empire, to send imperial bailiffs into their valleys, as administrators of criminal justice. Their oppression of a people unused to control, whom it was plainly the design of Albert to reduce into servitude, excited those generous emotions of resentment which a brave and simple race have selTheir insur- dom the discretion to repress. Three men, Staufrection. facher of Schweitz, Furst of Uri, Melchthal of Underwald, each with ten chosen associates, met by night in a sequestered field, and swore to assert the common cause of their liberties, without bloodshed or injury to the rights of others. Their success was answerable to the justice of their undertaking; the three cantons unanimously took up arms, and expelled their oppressors without a contest. Albert's 10 assassination by his nephew, which followed soon afterwards, fortunately gave them leisure to consolidate their union.2 He was succeeded in the empire by Henry VII., jealous of the Austrian family, and not at all 1 Planta's History of the Helvetic Confederacy, vol. i. o. 4. 2 Planta, c. 6. GERMANY. SWISS CONFEDERACY. 107 displeased at proceedings which had been accompanied with so little violence 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 their country. The Swiss, commending themselves to Heaven, and determined rather to perish than undergo that yoke a second time, though ignorant of regular discipline, Battle of and unprovided with defensive armor, utterly dis- Morgarten. comfitted the assailants at Morgarten. A.D. 1315. This great victory, the Marathon of Switzerland, confirmed the independence of the three original cantons. After some years, Lucerne, contiguous in situation and alike Formation of in interests, was incorporated into their confed- Swiss coneracy. It was far more materially enlarged about federacy. the middle of the fourteenth century, 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 altogether republican.2 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 reputation ceded to them the first rank in the league. The eight already enumerated are called the ancient cantons, and continued, till the late reformation of the Helvetic system, to possess several distinctive privileges and even rights of sovereignty over subject territories, in which the five cantons of Friburg, Soleure, Basle, Schaffhausen, and Appenzell did not participate. From this time the united 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 parties, with the same termination, 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.8 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 privilege which virtually implied a defensive alliance against any assailant), and uniformly respecting the legal rights of property. Many 1 Planta, c.7. 2 Id. cc. 8, 9. Id. c. 10. 108 SWISS CONFEDERACY. CHAP. V feudal superiorities they obtained 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.l And the last remnant of their ancient Helvetic territories in Argovia was wrested in 1417 from Frederic count of Tyrol, who, imprudently supporting pope John XXIII. against the council of Constance, had been put to the ban of the empire. These conquests Berne could not be induced to restore, and thus completed the independence of the confederate republics.2 The other free cities, though not yet incorporated, and the few remaining nobles, whether lay or spiritual, of whom the abbot of St. Gall was the principal, entered into separate leagues with different cantons. Switzerland became, therefore, in the first part of the fifteenth century, a free country, acknowledged as such by neighboring states, and subject to no external control, though still comprehended 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 complete success. In the Italian republics a more splendid temple may seem to have been erected to liberty; but, as we approach, the serpents of faction hiss around her altar, and the form of tyranny flits among the distant shadows behind the shrine. Switzerland, not absolutely blameless, (for what republic has been so?) but comparatively exempt from turbulence, usurpation, and injustice, has well deserved to employ the native pen of an historian accounted the most eloquent of the last age.8 Other nations displayed an insuperable resolu1 Planta, c. 11. ation in a modern historian of distant 2 Id. vol. ii. c. 1. times. But I must observe that, if the 3 I am unacquainted with Muller's authentic chronicles of Switzerland have history in the original language; but, enabled Muller to embellish his narrapresuming the first volume of Mr. Plan- tion with so much circumstantial deta's History of the Helvetic Confederacy tail, he has been remarkably fortunate to be a free translation or abridgment of in his authorities. No man could write it, I can well conceive that it deserves the the annals of England or France in the encomiums of Madame de Stael and other fourteenth century with such particuforeign critics. It is very rare to meet larity, if he was scrupulous not to fill up with such picturesque and lively deline- the meagre sketch of chroniclers from GERMANY. SWISS TROOPS. 109 tion 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 Lacedaemon. It was even established as a law, that whoever returned from battle after a defeat should forfeit his life by the hands of the executioner. Sixteen hundred men, who had been sent to oppose a predatory invasion of the French in 1444, though they might have retreated without loss, determined rather to perish on the spot, and fell amidst a far greater heap of the hostile slain.l 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 impregnable barrier of lances, which disconcerted the Swiss; till Winkelried, a gentleman of Underwald, commending his wife and children to his countrymen, threw himself upon the opposite ranks, and collecting as many lances as he could grasp, forced a passage for his followers by burying them in his bosom.2 The burghers and peasants of Switzerland, ill provided with cavalry, and better able to dispense with it Excellence than the natives of champaign countries, may be of the Swiss deemed the principal restorers of the Greek and troops. 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, afterwards Louis XI., 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 Burgundy, routed at Granson and Morat, and his affairs irrecoverably ruined, by these hardy repubthe stores of his invention. The striking another advantage as a painter of hisscenery of Switzerland, and Muller's ex- tory. act acquaintance with it, have given him 1 Planta, vol. ii. c. 2. 2 Id. vol. i. c. 10. 110 RATIFICATION OF CHAP. V. licans. 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 prominent part in the wars of Lombardy, with great military renown, but not without some impeachment of that sterling probity which had distinguished their earlier efforts for independence. These events, however, do not fall within my limits; but the last year of the fifteenth century is a leading epoch, of their i- with which I shall close this sketch. Though the dependence house of Austria had ceased to menace the liberties of Helvetia, 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 interest, endeavored to revive the unextinguished supremacy of the empire. That supremacy had just been restored in Germany by the establishment of the Imperial Chamber, 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 independence, and involving consequences not less material in their eyes, the abandonment of a line of policy, which tended to enrich, if not to aggrandize them. Their refusal to comply brought on a war, wherein the Tyrolese subjects of Maximilian, and the Suabian league, a confederacy of cities in that province lately formed under the emperor's auspices, were principally engaged against the Swiss. But the success of the latter was decisive; and after a terrible devastation of the frontiers of Germany, peace 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 expressly 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 GO~t'1AyS. SWISS IMDEPENDECE. Ill of public law, the Swiss cantons were not absolutely released from their subjection to the empire until the treaty of Westphalia, their real sovereignty must be dated by an historian from the year when every prerogative which a government can exercise was finally abandoned.1 1 Planta, vol. ii. c. 4. 112 COMMENCEMENT OF MODERN HISTORY. CHAP. VI. CHAPTER VI. HISTORY OF THE GREEKS AND SARACENS. Rise of Mohammedism - Causes of its Success - Progress of Saracen Arms - Greek Empire- Decline of the Khalifs -The Greeks recover Part of their Losses - The Turks - The Crusades - Capture of Constantinople by the Latins - Its Recovery by the Greeks -The Moguls- The Ottomans -Danger at Constantinople - Timur - Capture of Constantinople by Mahomet II. - Alarm of Europe. 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. In tracing the long series of the Byzantine annals we never lose sight of antiquity; the Greek language, the Roman name, the titles, the laws, all the shadowy circumstance of ancient greatness, attend us throughout the progress from the first to the last of the Constantines; and it is only when we observe the external condition and relations of their empire, that we perceive ourselves to be embarked in a new sea, and are compelled to deduce, from points of bearing to the history of other nations, a line of separation which the domestic revolutions of Constantinople would not satisfactorily afford. The appearance of Mohammed, and the conquests 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 hemispheres 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. Of all the revolutions which have had a permanent influAppearance ence upon the civil history of mankind, none could of Moham- SO little be anticipated by human prudence as that med. effected by the religion of Arabia. As the seeds of invisible disease grow up sometimes in silence to maturity, GREEKS, ETC. APPEARANCE OF MAHOMMED. 113 till they manifest themselves hopeless and irresistible, the gradual propagation of a new faith in a barbarous country beyond the limits of the empire was hardly known perhaps, and certainly disregarded, in the court of Constantinople. Arabia, in the age of Mohammed, was divided into many small states, most of which, however, seem to have looked up to Mecca as the capital of their nation and the chief seat of their religious worship. The capture of that city accordingly, and subjugation of its powerful and numerous aristocracy, readily drew after it the submission of the minor tribes, who transferred to the conqueror the reverence they were used to show to those he had subdued. If we consider Mohammed only as a military usurper, there is nothing more explicable or more analogous, especially to the course of oriental history, than his success. But as the author of a religious imposture, upon which, though avowedly unattested by miraculous powers, and though originally discountenanced by the civil magistrate, he had the boldness to found a scheme of universal dominion, which his followers were half enabled to realize, it is a curious speculation by what means he could inspire so sincere, so ardent, so energetic, and so permanent a belief. A full explanation of the causes which contributed to the progress of Mohammedism is not perhaps, at causes of present, attainable by those most conversant with his success. this department of literature.1 But we may point out several of leading importance: in the first place, those just and elevated notions of the divine nature and of moral duties, the gold-ore that pervades the dross of the Koran, which were calculated to strike a serious and reflecting people, already perhaps disinclined, by intermixture with their Jewish and Christian fellow-citizens, to the superstitions of their ancient idolatry; 2 next, the artful incorporation of tenets, usages, and traditions 1 We are very destitute of satisfactory prophet, except as it is deducible from materials for the history of Mohammed the Koran. himself. Abulfeda, the most judicious 2 The very curious romance of Anta-, of his biographers, lived in the fourteenth written, perhaps, before the appearance century, when it must have been mor- of Mohammed, seems to render it proba - ally impossible to discriminate the truth ble that, however idolatry, as we are amidst the torrent of fabulous tradition, told by Sale, might prevail in some parts Al Jannabi, whom Gagnier translated, is of Arabia, yet the genuine religion of a mere legend writer; it would be as the descendants of Ishmael was a belief rational to rely on the Acta Sanctorum in the unity of God as strict as is laid as his romance. It is therefore difficult down in the Koran itself, and accompato ascertain the real character of the nied by the same antipathy, partly reVOL. U. S 114 CAUSES OF THE CHAP. VI. from the various religions that existed in Arabia; and thirdly, the extensive application of the precepts in the Koran, a book confessedly written with much elegance and purity, to all legal transactions and all the business of life. It may be expected that I should add to these what is commonly considered as a distinguishing mark of MIohammedism, its indulgence to voluptuousness. But this appears to be greatly exaggerated. Although the character of its founder may have been tainted by sensuality as well as ferociousness, I do not think that he relied upon inducements of the former kind for the diffusion of his system. We are not to judge of this by rules of Christian purity, or of European practice. If polygamy was a prevailing usage in Arabia, as is not questioned, its permission gave no additional license to the proselytes of Mohammed, who will be found rather to have narrowed the unbounded liberty of oriental manners in this respect; while his decided condemnation of adultery, and of incestuous connections, so frequent among barbarous nations, does not argue a very lax and accommodating morality. A devout Mussulman exhibits much more of the Stoical than the Epicurean character. Nor can any one read the Koran without being sensible that it breathes an austere and scrupulous spirit. And, in fact, the founder of a new religion or sect is little likely to obtain permanent success by indulging the vices and luxuries of mankind. I should rather be disposed to reckon the severity of Mohammed's discipline among the causes of its influence. Precepts of ritual observance, being always definite and unequivocal, are less likely to be neglected, after their obligation has been acknowledged, than those of ligious, partly national, towards the are to be found in the Koran, but espeFire-worshippers which Mohammed in- cially that of Arianism. No one who culcated. This corroborates what I had knows what Arianism is, and what Mosaid in the text before the publication of hammedism is, could possibly fall into so that work. strange an error. The misfortune has 1 I am very much disposed to believe, been, that the learned writer, while acnotwithstanding what seems to be the cumulating a mass of reading upon this general opinion, that Mohammed had part of his subject, neglected what should never read any part of the New Testa- have been the nucleus of the whole, a pement. His knowledge of Christianity rusal of the single book which contains appears to be wholly derived from the the doctrine of the Arabian impostor. apocryphal gospels and similar works. In this strange chimera about the ArianHe admitted the miraculous conception ism of Mohammed, he has been led away and prophetic character of Jesus, but not by a misplaced trust in Whitaker; a his divinity or preexistence. Hence it writer almost invariably in the wrong, is rather surprising to read, in a popular and whose bad reasoning upon all the book of sermons by a living prelate, that points of historical criticism which he all the heresies of the Christian church attempted to discuss is quite notorious. (I quote the substance from memory) GREEKS, ETC. SUCCESS OF MAHOMMED. 115 moral virtue. Thus the long fasting, the pilgrimages, the regular prayers and ablutions, the constant alms-giving, the abstinence from stimulating liquors, enjoined by the Koran, created a visible standard of practice among its followers, and preserved a continual recollection of their law. But the prevalence of Islam in the lifetime of its prophet, and during the first ages of its existence, was chiefly owing to the spirit of martial energy that he infused into it. The religion of Mohammed is as essentially a military system as the institution of chivalry in the west of Europe. The people of Arabia, 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 the world, and the promise of all that their glowing imaginations could anticipate of Paradise annexed to all in which they most delighted upon earth. It is difficult for us in the calmness of our closets to conceive that feverish intensity of excitement to which man may be wrought, when the animal and intellectual energies of his nature converge to a point, and the buoyancy of strength and courage reciprocates the influence of moral sentiment or religious hope. The effect of this union I have formerly remarked in the Crusades; a phenomenon perfectly analogous to the early history of the Saracens. In each, one hardly knows whether most to admire the prodigious exertions of heroism, or to revolt from the ferocious bigotry that attended them. But the Crusades were a temporary effort, not thoroughly congenial to the spirit of Christendom, which, even in the darkest and most superstitious ages, was not susceptible of the solitary and overruling fanaticism of the Moslem. They needed no excitement from pontiffs and preachers to achieve the work to which they were called; the precept was in their law, the principle was in their hearts, the assurance of success was in their swords. "0 prophet," exclaimed Ali, when Mohammed, in the first years of his mission, sought among the scanty and hesitating assembly of his friends a vizir and lieutenant in command, "I am the man; whoever rises against thee, I will dash out his teeth, tear out his eyes, break his legs, rip up his belly. 0 prophet, I will be thy vizir over them." 1 These words of Mohammed's early and 1 Gibbon, vol. ix. p. 284. 116 CONQUESTS OF THE SARACENS. CHAP. VI. illustrious disciple are, as it were, a text, upon which the commentary expands into the whole Saracenic history. They contain the vital essence of his religion, implicit faith and ferocious energy. Death, slavery, tribute to unbelievers, were the glad tidings of the Arabian prophet. To the idolaters, indeed, or those who acknowledged no special revelation, one alternative only was proposed, conversion or the sword. 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 pledged to unbelievers was seldom forfeited; and with all their insolence and oppression, the Moslem conquerors were mild and liberal in comparison with those who obeyed the pontiffs of Rome or Constantinople. At the death of Mohammed in 632 his temporal and irst religious sovereignty embraced, and was limited conquests by; the Arabian peninsula. The Roman and f thens Persian empires, engaged in tedious and indecisive hostility upon the rivers of Mesopotamia and the Armenian mountains, were viewed by the ambitious fanatics of his creed as their quarry. In the very first year of Mohammed's immediate successor, Abubeker, each of these mighty empires was invaded. The latter opposed but a short resistance. The crumbling fabric of eastern despotism is never secure against rapid 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 warfare sufficed to subA.D. jugate the rich province of Syria, though defended 62 -639. by numerous armies and fortified cities; and the khalif Omar had scarcely returned thanks for the accomplishment of this conquest, when Amrou, his lieutenant, announced to him the entire reduction of Egypt. After some interval the Saracens won their way along the coast A.D. of Africa as far as the Pillars of Hercules, and 647-698. a third province was irretrievably torn from the Greek empire. These western conquests introduced them GREEKS, ETC. STATE OF THE GREEK EMPIRE. 117 to fresh enemies, and ushered in more splendid successes; encouraged by the disunion of the Visigoths, and perhaps invited by treachery, Musa, the general of a master who sat beyond the opposite extremity of the Mediterra-, 710. nean Sea, passed over into Spain, and within about two years the name of Mohammed was invoked under the Pyrenees.1 These conquests, which astonish the careless and superficial, are less perplexing to a calm inquirer than their cessation; the loss of half the Roman empire, than the preservation of the rest. A glance from Medina to Constantinople State of in the middle of the seventh century would proba- the Greek bly have induced an indifferent spectator, if such empire. a being may be imagined, to anticipate by eight hundred years the establishment of a Mohammedan dominion upon the shores of the Hellespont. The fame of Heraclius had withered in the Syrian war; and his successors appeared as incapable to resist, as they were unworthy to govern. Their despotism, unchecked by law, was often punished by successful rebellion; but not a whisper of civil liberty was ever heard, and the vicissitudes of servitude and anarchy consummated the moral degeneracy of the nation. Less ignorant than the western barbarians, the Greeks abused their ingenuity in theological controversies, those especially which related to the nature and incarnation of our Saviour; wherein the disputants, as is usual, became more positive and rancorous as their creed receded from the possibility of human apprehension. Nor were these confined to the clergy, who had not, in the East, obtained the prerogative of guiding the national faith; the sovereigns sided alternately with opposing factions; Heraclius was not too brave, nor Theodora too infamous, for discussions of theology; and the dissenters from an imperial decision were involved in the double proscription of treason and heresy. But the persecutors of their opponents at home pretended to cowardly scrupulousness in the field; nor was I Ockley's History of the Saracens; trary, it may be laid down as a pretty Cardonne, Revolutions de l'Afrique et general rule, that circumstantiality, de 1'Espagne. The former of these works which enhances the credibility of a witis well known and justly admired for ness, diminishes that of an historian reits simplicity and picturesque details. mote in time or situation. And I observe Scarcely any narrative has ever excelled that Reiske, in his preface to Abulfeda, in beauty that of the death of Hossein. speaks of Wakidi, from whom Ockley's But these do not tend to render it more book is but a translation, as a mere fabdeserving of confidence. On the con- ulist. 118 DECLINE OF THE SARACENS. CHAP. Vl, the Greek church ashamed to require the lustration of a canonical penance from the soldier who shed the blood of his enemies in a national war. But this depraved people were preserved from destruction Decline by the vices of their enemies, still more than by of the some intrinsic resources which they yet possessed. araen A rapid degeneracy enfeebled the victorious lMIoslem in their career. That irresistible enthusiasm, that earnest and disinterested zeal of the companions of Mohammed, was in a great measure lost, even before the first generation had passed away. In the fruitful valleys'of Damascus and Bassora the Arabs of the desert forgot their abstemious habits. Rich from the tributes of an enslaved people, the Mohammedan sovereigns knew no employment of riches but in sensual luxury, and paid the price of voluptuous indulgence in the relaxation of their strength and energy. Under the reign of Moawiah, the fifth khalif, an hereditary 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 separate 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 Abubeker and Omat, passed in external glory and domestic reverence; but the old age of Othman was weak and imprudent, and the conspirators 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 decision 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, AD. 750. till one of these revolters acquired by success a better name than rebel, and founded the dynasty of the Abbassides. Damascus had been the seat of empire under the Ommi GREEKS, ETC. KHALIFS OF BAGDAD. 119 ades; it was removed by the succeeding family to Khalifs of their new city of Bagdad. There are not any Bagdad. names in the long line of khalifs, after the companions of Mohammed, more renowned in history than some of the earlier sovereigns who reigned in this capital- Almansor, Haroun Alraschid, and Almamun. Their splendid palaces, their numerous guards, their treasures of gold and silver, the populousness and wealth of their cities, formed a striking contrast to the rudeness and poverty of the western nations in the same age. In their court learning, which the first Moslem had despised as unwarlike or rejected as profane, was held in honor.' The khalif Almamiun especially was distinguished for his patronage of letters; the philosophical writings of Greece were eagerly sought and translated; the stars were numbered, the course of the planets was measured. The Arabians improved upon the science they borrowed, and returned it with abundant interest to Europe in the communication of numeral figures and the intellectual language of algebra.2 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 repeated in Europe, it is very rare to read the history of an eastern sovereign unstained by atrocious crimes. No Christian government, except perhaps that of Constantinople, exhibits such a series of tyrants as the khalifs of Bagdad; if deeds of blood, wrought through unbridled passion or jealous policy, may challenge the name of tyranny. These are ill redeemed by ceremonious devotion and acts of trifling, perhaps ostentatious, humility, or even by the best attribute of Mohammedan princes -a rigorous justice in chastising the offences of others. Anecdotes of this description give as imperfect a sketch of an oriental sovereign as monkish chroniclers sometimes draw of one in Europe who founded monasteries and 1 The Arabian writers date the origin Philological Arrangement is perhaps a of their literature (except those works of book better known; and though it has fiction which had always been popular) since been much excelled, was one of the from the reign of Almansor, A.D. 758. first contributions in our own language Abulpharagius, p. 160; Gibbon, c. 52. to this department, in which a great deal 2 Several very recent publications con- yet remains for the oriental scholars of tain interesting details on Saracen litera- Europe. Casiri's admirable catalogue of ture; Berington's Literary History of Arabic MSS. in the Escurial ought before the Middle Ages, Mill's History of Mo- this to have been followed up by a more hammedanism, chap. vi., Turner's His- accurate examination of their contents tory of England, vol. i. Harris's than it was possible for him to give. 120 SEPARATION OF SPAIN AND AFRICA. CHAP. VI. obeyed the clergy; though it must be owned that the former are in much better taste. Though the Abbassides have acquired more celebrity, they never attained the real strength of their predecessors. Under 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 khalifs produced another not less important. A fugitive of the vanquished family, by name Abdalrahman, arrived in Spain and the Moslem of that country, not sharing in the prejudices Separation which had stirred up the Persians in favor of the of Spain line of Abbas, and conscious that their remote sitandAfrica. ation entitled them to independence, proclaimed him khalif 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 Edrisites in the western parts of Barbary. These yielded in about a century to the Fatimites, a more powerful dynasty, who afterwards established an empire in Egypt.1 The loss, however, of Spain and Africa was the inevitable effect of that immensely extended dominion, which their separation alone would not have enfeebled. But other revolutions Decline of awaited it at home. In the history of the Abasthe khalifs. sides of Bagdad we read over again the decline of European monarchies, through their various symptoms of ruin; and find successive analogies to the insults of the barbarians towards imperial Rome in the fifth century, to the personal insignificance of the Merovingian kings, and to the feudal usurpations that dismembered the inheritance of Charlemagne. 1. Beyond the northeastern frontier of the Saracen empire dwelt a warlike and powerful nation of the Tartar family, who defended the independence of Turkestan from the sea of Aral to the great central chain of mountains. In the wars which the khalifs or their lieutenants waged against them many of these Turks were led into captivity, and dispersed over the empire. Their strength and courage dis1 For these revolutions, which it is not Cardonne, who has made as much of very easy to fix in the memory, consult them as the subject would bear. GREEKS, ETC. DECLINE OF THE KHALIFS 121 tinguished them among a people 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 khalif 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 khalifate, while they grasped at its riches. The son of Motassem, Motawakkel, 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 khalifs; but in the East the son leaps boldly on the throne which the blood of his father has stained, and the prsetorian 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 Radi, who died in 940, was the last of these that officiated in the mosque, that commanded the forces in person, that addressed the people from the pulpit, that enjoyed the pomp and splendor of royalty.1 But he was the first who appointed, instead of a vizir, a new officer - a mayor, as it were, of the palace - with the title of Emir al Omra, commander of commanders, to whom he delegated 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 khalifs, whose names hardly appear after this time in Oriental annals. 3. During these revolutions of the palace every province successively shook off its allegiance; new principalities were formed in Syria and Mesopotamia, as well as in Khorasan and Persia, till the dominion of the Commander of the Faithful was literally confined to the city of Bagdad and its adjacent territory. For a time some of these princes, who had been appointed as governors by the khalifs, professed to respect his supremacy by naming him in the public prayers and upon the coin; but these tokens of dependence were gradually obliterated.2 1 Abulfeda, p 261; Gibbon, c. 52; discussed in the 52nd chapter of Gibbon, Modern Unir. Hist. vol. ii. Al Radi's which is, in itself, a complete philocommand of the army is only mentioned sophical dissertation upon this part of by the last. history. 2 The decline of the Saracens is fully 122 REVIVAL OF CHAP. VI. Such is the outline of Saracenic history for three centuries Revival of after Mohammed; one age of glorious conquest; a the Greek second of stationary but rather precarious greatempire. ness; a third of rapid decline. The Greek empire meanwhile survived, and almost recovered from the shock it had sustained. Besides the decline of its enemies, several circumstances may be enumerated tending to its preservation. The maritime province of Cilicia had been overrun by the Mohammedans; but between this and the Lesser Asia Mount Taurus raises its massy buckler, spreading as a natural bulwark from the sea-coast of the ancient Pamphylia to the hilly district of Isauria, whence it extends in an easterly direction, separating the Cappadocian and Cilician plains, and, after throwing off considerable ridges to the north and south, connects itself with other chains of mountains that penetrate far into the Asiatic continent. Beyond this barrier the Saracens formed no durable settlement, though the armies of Alraschid wasted the country as far as the Hellespont, and the city of Amorium, in Phrygia, was razed to the ground by Al Motassem. The position 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 an enemy as any city which valor and patriotism did not protect. Yet A.D. 668. in the days of Arabian energy she was twice at7 tacked by great naval armaments. The first siege, or rather blockade, continued for seven years; the second, though shorter, was more terrible, and her walls, as well as her port, were actually invested by the combined forces of the khalif Waled, under his brother Moslema.1 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 inextinguishable fire, they fought on superior terms; their wealth, perhaps their skill, enabled them to employ larger and better appointed vessels; and they ultimately expelled their enemies from the islands of Crete and 1 Gibbon, c. 52 GREEKS, ETC. THE GREEK EMPIRE 123 Cyprus. By land they were less desirous of encountering the Moslem. The science of tactics is studied by the pusillanimous, like that of medicine by the sick; and the Byzantine emperors, Leo and Constantine, have left written treatises on the art of avoiding defeat, of protracting contest, of resisting attack.1 But this timid policy, and even the purchase of ar mistices from the Saracens, were not ill calculated for the. state of both nations. While Constantinople temporized, Bagdad shook to her foundations; and the heirs of the Roman name might boast the immortality of their own empire when they contemplated the dissolution of that which had so rapidly sprung up and perished. Amidst all the crimes and revolutions of the Byzantine government - and its history is but a series of crimes and revolutions- it was never dismembered by intestine war. A sedition in the army, a tumult in the theatre, a conspiracy in the palace, precipitated a monarch from the throne; but the allegiance of Constantinople was instantly transferred to his successor, and the provinces implicitly obeyed the voice of the capital. The custom too of partition, so baneful to the Latin kingdoms, and which was not altogethor unknown to the Saracens, never prevailed in the Greek empire. It stood in the middle of the tenth century, as vicious indeed and cowardly, but more wealthy, more enlightened, and far more secure from its enemies than under the first successors of Heraclius. For about one hundred years preceding there had been only partial wars with the Mohammedan potentates; and in these the emperors seem gradually to have gained the advantage, and to have become more frequently the aggressors. But the increasing distractions of the East encouraged two brave usurpers, A.D. Nicephorus Phocas and John Zimisces, to attempt 963-975the actual recovery of the lost provinces. They carried the Roman arms (one may use the term with less reluctance than usual) over Syria; Antioch and Aleppo were taken by storm; Damascus 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 khalifate. From such distant conquests it was expedient, and indeed necessary, to withdraw; but Cilicia 1 Gibbon, c. 53. Constantine Porphy- weakness and cowardice, and pleasing rogenitus, in his advice to his son as itself in petty arts to elude the rapacity to the administration of the empire, be- or divide the power of its enemies. trays a mind not ashamed to confess 124 CONQUESTS OF THE TURKS. CHAP. VI. and Antioch were permanently restored to the empire. At the close of the tenth century the emperors of Constantinople possessed the best and greatest portion of the modern kingdom of Naples, a part of Sicily, the whole European dominions of the Ottomans, the province of Anatolia or Asia 1Minor, with some part of Syria and Armenia.1 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 probably have TheTurks. been more durable if the contest had been only with the khalifate, or the kingdoms derived from it. But a new actor was to appear on the stage of Asiatic tragedy. The same Turkish nation, the slaves and captives from which had become arbiters of the sceptre of Bagdad, passed their original limits of the Iaxartes or Sihon. The sultans of Ghazna, a dynasty whose splendid 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 Khorasan. They covered that fertile province with their pastoral tents, and beckoned their compatriots to share Their the riches of the south. The Ghaznevides fell conquests. the earliest victims; but Persia, violated in turn AD. 1038. by every conqueror, was a tempting and unresisting prey. Togrol Bek, the founder of the Seljukian dynasty of Turks, overthrew the family of Bowides, who had long reigned at Ispahan, respected the pageant of Mohammedan sovereignty in the khalif of Bagdad, embraced with all his tribes the religion of the vanquished, and commenced the attack upon Christendom by an irruption into Armenia. His nephew and successor Alp Arslan defeated and took prisoner 071 the emperor Romanus Diogenes; and the conquest of Asia Minor was almost completed by princes ot the same family, the Seljukians of Rim,2 who were permitted by Malek Shah, the third sultan of the Turks, to form an independent kingdom. Through their own exertions, and the selfish 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 1 Gibbon, c. 52 and 53. The latter of cally, according to the order of time, but these chapters contains as luminous a philosophically, according to their relasketch of the condition of Greece as the tions. former does of Saracenic history. In 2 Rum, i. e. country of the Romans. each, the facts are not grouped histori GREEKS, ETC. PROGRESS OF THE GREEKS. 125 fortified passes; nor did there seem any obstacle to the invasion of Europe.1 In this state of jeopardy the Greek empire looked for aid to the nations of the West, and received it in fuller The first measure than was expected, or perhaps desired. Crusade. 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 of Jerusalem, must commence with 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 onwards, the emperor Alexius Comnenus trod on their footsteps, and secured to himself the fruits for which their enthusiasm disdained to wait. He regained possession of the strong places on the Egean 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 I think that the general effect of these expeditions has been overrated by those who consider them as having permanently retarded the progress of the Turkish power. The Progress of Christians in Palestine and Syria were hardly in the Greeks. contact with the Seljukian kingdom of Rum, the only enemies of the empire; and it is not easy to perceive that their small and feeble principalities, engaged commonly in defending themselves against the Mohammedan princes of Mesopotamia, or the Fatimnite khalifs of Egypt, could obstruct the arms of a sovereign of Iconium upon the Maeander or the Halys. Other causes are adequate to explain the equipoise in which the balance of dominion in Anatolia was 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 descend1 Gibbon, c. 57; De Guignes, Hist. des was reannexed to the empire during the Huns, t. ii. 1. 2. reign of Alexius, or of his gallant son 2 It does not seem perfectly clear John Comnenus. But the doubt is whether the sea-coast, north and south, hardly worth noticing. 126 CAPTURE OF CONSTANTINOPLE. CHAP. VI. ants one hundred years afterwards, when the fourth in numCapture of ber of those expeditions was turned to the subnoplabyjt jugation of Constantinople itself. One of those the Latins. domestic revolutions which occur perpetually in Byzantine history had placed an usurper on the imperial throne. The lawful monarch was condemned to blindness and a prison; but the heir escaped to recount his misfortunes 1202. to the fleet and army of crusaders assembled in the Dalmatian port of Zara. This armament had been collected 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 was supplied 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 hope of assistance in their subsequent operations, prevailed. They turned their prows up the Archipelago; and, notwithstanding the vast population and defensible strength of Constantinople, compelled the usurper to fly, and the citizens to surrender. 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 stipulated condition of his restoration, to that of Rome. In a few months a new sedition and conspiracy raised another usurper in defiance of the crusaders' army encamped without 204 the walls. The siege instantly recommenced; and after three months the city of Constantinople was taken by storm. The tale of pillage and murder is always uniform; but the calamities of ancient capitals, like those of the great, impress us more forcibly. Even now we sympathize with the virgin majesty of Constantinople, decked with the accumulated wealth of ages, and resplendent with the monuments of Roman empire and of Grecian art. Her populousness is estimated beyond credibility: ten, twenty, thirty-fold that of London or Paris; certainly far beyond the united capitals of all European kingdoms in that age.1 In 1 Ville Hardouin reckons the inhabit- mil nommes ou plus, by which Gibbon ants of Constantinople at quatre cens understands him to mean men of a mili GREEKS, ETC. PARTITION OF THE EMPIRE. 127 magnificence she excelled them more than in numbers; instead of the thatched roofs, the mud walls, the narrow streets, the pitiful buildings of those cities, she had marble and gilded palaces, churches and monasteries, the works of skilful architects, through nine centuries, gradually sliding from the severity of ancient taste into the more various and brilliant combinations of eastern fancy.1 In the libraries of Constantinople were collected the remains of Grecian learning; her forum and hippodrome were decorated with those of Grecian sculpture; but neither would be spared by undistinguishing rapine; nor were the chiefs of the crusaders more able to appreciate the loss than their soldiery. Four horses, that breathe in the brass of Lysippus, were removed from Constantinople to the square of St. Mark at Venice; destined again to become the trophies of war, and to follow the alternate revolutions of conquest. But we learn from a contemporary Greek to deplore the fate of many other pieces of sculpture, which were destroyed in wantonness, or even coined into brass money.2 The lawful emperor and his son had perished in the rebellion that gave occasion to this catastrophe; Partitionof and there remained no right to interfere with that the empire. 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 government of Constantinople, the unity of despotic power was very foreign to the principles and the interests of the crusaders. In their selfish schemes of aggrandizement they tore in pieces the Greek empire. One fourth only was allotted to the emperor, three eighths were the share of the republic 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 tary age. Le Beau allows a million for latia sunt in eS, opere mero fabrefacta! the whole population. Gibbon, vol. xi. quo etiam in plateis vel in vicis opera p. 213. We should probably rate Lon- ad spectandum mirabilia! Taedium est don, in 1204, too high at 60,000 souls. quidem magnum recitare, quanta sit ibi Paris had been enlarged by Philip Au- opulentia bonorum omnium, auri et gustus, and stood on more ground than argenti palliorum multiformium, sacraLondon. Delamare sur la Police, t. i. p. rumque reliquiarum. Omni etiam tem76. pore, navigio frequenti cuncta hominum 1 0 quanta civitas, exclaims Fulk of necessaria illuc afferuntur. Du Chesne, Chartres a hundred years before, nobilis Scrip. Rerum Gallicarum, t. iv. p. 822. et decora! quot monasteria quotque pa- 2 Gibbon. c. 60. 128 INVASIONS OF ASI&. CHAP. VI. little prospect of honor or durability. The Latin emperors of Constantinople were more contemptible and unfortunate, not so much from personal character as political 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 independence on the eve of the Latin conquest, insulted their capital; the Greeks The Greeks viewed them with silent hatred, and hailed the recover Con- dawning deliverance from the Asiatic coast. On stantinople. that side of the Bosphorus the Latin usurpation was scarcely for a moment acknowledged; Nice became the seat of a Greek dynasty, who reigned with honor as far as the Maeander; and crossing into Europe, after having estabAD. 1261. lished their dominion throughout Romania and other provinces, expelled the last Latin emperors from Constantinople in less than sixty years from its capture. During the reign of these Greeks at Nice they had fortunately little to dread on the side of their former enemies, and were generally on terms of friendship with the Seljukians of Iconium. That monarchy indeed had sufficient objects of apprehension for itself. Their own example in nvasions of changing the upland plains of Tartary for the culAsia by the tivated valleys of the south was imitated in the Karismians, thirteenth century by two successive 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 tremendous storm ensued in the eruption of Moguls under the andMoguls. sons of Zingis Khan. From the farthest regions of Chinese Tartary 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 victory was devastation. All Asia, from the sea of China to the A.D. 1218. Euxine, wasted beneath the locusts of the north. A.D. 1272. They annihilated the phantom of authority which still lingered with the name of khalif at Bagdad. They reduced into dependence and finally subverted the Seljukian dynasties of Persia, Syria, and Iconium. The Turks of the latter kingdom betook themselves to the mountainous country, GREEKS, ETC. THE OTTOMANS. 129 where they formed several petty principalities, which subsisted by incursions into the territory of the Moguls or the Greeks. The chief of one of these, named Oth- A 1299 man, at the end of the thirteenth century, penetrated into the province of Bithynia, from which his posterity were never withdrawn.1 The empire 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 state of the of proper Greece from Thessaly southward, were Greek 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 Constantinople, 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. Eight galleys were the contribution of the emperor Cantacuzene to his Venetian allies; and upon their defeat he submitted to the ignominy of excluding them forever from trading in his dominions. Meantime the remains of the empire in Asia were seized by the independent Turkish dynasties, of which the most illustrious, The that of the Ottomans, occupied the province of Ottomans. Bithynia. Invited by a Byzantine faction into A.D.1431. Europe, about the middle of the fourteenth century, they fixed themselves in the neighborhood of the capital, and in the thirty years' reign of Amurath I. subdued, with little resistance, the province of Romania 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. The Greeks called loudly upon their brethren of the West for Al.D 1396. 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,2 where the king of Hun1 De Guignes, Hist. des Huns, t. iii. 1. 2 The Hungarians fled in this battle 15; Gibbon, c. 64. and deserted their allies, according to VOL.. 9 130 THE TARTARS OR MOGULS. CHAP. VL gary, 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 The Tartars ture, or fixed dwellings, overspread the vast central or Moguls regions of Asia, have, at various times, been imof Timur. pelled by necessity of subsistence, or through the casual appearance of a commanding 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 Azoph 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 effectual than the preceding. The first of these was in the 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 provinces of France. A third attack was sustained from the Moguls under the children of Zingis at the same period as that which overwhelmed Persia. The Russian monarchy was destroyed in this invasion, and for two hundred years that great country lay prostrate under the yoke of the Tartars. As they advanced, Poland and Hungary gave little opposi tion; and the farthest nations of Europe were appalled by the tempest. But Germany was no longer as she had been in the anarchy of the tenth century; the Moguls were unthe Memoires de Boucicaut, c. 25. But very high price. Many of eminent birth Froissart, who seems a fairer authority, and merit were put to death; a fate imputes the defeat to the rashness of the from which Boucicaut was saved by the French. Part iv. ch. 79. The count de interference of the count de Nevers, who Nevers (Jean Sans Peur, afterwards duke might better himself have perished with of Burgundy), who commanded the honor on that occasion than survived to French, was made prisoner with others plunge his country into civil war and his of the royal blood, and ransomed at a name into infamy GREEKS, ETC. DEFEAT OF BAJAZET. 131 used to resistance, and still less inclined to regular warfare; they retired before the emperor Frederic II., and the utmost points of their western invasion were the cities of 1245 A.D. 1245. Lignitz in Silesia and Neustadt in Austria. 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 Azoph and the pillage of some Russian provinces. Timur, the sovereign of these Moguls and founder of their second dynasty, which has been more permanent and celebrated than that of Zingis, had been the prince of a small tribe in Transoxiana, between the Gihon and Sirr, the doubtful 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 Bek 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 Hindostan. 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 captivity in the Defeat of plains of Angora clouded for a time the Ottoman Bajazet. crescent, and preserved the wreck of the Greek A.D. 1402. empire for fifty years longer. The Moguls did not improve their victory; in the western parts of Asia, as in Hindostan, Timur was but a Danger of barbarian destroyer, though at Samarcand a sov- Constantiereign and a legislator. He gave up Anatolia to nople. 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 partition and mutual animosity. For about twenty years an opportunity was given to the Greeks of recovering part of their losses; but they were incapable of making the best use of this advantage, and, though they regained possession of part of Romania, did not extirpate a strong Turkish colony that held the city of Gallipoli in the Chersonesus. When Amurath II., there- 142. fore, reunited under his vigorous sceptre the Ottoman monarchy, Constantinople was exposed to another siege and to fresh losses. Her walls, however, repelled the enemy; 132 FALL OF CONSTANTINOPLE. CHAP. VI. and during the reign of Amurath she had leisure to repeat those signals of distress which the princes of Christendom refused to observe. The situation of Europe was, indeed, sufficiently inauspicious; France, the original country of the crusades and of chivalry, was involved in foreign and domestic war; while a schism, apparently interminable, rent the bosom of the Latin church and impaired the efficiency of the only power that could unite and animate its disciples in a religious war. Even when the Roman pontiffs were best disposed to rescue Constantinople from destruction, it was rather as masters than as allies that they would interfere; their ungenerous bigotry, or rather pride, dictated the submission of her church and the renunciation of her favorite article of distinctive faith. The Greeks yielded with reluctance and insincerity in the council of Florence; but soon rescinded their treaty of union. Ugenius IV. procured a short diverAD 1444 sion on the side of Hungary; but after the unfortunate battle of Warna the Hungarians were abundantly employed in self-defence. The two monarchies which have successively held their seat in the city of Constantine may be contrasted in the circumstances of their decline. In the present day we anticipate, with an assurance that none can deem extravagant, the approaching subversion of the Ottoman power; but the signs of internal weakness have not yet been confirmed by the dismemberment of provinces; and the arch of dominion, that long since has seemed nodding to its fall and totters at every blast of the north, still rests upon the landmarks of ancient conquest, and spans the ample regions from Bagdad to Belgrade. Far different were the events that preceded the dissolution of the Greek empire. Every province was in turn subdued - every city opened her gates to the conqueror: the limbs were lopped off one by one; but the pulse ts fa. till beat at the heart, and the majesty of the Roman name was ultimately confined to the walls of Constantinople. Before Mahomet II. planted 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 D. 1453 fall which her prosperity seldom earned. The Iloth deferred but inevitable moment arrived: and GREEKS, ETC. ALAEM IN EUROPE. 135 the last of the Caesars (I will not say of the Palaeologi) folded round him the imperial mantle, and remembered the name which he represented in the dignity of heroic death. 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 struggles of dissolution. Though the fate of Constantinople had been protracted beyond all reasonable expectation, the actual intel- Alarm exligence operated like that of sudden calamity. cited by it A sentiment of consternation, perhaps of self- inEurope. reproach, thrilled to the heart of Christendom. There seemed no longer anything to divert the Ottoman armies from Hungary; and if Hungary should be subdued, it was evident that both Italy and the German empire were exposed to invasion.1 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 Turks at the diet of Frankfort, in 1454; but no efforts were made to carry the menace into execution. No prince could have sat on the imperial throne more unfitted for the emergency than Frederic III.; his mean spirit and narrow capacity exposed him to the contempt of mankind - his avarice and duplicity ensured the hatred of Austria and Hungary. During the papacy of Pius II., whose heart was thoroughly engaged in this legitima.e crusade, a more specious attempt was made by convening an European congress at Mantua. Almost all the sovereigns attended by their envoys; it was concluded that 50,000 menat-arms should be raised, and a tax levied for three years of one tenth from the revenues of the clergy, AD1459 one thirtieth from those of the laity, and one twentieth from the capital of the Jews.2 Pius engaged to head this arma1 Sive vincitur Hungaria, sive coacta 2 Spondanus. Neither Charles VII. jungitur Turcis, neque Italia neque nor even Philip of Burgundy, who had Germania tuta erit, neque satis Rhenus made the loudest professions, and pledged Gallos securos reddet. AEn. Sylv. p. himself in a fantastic pageant at his 678. This is part of a discourse pro- court, soon after the capture of Constannounced by AEneas Sylvius before the tinople, to undertake this crusade, were diet of Frankfort; which. though too sincere in their promises. The former declamatory, like most of his writings, pretended apprehensions of invasion from is an interesting illustration of the state England, as an excuse for sending no of Europe and of the impression pro- troops; which, considering the situation duced by that calamity. Spondanus, of England in 1459, was a bold attempt ad ann. 1454, has given large extracts upon the credulity of mankind. from this oration. 134 INSTITUTION OF JANIZARIES. CHAP. V1. ment in person; but when he appeared next year at Ancona, the appointed 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 expecting to be fed and paid at the pope's expense. It was not by such a body that Mahomet could be expelled from Constantinople. If the Christian sovereigns had given a steady and sincere cooperation, the contest would still have Institution of been arduous and uncertain. In the early crusades Janizaries. 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 regular 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 purpose. The arm of Europe was thus turned upon herself; and the western nations must have contended with troops of hereditary robustness and intrepidity, whose emulous enthusiasm for the country that had adopted them was controlled by habitual obedience to their commanders.1 1 In the long declamation of Eneas insight into European politics; and his Sylvius before the diet of Frankfort in views are usually clear and sensible. 1454, he has the following contrast Though not so learned as some popes, he between the European and Turkish mili- knew much better what was going fortia; a good specimen of the artifice with ward in his own time. But the vanity which an ingenious orator can disguise of displaying his eloquence betrayed him the truth, while he seems to be stating into a strange folly, when he addressed a it most precisely. Conferamus nunc very long letter to Mahomet II., explainTurcos et vos invicem; et quid speran- ing the Catholic faith, and urging him to dum sit si cum illis pugnetis, examine- be baptized; in which case, so far from mus. Vos natl ad arma, illi tracti. Vos preaching a crusade against the Turks, armati, illi inermes; vos gladios versatis, he would gladly make use of their power ili cultris utuntur; vos balistas tenditis, to recover the rights of the church. Some illi arcus trahunt; vos loricae thoraces- of his inducements are curious, and que protegunt, illos culcitra tegit; vos must, if made public, have been highly equos regitis, illi ab equis reguntur; vos gratifying to his friend Frederic III. nobiles in bellum ducitis, illi servos aut Quippe ut arbitramur, si Christianus artifices cogunt, &c. &c. p. 685. This, fuisses, mortuo Ladislao Ungarise et Bohowever, had little effect upon the hear- hemice rege, nemo preeter te sua regna ers, who were better judges of military fuisset adeptus. Sperassent Ungari post affairs than the secretary of Frederic III. diuturna beilorum mala sub tuo regimPius II., or AEneas Sylvius, was a lively ine pacem, et illos Bohemi secuti fuiswriter and a skilful intriguer. Long sent; sed cum esses nostrae religionis experience had given him a considerable hostis, elegerunt Ungari, &c. Epist. 396. GREEKS, ETC. SUSPENSION OF OTTOMAN CONQUESTS. 135 Yet forty years after the fall of Cohstantinople, at the epoch of Charles VIII.'s expedition into Italy, the just Suspension of apprehensions of European statesmen might have the Ottoman gradually subsided. Except the Morea, Negropont, conquests. and a few other unimportant conquests, no real progress had been made by the Ottomans. Mahomet II. had been kept at bay by the Hungarians; he had been repulsed with some ignominy by the knights of St. John from the island of Rhodes. A petty chieftain 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 prospect of ultimate success, may justify the exaggerated admiration 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 A.D140 the possession of Mahomet. On his death a disputed succession involved his children in civil war. Bajazet, the eldest, obtained the victory; but his rival brother Zizim fled to Rhodes, from whence he was removed to France, and afterwards to Rome. Apprehensions of this exiled prince seem to have dictated a pacific policy to the reigning sultan, whose character did not possess the usual energy of Ottoman sovereigns. 136 WEALTH OF THE CHURCH. CHAP. VII. PART I. CHAPTER VII. HISTORY OF ECCLESIASTICAL POWER DURING THE MIDDLE AGES. PART I. Wealth of the Clergy -its Sources -Encroachments on Ecclesiastical Property — their Jurisdiction - arbitrative- coercive - their political Power- Supremacy of the Crown- Charlemagne - Change after his Death, and Encroachments of the Church in the ninth Century -Primacy of the See of Rome- its early Stage -Gregory I.- Council of Frankfort -false Decretals - Progress of Papal Authority- Effects of Excommunication - Lothaire- State of the Church in the tenth Century - Marriage of Priests - Simony - Episcopal Elections - Imperial Authority over the Popes - Disputes concerning Investitures - Gregory VII. and Henry IV. - Concordat of Calixtus - Election by Chapters - general System of Gregory VII. —Progress of Papal Usurpations in the twelfth Century —Innocent III. - his Character and Schemes. AT the irruption of the northern invaders into the Roman empire they found the clergy already endowed with extensive possessions. Besides the spontaneous oblations upon which the ministers of the Christian church had originWealth of the church ally subsisted, they had obtained, even under the under the pagan emperors, by concealment or connivance - empire. for the Roman law did not permit a tenure of lands in mortmain -certain immovable estates, the revenues of which were applicable to their own maintenance and that of the poor.1 These indeed were precarious and liable to confiscation in times of persecution. But it was among the first effects of the conversion of Constantine to give not only a security, but a legal sanction, to the territorial acquisitions of the church. The edict of Milan, in 313, recognizes the actual estates of ecclesiastical corporations.2 Another, published in 321, grants to all the subjects of the empire the power of bequeathing their property to the church.8 His 1 Giannone, Istoria di Napoli, 1. ii. c. tion; but a comparison of the three 8; Gibbon, c. 15 and c. 20; F. Paul's seems to justify my text. Treatise on Benefices, c. 4. The last 2 Giannone; Gibbon, ubi supra; F. writer does not wholly confirm this posi- Paul, c. 5. 8 Idem. ECCLES. POWER. ITS INCREASE. 137 own liberality and that of his successors set an example which did not want imitators. Passing rapidly from a condition of distress and persecution to the summit of prosperity, the church degenerated as rapidly from her ancient purity, and forfeited the respect of future ages in the same proportion as she acquired the blind veneration of her own. Covetousness, especially, became almost a characteristic vice. Valentinian I., in 370, prohibited the clergy from receiving the bequests of women- a modification more discreditable than any general law could have been. And several of the fathers severely reprobate the prevailing avidity of their contemporaries.' The devotion of the conquering nations, as it was still less enlightened than that of the subjects of the empire, Increased so was it still more munificent. They left indeed after its the worship of Hesus and Taranis in their forests; subversion but they retained the elementary principles of that and of all barbarous idolatry, a superstitious reverence for the priesthood, a credulity that seemed to invite imposture, and a confidence in the efficacy of gifts to expiate offences. Of this temper it is undeniable that the ministers of religion, influenced probably not so much by personal covetousness as by zeal for the interests of their order, took advantage. Many of the peculiar and prominent characteristics in the faith and discipline of those ages appear to have been either introduced or sedulously promoted for the purposes of sordid fraud. To those purposes conspired the veneration for relics, the worship of images, the idolatry of saints and martyrs, the religious inviolability of sanctuaries, the consecration of cemeteries, but, above all, the doctrine of purgatory and masses for the relief of the dead. A creed thus contrived, operating upon the minds of barbarians, lavish though rapacious, and devout though dissolute, naturally caused a torrent of opulence to pour in upon the church. Donations of land were continually made to the bishops, and, in still more ample proportion, to the monastic foundations. These had not been very numerous in the West till the beginning of the sixth century, when Benedict established his celebrated rule.2 A more remarkable show of piety, a more absolute seclusion from 1 Giannnone, ubi supra; F. Paul, c. 6. itme Discours sur l'Hist. Eccl6siastique; 2 Giannone, 1. iii. c. 6; 1. iv. c. 12; Muratori, Dissert. 65. Treatise on Benefices, o. 8; Fleury, Huit 138 WEALTH OF THE CHURCH CHAP. VII. PART I. the world, forms more impressive and edifying, prayers and masses more constantly repeated, gave to the professed in these institutions an advantage, in public esteem, over the secular clergy. The ecclesiastical hierarchy never received any territorial endowment by law, either under the Roman empire or the kingdoms erected upon its ruins. But the voluntary munificence of princes, as well as their subjects, amply supplied the place of a more universal provision. Large private estates, or, as they were termed, patrimonies, not only within their own dioceses, but sometimes in distant countries, sustained the dignity of the principal sees, and especially that of Rome.1 The French monarchs of the first dynasty, the Carlovingian family and their great chief, the Saxon line of emperors, the kings of England and Leon, set hardly any bounds to their liberality, as numerous charters still extant in diplomatic collections attest. Many churches possessed seven or eight thousand mansi; one with but two thousand passed for only indifferently rich.2 But it must be remarked that many of these donations are of lands uncultivated and unappropriated. The monasteries acquired legitimate riches by the culture of these deserted tracts and by the prudent management of their revenues, which were less exposed to the ordinary means of dissipation than those of the laity. Their wealth, continually accumulated, enabled them to become the regular purchasers of landed estates, especially in the time of the crusades, when the fiefs of the nobility were constantly in the market for sale or mortgage.4 If the possessions of ecclesiastical communities had all Sometimes been as fairly earned, we could find nothing in improperly them to reprehend. But other sources of wealth acquired. were less pure, and they derived their wealth from many sources. Those who entered into a monastery threw frequently their whole estates into the common stock; and even the children of rich parents were expected to make a donation of land on assuming the cowl. Some gave their property to the church before entering on military expeditions; gifts were made by some to take effect after their lives, and bequests by many in the terrors of dissolution. 1 St. Marc, t. i. p. 281; Giannone, 1. 3 Muratori, Dissert. 65; Du Cange, v. iv. c. 12. Eremus. 2 Schmidt, t. ii. p. 205. 4 Heeren, Essai sur les Croisades, p. 166; Schmidt, t. iii. p. 293. ECCLES. POWER. SOMETIMES IMPROPERLY ACQUIRED. 139 Even those legacies to charitable purposes, which the clergy could with more decency and speciousness recommend, and of which the administration was generally confined to them, were frequently applied to their own benefit.l They failed not, above all, to inculcate upon the wealthy sinner that no atonement could be so acceptable to Heaven as liberal presents to its earthly delegates.2 To die without allotting a portion of worldly wealth to pious uses was accounted almost like suicide, or a refusal of the last sacraments; and hence intestacy passed for a sort of fraud upon the church, which she punished by taking the administration of the deceased's effects into her own hands. This, however, was peculiar to England, and seems to have been the case there only from the reign of Henry III. to that of Edward III., when the bishop took a portion of the intestate's personal estate for the advantage of the church and poor, instead of distributing it among his next of kin.8 The canonical penances imposed upon repentant offenders, extravagantly severe in themselves, were commuted for money or for immovable possessions - a fertile though scandalous source of monastic wealth, which the popes afterwards diverted into their own coffers by the usage of dispensations and indulgences.4 The church lands, enjoyed an immunity from taxes, though not in general from military service, when of a feudal tenure.5 But their tenure was frequently in what was called frankalmoign, without any obligation of service. Hence it became a customary fraud 1 Prim6 sacris pastoribus data est fa- benter, et ardentissimo animo ego accultas, ut hvereditatis portio in pauperes cepi. et egenos dispergeretur; sed sensim 3 Selden, vol. iii. p. 1676; Prynne's ecclesise quoque in pauperum censum Constitutions, vol. iii. p. 18; Blackstone, venerunt, atque intestatae gentis mens vol. ii. chap. 32. In France the lord of credita est proclivior in eas futura fuisse: the fief seems to have taken the whole qua ex re pinguius illarum patrimonium spoil. Du Cange, v. Intestatus. evasit. Immo episcopi ipsi in rem suam 4 Muratori, Dissert. 68. ejusmodi consuetudinem interdum con- 5 Palgrave has shown that the Anglovertebant: ac tributum evasit, quod Saxon clergy were not exempt, originally antea pii moris fuit. Muratori, Antiqui- at least, from the trinoda necessitas imtates Italiae, t. v. Dissert. 67. posed on all alodial proprietors. They 2 Muratori, Dissert. 67 (Antiquit. were better treated on the Continent; Italiae, t. v. p. 1055), has preserved a and Boniface exclaims that in no part of curious charter of an Italian count, who the world was such servitude imposed on declares that, struck with reflections the church as among the English. Engupon his sinful state, he had taken lish Commonwealth, i. 158. But when counsel with certain religious how he we look at the charters collected in Kemshould atone for his offences. Accepto ble's Codex Diplomaticus (most or nearconsilio ab iis, excepto si renunciare ly all of them in favor of the church), saeculo possem, nullum esse melius inter we shall hardly think they were ill off, eleemosinarum virtutes, quam si de pro- though they might be forced sometimes priis meis substantiis in monasterium to repair a bridge, or send their tenants concederem. Hoc consilium ab iis li- against the Danes 140 TITHES. CHAP. VII. PART I. of lay proprietors to grant estates to the church, which they received again by way of fief or lease, exempted from public burdens. And, as if all these means of accumulating what they could not legitimately enjoy were insufficient, the monks prostituted their knowledge of writing to the purpose of forging charters in their own favor, which might easily impose upon an ignorant age, since it has required a peculiar science to detect them in modern times. Such rapacity might seem incredible in men cut off from the pursuits of life and the hope of posterity, if we did not behold every day the unreasonableness of avarice and the fervor of professional attachments.' As an additional source of revenue, and in imitation of Tithes. the Jewish law, the payment of tithes was recommended or enjoined. These, however, were not applicable at first to the maintenance of a resident clergy. Parochial divisions, as they now exist, did not take place, at least in some countries, till several centuries after the establishment of Christianity.2 The rural churches, erected successively as the necessities of a congregation required, or the piety of a landlord suggested, were in fact a sort of chapels dependent on the cathedral, and served by itinerant ministers at the bishop's discretion.8 The bishop himself 1 Muratori's 65th, 67th, and 68th Dis- gantur; et si laicus idoneum utilemque sertations on the Antiquities of Italy clericum obtulerit nulla qualibet occahave furnished the principal materials of sione ab episcopo sine ratione certa remy text, with Father Paul's Treatise on pellatur; et si rejiciendus est, propter Benefices, especially chaps. 19 and 29. scandalum vitandum evidenti ratione Giannone, loc. cit. and 1. iv. c. 12; 1. v. manifestetur." Another capitulary of c. 6; 1. x. c. 12. Schmidt, Hist. des. Alle- Charles the Bald, in 864, forbids the esInands, t. i. p. 370; t. ii. p. 203, 462; t. tablishment of priests in the churches iv. p. 202. Fleury, III. Discours sur of patrons, or their ejection without the l'Hist. Eccles. Du Cange,voc. Precaria. bishop's consent:-"De his qui sine 2 Muratori, Dissert. 74, and Fleury, In- consensu episcopi presbyteros in ecclesiis stitutions au Droit ecclesiastique, t. i. p. suis constituunt, vel de ecclesiis dejici162, refer the origin of parishes to the unt." Thus the churches are recognized fourth century; but this must be limited as the property of the lord; and the parto the most populous part of the em- ish may be considered as an established pire. division, at least very commonly, so 3 These were not always itinerant; early, as the Carlovingian empire. I do commonly, perhaps, they were depend- not by any means deny that it was parants of the lord, appointed by the bishop tially known in France before that time. on his nomination. - Lehuerou, Institut. Guizot reckons the patronage of Carolingiennes, p. 526, who quotes a ca- churches by the laity among the circumpitulary of the emperor Lothaire in 825. stances which diminished or retarded "De clericis vero laicorum, unde non- ecclesiastical power. (Leconl3.) Itmay nulli eorum conqueri videantur, eo quod have been so; but without this patronage quidam episcopi ad eorum preces nolint there would have been very few parish in ecclesiis suis eos, cum utiles sint, ordi- churches. It separated, in some degree, nare, visum nobis fuit, ut.... et cum the interests of the secular clergy from caritate et ratione utiles et idonei eli- those of the bishops and the regulars. ECCLES. POWER. TITHES. 141 received the tithes, and apportioned them as he thought fit. A capitulary of Charlemagne, however, regulates their division ito three parts; one for the bishop and his clergy, a second for the poor, and a third for the support of the fabric of the church.1 Some of the rural churches obtained by episcopal concessions the privileges of baptism and burial, which were accompanied with a fixed share of tithes, and seem to imply the residence of a minister. The same privileges were gradually extended to the rest; and thus a complete parochial division was finally established. But this was hardly the case in England till near the time of the conquest.2 The slow and gradual manner in which parochial churches became independent appears to be of itself a sufficient answer to those who ascribe a great antiquity to the universal payment of tithes. There are, however, more direct proofs that this species of ecclesiastical property was acquired not only by degrees but with considerable opposition. We find the payment of tithes first enjoined by the canons of a provincial council in France near the end of the sixth century. From the ninth to the end of the twelfth, or even later, it is continually enforced by similar authority.8 Father Paul remarks that most of the sermons preached about the eighth century inculcate this as a duty, and even seem to place the summit of Christian perfection in its performance.4 This reluctant submission of the people to a general and permanent tribute is perfectly consistent with the eagerness displayed by them in accumulating voluntary donations upon the church. Charlemagne was the first who gave the confirmation of a civil statute to these ecclesiastical injunctions; no one at least has, so far as I know, adduced any earlier law for the payment of tithes than one of his capitularies.5 But it would be precipitate to infer either that the practice had not already gained ground to a considerable extent, through the influence of ecclesiastical authority, or, on the other hand, that it became 1 Schmidt, t. ii. p 206. This seems to remarkable rashness, attacked the curhave been founded on an ancient canon, rent opinion that Charlemagne estabF. Paul, c. 7. lished the legal obligation of tithes, and 2 Collier's Ecclesiastical Hirtory, p. 229. denied that any of his capitularies bear 8 Selden's History of Tithes, vol. iii. such an interpretation. Those which he p. 1108, edit. Wilkins. Tithes are said quotes have indeed a different meaning; by Giannone to have been enforced by but he has overlooked an express enactsome papal decrees in the sixth century. ment in 789 (Baluzii Capitularia, t. i. 1. iii c. 6. p. 253), which admits of no question; 4 Treatise on Benefices, c. 11. and I believe that there are others in 5 Mably, (Observations sur'Hist. de confirmation. France, t. i. p. 238 et 438) has, with 142 SPOLIATION OF CHURCH PROPERTY. CHAP. VII. PART I. universal in consequence of the commands of Charlemagne.1 In the subsequent ages it was very common to appropriate tithes, which had originally been payable to the bishop, either towards the support of particular churches, or, according to the prevalent superstition, to monastic foundations.2 These arbitrary consecrations, though the subject of complaint, lasted, by a sort of prescriptive right of the landholder, till about the year 1200. It was nearly at the same time that the obligation of paying tithes, which had been originally confined to those called predial, or the fruits of the earth, was extended, at least in theory, to.every species of profit, and to the wages of every kind of labor.8 Yet there were many hindrances that thwarted the clergy Spoliation in their acquisition of opulence, and a sort of reflux of church that set sometimes very strongly against them. In property. y ftarbrou proper times of barbarous violence nothing can thoroughly compensate for the inferiority of physical strength and prowess. The ecclesiastical history of the middle ages presents one long contention of fraud against robbery; of acquisitions made by the church through such means as I have described, and torn from her by lawless power. Those very men who in the hour of sickness and impending death showered the gifts of expiatory devotion upon her altars, had passed the sunshine of their lives in sacrilegious plunder. Notwithstanding the frequent instances of extreme reverence for religious institutions among the nobility, we should be deceived in supposing this to be their general character. Rapacity, not less insatiable than that of the abbots, was commonly united with a daring fierceness that the abbots could not resist.4 In every country we find continual lamen1 The grant of Ethelwolf in 855 has have been for life, but were frequently appeared to some antiquaries the most renewed. They are not to be confounded probable origin of the general right to with terra censuales. or lands let to a tithes in England [NOTE I.] It is said tenant at rack-rent, which of course by Marina that tithes were not legally formed a considerable branch of revenue. established in Castile till the reign of The grant was called precaria from being Alfonso X. Ensayo sobre les Siete Par- obtained at the prayer of a grantee; tidas, c. 359. and the uncertainty of its renewal seems 2 Selden, p. 1114 et seq.; Coke, 2 Inst. to have given rise to the adjective prep. 641. carious. 3 Selden's History of Tithes; Treatise In the ninth century, though the preon Benefices, c. 28; Giannone, 1. x. c. 12. tensions of the bishops were never higher, 4 The church- was often compelled to the church itself was more pillaged ungrant leases of her lands, under the name der pretext of these precaric, and in of precaric,, to laymen, who probably other ways, than at any former time. - rendered little or no service in return, See Du Cange for a long article on Prethough a rent or census was expressed in cariae. the instrument. These precaria seem to ECCLES. POWER. SPOLIATION OF CHURCH PROPERTY. 143 tation over the plunder of ecclesiastical possessions. Charles Martel is reproached with having given the first notorious example of such spoliation. It was not, however, commonly practised by sovereigns. But the evil was not the less universally felt. 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 impropriators, who employed curates at the cheapest rate; an abuse that has never ceased in the church.' Several attempts were made to restore these tithes; but even Gregory VII. did not venture to proceed in it; 2 and indeed it is highly probable that they might be held in some instances by a lawful title.3 Sometimes the property of monasteries was dilapidated by corrupt abbots, whose acts, however clandestine and unlawful, it was not easy to revoke. And 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 advocates became too often themselves the spoilers, and oppressed the helpless ecclesiastics for whose defence they had been engaged.4 If it had not been for these drawbacks, the clergy must, one would imagine, have almost acquired the exclusive property 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.5 They had reached, perhaps, their zenith in respect of territorial prop1 Du Cange, voc. Abbas. saurus Anecdotorum, t. i. p. 595. Vais2 Schmidt, t iv. p. 204. At an assem- sette, Hist. de Languedoc, t. ii. p. 109, bly held at St. Denis in 997 the bishops and Appendix, passim. proposed to restore the tithes to the secu- 5 Turner's Hist. of England, vol. ii. lar clergy; but such a tumult was ex- p. 413, from Avesbury. According to a cited by this attempt, that the meeting calculation founded on a passage in was broken up. Recueil des Historiens, Knyghton, the revenue of the English t. xi. prsefat. p. 212. church in 1337 amounted to 730,000 3 Selden's Hist. of Tithes, p. 1136. marks per annum. Macpherson's AnThe third council of Lateran restrains nals of Commerce, vol. i. p. 519; Hislaymen from transferring their impro- toire du Droit public Eccles. Francois, priated tithes to other laymen. Velly, t. i. p. 214. Anthony Harmer (Henry Hist. de France, t. iii. p. 235. This seems Wharton) says that the monasteries did tacitly to admit that their possession was not possess one fifth of the land; and I awful, at least by prescription, incline to think that he is nearer the 4 For the injuries sustained by ec- truth than Mr. Turner, who puts the clesiastical proprietors, see Muratori, wealth of the church at above 28,000 Dissert. 72. Du Cange, v. Advocatus. knights' fees out of 53,215. The bishops' Schmidt, t. ii. p. 220, 470; t. iii. p. 290; lands could not by any means account t. iv. p. 188, 202. Recueil des Historiens, for the difference; so that Mr. Turner t. xi. praefat. p. 184. Martenne, The- was probably deceived by his authority. 144 ECCLESIASTICAL JURISDICTION. CHAP. VII. PART I. erty about the conclusion of the twelfth century.1 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. The acquisitions of wealth by the church were hardly so Ecclesias. remarkable, and scarcely contributed so much to tical juris her greatness, as those innovations upon the ordidiction. nary course of justice which fall under the head of ecclesiastical jurisdiction and immunity. It is hardly, perhaps, necessary to caution the reader that rights of territorial justice, possessed by ecclesiastics in virtue of their fiefs, are by no means included in this description. Episcopal jurisdiction, properly so called, may be considered as depending upon the choice of litigant parties, upon their condition, and upon the subject-matter of their differences. 1. The arbitrative authority of ecclesiastical pastors, if not rbitrative. coeval with Christianity, grew up very early in the church, and was natural, or even necessary, to an insulated and persecuted society.2 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 arbitration 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 the civil magistrate to enforce the execution of episcopal awards. Another edict, ascribed to the same emperor, and annexed to the Theodosian code, extended the jurisdiction of the bishops to all causes which either party chose to refer to it, even where they had already commenced in a secular court, and declared the bishop's sentence not subject to appeal. This edict has clearly been proved to be a forgery. It is evident, by a novel of Valentinian III., about 450, that the church had still no jurisdiction in questions of a temporal 1 The great age of monasteries in 2 1 Corinth. v. 4. The word OovLtEngland was the reigns of Henry I., V7gLv'ovC', rendered in our version "; of Stephen, and Henry II. Lyttelton's no reputation," has been interpreted by Henry II. vol. ii. p. 329. David I. of some to mean persons destitute of coerScotland, contemporary with Henry II., cive authority, referees. The passage at was also a noted founder of monasteries. least tends to discourage suits before a Dalrymple's Annals. secular judge. ECCLES. POWER. ECCLESIASTICAL JURISDICTION. 145 nature, except by means of the joint reference of contending parties. Some expressions, indeed, used by the emperor, seem intended to repress the spirit of encroachment upon the civil magistrates, which had probably begun to manifest itself. Charlemagne, indeed, in one of his capitularies, is said by some modern writers to have repeated all the absurd and enormous provisions of the spurious constitution in the Theodosian code.l But this capitulary is erroneously ascribed to Charlemagne. It is only found in one of the three books subjoined by Benedict Levita to the four books of capitularies collected by Ansegisus; these latter relating only to Charlemagne and Louis, but the others comprehending many of later emperors and kings. And, what is of more importance, it seems exceedingly doubtful whether this is any genuine capitulary at all. It is not referred to any prince by name, nor is it found in any other collection. Certain it is that we do not find the church, in her most arrogant temper, asserting the full privileges contained in this capitulary.2 2. If it was considered almost as a general obligation upon the primitive Christians to decide their civil dis- oercive over putes by internal arbitration, much more would the clergy in this be incumbent upon the clergy. The canons clvil of several councils, in the fourth and fifth centuries, sentence a bishop or priest to deposition, who should bring any suit, civil or even criminal, before a secular magistrate. This must, it should appear, be confined to causes where the defendant was a clerk; since the ecclesiastical court had hitherto no coercive jurisdiction over the laity. It was not so easy to induce laymen, in their suits against clerks, to prefer the episcopal tribunal. The emperors were not at all disposed ti favor this species of encroachment till the reign of Justinian, who ordered civil suits against ecclesiastics to be carried only before the bishops. Yet this was accompanied by a provision that a party dissatisfied with the sentence might apply to the secular magistrate, not as an appellant, but a coordinate jurisdiction; for if different judgments were given in the two courts, the process was ultimately referred to the emperor.8 But the early Merovingian kings adopted 1 Baluzii Capitularia, t. i. p. 9018. p. 1. Memoires de lAcademie des In2 Gibbon, c. xx. Giannone, 1. ii. c. 8; scriptions, t. xxxix. p. 6p6. 1. iii. e. 6; 1. vi. c. 7. Schmidt, t. ii. 3 This was also established about the p. 208. Fleury, 7me Discours, and In- same time by Athalaric king of the stitutions au Droit Eccl6siastique, t. ii. Ostrogoths, and of course affected the VOL. II. 10 146 ECCLESIASTICAL JURISDICTION. CHAP. VII. PART I the exclusive jurisdiction of the bishop over causes wherein clerks were interested, without any of the checks which Justinian had provided. Many laws enacted during their reigns, and under Charlemagne, strictly prohibit the temporal magistrates from entertaining complaints against the children of the church. This jurisdiction over the civil causes of clerks was not and criminal immediately attended with an equally exclusive suits. cognizance of criminal offences imputed to them, wherein the state is so deeply interested, and the church could inflict so inadequate a punishment. Justinian appears 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 executed 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 Merovingians; but they enact that he 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 privilege which it had vainly endeavored to establish under the earlier emperors. France permitted the same immunity; Chilperic, one of the most arbitrary of her kings, did not venture 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.1 3. The character of a cause, as well as of the parties enOver gaged, might bring it within the limits of eccleparticular siastical, jurisdiction. In all questions simply causes. religious the church had an original right of decision; in those of a temporal nature the civil magistrate had, by the imperial constitution, as exclusive an authority.2 popes who were his subjects. St. Marc, general (Baluz. Capitul. t. i. p. 227); and t. i. p. 60; Fleury, Hist. Eccles. t. vii. the same is expressed still more forcibly p. 292. in the collection published by Ansegisus 1 M6moires de l'Academie, ubi supra; under Louis the Debonair. (Id. p. 904 Giannone, 1. iii. c. 6; Schmidt, t. ii. p. 236; and 1115.) See other proofs in Fleury, Fleury, ubi supra. Hist. Eccles. t. ix. p. 607. Some of these writers do not state the 2 Quoties de religione agitur, episcopos law of Charlemagne so strongly. Never- oportet judicare; alteras vero causas quae theless the words of a capitulary in 789, ad ordinaries cognitores vel ad usum IUt clerici ecclesiastici ordinis si culpam publici juris pertinent, legibus oportet incurrerint apud ecclesiasticos judicen- audiri. Lex Arcadii et Honorii apud tur, non apud seeculares, are sufficiently Mem. de 1'Academie, t. xxxix. p. 571. ECCLES. POWER. POLITICAL POWER OF CLERGY. 147 Later ages witnessed strange innovations in this respect, when the spiritual courts usurped, under sophistical pretences, almost the whole administration of justice. But these encroachments were not, I apprehend, 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 part of the subject for the present. In this sketch of the riches and jurisdiction of the hierarchy I may seem to have implied their political Political influence, which is naturally connected with the power of two former. They possessed, however, more di- clergy.,tect means of acquiring temporal power. Even under the Roman emperors they had found their road into palaces; they were sometimes ministers, more often secret counsellors, always necessary but formidable allies, whose support was to be conciliated, and interference to be respected. But they assumed a far more decided influence over the new kingdoms of the West. They were entitled, in the first place, by the nature of those free governments, to a privilege unknown under the imperial despotism, that of assisting in the deliberative assemblies of the nation. Councils of bishops, such as had been convoked by Constantine and his successors, were limited in their functions to decisions of faith or canons of ecclesiastical discipline. But the northern nations did not so well preserve the distinction between secular and spiritual legislation. The laity seldom, perhaps, gave their suffrage to the canons of the church; but the church was not to scrupulous as to trespassing upon the province of the laity. Many provisions are found in the canons of national and even provincial councils which relate to the temporal constitution of the state. Thus one held at Calcluith (an unknown place in England), in 787, enacted that none but legitimate princes should be raised to the throne, and not such 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 Mercia and Northumberland, with many of their nobles, confirmed the canons by their signature. As for the councils held under the Visigoth kings of Spain during the seventh century, it is not easy to determine whether they are to be considered as ecclesiastical or temporal assemblies.l No kingdom was so 1 Marina, Teoria de las Cortes, t. i. p. 9. 148 SUPREMACY OF THE STATE. CHAP. VII. PART 1. thoroughly under the bondage of the hierarchy as Spain.1 The first dynasty of France seem to have kept their national convention, called the Field of March, more distinct from merely ecclesiastical councils. The bishops acquired and retained a great part of their ascendency by a very respectable instrument of power, intellectual superiority. As they alone were acquainted with the art of writing, they were naturally entrusted with political correspondence, and with the framing of the laws. As they alone knew the elements of a few sciences, the education of royal families devolved upon them as a necessary duty. In 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, whose ambition may be forgiven for its effects, 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.2 Notwithstanding, however, the great authority and privisupremacy leges'of the church, it was decidedly subject to the of the state; supremacy of the crown, both during the continuance of the Western empire and after its subversion. The emperors convoked, regulated, and dissolved universal councils; the kings of France and Spain exercised the same right over the synods of their national churches.8 The Ostrogoth kings of Italy fixed by their edicts the limits within which matrimony was prohibited on account of consanguinity, and granted dispensations from them.4 Though the Roman emperors left episcopal elections 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 1 See instances of the temporal power to extenuate the royal supremacy, but of the Spanish bishops in Fleury, Hist. his own work furnishes abundant eviEccles. t. viii. p. 368, 397; t. ix. p. 68, &c. dence of it; especially 1. vi. c. 19, &c. 2 Schmidt, t. i. p. 365. For the ecclesiastical independence of 3 Encyclopedie, art. Concile. Schmidt, Spain, down to the eleventh century, see t. i. p. 384. De Marca, De Concordantia Marina, Ensayo sobre las Siete Partidas, Sacerdotii et Imperil, 1. ii. c. 9, 11; et c. 322, &c.; and De Marca, l.vi. c. 23. 1. iv. passim. 4 Giannone, 1. iii. c. 6. The last of these sometimes endeavors ECCLES. POWER. SUPREMACY OF THE STATE. 149 decision or to determine a contest. The kings of France went further, and seem to have invariably either nominated the bishops, or, what was nearly tantamount, recommended their own candidate to the electors. But the sovereign who maintained with the greatest vigor his ecclesiastical supremacy was Charlemagne. especially Most of the capitularies of his reign relate to the of Charlediscipline of the church; principally indeed taken magne. from the ancient canons, but not the less receiving an addi. tional sanction from his authority.1 Some of his regulations, which appear to have been original, are such as men of high church principles would, even in modern times, deem infringments of spiritual independence; that no legend of doubtful authority should be read in the churches, but only the canonical books, and that no saint should be honored whom the whole church did not acknowledge. These were not passed, in a synod of bishops, but enjoined by the sole authority of the emperor, who seems to have arrogated a legislative power over the church which he did not possess in temporal affairs. Many of his other laws relating to the ecclesiastical constitution are enacted in a general council of the lay nobility as well as of prelates, and are so blended with those of a secular nature, that the two orders 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 established, and...-..ticular heresy condemned, with the consent of the nobles. But whatever share we may imagine.eneral to have had in such matters, Charlemagne Ionsider even theological decisions as beyond'n more than one instance, manifested a surrender his own judgment, even in lure, to any ecclesiastical authority.2 ~ualuzii Capitularia, passim; Schmidt, pelled to acknowledge the supremacy of t. ii. p. 239; Gaillard, Vie de Charle- a great mind. By a vigorous repression magne, t. iii. of those secular propensities which were 2 Charlemagne had apparently devised displaying themselves among the superior an ecclesiastical theory, which would now clergy, he endeavored to render their be called Erastian, and perhaps not very moral influence more effective. This, short of that of Henry VIII. He directs however, could not be achieved in the the clergy what to preach in his own ninth century; nor could it have been name, and uses the first person in eccle- brought about by any external power. siastical canons. Yet, if we may judge Nor was it easily consistent with the by the events, the bishops lost no part of continual presence of the bishops in their permanent ascendency in the state national assemblies, which had become through this interference, though cornm essential to the polity of his age, and 150 PRETENSIONS OF THE HIERARCHY CHAP. VII. PART I. This part of Charlemagne's conduct is duly to be taken into the account before we censure his vast extension of ecclesiastical privileges. Nothing was more remote from his character than the bigotry of those weak princes who have suffered the clergy to reign under their names. He acted upon a systematic plan of government conceived by his own comprehensive genius, but requiring too continual an application of similar talents for durable execution. It was the error of a superior mind, zealous for religion and learning to believe that men dedicated to the functions of the one, and possessing what remained of the other, might, through strict rules of discipline, enforced by the constant vigilance of the sovereign, become fit instruments to reform and civilize a barbarous empire. It was the error of a magnanimous spirit to judge too favorably of human nature, and to presume that great trusts would be fulfilled, and great benefits remembered. It is highly probable, indeed, that an ambitious hierarchy did not endure without reluctance this imperial supremacy of Charlemagne, though it was not expedient for them to Pretensions resist a prince so formidable, and from whom they of the had so much to expect. But their dissatisfaction hierarchy in the ninth at a scheme of government incompatible with century. their own objects of perfect independence produced a violent recoil under Louis the Debonair, who attempted to act the censor of ecclesiastical abuses with as much earnestness as his father, though with very inferior qua; so delicate an undertaking. The bishops.v among the chief instigators of those numerous r' children which harrassed this emperor. T' occasion, the first example of an usurps-' come very dangerous to society - th eigns by ecclesiastical authority. Lo. hands of his enemies, had been intimidate, i., go a public penance; and the bishops pretended that, accoruing to a canon of the church, he was incapable of returning with which he would not, for several rebus secularibus debeat inserere, vel in reasons, have wholly dispensed. Yet it quantum comes, vel alter laicus, in eccleappears, by a remarkable capitulary of siastica negotia. But as the laity, him811, that he had perceived the inconve- self excepted, had probably interfered nience of allowing the secular a'nd spir- very little in church affairs, this capituitual powers to clash with each other: lary seems to be restrictive of the pre. -Discutiendum est atque intervenien- lates. dum in quantum se episcopus aut abbas ECCLES. POWER. IN THE NINTH CENTURY. 151 afterwards to a secular life or preserving the character of sovereignty.1 Circumstances enabled him to retain the empire in defiance of this sentence; but the church had tasted the pleasure of trampling upon crowned heads, and was eager to repeat the experiment. Under the disjointed and feeble administration of his posterity in their several kingdoms, the bishops availed themselves of more than one opportunity to exalt their temporal 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 bishops, who 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.2 After concurring in this unprecedented encroachment, Charles the Bald had little right to complain when, some years afterwards, an assembly of bishops declared himself to have forfeited his crown, released his subjects from their allegiance, and transferred his kingdom to Louis of Bavaria. But, in truth, he did not pretend to deny the principle which he had contributed to maintain. Even in his own behalf he did not appeal to the rights of sove1 Habitu saeculi se exuens habitum deposed Wamba; it may have been a poenitentis per impositionem manuum voluntary abdication, influenced by suepiscoporum, suscepit; ut post tantam perstition, or, perhaps, by disease. A talemque pot.nitentiam nemo ultra ad late writer has taken a different view of militiam sa,'rom redeat. Acta ex- this event, the deposition of Louis at auctorationis LuL. i, apud Schmidt, Compiegne. It was not, he thinks, une t. ii. p. 68. There was a sort of prece- hardiesse sacerdotale, une temerit6 eccledent, though not, I think, very apposite, siastique, mais bien une lachete politique. for this doctrine e implied abdication, Ce n'etait point une tentative pour in the case of We, king of the Visi- l6ever l1autorit6 religieuse au-dessus de goths in Spain, w d ~;, been clothed 1'autorit6 royale dans les affaires tempowith a monastinot to Lt ording to a relies; c'6tait, au contraire, unabaissecommon super..inga dangerous ment servile de la premiere devant le:iness, was aPat nat Jdjudged by a monde. Fauriel, Hist. de la Gaule M6council incaptL uming his crown; ridionale, iv. 150. In other words, the to which he voluntarily submitted. The bishops lent themselves to the aristocratic story, as told by an original writer, faction which was in rebellion against quoted in Baronius ad A.D. 681, is too Louis. Ranke, as has been seen in an obscure to warrant any positive infer- early note, thinks that they acted out of ence; though I think we may justly revenge for his deviation from the law of suspect afraudulent contrivance between 817, which established the unity of the the bishops and Ervigius, the successor empire. The bishops, in fact, had so of Wamba. The latter, besides his mo- many secular and personal interests and nastic attire, had received the last sacra- sympathies, that we cannot always judge ments; after which he might be deemed of their behavior upon general princivilly dead. Fleury, 3me Discours sur ciples. 1'Hist. Ecclesiast., puts this case too 2 Schmidt, t. ii. p. 77. Velly t. ii. strongly when he tells us that the bishops p. 61; see, too, p. 74. 152 PRETENSIONS OF THE HIERARCHY. CHAP. VII. PART I. reigns, and of the nation whom they represent. "No one," says this degenerate grandson of Charlemagne, "ought to have degraded me from the throne to which I was consecrated, 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." 1 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 favorable circumstances, was as dangerous to civil government as the subsequent usurpations of the Roman pontiff, 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. There is extant a remarkable instrument recording the election of Boson king of Aries, by which the bishops alone appear to have elevated him to the throne, without any concurrence of the nobility.2 But it is inconceivable that such could have really been the case; and if the instrument is genuine, we must suppose it to have been framed in order to countenance future pretensions. For the clergy, by their exclusive knowledge of Latin, had it in their power to mould the language of public documents for their own purposes; a circumstance which should be cautiously kept in mind when we peruse instruments drawn up during the dark ages. It was with an equal defiance of notorious truth that the bishop of Winchester, presiding as papal legate at an assemby 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, 1 Schmidt, t. ii. p. 217. que primo in auxlium Divinitate, filiam 2 Recueil des Historiens, t. ix. p. 304. pacifici regis, &c., in Anglia Norman3 Ventilata est causa, says the Legate, niseque dominam eligimus, et ei fidem coram majori parte cleri Anglise, ad et manutenementum promittimus. GuL cujus jus potissimum spectat principem Malmsb. p. 188. eligere, simulque ordinare. Invocatl ita ECCLES. POWER. RISE OF THE PAPAL POWER. 153 indeed, has been obsequious, beyond most other countries, to the arrogance of her hierarchy; especially during the AngloSaxon period, when the nation was sunk in ignorance and effeminate superstition. Every one knows the story of king Edwy in some form or other, though I believe it impossible to ascertain the real circumstances of that controverted anecdote.1 But, upon the supposition least favorable to the king, the behavior of Archbishop Odo and Dunstan was an intoler. able outrage of spiritual tyranny. But while the prelates of these nations, each within his respective sphere, were prosecuting their system Rise of th of encroachment upon the laity, a new scheme papal power. was secretly forming within the bosom of the Its com-e church, to enthral 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 moderate 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 the imperial city.2 A sort of general superintendence was admitted as an attribute of this primacy, so that the bishops of Rome were entitled, and indeed bound, to remonstrate, when any error or irregularity 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, with the common capital of the Roman empire and of Christendom.4 Various causes 1 [NOTE II.] Irenaeus rather vaguely, and Cyprian 2 These foundations of the Roman pri- more positively, admit, or rather assert, macy are indicated by Valentinian III., the primacy of the church of Rome, a great favorer of that see, in a novel of which the latter seems even to have conthe year 455: Cum igitur sedis aposto- sidered as a kind of centre of Catholic licae primatum B. Petri meritum, qui unity, though he resisted every attempt eat princeps sacerdotalis coronae et Ro- of that church to arrogate a controlling manse dignitas civitatis, sacrae etiam sy- power.- See his treatise De Unitate Ecnodi firmavit auctoritas. The last words clesise. [1818.] [NOTE III.] allude to the sixth canon of the Nicene 3 Dupin, De antiqua Ecclesise Discicouncil, which establishes or recognizes plina, p. 806 et seqq.; Histoire du Droit the patriarchal supremacy, in their re- public ecclesiastique Francois, p. 149. spective districts, of the churches of The opinion of the Roman see's supremRome, Antioch, and Alexandria. De acy, though apparently rather a vague Marca, de Concordantia Sacerdotii et Im- and general notion, as it still continues peril, 1. i. c. 8. At a much earlier period, in those Catholics who deny its infalli 154 PATRIARCHATE OF ROME. CHAP. VII. PART I. 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 Constantinople, 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 enhanced the power and dignity of the Roman see. By the constitution of the church, 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 metropolitan, and every vicariate its ecclesiastical exarch or primate. The bishop of Rome presided, in the latter capacity, 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 metropolitan; so that the popes exercised all metropolitical functions within them, such as the consecration of bishops, the convocation of synods, the ultimate decision of appeals, and many other sorts of authority. These provinces are sometimes called the Roman patriPatriarchate archate; the bishops of Rome having always been of Rome. reckoned one, generally indeed the first, of the patriarchs; each of whom was at the head of all the metropolitans within his limits, but without exercising those privileges which by the ecclesiastical constitution appertained to the latter. Though the Roman patriarchate, properly so called, was comparatively very small in extent, it gave its chief, for the reason mentioned, advantages in point of authority which the others did not possess.' I may perhaps appear to have noticed circumstances interesting only to ecclesiastical scholars. But it is important to apprehend this distinction of the patriarchate from the primacy of Rome, because it was by extending the boundability, seems to have prevailed very much ii. c. 8; 1. iii c. 6.; De Marca, 1. i. c. 7 et in the fourth century. Fleury brings alibi. There is some disagreement among remarkable proofs of this from the writ- these writers as to the extent of the Roings of Socrates, Sozomen, Ammianus man patriarchate, which some suppose Marcellinus, and Optatus. Hist. Eccles. to have even at first comprehended all t. iii. p. 282, 320, 449; t. iv. p. 227. the western churches, though they ad1 Dupin, De Antiqua Eccles. Disciplina, mit that, in a more particular sense, it p. 39, &c.; Giannone, Ist. di Napoli, 1. was confined to the vicariate of Rome ECCLES. POWER. PATRIARCHATE OF ROME. 155 ries 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 without their consent.1 This was before the end of the fourth century. Their subsequent advances were, however, very gradual. About the middle of the sixth century we find them confirming the elections of archbishops of Milan.2 They came by degrees to exercise, though not always successfully, and seldom without opposition, an appellant jurisdiction over the causes of bishops deposed or censured in provincial synods. This, indeed, had been granted, if we believe the fact, by the canons of a very early council, that of Sardica, in 347, so far as to permit the pope to order a revision of the process, but not to annul the sentence.8 Valentinian III., influenced by Leo the Great, one of the most ambitious of pontiffs, had gone a great deal further, and established almost an absolute judicial supremacy in the Holy See.4 But the metropolitans 1 Dupin, p. 66; Fleury, Hist. Eccles. sedi, juxta canones, debetur summa jut. v. p. 373. The ecclesiastical province dicii totius. As the oak is in the acorn, of Illyricum included Macedonia. Siri- so did these maxims contain the system cius, the author of this encroachment, of Bellarmin. De Marca, 1. i. c. 10; and seems to have been one of the first 1. vii. c. 12. Dupin. usurpers. In a letter to the Spanish 4 Some bishops belonging to the probishops (A.D. 375) he exalts his own au- vince of Hilary, metropolitan of Aries, thority very high. De Marca, 1. i. c. 8. appealed from his sentence to Leo, who 2 St. Marc, t. i. p. 139, 153. not only entertained their appeal, but 8 Dupin, p. 109; De Marca, 1. vi. c. 14. presumed to depose Hilary. This asThese canons have been questioned, and sumption of power would have had little Dupin does not seem to lay much stress effect, if it had not been seconded by the on their authority, though I do not per- emperor in very unguarded language; ceive that either he, or Fleury (Hist. hoc perenni sanctione decernimus, ne Eccl6s. t. iii. p. 372), doubts their genu- quid tam episcopis Gallicanis, quam aliineness. Sardica was a city of Illyricum, arum provinciarum, contra consuetuwhich the translator of Mosheim has con- dinem veterem liceat sine auctoritate founded with Sardes. viri venerabilis papse urbis seternae tenConsultations or references to the tare; sed illis omnibusque pro lege sit, bishop of Rome, in difficult cases of faith quidquid sanxit vel sanxerit apostolicse or discipline, had been common in early sedis auctoritas. De Marca, De Concorages, and were even made by provincial dantiA Sacerdotii et Imperii, 1. i. c. 8. and national councils. But these were The same emperor enacted that any also made to other bishops emiment for bishop who refused to attend the tribunal personal merit, or the dignity of their of the pope when summoned should be sees. The popes endeavored to claim compelled by the governor of his provthis as a matter of right. Innocent I. ince; ut quisquis episcoporum ad juasserts (A.D. 402) that he was to be dicium Romani episcopi evocatus venire consulted, quoties fidei ratio ventilatur; neglexerit, per moderatorem ejusdem pro — and Gelasius (A.D. 492), quantum ad re- vinciwe adesse cogatur. Id. 1. Vii. c. 13; ligionem pertinet, non nisi apostolicee Dupin, De Ant. Discipl. p. 29 et 171. 156 GREGORY I. CHAP. VII. PART I. were not inclined to surrender their prerogatives; and, upon the whole, the papal authority had made no decisive progress in France, or perhaps anywhere beyond Italy, till the pontificate of Gregory I. This celebrated person was not distinguished by learning, Gregory L which he affected to depreciate, nor by his literary A.D. performances, which the best critics consider as i 9604. below mediocrity, but by qualities more necessary for his purpose, intrepid ambition and unceasing activity. He maintained a perpetual correspondence with the emperors 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.1 Claims hitherto disputed, or half preferred, assumed under his hands a more definite form; and nations too ignorant to compare precedents or discriminate principles yielded to assertions confidently made by the authority which they most respected. Gregory dwelt more than his predecessors upon the power of the keys, exclusively, or at least principally, committed to St. Peter, which had been supposed in earlier times, as it is now by the Gallican 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 ecclesiastical institution, were artfully confounded, or as it were merged, in the more paramount supremacy of the papal chair. From the time of Gregory the popes appear in a great measure to have thrown away that scaffolding, and relied in preference on the pious veneration of the people, and on the opportunities which might occur for enforcing their dominion with the pretence of divine authority.2 1 The flattering style in which this Rome, which had been long in suspense. pontiff addressed Brunehautand Phocas, Stephen, a Spanish bishop, having been the most flagitious monsters of his time, deposed, appealed to Rome. Gregory is mentioned in allcivil and ecclesiastical sent a legate to Spain, with full powers histories. Fleury quotes a remarkable to confirm or rescind the sentence. He letter to the patriarchs of Antioch and says in his letter on this occasion, & Alexandria wherein he says that St. sede apostolicl, quae omnium ecclesiPeter has one see, divided into three, arum caput est, causa haez audienda ac Rome, Antioch, and Alexandria; stoop- dirimenda fuerat. De Marca, 1. vii. c. 18. ing to this absurdity, and inconsistence In writing to the bishops of France he with his real system, in order to concil- enjoins them to obey Virgilius bishop of late their alliance against his more im- Aries, whom he has appointed his legate mediate rival, the patriarch of Constan- in France, secundum antiquam consuetinople. Hist. Eccles. t. viii. p. 124. tudinem; so that, if any contention 2 Gregory seems to have established should arise in the church, he may apthe appellant jurisdiction of the see of pease it by his authority, as vicegerent ECCLES. POWER. GREGORY I. 157 It cannot, I think, be said that any material acquisitions of ecclesiastical power were obtained by the successors of Gregory for nearly one hundred and fifty years.1 As none of them possessed vigor and reputation equal to his own, it might even appear that the papal influence was retrograde. of the apostolic see; auctoritatis suse soon afterwards. 4. The title of Univigore, vicibus nempe apostolicae sedis versal Bishop is not very intelligible; functus, discrete moderatione compescat. but, whatever it meant, the patriarchs of Gregorii Opera, t. ii. p. 783 (edit. Bene- Constantinople had borne it before, and diet.); Dupin, p. 34; Pasquier, Recher- continued to bear it ever afterwards. ches de la France, 1. iii. c. 9. (Dupin, De AntiquI Discipline, p. 329.) 1 I observe that some modern publi- 5. The preceding popes, Pelagius II. and cations annex considerable importance Gregory I. had constantly disclaimed the to a supposed concession of the title of appellation, though it had been adopted Universal Bishop, made by the emperor by some towards Leo the Great in the Phocas in 606 to Boniface III., and even council of Chalcedon (Fleury, t. viii. appear to date the papal supremacy from p. 95); nor does it appear to have been this epoch. Those who have imbibed this retained by the successors of Boniface. notion may probably have been misled It is even laid down in the decretum of by a loose expression in Mosheim's Eccle- Gratian that the pope is not styled unisiastical History, vol. ii. p. 169; though versal: nec etiam Romanus pontifex unithe general tenor of that passage by no versalis appellatur (p. 303, edit. 1591), means gives countenance to their opin- though some refer its assumption to the ion. But there are several strong objec- ninth century. Nouveau Traite de Diplotions to our considering this as a leading matique, t. v. p. 93. In fact it has never fact, much less as marking an era in the been an usual title. 6. The popes had history of the papacy. 1. Its truth, as unquestionably exercised a species of commonly stated, appears more than supremacy for more than two centuries questionable. TheRoman pontiffs, Greg- before this time, which had lately reached oryI. and Boniface III., had been ve- a high point of authority under Gregory I. hemently opposing- the assumption of The rescript of Valentinian III. in 455, this title by the patriarch of Constanti- quoted in a former note, would certainly nople, not as due to themselves, but as be more to the purpose than the letter one to which no bishop could legitimately of Phocas. 7. Lastly, there are no senpretend. There would be something al- sible marks of this supremacy making a most ridiculous in the emperor's imme- more rapid progress for a century and a diately conferring an appellation on half after the pretended grant of that themselves which they had just dis- emperor. [1818.] The earliest mention claimed; and though this objection of this transaction that I have found, and would not stand against evidence, yet one which puts an end to the pretended when we find no better authority quoted concession of such a title as Universal for the fact than Baronius, who is no Bishop, is in a brief general chronology, authority at all, it retains considerable by Bede, entitled' De Temporum Raweight. And indeed the want of early tione.' He only says of Phocas,-Hic, testimony is so decisive an objection rogante papa Bonifacio, statuit sedem to any alleged historical fact, that, but Romanae et apostolicse ecclesise caput for the strange prepossessions of some esse omnium ecclesiarum, quia ecclesia men, one might rest the case here. Constantinopolitana primam se omnium Fleury takes no notice of this part of the ecclesiarum scribebat. Bedse Opera, curl story, though he tells us that Phocas Giles, vol. vi. p. 323. This was probably compelled the patriarch of Constanti- the exact truth; and the subsequent nople to resign his title. 2. But if the additions were made by some zealous strongest proof could be advanced for partisans of Rome, to be seized hold of the authenticity of this circumstance, we in a later age, and turned against her by might well deny its importance. The some of her equally zealous enemies. concession of Phocas could have been of The distinction generally made is, that no validity in Lombardy, France, and the pope is "universalis ecclesiae episother western countries, where neverthe- copus," but not' episcopus universalis;" less the papal supremacy was incom- that is, he has no immediate jurisdiction parably more established than in the in the dioceses of other bishops, though East., 3. Even within the empire it he can correct them for the undue exercould have had no efficacy after the vio- cise of their own. The Ultramontanes lent death of that usurper,which followed of course go further. 158 ST. BONIFACE. CHAP. VII. PART I, But in effect the principles which supported it were taking deeper root, and acquiring strength by occasional though not very frequent exercise. Appeals to the pope were sometimes made by prelates dissatisfied with a local sentence; but his judgment of reversal was not always executed, as we perceive by the instance of bishop Wilfrid.l National councils were still convoked by princes, and canons enacted under their authority by the bishops who attended. Though the church of Lombardy was under great subjection during this period, yet those of France, and even of England, planted as the latter had been by Gregory, continued to preserve a tolerable measure of independence.2 The first striking infringement of this was made through the influence of an Englishman, Winfrid, better known as St. Boniface, the St. Boniface. apostle of Germany. Having undertaken the conversion of Thuringia, and other still heathen countries, he applied to the pope for a commission, and was consecrated bishop without any determinate see. Upon this occasion he took an oath of obedience, and became ever afterwards a zealous upholder of the apostolical chair. His success in the conversion of Germany was great, his reputation eminent, which enabled him to effect a material revolution in ecclesiastical government. Pelagius II. had, about 580, sent a pallium, or vest peculiar to metropolitans, to the bishop of Arles, perpetual vicar of the Roman see in Gaul.8 1I refer to the English historians for Saxon church. Nor do I perceive any the history of Wilfrid, which neither improbability in this, considering that altogether supports, nor much impeaches, the church had been founded by Authe independency of our Anglo-Saxon gustin, and restored by Theodore, both church in 700; a matter hardly worth so under the authority of the Roman see. much contention as Usher and Stilling- This intrinsic presumption is worth more fleet seem to have thought. The con- than the testimony of Eddius. But we secration of Theodore by pope Vitalian see by the rest of Wilfrid's history that in 668 is a stronger fact, and cannot be it was not easy to put the sentence of got over by those injudicious protestants Rome in execution. The plain facts are, who take the bull by the horns. The that, having gone to Rome claiming the history of Wilfrid has been lately put in see of York, and having had his claim a light as favorable as possible to him- recognized by the pope, he ended his self and to the authority of Rome by Dr. days as bishop of Hexham. Lingard. We have for this to rely on 2 Schmidt, t. i. p. 386, 394. Eddius (published in Gale's Scriptores), 3 Ut ad instar suum, in Galliarum a panegyrist in the usual style of legend- partibus primi sacerdotis locum obtineat, ary biography,-a style which has, on et quidquid ad gubernationem vel disme at least, the effect of producing utter pensationem ecclesiastici status gerendistrust. Mendacity is the badge of all dum est, servatis patrum regulis, et sedis the tribe. Bede is more respectable; apostolicae constitutis, faciat. Praeterea, but in this case we do not learn much pallium illi concedit, &c. Dupin, p. 34. from him. It seems impossible to deny Gregory I. confirmed this vicariate to that, if Eddius is a trustworthy histo- Virgilius bishop of Aries, and gave him rian, Dr. Lingard has made out his case; the power of convoking synods. De and that we must own appeals to Rome Marca, 1. vi. c. 7. to have been recognized in the Anglo ECCLES. POWER. SYNOD OF FRANKFORT. 159 Gregory I. had made a similar present to other metropolis tans. But it was never supposed that they were obliged to wait for this favor before they received consecration, until a synod of the French and German bishops, held at Synod of Frankfort in 742, by Boniface, as legate of pope Frankfort. Zachary. It was here enacted that, as a token of their willing subjection to the see of Rome, all metropolitans should request the pallium at the hands of the pope, and obey his lawful commands.l This was construed by the popes to mean a promise of obedience before receiving the pall, which was changed in after times by Gregory VII. into an oath of fealty.2 This council of Frankfort claims a leading place as an epoch in the history of the papacy. Several events ensued, chiefly of a political nature, which rapidly elevated that usurpation almost to its greatest height. Subjects of the throne of Constantinople, the popes had not as yet interfered, unless by mere admonition, with the temporal magistrate. The first instance wherein the civil duties of a nation and the rights of a crown appear to have been submitted to his decision was in that famous reference as to the deposition of Childeric. It is impossible to consider this in any other light than as a point of casuistry laid before the first religious judge in the church. Certainly, the Franks who raised the king of their choice upon their shields never dreamed that a foreign priest had conferred upon him the right of governing. Yet it was easy for succeeding advocates of Rome to construe this transaction very favorably for its usurpation over the thrones of the earth.3 1 Decrevimus, says Boniface, in nostro Constantinople in 872, this prerogative synodali conventu, et confessi sumus of sending the pallium to metropolitans fidem catholicam, et unitatem et subjec- was not only confirmed to the pope, but tionem Romanse ecclesiae fine tenus ser- extended to the other patriarchs, who vare, S. Petro et vicario ejus velle sub- had every disposition to become as great jici, metropolitanos pallia ab illa sede usurpers as their more fortunate elder quserere, et, per ornia, prsecepta S. Pe- brother. tri canonice sequi. De Marca. 1. vi. c. 7; 2 De Marca, ubi supra. Schmidt, t. ii. Schmidt, t. i. p. 424, 438, 446. This p. 262. According to the latter, this writer justly remarks the obligation oath of fidelity was exacted in the ninth which Rome had to St. Boniface, who century; which is very probable, since anticipated the system of Isidore. We Gregory VII. himself did but fill up the have a letter from him to the English sketch which Nicholas I. and John VIII. clergy, with a copy of canons passed in had delineated. I have since found this one of his synods, for the exaltation of confirmed by Gratian, p. 305. the apostolic see. but the church of Eng- 3 Eginhard says that Pepin was made land was not then inclined to acknowl- king per auctoritatem Romani pontificis; edge so great a supremacy in Rome. an ambiguous word, which may rise to Collier's Eccles. Iistory, p. 128. command, or sink to advice, according to In the eighth general council, that of the disposition of the interpreter. 160 FALSE DECRETALS. CHAP. VII. PART I. I shall but just glance at the subsequent political revolutions of that period; the invasion of Italy by Pepin, his donation of the exarchate to the Holy See, the conquest of Lombardy by Charlemagne, the patriarchate of Rome 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 supremacy, 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 False ecclesiastical canons, now commonly denominated Decretals. the False Decretals.1 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 provincial synod was abrogated. Every accused person might not only appeal from an inferior sentence, but remove an unfinished process before the supreme pontiff. And the latter, instead of directing a revision of the proceedings by the original judges, might annul. them by his own authority; a strain of jurisdiction beyond the canons of Sardica, but certainly warranted by the more recent practice of Rome. New sees were not to be erected, nor bishops translated from one see to another, nor their resignations accepted, without the sanction of the pope. They were still indeed to be consecrated by the metropolitan, but in the pope's name. It has been plausibly suspected that these decretals were forged by some bishop, in jealousy or resentment; and 1 The era of the False Decretals has this collection of Adrian; but I have not been precisely fixed; they have sel- not observed the same opinion in any dom been supposed, however, to have other writer. The right of appeal from appeared much before 800. But there a sentence of the metropolitan deposing is a genuine collection of canons pub- a bishop to the Holy See is positively lished by Adrian I. in 785, which contain recognized in the Capitularies of Louis nearly the same principles, and many of the Debonair(Baluze, p. 1000); the three which are copied by Isidore, as well as last books of which, according to the Charlemagne in his Capitularies. De collection of Ansegisus, are said to be Marca, 1. vii. c. 20; Giannone, 1. v. c. 6; apostolica auctoritate roborata, quia his Dupin, De Antiqua Disciplina, p. 133. cudendis maxime apostolica interfuit leFleury, Hist. Eccles. t. ix. p. 500, seems gatio. p. 1132. to consider the decretals as older than ECCLES. POWER. PAPAL ENCROACHMENTS. 161 their general reception may at least be partly ascribed to, such sentiments. The archbishops were exceedingly powerful, and might often abuse their superiority over inferiar prelates; but the whole episcopal aristocracy had abundant reason to lament their acquiescence in a system of which the metropolitans were but the earliest victims. Upon these spurious decretals was built the great fabric of papal supremacy 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.' The Gallican church made for some time a spirited though unavailing struggle against this rising despotism. Gregory IV., having come into France to abet the croachments children of Louis the Debonair in their rebellion, on the and threatened to excommunicate the bishops who adhered to the emperor, was repelled with indignation by those prelates. " If he comes here to excommunicate," said they, "he shall depart hence excommunicated." In the subsequent reign of Charles the Bald a bold defender of ecclesiastical independence was found in Hincmar archbishop of Rheims, the most distinguished statesman of his age. Appeals to the pope even by ordinary clerks had become common, and the provincial councils, hitherto the supreme spiritual tribunal, as well as legislature, were falling rapidly into decay. The frame of church government, which had lasted from the third or fourth century, was nearly dissolved; a refractory bishop was sure to invoke the supreme court of appeal, and generally met there with a more favorable judicature. Hincmar, a man equal in ambition, and almost in public estimation, to any pontiff, sometimes came off successfully in his contentions with Rome.8 But time is fatal to the 1 I have not seen any account of the the papal court, without sacrificing aldecretals so clear and judicious as in together the Gallican church and the Schmidt's History of Germany, t. ii. p. crown. 249. Indeed all the ecclesiastical part 2 De Marca, 1. iv. c. 11; Velly, &c. of that work is executed in a very supe- 8 De Marca 1. iv. c. 68, &c.; 1 vi. c. 14, rior manner. See also De Marca, 1. iii. 28; 1. vii. c. 21. Dupin, p. 133, &c. c. 6; 1. vii. c. 20. The latter writer, Hist. du Droit Eccles. Francois, p. 188, from whom I have derived much infor- 224. Velly, &c. Hincmar however was mation, is by no means a strenuous ad- not consistent; for, having obtained the versary of ultramontane pretensions. In see of Rheims in an equivocal manner, fact, it was his object to please both in he had applied for confirmation at Rome, France and at Rome, to become both an and in other respects impaired the Galarchbishop and a cardinal. He failed lican rights. Pasquier, Recherches de la nevertheless of the latter hope; it being France, 1. iii. c. 12. impossible at that time (1650) to satisty VOL. II. 11 162 PAPAL ENCROACHMENTS. CHAP. VII. PART I unanimity of coalitions; the French bishops were accessible to superstitious prejudice, to corrupt influence, to mutual jealousy. Above all, they were conscious that a persuasion of the pope's omnipotence had taken hold of the laity. 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 usurpations of the Holy See. One of those which most annoyed their aristocracy was the concession to monasteries of exemption from episcopal authority. These had been very uncommon till about the eighth century, after which they were studiously multiplied.1 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 foundations rendered, as it would seem, more respectable by privileges 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 1 The earliest instance of a papal ex- the bishops had exercised an arbitrary, emption is in 455, which indeed is a and sometimes a tyrannical power over respectable antiquity. Others scarcely the secular clergy; and after the monks occur till the pontificate of Zachary in became part of the church, which was the middle of the eighth century, who before the close of the sixth century, granted an exemption to Monte Casino, they also fell under a control not always ita ut nullius juri subjaceat, nisi solius fairly exerted. Both complained greatly, Romani pontificis. See this discussed as the acts of councils bear witness:in Giannone, 1. v. c. 6. Precedents for Un fait important et trop peu remarque the exemption of monasteries from epis- se revele